In the Int. of: D.S.B., a Minor

J-S28018-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.S.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: D.B.B., FATHER
No. 65 MDA 2015
Appeal from the Decree entered November 17, 2014,
in the Court of Common Pleas of Lancaster County,
Orphans’ Court, at No(s): 1648-2012
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY ALLEN, J.: FILED JUNE 15, 2015
D.B.B. (“Father”) appeals from the decree involuntarily terminating his
parental rights to his daughter, D.S.B. (“child”), born in July of 2005. 1 We
affirm.
In its opinion, the trial court set forth forty-four findings of fact, which
the testimonial and documentary evidence supports. As such, we adopt
them as the factual and procedural history of this case. See Trial Court
Opinion, 2/5/15, at 5-11.
On August 2, 2012, the Lancaster County Children and Youth Social
Service Agency (“CYS”) filed a petition for the involuntary termination of
Father’s parental rights. The trial court held a hearing on the petition on
____________________________________________
1
D.S.B.’s mother has consented to the child’s adoption and is not involved
in this appeal.
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November 6, 2014, at which Father and CYS caseworker Scott Kearse
testified.
By decree dated November 17, 2014, the trial court involuntarily
terminated Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1)
and (2). Father filed a notice of appeal on January 7, 2015.2 On January
14, 2015, Father filed a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On February 5, 2015, the trial court entered an
opinion pursuant to Pa.R.A.P. 1925(a).
Father raises two issues for our review:
____________________________________________
2
Pursuant to Pa.R.A.P. 903(a), a notice of appeal must be filed within 30
days after the entry of the order from which the appeal is taken. Here, the
notice of appeal was filed 52 days after the entry of the order terminating
Father’s parental rights.
Our review of the trial court docket sheet indicates, however, that on
December 4, 2014, the decree of termination that had been mailed to Father
was returned to the Lancaster County Clerk of Courts as undeliverable. The
decree was re-sent to Father on December 16, 2014 at the correct address.
This Court has previously held that “[p]ursuant to Pa.R.App.P. 108(b), the
‘date of entry’ of an order in a civil matter is the day on which notation is
made in the docket that notice of the order has been given, as required by
Pa.R.C.P. 236(b).” Estate of Keefauver, 359 Pa. Super. 336, 338, 518
A.2d 1263, 1264 (1986). Thus, in Keefauver, we reasoned that where the
docket did not indicate that the appellant received proper notice of the
Orphans’ Court decree, the period for taking an appeal pursuant to Pa.R.A.P.
903(a) was never triggered and therefore the appellant had not waived his
right to appeal for failure to file within 30 days. Here, the thirty-day filing
requirement was not triggered until December 16, 2014, when the decree of
termination was sent to Father at the correct address. Father was therefore
required to file his notice of appeal before January 15, 2015. Consequently,
Father’s notice of appeal filed on January 7, 2015 is timely.
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1. WHETHER THE AGENCY MET ITS BURDEN IN
TERMINATING APPELLANT’S PARENTAL RIGHTS UNDER 23
Pa.C.S. SECTIONS 2511(a)(5) and (8) WHEN THE CHILD
WAS NOT REMOVED FROM HIS CUSTODY.3
2. WHETHER THE AGENCY MET ITS BURDEN TO PROVE BY
CLEAR AND CONVINCING EVIDENCE THAT APPELLANT
EVIDENCED A SETTLED PURPOSE OF RELINQUISHING
PARENTAL CLAIM TO HIS DAUGHTER.
Father’s Brief at 6.
We review Father’s issues regarding the involuntary termination of
parental rights according to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). 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.; R.I.S.,
[___ Pa. ___, ___, 36 A.3d 567, 572 (Pa. 2011) (plurality
opinion)]. As has been often stated, an abuse of discretion does
not result merely because the reviewing court might have
reached a different conclusion. Id.; see also Samuel Bassett
v. Kia Motors America, Inc., [___ Pa. ___], 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d
630, 634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
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3
Although Father contends that the Agency failed to satisfy 23 Pa.C.S.
sections 2511(a)(5) and (8), our review indicates that the trial court
involuntarily terminated Father’s parental rights pursuant to 23 Pa.C.S.A §
2511(a)(1) and (2). See Decree, 11/17/14. Nevertheless, the trial court in
its Pa.R.A.P. 1925(a) opinion addressed Father’s claims that the Agency
failed to satisfy the requirements of § 2511(a)(5) and (8), in addition to the
requirements of (1) and (2). See Trial Court Opinion, 2/5/15, at 11-12.
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As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at
28-30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency
and termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. The party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section 2511(a).
Only if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. §
2511). The burden is upon the petitioner to prove by clear and convincing
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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).
Instantly, the relevant provisions of the Adoption Act are 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:
(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.
(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.
...
(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)(1),(2), (b).
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We note that we must agree with only one subsection of 23 Pa.C.S.A.
§ 2511(a), in addition to subsection 2511(b), in order to affirm the
termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
With respect to Section 2511(a)(1), our Supreme Court has held,
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
In re Adoption of Charles E.D.M., 550 Pa. 595, 602, 708 A.2d 88, 92 (Pa.
1998). Further,
the trial court must consider the whole history of a given case
and not 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 or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
To terminate parental rights pursuant to Section 2511(a)(2), the
moving party must produce clear and convincing evidence regarding the
following elements: (1) repeated and continued incapacity, abuse, neglect
or refusal; (2) such incapacity, abuse, neglect or refusal 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,
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neglect or refusal cannot or will not be remedied. See In re Adoption of
M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). Parents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002).
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. Id.
With respect to Section 2511(b), we have explained the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Upon review, we conclude that the record evidence unequivocally
supports the trial court’s termination of Father’s parental rights with respect
to 23 Pa.C.S.A. § 2511(a)(1) and (2) and (b).
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For example, CYS Caseworker Scott Kearse testified that Father
“reported” that he assisted in the child’s care until December of 2010, when
he moved out the home. N.T., 11/6/14, at 13. Thereafter, the child was in
the care of her mother, until the Agency obtained physical custody of the
child in March of 2011, and legal custody of the child in May of 2011, after
which Father had such little contact with the Agency that aggravated
circumstances were found against Father on March 22, 2012. Id. at 14-15,
20. Father was ultimately located by the Agency at the Quehanna Boot
Camp in September 2014, where he had been incarcerated since January
16, 2014. Id. at 14-15, 26. He never gave Mr. Kearse an explanation for
failing to make contact with CYS or his child for approximately three and a
half years. Id. at 17-18. Mr. Kearse testified that termination was in the
child’s best interest, so that she can achieve stability and be adopted by the
permanent placement where she has lived for the past two years. Id. at 17-
19. The child has no independent recollection of Father. Id. at 26.
Father explained his failure to keep in contact with CYS and the child
as follows:
That’s why I was worried about – I was – just lost my
mom at the same time and everything else. I’m an only child. I
was going through my own things and me being selfish, I
screwed up, but I’m here, you know, I can’t do nothing about
that but try to do the best thing I can right now.
Id. at 38.
Father continued:
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And like I told you, I went through – I was going through
my own problems right at the time. I, you know, my mom dying
and everything else, I had to pay for that. And you know, my
mom was going through dementia. I had to take care of her and
everything else.
So I, you know, that was – I forgot about – I know that
was my priority, my other priority, but I had a lot on my plate
for one person, and I thought [child] was better at that time in a
better place. I couldn’t do nothing for her at that time.
Id. at 42.
Father testified to having a history of medical, legal, drug and alcohol,
and mental health issues, but averred that although he arrived at the boot
camp with “an attitude and some problems … from the street,” he was
successfully participating in a drug and alcohol program and planned to
graduate from the program and move to a halfway house, and wished to
resume a parenting relationship with child. Id. at 42-45.
Based on the foregoing, we discern no abuse of discretion by the trial
court in terminating Father’s parental rights. See In re A.L.D., supra
(parents are required to make diligent efforts towards the reasonably
prompt assumption of full parental responsibilities). Accordingly, we adopt
the trial court’s February 5, 2015 opinion as dispositive of Father’s issues on
appeal. See Trial Court Opinion, 2/5/15. Father is directed to attach a
redacted copy4 of the trial court’s opinion in the event of further
proceedings.
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4
The copy shall redact on page 1 the names of Father and D.S.B.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE:
No. 1648 of 2012
INVOLUNTARY TERMINATION
OPINION SUR APPEAL
..
This opinion is written in response to an appeal from this
Court's issuance of a decree which involuntarily terminated the
parental rights of as birth parent of
(he!'einafter referred to as ''D.S. B." or as the ''Child'') .
The Lancaster County Children and Youth Social Service
Agency (hereinafter, the "Agency'') filed a Petition to Terminate
Parental Rights on August 2, 2012.
Service of the Petition to Terminate Parental Rights was
attempted upor · (hereinafter, "Father") on
several occasions over a two-week period commencing on August 21,
2012. His whereabouts were unknown. His location was
established in August 2014. He participated at the first
'
termination of parental rights hearing on August 14, 2014, which
was continued at his request to be represented by counsel. He
was personally served on October 7, 2014, with the notice of the
Termination Hearing scheduled for November 6, 20l4. He
... participated by telephone at the hearing on
November 6, 2014, and
was represented by court-appointed counsel.
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The biological mother of D.S.B. is
a/k/a · (hereinafter, \\Mother"). She executed
a consenc for the Child to be adopted on November 6, 2014. A
Decree was issued on January 13, 2015, confirming her consent for
the child to be adopted. Mother is not a party to this appeal.
A hearing to address the issue of whether Father's parental
rights should be terminated wa~ held on November 6, 2014.
The Court's decree terminating Father's parental rights was
signed on November 17, 2014. The Decree was sent to Father at
Quehanna Boot Camp, 4510 Quehanna Highway, Karthaus, Pennsylvania
•
16845. However, it was returned to the Clerk of the Orphans'
Court because Father's inmate number was not indicated on the
envelope.
number.
The Decree was sent again to Father with his inmate
Upon Father receiving the Decree, his counsel filed a
timely Notice of Appeal on January 7, 2015.
\I
PROCEDURAL HISTORY
The Agency originally filed for custody of the Child on
March 15, 2011. At that time, the Child was in the custody of
Mother. The Agency had concerns in respect to Mother's failure
to supervise the Child, her lack of housing, and her mental
health. The petition alleged that Father is a drug addict and
that he had minimal involvement with the Child. A Shelter Care
Order was eptered March 17, 2011, which granted temporary legal
and physical custody of the Child to the Agency. Father was
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present at the hearing and was represented by counsel. After
April 25, 2011, the Agency had no contact with Father. He
attended-no other hearings relative to the dependency
proceedings. His first and last parent-child visit was March 28,
2011. (See Agency's Peticion for Permanency Hearing filed
February 20, 2014.)
An Adjudication/Disposition hearing was held on May 12,
2011.
-
An Order of Adjudication and Disposition-Child Dependent
was issued on that same date. The Court approved a Child's
Permanency Plan prepared on April 5, 2011, which specified a
primary goal •of reunification and a concurrent goal of adoption.
The sole objective for Father as outlined in the initial
Child's Permanency Plan was that Father 9articipate in and
complete a drug and alcohol evaluation by an approved Agency
provider. Father failed to obtain this evaluation. In the event
that Father has obtained the drug and alcohol evaluation, there
would have been other objectives set for him, including his
compliance with recommendations of the drug and alcohol
evaluation, his completion of an Agency-approved parenting
program, his procurement of safe and stable housing, his
procurement of a consistent source of income, and his maintenance
of positive and appropriate interaction with the Child during
scheduled visits. Because the initial evaluation was never done,
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Father never moved forward to address and complete has any of his
objectives.
In !ts Petition to Terminate Parental Rights, the Agency
alleged as the bases for termination that:
A. The parents, by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition, either have evidenceq a settled purpose of
relinquishing parental claim to the child or have refused or
failed to perform parental duties. (Section 2511 (a) (l)).
B. The repeated and continued incapacity, abuse, neglect,
.
or refusal of the parents has caused the child to be without
essential parental care, control, or subsistence necessary for
his physical and mental well-being and the conditions and causes
of the incapacity, abuse, neglect or refusal cannot or will not
be remedied by the parents. (Section 2511 {a) (2)).
c. The child has been removed from the care of the parents
by the Court for a period of at least six months, the conditions
which led to the removal or placement of the child continue to
exist, the parents cannot or will not remedy these conditions
within a reasonable period of time, the services or assistance
reasonably available to the parents are not likely to remedy the
conditions which led to the removal or placement of the child
within a reasonable period of time and termination of parental
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rights would best serve the needs and welfare of the child.
(Section 2511 (a} (5)).
D. -The child has been removed from the care of the parents
by the Court or under a voluntary agreement with an agency,
twelve months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or placement
of the child continue to exist .a,nd termination of parental rights
would best serve the needs and welfare of the child. (Section
2511 (a) (8)).
FINDINGS OF FACT
•
Background Facts
1. D.S.B. was born July 16, 2005, in York County,
Pennsylvania. (Petition to Terminate Parental Rights)
2. D.S.B. has been in the physical custody of the Agency
since March 15, 2011. (N.T. 11/6/14 at page 11}
3. D.S.B. has been in the legal custody of the Agency since
May 12, 2011. (N.T. 11/6/14 at page 12}
4. At the time of the termination of parental rights
hearing on November 6, 2014, the Child had been in the care of
the Agency for forty-three months. (N.T. 11/6/14 at page 48}
5. Father has been residing with the Child's paternal
grandmother and the Child prior to the Child being placed. (N.T.
11/6/14 at ~age 13)
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6. Father moved out of paternal grandmother's home in
December 2010. (N.T. 11/6/14 at page 13)
7. - At that time, the Agency had received reports that
Father was a drug addict and unable to properly care for the
Child. (N.T. 11/6/14 at page 13)
8. Prior to the Child being placed, Father had given the
Child to Mother. (N.T. 11/6/14., at page 28}
9. At the time of the Child's placement in March 2011, the
Child was in the care of Mother. (N.T. 11/6/14 at page 20)
Dependency Proceedings
•
10. When the Child was found to be dependent on May 12,
2011, the Court had ordered the Agency to accomplish an
assessment of Father to determine what services would be
necessary to determine if he could care for his Child and if
reunification was possible. {N.T. 11/6/14 at pages 13-14)
11. Father attended the shelter care hearing on March 17,
2011, but he attended or participated in no other hearings
chereafter until the termination of parental rights hearing on
November 6, 2014, more than three years and seven months later.
(N.T. 11/6/14 at page 14)
12. Father had one visit with the Child after she was
placed. Father canceled the second scheduled visit. (N. T.
11/6/14 at pages 30-31)
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13. After he canceled his second scheduled visit with the
Child, Father did not contact the Agency to request visits with
the Child until February 2012. (N.T. 11/6/14 at page 25 and
pages 32-33)
14. Father attempted to visit the Child sometime in
February 2012, but his right to visit had been suspended by the
Court by Order dated August 8, ~011, due to his failure to
maintain contact. (N.T. 11/6/14 at pages 32-33)
15. Parents are informed when a dependency action
originates that they must notify the Agency within twenty-four
•
hours if their address should change. (N.T. 11/6/14 at page 25)
16. Father moved from an address on Judie Lane in Lancaster
Township during May 2011 and lived with his mother and aunt for
about a month. (N.T. 11/6/14 at page 39)
17. Father then moved his residence to 557 High Street in
Lancaster City. (N.T. 11/6/14 at page 39)
18. Father then left the High Street address and moved to
227 West Vine Street in Lancaster City, where he remained until
his incarceration in January, 2014. (N.T. 11/6/14 at page 39)
19. Father never contacted the Agency to inform them of his
address as it changed from time to time. (N.T. 11/6/14 at page
25)
20. Despite
. the fact that Father lived in Lancaster
Township or Lancaster City from May 2011 until January 2014,
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Father never bothered to go to the Agency to inquire about the
case or the Child, although he knew where the Agency was located.
(N.T. l1T6/14 at page 37)
21. Aggravated circumstances were found to exist with
regard to Father on March 22, 2012, due to his failure to have
any contact with the Agency for a period in excess of six months.
(N.T. 11/6/14 at pages 25-26)
Termination of Parental Rights Bearing
22. The Agency did not know Father's whereabouts from after
the shelter care hearing until August 2014. (N.T. 11/6/14 at
•
pages 21-22)
23. The Agency conducted a search to locate Father. (N.T.
11/6/14 at page 22)
24. The Agency located Father at the Quehanna Boot Camp in
August-September 2014. (N.T. 11/6/14 at pages 14-15)
25. From the time the Child came into the care of the
Agency until after he was served with the Agency's petition for
termination of his parental rights, Father had no contact with
the Agency and had only one viaic with the Child, which occurred
shortly after the Child was placed. (N.T. 11/6/14 at page 17)
26. When the Agency caseworker met with Father in September
2014, Father provided no explanation as to why he had not
maintained contact with the Agency or with the Child. (N.T .
•
11/6/14 at pages 17-18)
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27. Father is presently incarcerated after he was convicted
•
by guilty plea of manufacturing, delivery and possession with
intent t~ deliver drugs, of criminal use of a communication
facility, and of conspiracy to manufacture, deliver or possess
drugs and drug paraphernalia. (N.T. 11/6/14 at page 35)
28. Father's past criminal history includes two felony
convictions in addition to the ~forementioned crimes. (N.T.
11/6/14 at page 36)
29. Father was incarcerated at Camp Hill State Correctional
Institution from January 16, 2014, until his transfer to Quehanna
Boot Camp.
•(11/6/14 at page 36)
30. Father has been incarcerated at the Quehanna Boot Camp
since May 29, 2014. (N.T. 11/6/14 at page 36)
31. During the termination of parental rights hearing on
November 6, 2014, Father stated that he should be released from
Quehanna Boot Camp in about a month or two. (N.T. 11/6/14 at
page 44)
32. Father expected to be moved to York, Pennsylvania, upon
his release from Quehanna Boot Camp, where he will then spend
approximately four months in a ralf-way house. (N.T. 11/6/14 at
page 45)
33. Father acknowledged that he cannot do anything for the
Child while he is incarcerated and that the Child was in the best
place she could be. (N.T. 11/6/14 at page 46)
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34. After his first and only visit with the Child (which
occurred soon after the Child was placed), Father did not attempt
to visit the Child at the Agency because he "just did not do it."
(N.T. 11/6/14 at pages 40-41)
35. Father excuses his lack of contact with the Agency and
his failure to visit with the Child on the basis that he had "a
lot on his plate" and he could not do anything for the Child at
that time. (N. T. 11/6/14 at page 42)
36. Father also thought that Mother was doing everything
necessary to have the Child returned to her. (N.T. 11/6/14 at
•
pages 37-38}
37. Father acknowledged having an addiction to pain pills.
(N.T. 11/6/14 at pages 42-43)
38. Father receives disability for depression and being
bipolar. (N.T. 11/6/14 at page 43)
39. Father's older children live in York, Pennsylvania.
40. Father believes that his older children will help him
raise the Child. (N.T. 11/6/14 at page 45)
Beat Interest of the Child
41. The Child has been in the same resource home for two
years.
42. The home where the Child is placed is a potential
permanent r~source home for her. (N.T. 11/6/14 at page 18)
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43. It is in the Child's best interest to be adopted and
have a permanent home. (N.T. 11/6/14 at page 19)
44. The Child has no independent recollection of who her
father is. (N.T. 11/6/14 at page 26)
CONCLUSIONS OF LAW
•
1. There is clear and con'1'!"ncing evide~ce that:
Father for a period of at least six months immediately
preceding the filing of the petition has evidenced a settled
purpose of r~linquishing parental claim to said Child or has
refused to perform parental duties.
2. There is clear and convincing evidence that:
(a) the repeated and continued incapacity of Father
has caused the Child to be without essential parental care,
control or subsistence necessary for his physical or mental well-
being;
(b) the conditions and causes of the incapacity cannot
or will not be remedied by Father.
3. There is clear and convincing evidence that:
(a) the Child has been removed from the care of Father
for a period of at least six monthsi
(b) the conditions which led to the removal of the
..
Child continue to exist;
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(c) Father cannot or will not remedy these conditions
within a reasonable period of time;
(d) the services or assistance reasonably available to
Father is not likely to remedy the conditions which led to the
removal of the Child within a reasonable period of time; and
(e) termination of Father's parental rights would best
serve the needs and welfare of the Child.
4. There is clear and convincing evidence that:
(a) the Child has been removed from the care of his
parents by ti.e Court;
(b) twelve months or more had elapsed from the date of
removal;
(c) the conditions which led to the removal of the
Child continue to exist; and,
(d) termination of Father's parental rights would best
serve the needs and welfare of the Child.
5. There is clear and convincing evidence that the
termination of Father's parental rights will best serve the
developmental, physical, and emotional needs and welfare of the
Child because the Child is in need of a nurturing, loving and a
stable home environment, which Father failed to provide.
DISCUSSION
The Su~erior Court, in its opinion issued in the case of In
Re K.M., 2012 Pa.Super. 160, 53 A.3d 781, provided a
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comprehensive statement of its approach to the review of an order
terminating parental rights, which is in accordance with the
following standards:
~when reviewing an appeal from a decree
terminating parental rights, we are limited to
determining whether the decision of the trial court is
supported by competent evidence. Absent an abuse of
discretion, an error of law, or insufficient
evidentiary support for the trial court's decision, the
decree must stand. Where? trial court has granted a
petition to involuntarily terminate parental rights,
this Court must accord the hearing judge's decision the
same deference that we would give to a jury verdict.
We must employ a broad, comprehensive review of the
record in order to determine whether the trial court's
decision is supported by competent evidence.
In re RJJ.J., 985 A.2d 273, 276 (Pa.Super. 2009)
(quoting In re S.H., 879 A.2d 802, 805 (Pa.Super.
2005)). The burden is upon the petitioner to prove ·by
clear and convincing evidence that its asserted grounds
for seeking the termination of parental rights are
valid. Id. Moreover, we have explained that:
[t)he standard of clear and convincing evidence is
defined as testimony that is so "clear, direct, weighty
and convincing as to enable the trier of fact to come
to a clear conviction, without hesitance, of the truth
of the precise facts in issue." Id. ( quoting In re
J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).
The trial court is free to believe all, part, or none
of the evidence presented and is likewise free to make
all credibility determinations and resolve conflicts in
the evidence. In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004). If competent evidence supports the
trial court's findings, we will affirm even if the
record could also support an opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003).
This Court may affirm the trial court's termination of
parental rights with regard to any one subsection of
section§ 2511 (a). See In re B.L.W., 843 A.2d 380,
384 (Pa.Super.2004) (en bane)."
Id., at 53 A.3d 785-786.
In the' present case, the Agency filed for termination on
four distinct statutory grounds, all of which were proven as to
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Father by clear and convincing evidence. Specifically, the
Agency met its burden in respect to proving grounds for the
termination of Father's parental rights under 23 Pa.C.S.A. § 2511
( a) (1) , (2 ) , ( 5 ) , and ( 8 ) .
Grounds for Termination under 23 Pa. C.S.A. § 2511 (a) Cl)
The Agency met its burden of proof in respect to 23
Pa.C.S.A. § 2511 (a) (l}, where.the basis for termination may be
summarized as parental abandonment of a child. Mother had
custody of the Child immediately preceding the Child's placement.
Father was not involved in parenting the Child at that time.
Father appeared at the shelter care hearing and had one visit
with the Child. He was apprised of the Child's placement in the
Agency's care, he knew where the Agency was located, and, until
January 2014, he lived close-by to the Agency's offices. Yet,
other than the one contact he made in February 2012 to attempt to
arrange a visit, Father initiated no contact with the Agency, nor
did he inform the Agency of his address as he moved from place to
place. The evidence is overwhelming that Father willingly and
knowingly has abandoned the right to parent this Child.
Grounds for Termination under 23 Pa.C.S.A. § 2511 (a) (2)
The basis for termination of parental rights under 23
Pa.C.S.A. § 2511 {a) (2} is, in summary, the incapacity of, or
refusal by,~the parent to correct the conditions which led to the
placement.
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The Child had been in the care of the Agency for forty-three
months as of the time of the termination hearing on November 6,
2014. Father did nothing to attempt to correct the conditions
that led to placement of the Child. Father managed one visit
with the Child shortly after placement. By Father's own account,
be was residing in Lancaster Township and City, nearby to the
Agency, from approximately May ;011 until January 2014. He made
one feeble attempt to see the Child after his first and only
visit, and that came almost a year after the Child entered care.
Father offered no sufficient explanation for his failure to be a
•
parent. Father had more than adequate time to obtain the drug
and alcohol evaluation required in the Child's Permanency Plan as
a precursor to other potential services that the Agency might
then have offered to him. Rather than take any initiative
whatsoever, Father sat reticent in the belief that Mother would
pursue her Child's Permanency Plan objectives and be reunited
with the Child, thereby opening an opportunity for Father to be
reunited with the Child without any effort expended on his part.
Father's gamble on Mother proved to be misplaced.
The Agency has proven by clear and convincing evidence that
the Child has been without essential parental care, control or
subsistence necessary for his physical or mental well-being.
Father is unable to remedy the conditions and causes of his
inability to provide for the Child's needs.
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Grounds for Termination under 23 Pa.C.S.A. § 2511 (a) (S)
The hallmarks of grounds for termination of parental rights
under 23 -Pa.C ...
sA § 2511 (a) (5) are that the subject child has
been in placement for at least six months, the conditions which
led to placement continue to exist, that offered services are
unlikely to alleviate such conditions within a reasonable time,
and the subject child's needs a.pd welfare are best served by
termination.
Father chose to avoid contact with the Agency, thereby
rendering it impossible for the Agency to offer him services
•
which would have facilitated Facher's reunification with the
Child. Given Father's lack of commitment as evidenced by his
past actions, the conditions which led to placement most likely
will continue to exist. The only time Father had custody of the
Child was when Father lived with the Child's mother. Father has
never exercised independent responsibility as a parent to the
Child.
Father did not take the first step needed to
remedy the
conditions which led to the ch·l
id's placement as pertain to him.
Because of Father's failure
to obtain a drug and alcohol
assessment, Father frustrated any attempt by h
t e Agency to
identify other issues and assist
in remedying same.
be th Father must
ar e fault for the face that the
conditions which led to
placement have
not been addressed or
- rectified.
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...
All of the factors discussed above in respect to 23
Pa.C.S.A. § 2511 {a) (2) are applicable under 23 Pa.C.S.A. § 2511
{a) (5) ,-and will not be repeated at length.
The additional factor the Court must determine under 23
Pa.C.S.A. § 2511 {a) (5) is whether "termination of parental
rights would best serve the needs and welfare of the child."
This factor is essentially subs~med in the Court's consideration
of the application of 23 Pa. C.S.A. § 2511 (b), which is
discussed below.
Grounds for Termination under 23 Pa.C.S.A. § 251i (a) (8)
The grounds for termination of parental rights under 23
Pa.C.S.A. § 2511 (a) (8} are similar to the grounds established
under 23 Pa.C.S.A. § 2511 (a) (5). However, under subsection (a}
(8), the Agency need not prove incapacity or refusal by the
parent, nor need it prove the absence of a likelihood that the
services or assistance reasonably available to the parents will
prove successful. Rather, the emphasis moves to the length of
the lapse of time (from six months to twelve months), requiring
that if the conditions which led to placement 'persist one year or
more after placement, then termination should occur unless the
needs and welfare of the subject child suggest a contrary result.
In the instant case, to reiterate, the Child had been in
.
placement for forty-three months as of the November 6, 2014,
termination of parental rights hearing. Thus, the twelve months
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Court must assess the effect upon the child of severing that
bond. See In re KCR-S., 958 A.2d 529, 533 (Pa.Super. 2008).
Instantly, the Child does not know Father. Finding of Fact
44. There simply can be no bond where a parent is not in a
child's life for a period exceeding forty-three months. The
Child last saw Father when she was approximately five and a half
years old. She is now nine yea~s of age. The Child deserves
permanency. That will be accomplished by terminating Father's
parental rights, thereby clearing the way for her adoption to be
concluded.
•
The Federal Adoption and Safe Families Act (found at 42
U.S.C. §§ 620 through 679) requires that a child must achieve
permanency within a reasonable period of time.
Placement of and custody issues pertaining to
dependent children are controlled by the Juvenile Act,
which was amended in 1998 to conform to the Federal
Adoption and Safe Families Act (ASFA) ... The policy
underlying these statutes is to prevent children from
languishing indefinitely in foster care, with its
inherent lack of permanency, normalcy, and long-term
parental commitment. Consistent with this underlying
policy, the 1998 amendments ... place the focus of
dependency proceedings, including change of goal
proceedings on the child. Safety, permanency, and
well-being of the child must take precedence over all
other considerations, including the rights of parents.
In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006)
The record in this case is replete with evidence which
clearly and convincingly establishes that the Child's interests
are best served by the termination of Father's parental rights.
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CONCLUSION
The issues raised by Father in his Notice of Appeal lack
merit~ The Decree dated November 17, 2014, terminating Father's
parental rights in respect to D.S.B. should be affirmed.
BV THE COURT:
. REICH, JUDGE
Dated: February 5, 2015
::::::, to, ,.:c:.&::;
Daniel H. Shertzer, Jr., Esquire
43 North Lime Street
Lancaster PA 17602
CouJ1Sel for Father
JoAnne Murphy, Esquire
P.O. Box 547
Maytown PA 17550
Guardian ad licem
David J. Natan, Esquire
Lancaster County Children and Youth Social Service Agency
53 North Duke Street
Lancaster PA 17602
Counsel for the Agency
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