In Re: E.R.C., Appeal of: J.V.-I. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: E.R.C., A/K/A E.R.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.V.-I., FATHER :
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: No. 1357 WDA 2022
Appeal from the Order Entered October 27, 2022
In the Court of Common Pleas of Somerset County Orphans’ Court at
No(s): No. 7 Adoption 2022
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: June 28, 2023
J.V.-I. (Father) appeals from the order entered in the Court of Common
Pleas of Somerset County (orphans’ court) involuntarily terminating his
parental rights to his daughter, E.R.C., born in July 2012 (Child).1 We affirm.
I.
Somerset County Children and Youth Services (CYS) initially became
involved with the family in August 2018 because of allegations that Mother
was using methamphetamines and Child was exposed to domestic violence
between Mother and maternal grandmother in the home. CYS had not
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* Retired Senior Judge assigned to the Superior Court.
1 The parental rights of Child’s biological mother R.C. (Mother) were also
involuntarily terminated. Mother did not appear at the orphans’ court hearing
and is not a party to this appeal.
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identified Father as Child’s biological father at that time. Father’s paternity
was established through genetic testing while he was incarcerated in July 2020
and he is currently incarcerated. Child was adjudicated dependent in April
2020 and her permanency goal was changed to adoption in January 2022.
CYS filed petitions seeking involuntary termination of Father and Mother’s
parental rights on March 14, 2022.
At the October 27, 2022 hearing, the orphan’s court heard testimony
from CYS Caseworker Amber Shonko, licensed psychologist Carol Patterson,
the Court-Appointed Special Advocate (CASA) Paula Eppley-Newman, and
Father. Child was ten years old at the time.
Ms. Shonko testified that she has been involved with the family since
December 2020 and that after a number of placements, Child resides with a
foster family willing to adopt. (See N.T. Hearing, 10/27/22, at 39-41). Child
has been diagnosed with a conduct disorder, PTSD and ODD, and she is taking
medication for treatment. Ms. Shonko advised that Father completed the
classroom portion of the parenting program but has not had any in-person
visits with Child to demonstrate any acquired skills. Father has completed a
drug and alcohol treatment program, but not the additional assessment
requested by his parole officer or a mental health evaluation.
Ms. Shonko explained that Father was incarcerated at the time CYS was
granted custody of Child, that he was released to a halfway house in the
beginning of 2021, and that he absconded from that residence in April 2021.
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Father did not contact CYS when he left the halfway house and Ms. Shonko’s
attempts to call him using his last known telephone number and a
subsequently obtained telephone number were unsuccessful. CYS received
information that Father was reincarcerated in September 2021, and that he
absconded again upon placement in a re-entry program in November 2021.
Father was then reincarcerated in April 2022 and was released back to a
halfway house in July 2022. Ms. Shonko attempted to schedule in-person
visits between Father and Child when he was released, and she contacted
Father’s mother, who resided in Arizona, for assistance but she was not able
to establish contact with him. Ms. Shonko advised that it was very difficult to
schedule visits with Father because of the multiple facilities he was housed
during a relatively short period of time.
Ms. Shonko testified that since the time Father was identified as Child’s
biological father, they had five video visits and Father consistently made
phone calls to her for a brief period in 2021. At that point, Child reported to
CYS that she no longer wanted to have any contact with Father. Ms. Shonko
testified that CYS never refused Father contact with Child, that it never asked
for visits to be suspended, and that it placed no restrictions on the frequency
or duration of phone calls. Ms. Shonko recounted that although Father wrote
letters to CYS “on a couple of different occasions,” she did not receive weekly
phone calls from him and he never reported that he had any problems
contacting Child. (Id. at 70). Ms. Shonko explained that “whenever [Father]
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would abscond from a facility, [CYS] would have no contact with him for
months at a time. [Child] would not have any contact for months at a time.”
(Id. at 74). Child “questioned why her dad wanted to be a part of her life
when he was incarcerated; and then as soon as he was released from
incarceration, she was put on the back burner.” (Id.).
Child has indicated to Ms. Shonko that she enjoys living with her current
foster parents and that she wants to be adopted by them. Ms. Shonko opined
that Child’s best interests would be best served by termination of Father’s
parental rights so that Child can find permanency. Although placement with
the foster family is early, Child “has foster brothers that she absolutely adores
and they adore her.” (Id. at 75). Ms. Shonko opined based on her experience
that Child is not receiving any benefit from her relationship with Father and
“won’t even talk to him. I had supervised numerous phone calls where dad
gets on the phone and he talks [] and she absolutely refuses to answer. She
won’t even talk to me during those phone calls.” (Id. at 75-76). Child speaks
her mind and “absolutely does not want to be placed in the care of her father.”
(Id. at 76).
Ms. Patterson was qualified as an expert in the field of psychology with
an emphasis on bonding and attachment assessments. Although she
conducted an evaluation with Child and Mother, she was not able to do the
same with Father because he was “on the run after leaving a halfway house”
at the time. (Id. at 19). Ms. Patterson opined that, given the very limited
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interaction between Child and Father, they have not had the opportunity to
form a parental bond, and that if they were reunified or began regular
visitation, they would not be able to form a healthy parental bond. (See id.
at 25-26).
Paula Eppley-Newman, the CASA volunteer for Child since 2020,
testified that Child “is very articulate, but I think is just craving security,
craving that foundation that every kid can build on” and that termination of
Father’s parental rights would meet her needs and welfare. (Id. at 108).
Although Ms. Eppley-Newman was unable to contact Father, Child’s position
of: “I don’t want to live with him; I don’t know him” was sufficient to
communicate that Child is not comfortable with contact with Father and that
the possibility of living with him causes her anxiety. (Id. at 110). Ms. Eppley-
Newman explained that part of the goal at her agency is family strengthening
with the biological parent, but that “sometimes, it’s just not the best place for
them.” (Id. at 111-12).
Father testified that he called Ms. Shonko two to three times per month
and although he “absconded a few times, it was for a short period of time.”
(Id. at 123-24). Father relayed that he called Ms. Shonko “constantly because
I wasn’t getting my phone calls or my visits and that was the only way I would
be able to find out what was going on with my child,” and that it was very
difficult to maintain contact with Child. (Id. at 124). Father explained that
his parole officer had requested that he complete a second drug treatment
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program because his original sentence and current period of incarceration
were for drug offenses. Father advised that his maximum release date is
August 26, 2023, and that upon release he will live with his wife and son who
reside in Buffalo, New York. Father testified his goal is to “be able to care for
[Child] and show her that I love her and that I want to bond with her and that
I want to get to know her.” (Id. at 137).
At the conclusion of the hearing, the orphans’ court entered findings of
fact and conclusions of law and issued an order involuntarily terminating
Father’s parental rights to Child pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2),
(5), (8) and (b). In doing so, it found that for the majority of Child’s lifetime
and specifically while she has been in placement, Father has consistently been
incarcerated, living in a halfway house, or had absconded from halfway
houses; for the period of 2020-22, Father has been incarcerated in or admitted
to at least ten different correctional facilities and halfway houses; Father has
maintained a criminal lifestyle since 2007 and will be incarcerated until at least
August 2023; Child experiences anxiety when required to discuss her
relationship with Father and the possibility of living with him; Child wishes to
be adopted by current foster parents; Father has moderately complied with
certain goals but has demonstrated minimal progress with respect to
completion of these goals; Father has never lived with Child or had in-person
contact with her; Ms. Eppley-Newman credibly testified that Child does not
want to live with Father because she does not know him; no bond or
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attachment exists between Father and Child due to their lack of interaction;
terminating Father’s parental rights would have no negative impact on Child;
and Child’s best interests would be served by allowing her to move towards
permanency immediately, rather than wait until a time Father is not
incarcerated and can attempt to provide parental care for her. (See id. at
184, 186-87, 191-92). Father timely appealed and he and the orphans’ court
complied with Rule 1925. See Pa.R.A.P. 1925(a)(2)(i)-(ii).
II.
A.
Father’s issues on appeal challenge the orphans’ court decision that
termination of his parental rights to Child is warranted and its finding that
termination serves Child’s best interests.2 (See Father’s Brief, at 5-7).3
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2 We note that although Father initially presents his argument as five separate
issues, he combines them into a single argument in the body of his brief. (See
Father’s Brief, at 15-18). We address them together for ease of disposition.
3
Our 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. If
the factual findings are supported, appellate courts review to determine
if the trial court made an error of law or abused its discretion. A decision
may be reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will. The
trial court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
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The following legal principles guide our review. Section 2511 of the
Adoption Act governs termination of parental rights and requires a bifurcated
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 trial court
determines that the parent’s conduct warrants termination of his
or her parental rights does the trial 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 S.C., 247 A.3d 1097, 1103 (Pa. Super. 2021) (citation omitted).
“A child has a right to a stable, safe, and healthy environment in which
to grow, and the child’s life simply cannot be put on hold in the hope that the
parent will summon the ability to handle the responsibilities of parenting.” Id.(citation omitted). When a parent has demonstrated a continued inability to
conduct his life in a manner conducive to providing a safe environment for a
child, and the behavior is irremediable as supported by clear and competent
evidence, the termination of parental rights is justified. See id. at 1105.
In this case, the orphans’ court terminated Father’s rights pursuant to
Sections 2511(a)(1), (2),(5),(8) and (b), which provide as follows:
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Interest of D.R.-W., 227 A.3d 905, 911 (Pa. Super. 2020) (citation omitted).
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(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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition either
has evidenced a settled purpose of relinquishing parental claim to
a child or has refused or failed to perform parental duties.
(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.
* * *
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency for a
period of at least six months, the conditions which led to the
removal or placement of the child continue to exist, the parent
cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which led to the
removal or placement of the child within a reasonable period of
time and termination of the parental rights would best serve the
needs and welfare of the child.
* * *
(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
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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)(1), (2), (5), (8) and (b).4
We are also mindful 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.” Int.
of K.M.W., 238 A.3d 465, 474 (Pa. Super. 2020) (en banc) (citation omitted).
While incarceration is not sufficient to support termination under any
subsection, it does demonstrably impact a parent’s capability of performing
parental duties and may render him incapable of fulfilling these obligations.
See id.B.
Father first contends that termination of his parental rights constituted
an abuse of discretion because he has made significant efforts to follow the
recommendations set by CYS by attending parenting classes/substance abuse
treatment programs and by maintaining contact with Child through video calls,
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4 We need only agree with the orphans’ court as to any one subsection of
Section 2511(a), as well as Section (b) in order to affirm. See In re Adoption
of A.H., 247 A.3d 439, 442 (Pa. Super. 2021), appeal denied, 258 A.3d 1144(Pa. 2021). “Moreover, we may uphold a termination decision if any proper
basis exists for the result reached.” Id. (citation omitted).
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telephone calls and mail. (See Father’s Brief, at 14-15). Father asserts that
CYS impeded his efforts by failing to aid him in maintaining contact with Child,
that he “beg[ed] for more time,” and that any perceived incapacity that he
has will be remedied when he is released from incarceration. (Id. at 16).
We observe regarding the Juvenile Act and CYS’s obligations thereunder
that its goal is to “preserve the unity of the family whenever possible or to
provide another alternative permanent family when the unity of the family
cannot be maintained.” 42 Pa.C.S. § 6301(b)(1). The Act is additionally
intended to “prevent children from languishing indefinitely in foster care, with
its inherent lack of permanency, normalcy, and long-term parental
commitment.” Interest of A.M., 256 A.3d 1263, 1273 (Pa. Super. 2021)
(citation omitted). As a result, “an agency is also not required to offer services
indefinitely, where a parent is unable to properly apply the instruction
provided. However, an agency must redirect its efforts towards placing the
child in an adoptive home only after the child welfare agency has made
reasonable efforts to return a foster child to his or her biological parent, but
those efforts have failed.” Id. (citation omitted).
Here, although Father claims that he has made great strides towards
accomplishing the goals set by CYS, the record reflects that he has put forth
minimal effort at best to work towards establishing a parental role in Child’s
life. The record also belies Father’s claim that CYS did not exercise reasonable
efforts to reunite him with Child and, instead, shows that he declined to take
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advantage of the opportunities offered to him. His own actions resulted in
any impediments to scheduling in-person visits with Child, which Ms. Shonko
repeatedly attempted to arrange. Father resided in ten different facilities
during a short period of time and absconded multiple times, with his
whereabouts unknown. Father has been incarcerated for most of Child’s
lifetime, has maintained a criminal lifestyle since 2007, and will remain
incarcerated until at least August 2023 when he plans to move to Buffalo, New
York. Father’s status as Child’s biological parent was not established until she
was about eight years old, and instead of focusing on developing a relationship
with her, Father put her “on the back burner” while on the run from
authorities. Because the record demonstrates Father’s inability and
unwillingness to fulfill his parental obligations, his first issue merits no relief.
C.
Father next contends the orphans’ court erred in finding that termination
of his parental rights is in Child’s best interests under Section 2511(b). Father
claims that he has established a clear bond with Child, is familiar with details
about her life including her favorite food and best friend, and will be able to
provide for her physical and emotional needs upon his release from
incarceration. (See Father’s Brief, at 16-18).
In considering Section 2511(b), we are guided by the following
principles:
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
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emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the Section 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.
In 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, comfort, security, and stability
the child might have with the foster parent. Additionally, this
Court stated that the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
D.R.-W., supra at 914 (citations omitted).
In this case, multiple credible witnesses testified that termination of
Father’s parental rights would serve Child’s best interests. Father and Child
have never met in person, have formed no parent-child bond, and discussion
of their relationship and potential living situation is anxiety-provoking for
Child. Child refuses to speak with Father and she has strongly expressed that
she does not want to live with him and wishes to be adopted. The evidence
supports the conclusion of the orphans’ court that termination of Father’s
parental rights would best serve Child’s needs and welfare. We, therefore,
affirm the order pursuant to Section 2511(b).
Order affirmed.
Judge Stabile joins the memorandum.
Judge Sullivan concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2023
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