Term. of Par. Rights to Y.A.C., Appeal of: M.L.B. ( 2023 )


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  • J-S44016-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    TERMINATION OF PARENTAL RIGHTS :           IN THE SUPERIOR COURT OF
    TO: Y.A.C., A MINOR            :                PENNSYLVANIA
    :
    :
    APPEAL OF: M.L.B., FATHER      :
    :
    :
    :
    :           No. 1330 MDA 2022
    Appeal from the Decree Entered August 17, 2022
    In the Court of Common Pleas of York County Orphans’ Court at No(s):
    2021-0144a
    BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
    MEMORANDUM BY McLAUGHLIN, J.:                        FILED: MARCH 3, 2023
    M.L.B. (“Father”) appeals from the decree terminating his parental
    rights as to his minor child, Y.A.C. (“Child”). We affirm.
    A panel of this Court previously summarized the facts as follows:
    Child is the son of Father and T.N.C. (Mother), who are not
    married. In January 2020, Child came into the custody of
    [York County Office of Children, Youth & Families (“CYF”)]
    on an emergency basis. The order was based on evidence
    which demonstrated that continuation or return of Child to
    the home of Mother and Father was not in the best interest
    of Child. Child was then placed in foster care, where he
    remains with a half-sibling.
    At a hearing on January 28, 2020, the court adjudicated
    Child dependent and awarded legal and physical custody of
    Child to CYF. Father did not attend this hearing and he did
    not file an appeal. His whereabouts were unknown to CYF
    until May 2020 when he was discovered to be in the York
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
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    County prison, where he was being held for charges of
    criminal homicide and possession with intent to deliver.
    The court held numerous permanency review hearings
    between July 2020 and May 2021. Due to Father’s
    incarceration, he did not make any progress toward
    alleviating the circumstances that resulted in Child being
    dependent. His requests for visits and for telephone visits
    with Child were denied by the York County Prison. CY[F] also
    provided Father with a Family Service Plan relating to Child
    which he did not object to until January 2021, wherein he
    raised concerns about certain family findings and requested
    visitation for the first time. Nevertheless, Child knows
    Father and recalls living with him. Father provided no
    monetary support or gifts to Child but did send some
    clothing items. He also never requested any photographs of
    Child.
    At some point during the dependency proceedings, Father
    submitted a request, through the Interstate Compact for the
    Placement of Children (ICPC), to assess his sister as a
    possible resource for Child. The sister was located in North
    Carolina. The sister traveled to Pennsylvania and met with
    Child two times for three hours per visit. The CYF
    caseworker stated the visits went “well” with the second
    visit being “a little bit more natural and easy going.”
    On June 18, 2021, CYF filed a petition for involuntary
    termination of both Mother’s and Father’s parental rights
    pursuant to 23 Pa.C.S.[A.] § 2511(a)(1), (2), (5), and (8).
    The court held a termination hearing on August 31, 2021.
    Child, then age six, was represented during the proceeding
    by T.L. Kearney, Esquire, whom the court appointed to
    represent Child as legal counsel.
    At the hearing, CY[F] indicated it was not going move Child
    upon approval of the ICPC because it “would like to see th[e]
    relationship [with Father’s sister] explored more before [it]
    would consider placement in her care.” Moreover, CY[F]
    stated while it did receive verbal approval, it never received
    an official transmittal with Pennsylvania state approval
    regarding Father’s sister because her local ICPC office did
    not send the transmittal through the proper channels.
    Father requested the court delay its decision pending the
    formal outcome of the ICPC process. The court denied his
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    request but noted his position – that he desired his sister to
    have custody.
    That same day, the court then terminated Father’s parental
    rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(2), (5), and (8).
    The court also found termination will best serve Child’s
    developmental, physical, and emotional needs and welfare,
    pursuant to 23 Pa.C.S.[A.]§ 2511(b).
    In the Int. of Y.A.C., No. 1255 MDA 2021, 
    2022 WL 907285
    , unpublished
    memorandum at 1-2 (Pa.Super. filed March 29, 2022) (citations and footnote
    omitted).
    Father appealed. We vacated the termination decree and remanded for
    further proceedings because there was no indication on the record that the
    court had made the requisite determination that Child’s legal and best
    interests did not conflict when it appointed Attorney Kearney to serve as both
    Child’s legal counsel and guardian ad litem (“GAL”). Id. at 4. On remand, the
    court determined that there was no such conflict and granted the petition to
    terminate Father’s parental rights. See Trial Court Order, April 22, 2022, at
    3.
    Father thereafter filed an appeal of the April 22, 2022 order, docketed
    at 777 MDA 2022. We vacated the April 22, 2022 order as a nullity and
    quashed the appeal. We determined that the trial court had lacked jurisdiction
    because it had entered its April 22, 2022 order before we had remitted the
    record after the prior appeal. See Order, June 21, 2022.
    The court then on August 17, 2022, after a hearing, again determined
    that there was no conflict in Attorney Kearney representing Child’s legal and
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    best interests and issued an order granting CYF’s petition for involuntary
    termination of Father’s parental rights. Father filed the instant timely appeal.
    Father raises the following issue:
    Did the trial court commit reversible error [by] involuntarily
    terminating the parental rights of the natural father when
    the Child’s needs and welfare could have been met by giving
    custody to a paternal aunt and preserving the parent/child
    relationship?
    Father’s Br. at 5.
    We review an order involuntarily terminating parental rights for an
    abuse of discretion. In re G.M.S., 
    193 A.3d 395
    , 399 (Pa.Super. 2018). In
    termination   cases,    we   “accept   the   findings   of   fact   and   credibility
    determinations of the trial court if they are supported by the record.” In re
    T.S.M., 
    71 A.3d 251
    , 267 (Pa. 2013) (quoting In re Adoption of S.P., 
    47 A.3d 817
    , 826 (Pa. 2012)). “If the factual findings have support in the record,
    we then determine if the trial court committed an error of law or abuse of
    discretion.” In re Adoption of K.C., 
    199 A.3d 470
    , 473 (Pa.Super. 2018).
    We will reverse a termination order “only upon demonstration of manifest
    unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of
    S.P., 47 A.3d at 826.
    Termination of parental rights is controlled by Section 2511 of the
    Adoption Act. In re L.M., 
    923 A.2d 505
    , 511 (Pa.Super. 2007). Under this
    provision, the trial court must engage in a bifurcated analysis prior to
    terminating parental rights:
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    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.
    
    Id.
     (citations omitted).
    Father does not challenge the court’s determination that sufficient
    grounds existed for terminating Father’s parental rights under Section
    2511(a). Rather, in his sole issue, Father contends the court erred by
    terminating his rights under Section 2511(b) because his sister was
    purportedly available to care for Child. Father argues:
    [W]hile Father’s incarceration and pending charges caused
    him to be unavailable as a resource for the Child, he offered
    his sister in North Carolina as a resource for the Child. A
    formal investigation under the ICPC was undertaken and
    informal approval was had, awaiting only final paperwork for
    approval. The Aunt from North Carolina traveled to
    Pennsylvania for two visits with the Child, and at least the
    second of those went well. Giving custody to the Aunt in
    North Car[o]lina until Father could become available to
    parent once again could have preserved the unity of this
    family.
    Father’s Br. at 10.
    Under   Section      2511(b),   the   trial   court   must   consider   “the
    developmental, physical and emotional needs and welfare of the child” to
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    determine if termination of parental rights is in the best interest of the child.
    See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of “[i]ntangibles
    such as love, comfort, security, and stability[.]” In re C.M.S., 
    884 A.2d 1284
    ,
    1287 (Pa.Super. 2005). The court must also examine the parent-child bond,
    “with utmost attention to the effect on the child of permanently severing that
    bond.” 
    Id.
     However, the “mere existence of an emotional bond does not
    preclude the termination of parental rights.” In re N.A.M., 
    33 A.3d 95
    , 103
    (Pa.Super. 2011). Rather, the trial court must consider whether severing the
    bond “would destroy an existing, necessary and beneficial relationship.” 
    Id.
    (citation omitted). The court must also examine any pre-adoptive home and
    any bond between the child and the foster parents. In re T.S.M., 71 A.3d at
    268.
    Here, Father conflates the issue of termination of his parental rights with
    the issue of placement/adoption of Child. The issue of who eventually adopts
    Child has no bearing on whether Father’s parental rights were properly
    terminated. Indeed, pursuant to Section 2512 of the Adoption Act, an agency
    need not aver in its petition to terminate that an adoption is presently
    contemplated or that a person with a present intention to adopt exists. 23
    Pa.C.S.A. § 2512(b)(3). “Furthermore, no particular adoption plan need be
    shown before the trial court is permitted to terminate a parent’s rights. In
    fact, the Supreme Court has noted that one of the purposes of the adoption
    laws is to allow the agency to proceed with termination proceedings
    independently of an adoption.” Monroe Cty. Children and Youth Servs. v.
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    Werkheiser, 
    598 A.2d 313
    , 316 (Pa.Super. 1991) (citing In re Burns, 
    379 A.2d 535
    , 541 (Pa. 1977)). The only issue before the trial court was the
    determination of the termination of Father’s parental rights — not the issue of
    possible custody of Child to the paternal aunt. The court therefore properly
    limited its decision to the termination issue.
    The court found that termination of Father’s parental rights was in
    Child’s best interests pursuant to Section 2511(b). The record supports the
    court’s finding. Child had been in care for 19 months at the time of the
    termination hearing on August 31, 2021. N.T. 8/31/21, at 75. There was
    evidence that Child’s daily needs were entirely being met by the foster family,
    who are a pre-adoptive resource. Id. at 85. Child has required significant
    dental care and emotional support, which has been managed exclusively by
    the foster parents. Id. at 85-86, 96-97. Child is strongly bonded to his brother,
    with whom he lives with at the foster home, and there was testimony that
    Child would be detrimentally impacted if he was separated from his brother
    and his other siblings. Id. at 54, 90-91. The foster mother testified that she
    loves Child and is greatly bonded to him, and Child is stable and thriving in
    her care. Id. at 94-96. Further, Child’s counsel and GAL indicated that Child
    wants to be adopted by his foster family and fully understands that Father’s
    parental rights need to be terminated before adoption could occur. N.T.
    8/17/22, at 9.
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    We conclude that CYF presented sufficient evidence under Section
    2511(b). We see no reasonable basis to disturb the court’s decision that
    termination of Father’s parental rights would be in Child's best interests.
    Decree affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 03/03/2023
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