In the Interest of: N.R.S., Appeal of: P.S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.R.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.S., NATURAL FATHER :
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: No. 2037 MDA 2019
Appeal from the Decree Entered November 14, 2019
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): A-8803
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 01, 2020
P.S. (“Father”) appeals from the decree terminating his parental rights
to N.R.S. (“Child”). Father argues the trial court erred in finding the Luzerne
County Children and Youth Services (“CYS”) proved by clear and convincing
evidence that grounds for termination existed and that termination would be
in Child’s best interest. We affirm.
Child was born in August 2014. In September 2016, the Wilkes-Barre
City police took Child into custody because Child’s mother attempted to
purchase heroin. Mother was arrested and charged with child endangerment
and possession of drug paraphernalia. Father did not reside with Child and
Mother at the time of placement, and Father had not seen Child since Child
was six months old. Mother died in July 2017, while incarcerated.
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* Former Justice specially assigned to the Superior Court.
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In November 2018, CYS filed a petition to terminate the parental rights
of Father. The court held a hearing. CYS caseworker Cindy Jones testified.
Jones testified that CYS contacted Father in 2016, when Child was initially
placed. N.T., 6/27/19, at 4-5. After “quite a lapse in time,” Father contacted
the agency. Id. at 5. Jones stated that Father attended a hearing in March
2018, and the court ordered six hours of visitation per week. Id. Father,
however, did not engage in the visitation. Father said he was unable to
participate in the visits because of the distance, as he resided in New York.
Id. CYS offered him a 30-day bus pass, which he used one time. Id. Jones
testified that Father had seven visits with Child from September 2016 until
the date of the hearing, with six of those visits occurring prior to the filing of
the termination petition. Id. at 6. In the six months preceding the filing of the
petition, Father had one visit with Child. Id. Jones further testified that she
spoke with Father to suggest he increase his contact with Child. Id. She set
up a visitation schedule, referred Father to Vision Quest, so that visits could
occur on weekends, and suggested phone calls, letters, and FaceTime. Id.
Father made some phone calls, but was not consistent, and sent one letter in
April 2019. Id. at 6-7. Jones testified that Father has not demonstrated that
he could parent Child and has not taken a parenting role in Child’s life. Id. at
7. He has not provided financial support, provided any gifts, has sent only one
letter, and has not been in contact to check on Child’s well-being. Id. 7-8.
On cross-examination, Jones testified that Father consistently attended
the hearings from March 2018 through the current hearing, coming from New
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York to attend. Id. at 10. CYS utilized the Interstate Compact on the
Placement of Children and contacted the corresponding agency in New York.
However, Father was denied as a resource due to his criminal history and
insufficient financial means. Id. at 14. Jones stated that Father’s telephone
calls “increased leading up to [the] hearing, however, there were gaps in time
when he did not call.” Id. at 17.
Jones further testified that she observed Father’s visits with Child. Id.
at 18. She stated that Child “is a pretty easygoing kid so he didn’t have any
problem engaging in a visitation with his father.” Id. She said the visits were
appropriate “in that there’s no safety concerns,” but that Father was not very
affectionate with Child and made “some empty promises, that he’s going to
call every day or every other day.” Id. at 20. Jones further stated that Father
was cooperative with CYS and she did not have trouble reaching him after she
obtained his current address. Id. at 19.
Jones testified that Child has resided with his foster parents and siblings,
and that the foster parents wish to adopt him. Id. at 36-37. She said Child
was familiar with the foster family’s extended family, and the family has
pictures of Child in the home. Id. at 37. She testified the foster parents
provide Child with a comfortable home environment, he has adequate food
and appropriate clothing, and sees the doctor for well and sick visits. Id.
Foster parents also provide emotional support for Child. Id.
Jones further testified that Child was comfortable with Father and would
play during visits, but she does not believe a parental bond exists between
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Father and Child. Id. at 38. She testified that she observed Child with foster
parents about once per month, and believes there is a parental bond. Id. at
38. She said, “The bond between the foster family and [Child] is a much
stronger bond, a bond of a parent with a child. And the relationship with
[Father] is he’s comfortable with him and he’s like a family friend.” Id. at 38-
39. Jones did not believe Child would suffer any detrimental effect if Father’s
parental rights were terminated. Id. at 39.
Father testified that he did not know CYS was involved with Child until
Child’s mother passed away in July 2017. Id. at 21. He testified the bus trips
to visit with Child were “a little uncomfortable.” Id. at 22. He stated it was not
uncomfortable because of “the trip,” but because he cannot earn money
during the time away from home. Id. He testified that he lived in a one-
bedroom apartment but would move to a two-bedroom apartment if he had
custody of Child. Id. at 23-24.
The trial court granted the petition to terminate Father’s parental rights.
Father filed a timely notice of appeal.
Father raises the following issues:
A. Whether the trial court erred in terminating parental
rights and/or abused its discretion as testimony offered
did not establish by clear and convincing evidence the
requirements of the Adoption Act of 1980, October 15,
P.L. 934, No. 163, 1, [23 Pa.C.S.A.] Section 2511(a)(1),
in that [Father] has not caused the child to be without
essential parental care, control, or subsistence necessary
because he has engaged in court-ordered services that
have remedied the circumstances that originally gave
rise to the child’s placement.
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Father’s Br. at Statement of Questions Presented for Review (unnecessary
capitalization omitted).
Father claims that CYS failed to meet its burden to prove by clear and
convincing evidence that termination was proper under Section 2511(a)(1).
He claims CYS “did nothing to enhance [F]ather’s contact with this child in any
effort to close out this case with custody to [Father].” Father’s Br. at Summary
of Argument. He noted that he lived in New York, and the agency did not
facilitate weekend visits until October 2018. He further claims he has not had
criminal charges since 2009 and that he would make new living arrangements
if Child lived with him.
When reviewing an order terminating parental rights, we accept the
findings of fact and credibility determinations of the trial court if the record
supports them. See In re C.M.C., 140 A.3d 699, 704 (Pa.Super. 2016). If the
factual findings have support in the record, we then determine if the trial court
committed an error of law or abuse of discretion. Id.A party seeking termination of parental rights bears the burden of
establishing grounds for termination by clear and convincing evidence. In re
Z.S.W., 946 A.2d 726, 728 (Pa.Super. 2008). Clear and convincing evidence
is evidence “that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. at 728-729 (internal quotation marks and
citation omitted).
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Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under Section
2511, the trial court must engage in a bifurcated analysis prior to terminating
parental rights:
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.
Id. (citations omitted).
Here, the trial court found termination proper under Sections 2511(a)(1)
and 2511(b). Section 2511(a)(1) requires that the parent’s conduct during the
six months preceding the filing of the termination petition demonstrate either
a settled intent to relinquish parental rights, or a refusal or failure to perform
parental duties. 23 Pa.C.S.A. § 2511(a)(1); In re Adoption of K.C., 199 A.3d
470, 473-74 (Pa.Super. 2018).
Here, the trial court found Jones’ testimony credible, including that
Father visited Child only six times in two years between Child’s placement and
the filing of the petition, that his phone calls were inconsistent, that he did not
contact CYS or the foster parents to check on Child’s well-being, and that he
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did not perform any significant parental duties. Trial Court Opinion, filed Jan.
14, 2020, at 5-7 (“1925(a) Op.”). It noted that Father did not present himself
as a resource for Child when notified of Child’s placement, and there was a
large gap of time when he had not seen Child. Id. at 7. The court further
found Father’s testimony not credible, including his claim that he did not know
Child was in placement until the death of Child’s mother and his claim that he
had seen Child more than ten times in the three-year span. Id.
The record supports the trial court’s factual findings, and the court did
not abuse its discretion in finding termination proper under Section
2511(a)(1). Father has had minimal visits and phone calls with Child, and has
not made an effort to be a part of Child’s life.
Father’s question presented does not claim that the court erred in
concluding, under Section 2511(b), that termination would best meet Child’s
developmental, physical, and emotional needs. He nonetheless makes an
argument in his brief to that effect. He argues that “for [CYS] to assert that
[Child] and [F]ather do not share a bond is absurd.” Father’s Br. at Conclusion.
Father stated that he is not able to visit often, but when he does it is obvious
he cares about Child and engages appropriately. He maintains that his bond
should not be compared to the bond Child shares with foster parents, with
whom Child has lived with since his infant years.
By not including the issue in his Statement of Questions Presented,
Father waived the issue. In any event, the trial court did not err in determining
that Section 2511(b) was satisfied.
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Under Section 2511(b), the court must consider “the developmental,
physical and emotional needs and welfare of the child” to determine if
termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.
§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the
child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This
Court has explained that “[i]ntangibles such as love, comfort, security, and
stability are involved in the inquiry into [the] needs and welfare of the child.”
In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). The trial court “must
also discern the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that bond.” Id.Further, “[c]ommon sense dictates that courts considering termination must
also consider whether the children are in a pre-adoptive home and whether
they have a bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268
(Pa. 2013).
Here, the trial court found termination would best meet Child’s physical,
emotional, and developmental needs. It reasoned that Child has assimilated
into the extended foster family, and that the foster parents meet Child’s
physical needs, provide a comfortable home, and provide for Child’s
developmental and emotional needs. 1925(a) Op. at 9-10. Child had a
parental bond with the foster parents. It further found that Father and Child
did not share a parental bond, and, although Child was comfortable with
Father and Father’s interactions were appropriate, Father appeared to be a
family friend, rather than sharing a parental bond. Id. at 10.
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The record supports the trial court’s factual findings and it did not abuse
its discretion when it found termination proper under Section 2511(b). The
evidence established Child had a bond with foster parents, and that no
parental bond existed between Father and Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/01/2020
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