In the Int. of: D.T.J.F., Appeal of: PDHS

J-A04042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.T.J.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: PHILADELPHIA :
DEPARTMENT OF HUMAN SERVICES :
:
:
:
: No. 1770 EDA 2021
Appeal from the Order Entered August 4, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000157-2016
IN THE INTEREST OF: D.T.J.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: PHILADELPHIA :
DEPARTMENT OF HUMAN SERVICES :
:
:
: No. 1771 EDA 2021
Appeal from the Decree Entered August 4, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000710-2019
IN THE INTEREST OF: D.D.J.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: PHILADELPHIA :
DEPARTMENT OF HUMAN SERVICES :
:
:
: No. 1772 EDA 2021
Appeal from the Order Entered August 4, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000159-2016
IN THE INTEREST OF: D.D.J.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
J-A04042-22
:
:
APPEAL OF: PHILADELPHIA :
DEPARTMENT OF HUMAN SERVICES :
:
:
: No. 1773 EDA 2021
Appeal from the Decree Entered August 4, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000711-2019
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
CONCURRING/DISSENTING MEMORANDUM BY LAZARUS, J.:
FILED JULY 8, 2022
Mindful of our deferential standard of review in termination matters, I
concur with the Majority’s decision to affirm the trial court’s order with respect
to Mother. The trial court was in the best position to determine issues of
credibility, and its findings are supported by the record. However, because
the record reflects that Father has made no effort to engage in his permanency
goals throughout the life of this case, I note my dissent as to the court’s order
denying termination of Father’s parental rights.
I agree with the Agency and the Guardian ad litem that Father’s rights
should have been terminated pursuant to sections 2511(a)(1) and (2). Father
has been consistently non-compliant with his permanency goals, see N.T.
Termination Hearing, 8/4/21, at 32; failed to attend visitation (including
virtual visitation scheduled by the Agency), see id. at 52-53; and repeatedly
failed to respond to outreach by the Agency to schedule drug screens and
parenting classes as ordered by the court. See id. at 50-52. Moreover,
-2-
J-A04042-22
despite being served with notice of the termination hearing, Father failed to
appear in court, as he has throughout the life of this case.
In support of its decision not to terminate Father’s parental rights, the
court stated the following:
The record shows that prior to the COVID-19 [p]andemic, Father
had been consistently visiting with [Children] throughout the life
of the case and that [Children] were bonded with both parents.
(DHS Petition[,] 04/14/2021, Exhibit A ¶[¶] ooo, qqq). The record
also revealed that many of Father’s visits have been disrupted due
to interference from [parental grandmother]. N.T. [Termination
Hearing,] 08/04/2021[,] at 44-47). Additionally, the testimony
presented at the August 4, 2021 hearing revealed that Father was
recently interested in engaging meaningfully with his permanency
plan objectives, but had perhaps not received the necessary
support from the CUA [c]ase [m]anager[,] who testified that she
has not attempted any outreach to Father since before the prior
court date. (Id. at 33, 53). Finally, this [c]ourt recognizes that
the COVID-19 [p]andemic has presented incredible challenges to
many of the families already struggling to reunify. Given Father’s
stated desire to engage more meaningfully, this [c]ourt believes
that[,] with additional time and services, Father may be able to
get back on track with his permanency plan objectives and avoid
losing his parental rights altogether.
Trial Court Opinion, 9/30/21, at 16-17.
The factual findings relied upon by the trial court are either insufficient
as a matter of law or unsupported by the record. First, while Father did, earlier
in the life of the case, engage in visitation with Children, caseworker Cody
testified at the termination hearing that, as of some point in 2020, Father told
her “[h]e wanted to start his visits and he wanted to participate in parenting
through the ARC.” N.T. Termination Hearing, 8/4/21, at 33 (emphasis added).
However, despite the fact that Children were residing with his own mother,
-3-
J-A04042-22
Father failed to follow through with visitation and, to Cody’s knowledge, has
not had any contact with Children. See id.
Second, while the trial court asserted that “many of Father’s visits have
been disrupted due to interference from [paternal grandmother],” Trial Court
Opinion, 9/30/21, at 17, citing N.T. Termination Hearing, 8/4/21, at 44-47, a
review of the portion of the transcript cited by the trial court in support of this
finding reveals that it was actually Mother’s visits, not Father’s, that were
subject to interference by paternal grandmother.1 See N.T. Termination
Hearing, 8/4/21, at 44-47 (discussing grandmother’s interference with
Mother’s visits). As such, the court’s finding of fact lacks support in the record.
Third, the fact that Father, at some point in the year prior to the
termination hearing, expressed an “interest” in resuming his visitation with
____________________________________________
1 The following exchange occurred between Maureen F. Pie, Esquire, counsel
for Mother, and the Agency’s case worker:
MS. PIE: Okay. In the history of the case for these two children,
grandmother has been admonished by the Court not to interfere
with mom’s visits; isn’t that correct?
MS. CODY: Yes.
MS. PIE: Okay. And, even after that, she didn’t fully cooperate;
isn’t that correct?
MS. CODY: Yes.
N.T. Termination Hearing, at 47.
-4-
J-A04042-22
Children is insufficient, as a matter of law, to demonstrate an intent to
undertake a parental role.
To be legally significant, . . . [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a serious
intent on the part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
to undertake the parental role. The parent wishing to
reestablish his parental responsibilities bears the burden
of proof on this question.
In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (emphasis added). Here,
Father, has failed to demonstrate either his intent or his ability to parent
Children.
Finally, the court placed a substantial portion of the blame for Father’s
failure to engage on the hardships engendered by the COVID-19 pandemic.
While I certainly agree that COVID-19 has caused logistical and other
difficulties for parents seeking to reunite with their children, the record
demonstrates that Father has made minimal to no effort throughout the life
of this matter. He failed to achieve any of his permanency goals and was
consistently absent from both Agency meetings and permanency review
hearings. Indeed, of the twelve permanency review hearings held during the
life of this case, Father attended only two. See Petition for Involuntary
Termination, 4/14/21, at Exhibit A. As this Court has previously stated:
The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents
must provide for their children, and a parent who cannot or will
not meet the requirements within a reasonable time following
-5-
J-A04042-22
intervention by the state may properly be considered unfit and
have his parental rights terminated. . . .
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship to the
best of his [] ability, even in difficult circumstances. 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 [the child’s] physical and emotional
needs.
In re Z.P., 994 A.2d 1108, 1118–19 (Pa. Super. 2010) (internal citation and
quotation marks omitted; emphasis added).
Here, Father has utterly failed take any affirmative action, or to exercise
any firmness in the face of obstacles, necessary to preserve his parental
rights. It is abundantly clear from the record in this matter that: (1) for a
period of six months immediately preceding the filing of the petition, Father
has refused or failed to perform parental duties and (2) Father’s continued
incapacity, neglect, or refusal has caused Children to be without essential
parental care, control, or subsistence necessary for their physical or mental
well-being and Father has demonstrated that he either cannot or will not
remedy the conditions and causes of the incapacity, neglect, or refusal. See
23 Pa.C.S.A. §§ 2511(a)(1) & (2). Accordingly, I would reverse the order of
the trial court as it pertains to Father and remand for the entry of an order
terminating Father’s parental rights.
-6-