In the Interest of: B.G.H., a Minor

J-S44018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.G.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: K.G., FATHER
No. 586 EDA 2017
Appeal from the Decree February 6, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000585-2015, CP-51-DP-0002503-2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: Filed August 4, 2017
K.G. (“Father”) appeals from the trial court’s decree entered on
February 6, 2017, which granted the petition filed by the Philadelphia
Department of Human Services (“DHS”) to involuntarily terminate his
parental rights to S.G. a/k/a B.G.H. (“Child”), born in December of 2013,
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption
Act, 23 Pa.C.S. §§ 2101-2938. For the reasons that follow, we affirm.
The trial court summarized the facts and procedural history of this
case as follows:
On December 15, 2013, Child’s family became known to
[DHS] through a General Protective Services (“GPS”) report
alleging that Child’s mother (“Mother”) tested positive for
marijuana during her first prenatal appointment and that Mother
tested positive for marijuana at Child’s birth1. The GPS Report
also alleged that Mother had a history of depression and that
Father and Mother were not prepared to provide care for Child.
On December 17, 2013, DHS attempted to conduct a home visit;
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however, Father was not present at his residence, a hotel room
located at the Parker-Spruce Hotel. On December 18, 201[3],
DHS met with Father at the hotel to conduct a home visit. DHS
observed inadequate baby supplies for the infant Child. The
family had just two blankets and a bassinette. The hotel room
had no refrigerator or stove. Father and Mother had been living
at the hotel for over one year. Thereafter, DHS learned that
Father was found guilty of indecent sexual assault of a person
less than 13 years of age on October 15, 2012 and for failure to
comply with registration of sexual offender requirements under
Meghan’s [sic] Law. Father was ultimately incarcerated as a
result of a conviction for not registering in compliance with
Meghan’s [sic] Law requirements.
1
The parental rights of Mother were terminated at
the same termination hearing on February 6, 2017.
Mother has not filed an Appeal.
On December 19, 2013, DHS obtained an Order of
Protective Custody (“OPC”) for Child and placed Child in foster
care. At the adjudicatory hearing on December 30, 2013,
Mother and Father appeared before the Honorable Jonathan
Irvine and the Child was adjudicated dependent. On August 2,
2015, the Community Umbrella Agency (“CUA”) developed a
Single Case Plan (“SCP”). The objective for Child was to return
to parent or guardian. The objective for Father was to resolve
his legal issues.
Trial Court Opinion, 4/28/17, at 2-3 (internal citations omitted) (footnote in
original).
On August 21, 2015, DHS filed a petition to terminate Father’s
parental rights to Child. On February 6, 2017, the trial court held a hearing
on the petition. At the conclusion of the hearing, the trial court involuntary
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terminated Father’s parental rights.1 Father filed a timely notice of appeal,
along with a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b) on February 12, 2017. The trial court
filed its opinion on April 4, 2017.
On appeal, Father raises the following issues for our review:
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1
We are cognizant of the Pennsylvania Supreme Court’s recent decision in
In re Adoption of L.B.M., wherein the author of the lead opinion,
Justice Wecht, stated that 23 Pa.C.S. § 2313(a) requires the trial court to
appoint counsel for a child in a termination-of-parental-rights case, and the
failure to do so is not harmless error. In part II-B of the lead opinion,
Justice Wecht concluded that a trial court is required to appoint counsel to
represent a child’s legal interests even when the child’s guardian ad litem
(“GAL”), who is appointed to represent the child’s best interests, is an
attorney. Justice Wecht would hold that the interests are distinct and
require separate representation. However, four members of the Court
disagreed with this strict application of Section 2313(a). Rather, they
opined, in various concurring and dissenting opinions, that separate
representation would be required only if the child’s best interests and legal
interests conflicted.
We note that after publication, In re Adoption of L.B.M., 156 A.3d
1159 (Pa. 2017), was corrected and superseded on May 23, 2017, by In re
Adoption of L.B.M., ___A.3d ___, 2017 WL 2257203 (Pa. 2017), which,
inter alia, clarified that Part II-B of the opinion was not precedential and did
not overrule In re K.M., 53 A.3d 781 (Pa. Super. 2012) in its entirety.
Relevant to our discussion, in K.M. this Court held, inter alia, that 23 Pa.C.S.
§ 2313(a) did not require appointment of a separate attorney when a GAL,
who was an attorney, had been appointed and capably represented both the
legal and best interests of the child. The non-precedential Part II-B of
Adoption of L.B.M. does not disturb this portion of K.M.
In the present case, Father did not raise before the trial court any
concerns that would have created a need for independent legal counsel for
Child, nor did he make any claims that the GAL did not properly represent
Child’s legal and best interests. In fact, we observe that the GAL, who is
also an attorney, well represented Child on both fronts, and that Child’s legal
and best interests were not in conflict.
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1. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of [F]ather, K.G., pursuant to
23 Pa.C.S. [§] 2511(a)(1) where [F]ather presented evidence
that he substantially met his FSP goals and tried to perform his
parental duties.
2. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of [F]ather, K.G., pursuant to
23 Pa.C.S. [§] 2511(a)(2) where [F]ather presented evidence
that he has remedied his situation because he took parenting,
drug treatment, sex offender and violence prevention programs.
Father has the present capacity to care for his child.
3. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of [F]ather, K.G., pursuant to
23 Pa.C.S. [§] 2511(a)(5) where evidence was provided to
establish that the child was removed from the care of the father
and mother, and that [F]ather is now capable of caring for his
child.
4. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of [F]ather, K.G., pursuant to
23 Pa.C.S. [§] 2511(a)(8) where evidence was presented to
show that [F]ather is now capable of caring for his child since he
has completed parenting and is receiving treatment for drug and
alcohol, violence prevention and sex offender. Additionally,
[F]ather will have housing upon his release from prison which
will be appropriate housing for his child.
5. Whether the trial court erred and/or abused its discretion
by terminating the parental rights of [F]ather, K.G., pursuant to
23 Pa.C.S. [§] 2511(b) where evidence was presented that
established that [F]ather had visited his child before he was
incarcerated. Father made every effort to keep in contact with
his child but was denied visits.
Father’s Brief at 7.2
____________________________________________
2
Father framed his issues somewhat differently in his concise statement, but
we find them sufficiently preserved for our review.
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Our standard of review for cases involving the termination of parental
rights is as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. 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 J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013) (quoting In re R.N.J.,
985 A.2d 273, 276 (Pa. Super. 2009)). “The trial court is free to make all
credibility determinations, and may believe all, part, or none of the evidence
presented.” Id. Importantly, “[i]f the findings of the trial court are
supported by competent evidence, we will affirm even if the record could
also support the opposite result.” Id.
When deciding a case under 23 Pa.C.S. § 2511, the trial court must
engage in a bifurcated process. In re B.C., 36 A.3d 601, 606 (Pa. Super.
2012). In that analysis:
[t]he initial 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 at least one of the
nine statutory grounds in section 2511(a). If the trial court
determines that the parent’s conduct warrants termination under
section 2511(a), then it must engage in an analysis of the best
interests of the child under section 2511(b), taking into primary
consideration the developmental, physical, and emotional needs
of the child.
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Id.
Father’s first four issues challenge the termination of his rights under
Section 2511(a). We note that the trial court terminated Father’s parental
rights to Child pursuant to subsections (1), (2), (5) and (8) of Section
2511(a). Indeed, “[t]his Court may affirm the trial court’s decision
regarding the termination of parental rights with regard to any one
subsection of Section 2511(a).” In re J.F.M., 71 A.3d 992. Herein, we
focus our analysis on section 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence that the following three
conditions are met: (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. In re Adoption of
M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003); 23 Pa.C.S. § 2511(a)(2).
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. In re A.L.D., 797
A.2d 326, 337 (Pa. Super. 2002).
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Father has been incarcerated repeatedly for most of Child’s life. Our
Supreme Court addressed the relevance of incarceration in termination
decisions under subsection 2511(a)(2) as follows:
[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., 47 A.3d 817, 829 (Pa. 2012). After revisiting its
decision in In re: R.I.S., 36 A.3d 567 (Pa. 2011), regarding incarcerated
parents, our Supreme Court further stated:
[W]e now definitively hold that incarceration, while not a litmus
test for termination, can be determinative of the question of
whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether
“the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,” sufficient
to provide grounds for termination pursuant to 23 Pa.C.S. §
2511(a)(2). See e.g. Adoption of J.J., 515 A.2d [883,] 891
[(Pa. 1986)] (“[A] parent who is incapable of performing
parental duties is just as parentally unfit as one who refuses to
perform the duties.”); [In re:] E.A.P., 944 A.2d [79,] 85 [(Pa.
Super. 2008)] (holding termination under § 2511(a)(2)
supported by mother’s repeated incarcerations and failure to be
present for child, which caused child to be without essential care
and subsistence for most of her life and which cannot be
remedied despite mother’s compliance with various prison
programs). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether termination
is in the best interests of the child, considering the
developmental, physical, and emotional needs and welfare of the
child pursuant to § 2511(b). In this regard, trial courts must
carefully review the individual circumstances for every child to
determine, inter alia, how a parent’s incarceration will factor into
an assessment of the child’s best interest.
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In re Adoption of S.P., 47 A.3d at 830-831.
Father contends that because he was expecting to be released from
incarceration on February 27, 2017, and had made reasonable efforts to
achieve sobriety, the trial court’s conclusion that he was incapable of
parenting Child lacked support. Father’s Brief at 15. Father asserts that
because he “will secure appropriate housing for his family upon his release
from prison,” and he is capable of caring for Child, the trial court erred by
terminating his parental rights pursuant to subsection 2511(a)(2). Id. at
14.
The trial court found that Father’s repeated incarcerations have
impaired his ability to parent Child. Trial Court Opinion, 4/4/17, at 6.
Furthermore, the court credited the testimony of CUA caseworker, Andrew
Thayne (“Thayne”), stating:
The CUA Representative testified that Father failed to meet his
SCP objectives which were to maintain compliance with his legal
issues, to continue to participate in sex offender classes, to meet
the needs of the child, and to address drug and alcohol and
mental health issues. Specifically, these legal issues concerned
his incarceration as a registered sex offender and the follow up
therapy he needed. The CUA Representative testified that
although Father did send letters to Child, the Child was
displaying behaviors indicating that she was “terrified” to visit
the Father in prison.
Id. at 5-6 (internal citation omitted).
As we have stated many times, “[a] child’s life simply cannot be put on
hold in the hope that the parent will summon the ability to handle the
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responsibilities of parenting.” In re I.J., 972 A.2d 5, 9 (Pa. Super. 2009)
(quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super.
2003)).
Parental rights are not preserved by waiting for a more suitable
or convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs. … This 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, to wit eighteen (18) months, in which to
complete the process of either reunification or adoption for a
child who has been placed in foster care. … [A] parent desiring
to retain parental rights must exert himself to take and maintain
a place of importance in his child’s life.
In re E.A.P., 944 A.2d at 83 (internal citations omitted).
Our review of the record supports the trial court’s decision. Child was
removed from Father’s care by DHS based upon concerns regarding Father’s
drug and alcohol use, stability, housing, and criminal activity. These
problems rendered him incapable of parenting Child at the time of her
removal. Moreover, Father failed to address his mental-health concerns
throughout the life of this case, refusing to complete the court-ordered
evaluation at the Clinical Evaluation Unit (“CEU”) for a dual diagnosis
assessment. N.T., 2/6/17, at 13; DHS Exhibit 1. Further, although Father
made several efforts to achieve sobriety, he failed to appear for any random
drug screenings when he was out of prison. N.T., 2/6/17, at 13.
In the three years prior to the termination hearing, Father repeatedly
failed to comply with the sexual offender registration requirements under
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Megan’s Law for any appreciable amount of time, resulting in his nearly
continuous incarceration throughout Child’s entire lifetime. Id. at 14, 26.
Father did not regularly visit or otherwise communicate with Child, having
last seen her approximately two years prior to the termination hearing. Id.
at 15. Father has been incapable of providing parental care, control or
subsistence for Child’s physical and mental well-being, and this incapacity
persisted to the day of the termination hearing. We, therefore, find no error
or abuse of discretion in the trial court’s decision to terminate Father’s
parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(2).
We now turn to Section 2511(b), which states:
(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.
23 Pa.C.S. § 2511(b). Under Section 2511(b), we inquire whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of Child. In re C.M.S., 884 A.2d 1284,
1286-1287 (Pa. Super. 2005). “Intangibles such as love, comfort, security,
and stability are involved in the inquiry into the needs and welfare of the
child.” Id. at 1287 (citation omitted). The trial court must also discern the
nature and status of the parent-child bond, with utmost attention to the
effect on the child of permanently severing that bond. Id. The mere finding
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of a parent-child bond does not preclude termination of parental rights;
rather, the trial court must examine the status of the bond to determine
whether its termination “would destroy an existing, necessary and beneficial
relationship.” In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa. Super.
2003). “[A] court may properly terminate parental bonds which exist in
form but not in substance when preservation of the parental bond would
consign a child to an indefinite, unhappy, and unstable future devoid of the
irreducible minimum parental care to which that child is entitled.” In re
J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (emphases in original). Expert
testimony is not required for the trial court to determine if there is a positive
bond between a parent and his child. In re K.K.R.-S., 958 A.2d 529, 533
(Pa. Super. 2008).
Father asserts that because he sent cards and pictures to Child, there
is necessarily a bond between them, and termination of Father’s parental
rights “does [not] serve the child’s physical and emotional needs and
welfare.” Father’s Brief at 17-18. In assessing the bond between Father
and Child, the trial court found that Father’s instability and inability to
protect Child supported the conclusion that termination of Father’s parental
rights would be in the best interest of Child. Trial Court Opinion, 4/4/17, at
6.
The record supports the trial court’s decision. Although Father has
expressed his desire to raise Child upon his release from prison, Father has
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not been able to meet the essential needs of Child. Notably, Father testified
that he would be released from prison to a halfway house that prohibits
children. N.T., 2/6/17, at 22. Accordingly, Father’s release from prison
would not result in Father and Child’s reunification.
We likewise reject Father’s argument that because he sent cards and
pictures to Child, a parent-child bond necessarily existed between them.
Father’s gestures, standing alone, are insufficient to forge a meaningful
relationship with Child. See In re Z.P., 944 A.2d 108, 1125 (Pa. Super.
2010) (concluding that a child should not be placed in foster care indefinitely
“just because an incarcerated parent … shows interest in his child[.]”).
Indeed, the harsh reality is that Child does not even know who Father is,
and this Court has repeatedly held that a parent’s own feelings of love and
affection for a child do not prevent termination of parental rights. Id. at
1121.
Additionally, Thayne testified that Child has lived with her foster
parents since she was six days old and that a strong bond exists between
Child and her foster parents. N.T., 2/6/17, at 15. Notably, Child refers to
her foster mother as “mom” and her foster father as “Baba.” Id. at 17.
Thayne testified that Child’s foster parents provide her with a home, meet
her needs, maintain much-needed stability, and provide a parent-child
relationship. Id. at 18.
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Based on the record before us, we find no error or abuse of discretion
in the trial court’s conclusion regarding Section 2511(b) that Child’s
developmental, emotional, and physical needs and welfare are best met by
terminating Father’s parental rights. We, therefore, affirm the trial court’s
decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
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