J-S46001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: S.S. : No. 280 MDA 2014
Appeal from the Order Entered January 14, 2014,
In the Court of Common Pleas of Lackawanna County,
-61 2013.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 01, 2014
Father, S.S., appeals from the order entered on January 14, 2014,
that granted the petition filed by the Lackawanna County Office of Youth and
to 42 Pa.C.S.A. § 6351.1 We affirm.
The trial court set forth the factual background and procedural history
of this appeal as follows:
1
voluntarily relinquishing her parental rights to Child. N.T., 12/13/13, at 6.
During the December 13, 2013 termination hearing, which Mother did not
attend, the trial court confirmed her consent and terminated her parental
rights to Child. N.T., 12/13/13, 10-11. At the termination hearing, the trial
cour
the court to address. N.T., 12/13/13, 12. Mother does not challenge the
termination of her parental rights to Child, nor is she a party to this appeal.
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[Child] was born [in September of 2012]. (N.T.
12/13/2013 at pgs. 15, 46). He remained in the hospital for
approximately one (1) month after birth to be monitored for
symptoms of addiction an
narcotics while pregnant. (Id. at pgs. 15, 17). While Mother
and [Child] were both still in the hospital, Mother informed OYFS
(Id. at pg. 44[-45]). At this time, Mother also alluded to the
possibility that Father was working in Binghamton, NY, but did
(Id. at pgs. 25, 43[, 45]).
formally acknowledged paternity of [Child]. (Id. at pgs. 37, 38).
However, although hospital staff encouraged family members to
visit [Child] and feed him while he was in the hospital to nurture
him and help him grow, Father only visited [Child] once during
this time. (Id. at pgs. 15, 45 & 46).
After being released from the hospital, on October 6, 2012,
gs. (Id. at pgs. 14, 47). On
October 22, 2012, OYFS attempted to contact Father to explore
whether he was a placement source for [Child] by calling Father
on the telephone, but Father never returned that phone call.
(Id. at pgs. 45, 49).
Over the course of the next nine (9) months, from October
of 2012 to July of 2013, OYFS, after being unable to make
contact with Father, engaged in an exhaustive, diligent search to
locate him. (Id. at pgs. 15-21, 49-62). Such efforts included
sending letters, both certified and regular mail, to multiple
addresses where Father was thought to have been living,
Mother and Father had previously accepted mail, leaving
voicemail messages for Father at numerous potential phone
numbers, using [I]nternet search engines such as Accurint to
locate Father based on his birth date and social security number,
and attempting to track Father through the acknowledgement
[sic] of paternity documents that he signed. (Id.). In July of
2013, OYFS learned that Father was incarcerated at the
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Lackawanna County Prison on a parole or probation violation.
(N.T. 12/13/2013 at pgs. 20-21).
representative met with Father at the Lackawanna County Prison
Id. at pgs.
20-21). Specifically, the OYFS representative informed Father
that, because of the length of time that [Child] had been in
foster care, OYFS was seeking to terminate his parental rights to
[Child]. (Id. at pg. 16). In addition, the OYFS representative
informed Father that OYFS was also seeking to terminate his
parental rights to [Child] because he had not had any contact
with OYFS for approximately nine (9) months, had not
completed any of the mandatory reunification services that OYFS
required of him, and, most importantly, had not had any contact
with [Child] for approximately nine (9) months. (Id.). Finally,
the OYFS representative informed Father that, under Act 101, he
relinquished his parental rights to [Child].2 (N.T. 12/13/2013 at
pg. 21).
2
Senate Bill 1360, known informally as Act 101, was
enacted into law in 2010 by then Pennsylvania
Governor Edward Rendell, and became effective in
2011. Bulletin, Dept. of Pub. Welf., Off. Of Child.,
Yth. & Fam., April 22, 2011. Act 101, as an
amendment to 23 Pa.C.S.A. § 2101 et seq., also
known as the Adoption Act, provides biological
parents who voluntarily relinquish their parental
rights to their children the potential ability to remain
been adopted in certain circumstances. Id.
In response, Father refused to voluntarily relinquish his
parental rights to [Child], but wrote to the OYFS representative
at a later date, stating that he wished to remain a part of
occurred. (Id. at pgs. 16, 21). However, Father never
requested any sort of visitation or contact with [Child]. (Id. at
pg. 21).
Trial Court Opinion, 4/1/14, at 1-3 (footnote in original).
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parental rights. The trial court held a hearing on the termination petition on
December 13, 2013. At the hearing, OYFS presented the testimony of
the OYFS caseworker formerly assigned to the family prior to Ms. Sporer;
and Kellie Valvano, the OYFS paralegal who conducted the diligent search for
Father. N.T., 12/13/13, 4-5, 43-44, 55-56. At the conclusion of the
January 14, 2014, the trial court entered on its docket the order, dated
permanency goal to adoption pursuant to 42 Pa.C.S.A. § 6351.
On February 14, 2014, Father timely filed a notice of appeal along with
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2) and (b).2 Father raises the following issues for our review:
A. Whether the trial court erred as a matter of law and/or
manifestly abused its discretion in determining [OYFS] sustained
is warranted under sections 2511(a)(1), 2511(a)(2), 2511(a)(5)
and/or 2511(a)(8) of the Adoption Act?
B. Even if this Court concludes [OYFS] established statutory
the trial court nevertheless erred as a matter of law and/or
2
ice of appeal and concise statement are
time/date-stamped February 13, 2014.
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manifestly abused its discretion in determining [OYFS] sustained
its additional burden of proving the t
parental rights is in the best interests of [Child]?
3
In his first issue, Father argues that OYFS failed to establish the
statutory factors necessary to terminate his parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), and/or (8) by clear and convincing
evidence. Father initially argues that OYFS failed to sustain its burden of
proof because OYFS waited until approximately one and one-half months
t that time, OYFS did not
discuss visitation or reunification goals with Father, but rather addressed Act
We review an appeal from the termination of parental rights pursuant
to the following standard:
[A]ppellate courts must apply an abuse of discretion
petition for termination of parental rights. As in dependency
3
We observe that Father subtly changed the language in his appellate brief
from that used in his concise statement, but we find that he sufficiently
preserved his issues for our review. Moreover, we also note that on
December 30, 2013, the trial court changed the permanency goal for Child
from reunification to adoption. N.T., 12/13/13, at 74; Trial Court Order,
12/30/13 (filed 1/14/14). Father waived any challenge to the goal change
to adoption by his failure to raise the issue in his Statement of Questions
Involved portion of his brief on appeal and in his concise statement. Krebs
v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (stating that any issue not set forth in or suggested by an
deemed waived).
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cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; R.I.S.,
36 A.3d [567, 572 (Pa. 2011) (plurality opinion)]. As has been
often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel-Bassett v. Kia Motors
America, Inc., 613 Pa. 371, 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (2003).
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
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Moreover, regarding clear and convincing evidence, we have explained the
following:
[t]he standard of clear and convincing evidence is defined as
enable the trier of fact to come to a clear conviction, without
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
termination of parental rights with regard to any one subsection of section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Here, we focus upon section 2511(a)(2).
Section 2511 provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(a) Gener 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.
***
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
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the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows:
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
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
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature,
however, in enacting the 1970 Adoption Act, concluded
that a parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to
perform the duties.
In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (1986)
(quoting In re: William L., 477 Pa. 322, 383 A.2d 1228, 1239
(1978)).
In re Adoption of S.P., 47 A.3d at 827.
Moreover, we have stated the following:
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In order to terminate parental rights pursuant to 23
Pa.C.S.A. § 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)
(citations omitted).
Further, our Supreme Court instructed the following with respect to
incarcerated parents:
[I]ncarceration is a factor, and indeed can be a determinative
under § 2511(a)(2) where the repeated and continued incapacity
of a parent due to incarceration has caused the child to be
without essential parental care, control or subsistence and that
the causes of the incapacity cannot or will not be remedied.
In re Adoption of S.P., 47 A.3d at 828.
After re-visiting its decision in In re: R.I.S., 36 A.3d 567 (Pa. 2011),
regarding incarcerated parents, the Supreme Court stated the following:
[W]e now definitively hold that incarceration, while not a litmus
test for termination, can be determinative of the question of
ential parental
confinement can be considered as highly relevant to whether
sufficient
to provide grounds for termination pursuant to 23 Pa.C.S. §
2511(a)(2). See e.g. Adoption of J.J.
parent who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties In
re:] E.A.P., 944 A.2d [79, 85 (Pa. Super. 2008)] (holding
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incarcerations and failure to be present for child, which caused
child to be without essential care and subsistence for most of her
with various prison programs).
In re Adoption of S.P., 47 A.3d at 830.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D.
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340.
inquiry with regard to subsection 2511(a)(2):
Next, under 23 Pa.C.S.A. § 2511(a)(2), OYFS has alleged
,
or refusal has caused [Child] to be without the 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
Father. 23 Pa.C.S.A. § 2511(a)(2). In the case at bar, [the trial
court] finds that OYFS has again met its burden under this
portion of the statute with respect to Father. Here, at the time
to
properly care for him. (N.T. 12/13/2013 at pgs. 44-46). Mother
had no permanent residence to which [Child] could be released,
and was still under suspicion of abusing narcotics, and Father
was completely absent. (Id.) Thus, [Child] was without the
essential parental care that was necessary for both his physical
and mental well-being. 23 Pa.C.S.A. § 2511(a)(2); (N.T.
12/13/2013 at pgs. 44-46).
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Furthermore, as of December 13, 2013, the date of the
TPR hearing, Father was still not prepared to properly care for
[Child] because he was incarcerated. (N.T. 12/13/2013 at pg.
17). Therefore, although incarceration in and of itself is not
incarceration created a situation in which he was still not a
placement source for [Child] at the time of the TPR hearing.
See In Re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000)
(holding that incarceration alone is insufficient to terminate
parental rights).
In addition, Father had not completed any of the
mandatory reunification services OYFS required of him, which
included undergoing mental health and drug and alcohol
evaluations, as well as providing proof of a safe and stable home
for [Child]. (Id. at pg. 16).
Thus, the circumstances that existed at the time that
[Child] was released from the hospital, in which he was without
the proper parental care and control necessary for his physical
and mental well-being, still existed at the time of the TPR
hearing, and Father had not taken any remedial steps.
Trial Court Opinion, 4/1/14, at 6-7. Thus, the trial court found clear and
repeated and continued
incapacity, abuse, neglect, or refusal to parent had caused Child to be
without essential parental care, control,
physical or mental well-being, and the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be remedied by
Father. Id. at 7.
The evidence showed that OYFS contacted Father to offer him
parenting resources, but he did not utilize the services. The evidence also
continued incapacity, abuse, neglect, or refusal
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to parent
reasonable efforts to assist in his reunification with Child.
this Court to make credibility and weight determinations different from those
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We
stated in In re Z.P.
that [a parent] will summon the ability to handle the responsibilities of
Id
custody and rearing of his child is converted, upon the failure to fulfill his or
have proper parenting and
fulfillment of his or her potential in a permanent, healthy, safe
In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
Thus, after our careful review of the record in this matter, we discern
actual, credibility and weight determinations are
supported by competent evidence in the record. In re Adoption of S.P.,
47 A.3d at 826-827. The trial court properly considered the history of the
his neglect as a
parent to Child, plus his incarceration, and determined that Father would not
remedy his failure to parent. Father cannot now shift the blame to OYFS for
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his failure to parent Child. Accordingly, it is our conclusion that the trial
cour
sufficient, competent evidence in the record.
In his second issue, Father argues that the trial court failed to
consider, under 42 Pa.C.S.A. § 2511(b), the effect of terminating his
parental rights on the bond he has with Child, and/or the emotional needs
and welfare of Child. Father asserts that, during the hearing, the trial court
placed great weight on the apparent lack of a bond between Father and
Child. Father contends that the record is devoid of any evidence or
Indeed, after we determine that the requirements of section 2511(a)
are satisfied, we proceed to review whether the requirements of subsection
(b) are satisfied. In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc). This Court has stated that the focus in terminating
parental rights under section 2511(a) is on the parent. Id. at 1008.
However, pursuant to section 2511(b), the focus is on the child. Id.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court stated the following:
[I]f the grounds for termination under subsection (a) are
ll give primary consideration to the
developmental, physical and emotional needs and welfare of the
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of the child have been properly interpreted
includeto
In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
consideration of the emotional bonds between the parent and
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Here, the trial court found the following:
[U]nder the second prong of the analysis, terminating
and welfare. 23 Pa.C.S.A. §[ ] 2511. . . (b). In the case at bar,
this [c]ourt finds that there is no significant bond between Father
and [Child]. The only contact that Father has had with [Child]
was on the single occasion when Father visited [Child] shortly
after his birth while he was still in the hospital. (N.T.
12/13/2013 at pg. 15). When OYFS finally made contact with
Father after tirelessly searching for him for nine (9) months,
Father did not request any type of visitation or contact with
[Child]. (Id. at pg. 21). And, during the TPR hearing, which was
the only court proceeding that Father attended throughout the
entire course of this case, this [c]ourt observed both [Child] and
Father, who were present in the court room, and failed to
acknowledge or engage one another, which this [c]ourt finds as
evidence of no appreciable bond between Father and [Child].
(Id. at pg. 67).
Furthermore, [Child] has been placed with [Foster Parents]
for over a year, since shortly after his birth. (Id. at pgs. 14, 47).
[Foster Parents] have provided a loving and nurturing home for
[Child], where he thrives and maintains a relationship with his
two (2) older siblings. (Id. at pgs. 14, 47, & 71). Moreover,
[Foster Parents] are ready, willing, and able to adopt [Child] and
make him a permanent part of their family. (Id. at [pgs. 70-71).
rental rights
to [Child] and allowing [Foster Parents] to adopt him would
clearly best suit his needs and well-being.
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Trial Court Opinion, 4/1/14, at 9.
developmental, physical, and emotional needs and welfare. The trial court
home for Child because of his incarceration, his refusal to perform any of the
mandatory reunification services, and his refusal to maintain significant
contact with Child. Trial Court Opinion, 4/1/14, at 8. Further, the trial court
found that there is no bond between Child and Father. Id. at 9. The trial
court
the best interests of the Child. Id. at 9-10.
As to the bond analysis, we have stated that, in conducting a bonding
analysis, the court is not required to use expert testimony, but may rely on
the testimony of social workers and caseworkers. In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010). This Court has observed that no bond worth
preserving is formed between a child and a natural parent where the child
has been in foster care f
with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa.
earn appropriate
In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008). The
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trial court properly found from the evidence that Father, because of his
bond with Child. Trial Court Opinion, 4/1/14, at 9.
Additionally, as part of its bonding analysis, the trial court
See In re:
T.S.M., 71 A.3d at 267-268 (stating that existence of a bond attachment of
a child to a parent will not necessarily result in the denial of a termination
petition, and the court must consider whether the child has a bond with the
foster parents). The trial court found that Child has a bond with Foster
Parents, who are pre-adoptive, and who have served as his parents since his
release from the hospital after birth. Moreover, Foster Parents have adopted
As there is competent evidence in the record that supports the trial
and welfare, and the absence of any bond with Father, we conclude that the
trial court did not abuse its discretion as to section 2511(b). In re
Adoption of S.P., 47 A.3d at 826-827. Accordingly, we affirm the order
permanency goal to adoption.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
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