Adoption of: N.R., Appeal of: J.S., Natural Father ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: N.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S., NATURAL FATHER : No. 1829 MDA 2019
Appeal from the Decree Entered October 22, 2019,
in the Court of Common Pleas of Franklin County
Orphans’ Court Division at No. 61 ADOPT 2019
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 01, 2020
J.S. (“Father”) appeals from the October 22, 2019 decree entered in the
Court of Common Pleas of Franklin County, Orphans’ Court Division,
involuntarily terminating his parental rights to his dependent male child, born
in June 2018 (the “Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§§ 2511(a)(1), (2), and (b).1 We affirm.
The orphans’ court set forth the following factual findings:
[In June] 2018, [Franklin County Children & Youth
Service (the “Agency”)] received a referral concerning
[the Child,] a newborn[,] who was in the Newborn
Intensive Care Unit (NICU) at the Chambersburg
Hospital; the referral relayed concerns regarding
[M]other’s ability to provide the [C]hild with basic
care. The following day, the Agency conducted a
hospital visit to determine whether Mother would be
able to care for [the Child] upon discharge. Mother
related Father was incarcerated at the Franklin County
1 We note that on the same date, the orphans’ court entered a decree that
terminated the parental rights of the Child’s natural mother, I.R. (“Mother”).
Mother is not a party to this appeal.
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Jail[Footnote 2] and was facing deportation, leaving
her without sufficient family supports.
[Footnote 2] The record reveals the
following concerning Father’s
incarceration[:] On February 6, 2018,
Father was charged by the Chambersburg
Police Department with two third degree
felonies—Dissemination of Sexually
Explicit Materials to a Minor and Unlawful
Contact with a Minor—as well as felony
counts of Identify Theft and Theft by
Unlawful Taking—Movable Property. As a
result, Father was incarcerated at the
Franklin County Jail on February 6. He
subsequently pled guilty to the
Dissemination charge and entered a plea
of nolo contendere on the Identity Theft
charge.
The February 2018[] charges were not
Father’s first run-in with the law. In July
2014, he was charged with Simple Assault
and was placed on Accelerated
Rehabilitative Disposition (ARD).
However, Father later violated the
conditions of ARD, and his participation in
ARD was revoked as a result. In April
2015, Father was charged with Theft by
Deception—False Impression, to which he
later pled guilty.
[When the Child] was discharged from Chambersburg
Hospital [eight days after his birth,] the [orphans’
c]ourt immediately entered an Order for Emergency
Protective Custody; [the Child] was placed in the
temporary physical and legal custody of the Agency,
as [the orphans’ court] determined that allowing [the
Child] to remain in the home would be contrary to his
welfare, given Mother’s issues with mental health and
substance abuse, as well as her overall parenting
ability.
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That same day, a caseworker for the Agency visited
Father at the Franklin County Jail and advised him of
[the Child’s] placement with the Agency. Until that
meeting, Father was unaware [the Child] had been
born. On June 19, 2018, the Agency attempted to
contact Father again, but was advised Father had
been transferred out of the Franklin County Jail the
previous day. At the time of the Adjudication and
Disposition Hearing, which occurred on June 28, 2018,
the Agency was without knowledge of Father’s
location.
In July 2018, the Agency became aware Father had
been transferred to York County prison where he was
in Immigration and Customs Enforcement (ICE)
custody awaiting deportation. Because [the Child]
was declared dependent, Father was ordered to
establish and maintain consistent contact with [the
Child] and the Agency if Father wished to be
considered a resource for [the Child].[Footnote 3]
[Footnote 3] Had Father been released
from custody at any point during this
process, the Agency indicated further
evaluation would be necessary to
determine whether any additional
parenting service was needed.
Hannah Crean, a caseworker with the Agency who was
assigned to [the Child’s] case, testified at the hearing
to Father’s contacts with the Agency. She stated
Father sent many letters to the Agency, but had never
sent any letters or other correspondence directed to
[the Child].[Footnote 4] In his letters to the Agency,
Father focused primarily on his request that his
mother, Ms. [S.], be considered a resource for [the
Child]. The letters generally did not inquire into [the
Child’s] well-being, though he did express a desire to
be there for [the Child] and make sure [the Child] was
being cared for.
[Footnote 4] Ms. Crean testified that
Father has in fact been provided with the
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foster agency’s information, including its
mailing address.
With respect to Father’s request that his mother[,
Ms. S.,] be awarded custody of [the Child], Ms. Crean
testified that the Agency made efforts to determine
whether the request was tenable. Specifically, the
Agency conducted an Interstate Compact on the
Placement of Children (ICPC) study on
Ms. [S.][Footnote 5]
[Footnote 5] This is legally required
before approving placement outside of
Pennsylvania, and Ms. [S.] lives in North
Carolina.
The study was denied, however, as Ms. [S.] failed to
provide the necessary information requested of her.
In particular, Ms. [S.] was residing with another
individual who the Agency attempted to collect
information on for the purpose of completing
background checks; information on this individual was
not provided.[Footnote 6] Further, Ms. [S.] has never
met [the Child].
[Footnote 6] The Agency communicated
with Ms. [S.] through written
correspondence. While Ms. Crean
conceded the correspondence was in
English although Ms. [S.] only speaks
Haitian Creole, Ms. [S.] was able to
respond to the letter indicating she was
willing to be a resource for [the Child].
While Father was at the York County prison, the
Agency made several attempts to contact him and set
up phone conferences both for court purposes and to
update him on [the Child’s] status. Those attempts
were all unsuccessful, though there is no allegation
this was due to Father’s refusal to cooperate.
In May 2019, Father was relocated to the Clinton
County correctional facility where he remains to this
day. While he finished serving his criminal
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incarceration, he continues to be held in ICE custody
awaiting deportation, and, according to
representations by authorities at Clinton Correctional,
will not be released from prison. Because Father has
been incarcerated since [the Child’s] birth, Father has
never met [the Child]; as such, Ms. Crean testified
she has “no reason to believe there is a bond or
attachment” between the two.
On the other hand, Ms. Crean stated [the Child] has
been with his foster parents for fifteen months, and
they are willing to be a permanent resource for him;
in her opinion, [the Child’s] foster parents are meeting
“all of his needs, welfare, and emotional needs.”
Orphans’ court opinion, 11/25/19 at 2-6 (record citations omitted).
At the conclusion of the hearing, the orphans’ court entered the order
involuntarily terminating Father’s parental rights to the Child. Father filed a
timely notice of appeal, together with a concise statement of errors
complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i).
Thereafter, the orphans’ court filed its Rule 1925(a)(2)(ii) opinion.
Father raises the following issue for our review:
Did the [orphans’ c]ourt err in summarily
[t]erminating [Father’s] parental rights when limited
effort was engaged in by the Agency possessing [the
Child], to unite the [C]hild with [Father’s m]other so
to keep the familial bond in place, pending [Father’s]
availability and where [Father] was not offered
counsel until after a filing to terminate his rights
occurred?
Father’s brief at 6.
At the outset, we note that Father raised the following “reason for his
appeal” in his Rule 1925(a)(2)(i) statement:
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Failure of preventative agencies to meet burdens of
25 Pa.C.S.[A. §] 2511(a)(2), (a)(5), (a)(8), by [the]
fact that an agency did not exercise diligent efforts to
facilitate [Father’s] requests to maintain his parental
relationship via placement of the [C]hild with his
mother.
Father’s Rule 1925(a)(2)(i) concise statement, 11/6/19.
In his appellate brief, Father contends that he “was not appointed an
attorney at the time of the [A]gency’s intervention in the case, but only after
[the Agency] filed a petition to terminate his rights.” (Father’s brief at 9.)
Even if Father preserved this claim with the orphans’ court by including it in
his concise statement as required by Pa.R.A.P. 1925(b)(4)(vii), the issue
would not properly be before us. Father appeals the termination order on the
adoption docket. Father did not take an appeal from a final order on the
dependency docket. Consequently, claims of error arising from the
dependency proceeding are not properly before us.
We further note that the issue raised in Father’s concise statement is
not entirely consistent with the issue raised in his brief. Nevertheless, we
conclude that the issue Father raises for our review is fairly suggested in his
concise statement; specifically, that the orphans’ court erred in terminating
his parental rights because the Agency only made a limited effort to place the
Child with Father’s mother, Ms. S.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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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.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “If
the factual findings are supported, appellate courts
review to determine if the trial court made an error of
law or abused its discretion.” Id. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe
all, part, 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) (citation omitted). “[I]f 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) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
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
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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). We have
defined clear and convincing evidence as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
Here, the orphans’ court terminated Father’s parental rights pursuant to
Sections 2511(a)(1), (2), and (b). Father, however, advances no claim that
the orphans’ court erred or abused its discretion in terminating his parental
rights under any of those sections. Rather, Father contends that the orphans’
court erred in terminating his parental rights because the Agency engaged in
limited efforts to unite the Child with Father’s mother, Ms. S. It is well settled
that neither Section 2511(a)(2) nor (b) requires an orphans’ court to consider
the reasonable efforts provided to a parent prior to terminating parental
rights. In re D.C.D., 105 A.3d 662, 672 (Pa. 2014); see also In re C.K.,
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165 A.3d 935, 944 (Pa.Super. 2017) (“parental rights may be terminated even
if the agency fails to make reasonable efforts to reunify the family”);
In re B.L.W., 843 A.2d 380, 384 n.1 (Pa.Super. 2004) (en banc) (“the
adequacy of [the agency’s] efforts towards reunification is not a valid
consideration at the termination of parental rights stage, as the law allows
[the agency] to ‘give up on the parent’” (citation and internal brackets
omitted).) Clearly, then, neither Section 2511(a)(2) nor (b) requires the
orphans’ court to consider the reasonable efforts to unite the Child with
Father’s mother prior to terminating Father’s parental rights.2 Nevertheless,
we will proceed to review the orphan court’s termination order.
We have long held that, in order to affirm a termination of parental
rights, we need only agree with the orphans’ court as to any one subsection
of Section 2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d at
384. We will, therefore, analyze the orphans’ court’s termination order
pursuant to Subsections 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
2 We note that the record reflects that the Agency did make efforts to
determine whether Ms. S. was a viable resource. The inquiry ended, however,
when Ms. S. failed to provide the Agency with information that it requested
which was necessary to the determination. (Notes of testimony, 10/22/19
at 11.)
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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).
We first address whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
To terminate parental rights under section
2511(a)(2), the moving party must produce clear and
convincing evidence of the following elements:
“(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).
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....
The Pennsylvania Supreme Court has instructed that
incarceration,
while not a litmus test for termination, can
be determinative of the question of
whether a parent is incapable of providing
“essential parental care, control or
subsistence” and the length of the
remaining confinement can be considered
as highly relevant to whether “the
conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not
be remedied by the parent,” sufficient to
provide grounds for termination pursuant
to 23 [Pa.C.S.] § 2511(a)(2). See [In re:
E.A.P., 944 A.2d 79, 85 (Pa. Super.
2008)] (holding termination under
§ 2511(a)(2) supported by mother’s
repeated incarcerations and failure to be
present for child, which caused child to be
without essential care and subsistence for
most of her life and which cannot be
remedied despite mother’s compliance
with various prison programs).
Accordingly, courts properly consider the
incapacitating effect of a parent’s incarceration and
whether the duration of that incarceration would
prevent a parent from remedying the incapacity. See
id.; see also In re D.C.D., 629 Pa. 325, 105 A.3d
662, 677 (2014) (holding that trial court properly
concluded that father's incarceration rendered him
“incapable of providing care for his child and that [his]
incapacity will exist at least until [f]ather’s minimum
release date [four years later], when [c]hild will be
seven”).
In re Adoption of: A.C., 162 A.3d 1123, 1131-1132 (Pa.Super. 2017)
(brackets in original).
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Here, the record reflects that at the time of the Child’s birth, Father was
incarcerated and was not aware that the Child had been born. When the
Agency filed the termination petition, Father remained incarcerated.
Moreover, at the time of the termination hearing, which was 15 months after
the Child’s birth, Father was still incarcerated and was awaiting deportation.
Indeed, Father testified that he did not know when he would be an available
resource for the Child. (Notes of testimony, 10/22/19 at 50-51.) The record
further reflects that Father was required to establish consistent contact with
the Child, which he failed to do. Therefore, we conclude that the record
supports the orphans’ court’s factual findings and that the orphans’ court did
not abuse its discretion in terminating Father’s parental rights under
Section 2511(a)(2). The record demonstrates that the conditions that existed
upon removal establish repeated and continued incapacity, abuse, neglect, or
refusal of Father that caused the Child to be without essential parental care,
control, or subsistence necessary for his physical or mental well-being. The
record also supports the orphans’ court’s conclusion that Father continued to
lack capacity to parent the Child.
We now turn to whether termination was proper under Section 2511(b).
As to that section, our supreme court has stated as follows:
[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
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love, comfort, security, and stability.” In re K.M., 53
A.3d 781, 791 (Pa.Super. 2012). In In re E.M., 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. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
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).
Moreover,
[w]hile 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,
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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).
Our supreme court has 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.”
T.S.M., 71 A.3d at 268. 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,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
Here, in terminating Father’s parental rights under Section 2511(b), the
orphans’ court found that:
[Father] has never met [the Child]. While he may
have love and concern for the [C]hild, [the orphans’
court] cannot find that a parent/child bond exists.
[Father] has never provided for the [C]hild’s physical,
emotional, [and] moral well[-]being or welfare, and is
in no position to do so in the foreseeable future.
On the other hand, the [C]hild is in a foster family
where his needs are met. The foster family has
offered themselves as a permanency resource. It is
in the [C]hild’s best interest to move the [C]hild
forward toward permanency.
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Decree, 10/22/19 at 4.
Our review of the record supports this determination, and the orphans’
court did not abuse its discretion in terminating Father’s parental rights to the
Child.
Accordingly, we find no abuse of discretion and conclude that the
orphans’ court appropriately terminated Father’s parental rights to the Child
under Sections 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2020
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