In Re: L.A.M., III, a Minor Appeal of: L.M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
IN RE: L.A.M., III, A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: L.M., FATHER : No. 154 EDA 2023
Appeal from the Decree Entered December 19, 2022
In the Court of Common Pleas of Carbon County
Orphans' Court at No(s): 22-9060
IN RE: S.M.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: L.M., FATHER : No. 155 EDA 2023
Appeal from the Decree Entered December 19, 2022
In the Court of Common Pleas of Carbon County
Orphans' Court at No(s): 22-9061
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 1, 2023
Appellant, L.M. (“Father”), appeals from the decrees entered in the
Carbon County Court of Common Pleas, Orphans’ Court, granting the petition
of Carbon County Office of Children and Youth Services (“CYS”) for involuntary
termination of Father’s parental rights to his minor children, daughter S.M.M.
(age 12) and son L.A.M. (age 8) (“Children”). We affirm.
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The relevant facts and procedural history of this case are as follows.
Father and T.S. (“Mother”) are the parents of Children. CYS became involved
with the family in January 2019, due to Mother’s substance abuse and mental
health issues, and resultant inability to care for Children. Father was
incarcerated at the time. S.M.M. was placed in a foster home in March 2019
and has remained there since then. L.A.M. was placed with Father’s mother,
M.H. (“Paternal Grandmother”), in March 2019. In June 2021, L.A.M.’s
placement was changed to the foster home where S.M.M. resided due to
concerns over L.A.M.’s extensive truancy and behavioral issues. L.A.M. has
remained at the foster home since his placement. On January 31, 2022, CYS
filed a petition for the termination of parental rights.
At the termination hearings, the Orphans’ court heard testimony from
Peter Nyamari, a caseworker at CYS. Mr. Nyamari testified that since Children
have been in placement, Father has had limited involvement in Children’s lives
and taken minimal to no steps to remedy the conditions which led to Children’s
placement. When CYS learned that Father was no longer incarcerated in 2020,
CYS attempted to get Father to work with Justice Works to help him find
housing and employment. Although Father initially established contact with
Justice Works, he stopped responding and Justice Works closed Father’s case
without progress. Father was incarcerated again later that year and did not
have contact with Children when he was in prison. In September 2021, Father
contacted CYS while he was in a rehabilitation facility. S.M.M. was unwilling
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to talk or meet with Father at this time. CYS set up a phone call between
Father and L.A.M. and attempted to set up an in-person visit. Before the visit
could occur, however, Father absconded from the rehab facility without
authorization. Father did not initiate contact with CYS again and CYS was
unaware of Father’s whereabouts for a period of time.
Mr. Nyamari testified that in March 2022, CYS learned that Father was
incarcerated again. When Mr. Nyamari went to visit Father in prison regarding
the proceedings in this case, Father requested to see L.A.M. Mr. Nyamari
brought L.A.M. to visit Father in prison and they had a fifteen-minute
conversation. L.A.M. requested more time to speak with Father but that was
not possible to do on that date. S.M.M. again refused to see or speak to Father
and no other further visits occurred between Father and L.A.M.
Mr. Nyamari reported that he visits Children at least once a month and
they are both doing well in their foster home. Children are well bonded with
their foster parents and all their physical, emotional, and educational needs
are being met. Both Children were behind in school when they were initially
placed but are doing significantly better now. All of Children’s physical and
mental health concerns are being addressed. L.A.M. recently underwent a
successful surgery to clip his frenulum, the connecting skin under his tongue,
to correct lingering issues with his speech. Although L.A.M. is strongly bonded
with Paternal Grandmother, both Children are happy and healthy in their
foster home.
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Dr. John P. Seasock testified that he performed a psychological
evaluation and bonding assessment of Children. After speaking with each
child, Dr. Seasock opined that neither child has a parental bond with Father.
S.M.M. has not had any contact with Father in 30 months and has no interest
in having any contact with Father. She is closely bonded with her foster
parents and becomes very distressed at the thought of being removed from
her foster home. S.M.M. stated that she would commit suicide if she had to
go live with her mom again. Upon further inquiry, Dr. Seasock does not
believe S.M.M. is suicidal but her statement is a trauma response to
reengagement with Mother. When Dr. Seasock asked L.A.M. about Father,
the only thing L.A.M. could state about Father was that he was in prison and
had a beard. When pressed further, L.A.M. stated that he could not recall any
memories or past interactions he had with Father. Based on this response,
Dr. Seasock concluded that there were no signs of attachment between L.A.M.
and Father. Dr. Seasock testified that L.A.M. has a significant attachment to
Paternal Grandmother and initially had difficulty transitioning into his foster
home. However, L.A.M. now reports that his grandmother could not take care
of him anymore and it is good that he is at the foster home.
Dr. Seasock also testified that Children have a significant attachment to
foster parents and identify them as mom and dad. Both Children have a
typical parent-child relationship with foster parents and are well adjusted in
their foster home. Both Children are actively engaged in family activities and
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have formed bonds with the foster parents’ extended family. They are both
doing well in school and are up to date on their medical appointments. Dr.
Seasock reported that Children are happy, healthy and thriving in their current
placement.
S.M.M., who was twelve years old at the time of the hearing, testified
that she has not seen Father in a long time. She expressed strong negative
feelings toward Father, noting that he promised her a lot of things and broke
her trust. S.M.M. testified that she likes to think of her foster parents as her
mom and dad and expressed a clear wish to continue to stay with her foster
parents. She is very happy at her foster home and all her needs are met by
her foster parents.
L.A.M., who was eight years old at the time of the hearing, initially
stated that he did not remember anything about Father. When questioned
more specifically, L.A.M. confirmed that he remembered spending time with
Father a few times when he was not in prison. Specifically, he remembered
going to the gym and going fishing with Father. L.A.M. testified that he refers
to his foster mother as “mom” or by her first name and refers to foster father
by his first name. He reported that his foster parents take care of him, and
he likes living with them. L.A.M. also stated that he liked living with Paternal
Grandmother and did not express a preference on where he would rather live.
L.A.M. noted that he goes to school more consistently and eats healthier at
his foster home.
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Father testified that he was released from jail for a time in 2020 and he
saw L.A.M. at least once a week when L.A.M. was in Paternal Grandmother’s
care. Father would take L.A.M. fishing, to the playground, and play football
with him. Father stated that he has a good relationship with L.A.M. and always
tried to be good father to Children when he was not incarcerated. Father was
reincarcerated later in the year in 2020. Father reports that while he was
incarcerated, he wrote letters to Children’s foster mother inquiring about
Children, and they corresponded many times about Children’s activities.
Father stated that despite his repeated requests to set up visits or phone calls
with Children while he was incarcerated, CYS never arranged the visits,
resulting in S.M.M. forgetting him.
Father was released from prison again in 2021, and he began seeing
L.A.M. while he was in Paternal Grandmother’s care. Father testified that the
last time he saw L.A.M. was in May 2021, and he did not attempt to contact
Children from July 2021 to March 2022 because he was “on the run.” Father
was incarcerated again in March 2022. At the time of the hearing, Father was
still incarcerated and had pending criminal charges in Carbon County, for
which he could be sentenced to three to seven years’ incarceration if
convicted.
On December 16, 2020, the Orphans’ court entered decrees
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involuntarily terminating Father’s parental rights to Children.1 On January 6,
2023, Father timely filed separate notices of appeal and concise statements
of errors complained of on appeal for each underlying court docket number.
This Court consolidated the appeals sua sponte on January 25, 2023.
Father raises the following issues for our review:
Whether the [Orphans’ court] erred in finding that [CYS]
had established, by the heightened clear and convincing
evidentiary standard, valid grounds for terminating Father’s
parental rights to [L.A.M.] when Father maintained contact
with the minor while incarcerated and maintained contact
with the minor when the minor previously resided with his
Paternal Grandmother.
Whether the [Orphans’ court] erred in finding that [CYS]
had established, by the heightened clear and convincing
evidentiary standard, valid grounds for terminating Father’s
parental rights to S.M.M. when Father made attempts to
contact his children and wrote both Children letters to the
foster family when he was incarcerated.
(Father’s Brief at 3).
In his issues combined, Father asserts that he attempted to maintain
contact with Children while he was incarcerated by writing letters to Children’s
foster mother on a regular basis. Father states that when he was on parole,
he regularly saw L.A.M. and has a good relationship with him. Father further
emphasizes that L.A.M.’s recent visit with Father at the prison went well and
L.A.M. requested more time to spend with Father. Father argues that he
consistently made attempts to maintain contact with Children even with the
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1 The court also terminated Mother’s parental rights to Children, finding that
Mother failed to make sufficient progress in improving the circumstances that
led to Children’s placement.
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limitations he faced by being incarcerated during the COVID-19 pandemic.
Father contends that he has always tried to maintain a relationship with
Children when he was not imprisoned, except for the limited time when there
was a warrant out for Father. Father concludes that the court erred in finding
that CYS presented clear and convincing evidence that Father’s parental rights
to Children should be terminated, and this Court should vacate the termination
decrees. We disagree.
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
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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
(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 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:
(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.
* * *
(b) Other considerations.―The court in terminating
the rights of a parent shall give primary consideration to the
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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)(1), (b).
“A court may terminate parental rights under subsection 2511(a)(1)
when the parent demonstrates a settled purpose to relinquish parental claim
to a child or fails to perform parental duties for at least six months prior to
the filing of the termination petition.” In re I.J., supra at 10. 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
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
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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 his… 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).
“Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind … that the child’s need for
consistent parental care and stability cannot be put aside or put on hold[.]”
Interest of K.M.W., 238 A.3d 465, 474 (Pa.Super. 2020) (en banc) (quoting
In re E.A.P., 944 A.2d 79, 82-83 (Pa.Super. 2008)). “The focus is on whether
the parent utilized resources available while in prison to maintain a
relationship with his or her child. An incarcerated parent is expected to utilize
all available resources to foster a continuing close relationship with his or her
children.” In re B., N.M., supra at 855 (internal citations omitted).
“Importantly, a parent’s ‘recent efforts to straighten out [his] life’ upon release
from incarceration does not require that a court ‘indefinitely postpone
adoption.’” Interest of K.M.W., supra at 474 (quoting In re Z.P., supra at
1125).
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his or her conduct; (2) the post-
abandonment contact between parent and child; and (3)
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consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the
totality of the circumstances, clearly warrants the
involuntary termination.
In re B., N.M., supra at 855 (internal citations omitted).
“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.
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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
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). In doing so, the court must analyze the following four
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factors: (1) whether the parental bond is necessary and beneficial to the child;
(2) the child’s need for permanency and length of time in foster care; (3)
whether the child is in a pre-adoptive home and bonded with foster parents;
and (4) whether the foster home meets the child’s developmental, physical,
and emotional needs, including intangible needs of love, comfort, security,
safety and stability. Interest of K.T., ___ Pa. ___, ___ A.3d ___, 2023 WL
4092986 (Pa. filed June 21, 2023). “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.” In re C.P., supra (internal citations
omitted). “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.” In re Z.P., supra at 1121.
Instantly, the Orphans’ court determined that CYS presented ample
evidence to demonstrate that Father failed to perform parental duties for
Children for longer than the six months required by Section 2511(a)(1).
Specifically, there is no evidence that Father had any communication or
interaction with S.M.M. since her initial placement in 2019. Father also had
only minimal contact with L.A.M. during this time. Although Father was
incarcerated for much of this time, the evidence does not demonstrate a
serious effort by Father to maintain his relationship with Children during his
incarceration. See In re B., N.M., supra. Father did not have phone
conversations or visits with Children while incarcerated, except for one fifteen-
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minute visit with L.A.M. after CYS had already filed the termination petition.
Even while L.A.M. was in Paternal Grandmother’s care, there is no evidence
that Father maintained contact with L.A.M. while Father was incarcerated.
Father maintains that he wrote letters to Children’s foster mother to stay
updated on Children’s wellbeing. However, the Orphans’ court noted that
Father failed to file any petitions in this matter, take significant steps to
communicate with Children directly, send money or gifts for Children’s care,
inquire about Children’s medical or educational needs, or avail himself of any
parental programs while incarcerated.
Additionally, when Father was on parole, Father failed to take significant
steps to have a relationship with Children. Mr. Nyamari testified that Father
did not cooperate with Justice Works to help him find suitable employment
and housing. There is no evidence that Father took any measures to attempt
to repair his relationship with S.M.M. and reengage communication with her.
Father also failed to participate in caring for L.A.M.’s physical, emotional,
medical, or educational needs during this time period. Further, Father
admitted that he chose to be “on the run” rather than have any contact with
Children from July 2021 to March 2022, at which point Father was
reincarcerated. Based on the forgoing, we agree with the Orphans’ court that
CYS presented sufficient evidence of Father’s failure to perform parental duties
for Children to warrant termination under Section 2511(a)(1). See In re Z.P.,
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Regarding Section 2511(b), the Orphans’ court found that neither child
has a parental bond with Father. S.M.M. testified that she has not had any
contact with Father in a long time. She also expressed strong negative
feelings towards Father and stated that she did not want to have a relationship
with him. Further, Dr. Seasock testified that he did not discern a parental
bond between Father and L.A.M. because L.A.M. could not tell him anything
about Father other than that Father was in prison and had a beard. This
assessment was corroborated by L.A.M.’s testimony, where L.A.M. initially had
nothing to say when asked about Father and only recounted a few instances
of going to the gym and going fishing with Father when asked more specific
questions.
Additionally, Mr. Nyamari’s testimony, Dr. Seasock’s testimony, and
Children’s own testimony makes clear that Children have a significant parental
bond with their foster parents. Children view their foster parents as their
parents and turn to them for their daily needs. The foster parents provide for
Children’s physical, emotional, and educational needs, ensuring that they are
doing well in school, up to date on all their medical appointments, and
providing a happy, healthy, and stable environment for Children. Children are
also engaged in family activities with their foster family and have formed
bonds with their foster parents’ extended family. Dr. Seasock opined that
there would be no adverse consequences in terminating Father’s parental
rights to Children because Children do not have a relationship with Father and
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have a strong emotional attachment to their foster parents. Therefore, we
discern no abuse of discretion in the court’s determination that termination of
Father’s parental rights would best serve Children’s needs and welfare
pursuant to Section 2511(b). See Interest of K.T.; In re Z.P., supra.Accordingly, we affirm the decrees involuntarily terminating Father’s parental
rights to Children.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2023
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