In Int of: A.M.S. Appeal of: D.S. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.M.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: D.S., FATHER :
: No. 1850 MDA 2015
Appeal from the Decree, September 25, 2015,
in the Court of Common Pleas of York County
Orphans’ Court Division at No. 2015-0085
IN RE: ADOPTION OF: : IN THE SUPERIOR COURT OF
D.N.L.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1851 MDA 2015
:
Appeal from the Decree, September 25, 2015,
in the Court of Common Pleas of York County
Orphans’ Court Division at No. 2015-0086
IN RE: ADOPTION OF: : IN THE SUPERIOR COURT OF
S.H.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1852 MDA 2015
Appeal from the Decree, September 25, 2015,
in the Court of Common Pleas of York County
Orphans’ Court Division at No. 2015-0087
IN RE: ADOPTION OF: : IN THE SUPERIOR COURT OF
W.D.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1853 MDA 2015
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Appeal from the Decree, September 25, 2015,
in the Court of Common Pleas of York County
Orphans’ Court Division at No. 2015-0088
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
A.M.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1854 MDA 2015
Appeal from the Order Entered September 28, 2015,
in the Court of Common Pleas of York County
Juvenile Division at No. CP-67-DP-113-2013
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
D.N.L.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1855 MDA 2015
Appeal from the Order Entered September 28, 2015
in the Court of Common Pleas of York County
Juvenile Division at No. CP-67-DP-111-2013
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
S.H.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1856 MDA 2015
Appeal from the Order Entered September 28, 2015,
in the Court of Common Pleas of York County
Juvenile Division at No. CP-67-DP-110-2013
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IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
W.D.S., A MINOR : PENNSYLVANIA
:
APPEAL OF: D.S., FATHER : No. 1857 MDA 2015
Appeal from the Order Entered September 28, 2015,
in the Court of Common Pleas of York County
Juvenile Division at No. CP-67-DP-0000112-2013
BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2016
D.S. (“Father”) appeals from the decrees entered September 25,
2015, in the Court of Common Pleas of York County, which involuntarily
terminated his parental rights to his minor daughters, A.M.S., born in April
of 2002; W.D.S., born in November of 2004; D.N.L.S., born in July of 2009;
and S.H.S., born in September of 2010 (collectively, “the Children”). 1 In
addition, Father appeals from the orders entered September 28, 2015, which
changed the Children’s permanency goals to adoption. After careful review,
we affirm.
*
Retired Senior Judge assigned to the Superior Court.
1
The Children’s mother, H.S. (“Mother”), relinquished her parental rights
voluntarily. Mother has not filed a brief in connection with Father’s appeal,
nor has she filed her own separate appeal.
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On May 17, 2013, the York County Office of Children, Youth and
Families (“CYF”) filed dependency petitions with respect to each of the
Children. In its petitions, CYF alleged that Mother was recently incarcerated
due to child endangerment charges. (Dependency Petitions, 5/17/13 at 4
(allegations of dependency at ¶ 19).) The petitions explained that Mother
was in a relationship with a violent sex offender, and she and the sex
offender had been residing in a hotel room with the Children. (Id. at 3
(allegations of dependency at ¶ 2-4).) In addition, Mother was failing to
supervise the Children adequately. (Id. at 4 (allegations of dependency at
¶ 8-16).) At the time CYF filed its dependency petitions, Father also was
incarcerated, and was not available to care for the Children. (Id. at 5
(allegations of dependency at ¶ 20).) The Children were adjudicated
dependent by orders entered July 10, 2013.
On July 1, 2015, CYF filed petitions to terminate Father’s parental
rights to the Children involuntarily, as well as petitions to change the
Children’s permanency goals to adoption. A combined termination and goal
change hearing took place on August 14, 2015, and September 11, 2015.
Following the hearing, on September 25, 2015, the trial court entered its
decrees terminating Father’s parental rights involuntarily. On
September 28, 2015, the court entered its orders changing the Children’s
permanency goals to adoption. Father timely filed notices of appeal on
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October 23, 2015, along with concise statements of errors complained of on
appeal.
Father now raises the following issues for our review.
I. Whether the trial court erred in finding that
[CYF] established by clear and convincing
evidence that Father has failed to perform
parental duties for a period in excess of
six months when Father provided for his
Children during regular visitation and
scheduled and attended the Children’s medical
and education appointments[?]
II. Whether the trial court erred in finding that
[CYF] established by clear and convincing
evidence that Father caused the Children to be
without essential parental care, control or
subsistence and refused to remedy these
conditions when Father was no longer
incarcerated and was able to obtain
employment upon his release from prison[?]
III. Whether the trial court erred in finding that
[CYF] established by clear and convincing
evidence that Father would be unable to
remedy the conditions which led to the
Children’s removal with adequate assistance
and services when no alternative services were
initiated after the in-home team terminated[?]
IV. Whether the trial court erred in finding that
[CYF] established by clear and convincing
evidence that the conditions which led to the
Children’s removal from the Father’s care
continue to exist when Father was no longer
incarcerated, able to obtain employment upon
his release from prison, and consistently
inquired about the Children both during and
after his incarceration[?]
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V. Whether the trial court erred in finding that
[CYF] established by clear and convincing
evidence that termination of parental rights
would best serve the needs and welfare of the
Children when a bond exists among Father and
the Children[?]
VI. Whether the trial court erred in changing the
goal from reunification to placement for
adoption where a bond exists among the
Father and Children and it is not in the best
interests of the Children to sever the bond with
Father[?]
Father’s brief at 11-12 (unnecessary capitalization omitted).
We first consider whether the trial court erred or abused its discretion
by involuntarily terminating Father’s parental rights to the Children. We do
so mindful of the following.
The standard of review in termination of parental
rights cases requires appellate courts to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record. If the
factual findings are supported, appellate courts
review to determine if the trial court made an error
of law or abused its discretion. A decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely
because the record would support a different result.
We have previously emphasized our deference to
trial courts that often have first-hand observations of
the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent.
The party seeking termination must prove by clear
and convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and
status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
In this case, the trial court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), (5), (8), and (b). We need only agree
with the court as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384
(Pa.Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Here, we analyze the court’s decision to terminate under
Sections 2511(a)(2) and (b), which provide as follows.
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in
regard to a child may be terminated after a
petition filed on any of the following grounds:
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....
(2) The repeated and continued
incapacity, abuse, neglect or
refusal of the parent has caused
the child to be without essential
parental care, control or
subsistence necessary for his
physical or mental well-being and
the conditions and causes of the
incapacity, abuse, neglect or
refusal cannot or will not be
remedied by the parent.
....
(b) Other considerations.--The court in
terminating the rights of a parent shall give
primary consideration to the developmental,
physical and emotional needs and welfare of
the child. The rights of a parent shall not be
terminated solely on the basis of
environmental factors such as inadequate
housing, furnishings, income, clothing and
medical care if found to be beyond the control
of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8),
the court shall not consider any efforts by the
parent to remedy the conditions described
therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being; and (3) the causes of the incapacity,
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abuse, neglect or refusal cannot or will not be
remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted)). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002) (citations omitted).
Instantly, the trial court found that Father has made little, if any,
progress in completing the goals set forth in his Family Service Plan (“FSP”).
(Adjudication, 9/25/15 at 15.) The trial court emphasized that Father has
repeatedly changed residences, failed to provide CYF with verification of his
employment, and failed to complete a mental health assessment. (Id.) The
court noted that Father has attended his visits with the Children regularly,
but that his behavior during these visits was often inappropriate. (Id.)
Father argues that he has not been given sufficient time to
demonstrate his parenting abilities. (Father’s brief at 33.) Father contends
that he was incarcerated for a portion of the Children’s dependency, and that
he was limited in his ability to work toward reunification while incarcerated
and while on parole. (Id.) Father stresses that he has maintained regular
visitation with the Children. (Id.)
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After a thorough review of the record in this matter, we conclude that
the trial court did not err or abuse its discretion. During the termination and
goal change hearing, CYF presented the testimony of family support
caseworker, Natasha Daugherty. Ms. Daugherty testified that CYF asked
Father to complete several FSP goals, including obtaining and maintaining
housing and employment, attending visits with the Children, and complying
with the conditions of his parole.2 (Notes of testimony, 8/14/15 at 165.)
Concerning Father’s housing and employment, Ms. Daugherty testified
that Father has resided in eleven different locations since the Children were
adjudicated dependent, including two periods of incarceration.3 (Id. at 166-
170.) Ms. Daugherty has never had the opportunity to visit one of Father’s
residences, outside of visiting him while he was incarcerated. (Id. at 170.)
Father recently scheduled a visit with Ms. Daugherty at his home, but later
canceled the visit and did not reschedule. (Id. at 172.) As a result,
Ms. Daugherty has not been able to determine whether Father’s current
2
In addition, Father was asked to sign releases, and to notify CYF of any
phone number or address changes within 24 hours. (Notes of testimony,
8/14/15 at 165.) Ms. Daugherty noted that Father has been resistant with
respect to signing releases and keeping CYF apprised of his phone number
and address. (Id. at 165.)
3
Father first was incarcerated from February of 2013 until September of
2014, due to charges of theft by unlawful taking. (Notes of testimony,
8/14/15 at 166.) Father again was incarcerated from May 24, 2015, until
June 5, 2015, due to a variety of criminal charges, including fleeing or
attempting to elude a police officer, conspiracy, recklessly endangering
another person, and resisting arrest, inter alia. (Id. at 167.)
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residence is appropriate for the Children. (Id. at 171.) Similarly,
Ms. Daugherty has not been able to verify Father’s current employment.
(Id. at 165.) Ms. Daugherty explained that Father’s attorney sent her a set
of six pay stubs from two different employers in April of 2015. (Id. at 172.)
Father has not provided any additional documentation to demonstrate that
he remains employed or has been employed since that time. (Id.)
With respect to visitation, Ms. Daugherty testified that Father has been
visiting with the Children consistently since he was released from
incarceration in September of 2014.4 (Id. at 166, 173-174.) However,
Ms. Daugherty expressed concern with respect to Father’s behaviors during
some of the visits. For example, Ms. Daugherty described a visit during
which she and Father took the Children to a state park. (Id. at 197-198.)
During the visit, Father informed Ms. Daugherty that he had been attacked
by a corrections officer at a halfway house, and that he wanted to have the
visit at the park because “this person knew his location and times of his
visits, so it would be safer for him and the [C]hildren to be at a different
location where this individual did not know where he was going to be at.”
(Id. at 198.) As the visit progressed, Ms. Daugherty discovered that Father
4
On September 11, 2015, Ms. Daugherty testified that Father did not attend
any of his visits with the Children since the first day of the termination and
goal change hearing concluded on August 14, 2015. (Notes of testimony,
9/11/15 at 27-28.) Father cancelled each scheduled visit, indicating that he
could not attend because he had to work overtime. (Id. at 28.) Father
failed to provide any documentation in support of this claim. (Id. at 29.)
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had parked his vehicle behind a building, rather than in the normal parking
area. (Id. at 198-199.) Father explained that he parked the vehicle there
so that “these other individuals could not find him.” (Id. at 199.) Father
also stated that there was someone “watching him to keep him safe, and
there were at least three times during that visit that he was on the phone
with someone stating his location and what all of us were wearing, to check
in.”5 (Id.)
Finally, Ms. Daugherty testified concerning Father’s parole.
Ms. Daugherty believed that Father was required to complete a mental
health assessment pursuant to his parole conditions, but Father only
partially completed the assessment. (Notes of testimony, 9/11/15 at
57-58.) Ms. Daugherty suggested that Father may be suffering from mental
health issues, as indicated by his secrecy, and his paranoid behaviors.
(Notes of testimony, 8/14/15 at 212.) In addition, Ms. Daugherty explained
that Father has repeatedly threatened to sue her, and to make her lose her
job. (Id. at 218.)
Accordingly, the record confirms that Father is incapable of parenting
the Children, and Father cannot, or will not, remedy his parental incapacity.
5
Ms. Daugherty also described a visit which took place only three days prior
to the start of the termination hearing, on August 11, 2015. (See notes of
testimony, 8/14/15 at 187.) The visit had to be ended early due to Father
continuously berating A.M.S. and threatening to “smack” her, among other
things. (Id. at 187-189.)
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As observed by the trial court, Father has refused or failed to cooperate with
CYF, and he has failed to complete his FSP goals. Troublingly, Father’s
participation in the reunification process has actually become worse rather
than better, as evidenced by Father’s failure to visit with the Children
following the first day of the termination hearing. It was proper for the trial
court to conclude that the Children should no longer be denied permanence
and stability. See M.E.P., 825 A.2d at 1276 (“A child’s life simply cannot be
put on hold in the hope that the parent will summon the ability to handle the
responsibilities of parenting.”) (citations omitted).
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) as follows.
Section 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the
child. As this Court has explained, Section 2511(b)
does not explicitly require a bonding analysis and the
term “bond” is not defined in the Adoption Act. Case
law, however, provides that analysis of the emotional
bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a
parent’s emotional bond with his or her child is a
major aspect of the subsection 2511(b) best-interest
analysis, it is nonetheless only one of many factors
to be considered by the court when determining
what is in the best interest of the child.
[I]n addition to a bond examination, the
trial court can equally emphasize the
safety needs of the child, and should also
consider the intangibles, such as the
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love, comfort, security, and stability the
child might have with the foster parent.
Additionally, this Court stated that the
trial court should consider the
importance of continuity of relationships
and whether any existing parent-child
bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015), quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and
citations omitted).
Here, the trial court found that the Children are bonded with Father.
(Supplemental opinion, 11/10/15 at 3.) The court observed that D.N.L.S.
and S.H.S. have the healthiest bond with Father, while the bond between
A.M.S. and Father has become unhealthy. (Id.) Despite the existence of
these bonds, the court concluded that terminating Father’s parental rights
would not negatively impact the Children. (Id. at 4.) The court emphasized
that the Children are doing well in foster care, and that the Children’s foster
parents can provide them with safety, security, and permanency. (Id.)
Father contends that his bond with the Children should prevent the
termination of his parental rights. (Father’s brief at 36.) Father asserts that
his bond with the Children is not outweighed by the Children’s relationships
with their respect foster parents. (Id. at 36-37.) Father emphasizes that he
has obtained housing and employment, and he suggests that terminating his
parental rights due to housing or financial issues would violate the portion of
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Section 2511(b) dealing with environmental factors beyond the control of
the parent. (Id. at 37.) See 23 Pa.C.S.A. § 2511(b) (“The rights of a
parent shall not be terminated solely on the basis of environmental factors
such as inadequate housing, furnishings, income, clothing and medical care
if found to be beyond the control of the parent.”).
We again conclude that the trial court did not err or abuse its
discretion. Ms. Daugherty testified that pre-adoptive resources have been
identified for all four of the Children. (Notes of testimony, 8/14/15 at 216.)
A.M.S. and W.D.S. reside together in the same foster home, and S.H.S. and
D.N.L.S. reside together in a separate foster home. (Id. at 176.) The
Children appear to be comfortable in their respective residences. (Id. at
176-78.) Concerning the bond between Father and the Children,
Ms. Daugherty explained that A.M.S.’s relationship with Father has
deteriorated since she entered foster care. (Id. at 179.) Father and A.M.S.
do not get along during their visits, and Ms. Daugherty believed that A.M.S.
has an unhealthy bond with Father. (Id. at 180.) Ms. Daugherty opined
that A.M.S. has a stronger bond with her foster parents. (Id.)
With respect to S.H.S. and D.N.L.S., Ms. Daugherty observed that they
were excited to see Father during visits. (Id. at 183, 185-86.) D.N.L.S. in
particular will sometimes become “clingy” and will not want to leave Father
at the conclusion of visits. (Id. at 184.) However, Ms. Daugherty explained
that D.N.L.S. quickly recovers after being returned to her foster home. (Id.)
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Despite D.N.L.S.’s affectionate behavior, Ms. Daugherty agreed that D.N.L.S.
appears to view Father more as an acquaintance than as a parental figure.
(Id. at 185.) Ms. Daugherty also opined that S.H.S. is more bonded with
her foster family than she is with Father. (Id. at 186.) Ms. Daugherty
explained that it is difficult to assess the bond between Father and W.D.S.,
because W.D.S. is very quiet. (Id. at 181.) Ms. Daugherty observed that
W.D.S. is “usually pretty happy” to see Father, but she believed that the
bond between W.D.S. and Father has weakened slightly. (Id. at 181-82.)
Thus, the record supports the conclusion of the trial court that it would
best serve the Children’s needs and welfare to terminate Father’s parental
rights. As observed by the trial court, A.M.S. and Father have an unhealthy
bond. While D.N.L.S., S.H.S., and W.D.S. appear to have a more positive
relationship with Father, it is clear that this relationship is outweighed by
Father’s parental incapacity, and the Children’s need for permanence and
stability. See C.D.R., 111 A.3d at 1220 (concluding that the appellant
mother’s bond with C.D.R. was outweighed by the mother’s “repeated failure
to remedy her parental incapacity” and by C.D.R.’s need for permanence and
stability). In addition, we observe that terminating Father’s parental rights
does not run afoul of the portion of Section 2511(b) relating to
environmental factors. Father’s parental rights were not terminated solely
on the basis of these factors, and Father’s failure to verify his housing and
employment was not beyond his control.
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Finally, we consider whether the trial court erred or abused its
discretion by changing the Children’s permanency goals to adoption.
[T]he standard of review in dependency cases
requires an appellate court to accept the findings of
fact and credibility determinations of the trial court if
they are supported by the record, but does not
require the appellate court to accept the lower
court’s inferences or conclusions of law. Accordingly,
we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Pursuant to § 6351(f) of the Juvenile Act,
[42 Pa.C.S.A. § 6351(f),] when considering a petition
for a goal change for a dependent child, the juvenile
court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service
plan; (3) the extent of progress made towards
alleviating the circumstances which necessitated the
original placement; (4) the appropriateness and
feasibility of the current placement goal for the
children; (5) a likely date by which the goal for the
child might be achieved; (6) the child’s safety; and
(7) whether the child has been in placement for at
least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the
parent, must guide the trial court. As this Court has
held, a child’s life simply cannot be put on hold in the
hope that the parent will summon the ability to
handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-1089 (Pa.Super. 2011) (citations and
quotation marks omitted).
In the instant matter, the trial court found that it would be in the best
interest of the Children to change their permanency goals to adoption.
(Adjudication, 9/25/15 at 11.) The court stressed that the Children have
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been in foster care for over two years, and are in need of a permanent, safe,
and stable environment. (Id.) In addition, the court expressed concern
that Father is unable to parent the Children appropriately, and that Father
has failed to maintain stable and adequate housing for the Children, failed to
verify his employment, and failed to complete a mental health assessment.
(Id. at 11-12.)
Father argues that the trial court abused its discretion by changing the
Children’s permanency goals, because he has cooperated with CYF and has
continued to make progress toward reunification. (Father’s brief at 38-42.)
Father repeats his previous contentions that his ability to achieve
reunification was limited by his incarceration and the conditions of his
parole, and that he has obtained housing and employment. (Id. at 43-44.)
For the reasons discussed throughout this memorandum, we again
conclude that the trial court did not err or abuse its discretion. Contrary to
his argument on appeal, it is apparent that Father has not cooperated with
CYF. Father has failed to provide verification of his housing and
employment, and he remains incapable of parenting the Children. The
record supports the trial court’s conclusion that adoption will be in the
Children’s best interest.
Accordingly, because we conclude that the trial court did not err or
abuse its discretion by involuntarily terminating Father’s parental rights to
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the Children, and by changing the Children’s permanency goals to adoption,
we affirm the decrees and orders of the trial court.
Decrees affirmed. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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