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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.D.L. A/K/A M.L., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: A.B., FATHER
No. 1994 EDA 2014
Appeal from the Decree June 19, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000206-2014
CP-51-DP-0002277-2012
FID: 51-FN-003419-2012
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 16, 2015
Appellant, A.B. (Father) appeals from the June 19, 2014 decree
involuntarily terminating his parental rights to his son, M.D.L., born in
December 2012.1 After careful review, we affirm.2
The trial court aptly set forth the factual and procedural history of this
case as follows.
1
By separate decrees entered on June 19, 2014, the trial court involuntarily
terminated the parental rights of M.D.L.’s mother, K.E.P. (Mother), and the
putative father, D.L. Neither K.E.P. nor D.L. filed notices of appeal, and they
are not parties to this appeal.
2
The Child Advocate did not file an appellee brief with this Court. During
the termination hearing, the Child Advocate made a closing argument in
which she supported the involuntary termination of Father’s parental rights.
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On December 17, 2012, the Department of
Human Services (“DHS”) received a general
protective service report (“GPS”) alleging that
[M.D.L.], was exposed to illegal substances in utero
and that [] Mother tested positive for cocaine at the
delivery. On December 19, 2012, Mother was
discharged from Albert Einstein Medical Center;
however, [M.D.L.] remained in the hospital until his
discharge on December 20, 2012. DHS obtained an
Order for Protective Custody (“OPC”) for [M.D.L.]
and placed him in foster care[.]
On January 8, 2013, [M.D.L.] was adjudicated
dependent and committed to DHS. In a permanency
review hearing[] held on March 26, 2013, and June
26, 2013, the [trial] court ordered [M.D.L.] to
remain committed to DHS. In a permanency review
hearing held on September 18, 2013, the [trial]
court ordered that [M.D.L.] must remain committed
to DHS and found that [M.D.L.]’s putative father,
D.L., was not [M.D.L.]’s biological father. In the
same hearing the [trial] court ordered DHS to search
for [M.D.L.]’s biological father.
On October 24, 2013, in a permanency review
hearing DHS informed the [trial] court that Father
had reached out to DHS indicating he may be the
father. The [trial] court ordered Father to have a
paternity test, which was scheduled to take place on
November 6, 2013. The test’s results determined
A.B. to be [M.D.L.]’s biological Father. Father was
notified of the results [i]n January 2014, but a
Family Service Plan (“FSP”) was developed for Father
by DHS on November 11, 2013. Father’s FSP was
mailed by DHS and received by him. Father’s FSP
objectives were to participate in an evaluation
assessment for drug/alcohol abuse; to comply with
all treatment recommendations; to maintain and
occupy suitable housing for [M.D.L.], with suitable
space, heat and all other operable utilities; and
provide authorization forms to allow DHS and the
provider agency to obtain copies of the evaluations
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and progress reports; to enroll and regularly attend
General Equivalence Diploma classes (“GED”); or a
job training program; to attend job counseling and
referral sessions, to complete parenting education
classes; and to participate in placement activities
and visit [M.D.L.] regularly.
On January 21, 2014, in a permanency review
hearing, the [trial] court found Father had not
complied with his FSP objectives. The [trial] court
found reasonable efforts on behalf of DHS, and
scheduled a contested Goal Change/Termination
hearing for April 11, 2014.
Trial Court Opinion, 8/18/14, at 1-2.
On April 29, 2014, the Philadelphia Department of Human Services,
Children and Youth Division (DHS), filed a petition for the involuntary
termination of Father’s parental rights. On the same date, DHS filed a
petition for a goal change to adoption. A hearing was held on the petitions
on June 19, 2014, at which time M.D.L. was 18 months old and had been in
placement since his birth. DHS presented the testimony of Latoya Hermitt,
a caseworker, and Father testified on his own behalf by telephone from the
State Correctional Institution (SCI) Chester, where he had been incarcerated
since before M.D.L.’s birth. On June 19, 2014, the trial court involuntarily
terminated Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b).3 On July 9, 2014, Father timely filed a notice of
3
In addition, on June 19, 2014, the trial court changed M.D.L.’s goal to
adoption. Father does not raise any issues on appeal with respect to the
goal change order.
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appeal and a concise statement of errors complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). Subsequently,
on August 18, 2014, the trial court filed its Rule 1925(a) opinion.
On appeal, Father presents the following question for our review.
Whether the trial court committed reversible error
when it involuntarily terminated Father’s parental
rights where such determination was not supported
by clear and convincing evidence under the Adoption
Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8)?
Father’s Brief at 4.
We review the termination decree according to the following standard.
[A]ppellate courts must apply an abuse of
discretion standard when considering a trial court’s
determination of a petition for termination of
parental rights. As in dependency 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., 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.;
[In re] R.I.S., 36 A.3d [567,] 572 ([Pa.] 2011)
[(plurality)]. 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., 34 A.3d 1, 51 ([Pa.] 2011);
Christianson v. Ely, 838 A.2d 630, 634 ([Pa.]
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.
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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., [supra] 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 record and
the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re
Adoption of Atencio, 650 A.2d 1064, 1066 ([Pa.]
1994).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012) (parallel citations
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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
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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) (citations omitted), citing
23 Pa.C.S. § 2511. The burden is on the petitioner to prove by clear and
convincing evidence that the asserted statutory grounds for seeking the
termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009).
Instantly, we review the decree pursuant to Section 2511(a)(1) and
(b), which provide as follows.
§ 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 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
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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; see also In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc) (stating that, this Court need only agree with any one
subsection of Section 2511(a), in addition to Section 2511(b), in order to
affirm the termination of parental rights), appeal denied, 863 A.2d 1141 (Pa.
2004).4
With respect to Section 2511(a)(1), “the moving party must produce
clear and convincing evidence of conduct, sustained for at least the six
months prior to the filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or failure to perform
parental duties.” In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008), citing
In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006).
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
4
Notably, Sections 2511(a)(5) and (8) do not provide a basis for the
termination of Father’s parental rights because Father was incarcerated at
the time of M.D.L.’s placement; therefore, M.D.L. was not removed from
Father’s care. See In re C.S., 761 A.2d 1197 (Pa. Super. 2000) (en banc);
In re Z.P., 994 A.2d 1108 (Pa. Super. 2010).
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conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child
pursuant to Section 2511(b).
Id., quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa.
1998).
In S.P., our Supreme Court discussed In re Adoption of McCray,
331 A.2d 652 (Pa. 1975), a case wherein the Court considered the issue of
the termination of parental rights of incarcerated persons involving
abandonment, which is currently codified at Section 2511(a)(1). The S.P.
Court stated the following.
Applying in McCray the provision for termination of
parental rights based upon abandonment, now
codified as § 2511(a)(1), we noted that a parent
“has an affirmative duty to love, protect and support
his child and to make an effort to maintain
communication and association with that child.”
[McCray, supra] at 655. We observed that the
father’s incarceration made his performance of this
duty “more difficult.” Id.
S.P., supra at 828. The S.P. Court continued by stating the following.
[A] parent’s absence and/or failure to support
due to incarceration is not conclusive on the
issue of abandonment. Nevertheless, we are
not willing to completely toll a parent’s
responsibilities during his or her incarceration.
Rather, we must inquire whether the
parent has utilized those resources at his
or her command while in prison in
continuing a close relationship with the
child. Where the parent does not exercise
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reasonable firmness in declining to yield to
obstacles, his other rights may be forfeited.
[McCray, supra] at 655 (footnotes and internal
quotation marks omitted).
Id. (emphasis added); see also In re B.,N.M., 856 A.2d 847, 855 (Pa.
Super. 2004) (internal citations omitted) (stating that a parent does not
perform his or her parental duties by displaying a “merely passive interest in
the development of the child”), appeal denied, 872 A.2d 1200 (Pa. 2005).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows.
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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Father argues that DHS failed to prove by clear and
convincing evidence that he “refused or failed to perform parental duties”
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pursuant to Section 2511(a)(1). Specifically, Father asserts that he
“attempted to utilize the resources available to him in prison in an effort to
pursue a relationship with his child, notwithstanding the fact that Father’s
paternity was just confirmed in January of 2014. In fact, Father has
attempted to establish a relationship since he presented himself to DHS as a
possible father in August of 2013[.]” Father’s Brief at 12. Upon review, we
discern no abuse of discretion by the trial court in terminating Father’s
parental rights pursuant to Section 2511(a)(1).
The testimonial evidence reveals that M.D.L. was placed in the custody
of DHS upon birth in December 2012, at which time Father was incarcerated.
N.T., 6/19/14, at 7, 17. DHS believed that another man, D.L., was M.D.L.’s
natural father until Father advised by letter in August of 2013, that he could
be M.D.L.’s father. Id. at 7-8. Latoya Hermitt, the DHS caseworker,
testified that Father’s paternity test was scheduled for November 6, 2013.
Id. at 14. It is undisputed that Father learned the paternity test result
confirming his parentage in January 2014. Trial Court Opinion, 8/18/14, at
4; N.T., 6/19/14, at 14. However, Father testified he learned Mother was
pregnant before he became incarcerated. N.T., 6/19/14, at 18. Father
testified on cross-examination by the Child Advocate as follows.
Q. So you said you had a conversation with mom
when she was pregnant?
A. Yes, that was before she even was showing….
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Q. But at that point you obviously knew it was a
possibility that you were the father?
A. She was with other dudes, I was with other
females, you know, … she came to me, I told her, I
said, if [the unborn child is] mine I will take care of
him.
Id. at 19.
The trial court found Father’s conduct warranted termination pursuant
to Section 2511(a)(1) because, in part, “[i]t took Father eight months from
the birth of his son before he decided to contact DHS to request a paternity
test, although he knew there was a good possibility he was the [f]ather due
to his conversation with [M]other during her pregnancy.” Trial Court
Opinion, 8/18/14, at 9. We agree. Moreover, Father was not relieved of his
parental duties before his parentage was confirmed by the paternity test.
The testimonial evidence reveals that Father failed to perform his
parental duties within the first eight months of M.D.L.’s life and all of the
months thereafter. Hermitt testified that Father has never sent any cards to
M.D.L., including, but not limited to, M.D.L.’s first birthday. N.T., 6/19/14,
at 13. Further, Father never asked to have visits with M.D.L., has never
asked how M.D.L. is doing, and he has never provided financial support for
M.D.L. Id. at 9, 13. Father requested a picture of M.D.L. one time, in May
2014. Id. at 9. As such, the testimonial evidence overwhelmingly
demonstrates that Father failed to perform his parental duties during
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M.D.L.’s entire life, which was in excess of the requisite six-month period
prior to the filing of the termination petition. Rather, the evidence
demonstrates that, when M.D.L. was eight months old, Father started to
display a “merely passive interest in the development of” M.D.L., which does
not satisfy his parental duties. See B.,N.M., supra.
Father testified he became incarcerated near the end of 2013, for a
crime involving controlled substances, and his maximum sentence is June
2015. N.T., 6/19/14, at 17, 19. Father testified that, if he is released on
parole, he will reside in a halfway house. Id. at 17-18. Father testified he
completed a drug program while in prison, and he has signed up in prison
for a parenting class. Id. at 20. Father testified, “I want to step up and be
the father of this kid, like, you know, take care of him.” Id. at 18.
We are unpersuaded by Father’s desire to start performing his parental
duties when M.D.L. was eighteen months of age, after M.D.L. has lived all of
those months with his foster mother, with whom Hermitt testified M.D.L. is
bonded. Id. at 11-12. In contrast, Hermitt testified that M.D.L. does not
know Father at all. Id. at 11. Based on the foregoing, we conclude that the
trial court properly terminated Father’s parental rights pursuant to Section
2511(a)(1).
In light of the requisite bifurcated analysis in involuntary termination
cases, we next review the decree pursuant to Section 2511(b). With respect
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to the relevant bond analysis, our Supreme Court stated that, “[c]ommon
sense dictates that courts considering termination must also consider
whether the children are in a pre-adoptive home and whether they have a
bond with their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013)
(citation omitted). Moreover, the Court directed that, in weighing the bond
considerations pursuant to section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” The Court observed that, “[c]hildren are
young for a scant number of years, and we have an obligation to see to their
healthy development quickly. When courts fail … the result, all too often, is
catastrophically maladjusted children.” Id. at 269.
As mentioned above, in this case, M.D.L. does not know Father. N.T.,
6/19/14, at 11. M.D.L. shares a bond with his foster mother, to whom he
looks to meet his needs. Id. at 11-12. Hermitt testified that M.D.L. would
not suffer any irreparable harm if Father’s parental rights are terminated
because M.D.L. “has never met his father or had any contact with him.” Id.
at 12-13. As such, we conclude that the testimonial evidence supports the
trial court’s decision that terminating Father’s parental rights would best
serve the developmental, physical, and emotional needs and welfare of
M.D.L.
Based on the foregoing, we conclude the trial court did not abuse its
discretion or commit an error of law when it involuntarily terminated Father’s
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parental rights pursuant to Section 2511(a)(1) and (b). See S.P., supra.
Accordingly, we affirm the trial court’s June 19, 2014 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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