In Re: Adopt of: I.N. Appeal of: B.N., Father

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF I.N., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.N., FATHER,
Appellant No. 1454 MDA 2014
Appeal from the Order Entered July 31, 2014
In the Court of Common Pleas of Northumberland County
Orphans' Court at No(s): 15 of 2014
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 27, 2015
B.N. (“Father”) appeals from the orphans’ court order terminating his
parental rights to his minor child, I.N. We affirm.
I.N. was born during February 2004, of Father’s marriage to V.N.
(“Mother”).1 Prior to the pertinent events that occurred in Northumberland
County, Father was charged criminally in Union County with sexually
assaulting two of I.N.’s three half-sisters. However, those charges were
withdrawn after the children recanted the allegations and Father temporarily
moved from the family residence. Northumberland County Children and
Youth Services first became involved with this family during 2011 based
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*
Retired Senior Judge assigned to the Superior Court.
1
Mother relinquished her parental rights to I.N.
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upon additional allegations that Father sexually assaulted one of the children
involved in the earlier case.2 Although those allegations were also
withdrawn and marked unfounded, CYS temporarily removed I.N. and his
three half-sisters from the family residence.
Two years later, during May of 2013, the same child, then sixteen
years old, asserted new allegations of abuse against Father. While Father
continued to deny the allegations, he was charged with statutory sexual
assault and related offenses.3 He was arrested the following October and
remains incarcerated in the Northumberland County Prison pending his trial.
Following CYS’s investigation, the child protective service (“CPS”) report was
marked “indicated,” meaning that substantial evidence existed to satisfy the
definition of sexual abuse under the Child Protective Services Law and that
Father was the indicated perpetrator of abuse.
Meanwhile, in November 2012, prior to Father’s incarceration, the
family had executed a child safety plan that, inter alia, again precluded
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2
During July 2011, there was an intervening allegation that Mother, Father,
and Mother’s adult son engaged in drug use in the family home. The
ensuing drug screen revealed that all three adults tested positively for
cocaine and marijuana.
3
The orphans’ court’s review of the criminal docket revealed the following
charges: statutory sexual assault, aggravated indecent assault, corruption of
minors, and indecent assault of a person less than sixteen. The offenses
include two second-degree felonies, a third-degree felony, and a second-
degree misdemeanor.
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Father from residing in the family home and determined that Mother was
unsuitable to supervise Father’s contact with I.N. and his half-sisters.
The current chapter of CYS’s involvement stemmed from a January 15,
2013 general protective services referral that was issued after Father
violated the safety plan by having unsupervised contact with the children in
the family home. I.N. was removed from the home pursuant to a voluntary
entrustment agreement, and the juvenile court adjudicated him dependent
on February 13, 2013. I.N. was initially placed with his current foster
parents, T.T. (“Foster Father”) and C.T. (“Foster Mother”) (collectively
“Foster Parents”), but due to Foster Mother’s illness, the child was moved
temporarily, before returning to Foster Parents’ care during July 2014.
Foster Parents are potential permanent placement resources.4
The initial permanency goal was reunification. The juvenile court
ordered Father to utilize several services, including sex offender counseling,
couples counseling and individual therapy. He was also ordered to submit to
random drug screens and maintain visitation with his son.
Father’s compliance with the court ordered goals and services was
minimal. While he completed couples counseling with Mother and enrolled in
sex offender counseling, he failed to comply with the individual counseling
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4
As I.N. has indicated that he disfavors adoption, and since he is
approaching an age where his consent to adoption is required, CYS
developed a concurrent goal of permanent legal custodianship rather than
adoption. N.T., 7/31/14, at 48-49.
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requirement. Moreover, citing financial limitations and a lack of
transportation, Father stopped attending sex offender counseling. However,
he subsequently revealed that he disliked being required to interact with
other sex offenders during group therapy.
As it relates to the requirement for random drug tests, CYS attempted
three drug screens. Father submitted one positive sample, one negative
sample, and immediately before his October 2013 arrest, he simply refused
to participate. During the evidentiary hearing, Father proclaimed that he
would have passed the final screen but, since Mother had just submitted a
positive sample, he declined the test in order to avoid embarrassing her.
Prior to his October 2013 incarceration, Father exercised supervised
visitation for one hour on alternating Tuesdays. The visitations occurred at a
local park or in a nearby fast food restaurant. Father attended
approximately one-half of the thirty-six supervised visitations scheduled
prior to his arrest. Following his arrest, Father did not resume visitations
with I.N. until March 2014, roughly five months later. Those bi-weekly
contacts at the Northumberland County Prison were limited to one-half hour.
On April 10, 2014, approximately one month after Father restarted the
visitations, CYS filed a petition to terminate Father’s parental rights to I.N.,
pursuant to § 2511(a)(1), (2), (5), and (8) and § 2511(b) of the Adoption
Act. Following an evidentiary hearing, the orphans’ court granted CYS’s
petition and terminated Father’s parental rights. This timely appeal
followed. Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise
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statement of errors complained of on appeal concomitant with his notice of
appeal. The Rule 1925 statement raised eight issues and sub-issues, which
Father reiterates on appeal as follows:
1. Whether the trial judge erred when involuntarily terminating
the parental rights of the Appellant, because the requirements of
23 Pa.C.S.A. [§] 2511 were not met, in that:
1.a. the Appellant/Natural Father did not conduct himself
with a settled purpose to relinquish parental claim;
1.b. [t]he minor child was not incapacitated, abused,
neglected, nor did the Appellant/Natural Father cause the
child to be without essential parental care, control or
subsidence necessary for the child's well-being;
1.c. the Appellant/Natural Father was attempting to
remedy the conditions which led to placement;
1.d. termination of parental rights does not serve the
best needs and welfare of the child; and
1.e. the Appellant/Natural Father had a bond with the
minor child, it was beneficial to the child, and severing
that bond will cause irreparable harm?
2. Whether the trial judge erred in terminating the parental
rights of the Appellant, because the county agency did not make
reasonable efforts to make it possible for the minor child to visit
with the appellant, and accordingly, the agency did not foster
the development of a bond between father and child?
3. Whether the trial judge erred in terminating the parental
rights of the Appellant, because the appellant has certain
parental rights while incarcerated, and termination of parental
rights during the period of time during incarceration would be
improper. [T]he Appellant/Natural Father did not conduct
himself with a settled purpose to relinquish parental claim,
rather he had remedied the conditions which led to placement of
the minor child with the agency, in that, he had suitable housing,
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maintained employment and was visiting the minor child in order
to maintain a bond with his minor child?
Father’s brief at 5-6.
Although Father’s statement of questions outline several cogent
arguments, the argument section of his brief levels one rambling complaint,
i.e., that the orphans’ court erred in terminating parental rights when he
devoted reasonable efforts to overcome the obstacles that prevented him
from exercising his parental rights. Highlighting the components of the
court-ordered directives and family safety plan that he completed, Father
asserts that he utilized all of the resources available to him. Father blames
his economic struggles and incarceration for his inability to satisfy the
remaining requirements. Additionally, he frames his interaction with CYS as
adversarial and complains that the agency regularly attempted to undermine
his efforts.
Specifically, Father contends that the agency “paint[ed] him as an
abuser” and exploited the allegations of his sexual abuse of I.N.’s half-sister
to “thwart the maintenance of a bond” he shared with I.N. See Father’s
brief at 10. The crux of this position is that, since I.N. was not a victim of
the alleged sexual abuse, CYS should not have relied upon those allegations
as grounds to restrict Father’s visitation with I.N. or require Father to
complete sex offender counseling. In sum, Father opines that, in light of his
accomplishments, justifications for failing to complete all aspects of the
court-ordered requirements, and CYS’s interference, the record will not
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sustain the orphans’ court’s decision to terminate his parental rights. We
address the foregoing arguments collectively, and for the following reasons,
we conclude that Father’s claims fail.
This Court reviews the determination of the orphans’ court for an
abuse of discretion. In re D.C.D. 105 A.3d 662, 670-671 (Pa. 2014)
(“When reviewing a trial court's decision to grant or deny a termination of
parental rights petition, an appellate court should apply an abuse of
discretion standard, accepting the findings of fact and credibility
determinations if they are supported by the record, and reversing only if the
trial court made an error of law or abused its discretion.”). This is a highly
deferential standard and, to the extent that the record supports the court’s
decision, we must affirm even though evidence exists that would also
support a contrary determination. In re A.S., 11 A.3d 473, 477 (Pa.Super.
2010). CYS has the burden of proving the statutory grounds for termination
by clear and convincing evidence. In re Adoption of L.J.B., 18 A.3d 1098
(Pa. 2011).
Requests to terminate the parental rights of a biological parent are
governed by 23 Pa.C.S. § 2511(a) and (b). The statute provides in pertinent
part,
(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
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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 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.
....
(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
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described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S. § 2511.
The test for terminating parental rights consists of two parts. In In re
L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:
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.
We need only agree with the orphans’ court’s decision as to one subsection
of 23 Pa.C.S. § 2511(a) and the subsection (b) analysis in order to affirm
the termination of parental rights. In re B.L.W., 843 A.2d 380, 384
(Pa.Super. 2004) (en banc). Herein, the certified record supports the
orphans’ court’s determination that CYS established the statutory grounds to
terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(8) and
(b). Hence, we do not address the remaining statutory grounds.5
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5
The orphans’ court terminated Father’s parental rights pursuant to §
2511(a)(1),(2), (5), and (8); however, the only statutory ground for
termination that Father actually challenges in his brief relates to subsection
(a)(5). We observe that the elements that CYS had to establish under
(Footnote Continued Next Page)
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We have explained our review of the evidence pursuant to
§ 2511(a)(8), as follows:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), the following factors must be demonstrated: (1)
The child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
In Re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa.Super. 2003).
Thus, in order to satisfy the requirements of § 2511(a)(8) in the case at bar,
CYS was required to produce clear and convincing evidence that: (1) I.N.
has been removed from Father for at least twelve months; (2) the conditions
which led to the child’s removal continue to exist; and (3) involuntary
termination of parental rights would best serve I.N.’s needs and welfare.
See In re Adoption of R.J.S., 901 A.2d 502 (Pa.Super. 2006).
Instantly, CYS met its burden of proof. Initially, we observe that,
since I.N. was removed from Father’s care during January of 2013, the
agency satisfied the threshold requirement that the child be removed for at
least twelve months. As it relates to the continued existence of the
conditions that predicated the removal, the certified record demonstrates
_______________________
(Footnote Continued)
(a)(5) align chiefly with the elements of (a)(8), except that the former
subsection applies to children that have been removed for six months and
requires the agency to establish that the parent cannot remedy the
underlying conditions within a reasonable time with the available assistance.
That additional element is absent from (a)(8).
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that Father’s compliance with CYS throughout these proceedings was dismal.
Moreover, his excuses and attempts to place the blame for his shortcomings
with CYS are unpersuasive.
Our Supreme Court recently held that the agency’s reunification effort
during the juvenile court proceedings is not relevant to the orphans’ court’s
determination of whether to terminate parental rights pursuant to 23 Pa.C.S.
§ 2511(a) and (b). See In re D.C.D. supra. Specifically, the High Court
reasoned,
[W]hile reasonable efforts should be considered and indeed, in
the appropriate case, a trial court could insist upon their
provision, we hold that nothing in the language or the purpose of
Section 6351(f)(9) forbids the granting of a petition to terminate
parental rights, under Section 2511, as a consequence of the
agency's failure to provide reasonable efforts to a parent.
Id. at 675.
Accordingly, we reject Father’s contentions that the orphans’ court’s
holding was legal error because CYS failed to provide him reasonable
assistance toward reunification. Moreover, the evidence adduced from the
certified record belies Father’s assertion that CYS undermined his efforts to
overcome the obstacles to parenting. Indeed, we soundly reject Father’s
assertion that the agency painted him as an abuser and fashioned artificial
impediments to his relationship with I.N. In reality, the court-ordered sex
offender counseling and the requirement that the visitations with I.N. be
supervised were warranted in light of the long history of this case. The fact
that I.N. was not the victim of any of the sexual assaults that Father
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allegedly committed is irrelevant. The court-ordered conditions were
necessary to insure I.N.’s continued safety while in Father’s presence.
Father’s obtuse argument to the contrary simply ignores that, as the
indicated perpetrator of sexual child abuse and a criminal defendant facing
three sex-related felonies, he posed an immediate risk to his adolescent son.
As nothing in the certified record supports Father’s contention that CYS
endeavored to undermine his reunification efforts, this claim fails.
Furthermore, the certified record supports the trial court’s findings that
Father failed to exercise reasonable firmness to overcome the obstacles of
incarceration in order to address the conditions which led to I.N.’s removal.
As it relates to the manner that the orphans’ court treated Father’s
incarceration, the Supreme Court’s analysis of In Re Adoption of S.P., 47
A.3d 817 (Pa. 2012) is instructive. In In Re Adoption of S.P., the
Supreme Court explained, “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)[.]” Id. at 828. The High Court further elucidated
that, outside of the (a)(2) analysis, a parent’s incarceration is relevant when
addressing whether he yielded to the impediments of imprisonment or
utilized the resources available to him in prison. Id. Thus, it is now clear
that a parent’s imprisonment is relevant and, in certain circumstances that
are not involved in this case, may be dispositive.
Herein, the orphans’ court considered the effect of Father’s
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incarceration on his reunification efforts. The court reasoned,
[P]rior to his incarceration, Natural Father was provided with
ample time to remedy these conditions and did not avail himself
of the opportunity to do so. His visits with [I.N.] were sporadic,
and while he began sex offender counseling, he did not
successfully complete it. He refused drug testing when offered,
stating that he did not want to embarrass the Natural Mother,
whose drug test he speculated would not be clean. N.T.,
Involuntary Termination of Parental Rights, July 31, 2014, at
131, 139-140.
Similarly, relative to subsection (5) and (8) of 23 Pa.C.S.§
2511(a), Natural Father has not remedied the conditions leading
to the removal of [I.N.] from his care and those conditions still
exist. Again, the allegations and indicated report of abuse
against a half-sibling of [I.N.] mean that Natural Father cannot
care for [I.N.] unsupervised, and he is unable to provide an
environment that would assure [I.N.’s] safety.
Natural Father is not employed, as he is currently
incarcerated; his previous employment was terminated, and he
cannot provide [I.N.] with residential or financial stability. Id., at
39. Natural Father did not successfully complete sex offender
counseling prior to his incarceration, despite having ample time
to do so. In fact, he did not even follow through with attendance
at counseling sessions. Since his incarceration, he has made no
effort to seek sex offender counseling services in order to
continue to work toward this goal, resulting in minimal to no
progress.
Further, Natural Father remains incarcerated on pending
charges stemming from the allegations of sexual abuse against
[I.N.’s] half-sibling, and is thus not likely to remedy these
conditions within a reasonable amount of time.
Trial Court Opinion, 9/22/14, at 4-5. The record supports the orphans’
court’s determination.
During the evidentiary hearing, Leslee Maturani, the CYS caseworker
assigned to this case since September 2012, summarized the family’s
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interactions with CYS and outlined the agency’s concerns with the effect of
drug use in the residence as well as Father’s alleged sexual predilections
upon the children’s safety. N.T., 7/31/14, at 23-25, 26. Additionally, she
testified about Father’s minimum compliance with the court-ordered services
and the safety plan designed to alleviate the removal of I.N. and his sisters
from the home. Id. at 27.
While CYS made several service referrals on Father’s behalf, Ms.
Maturani specifically noted Father’s failure to complete the court-ordered sex
offender counseling. Id. at 35-36. She testified that CYS arranged for
Father’s transportation to counseling, but he attended only intermittently.
Id. at 36. Similarly, although Ms. Maturani is unsure whether Father ever
received any financial assistance from his church, she was aware that the
church offered to help Father pay for sex offender counseling. She
summarized Father’s total effort toward sex offender counseling as (1)
enrolling in the program; (2) failing to attend any session for two or three
months; (3) briefly resuming participation; and (4) finally terminating any
involvement prior to his incarceration. Id. at 36-37. At one point, Father
informed Ms. Maturani that he did not believe that he belonged with the
“creeps” whom he encountered in sex offender counseling, but he
subsequently conceded to her that the sessions were appropriate. Id. at 37.
During that latter conversation with Ms. Maturani, Father implied that he
perpetrated the sexual abuse that had been reported and withdrawn in
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Union County, but he continued to deny the allegations leveled in
Northumberland County. Id. 37. Nonetheless, as Ms. Maturani pointed out,
Father failed to comply with the counseling requirement prior to
incarceration, and there were no programs or services available to him in
county jail. Id. at 39, 43. In total, Father attended two counseling sessions
before being discharged from the sex offender treatment program. Id. at
46.
In relation to the remaining counseling components, Ms. Maturani
confirmed that Father completed couples counseling sessions with Mother.
Id. at 38, 47. However, to her knowledge, Father failed to complete
individual counseling. Id. at 38, 46. Likewise, Father failed to comply with
the requirement to maintain stable and appropriate housing. Id. at 39. Ms.
Maturani explained that the family residence is owned by the paternal
grandmother, who resides in Staten Island, New York. Id. However, once
Mother and Father stopped paying the mortgage on the property, the
grandmother could no longer afford to maintain that home as well as her
own residence in New York. Id. Accordingly, she is preparing to sell it. Id
at 40.
Similarly, Ms. Maturani delineated Father’s cooperation with the
random drug screens. As noted supra, of the three tests that were
requested prior to his incarceration, one was positive, one was ngative, and
Father refused to comply with another. Id. at 38, 41-42.
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As it relates to Father’s visitations with I.N., Ms. Maturani stated that,
prior to Father’s arrest and incarceration for the sexual assault of I.N.’s half-
sibling, Father attended fifteen of thirty-six bi-weekly vitiations. Id. at 30-
31. She supervised most of the one-hour visitations. She reiterated that
Father’s excuse for missing the visitations was that his work schedule
interfered with his ability to attend the visitations. Id. at 31. Although Ms.
Maturani suggested that Father alter the visitation schedule to suit his
employment obligations, he never changed it prior to his incarceration. Id.
at 32. She continued that, following Father’s arrest and incarceration in the
county jail, he waited five months before resuming visitations with I.N. at
the county facility.
As to the nature of the visitations that Father attended prior to
incarceration, Ms. Maturani testified as follows. Father became angry
during several of the visitations due to his child support obligation or the
child’s appearance, and he made inappropriate comments in the child’s
presence. Id. at 33. Sometimes, Father would become so agitated with Ms.
Maturani or the agency that it affected his interaction with I.N. Id. at 51.
Father’s outbursts made then-nine-year-old I.N. anxious. Id. at 33.
Nevertheless, the child would attempt to calm Father and continue the
visitations. Id. During one episode, Father completely disregarded I.N.’s
attempts and terminated the visitation prematurely notwithstanding the
child’s efforts to quell Father’s anger. Id. at 49-50. On another occasion,
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Father engaged in an extended rant in front of I.N. about the then-pending
criminal investigation of the sexual assault allegations. Id. at 50. Again,
I.N. was obliged to calm Father in order to preserve the visitation. Id. Ms.
Maturani noted, however, that once the visitations were conducted in the
county jail, Father’s behavior improved and his interactions with I.N. became
appropriate. Id. at 33, 51.
On October 9, 2013, approximately one week before his incarceration,
Ms. Maturani mailed Father a pamphlet regarding the implications of the
Adoption and Safe Families Act on I.N.’s dependency and a letter advising
him that his continued non-compliance would be an impediment to
reunification. Id. at 57-58. She stressed that Father had to maintain
contact with the agency and fulfill its referrals to outside providers in order
to continue to receive services from the agency. Id. at 58. Father failed to
respond. Id.
In sum, Ms. Maturani posited that Father is not a placement option for
I.N. and no definitive date exists when Father could be considered a viable
placement resource. Id. at 40. She explained that, since Father is awaiting
trial for the sex offenses that he allegedly perpetrated against I.N.’s half-
sister, his life is unsettled. Id. at 40. Similarly, Father’s preferred
placement alternative, the paternal grandmother, is not a viable option. Ms.
Maturani testified that the agency first considered paternal grandmother as a
potential placement resource in late-November 2012, but, the grandmother
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remains hesitant to assume the responsibility due to financial concerns. Id.
at 152. Moreover, although Ms. Maturani assisted the paternal grandmother
with the clearance process during the end of 2012, as of the date of the
termination hearing, July 31, 2014, the grandmother failed to complete the
necessary out-of-state documentation. Id. at 44, 152-153, 154.
Accordingly, CYS has not continued to pursue the grandmother as a
placement resource. Id. at 154.
CYS also presented the testimony of Susan Shock, who provided
temporary foster care for I.N. during the nine-month period that Foster
Mother recovered from her illness. Ms. Shock testified that I.N. assimilated
smoothly into her family. Id. at 82. She stated that, even though Father
had been given their address when I.N. was placed in her and her husband’s
care, Father never called their home or corresponded to inquire about his
son. Id. at 80-81, 83. As it relates to visitations, since Ms. Shock cared for
I.N. during the five-month period that Father failed to participate in visiting
his son, her knowledge of the visitations is limited. Id. at 84. She did
testify, however, that I.N. was excited when Father resumed the visitations
during March of 2014. Id. at 85.
Next, Foster Mother, who is the prospective placement resource,
testified about her limited interactions with Father. She stated that she only
encountered Father during few of the visitations, and she indicated that,
throughout the time that I.N. was in her care, Father did not contact her or
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her husband personally to check on I.N. Id. at 93. However, Father would
occasionally communicate with I.N when the paternal grandmother called
the foster home. Id. at 94. As it relates to Father’s behavior during
visitations, Foster Mother testified that, even though she did not attend
many of the visitations, she observed one of the outbursts that Ms. Maturani
described. Id. at 106. She also noted that I.N. recovered quickly from the
disappointment associated with the frequent visitations that Father missed.
Id.
The foregoing evidence sustains the orphans’ court’s conclusion that
CYS established by clear and convincing evidence that the conditions that led
to I.N.’s removal continued to exist and that terminating Father’s parental
rights would best serve I.N.’s needs and welfare. First, the record bears out
that Father failed to comply with the court-ordered directives, including the
requirement that he confront the issue regarding his status as sex offender.
Hence, the conditions which led to I.N.’s removal continue to exist.
Moreover, Father has not demonstrated any ability to provide I.N.
permanence, stability, and safety or assume parenting responsibilities within
the foreseeable future. He is awaiting trial for sexually assaulting a minor,
unable to preserve the family home, and only maintains contact with I.N.
during the half-hour supervised visitations at the jail Accordingly, CYS
established all three components of § 2511(a)(8).
Having found that the orphans’ court did not err in finding that CYS
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satisfied its burden of proving the statutory grounds for terminating Father’s
parental rights pursuant to § 2511(a)(8), we next review the orphans’
court’s independent needs and welfare analysis under section 2511(b).
Pursuant to the Adoption Act, the court’s primary consideration is focused
upon the child’s “developmental, physical, and emotional needs and
welfare[.]” 23 Pa.C.S. § 2511(b). Additionally, even though the statute
does not mandate that the orphans’ court consider the effect of permanently
severing parental bonds, our case law requires that consideration where, as
here, a parent-child bond exists to some degree. See In re E.M., 620 A.2d
481, 485 (Pa. 1993).
The extent of the trial court’s bond-effect analysis depends upon the
circumstances of a particular case. In re K.Z.S., 946 A.2d 753, 763
(Pa.Super. 2008). We have emphasized that, while a parent’s emotional
bond with his child is a major aspect of the § 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the trial court
when determining what is in the best interest of the child. In re K.K.R.-S.,
958 A.2d 529, 535-536 (Pa.Super. 2008). Neither precedent nor statute
requires an orphans’ court to order a formal bonding evaluation by an
expert. Id. at 533. Indeed, the mere existence of an emotional bond does
not preclude the termination of parental rights. See In re T.D., 949 A.2d
910 (Pa.Super. 2008) (trial court’s decision to terminate parental rights was
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affirmed where court balanced strong emotional bond against parents’
inability to serve needs of child).
As we explained in In re K.Z.S., supra at 763 (emphasis omitted),
In addition to a bond examination, the court may equally
emphasize the safety needs of the child under subsection (b),
particularly in cases involving physical or sexual abuse, severe
child neglect or abandonment, or children with special needs.
The trial court should also examine the intangibles such as the
love, comfort, security, and stability the child might have with
the foster parent. Another consideration is the importance of
continuity of relationships to the child and whether the parent
child bond, if it exists, can be severed without detrimental
effects on the child. All of these factors can contribute to the
inquiry about the needs and welfare of the child.
See also In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010) (orphans’ court
can emphasize safety needs, consider intangibles, such as love, comfort,
security, and stability child might have with the foster parent, and
importance of continuity of existing relationships).
Instantly, the orphans’ court’s needs and welfare analysis was as
follows:
The Court also examined the existence and quality of the bond
between Natural Father and [I.N.] and found that, while a bond
does exist, that bond is not a beneficial one for the child. The
Court state[d at the conclusion of the evidentiary hearing]:
I believe that your son has some bond with you.
However, I don't believe that's a positive thing. You have
only brought instability into his life because of your
actions. The bond that he does have with you has not
helped him. It has hindered him and caused him
problems... He needs stability in his life and that you
cannot provide that to him now and quite possibly will not
be able to provide that for some time... I think he will be
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somewhat sad about not having you in his life for a while,
but I think that he will adjust to that positively.
Trial Court Opinion at 5 (internal citation to the record omitted).
The record sustains the trial court’s findings that terminating Father’s
parental rights best serves I.N.’s developmental, physical, and emotional
needs and welfare. Ms. Maturani testified during the hearing that I.N enjoys
the time he spends with Father but is very anxious prior to the visitation,
particularly about his appearance and whether he is late. N.T., 7/31/14, at
33, 35, 42. She further elucidated that, while I.N. does not talk to her about
his visitations with Father at the county jail, she observed that he was
intimidated by the facility. Id. at 35. She recalled, “the first visit at the
prison he -- it's intimidating walking in there as an adult, I can't imagine
what it's like walking in there as a ten year old child. He held onto me
walking through the . . . prison.” Id. She further explained that I.N. never
indicated a desire to reside with Father nor did he express an interest in
expanding his relationship with Father beyond the visitations. Id. at 48. In
contrast, he cried following visitations with Mother, and questioned why he
could not return home with her. Id. at 34.
Ms. Maturani also testified that I.N. was excited about returning to
Foster Parents’ home and noted that he “loved being there.” Id. at 35. She
elucidated that, while Foster Parents are a prospective placement resource,
they have not formally offered to adopt I.N. Id. at 45. The family discussed
adoption prior to Foster Mother’s illness, but at that time, CYS and Foster
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Parents agreed to continue with the status quo while I.N. was in their
home.6 Id.
Foster Mother’s testimony during the evidentiary hearing also supports
the orphans’ court’s decision to terminate Father’s parental rights. She
reiterated that I.N. was anxious prior to his visitations with Father. Id at
91, 97, 101. Specifically, he worried about the time and his personal
appearance, and asked nervous questions concerning the agenda during the
visitation. Id. at 91, 101. The child did not discuss his interactions with
Father unless he was asked specific questions. Id. at 90. Similarly, Foster
Mother stated that I.N. was quiet and withdrawn following the visitations.
Id. at 91, 101. However, once he was home for a while, he would open up
and play with his foster siblings. Id. at 102.
Additionally, relative to the intangibles we identified in In re K.Z.S.,
supra at 763, “such as the love, comfort, security, and stability the child
might have with the foster parent,” Foster Mother stated that she has four
birth children with whom I.N. enjoys a close relationship. She noted that the
children missed each other while I.N. was away from the family and that the
bond among the children is now closer than ever. N.T., 7/31/14, at 89. She
____________________________________________
6
We note that Foster Parents’ indecision regarding formal adoption is
consistent with CYS’s decision to pursue legal custodianship, in lieu of
adoption, as a concurrent placement goal.
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opined, “I think they didn’t realize how much they missed each other[.]” Id.
at 89-90.
In relation to I.N.’s daily interactions, Foster Mother testified that the
child is well adjusted and an excellent student. Id. at 92. He and one of
Foster Mother’s birth children currently attend the school where Foster
Mother works, and both will remain in that school following her anticipated
transfer to another building. Id. at 92. I.N. refers to Foster Mother as
either Christy, mom, or Miss Christy. Id. at 89. However, when I.N. is
being playful, he calls her “sweet cakes.” Id. at 90. Foster Mother further
observed that I.N. was thriving within the structure of the foster home. Id.
at 95. She believed that stability and permanency is an important aspect of
I.N.’s continued development, and noted that I.N. responded well to family
settings. Id. She detailed that he is often the first person to the dinner
table and relishes being part of the family. Id. She stressed that I.N.
values the relationships that he formed within the family, including his foster
grandparents, whom he identifies as “Mem and Pap” or “MawMaw and Pa”
and seeks out their affection. Id.
Additionally, Foster Mother noted a few behavioral issues with I.N.
before he was placed with the Shocks but clarified that the outbursts were
due to his adverse reaction to information regarding the allegations of sexual
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abuse against Father that he overheard during the visitations.7 Id. at 98.
She explained that I.N. had difficulty with the offensive themes and opined
that the few negative behaviors that she encountered with him during this
period were manifestations of his struggle to process what he had heard.
Id. at 99-100. However, since I.N. has returned to the foster family, she
noticed a large difference in his behavior. Id. at 100. She recounted that
he has been even more loving upon his return and repeatedly exclaims, “I
didn’t know how well I had it here.” Id.
As it relates to the effect of terminating Father’s parental rights, Foster
Mother opined that although she suspected that I.N. would grieve for a
period, he would adjust to the loss. Id. at 107. She reasoned that I.N. is
not suited for his current state of limbo and that he desires finality. For
example, Foster Mother shared an exchange that she recently had with I.N.,
wherein he indicated that he has been in six foster homes during his life,
including twice with her. Id. at 103. Foster Mother interpreted the
comment as I.N.’s recognition that his life lacked permanency. Id. She
continued that the child’s current status with Father clashed with the idyllic
setting of stability that has proven to be successful. Id. at 104.
The evidence that CYS adduced during the hearing established that
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7
While Father also discussed the abuse allegations with Ms. Maturani in his
son’s presence, the conversation that Foster Mother referenced occurred
between I.N.’s half-sisters during a different visitation.
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terminating Father’s parental rights best served I.N.’s developmental,
physical, and emotional needs and welfare. It also demonstrated that the
bond I.N. shares with Father is superficial. Although I.N. enjoys interacting
with Father during visitations, he never expressed any desire to live with
Father or to expand their relationship beyond the scheduled visitations. In
fact, there is little evidence of a shared emotional attachment that reveals
the hallmarks of a healthy parent-child relationship. While some emotional
bond exists between father and son, it is characterized by uncertainty,
anxiety, and nervousness.
Additionally, nothing in the certified record validates Father’s ability to
satisfy the child’s basic requirements for security or addresses his
developmental needs. The record not only demonstrates that I.N. desires a
stable, permanent family, which Father is utterly incapable of providing, it
also reveals that I.N.’s personality is not suited for the instability associated
with Father’s criminal conduct and incapacity to address his parental
deficiencies. Stated simply, Father cannot satisfy I.N.’s developmental or
physical needs.
Furthermore, unlike the uncertainty surrounding I.N.’s life with Father,
Foster Parents provide I.N. a structured family environment that is favorable
for his continued development. An excellent student, I.N. is thriving
academically and developmentally in the foster home. He has a close
relationship with Foster Parents and his four foster siblings, one of which is a
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schoolmate. I.N. seeks the adoration of the family members and exhibits
affection in return, coining pet names for Foster Mother and the foster
grandparents. The child clearly enjoys being a part of the family. He
expressed gratitude upon his homecoming and emphasized that he missed
the family members during his absence. Observing that a child’s emotional
attachment with his foster parents is a significant factor in evaluating his
developmental and emotional needs and welfare, and mindful of the
intangible factors that we outlined in In re K.Z.S., such as the importance of
continuing beneficial relationships, we find that sufficient evidence exists in
this case to sustain the orphans’ court’s determination. Terminating Father’s
parental rights best fulfills I.N.’s emotional needs and welfare.
Oder affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
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