In the Interest of: Y.A. Appeal of: S.A., Father

J. S51032/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Y.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.A., FATHER : No. 1059 EDA 2018
Appeal from the Decree Dated March 9, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000026-2018,
CP-51-DP-1000034-2016
BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 07, 2018
S.A. (“Father”) appeals from the March 9, 2018 decree entered in the
Court of Common Pleas of Philadelphia County, Family Court Division,
involuntarily terminating his parental rights to his dependent child, Y.A.,
male child, born in March of 2014 (“Child”), pursuant to the Adoption Act,
23 Pa.C.S.A. §§ 2511(a)(2) and (b). After careful review, we affirm.
The trial court set forth the following:
[Child] and his family have been known to the City of
Philadelphia Department of Human Services (DHS)
since June 5, 2015, when DHS received a General
Protective Services (GPS) report, which alleged that
[Child], and his Mother, had been residing in the
Salvation Army shelter, since March 26, 2015 due to
domestic violence between Mother and Father and
that Mother was nine months pregnant. The report
further alleged that Mother had admitted to shelter
staff that she had been abusing Percocet, taking up
to ten pills per day. The report also alleged that
Mother and [Child] had poor hygiene and that
Mother seemed overwhelmed, as she frequently
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overslept and struggled to appropriately care for
[Child] and maintain her room. The report alleged
that [Child] scored low in fine motor skills and
personal/social skills on the Ages and Stages
assessment. This report was determined to be valid.
On June 17, 2015, DHS received an additional GPS
report, which alleged that Mother tested positive for
opiates and Oxycodone at the time of the delivery of
[Child’s] sibling [Y.], and that he [sic] testified
positive for methadone. The report further alleged
that Mother admitted abusing Percocet and that
Mother was denied in-patient drug and alcohol
treatment at Gaudenzia as she continued to actively
abuse drugs. It was reported that Mother had been
enrolled in Thomas Jefferson University Hospital’s
methadone maintenance program, but failed to
attend drug and alcohol treatment as scheduled.
The report further alleged that Mother failed to
attend numerous prenatal appointments. It was
reported that [Child’s] sibling born at 39 weeks
gestation, weighed five pounds and 15 ounces, and
had APGAR scores of 2/4/6. The report further
alleged that Mother was residing in a shelter due to
domestic violence concerns, that Mother was
unemployed, that Mother has a history of abusing
various opiates including Oxycodone, Suboxone and
Percocet, as well as marijuana. It was also alleged
that Mother was not prepared for [Child’s] sibling’s
birth as she lacked a crib, diapers, and formula. The
report [was] determined to be valid.
In the course of DHS investigation of the June 17,
2015 GPS report, Mother admitted to substance
abuse issues and agreed to attend a long-term
residential substance abuse treatment through
My Sister’s Place.
On July 24, 2015, DHS implemented In-Home Safety
Services for [Child], [Child’s] sibling, and Mother, in
their residence [at] My Sister’s Place, through
Bethanna’s [C]ommunity Umbrella Agency.
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On October 29, 2015, Bethanna learned that Mother
had taken the children and left My Sister’s Place
against medical advice and without completing the
program, on or around October 20, 2015.
The whereabouts of Mother and the children
remained unknown to Bethanna and DHS until
November 14, 2015.
On November 14, 2015, DHS learned that [Child’s]
sibling died while co-sleeping with Mother [] the
residence of [Child’s] Grandmother.
On or around November 18, 2015, Mother and DHS
agreed that [Child] would reside with his Paternal
Grandmother pursuant to a safety plan and family
arrangement.
On May 9, 2016, DHS received a GPS report, which
alleged that Mother continued to engage in
polysubstance abuse, despite attending outpatient
treatment at Thomas Jefferson University Hospital
Family Center. It was reported Father was
incarcerated. The report was determined to be valid.
On May 9, 2016, DHS obtained an Order of
Protective Custody (OPC) for [Child] and placed him
in a foster home through Delta Community Supports,
Inc.
At the May 11, 2016, Shelter Care Hearing, this
Honorable Court lifted the OPC, ordered temporary
commitment of [Child] to DHS to stand.
At the Adjudicatory Hearing held on May 19, 2016,
this Honorable Court determined that [Child] was a
dependent child, based on parent’s inability to
provide him with proper parental care and control,
committed [Child] to DHS care and custody. The
Court further ordered that a Single Case Plan
meeting to be held with in [sic] 20 days with
objectives to be made for Father; the Court ordered
CUA was to make outreach to Father and to identify
a new foster home for [Child]. The Court also
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ordered that when [Child] was moved the
whereabouts of the foster home were not to be
disclosed to Mother. Maternal and Paternal
Grandmothers were ruled out as possible resources
for [Child’s] care.
On July 12, 2016, a Single Case plan meeting was
held. Father’s parental objectives were to make his
whereabouts known to CUA case manager and
maintain contact to establish service needs and
discuss the process of the case.
At the October 4, 2016 Permanency Review Hearing
held for [Child], Judicial Officer Alexis Cicone ordered
[Child] to remain committed to DHS. Father
remained incarcerated and was found to be
non-compliance [sic] with his parental objectives.
At the Permanency Review Hearing held on
January 5, 2017, the Court found that foster
placement for [Child] continued to be necessary and
appropriate. Father remained in state custody,
housed at SCI Somerset. The Court ordered CUA to
continue to outreach to Father and address his
objectives.
On June 16, 2017, a Permanency Review Hearing
was held for [Child] before Honorable Lyris Younge,
who found that foster placement continued to be
necessary and appropriate. At the time of the
hearing, Father remained incarcerated in state
custody and had not been involved in [Child’s] daily
care or prepared to meet [Child’s] daily needs.
The matter was listed on a regular basis before
judges of the Philadelphia Court of Common Pleas,
Family Court Division-Juvenile Branch pursuant to
section 6351 of the Juvenile Act, 42 Pa.C.S.A. §
6351, and evaluated for the purpose of reviewing the
permanency plan of the [C]hild.
In subsequent hearings, the Dependency Review
Orders reflect the Court’s review and disposition as a
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result of evidence presented, primarily with the goal
of finalizing the permanency plan.
On March 9, 2018, during the Termination of
Parental Rights Hearing for Father, the Court found
by clear and convincing evidence that Father’s
parental rights, should be terminated pursuant to the
Juvenile Act Furthermore, the Court held it was in
the best interest of the [C]hild that the goal be
changed to Adoption.
Trial court opinion, 5/9/18 at 1-3.
The record reflects that Father filed a timely notice of appeal and a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The trial court then filed its Rule 1925(a) opinion.
Father raises the following issues for our review:
1. Did the court err in changing the goal to
adoption and terminating [Father’s] parental
rights under 23 Pa. C.S. § 2511(a)(2) because
[DHS] failed to establish by clear and
convincing evidence that the conditions and
causes of [Child’s] incapacity, abuse, neglect
or refusal cannot or will not be remedied by
[Father?]
2. Did the court err in changing the goal to
adoption and terminating [Father’s] parental
rights under 23 Pa.C.S. § 2511(b) because the
lower court failed to give primary consideration
to the development, physical and emotional
needs and welfare of the [C]hild insofar as
[Child] is bonded to his [F]ather[?]
Father’s brief at 3.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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The standard of review in termination of parental
rights cases requires appellate courts “to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record.”
In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “If the factual findings are supported,
appellate courts review to determine if the trial court
made an error of law or abused its discretion.” Id.
“[A] decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or
ill-will.” Id. The trial court’s decision, however,
should not be reversed merely because the record
would support a different result. Id. at 827. We
have previously emphasized our deference to trial
courts that often have first-hand observations of the
parties spanning multiple hearings. See In re
R.J.T., 9 A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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) (citation omitted). “[I]f
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) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. Initially,
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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 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
In this case, the trial court terminated Father’s parental rights
pursuant to Section 2511(a)(2), as well as Subsection (b).
Subsections 2511(a)(2) and (b) provide as follows:
(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
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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 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).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has 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) (citation
omitted). “The grounds for termination due to parental incapacity that
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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 Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002). “Parents are required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities. . . . [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.” In re A.L.D., 797 A.2d at 340 (internal
quotation marks and citations omitted).
With respect to incarcerated parents, in In re Adoption of S.P., our
supreme court held as follows:
[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.A. § 2511(a)(2). See e.g. Adoption
of J.J., 511 Pa. 590, 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
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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.
In re Adoption of S.P., 47 A.3d at 830-831.
Here, the trial court terminated Father’s parental rights pursuant to
Section 2511(a)(2) finding that:
the Court has taken testimony by [F]ather and by
Ms. Ferguson,[1] and actually, I find both to be
credible.
But the reality of it is, this [C]hild came into care at
or around May 2016, and as we sit here, we are
close to 22 months in which the [C]hild has been in
care, [and Child] will be four in a week.
So, the majority of his life, he has been outside of –
environment where there will be parental care and
control. And I submit to you that unfortunately,
[Father] is incarcerated, and it’s limited in what he
can do to ensure the [C]hild’s safety, to provide a
nurturing environment for him.
....
I do believe that the Department has met their
burden of proof, pursuant to 2511(a)(2) in terms of
the incapacity of [Father]. . . .
1 The record reflects that Ms. Ferguson is Dawn Ferguson, the Bethanna CUA
social worker who was assigned to Child’s case in October 2017. (Notes of
testimony, 3/9/18 at 2, 23.)
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Notes of testimony, 3/9/18 at 59-60.
In its Rule 1925(a) opinion, the trial court further explained that its
“decision was reflective of testimony of Father’s incarceration and a lack of
ability to provide a safe and nurturing environment for [Child.]” (Trial court
opinion, 5/9/18 at 5.) Indeed, as noted by the trial court and as reflected in
the record, “Father testified he was arrested on January 29, 2015 and was
currently serving [a] five to ten year prison sentence for the crime of
attempted delivery of [a] controlled substance. Father testified the
minimum date of his release from incarceration was January 2020.” (Id.
at 4 (citations to notes of testimony omitted).)
We conclude that the record supports the trial court’s factual findings
and that the trial court did not abuse its discretion in terminating Father’s
parental rights under Section 2511(a)(2) because Father’s incarceration
rendered him incapable of providing “essential parental care, control or
subsistence” and the length of the Father’s remaining confinement prohibit
Father from remedying the conditions and causes of his incapacity to parent.
We now turn to whether termination was proper under
Section 2511(b). As to that section, our supreme court has stated as
follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles
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such as love, comfort, security, and stability.”
In re K.M., 53 A.3d 781, 791 (Pa.Super. 2012). In
In re E.M., 620 A.2d [481, 485 (Pa. 1993)], this
Court held that the determination of the child’s
“needs and welfare” requires consideration of the
emotional bonds between the parent and child. The
“utmost attention” should be paid to discerning the
effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
However, as discussed below, evaluation of a child’s
bonds is not always an easy task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b)
best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the
trial court can equally emphasize the
safety needs of the child, and should also
consider the intangibles, such as the
love, comfort, security, and stability the
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child might have with the foster parent.
...
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33
A.3d 95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are
in a pre-adoptive home and whether they have a bond with their foster
parents.” T.S.M., 73 A.3d at 268. The court directed that, in weighing the
bond considerations pursuant to Section 2511(b), “courts must keep the
ticking clock of childhood ever in mind.” Id. at 269. The T.S.M. court
observed, “[c]hildren are young for a scant number of years, and we have
an obligation to see to their healthy development quickly. When courts fail
. . . the result, all too often, is catastrophically maladjusted children.” Id.
In determining that termination of Father’s parental rights favored
Child’s needs and welfare pursuant to Section 2511(b), the trial court noted
that “the reality of it is that this [C]hild has spent more time in the foster
home that’s pre-adoptive than he has with his biological parents.” (Notes of
testimony, 3/9/18 at 60.) As further explained by the trial court in its
Rule 1925(a) opinion and as supported by the record, Ms. Ferguson testified
that Child’s foster parents provide for his care and day-to-day needs, that
Child’s relationship with his foster parents is educational for Child, that Child
looks to his foster parents as his caregivers, that Child refers to both of his
foster parents as “mom,” that there would be no harm to Child if Father’s
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parental rights were terminated and Child was freed for adoption, and that it
would be in Child’s best interest to terminate Father’s parental rights and
free Child for adoption. (Trial court opinion, 5/9/18 at 5; see also notes of
testimony, 3/9/18 at 27-30.) Our review of the record supports this
determination, and the trial court did not abuse its discretion in terminating
Father’s parental rights.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under Sections 2511(a)(2) and (b).
Decree affirmed.
Nichols, J. joins this Memorandum.
Dubow, J. did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/18
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