In the Interest of: A.L. & S.Q.L., Minors

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.L. & S.Q.L., IN THE SUPERIOR COURT OF
MINORS PENNSYLVANIA
APPEAL OF: S.P.B., JR., FATHER
No. 2784 EDA 2016
Appeal from the Decree June 27, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000532-2016
CP-51-AP-0000533-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 13, 2017
S.P.B., Jr., (“Father”) appeals from the June 27, 2016 decree that
granted the petition filed by the Philadelphia Department of Human Services
(“DHS”) to involuntarily terminate his parental rights to A.L. (born in
October 2007) (“Child 1”) and S.Q.L. (born in August 2009) (“Child 2”)
(collectively “Children”).1 We affirm.
In its opinion, the trial court set forth the factual and procedural
history of this case, as follows:
The family in this case has been known to DHS since 2010.
Between 2010 and 2014, DHS received four General Protective
Services (“GPS”) reports alleging problems in the home. All four
reports were substantiated, and DHS offered services. On
February 6, 2014, DHS received another GPS report that the
utilities in the home of M.L., (“Mother”) mother of the Children,
were turned off. DHS visited the home and found it was filled
____________________________________________
1
The parental rights of M.L. (“Mother”) were also terminated; however, she
is not a party to this appeal.
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with trash, smelled of marijuana and had no heat. The Children
were truant. By family arrangement, DHS implemented a Safety
Plan and the Children moved into the home of F.L., (“Cousin”)
their maternal cousin. On March 25, 2014, Mother met with
DHS and the Community Umbrella Agency (“CUA”) and stated
she wanted the Children to return to her care. DHS obtained an
Order of Protective Custody (“OPC”) and formally placed the
Children with Cousin. The following day Cousin stated she could
not care for the Children, so DHS placed them in other foster
homes. Father, who was Mother’s paramour at the time,
contacted DHS and verbally[] claimed paternity of Child 1, Child
2, and M.L., (“Child 3”) another of Mother’s children. Following
an adjudicatory hearing on April 9, 2014, the court adjudicated
the Children dependent and fully committed them to DHS
custody. The court also ordered paternity tests for Father.
Father never attended any permanency hearings held between
2014 and 2016. He did not complete a paternity test. On June
10, 2016[,] DHS filed petitions to terminate Father’s parental
rights to the Children. The Children’s birth certificates had to be
ordered by CUA, upon which it was discovered that Father, then
Mother’s paramour, was listed as the father.
The termination and goal change trial was held on June 27,
2016. The trial covered the Children, Child 3 and two other
siblings, and involved a number of fathers and putative fathers
of those siblings. Father was permitted to be heard by
telephone, because he was incarcerated in a Federal
penitentiary. The court began the case at exactly 1:30 P.M., at
Father’s request. Athena Dooley[, Esq.], Father’s court-
appointed counsel, was present. When Father appeared by
telephone he stated that he did not know what the trial was
about. He stated that he would not participate if Dooley was
[sic] there. The trial court colloquied Father, explaining to him
that he had the right to participate or listen silently to the case.
Father then hung up and did not participate any further. The
court found that DHS had made reasonable efforts to notify
Father, since he was allowed to be heard by telephone at the
hearing in light of his incarceration. Dooley, as Father’s counsel,
stipulated to DHS’s offered exhibits. The CUA social worker
testified that Father’s objectives under the Single Case Plan
(“SCP”) were to make himself known to CUA and to take a
paternity test. Father never took a paternity test, and is only
the putative father of the Children. Mother denies he is their
father. The CUA social worker testified that Father had no
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positive relationship with the Children, and there would be no
irreparable harm if his parental rights were terminated. Father
was non-compliant with his SCP objectives. Child 1 is placed
with a maternal cousin in a pre-adoptive home. Child 2 is placed
at Devereux Hospital because he ran from a prior foster home.
Father is a registered sex offender, and had intended to adopt
the Children and their siblings when he was released from
prison. The CUA case manager testified that Father had claimed
paternity of the Children in 2014. Father made himself known to
CUA, and CUA sent letters to Father in prison by certified mail.
These letters were not returned. These letters informed Father
that he had been court-ordered to take a paternity test. Father
never took a paternity test. The trial court terminated Father’s
parental rights to the Children under 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8) and (b), and changed their permanency goal to
adoption. The trial court held its decision on termination in
abeyance regarding Child 3, since Child 3 did not wish to be
adopted.1 [Attorney] Dooley was vacated as counsel for Father,
and Neil Krum, Esq., was appointed.
1
The trial court also terminated the parental rights
of several other fathers and putative fathers on June
27, 2016. None of these individuals have appealed.
On July 26, 2016, [A]ttorney Krum filed a Notice of Appeal for
the Children and Child 3. His Statement of Matters filed on that
date read simply, “T.B.D.” On August 26, 2016, [A]ttorney
Krum filed a statement of matters which actually alleged errors.
Trial Court Opinion (TCO), 9/21/16, at 1-3 (citations to the record and notes
of testimony omitted).2
Initially, the trial court held that Father waived all issues he wished to
raise because Attorney Krum failed to file a timely statement of errors
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2
By order of this Court, dated October 14, 2016, the portion of Father’s
appeal relating to Child 3 was removed as part of this appeal because the
trial court had not terminated Father’s rights to Child 3 in the June 27, 2016
order presently on appeal.
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complained of on appeal in this children’s fast track appeal as required by
Pa.R.A.P. 1925(a)(2)(i) (“The concise statement of errors complained of on
appeal shall be filed and served with the notice of appeal….”). Specifically,
the court recognized that a notice of appeal must be filed within 30 days of
the entry of a final order, which in this case occurred on June 27, 2016, and
that because the first statement (solely stating T.B.D.), filed on July 26,
2016, did not contain any errors that Father intended to challenge, no
grounds for appeal were preserved. Furthermore, the court determined that
the August 26, 2016 statement that contained claims of error was filed well
beyond the 30-day time limit and, therefore, should be dismissed. See also
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”). Despite its assertion that all issues had been waived, the court
proceeded to address “the substance of Father’s untimely and procedurally
unsound appeal.” TCO at 4.
Specifically, the court discussed the basis for its decision to
involuntarily terminate Father’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8) and (b), setting forth facts gleaned from the
documentation and testimony presented at the June 27, 2016 hearing. The
court also addressed Father’s claim that he was denied due process of law.
Thus, the court suggested that its termination of Father’s parental rights was
proper and should be affirmed by this Court.
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In his brief to this Court, Father raises the following issues for our
review:
1. Did the court below err in ruling that Appellant/Father, S.B.,
had been properly served, as required by statutes and court
rules, and in denying Due Process to Appellant S.B., Father, as
guaranteed by the Constitutions of the United States and of the
Commonwealth of Pennsylvania?
2. Did the court below err in finding that [DHS] had met its
burden in proving grounds under 23 Pa.C.S.A. §§ 2511(a)(1),
(2), (5) and (8), by “clear and convincing evidence”?
[3]. Did the court below err in finding that DHS had met its
burden to prove that termination would be in the Children’s best
interests, under § 2511(b)?
Father’s brief at 4.
Before addressing Father’s issues, we must comment on the trial
court’s determination that Father has waived them all because of a failure to
provide a timely Rule 1925(a)(2)(i) statement. To determine whether
Father’s issues should be considered waived, we rely on the statement found
in In re Adoption of C.J.P., 114 A.3d 1046 (Pa. Super. 2009), wherein this
Court explained:
Neither CYS nor Child’s guardian ad litem has objected or
claimed any prejudice as a result of Mother’s failure to file a
concise statement until ordered to do so by this Court. Thus, we
have accepted Mother’s statement in reliance on our decision in
In re K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding
that a mother’s failure to comply strictly with Pa.R.A.P.
1925(a)(2)(i) did not warrant waiver of her claims, as there was
no prejudice to any party). Cf. J.M.R. v. J.M., 1 A.3d 902, 906-
07 (Pa. Super. 2010) (holding that a father had waived his
claims on appeal after this Court order him to file a concise
statement, and the father’s statement was untimely).
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Id. at 1049 n.4. Thus, contrary to the waiver found by the trial, we
conclude that under the circumstances here, Father has not waived all of the
issues he has raised in his appeal.
We now turn to Father’s first issue in which Father claims he was
denied due process because he was not served with notice and was not
afforded the opportunity to be heard at the June 27, 2016 goal
change/termination hearing. Father begins his discussion by pointing out
that the Adoption Act requires ten days’ notice to him “by personal service
or by registered mail … or by such other means as the court may require.”
Father’s brief at 12 (quoting 23 Pa.C.S. § 2513(b)). Moreover, he claims
that there is no evidence presented that he had been served with this notice
and that, therefore, the trial court erred by determining that reasonable
efforts had been made to serve him. As part of this argument, Father also
asserts that he was denied due process because he was denied his request
to change counsel and to prepare his case.
In response to these assertions, the trial court stated in its opinion
that:
Father also alleges that he was denied due process of law. Due
process requires adequate notice, an opportunity to be heard,
and the chance to defend oneself in an impartial tribunal having
jurisdiction over the matter. In Re Adoption of J.N.F., 887 A.2d
775, 781 (Pa. Super. 2005); see also S. Med. Supply Co. v.
Myers, 804 A.2d 1252, 1259 (Pa. Super. 2002). The
fundamental requirement of due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.
Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
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Father appeared at the goal change termination hearing by
telephone. The trial began at a time specified by Father, for his
convenience. The court found that Father had notice of the trial.
The trial court colloquied Father, and explained the purpose of
the trial. The trial court made it clear that he could be present
and could either listen silently or testify himself. Father chose to
hang up the phone and not participate. Father was afforded a
meaningful opportunity to be heard at the most consequential
time in the trial. He voluntarily refused after the trial court
explained his options and the potential consequences. Father
had court-appointed counsel since April 2014, the start of the
case. Father’s counsel was present for the trial and cross-
examined DHS’s witnesses. Father’s counsel also showed that
she had diligently read the case materials, since she corrected a
misstatement by the CUA social worker. In allowing Father to
participate and allowing his counsel to question witnesses and
introduce evidence, the trial court did not deny Father his
constitutional due process rights.
TCO at 9.
Unfortunately for Father, we are compelled to conclude that this issue
has been waived because he failed to object to the court’s determination
that DHS made reasonable efforts to serve him with notice of the goal
change/termination hearing. Claims not raised in the trial court “may not be
raised for the first time on appeal.” In re S.C.B., 990 A.2d 762, 767 (Pa.
Super. 2010).
In order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of
the proceedings before the trial court. Failure to timely object to
a basic and fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim which was
not called to the trial court's attention at a time when any error
committed could have been corrected. In this jurisdiction … one
must object to errors, improprieties or irregularities at the
earliest possible stage of the adjudicatory process to afford the
jurist hearing the case the first occasion to remedy the wrong
and possibly avoid an unnecessary appeal to complain of the
matter.
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Id. (quoting Thompson v. Thompson, 963 A.2d 474, 475-476 (Pa. Super.
2008)).
Next, we turn to Father’s second and third issues in which he claims
that the court erred in concluding that DHS had met its burden of proving
grounds for termination under sections 2511(a) and (b). We review an
order terminating parental rights in accordance with the following standard:
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 a 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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The 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. at 276 (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
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will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
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. § 2511,
other 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. R.N.J., 985 A.2d at 276.
This Court must agree with only one subsection of 2511(a), in addition
to section 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). Herein, we
review the decree pursuant to section 2511(a)(2) and (b), which provide as
follows.
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(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
...
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
...
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
To satisfy the requirements of 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, 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). The grounds for termination of parental
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rights under section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme
Court addressed the relevance of incarceration in termination decisions
under section 2511(a)(2). The S.P. Court held that “incarceration is a
factor, and indeed can be a determinative factor, in a court’s conclusion that
grounds for termination exist under § 2511(a)(2) where the repeated and
continued incapacity of a parent due to incarceration has caused the child to
be without essential parental care, control or subsistence and that the
causes of the incapacity cannot or will not be remedied.” S.P., 47 A.3d at
828.
With respect to section 2511(b), this Court has 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
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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).
The trial court in discussing section 2511(a)(2), stated:
The Children have been in care since April 9, 2014. Father
contacted CUA in 2014 and claimed paternity of the Children.
CUA then notified Father by certified mail that the court had
ordered him to take a paternity test. Father had requested the
paternity test. Father never took a paternity test. The court
heard no evidence that Father had ever provided any parental
care for the Children. Father has known about the court-ordered
paternity test since 2014, but has not complied. Father would
not even participate in the termination trial. Father is also still
incarcerated at the Allenwood Federal Penitentiary. The Children
need permanency, which Father cannot provide. Father has
demonstrated that he is unwilling to remedy the causes of his
incapacity to parent in order to provide the Children with
essential parental care, control or subsistence necessary for their
physical and mental well-being.
TCO at 6 (citations to the record omitted).
The thrust of Father’s argument, relating to section 2511(a)(2), is that
the trial court’s conclusions are not “logically drawn from the evidence
presented.” Father’s brief at 25. He also contends that the court did not
analyze how the evidence supported the court’s conclusion that “Father is
unable to remedy the causes of his incapacity” and that that conclusion is
“not supported by ‘clear and convincing evidence.’” Id. Those allegations
are the extent of Father’s argument, which we conclude is insufficient to
convince this Court that the trial court erred in ordering the termination of
Father’s parental rights. Simply stated, Father was required “to make
himself known to CUA and to take a paternity test.” TCO at 2. The
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testimony revealed that Father was ordered multiple times to take a
paternity test, which he did not do, and that outreach was extended to
Father and that he never replied. See N.T., 6/27/16, at 39. Testimony also
revealed that Father’s level of compliance was “none” and that no
irreparable harm would befall the Children if Father’s parental rights were
terminated. Id. at 40. There is no contrary evidence that would support
Father’s position countering DHS’s evidence.
As for the section 2511(b) analysis, the trial court explained its
reasoning by stating that:
The CUA social worker testified unequivocally that Father and the
Children have no positive relationship. There would be no
irreparable harm if Father’s rights were terminated. When
Father appeared by phone and expressed a desire not to
participate, the trial court colloquied him, explaining that he
might lose his parental rights if he did not participate. Father
seemed unconcerned with his parental rights, and hung up the
phone. The Children are placed in foster homes which provide
them with safety and permanency. Child 2 is placed in a pre-
adoptive kinship home. Termination of Father’s parental rights
will free the Children for adoption, and is in their best interest.
The trial court heard no evidence of any bond between Father
and the Children. Consequently, the court did not abuse its
discretion when it found that it was clearly and convincingly
established that there was parental bond, and that termination
of Father’s parental rights would not destroy an existing
beneficial relationship.
TCO at 8-9 (citations to the record omitted). We agree. In particular, we
note that the record does not provide information about Father’s interaction
with the Children, if any, presently or in the past. Moreover, no information
relating to an end date for Father’s period of incarceration is provided.
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Therefore, based on the evidence presented and the relevant case law, we
discern no abuse of discretion by the court in concluding that terminating
Father’s parental rights “would best serve the developmental, physical, and
emotional needs and welfare” of the Children. 23 Pa.C.S. § 2511(b).
Accordingly, we affirm the decree terminating Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
Decree affirmed.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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