In Re: Inv. Term of: J.I.A., a Minor ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: INVOLUNTARY TERMINATION : IN THE SUPERIOR COURT OF
OF PARENTAL RIGHTS: J.I.A, A : PENNSYLVANIA
MINOR :
:
:
APPEAL OF: U.S.A., JR., FATHER :
:
:
: No. 182 MDA 2023
Appeal from the Decree Entered January 9, 2023
In the Court of Common Pleas of Lebanon County Orphans' Court at
No(s): 2022-01046
IN RE: INVOLUNTARY TERMINATION : IN THE SUPERIOR COURT OF
OF: U.T.A., A MINOR : PENNSYLVANIA
:
:
APPEAL OF: U.S.A., JR., FATHER :
:
:
:
: No. 183 MDA 2023
Appeal from the Order Entered January 9, 2023
In the Court of Common Pleas of Lebanon County Orphans' Court at
No(s): 2022-01047
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 9, 2023
U.S.A., Jr. (“Father”) appeals the January 9, 2023 decrees that
involuntarily terminated his parental rights to his biological sons, J.I.A., born
in June 2009, and U.T.A., born in March 2011. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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We glean the factual and procedural history of this matter from the
certified record, which the orphans’ court has aptly summarized, as follows:1
C.LS. (“Mother”) is the natural mother of J.I.A., U.T.A., and
D.M.M. Father is the biological father of U.T.A. and J.I.A., while
[t]he father of D.M.M. is unknown . . . .
[Lebanon County Children and Youth Services (“CYS” or “the
agency”)] first became involved with the family on August 16,
2020, due to Mother’s substance use and mental health behavior
issues. . . . [In connection with these allegations], Mother signed
over guardianship of J.I.A. and U.T.A. to S.M., a family friend. The
agency opened a case for all of the children in November 2020.
At that time, Father was [living apart from the family in New York
and] Mother’s whereabouts were unknown . . . .
[In January 2021,] concerns arose about [S.M.’s] suspected drug
use, home conditions, and that [she] refused to drug test when
requested. The agency requested emergency custody of U.T.A.
on January 26, 2021[, which was granted the same day.] U.T.A.
was adjudicated dependent on February 8, 2021. [At this time,
Father’s whereabouts were unknown to the agency, although he
was suspected to be in New York with Mother.]
Thereafter, during the summer of 2021, the agency received
reports that J.I.A. was back in Pennsylvania at the maternal
grandmother’s home; however, the agency could not confirm
these reports. Father and Mother alleged that J.I.A. was in New
York with a relative. The relative, however, denied having J.I.A[.]
The agency located J.I.A. at his football game on September 17,
2021. The same day, the agency was awarded emergency
custody of J.I.A. He was placed into a kinship foster home with
his football coaches[.] On November 29, 2021, J.I.A. was
adjudicated dependent[.]
Orphans’ Court Opinion, 3/3/23, at 4-5 (cleaned up).
____________________________________________
1 On January 9, 2023, the orphans’ court also terminated Mother’s parental
rights to, inter alia, J.I.A. and U.T.A. She has appealed those determinations
at 222 and 223 MDA 2023, which we have addressed in a separate writing.
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The orphans’ court initially established a permanency goal of
reunification with respect to U.T.A. and J.I.A. Father was assigned numerous
objectives including, inter alia, obtaining suitable housing, finding stable
employment, submitting to regular drug tests, obtaining a drug and alcohol
assessment, and participating in visits with U.T.A. and J.I.A. See N.T.,
1/9/23, at 21-22; see also CYS Exhibit 3 (permanency plan for J.I.A.), CYS
Exhibit 4 (permanency plan for U.T.A.), CYS Exhibit 5 (permanency plan for
D.M.M.). Father was most recently incarcerated in approximately April 2022.
In August 2022, he received a sentence of eighteen months to seven years of
imprisonment. See N.T., 1/9/23, at 21, 24, 34, 63-65.
On December 20, 2022, the agency filed petitions seeking to, inter alia,
involuntarily terminate Father’s parental rights.2 On January 9, 2023, the
court held a termination hearing, at which point U.T.A. had been in placement
for approximately twenty-four months while J.I.A. had been in placement for
approximately sixteen months. At the hearing, the agency adduced testimony
from CYS foster care supervisor Angelica Farrisi. Father testified on his own
behalf. The same day as the hearing, the orphans’ court entered decrees
____________________________________________
2 On December 20, 2022, the orphans’ court appointed a guardian ad litem
and separate legal counsel to represent, respectively, the best interests and
the legal interests of, inter alia, U.T.A. and J.I.A. See 23 Pa.C.S. § 2313(a).
Legal counsel has filed a brief in this Court advocating that the orphans’ court’s
termination decrees be affirmed.
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involuntarily terminating Father’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8), and (b).
On February 1, 2023, Father filed separate, timely notices of appeal
along with concise statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(1)(i) and (b). On appeal, this Court sua sponte
consolidated the above-captioned cases pursuant to Pa.R.A.P. 513.
Father has raised two claims for our consideration:
A. Whether the [orphans’] court committed an error of law
and/or abused its discretion by terminating the parental rights of
[Father]?
B. Whether the [orphans’] court committed an error of law
and/or abused its discretion in finding the termination of parental
rights [was proper pursuant to] 23 Pa.C.S. § 2511(a)(1), (2), (5),
and (8) as to J.I.A. and U.T.A.?
Father’s brief at 4.
Our standard of review in this context is well-settled:
In cases concerning the involuntary termination of parental rights,
appellate review is limited to a determination of whether the
decree of the termination court is supported by competent
evidence. When applying this standard, the appellate court must
accept the orphans’ court’s findings of fact and credibility
determinations if they are supported by the record. Where the
orphans’ court’s factual findings are supported by the evidence,
an appellate court may not disturb the orphans’ court’s ruling
unless it has discerned an error of law or abuse of discretion.
An abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion or the
facts could support an opposite result. Instead, an appellate court
may reverse for an abuse of discretion only upon demonstration
of manifest unreasonableness, partiality, prejudice, bias, or ill-
will. This standard of review reflects the deference we pay to trial
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courts, who often observe the parties first-hand across multiple
hearings.
In considering a petition to terminate parental rights, the orphans’
court must balance the parent’s fundamental right to make
decisions concerning the care, custody, and control of his or her
child with the child’s essential needs for a parent’s care,
protection, and support. Termination of parental rights has
significant and permanent consequences for both the parent and
child. As such, the law of this Commonwealth requires the moving
party to establish the statutory grounds by clear and convincing
evidence, which is evidence that is so clear, direct, weighty, and
convincing as to enable a trier of fact to come to a clear conviction,
without hesitance, of the truth of the precise facts in issue.
Interest of M.E., 283 A.3d 820, 829-30 (Pa. Super. 2022) (cleaned up).
The involuntary termination of parental rights is governed by 23
Pa.C.S. § 2511 of the Adoption Act, which necessitates a bifurcated analysis
that first focuses upon the “eleven enumerated grounds” of parental conduct
that may warrant termination pursuant to § 2511(a)(1)-(11). Id. at 830. If
the orphans’ court determines that a petitioner has established grounds for
termination under at least one of these subsections by “clear and convincing
evidence,” the court then assesses the petition under 23 Pa.C.S. § 2511(b),
which focuses upon the child’s developmental, physical and emotional needs
and welfare. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). This Court “need
only agree with any one subsection of § 2511(a), in addition to § 2511(b), in
order to affirm the termination of parental rights.” T.S.M., supra at 267.
In the instant case, the orphans’ court found that termination was
appropriate pursuant to § 2511(a)(1), (2), (5), and (8). However, we need
only agree with one such subsection, in addition to § 2511(b), in order to
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affirm involuntary termination. Thus, our analysis in this proceeding
implicates § 2511(a)(2) and (b), which provides 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:
...
(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. § 2511(a)(2), (b).
Pursuant to section 2511(a)(2), the party petitioning for termination of
parental rights must establish: (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. See In re Adoption of A.H., 247 A.3d 439, 443 (Pa.Super.
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2021) (citing 23 Pa.C.S.A. § 2511(a)(2)). Grounds sufficient for termination
under section 2511(a)(2) are not limited to affirmative misconduct but may
also concern parental incapacity that cannot be remedied. Id.
If a petitioner establishes adequate grounds for termination pursuant to
§ 2511(a), the court turns to § 2511(b), which requires that it “give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S. § 2511(b). “Notably, courts should consider the
matter from the child’s perspective, placing [their] developmental, physical,
and emotional needs and welfare above concerns for the parent.” In the
Interest of K.T., ___ A.3d ___, 2023 WL 4092986 at *13 (Pa. June 21,
2023). This determination “should not be applied mechanically,” but “must
be made on a case-by-case basis,” wherein “the court must determine each
child’s specific needs.” Id. at *14. Accordingly, as our Supreme Court has
recently explained, there is no “exhaustive list” of factors that must be
considered in this context. Id. at *18 n.28.
Since its holding in In re E.M., 620 A.2d 481 (Pa. 1993), our Supreme
Court has mandated that a court’s § 2511(b) analysis must include
“consideration of the emotional bonds between the parent and child.” T.S.M.,
supra at 267. Thus, the court must determine whether the “trauma” caused
by sundering the parent-child bond is “outweighed by the benefit of moving
the child toward a permanent home.” Id. at 253 (cleaned up). Specifically,
the recognized threshold for this finding is that the court must determine
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whether termination will sever a “necessary and beneficial relationship,” such
that the child “could suffer extreme emotional consequences.” K.T., supra
at *16. Our Supreme Court has emphasized, however, that such
consequences must constitute more than mere proof of “an adverse or
detrimental impact from severance of the parental bond” in order to preclude
termination. Id. at *18. Thus, “courts correctly refine their focus on the
child’s development and mental and emotional health rather than considering
only the child’s ‘feelings’ or ‘affection’ for the parent, which even badly abused
and neglected children will retain.” Id. at *16 (citing T.S.M., supra at 267).
Our case law reflects that a court’s analysis pursuant to § 2511(b) is not
narrow but must include consideration of “intangibles such as love, comfort,
security, and stability.” T.S.M., supra at 267. Indeed, our Supreme Court
has affirmed that “the parental bond is but one part of the overall subsection
(b) analysis.” K.T., supra at *18. Thus, “courts must not only consider the
child’s bond with the biological parent, but also examine the . . . love, comfort,
security, and stability the child might have with the foster parent.” K.T.,
supra at *17 (cleaned up; emphasis in original). Our Supreme Court has
noted that Pennsylvania courts should also consider, where appropriate due
to the particular facts of a case, related factors such as: (1) the child’s need
for permanency and length of time in foster care; (2) whether the child is in
a pre-adoptive home and bonded with foster parents; and (3) whether the
foster home meets the child’s needs. Id. at *18.
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With these overarching legal principles in mind, we turn to Father’s
arguments. Although framed as separate issues, Father’s brief contains only
a unitary argument that collectively addresses the orphans’ court’s findings
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8). Cf. Pa.R.A.P. 2116(a),
2119(a). We discern that Father is arguing that the orphans’ court
inappropriately relied solely upon the fact of his incarceration to terminate his
parental rights. See Father’s brief at 13-14.
While Father argues that the orphans’ court inappropriately focused
upon his incarceration in rendering this decision, our Supreme Court’s
jurisprudence indicates otherwise:
[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. § 2511(a)(2)
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012). This Court has also
explained:
Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind . . . that the child's
need for consistent parental care and stability cannot be put aside
or put on hold[.] Parental rights are not preserved by waiting for
a more suitable or convenient time to perform one's parental
responsibilities while others provide the child with his or her
physical and emotional needs. Rather, a parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship.
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Interest of K.M.W., 238 A.3d 465, 474 (Pa.Super. 2020) (cleaned up).
We emphasize that Father has been an absent parent in the lives of
U.T.A. and J.I.A. See N.T., 1/9/23, at 61. Indeed, by his own admission,
Father lived completely apart from the family in New York from at least
September 2019 until February 2021. Id. In addition to this period of
voluntary absence, Father has been sporadically imprisoned during the
agency’s involvement with the family. Id. at 61-62, 67-68. The exact periods
of, and reasons for, Father’s various terms of confinement are not entirely
clear from the certified record. However, his most recent term of incarceration
began in April 2022 and, ultimately, he received a sentence of eighteen
months to seven years with no release date yet set. See N.T., 1/9/23, at 21,
24, 34, 63-65. Whether imprisoned or free, however, the orphans’ court found
that Father demonstrated a continued incapacity in that he has either refused,
or been unable, to maintain verifiable housing, obtain employment, undergo
mental health and drug and alcohol evaluations, or participate in visits with
his sons. See Orphans’ Court Opinion, 3/3/23, at 22. The orphans’ court
concomitantly found that these incapacities had deprived U.T.A. and J.I.A. of
essential parental care and subsistence. Id. Finally, the orphans’ court
concluded that Father’s incapacities would not be remedied. Id.
Our review of the record reveals full support for the court’s findings. Ms.
Farrisi testified that Father has never maintained appropriate housing or
employment during the course of the agency’s involvement with the family.
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See N.T., 1/9/23, at 37. She also testified that Father failed to obtain either
a mental health evaluation or a drug and alcohol evaluation. Id. at 25-26.
Ms. Farrisi’s testimony similarly reflected that Father was only able to
participate in one supervised visit with U.T.A. or J.I.A. during their placements,
i.e., for periods of twenty-four and sixteen months, respectively. Id. at 21,
24, 34. Indeed, there is no indication in the record that Father has ever
provided any relevant parental care or subsistence to U.T.A. and J.I.A.
Finally, competent evidence supports the orphans’ court’s determination
that Father would not, or could not, remedy his incapacities. Even prior to his
imprisonment, Ms. Farrisi reported that Father was evasive and non-
cooperative with the agency. Id. at 21-26, 34-37. Father has now been
incarcerated since April 2022 and is currently serving a sentence with a
maximum term of seven years. Id. at 63. Furthermore, as of the termination
hearing in January 2023, U.T.A. was approximately eleven years old and had
been in placement for two years, while J.I.A. was approximately thirteen years
old and had been in placement for sixteen months. Forcing U.T.A. and J.I.A.
to wait for Father’s release at some future, uncertain date would essentially
hold what little remains of their childhood ransom to an eventuality that may
never come to fruition. See In re Adoption of R.J.S., 901 A.2d 502, 513
(Pa.Super. 2006) (“The court cannot and will not subordinate indefinitely a
child's need for permanence and stability to a parent's . . . hope for the
future.”). Instantly, Father’s repeated and continued incapacity due to his
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incarceration has caused U.T.A. and J.I.A. to be without essential parental
care, control, and subsistence necessary for their physical or mental well-
being. See S.P., supra at 830 (“A parent who is incapable of performing
parental duties is just as parentally unfit as one who refuses to perform the
duties.” (cleaned up)).
Based on the foregoing, we find no abuse of discretion or error of law in
the orphans’ court’s conclusion that involuntary termination of Father’s
parental rights was appropriate pursuant to 23 Pa.C.S. § 2511(a)(2).
Father has advanced no colorable argument concerning § 2511(b). The
statute is neither cited nor discussed with particularity in his brief to this Court.
See Father’s brief at 7-16. We note that “[i]t is well-settled that this Court
will not review a claim unless it is developed in the argument section of an
appellant's brief, and supported by citations to relevant authority.” In re
M.Z.T.M.W., 163 A.3d 462, 466 (Pa.Super. 2017). On this ground, alone, we
could find that Father has waived any claim regarding the orphans’ court’s
holding pursuant to § 2511(b). Id. at 466 n.3 (disapproving of a requirement
that this Court should address § 2511(b) “even where the appellant has made
no effort to present a challenge regarding that section”).
Nevertheless, in an abundance of caution, we review the orphans’
court’s needs and welfare analysis. In terminating Father’s parental rights,
the orphans’ court found that: (1) no parental bond existed between Father
and either U.T.A. or J.I.A.; and (2) the involuntary termination of Father’s
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parental rights would serve the developmental, physical and emotional needs
and welfare of J.I.A. and U.T.A., particularly with respect to affording them
permanency and stability. See Orphans’ Court Opinion, 3/3/23, at 27-28.
The evidence of record supports these conclusions.
As detailed above, the record establishes that Father’s only contact with
U.T.A. and J.I.A. during this time period have been a single supervised
visitation and occasional letters, which were not well-received by U.T.A. or
J.I.A. Id. at 21, 24, 33-34. He has been largely absent from his sons’ lives
and U.T.A. and J.I.A. have not expressed a desire to have continued contact
with him. Id. at 72. Overall, we find ample support for the court’s conclusion
that no parental bond exists. See Matter of M.P., 204 A.3d 976, 984
(Pa.Super. 2019) (“Where there is no evidence of a bond between the parent
and child, it is reasonable to infer that no bond exists.”).
Furthermore, Ms. Farrisi reported that U.T.A. and J.I.A. are thriving in
their respective placements and are bonded with their pre-adoptive foster
families. See N.T., 1/9/23, at 20-21. She also averred that J.I.A.’s and
U.T.A.’s need for stability and permanency would be best served by
terminating Father’s parental rights. Id. at 40. Her conclusion on this point
is further buttressed by the long duration of the respective placements of each
child in this matter. Id. at 21, 34. Accordingly, the orphans’ court’s
conclusions with respect to § 2511(b) are supported by sufficient evidence.
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Based upon the review conducted above, we discern no abuse of
discretion or error law in the orphans’ court’s holding.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2023
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