In the Int. of: J.L., Appeal of: A.W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.L., A MINOR IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: A.W., FATHER
No. 1254 EDA 2022
Appeal from the Decree Entered April 4, 2022
In the Court of Common Pleas of Monroe County
Orphans' Court at No.: 2021-00057
BEFORE: STABILE, J., MCCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 7, 2022
Appellant A.W. (“Father”) appeals from the decree entered on April 4,
2022 in the Court of Common Pleas of Monroe County (“orphans’ court”),
which terminated involuntarily his parental rights to his son, J.L. (“Child”),
born in September 2011. Upon review, we affirm.
Unless otherwise stated, the facts and procedural history are taken from
the orphans’ court’s detailed Pa.R.A.P. 1925(a) opinion. See Orphans’ Court’s
Opinion, 6/13/22, at 1-13. Briefly, while in prison, D.B. (“Mother”) gave birth
to Child, who then was placed with an Amish Family in Mercer County through
a private arrangement. Upon parole, Mother gained custody of Child. When
Mother violated parole and returned to prison, Child lived with his maternal
grandmother in Monroe County until maternal grandmother sent Child back to
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* Retired Senior Judge assigned to the Superior Court.
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reside with the Amish family. When Mother was re-paroled, the Amish family
refused to return Child to Mother. Instead, the Amish family sought custody
and petitioned to involuntarily terminate Mother’s parental rights.1 This Court
eventually affirmed the Mercer County trial court’s ruling that the Amish family
lacked standing. This period of Child’s life when he was in the care of the
Amish family was extremely traumatic.
In January 2018, around the time custody of Child was returned to
Mother from the Amish family, CYS received a referral that Mother had given
birth to a younger half-sibling who tested positive for drugs. At the time, the
family was residing in Northampton County, where the referral was handled.
In September 2018, after the family moved to Monroe County, CYS
received a referral regarding drug use by Mother and her husband (step-
father). At that time, Child and other family members were residing with
maternal grandmother. On October 31, 2018, Child was adjudicated
dependent and since then, has remained in the care of CYS.
After being adjudicated dependent, Child, for a period of thirteen
months, was placed with his maternal grandmother whom CYS identified as a
kinship resource. Maternal grandmother eventually asked CYS that Child be
removed from her care because she could not handle his behaviors.
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1 During the pendency of the Mercer County proceedings, the family remained
on Monroe County Children and Youth Services’ (“CYS”) radar. In December
2014, CYS received a referral that Mother had given birth to another child,
L.R., who had been born dependent on drugs. Consequently, Mother’s
parental rights to L.R. were terminated and this Court affirmed the termination
decree.
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In October 2019, Child was moved to his current pre-adoptive home.
On January 29, 2020, the permanency goal in the dependency proceedings
was changed to termination and adoption.
For the majority of Child’s life, Father was unaware of Child’s existence.
According to Father, he did not know he was Child’s parent until sometime in
February 2018 when his girlfriend sent him a photograph of Child from which
he “knew” he was Child’s father. Officially, Father’s paternity was established
in March 2019 following his receipt of DNA test results. Nonetheless, Father’s
lack of knowledge was, at least in large part, due to the fact that, while others
were raising Child, Father has either been in jail in Florida or hiding from the
law in the Dominican Republic.
In fact, prior to Child’s birth, on March 2, 2009, and again on November
17, 2009, Father was arrested in Florida on drug charges to which he later
pleaded guilty. Father was released on bail. On April 21, 2011, Father
“jumped bail” and fled to the Dominican Republic where he hid for almost five
and one-half years. While in hiding, Father maintained a relationship with his
girlfriend who is the mother of one of Child’s half-siblings, a sibling Child has
never met. On September 21, 2016, Father turned himself in and ultimately
pleaded guilty to drug possession and trafficking charges. On February 17,
2022, Father was sentenced to a lengthy term of incarceration. Specifically,
his maximum sentence expires in 2053, but his current anticipated release
date is August 10, 2039, when Child will be almost twenty-eight years old.
Father has been in prison since he turned himself in.
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On November 8, 2021, CYS filed the instant petition to terminate
involuntarily Father’s parental rights to Child under 23 Pa.C.S.A. § 2511(a)(1),
(2), (5) and (8).2 Child was provided a guardian ad litem. The orphans’ court
conducted a hearing, at which Father testified that, since his paternity was
established, he sent Child cards, letters and drawings and his mother (paternal
grandmother) provided additional contacts and possibly some gifts. Further,
Father testified that he spoke with CYS caseworkers on a few occasions, and
requested information about phone contact with Child. According to Father,
he earned a GED and completed drug prevention and life skills classes while
in prison.
Following the hearing, the orphans’ court granted CYS’s petition to
terminate involuntarily Father’s parental rights under Section 2511(a)(1), (2),
(5) and (8). In so doing, the court specifically found as incredible Father’s
testimony.
Through his broad-scope testimony, Father attempted to
paint the picture that he has made meaningful attempts to
establish and maintain a relationship with [Child] from jail.
However, the impression Father tried to leave is not supported by
the facts.
Among other things, the classes taken by Father were
completed prior to the date Father claims he discovered [Child]
was his son. Additionally, Father has not provided [CYS] with
written confirmation that he in fact finished the classes.
Father testified that when [Child] was in the care of
maternal grandparents he spoke with [Child] daily by phone. This
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2CYS also petitioned to terminate involuntarily Mother’s parental rights to
Child, but Mother voluntarily relinquished them. N.T., Hearing, 4/4/22, at 36.
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claim is not supported by any other evidence. At best, Father
grossly exaggerated the frequency, duration, and substance of
any contact or communication Father may have had with maternal
grandparents or [Child] while [Child] was in their care. In this
regard, while Father would have the [c]ourt believe that he was
able to speak daily with [Child] from jail during 2018 or 2019, he
has for unexplained reasons since then been unable to find a way
to speak or visit with [Child] by phone, [alternative
communication technology (ACT)], or other means despite the
fact that CYS asked Father to provide them information as to how
such contact or visits could be set up. Along similar lines, [Child’s]
caseworker sent to Father’s prison counselors ACT links for review
hearings so that Father could participate remotely. Father did not
take advantage of the opportunities and did not participate in
review hearings.
The bottom line is that while others cared for and raised
[Child], Father has for [Child’s] entire life either been in jail or
running from the law. He has never met [Child] in person, or even
by video. He has simply not been a part of [Child’s] life. Father’s
testimony about efforts to have contact with [Child] is nothing
more than an attempt to stave off termination of parental rights
by claiming to have checked off some boxes. Tellingly, although
the cards and gifts from Father were given to him, [Child] did not
respond and has indicated that he does not at this time want to
have contact with Father. Simply, there is no relationship,
parental or otherwise, between Father and [Child]. In fact, the
possibility of visits caused [Child] stress.
Orphans’ Court Opinion, 6/13/22, at 11-12. Father timely appealed. Both
Father and the orphans’ court complied with Rule 1925.
On appeal, Father argues only that the orphans’ court erred in granting
CYS’s petition to terminate involuntarily his parental rights to Child under 23
Pa.C.S.A. § 2511(a)(1), (2), (5) and (8). Father’s Brief at 4 (unnecessary
capitalizations omitted).3
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3 Child’s guardian ad litem did not file a separate brief in this appeal.
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We review Father’s claims in accordance with the following standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the [orphans’] court if they are
supported by the record. If the factual findings are supported,
appellate courts review to determine if the [orphans’] 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 [orphans’] court’s decision, however, should not be reversed
merely because the record would support a different result. We
have previously emphasized our deference to [orphans’] 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).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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. 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).
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In this case, the orphans’ court terminated Father’s parental rights to
Child pursuant to subsection 2511(a)(1), (2), (5), (8), and (b).4 We need only
agree with the court as to any one subsection of 2511(a), as well as subsection
2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the
court’s decision only pursuant to Section 2511(a)(2), which provides as
follows.5
(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
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4 Section 2511(a)(5) and (8) require that “[t]he child has been removed from
the care of the parent.” 23 Pa.C.S.A. § 2511(a)(5), (8). An en banc panel of
this Court has held that termination under these two subsections is
inappropriate where the record shows that the child was never in the parent’s
care, and therefore could not have been “removed” from their care. Interest
of C.S., 761 A.2d 1197, 1200 n.5 (Pa. Super. 2000) (en banc). Here, it is
undisputed that Child was never in Father’s care, as Father was either in hiding
in the Dominican Republic or incarcerated since Child’s birth.
5 By failing to state an issue or developing a challenge related to the orphans’
court’s determinations under Section 2511(b), Father has waived any Section
2511(b) claims. See In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa. Super. 2017)
(“[T]his Court will not review a claim unless it is developed in the argument
section of an appellant’s brief, and supported by citations to relevant
authority.”). Even if Father had preserved a challenge to Section 2511(b), we
still would conclude that it is without merit. The orphans’ court found that
other than a biological connection, “there is no bond between [Child] and
Father.” Orphans’ Court Opinion, 6/13/22, at 30. On the contrary, Child “is
doing extremely well in his pre-adoptive foster home and has an amazingly
healthy and strong bond with his foster family who have provided him with
the love, support, nurturing, and care that Father has been unable to give.”
Id. at 29.
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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.
23 Pa.C.S.A. § 2511(a)(2).
We begin by assessing whether the orphans’ court committed an abuse
of discretion by terminating Father’s rights to Child pursuant to Section
2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.[]
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination 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) (citations
omitted).6 As we recently explained in In re Adoption of K.M.G., 219 A.3d
662 (Pa. Super. 2019) (en banc):
The grounds for termination under Section 2511(a)(2) are
not limited to a parent’s affirmative misconduct, but rather a
parental incapacity that a parent cannot remedy. Parents have
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6 Although not relevant to the disposition of this appeal, the Supreme Court
recently overruled on other grounds A.L.D. in In re S.K.L.R., 256 A.3d 1108,
1124 (Pa. 2021).
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an “affirmative duty” to work towards the return of their children.
This “affirmative duty,” at a minimum, requires a parent to
cooperate with the Child and Youth Agencies and complete the
rehabilitative services necessary so that the parent can perform
his parental duties and responsibilities.
Additionally, the statute does not provide a parent with
an unlimited period [of] time to overcome the incapacity
that led to the adjudication of the child; rather, a parent
must make a diligent effort towards overcoming the
incapacity so that the parent can assume his parental
duties within a reasonable period of time after the
adjudication of dependency.
This Court has explained, Section 2511(a)(2) does not focus
on a parent’s refusal or failure to perform parental duties, but
instead emphasizes the child’s present and future need for
essential parental care, control or subsistence necessary for his
physical or mental well-being. Therefore, when addressing the
requirements of Subsection (a)(2), the orphans’ court should not
ignore a child’s need for a stable home and strong, continuous
parental ties. This factor is particularly important when the
disruption of the family has already occurred and there is no
reasonable prospect for reuniting it.
K.M.G., 219 A.3d at 672-73 (quotation marks, citations and brackets omitted)
(emphasis added).
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme Court
addressed the relevance of incarceration in termination decisions under
Section 2511(a)(2). The Court held that “incarceration is a factor, and indeed
can be a determinative factor, in a court’s conclusion that grounds for
termination exist under § 2511(a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the child to be without
essential parental care, control or subsistence and that the causes of the
incapacity cannot or will not be remedied.” Id. at 828.
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Here, the certified record reveals a repeated and continued parental
incapacity based upon Father’s enduring criminal conduct and incarceration
since prior to the time of Child’s birth. That incapacity has caused Child to be
without essential parental care. As the orphans’ court found, and detailed
above, Father first became aware of Child’s existence in February 2018 and
Father’s paternity was established conclusively in March 2019. Prior to Child’s
birth, Father fled to the Dominican Republic where he was hiding from the
authorities after jumping bail. In 2016, when Child was five years old, Father
turned himself in and since then has remained in prison. His maximum
sentence expires in 2053, but his current anticipated release date is August
10, 2039, when Child will be almost twenty-eight years old. Although he sent
letters and cards to Child and communicated with him in 2018 and/or 2019,
Father has not had any contact with Child since then. As the orphans’ court
explained:
Father has had only minimal contacts with [Child] consisting of a
handful of phone calls and some cards and letters. However,
Father has done nothing else to promote the mental, physical,
spiritual or emotional well-being of [Child]. Rather, since [Child]
was born, persons other than Father have provided nurturing and
care for [Child] and have ensured that [Child’s] physical, mental,
emotional, medical, developmental, and daily needs have been
met.
Orphans’ Court Opinion, 6/13/22, at 28. While Father claims he completed
certain classes, he never furnished proof of completion to CYS. Additionally,
despite being informed, Father failed to participate in any permanency review
hearings. Thus, as stated, the record demonstrates that Father’s repeated
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and continued incapacity due to his incarceration has caused Child, for the
entirety of his life, to be without essential parental care, control, or
subsistence necessary for his physical or mental well-being. Because of his
lengthy prison sentence, Father’s incapacity cannot or will not be remedied.
Thus, we discern no abuse of discretion by the orphans’ court terminating
Father’s parental rights pursuant to Section 2511(a)(2). Accordingly, in light
of the evidence adduced at the termination hearing, the orphans’ court did not
abuse its discretion in granting CYS’s termination petition under subsection
2511(a)(2). We, therefore, affirm the orphans’ court’s April 4, 2022 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2022
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