In Re: Adoption of: B.N.E., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: B.N.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.E., FATHER :
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: No. 1603 MDA 2017
Appeal from the Decree Entered September 12, 2017
In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s):
A-8563
BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 23, 2018
P.E. (“Father”) appeals from the Luzerne County Orphans’ Court’s
September 12, 2017 decree involuntarily terminating his parental rights to
his daughter, B.N.E. (“Child”), born in May of 2015.1 N.T., 8/10/17, at 20.
Following our careful review, we affirm.
The record reveals the following relevant facts and procedural history.
On April 18, 2016, Father pleaded guilty2 to one count of aggravated
assault, a second-degree felony, pursuant to 18 Pa.C.S. § 2702(a)(8), which
provides that a person is guilty of aggravated assault if he “attempts to
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1 By decree of the same date, the orphans’ court involuntarily terminated
the parental rights of B.W. (“Mother”). Mother did not file a notice of appeal
and is not involved in this appeal.
2 Commonwealth v. [P.E.], Luzurne County Criminal Division, 4066 of
2015. N.T., 8/10/17, at 22.
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cause or intentionally, knowingly or recklessly causes bodily injury to a child
less than six years of age, by a person 18 years of age or older.” N.T.,
8/10/17, at 20–23, 43; Orphans’ Court Opinion, 11/3/17, at 3. Father
perpetrated this crime on Child on or about September 25, 2015, when Child
was four months old. N.T., 8/10/17, at 44. Specifically, Father pleaded
guilty to pinching Child “multiple times to the point where he left bruises.”
Id. In addition, he admitted “to grabbing [Child] by the sides and squeezing
her to the point where he left fingernail marks.” Id. On June 16, 2016, the
criminal court sentenced Father to a term of imprisonment followed by
twelve months of special probation. Id. at 43. On October 27, 2015, Father
entered the State Correctional Institution (“SCI”) at Rockview, where he
remained at the time of the subject proceedings. N.T., 8/10/17, at 40.
On September 28, 2015, Luzerne County Children and Youth Services
(“CYS”) took custody of Child, placed her in a foster home, and initiated
dependency proceedings.3 N.T., 8/10/17, at 19, 63. A court order entered
on an unspecified date prohibits Father’s contact with Child.4 Id. at 66;
N.T., 9/5/17, at 12–13. As such, Father has not seen Child at any time
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3 Dependency Docket DP-421 of 2015.
4 It appears that order was entered within Father’s criminal case and
provided that Father was to have “no contact with [Child] unless contact was
approved by a Family Court Judge. As of [the date of the filing of the
petition to terminate Father’s parental rights,] contact between [Child] and
[Father] has not been approved.” Petition for Termination of Parental
Rights, 6/8/17, at ¶ 11.
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since Child, now nearly three years old, was four months old. N.T., 8/10/17,
at 66.
During Child’s dependency, Child’s paternal grandmother and step-
grandfather (collectively “Paternal Grandparents”), who reside in California,
apparently were presented as a kinship resource for Child. N.T., 8/10/17, at
48–49; Orphans’ Court Opinion, 11/3/17, at 3. Therefore, CYS initiated an
Interstate Compact on the Placement of Children (“ICPC”) with respect to
Paternal Grandparents.5 N.T., 8/10/17, at 48–49; N.T., 9/7/17, at 62.
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5 Section 761 of the Pennsylvania Public Welfare Code, the Interstate
Compact on the Placement of Children, 62 P.S. § 761, is implemented, inter
alia, under 55 Pa. Code § 3130.41. The Council of State Governments
recommended the Interstate Compact on the Placement of Children to
address common problems arising from the interstate care and placement of
children in foster care or adoptive homes because when a child was sent out
of state, that state of origin lost jurisdiction over the child and supervision
became difficult or impossible.
As drafted, the [ICPC] provides for notification of
appropriate state or local authorities in the receiving state before
placement by out-of-state persons and agencies. The authorities
in the receiving state are given the opportunity to investigate
and, if satisfied, must notify the sending state that the proposed
placement does not appear to be contrary to the child's best
interest. After a placement has been made, the sending state
continues to have financial responsibility for support and retains
jurisdiction over the child.
McComb v. Wambaugh, 934 F.2d 474, 479–480 (3d Cir. 1991).
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The juvenile court held multiple hearings regarding the ICPC, with the
final one apparently occurring on October 3, 2016.6 N.T., 9/5/17, at 14, 31–
32. The juvenile court issued an order dated October 7, 2016, finding that
Child’s best interests required that she remain in her current foster care
placement (“ICPC order”).7 Id. at 32; N.T., 8/10/17, at 50, 54; Orphans’
Court Opinion, 11/3/17, at 3. As such, since her placement, Child has
resided with the same foster parents, and they are a pre-adoptive resource.
N.T., 8/10/17, at 63. We note that Judge Rogers stated on the record in
open court that Paternal Grandparents had filed a custody action, which they
withdrew following issuance of the ICPC order. N.T., 9/5/17, at 32.
On June 8, 2017, CYS filed a petition for the involuntary termination of
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(9)(ii) and (b). The
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6 Because the juvenile court record was not incorporated into the instant
record, we lack myriad details concerning the dependency proceedings. We
have gleaned much of that procedural history from comments by the
orphans’ court jurist, the Honorable Jennifer L. Rogers, who also presided
over the dependency proceedings. Orphans’ Court Opinion, 11/3/17, at 3.
See 42 Pa.C.S. § 6351(i) (Juvenile Act suggests that it is appropriate for the
dependency judge to also preside over the termination hearing).
7 Judge Rogers issued the involuntary termination decree, presided over the
ICPC hearings, and issued the ICPC order. During the termination hearing,
Father presented the ICPC order as an exhibit, which the orphans’ court
accepted without objection, and the court took judicial notice of the order.
N.T., 8/10/17, at 51-53. However, despite its inclusion in the Reproduced
Record at P3, the ICPC order is not included in the record certified to us on
appeal. See Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super.
2006) (en banc) (It is the appellant’s responsibility to ensure the record is
complete). As we explain infra, the state of the record is one factor
impacting our decision regarding waiver.
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orphans’ court held a hearing on August 10, 2017, and September 5–7,
2017, during which Father was represented by court-appointed counsel.
Child also was represented by counsel. N.T., 8/10/17, at 11. During the
hearing, CYS presented the testimony of CYS supervisor, Paul Guido; CYS
caseworker, Jeff Setser; and Father’s corrections counselor at SCI Rockview,
Richard Lansberry. Father testified on his own behalf via telephone from SCI
Rockview on September 5, 2017.8
By decree dated September 8, 2017, and entered September 12,
2017, the orphans’ court involuntarily terminated Father’s parental rights.
On October 12, 2017, Father, through new counsel,9 filed a timely notice of
appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court filed a Rule 1925(a)
opinion on November 3, 2017.
Father raises a single issue for our review:
Whether the [orphans’] [c]ourt abused its discretion in
terminating the parental rights of Father in that:
The [c]ourt erroneously terminated Father’s parental
rights in that Father obtained the support of [Paternal
Grandparents]. . . . [Paternal Grandparents] presented
themselves to Luzerne County CYS as kinship resources
and were approved under the interstate compact. The
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8 The involuntary termination hearing continued to September 6 and 7,
2017, with respect to Mother’s parental rights only.
9 New counsel entered his appearance on behalf of Father on October 12,
2017.
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[c]ourt wrongfully rejected [Paternal Grandparents] as
kinship resources and allowed the minor child to remain
in foster care. Had [Paternal Grandparents] been
approved as [a] kinship resource[], that would have
alleviated the conditions that led to placement and
thereby provided no grounds for termination.
Father’s Brief at 4.
We review Father’s issue according to the following standard:
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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
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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).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to Section 2511(a)(9)(ii) and (b), which 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:
* * *
(9) The parent has been convicted of one of the following
in which the victim was a child of the parent:
* * *
(ii) a felony under 18 Pa.C.S. § 2702 (relating to
aggravated assault);
* * *
(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)(9)(ii) and (b).
Father does not contest the termination of his parental rights under
Section 2511(a)(9)(ii). Father’s Brief at 20. Rather, Father’s argument
relates to the ICPC order, and he asserts that “the availability of an
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appropriate family placement through kinship is grounds for a court
exercising its discretion and not terminating parental rights.” Id. at 22. He
relies, in part, on Section 2511(b) (“Other considerations”). Id. at 21.
The statute outlining the Kinship Care Program provides, in pertinent
part:
(b) Placement of children.—If a child has been removed from
the child’s home under a voluntary placement agreement or is in
the legal custody of the county agency, the county agency shall
give first consideration to placement with relatives. The county
agency shall document that an attempt was made to place the
child with a relative. If the child is not placed with a relative, the
agency shall document the reason why such placement was not
possible.
62 P.S. § 1303(b). We have explained:
[K]inship care is a subset of foster care where the care provider
already has a close relationship to the child. In kinship care (as
with foster care generally), legal custody of the child is vested in
[CYS]. [CYS] then places the child with the care provider. The
court may place children with a foster family, although there
might be willing relatives, where foster care is in the best
interests of the children or aggravated circumstances exist. The
goal of preserving the family unit cannot be elevated above all
other factors when considering the best interests of children, but
must be weighed in conjunction with other factors.
In re Adoption of G.R.L., 26 A.3d 1124, 1127 (Pa. Super. 2011) (internal
citations and quotation marks omitted).
In its Rule 1925(a) opinion, the orphans’ court regarded Father’s issue
as waived because Father failed to appeal the juvenile court’s ICPC order.
Orphans’ Court Opinion, at 11/3/17, at 3; see also Pa.R.A.P. 903(a)
(providing that an appeal “shall be filed within 30 days after the entry of the
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order from which the appeal is taken”). Such a conclusion implies that the
ICPC order was final and appealable when entered. The orphans’ court
failed to recite any supporting law or explain its conclusion. Orphans’ Court
Opinion, at 11/3/17, at 3. Conversely, Father contends that the ICPC order
was interlocutory and not appealable when entered.
Pursuant to 42 Pa.C.S. § 742, this Court has jurisdiction over appeals
from “final orders.”10 Moreover, it is well settled that with respect to
dependency proceedings, an order granting or denying a placement goal
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10 Pa.R.A.P. 341 defines a “final order” as follows:
* * *
(b) Definition of Final Order.—A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to paragraph (c)
of this rule.
(c) Determination of finality.—When more than one claim for
relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim or when multiple
parties are involved, the trial court or other government unit
may enter a final order as to one or more but fewer than all of
the claims and parties only upon an express determination that
an immediate appeal would facilitate resolution of the entire
case. Such an order becomes appealable when entered. In the
absence of such a determination and entry of a final order, any
order or other form of decision that adjudicates fewer than all
the claims and parties shall not constitute a final order. . . .
Pa.R.A.P. 341(b), (c).
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change shall be deemed a final order when entered. See In re H.S.W.C.-
B., 836 A.2d 908, 911 (Pa. 2003). In this case, however, the record does
not reveal, nor does Father assert, that the ICPC order granted or denied a
goal change. Indeed, during the instant termination hearing on September
5, 2017, the orphans’ court stated, “[W]e are now into the [dependency]
docket, DP-421-2015, addressing the agency’s petition for change of goal to
that of adoption addressing natural father’s portion[,]” lending credence to
the conclusion that the ICPC order did not address a goal change for Father.
N.T., 9/5/17, at 17.
We are not inclined to find waiver in this case. The combination of the
incomplete certified record, the failure of CYS to incorporate the dependency
record, and the orphans’ court’s failure to support its conclusion compel our
determination that waiver is inappropriate herein. Thus, we address Father’s
claim.
Father baldly asserts that “the availability of an appropriate family
placement through kinship is grounds for a court exercising its discretion
[pursuant to Section 2511(b)] and not terminating parental rights.” Father’s
Brief at 22. Father continues,
Simply put: there is no valid reason why [C]hild should not
have been placed with [her paternal grandparents] so long as
firm appropriate restrictions on [Father’s] contact w[ere] in
place. Where a child is born into a situation like this, the child
should not lose her entire family and heritage without
exceptional reasons for doing so.
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Id. Father provides no statutory or case law in support of his assertion that
a court may deny a petition for the involuntary termination of parental rights
under Section 2511(b) based solely on finding that an appropriate family
placement through kinship exists.
This Court has explained that the requisite inquiry into the “needs and
welfare” of the child under Section 2511(b), the only determination Father
challenges, involves intangibles of the parent-child relationship “such as
love, comfort, security, and stability. . . .” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted). Further, the orphans’ 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. (citation omitted). However, “[i]n 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) (emphasis added)
(citation omitted). Moreover, we have explained:
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.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910
(Pa. Super. 2008) (trial court’s decision to terminate parents’
parental rights was affirmed where court balanced strong
emotional bond against parents’ inability to serve needs of
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child). Rather, the orphans’ 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). As we
explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
In 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 child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Furthermore, 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., 71 A.3d at 268. The Supreme 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 that “[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.
Based on the foregoing, we reject Father’s argument that the alleged
existence of an appropriate kinship placement is relevant to the termination
of parental rights under Section 2511(b). Indeed, we recently stated, “Any
benefit Child may receive from knowing other biological family does not
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affect whether it would be in her best interests to terminate Father’s
parental rights.” In Interest of H.K., 161 A.3d 331, 340 (Pa. Super.
2017). The issue raised simply is not related to the only order on appeal,
the involuntary termination of parental rights.
Moreover, even if relevant, we would reject Father’s claim that the
ICPC order was an abuse of discretion or constituted legal error because the
court did not consider Child’s best interests pursuant to Section 5328(a) of
the Child Custody Act, 23 Pa.C.S. § 5328(a), in denying her kinship
placement with Paternal Grandparents. In this regard, Father requests that
this Court vacate the involuntary termination decree and remand this matter
“for full consideration of all relevant factors including the child custody
factors as set forth by statute including the value of the child being placed
with biological relatives.” Father’s Brief at 23.
The ICPC order arose in Child’s dependency case. Therefore, the
Juvenile Act, not the Custody Act, was pertinent. We have explained,
“‘[K]inship care’ is a subset of foster care where the care provider already
has a close relationship to the child. 62 P.S. § 1303. In kinship care, as
with foster care generally, legal custody of the child is vested in [CYS].
[CYS] then places the child with the care provider.” In re J.P., 998 A.2d
984, 987 n.3 (Pa. Super. 2010). It is important to note that Father does not
assert that the ICPC order was erroneous as a matter of law or was
otherwise an abuse of discretion pursuant to the foregoing relevant law. In
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its Pa.R.A.P. 1925(a) opinion, the orphans’ court stated that it denied the
request for kinship care placement with Paternal Grandparents because the
ICPC report
raised some concerns regarding [Paternal Grandparents’] ability
to meet all the child’s needs on a consistent basis. Furthermore,
the court noted that at no time during [Child’s] placement
totaling approximately two (2) years did [Paternal Grandparents]
make any effort or attempt to have any contact with [C]hild
either physically or in any other form. . . . In this case, [C]hild
remained with her foster parents because the court found that it
is in [C]hild’s best interest.
Orphans’ Court Opinion, 11/3/17, at 4. We discern no abuse of discretion in
denying the kinship care placement.
We have carefully reviewed the testimonial evidence during the
involuntary termination hearing, at which time Child was two years old.
Child was removed from Father when she was four months old, and she has
had no contact with him during her two years in placement. Therefore, no
parent-child bond exists between them. Rather, a parent-child bond exists
between Child and the foster parents, who desire to adopt her. N.T.,
8/10/17, at 63, 66–69. The competent record evidence supports the
orphans’ court’s decision that terminating Father’s parental rights serves
Child’s developmental, physical, and emotional needs and welfare pursuant
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to Section 2511(b).11 Accordingly, we affirm the decree pursuant to 23
Pa.C.S. § 2511(a)(9)(ii) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/23/2018
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11 We further note the orphans’ court’s statement that “[a]ssuming
arguendo that the court placed [Child] with [Paternal Grandparents] in
California, Father’s rights would still have been terminated.” Orphans’ Court
Opinion, 11/3/17, at 3.
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