In Re: Adoption of: D.J.F. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: D.J.F. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.J.F., FATHER
No. 3605 EDA 2015
Appeal from the Decree Entered November 2, 2015
In the Court of Common Pleas of Chester County
Orphans' Court at No(s): AD-2015-0044
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2016
M.J.F. (Father) appeals from the decree entered by the Court of
Common Pleas of Chester County involuntarily terminating his parental
rights to his son, D.J.F. (Child), born in April of 2007. We vacate and
remand for further proceedings.
This matter began with the filing of a termination petition by L.G.S.
(Mother) and M.S. (Stepfather), seeking the termination of Father’s parental
rights to Child. A hearing was held on October 23, 2015, which resulted in
the decree now on appeal. The court’s decree contains the following factual
information upon which the court based its decision:
While the court does not endorse all of the behaviors of the
custodial parent [Mother] in this case, ultimately the respondent
birth [F]ather only has himself to blame for the situation in
which he finds himself. The court will not recount here the
evidence concerning his long criminal career. He admits that he
is an addict, and that he has “a disease.” That may be an
explanation, but it does not give him a pass. [Father] was given
an opportunity, not once but twice in 2014, to put his son ahead
of his addictions. He was released from jail in January 2014 on
the promise to remain drug–free. He was returned to prison a
few months later having been violated as a result of continuing
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drug abuse. During the time he was out, he did not see his son,
blaming [M]other for refusing to transport the son to New Jersey
for that purpose. He did speak once to his son on the telephone
in April 2014. He did not try to do so again. [Father] was
released from jail on or about November 3, 2014 with the
proviso that any infraction would return him to custody as a
violator. After only one and one-half weeks he was violated
again for drug use and returned to state prison, where he
remains.
He had a decision to make. He made his decision.
[Father] testified he knew that if he kept clean it would speed his
path back to his son, but he did more drugs anyway. On
another occasion in describing his attempts to reach his son by
mail, he testified that while he sent drawings and cards to his
son, he decided to “stay back” in deference to [M]other's wishes,
although he knew that would “hinder communications.” That
was not what was required of him. The summary of these facts
is what directs the court to enter the final decree.
Trial Court Final Decree, 11/2/15, at 1 n.1.
In his brief, Father explains that he and Mother were living together at
the time of Child’s birth until 2010. He also discusses Child’s relationship
with Father’s parents, claiming that paternal grandparents have babysat
Child, have helped financially, and have taken Child on vacations. He then
discusses his drug issues and his guilty plea, which was entered on March
23, 2012, to charges of theft by unlawful taking and burglary for which he
received a ten-year sentence (New Jersey sentence). Much of Father’s
statements center on his allegation about Mother’s attempting to thwart any
regular contact between him and Child. He also acknowledges that his last
contact with Child was in April of 2014. Also, in lieu of face-to-face
communication with Child, Father asserts that he has sent letters and gifts
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to Child through paternal grandmother. However, he indicates that Mother
refused to share her address with him or paternal grandmother and he did
not know if the gifts or letters were received by Child. Father further claims
that he had no updated information about Child’s schooling or his activities.
Father also states that he is considered to be on the prison’s “privileged
unit” due to his good behavior and that he is attempting to enlist in
parenting programs offered to prisoners. Lastly, he discusses his testimony
about his eligibility for parole “on October 5, 2016[,]” and that his maximum
sentence runs until “late 2017, or early 2018.” Father’s brief at 11.1
Following the parental termination hearing, the court entered the
termination decree pursuant to 23 Pa.C.S. § 2511(a)(1), (2) and (b). Father
filed a timely notice of appeal and a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). He now raises one
issue for our review:
Did the trial court lack sufficient evidence, that is, clear and
convincing evidence, and thereby abuse it’s [sic] discretion in
terminating parental rights in this matter, considering Mother’s
continued obstacles, thwarting of Father’s rights, testimony of
continued attempts for contact, Child’s counsel/GAL position, and
best interest and welfare of the Child?
____________________________________________
1
In response to Father’s discussion about his ten-year New Jersey sentence,
in her brief, Mother counters that Father produced no evidence other than
his own testimony that he would be released at the latest in 2017 or early
2018. She notes that Father entered prison on January 30, 2011, and that if
he does not secure early release, he could possibly be incarcerated until
2021.
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Father’s brief at 5 (unnecessary capitalization omitted).
We note that the various assertions of error contained in Father’s
issue, as stated in his brief, consolidate the errors Father listed in his concise
statement of errors. In response to Father’s statement, the court explained:
[Father’s] asserted Error Nos. 2-5 all have the same theme - the
court failed “in fully considering” the facts or positions set forth
in those errors. [Father] does not allege any partiality,
prejudice, bias, ill-will or other alleged wrongdoing by the court
which would support a claim of abuse of discretion. Nor does
[Father] contend that the court reached determinations that
were not supported by the record. Rather, the claim throughout
the Concise Statement is that the court did not consider enough
the various positions and arguments presented and/or advocated
by [Father]. To the contrary, the court's [d]ecision
demonstrates that it considered each of the positions submitted
by the parties and all of the evidence. It thereafter reached an
appropriate conclusion based upon that record.
Trial Court Opinion, 12/8/15, at 1-2.
We review a decree terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court's decision, the decree
must stand. Where a trial court has granted a petition to
involuntarily terminate parental rights, this Court must accord
the hearing judge's decision the same deference that we would
give to a jury verdict. We must employ a broad, comprehensive
review of the record in order to determine whether the trial
court's decision is supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). The trial court is free to believe all, part,
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or none of the evidence presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004). If competent evidence supports the trial
court’s findings, we will affirm even if the record could also support the
opposite result. In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super.
2003).
Termination of parental rights is governed by section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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) (citing 23 Pa.C.S. § 2511,
other 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. R.N.J., 985 A.2d at 276.
This Court must agree with only one subsection of section 2511(a), in
addition to section 2511(b), in order to affirm the termination of parental
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rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Herein, we review the decree pursuant to section 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. § 2511(a)(2), (b).
To satisfy the requirements of 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
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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 M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under section 2511(a)(2), 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).
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme
Court addressed the relevance of incarceration in termination decisions
under section 2511(a)(2). The S.P. Court held 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) where the repeated and
continued incapacity of a parent due to incarceration has caused the child to
be without essential parental care, control or subsistence and that the
causes of the incapacity cannot or will not be remedied.” S.P., 47 A.3d at
828.
As discussed above, Father’s main point is that Mother interferes and
thwarts his attempts to communicate with Child. In other words, Father
claims that it is Mother’s fault that Father did not perform his parental
duties. Clearly, the trial court recognized that Mother’s behavior was not
admirable. However, the court found that despite the chances Father had to
contact Child when he was intermittently released from jail, he did not take
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advantage of these opportunities. Moreover, Father again and again was
found to have violated his probation/parole and as a consequence was
returned to prison. Additionally, Father presented no documentation to
support his statements about his release date on the ten-year New Jersey
sentence.
After reviewing the record in this case, we conclude that the evidence
supports the court’s decree terminating Father’s parental rights to Child in
that Father’s repeated and continued incapacity, neglect, or refusal due to
his incarceration has caused Child to be without essential parental care,
control, or subsistence necessary for his physical or mental well-being. In
addition, the causes of Father’s incapacity, neglect, or refusal cannot or will
not be remedied in that there is no substantiated evidence related to when
Father will be released from prison, and when he will be able to provide
essential parental care to Child. There is only Father’s self-serving
testimony about his release date. Furthermore, Father’s attempts to blame
his lack of contact with Child on Mother appears not to have been believed
by the court or at the very least did not counter his lack of effort to perform
his parental duties. Therefore, we conclude that the court did not abuse its
discretion or err as a matter of law in arriving at its conclusion that Mother
carried her burden proving that Father’s conduct or lack thereof satisfies the
statutory grounds for termination in section 2511(a)(2).
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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).
The only point the court made regarding section 2511(b) was that
Child “was indifferent to [Father], and little pain should result.” Trial Court
Final Decree at n.1. The court also referenced the fact that “[c]hildren are
young for a scant number of years” and that “[t]he court has an obligation
to see to the child’s healthy development quickly.” Id.2 Although these last
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2
We also note that a guardian ad litem (GAL) was appointed by the court
and that Father references the GAL’s position that the court should deny
Mother’s petition. However, the record received by this Court contains no
documentation or testimony from the GAL, the court makes no reference to
the GAL’s opinion, and neither party provides any citation to the record in
regard to anything submitted by the GAL. The only item, which Father
attaches to his brief, is a copy of the GAL’s “Report to the Court.” However,
because the report is not a part of the certified record, we are unable to
consider it. Eichman v. McKeon, 824 A.2d 305, 316 (Pa. Super. 2003)
(Footnote Continued Next Page)
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two statements by the court are true, the court’s one sentence referencing
Child’s indifference to Father and that little pain should result is insufficient
to address the requirements of section 2511(b). Therefore, we are
constrained to vacate the decree terminating Father’s parental rights and
remand the matter so that the parties may present further evidence about
emotional bonds, if any, between Father and Child and, particularly, what
effect a termination of Father’s parental rights would have on Child. See In
re Termination of C.W.S.M., 839 A.2d 398 (Pa. Super. 2003).
Decree affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
_______________________
(Footnote Continued)
(stating “[a]ny document which is not part of the official certified record is
considered to be non-existent, which deficiency may not be remedied by
inclusion in the reproduced record”).
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