In Re: K.F.-O., Appeal of: J.S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.F.-O., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S., FATHER :
:
:
:
:
: No. 609 MDA 2020
Appeal from the Decree Entered March 3, 2020,
in the Court of Common Pleas of Lycoming County,
Orphans' Court at No(s): 6673.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 23, 2020
J.S. (Father) appeals the orphans’ court decree terminating his parental
rights to 21-month-old son, J.S. (Child), pursuant to the Adoption Act. See
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).1 After review, we affirm.
We glean the relevant factual and procedural history from the Pa.R.A.P.
1925(a) trial court opinion:
[Child] was born [in April 2018]. […] Father was
incarcerated prior to [Child’s] birth and has remained
incarcerated for [Child’s] entire life.
The [Lycoming County Children and Youth Services Agency
(Agency)] was involved with Mother prior to and after
[Child’s] birth, due to Mother’s instability with regard to
housing, employment, income, and Mother’s failure to
obtain and follow through with appropriate medical care for
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 C.F.-O. (Mother) consented to the termination of her rights.
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[Child], who was born nearly two months premature. In
July of 2018, Mother and Father signed a private custody
stipulation with [two women who wished to adopt Child],
which was vacated by [the trial court] on October 17, 2018.
At that time, the Agency requested emergency custody of
[Child], which was orally granted by [the trial court]. A
shelter care hearing was held on October 18, 2018, at which
time legal and physical custody of [Child] was transferred to
the Agency and [Child] was placed in foster care.
A dependency petition was filed on October 19, 2018,
alleging that [Child] was without proper parental care or
control necessary for his physical, mental, and emotional
health. Hearings were held on October 26, 2018 and
November 27, 2018, after which the [trial court] found that
clear and convincing evidence existed to substantiate the
allegations set forth in the petition. As [the trial court]
found that allowing [Child] to remain in Mother’s home
would be contrary to his welfare and Father’s incarceration
precluded him from being a resource, legal and physical
custody of [Child] was to remain with the Agency and [Child]
was to remain in foster care. The Agency was ordered to
continue in family finding until further order of court.
A permanency review hearing was held on February 5,
2019. The [trial court] noted that Father had not complied
with the permanency plan in that he remained incarcerated
at the Lycoming County Prison in lieu of bail pending trial on
an aggravated assault charge. At the time of the review
hearing, he was in disciplinary lock-up for, among other
reasons, engaging in assaultive behavior. During the review
period, he wrote one letter to the Agency caseworker and
had prepared two letters and one drawing for [Child]. Due
to his continuous incarceration, Father had made no
progress towards alleviating the circumstances which
necessitated [Child’s] placement. Following the hearing, the
[trial court] reaffirmed dependency and [Child] remained in
the legal and physical custody of the Agency with continued
placement in his foster care home.
A permanency review hearing was held on May 21, 2019.
The [trial court] found that there had been no compliance
by Father with the permanency plan, and no progress
towards alleviating the circumstances which necessitated
placement, as he remained incarcerated at the Lycoming
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County Prison for the entire review period. Father reported
that he had not become involved in any programs at the
prison for mental health and/or domestic violence. The
[trial court] noted that during this review period Father sent
one letter to the caseworker and one letter to [Child].
A permanency review hearing was held on August 29, 2019.
Again, the [trial court] found that there had been no
compliance by Father with the permanency plan, and no
progress towards alleviating the circumstances which
necessitated placement, as he remained incarcerated at the
Lycoming County Prison for the entire review period. Father
had not reported becoming involved in any programs at the
prison for mental health and domestic violence. The [trial
court] found that during this review period, Father had sent
letters and drawings to both the Agency and [Child]. On
May 28, 2019, Father was sentenced to state incarceration
for a period of three to seven years. It was anticipated that
with credit for time served, he would be eligible for parole
in approximately 17 months from the date of the review
hearing.
The [trial court] noted that Father felt very strongly that
[Child] should be with a member of his family. He had
requested the Agency investigate multiple people as
potential resources for [Child]; however, at the time of the
review hearing none of the named individuals had provided
necessary information or completed the process to be
considered as resources for [Child]. At the permanency
review hearing Father named additional family members as
potential resources and the Agency was to investigate
whether these newly named individuals were appropriate
resources for [Child].
On November 18, 2019, the Agency filed a petition for
change of goal to adoption simultaneously with the filing of
the petition or involuntary termination of parental rights.
[…].
Both a permanency review hearing and a pre-trial hearing
on the petition […] were held on December 3, 2019.
Following the permanency review hearing, the [trial court]
found that Father had been incarcerated at SCI Coal
Township throughout the review period and was minimally
compliant with the permanency plan and in alleviating the
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circumstances which necessitated [Child’s] placement.
Father reported that he was now involved in programs at
the prison for substance abuse, mental health, and domestic
violence. During the review period, Father sent letters to
the Agency and [Child] and made attempts to speak with
[Child]. Father’s aunt was participating in a home study to
be approved as a resource parent for [Child]. The [trial
court] directed the Agency to complete the home study for
Father’s aunt.
The hearing on the petition for involuntary termination of
parental rights was scheduled for February 10 [] and
February 11, 2020. […] Mother signed a consent to adopt
on February 10, 2020, and on that date conceded on the
record that the evidence the Agency would have presented
at the hearing would have proven by clear and convincing
evidence that Mother’s rights should be involuntarily
terminated […]. Father was present for the hearing and
testimony was concluded on February 10, 2020.
Trial Court Opinion (T.C.O.), 3/2/20, at 2-5 (citations to the record and
superfluous capitalization omitted).
On March 3, 2020, the court entered its decree terminating Father’s
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). Father
timely filed this appeal and presents the following four issues for our review:
1. Whether the trial court erred in determining that clear
and convincing evidence existed to show that
[Father’s] rights should be terminated under 23
Pa.C.S.A. § 2511(a)(1) in that Father was unable to
perform most parental duties due to his incarceration
and he utilized all available resources while
incarcerated?
2. Whether the trial court erred in determining that clear
and convincing evidence existed to show that
[Father’s] rights should be terminated under 23
Pa.C.S.A. § 2511(a)(2) in that Father’s incapacity to
perform parental duties is temporary and can be cured
within a reasonable time?
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3. Whether the trial court erred in determining that clear
and convincing evidence existed to show that
[Father’s] rights should be terminated under 23
Pa.C.S.A. § 2511(a)(5) and (a)(8) in that Child was
never removed from Father’s care?
4. Whether the trial court erred in determining that clear
and convincing evidence existed to show that
[Father’s] rights should be terminated under 23
Pa.C.S.A. § 2511(b), in that the developmental,
physical, and emotional needs and welfare of Child are
not served by terminating Father’s parental rights?
Father’s Brief at 4.
We review these claims mindful of our well-settled standard or review:
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 quotations marks
omitted).
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
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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).
We have defined clear and convincing evidence as that which is so
“clear, direct, weighty and convincing as to enable the trier of fact to come to
a clear conviction, without hesitance, of the truth of the precise facts in
issue.” In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation
and quotation marks omitted).
In this case, the court terminated Father’s parental rights pursuant to
Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the court
as to any one subsection of 2511(a), as well as Section (b), in order to affirm.
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we
analyze the trial court’s decision to terminate pursuant to Section 2511(a)(2)
and (b), which Father challenges in issues two and four on appeal. Those
sections provide as follows:
(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 notice of the filing
of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b)
We begin with the first prong of the termination analysis under Section
2511(a).
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,
abuse, neglect or refusal cannot or will not be remedied.
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.
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In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (citations,
internal quotation marks, and indentation omitted).
Father acknowledges his incarceration rendered him incapable of
parenting, and that such incapacity has caused Child to be without essential
care, control, or subsistence necessary for his physical or mental well-being.
In other words, Father essentially concedes that the Agency proved the first
two elements of the Section 2511(a)(2) analysis. The crux of Father’s appeal
is the third element. He argues his incapacity can be remedied in a reasonable
time, because his release from incarceration could be imminent. See Father’s
Brief at 11-14.
As Father rightly observes, our Supreme Court has contemplated this
element in relation to incarcerated parents:
[I]ncarceration, while not a litmus test for termination, can
be determinative of the question of whether a parent is
incapable of providing “essential parental care, control or
subsistence” and the length of the remaining confinement
can be considered as highly relevant to whether “the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,”
sufficient to provide grounds for termination pursuant to 23
Pa.C.S.A. § 2511(a)(2).
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012).
Instantly, Father was incarcerated for a term of three to seven years for
aggravated assault. With credit for time served, his earliest possible parole
date is January 2021. See Father’s Brief at 14. Though the length of Father’s
remaining confinement is “highly relevant,” it does not end our inquiry. Just
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because a parent is due to be released from prison does not necessarily mean
the parent is in an immediate position to resume his parenting duties – i.e.,
to actually remedy his incapacity.
Here, the Agency posits Father would need to demonstrate stable
housing, employment, and visitation for approximately six months after his
release before reunification could be achieved. Although we are cautious not
to suggest such a timeframe could or should be tacked on to every
incarceration case, it must be acknowledged that those “conditions and
causes” which underpin a dependency case do not vanish merely because a
parent is paroled. This is especially true in the instant matter, as Father’s
incarceration began prior to Child’s birth, and he has never parented the Child.
His occasional letter-writing is heartening, and perhaps very relevant in a case
with an older child who had been previously raised by the parent; but this
Child is only a toddler who has never known Father and who has been with
his pre-adoptive foster parents for the vast majority of his young life.
Moreover, the only proactive, substantial effort Father undertook to
remedy his incapacity was to take parenting classes while in prison. But
Father was barred from partaking in these programs until the 11th hour of the
dependency case, because of his behavior while incarcerated landed him in
disciplinary lock-up. As the trial court noted, “Father’s infractions – which
ranged from possessing contraband to physical altercations to general
disrespect towards staff members and disruption of prison routine – caused
him to be in a situation where he was ineligible to participate in mandatory
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and optional programs that would have greatly benefitted his journey towards
reunification.” T.C.O. at 12-13. The trial court operated within its discretion
when it determined incapacity would continue to persist, even if only
temporarily, upon Father’s hypothetical release.
Father’s infractions during incarceration raise another concern. While we
are careful not to speculate, we question the likelihood that Father would even
be paroled at the earliest possible date, given his disciplinary issues at the
prison. It suffices to say that a January 2021 release is by no means
guaranteed. Meanwhile, Father’s maximum incarceration date is
approximately January 2025.
Therefore, Father’s imminent release date is only theoretical, and even
if he was released in the coming months, the Agency provided sufficient
evidence to demonstrate Father’s incapacity to parent would persist
thereafter. We conclude the trial court was within its discretion to determine
that the Agency met the third and final element of the Section 2511(a)(2)
analysis. Father’s second issue is without merit. Since we only need to affirm
one section (a) subsection, we need not address either Father’s first or third
appellate issues (pertaining to Section 2511(a)(1), (5) and (8)).2
____________________________________________
2Although we analyze the first prong of the termination analysis under Section
2511(a)(2), it bears mentioning that incarceration has been contemplated in
relation to Section 2511(a)(1) as well. We have said:
A parent's absence and/or failure to support due to incarceration is not
conclusive on the issue of abandonment. Nevertheless, we are not
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Having concluded the trial court did not abuse its discretion regarding
the first prong of the termination analysis under Section 2511(a), we turn to
Father’s fourth appellate issue to decide whether the court erred in its
application of the second prong of the analysis under Section 2511(b). This
section addresses the needs and welfare of the child under the standard of
the best interests of the child. See In re C.M.K., 203 A.3d 258, 261 (Pa.
Super. 2019) (citation omitted). Specifically, Section 2511(b) provides:
(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.
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willing to completely toll a parent's responsibilities during his or her
incarceration. Rather, we must inquire whether the parent has utilized
those resources at his or her command while in prison in continuing a
close relationship with the child. Where the parent does not exercise
reasonable firmness “in declining to yield to obstacles,” his other rights
may be forfeited.
In re Adoption of A.C., 162 a.3d 1123, 1130 (Pa. Super. 2017) (citation
omitted).
As we mentioned above, Father’s misconduct while incarcerated prevented
him from utilizing all available resources to aid reunification. In other words,
Father’s incarceration is suggestive that termination was also warranted
under Section 2511(a)(1), as opposed to the contrary.
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23 Pa.C.S.A. §2511(b).
Intangibles such as love, comfort, security, and stability are involved in
the inquiry into the needs and welfare of the child. In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011) (citation omitted). 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. C.M.K., 203 A.3d at 262 (citation
omitted). When conducting a bonding analysis, the court is not required to
use expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010)
(citations omitted). In cases where there is no evidence of any bond between
the parent and child, it is reasonable to infer that no bond exists. In re K.Z.S.,
946 A.2d 753, 763 (Pa. Super. 2008) (citation omitted).
Instantly, Father concedes his incarceration has prevented him from
establishing a bond with Child. See Father’s Brief at 17. His argument is that
Child’s young age is conducive to forming a bond when he is released, and
that we should consider Child’s long future and the role Father could play in
it. Id. Although Father expresses a desire to be a positive role model for
Child, “[a] parent’s own feelings of love and affection for a child, alone, do not
prevent termination of parental rights.” Z.P., 994 A.2d at 1121. Instead, the
primary focus is on the child’s need and welfare. In re L.M., 923 A.2d at 511.
At the time of the termination hearing, Child was approximately 21
months old. Child has been in his pre-adoptive foster home since he was 5
months old. And he has never been in Father’s care. Thus, it is no surprise
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that Child views his foster parents as his mother and father. Not only have
the foster parents provided for Child’s needs and welfare, they also provide
Child necessary stability and security for his continued development. We
conclude the court did not abuse its discretion when it determined that
termination would best serve Child’s interests. Father’s fourth issue is without
merit.
In sum, we conclude that the trial court did not err or otherwise abuse
its discretion when it determined the Agency met both prongs of the
termination analysis under Section 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2020
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