In the Matter of: S.P.M., Appeal of: G.M., III

J-A02026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: S.P.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
v. :
:
:
APPEAL OF: G.M., III :
: No. 1059 MDA 2018
Appellant
Appeal from the Decree Entered June 6, 2018
In the Court of Common Pleas of Dauphin County Orphans’ Court at
No(s): 47 AD 2018
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
DISSENTING MEMORANDUM BY NICHOLS, J.: FILED JUNE 18, 2019
I disagree with the majority and would conclude that the trial court erred
in granting CYS’s petition based on Section 2511(a)(2) and (b). Therefore, I
respectfully dissent.
A review of the record reveals the following background to this case.
CYS did not contest the fact that Father performed parental duties and
developed a close bond with Child before his incarceration in May 2016. See
N.T., 6/4/18, at 14-15. Father resided with Child for the first four years of
Child’s life. Id. at 7-34. In 2014, Father separated from Child’s mother, but
maintained visitation with Child during 2014 and 2015. Id. at 45. According
to Heather Gutshall, a CYS caseworker, Father “was a great father, [and he]
was the identified father for all the siblings because the other fathers were not
part of their lives. He would go to activities. He would go to school. He did
things with them that the other fathers did not.” Id. at 15.
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At the end of May 2016, Father was taken into custody in Cumberland
County for criminal charges involving possession with intent to deliver and a
firearm. See CP-21-CR-000187-2016 (187-2016) (indicating Father was
arrested on May 30, 2016). In June 2016, while Father was in Cumberland
County Jail, CYS removed Child from her mother’s care and took custody of
Child. See N.T., 6/4/18, at 5, 29.
Father testified that he remained in Cumberland County Jail between
June 2016 and February 2017. During that time, he attempted to remain in
contact with Child. Id. at 33. Father explained that on one occasion, he spoke
to Child on the phone during a three-way call with his sister. Id. However,
Father stated that after he spoke to Child, her foster family indicated that
Child “kind of got upset and was crying and saying she missed” him. Id.
Father asserted that he coordinated with his mother to send gifts and clothes
to Child and her foster siblings. Id. at 33-34. He also testified that he sent
Christmas gifts to Child through a local church organization in December 2016.
Id. at 33, 40.
On January 17, 2017, Father pled guilty at docket 187-2016 and was
sentenced to forty-two to eighty-four months’ imprisonment. In February
2017, Father was transferred from Cumberland County Jail to SCI-Camp Hill.
Id. at 30. Father remained at Camp Hill from February 2017 to July 2017.
While at Camp Hill, Father wrote directly to Child on April 2, 2017, May
6, 2017, and June 12, 2017. Id. at 35. Father testified that he did not receive
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responses from Child or from her foster family. Id. at 36. Father also
continued to communicate with CYS.
In an April 2, 2017 letter to CYS, Father explained that he was unable
to get in contact with his appointed counsel in this matter. Father’s Ex. 2 at
1. He explained that his mother and sister were working with CYS to get
custody of Child while he was in prison, and indicated that he wanted Child to
stay with them “until she is able to be with me.” Id. He also requested
information from CYS about scheduling visitation with Child. Id. Finally,
Father requested information about “everything I have to do to work towards
getting my daughter back one day.” Id.
In a May 8, 2017 letter to CYS, Father indicated that he never received
a response to the April 2, 2017 letter. Id. at 7. Father again asked what he
needed to do to protect his parental rights.
In a June 12, 2017 letter to CYS, Father indicated that he received the
information from CYS regarding prison programs. Id. at 9. However, he
explained that he was still assigned to the Classification Unit at Camp Hill,
which precluded him from participating in any prison programs until he was
assigned to his “home jail.” Id.
In a July 5, 2017 letter to CYS, Father indicated that he was transferred
to SCI-Pine Grove, and he was on the waiting list for the programs that CYS
instructed him to complete. Id. He also inquired about his letters to Child,
and indicated that he had not gotten a response or any confirmation that she
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had received them. Id. On July 11, 2017, the trial court found aggravated
circumstances against Father based on his limited contact with Child.1
With respect to visitation with Child, Father testified that DOC rules
precluded him from placing a minor on his visitors list or on his phone list.
N.T., 6/4/18, at 30-31; 46. Although Child’s foster family could have been
added to Father’s vistors list, he indicated that CYS instructed him to go
through the Agency, and not to contact the foster family directly under any
circumstances.2 Id. at 46. Appellant continued to remain in contact with
Child either directly or through his mother.
On May 3, 2018, CYS filed the petition to terminate Father’s parental
rights under 23 Pa.C.S. § 2511(a)(1), (2), and (b). The trial court held a
hearing at which Ms. Gutshall testified in support of the petition. Father, who
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1 Father did not appeal the finding of aggravated circumstances.
2 The Pennsylvania Dependency Benchbook (Benchbook) includes an entire
section on dependency cases involving incarcerated parents. Administrative
Office of Pennsylvania Court’s Office of Children and Families in the Courts,
Pennsylvania Dependency Benchbook §§ 8.1-8.8 at 126 (2014). Specifically,
the Benchbook recommends that the hearing judge order an incarcerated
parent to appear at every hearing, either by transport or through video
conferencing. Id. at § 8.3. With respect to visitation, the Benchbook notes
that a court should order visitation, as many institutions do not permit contact
visits without a court order, and there is a lack of written county protocol for
working with incarcerated parents with dependent children. Id. § 8.4. It does
not appear that either of these avenues were pursued in Father’s case.
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was represented by counsel, testified on his own behalf. Child’s guardian ad
litem was present at the hearing.3
Ms. Gutshall testified that Father did not comply with his goals of
maintaining contact with Child, maintaining communication with CYS,
attending court hearings, or attending CYS meetings and treatment plan
meetings. See N.T., 6/4/18, at 6-10. During cross-examination by Father’s
counsel, Ms. Gutshall acknowledged that Father was continuing to make
efforts “to the best of his ability due to his incarceration.” Id. at 20.
On redirect examination by CYS’s counsel, Ms. Gutshall asserted that
Father could have done more, explaining that:
If you see based on the documentation here, [C]hild was placed
in June of 2016. We did not receive any contact or a birthday card
in October of 2016. So our concern is that after countless
conversations with him, his counselor, the letters that we sent, his
mother, his sister, as far as what he could have done, he failed to
do it.
We talked to him repeatedly to obtain an attorney so that he could
be present and make sure his rights were represented in court.
He failed to do that for a whole entire year up until the point of
2017. So our concern is that he could have written a lot more
than once a month. He could have engaged a lot more than what
he did and he did not.
Id. at 22.
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3The trial court did not appoint separate legal counsel for Child. See In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). However, as discussed below,
Child expressed a preference to be adopted by a foster family, although she
wished to remain in contact with Father.
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Ms. Gutshall indicated that Child is aware of Father’s role in her life prior
to his incarceration. Id. at 20. When asked by Father’s counsel whether Child
had any fear or hostility towards Father, Ms. Gutshall stated “no, not at all,
just more so emotions as far as missing him.” Id. According to Ms. Gutshall,
Child wants to be adopted by her foster family, but wants to remain in contact
with Father. Id. at 15, 20. Ms. Gutshall testified that Child is in therapy, as
she is “struggling emotionally.” Id. at 23.
Child’s guardian ad litem stated that “for the record, I talked to [C]hild
on a number of occasions, and at seven she’s very confused, conflicted, upset
about the whole process.” Id. at 47. Child’s guardian ad litem stated that
Child is “very comfortable where she is with” foster parents, but also that Child
“misses her sister; in one breath [she] would want to go where her sister is
with that foster parent. . . .” Id. The guardian ad litem did not indicate that
Child wanted to return to Father’s care. Id. at 47-48. The guardian ad litem
further stated that Child did not want to live with Father’s mother. Id. at 48.
At the conclusion of the hearing, the trial court issued its determination
that termination of Father’s parental rights was appropriate under Sections
2511(a)(2) and (b). The court authored a separate Rule 1925(a) opinion
further explaining its decision.
As to Section 2511(a)(2), the trial court initially acknowledged that Child
would be in Father’s custody if he was not incarcerated, which would not be a
“bad thing.” N.T., 6/4/18, at 51. The court noted that Father “could do very
little in prison[,]” but indicated that Father had made an effort to maintain his
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relationship with Child and utilized the resources available to him in prison.
Id. The court acknowledged CYS’s argument that Father’s efforts did not
“really start in earnest until there was a termination” but stated that it would
give Father “the benefit of the doubt.” Id. The court also found that Father
participated in prison programs and did not “have any misconducts or
infractions,” which showed “a light at the end of the tunnel for him . . . .” Id.
at 52. The court noted that an incarcerated parent is “expected to utilize the
resources available, and it appears that [Father] is.” Id.
The trial court nevertheless concluded that Father could not meet Child’s
essential needs from prison, and because he would be incarcerated for
“another year or more,” Child’s need for permanency should not be delayed.
Id. at 53. The court noted that Child did not have stability or consistency “up
until the time of foster care,” and her needs could not be put on hold. Id.
After Father filed his appeal, the trial court offered a different rationale
in its Rule 1925(a) opinion:
We find Father’s contact with [Child] and participation in parenting
programs during incarceration to be belated. Although Father
knew of [Child’s] placement in June 2016, he delayed writing to
her until May 2017. Father began earnest action in prison
programs only after the finding of Aggravated Circumstances in
July 2017, more than one year after [Child] came into placement.
We found Father’s attempts to explain delays in his participation
in prison programs, as caused by others, to lack credibility. Such
explanations do not excuse his lack of timely action to protect his
parental rights.
Trial Ct. Op., 8/16/18, at 7.
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Initially, I am troubled by the trial court’s shifting rationales in its
statements at the hearing and its Rule 1925(a) opinion. First, the court’s
initial finding that Child lacked permanency and stability before placement in
foster care ignores the uncontradicted evidence that Father played an active
role in Child’s life before his incarceration. See N.T., 6/4/18, at 14-15.
Second, the court’s initial finding that Father made reasonable efforts while in
prison contradicts its later conclusion that Father’s efforts to protect his
parental rights were belated. See id. at 51; Trial Ct. Op. at 7. In my view,
these inconsistencies suggest that the trial court failed to consider the full
context of the case, and further undermine the court’s conclusion that
termination of Father’s parental rights was warranted under Section
2511(a)(2).
In order to terminate parental rights based on incapacity, the following
three elements must be met: (1) repeated and continued incapacity; (2) such
incapacity has caused the child to be without essential parental care, control
or subsistence necessary for her physical or mental well-being; and (3) the
causes of the incapacity cannot or will not be remedied. In re Adoption of
C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015).
As to incarceration, it is well settled 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
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parent,” sufficient to provide grounds for termination pursuant to
23 Pa.C.S. § 2511(a)(2).
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (citations omitted).
Here, the trial court concluded that Father’s incarceration had rendered
him incapable of providing Child with essential parental care. See N.T.,
6/4/18, at 51. The record arguably supports this conclusion.4
However, I cannot agree that there was sufficient evidence presented
to establish that Father’s parental capacity cannot or will not be remedied.
See, e.g., S.P., 47 A.3d at 831 (holding that the father’s release from prison
would not remedy his parental incapacity, as he would still be required to enter
a halfway house; further, because he was incarcerated since the child’s birth,
he did not have a relationship with the child and he lacked the skills necessary
to care for a child with special needs); see also In re E.A.P., 944 A.2d 79,
85 (Pa. Super. 2008) (stating that the mother’s ability to remedy her parental
incapacity was not a “reasonable prospect,” despite her participation in prison
programs, as she had failed to parent her child for the past ten years, had no
relationship with the child, and was a registered sex offender).
Unlike in S.P. and E.A.P., the uncontroverted evidence demonstrates
that Father was an active parent for the first five years of Child’s life. Child
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4 Under the circumstances of this case, I would disagree with the trial court’s
conclusion. However, our standard of review is narrow, and “an abuse of
discretion does not result merely because the reviewing court might have
reached a different conclusion.” S.P., 47 A.3d at 827.
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knows Father, remembers his role in her life prior to his incarceration, and has
indicated that she misses him. Further, CYS presented no evidence of other
factors that would impede Father’s ability to parent Child upon his release
from prison.5 See S.P., 47 A.3d at 831 (concluding that the parent could not
remedy their incapacity, as the parent had no relationship with the child prior
to their imprisonment and faced additional barriers to their ability to parent
even if they were released on parole); E.A.P., 944 A.2d at 85 (same).
Therefore, I would conclude that the trial court’s findings and
statements of reasons do not support its decision to terminate Father’s
parental rights under Section 2511(a)(2). Under the circumstances of this
case, I discern no record support for a finding that Father’s incapacity cannot
or will not be remedied.
To the extent that the majority reviews the trial court’s ruling as to
Section 2511(b), I am constrained to disagree with the decision to affirm. At
the termination hearing, the trial court reasoned:
[B]ased on everything that’s been presented here, we believe
[termination is] in the best interest of [C]hild -- and [C]hild
bonded with [her] present family. It doesn’t mean the child
doesn’t love the parent.
I believe [C]hild loves [F]ather. I think it’s -- there’s confusion
because it’s been inconsistent. Particularly [F]ather hasn’t been
with the child for over two years, and, I mean, that has a
significant impact on a young child.
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5 Father will be eligible for parole in July 2019, approximately one year from
the date of the termination hearing.
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N.T., 6/4/18, at 53.
In its Rule 1925(a) opinion, the trial court stated:
The record is devoid of evidence of a bond with Father which, if
broken, would cause detriment to [Child].
We recognize that Father seeks additional time within which to
prove that he can properly parent after release from incarceration,
which would occur in 2019, at the earliest. In deciding the issue
of the best interests of a child, our appellate courts have noted
that it is essential to allow a child “a chance to have his [or her]
fundamental needs met without the constant insecurity that
comes with knowing that someday, perhaps in the unreasonably
distant future, [he or she] might again be wrenched away from
his committed and capable caregiver.” In re N.C., 763 A.2d 913,
919 (Pa. Super. 2000). This [c]ourt has grave concerns about the
impact upon [Child] of additional years of uncertainty and
ultimately, the potential of removal from a foster home which has
provided love, security and stability.
Trial Ct. Op. at 8. The trial court concluded that Child’s need for permanency
and stability outweighed any potential bond to Father. See N.T., 6/4/18, at
53.
Section 2511(b) does not make specific reference to an evaluation of
the bond between parent and child, but our case law requires the evaluation
of any such bond. See In re E.M., 620 A.2d 481, 483 (Pa. 1993). However,
this Court has held that the trial court is not required by statute or precedent
to order a formal bonding evaluation performed by an expert. See In re
K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
We have stated that “the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” Adoption of J.M., 991
A.2d 321, 324 (Pa. Super. 2010) (citing In re K.Z.S., 946 A.2d 753, 763 (Pa.
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Super. 2008)). Moreover, the burden is upon the petitioner “to prove the
grounds for termination of parental rights under [Section 2511(b)] by clear
and convincing evidence.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citing
S.P., 47 A.3d at 821–822).
Here, the uncontradicted evidence established that Father was a good
father to Child, and there was no indication, aside from Father’s incarceration,
that the bond was detrimental. See N.T., 6/4/18, at 15, 53. Although Father’s
incarceration caused instability in Child’s life, there were several indications in
the record that Child was deeply troubled over the possibility that her bond
with Father could be severed permanently. See id. at 20-23, 47.
Therefore, I cannot agree with the trial court’s conclusion that “[t]he
record is devoid of evidence of a bond with Father which, if broken, would
cause detriment to [Child].” Trial Ct. Op. at 8. Given the trial court’s limited
analysis, I am of the view that the court failed to afford the “utmost attention”
to the effects of terminating Father’s parental right on Child. See T.S.M., 71
A.3d at 267. Indeed, our Supreme Court has explained that “attention must
be paid to the pain that inevitably results from breaking a child’s bond to a
biological parent, even if that bond is unhealthy, and we must weigh that
injury against the damage that bond may cause if left intact.” Id. at 270.
Therefore, I respectfully dissent.
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