In the Interest of: S.J.M-B., a Minor

J-S95032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.J.M.-B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: D.M., Father : No. 2463 EDA 2016
Appeal from the Decree July 25, 2016
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000603-2016,
CP-51-DP-0001671-2014
IN THE INTEREST OF: S.M.M.-B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: D.M., Father : No. 2464 EDA 2016
Appeal from the Decree July 25, 2016
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000604-2016,
CP-51-DP-0001670-2014
BEFORE: STABILE, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 13, 2017
D.M. (“Father”) appeals from the Decrees granting the Petitions filed
by the Department of Human Services (“DHS”) to involuntarily terminate his
parental rights to his minor children, S.M.M.-B. (d/o/b 10/9/06) and
S.J.M.-B. (d/o/b 12/3/08) (collectively “Children”), pursuant to 23 Pa.C.S.A.
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§ 2511(a)(1), (2), and (b), and changing Children’s permanency goal to
adoption.1 We affirm.
The trial court set forth the relevant underlying facts in its Opinion,
which we adopt for the purpose of this appeal. See Trial Court Opinion,
10/16/16, at 2-10.2
Following the hearing on the Petitions to terminate, the trial court
entered Decrees terminating Father’s parental rights. Father filed timely
Notices of Appeal and Pennsylvania Rule of Appellate Procedure 1925(b)
Concise Statements. This Court consolidated the appeals.
On appeal, Father raises the following questions for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Father,] pursuant to 23
Pa.C.S.A. [§] 2511(a)(1)[,] where [F]ather presented
evidence that he met his [Family Service Plan (“FSP”)] goal
and tried to perform his parental duties[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Father,] pursuant to 23
Pa.C.S.A. [§] 2511(a)(2)[,] where [F]ather presented
evidence that he has remedied his situation by taking violence
prevention and a drug and alcohol treatment program[s, and]
Father has the present capacity to care for [C]hildren[?]
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Father,] pursuant to 23
Pa.C.S.A. [§] 2511(b)[,] where evidence was presented that
established [C]hildren had a parental bond with [Father] prior
1
The trial court also terminated the parental rights of Children’s mother,
T.B. See Trial Court Opinion, 10/18/16, at 1. T.B. did not appeal the
Decrees.
2
DHS filed the Petitions for Involuntary Termination of Parental Rights on
July 7, 2016.
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to his incarceration and continue this bond through phone
contact and letters[?]
Father’s Brief at 7.
We review an appeal from the termination of parental rights in
accordance with the following standard:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner
“to prove by clear and convincing evidence that its asserted grounds for
seeking the termination of parental rights are valid.” In re R.N.J., 985 A.2d
273, 276 (Pa. Super. 2009). “[C]lear 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. (citation and quotation marks omitted).
Further, 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 the competent evidence supports the trial court’s findings,
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“we 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).
Satisfaction of any one subsection of section 2511(a), along with
consideration of Section 2511(b), is sufficient for the involuntary termination
of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). In this case, we will review the trial court’s decision to terminate
Father’s parental rights based upon section 2511(a)(1) and (b), which state
the following:
§ 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.
23 Pa.C.S.A. § 2511(a)(1), (b).
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Parental rights may be terminated pursuant to Section
2511(a)(1) if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to perform
parental duties. … [P]arental duty is best understood in relation
to the needs of a child. … [T]his court has held that the parental
obligation is a positive duty[,] which requires affirmative
performance. This affirmative duty … requires a continuing
interest in the child and a genuine effort to maintain
communication and association with the child.
In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal
quotations and citations omitted); see also In re B., N.M., 856 A.2d 847,
855 (Pa. Super. 2004).
With regard to incarceration and the 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 [her]
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 circumstances.
In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations
omitted); see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).
Further,
[a] parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-
child relationship. Parental rights are not preserved by waiting
for a more suitable or convenient time to perform one’s parental
responsibilities 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).
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In his first claim, Father contends that the trial court erred in granting
the termination Petitions because DHS did not establish, by clear and
convincing evidence, that his parental rights should be terminated under
Section 2511(a)(1). Father’s Brief at 12-13. Father argues that he never
relinquished his parental rights, or refused to perform his parental duties.
Id. at 14. Father asserts that he met his FSP goal of maintaining contact
with Children. Id. at 13. Father claims that he asked for prison visits, but
that he was never afforded a visit. Id. Father further claims that he had
telephone contact with Children. Id. Father also argues that he has
completed drug and alcohol treatment and violence prevention programs in
prison. Id.
The trial court found that there was clear and convincing evidence to
support the termination of Father’s parental rights under section 2511(a)(1).
See Trial Court Opinion, 10/16/16, at 12; id. at 8-10 (wherein the trial court
set forth a summary of the evidence presented at the termination hearing).
Specifically, the trial court pointed out that the credible testimony of
Kimberly Walker (“Walker”), the caseworker assigned to this case, indicated
that Father had not complied with his FSP objectives, only had contact with
Children in May 2016, and that Father had made no effort to be involved in
Children’s lives. See id. at 10-12. Further, the trial court found Father’s
testimony regarding his contacts with Children to be incredible. See Trial
Court Opinion, 10/16/16, at 12.
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In the instant matter, the evidence demonstrates that Father did not
provide for the needs of Children, and has made minimal efforts to establish
a relationship with them. See In re Adoption of S.P., 47 A.3d at 828
(stating 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.”) (citation omitted); see also In re G.P.−R., 851 A.2d 967,
976 (Pa. Super. 2004) (stating that “[i]t is incumbent upon a parent[,] when
separated from his child[,] to maintain communication and association with
the child. This requires an affirmative demonstration of parental devotion,
imposing upon the parent the duty to exert himself, to take and maintain a
place of importance in the child’s life.”).
Furthermore, the fact that Father was in prison did not excuse his
failure to perform his parental duties. See In re Adoption of S.P., 47 A.3d
at 828 (stating that the trial court may consider a parent’s incarceration in
ruling on a termination petition). After our careful review of the trial court’s
application of the law to the facts of this case, we will not disturb the trial
court’s findings that Father failed to perform his parental duties with regard
to Children for a period of at least six months immediately preceding the
filing of the Petition. See In re B., N.M., 856 A.2d at 858 (concluding that
father showed a settled purpose of relinquishing his parental rights where he
sat idle for most of child’s life, and that father’s wish to not have his
“parental rights terminated was insufficient to protect those rights without
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acting affirmatively to foster a parental relationship with [c]hild during his
incarceration.”). Thus, the trial court’s determinations regarding section
2511(a)(1) are supported by competent, clear and convincing evidence in
the record.
Regarding section 2511(b), the trial court inquires whether the
termination of parental rights would best serve the developmental, physical
and emotional needs and welfare of the child. See In re C.M.S., 884 A.2d
1284, 1286-87 (Pa. Super. 2005); see also In re T.S.M., 71 A.3d 251, 267
(Pa. 2013). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In re
C.M.S., 884 A.2d at 1287 (citation omitted). The 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.; see also In re
Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (stating that “the court must
take into account whether a bond exists between child and parent, and
whether termination would destroy an existing, necessary and beneficial
relationship.”). In conducting a bonding analysis, the court is not required
to use expert testimony, but may rely on the testimony of social workers
and caseworkers. In re Z.P., 994 A.2d at 1121. Finally, although the focus
in terminating parental rights under section 2511(a) is on the parent, it is on
the child under section 2511(b). In re Adoption of C.L.G., 956 A.2d 999,
1008 (Pa. Super. 2008) (en banc); see also In re Z.P., 994 A.2d at 1125
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(stating 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.”).
Father contends that the trial court erred in determining that
termination served Children’s best interests under section 2511(b). Father’s
Brief at 15-16. Father argues that Children had a relationship with him prior
to his incarceration, and that he attempted to continue that bond through
phone calls and letters. Id. at 15. Father asserts that there was no
evidence presented demonstrating a lack of bond, as the caseworker never
supervised a visit with Father. Id.
Here, the trial court found that the evidence demonstrated, by clear
and convincing evidence, that Children have no bond with Father. See Trial
Court Opinion, 10/16/16, at 13; see also N.T., 7/25/16, at 12-14 (wherein
Walker testified that Children had minimal contact with Father, that Children
do not ask for Father, and that Children would not be harmed by the
termination of Father’s parental rights); id. at 13 (wherein Walker stated
that Children were safe and their needs were being met by the resource
home). The trial court’s determination that Father cannot provide for
Children’s needs and welfare, and that their best interests are served by the
termination of Father’s parental rights, is supported by competent, clear and
convincing evidence in the record. See In re K.K.R.-S., 958 A.2d 529,
535-36 (Pa. Super. 2008) (stating that where no clear bond between the
parent and the subject child was apparent, the county children and youth
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agency was not required to prove the absence of a positive bond); In re
J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003) (stating that parent must put
himself in a position to assume daily parenting responsibilities so that he
could develop a bond with child). We, therefore, conclude that the trial
court did not abuse its discretion in terminating the parental rights of Father
under section 2511(b).3
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
3
Father failed to challenge the goal change in his appellate brief. Thus, he
waived any challenge to the goal change.
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Circulated 01/17/2017 04:16 PM
THE FIRST JUDICIALDISTIUCT OF PENNSYLVANIA, PHILADELPHIA COUNTY
IN THE COURT OF COMMON PLEAS
IN THE INTEREST OF: FAMILY COURT DIVISION
JUVENILE BRANCH
S.J.M-B., a Minor : CP-51-AP-0000603-2016/CP-51-DP-0001671-2014
d/o/b: 12/03/2008
S.M.M-B., a Minor : CP-51-AP-0000604-2016/CP-51-DP-0001670-2014
d/o/b: 10/19/2006
Superior Court No. 2463 EDA 2016;
Appeal of: 2464 EDA 2016
D.M., Father CONSOLIDATED
,.1.,
OPINION
-<
INTRODUCTION
D.M., ("Father"), Appeals from the Decree and Orders entered by this Court on
July 25, 2016, granting the Petition to Involuntarily Terminate Father's Parental Rights to
his two minor male Children: S.J.M-B., ("Child"), born on December 3, 2008, and
S.M.M-B., ("Child"), born on October 19, 2006, and changing the Children's
Permanency Goal to Adoption, filed by the Department of Human Services ("DHS") on
July 7, 2016, and served on all parties.
After a full Hearing on the merits, this Court found that clear and convincing
evidence was presented to terminate the parental rights of both Father and Mother.
Mother did not appeal this Court decision.
1
In response to the Order of July 25, 2016, terminating his parental rights, Father,
by and through his counsel, filed a Notice of Appeal with Statement of Matters
Complained of on Appeal on July 28, 2016.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
In his Statement of Matters Complained of on Appeal, Father raises the following
issues:
a. The Trial Court erred and/or abused its discretion by
entering an order on July 28, 2016 involuntarily
terminating the parental rights of Father, D.O.M. More
specifically, the Trial Court abused its discretion as
substantial, sufficient and credible evidence was presented
at the time of trial which would have substantiated denying
the Petition for Goal Change Termination. The City has
failed to meet its burden for termination by clear and
convincing evidence under 23 Pa.C.S.A. §2511(a)(l), (2),
(5), and (8) because Father presented evidence that he had
substantially met his FSP goals and thereby remedied his
situation. Additionally, Father was not provided reasonable
efforts to reunite with his children.
b. The Trial Court erred and/or abused its discretion by
terminating the parental rights of Father, pursuant to 23
Pa.C.S.A. §251 l(b) where DHS failed to prove by clear
and convincing evidence that involuntary terminating his
parental rights best served the emotional needs and welfare
of his children.
PROCEDURAL HISTORY
On July 12, 2014, the Department of Human Services (DHS) received a Child
Protective Services (CPS) Report alleging that on July 09, 2014, seven-year-old S.M.M-
B. was observed with two black eyes; that he stated the injuries had been caused by his
Mother, T. B.; that she had hit him in the past with extension cords, shoes, and her hands;
2
and that the Child was taken to St. Christopher's Hospital, where his evaluation revealed
significant old injuries to his arms, legs, and shoulder. The report alleged that on July 9,
2014, Mother had telephoned the Children's maternal grandfather, J.B., and asked him to
care for S.M.M-B.; that J.B. had not been in contact with Mother in over one year; and
that Mother later demanded that J.B. return S.M.M-B. to her care. The report also
alleged that S.M.M-B. appeared malnourished; that he stated that Mother withdrew him
from school and he failed the first grade; that he ate food from the garbage because
Mother did not feed him properly; and that he was fearful to return to the care of Mother.
There were allegations of domestic violence between Mother and her paramour, R.J.; that
Mother and her two Children resided in a rooming house with R.J.; that Mother was
unable to provide the basic needs of S.M.M-B. and S.J.M-B.; that Mother used extensive
physical discipline as a form of punishment; that Mother was unable to provide an
explanation for the old injuries that S.M.M-B. had sustained; and that R.J. has a history of
physical and sexual abuse of his Children. The report was determined as valid. (Exhibit
"A" Statement of Facts, attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 7/07/2016, ~"a").
On July 12, 2014, DHS went to St. Christopher's Hospital and met with S.M.M-B.,
who confirmed the allegations of the report. S.J.M-B. was examined at St. Christopher's
and he was found to have old bruising. (Exhibit "A" Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed 7/07/2016, ~"b").
On July 12, 2014, DHS visited the home of Mother and learned that she resided
with R.J. and the Children in one room and that the Children shared an inflated mattress.
Mother admitted that she used physical discipline on the Children. Mother agreed that
3
S.J.M-B. could reside with J.B., Maternal Grandfather, through a family arrangement.
(Exhibit "A" Statement of Facts, attached to DHS Petition for Involuntary Termination of
Parental Rights, filed 7/07/2016, ~"c").
On July 14, 2014, DHS completed clearances and determined that J.B. was not an
appropriate caregiver for the Children. (Exhibit "A" Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed 7/07/2016, ~"d").
On July 14, 2014 DHS obtained an Order of Protective Custody (OPC) for both
Children and placed them in the care of their Maternal Great Grandmother, V.B. (Exhibit
"A" Statement of Facts, attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 7/07/2016, ~"e").
During the 2013-2014 school year, S.M.M-B. had 88 unexcused absences and he
had last attended school in February 2014. (Exhibit "A" Statement of Facts, attached to
DHS Petition for Involuntary Termination of Parental Rights, filed 7/07/2016, ~"f').
S.J.M-B. had been enrolled at Kencrest until Mother removed him from school in
April 2014. The Child attended the school for approximately two weeks after he was
enrolled. (Exhibit "A" Statement of Facts, attached to DHS Petition for Involuntary
Termination of Parental Rights, filed 7/07/2016, ~"g").
A Shelter Care Hearing was held on July 16, 2014, before the Honorable Kevin
M. Dougherty. The Court found that legal custody of both Children would transfer to
Philadelphia Department of Human Services. The Children's placement to remain with
family. (Shelter Care Order, 7/16/2014).
4
D.M. is the Father of both Children. The whereabouts of Father were unknown to
DHS at the time. (Exhibit "A" Statement of Facts, attached to DHS Petition for
Involuntary Termination of Parental Rights, filed 7 /07 /2016, ,J"i").
DHS later learned that Father was incarcerated at State Correctional Institution
(SCI) Laurel Highlands on multiple counts of drug possession related charges. (Exhibit
"A" Statement of Facts, attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 7/07/2016, ,r'j").
An Adjudicatory Hearing was held on July 24, 2014 before the Honorable Allan
L. Tereshko. The Court found legal custody of the Children remains with DHS, and the
Dependent Children are to be placed by DHS in Foster Care. Mother to have supervised
visits at the Agency. Children to be referred to DHS Educational Center. Children and
Mother referred to BHS for consultation and evaluation. DHS to explore family and
friends as possible placement resources. Children may be moved by agreement of DHS
and Child Advocate prior to the next court date. (Order of Adjudication and
Disposition-Child Dependent, 7/24/2014 ).
On August 22, 2014, Community Umbrella Agency (CUA)-Wordsworth held a
Single Case Plan (SCP) Meeting. The goal for the Children was "Stabilize Family." The
parental objectives established for Mother were to: 1) participate in parenting classes at
the Achieving Reunification Center (ARC); 2) participate in anger management classes
through ARC; 3) attend the Behavioral Health System (BHS) for evaluation and follow
all recommendations; 4) attend weekly supervised visits with her Children; 5) interact
with resource parent and CUA-Wordswo1ih to participate in the Children's medical
appointments and school meetings. The parental objectives established for Father were
s
to: 1) ensure that Father is able to participate in services provided to the Children.
Mother participated in the SCP Meeting. Father failed to participate in the SCP Meeting.
(Exhibit "A" Statement of Facts, attached to DHS Petition for Involuntary Termination of
Parental Rights, filed 7/07 /2016, i!"k").
A Permanency Review Hearing was held on October 23, 2014 before the
Honorable Kevin M. Dougherty. The Court found the legal custody of the Children shall
remain with DHS. Placement of the Children remains in Foster Care. Status Quo,
Continuance Granted. (Permanency Review Order, 10/23/2014 ).
A Permanency Review Hearing was held on January 22, 2015 before the
Honorable Allan L. Tereshko. The Court found the legal custody of the Children shall
remain with DHS. Placement of the Children remains in Foster Care. Father is to have
one visit at the prison. Children to attend Dunbar consistently. (Permanency Review
Order, 1/22/2015).
On April 3, 2015, the Community Umbrella Agency (CUA) held a Single Case
Plan (SCP) Meeting. The parental objectives for Father were to: 1) ensure that Father is
able to participate in services provided to the Children. Father did not participate in the
SCP Meeting. (Exhibit "A" Statement of Facts, attached to DHS Petition for Involuntary
Termination of Parental Rights, filed 7/07/2016, ~"n").
On April 16, 2015, a Permanency Review Hearing was held before the Honorable
Margaret Theresa Murphy. The Court ordered legal custody of the Children remains with
DHS. Placement of the Children shall remain in Foster Care. CUA to explore supervised
visits for Father at the Prison with Children's therapist. Therapist to provide written
progress reports. (Permanency Review Order, 4/16/2015).
6
A Permanency Review Hearing was held on July 7, 2015 before the Honorable
Allan L. Tereshko. The Court found the legal custody of the Children shall remain with
DHS. Placement of the Child remains in Foster Care through Methodist. Children doing
well, receives services through Dunbar. Father remains incarcerated. (Permanency
Review Order, 7 /07/2015).
A Permanency Review Hearing was held on October 8, 2015 before the
Honorable Margaret Theresa Murphy. Legal custody of the Children remains with DHS.
The Children remain in Foster Care through Methodist. Children doing well through
services at Dunbar. S.M.M-B. receives STS services in school. ACS to subpoena S.J.M-
B.'s therapist from Dunbar for next court date. (Permanency Review Order, 10/08/2015).
On November 4, 2015, CUA-Wordsworth held a revised SCP Meeting. The goal
for the Children was "Return to Parent". The parental objectives for Father were the
same as the previous SCP. Father did not participate in SCP Meeting. (Exhibit "A"
Statement of Facts, attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 7/07 /2016, 1"r").
A Permanency Review Hearing was held on January 4, 2016, before the
Honorable Allan L. Tereshko. Legal custody of the Children remains with DHS. The
Children remain in Foster Care through Methodist. CUA to make outreach to Father to
explore whether Father will sign for S.J.M-B. 's medication. CUA to follow up to ensure
S.M.M-B. has eyeglasses, and receives STS services in school. Both Children attend
Dunbar for family therapy. (Permanency Review Order, 1/04/2016).
A Permanency Review Hearing was held on March 21, 2016 before the
Honorable Allan L. Tereshko. Legal custody of the Children remains with DHS. The
7
Children remain in Foster Care through Methodist. The Children receive services through
Dunbar, and both attend McKinley Elementary School. The Children have been
approved for STS services through CCTC. CUA to perform PLS on Father.
(Permanency Review Order, 3/21/2016).
On June 1, 2016, CUA-Wordsworth held a revised SCP Meeting. The parental
objectives for both parents were the same as the previous SCP. Father failed to
participate in the SCP Meeting. (Exhibit "A" Statement of Facts, attached to DBS
Petition for Involuntary Termination of Parental Rights, filed 7/07/2016, 1"v").
TERMINATION HEARING
On July 25, 2016, this Court held a Goal Change/Termination Hearing and heard
testimony on DHS's Petition to Terminate Father's Paternal Rights as to his Children,
and Change the Permanency Goal to Adoption. Father was present and represented by
his attorney. (N.T. 7/25/2016, p.6 at 7-8).
The Assistant City Solicitor, Caitlyn Dunston's first witness was Kimberly
Walker, CUA Case Worker, Wordsworth, who was assigned this case in July 2014.
She testified the Children were removed from Mother's care because of abuse and
neglect. At that time, Father was incarcerated and to the present continues to be
incarcerated. (N.T. 7/25/2016, p.8 at 17-25; p.1-17).
Ms. Walker testified her agency made a Single Case Plan (SCP) for Father after
the Children were adjudicated in July 2014. Father's objectives were: 1) to make
telephone and written contact with the Children, and 2) have supervised visits at the
8
prison. She testified she sent Father a letter and he wrote back to acknowledge receipt of
the letter. (N.T. 7/25/2016, p.9 at 21-25; p.10 at 1-18).
Ms. Walker testified Father contacted the Children in May 2016 through letters
and telephone calls. Although the Court ordered Father to have supervised visits in
prison, letters and telephone calls were recommended by the Children's therapist. The
therapist has not recommended any other type of communication. At this point, she
testified Father is not in a position to reunify with his Children. (N.T. 7/25/2016, p.11 at
7-25; p.12 at 1-5, 13-15).
Ms. Walker opined the Children would not suffer irreparable harm if the Father's
parental rights were terminated because they have only minimal contact with him and are
not bonded. The Children are currently placed at Methodist and she saw them July 15,
2016 and they are safe with their needs being met. (N.T. 7/25/2016, p.13 at 1-15).
On cross examination by Lisa Visco, attorney for Father, Ms. Walker testified the
Court ordered one visit for the Children at the prison, however that was modified to mail
and telephone contact in January 2015. The communication by Father with his Children
did not take place until May 2016. (N.T. 7/25/2016, p.15 at 1-25).
Father, D.M., was next to testify. He stated he was arrested April 16, 2013, and
the Children lived with their Mother at that time, although he provided support for them.
He testified he is incarcerated for a drug charge, possession with intent to deliver, and his
earliest release date is July 25, 2019. He noted he requested visits with his Children in
late 2014 or early 2015, and later had contact with them by letters and telephone. (N.T.
7/25/2016, p.18 at 5-25; p.19 at 1-25; p.20 at 1-8).
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Father further testified he completed therapeutic community and violence
prevention programs while incarcerated. He noted he does not want his parental rights
terminated and would like his Mother, R.M. to care for his Children. (N.T. 7/25/2016, p.
21 at 19-25; p.22 at 1-7).
On cross-examination by Kathleen Kinese, the Child Advocate, Father admitted
he did not write letters to his Children but preferred telephone calls, and made over 50
calls to his Children. Further on cross-examination, when told the current foster parent
indicated Father had not called his Children until May 2016, he admitted that was correct.
(N.T. 7/25/2016, p.25 at 2-15).
STANDARD OF REVIEW AND LEGAL ANALYSIS
In reviewing an appeal from an order terminating parental rights, the Superior
Court adheres 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. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) If
the factual findings are supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., [36 A.3d 567, 572 (Pa. 2011).
Termination of parental rights is governed by Section 2511 of the Adoption Act
23 Pa.C.S.A. §§ 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
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termination delineated in Section 251 l(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)
(citations omitted). In re Adoption ofC.J.P., 2015 PA Super 80, 114 AJd 1046, 1049-50
(2015). The Court need only agree with the orphans' court as to any one subsection of
Section 2511(a), as well as Section 2511 (b), in order to affirm. In re Adoption of C.J.P .,
2015 PA Super 80, 114 A.3d 1046, 1050 (2015).
A. The Trial Court Properly Found the Department of Human Services Met
Its Burden bv Clear and Convincing Evidence To Terminate Father's
Parental Rights Pursuant to 23 Pa.C.S.A. §25ll(a)(1), and (2),1
1 l(a) General Rule.-the rights ofa 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 ofat least six months immediately preceding
the filing of the petition either has evidenced a settled purpose ofrelinquishing parenting
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 parents by the court or under a voluntary
agreement with an agency for a period ofat 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 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 voluntary
agreement with an agency, 12 months or more have elapsed from the date ofremoval or
placement, the conditions which led to the removal or placement of the child continue to exist and
termination of the parental rights would best serve the needs and welfare of the child.
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This Court found clear and convincing evidence to terminate Father's parental
rights pursuant to 23 Pa.C.S.A. §251 l(a)(l), and (2).
After hearing the credible testimony of the CUA Case Manager, the Court found
by clear and convincing evidence that her observations and conclusions regarding
Father's non-compliance with the FSP objectives, and lack of contact with his Children,
until two months before the hearing, was indicative of his lack of a parental bond.
The Court found Father's testimony regarding his contact with his Children
incredible and Father, himself, admitted he did not write letters and instead resorted to
telephone calls only beginning in May 2016.
B. Trial Court Properly Found that Termination of Father's Parental
Rights was in the Children's Best Interest and that DHS Met Its Burden
Pursuant to 23 Pa.C.S.A. §2511(b).2
After the Court finds that the statutory grounds for termination have been
satisfied, it must then determine whether the termination of parental rights serves the best
interests of the children pursuant to 251 l(b) In re Adoption of C.L.G., 956 A2d 999
(Pa.Super 2008). In terminating the rights of a parent, the Court 'shall give primary
consideration to the development, physical and emotional needs and welfare of the
child." 23 Pa.C.S.A. §2511(b). One major aspect of the needs and welfare analysis
2 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)(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.
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concerns the nature and status of the emotional bond between parent and child. In re
T.S.M., 71 A3d.
The testimony provided this Court with clear and convincing evidence that
Father was not bonded to his Children, and termination of his parental rights would be in
the best interest of the Children.
CONCLUSION
As discussed above, the Trial Court found that Father's testimony was not
credible regarding his communication with his Children. On the contrary, credible
testimony was presented by the Case Manager that Father failed to complete
requirements. The Court was not persuaded that Father could or would resolve these
issues in the near future.
This Court finds credible the testimony from the Agency worker that the Children
would not suffer irreparable harm if Father's rights were terminated and termination of his
parental rights would be in the best interest of the Children.
The Court concluded:
Regarding Father, notwithstanding the eleventh hour
attempt to create some relationship with these Children, he
basically ignored their existence until May of 2016,
evidence is clear that there is no parental bond. He has
made no effort to create a parental bond. They were not in
his care when they were taken into custody.
Therefore, 251 l(a)(l) and (2) are satisfied and 251 l(b) is
satisfied because there would be no irreparable harm in
severing a relationship which does not in fact exist.
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Father's rights are terminated. Having terminated both
parents' rights the goal is now moved to adoption on both
Children.
(N.T. 7/25/2016, p.58 at 6-20).
For the foregoing reasons, this Court respectfully requests that the Order of July
25, 2016 Terminating Father, D.M. 's Parental Rights and changing the Children's
Permanency Goal to Adoption be AFFIRMED.
BY THE COURT:
ALLAN L. TERESHKO, Sr. J.
~ \1> "LO\l,
DATE
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