In the Int. of: H.W., Appeal of: M.W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.W., FATHER :
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: No. 1217 EDA 2021
Appeal from the Order Entered June 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002042-2018
IN THE INTEREST OF: H.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.W., FATHER :
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: No. 1218 EDA 2021
Appeal from the Order Entered June 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000083-2021
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2021
As I believe the certified record sustains the trial court’s decision to
terminate the parental rights of M.W. (“Father”) to his son, H.W., I respectfully
dissent. In contrast to the learned majority, I can find no basis to disturb the
trial court’s conclusion that the Philadelphia Department of Human Services
(“DHS”) presented clear and convincing evidence to establish the statutory
grounds to terminate Father’s parental rights pursuant to 23 Pa.C.S.
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§ 2511(a)(1). Thus, I would address Father’s remaining three claims and, as
discussed infra, affirm the orders.
Instantly, the trial court found grounds for termination pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), and (8). These subsections 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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
....
(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
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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.
23 Pa.C.S. § 2511(a)(1), (2), (5), (8). We need only agree with the court as
to any one subsection of § 2511(a), in addition to § 2511(b), to affirm the
order terminating involuntarily Father’s parental rights. In re B.L.W., 843
A.2d 380, 384 (Pa.Super. 2004) (en banc).
Appellate review in cases involving involuntary termination of
parental rights is limited to determining whether the trial court’s
determination is supported by competent evidence. When
applying this standard of review, an appellate court must accept
the findings of fact and credibility determinations of the trial court
if they are supported by evidence of record. Where the trial
court’s factual findings are supported by the evidence, an
appellate court may not disturb the trial court’s ruling unless it
has discerned an error of law or abuse of discretion. An abuse of
discretion is found where there is a demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill will. It matters
not that an appellate court might have reached a different
conclusion, as it is well-established that absent an abuse of
discretion, an error of law, or insufficient evidentiary support for
the trial court’s decision, the decree must stand.
In re Adoption of L.A.K., No. 14 WAP 2021, 2021 WL 6071745 at *7 (Pa.
Dec. 23, 2021) (cleaned up).
Initially, I agree with the learned majority that § 2511(a)(5) and (8) are
inapplicable because H.W. was not removed from the care of Father. See
Majority at 12. In fact, Father was already incarcerated at the time of H.W.’s
removal. Nonetheless, I cannot agree with the majority’s conclusion that the
trial court erred in finding DHS presented clear and convincing evidence
establishing grounds for termination under § 2511(a)(1). Contrary to our
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Supreme Court’s recent admonishment, it appears that, “[r]ather than
determine whether the trial court’s findings of fact were supported by evidence
of record, the [majority instead] reviewed the record de novo, making its own
credibility determinations and findings of fact.” L.A.K., supra at *10. Our
Supreme “Court has repeatedly stated that in termination cases involving
close calls, deference to the trial court’s determination is particularly crucial.”
Id. at *11.
Here, the learned majority focuses on § 2511(a)(2), concluding that
clear and convincing evidence was not presented where the caseworker’s “sole
reason” for “why reunification would not be possible . . . was Father’s
incarceration and consequent inability to be a resource for the child.” Majority
at 16 (citation and quotation marks omitted). While the majority relies on In
re R.I.S., 36 A.3d 567, 569 (Pa. 2011), for the proposition that “a parent’s
incarceration, standing alone, cannot constitute proper grounds for the
termination of his or her parental rights,” it neglected the trial court’s finding
that Father failed to use reasonable efforts to overcome the obstacle of his
incarceration. Id. Hence, for the reasons I explain below, I reject my learned
colleagues’ preoccupation with § 2511(a)(2) and, instead, would find that the
certified record supports the trial court’s analysis pursuant to § 2511(a)(1).
In In Re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court
addressed the effects of incarceration on a court’s termination analysis under
§ 2511(a)(1) and (2). As to § 2511(a)(2), “[i]ncarceration neither compels
nor precludes termination[,]” but rather “is a factor, and indeed can be a
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determinative factor, in a court’s conclusion that grounds for termination exist
under § 2511(a)(2)[.]” Id. at 828 (cleaned up). As to subsection 2511(a)(1),
the S.P. Court observed as follows:
Applying in [In re McCray's Adoption, 331 A.2d 652 (Pa.1975)]
the provision for termination of parental rights based upon
abandonment, now codified as § 2511(a)(1), we noted that a
parent “has an affirmative duty to love, protect and support his
child and to make an effort to maintain communication and
association with that child.” Id. at 655. We observed that the
father’s incarceration made his performance of this duty “more
difficult.” Id.
....
[The McCray's Court] stated:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his or
her incarceration. Rather, we must inquire whether
the parent has utilized those resources at his or her
command while in prison in continuing a close
relationship with the child. Where the parent does not
exercise reasonable firmness in declining to yield to
obstacles, his other rights may be forfeited.
Id. at 655 (footnotes and internal quotation marks omitted).
Notably, we did not decree that incarceration could never be a
factor in a court’s determination that grounds for termination had
been met in a particular case. Instead, the emphasis of this
passage was to impose on the incarcerated parent,
pursuant to an abandonment analysis, a duty to utilize
available resources to continue a relationship with his or
her child.
Id. at 828 (emphasis added). Thus, as established in In re McCray's
Adoption, the primary focus of the § 2511(a)(1) analysis is whether an
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incarcerated parent exercised reasonable firmness in declining to yield to
obstacles created by imprisonment and employed available resources to
maintain a relationship with his or her child. See In re Adoption of Dale A.,
II, 683 A.2d 297, 302 (Pa.Super. 1996) (noting “a parent’s responsibilities
are not tolled during his incarceration. Instead, a reviewing court must
analyze whether the parent utilized those resources available while in prison
to maintain a relationship with his child.”).
Instantly, at the time of the hearing on April 28, 2021, H.W. was four
years old. Father had been incarcerated H.W.’s entire life, and his earliest
potential release date would be May of 2022. Jasmine Jackson, the case
manager for the Community Umbrella Agency, testified that Father was aware
of H.W.’s placement. She noted that although Father was engaged in a
parenting program and GED course as part of his single case plan, due to his
continued incarceration, he was not available as a resource for H.W. N.T.,
4/28/21, at 103. Father did not have telephone contact with H.W. through
the foster parent. Id. at 126. Father inquired about virtual visits with H.W.,
but Ms. Jackson did not hear back from the contact person with whom she
had been put in contact with by Father for arranging such visits. Id. at 111,
127. According to Father, he “check[ed] in here and there” about the virtual
visits but had not heard anything. Id. at 111. Prior to H.W.’s placement,
Mother would bring H.W. to visit Father in the county jail on a weekly basis.
However, since H.W.’s placement in 2019, the only contact Father has had
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with H.W. was an undisclosed number of telephone calls, which only occurred
during Mother’s visits with H.W. Id. at 104.
While Father testified that his earliest release date could be in May of
2022, over one year from the date of the hearing, Father could not guarantee
he would be released at that time. Accordingly, H.W. would remain in foster
care for at least another twelve months until Father’s possible release. Even
after Father’s release, it is unclear when, if ever, he would be able to
demonstrate the maturity and stability needed to parent H.W. As this Court
has often emphasized, “a child’s life cannot be held in abeyance while a parent
attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re R.J.S., 901 A.2d 502, 513 (Pa.Super. 2006). Moreover,
the evidence presented did not establish an attempt by Father to use his
available resources to overcome the obstacle of incarceration in providing
parental care to H.W. Besides asking once to set up virtual visits and checking
the status of that request “here and there[,]” Father did not otherwise attempt
to set up virtual visits or call H.W. through the foster parent, and there was
no evidence that Father sent H.W. letters, cards, or other correspondence in
an attempt to maintain a place of importance in H.W.’s life.
Based on the foregoing, I agree with the trial court that “Father’s
continued incapacity caused [H.W.] to be without essential parental care,
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control or subsistence, and the causes of the incapacity could not or would not
be remedied by him, [thereby] establishing grounds for termination of his
parental rights.” Trial Court Opinion, 7/27/21, at 20. Hence, the trial court
did not abuse its discretion in concluding that DHS proved, by clear and
convincing evidence, that termination of Father’s parental rights was
warranted pursuant to § 2511(a)(1).
Next, I address whether the involuntary termination of parental rights
would best serve H.W.’s developmental, physical, and emotional needs and
welfare pursuant to subsection 2511(b).1
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
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1 The Adoption Act outlines the pertinent considerations as follows:
(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(b).
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status of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. Id. However, in
cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. In re K.Z.S.,
946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010). As a general
matter, Pennsylvania does not require the trial court to enlist a formal bonding
evaluation, and the court’s needs and welfare analysis need not hinge upon
expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2011).
In relation to § 2511(b), the trial court “found that DHS provided clear
and convincing evidence that termination of Father’s parental rights met the
developmental, physical and emotional needs and welfare of the Child, and
the statutory requirements pursuant to 23 Pa.C.S. . . . § 2511(b).” Trial Court
Opinion, 7/27/21, at 20. For the following reasons, I agree.
Father argues that he was trying to work on the bond by setting up
virtual visits, albeit unsuccessfully, and speaking to H.W. on the telephone
during Mother’s visits. Father’s brief at 38-39. The record belies this
assertion.
At the evidentiary hearing, Ms. Jackson acknowledged that Father had
inquired about virtual visits, but his contact person did not respond to her.
She further acknowledged that the content of the telephone calls she observed
during Mother’s visits was “appropriate.” However, she did not observe any
parent/child bond between Father and H.W., who never asked for Father, and
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Father conceded that H.W. probably would not remember him. N.T.,
4//28/21, at 104, 111, 126-27. Accordingly, I would find that the trial court
did not abuse its discretion in concluding that DHS had presented clear and
convincing evidence in support of termination under § 2511(b).
Finally, I turn to Father’s arguments challenging the goal change. This
Court reviews a goal change order for an abuse of discretion. In re R.J.T., 9
A.3d 1179, 1190 (Pa. 2010). When considering a goal change petition, “[t]he
best interests of the child, and not the interests of the parent, must guide the
trial court. As this Court has held, a child’s life simply cannot be put on hold
in the hope that the parent will summon the ability to handle the
responsibilities of parenting.” In re A.B., 19 A.3d 1084, 1089 (Pa.Super.
2011) (citations and quotation marks omitted).
As with his first claim, Father posits that the trial court abused its
discretion when it changed H.W.’s goal to adoption because Father was
complying with his single case plan goals and attempting to maintain contact
with H.W. Father’s brief at 39-45. For the reasons already discussed
throughout this dissenting memorandum, I believe Father’s claim is meritless.
In sum, Father has failed to meaningfully attempt to overcome the obstacle
of his incarceration. He has shown himself unwilling or incapable of providing
H.W. with permanence and stability. Moreover, the certified record confirms
that H.W. does not share a parental bond with Father. Thus, the record
supports the court’s finding that it does not serve H.W.’s best interests to
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preserve the goal of reunification. Accordingly, I would not disturb the goal
change order.
For all of the foregoing reasons, I do not discern an error of law or abuse
of discretion in the trial court's decision to terminate Father's parental rights
to H.W. and change H.W.’s permanent placement goal to adoption.
Accordingly, I would affirm the trial court’s orders.
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