Adoption of: R.J.M.W., Appeal of: B.S.W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF R.J.M.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: B.S.W., FATHER :
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: No. 547 WDA 2021
Appeal from the Order Entered April 8, 2021
In the Court of Common Pleas of Cambria County Orphans’ Court at
No(s): 2020-630 IVT
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 27, 2021
B.S.W. (“Father”) appeals from the Order entered on April 8, 2021, by
the Court of Common Pleas of Cambria County, which involuntarily terminated
his parental rights with respect to his child, R.J.M.W. (“Child”), born in April
2016.1 Because the record supports the decision of the Orphan’s Court, we
affirm the Order.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
We glean the following factual and procedural history from the Orphans’
Court’s findings of fact contained in the Order on appeal, and from the certified
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* Former Justice specially assigned to the Superior Court.
1 The Order also involuntarily terminated the parental rights of Child’s mother,
V.J.M.F. (“Mother”). Mother appealed the termination of her rights at Superior
Court docket number 561 WDA 2021. We address her appeal in a separate
memorandum.
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record. In July 2016, when Child was three months old, Mother and Father
were arrested for possession of illegal substances and endangering the welfare
of Child. Blair County Children Youth and Families Agency (“Agency”) obtained
emergency protective custody, and the Blair County dependency court
adjudicated Child dependent. The Agency placed Child in kinship care with
Paternal Grandmother. In June 2017, Mother and Father moved into Paternal
Grandmother’s home and Child returned to their care because they had both
met their family service plan goals, including participation in drug addiction
therapies. Court supervision ended July 2017.
However, one month later, Paternal Grandmother called the local police
department and asked for Child to be removed because Mother and Father
had relapsed and she feared for Child’s safety. Police officers found marijuana
and drug paraphernalia, including needles and spoons with residue, in the
home. Mother was arrested for probation violations; Father’s whereabouts
were unknown. The court again adjudicated Child dependent; the Agency
placed Child with Maternal Grandmother in Cambria County.2
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2 Upon Mother’s release from prison in November 2017, she, too, lived with
Maternal Grandmother. However, over the next several years, Mother
struggled with her drug addiction and mental health issues which resulted in
homelessness, financial difficulties, and criminal activity resulting in her
incarceration at the time of the termination hearing. Due to Maternal
Grandmother’s need to care for her ill husband, Child was placed in kinship
care with Mother’s sister until the summer of 2020. Cambria County CYS then
placed Child with a pre-adoptive foster family.
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In October 2017, Father pled guilty to firearms offenses that had been
charged after a stand-off with police officers. He received an aggregate
sentence of three and one-half to ten years’ incarceration. Following Child’s
adjudication of dependency, the juvenile court ordered Father to complete a
series of goals, which included maintaining a residence for at least six months,
obtaining a psychological evaluation and substance abuse assessment,
avoiding substance abuse, completing parenting classes, and avoiding
conflicts with the law.
Following a hearing, on June 24, 2020, the juvenile court entered an
Order changing Child’s permanent placement goal to adoption after finding
neither parent had complied with their placement plans.
On August 24, 2020, CYS filed a Petition to terminate the parental rights
of Mother and Father involuntarily. The Orphans’ Court conducted a hearing
on the Petition on March 15, 2021, at which time Child was nearly five years
old.3 Both Mother and Father were incarcerated at the time; each was
represented by counsel. CYS presented testimony from CYS caseworker, Chloe
Barret; CYS casework supervisor, May Popovich; JusticeWorks family resource
specialist, Brenda Hoover; psychologist, Dennis Kashurba; substance abuse
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3 Suzann Lehmier, Esq., represented Child’s legal interests and best interests
during the proceedings, which the court determined were not in conflict.
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counselor, Josh Lightner; and Bair Foundation visitation supervisor, Samantha
Eisenhuth.
Father testified on his own behalf, stating that he had completed his
substance abuse disorder program on March 5, 2021, and that he believed he
would be considered for parole in May 2021. He testified that he had tried to
work with CYS to have visits with Child at the prison, but due to CYS changing
caseworkers and sending the wrong paperwork to the prison, he has not seen
Child, even virtually, since his incarceration in October 2017. He also testified
that he sent Child a Christmas present in 2019 as well as Easter and birthday
cards. He stated that he planned to live with his mother upon his release and,
although he does not have a job, he plans to obtain a job utilizing the trade
certifications he obtained in prison. On both direct and cross-examination,
Father acknowledged that he no longer has a bond with Child. He also
acknowledged that he has been involved with the criminal justice system since
2004.
Paternal Grandmother testified, inter alia, that Father and Child could
live with her when Father got out of prison and that she has been in contact
with people who may be able of offer Father work.
Following the hearing, on April 8, 2021, the Orphans’ Court entered an
Order involuntarily terminating Father’s parental rights to Child pursuant to
23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Thereafter, Father filed timely
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a Notice of Appeal and Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
ISSUES ON APPEAL
Father raises the following issues for our review:
A. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in determining [CYS] sustained its
burden of proving the termination of [Father’s] parental rights is
warranted under Sections 2511(a)(1), 2511(a)(2), 2511(a)(5),
and/or 2511(a)(8) of the Adoption Act?
B. Even if this Court concludes [CYS] established statutory
grounds for the termination of Father’s parental rights, whether
the [orphans’ c]ourt nevertheless erred as a matter of law and/or
manifestly abused its discretion in determining [CYS] sustained its
additional burden of proving the termination of Father’s parental
rights is in the best interests of [] Child?
Father’s Brief at 8 (suggested answers omitted).
LEGAL ANALYSIS
When reviewing a decree involuntarily terminating parental rights, this
Court must accept the findings of fact 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 record supports the factual findings, appellate courts then
determine if the Orphans’ Court made an error of law or abused its discretion.
Id. Where the competent record evidence supports the court’s findings, we
must affirm the Orphans’ Court decree even though the record could support
an opposite result. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa.
1994).
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“The [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) (citations omitted). This Court defers to the Orphans’ Court, as it often
has “first-hand observations of the parties spanning multiple hearings.” In re
T.S.M., supra at 267 (citations and quotation marks omitted). Importantly,
“[t]he court cannot and will not subordinate indefinitely a child’s need for
permanence and stability to a parent’s claims of progress and hope for the
future. Indeed, we work under statutory and case law that contemplates only
a short period of time . . . in which to complete the process of either
reunification or adoption for a child who has been placed in foster care.” In
re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006) (emphasis in
original; citations omitted).
In addressing petitions to terminate parental rights involuntarily, the
Adoption Act requires the Orphans’ Court to conduct a bifurcated analysis.
See 23 Pa.C.S. § 2511(a) and (b). The court first focuses on the conduct of
the parent, and if the party seeking termination presents clear and convincing
evidence that the parent’s conduct meets one of the grounds for termination
set forth in Section 2511(a), the court will then analyze whether termination
of parental rights will meet the needs and welfare of the child, i.e., the best
interests of the child, pursuant to Section 2511(b). The courts must examine
the existence of the child’s bond with the parent, if any, and the potential
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effect on the child of severing such bond. In re L.M., 923 A.2d 505, 511 (Pa.
Super. 2007). As this Court has emphasized, “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 his or her potential in a permanent, healthy, safe
environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004), appeal
denied, 872 A.2d 1200 (Pa. 2005) (citation omitted).
Termination Pursuant to Section 2511(a)(2)
We first conclude the Orphans’ Court properly exercised its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2). Section
2511(a)(2) provides for termination of parental rights where the petitioner
demonstrates by clear and convincing evidence that “[t]he 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. § 2511(a)(2); In re Adoption of S.P., 47 A.3d 817, 827
(Pa. 2012) (citations omitted).
The grounds for termination of parental rights under Section 2511(a)(2)
due to parental incapacity are not limited to affirmative misconduct; those
grounds may also include acts of refusal and incapacity to perform parental
duties. In re S.C., 247 A.3d 1097, 1104 (Pa. Super. 2021 (quoting In re
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Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015)). We have long
recognized that a parent is required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities. Matter of
Adoption of M.A.B., 166 A.3d 434, 443 (Pa. Super. 2017) (quoting In re
N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011)).
“[I]ncarceration is a factor, and indeed can be a determinative factor,
in a court's conclusion that grounds for termination exist under § 2511(a)(2)
where the repeated and continued incapacity of a parent due to incarceration
has caused the child to be without essential parental care, control or
subsistence and that the causes of the incapacity cannot or will not be
remedied.” In re Adoption of S.P., supra at 828. Courts will consider
“whether the parent has utilized those resources at his or her command while
in prison in continuing a close relationship with the child. Where the parent
does not exercise reasonable firmness in declining to yield to obstacles, his
other rights may be forfeited.” Id. (quoting In re: Adoption of McCray, 331
A.2d 652, 655 (Pa. 1975). Thus, at a termination hearing, the Orphans’ Court
may properly reject as untimely or disingenuous a parent’s vow to follow
through on necessary services when the parent failed to co-operate with the
agency or take advantage of available services during the Child’s dependency
proceedings. In re S.C., supra at 1105 (quoting In re Z.P., 994 A.2d 1108,
1118 (Pa. Super. 2010).
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Here, Father contends that the Orphans’ Court erred or abused its
discretion by terminating his parental rights because incarceration alone is
insufficient to support termination. Father’s Brief at 15-17. Father also argues
he was set to be paroled about two months after the termination hearing in
May 2021, that he completed a substance abuse program, psychological
evaluation, and various employment certifications while incarcerated, and that
he had plans for employment and housing upon being paroled. Id. at 17-18.
Father thus asserts that he has remedied, or will be able to remedy, any
conditions rendering him incapable of parenting Child. Id. at 19.
In its findings of fact included in the Order on appeal, the Orphans’ Court
determined Father remained incarcerated throughout Child’s dependency and
had failed to comply with his permanency plan requirements. Order, 4/8/21,
at 2-8. The Orphans’ Court credited a “Best Interest Statement” that CYS’s
casework supervisor, May Popovich, and caseworker, Chloe Barrett, prepared
and which the court admitted into evidence as Petitioner’s Exhibit 10. Id. at
10-11. That Statement indicated that Father’s poor choices and involvement
in the criminal justice system had rendered him unable to demonstrate that
he could provide appropriate care for Child “in the past, present, or in the
reasonable future.” Id. at 11 (quoting Petitioner’s Exhibit 10). Although the
court acknowledged that Father now understood his issues and wanted a
second chance whenever he gets out of prison, it observed that Child is now
five years old and has already waited long enough for her parents to make
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progress. Id. at 11. The court also found that Father and Child have no bond
and Child is bonded to her pre-adoptive foster parents and doing well in their
care. Id. at 10.
It was within the court’s discretion to conclude Child’s life should not be
held in abeyance any longer based on the speculative hope that Father, after
many years of instability and unavailability, might be released soon from
prison and will be able to provide appropriate care for her in a reasonable
time. Having reviewed the record, we conclude it supports the findings of the
Orphans’ Court that Father has not provided Child with essential parental care,
control, and subsistence necessary for her mental and physical wellbeing, and
that Father is unable to remedy the causes of her parental incapacity, neglect,
or refusal any time in the foreseeable future. Thus, Father is not entitled to
relief.
Termination Pursuant to Section 2511(b)
We also conclude, pursuant to Section 2511(b), that the Orphans’ Court
properly determined termination of Father’s parental rights would be in the
best interest of Child. With respect to Section 2511(b), the court must
consider whether termination of parental rights would best serve the child’s
developmental, physical, and emotional needs and welfare. See 23 Pa.C.S.
§ 2511(b). “In this context, the court must take into account whether a bond
exists between child and parent, and whether termination would destroy an
existing, necessary and beneficial relationship.” In re Z.P., supra at 1121.
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“In cases where there is no evidence of any bond between the parent
and child, it is reasonable to infer that no bond exists.” In re K.Z.S., 946 A.2d
753, 762-63 (Pa. Super. 2008). Matter of Adoption of M.A.B., supra at 449
It is sufficient for the Orphans’ Court to rely on the opinions of social
workers and caseworkers when evaluating the impact that termination of
parental rights will have on a child. Id. The court may equally emphasize the
safety needs of the child and may consider intangibles, such as the love,
comfort, security, and stability the child might have with the foster parent.
In re N.A.M., supra at 103. Ultimately, the concern is the needs and welfare
of a child. In re Z.P., supra at 1121.
Father avers that terminating his parental rights would not serve Child’s
needs and welfare and would have a detrimental impact on Child. Father’s
Brief at 22-23. He argues that the Orphans’ Court failed to adequately
consider the impact terminating his rights would have on Child, and that the
record lacked the evidence necessary for the court to assess this issue. Id.
at 23. Father also contends that he faced obstacles impeding his attempts at
reunification with Child but made efforts to overcome those obstacles and
maintain contact. Id. at 17-19, 23.
The Orphans’ Court found that Child has no bond with Father, as she
has not seen him since 2017. Order, 4/8/21, at 10. Indeed, Child was nearly
five years old at the time of the termination hearing and had not seen Father
for about three-and-a-half years. The court found, therefore, that termination
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of Father’s parental rights would not have a detrimental impact on Child. Id.
This finding was plainly in accord with our case law.
Our review of the record supports the Orphans’ Court’s findings. We do
not discern an error of law or abuse of discretion with respect to the court’s
conclusion. Thus, we affirm the court’s determination that the involuntary
termination of Father’s parental rights is in the best interests of Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2021
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