Term. of Par. Rights to A.E.S., Appeal of J.K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: INVOLUNTARY TERMINATION : IN THE SUPERIOR COURT OF
OF: A.E.S. : PENNSYLVANIA
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APPEAL OF: J.K., FATHER :
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: No. 40 MDA 2021
Appeal from the Decree Entered December 2, 2020
In the Court of Common Pleas of Lebanon County Orphans' Court at
No(s): 2020-00555
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED: JUNE 14, 2021
Appellant, J.K. (“Father”), appeals from the December 2, 2020 Decree
that involuntarily terminated his parental rights to A.E.S. (“Child”). Upon
careful review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The relevant factual and procedural history is as follows. Father and
A.S. (“Mother”) are the biological parents of Child. When Child was born in
December 2018, Mother was seventeen years old and living with her parents
(“Maternal Grandmother” and “Maternal Grandfather;” collectively, “Maternal
Grandparents”). The Lebanon County Children and Youth Services (the
“Agency”) had an open case involving minor Mother and Maternal
Grandparents over concerns about inappropriate housing conditions and
continuing lice infestation.
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As a newborn, Child had ongoing issues with feeding and weight gain.
Hospital staff admitted three-month-old Child to the hospital for monitoring
and, after she gained a satisfactory amount of weight, discharged her five
days later. The following week, after a medical appointment, Child was
transported to the hospital via ambulance due to her failure to gain weight.
Hospital staff once again admitted Child to the hospital for monitoring. Later
that day, Mother and Maternal Grandfather attempted to sign Child out of the
hospital against medical advice, prompting hospital staff to take emergency
custody of Child to ensure her medical needs were met. On March 19, 2019,
the Agency obtained emergency custody of Child and placed her in foster care
upon her release from the hospital. Mother initially refused to disclose Father’s
name to the Agency, but eventually revealed his identity. Father lives with
Mother and Maternal Grandparents in the Maternal Grandparent’s home.
On May 7, 2019, after numerous continuances, the trial court
adjudicated Child dependent and the court ordered Child to remain in foster
care. The trial court ordered Father to maintain a safe and sanitary home for
Child, allow the Agency to conduct both announced and unannounced home
visits, maintain consistent visits with Child, obtain a mental health evaluation,
maintain suitable employment, and pay child support. On September 1, 2020,
after Child had been in placement for approximately eighteen months, the
Agency filed a Petition to Involuntarily Terminate Mother’s and Father’s
Parental Rights to Child (“TPR Petition”).
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On December 1, 2020, the trial court held a hearing on the Agency’s
TPR Petition. The Agency presented testimony from caseworker Tabitha
Belsak. Father chose not to testify.
In sum, Ms. Belsak testified that Father lived with Mother and Maternal
Grandparents in Maternal Grandparent’s home, and the housing continued to
be inappropriate. Ms. Belsak stated that the home was cluttered with clothing
and stacked boxes and drinks in Child’s playpen, had loose and exposed wiring
on the floor, had medication bottles in open areas throughout the house, had
garbage bags and used cigarettes throughout the house, and was unsanitary
due to the household members not properly caring for numerous cats, dogs,
and turtles that lived in the home and generated feces and urine throughout.
N.T. TPR Hearing, 12/1/20, at 15-21. Ms. Belsak testified that, although the
Agency provided numerous services to the family, the family was often
uncooperative, and the home conditions only improved temporarily. Id. at
18-20.
Ms. Belsak stated that the family was also uncooperative with
unannounced home visits; out of ten unannounced visits she was only granted
access to the home on two occasions. Id. at 30. She described an
unannounced home visit on June 26, 2020, when she observed unsanitary
conditions, including “close to 20 to 30 cats in the home[,]” saw a family friend
hiding in the corner of a room, and a Pit Bull dog locked and chained in the
upstairs bathroom; smelled cigarette smoke, cat urine and feces, and another
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“unidentifiable foul smell[;]” and was unable to gain access to Mother and
Father’s bedroom because it was locked. Id. at 38-39.
Ms. Belsak informed the court that Father failed to provide a mental
health evaluation to the Agency until after the Agency filed the TPR Petition,
failed to pay child support consistently, and failed to provide proof of ongoing
employment. Id. at 55, 62, 66-67. Specifically, Father signed releases for
the Agency to contact two alleged employers; one employer had no record of
Father working there and the second employer fired Father because he did not
show up for scheduled work shifts. Id. 64. Ms. Belsak testified that Father
claimed to work for four additional employers but refused to sign releases for
the Agency to verify his employment. Id.
Regarding visitation, Ms. Belsak testified that out of approximately 100
to 110 supervised visits, Father was late, unprepared, or absent for 37 visits.
Id. at 52. Specifically, Father showed up late to 22 visits, missed 4 visits,
cancelled 3 visits, and did not have formula or clean bottles for Child during 8
visits. Id. at 52-54.
Ms. Belsak confirmed that she supervises twice-a-week visits between
Father and Child and observed that Child favors contact with Mother but
interacts with both parents. Id. at 76. Ms. Belchak witnessed that Father
was sometimes verbally aggressive with Child and yelled at Child during visits,
causing Child to look frightened. Id. 76-77. Ms. Belsak testified that parents
and Child “definitely are bonded.” Id. at 77. She continued, “[h]owever, due
to [Child’s] age and due to the adoptive resource being someone she already
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knows, I don’t believe the effect of severing the bond would be detrimental.”
Id. at 77.
On December 2, 2020, the trial court entered a Decree terminating
Father’s parental rights to Child.1, 2 Father timely appealed. Both Father and
the trial court complied with Pa.R.A.P. 1925.
ISSUE RAISED ON APPEAL
Father raises the following issue for our review:
Whether the trial court erred when it entered an Order on
December 1, 2020 terminating [Father]’s parental rights,
especially in light of the competent evidence regarding [Child]
being bonded with him?
Father’s Br. at 5 (some capitalization omitted).
LEGAL ANALYSIS
When we review a trial court’s decision to grant or deny a petition to
involuntarily terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
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1 The trial court also entered a Decree terminating Mother’s parental rights to
Child. Mother is not a party to this appeal.
2 Child’s legal counsel and guardian ad litem both agree that Father’s parental
rights should be terminated.
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(citation omitted). We may not reverse merely because the record could
support a different result. In re T.S.M., 71 A.3d at 267. We give great
deference to the trial courts “that often have first-hand observations of the
parties spanning multiple hearings.” Id. Moreover, “[t]he trial court is free
to believe all, part, or none of the evidence presented, and is likewise free to
make all credibility determinations and resolve conflicts in the evidence.” In
re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).
Section 2511 of the Adoption Act governs termination of parental rights,
and requires a bifurcated analysis. 23 Pa.C.S. § 2511. “Initially, the focus is
on the conduct of the parent.” In re Adoption of A.C., 162 A.3d 1123, 1128
(Pa. Super. 2017) (citation omitted). “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).” Id. (citation
omitted). If the court determines that the parent’s conduct warrants
termination of his or her parental rights, the court then engages 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.” Id.(citation omitted). Notably, we need only agree with the trial court’s decision
as to any one subsection of Section 2511(a), as well as Section 2511(b), in
order to affirm the termination of parental rights. See In re B.L.W., 843
A.2d 380, 384 (Pa. Super. 2004) (en banc).
In his sole issue on appeal, Father avers that the Agency failed to
provide clear and convincing evidence to terminate his parental rights under
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Section 2511, generally. Father’s Br. at 5, 9. Father argues that Maternal
Grandparents maintained control of the home, leaving Father powerless to
improve the home conditions or allow the Agency access to the home. Id. at
12-13. Therefore, Father contends, he was penalized for the behavior of the
Maternal Grandparents. Id. Father concedes that he did not obtain a mental
health evaluation, find employment, or pay child support due to his exhibited
“immature, lackadaisical attitude[.]” Id. at 14 (quoting Trial Ct. Op., filed
1/15/21, at 13). However, Father argues he “should not be penalized for his
emotional inability to complete the tasks.” Id. Finally, Father makes a bald
averment, without citation to the record, that the trial court abused its
discretion in terminating his parental rights because severing the Child’s bond
with Father would have a detrimental effect on Child. Id. Father’s arguments
lack merit.
Termination Pursuant to 23 Pa.C.S. § 2511(a)(1)
Upon review, we conclude that the Agency presented clear and
convincing evidence to terminate Father’s parental rights pursuant to Section
2511(a)(1). Section 2511(a)(1) provides that the trial court may terminate
parental rights if the Petitioner establishes that “[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.
§ 2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
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parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, “the court must consider the whole history
of a given case and not mechanically apply the six-month statutory provision.”
In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citation omitted). Rather,
“[t]he court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” Id. (citations
omitted). “However, with respect to any petition filed pursuant to 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 petition.” In re Adoption of A.C., 162 A.3d
at 1129 (citing 23 Pa.C.S. § 2511(b)).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this Court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty . . . requires continuing interest in the
child and a genuine effort to maintain communication and
association with the child. Because a child needs more than
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a benefactor, parental duty requires that a parent exert
himself to take and maintain a place of importance in the
child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and internal
paragraph breaks omitted).
Moreover, “[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every problem, in order to
maintain the parent-child relationship to the best of his or her ability, even in
difficult circumstances.” Id. (citation omitted). “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.” Id. (citation omitted). And most importantly,
“[p]arental 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.” Id. (citation omitted).
Simply put, “adequate parenting requires action as well as intent.” In re
J.W., 578 A.2d 952, 959 (Pa. Super. 1990) (emphasis in original).
Instantly, the trial court found that Father failed to perform parental
duties for Child for twenty months while Child was in placement. Trial Ct. Op.
at 13. The trial court opined:
Both [parents] were deceptive with [the Agency] and exhibited
immature, lackadaisical attitudes toward their role as the parents
of [] Child. Neither are anywhere near completion of their goals.
They were unable to provide necessary items for [] Child’s care
for even the brief periods of visitation, and it is unlikely that they
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would be able to do so if they were responsible for [] Child’s care
on a regular basis.
Id. The trial court emphasized that Father did not make any effort towards
achieving most of his goals and assuming his parental duties until after the
Agency filed the TPR Petition: “[u]p to that time, their conduct indicated either
that they did not take [the Agency] involvement seriously or that they were
simply disinterested in performing their parental duties and maintaining a
relationship with their Child.” Id. The trial court made findings that Father
had ample time to complete his goals and “build a lifestyle suitable for the
safe return and care of [] Child” but “failed to take advantage of the many
services and opportunities for help offered by [the Agency], all to the
detriment of [Child].” Id.Our review of the record reveals that the trial court’s findings are
supported in the record, and that the Agency met its burden under Section
2511(a)(1). Father failed to act affirmatively and utilize all available resources
to reunify with Child and preserve the parental relationship. Father argues
that because Maternal Grandparents owned the home where he lived, he was
powerless to improve the home conditions or allow the Agency access to the
home. However, Father failed to exercise reasonable firmness to overcome
the obstacles that he faced, including maintaining employment so that he
could obtain alternative housing. Moreover, this Court cannot preserve
Father’s parental rights because he admits to having an “immature,
lackadaisical attitude” and an “emotional inability to complete the tasks.” On
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the contrary, as stated above, “[p]arental 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.” In re B., N.M., 856 A.2d at 855 (citation omitted).
Our review of the record supports the trial court’s findings. We decline
to reweigh the evidence or usurp the lower court’s credibility determinations.
Accordingly, we find no abuse of discretion. Moreover, because we agree that
the Agency met its burden to terminate Father’s parental rights pursuant to
subsection (1) of Section 2511(a), we decline to address additional
subsections.
Termination Pursuant to 23 Pa.C.S. § 2511(b)
Father also contends that the trial court abused its discretion in
terminating his parental rights pursuant to 23 Pa.C.S. § 2511(b). Father’s Br.
at 14. In his three-sentence argument, Father makes a bald averment that
severing his parental bond with Child would have a detrimental effect on her.
Id. Father’s argument fails.
With respect to Section 2511(b), our analysis focuses on the effect that
terminating the parental bond will have on the child. In particular, we review
whether “termination of parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
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inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted).
One major aspect of the “needs and welfare” analysis concerns the
nature and status of the emotional bond that the child has with the parent,
“with close attention paid to the effect on the child of permanently severing
any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.
2018) (citation omitted). The fact that a child has a bond with a parent does
not preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that its
termination would destroy an existing, necessary, and beneficial relationship.
Id. at 898. Moreover, the trial court may consider intangibles, such as the
love, comfort, security, and stability the child might have with the adoptive
resource. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately, the
concern is the needs and welfare of the child. In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010).
The record belies Father’s claims that severing his parental bond would
be detrimental to Child. The trial court heard uncontradicted testimony from
Ms. Belsak that Father and Child shared a bond, but that severing their bond
would not have a detrimental impact on Child and that terminating parental
rights would be in Child’s best interest. N.T. TPR Hearing at 77, 79. The trial
court made findings that: “Child is thriving in her current placement and has
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bonded with her foster family. The daughter and son-in-law of [] Child’s foster
parents will be seeking to adopt her and she will thus be able to maintain
these relationships and they will provide her with the stable home life and
environment she deserves.” Trial Ct. Op. at 14. The trial court concluded that
terminating Father’s parental rights would be in Child’s best interest. Id. The
record supports the trial court’s findings, and we find no abuse of discretion.
CONCLUSION
In conclusion, the trial court did not abuse its discretion when it found
that the Agency presented clear and convincing evidence to terminate Father’s
parental rights to Child, and that termination of Father’s parental rights would
be in Child’s best interest.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/14/2021
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