Adoption of: Z.K.S.I., Appeal of: E.K.I., Sr. ( 2022 )

J-A08009-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF Z.K.S.I. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.K.I., SR., FATHER :
:
:
:
:
: No. 1150 WDA 2021
Appeal from the Decree Entered August 27, 2021
In the Court of Common Pleas of Cambria County Orphans’ Court at
No(s): 2020-720
IN RE: ADOPTION OF E.K.I., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.K.I., SR., FATHER :
:
:
:
:
: No. 1151 WDA 2021
Appeal from the Decree Entered August 27, 2021
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): 2022-722 IVT
ADOPTION OF: U.Z.M.I. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.K.I., SR., FATHER :
:
:
:
:
: No. 1152 WDA 2021
Appeal from the Decree Entered August 27, 2021
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): No. 2020-721 IVT
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
J-A08009-22
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 27, 2022
E.K.I., Sr., (“Father”) appeals from the decrees entered on August 27,
2021, that granted the petitions filed by the Cambria County Children and
Youth Services (“CYS”) to involuntarily terminate his parental rights to three
children, twins Z.K.S.I. and U.Z.M.I. (born in December of 2019) and E.K.I.,
Jr. (born in June of 2016) (“Children”).1 After review, we affirm.
Father previously filed an appeal following the trial court’s orders
changing the Children’s goals to adoption. We rely on this Court’s
memorandum for an overview of the facts found by the trial court.2
The record reveals that [CYS] obtained protective custody
of E.I., Jr., on July 26, 2019, prior to the births of U.I. and Z.I.
The juvenile court entered an order memorializing E.I., Jr.’s[]
placement on July 30, 2019, and CYS filed a shelter care
application that same day. In its application, CYS averred that
Mother left E.I., Jr., under the supervision of an older half-sibling,
who threw E.I., Jr. Mother did not seek medical attention for E.I.,
Jr., resulting in a charge of endangering the welfare of children
and a child abuse investigation. CYS further averred that Father
was facing a child abuse investigation for allegedly striking and
bruising the older half-sibling, and that there were reports of
domestic disputes between Mother and Father. CYS filed a
dependency petition on August 2, 2019, in which it raised
concerns identical to those in the shelter care application. The
court entered a shelter care order on August 5, 2019, and
adjudicated E.I., Jr., dependent by order entered August 20,
____________________________________________
1 The parental rights of Children’s mother, B.S., (“Mother”) were also
terminated. Mother has filed a separate appeal to this Court. See 1114 WDA
2021.
2 The memorandum opinion quoted here identifies the Children only by their
first and last initials and omits the initials for their middle name(s), which we
have included.
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2019. The court designated his permanent placement goal as
return to parent or guardian.
CYS obtained protective custody of U.I. and Z.I. shortly after
their births, and on January 13, 2020, filed petitions for
dependency. As to Father, CYS averred that his home was
inappropriate, and that Mother had reported he was drinking
heavily and being verbally abusive toward her. CYS further
averred that Father had not completed his court-ordered domestic
violence program, and that he was subject to a Protection From
Abuse (“PFA”) order from January 2019 until July 2019, because
of domestic disputes with Mother. On January 23, 2020, the court
adjudicated U.I. and Z.T. dependent and established their
permanent placement goals as return to parent or guardian.
Beginning with the adjudication of E.I., Jr., and continuing
with the adjudications of U.I. and Z.I., the juvenile court ordered
Father to cooperate with service providers and complete certain
objectives. Father’s objectives included completing a domestic
violence program, submitting to random drug screens, and
completing drug and alcohol treatment, among others. Father
failed to cooperate with the service providers, and the juvenile
court found that he was in minimal compliance with the family
service plan and had made minimal progress toward reunification.
On August 13, 2020, the court scheduled a hearing to
consider whether to change the permanent placement goals for
E.I., Jr., U.I., and Z.I. from return to parent or guardian to
adoption. At the conclusion of the hearing, the court announced
that it would change the [C]hildren’s goals. It entered goal
change orders on August 20, 2020….
In the Interest of: Z.I., Nos. 964, 965 and 966 WDA 2020, unpublished
memorandum at 1-3 (Pa. Super. filed March 12, 2021) (footnotes omitted).
As noted above, E.K.I., Jr.3 was removed by Emergency Shelter Order
and was determined to be dependent. In January of 2019, a PFA was issued
due to domestic disputes. Father was drinking heavily and no supplies existed
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3 Older children were also removed from Mother’s care at the same time.
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in the home for the arrival of the twins. Following the birth of the twins, they
were removed from Mother and Father’s custody and were deemed dependent
children. After subsequent permanency review hearings, both parents were
found to be minimally compliant, making minimal progress toward alleviating
the circumstances necessitating the original placements. At the time of the
goal change hearings, the trial court found that Father had failed to maintain
sobriety and was unsuccessfully discharged from drug and alcohol treatment.
The parents continued to be involved in domestic disputes. Father also failed
to maintain a stable residence, which resulted in his being homeless.
Additionally, in connection with the goal change, the trial court found:
15. The findings of the Juvenile Court at the May 26, 2020
Permanency Review Hearing showed that Father had not met his
burden. That [c]ourt found that there had been no compliance
with the permanency plan in that [Father] had not had contact
with the [C]hildren in over six months. Further, there had been
no progress by him towards alleviating the circumstances which
necessitated the original placement. The [c]ourt further found
that aggravated circumstances existed as to [Father] … and he
failed to maintain substantial and continued contact with the
[C]hildren for a period of six months. The [c]ourt further found
that [Father] was no longer a placement option for the [C]hildren.
Trial Court Final Decree, 8/27/2021, at 8 ¶15.
On October 1, 2020, CYS filed petitions to involuntarily terminate the
parental rights of both Mother and Father to the three Children pursuant to 23
Pa.C.S. § 2511(a)(1), (2) and (5). In the context of the termination hearing,
the court noted statements by a CYS caseworker that
[Father] demonstrated that his [C]hildren were not his priority
within a week prior to the goal change hearing. Within that one
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week, the Agency received reports of [Father’s] drinking, police
reports of domestic disputes, and [Father] did not go to work all
week…. No one disputes that [Mother] and [Father] love their
[C]hildren. As observed through visitation with the [C]hildren,
neither parent present[s] a nurturing bond to their [C]hildren.
Though [E.K.I., Jr.] has a relationship with both [Mother] and
[Father], he, as well as the twins, do not have that parent-child
bond with either of them. [All three Children] have a genuine
bond with their foster family, which demonstrates that they will
be able to build a healthy bond with their adoptive family.
Id. at 10 ¶ 19. Another CYS social worker indicated that:
[Father] has not demonstrated stability in a lifestyle that
would be conducive to reunification…. He is not forthcoming with
information with his social worker and verbalizes his belief that
appropriate boundaries are already in place. It is this social
worker’s opinion that [Father] would have to become more
forthcoming with the information he provides during sessions. He
would need to address any drug and alcohol issues and
consistently maintain his mental health prior to the consideration
of reunification.
Id. at 10 ¶ 20. The court also found that the termination of any bond between
Father and the Children would not detrimentally affect them.
Therefore, based on the facts presented, the trial court concluded that
CYS had met its burden of proof that Father’s parental rights to the three
Children should be terminated pursuant to 23 Pa.C.S. § 2511(a) (1), (2) and
(b). Father then filed a timely appeal to this Court, raising the following
issues:
1. Whether the trial court erred in concluding that the agency had met
its burden of proof by clear and convincing evidence[?]
2. Whether the trial court erred and/or abused its discretion in making
the determination to terminate the Father’s rights to his children,
Z.K.S.I., E.K.I., JR., and U.Z.M.I.[?]
Father’s brief at 4.
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We review an order 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)). Moreover, we have explained that:
The standard of clear and convincing evidence is defined as
testimony that 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.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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). 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).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
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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 grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
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 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
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As noted above, the trial court terminated Father’s parental rights
pursuant to section 2511(a)(1), (2) and (b). We need only agree with the
trial court as to any one subsection of section 2511(a), as well as section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court’s decision to terminate under
sections 2511(a)(2) and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parent has caused the child to be without essential
parental care, control or subsistence necessary for his physical or
mental well-being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied by the
parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
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We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Father’s brief contains a discussion of the law referencing subsection
2511(a), however, he notes that although CYS had been involved with Mother
since 2008, his involvement was only initiated at the time of E.K.I., Jr.’s
removal in July of 2019. He acknowledges his failures to meet some of CYS’s
requirements for reunification with the Children, but blames Mother for his
troubles, identifying the PFA obtained by Mother and the criminal charges filed
against him resulting in his incarceration from the fall of 2020 until February
2021 and from June of 2021 to August of 2021, as the reason. Father also
contends that Mother’s extensive history with CYS impacted the perception of
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his efforts. He also notes the impact of the COVID-19 pandemic and blames
CYS for his lack of contact with the Children, resulting in a finding of
aggravating circumstances, because CYS failed to return his phone calls and
respond to his requests to see the Children.
Having reviewed the record, we conclude that it supports the findings of
the trial court that Father has not provided the Children with the essential
parental care, control and subsistence necessary for their mental and physical
well-being, and that Father is unable or unwilling to remedy the causes of his
parental incapacity, neglect or refusal. While the trial court noted Father’s
few positive accomplishments, it is clear that Father will not, or cannot,
become a capable parent for the Children at any point in the foreseeable
future. Thus, we conclude that CYS has carried its burden of proving the
statutory grounds for termination under subsection 2511(a)(2). Therefore,
Father is not entitled to relief.
Lastly, we recognize that Father has not provided any argument relating
to subsection 2511(b). However, the trial court determined that the
termination of Father’s parental rights would not have a detrimental effect on
the Children. Rather, Father’s lack of visitation with E.K.I., Jr., undermined
any bond that might have existed. Furthermore, the court found that a bond
exists between the Children and their foster family. Therefore, the termination
of Father’s parental rights would not irreparably harm the Children.
Accordingly, Father is not entitled to relief.
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Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
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