Adoption of: V.S.W., Appeal of: S.W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: V.S.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.W., FATHER :
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: No. 1445 WDA 2019
Appeal from the Order Entered August 19, 2019
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): 15 of 21-019
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 10, 2020
S.W., (“Father”), appeals from the order entered August 19, 2019,
granting the petition filed by the Westmoreland County Children’s Bureau (the
“Agency”) to terminate his parental rights to minor child, V.S.W. (“Child”),
pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), (11), and
(b). We affirm.
The facts and procedural history of this case are as follows. Child, born
in July 2012, previously resided with C.M., (“Mother”), as Father has been
incarcerated since Child was three-months old. Trial Court Order, 8/19/19, at
4, ¶ 17. “On May 8, 2017, the Agency received a referral concerning the
truancy of [] Child’s brother” which caused Desiree Binda-Marshall, the Agency
caseworker, to attempt to visit Mother’s home the next day. Id. at 4-5, ¶ 17.
Marshall was not permitted to enter the home. Id. On May 23, 2017, Marshall
“made an unannounced visit” and “was able to enter the home with police
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assistance.” Id. at 5, ¶ 17. “The home was in deplorable condition” and, as
such, the Agency requested and assumed emergency custody of Child and her
siblings. Id.
The court adjudicated Child dependent on June 27, 2017. Id. at 5, ¶ 20.
Thereafter, the Agency filed a petition to involuntarily terminate Father’s
parental rights on January 30, 2019, and an amended petition on April 16,
2019. Id. at 1. The trial court held evidentiary hearings on June 20, 20191
and August 1, 2019.2
During the June 20, 2019 hearing, the trial court took judicial notice of
Father’s criminal history, which includes convictions for “simple assault,
burglary, theft, criminal trespass, disorderly conduct, and sexual assault
charges.” Id. at 6, ¶ 22. Most notably, on September 4, 2007, Father pled
guilty to two counts of indecent assault of persons less than 13 years of age
as well as indecent assault of persons less than 16 years of age. Id.
Additionally, on September 14, 2012, Father was convicted of failing to
register as a sexual offender and failure to provide accurate information. Id.
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1At the June 20, 2019 termination hearing, Mother voluntarily relinquished
her parental rights to Child. Trial Court Order, 8/19/19, at 4, ¶ 4.
2 Attorney Judith Cisek represented the Child as her legal interests counsel
and Attorney Dorean Petonic served as guardian ad litem (“GAL”) to represent
Child’s best interests during the June 20, 2019 hearing as well as the August
1, 2019 hearing. See In re Adoption of L.B.M., 161 A.3d 172, 179-180 (Pa.
2017).
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The trial court summarized the relevant testimony presented during the
August 1, 2019 hearing as follows.
[First,] Vijaya Greene of ProjectSTAR [testified. She explained]
that Father sent a few letters to [] Child [which] state[d] generally
that he thinks about [Child] and [asked] what was going on in
[Child’s] life[.] [Greene stated, however, that Father] has not
seen or [spoken] to [] Child or provided financial assistance since
she has been in Agency custody. [As such, Greene explained that]
Child would not know Father if she saw [him] and [that Child] has
no attachment to [Father.]
[Next,] Brenda Healey, a behavior health technician at
ProjectSTAR . . . testified[.] [Healey explained that she] did not
talk to [] Child about [] Father, but [during their conversations,]
Child stated [that] she wanted to remain with her foster parents.
[Healey also stated that, because] Child has had no [tele]phone
contact with Father[, upon his release from incarceration, Father]
would require many services before reunification with [] Child
could be achieved, and this process could take [at least] a year.
Desiree Binda-Marshall, the [Agency’s] caseworker [also] testified
at the termination hearing[.] [Marshall initially explained how the
Agency came into contact with Child] and that [] Child has [now]
been in the Agency’s custody for 25 months. [Marshall explained
that] Child is [currently] thriving with her foster family [and that
since Child has been in their care,] [h]er speech and school
performance h[as] improved. [Marshall testified that Child] views
her foster parents and siblings as her family [and refers] to her
foster mother as “Mommy.” [With regard to Father, Marshall
testified that, while he did send letters to Child, he failed to
complete any of the services provided to him in prison. Lastly,
Marshall opined that terminating Father’s parental rights would
best serve Child’s interest because Child does not know Father
and termination would enable Child to be adopted by her foster
parents.]
[Finally,] Father testified at the termination proceeding[.] He
object[ed] to the termination of his parental rights. [Father
explained that he] attempted to stay in touch with his children by
sending them letters and art projects. [Father also stated that
he] requested visits, which never came to fruition. [As for his
criminal convictions, Father explained that he] has filed [six] or
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[seven] appeals [regarding] his . . . sex offender [convictions], all
of which [he] denie[s], [and stated that] he believes that someday
he will ultimately be exonerated. [Lastly, Father stated] that he
anticipate[d] being released from incarceration in 2022.
Trial Court Order, 8/19/19, at 12-13.
On August 19, 2019, the trial court entered an order granting the
petition seeking to involuntarily terminate Father’s parental rights to the Child
pursuant to sections 2511(a)(2), (5), (8), (11), and (b).3 This timely appeal
followed.4
Father raises the following issue on appeal:5
[Whether the trial court erred by terminating his parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), (11), and (b)?]
See generally Father’s Brief at 4.
We review orders terminating parental rights according to the following
standards.
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3 In its order, the trial court also stated that Child “may be adopted without
further consent of, or notice to, [Father.]” Trial Court Order, 8/19/19, at
15-16.
4Father filed a notice of appeal together with a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on September 12, 2019. The trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 30, 2019,
expressly relying on its August 19, 2019 order.
5 Father raises three separate issues in his statement of questions involved.
See Father’s Brief at 4. In the argument section of his brief, however, Father
develops only one issue, which he did not include in his statement of
questions. See id. at 7. Thus, Father’s brief violates the Pennsylvania Rules
of Appellate Procedure. See Pa.R.A.P. 2116. Nonetheless, as Father’s
appellate brief can be read as an overall challenge to the termination of his
parental rights, our review is not hampered and we decline to find waiver.
See Savoy v. Savoy, 641 A.2d 596, 598 (Pa. Super. 1994).
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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) (internal citations and quotations
omitted).
Termination 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). This
Court may affirm the trial court’s decision regarding the termination of
parental rights under any single subsection of section 2511(a). See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We conclude that
termination was proper under section 2511(a)(2).
The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
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(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.
***
(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.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted). The
grounds for termination are not limited to affirmative misconduct, but concern
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
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1117 (Pa. Super. 2010). “[A] parent’s incarceration is relevant to [a]
[S]ection [2511](a)(2) analysis, and depending on the circumstances of the
case, it may be dispositive of a parent’s ability to provide the ‘essential
parental care, control, or subsistence’ that the section contemplates.” In re
A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation omitted).
Herein, Marshall’s testimony at the August 1, 2019 hearing provided
clear and convincing evidence which supports the termination of Father’s
parental rights pursuant to Section 2511(a)(2). Specifically, we note the
following exchange:
[Agency counsel]: The Agency filed the [termination] [p]etition
under a number of grounds, the first being [Section] 2511(a)(2)
of the Adoption Act. Has father demonstrated repeated
incapacity, abuse, neglect or refusal?
[Marshall]: Yes.
[Agency counsel]: How has he done that?
[Marshall]: He has been incarcerated this entire time, plus he
[has] [] not completed any services in the prison.
[Agency counsel]: Has this incapacity, abuse, neglect, or refusal
caused [Child] to be without essential parental care, control, or
subsistence necessary for her wellbeing?
[Marshall]: Yes.
[Agency counsel]: How did [Father’s] behavior cause [Child] to
be without parental care or control?
[Marshall]: He was incarcerated at the time that we removed
[Child] from [M]other’s home.
[Agency counsel]: And [Father] remains incarcerated to this
day?
[Marshall]: Yes.
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N.T. Permanency Hearing, 8/1/19, at 37-38. Marshall’s testimony
demonstrated that Father, due to his continuous incarceration and
unwillingness to participate in any services provided to him in prison, cannot
provide the parental care, control or subsistence necessary. Father’s
testimony established that he would not be released from prison until 2022.
Trial Court Order, 8/19/19, at 13. Further, Healey, the behavior health
technician at ProjectSTAR, testified that, if Father were released from prison,
he would require multiple services before reunification, which could take at
least one year. Id. at 12. We therefore discern no abuse of discretion in
terminating Father’s parental rights pursuant to Section 2511(a)(2).
Next, we must consider whether Child’s needs and welfare will be met
by termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In
this context, the court must take into account whether a bond exists between
child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. The court is not required to use
expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.We have stated:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
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welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121, quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Additionally, the court may emphasize the safety
needs of a child. See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
Where there is no evidence of a bond between the parent and child, it is
reasonable to infer that no bond exists. Id. “[A] parent’s basic constitutional
right to the custody and rearing of . . . [his] child is converted, upon the failure
to fulfill . . . [his] parental duties, to the child’s right to have proper parenting
and fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal
citations omitted).
Here, all relevant testimony presented at the August 1, 2019 hearing
proved that there is no bond between Child and Father. Indeed, it is
undisputed that Child does not know Father’s name and would not recognize
Father if she saw him. See Trial Court Order, 8/19/19, at 12. Testimony also
established that Child is thriving in her foster placement with foster parents
who provide for her emotional, physical, and developmental well-being and
that Child wishes to be adopted by them. Thus, we discern no abuse of
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discretion in the trial court’s conclusion that Child’s needs and welfare are best
served by termination of Father’s parental rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2020
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