In Re: Adoption of: A.L.S., Appeal of: A.S.

J-S47038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.L.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.S., FATHER : No. 613 MDA 2019
Appeal from the Decree Entered March 20, 2019
in the Court of Common Pleas of York County
Orphans' Court at No(s): 2018-0192(a)
IN RE: ADOPTION OF: I.R.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.S., FATHER : No. 614 MDA 2019
Appeal from the Decree Entered March 20, 2019
in the Court of Common Pleas of York County
Orphans' Court at No(s): 2018-0193a
IN RE: ADOPTION OF: H.A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.S., FATHER : No. 615 MDA 2019
Appeal from the Decree Entered March 21, 2019
in the Court of Common Pleas of York County
Orphans' Court at No(s): 2018-0194(a)
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 15, 2019
J-S47038-19
A.S. (“Father”) appeals from the Decrees entered on March 20, 2019,1
granting the Petitions filed by the York County Office of Children, Youth and
Families (“CYF” or the “Agency”), seeking to terminate Father’s parental rights
to his minor female children, A.L.S. (born in May 2012), and I.R.S. (born in
July 2014), and his male child, H.A.S. (born in April 2016) (collectively, “the
Children”), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b).2 We affirm.
In its Opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth the
factual background and procedural history of this appeal, which we adopt
herein. See Trial Court Opinion, 5/13/19, at 1-9.
Relevantly, on July 26, 2017, CYF filed dependency Petitions as to the
Children pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq. On August
9, 2017, the trial court held an adjudicatory hearing, and determined that the
Children were dependent under the definitions of “dependent child” set forth
at 42 Pa.C.S.A. § 6302(1) and (3). Father and the Children’s maternal
grandparents, C.W. and R.W. (“Maternal Grandparents”), were present at the
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1 Regarding the Decree involuntarily terminating Father’s parental rights to
H.A.S., we observe that the date stamp on the Decree indicates that the
document was received by the clerk of courts on March 20, 2019. However,
the Decree was docketed on March 21, 2019.
2 We note that, after a hearing on April 12, 2019, the trial court confirmed the
consents to adoption filed by K.W., the Children’s mother (“Mother”). See
N.T., 3/20/19, at 5-8; and N.T., 4/12/19, at 4-11. Mother has not filed a brief
in this appeal, nor has she filed an appeal of her own.
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adjudicatory hearing. Mother was not present at the adjudicatory hearing.
The Children were residing with Maternal Grandparents in kinship placement,
and remained in that placement. In the permanency review Order entered on
July 3, 2018, the trial court ordered Father to maintain safe, stable, and
appropriate housing, and to maintain a stable and lawful income to support
the Children. Additionally, the trial court ordered Father to cooperate with
Justice Works Youth Care to work towards accomplishing the goals of the
family service plan. Mother, Father, and Maternal Grandparents retained
medical and educational rights over the Children.
A series of permanency review hearings and Orders followed, with the
Children remaining in kinship care with Maternal Grandparents. The Order
entered after the October 2, 2018 permanency review and dispositional
hearing changed the permanency goal for the Children from reunification to
adoption. The Children remained in kinship placement with Maternal
Grandparents.
On December 11, 2018, CYF filed Petitions seeking to involuntary
terminate Father’s parental rights to the Children.
At the time of the next permanency review hearing on December 27,
2018, both Father and Mother were incarcerated at the York County Prison.
Mother was not present at the hearing. Father’s incarceration was based on
charges connected with an incident in November 2018, in which he was
accused of threatening an individual with a gun, followed by a stand-off, and
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then a police chase. Father was charged with fleeing police and possession of
a firearm, and had a number of charges pending in both York County and
Lancaster County at the time of the termination hearing.3 In the permanency
review Order entered on December 27, 2018, the trial court retained the goal
of adoption, and ordered that legal and physical custody remain with CYF. The
Children remained in kinship placement with Maternal Grandparents.
On March 6, 2019, the trial court held a permanency review and
dispositional hearing, and entered an Order finding that Father had not
complied with the permanency plan. The trial court retained the goal of
adoption, and ordered that legal and physical custody remain with CYF. The
Children remained in kinship placement with Maternal Grandparents.
On March 20, 2019, the trial court held an evidentiary hearing on the
Petitions (“TPR hearing”). CYF presented the testimony of Father’s York
County Probation/Parole Officer; a drug and alcohol monitoring specialist at
Families United Network; the program director at Catholic Charities Intensive
Families Services, representing the family advocate who worked with the
family; a reunification and permanency caseworker for CYF assigned to the
family. N.T., 3/20/19, at 21, 29, 34, and 41. Father testified on his own
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3 The trial court admitted the criminal records relating to Father’s incarceration
from both York County and Lancaster County into evidence, and took judicial
notice of their contents. See N.T., 3/20/19, at 16-18.
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behalf. Id. at 83. The trial court examined Maternal Grandmother. Id. at
105. The trial court interviewed A.L.S., in camera, with only counsel present.4
At the close of the hearing, the trial court stated as follows:
THE COURT: All right. I am signing the final [D]ecree for the
involuntary termination of the parental rights of Father. I won’t
go into a lot of detail as to why, but I do want to say two things
on the record.
The first is I’ve had this case since it began in June of 2017.
I have a file that’s four to five inches thick. I have notes from
every hearing[,] and my recollection of Father’s life before [his]
incarceration is substantially different from Father’s recollection in
many regards.
Secondly, I want to make it very clear that[,] when I
changed the goal to adoption, it was October 2nd of 2018[,] and
that was a month-and-a-half before [F]ather was incarcerated. I
make much of this on the record to make it clear that adoption
was the proper goal for these children before Father was
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4 We observe that the trial court appointed Barbara Orsburn Stump, Esquire
(“Attorney Stump”), to represent the Children’s legal interests, and Katherine
Louise Doucette, Esquire (“Attorney Doucette”), as the Children’s guardian ad
litem (“GAL”). See In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017)
(plurality) (requiring the appointment of separate legal counsel to represent
the legal interest of a child involved in a contested involuntary termination
proceeding). Attorney Doucette stated that I.R.S. wished to be adopted, as
did A.L.S., and that H.S., who was only two years old, had not indicated a
preference. N.T., 3/20/19, at 8; see also In re T.S., 192 A.3d 1080, 1092
(Pa. 2018) (holding that the trial court did not err in allowing the children’s
GAL to act as their sole representative during the termination proceeding,
because, at two and three years old, they were incapable of expressing a
preferred outcome). Attorney Stump stated that the female children had
indicated similarly, with I.R.S. stating that Maternal Grandparents were her
preference for permanency, and that Attorney Stump did not use the word
“adoption” in the discussion with I.R.S. N.T., 3/20/19, at 8-9. A.L.S., who
was seven years old at the time of the hearing, testified that she wished to
live permanently with Maternal Grandparents, and that she and her siblings
were doing well and liked living with Maternal Grandparents. Id. at 12-15.
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incarcerated[,] for a whole lot of reasons that are set forth in that
Order and from that hearing.
I have taken judicial notice of the fact that Father’s charges
are four different set[s] of charges in two different counties. They
include felonies almost beyond what I could easily count. It is
clear to me that Father is probably going to be in jail for at least
another 5 to 10 years. It is just incomprehensible that he would
obtain a not guilty verdict on four different sets of charges. It
looked to me that it is going to be four different trials.
I have no doubt that the bond between these children and
their grandparents is very great. I of course did talk to [A.L.S.]
just a few hours ago, and she did indicate that she wanted to be
adopted by her [Maternal G]randparents. I find that the bond
between Father and these children is somewhat strong but leaning
[sic]. The bond with the [Maternal G]randparents is waxing or
increasing. I find that there will be no harm in severing the bond,
or substantial harm is [sic] severing the bond between Father and
the [C]hildren. It’s definitely without any doubt in this court’s
mind in the best interest of these [C]hildren for them to be
adopted, and[,] accordingly[,] for Father’s parental rights to be
involuntarily terminated.
N.T., 3/20/19, at 111-12.
On March 20, 2019, the trial court entered its Decrees terminating
Father’s parental rights to the Children pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b). On April 18, 2019, Father timely filed separate Notices
of appeal, along with separate Concise Statements of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), with regard to each of the
Children.5
Father now raises two issues for our review:
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5 This Court, sua sponte, consolidated the appeals for review.
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1. Did the [trial c]ourt err as a matter of law and/or abuse its
discretion in terminating Father’s parental rights[,] when the
Agency failed to meet its burden that termination of parental
rights was warranted under 23 Pa.C.S.[A.] [§] 2511(a)(1), (8),
and 2511(b)?
2. Did the [trial c]ourt abuse its discretion in granting the Agency’s
request to terminate Father’s parental rights?
Father’s Brief at 4 (issues numbered).6
We will address Father’s claims together, as they are related. Father
claims that there was insufficient evidence to terminate his parental rights to
Children. See id. at 13-24. Father argues that the evidence established that
he had complied with the goals identified in his Family Services Plan, and was
employed. Id. at 17-18, 20. Father also contends that, despite the trial
court’s conclusion that he had failed to maintain stable housing, the Agency
never visited his home to determine whether it was appropriate. Id. at 18,
23. According to Father, he complied with the court-ordered services and
conditions and, although he was unable to complete a section 5329 evaluation,
he cooperated with the assigned team. Id. at 19. Additionally, Father asserts
that he and the Children share a strong bond. Id. at 20-21. Father further
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6 Although Father stated his issues somewhat differently in his Concise
Statement, we find that he preserved the issues for our review. See Krebs
v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding
that an appellant waives issues that are not raised in both his concise
statement of errors complained of on appeal and the statement of questions
involved in his brief on appeal).
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argues that the trial court improperly considered his pending criminal charges.
Id. at 23-24.
In reviewing an appeal from an order terminating parental rights, we
adhere 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. If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
[U]nlike 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations
omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
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Moreover, we have explained, “[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.,
837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a), along
with consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). We will consider subsections 2511(a)(1) and
(b), which provide as follows:
§ 2511. Grounds for involuntary termination
(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.
***
(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.
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23 Pa.C.S.A. § 2511(a)(1), (b).
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows:
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., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has stated,
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 B.,N.M., 856 A.2d 847, 854-55 (Pa. Super. 2004) (citations omitted).
Additionally, regarding incarceration and preservation of parental rights,
we have stated the following:
[I]ncarceration of a parent does not, in itself, provide sufficient
grounds for termination of parental rights; however, an
incarcerated parent’s responsibilities are not tolled during his
incarceration. … [P]arental duty requires that the parent not yield
to every problem, but must act affirmatively, with good faith
interest and effort, to maintain the parent-child relationship to the
best of his ability, even in difficult situations.
In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations
omitted). “Parental rights are not preserved by waiting for a more suitable or
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convenient time to perform one’s parental duties while others provide the child
with his or her physical and emotional needs.” In re K.Z.S., 946 A.2d 753,
759 (Pa. Super. 2008) (citations omitted).
The focus in terminating parental rights under section 2511(a) is on the
parent, but, pursuant to section 2511(b), it is on the child. In re Adoption
of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the
evidence in support of termination under section 2511(b), our Supreme Court
has stated as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and
welfare of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620
A.2d 481, 485 (Pa. 1993)], this Court held that the determination
of the child’s “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances … where direct
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observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
at 762.
Further,
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent. … Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary
termination of parental rights, despite existence of some bond, where
placement with mother would be contrary to child’s best interests). “[A]
parent’s basic constitutional right to the custody and rearing of his or her child
is converted, upon the failure to fulfill his or her parental duties, to the child’s
right to have proper parenting and fulfillment of [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d at 856
(internal citations omitted).
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In its Opinion, the trial court addressed Father’s claim, and concluded
that there was clear and convincing evidence to terminate Father’s parental
rights to the Children under subsections 2511(a)(1) and (b). See Trial Court
Opinion, 5/13/19, at 14-20. After a careful review of the record, we conclude
that the trial court’s decision to terminate Father’s parental rights is supported
by competent, clear and convincing evidence in the record. In re Adoption
of S.P., 47 A.3d at 826-27. Thus, we find no abuse of discretion in the trial
court’s termination of Father’s parental rights to the Children, and affirm on
the basis of the trial court’s Opinion. See Trial Court Opinion, 5/13/19, at 14-
20.
Decrees affirmed.
Judge Nichols joins the memorandum.
Judge Dubow concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2019
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lVIEMORANDUM OPINION IN SUPPORT OF ORDER PURSUANT TO RULE
1925{a)(2)(U) OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE
AND NOW, this 13th day of May, 2019, the Court is in receipt of Appellant's
Notice of Appeal and 1925b Statement, as required by the Rules of Appellate Procedure
for a Children's Fast Track Appeal. Pa.R.A.P 1925(a)(2)(i). The Court hereby reaffirms
its Order Terminating Father's Parental Rights entered on March 20, 2019 following a
hearing on the same date, as the result of a Petition to Terminate Parental Rights filed by
the York County Office of Children, Youth and Families.
FACTUAL AND PROCEDURAL IDSTORY
On or about July 26, 2017, the York County Office of Children, Youth and
Families (hereinafter referred to as "CYF"), filed multiple Dependency Petitions with
respect to A . L S , born May 17, 2012; I R· S, ,, born July 27, 2014;
andH. A s born April 25, 2016 (hereinafter referred to collectively as
the "Children" or individually referred to by their first name only). Appellant, A
S is the biological father of the Children (hereinafter referred to as "Father"). K
Vv is the biological mother of the Children (hereinafter referred to as "Mother"),
' 1
c w and R w are the biological maternal grandparents of the
Children (hereinafter referred to collectively as "Maternal Grandparents"). In its
Dependency Petition for each child, CYF sets forth the following facts:
"1. On or about June 21, 2017, YCOCYF received a referral
regarding the minor [children], due to allegations of drug usage by
Mother.
2. Toe minor children and Mother were residing with the
maternal grandparents, C W, and R W,
3. Allegations received were that Mother is using heroin and
crack/cocaine and will leave the maternal grandparents' residence for
extended periods of time.
4. On June 20, 2017, at approximately 2:00 p.m., the Mother
returned to the maternal grandparents, residence after being away for
several days.
5. Mother left the residence at approximately 3:10 p.m. and
her whereabouts are unknown.
6. The maternal grandparents contacted Northern Regional
Police Department and reported Mother as a missing person.
7. On June 23, 2017, Father appeared at the maternal
grandparents' residence and took the children.
8. On July 5, 2017, Father appeared at the office of YCOCYF
and stated that he and the children can no longer reside at his brother's
residence; Father and the children had been staying in a hotel for three
days and could no longer continue to pay for the hotel.
9. Father agreed to allow the maternal grandparents to care for
the children.
10. The maternal grandparents agreed to care for the children,
but requested financial assistance.
2
11. The maternal grandparents have been approved as
emergency caregivers for the children."
Dependency Petition, filed July 26, 2017.
Following an Adjudicatory Hearing on August 9, 2017, the Children were
determined to be dependent pursuant to the Pennsylvania Juvenile Act at 42
Pa.C.S.§6302, subsections (1) and (3), specifically that "[t]he child is without proper care
or control, subsistence, education as required by law, or other care or control necessary
for his physical, mental, or emotional health, or morals;" and "[t]he child has been
abandoned by his parents, guardian, or other custodian." 42 Pa.C.S. §6302(1) and (3).
Father and Maternal Grandparents were present at the hearing, but Mother was not
present. Further, it was ordered by the Court that Father was to maintain safe, stable and
appropriate housing for the Children and was to maintain stable, lawful income to support
the Children; and that Father was to cooperate with Justice Works Youth Care to work
towards the goal of the family service plan. Mother, Father, and the Maternal
Grandparents retained medical and educational rights to the Children.
On November 6, 2017, a Status Review Hearing was held and a subsequent
Order was entered, wherein the Court found that there had been no progress made by
Father. Father did not have stable housing and was unable to care for the Children,
Father provided no proof of income to CYF, and Father did not respond to CYF•s offer to
have a team assigned to assist him. The Court ordered that legal and physical custody of
the Children would remain with CYF and the Children would stay in Kinship Placement
with the Maternal Grandparents. It is noted that Father indicated at the hearing that he
3
would like a team assigned and that Maternal Grandparents were not cooperating with
A.L.$.
him to visit the Children. Additionally, the oldest child, needed dental surgery,
which both parents consented to allow. Otherwise, all three (3) Children were doing well
and up-to-date on all their medical needs in the care of the Maternal Grandparents.
On January 16, 2018, a combined Permanency Review Hearing and Dispositional
Hearing was held and a subsequent Order was entered, wherein the Court found that there
had been minimal compliance with the permanency plan made by Father, however.In the
Report to the Court for Permanency Review Hearing dated December 31, 2017 prepared
by CYF, it stated that Father had made "Full Progress" with respect to compliance with
the permanency plan. It stated in the said Report that Father had not provided CYF proof
of income and stable housing, but to the contrary, the Permanency Review Order dated
January 16, 2018, indicated that Father did provide proof of income and stable housing.
It was consistently stated in both the Report and the Permanency Review Order that
Father had supervised visits with the Children and the visits were going well.
Additionally, the Permanency Review Order stated that the current permanent placement
goal was to return to parent to be achieved within 6 to 12 months, with a concurrent
placement goal of adoption, and that both were considered appropriate and feasible.
Finally, the Court ordered that legal and physical custody of the Children would remain
with CYF and the Children would stay in Kinship Placement with the Maternal
Grandparents. Father was directed to maintain safe, stable and appropriate housing for
the Children, and maintain stable, lawful income to support the Children; undergo
4
random testing for drug and alcohol use; and cooperate with an in-home team to work
toward the goal of the family service plan. The Children continued to do well in the care
of the Maternal Grandparents.
On April 12, 2018, a Status Review Hearing was held and a subsequent Order was
entered, wherein the Court found that there had been slight progress by Father. In
relevant part, the said Order stated as follows:
"He has obtained stable housing and employment but has not
provided a copy of his lease for his residence in Mt. Joy. He has provided
pay stubs showing 20-25 hours per week. The caseworker has not seen his
home. A referral has been made to Pressley Ridge for an in-home team
and supervision of visits. PR reports a waiting list. He sees [the children]
in supervised visits at the Lafayette House twice weekly. The caseworker
shall determine whether the Father sees himself as a placement resource or
not Ifhe does, the home will need to be inspected. The Father needs to
complete a threat of harm evaluation if he views himself as a resource and
ifhe wants to begin unsupervised visitation. He has not responded to
FUN requests for drug testing. Two attempts were ignored. He has not
completed a drug and alcohol evaluation."
Order, dated April 12, 2018. Recommendation =Status Review, dated April 12, 2018.
The current goal remained to return the Children to parent. The Court ordered that legal
and physical custody of the Children would remain with CYF and the Children would
stay in Kinship Placement with the Maternal Grandparents. The Children continued to do
well in the care of the Maternal Grandparents.
On July 3, 2018, a combined Permanency Review Hearing and Dispositional
Hearing was held and a subsequent Order was entered, wherein the Court found that there
had been minimal compliance with the permanency plan made by Father. Specifically,
5
the said Permanency Review Order stated "Father continues to visit with the children two
times per week. He has not cooperated with drug testing. Father has not been
cooperative in finding documentation of appropriate housing, employment and has not
provided a copy of the threat of harm evaluation which he states has been completed,"
Permanency Review Order, dated July 3, 2018. Additionally, the Permanency Review
Order stated that the current permanent placement goal was to return to parent to be
achieved within 6 to 12 months, with a concurrent placement goal of adoption, and that
both were considered appropriate and feasible. Finally, the Court ordered that legal and
physical custody of the Children would remain with CYF and the Children would stay in
Kinship Placement with the Maternal Grandparents. Father was directed to maintain
safe, stable and appropriate housing for the Children, and maintain stable, lawful income
to support the Children; undergo random testing for drug and alcohol use; cooperate with
an in-home team to work toward the goal of the family service plan, and obtain a threat of
harm evaluation. The Children continued to do well in the care of the Maternal
Grandparents.
On October 2, 2018, a combined Permanency Review Hearing and Dispositional
Hearing was held and a subsequent Order was entered, wherein the Court found that there
had been minimal compliance with the permanency plan made by Father. Specifically,
the said Permanency Review Order stated "Father continues to visit with the children two
times per week. Overall, visits are reportedly going well, but Father struggles with
following through with consequences for the children. Father has failed to provide proof
6
of income or his current address. Father stated that he is working on completing his drug
and alcohol evaluation at White Deer Run and has scheduled his Threat of Harm
Evaluation. He is struggling financially to get the evaluation scheduled. Catholic
Charities began with Father on September 13, 2018. Father was tested by FUN before
court today and was negative for substances." Permanency Review Order, dated October
2, 20 I 8. The Permanency Review Order changed the permanent placement goal from
return t.o parent to adoption, as the goal of returning to a parent was no longer considered
appropriate and feasible. Finally, the Court ordered that legal and physical custody of the
Children would remain with CYF and the Children would stay in Kinship Placement with
the Maternal Grandparents. It is noted that by the date of this hearing, the Children had
been in placement for 15 months.
On December 27, 2018, a Status Review Hearing was held and a subsequent
Order was entered, wherein the Court found that there had been minimal progress by
Father, and noted that both parents were incarcerated at the time of the hearing. In
relevant part, the said Order stated as follows:
"Father is incarcerated at YCP and was not transported as
arranged. Counsel elected to proceed without him. Father has a January
9, 2019 magistrate hearing on a gun charge and perhaps a second one on
January 14, 2019. He was incarcerated following charges connected to an
incident in Mt. Joy in which [he] is accused of threatening an individual
with a gun, followed by a stand-off, and a police chase. Prior to
incarceration Father visited the [Children] twice weekly, as supervised by
Catholic Charities. He struggled with parenting. Father has failed to
provide proof of income. Father stated to the caseworker that he has
completed his D&A evaluation with no recommendations according to
Father (the Agency has been unable to confirm), and he has completed an
7
anger management evaluation with no recommendations. He has not
completed a Threat of Harm Evaluation because the Agency and Spirit
Trust were not able to agree on funding. Father was working with
Catholic Charities until his incarceration. Father was not cooperative with
drug testing by FUN and there were two attempts and one negative prior
to incarceration. Father had requested an interstate compact for the
paternal grandfather in South Carolina but none has been done and the
caseworker says he will begin one. Father has not requested visits since
incarceration. (11-27-18)."
Order, dated December 27, 2018. Recommendation-Status Review, dated December
27, 2018.
The current goal remained adoption. The Court ordered that legal and physical custody
of the Children would remain with CYF and the Children would stay in Kinship
Placement with the Maternal Grandparents.
On March 6, 2019, a combined Permanency Review Hearing and Dispositional
Hearing was held and a subsequent Order was entered, wherein the Court found that there
had been no compliance with the permanency plan made by Father. Specifically, the said
Permanency Review Order stated as follows:
"Father has been incarcerated at York County Prison since
November 27, 2018. The Agency has reached out to his Adult
Probationary Officer, Kevin Titzel, but has not heard from him to date.
Father takes parenting classes, GED and other classes while at YCP. He is
in a class which records his reading of a book to his children and a
recording of his thoughts for delivery to the children. He currently has no
visits or telephone contact with the children at the prison by jail policy due
to his pending charges. He expects a criminal hearing in April, 2019 on
pending criminal charges, fleeing and possession of a firearm. The agency
submitted an ICPC request to consider the paternal grandfather as a
placement resource at the rest of the Father."
Permanency Review Order, dated March 6, 2019.
8
The Court ordered that legal and physical custody of the Children would remain with
CYF and the Children would stay in Kinship Placement with the Maternal Grandparents.
It is noted that by the date of this hearing, the Children had been in placement for 18
months, and all were doing well with the Maternal Grandparents.
A Termination of Parental Rights Hearing (hereinafter referred to as the "TPR
Hearing"), was held on March 20, 2019. CYF filed for termination of Father's parental
rights under 23 Pa.C.S.A. §251 l(a)(l), (2), (5) and (8), on December 11, 2018. At that
P,.L.-�.
time, the undersigned interviewed the oldest child, in-camera with only counsel
�.L.S.
present. During the interview. expressed a desire to live permanently with Maternal
Grandparents. She also stated that she, and her brother and sister, were doing well and
liked living with Maternal Grandparents. The Court heard testimony from Father's
'probation/parole officer, Families United Network, Catholic Charities, the caseworker
assigned to the case by CYF, Father, and Maternal Grandmother. The Court ultimately
decided that it was in the best interest of all the Children that Father's parental rights be
terminated.
ISSUES ON APPEAL
Father raises the following issues in his l 925(b) Statement, each will be
discussed in tum below.
"3. It is alleged that the Lower Court erred as follows:
a. During the hearing, A - S, testified as to programs
attended while incarcerateo in the York County Prison and exhibits
as to these programs were submitted to the Court.
9
b. The Court stated that t\. S, attended these programs after the
filing of the Children, Youth and Families' Petition to terminate
parental rights.
c. 23 Pa.C.S.A. Section 251 l(b} states in part that 'with respect to
any petition filed pursuant to subsection· (a)(l), (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.' ·
d. Children, Youth and Families filed for termination of parental
rights on December 11, 2018 under 23 Pa.C.S.A. Section
25 ll(a)(l), (2), (5) and (8).
e. As CYF filed under subsections other than (a)(l), (6) and (8), the
Lower Court erred in refusing to consider the programs attended
by A s
f. When issuing its decision, the Lower Court commented on the
criminal charges that A ·S is facing and stated that it is
expected that the Father will spend a number of years in jail.
g. As the criminal charges filed against A S, are still
pending, it was error for the Court to speculate on what time the
Father will spend in jail.
h. The Lower Court erred as a matter of law in terminating the
parental rights of Father under 23 Pa.C.S.A. Section 2511 (a)(l) as
CYF failed to prove by sufficient evidence that by conduct
continuing for a period of at least six months immediately
preceding the filing of the Petition Father had evidenced a settled
purpose of relinquishing paternal claim or has refused or failed to
perform parental duties in that testimony was presented that
A S had complied with the Family Service Plans,
attended visits with his children, worked with an in-home team,
had requested Agency help with obtaining a Threat of Harm
evaluation, obtained employment, sent mail and/or cards t the
children, attended at least one medical appointment and had a
healthy bond with the child
· 10
i. The Lower Court erred as a matter of law in terminating the
parental rights of Father under 23 Pa.C.S.A. Section 2511 (a)(2)
for the reasons set forth in paragraph (h) of this Statement.
J. The Lower Court erred as a matter oflaw in terminating the
parental rights of Father under 23 Pa.C.S.A. Section.2511 (aXS)
for the reasons set forth in paragraph (h) of this Statement.
Additionally, there was testimony that there was a healthy bond
between the Father and the child and insufficient evidence was
presented to establish that termination of parental rights would best
serve the needs and welfare of the child.
k. The Lower Court erred as a matter of law in terminating the
parental rights of Father under 23 Pa.C.S.A. Section 2511 (a)(8)
for the reasons set forth in paragraph (h) of this Statement.
Additionally, there was insufficient evidence presented that
termination of parental rights would best serve the needs and
welfare of the child.
1. The Lower Court erred as a matter oflaw in terminating the
parental rights of Father under 23 Pa.C.S.A. Section 2511(b) as
this subsection states that the primary consideration shall be given
to the developmental, physical and emotional needs and welfare of
the child and the decision to terminate the parental rights of the
Father is contrary to the best needs and welfare of the child.
4. For the reasons set forth in paragraph 3(a) through (1) inclusive, it is averred
that the decision entered by the Court terminating Father's parental rights was
not supported by sufficient evidence.
5. For the reasons set forth in para.graph 3(a) through (I) inclusive, it is averred
that the Lower Court abused its discretion in terminating parental rights."
Appellant A s 1925(b) Statement.filed Aprtl 18, 2019.
DISCUSSION
The Pennsylvania Superior Court has previously held that in reviewing an appeal
from a decree terminating parental rights, the reviewing court is limited to "determining
whether the decision of the trial court is supported by competent evidence. Absent an
11
abuse of discretion, an error oflaw, or insufficient evidentiary support for the trial court's
decision, the decree must stand." In the Matter ofB.L. W., 843 A.2d 380 (Pa. Super.
2004). When a trial court has involuntarily terminated parental rights, the reviewing
court "must accord the hearing judge's decision the same deference that [it] would give to
a jury verdict." 14.. The reviewing court "must employ a broad, comprehensive review
of the record in order to determine whether the trial court's decision is supported by
competent evidence." 14
An abuse of discretion is more than just an error in judgment and, on appeal, the
trial court will not be found to have abused its discretion unless the record discloses that
the judgment exercised was manifestly unreasonable, or the results of partiality,
prejudice, bias or ill-will. Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001)
(internal citations omitted).
The termination of parental rights is based on 23 Pa.C.S.A. §2511, generally.
Specific to this case, the relevant parts of the statute is as follows:
(a) General rule r: 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, 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
12
(5) The child has been removed from the care of the parent by the
court or under a voluntary agreement with an agency for a period
of at least six months, the conditions which led to the removal or
placement of the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable period of time, the
services or assistance reasonably available to the parent 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 the parental rights would best serve the needs and
welfare of the child.
(8) The child has been removed from the care of the parent by the
court or under a voluntary agreement with an agency, 12 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 and termination of parental rights would best
serve the needs and welfare of the child.
(b) Other considerations - The court 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. §251 l(a) and (b).
The Court did not err in refusing to consider the programs attended by Father post
filing for termination of parental rights, because the Court only needs the requirements of
one of the subsections under 23 Pa.C.S.A. §251 l(a) to be satisfied to tenninate parental
rights, regardless of how many subsections of the statute are cited as grounds for
termination.
13
The Superior Court previously held in In re B.L. W., that "[s]atisfaction of the
requirements in only one subsection of Section 2511 ( a), along with consideration of the
. provisions in Section 251 l(b), is sufficient for termination." In re B.L. W., 843 A.2d 380,
384 (Pa. Super. 2004) (en bane).
In this case, there is sufficient evidence that grounds for termination exist under
subsections (a)(l) and (8) of the statute. Father has failed to maintain stable
employment, because he has only provided proof of part-time employment with varying
hours and no proof of his alleged full-time employment. Father has failed to maintain
stable housing, because for the majority of the time since the Children were placed in
care and as of the date of Father's incarceration prior to the TPR hearing, Father resided
at the Donna Lane address which is the same address that Father reported as his residence
when the Children were placed in care due to Father's inability to have the Children at
that residence. Father may have resided at the same residence for a substantial amount of
time, but that is of little importance if he cannot have the Children living there with him.
Father has failed to attend to the Children's medical and educational needs, because
despite having shared legal custody of the Children with CYF and the Maternal
Grandparents through the entire dependency process, Father did not attend any school
events or take an active role in the Children's education; and Father only attended at most
2 medical appointments for the Children since they were adjudicated. Additionally, the
requirements of subsection (a)(8) of the statute are also satisfied, because the Children
were removed from the care of Father by the Court, at the time of the filing for
14
termination of parental rights 12 months or more had elapsed since the Children were
placed into care, and the conditions which led to the placement of the Children, unstable
employment and unstable housing, continue to exist and termination of parental rights
would serve the needs and welfare of the Children.
In conjunction with §251 l(b), having found sufficient evidence to terminate
Father's parental rights under §251 l(a)(l) and (8), the Court will not consider any efforts
by Father to remedy the conditions which led to the notice of the filing of the petition to
terminate parental rights. By way of further response, it is noted that Father completed
programs for parenting skills, therapy, and GED class - none of these particular programs
alleviate the conditions of unstable employment and unstable housing which led to the
termination petition being filed. In fact, on the date of the TPR hearing, Father was
incarcerated at the York County Prison and could not be farther from completing the
goals of stable housing and stable employment. This Court notes that subsection (b)
states that environmental factors such as inadequate housing and income cannot be the
sole grounds for terminating parental rights, if the Court finds these factors to be "beyond
the control of the parent." 23 Pa.CS.A. §2511 (b). This is not the case with respect to
Father. There was no evidence presented to the Court that Father was unable to maintain
adequate employment and adequate employment for the Children due to circumstances
beyond his control.
15
Therefore, the Court did not err in refusing to consider the programs attended by
Father post filing for termination of parental rights, because the Court found sufficient
evidence to terminate Father's parental rights under 23 Pa.C.S.A. §251 l(a)(l) and (8).
The Court did not err in speculating as to the amount of time that Father could
potentially spend in prison for his pending criminal charges, because the weight of
Father's pending criminal charges was very slight in the determination of whether or not
to terminate Father's parental rights.
The permanency placement plan goal was changed from reunification to adoption
at the October 2, 2018 combined Permanency Review Hearing and Dispositional
Hearing. The change of goal to adoption was due Father's failure to maintain safe, stable
and appropriate housing for the Children; maintain stable, lawful income to support the
Children; undergo random testing for drug and alcohol use; cooperate with an in-home
team to work toward the goal of the family service plan, and obtain a threat ofhann
evaluation. It is noted that Father did begin working with an in-home team on, Catholic
Charities on October 5, 2018, but this had been a requirement Father was to complete
since the date the Children were adjudicated, over a year ago; and Father's efforts to
work with an in-home team only came after the permanency plan goal was changed to
adoption. It is also noted that there was some testimony of Father's attempts to obtain a
5329 evaluation, but again, this effort proved to be too little too late on Father's part.
Additionally, the permanency placement goal was changed to adoption over a month
prior to Father's incarceration date of November 27, 2018. In speculating as to the
16
amount of time Father could possibly serve for the pending charges, the Court was not
relying on the possibility of"what-ifs" to terminate Father's parental rights, but rather
was opining as to the gravity of the charges against Father. Father asks the Court to just
ignore the pending charges against him, and while the Court may not use those pending
charges as grounds to terminate Father's parental rights, the Court cannot ignore the fact
that Father was on probation/parole for a previous conviction at the time of the November
27, 2018 incarceration; and that the charges pending against Father are voluminous and
egregious to the most basic morals of a civilized society. While this Court cannot put
weight on Father's pending charges, Father's criminal history does show a pattern of
behavior that this Court finds concerning, to say the least.
Therefore, the Court did not err in speculating as to the amount of time that Father
could potentially spend in prison for his pending criminal charges, because Father's
pending criminal charges were not a determining factor in the decision to terminate
Father's parental rights.
The Court did not err as a matter of law in terminating the parental rights of
Father under 23 Pa.C.S.A. §251 l(a)(l ), because sufficient evidence was presented at the
TPR Hearing demonstrating that for a period of at least six (6) months immediately
preceding the filing of the petition to terminate Father's parental rights, Father had
refused or failed to perform parental duties for the Children. Father refused or failed to
perform parental duties for the Children, because as previously detailed herein, Father
failed to maintain stable employment, maintain stable housing, and attend to the
17
Children's medical and educational needs. Therefore, the Court did not err as a matter of
law in law terminating the parental rights of Father pursuant to 23 Pa.C.S.A. §251 l(a)(l).
Father asserts in his 1925(b) Statement that the Court erred as a matter of law in
terminating the parental rights ofFatberunder 23 Pa.C.S.A. §2511 (a)(2), (5) and (8). As
previously stated herein, the Court need not find sufficient evidence to terminate parental
rights under all the subsections of 251 l(a) cited as grounds for termination by CYF, but
rather, the Court need only find sufficient evidence under one (1) subsection of the statute
to terminate parental rights.
For the reasons set forth herein, the Court has found sufficient evidence to
terminate Father's parental rights under subsections (a)(l) and (8) of the statute. By way
of further response, evidence was presented on the record at the TPR Hearing that
termination of Father's parental rights would best serve the needs and welfare of the
Children, because Maternal Grandparents provided a stable, safe, loving environment for
the Children to grow up in, which Father could not provide. Father made no efforts to
correct the conditions which led to the Children being placed in Maternal Grandparent's
care in the first place, specifically, Father did not have adequate housing and Father did
not have the adequate financial resources to provide for the Children. Additionally, the
Children were in the care of Maternal Grandparents prior to being adjudicated, and had
resided with Maternal Grandparents off and on for most of their lives. In fact, evidence
\-\.A�.
was presented at the TPR Hearing that the youngest child · had been in Maternal
Grandparent's care for his whole life, except for a few weeks, due at least in part, to
18
Father's prior incarceration for which he is now on probation/parole. The permanent
placement of the Children in the care of the Maternal Grandparents in this case is simply
maintaining the status quo and allowing the Children the chance to have a safe, stable,
loving home environment
Therefore, the Court did not err in terminating Father's rights under 23 Pa.C.S.A.
§2511 (a)(2) and (5) because the Court found there to be sufficient evidence to terminate
the parental rights of Father under §2511 (a)(l) and (8) and consideration under
subsections (a)(2) and (5) of the statute were unnecessary.
The Court did not err as a matter of law in terminating the parental rights of
Father under 23 Pa.C.S.A. §2511 (b), because of the reasons previously stated herein, the
decision to terminate the parental rights of the Father was not contrary to the best needs
and welfare of the Children. Additionally, evidence was presented that the Children were
consistently doing well in the care of Maternal Grandparents since adjudication.
�- L.$.
Maternal Grandparents expressed a desire to adopt the Children and the oldest child,
expressed a desire to be adopted by Maternal Grandparents. The Children had resided
with Maternal Grandparents prior to adjudication, and off and on over the years of the
Children's lives. As the Pennsylvania Superior Court stated in In the Interest ofLilley,
"[t]he child's right is to appropriate custodial care and we may not deny
him a wholesome and binding family relationship under the rubric of a superior
constitutional right to live with or remain legally attached to his/her biological
parent. These determinations flow from a fundamental need to protect the child in
the critical most defenseless years of his development and for the good of society
and the best interest of the child. The shelter of a functional family has a higher
value than the esoteric right to have contact with the person who claims biological
parentage but who fails to fulfill the duties of a parent."
19
In the Interest ofLilley, 719 A.2d 327 (Pa.Super.1998).
Thus, the Court did not err as a matter oflaw in terminating the parental rights of Father
under 23 Pa.C.S.A. §251 l(b).
CONCLUSION
The decision entered by the Court terminating Father's parental rights was
supposed by sufficient evidence, as shown herein as well as the record of this matter in its
entirety.
The Court did not abuse its discretion in terminating Father's parental rights,
because the decision to terminate Father's parental rights was based on competent
evidence andwas not manifestly unreasonable, or the results of partiality, prejudice, bias
or ill-will.
For the foregoing reasons, the Court hereby reaffirms its Order Terminating
Father's Parental Rights entered on March 20, 2019.
BY THE COURT,
20