In the Matter of: K.M-A., etc., a Minor

J-S22004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: K. M.-A. A/K/A IN THE SUPERIOR COURT OF
K. S. M.-A., A MINOR PENNSYLVANIA
APPEAL OF: R. M., FATHER
No. 3451 EDA 2017
Appeal from the Order September 28, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
51-FN-00654-2016
CP-51-AP-0000500-2017
CP-51-DP-0001221-2016
IN THE INTEREST OF: L. M.-A. A/K/A IN THE SUPERIOR COURT OF
L. M. M.-A., A MINOR PENNSYLVANIA
APPEAL OF: R. M.-A., FATHER
No. 3456 EDA 2017
Appeal from the Order September 28, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
51-FN-00654-2016
CP-51-AP-0000501-2017
CP-51-DP-0001222-2016
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT,*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 08, 2018
R. M.-A. (Father) appeals from the September 28, 2017 orders that
granted the petitions filed by the Philadelphia Department of Human Services
(DHS) to involuntarily terminate his parental rights to K. M.-A. (born in
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* Retired Senior Judge assigned to the Superior Court.
J-S22004-18
November of 2008) and L. M.-A. (born in November of 2007) (collectively
Children).1 Additionally, the goals for Children were changed to adoption. We
affirm.
In its opinion, the trial court initially sets forth an extensive procedural
history of this case. It then discusses the testimony provided at the
termination hearing, which encompasses much of what was delineated in the
procedural history portion of the opinion. We reproduce that portion of the
opinion, which discusses the evidence presented at the termination hearing.
On September 28, 2017, this [c]ourt held Contested
Termination of Parental Rights Hearings and Goal Change
Hearings for both Children. Mother, S.C.S., attended and was
represented by counsel.[2] Father, R. M.-A., attended and was
represented by counsel.
Ms. Caitlyn Dunston, counsel for DHS called the first witness
to testify, Nadia Seum, CUA [(Community Umbrella Agency)] Case
Manager Supervisor for Turning Points for Children. She
testified[,] stat[ing] she has been the Case Manager Supervisor
for these Children since they came into care on June 20, 2016.
She stated the two Children were in the care of Maternal Aunt and
Uncle at the time because the Grandmother had passed away and
[] Children went to the Maternal Aunt and Uncle by a family
arrangement outside of DHS involvement approximately one year
prior.
Ms. Seum testified that prior to the Maternal
Grandmother[’s] caring for [] Children, they were under the care
of Father, R. M.-A. Father was arrested in May of 2014, and []
Children were cared for by the Father’s girlfriend for a short period
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1Father’s appeals were consolidated by this Court sua sponte by order, dated
December 12, 2017.
2Mother’s parental rights were involuntarily terminated following the hearing,
but she has not filed an appeal.
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of time. Then, they were cared for by Maternal Grandmother, and
finally came into the care of the current caretakers, the Maternal
Aunt and Uncle in May of 2015. DHS became involved in June
2016 and [] Children were adjudicated Dependent and have been
continuously in the care of the Maternal Aunt and Uncle since then.
Ms. Seum testified that [] Child, L. M.-A., made allegations
of sexual abuse perpetrated by her paternal uncle [R.B.] and
requires individual therapy through Child Guidance Resource
Center. She noted that the Maternal Aunt and Uncle are also
involved with [] Child’s therapy.
She further testified that Father, R. M.-A., was incarcerated
at the time [] Children were placed by DHS. The parental
objectives for Father were to complete parenting classes, and
later, upon release from prison, to have him participate in ARC
services and mental health services. She noted Father never
contacted the Agency until he was released from prison in June
2017, and he telephoned. Father stated he completed parenting
classes in prison, however, he did not provide confirmation or
proof of the completion.
Ms. Seum testified that from the time Father contacted her
agency in June 2017 until today at the court hearing, Father had
not provided an address or contact information. Today he did
provide his address. He did request to visit his Children, however,
[] Children did not want to see their Father. She noted the last
contact Father made with the agency was July 2017.
On cross-examination, Ms. Seum noted that Mother was
given as an objective to obtain domestic violence counseling
because [] Children’s Father, R. M.-A., had been physically
abusive to her. She noted there was no evidence that Father had
been abusive to his Children, however, [] Children spoke about
how they felt when their Father was aggressive. Finally, she
stated [] Children’s caretakers, Maternal Aunt and Uncle, indicated
that Father had no contact with his Children.
Rashana Rivera, CUA Case Manager, Turning Points for
Children, was the next witness to testify. She stated she last saw
[] Children in the home of Maternal Aunt and Uncle on September
19, 2017, and they were safe with all their needs being met. []
Children were excited to show her their room because they had
never had their own room before. They appeared very
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comfortable in the home they share with their sibling, K.I.T.W.[3]
Both Children stated they would like to remain in the home. L.
M.-A. refers to her Maternal Aunt and Uncle as Mom and Dad,
while K. M.-A. changes his reference to them as Mom and Dad,
and also as Auntie and Uncle. Ms. Rivera asked [] Children
whether they wanted to visit their Father, and L. M.-A. told her
she did not want to visit with him at this time. K. M.-A. stated he
would not mind visits with his Father.
Ms. Rivera testified she does not believe there is a parent-
child bond between [] Children and their Father, and opined they
would not suffer irreparable harm if Father’s parental rights were
terminated. She further opined that adoption would be in the best
interest of both Children to remain with the maternal aunt and
uncle. She noted [] Children have been in their home for a long
time, and they have a parental relationship with their aunt and
uncle. They are stable and loved in their current home.
On cross-examination by Kathleen Knese, G[ua]rdian Ad
Litem, Ms. Rivera noted that Maternal Aunt and Uncle have
attended therapy with [] Children, and had paid tuition in a private
school for [] Children. [] Children have since transferred to a
charter school and they no longer pay tuition in a private school.
[] Father was the next witness to testify. He stated he had
full legal custody of [] Children from approximately 2010 until he
was incarcerated on November 13, 2014. He further noted that
he has other [c]hildren and had offered them a stable home and
up-to-date medical care up until he was incarcerated.
Father testified he was unaware his Children were in DHS
custody until he got notification of the last court date, and he was
in prison the entire time. He pled guilty to drug charges and was
incarcerated. He then found out the custody of the Children was
given to the Maternal Grandmother, S.S., in Family Court.
Father stated he was aware of the parental objective for him
to receive parenting classes, and he presented two Certificates
from parenting classes he completed while in prison. He further
stated he was in communication with Mr. Leon and Ms. Daniels to
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3K.I.T.W. (born in December of 2013) is Mother’s child with a different father,
whose parental rights were also terminated.
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attempt to get visits with his Children, which was another parental
objective, however, he was told to wait until [] Children's lawyer
was contacted, which did not occur. He also stated he was told
he would have to wait until the [c]ourt hearing on June 5, 2017 to
discuss visitation with his Children, however he never attended
the hearing. Father further claimed to have contacted Ms. Daniels
immediately after his release from prison on June 23, 2017 and
he talked to her regularly until she left the agency. He noted he
gave her his address....
Father states he has been employed full-time at Target since
July 28, 2017, and has rented a three bedroom house where he
lives with his wife and a younger son. He desires to be reunited
with his Children and be involved with their lives. He does not
want to necessarily take them out of somewhere where they are
comfortable. In response to the testimony from the Case Worker
that his Children do not want to see him, Father noted that their
Mother painted a bad picture of him to everyone and once he is
back in their lives, they will change their mind. Father claimed
there was no domestic violence issues between him and [] Mother,
however, he did admit that at one point, there had been a Stay
Away Order against him from [] Mother.
On cross-examination by Kathleen Knese, Guardian Ad
Litem, Father noted that he recently was in jail as a result of a
parole violation. He also admitted he had two convictions for
selling drugs. Father further stated he did not believe that L. M-
A. was sexually abused by his brother.
Trial Court Opinion (TCO), 1/11/18, at 9-14 (citations to the notes of
testimony omitted).
The court then set forth the law relating to the termination of parental
rights. Based upon its findings derived from the testimony it found credible,
the court ordered the termination of Father’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1), (2) and (b) and changed the goal for each child to
adoption.
In his brief, Father raises the following issues for our review:
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1. Whether the trial court erred by terminating the parental
rights of [F]ather pursuant to 23 Pa.C.S.[] [§] 2511(a)(1)
without clear and convincing evidence of [F]ather’s intent to
relinquish his parental claim or refusal to perform his parental
duties.
2. Whether the trial court erred by terminating the parental
rights of [F]ather pursuant to 23 Pa.C.S.[] [§] 2511(a)(2)
without clear and convincing evidence of [F]ather’s present
incapacity to perform parental duties.
. . .
5. Whether the trial court erred by terminating the parental
rights of [F]ather pursuant to 23 Pa.C.S.[] [§] 2511(b) without
clear and convincing evidence that there is no parental bond
between [F]ather and [C]hildren and that termination would
serve the best interest of [] [C]hildren.
Father’s brief at 7.4
We review an order terminating parental rights in accordance with the
following standard:
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.
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4 We have not included issues #3 and #4, which relate to 23 Pa.C.S. §
2511(a)(5) and (a)(8), because the trial court did not terminate Father’s
parental rights under those two subsections.
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In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The 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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial 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). If
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result. In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). 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. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In addition, we
instructed that 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. However, in
cases where there is no evidence of a bond between a 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). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
As noted above, the trial court terminated Father’s parental rights
pursuant to section 2511(a)(1), (2) and (b). In order to affirm, we need only
agree with the trial court as to any one subsection of section 2511(a), as well
as section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). As noted previously, Father’s brief provides argument regarding four
subsections of section (a), two more than relied upon by the trial court. We
have chosen to address and analyze the court’s decision to terminate Father’s
parental rights under section 2511(a)(1) and (b), which provide:
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(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.
***
(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. § 2511(a)(1), (b).
In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided
direction relating to what considerations need to be addressed when reviewing
a trial court’s decision to terminate parental rights under various subsections
of 2511(a). Specifically, relating to subsection (a)(1), the Z.P. Court stated:
A court may terminate parental rights under Section 2511(a)(1)
where the parent demonstrates a settled purpose to relinquish
parental claim to a child or fails to perform parental duties for at
least the six months prior to the filing of the termination petition.
In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court should
consider the entire background of the case and not simply:
mechanically apply the six-month statutory provision.
The court must examine the individual circumstances
of each case and consider all explanations offered by
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the parent facing termination of his … 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, 855 (Pa. Super. 2004), appeal
denied, 582 Pa. 718, 872 A.2d 1200 (2005) (citing In re D.J.S.,
737 A.2d 283 (Pa. Super. 1999)).
In re Z.P., 994 A.2d at 1117 (emphasis in original).
In his argument relating to subsection (a)(1), Father contends that he
“never failed to perform his parental duties, nor has he indicated a settled
intent to relinquish his parental rights.” Father’s brief at 11. He asserts that
he “frequently and consistently” contacted Children while he was incarcerated,
that he sent cards and letters to Children, and that he requested that Children
visit him in prison, but that these requests were not honored. Thus, Father
claims that DHS “did not make reasonable efforts toward reunifying []
[C]hildren with [F]ather.” Id. Essentially, Father argues that his “inability to
perfectly satisfy the goals and objectives of his family service plan was caused
by a lack of reasonable efforts by [DHS]….” Id.In addition to the previously-quoted, extensive recitation of the facts of
this case, the court provided additional discussion relating to subsection
2511(a)(1) and (2), stating:
Case Manager, Nadia Seum, CUA Case Manager for Turning
Points for Children[,] testified credibly that the Children were not
in Father’s care when the placement occurred and that he was
incarcerated. She has been the Case Manager Supervisor for
these Children since they came into care on June 20, 2016. She
stated the two Children were in the care of maternal aunt and
uncle at the time because the Grandmother had passed away and
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[] Children went to the Maternal Aunt and Uncle by a family
arrangement outside of DHS involvement approximately one year
prior.
This [c]ourt heard credible evidence regarding Father’s
failure to perform parental duties, and inability to remedy the
conditions which led to [] Children’s removal and placement. Ms.
Seum testified the parental objectives for Father were to complete
parenting classes, and later, upon release from prison, to have
him participate in ARC services and mental health services. She
noted Father never contacted the Agency until he was released
from prison in June 2017, when he telephoned.
Father, on the other hand, provided testimony that was not
persuasive and found to be incredible by this Court. Father did
provide two Certificates of completion of parenting classes from
the prison. However, this Court reasoned the evidence is clear
and convincing that although Father may have appeared to have
accomplished one of the goals set forth, none of it has resulted in
any enhanced stability to recognize what his Children have been
subjected to, and what their needs are. Father did admit the
Children were now safe and stable in the home of the Maternal
Aunt and Uncle and he does not want to disrupt that situation.
This [c]ourt is not persuaded that Father can or will remedy
the conditions which brought [] Children into [c]ourt supervision.
Nor is the [c]ourt persuaded that Father will be able to fulfill his
parental responsibilities in the future.
TCO at 17-18.
Likewise, with regard to Father’s argument relating to subsection
2511(b), he contends that he and Children have a strong emotional bond in
that he raised them from infancy until he was incarcerated in 2014. He further
asserts that he “frequently and consistently attempted to arrange visits with
[] [C]hildren, only to be constantly denied by [DHS].” Father’s brief at 14.
Father directs his complaint of an inability to strengthen the bond between
him and Children on the failure of DHS “to make reasonable efforts toward
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reunification.” Id. However, the trial court, as noted above, found that
Children were dependent upon and bonded with Maternal Aunt and Uncle, that
they were safe with all their needs being met, that no bond existed between
Children and Father, and that “they would not suffer irreparable harm if
Father’s parental rights were terminated.” TCO at 19.
Our thorough review of the record reveals that the trial court did not
abuse its discretion in ordering the termination of Father’s parental rights.
The record supports the court’s findings and conclusion that Father’s refusal
or failure to perform parental duties occurred for a period of at least six
months prior to the filing of the petition. In fact, since Father’s incarceration,
which occurred before DHS’s involvement in this matter, he has refused or
failed to perform parental duties. Moreover, the evidence shows that Children
have bonded with Maternal Aunt and Uncle, who satisfy their needs in a stable
and loving home. Additionally, we note that a child’s life “simply cannot be
put on hold in the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732 (Pa. Super.
2008) (citation omitted). “[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 at 856. Since Father has not convinced us otherwise,
we conclude that he is not entitled to any relief.
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Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/18
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