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


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  • J. S10044/20
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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