In Re: Adoption of A.L.P. Appeal of: C.L.P. father ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.L.P. IN THE SUPERIOR COURT OF
(ADOPTEE'S NAME AS ON BIRTH PENNSYLVANIA
CERTFICATE)
APPEAL OF: C.L.P., FATHER
No. 805 WDA 2016
Appeal from the Order Entered April 28, 2016
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): 60 of 2015
*************************************************************
IN RE: ADOPTION OF E.M.P. (ADOPTEE'S IN THE SUPERIOR COURT OF
NAME AS ON BIRTH CERTIFICATE) PENNSYLVANIA
APPEAL OF: C.L.P., FATHER
No. 806 WDA 2016
Appeal from the Order April 28, 2016
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): 61 of 2015
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 03, 2016
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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C.L.P. (“Father”) appeals from the orders entered April 29, 2016, in
the Court of Common Pleas of Westmoreland County, which involuntarily
terminated his parental rights to his minor daughters, E.M.P., born in July of
2012, and A.L.P., born in May of 2013 (collectively, “the Children”).1 After
careful review, we affirm.
We summarize the relevant factual and procedural history of this
matter as follows. On or about October 20, 2012, Father and Mother
brought E.M.P. to the hospital “with complaints of shortness of breath and
concerns for a possible apneic spell.” Order of Adjudication and Disposition
(E.M.P.), 1/28/2013, Findings of Fact at ¶ 2. Upon examination, E.M.P. was
found to be in critical condition. Id. at ¶ 6. Radiographs and a skeletal
survey revealed that E.M.P. was suffering from numerous injuries, including
“a fracture of the left parietal bone, with soft-tissue injuries; fractures of ribs
2-9 on the right, and ribs 3-11 on the left, an acute right fracture of the
femur, fractures of the right and left radius and ulna, which were beginning
to heal, and a subdural hemorrhage.” Id. at ¶ 16. E.M.P. nearly died from
her injuries. Id. at ¶ 24.
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1
The Children’s mother, E.M.F. (“Mother”), executed consent to adoption
forms on July 2, 2015. On April 26, 2016, the orphans’ court entered orders
confirming Mother’s consent and terminating her parental rights to the
Children. Mother has not filed a brief in connection with this appeal, nor has
she filed her own separate appeal.
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E.M.P. was adjudicated dependent following a hearing on January 28,
2013, and aggravated circumstances were found as to both parents. Father
and Mother were incarcerated that same day, and were charged with
inflicting E.M.P.’s injuries. N.T., 4/28/2016, at 17. Father has not had any
contact with E.M.P. since January 10, 2013. Id. at 20. On December 5,
2014, Father was convicted of aggravated assault, conspiracy, and
endangering the welfare of a child, with respect to E.M.P. Id. at 12-15, 37-
38; Father’s criminal docket at 4, 12. Father currently is serving an
aggregate sentence of nine to eighteen years’ incarceration, which he
received on March 19, 2015. N.T., 4/28/2016, at 13-15, 37-38; Father’s
sentencing order at 1-2. As a condition of his sentence, Father is not
permitted to have any contact with E.M.P., and is not permitted to have
unsupervised contact with any other minor child. Father’s sentencing order
at 1.
A.L.P. was born while Father was incarcerated, and was adjudicated
dependent by order dated July 18, 2013. N.T., 4/28/2016, at 34; Order of
Adjudication and Disposition (A.L.P.), 7/18/2013. Father has never had
contact with A.L.P. N.T., 4/28/2016, at 21.
On July 7, 2015, the Westmoreland County Children’s Bureau
(“WCCB”) filed petitions to involuntarily terminate Father’s parental rights to
the Children. The orphans’ court held a termination hearing on April 28,
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2016. Following the hearing, on April 29, 2016, the court entered orders
terminating Father’s parental rights.2 Father timely filed notices of appeal
on May 31, 2016, along with concise statements of errors complained of on
appeal.3
Father now raises the following issue for our review.
I. Whether the [orphans’] court erred in terminating [Father’s]
parental rights to the minor children, [the Children], for the
reason that the court’s determination that [Father’s] parental
rights to the said children should be terminated constituted an
abuse of discretion?
Father’s brief at 6 (unnecessary capitalization omitted).
We consider Father’s claim 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
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2
The orphans’ court did not file a written opinion in this matter. Instead,
the court provided a brief summary of its findings at the conclusion of the
termination hearing. See N.T., 4/28/2016, at 96-102.
3
Father had thirty days to appeal the termination orders, meaning that his
notices of appeal would normally be due by May 29, 2016. See Pa.R.A.P.
903(a) (“Except as otherwise prescribed by this rule, the notice of appeal
. . . shall be filed within 30 days after the entry of the order from which the
appeal is taken.”). However, because May 29, 2016, was a Sunday, and
because court was closed for Memorial Day on May 30, 2016, Father’s
notices of appeal were timely filed on May 31, 2016. See 1 Pa.C.S.A.
§ 1908 (“Whenever the last day of any such period shall fall on Saturday or
Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation.”).
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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. 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).
In this case, the orphans’ court terminated Father’s parental rights to
E.M.P. pursuant to Sections 2511(a)(1), (2), (5), (8), (9), and (b). The
court terminated Father’s parental rights to A.L.P. pursuant to Sections
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2511(a)(1), (2), (5), (8), and (b). We need only agree with the orphans’
court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we
analyze the court’s decision to terminate under Sections 2511(a)(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:
***
(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)(2), (b).
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We first address whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted)). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted). “[A] parent’s incarceration is relevant to the
section (a)(2) analysis and, depending on the circumstances of the case, it
may be dispositive of a parent’s ability to provide the ‘essential parental
care, control or subsistence’ that the section contemplates.” In re A.D., 93
A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of S.P., 47
A.3d 817 (Pa. 2012)).
Instantly, Father argues that WCCB failed to prove that his parental
rights should be terminated by clear and convincing evidence. Father’s brief
at 15-16. While Father acknowledges that he was convicted of assaulting
E.M.P. and is serving a lengthy prison sentence, Father insists that he is
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innocent and has appealed his conviction to the Superior Court. Id. In
addition, Father contends that he completed all of the services that he is
capable of completing while incarcerated. Id. at 16.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by involuntarily terminating
Father’s parental rights to E.M.P. As discussed above, Father was convicted
of inflicting serious injuries on E.M.P. in October of 2012, specifically,
aggravated assault and endangering the welfare of a child, and is currently
serving an aggregate sentence of nine to eighteen years’ incarceration. As a
condition of his sentence, Father is not permitted to have any contact with
E.M.P. Given Father’s abuse, and his lengthy resulting prison sentence,
there is clear and convicing evidence that he is incapable of being a parent
to E.M.P. Moreover, Father will not be able to remedy his parental
incapacity.4
The record equally supports the decision of the orphans’ court to
terminate Father’s parental rights to A.L.P. A.L.P. has never met Father and
has no relationship with him. By the time Father completes his minimum
sentence in January of 2022, A.L.P. will be nearly nine years old. Even
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4
While Father contends that he is innocent, and that he has appealed his
conviction to the Superior Court, this argument merits no relief. Our Court
recently affirmed Father’s judgment of sentence in an unpublished
memorandum. In order to protect the Children’s identity, we do not include
a citation to the memorandum affirming Father’s judgment of sentence in
the instant decision.
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assuming that Father is paroled at that time, he will be permitted to have
only supervised visits with A.L.P. as a condition of his sentence. Father
simply is not capable of caring for A.L.P., and her life should not be put on
hold any longer. As this Court has stated, “a child’s life cannot be held in
abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court cannot and will not subordinate
indefinitely a child's need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006).
We next consider whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. 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. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
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any existing parent-child bond can be severed
without detrimental effects on the child.
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).
Here, Father argues that the orphans’ court abused its discretion
because it “failed to give adequate consideration to the effect that the
proposed termination would have on the minor children’s needs and
welfare.” Father’s brief at 16-17. Father emphasizes that WCCB did not
present “testimony of a licensed psychologist of other sufficient evidence”
when addressing this issue. Id. at 18.
We again conclude that the orphans’ court did not abuse its discretion.
The record reveals that Father has not had any contact with E.M.P. since he
was incarcerated in January of 2013, and that Father has never had contact
with A.L.P. Thus, it is beyond cavil that the Children do not have a bond
with Father. See In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008)
(“In cases where there is no evidence of any bond between the parent and
child, it is reasonable to infer that no bond exists.”). Further, while Father
suggests that WCCB should have presented the testimony of a psychologist,
it is well-settled that a court in a termination proceeding “is not required by
statute or precedent to order a formal bonding evaluation be performed by
an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation
omitted).
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Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Father’s parental rights to
the Children, we affirm the orders of the orphans’ court.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
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