In the Interest of: A.E.L.C., Appeal of: T.C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.E.L.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.C., FATHER : No. 101 MDA 2020
Appeal from the Decree Entered December 16, 2019
In the Court of Common Pleas of Luzerne County
Orphans' Court at No(s): A-8889
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 01, 2020
Appellant, T.C. (“Father”), appeals from the decree entered in the
Luzerne County Court of Common Pleas, Orphans’ Court, which granted the
petition of Children and Youth Services (“CYS”) for involuntary termination of
Father’s parental rights to his minor child, A.E.L.C. (“Child”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Child was born in May 2018. At the time of Child’s birth, Mother and Child
tested positive for cocaine. CYS became involved, and reached out to Father
on three separate occasions to assess his prospects as a placement resource.
Father, however, repeatedly denied CYS access to his home. The court
subsequently granted CYS’s request for an emergency shelter care order,
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1The court also terminated the parental rights of E.E (“Mother”) who is not a
party to the current appeal.
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adjudicated Child dependent, and placed her in foster care. CYS also
developed a family service plan that ordered Father to complete a drug and
alcohol evaluation and follow any resulting recommendations; complete a
mental health assessment and follow any resulting recommendations;
complete a parenting education course; participate in the color call-in system;
and maintain safe and stable housing.
Father visited Child for a few months after her placement. In October
2018, Father started a new job in New York and ended his visitation with Child
shortly thereafter. Father’s last recorded visit with Child occurred on
November 2, 2018. Father lived in New York until April 2019. During that
time, Father failed to provide CYS with a New York mailing address or updated
phone number.
On January 7, 2019, the court found aggravated circumstances existed
in Father’s case, and relieved CYS of its obligation to make reasonable efforts
to reunify Child with Father. Specifically, the court found Father’s parental
rights to another child had previously been involuntarily terminated.
On February 5, 2019, Father attended his last permanency review
hearing. CYS did not have contact with Father again until April 2019, when
Father called CYS caseworker, Gabrielle Stelmak, to inquire about his options
to participate in the court-ordered mental health evaluation, drug and alcohol
evaluation, and parenting course. Although no longer required to assist with
Father’s reunification efforts, Ms. Stelmak gave Father the contact information
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for various service providers.
On May 14, 2019, CYS filed a petition for involuntary termination of
Father’s parental rights. As of CYS’s filing, Father had not completed the
court-ordered services. The court conducted termination hearings on August
22, 2019 and September 10, 2019. Ms. Stelmak and Father testified during
both hearings. Significantly, Ms. Stelmak described Father’s noncompliance
with the family service plan and his absence from Child’s life. Ms. Stelmak
also stated that Child had assimilated with her foster family and would not
suffer any detrimental effects should Father’s rights be severed. In contrast,
Father testified that CYS was uncooperative and impeded his ability to reunify
with Child. Furthermore, Father stated that neither his drug and alcohol
evaluation nor his mental health evaluation presented additional
recommendations that required Father to follow through with treatment.
On December 16, 2019, the court determined that Child had been out
of Father’s care for at least twelve (12) months, Father had not remedied the
conditions which had led to removal, and termination would be in Child’s best
interests. Consequently, the court terminated Father’s parental rights. On
January 15, 2020, Father timely filed his notice of appeal and concise
statement of errors complained on appeal.
Father raises the following issue for our review:
Whether the court erred in finding that [CYS] proved the
elements of 23 Pa.C.S.A. § 2511(a)(8) and 23 Pa.C.S.A. [§]
2511(b) through clear and convincing evidence?
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(Father’s Brief at 4).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … 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 B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
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(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
CYS filed a petition for the involuntary termination of Father’s parental
rights to Child on the following grounds:
§ 2511. Grounds for involuntary termination
(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:
* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
* * *
(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
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are first initiated subsequent to the giving of notice of the
filing of the petition.
* * *
23 Pa.C.S.A. § 2511(a)(8), (b). “Parental rights may be involuntarily
terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P., supra
at 1117.2 When conducting a termination 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… 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
In his sole issue on appeal, Father submits the court failed to properly
consider his progress towards remedying the conditions that led to the
termination of his parental rights. Specifically, Father avers the court wrongly
favored the caseworker’s testimony regarding Father’s efforts and progress,
rather than Father’s own testimony. Father alleges he completed all feasible
requirements of the family service plan. Moreover, Father asserts that the
bond he had formed with Child through their early visitation would have
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2CYS also sought the involuntary termination of Father’s parental rights under
Section 2511(a)(1), but we need only analyze Section 2511(a)(8) for purposes
of this appeal.
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persisted had CYS not interfered and filed for termination. Father concludes
the trial court erred in terminating his parental rights under Section
2511(a)(8) and (b), and this Court must reverse. We disagree.
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) [t]he child has been removed from
parental care for 12 months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to exist;
and (3) termination of parental rights would best serve the needs and welfare
of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super.
2003). “Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In re
A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period has
been established, the court must next determine whether the conditions that
led to the child’s removal continue to exist, despite the reasonable good faith
efforts CYS supplied over a realistic time. Id. Termination under Section
2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of CYS’s services. In re Adoption of T.B.B.,
835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
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are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, 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., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have his… rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
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genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert [himself] to take and maintain
a place of importance in the child’s life.
Parental 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… ability, even in difficult circumstances. A
parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with …her physical and
emotional needs.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of his… child is converted, upon
the failure to fulfill his… parental duties, to the child’s right to have proper
parenting and fulfillment of [the child’s] potential in a permanent, healthy,
safe environment.” Id. at 856.
In the instant case, the court evaluated Father’s Section 2511(a)(8)
claim as follows:
(1) TIME PERIOD OF REMOVAL OF CHILD
It is undisputed that [Child] has been removed from the
custody of…Father since May 14, 2018. Accordingly, this
removal has persisted well in excess of the statutorily
required twelve (12) months since the date of [Child’s]
placement. Thus, the requisite minimum of at least 12
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months from removal of minor [Child] from Father has
elapsed so as to comply with this section of 2511(8).
(2) CONDITIONS CONTINUING TO EXIST
It is clear from the testimony of witnesses and evidence
presented that Father has been unable to resolve his
substance abuse, concerns with parenting skills, and his
mental health issues.
Ms. Stelmak testified that…[Child] was born [in] May []
2018 and the date of placement for [Child] was May 14,
2018. According to Ms. Stelmak, the reason for placement
was that Mother tested positive for cocaine and marijuana
at the time of [Child’s] birth. [Child], at the time of her
birth, also tested positive for cocaine. Ms. Stelmak indicated
that on three separate occasions, the agency attempted to
reach out to Father in order to assess his residence;
however, Father refused access to the agency on all these
occasions. Ms. Stelmak indicated that [Child’s] sibling was
deemed dependent and was in the custody of [CYS]. She
stated that Father was not compliant with court ordered
services for substance abuse, parenting, or mental health
treatment.
Ms. Stelmak testified that Father was ordered to comply
with a family service plan which required a drug and alcohol
evaluation, toxicology screens, maintenance of safe and
stable housing, completion of a parenting education course,
submission to a mental health assessment, and following all
recommended services. Ms. Stelmak testified that the court
entered an Order on January 7, 2019 finding aggravated
circumstances in the dependency case. As a result, [CYS
was] relieved of efforts to reunify [Child] with [her] parents.
Ms. Stelmak explained that aggravated circumstances were
found due to an involuntary termination of parental rights
with respect to another child of the natural parents. …
Ms. Stelmak testified that prior to the finding of aggravated
circumstances, Father did not complete any of the required
services in the family service plan in order to reunify with
his daughter.
Ms. Stelmak testified that she received a call from Father in
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mid-April of 2019 regarding the services. Ms. Stelmak
stated that even though reasonable efforts to reunify were
not required to be made of [CYS], she still provided Father
with the names and telephone numbers of service providers
such as parenting services, substance abuse services, and
mental health services. Ms. Stelmak indicated that…Father
did not provide [CYS] with any documentation verifying that
he completed the court ordered services prior to the date of
filing of the petition to terminate his parental rights on May
14, 2019.
Ms. Stelmak indicated that she spoke with a service provider
from Wyoming Valley Alcohol and Drug Services who
indicated that Father did not complete any programs. It was
recommended that [F]ather participate in individual
outpatient therapy and weekly individual sessions. Father
participated in three of those sessions and then stopped
attending the sessions. Ms. Stelmak testified that the last
contact that Father had with Wyoming Valley Alcohol and
Drug Services was on May 24, 2018. Ms. Stelmak also
testified that on November 25, 2018[,] Father was “closed
out” from the Family Service Association due to Father’s
noncompliance.
With respect to mental health, Ms. Stelmak received a
report from Northeast Counseling Center regarding Father
which stated that in May 2019 he participated in an
evaluation which revealed that Father had a diagnosis of
moderate cannabis use disorder. Ms. Stelmak stated that
Father did not believe that he had any addiction to cannabis.
Ms. Stelmak stated that since Father was taking medication
for his seizure disorder, he was advised not to use his
medication and to refrain from consuming any alcohol or
any type of non-prescribed drug. Father was advised to
consult with a physician and was given a lab order
requesting a toxicology screen. One week later, Father no
longer wanted to engage in services and since there was no
referral from [CYS], Father was discharged.
Ms. Stelmak testified that she did not believe…Father
remedied the circumstances which led to [Child’s]
placement. She stated that Father did not provide any proof
verifying that he completed the services required of him.
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Ms. Stelmak testified that since the date of placement,
Father was afforded visitation with [Child]. Ms. Stelmak
stated that Father was visiting with [Child] until November
2, 2018. Father visited with [Child] at a facility known as
“Vision Quest.” Father was then closed out on November 7,
2018 due to his lack of participation in the visits. [CYS] sent
a letter to Father advising him to take part in visits on
Tuesdays and Thursdays from 9:00 a.m. to 12:00 p.m. at
the [CYS] visitation center. Ms. Stelmak stated she had
texted Father several times; however, the messages came
back as non-deliverable. Ms. Stelmak indicated that Father
only provided her with one phone number. On cross
examination, Ms. Stelmak stated that Father’s visits at
Vision Quest were terminated due to his lack of attendance.
Ms. Stelmak testified that she sent the aforesaid letter
pertaining to the visits changing to [CYS] to the address
provided by Father. Ms. Stelmak stated that if Father had
moved from his address, it was his responsibility to notify
[CYS] within twenty-four (24) hours of any changes to his
address or phone number. Ms. Stelmak had learned that
Father moved from his address; however, Father never
notified Ms. Stelmak of his change of address or phone
number. Ms. Stelmak stated that throughout the placement
of [Child], Father did not keep consistent contact with Ms.
Stelmak in order to inquire about his daughter.
Ms. Stelmak testified that on December 4, 2018, she
received a text message from Father stating that he was not
able to visit with his daughter at [CYS] because he was
working in New York. Ms. Stelmak testified that Father must
have received the letter from [CYS] in November 2018
which notified him that the visits would be taking place at
[CYS] on Tuesdays and Thursdays.
Father testified that he tried to contact M[s]. Stelmak and
left her several text messages. He stated that he went to
the [CYS] office a few times and brought gifts with him for
[Child]. Father stated that he moved out of his home in
September 2018 and that he did notify Ms. Stelmak over
the phone of his new address. Father further testified that
he was never notified by Ms. Stelmak by text message or
telephone call that his visits at Vision Quest were
terminated. He also stated that he was never notified of
same by Vision Quest.
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Father did admit that after his last visit on November 2,
2018, he contacted Ms. Stelmak to advise her that he took
a job in New York and that he would be working there for “a
while.” Father wanted to set up a different visitation
schedule upon his return. Father stated that he remained
in New York until April 2019 when his job was completed.
Father stated that he did have a telephone conversation with
Ms. Stelmak in which she advised him that visits would occur
on Tuesdays and Thursdays. However, Father was not able
to attend these visits due to his employment in New York.
This [c]ourt finds Father’s testimony to be inconsistent.
Father originally testified that Ms. Stelmak did not provide
him with any names of treatment centers and told him he
must do it on his own. Then Father changed his testimony
and admitted that Ms. Stelmak provided names of certain
treatment providers that he could contact. The [c]ourt finds
that although Ms. Stelmak told Father that she was not
permitted to refer him to a treatment center, she
recommended the names and phone numbers of certain
treatment providers for Father. The [c]ourt finds Father’s
testimony to not only be inconsistent, but also not credible
and finds Ms. Stelmak’s testimony to be credible.
The [c]ourt finds that the conditions that led to [Child’s]
removal from Father’s care and into placement were
Father’s inability to complete his parenting courses,
substance abuse treatment and mental health treatment.
The [c]ourt has performed the above extensive analysis in
taking testimony and finding credible evidence in concluding
that Father did not complete his court ordered services.
Therefore, the conditions that gave rise to placement
continue to exist.
(3) NEEDS AND WELFARE OF THE CHILD
* * *
[CYS] presented credible testimony regarding the needs,
welfare and best interest of [Child] in relation to her Father.
Ms. Stelmak testified that [Child] has been in placement
with the foster parents since May 2018. Ms. Stelmak
testified that the foster parents also adopted another child
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and there is another foster child with them in the home, in
addition to [Child]. She testified that [Child] has assimilated
into the family. According to Ms. Stelmak, she visited the
foster home on a monthly basis. She testified that [Child]
has a bond with her foster siblings and her foster parents.
Ms. Stelmak stated that [Child] enjoys hearing music in the
house and there are also many toys in the house for [Child]
to play with.
Ms. Stelmak stated that the foster parents meet [Child’s]
physical needs. They provide her with shelter, clothing, and
food. They also take [Child] to her doctor’s appointments.
In addition, the foster parents meet [Child’s] developmental
needs. Ms. Stelmak stated that the foster mother
homeschools her oldest daughter and includes [Child] in
some of the activities at home. The foster parents also meet
[Child’s] emotional needs. They provide her with comfort
when she’s sad. They laugh with her when she’s happy, and
celebrate birthdays with her, in addition to holidays and
family events.
Ms. Stelmak describes the relationship between the foster
parents and [Child] as a parent/child relationship. [Child]
has been residing with the foster parents for one year. Ms.
Stelmak testified that she had the opportunity to observe
some interaction between [Child] and…Father. Ms. Stelmak
testified that Father had not visited with [Child] since
November 2018 when [Child] was six months old. As of the
date of the hearing, [Child] was 16 months old.
Ms. Stelmak testified that the foster parents wish to adopt
[Child]. The foster parents understand that in the event
they do adopt [Child], [Child] will have all the rights of a
biological child and could inherit from their estate. Ms.
Stelmak testified that the foster parents do not have any
reservations in their adoption of [Child].
Ms. Stelmak also testified that she did not believe that
[Child] would suffer any detrimental impact or effect in the
event the [c]ourt terminates…Father’s parental rights. Ms.
Stelmak believes that adoption of [Child] by the foster
parents would be in [Child’s] best interest.
(Trial Court Opinion, filed February 14, 2020, at 5-13) (internal citations and
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footnotes omitted). Following a comprehensive review of the record, in light
of the applicable law, we accept the court’s conclusions. Child has been
removed from Father for a period in excess of twelve months, and Father has
failed to comply with the court-ordered services. Additionally, remaining with
Child’s foster parents is in Child’s best interest. Accordingly, we agree that
termination was appropriate pursuant to 23 Pa.C.S.A. § 2511(a)(8).
Similarly, the record supports the court’s Section 2511(b) conclusions
as well. The notes of testimony reveal Father’s lack of affirmative efforts to
participate in Child’s life. See In re B., N.M., supra at 855 (requiring parents
to demonstrate “genuine effort to maintain communication and association
with the child”). Father has not visited Child since November 2, 2018. (See
N.T. Termination Hearing, 8/22/19, at 21). Although Father explained his lack
of visitation as a consequence of working out of state, he made no effort to
remain otherwise active in Child’s life by providing financial support, sending
gifts, or even inquiring about Child’s wellbeing during his absence. (Id. at 22-
23). As a result, Ms. Stelmak concluded Child “doesn’t really have a
relationship or bond with [Father] at this time.” (Id. at 23).
In contrast, Ms. Stelmak testified that the foster parents have met, and
continue to meet, Child’s physical, developmental, and emotional needs. (See
N.T. Termination Hearing, 9/10/19, at 14-16). Ms. Stelmak stated that Child
has bonded with her foster parents and foster siblings, and has fully
assimilated into her foster family. (Id. at 13-14). Consequently, Ms. Stelmak
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testified that Child would not suffer any detrimental effects upon termination
of Father’s parental rights. (Id. at 16-17). As the record supports the court’s
conclusions under Sections 2511(a)(8) and (b), we see no reason to disturb
its decision to terminate Father’s parental rights. See In re Adoption of
K.J., supra. For the foregoing reasons, we affirm the decree terminating
Father’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/01/2020
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