In the Int. of: B.D., a Minor ( 2021 )

J-S26013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.D., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
v.
APPEAL OF: LUZERNE COUNTY
CHILDREN AND YOUTH SERVICES
No. 604 MDA 2021
Appeal from the Decree Entered April 1, 2021
In the Court of Common Pleas of Luzerne County
Orphans' Court at No.: A-9089
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 9, 2021
Appellant Luzerne County Children and Youth Services (“CYS”) appeals
from the decree entered on April 1, 2021 in the Court of Common Pleas of
Luzerne County (“orphans’ court”), granting M.J.D.’s (“Father’s”) motion to
dismiss CYS’s petition to terminate involuntarily the parental rights of Father
to his daughter, B.D. (“Child”), born in May 2018 and denying the petition.
Upon review, we affirm.
We glean the facts and procedural history of this case from the certified
record. On November 3, 2020, CYS filed a petition to terminate Father’s
parental rights to Child involuntarily pursuant to 23 Pa.C.S.A. § 2511(a)(1)
and (2). The orphans’ court appointed Maria Turetsky, Esquire, as legal
counsel and guardian ad litem for Child. On January 14, 2021, the orphans’
court conducted a hearing, at which CYS offered the testimony of Tammy
J-S26013-21
Purpura, a CYS caseworker and Gina Bellanca, CYS casework supervisor. Ms.
Purpura testified that she has been involved with Child’s case since 2018. N.T.
Hearing, 1/14/21, at 7. She stated that from the beginning of Child’s case
until December 19, 2018, Father was subject to a protection from abuse
(“PFA”) order, which prohibited him from having any contact with Mother and
Child. Id. at 14, 39. Nineteen days following the expiration of the PFA order,
on January 7, 2019, Child was adjudicated dependent and placed into CYS’s
custody because of “[p]arental substance abuse, domestic violence between
the natural parents, and mental health issues.” Id. at 8. According to Ms.
Purpura, at the time Child was adjudicated dependent, Father was not
considered a resource because he was residing at “Just Believe Sober Living
Facility,” id. at 8-9, but was directed to engage in services and work toward
reunification with Child. Id. at 9. In particular, “[h]e was ordered for eight
hours of supervised visits at [CYS] or Vision Quest, remain sober, random
urinalysis, safe and stable housing, and parenting services at his discretion.”
Id. at 9. According to Ms. Purpura, Father also was under house arrest until
February 2020. Id. at 14, 16.
Ms. Purpura further testified that custody of Child was returned to her
biological mother, T.L.L (“Mother”) on July 19, 2019, following a permanency
review hearing. Id. Father, however, still was not considered a resource and
“ordered to engage in anger management and continue with his visitation.”
Id. at 10. He did not have safe and stable housing, because he was residing
at the sober facility. Id. According to Ms. Purpura, CYS regained custody of
-2-
J-S26013-21
Child on January 9, 2020, because Mother relapsed into substance abuse and
“lost her housing.” Id. Even at this point, Father was not considered a
resource, as he was residing at the sober facility. Id. CYS placed Child with
maternal grandmother (“Grandmother”). Id. at 11.
Ms. Purpura testified that, following Mother’s death, Father’s schedule
for visitation with Child was “[e]ight hours supervised by [CYS] or Vision
Quest.” Id. In addition, Grandmother also was permitted to supervise
Father’s visits and visitations were permitted to occur at Grandmother’s
residence. Id. at 11, 18. However, because of the COVID-19 pandemic,
Father’s visitation schedule was modified in March 2020. Id. at 18-19.
Specifically, Father was permitted two video calls with Child per week, each
lasting at least fifteen minutes. Id. at 19.
Ms. Purpura recalled that, since Child’s dependency adjudication, Father
had not been consistent in his visitations. Id. at 11. According to Ms. Purpura,
Father visited with Child only four times in person prior to CYS’s filing of the
termination petition. Id. Furthermore, she testified that Father made only
five video calls with Child prior to CYS’s filing of the termination petition (and
two more since then). Id. at 19. Ms. Purpura recalled that Father’s last in-
person visit with Child occurred on July 6, 2020 and his last video call on July
18, 2020. Id. at 18-19.
When asked whether Father—in the six months prior CYS’s filing of the
termination petition—provided “any necessities, clothing, or anything” for
Child, id. at 20, Ms. Purpura answered “[h]e did show up for an in person visit
-3-
J-S26013-21
on June 30 at [Grandmother’s] home and he brought some gifts and toys in
the form of toys[.]” Id. According to Ms. Purpura, that was the only time
prior to the filing of the November 3, 2020 termination petition when Father
provided anything for Child. Id.
Ms. Purpura testified that, other than being inconsistent in his visitations
with Child, Father was compliant with his court-ordered services. Id. She
further testified that Father was deemed in “substantial” compliance at the
last permanency review in October 2020. Id. at 20-21. Ms. Purpura also
testified that Father never evinced an intention to assume full custody of Child.
Id. at 21. She recalled that Father wanted Child to remain with Grandmother,
but “would like to be able to visit and take her out.” Id. at 22.
On cross-examination, Ms. Purpura acknowledged that CYS indicated at
the October 19, 2020 permanency review hearing that it would not be filing a
termination petition against Father because he “has been engaged with [CYS]
and services, and is in the process of securing safe and stable housing.” 1 Id.
at 25. Ms. Purpura further acknowledged that the permanency review hearing
____________________________________________
1 On October 27, 2020, the juvenile court adopted the hearing master’s
October 19, 2020 permanency review recommendations in this case. In
particular, the court noted:
[CYS] does not intend to file or join a petition to terminate
parental rights because a compelling reason has been
documented by [CYS] that filing a petition to terminate parental
rights would not serve the needs and welfare of [Child], to wit:
[Father] has been engaged with [CYS] and services and is in the
process of securing safe and stable housing.
Permanency Review Recommendation, 10/19/20, at 2.
-4-
J-S26013-21
occurred approximately two weeks prior to CYS’s filing of the termination
petition. Id. at 25-26. When asked why CYS proceeded with termination,
Ms. Purpura answered that the master’s recommendation that CYS would not
be filing a termination petition was incorrect. Id. at 26. She then conceded
that no one from CYS attempted to correct or modify the master’s
recommendation. Id. Ms. Purpura also conceded that CYS was only
concerned with Father’s lack of safe and stable housing at the October 2020
permanency review hearing. Id. She testified that, despite intending to file
a termination petition, CYS asked Father to complete parenting education and
to continue with his visitations. Id. When asked why, Ms. Purpura answered
that Father did not have a bond with Child, although she later admitted that
she never actually witnessed Father’s interactions with Child and did not know
the nature of their bond. Id. at 27, 40, 42. Ms. Purpura acknowledged that
CYS considered Mother to be Child’s primary resource from July 19, 2019 until
January 5, 2020 and that CYS’s focused shifted to Father only after Mother’s
death in February of 2020. Id. at 27. Ms. Purpura also acknowledged that
CYS did not request that a court direct Father to complete parenting classes
at the first permanency review hearing following Mother’s death. Id. at 27-
28. According to Ms. Purpura, Father was directed to complete parenting
classes at the October 2020 permanency review hearing and he started taking
the classes at Concern only after CYS filed the termination petition. Id. at 36-
27.
-5-
J-S26013-21
Moreover, Ms. Purpura readily conceded that the relationship between
Father and Grandmother was bad. Id. at 29. Ms. Purpura acknowledged that
Grandmother blamed Father for Mother’s death, complained to CYS that
Father had not attempted to contact Child since 2020, and made a referral to
CYS against Father so that he would never be allowed around Child. Id. at
30. Specifically, Grandmother accused Father of child pornography in July and
August 2020. Id. at 31, 49. Ms. Purpura admitted that given the relationship
between Father and Grandmother, it was understandable that Father would
“be reluctant to be overheard by or observed by” Grandmother. Id. at 32. In
fact, even though Father was invited to have his supervised visits with Child
at CYS office or Vision Quest, he declined the invitation and chose to be
supervised by Grandmother. Id. at 39. Ms. Purpura testified that Father was
“happy with [Grandmother] to continue supervising his visits” and that he “did
not ask for a change in who supervised the visits” until after CYS filed the
termination petition. Id. at 39-40.
Ms. Purpura clarified that Father was in substantial compliance at the
May 13, 2020 permanency review hearing, but only in minimal compliance at
the October 19, 2020 hearing. Id. at 32-34. She admitted that Father
secured safe and stable housing on November 1, 2020, a few days prior to
CYS’s filing of the termination petition, complying with the October 2020
permanency review recommendations. Id. at 34, 38.
-6-
J-S26013-21
CYS next presented the testimony of Ms. Bellanca, who testified that
CYS chose to file the termination petition against Father because CYS was
concerned that
[T]hroughout the case [Father] never stepped forward to actually
take custody of [Child] or be involved as a parent. He had very
limited contact with her throughout the life of the case. And even
during the first period of time that she was in care, he had stated
he wanted custody to go to [Mother] . . . and he didn’t care to
take on that role as a full-time parent.
Id. at 43-44. Ms. Bellanca, however, remarked that Father generally was
cooperative with CYS and kept in contact. Id. at 44. Additionally, she
remarked that CYS was not concerned with Father’s engagement with services
because he “had been cooperative with services.” Id. According to Ms.
Bellanca, Father wanted Child to reside with Grandmother and for
Grandmother to have primary physical and shared legal custody of Child. Id.
at 45-46. However, Ms. Bellanca testified that Grandmother wanted to adopt
Child and did not want to share custody with Father. Id. at 46.
On cross-examination, Ms. Bellanca acknowledged that Grandmother
accused Father of child pornography towards the end of summer and that,
following an investigation, those accusations were determined to be
unfounded. Id. at 49. Yet, despite the accusations being unfounded,
according to Ms. Bellanca, Grandmother continues to believe “just because
there wasn’t enough evidence to have it be indicated, she still believes the
allegations are true.” Id.
-7-
J-S26013-21
On February 18, 2021, Father moved to dismiss CYS’s termination
petition. On February 19, 2021, GAL filed a letter brief opposing Father’s
motion to dismiss. On the same day, CYS also filed a brief opposing the
motion to dismiss. On April 1, 2021, the orphans’ court granted Father’s
motion to dismiss and denied CYS’s termination petition under Section
2511(a)(1) and (2).2 CYS timely appealed. Both CYS and the orphans’ court
complied with Pa.R.A.P. 1925.
On appeal, CYS presents a single issue for our review.
[I.] WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT
CHILDREN AND YOUTH DID NOT MEET ITS BURDEN UNDER 23
PA. C.S.A. §§ 2511(A)(1) AND (2) TO OVERCOME NATURAL
FATHER’S MOTION TO DISMISS, AS THE CLEAR AND
CONVINCING EVIDENCE PRESENTED ESTABLISHED THAT THE
MINOR CHILD HAS BEEN DEPENDENT SINCE JANUARY OF 2019,
THE NATURAL FATHER HAS MADE NO SIGNIFICANT EFFORT TO
MAINTAIN CONTACT WITH THE MINOR CHILD OR PERFORM
PARENTAL DUTIES FOR THE MINOR CHILD AND THROUGH THE
NATURAL FATHER’S ACTIONS AND STATEMENTS HAS EVIDENCED
NO DESIRE OR INTENT TO EXERCISE ANY SIGNIFICANT
PARENTAL CARE OR PERFORM PARENTAL DUTIES FOR THE MINOR
CHILD IN THE FUTURE.
CYS Brief at 6 (capitalization in original).
When we review an orphans’ court’s decision to grant or deny a petition
to involuntary terminate parental rights, we must accept the findings of fact
____________________________________________
2 Because the orphans’ court denied CYS’s termination petition under
subsection (a), it declined to address subsection (b), the needs-and-welfare
analysis. See In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (“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)[.]”).
-8-
J-S26013-21
and credibility determinations of the orphans’ 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 [orphans’] 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 [orphans’] court’s decision, the decree must stand.” In re R.N.J., 985
A.2d 273, 276 (Pa. Super. 2009) (citation omitted). We may not reverse
merely because the record could support a different result. T.S.M., 71 A.3d
at 267. We give great deference to the orphans’ courts “that often have first-
hand observations of the parties spanning multiple hearings.” Id. Moreover,
“[t]he [orphans’] 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 involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d at 511.
-9-
J-S26013-21
In this case, the orphans’ court denied CYS’s petition to terminate
Father’s parental rights to Child pursuant to subsection 2511(a)(1) and (2),
which provide:
(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 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.
23 Pa.C.S.A. § 2511(a)(1), (2).
We first address CYS’s claim that the orphans’ court abused its discretion
in denying the termination petition under subsection (a)(1). In this regard,
CYS argues that Father failed to perform parental duties during the six months
preceding the filing of the termination petition.
With regard to Section 2511(a)(1), this Court has observed:
To meet the requirements of this section, “the moving party must
produce clear and convincing evidence of conduct, sustained for
at least the six months prior to the filing of the termination
petition, which reveals a settled intent to relinquish parental claim
to a child or a refusal or failure to perform parental duties.” In re
Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re
Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The
court must then consider “the parent’s explanation for his or her
conduct” and “the post-abandonment contact between parent and
- 10 -
J-S26013-21
child” before moving on to analyze Section 2511(b). Id. (quoting
In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
92 (1998)).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the
development of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.
Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200(2005) (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super.
2003), appeal denied, [] 859 A.2d 767 (2004)). Rather,
“[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).
In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).
Instantly, upon our review of the record and the relevant case law, we
conclude that the orphans’ court accurately and thoroughly addressed the
merits of CYS’s argument under subsection (a)(1). Orphans’ Court Opinion,
5/27/21, at 6-11. CYS failed to establish that Father refused to perform
parental duties during the six months preceding the filing of the termination
petition on November 3, 2020. The evidence established that Father not only
remained in contact with Child until at least July 18, 2020, but also brought
her gifts on June 30, 2020. As a result, Father did not fail to perform parental
duties “for a period of at least six months.” Additionally, the court found that,
even though Father’s visitations were sporadic, the COVID-19 pandemic
pervaded from March 2020 up until, and continuing after, the filing of the
termination petition in November 2020 and, as a result, affected Father’s
visitations with Child. Id. at 7, 9. The court reasoned:
- 11 -
J-S26013-21
The COVID-19, pandemic took [a] toll on the entire world in 2020
at which point only necessary trips outside of the, home was
strongly recommended. The [c]ourt will take notice that the
pandemic occurred throughout the majority of the child’s
dependency. Father’s visits with [C]hild did not remain, “in
person” but had to continue by video. Due to the young age of
[C]hild at two (2) years old, it was difficult for Father to interact
with [C]hild on video. According to Ms. Bellanca, over a period of
one month, Father was not satisfied with the video calls with
[C]hild while she was in the [G]randmother’s residence. Ms.
Bellanca stated that [C]hild was not participating in the video.
[CYS] had to advise [G]randmother to assist [C]hild in
participating in the video call with her Father. Thus, this [c]ourt
must consider the barrier of Covid-19 restrictions as it relates to
video conference visitation rather than having an “in person” visit
with a child of such a young age. . . . But for the Covid-19
restrictions discouraging “in person” contact during the majority
of the case, and this [c]ourt’s global order restricting in-person
visitation between households, Father could have had more “in
person” contact with his daughter prior to the filing of the petition
to terminate Father’s parental rights. Had [C]hild been older and
more mature in interacting with Father on video, video calls as a
means of contact would most probably not have been an issue.
Id. at 9-10. Moreover, the orphans’ court considered Father’s relationship
with Grandmother and specifically deemed her unfounded accusations of child
pornography against him as a reason for Father’s hesitation to visit Child
during the late summer months. Id. at 7-8. Accordingly, the orphans’ court
did not abuse its discretion in granting Father’s motion to dismiss and denying
CYS termination petition under subsection (a)(1).
We now address CYS’s contention under subsection (a)(2). We have
explained that the moving party must produce clear and convincing evidence
with respect to the following elements to terminate parental rights pursuant
to Section 2511(a)(2): (1) repeated and continued incapacity, abuse, neglect
- 12 -
J-S26013-21
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. In re Adoption of M.E.P.,
825 A.2d 1266, 1272 (Pa. Super. 2003).
Pursuant to Section 2511(a)(2), parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D.,3 797 A.2d 326, 340 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness regarding
the necessity or availability of services, may properly be rejected as untimely
or disingenuous. Id. Further, the grounds for termination of parental rights
under Section 2511(a)(2), 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. Id. at
337.
Here, as with (a)(1), we conclude that the orphans’ court accurately and
thoroughly addressed the merits of Appellant’s argument under subsection
(a)(2). Orphans’ Court Opinion, 5/27/21, at 12-15. The orphans’ court
reasoned:
____________________________________________
3 Although not relevant to the disposition of this appeal, the Supreme Court
recently overruled on other grounds A.L.D. in In re S.K.L.R., __ A.3d __,
2021 WL 3624786 at *12 (Pa. filed August 17, 2021).
- 13 -
J-S26013-21
In the case at bar, the evidence adduced at trial does not support
the contention that Father has displayed a repeated and continued
incapacity to perform parental duties for [Child]. The conditions
which gave rise to placement were parental substance abuse,
domestic violence between natural parents and mental health
issues. Father was ordered to remain sober, submit to random
urinalysis, maintain or obtain safe and stable housing and
complete parenting services of his own choice.
On cross examination, Ms. Purpura testified that a May 13, 2020
[p]ermanency [o]rder indicates that Father was in substantial
compliance with his court ordered services. Ms. Purpura further
admitted that at the time of the filing of the petition to terminate
parental rights, the only thing that [CYS] was concerned with was
Father’s ability to obtain safe and stable housing. Indeed, Father
did secure same on November 1, 2020 prior to the filing of the
petition to terminate his parental rights. Ms. Purpura testified that
she had the opportunity to observe Father’s home and inspect it
and found it to be an appropriate placement for [C]hild. Ms.
Purpura stated the Father was also ordered to attend parenting
education courses and to continue with his visits. Ms. Purpura
testified that Father began engaging in parenting services with a
provider named “Concern.” Ms. Bellanca also testified that Father
was cooperative with the services. Based upon the testimony of
the caseworker and casework supervisor, Father had remedied his
issues which led [Child] to placement. Based on the lack of
evidence presented by [CYS], the [c]ourt does not find that [CYS]
presented clear and convincing evidence that the conditions which
led to the removal or placement of [Child] continue to exist with
respect to Father or that he has not remedied any incapacity
within a reasonable amount of time.
Id. at 12-13 (record citation omitted).4 Accordingly, in light of the evidence
adduced at the termination hearing, the orphans’ court did not abuse its
____________________________________________
4 The orphans’ court also found that CYS failed to offer a reasonable
explanation why it decided to file a termination petition on November 3, 2020
after explicitly representing to the hearing officer at the October 19, 2020
permanency review hearing that it would not be doing so. Orphans’ Court
Opinion, 5/27/21, at 14. The court found that it “is appalled that [CYS] would
explicitly represent to the Hearing Officer that [CYS] would not be filing a
(Footnote Continued Next Page)
- 14 -
J-S26013-21
discretion in granting Father’s motion to dismiss and denying CYS relief under
subsection (a)(2). We, therefore, affirm the orphans’ court’s April 1, 2020
decree. We further direct that a copy of the orphans’ court’s May 21, 2021
opinion be attached to any future filings in this case.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/09/2021
____________________________________________
petition to terminate Father’s parental rights due to Father engaging in
services and securing adequate housing and then proceed to file a petition to
the contrary two weeks thereafter.” Id. The orphans’ court further found:
The Hearing Officer’s recommendation based on [CYS’s]
representation was adopted as a court Order. A court [o]rder is
entered for a reason. Parties present their positions in [c]ourt and
after a hearing a court [o]rder is entered. A court order is not to
be taken lightly and disregarded without cause. Had [CYS]
believed that the [o]rder was entered by mistake, the agency
needed to immediately file a petition to modify the [c]ourt Order
and not file a petition to the contrary as if the court [o]rder never
existed.
Id. at 14.
- 15 -
Circulated 08/30/2021 02:53 PM