Adoption of: Z.A.L.H., Appeal of: D.H. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: Z.A.L.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: D.H., NATURAL FATHER :
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: No. 1779 WDA 2019
Appeal from the Order Entered October 31, 2019
In the Court of Common Pleas of Fayette County Orphans’ Court at
No(s): 48 Adopt 2018
IN RE: ADOPTION OF: D.W.H., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.H., NATURAL FATHER :
:
:
:
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: No. 1780 WDA 2019
Appeal from the Order Entered October 31, 2019
In the Court of Common Pleas of Fayette County Orphans’ Court at
No(s): 49 Adopt 2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 01, 2020
D.H. (“Father”) appeals from the order terminating his parental rights
to his two children, Z.A.L.H. and D.W.H., Jr. Father argues that the Fayette
County Children and Youth Services (“CYS”) did not carry its burden of proving
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* Retired Senior Judge assigned to the Superior Court.
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a basis for terminating his parental rights by clear and convincing evidence.
We affirm.
The trial court aptly summarized the factual and procedural history of
this case as follows:
At the time of dependency, Mother was using drugs and “on
the run.” Father was incarcerated. Prior to the time of
dependency, Fayette County Children and Youth Services
(hereinafter referred to as the Agency) provided services.
On May 26, 2016, ten months prior to dependency, the
Agency found there was inadequate food in the home,
parental substance abuse, domestic violence and lack of
supervision. The children were always sick and covered in a
rash. They were left in soiled diapers and [Z.A.L.H.] had
scratches and bruises. The home had no stove or
refrigerator. Mother on that date tested positive for
marijuana and suboxone.
On May 27, 2016, a safety plan was approved by the
[c]ourt. Mother and children were to reside with a friend and
services placed in the home to work with the family. Mother
failed to comply and made continuous threats against the
caseworker. On June 28, 2016, police intervened in a
disturbance with Mother involving an unknown woman who
threatened to shoot Mother, all occurring in the children’s
presence. On July 5, 2016, Mother was discharged by the
home services provider.
By February of 2017, the children were living with a
maternal aunt, Michelle Berish. Ms. Berish took good care of
them and wished to continue with placement. By Order
dated March 2, 2017, this [c]ourt entered an Emergency
Order placing the children in shelter care with custody to the
Agency. By Order of March 10, 2017, the children were
adjudicated dependent and placed with Michelle Berish.
Mother was not visiting. The parents did not appear at the
September 14, 2017 permanency review. At the December
14, 2017 permanency review, Mother had made no progress
and Father had no contact. The first time either parent
appeared in Court was for a review of March 14, 2018.
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Mother had made no progress and was not visiting. Father
was incarcerated. In June of 2018, parents did not appear.
Michelle Berish had moved to Texas and the children were
on respite with other relatives. By September of 2018,
Mother appeared in Court, had no work done on the family
service plan, was not visiting and was homeless. Father was
in and out of prison. The children were placed with a
maternal relative by marriage, Courtney Albrecht. By
December 13, 2019, ICDC did not approve Berish. The
children were thriving with Courtney Albrecht and she
remains open and eager to adopt them. In June of 2019,
the children were prospering with Courtney Albrecht, Mother
was in an abusive relationship and ingesting cocaine and K-
2 and had no mental health treatment.
Trial Ct. Op., filed 1/22/20 at 1-3.
CYS filed a petition to terminate Father’s parental rights as to each child,
citing subsections 2511(a)(1), (2), (5), and (8) of the Adoption Act. See 23
Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). The petitions listed Father’s alleged
failures to comply with the service plan. He allegedly failed to:
- Maintain contact and visit with the [children] to maintain
a bond;
- Maintain sobriety by successfully completing a drug and
alcohol assessment with a provider of his choice
approved by CYS;
- Submit to random drug screens, following all
recommendations of the [Drug and Alcohol] provider,
openly and honestly communicating with the provider,
and successfully completing treatment;
- Cooperate with the Agency by signing releases, meeting
with the caseworker monthly and cooperating with
service providers;
- Increase parenting skills by having as assessment if
needed, by successfully completing parenting classes
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and by demonstrating parenting skills in supervised and
unsupervised visitation settings.
At a hearing, Brittany King, a caseworker for CYS, testified that she had
been involved with the minor children since February 2019. N.T., Involuntary
Termination of Parental Rights Proceedings, 10/31/19, at 4. She testified that
Mother and Father did not complete their parenting classes because “they
were never sober to complete the parenting classes.” Id. at 6. She said that
according to the foster mother, Courtney Albrecht, “mom and dad haven’t
seen the children since last December [2018] at a birthday party for the
children.” Id. at 14. Albrecht lives approximately an hour from the parents
and has “an open door policy for the parents in terms of visitation with her[.]”
Id. However, King said that “[t]here was no attempt to make any visits
scheduled by mom or dad.” Id. King further testified that at no point did
Father complain about issues with transportation to visit the children. Id. at
15. King stated that although Albrecht was open to Father and Mother calling
or having FaceTime with the children, they would call “about one to two times
a month” until June 2019, but after that they called “hardly at all.” Id.
King further testified that the children “love it [at Albrecht’s home]” and
had bonded with her. Id. at 16. She explained that if the court granted
termination, “[Albrecht] would adopt [the children.]” Id. King acknowledged
that she had not observed a visit between the children and parents but
testified about behavioral issues that would arise with the children after they
saw the parents at court hearings:
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Q [attorney for children]: Have you observed a visit between
the parents and these children?
A: [King]: Never.
Q: Has [Albrecht] ever called to tell the agency that the
children were having adverse reactions to not seeing their
parents?
A: No. The only time that they would have reactions like
that is after seeing them as court hearings at the three
month reviews.
Q: And what kind of reaction would they have?
A: [D.W.H., Jr.] would be acting out in daycare hitting other
children, throwing chairs. [Z.A.L.H.] would be very upset, a
little moody.
Id.
Father testified and agreed that when the children were adjudicated
dependent, he was incarcerated. Id. at 26-27. Father testified that he was
incarcerated from January to March 2018, and then returned to prison from
August 2018 until October 2018 and from November 2018 to February 2019.
Id. at 27, 28. Father also said that the last time he had seen his children was
in March 2019, for 30 minutes while he was on break at work. Id. at 28, 42.
Father said his counseling ended because he went to jail and agreed that at
the time of the hearing he had not completed the drug and alcohol program
and the mental health program that were terms of his service plan. Id. at 37,
38. He maintained that he only attended two of his drug and alcohol
appointments because “I’ve been working crazy so I can’t make it to them,”
and “my job is more of a priority than anything.” Id. at 40, 41. Father also
agreed that at the time of the hearing, he had not seen his children in “[a]
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little less than 10 months.” Id. at 44. Father also admitted that in the
preceding two and a half years, he had had seen his children approximately
15 times. Id. at 45.
The trial court found “that the facts averred in the said petitions are true
and correct,” and granted the petitions seeking to terminate Father’s parental
rights. Id. at 47. This timely appeal followed.
Father raises one issue before this Court:
Did the Trial Court err by abusing its discretion in
terminating the natural parent’s rights as petitioner failed to
sustain its burden of proof by clear and convincing evidence
to show that the parent evidenced a settled purpose of
relinquishing a settled claim to the child or refused to
perform parental duties?
Father’s Br. at 7.
Father alleges that CYS failed to meet its burden of proof by clear and
convincing evidence that he relinquished his parental duties. Specifically, he
argues that “[n]one of the facts referenced herein indicate that [Father] has
evidenced a settled purpose of relinquishing parental claim to his children or
has refused or failed to perform parental duties.” Id. at 12. He also maintains
that he has not “shown a repeated and continued incapacity, abuse, neglect
or refusal causing the children to be without essential parental care, control
or subsistence necessary for their physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or refusal.” Id.
On appeal from a trial court’s order terminating parental rights, “we
must accept the findings of fact and credibility determinations of the trial court
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if the record supports them.” In re Q.R.D., 214 A.3d 233, 239 (Pa.Super.
2019). “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.
(citation omitted). “Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s decision, the decree must
stand.” Id. (citation omitted).
A party seeking to terminate parental rights bears the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018). Clear and convincing
evidence means 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. (quoting In re Z.S.W., 946 A.2d
726, 728-29 (Pa.Super. 2008)).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act, 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.
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In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
Where the trial court has terminated parental rights pursuant to multiple
subsections of Section 2511(a), we need only agree with the trial court’s
decision as to one subsection, as well as to its analysis under Section 2511(b).
In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we will
address only the court’s decision to terminate pursuant to subsection
2511(a)(1). That subsection provides that a court may terminate a parent’s
rights to a child if:
[t]he parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
23 Pa.C.S.A. § 2511(a)(1). When considering termination under subsection
(a)(1), “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(b).
Here, the trial court concluded that CYS had established by clear and
convincing evidence that termination of Father’s rights was warranted and was
in the best interests of the children. The court pointed out that Father had
failed to comply with any of the terms of the family service plan, and concluded
that because Father had failed to have a bond with the children, reunification
would harm them.
Due to the Father’s lack of visitation and failure to complete
any of the terms of the family service plan, at this point it
would be harmful to the children to be reunified with him.
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Father has not taken an active role in their lives for almost
three years and has a pattern of returning to prison. The
Court termination parental rights for the best interest and
welfare of the children. The children are happy and safe with
a pre-adoptive mother who has cared for them and loved
them as her own children. This Court will not disturb their
happiness and comfort and firmly believes the appeal should
be denied.
Trial Ct. Op. at 8-9.
CYS carried its burden of proof. Regarding subsection 2511(a)(1),
according to Father’s own testimony, he had not seen his children for the
approximately 10 months preceding the termination hearing, and during the
previous two and a half years, he had only seen them some 15 times, i.e., on
average, once every-other month. The record is bereft of any suggestion that
during the six months leading up to the termination petition (and indeed, for
several years), Father made any effort to discharge his parental duties.
The evidence also supports termination under Section 2511(b).
According to King, the children exhibited negative behavior after seeing the
parents in court and the children have bonded with Albrecht and love being at
her home. Furthermore, Albrecht is willing to adopt the children. As the trial
court concluded, “the children are happy and safe with a pre-adoptive mother
who has cared for them and loved them as her own children.” Trial Ct. Op. at
9. We cannot say that the trial court committed an error of law or abuse of
discretion in granting CYS’s petition to terminate Father’s parental rights.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2020
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