In Re: M.A.M., Appeal of: A.D. ( 2021 )


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  • J-S14041-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: M.A.M., A MINOR                       :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    APPEAL OF: A.D., FATHER                      :
    :
    :
    :
    :
    :   No. 41 MDA 2021
    Appeal from the Decree Entered November 24, 2020
    In the Court of Common Pleas of Lancaster County Orphans' Court at
    No(s): 2020-00149
    BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
    MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 27, 2021
    A.D. (“Father”) appeals from the Decree granting the Petition filed by
    the Lancaster County Children and Youth Social Service Agency (“Agency”) to
    involuntarily terminate his parental rights to his dependent child, M.A.M.
    (“Child”) (a female born in June 2018), pursuant to 23 Pa.C.S.A. § 2511(a)(1),
    (2), and (b).1 We affirm.
    In its Opinion, the trial court set forth the procedural background from
    the juvenile court proceedings, which we adopt as if set forth fully herein. See
    Trial Court Opinion, 1/22/21, at 1-3. Briefly, Child was born in June 2018,
    and the Agency filed a Petition for temporary custody on July 2, 2018. Father’s
    ____________________________________________
    1 In a separate Decree, entered on the same day, the trial court involuntarily
    terminated the parental rights of Child’s mother, Y.-W.A.M., (“Mother”) to the
    Child. Mother has not filed a brief in Father’s appeal, nor has she filed an
    appeal from the Decree terminating her parental rights.
    J-S14041-21
    status as Child’s biological father was unknown at the time. Mother did not
    contest the factual basis for Child’s dependency. Child was ultimately declared
    dependent in August 2018, and a permanency plan was put in place.
    Father was identified as Child’s Father in September 2018. In December
    2018, the court approved a revised child permanency plan, which included
    objectives for Father. At the time, Father resided in Georgia. In May 2019, a
    Recommendation – Permanency Review Order noted minimal compliance by
    Father with Child’s permanency plan and stated that Father had made no
    progress towards eliminating the circumstances that necessitated Child’s
    placement.      A subsequent Recommendation – Permanency Review Order
    found moderate compliance with the permanency plan and moderate progress
    in alleviating the circumstances that led to Child’s Placement on Father’s part.
    Father was still living in Georgia at the time. An Interstate Compact on the
    Placement of Children2 (“ICPC”) request was in progress at the time for the
    ____________________________________________
    2 An ICPC has been described as follows:
    As drafted, the [ICPC] provides for notification of appropriate state
    or local authorities in the receiving state before placement by out-
    of-state persons and agencies. The authorities in the receiving
    state are given the opportunity to investigate, and if satisfied,
    must notify the sending state that the proposed placement does
    not appear to be contrary to the child’s interest. After a placement
    has been made, the sending state continues to have financial
    responsibility for support and retains jurisdiction over the child.
    McComb v. Wambaugh, 
    934 F.2d 474
    , 480 (3d Cir. 1991); see also 62 P.S.
    § 761; 
    55 Pa. Code § 3130.41
    .
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    J-S14041-21
    child welfare agency in Georgia to assess Father’s home.3 Father moved back
    to Pennsylvania in January 2020.           A third Recommendation – Permanency
    Review Order was issued in June 2020, which found minimal compliance by
    Father and minimal progress in alleviating the circumstances that led to Child’s
    placement.
    On January 22, 2020, the Agency filed a Petition to terminate Father’s
    parental rights based on 23 Pa.C.S.A. § 2511(a)(1), (2), and (b). On February
    10, 2020, Agency caseworker Ludie Louis Juste (“Ms. Juste”) served Father
    with the Petition.     On August 20, 2020, the trial court held an evidentiary
    hearing on the termination Petition. The Agency’s counsel, Tamara Hogan,
    Esq., was present, as were Father and his counsel, Catherine Roland, Esq.
    (“Attorney Roland”), and Gina Carnes, Esq., who served as both guardian ad
    litem and legal interest counsel (“GAL/legal interest counsel”) for Child.
    Allison Wright, Esq. (“Attorney Wright”), represented Mother, who was not
    present. Attorney Wright requested to withdraw as Mother’s counsel, which
    the trial court granted. N.T., 8/20/20, at 4.
    The Agency first presented the testimony of Bobbi Leiphart (“Officer
    Leiphart”), an adult probation officer for York County who supervised Father
    between March 10, 2020, when Father was charged with a second driving
    under the influence (“DUI”) offense, until August 20, 2020, when Father was
    sentenced for the DUI offense.          Id. at 5-6.   Officer Leiphart testified that
    ____________________________________________
    3 A total of three ICPC approval requests were submitted in this matter.
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    Father was sentenced to five years’ probation, followed by 135 days on house
    arrest, and a $1,500 fine. Id. at 6. She further testified that Father had been
    wearing a SCRAM continuous alcohol monitoring bracelet, which is a device
    worn on an individual’s wrist that senses the person’s alcohol intake through
    means of a thermal detection in the skin, since he was released on bail in
    March 2020. Id. Next, the Agency presented the testimony of Ms. Juste, who
    was assigned to Child’s case. Id. at 9. Father then testified on his own behalf.
    Id. at 47. The trial court continued the hearing to September 17, 2020.
    At the hearing on September 17, 2020, Mother was not present.
    Attorney Roland continued her direct examination of Father. N.T., 9/17/20,
    at 4. Subsequently, counsel for the Agency conducted cross-examination of
    Father, as did the GAL/legal interest counsel. Id. at 9, 27. Attorney Rolland
    then questioned Father on re-direct examination. Id. at 31.
    The trial court ably set forth the factual history and made findings of
    fact based    upon   the   testimonial   and   documentary   evidence   at the
    dependency/permanency review hearings and the termination hearings, which
    it found credible. See Trial Court Opinion, 1/22/21, at 5-12. We adopt those
    findings as though they were fully set forth herein. See id.    We provide the
    following summary of the trial court’s findings of fact.
    Father was identified as the Child’s biological father in September 2018
    and was living in Georgia at that time. The first ICPC was denied because
    Mother was living with Father and one of Father’s sons; the second ICPC was
    rejected because Father had moved after the ICPC was requested; and the
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    third ICPC was denied due to the high level of alcohol in Father’s system.
    Father completed a drug and alcohol evaluation in Georgia in September 2019,
    and it was recommended that Father attend outpatient substance abuse
    treatment.   Father informed the Agency that he was told he did not need
    services.    When the Agency received a copy of the evaluation, the
    recommendation for treatment had been erased by the provider.
    Father was charged with DUI in 2010. Father was charged with a second
    DUI on February 2, 2020.     Father remains in denial about his issues with
    alcohol. Father underwent a second drug and alcohol evaluation in May 2020,
    and the report recommended outpatient drug and alcohol treatment and
    recommendations for group and individual therapy. Father failed to provide
    requested drug screens on three occasions and tested positive for marijuana
    on four occasions.
    Father had three visits with Child in 2019. Father had four visits with
    Child in 2020, before the COVID-19 pandemic forced in-person visits to cease.
    Father did not have any virtual visits with Child during the COVID-19
    shutdown, which extended through June 2020. In-person visits resumed on
    June 30, 2020.
    Father has a total of seven children.     He has had varying levels of
    involvement in their respective lives, ranging from living with Father on and
    off throughout the child’s life to having little contact with Father, depending
    on the status of Father’s relationship with each child’s mother.
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    Finally, Child has resided in the same home since birth, and the home
    is a potentially permanent home for Child. There are two other children in the
    home, which Child interacts with as siblings.      Child looks to the resource
    parents for comfort, nurturing, and parenting and refers to them as “mommy
    and daddy.”
    Following the August 2020 hearing, the trial court involuntarily
    terminated Father’s parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(1),
    (2), and (b).     Father timely filed a Notice of Appeal and complied with
    Pa.R.A.P. 1925.
    In his brief on appeal, Father raises four issues, as follows:
    I. Did the trial court err and abuse its discretion in finding that the
    Agency proved by clear and convincing evidence under 23
    Pa.C.S.[A. §] 2511(a)(1) that Father evidenced a settled purpose
    of relinquishing his parental claim to [Child] or refused or failed to
    perform his parental duties for a period of six (6) months
    immediately preceding the filing of the Petition[,] where Father at
    all times desired to exercise his parental claim to [Child] and was
    not provided the opportunity to perform his parental duties?
    II. Did the trial court err and abuse its discretion in finding that
    the Agency proved by clear and convincing evidence under 23
    Pa.C.S.[A. §] 2511(a)(2) that Father’s repeated and continued
    incapacity caused the Child to be without essential parental care,
    control or subsistence necessary for the Child’s physical and
    mental wellbeing[,] when Father was never provided the
    opportunity to show the Agency that he did not have an incapacity
    and that he could provide essential parental care, control and
    subsistence necessary for the [Child’s] physical and mental well-
    being?
    III. Did the trial court err and abuse its discretion in finding that
    the Agency proved by clear and convincing evidence under 23
    Pa.C.S.[A. §] 2511(b) that it is in the Child’s best interest to
    terminate Father’s parental rights?
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    IV. Was Father denied his Fourteenth Amendment Rights to not
    be deprived of life, liberty, or property without due process of law;
    nor to be denied the equal protections of law?
    Father’s Brief at 3-4.4
    In reviewing an appeal from a decree terminating parental rights, we
    adhere to the following standard:
    [A]ppellate courts must apply an abuse of discretion
    standard when considering a trial court’s determination of a
    petition for termination of parental rights. As in dependency
    cases, our standard of review requires an appellate court to accept
    the findings of fact and credibility determinations of the trial court
    if they are supported by the record. In re: R.J.T., [] 
    9 A.3d 1179
    ,
    1190 (Pa. 2010). 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.; R.I.S., 
    36 A.3d 567
    , 572 (Pa. 2011)
    [(plurality opinion)]. As has been often stated, an abuse of
    discretion does not result merely because the reviewing court
    might have reached a different conclusion. Id.; see also Samuel
    Bassett v. Kia Motors America, Inc., … 
    34 A.3d 1
    , 51 (Pa.
    2011); Christianson v. Ely, 
    838 A.2d 630
    , 634 (Pa. 2003).
    Instead, a decision may be reversed for an abuse of discretion
    only upon demonstration of manifest unreasonableness, partiality,
    prejudice, bias, or ill-will. 
    Id.
    As we discussed in R.J.T., there are clear reasons for
    applying an abuse of discretion standard of review in these cases.
    We observed that, unlike trial courts, appellate courts are not
    equipped to make the fact-specific determinations on a cold
    record, where the trial judges are observing the parties during the
    relevant hearing and often presiding over numerous other
    hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
    Therefore, even where the facts could support an opposite result,
    as is often the case in dependency and termination cases, an
    appellate court must resist the urge to second guess the trial court
    ____________________________________________
    4 In the Statement of Questions Involved, Father included a fifth issue
    challenging whether he was denied his right to competent representation by
    legal counsel, but Father withdrew that issue. See Father’s Brief at 4.
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    J-S14041-21
    and impose its own credibility determinations and judgment;
    instead we must defer to the trial judges so long as the factual
    findings are supported by the record and the court’s legal
    conclusions are not the result of an error of law or an abuse of
    discretion. In re Adoption of Atencio, 
    650 A.2d 1064
    , 1066
    ([Pa.] 1994).
    In re Adoption of S.P., 
    47 A.3d 817
    , 826-27 (Pa. 2012).
    The burden is upon the petitioner to prove by clear and convincing
    evidence that the asserted grounds for seeking the termination of parental
    rights are valid.    In re R.N.J., 
    985 A.2d 273
    , 276 (Pa. Super. 2009).
    Moreover, as we have explained, “[t]he standard of clear and convincing
    evidence is defined as testimony that 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.’” 
    Id.
     (quoting In re J.L.C.,
    
    837 A.2d 1247
    , 1251 (Pa. Super. 2003)).         This Court may affirm the trial
    court’s decision regarding the termination of parental rights with regard to any
    one subsection of section 2511(a). See In re B.L.W., 
    843 A.2d 380
    , 384 (Pa.
    Super. 2004) (en banc).
    We will address subsections 2511(a)(1), (2) and (b), which provide as
    follows:
    § 2511. Grounds for involuntary termination
    (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:
    (1) The 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
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    relinquishing parental claim to a child or has refused or
    failed to perform parental duties.
    (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(a)(1), (2), (b).
    With respect to subsection 2511(a)(1), our Supreme Court has held as
    follows:
    Once the evidence establishes a failure to perform parental duties
    or a settled purpose of relinquishing parental rights, the court
    must engage in three lines of inquiry: (1) the parent’s explanation
    for his or her conduct; (2) the post-abandonment contact between
    parent and child; and (3) consideration of the effect of termination
    of parental rights on the child pursuant to Section 2511(b).
    In re Adoption of Charles E.D.M., 
    708 A.2d 88
    , 92 (Pa. 1988).
    Further, this Court has stated that
    the trial court must consider the whole history of a given case and
    not mechanically apply the six-month statutory provision. The
    court must examine the individual circumstances of each case and
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    consider all explanations offered by the parent facing termination
    of his or her parental rights, to determine if the evidence, in light
    of the totality of the circumstances, clearly warrants the
    involuntary termination.
    In re B.,N.M., 
    856 A.2d 847
    , 854-55 (Pa. Super. 2004) (citations omitted).
    In Adoption of S.P., our Supreme Court reiterated the standard with
    which a parent must comply in order to avoid a finding that he abandoned his
    child. A parent “has an affirmative duty to love, protect and support his child
    and to make an effort to maintain communication and association with that
    child.” Adoption of S.P., 47 A.3d at 828 (quotation omitted). “Where the
    parent does not exercise reasonable firmness in declining to yield to obstacles,
    his other rights may be forfeited.” Id.
    In his first claim, regarding 23 Pa.C.S.A. § 2511(a)(1), Father argues
    that the trial court erred in failing to examine the totality of the circumstances
    of the case and to consider his explanations regarding his efforts to parent
    Child. Father’s Brief at 11. Father argues that there were significant delays
    in this case, such that the court’s focus should not have been on the six-month
    period prior to the filing of the termination Petition on January 22, 2020, i.e.,
    July 22, 2019.      Id. at 12.   Father states that he took immediate steps to
    parent Child after learning that he was Child’s father, but his efforts had
    already been significantly delayed by the Agency’s slowness to identify him
    and the significant delays in the ICPC process. Id. He claims that the record
    indicates that the Agency did little, or nothing, to move the process along. Id.
    at 13.
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    J-S14041-21
    Specifically, Father asserts that during the six-month period, he was
    working on the child permanency plan and waiting for the ICPC investigations
    to be completed. Id. at 12. Father asserts that his second ICPC investigation
    request was rejected on August 30, 2018 because he had moved after the
    request was made.     Id.   Father complains that he had made the Agency
    caseworker aware of his change in address, and the caseworker failed to notify
    the Georgia agency. Id. Father contends that it was the Agency’s duty to
    report his address change to the Georgia agency, but the Agency failed to do
    so. Id. Father posits that his request might have been granted but for the
    Agency's failure to inform the Georgia agency that he had moved. Id. Father
    argues that this delay and subsequent denial of his ICPC request should not
    be held against him, as the Agency is statutorily required to assist parents in
    gaining the return of their children. Id. Additionally, Father contends that,
    because he was committed to obtaining custody of Child, he requested a third
    ICPC investigation. Id. Father complains that his third request was denied
    because he tested positive for alcohol on the day when the Georgia caseworker
    came to assess his home in August 2020. Id.
    Father also contends that the trial court erred in concluding that he
    evidenced a settled purpose of relinquishing his parental rights despite his
    sincere efforts to parent Child. Id. at 13. Father asserts that the evidence
    that he did not have a settled purpose of relinquishing his parental rights to
    Child include that he moved to York, Pennsylvania, to be near Child; he
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    immediately secured employment and housing; and he visited with Child and
    maintained regular contact with the resource parents through Zoom and e-
    mail. Id. Father states that, in addition to Child, he has six other children,
    and he has taken responsibility for all of them. Id. Father states that most
    of his other six children have lived with him for periods of time, and that two
    are in college, for whom he continues to take responsibility. Id. Moreover,
    Father avers that his rights to his other children have not been terminated.
    Id.
    The trial court addressed Father’s issue regarding section 2511(a)(1) as
    follows:
    There are two pathways to the establishment of the
    Agency’s case under this subsection of the statute. The statute
    requires the Agency to prove that during a period of more than
    six months prior to the filing of the Agency’s termination of
    parental rights petition Father demonstrated EITHER a settled
    purpose or intent to relinquish a parental claim OR a failure to
    perform parental duties.
    In the instant case, the record supports this court’s finding
    of facts sufficient to determine that Father, by his inaction,
    followed the second of these pathways to the inescapable
    conclusion that Father’s parental rights should be terminated.
    Father learned that he was a parent to [Child] in the
    summer of 2018. (Finding of Fact 10.) That condition was
    conclusively proven through paternity testing, the results, of
    which were known on September 12, 2018. (Finding of Fact 11.)
    Measured from the date that Father knew unquestionably
    that he was a parent to [Child,] to the date that the Agency’s
    [P]etition was filed (January 22, 2020), a period of more than
    fifteen months elapsed during which Father did not perform any
    parental duties toward [Child].
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    Father was granted [the] Child’s [p]ermanency [p]lan at the
    permanency review hearing held before a master on December
    19, 2018. Measured from that date, more than a year elapsed
    during which Father did very little to address the objectives of his
    plan.
    As th[is] Court has explained: “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
    a child. Thus, [the Superior Court] has held that the parental
    obligation is a positive duty, which requires affirmative
    performance. … Because a child needs more than 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 [at 855][.]
    For a period of six months preceding the filing of the
    Agency’s [P]etition to terminate parental rights, Father took no
    affirmative steps to perform parental duties. He made no effort
    to maintain the parent-child relationship. “Although the six-
    month period immediately preceding the filing of the petition is
    most critical to the analysis, the court must consider the whole
    history of the case and not mechanically apply the six-month
    statutory provision.” In re K.Z.S., 
    942 A.2d 753
    , 758 (Pa. Super.
    2008)[.] Father took no steps to be a parent from the summer of
    2018 and those efforts were spotty at best. Grounds for the
    termination of Father’s parental rights under [section] 2511(a)(1)
    have been proven by clear and convincing evidence.
    Trial Court Opinion, 1/22/21, at 15-17 (emphasis in original).
    The    trial   court’s   determination   that   Petitioners   satisfied   the
    requirements of section 2511(a)(1) is supported by competent, clear and
    convincing evidence in the record. In re Adoption of S.P., 47 A.3d at 826-
    27; In re: T.S.M., 71 A.3d at 267. We adopt the discussion set forth in the
    trial court Opinion. See Trial Court Opinion, 1/22/21, at 15-17.
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    J-S14041-21
    In his second claim, regarding section 2511(a)(2), Father argues that
    Child was placed in the Agency’s custody because Mother could not care for
    her. Father’s Brief at 14-15. Father asserts that the record indicates that he
    had housing and income throughout the case; he has six other children and
    has had a parental role in their lives; he co-parented with the mothers of his
    other children; and, upon learning about Child's existence, he took immediate
    steps to unify and be a parent to her. Id. at 15. Father states that these
    facts contradict the Agency’s argument that Father is incapable of parenting
    Child. Id. Father contends that there were delays in his being able to parent
    Child, attributing some of the delays to the Agency’s failure to move the case
    along, some to the COVID-19 pandemic, and some to his own conduct. Id.
    Father claims, however, that the record does not show he has a lack of
    parental capacity, or that he cannot or will not meet Child’s needs. Id.
    To satisfy the requirements of section 2511(a)(2), the moving party
    must produce clear and convincing evidence regarding the following elements:
    (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
    incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 
    825 A.2d 1266
    , 1272
    (Pa. Super. 2003).    The grounds for termination of parental rights under
    section 2511(a)(2), due to parental incapacity that cannot be remedied, are
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    not limited to affirmative misconduct; to the contrary, those grounds may
    include acts of refusal as well as incapacity to perform parental duties. In re
    A.L.D. 
    797 A.2d 326
    , 337 (Pa. Super. 2002).
    The trial court addressed Father’s second issue, regarding 23 Pa.C.S.A.
    § 2511(a)(2), as follows:
    The Agency has the burden to prove three elements under
    this subsection of the statute: (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 [her] physical
    or mental well-being; and (3) the cause of the incapacity, abuse,
    neglect or refusal cannot or will not be remedied. In re Adoption
    of M.E.P., 
    825 A.2d 1266
    , 1272 (Pa. Super. 2003) (citation
    omitted).
    Under [section] 2511(a)(2)[,] the focus is on the child’s
    present and future need for essential parental care, control, or
    subsistence necessary for [her] physical or mental well-being. In
    re E.A.P., 
    944 A.2d 79
    , 82 (Pa. Super. 2008) (citations omitted
    and internal quotations omitted).
    In the present case, Father never has had physical custody
    of [Child]. He has done little to assert that he was a willing and
    able parent from the inception of the case. Father has never
    provided any care for [Child]. He has not demonstrated the
    parental care necessary for [Child’s] physical and mental
    wellbeing to flourish. By his own history of his parenting of his
    other children as he related it, Father is an “on and off” parent.
    Father’s history gives rise to concerns that he would ever be
    capable of providing for [Child’s] future needs for essential
    parental care, control, or subsistence. He only recently began to
    address the objectives contained in [Child]’s Permanency Plan,
    despite the fact that the plan was in place since December 19,
    2018. Father’s only measurable efforts toward his objectives took
    place after Father was served with the Agency’s [P]etition to
    terminate his parental rights to [Child]. Father’s efforts are
    indubitably too little and too late.
    Trial Court Opinion, 1/22/21, at 17-18.
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    J-S14041-21
    The   trial   court’s   determination   that   Petitioners   satisfied   the
    requirements of section 2511(a)(2) is supported by competent, clear and
    convincing evidence in the record. In re Adoption of S.P., 47 A.3d at 826-
    27; In re: T.S.M., 71 A.3d at 267. We adopt the discussion set forth in the
    trial court Opinion. See Trial Court Opinion, 1/22/21, at 17-18.
    In his third claim, regarding section 2511(b), Father argues that the trial
    court erred in concluding that the Agency proved, by clear and convincing
    evidence, that there is no bond between Child and him. Father’s Brief at 15.
    Father asserts that a bond exists between Child and him, and that Ms. Juste
    testified that Child smiles and laughs with Father at visits.          Id.at 16.
    Additionally, Father argues that there were delays that negatively impacted
    his access to Child, including the delay in formally identifying him as Child’s
    father, the lengthy ICPC process, and the distance between his home and
    Child’s placement until Father relocated to York, Pennsylvania. Id. Father
    urges that the COVID-19 pandemic also restricted his in-person visits with
    Child, since virtual visits were necessary for safety of all involved, but they
    impacted his ability to strengthen his bond with Child.        Id.   Father also
    complains that there was no testimony, other than that of Ms. Juste that Child
    would suffer from being placed in Father’s care. Id.
    This Court has stated that the focus in terminating parental rights under
    section 2511(a) is on the parent, but it is on the child pursuant to section
    2511(b). See In re Adoption of C.L.G., 
    956 A.2d 999
    , 1008 (Pa. Super.
    - 16 -
    J-S14041-21
    2008) (en banc). In reviewing the evidence in support of termination under
    section 2511(b), our Supreme Court has stated as follows:
    [I]f the grounds for termination under subsection (a) are
    met, a court “shall give primary consideration to the
    developmental, physical and emotional needs and welfare of the
    child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and
    welfare of the child have been properly interpreted to include
    “[i]ntangibles such as love, comfort, security, and stability.” In
    re K.M., 
    53 A.3d 781
    , 791 (Pa. Super. 2012). In In re E.M., [
    620 A.2d 481
    , 485 (Pa. 1993)], this Court held that the determination
    of the child’s “needs and welfare” requires consideration of the
    emotional bonds between the parent and child. The “utmost
    attention” should be paid to discerning the effect on the child of
    permanently severing the parental bond. In re K.M., 
    53 A.3d at 791
    .
    In re: T.S.M., 71 A.3d at 267. When evaluating a parental bond, “the court
    is not required to use expert testimony. Social workers and caseworkers can
    offer evaluations as well.   Additionally, section 2511(b) does not require a
    formal bonding evaluation.” In re Z.P., 
    994 A.2d 1108
    , 1121 (Pa. Super.
    2010) (internal citations omitted).
    A parent’s abuse and neglect are likewise a relevant part of this analysis:
    concluding a child has a beneficial bond with a parent simply
    because the child harbors affection for the parent is not only
    dangerous, it is logically unsound. If a child’s feelings were the
    dispositive factor in the bonding analysis, the analysis would be
    reduced to an exercise in semantics as it is the rare child who,
    after being subject to neglect and abuse, is able to sift through
    the emotional wreckage and completely disavow a parent. … Nor
    are we of the opinion that the biological connection between [the
    parent] and the children is sufficient in of itself, or when
    considered in connection with a child’s feeling toward a parent, to
    establish a de facto beneficial bond exists. The psychological
    aspect of parenthood is more important in terms of the
    development of the child and [his or her] mental and emotional
    health than the coincidence of biological or natural parenthood.
    - 17 -
    J-S14041-21
    In re K.K.R.-S., 
    958 A.2d 529
    , 535 (Pa. Super. 2008) (internal citations and
    quotation marks omitted); see also In re K.Z.S., 946 A.2d at 763-64
    (affirming involuntary termination of parental rights, despite existence of
    some bond, where placement with mother would be contrary to child’s best
    interests). “[A] parent’s basic constitutional right to the custody and rearing
    of his or her child is converted, upon the failure to fulfill his or her 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 at 856
     (internal citations omitted).
    This Court has explained that a parent’s own feelings of love and
    affection for a child, alone, do not prevent termination of parental rights. In
    re Z.P., 
    994 A.2d at 1121
    . It is well-settled that “we will not toll the well-
    being and permanency of [a child] indefinitely.” In re Adoption of C.L.G.,
    
    956 A.2d at
    1007 (citing In re Z.S.W., 
    946 A.2d 726
    , 732 (Pa. Super. 2008)).
    The trial court addressed Father’s issue regarding 23 Pa.C.S.A.
    § 2511(b) as follows:
    The court must next determine whether terminating
    Father’s parental rights to [Child] will best serve the
    developmental, physical and emotional needs and welfare of
    [Child]. See[] 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 G.M.S., 
    884 A.2d 1284
    ,
    1287 (Pa. Super. 2005)[.] An examination of the parent-child
    bond is required, where the court must assess the effect upon the
    child of severing that bond. Expert testimony is not required. See
    In re K.K.R.-S., 958 A.2d [at] 533 ….
    - 18 -
    J-S14041-21
    [Child], who was born [in June 2018], is now more than
    two[-]and[-a-]half years of age. Father is, for all purposes, a
    stranger to her. Father’s lack of interest was amply demonstrated
    by his minimal efforts to maintain contact with [Child] long before
    the COVID-19 pandemic disrupted in-person visitation. Under
    these circumstances, it is fully evident that [Child] has no bond
    with Father at all which would be severed by the termination of
    Father’s parental rights.
    [Child] deserves permanency. [Child] deserves a nurturing,
    loving, and stable home.      [Child] presently enjoys a home
    possessing these characteristics with the resource family, which is
    a potentially permanent resource for her[,] and which is the only
    family [Child] has ever known. There is no doubt that [Child]’s
    removal from this home would be highly traumatic and damaging
    to her psychological and emotional health.
    In summary, [Child]'s best interests are served if she
    remains with her resource family and is freed to be adopted into
    that family.
    Trial Court Opinion, 1/22/21, at 18-19.
    The   trial   court’s   determination   that   Petitioners   satisfied   the
    requirements of section 2511(b) is supported by competent evidence in the
    record. In re Adoption of S.P., 47 A.3d at 826-27; In re: T.S.M., 71 A.3d
    at 267. We adopt the discussion set forth in the trial court Opinion with regard
    to Father’s third issue. See Trial Court Opinion, 1/22/21, at 18-19.
    In support of his fourth issue, Father argues that the termination of his
    parental rights under section 2511(a) and (b) was not supported by clear and
    convincing evidence, such that the trial court deprived him of his constitutional
    due process right to parent Child, despite his efforts to parent her and the
    significant delays in the reunification process. Father’s Brief at 10, 16-17.
    - 19 -
    J-S14041-21
    As we have determined that there was clear and convincing evidence to
    support the termination of Father’s parental rights to Child pursuant to 23
    Pa.C.S.A. § 2511(a)(1), (2), and (b), the trial court did not deny Father’s
    constitutional right to raise Child. We find that his constitutional argument
    lacks merit.
    Accordingly, as we find that the trial court did not commit an error of
    law or an abuse of discretion in terminating Father’s parental rights to Child
    pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), we affirm the trial court
    Decree.
    Decree affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 07/27/2021
    - 20 -
    Circulated 07/06/2021 12:14 PM
    

Document Info

Docket Number: 41 MDA 2021

Judges: Musmanno

Filed Date: 7/27/2021

Precedential Status: Non-Precedential

Modified Date: 11/21/2024