In Re: C.M.H., a Minor Appeal of: B.H.

J-A12007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.M.H., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.H., FATHER,
Appellant No. 2090 MDA 2014
Appeal from the Decree entered November 12, 2014,
in the Court of Common Pleas of Susquehanna County, Orphans’
Court, at No(s): O.C. 043-2013
BEFORE: BOWES, DONOHUE, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 27, 2015
B.H. (“Father”) appeals from the decree in the Court of Common Pleas
of Susquehanna County involuntarily terminating his parental rights to his
daughter, C.M.H., born in June of 2011.1 Upon careful review, we affirm.
The orphans’ court set forth the factual and procedural history of this
matter as follows, in relevant part.
[C.M.H.] came into placement on or about August 10, 2011 due
to physical abuse of the child by the Mother with legal custody
vesting in Susquehanna County Children and Youth Services
[(“CYS”)] . . . and such custodial status continues to this date.
Since October 4, 2011, C.M.H. has resided with [A.B.], her
husband [(collectively, “Foster Parents”)], and their six (6) other
children. C.M.H. is strongly bonded to the [Foster Parents] and
refers to them as “mom” and “dad.”
1
M.P. (“Mother”) voluntarily relinquished her parental rights to C.M.H.
Mother is not a party to this appeal.
J-A12007-15
[Father] was incarcerated while C.M.H. was in placement until
January 2014 and he has been in and out of foster care and
prison since he was thirteen (13) years old.
On June 10, 2013, [CYS] filed a Petition to Confirm Consent of
the parental rights of Mother after the Mother executed a
Consent to Adoption in accordance the Adoption Act, 23 Pa.C.S.
[§] 2711, on April 8, 2013.
A hearing over both Petitions took place on October 13, 2013.
Subsequently, this Court filed an Order and corresponding
Opinion denying the Petition for Involuntary Termination of
Parental Rights because we found that “the positive actions by
[Father] while incarcerated to prepare to parent more fully
C.M.H. preclude us from finding by clear and convincing evidence
that [Father’s] parental rights should be terminate[d] at the
present.” Court’s Slip Op., 10/17/13.
[Father] exhibited the intention that he would complete all the
necessary requirements in order to re-enter C.M.H.’s life
permanently.
....
This Court executed a Decree Granting Voluntary Relinquishment
of Mother’s parental rights on November 13, 2013.
Then, on May 28, 2014, [CYS] filed another Petition for
Involuntary Termination of Parental Rights . . . against [Father]
[pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8)].
Trial Court Opinion, 11/12/14, at 2-3.
The orphans’ court held the evidentiary hearing on October 27, 2014,
during which CYS presented the testimony of Deanna Wasko, the CYS
caseworker, and A.B., the foster mother. Father testified on his own behalf.
-2-
J-A12007-15
By decree dated November 12, 2014, the orphans’ court involuntarily
terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8), and (b). On December 9, 2014, Father filed a notice of appeal. On
December 12, 2014, Father filed a concise statement of errors complained of
on appeal.2
On appeal, Father raises the following questions for our review:
1. Did [CYS], prove by clear and convincing evidence the
conditions prescribed by 23 Pa.C.S.A. § 2511(a)(1) existed with
respect to [Father]?
2. Did [CYS], prove by clear and convincing evidence the
conditions prescribed by 23 Pa.C.S.A. § 2511(a)(2) existed with
respect to [Father]?
3. Did [CYS], prove by clear and convincing evidence the
conditions prescribed by 23 Pa.C.S.A. § 2511(a)(5) existed with
respect to [Father]?
4. Did [CYS], prove by clear and convincing evidence the
conditions prescribed by 23 Pa.C.S.A. § 2511(a)(8) existed with
respect to [Father]?
Father’s brief at 4.3
2
Father failed to comply with Pa.R.A.P. 1925(a)(2)(i) and (b) by not filing
the concise statement of errors complained of on appeal simultaneously with
the notice of appeal. However, we deem Father’s procedural misstep
harmless because it was not prejudicial to any party. See In Re K.T.E.L.,
983 A.2d 745, 747 (Pa.Super. 2009) (holding that the failure to file a concise
statement of errors complained of on appeal with the notice of appeal will
result in a defective notice of appeal, to be disposed of on a case by case
basis).
3
The guardian ad litem asserts that the orphans’ court properly terminated
Father’s parental rights.
-3-
J-A12007-15
We review the termination decree according to the following standard:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by § 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.
-4-
J-A12007-15
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). The burden is on the
petitioner to prove by clear and convincing evidence that the asserted
statutory grounds for seeking the termination of parental rights are valid.
In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).
Pursuant to In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc), this Court need only agree with any one subsection of 23 Pa.C.S. §
2511(a) in order to affirm the termination of parental rights. Instantly, we
conclude the trial court properly terminated Father’s parental rights pursuant
to § 2511(a)(2) and (b), which provide 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:
....
(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
-5-
J-A12007-15
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 § 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
rights under § 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).
With respect to § 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
-6-
J-A12007-15
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).
On appeal, Father argues that CYS did not give him a reasonable
amount of time after his release from prison to “remove any incapacity,
neglect or refusal on his part” in providing for C.M.H.’s physical and mental
well-being. Father’s brief at 13-14. Father further states, “[t]his is
particularly true when considering the obstacles before him, his limited
resources and [CYS]’s lack of ‘reasonable’ assistance.” Id. at 14. We
disagree.
In explaining its decision to terminate Father’s parental rights pursuant
to § 2511(a)(2), the orphans’ court stated, in part, that “we denied [CYS]’s
first Petition for Involuntary Termination of Parental Rights because
[Father’s] actions in prison evidenced his intent to maintain a relationship
with the child. [Father’s] actions after his release, however, have made it
clear that he did not carry through with those intentions.” Trial Court
Opinion, 11/12/14, at 6.
The record reveals that Father was released from prison on January
18, 2014. N.T., 10/27/14, at 7. Deanna Wasko, CYS caseworker, testified
that Father was offered weekly supervised visits with C.M.H. after his
-7-
J-A12007-15
release, but he only participated in three visits, on January 30, 2014,
February 13, 2014, and February 21, 2014. Id. at 7-8, 16. She testified
that Father did not attend his visit in March of 2014. Id. at 8. Ms. Wasko
recounted on direct examination her last telephone conversation with Father,
as follows, in relevant part:
A. . . . I did get a phone call from [Father] yelling at me at one
time to not call him anymore and not talk to him, that just to
talk to his lawyer and - -
THE COURT: When was that?
....
Mrs. WASKO: In March. It was around the . . . beginning of
March. He didn’t want to talk to me, he was very angry, and - -
I never heard from him again.
Id. at 12. Significantly, Ms. Wasko testified that, in the beginning of March
of 2014, she learned that Father is an indicated sex offender due to an
incident involving his commission of a sexual offense against his eight-year-
old stepsister when he was fifteen or sixteen years old.4 Id. at 11-12, 22.
Ms. Wasko then noted that Father did not appear for a permanency
review hearing in April of 2014. Id. at 9-10. She added that Father failed
to comply with the directives in the permanency review order to complete a
drug and alcohol evaluation, attend and successfully complete an agency-
approved parenting program, provide documentation and/or copies of
4
Father implied in his testimony that the incident occurred in Lackawanna
County. N.T., 10/27/14, at 56.
-8-
J-A12007-15
certificates of completion of the programs, and cooperate with all the
general protective and placement services provided to him and C.M.H. Id.
at 12-13. Ms. Wasko explained that by the next review in August of 2014,
CYS had learned that Father had been re-incarcerated in June of 2014 for a
parole violation. Id. at 14.
Ms. Wasko also outlined the actions that CYS believes warrants
terminating Father’s parental rights. The following exchange is instructive.
Q. And why is it you don’t think [Father] can [meet C.M.H.’s
needs]?
A. [Father] has had opportunity. As I recall, when he was in his
first incarceration when we became involved, on his video
conferencing, he stated when he got out he was ready to do
what he needed to do, he was going to be the dad he needed to
be, he was going to cooperate, he was going to do all of those
things. He got out in January of 2014, and he did 3 visits. He
was offered visits weekly if he wanted them. He did not keep in
contact with [CYS]. In March, he just disappeared. He did not
make any contact, he didn’t come around, he didn’t call for
visits, he did nothing. He didn’t show up to the only hearing that
he could show up to on his own, he didn’t even show up to be
part of the hearing. [Father] has been back in jail since that first
time. He has a parole violation. He is back with [Mother] who
voluntarily terminated her rights. . . . [Father] told me himself
that he wasn’t involved with her when he actually was.
Id. at 16-17.
Additionally, as it relates to Father’s attempts to rectify the conditions
that led to his parental incapacity, i.e., his apathy and inaction, Father
testified to the following. At the time of his release from prison on January
18, 2014, he had a sentence of two years of probation, lasting from August
-9-
J-A12007-15
of 2013, to August of 2015, for a separate conviction involving theft. Id. at
35, 48-49. Upon Father’s release in January of 2014, he went to live with
his brother, his brother’s fiancée, and her children in Carbondale, in
Lackawanna County, Pennsylvania. Id. at 37. After approximately two
months of residing with his brother, Lackawanna Children and Youth
Services told him he could not reside there because the children of his
brother’s fiancée resided there.5 Id. Though he resided in an apartment
across the street from his brother’s residence, Father “ended up losing that
place because I didn’t have enough money. . . .” Id. at 38. His probation
was subsequently revoked for not reporting within 72 hours his change of
address and job status. Id.
Father then testified that he ran from the state parole authorities in
March of 2014, but turned himself in on June 9, 2014.6 Id. at 38-39.
During that time-period, Father resided with Mother. Id. at 39. Father
continued to reside with Mother at the time of the hearing in a household
that also included Mother’s former paramour,7 G.D. III, and his wife and four
5
Although Father did not clarify why Lackawanna County Children and Youth
Services did not allow him to continue living with his brother, his brother’s
fiancée, and her children, we assume it is because of Father’s indicated
sexual offender status.
6
Father was re-incarcerated between June 9, 2014 and October 9, 2014.
N.T., 10/27/14, at 47.
7
Mother’s dalliance with G.D. III bore a daughter. N.T., 10/27/14, at 41.
- 10 -
J-A12007-15
minor children. Id. at 39-40. Lackawanna County Children and Youth
Services have placed a restriction on him that he not be alone with any of
G.D. III’s four children. Id. at 40.
Significantly, Father testified that Mother recently gave birth to his
son, who was still in the hospital at the time of the termination hearing, and
that he and Mother are giving custody of that child to G.D. III and his wife.
Id. at 40-41. Further, Father also testified that he is engaged to marry
Mother. Id. at 57.
Finally, Father offered the following in his testimony regarding his
supervised visits with C.M.H. after his release from prison in January of
2014. Scheduled visits occurred at the office of CYS, located in
Susquehanna County, and he lived in Carbondale, in Lackawanna County,
which was a driving distance of 45 to 60 minutes. Id. at 44. His father
drove him to the visits, and he had to pay for the gas. Id. The visits were a
financial burden, and Father could not afford transportation by car to CYS
every one or two weeks. Id. at 63. Though he requested that CYS move
the visits to Lackawanna County, but CYS denied Father’s bid. Id. at 45.
Finally, Father testified as follows on direct examination:
Q. How do you view your relationship with [CYS] at this point?
A. At this point . . . there is no relationship with [CYS]. I don’t
get along with them for numerous reasons. . . .
Id. at 47-48.
- 11 -
J-A12007-15
Based on the foregoing testimonial evidence, we conclude that the
orphans’ court did not abuse its discretion in involuntarily terminating
Father’s parental rights pursuant to § 2511(a)(2). Indeed, Father’s
incapacity, neglect, or refusal has caused C.M.H. to be without essential
parental care, control, or subsistence necessary for her physical or mental
well-being since she was two months old. Further, the causes of Father’s
incapacity, neglect, or refusal cannot or will not be remedied in that, despite
his promise while in prison at the time of C.M.H.’s placement to do all that is
necessary to meet C.M.H.’s needs upon his release, Father failed to do so.
CYS filed the second petition for involuntary termination of Father’s parental
rights on May 28, 2014, more than four months after Father’s initial release
from prison. By the time of the termination hearing on October 27, 2014,
Father was still unable to provide C.M.H. with essential parental care,
control, or subsistence necessary for her physical and mental well-being.
Further, we reject Father’s assertion that his conduct does not warrant
termination pursuant to § 2511(a)(2) because CYS failed to provide him with
“reasonable assistance.” Father’s brief at 14. In In re D.C.D., 105 A.3d
662 (Pa. 2014), our Supreme Court held that neither § 2511(a)(2) nor
§ 2511(b) “requires a court to consider the reasonable efforts provided to a
parent prior to termination of parental rights.” Id. at 672. Therefore,
Father’s issues on appeal fail.
- 12 -
J-A12007-15
Although Father does not present an issue on appeal with respect to
§ 2511(b), we review the trial court’s needs and welfare analysis in an
abundance of caution and observe that no parental bond exists between
C.M.H. and Father. Rather, a parental bond exists between C.M.H. and her
kinship foster parents, with whom she has resided since October of 2011,
when she was four months old.8 N.T., 10/27/14, at 5. During the hearing,
Ms. Wasko testified that C.M.H. “is completely bonded to [Foster Parents].
That is her mom and her dad, as far as she’s concerned. They are willing to
adopt her and give her permanency. . . . They do everything that a child
needs a parent to do and she - - absolutely adores them.” Id. at 15-16.
Accordingly, we find that the orphans’ court did not abuse its discretion by
concluding that terminating Father’s parental rights will serve the
developmental, physical, and emotional needs and welfare of C.M.H. See
In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (stating “a parent’s
basic constitutional right to the custody and rearing of his 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 his or her potential in a permanent,
healthy, safe environment”). We affirm the decree terminating Father’s
parental rights to C.M.H. pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
8
C.M.H.’s foster mother is a distant cousin of Mother. N.T., 10/27/14, at 5-
6.
- 13 -
J-A12007-15
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
- 14 -