Interest of A.G.S. & M.R.S. Appeal of:S.S., father

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.G.S. AND : IN THE SUPERIOR COURT OF
M.R.S., MINORS : PENNSYLVANIA
:
:
APPEAL OF: S.S., NATURAL FATHER :
:
:
:
: No. 1880 WDA 2016
Appeal from the Order Entered November 7, 2016
In the Court of Common Pleas of McKean County
Orphans’ Court at No(s): 42-15-0107/42-15-0107-1
BEFORE: OLSON, MOULTON, and STRASSBURGER*, JJ.
MEMORANDUM BY MOULTON, J.: FILED JUNE 06, 2017
S.S. (“Father”) appeals from the November 7, 2016 orders granting
the petitions filed by the McKean County Children and Youth Services
(“CYS”), and involuntarily terminating his parental rights to his children,
A.G.S., born in June 2013, and M.R.S., born in September 2014,
(“Children”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2),
(5), and (b). We affirm.1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In separate orders entered on that same date, the trial court
terminated the parental rights of Children’s mother, M.M. (“Mother”).
Mother has filed a separate appeal from the termination of her parental
rights at Docket No. 1881 WDA 2016, which we address in a separate
memorandum.
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Both Mother and Father (“Parents”) have a lengthy history of drug
abuse and incarceration.2 Id. The trial court found the following facts:
[M.R.S.] was in the care of her Parents until September
of 2014. [A.G.S.] was born addicted to Methadone. CYS
was notified by medical providers regarding [A.G.S.’s]
condition[,] and CYS initiated an investigation shortly after
her birth and before she was released by the hospital. CYS
filed Petitions for Dependency on September 29, 2014.
Several hearings were held to address the Dependency
Petitions and to review the status of the dependency cases
following disposition.
Tr. Ct. Memorandum and Order, 11/7/16, at 1 (unpaginated) (“Termination
Op.”).3
The trial court adjudicated Children dependent on October 6, 2014 and
CYS placed Children in the care of B.L. (“Foster Mother”) and M.L. (“Foster
Father”) (collectively, “Ls” or “Foster Parents”). Children remain in the care
of Foster Parents, id. at 10, and Children were doing well in their care, id. at
3.
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2
Prior to A.G.S. being removed from Parents’ care and custody,
Father, Mother, and A.G.S. resided with M.S. (“Paternal Grandmother”). Tr.
Ct. Memo. and Order, 11/7/16, at 8 (unpaginated). Paternal Grandmother
provided the majority of the care for A.G.S. Paternal Grandmother has
health issues and is unable to provide care for either of the Children. Id.
For a complete discussion of the case’s factual and procedural history, see
the trial court’s memorandum and order filed on November 7, 2016.
3
The trial court entered a separate memorandum and order for each
child, with two orders attached to each memorandum, one regarding each
parent. The memoranda are identical with regard to the portions that we
cite and quote herein.
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On April 28, 2015, CYS filed petitions seeking to involuntarily
terminate the parental rights of Mother and Father to Children, and filed
amended petitions on November 19, 2015. The trial court held evidentiary
hearings on the petitions on July 31, 2015; December 2, 11, 14, and 18,
2015; January 25 and 26, 2016; and July 15, 2016.4
The trial court found the following from the testimony of Foster
Parents:
The court finds the testimony of [Foster Mother]
credible. [The Ls] live in McKean County. They have been
married for over 29 years. They have served as foster
parents since October 2001. [A.G.S.] was placed with
them in October of 2014. [M.R.S.] was placed with them
shortly after her birth and when she was discharged from
the hospital. The [Ls] have provided exceptional care for
[Children]. [Foster Father] obtained training to recognize
and address issues that [A.G.S.] may have due to being
born drug addicted. The [Ls] have taken both children to
their medical appointments. The [Ls] offered to allow the
parents to call their home to obtain information regarding
[C]hildren. Mother has called at times. However, “it
depends on where she is.” Mother has gone several weeks
and even months without calling the [Ls]. Mother has sent
“about 5 letters and cards” to the [Ls] for [C]hildren.
Mother has also sent gifts for [C]hildren to the [Ls].
Mother attended a birthday party for [M.R.S.] that the [Ls]
had on June 26, 2015. Mother also attended a visit at the
[Ls] on August 16, 2015; and, according to the [Ls],
Mother’s attendance at the birthday party and the August
2015 visit was “completely appropriate.” Father has only
called the [Ls] once.
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4
In its memorandum and orders, the trial court summarized the
testimony from these hearing dates, and identified the testimony that it
found credible and that which it did not. See Termination Op. at 1-16.
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[Children] are very bonded with the [Ls] and their
children. The girls recognize the [Ls] as their primary
caretakers and are very affectionate toward them. The
[Ls] “adore those girls” and would adopt them if that is an
option.
...
The court finds the testimony of [Foster Father]
credible. [Foster Father] reaffirmed the testimony
provided by [Foster Mother]. He explained that [M.R.S.]
was discharged to his care [from] the hospital after he
attended a program on how to provide for a child that was
born drug dependent. He explained that he and/or his
wife take the girls to their medical and other necessary
appointments. He indicated that parents have not
attended any of the medical appointments that he has
taken the girls to[]. He explained that he “loves these
kids” and he and his wife would adopt them if that is an
option.
Termination Op. at 10.
The trial court found the following credible from the testimony of the
CYS caseworker, Denise Butler:
[Butler] was assigned as the caseworker for [Children]
in November of 2014. When she was first assigned to
these cases Mother was still incarcerated and Father was
still residing with [Paternal Grandmother], in Port
Alleghany, PA.
...
The first contact that caseworker Butler had with Father
was following a dependency review hearing. She
established a visitation with Father. Father attended the
first 3 visits. After that, which was in January 2015,
Father indicated that he was working out of the area and
the visits would have to be scheduled when he was
available, which was often only on the weekends.
Therefore, he had very few visits with [C]hildren. Out of
13 visits scheduled 5 were cancelled. Caseworker Butler
testified that Father never attended any of the medical
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appointments for [C]hildren. Father failed to maintain
contact with the employees at Parents as Teachers.
Therefore, because of the lack of contact and the missed
visits, Parents as Teachers closed out their case with this
family. Father was required as part of the initial
reunification plan to obtain an updated drug and alcohol
evaluation[.]
Caseworker Butler asked Father to provide a urine
sample during their first meeting following a court hearing
in November 2014 and many times thereafter. Father had
numerous positive urine screens (positive for the presence
of non-prescribed controlled substances). Father would
often advise caseworker Butler what substances would
likely be detected by the test, that “it was going to be
dirty,” and the test normally confirmed what he had
indicated. Caseworker Butler would ask Father “if he was
prescribed anything and he would say ‘no.’” It was
common for the results to be positive for opiates and
suboxone.
The reunification plan for Father always included a
requirement that he refrain from utilizing non-prescribed
controlled substances and obtain an updated drug and
alcohol evaluation. Caseworker Butler spoke to Father
about that and Father indicated he was going to obtain an
evaluation but he did not do so. In February of 2015 he
said he was about to obtain insurance coverage and then
he would obtain the evaluation. In June of 2015 he was
ordered as part of a sentence for a DUI conviction to
obtain an updated evaluation and he did so, but only after
being under the threat of his criminal supervision being
violated if he failed to do so. Father was required to obtain
appropriate housing and he failed to do so.
Regarding the bond between Parents and the [C]hildren
Caseworker Butler testified that it was similar to the
relationship “with a babysitter.” She explained “they
([C]hildren) are familiar with them, they are not scared of
them, I mean not interact with them, but like taking
[M.R.S.] from the [Ls,] she cries every time I want - I
come to pick her up and she reaches for them (Ls/Foster
[P]arents) because she doesn’t want to go out the door.
She doesn’t want to go with [Father and Mother].”
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Id. at 12-13.
As noted above, on November 10, 2016, the trial court entered the
memorandum and orders granting the petition for involuntary termination of
the parental rights of Father to Children pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), and (b).5
On December 7, 2016, Father timely filed a notice of appeal. In his
brief on appeal, Father raises one issue:
Did the Honorable court below err when it terminated
Father’s parental rights despite a lack of competent
evidence regarding the nature of the bond between Father
and his children[,] and whether or not severance of that
bond would be harmful to the Children?
Father’s Br. at 7.
In reviewing 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
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5
The orders were dated as filed on November 7, 2016. Notice was not
sent to the parties until November 10, 2016.
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discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
As we discussed in [In re: R.J.T., 9 A.3d 1179, 1190
(Pa. 2010)], there are clear reasons for applying an abuse
of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a
cold record, where the trial judges are observing the
parties during the relevant hearing and often presiding
over numerous other hearings regarding the child and
parents. 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).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis:
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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). The
burden is upon the petitioner to prove by clear and convincing evidence that
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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). 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)).
The trial court terminated Father’s parental rights under subsections
2511(a)(1), (2), (5), and (b).6 In his brief, Father argues:
Importantly, the eight-day record of testimony is devoid of
any evidence that NO bond exists between Father and
either daughter. Likewise, there is no evidence of an
unhealthy bond. Finally, the record contains no evidence
that either or both children will not be harmed by the
severance of a bond.
Father’s Br. at 10 (emphasis in original). Father states that the trial court
relied only on the caseworker’s opinion that Children are bonded with their
foster parents. Father states that he was involved in caring for the older
child, A.G.S., after she was born in June 2013 until she was placed in foster
care in October 2014. Father admits that any bond between M.R.S. and him
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6
Although the trial court’s orders do not expressly state that Father’s
parental rights are terminated under section 2511(b), the trial court
discussed section 2511(b) and the case law pursuant to that section, and
found it applicable in terminating Father’s parental rights. See Termination
Op. at 18-21. On appeal, Father is not challenging the failure of the order to
expressly provide that his parental rights were terminated under section
2511(b).
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would be less than the bond between A.G.S. and him, but he argues that he
maintained the same visitation schedule with both Children, such that some
degree of bonding was likely to occur. Id. at 17. Father contends that,
because CYS failed to present sufficient evidence regarding bonding, this
Court should reverse the termination order. Id. at 18.7
Section 2511(b) provides:
(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).
We have stated that:
Section 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child. As
this Court has explained, Section 2511(b) does not
explicitly require a bonding analysis and the term ‘bond’ is
not defined in the Adoption Act. Case law, however,
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7
On appeal, Father does not challenge the termination of his parental
rights under subsections 2511(a)(1), (2), and (5), and we need not address
those provisions here. We note, however, that the trial court’s finding that
termination was proper under subsection 2511(a) was supported by the
evidence and was not an abuse of its discretion. See Termination Op. at 17-
21; 23 Pa.C.S. § 2511(a)(1), (2), (5).
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provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with
his or her child is a major aspect of the subsection 2511(b)
best-interest analysis, it is nonetheless only one of many
factors to be considered by the court when determining
what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015)
(quotation marks and citations omitted) (quoting In re N.A.M., 33 A.3d 95,
103). Further, 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).
We have explained that “[a] parent’s own feelings of love and affection
for a child, alone, do not prevent termination of parental rights.” In re Z.P.,
994 A.2d at 1121. Further, this Court has stated: “[A] parent’s basic
constitutional right to the custody and rearing of . . . her child is converted,
upon the failure to fulfill . . . her parental duties, to the child’s right to have
proper parenting and fulfillment of [the child’s] potential in a permanent,
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healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa.Super
2004). It is well-settled that “we will not toll the well-being and permanency
of [a child] indefinitely.” In re Adoption of C.L.G., 956 A.2d 999, 1007
(Pa.Super. 2008) (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.Super. 2008)
(noting that a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of parenting.”
(citation omitted))).
Here, the trial court stated:
The court finds that the bond between Parents and
[C]hildren is limited. As caseworker Butler testified
[C]hildren’s relationship with Parents is similar to the
relationship between a child and a babysitter[;] they
recognize Parents and are not afraid to be with them, but
they do not recognize them as their primary caretakers.
[C]hildren have resided with the [Foster Parents] for over
two years and they therefore recognize them as their
primary caretakers. [C]hildren have a very strong bond
with the [Foster Parents,] and it would be harmful to them
to severe that bond.
...
[T]he court also finds that [M.R.S.] and [A.G.S.] have a
very limited bond with Parents and have a very strong
bond with their foster parents, the [Ls]. The [Ls] have
provided exceptional care for [C]hildren and they intend on
adopting them if that is an option. Therefore, termination
of parental rights will best serve the needs and welfare of
[C]hildren.
Termination Op. at 21.
We conclude that the record supports the trial court’s factual findings,
and the court’s conclusions are not the result of an error of law or an abuse
of discretion. In re Adoption of S.P., 47 A.3d at 826-27. Accordingly, it
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was proper for the trial court to find that termination of Father’s parental
rights would best serve the developmental, physical, and emotional needs
and welfare of Children. We, therefore, affirm the orders terminating
Father’s parental rights with regard to Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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