In the Int. of: G.M.S., a Minor ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.M.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: S.S., FATHER : No. 1518 MDA 2021
Appeal from the Decree Entered November 1, 2021
In the Court of Common Pleas of Berks County
Orphans' Court at No(s): 87597
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: MAY 25, 2022
Appellant, S.S. (“Father”), appeals from the decree entered in the Berks
County Court of Common Pleas, granting the petition of Appellee, Berks
County Children and Youth Services (“CYS”), for involuntary termination of
Father’s parental rights to his minor child, G.M.S. (“Child”). We affirm.
The relevant facts and procedural history of this appeal are as follows.
Child was born in 2012. When Child was two years old, her parents could not
care for her, and Child went to live with maternal relatives. In 2016, Father
pled guilty to various offenses related to an incident of domestic violence
against C.E.J. (“Mother”). Father remains incarcerated for these convictions,
but he will reach his maximum sentence in July 2022.
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* Former Justice specially assigned to the Superior Court.
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In 2020, Child resumed living with Mother, who has a history of drug
abuse.
On July 22, 2020, [CYS] filed an emergency petition for
custody of the Child. As a result, the [court] temporarily
transferred custody of the Child to [CYS]. On July 29, 2020,
[the court] conducted an adjudication and dispositional
hearing. Following that hearing, [the court] transferred
legal and physical custody to [CYS] for placement purposes.
[The court] also ordered Mother to comply with certain
services, treatment, and substance testing. [The court]
found aggravated circumstances existed in regard to
Mother, as she had previously had [her parental] rights
involuntarily terminated to another child (who would be a
half-sibling to the Child).
Father was incarcerated at the time [and] did not attend the
July 29, 2020 hearing and [the court’s] order called for a
plan for services for Father to be developed upon his release
from incarceration. It was not until [the court] issued a
subsequent order on December 23, 2020 (following a
permanency review hearing) where Father was included to
comply with all recommendations of [CYS].
The trial court expanded the initial list of obligations through
subsequent orders entered in connection with the
dependency proceedings as a result of Father’s continued
failure to make suitable progress. Among other things, the
trial court ordered Father to:
(a) Participate in casework sessions through [CYS]
and comply with any recommendations;
(b) Sustain a stable lifestyle, including appropriate
housing and a sufficient, legal source of income;
(c) Exhibit stable mental health and participate in
any recommended evaluations and treatment;
(d) Exhibit a stable, clean and sober lifestyle, and
participate in any recommended evaluations and
drug/alcohol treatment and random urine screens as
scheduled;
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(e) Exhibit a safe and violence-free lifestyle,
participate in any recommended evaluations and
treatment; and
(f) Exhibit appropriate parenting skills, and
participate in parenting education.
As set forth in greater detail below, Father failed to comply
with services and/or make sufficient progress to permit
reunification with the Child. As such, the Child remained in
the custody of [CYS] for approximately seven consecutive
months before [CYS] filed its petitions to terminate Mother
and Father’s parental rights….
(Trial Court Opinion, filed January 13, 2022, at 3-4) (internal footnotes and
some capitalization omitted).
On March 1, 2021, CYS filed petitions for involuntary termination of
Mother and Father’s parental rights. The court conducted termination
hearings on October 25 and 29, 2021. At the hearings, the court received
testimony from Mother, Father, Child’s therapist, and the CYS case worker.
On November 1, 2021, the court entered a final decree terminating Father’s
parental rights.1 Father timely filed a notice of appeal and concise statement
of errors on November 23, 2021.
Father now raises two issues for this Court’s review:
Did the trial court err in finding that [CYS] met its burden
for termination of [Father’s] parental rights under 23
Pa.C.S.A. [§] 2511(a)(1), (2), or (5), despite credible
evidence presented by [Father]?
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1The court also involuntarily terminated Mother’s parental rights, but she is
not a party to the current appeal.
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Did the trial court err by finding that [CYS] established by
clear and convincing evidence that the emotional needs and
welfare of [Child] would be served by termination of
[Father’s] parental rights?
(Father’s Brief at 7).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
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the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
CYS filed a petition for the involuntary termination of Father’s parental
rights on the following grounds:
§ 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:
* * *
(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
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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)(2), (b). “Parental rights may be involuntarily
terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P., supra
at 1117.2
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 … 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Father’s issues are related, and we address them together. Regarding
Section 2511(a)(2), Father contends that his incarceration alone is not
determinative of his capacity to parent Child. Father insists that he will be
released from prison in July 2022, and he has already planned for a life with
Child after incarceration.
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2CYS also sought the involuntary termination of Father’s parental rights under
Section 2511(a)(1) and (5), but we need only analyze Section 2511(a)(2) for
purposes of this appeal.
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Although the court found that Father failed to demonstrate an ability to
follow through with court-ordered obligations, Father cites the CYS
caseworker’s testimony that she referred Father for one service: parenting
classes. Father claims that “he immediately signed up for parenting courses
in the prison but, due to the COVID-19 outbreak, no courses were offered and
he was placed on a waiting list.” (Father’s Brief at 22). Father complains that
CYS did not attempt “to contact the prison to discuss what services [Father]
had completed before the Child came into care, or to discuss the prison’s
ongoing screenings for mental health and sobriety.” (Id. at 23). Father also
emphasizes his own testimony that he completed additional coursework for
anger management, domestic violence, and mental health and wellness
recovery. Thus, Father disputes the court’s conclusion about his ability to
comply with court orders.
Regarding Section 2511(b), Father asserts that Child “felt some clear
attachment to [Father]; her second foster family indicated that [Child] talked
about him … with an enthusiasm that made them uncomfortable.” (Id. at
25). Father argues that CYS did not actually investigate whether Child would
benefit from having contact with him, and Child’s caseworker and therapist
possessed a clear bias in favor of adoption. Father further argues that “in the
rush to have the Child adopted, [CYS] and its allied professionals have … failed
to assess her needs and welfare.” (Id. at 26). Father concludes that CYS
failed to prove that he lacks the capacity to parent, and the court erred in
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terminating his parental rights. We disagree.
“The bases 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.” In re S.C.B., 990
A.2d 762, 771 (Pa.Super. 2010). Under Section 2511(a)(2), “the petitioner
for involuntary termination must prove (1) repeated and continued incapacity,
abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal
caused the child to be without essential parental care, control or subsistence;
and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super.
1998).
“Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind … that the child’s need for
consistent parental care and stability cannot be put aside or put on hold[.]”
Interest of K.M.W., 238 A.3d 465, 474 (Pa.Super. 2020) (en banc) (quoting
In re E.A.P., 944 A.2d 79, 82-83 (Pa.Super. 2008)). “The focus is on whether
the parent utilized resources available while in prison to maintain a
relationship with his … child. An incarcerated parent is expected to utilize all
available resources to foster a continuing close relationship with his …
children.” In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal
denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).
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“Importantly, a parent’s ‘recent efforts to straighten out [his] life’ upon release
from incarceration does not require that a court ‘indefinitely postpone
adoption.’” Interest of K.M.W., supra at 474 (quoting In re Z.P., supra at
1125).
Under Section 2511(b), the court must consider whether termination
will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. at 520 (internal citations omitted). “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 (internal citations omitted). “The statute
permitting the termination of parental rights outlines certain irreducible
minimum requirements of care that parents must provide for their children,
and a parent who cannot or will not meet the requirements within a reasonable
time following intervention by the state, may properly be considered unfit and
have his … rights terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super.
2001).
Instantly, the court received testimony from Lauren Howard, the CYS
caseworker. Ms. Howard testified about the court-ordered services that Father
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needed to utilize following the December 22, 2020 permanency review
hearing. (See N.T. Hearing, 10/29/21, at 137). When asked whether Father
had engaged in any of the services, Ms. Howard responded:
The only service that I’m aware of is that he reported that
he was doing parenting education classes where he’s
incarcerated, but I have received no documentation that
that’s been completed.
(Id.)
Father’s testimony conflicted with Ms. Howard’s claim. Specifically,
Father stated that he had complied with all court-ordered services:
[CYS] asked me to go through a mental health evaluation,
a drug and alcohol evaluation, a domestic violence group, a
violence group, to demonstrate a sober living. I know
everything off the top of my head because I made sure I
checked all of that off. A parenting class, also. The only
thing I haven’t completed, and that’s due to COVID-19—
they shut down classes—is the parenting, and right now I’m
currently enrolled in that, but I just have to wait until things
pick up, but by that time I’m going to be on the street.
(N.T. Hearing, 10/25/21, at 50-51). Father added that he obtained certificates
memorializing his completion of this coursework, and he sent the relevant
transcripts to Ms. Howard. (See id. at 59-60).
Observing this conflicting testimony, the court noted that “[n]othing
would indicate such certificates were ever received by Ms. Howard or anyone
at [CYS], nor were any such certificates offered as evidence by Father’s
counsel at the termination hearing.” (Trial Court Opinion at 6). Consequently,
the court credited Ms. Howard’s testimony. (See id.) We reiterate that the
trial court is the sole determiner of the credibility of witnesses, and all conflicts
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in testimony are resolved by the finder of fact. See In re Z.P., supra.The court also received testimony from Lynette Nisley, Child’s therapist
since November 2020. Ms. Nisley, who testified as an expert in the field of
attachment and trauma therapy for children, provided insight regarding
Child’s relationship with Father. Ms. Nisley explained that Child has
experienced significant loss and trauma due to “multiple moves among family
members, not being with her biological parents, [and] placement in foster
care.” (N.T. Hearing, 10/25/21, at 16). When their therapy sessions
commenced, Child “did not really have any memory” of Father.3 (Id.) In
March 2021, Ms. Nisley and Child reviewed a packet of cards and letters that
Father had sent to Child by way of CYS. (See id.) Ms. Nisley described Child’s
reaction to the letters as follows:
As I was reading through the letters that he sent, there were
times when [Child] would shake her head and say, “That’s
a lie,” and especially when he was saying things like he’s
going to come back for her and he loves her. She would—
she got irritated and didn’t feel like she believed or trusted
what he was saying in the letters.
(Id. at 17).
Ms. Nisley admitted that Father expressed a desire to communicate with
Child. Child, however, “was not interested in having any contact with him.”
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3 Father testified that he has not seen Child since she was three years old.
(See N.T. Hearing, 10/25/21, at 50). Although Father expressed a desire to
have Child visit him at the prison, in-person visits could not occur due to the
prison’s COVID-19 protocols. (Id. at 46).
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(Id. at 28). Specifically, Child was upset that Father “had resisted agreeing
to her move earlier in the spring to [a] pre-adoptive home … and [Child] was
concerned about him interfering with her being able to be adopted.” (Id.)
Despite Child’s feelings, Ms. Nisley contacted Father’s prison and offered to
set up a phone call for Father to discuss Child’s treatment. (See id.) Father
did not respond to Ms. Nisley’s offer. (Id.)
Further, Ms. Nisley opined that Child had made progress in therapy, and
there was a “dramatic improvement in terms of [Child’s] ability to regulate
her emotions.” (Id. at 17). Nevertheless, such progress is “a very fragile
thing” for Child, who still lacks “that sense of trust and security in her life that
she’s going to be okay and that she is going to be safe and stable.” (Id. at
18). Ms. Nisley and Child had discussed the termination of Mother and
Father’s parental rights, which Child did not oppose:
[Child] wants very much to be able to stay in the current
home. Because of all the transition she has had, she has a
lot of anxiety about having to move somewhere else. And
honestly, from a treatment—from a trauma perspective, she
has already experienced many attachment losses, and I feel
like it is very important for her not to have an additional
attachment loss.
(Id. at 20).
The court reviewed the testimony from the termination hearings and
acknowledged that Father will be released from prison in July 2022. (See
Trial Court Opinion at 5). Rather than focusing on Father’s incarceration,
however, the court emphasized Father’s absence from Child’s life before his
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incarceration:
The last time Father resided with the Child was sometime in
2014. Even before coming into the custody of [CYS], the
Child’s life was unstable.
* * *
Father does not deny he was more apparition than
substance in the Child’s life. He further admits he is [in] no
position to provide for the Child currently. Father does,
however, say he is trying to be in a better position to help
the Child. He told the trial court he’s “done everything that
he can” to be in contact with the Child and develop a
relationship. These efforts, since Father has been
incarcerated, would appear to be having written letters to
the Child.
* * *
While Father presents himself as optimistic about the future,
he glosses over the fact that even before being incarcerated
in 2017, he had not [been] living with or caring for the Child
for approximately three years. This issue is not lost upon
the Child, who expressed in no uncertain terms to
caseworkers, therapists, and directly to the trial court that
she desires permanency and wishes to be adopted by her
current resource family. The Child said she does not wish
to leave her current home. She is anxious for the
dependency process to be over and bluntly stated she wants
no contact with Father.
(Id. at 5, 8). We accept the court’s analysis, which is supported by the record.
Contrary to Father’s assertions, CYS did not “rush” to have Child adopted.
Rather, Child’s therapy sessions have given her the opportunity to process
feelings for Father, who Child never really knew. Despite Father’s offer to
open a line of communication, Child repeatedly expressed her wish to remain
in the pre-adoptive home.
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On this record, the court did not err in determining that Father’s
incapacity or neglect caused Child to be without essential parental care, and
the causes of the incapacity or neglect cannot or will not be remedied. See
Interest of Lilley, supra. The court correctly observed that Father’s parental
deficiencies predate his incarceration, and Father’s plan to straighten out his
life upon his release from incarceration does not require an indefinite
postponement of the adoption that Child seeks. See Interest of K.M.W.,
supra. Additionally, terminating Father’s parental rights would not destroy
an existing, necessary, and beneficial relationship for Child. See In re Z.P.,
supra. Based upon the foregoing, the record supports the court’s conclusion
that clear and convincing evidence supported termination of Father’s parental
rights under Sections 2511(a)(2) and (b). Id. Consequently, we affirm the
decree terminating Father’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2022
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