In the Interest of: N.A.S., a Minor ( 2016 )

J-S46014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.A.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.J.R., FATHER
No. 71 EDA 2016
Appeal from the Decree December 14, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000855-2015
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 02, 2016
Appellant, A.J.R. (Father), appeals from the decree involuntarily
terminating his parental rights to his daughter, N.A.S., born in October of
2013. Upon careful review, we affirm.1
We summarize the relevant facts and procedural history as follows.
On December 24, 2013, the Philadelphia Department of Human Services,
Children and Youth Division (DHS), obtained an order of protective custody
for N.A.S. On the previous day, N.A.S. was brought by her maternal great-
grandmother and maternal aunt and admitted to St. Christopher’s Hospital
because she “was listless and not eating properly.” Trial Court Opinion,
3/2/16, at 1.2 Upon admittance to the hospital, it was determined that
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We note that the Child Advocate filed a brief in this matter in support of
the decree involuntarily terminating Father’s parental rights.
2
The trial court’s opinion is unpaginated. For ease of reference, we have
assigned numbers to the pages of the court’s opinion.
J-S46014-16
N.A.S. was dehydrated and hypothermic, and had an altered mental status.
Id. At that time, the identity of Father was unknown to DHS. Id. at 2.
N.A.S. was discharged from the hospital on January 2, 2014. She was
placed in a foster home where she continued to reside at the time of the
subject proceedings. Id. at 2. N.A.S. was adjudicated dependent on
January 14, 2014.
Sometime prior to January 28, 2014, M.S. (Mother) identified Father
as N.A.S.’s biological father. Id. DHS established the following Single Case
Plan (SCP) objectives for him: to comply with mental health therapy and
recommendations; to participate in anger management; to comply with
visitation with N.A.S.; to maintain housing; and to comply with Community
Umbrella Agency (CUA) services. N.T., 12/14/15, at 16. Further, the trial
court ordered Father to participate in a parenting capacity evaluation. Id.
On November 30, 2015, DHS filed a petition for the involuntary
termination of Father’s and Mother’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8), and (b). A hearing was held on December 14,
2015, during which DHS presented the testimony of Melonie Handberry, the
Asociación Puertorriqueñ̃̃̃os en Marcha (APM) CUA case management
supervisor, and Julie Cannon, the APM CUA case aide, who supervised
Father’s visits with N.A.S. Father testified on his own behalf.
By decree dated and entered on December 14, 2015, the trial court
involuntarily terminated Father’s parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), and (b). On January 5, 2016, Father timely filed a notice of
-2-
J-S46014-16
appeal and a concise statement of errors complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b). 3 The
trial court filed a Rule 1925(a) opinion on March 2, 2016.
On appeal, Father presents the following issues for our review:
1. Whether the trial court committed reversible error, when it
involuntarily terminated [F]ather’s parental rights where such
determination was not supported by clear and convincing
evidence under the [A]doption [A]ct, 23 Pa.C.S.A. § 2511(a)(1)
and (2)[?]
2. Whether the trial court committed reversible error, when it
involuntarily terminated [F]ather’s parental rights without giving
the primary consideration to the effect that the termination
would have on the developmental, physical and emotional needs
of the child as required by the [A]doption [A]ct, 23 Pa.C.S.A. §
2511(b)[?]
3. Whether the trial court erred because the evidence was
overwhelming and undisputed that [F]ather demonstrated a
genuine interest and sincere, persistent, and unrelenting effort
to maintain a parent-child relationship with his child[?]
Father’s brief at 8.
We consider Father’s issues mindful of our well-settled 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 trial court if 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
____________________________________________
3
By separate decree entered on the same date, the trial court involuntarily
terminated Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b). Mother did not appeal from the decree.
-3-
J-S46014-16
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 trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial 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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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). The
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted statutory grounds for seeking the termination of parental rights
are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
-4-
J-S46014-16
Instantly, the trial court terminated Father’s parental rights pursuant
to Section 2511(a)(1), (2), and (b), which provide as follows:
(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.
(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.
...
(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), (2), (b).
To meet the requirements of Section 2511(a)(1), “the moving party
must produce clear and convincing evidence of conduct, sustained for at
least the six months prior to the filing of the termination petition, which
-5-
J-S46014-16
reveals a settled intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa.
Super. 2008) (citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa.
Super. 2006)). The court must then consider “the parent’s explanation for
his or her conduct” and “the post-abandonment contact between parent and
child” before moving on to analyze Section 2511(b). Id. (quoting In re
Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quoting
In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003)). Rather, “[p]arental
duty requires that the parent act affirmatively with good faith interest and
effort, and not yield to every problem, in order to maintain the parent-child
relationship to the best of his or her ability, even in difficult circumstances.”
Id. (citation omitted).
To terminate parental rights pursuant to Section 2511(a)(2), the
moving party must produce clear and convincing evidence regarding the
following elements: (1) repeated and continued incapacity, abuse, neglect or
refusal; (2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of
-6-
J-S46014-16
M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). Parents are required to
make diligent efforts towards the reasonably prompt assumption of full
parental responsibilities. In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002).
A parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected
as untimely or disingenuous. Id.With respect to Section 2511(b), this Court has explained the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
In his first and third issues on appeal, Father argues that the evidence
was insufficient to terminate his parental rights pursuant to Section 2511(a).
Specifically, Father asserts that he has completed all of his SCP objectives,
and that he has the present capacity to care for N.A.S. We disagree.
The trial court found as follows.
-7-
J-S46014-16
[P]rior to May 30, 2015, Father had unsupervised overnight
visits with the child. The [CUA supervisor] testified that on or
about May 30, 2015, while in the care of [F]ather the child
received a cigarette burn – a press burn, to her face. The burn
was not reported by [F]ather to DHS or to the foster parent[].
[F]ather did not seek medical treatment for the child’s burn. The
[CUA supervisor] testified that [F]ather did not appear to know
how the child received the burn. [F]ather’s visits reverted back
to supervised visits because of the burn incident. The CUA [case
aide] testified that [F]ather failed to attend all of the supervised
visits because of inclement weather and transportation despite
having tokens provided to him. Furthermore, the CUA worker [ ]
testified that it would not be appropriate, based on her
interactions with [F]ather, for the child to have unsupervised
visits with him.
Trial Court Opinion, 3/2/16, at 4 (citations to record omitted).
In addition, the court found that Father was aware of his SCP
objectives, but that he “was not fully compliant with any of them.” Id. at 3
(citations to record omitted). The trial court explained:
[F]ather did not complete anger management classes. He was
referred for anger management classes numerous times.
[F]ather expressed to the DHS social worker that he believed
that he did not need anger management. Furthermore, [F]ather
has not been compliant with his mental health treatment and
medication management goals. Moreover, [F]ather did not
complete his parenting capacity evaluation. The DHS worker
personally delivered an appointment letter for the parenting
capacity evaluation. She also called [F]ather and texted him to
remind him to attend the evaluation, however, [F]ather did not
go to the appointment or complete the evaluation. Lastly, both
the DHS social worker and the CUA worker testified that [F]ather
did not consistently visit with the child.
Id. (citations to record omitted). The testimonial evidence supports the
court’s findings.
-8-
J-S46014-16
Ms. Handberry testified that, at an unspecified time in this case, Father
had been compliant with his SCP objectives, and he was granted overnight
visits. N.T., 12/14/15, at 19. She explained that his visits reverted to
supervised following an incident on May 30, 2015, when N.A.S., then
approximately nineteen months, sustained a pressed cigarette burn to her
face while in Father’s care during an overnight visit. Id. at 19-20. She
testified that Father “seemed to lack awareness of how she got the burn[,]
and he also didn’t know how to treat her or to take her for medical care.”
Id. at 20. In fact, Ms. Handberry testified she interviewed Father and his
paramour twice, “and the stories [were] not consistent. And neither one
seemed to know how [N.A.S.] got the burn.” Id. Further, she testified
Father relied on his paramour with respect to how to treat the burn, and his
paramour “told him that Neosporin is fine and she’d be okay.” Id. at 21.
Ms. Handberry testified she is concerned about Father’s parenting
capacity due, in large part, to the burn incident, and by his acknowledgment
that his paramour would be the primary caretaker of N.A.S. if the child is
returned to him. Id. at 22, 24. Further, she testified Father is inconsistent
with his supervised visitation. Id. at 22-23. She testified that Father
spends time in New York.4 Id. at 22. She testified, at other times, he
____________________________________________
4
Ms. Cannon, the case aide who supervises Father’s visits with N.A.S.,
testified that Father visits New York “quite often[,]” but he has never
mentioned how he gets there. N.T., 12/14/15, at 32-33.
-9-
J-S46014-16
cancels visits because of rain. Id. at 23. Ms. Handberry testified, “[Father]
was very concerned about getting wet and the child getting wet as well. We
explained to him that there are umbrellas, coats, hoods, you can still make
the visit and he declined to do the visit.” Id. Father acknowledged on direct
examination that he has missed visits “[d]ue to the rain. I’m worried about
my health, getting sick including my daughter’s health, getting sick.” Id. at
38. Since the last court date in January of 2015, Father scheduled twenty
supervised visits, but he attended only twelve.5 Id. at 29.
Besides not complying with his supervised visitation, Ms. Handberry
testified that Father has never attended anger management classes, and
that “he has expressed to me as well as my staff that he does not believe he
needs anger management.”6 Id. at 17. On direct examination, Father
____________________________________________
5
Ms. Cannon testified that Father is permitted one visit per week, but that
he averages two visits per month. N.T., 12/14/15, at 30-31. She testified
that his reasons for not attending visits is “usually centered around
transportation.” Id. at 31. Further, Ms. Cannon testified she has explained
to Father that she can give him transportation tokens. Id. She agreed on
direct examination that Father still does not seem to understand that he can
receive tokens and get to the visit. Id. In addition, Ms. Cannon testified
that Father has lost transportation tokens. Id.
6
Ms. Handberry testified that the anger management objective was assigned
to Father because he “can be difficult to redirect and he can get easily
frustrated and angered when being told information that he doesn't agree
with. . . . [I]t was concerning because we believe that if there were any
frustrations with [N.A.S.]’s care [F]ather wouldn’t be able to address it and
handle it.” N.T., 12/14/15, at 17.
- 10 -
J-S46014-16
testified that he did not attend anger management classes because they
were held “downtown[,]” and he lives in “Feltonville.” Id. at 36.
In addition, Ms. Handberry testified that, at an unspecified time,
Father was consistent with mental health treatment. Id. at 18. However, in
August of 2015, after the burn incident in May of that year, the court
ordered Father to obtain a parenting capacity evaluation and to attend
mental health treatment consistently. Id. at 18-19, 22. Ms. Handberry
testified that Father has not been compliant with the mental health program
since October of 2015, including not completing the parenting capacity
evaluation, individual therapy sessions, and medication management
appointments. Id. at 18, 28. Father testified that the parenting capacity
evaluation has been rescheduled, and that he has been prescribed
medication for his anger, which he takes every day. Id. at 36-38.
Based on the foregoing testimonial evidence, we discern no abuse of
discretion by the trial court in terminating Father’s parental rights pursuant
to Section 2511(a)(1) and (2). The evidence overwhelmingly demonstrates
that, for at least six months preceding the filing of the termination petition,
that is, since at least May of 2015, Father has failed to perform his parental
duties. Further, the evidence demonstrates that Father’s repeated and
continued incapacity or refusal to parent and to comply with his SCP
objectives has caused N.A.S. to be without essential parental care, control,
or subsistence necessary for her physical or mental well-being. At the time
of the termination hearing, N.A.S. had been in placement for more than
- 11 -
J-S46014-16
twenty-three months. We discern no abuse of discretion by the trial court in
concluding that Father’s incapacity or refusal to parent and to comply with
his SCP objectives cannot or will not be remedied. Therefore, Father’s first
and third issues on appeal fail.
In his second issue, Father argues that the trial court erred in
terminating his parental rights pursuant to Section 2511(b). This Court has
emphasized, in part:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted)). In addition, our Supreme Court stated that, “[c]ommon
sense dictates that courts considering termination must also consider
whether the children are in a pre-adoptive home and whether they have a
bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013).
Moreover, the Court directed that, in weighing the bond considerations
pursuant to Section 2511(b), “courts must keep the ticking clock of
childhood ever in mind.” Id. at 269. The T.S.M. Court observed that,
“[c]hildren are young for a scant number of years, and we have an
- 12 -
J-S46014-16
obligation to see to their healthy development quickly. When courts fail . . .
the result, all too often, is catastrophically maladjusted children.” Id.Ms. Handberry testified that N.A.S. resides with a kinship care foster
parent, whom she refers to as “mommy,” and that it is a pre-adoptive
placement. N.T., 12/14/15, at 12-13. She testified that N.A.S. is “very
bonded” to her foster parent. Id. at 26. Moreover, Ms. Cannon testified
that N.A.S. does not have a bond with Father. Id. at 33. Ms. Handberry
testified that N.A.S. would not suffer emotional harm if Father’s parental
rights were terminated because she “is in a wonderful home. She’s bonded
and she’s thriving. . . .” Id. at 26.
To the extent that Father asserts terminating his parental rights will
not serve the needs and welfare of N.A.S. because it will not “facilitate
putting another bond in its place,” we disagree. Father’s brief at 16. Father
presents no statutory or case authority to support his assertion, nor are we
aware of any. The foregoing testimonial evidence demonstrates that N.A.S.
has a parent-child bond with her foster mother, and that she has no bond
with Father. As such, we discern no abuse of discretion by the trial court in
concluding that involuntarily terminating Father’s parental rights will serve
the developmental, physical, and emotional needs and welfare of N.A.S.
Accordingly, we affirm the decree pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), and (b).
Decree affirmed.
- 13 -
J-S46014-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2016
- 14 -