In the Int. of: D.A.C.N., Appeal of: H.B.C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.A.C.N., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: H.B.C., FATHER :
:
:
:
: No. 1905 EDA 2019
Appeal from the Order Entered June 13, 2019,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-AP-0000387-2019,
FID: 51-FN-004746-2011.
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 11, 2020
H.B.C. (Father) appeals the order terminating his parental rights to his
two-year-old daughter, D.A.C.N. (Child), pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511(a)(2), (5), (8) and(b).1 We affirm.
The record discloses the following relevant factual and procedural
history. Child, born in February 2017, first came to the attention of the
Philadelphia Department of Human Services (DHS) when Mother tested
positive for phencyclidine (PCP) at the time of Child’s birth. At that time,
Father was incarcerated. DHS obtained a protective custody order and
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* Retired Senior Judge assigned to the Superior Court.
1The trial court also terminated the parental rights of D.N. (Mother). Her
appeal is listed before a separate panel of this Court.
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removed Child from Mother’s care. At the ensuing shelter hearing, the court
determined that Mother and Child were receiving in-patient treatment and
reunified Child and Mother.
The case became active again in December 2017, following reports that
the parents were using illicit drugs and that Father was verbally abusive. The
latter incident triggered police intervention after Father threatened to kill
everyone at the scene. DHS obtained a protective custody order, marking the
last time Father had contact with Child. At the shelter hearing, the court
referred Father to the clinical evaluation unit (CUA) for a drug screen. Father
tested positive for marijuana and PCP. Child was adjudicated dependent on
February 1, 2018.
Throughout the dependency case, Father never complied with Child’s
court-ordered permanency plan. Following the adjudication, the court
referred Father to the Achieving Reunification Center (ARC) for appropriate
services, but he failed to attend the intake evaluation. Although Father was
referred to another drug test, he did not comply. The court also referred
Father for parenting, housing, and financial services, and it further ordered
Father to engage in dual diagnosis treatment. Father failed to participate with
any of these programs.
In January 2019, Father was arrested on a bench warrant for a probation
violation; he had been on probation following a 2015 guilty plea to burglary
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and conspiracy. Father was sentenced to eleven and a half months to twenty-
three months for the probation violation.2
On May 28, 2019, DHS filed termination and goal-change petitions. On
June 13, 2019, the court conducted an evidentiary hearing. The court granted
the petitions and terminated Father’s parental rights under 23 Pa.C.S.A. §
2511(a)(2), (5), (8) and (b). Father presents this timely-filed appeal.
Father does not appeal the goal-change determination, nor does he
contend that DHS failed to meet its burden under § 2511(b). Instead, Father
raises the following issue for our review:
Whether the trial court committed reversible error when it
involuntarily terminated Father’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act, 23 Pa.C.S.A. §
2511(a)(2), (5) and (8).
Father’s Brief at 4.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following principles:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court's determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of
the trial court if they are supported by the record. In re:
R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the
trial court made an error of law or abused its
discretion. Id.; In re R.I.S., 36 A.3d 567, 572 (Pa.
2011) (plurality). As has been often stated, an abuse of
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2 The record is unclear as to precisely when his sentence began.
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discretion does not result merely because the reviewing
court might have reached a different conclusion. Id.; see
also Samuel–Bassett v. Kia Motors America, Inc., 34
A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate
courts are not equipped to make the fact-specific
determinations on a cold record, where the trial judges are
observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child
and parents. R.J.T., 9 A.3d at 1190. Therefore, even
where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court's legal conclusions are not the result of an error of law
or an abuse of discretion. In re Adoption of Atencio, 650
A.2d 1064, 1066 (Pa. 1994).
In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
At the termination hearing, the burden is upon the petitioner to prove
by clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.
Super. 2009). We have explained that the “standard of clear and convincing
evidence is defined as testimony that is so ‘clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear conviction, without
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hesitance, of the truth of the precise facts in issue.’” Id. (quoting In re J.L.C.,
837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court has explained that the focus in terminating parental rights
under section 2511(a) is on the parent, but under section 2511(b), the focus
is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). As Father does not contest the second prong of the
termination analysis under Section 2511(b), we will only address the first
prong under Section 2511(a). Here, the court terminated Father’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5) and (8). We note that this
Court may affirm the trial court's decision regarding the termination of
parental rights with regard to any one subsection of section 2511(a). In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Thus, we may
narrow our focus even further, confining our discussion to subsections (a)(2),
which provides:
§ 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:
(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.
23 Pa.C.S.A. § 2511(a)(2).
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Our Supreme Court established a three-part test when terminating a
parent’s rights under Section 2511(a)(2). The petitioner must satisfy the
following criteria:
(1) A parent’s repeated and continued incapacity, abuse,
neglect or refusal must be shown; (2) such incapacity,
abuse, neglect or refusal must be shown to have caused the
child to be without essential parental care, control or
subsistence; and (3) it must be shown that the causes of
the parent’s incapacity, abuse, neglect or refusal cannot or
will not be remedied.
See In re A.D., 93 A.3d 888, 896 (Pa. Super. 2014) (citing In re Geiger,
331 A.2d 172, 173-174 (Pa. 1975)).
The trial court found that DHS established clear and convincing evidence
warranting the termination of Father’s rights:
Throughout the time that Child has been in the custody of
DHS, Father’s [reunification] goals were dual diagnosis,
random drug screens, domestic violence [], and to make
outreach to CUA. […] Father never provided any
documentation that showed he successfully completed any
type of domestic violence program. Father completed
intake at ARC on February 26, 2018, but did not engage and
complete the parenting, housing, and financial counseling
programs. […] Father also indicated that he only completed
drug and alcohol while incarcerated, but failed to complete
the mental health component of his dual diagnosis
objective. Father admitted that between the adjudicatory
hearing in April 2018[3] and his incarceration in January
2019, Father never attempted to engage in dual diagnosis
services. [At the time of the shelter hearing], Father
completed the only random drug screen for the life of the
case. Father has not been in contact with CUA since April
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3We note that the adjudication hearing occurred in February 2018. The first
permanency review occurred in April 2018.
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2018. Father acknowledged that he failed to maintain
contact with CUA. […] During the life of the case, Father
has not visited Child. Father’s visitation was suspended in
April 2018 and has remained suspended for the life of the
case. Father has been incarcerated since January 2019.
Father indicated that the sentence he was given for the
violation of probation was between eleven and a half months
to twenty-three months. Father indicated that he does not
have housing arranged for his release from prison. Father
was aware of his objectives and that his visitation would be
reinstated if he engaged in his objectives, but Father refused
to comply.
T.C.O., 9/11/19, at 7-8 (citations to the record omitted).
On appeal, Father acknowledges his failure to comply with the
permanency plan, but notes that he completed a drug program while in prison.
The crux of his argument is that he has attempted to utilize all available
resources while in prison. See Father’s Brief at 13.
Although not a litmus test, a parent’s incarceration is relevant to the
Section 2511(a)(2) analysis and, depending on the circumstances of the case,
a petitioner may use incarceration as evidence of a parent’s inability to provide
the “essential parental care, control or subsistence” that the section
contemplates. See In re A.D., 93 A.3d at 897 (citing 23 Pa.C.S.A. §
2511(a)(2)). Incarceration does not relieve a parent of the obligation to
perform parental duties. In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).
Rather, an incarcerated parent must “utilize available resources to continue a
relationship” with his or her child. Id. (quoting In re Adoption of S.P., 47
A.3d 817, 828 (Pa. 2012)) (supra).
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Here, Father claims that his completion of the prison program
demonstrated that he utilized available resources, and so his rights should not
be terminated under Section 2511(a)(2). He wants this Court to find that he
parented as much as he was able. This argument blatantly ignores the prior
eleven months between his incarceration and Child’s dependency
adjudication, when Father failed to comply with any part of the permanency
plan – to say nothing of the preceding two months between the adjudication
and Child’s removal from the home, which was the last time Father sought to
have contact with Child. It would be one thing if the record demonstrated
that, prior to his incarceration, Father had ample ability to provide parental
care, that he was able to maintain a relationship with Child while incarcerated,
and that he would be able to resume parental care upon his imminent release.
Instead, the record indicates the opposite. Father either refused to parent or
was incapable of parenting before he went to prison, he has done next to
nothing while incarcerated, and, notwithstanding his eventual release from
prison, the conditions of the incapacity or refusal cannot or will not be
remedied.
Accordingly, we conclude that the trial court did not abuse its discretion
by terminating involuntarily Father’s parental rights to Child pursuant to
Section 2511(a)(2). Therefore, we affirm the court’s order granting DHS’s
petition.
Order affirmed.
Judge Colins joins the memorandum.
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Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/20
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