In Re: Adoption of: A.C., a minor, Appeal of: A.C.

J-A05034-17
2017 Pa. Super. 143
IN RE: ADOPTION OF: A.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.C.
No. 1567 WDA 2016
Appeal from the Order Entered September 14, 2016
In the Court of Common Pleas of Beaver County
Orphans' Court at No(s): 3034-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.
OPINION BY MOULTON, J.: FILED MAY 12, 2017
A.C. (“Child”) appeals, through her guardian ad litem, from the order
entered September 14, 2016 in the Beaver County Court of Common Pleas,
which denied the petition of Beaver County Children and Youth Services
(“CYS”) to terminate the parental rights of C.W. (“Father”) to Child. We
affirm.
The trial court set forth the factual and procedural background of this
case as follows:
At birth [in July 2014], [Child] tested positive for drugs
(amphetamines and marijuana), due to Mother’s drug use.
When she was released from the hospital, five days after
her birth, [Child] initially was voluntarily placed with her
[M]other’s cousin, [J.B. (“Foster Mother”)], who is the
current foster mother. The goal at that time was
reunification with parents. [Father] is not listed on the
birth certificate and did not sign an acknowledgement of
paternity, nor did he submit to genetic testing. When he
J-A05034-17
failed to attend a Domestic Relations matter, he was
adjudicated [Child]’s father.
[Child] was adjudicated dependent on September 29,
2014. Neither parent attended the hearing. Father was
released from jail on September 24, 2014. It is unclear
whether Father received notice of the adjudication
proceeding.
From September 24, 2014 through December 1, 2014,
30 visits with [Child] were offered to Mother and Father.
Father attended 4, and he left early on 2 of those
occasions. There is some confusion about whether visits
were offered to Father at this time due to the allegations of
another person being [Child]’s father. Ultimately, DNA
tests revealed the other person was not [Child]’s father.
Father was incarcerated again from December 1, 2014
through March 2016. Visits occurred at the Beaver County
Jail one time every other week for one hour. Father had
limited access to mail while incarcerated. He sent two
letters to CYS, and he never indicated that he wanted to
give up his rights as [Child]’s Father.
CYS filed a Petition to Terminate Parental Rights on
September 11, 2015. The hearing initially set to terminate
the rights of both parents was originally scheduled for
November 24, 2015. Mother failed to attend this hearing
and her rights were terminated.
The hearing to terminate Father’s parental rights was
continued several times, pending the outcome of his
criminal trial, which also kept getting continued.
In March 2016, counsel for Father sought to dismiss the
Petition to Terminate Parental Rights, because it failed to
comply with the Pennsylvania Adoption Act, 23 Pa.C.S.
§2512(b), which states that the petition shall set forth
specifically those grounds and facts alleged as the basis for
terminating parental rights. CYS filed a new petition to
terminate on April 18, 2016, seeking termination on the
grounds specified in 23 Pa.C.S. §2511(a)(1) and (2).
...
-2-
J-A05034-17
Also in March 2016, Father was acquitted of the criminal
charges for which he had been incarcerated since
December 1, 2014. If he had been convicted of those
charges, he could have faced a lengthy prison term, and
we would be looking at a much different scenario for this
child’s future. Since he was acquitted of the charges,
Father resumed visits with [Child]. He missed of few of
these visits due to transportation issues.
The hearing to terminate his parental rights was
scheduled for June 21, 2016, but was continued until June
28, 2016. Testimony regarding the psychological bonding
assessment was not available at this hearing, so the court
kept the record open to allow for the completion of the
bonding assessment, and resumed testimony on August
24, 2016.
The bonding assessment indicated that [Child] is well
bonded with her [F]oster [M]other. It also showed that a
bond is forming with Father. The evaluator did not have
an issue with the bond between Father and [Child], but
was more concerned with Father’s criminal history and
pending charges. The evaluator commented, “It may
indeed be that [F]ather’s pattern of criminal involvement
may be an overwhelming impediment in his ability to
establish a bond and indeed be an effective parent going
forward. Here it appears that parental fitness (due to a
pattern of criminal behavior) is a much larger
consideration than the bonding profile.” (Chambers Report
p. 8).
Since his release from jail, Father has complied with all
of the CYS directives in the family service plan. He
obtained a drug and alcohol evaluation, which indicated
that no treatment was necessary. He obtained a parenting
evaluation, which recommended no additional services. He
attended the bonding assessment. He obtained adequate
housing with his [m]other and his other children.
[Child] has been in placement for 22 of the last 24
months. In her entire life, the only time she was not in
placement was during her initial hospital stay at birth. For
the majority of this time, Father was in jail awaiting trial
on charges, for which he was ultimately found not guilty.
[Child] has never spent the night at Father’s home. She
-3-
J-A05034-17
has a brother in her foster home, with whom she shares a
strong bond.
Father is still awaiting a hearing on criminal charges in
Allegheny County that stem from separate incidents that
occurred on March 7, 2014 and March 19, 2014. At the
hearing in this matter, those charges were awaiting a jury
trial to be held in September 2016.1
1
The criminal docket indicates that on September
13, 2016, the charges are now awaiting a non-
jury trial. No date for the trial was provided.
Father has three other children who reside with him and
his mother. He shares custody of two of them with his
mother, and his mother has played a significant role in
raising them. All of the children are well provided for and
do well in the community. Father does not want [Child] to
think that he gave up on her. He cares for her and loves
her, just as he loves his other children.
Trial Ct. Op., 9/1/16, at 1-4.
On September 14, 2016, the trial court denied the petition to
terminate Father’s parental rights. On October 14, 2016, Child’s guardian ad
litem filed an appeal on Child’s behalf.
Child raises three issues on appeal:
1. Whether the trial court erred as a matter of law and
abused its discretion in failing to terminate the
parental rights of [F]ather under 23 Pa.C.S. §
2511(a)(1) after determining that CYS failed to meet
its burden when [F]ather was incarcerated for ten
months prior to the filing of the petition for
termination and failed to address whether Father
exhibited reasonable firmness in maintaining his
relationship with the minor child and used all
available resources to preserve the parental
relationship?
2. Whether the trial court erred and abused its
discretion in failing to terminate the parental rights
of Father under 23 Pa.C.S. § 2511(a)(2) after finding
-4-
J-A05034-17
that Father was facing additional felony criminal
charges and possible future incarceration?
3. Whether the trial court erred and abused its
discretion in failing to find that the needs and welfare
of the minor child would best be served by the
termination of parental rights in light of the evidence
regarding the parent child bond and the detrimental
effect of severing the bond between the minor child
and the foster mother on the minor child[?]
Child’s Br. at 3-4. CYS has also filed a brief that supports Child’s position.
We consider Child’s issues mindful of our well-settled standard of
review:
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); see also In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa.
2012) (“[E]ven where the facts could support an opposite result, as is often
the case in . . . termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility determinations
and judgment”).
-5-
J-A05034-17
Termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. § 2511, 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). The
petitioner must “prove by clear and convincing evidence that [the] asserted
[statutory] grounds for seeking the termination of parental rights are valid.”
In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).
In her first issue, Child advances two arguments that the trial court
erred in finding termination inappropriate under section 2511(a)(1). First,
Child contends that the trial court erred in finding that CYS failed to meet its
burden of proof where Father was incarcerated for ten months prior to the
filing of CYS’s petition. Second, Child asserts that the trial court erred in
failing to address whether Father exhibited reasonable firmness in
maintaining his relationship with Child, using all available resources to
preserve his parental relationship.
Section 2511(a)(1) of the Adoption Act provides:
(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:
-6-
J-A05034-17
(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.
23 Pa.C.S. § 2511(a)(1). “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
Z.P., 994 A.2d 1108, 1117 (Pa.Super. 2010) (emphasis in original). 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 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.
Id. (quoting In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004)).
However, “[w]ith respect to any petition filed pursuant to subsection (a)(1),
. . . 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 petition.” 23 Pa.C.S. § 2511(b); see In re D.W.,
856 A.2d 1231, 1235 (Pa.Super. 2004) (holding that the post-petition
evidentiary restriction “applies to the entire termination analysis”). 1
____________________________________________
1
In its opinion, the trial court considered evidence beyond the original
petition filing date of September 2015. However, we find no abuse of
discretion because CYS filed an amended petition in April 2016 that set forth
(Footnote Continued Next Page)
-7-
J-A05034-17
In terms of parental duty, we are reminded that:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental
duty requires that a parent exert himself to take and
maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the
path of maintaining the parent-child relationship. 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 [the child’s] physical
and emotional needs.
_______________________
(Footnote Continued)
the grounds for, and facts supporting, termination of Father’s parental
rights. See Am. Pet. to Term. Parental Rights, 4/18/16. Further, the bulk of
the post-petition evidence concerned Father’s ongoing visits with Child,
which is evidence of continuing conduct that was initiated before the filing of
the original petition.
-8-
J-A05034-17
B., N.M., 856 A.2d at 855 (internal citations and quotation marks omitted).
Our Supreme Court has provided guidance regarding the interaction between
incarceration and termination pursuant to section 2511(a)(1):
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his or her
incarceration. Rather, we must inquire whether the parent
has utilized those resources at his or her command while
in prison in continuing a close relationship with the child.
Where the parent does not exercise reasonable firmness
“in declining to yield to obstacles,” his other rights may be
forfeited.
In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975) (internal citation
and footnotes omitted).
The trial court found that while Father “did very little to be active” in
Child’s life from the time of Child’s “birth in August 2014 until [Father] was
incarcerated in December 2014,” Father made a materially greater effort to
remain in Child’s life thereafter. Trial Ct. Op., 9/14/16, at 6. The trial court
explained:
Once he was incarcerated, Father maintained regular
biweekly visits with [Child]. He claims he was not initially
offered these visits at the jail by CYS, but that he had to
request them, and that they started as a result of his
efforts. Father requested to have visits increased at the
jail, but the request was denied. The court did not want to
set precedent to allow weekly visits for some inmates, but
bi-weekly visits for others, especially given Father’s lack of
involvement prior to incarceration
...
-9-
J-A05034-17
Father maintained contact and visits with [Child]
throughout his incarceration. He sent letters to her
caretakers and requested photographs.
Since his release from jail, Father has complied with all
of the CYS directives in the family service plan. He
obtained a drug and alcohol evaluation, which indicated no
further treatment was necessary. He obtained a parenting
evaluation, which recommended no additional services. He
attended the bonding assessment. He obtained adequate
housing with his Mother and his other children. He is in
the process of reinstating his driver’s license.
He visits regularly with [Child], who calls him “daddy,”
and the visits go well.
Id. at 6-8.
Based on the foregoing findings, which are fully supported by the
record, the trial court concluded:
Given the totality of the circumstances in this case, we do
not believe that CYS has demonstrated by clear and
convincing evidence, that Father’s rights should be
terminated under section (a)(1). To terminate [under]
that section, CYS must show that 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. We do
not believe this standard has been met at this time.
Id. at 8.
The record supports the trial court’s conclusion. While CYS and Child
note that Father attended only 4 of 30 offered visits before his incarceration,
it is unclear whether Father was informed of the visits that occurred between
September 2014 and November 2014. During that time, the visits were only
offered through Mother, with whom Father did not have a relationship.
Despite Father’s admittedly minimal involvement in the first four months of
- 10 -
J-A05034-17
Child’s life, the record supports the trial court’s findings that Father was
significantly more involved thereafter, and that Father “complied with all of
the CYS directives in the family service plan.” Id. at 7-8. We agree with the
trial court that this situation is “quite different” from the factual scenario in
McCray, where the prisoner “did not take advantage of his visitation rights
or his personal counselor nor did he make sincere or persistent efforts to
locate or inquire about his daughter.” Id. at 7 (citing McCray, 331 A.2d at
655). Contrary to CYS and Child’s arguments, the trial court considered
Father’s incarceration as well as his efforts to maintain a relationship with
Child. Under these circumstances, we discern no abuse of discretion by the
trial court and defer to its findings of fact and conclusions of law.
Next, Child argues that the trial court erred in declining to terminate
Father’s parental rights under section 2511(a)(2), which provides:
(a) General rule.—The rights of a parent in regard to a
child may be terminated after a petition filed on any
of the following grounds:
...
(2) The repeated and continued incapacity,
abuse, neglect or refusal of the parent has caused
the child to be without essential parental care,
control or subsistence necessary for his physical
or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2). To terminate parental rights under section
2511(a)(2), the moving party must produce clear and convincing evidence of
the following elements: “(1) repeated and continued incapacity, abuse,
- 11 -
J-A05034-17
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).
Child and CYS argue that the trial court erred in failing to consider the
ramifications of Father’s pending criminal charges in Allegheny and Beaver
Counties. According to Child, “Father has been incarcerated during much of
the [C]hild’s life” and if he is convicted and sentenced on the pending
criminal charges, he would once again be “incapable of performing his
parental duties.” Child’s Br. at 24. CYS echoes this sentiment, noting that
“[a] conviction in one or both of th[o]se cases would most certain[l]y result
in additional jail time, especially in light of his criminal history,” and that
“Father’s failure to avoid criminal activity has rendered him incapable of
caring for [Child] throughout a large portion of . . . [C]hild’s life and most
certainly, if he is convicted again, Father will once again, be unavailable.”
CYS’s Br. at 14-15.2
Both Child and CYS appear to argue that Father’s potential future
incarceration on pending charges creates, within the meaning of section
____________________________________________
2
It bears noting that Father’s incarceration between December 2014
and March 2016 was not based on a criminal conviction and sentence.
Rather, Father was detained pre-trial on charges for which he was ultimately
acquitted.
- 12 -
J-A05034-17
2511(a)(2), an “incapacity” that “cannot or will not be remedied by the
parent.” 23 Pa.C.S. § 2511(a)(2). Although the Pennsylvania Supreme
Court has discussed the effect of incarceration on the termination analysis
under section 2511(a)(1), see McCray, 331 A.2d at 655-56, and section
2511(a)(2), see S.P., 47 A.3d at 827-31, Pennsylvania appellate courts
have provided little guidance on whether and how trial courts should
consider the effect of possible incarceration based on criminal charges
pending at the time the termination petition is filed.
The Pennsylvania Supreme Court has instructed 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 [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).
S.P., 47 A.3d at 830 (some internal citations omitted). 3 Accordingly, courts
properly consider the incapacitating effect of a parent’s incarceration and
____________________________________________
3
Further, the Supreme Court stated:
If a court finds grounds for termination under subsection
(a)(2), a court must determine whether termination is in
(Footnote Continued Next Page)
- 13 -
J-A05034-17
whether the duration of that incarceration would prevent a parent from
remedying the incapacity. See id.; see also In re D.C.D., 105 A.3d 662,
677 (Pa. 2014) (holding that trial court properly concluded that father’s
incarceration rendered him “incapable of providing care for his child and that
[his] incapacity will exist at least until [f]ather’s minimum release date [four
years later], when [c]hild will be seven”).
While the record shows that Father had been incarcerated on prior
occasions, Father was not incarcerated when CYS filed the amended petition
to terminate his parental rights or when the trial court denied that petition.
Father was released from custody in March 2016 after a jury acquitted him
of the charges for which he had been detained. He remained out of custody
despite the pending criminal charges in Allegheny and Beaver Counties.
Thus, unlike the mother in S.P., Father remedied his incapacity through his
release from jail.
_______________________
(Footnote Continued)
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.
S.P., 47 A.3d at 830-31.
- 14 -
J-A05034-17
Child and CYS contend that the trial court erred by not considering
Father’s pending criminal charges and any possible incarceration that could
result from conviction on those charges. We disagree.
First, courts should be extremely cautious before employing
speculation about the outcome of pending charges when analyzing a petition
for termination under section 2511(a)(2). As Father’s earlier acquittal
demonstrates, a criminal charge does not inevitably lead to a conviction and
extended incapacity. Moreover, the mere existence of pending charges,
without more, is unlikely to meet the “clear and convincing” standard set
forth in section 2511.4 Before terminating a parent’s rights, the trial court
must receive 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.” In re Adoption of Atencio, 650
A.2d 1064, 1066 (Pa. 1994).
Second, the trial court was aware of and did consider Father’s pending
charges and the possibility of his future incapacity. After noting that Father
was “exonerated of the [earlier] charges,” “has housing,” “does not require
____________________________________________
4
This is not to say that pending criminal charges are irrelevant in
determining an individual’s capacity to parent or remedy an existing
incapacity. However, pending criminal charges alone, without any further
evidence of a parent’s incapacity or inability to remedy said incapacity, are
insufficient to support a finding that a parent has an irremediable incapacity
that warrants termination of his or her parental rights under section
2511(a)(2).
- 15 -
J-A05034-17
further parenting skills,” and “has applied for a job with his union,” the court
properly concluded: “If Father is convicted on those charges, and has to
spend time in jail, then CYS may be able to show that the incapacity will not
be remedied by the parent and termination may be appropriate at that
time.” Trial Ct. Op. at 9. A final disposition of Father’s pending criminal
charges would allow CYS to determine whether another petition is
appropriate and, if so, allow CYS to present a full set of facts to the court for
disposition of a new termination petition. Accordingly, we conclude that the
trial court did not abuse its discretion by declining to terminate Father’s
parental rights based on the pending criminal charges.
Finally, Child and CYS argue that the trial court erred in failing to
address evidence presented as to the parent-child bond and the detrimental
effect of severing the bond between Child and Foster Mother. The trial court
declined to analyze the bond between Child and either Father or Foster
Mother because it had concluded that grounds for termination did not exist
under section 2511(a). Trial Ct. Op. at 9.
We agree with the trial court’s analysis. A trial court only “engage[s]
in the second part of the analysis pursuant to Section 2511(b) . . . if the
court determines that the parent’s conduct warrants termination of his or
her parental rights.” In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007).
Because the trial court found that grounds for termination did not exist, it
appropriately denied CYS’s petition without considering the bond between
Father and Child.
- 16 -
J-A05034-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2017
- 17 -