In Re: J.S.D., Jr., Appeal of: J.S.D. ( 2019 )


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  • J-S79042-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: J.S.D., Jr., A MINOR              :   IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    :
    :
    :
    APPEAL OF: J.S.D., FATHER                :        No. 1378 MDA 2018
    Appeal from the Order Entered July 19, 2018
    in the Court of Common Pleas of York County
    Orphans' Court at No(s): 2018-0012a
    BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
    MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 16, 2019
    J.S.D. (“Father”) appeals from the Order granting the Petition filed by
    J.F. and C.F. (“Petitioners”), a married couple, seeking to involuntarily
    terminate Father’s parental rights to his minor child, J.S.D., Jr. (“Child”), a
    male born in January 2017, pursuant to the Adoption Act, 23 Pa.C.S.A.
    § 2511(a)(1), (5), and (b), so that Petitioners may adopt Child. We affirm.
    On April 12, 2018, Petitioners filed a Petition for Adoption and a Petition
    for the involuntary termination of Father’s parental rights to Child (“ITPR
    J-S79042-18
    Petition”).1 On July 16, 2018, the Orphans’ Court conducted a hearing2 on the
    ITPR Petition, at which Petitioners were present with their counsel. Child’s
    legal counsel, Jennifer Galloway, Esquire (“Attorney Galloway”), was present
    on Child’s behalf.3 Father, who was incarcerated at Dauphin County prison,
    was present with his court-appointed counsel.
    ____________________________________________
    1  The Petition also sought to terminate M.L.’s (“Mother”) parental rights to
    Child. On July 19, 2018, Mother filed a Consent to Adoption, and Petitioners
    filed a Petition to Confirm Consent to Adoption. Mother is not a party to the
    instant appeal.
    2At a previously-scheduled hearing on June 25, 2018, Mother indicated that
    she would consent to Child’s adoption. The Orphans’ Court thereafter
    continued the hearing.
    3 Although Attorney Galloway identifies herself as Child’s court-appointed
    Guardian ad litem (“GAL”) in her appellate brief, from the record, it appears
    that Attorney Galloway served as Child’s legal counsel during the hearing.
    See generally In re Adoption of L.B.M., 
    161 A.3d 172
    , 179-80 (Pa. 2017)
    (plurality) (requiring the appointment of separate legal counsel, in addition to
    a GAL in contested involuntary termination proceedings). However, a majority
    of the L.B.M. Court concluded that counsel may serve both as the GAL,
    representing the child’s best interests, and as the child’s counsel, representing
    the child’s legal interests, as long as there is no conflict between the child’s
    legal and best interests. 
    Id. at 183-93
    ; see also In re D.L.B., 
    166 A.3d 322
    ,
    329 (Pa. Super. 2017) (stating that “separate representation would be
    required only if the child’s best interest and legal interests were somehow in
    conflict.”). Here, Child was only one-and-a-half years old at the time of the
    hearing, and therefore unable to express his preferred outcome. See In re
    T.S., 
    192 A.3d 1030
    , 1092 (Pa. 2018) (concluding that “if the preferred
    outcome of a child is incapable of ascertainment because the child is very
    young and pre-verbal, there can be no conflict between the child’s legal
    interests and his or her best interests.”). Accordingly, we conclude that there
    is no conflict between Child’s legal interests and best interests, and the
    dictates of L.B.M. are satisfied.
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    In its Findings of Fact, the Orphans’ Court set forth the factual
    background and procedural history of this appeal as follows:
    1. [] Child was born in January 2017, and is one[-]and[-]a[-]half
    (1½) years old.
    2. []Father has been incarcerated during [] Child’s lifetime as
    follows:[FN1]
    a. Sometime prior to January 1, 2017 to January 19, 2017.
    …
    b. Sometime in July 2017 to September 11, 2017. …
    c. April 12, 2018 to current. …
    [FN1]The [c]ourt takes judicial notice of [] [F]ather’s
    criminal record from the Common Pleas Courts Docket
    Sheets on the Unified Judicial System website.
    3. On August 9, 2017, the Court of Common Pleas of the 41st
    Judicial District of Pennsylvania, Perry County Branch, the
    Honorable Kenneth A. Mummah presiding, entered an Order
    [granting L.D. (“Paternal Grandmother”) sole legal and physical
    custody of Child.]
    4. [] Father had only one possible contact with [] [C]hild within
    the six months prior to the filing of the [ITPR Petition], that being[]
    a several[-]hour visit with [] [C]hild at the home of Paternal
    Grandmother.[FN2]
    [FN2]  Throughout [] [F]ather’s testimony, he was
    unable to provide dates credibly. For instance, he
    initially claimed he had custody of [] Child until mid-
    October 2017 and had last seen [] Child in 2018, the
    latter testimony being at complete variance with the
    testimony of the [P]etitioner, whose testimony the
    [c]ourt finds to be credible. After being confronted
    with the conflict during cross-examination, [] [F]ather
    modified his testimony that such contact was
    sometime after his release from incarceration, which
    would have been on September 11, 2017, but prior to
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    Thanksgiving, November 23, 2017, without further
    specificity.
    5. Paternal Grandmother had sole custody of [] Child from July
    2017[,] to January 12, 201[8]. On December 27, 2017, Paternal
    Grandmother and Petitioners initiated the process of transferring
    custody of [] Child to the Petitioners, finalizing such transfer on
    January 12, 2018, by Paternal Grandmother executing
    guardianship papers.
    6. [] Father claims that[,] upon his incarceration in July 2017, he
    provided Paternal Grandmother with access to his bank account,
    containing approximately $16,000.00, for her use to support []
    Child, which funds [] Father claims were misused by Paternal
    Grandmother.
    7. [] Father has no current income or any appreciable assets.
    8. [] Father claims that he was unaware that Paternal
    Grandmother transferred custody of [] Child until being served
    with a copy of the [ITPR Petition].
    9. At all times relevant, [] Father was able to contact Paternal
    Grandmother; [sic] knowing her address and telephone number.
    10. [] Father claims Paternal Grandmother was unwilling to allow
    him to have contact with [] Child after the entry of Judge
    Mummah’s Order dated August 9, 2017.[FN3]
    [FN3]   Apparently, other than the several[-]hour visit.
    11. []Father considered contesting Judge Mummah’s Order dated
    August 9, 2017, but ultimately concluded that he could not afford
    to do so.
    12. [] Father contends his recent criminal record is the product of
    a substance abuse problem[;] he has participated in prison
    treatment programs in an effort to cure this problem[;] and he
    has been clean for 7-8 months.
    13. In contrast, [Father pled guilty to Use/Possession of Drug
    Paraphernalia on June 11, 2018].
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    14. The [c]ourt finds that [] Father continues to suffer from his
    substance abuse problem and has not been able to reach a state
    of true recovery from its ill effects at this time.
    15. [] Father contends that he will be released from incarceration
    sometime in September 2018.
    16. In contrast, [] Father’s criminal record reflects that:
    a) As noted above, he pled guilty to the Use/Possession of
    Drug Paraphernalia with a penalty being assessed. … The
    penalty assessed is unknown, but was filed of record on
    the same day as the hearing, July 16, 2018.
    b) On August 20, 2018, a Revocation Hearing [wa]s
    scheduled to be conducted by the Court of Common Pleas
    of Dauphin County, the Honorable William T. Tully
    presiding; presumably to determine whether [] Father
    [would admit] to violating his probation. …
    Orphans’ Court Order, 7/19/18, at 1-5 (footnotes in original).
    The Orphans’ Court granted the [ITPR Petition] on July 19, 2018. Father
    timely filed a Notice of Appeal and Concise Statement of errors complained of
    on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
    On appeal, Father raises the following issue for our review:
    I. Whether the [Orphans’ C]ourt erred as a matter of law and
    abused its discretion by granting the request of Petitioners to
    terminate [Father’s] parental rights when Petitioners failed to
    present clear and convincing evidence under 23 Pa.C.S.A. [§]
    2511(a)(1) and (5)?
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    Father’s Brief at 5.4
    Father argues that there was insufficient evidence presented at the
    termination hearing to show that the requirements of section 2511(a)(1) and
    (5) were met by clear and convincing evidence. See id. at 12-19. Father
    argues that he provided Paternal Grandmother almost $16,000.00 for Child’s
    care. Id. at 15. Father acknowledges that “he was unable to stay in contact
    with [Child,]” but asserts that Paternal Grandmother prevented him from
    having any contact with Child, including telephone calls. Id. at 16. Father
    urges that the trial court failed to give sufficient weight to Child’s best interests
    and the bond that may have existed between Child and Father. Id. at 18-19.
    In reviewing an appeal from an order terminating parental rights, we
    adhere to the following standard:
    [A]ppellate courts must apply an abuse of discretion standard
    when considering a trial court’s determination of a petition for
    termination of parental rights. As in dependency cases, our
    standard of review requires an appellate court to accept the
    findings of fact and credibility determinations of the trial court if
    ____________________________________________
    4 While Father stated his issue somewhat differently in his Concise Statement,
    we find it sufficiently preserved for this Court’s review. We additionally note
    that Father waived any challenge to the sufficiency of the evidence to support
    the termination of his parental rights under section 2511(b), as he did not
    challenge section 2511(b) in either his Concise Statement or the Statement
    of Questions Involved portion of his brief. See Krebs v. United Ref. Co. of
    Pa., 
    893 A.2d 776
    , 797 (Pa. Super. 2006) (holding that an appellant waives
    issues that are not raised in both his concise statement of errors complained
    of on appeal and the statement of questions involved in his brief on appeal).
    Nevertheless, we will consider the sufficiency of the evidence supporting
    termination under section 2511(b), as Father discussed section 2511(b) in the
    Argument section of his brief, and the Orphans’ Court considered Child’s best
    interest in its Order.
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    they are supported by the record. If the factual findings are
    supported, appellate courts review to determine if the trial court
    made an error of law or abused its discretion. As has been often
    stated, an abuse of discretion does not result merely because the
    reviewing court might have reached a different conclusion.
    Instead, a decision may be reversed for an abuse of discretion
    only upon demonstration of manifest unreasonableness, partiality,
    prejudice, bias, or ill-will.
    [U]nlike trial courts, appellate courts are not equipped to make
    the fact-specific determinations on a cold record, where the trial
    judges are observing the parties during the relevant hearing and
    often presiding over numerous other hearings regarding the child
    and parents. Therefore, even where the facts could support an
    opposite result, as is often the case in dependency and
    termination cases, an appellate court must resist the urge to
    second guess the trial court and impose its own credibility
    determinations and judgment; instead we must defer to the trial
    judges so long as the factual findings are supported by the record
    and the court’s legal conclusions are not the result of an error of
    law or an abuse of discretion.
    In re Adoption of S.P., 
    47 A.3d 817
    , 826-27 (Pa. 2012) (internal citations
    omitted).
    The burden is upon the petitioner to prove by clear and convincing
    evidence that the asserted grounds for seeking the termination of parental
    rights are valid. In re R.N.J., 
    985 A.2d 273
    , 276 (Pa. Super. 2009). “The
    standard of clear and convincing evidence is defined as testimony that is so
    clear, direct, weighty and convincing as to enable the trier of fact to come to
    a clear conviction, without hesitance, of the truth of the precise facts in issue.”
    
    Id.
     (citation omitted).
    This Court may affirm the trial court’s decision regarding the termination
    of parental rights with regard to any one subsection of section 2511(a), along
    with consideration of subsection 2511(b). See In re B.L.W., 
    843 A.2d 380
    ,
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    384 (Pa. Super. 2004) (en banc).          Here, we will consider subsections
    2511(a)(1) and (b), which provide as follows:
    § 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).
    To terminate parental rights pursuant to Section 2511(a)(1), the person
    or agency seeking termination must demonstrate through clear and
    convincing evidence that, for a period of at least six months prior to the filing
    of the petition, the parent’s conduct demonstrates a settled purpose to
    relinquish parental rights or that the parent has refused or failed to perform
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    parental duties. In Re Adoption of M.E.P., 
    825 A.2d 1266
    , 1272 (Pa. Super.
    2003).
    Once the evidence establishes a failure to perform parental duties
    or a settled purpose of relinquishing parental rights, the court
    must engage in three lines of inquiry: (1) the parent’s explanation
    for his or her conduct; (2) the post-abandonment contact between
    parent and child; and (3) consideration of the effect of termination
    of parental rights on the child pursuant to Section 2511(b).
    In re Adoption of Charles E.D.M., 
    708 A.2d 88
    , 92 (Pa. 1988).
    Additionally, in regard to incarceration and 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 his
    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). “Parental rights are not preserved by waiting for a more suitable or
    convenient time to perform one’s parental duties 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).
    The focus in terminating parental rights under section 2511(a) is on the
    parent, but it is on the child pursuant to section 2511(b). See In re Adoption
    of C.L.G., 
    956 A.2d 999
    , 1008 (Pa. Super. 2008) (en banc). In reviewing the
    evidence in support of termination under section 2511(b), our Supreme Court
    has stated as follows:
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    [I]f the grounds for termination under subsection (a) are met, a
    court “shall give primary consideration to the developmental,
    physical and emotional needs and welfare of the child.” 23
    Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
    child have been properly interpreted to include “[i]ntangibles such
    as love, comfort, security, and stability.” In re K.M., 
    53 A.3d 781
    , 791 (Pa. Super. 2012). In In re E.M., [
    533 Pa. 115
    , 121,
    
    620 A.2d 481
    , 485 (Pa. 1993)], this Court held that the
    determination of the child’s “needs and welfare” requires
    consideration of the emotional bonds between the parent and
    child. The “utmost attention” should be paid to discerning the
    effect on the child of permanently severing the parental bond. In
    re K.M., 
    53 A.3d at 791
    .
    In re T.S.M., 
    71 A.3d 251
    , 267 (Pa. 2013).
    When evaluating a parental bond, “the court is not required to use
    expert testimony. Social workers and caseworkers can offer evaluations as
    well.    Additionally, section 2511(b) does not require a formal bonding
    evaluation.” In re Z.P., 
    994 A.2d 1108
    , 1121 (Pa. Super. 2010) (internal
    citations omitted). Although it is often wise to have a bonding evaluation and
    make it part of the certified record, “[t]here are some instances … where direct
    observation of the interaction between the parent and the child is not
    necessary and may even be detrimental to the child.” In re K.Z.S., 
    946 A.2d 753
    , 762 (Pa. Super. 2008).
    Further,
    concluding a child has a beneficial bond with a parent simply
    because the child harbors affection for the parent is not only
    dangerous, it is logically unsound. If a child’s feelings were the
    dispositive factor in the bonding analysis, the analysis would be
    reduced to an exercise in semantics as it is the rare child who,
    after being subject to neglect and abuse, is able to sift through
    the emotional wreckage and completely disavow a parent …. Nor
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    are we of the opinion that the biological connection between [the
    parent] and the children is sufficient in of itself, or when
    considered in connection with a child’s feeling toward a parent, to
    establish a de facto beneficial bond exists. The psychological
    aspect of parenthood is more important in terms of the
    development of the child and [his or her] mental and emotional
    health than the coincidence of biological or natural parenthood.
    In re K.K.R.-S., 
    958 A.2d 529
    , 535 (Pa. Super. 2008) (internal citations and
    quotation marks omitted). Thus, the court may emphasize the safety needs
    of the child.   See In re K.Z.S., 946 A.2d at 763 (affirming involuntary
    termination of parental rights, despite existence of some bond, where
    placement with mother would be contrary to child’s best interests).            “[A]
    parent’s basic constitutional right to the custody and rearing of his or her child
    is converted, upon the failure to fulfill his or her parental duties, to the child’s
    right to have proper parenting and fulfillment of [the child’s] potential in a
    permanent, healthy, safe environment.”         In re B.,N.M., 856 A.2d at 856
    (internal citations omitted).
    In its Order, the Orphans’ Court set forth the following Conclusions of
    Law regarding its decision to terminate Father’s parental rights pursuant to
    subsection 2511(a)(1):
    1. Other than a single visit, [] Father has had no contact with []
    Child; both during and for periods he was released from
    incarceration[,] for a period in excess of six (6) months.
    2. [] Father did not exercise reasonable firmness in resisting
    obstacles created by his incarceration and Judge Mummah’s Order
    dated August 9, 2017, nor did he employ available resources to
    preserve the parental relationship with [] Child.
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    3. [] Father took no steps to use the funds in his bank account to
    retain legal counsel to contest [the Order granting Paternal
    Grandmother sole physical and legal custody of Child].
    4. Since at least July 2017, [] Father has not communicated with
    [] Child directly via telephone, mail, or any other means.
    5. There is no evidence that [] Father sent [] [C]hild any presents
    or cards for Christmas 2017, or in celebration of [] [C]hild’s first
    birthday in January 2018.
    6. [] Father’s single visit with [] Child is not sufficient to stop the
    six-month period from running under section 2511(a). Since []
    Father otherwise refused or failed to perform his parental duties
    for six months, the requirements of [section] 2511(a)(1) are met.
    …
    8. For approximately ten months, [] Father failed to fulfill his
    parental obligations to [] Child, and this lack of concern for [] Child
    is not negated by a singular visit. … [] Father has clearly not used
    the resources available to him to maintain a place of importance
    in [] Child’s life. Since August 2017, [] Father consistently has
    not maintained contact with [] Child, nor has he used the means
    available to him to attempt to overcome any obstacles impeding
    his relationship [] [Child].
    …
    11. With respect to Section 2511(a)(1), the [c]ourt, therefore,
    concludes that [] Father, by clear and convincing evidence of
    conduct continuing for a period of at least six months immediately
    proceedings the filing of the petition[,] evidenced a settled
    purpose of relinquishing his parental claim to [] Child and refused
    and failed to perform his parental duties.
    Orphans’ Court Order, 7/9/18, at 6-8; see also 1925(a) Opinion, 8/22/18, at
    3-4 (emphasizing that Father only visited Child once within six months prior
    to the filing of the ITPR Petition; Father had no contact with Child during the
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    period of time he was not in jail; and Father did not otherwise attempt to
    contact Child).
    Additionally, the Orphans’ Court considered the best interest of Child
    pursuant to subsection 2511(b), in relevant part, as follows:
    27. The [c]ourt concludes that no bond exists between [] Father
    and Child; such bond may have begun formulating during the first
    six (6) months of [] Child’s life, but it has been severed within the
    last year.
    28. The [c]ourt specifically considered whether [] Child has
    developed a meaningful bond with [] Petitioners.
    29. The [c]ourt concludes that, at this point, [] Child has
    established an emotional parent-child bond with Petitioners[,]
    who have provided stability, safety, and security, regularly and
    consistently, to [] Child over an extended period of time; that is,
    since early January 2018.
    30. Based upon … the foregoing, the [c]ourt concludes that it is in
    the best interest of [] Child to terminate the parental rights of []
    Father.
    Orphans’ Court Order, 7/19/18, at 13.
    Our review discloses that the Orphans’ Court’s decision to terminate
    Father’s parental rights under section 2511(a)(1) and (b) is supported by
    competent, clear and convincing evidence. See In re Adoption of S.P., 47
    A.3d at 826-27. We discern no abuse of discretion by the Orphans’ Court in
    finding that no bond between Father and Child exists, and that Child has
    instead established a bond with Petitioners.
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    Based upon the foregoing, we affirm the Orphans’ Court’s termination
    of Father’s parental rights to Child pursuant to subsections 2511(a)(1) and
    (b).
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 04/16/2019
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