J-A35033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.A.K., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: L.D., THE NATURAL FATHER,
Appellant No. 1193 WDA 2014
Appeal from the Order June 18, 2014
In the Court of Common Pleas of Jefferson County
Orphans' Court at No(s): 7A-2014 OC
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 28, 2015
L.D. (“Father”) appeals from the order wherein the trial court
terminated his parental rights to his son M.A.K. We affirm.
M.A.K. was conceived outside of the marriage of his Mother, K.K., to
T.K., her husband at conception.1 The child was born premature and
subsequently diagnosed with cerebral palsy. After several weeks, he was
discharged from the hospital into the kinship foster care of his maternal
grandmother, his current pre-adoptive resource. Jefferson County Children
and Youth Services (“CYS”) supervised the kinship placement. Following the
confirmation of Father’s paternity, the agency placed M.A.K. with Father
____________________________________________
1
K.K. and T.K., the presumptive father, relinquished their respective
parental rights to M.A.K. on June 5, 2014.
J-A35033-14
briefly, but removed him from Father’s care after Father permitted Mother’s
unsupervised contact with the child and upon discovery of an extensive,
untreated diaper rash. The rash was so severe that Father ultimately pled
guilty to endangering the welfare of a child and was sentenced to two to five
years imprisonment. Thereafter, CYS returned M.A.K. to the maternal
grandmother, where he has remained since October 2012.
M.A.K. is currently two-and-one-half years old. Due to cerebral palsy,
he has low muscle tone, receives occupational, physical, and speech
therapies, and wears a helmet to protect his brain from injury. The juvenile
court formally adjudicated M.A.K. dependent on October 24, 2012. Six
months later, as part of the April 24, 2013 permanency review hearing, the
juvenile court found aggravated circumstances against Father, based upon
his alleged failure to maintain substantial and continuing contact with his
son. The juvenile court also formally changed the child’s permanency goal
to adoption. Father, who did not attend the hearing, failed to appeal the
final order finding aggravated circumstances or changing the permanency
goal to adoption.
Father is incarcerated at SCI Pine Grove. He is serving the sentence
imposed on the above-referenced guilty plea concurrently with an aggregate
term of eight and one-half to forty-five years imprisonment that was
originally imposed in 2006. He was on parole during his son’s conception
and birth, but immediately after the filing of the charges associated with the
-2-
J-A35033-14
diaper rash, he violated parole. Prior to his eventual apprehension and re-
incarceration, he was a fugitive for several weeks. Despite the protracted
term of imprisonment, with credit for time served and the application of the
RRRI alternative minimum sentence, Father hopes to be released as early as
July 2015.2
On March 14, 2014, CYS scheduled one supervised visitation between
Father and M.A.K. at SCI Pine Grove. The agency filed the underlying
petition to terminate Father’s parental rights two weeks after that visit. On
June 18, 2014, the trial court convened an evidentiary hearing and granted
CYS’s petition as to Father, terminating his parental rights pursuant to 23
Pa.C.S. § 2511(a)(5), (8) and (b). This timely appeal followed.3
Father presents the following questions for our review:
[1.] Whether the Trial Court committed substantial error in
entering an Aggravated Circumstances finding in April 2013 on
____________________________________________
2
Where, as here, the minimum sentence is greater than three years, the
alternative minimum sentence “shall be equal to five-sixths of the minimum
sentence[.]” 61 Pa.C.S § 4505(c). Quoting 37 Pa.Code § 96.1(b), our
Supreme Court explained in Commonwealth v. Chester, 101 A.3d 56, 57
(Pa. 2014), “if an eligible offender ‘successfully completes the [RRRI]
program plan, maintains a good conduct record and continues to remain an
eligible offender,’ he or she may ‘be paroled on the RRRI minimum sentence
date unless the [Parole] Board determines that parole would present an
unreasonable risk to public safety or that other specified conditions have not
been satisfied.’”
3
Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement
of errors complained of on appeal concomitant with the notice of appeal.
-3-
J-A35033-14
the basis that the Father failed to maintain substantial continuing
contact with the minor child between October 2012 and April
2013, when the Father regularly had weekly, overnight visits
with the minor through at least January 2013.
[2.] Whether the Trial Court committed an error and/or abused
its discretion when it eliminated the Agency's burden to make
reasonable efforts to reunify father and the minor child.
[3.] Whether the Trial Court committed an error in terminating
Father's parental rights where Agency failed to assist Father in
maintaining a relationship with the minor child, and the same
inaction prevented further development of an existing bond
between Father and son.
[4.] Whether the Trial Court committed an error and/or abuse of
discretion in terminating Father's rights when the Agency failed
to show by evidence that Father failed to meet the Agency's
goals.
[5.] Whether the Trial Court committed an error and/or abuse of
discretion in finding that the termination of Father's rights was in
the best interest of the developmental, physical, and emotional
needs and welfare of the child.
Father’s brief at 4 (Father’s issues reordered for clarity).
We review the orphans’ court’s determination for an abuse of
discretion. In re D.C.D. __ A.3d __, 2014 WL 7089267 (Pa. 2014) (“In re
D.C.D. II”) (“When reviewing a trial court's decision to grant or deny a
termination of parental rights petition, an appellate court should apply an
abuse of discretion standard, accepting the findings of fact and credibility
determinations if they are supported by the record, and reversing only if the
trial court made an error of law or abused its discretion.”). This is a highly
deferential standard, and to the extent that the record supports the court’s
decision, we must affirm even though evidence exists that would also
-4-
J-A35033-14
support a contrary determination. In re A.S., 11 A.3d 473, 477 (Pa.Super.
2010). CYS has the burden of proving the statutory grounds for termination
by clear and convincing evidence. In re Adoption of L.J.B., 18 A.3d 1098
(Pa. 2011).
We address Father’s first three issues collectively, and we reject his
attempts to introduce aspects of the prior dependency proceedings before
the juvenile court as grounds to reverse the orphans’ court’s order
terminating his parental rights. In essence, Father complains that the
juvenile court erred in: (1) finding aggravated circumstances against him;
(2) relieving the agency of its obligation to provide reasonable efforts toward
reunification; (3) and changing M.A.K.’s permanency goal from reunification
to adoption. Specifically, Father challenges the juvenile court’s finding of
aggravated circumstances, which permitted CYS to reallocate its resources
from reunification toward adoption and relieved the agency from its burden
of making reasonable efforts to reunite him with M.A.K. In support of these
arguments, Father stresses facts that contradict the juvenile court’s factual
finding regarding Father’s sustained lack of contact with M.A.K. during 2013.
Father also contends that he was proceeding pro se when the pertinent
orders were entered, but he does not explain whether he waived counsel or
if the juvenile court failed to appoint counsel for those proceedings.
Nevertheless, recognizing that the procedural posture of this appeal
implicates only the orphans’ court order that terminated his parental rights
to M.A.K. and not any prior juvenile court orders that Father failed to appeal,
-5-
J-A35033-14
Father attempts to invoke our holding in In re D.C.D., 91 A.3d 173
(Pa.Super. 2014), overruled by In re D.C.D. II, supra, as an end run
around the finality of the juvenile court’s decisions. The crux of Father’s
argument is that, since CYS failed to provide reasonable efforts toward
achieving his reunification with M.A.K., the agency’s petition to terminate his
parental rights is fundamentally defective. For the following reasons, we
disagree.
In this Court’s decision in In re D.C.D., we reversed an order
terminating parental rights because the orphans’ court previously
determined that CYS failed to make reasonable efforts to reunify the family
during the juvenile court proceedings. In short, the In re D.C.D. Court held
that, when read in pari materia, § 2511(a) of the Adoption Act and §
6351(f)(9) of the Juvenile Act required agencies to establish reasonable
efforts as a prerequisite to filing a petition for terminating parental rights.
Accordingly, we found that the orphans’ court was precluded from
terminating parental rights absent the demonstration of reasonable efforts.
Father’s reliance upon In re D.C.D. is misplaced. Most importantly,
our Supreme Court recently reversed our holding in In re D.C.D. and
specifically held that the agency’s effort during the juvenile court
proceedings is not relevant to the orphans’ court’s determination of whether
to terminate parental rights pursuant to 23 Pa.C.S. § 2511(a) and (b). See
In re D.C.D. II, supra. Specifically, the High Court reasoned,
-6-
J-A35033-14
Accordingly, while reasonable efforts should be considered
and indeed, in the appropriate case, a trial court could insist
upon their provision, we hold that nothing in the language or the
purpose of Section 6351(f)(9) forbids the granting of a petition
to terminate parental rights, under Section 2511, as a
consequence of the agency's failure to provide reasonable efforts
to a parent.
Id. at *9. Hence, Father’s invocation of our now-abrogated holding
requiring agencies to demonstrate evidence of reasonable efforts as a
prerequisite to terminating parental rights is unavailing.
Accordingly, we reiterate herein that CYS’s effort in this case is
irrelevant to the determination of whether the agency established the
statutory grounds to terminate Father’s parental rights. Indeed, “the focus
of a termination proceeding is on the parents’ conduct, and the adequacy of
the agency’s reunification efforts is not a valid consideration . . . Thus, [an
agency’s reunification efforts] alone is not a basis to disturb [a] trial court's
order terminating . . . parental rights.” In re A.D., 93 A.3d 888, 896
(Pa.Super. 2014) citing In re B.L.W., 843 A.2d 380, 384 n.1 (Pa.Super.
2004) (en banc) (“the adequacy of CYS's efforts toward reunification is not a
valid consideration at the termination of parental rights stage, as the law
allows CYS to give up on the parent once the service plan goal has been
changed to adoption”) (internal quotes and brackets omitted). Father’s
claim fails.
Moreover, contrary to Father’s protestations, this case is
distinguishable from a scenario where a child protective service agency
simply abandons a parent during the dependency proceedings. Indeed, in
-7-
J-A35033-14
the case at bar, neither the juvenile court nor the orphans’ court determined
that CYS failed to make reasonable efforts to reunify Father with M.A.K. In
reality, the juvenile court found aggravated circumstances against Father
and relieved CYS of its obligation to commit additional resources toward
Father’s reunification. As we previously noted, Father failed to appeal the
pertinent juvenile court orders. Thus, even though Father alleges facts that
appear to contradict the juvenile court’s finding of aggravating
circumstances, that determination is final and cannot be challenged
collaterally at this juncture.4
Next, we address whether CYS established the statutory grounds for
terminating Father’s parental rights. Requests to involuntarily terminate a
biological parent’s parental rights are governed by 23 Pa.C.S. § 2511, which
provides in pertinent part as follows:
____________________________________________
4
Even if we were to attempt to revisit the juvenile court’s finding of
aggravated circumstances, which we do not, the certified record transmitted
to this court would be insufficient to conduct a meaningful review. Since the
only record before us on appeal relates to the termination of Father’s
parental rights in orphans’ court, we cannot review the juvenile court record
to examine Father’s claims of errors in the dependency action. While either
party was free to introduce any and all of the dependency records as
exhibits during the orphans’ court’s proceedings, that did not occur herein.
The only document in the certified record that has any bearing on the
juvenile court proceeding is the notes of testimony of a brief permanency
review hearing on March 26, 2014. Significantly, that hearing occurred
several months after the determination of aggravated circumstances and the
concomitant goal change. Hence, it sheds no light upon Father’s complaints.
Thus, even if we could revisit the juvenile court’s decisions at this late date,
we have nothing to review.
-8-
J-A35033-14
(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:
....
(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 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.
-9-
J-A35033-14
The test for terminating parental rights consists of two parts. In In re
L.M., 923 A.2d 505, 511 (Pa.Super. 2007), we explained:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent's conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
We need only agree with the trial court’s decision as to one subsection of 23
Pa.C.S. § 2511(a) and the subsection (b) analysis in order to affirm the
termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
2004) (en banc). Herein, the certified record supports the trial court’s
determination that CYS established the statutory grounds to terminate
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(8) and (b).
Hence, we do not address the remaining statutory grounds.
We have explained our review of the evidence pursuant to
§ 2511(a)(8), as follows:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), the following factors must be demonstrated: (1)
The child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
- 10 -
J-A35033-14
In Re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa.Super. 2003).
Thus, in order to satisfy the requirements of § 2511(a)(8) in the case at bar,
CYS was required to produce clear and convincing evidence that: (1) M.A.K.
has been removed from Father for at least twelve months; (2) the conditions
which led to the child’s removal continue to exist; and (3) involuntary
termination of parental rights would best serve M.A.K.’s needs and welfare.
See In re Adoption of R.J.S., 901 A.2d 502 (Pa.Super. 2006).
Instantly, CYS met its burden of proof. Initially, we observe that since
M.A.K. was removed from Father’s care during October of 2012, the agency
satisfied the threshold requirement that the child be removed for at least
twelve months. Next, as it relates to the continued existence of the
conditions that predicated the removal, the certified record demonstrates
that Father’s compliance with CYS throughout these proceedings was
minimal.
During the evidentiary hearing, Annett Town, the CYS caseworker
assigned to the family, testified about Father’s reunification efforts and his
interaction with M.A.K. Ms. Town stated that Father was engaged in the
process, at least initially, but failed to maintain his efforts or cooperate with
CYS. For example, Father participated in the preliminary stages of a family
preservation program, but stopped participating after attending one class.
N.T., 6/5/14, at 14, 21. Father reengaged his efforts somewhat in prison by
completing mental health and substance abuse programs. Id. at 18.
- 11 -
J-A35033-14
However, those programs did not address the issues that led to CYS
involvement: Father’s failures as a parent and the resultant guilty plea to
endangering the welfare of children.
Likewise, Father did not maintain consistent physical contact with
M.A.K. or send him letters regularly. While Father’s mother reported
unauthorized contact between Father and M.A.K. until his incarceration
during April 2013, Ms. Towns confirmed that Father’s last documented
contact with M.A.K. occurred during January 2013. Id. at 16. She further
highlighted that, prior to Father’s April 2013 incarceration, Father was a
fugitive and did not contact CYS or M.A.K. for approximately two months.
Id. at 21-22. We observe that Father requested a visitation with M.A.K. at
SCI Pine Grove, which was provided. However, by the time the necessary
CYS and prison documentation was completed, the visit did not occur until
March of 2014. Id. at 13. In the interim, Father failed to send letters or
correspondence to his son through CYS or Maternal Grandmother. Instead,
Father claimed, again without documentation, that he forwarded his
correspondence to M.A.K. by way of the paternal grandmother. Id. at 18.
The foregoing testimony demonstrates that the conditions which led to
M.A.K.’s removal continue to exist. Succinctly stated, Father has done little
to remedy parental deficiencies or maintain contact with his son. He failed
to utilize any reunification resources prior to his incarceration and completed
only two programs in prison: mental health and substance abuse. Indeed,
- 12 -
J-A35033-14
when provided resources to address his deficient parenting skills, Father
squandered that opportunity and quit the program after one class.
Furthermore, there has been scant contact with M.A.K. While Father claimed
to have mailed M.A.K. letters in care of the paternal grandmother, who was
not the custodial grandparent, he did not document that correspondence,
disclose its frequency, or indicate whether the letters were delivered to his
son. Thus, the evidence sustains the orphans’ court’s determination that
CYS established the grounds to terminate Father’s parental rights pursuant
to § 2511(a)(8).
Next, we address whether the trial court abused its discretion in
finding that CYS presented sufficient evidence to demonstrate by clear and
convincing evidence that terminating Father’s parental rights and
permanently severing the existing bond between him and M.A.K. would best
serve the child’s needs and welfare pursuant to § 2511(b). While the
Adoption Act does not mandate that the trial court consider the effect of
permanently severing parental bonds, our case law requires it where a bond
exists to some extent. See In re E.M., 620 A.2d 481, 485 (Pa. 1993).
The extent of the trial court’s bond-effect analysis depends upon the
circumstances of a particular case. In re K.Z.S., 946 A.2d 753, 763
(Pa.Super. 2008). We have emphasized that, while a parent’s emotional
bond with his child is a major aspect of the § 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the trial court
- 13 -
J-A35033-14
when determining what is in the best interest of the child. In re K.K.R.-S.,
958 A.2d 529, 535-536 (Pa.Super. 2008). Indeed, the mere existence of an
emotional bond does not preclude the termination of parental rights. See In
re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial court’s decision to terminate
parental rights was affirmed where court balanced strong emotional bond
against parents’ inability to serve needs of child).
As we explained in In re K.Z.S., supra at 763 (emphasis omitted),
In addition to a bond examination, the court may equally
emphasize the safety needs of the child under subsection (b),
particularly in cases involving physical or sexual abuse, severe
child neglect or abandonment, or children with special needs.
The trial court should also examine the intangibles such as the
love, comfort, security and stability the child might have with the
foster parent. Another consideration is the importance of
continuity of relationships to the child and whether the parent
child bond, if it exists, can be severed without detrimental
effects on the child. All of these factors can contribute to the
inquiry about the needs and welfare of the child.
See also In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010) (orphans’ court
can emphasize safety needs, consider intangibles, such as love, comfort,
security, and stability child might have with the foster parent, and
importance of continuity of existing relationships).
Herein, the trial court concluded that severing the parental bond and
freeing M.A.K. for adoption was in the child’s best interest because the
parental bond that nurtures safety, security, and permanency exists
between M.A.K. and maternal grandmother rather than with Father. See
Trial Court Opinion, 6/18/14, at 6. Specifically, the court determined,
- 14 -
J-A35033-14
As his caregiver essentially since birth, Grandma has also
tended to the child's emotional needs and has afforded him the
opportunity to know and interact with members of his extended
family, including his paternal grandmother. Additionally,
whatever bond he and Father may have developed in the first
few months of his life have been severed. In the last seventeen
months, [M.A.K.] has seen Father only once for a two-hour
period of time, and while Father may deem it significant that the
boy allowed his embrace before leaving Pine Grove . . . , the
Court does not deem his compliance to be evidence of a
father/son bond that will be detrimentally affected by
terminating Father's rights, especially when [M.A.K.] was only
four months old when the two were last together.
Id.
Our review of the certified record confirms the orphans’ court’s
conclusion. As it relates to M.A.K.’s needs and welfare, Ms. Town explained
that the agency did not conduct a formal parent-child bonding assessment
due to Father’s inconsistent contacts, fugitive status, and eventual re-
incarceration. N.T., 6/5/14, at 18-19. Nevertheless, based upon the facts
of the case, she does not believe that a meaningful bond exists between
Father and M.A.K. Id. at 19. Ms. Town highlighted the limited contact that
they shared during M.A.K.’s life. Id. She noted that the last time that
Father had physical contact with M.A.K. was March 2014. Id. at 13. While
Father’s behavior was appropriate during the two-hour visitation at SCI Pine
Grove, and although M.A.K. eventually permitted Father to hug him, the
child was uncomfortable and tentative throughout the visitation. Id. at 13,
17.
In contrast to the limited interaction between Father and M.A.K., Ms.
- 15 -
J-A35033-14
Town testified that Maternal Grandmother satisfies M.A.K.’s medical
concerns and attends to all of his needs. Id. at 22. She highlighted that,
except for approximately two months, Maternal Grandmother has cared for
the child for his entire life. Id. at 12. Maternal Grandmother anticipates
adopting M.A.K. after Father’s parental rights are terminated. Id. at 14.
Ms. Town also noted that since Maternal Grandmother exercises partial
physical custody of M.A.K.’s three half-siblings, he will continue to enjoy
those familial relationships after his adoption. Id. at 20, 23. In sum, Ms.
Town opined that terminating Father’s parental rights was in M.A.K.’s best
interest. Id. at 14-15.
Accordingly, in light of the frail bond between Father and M.A.K. and
the additional factors that we stressed in In re K.Z.S., supra at 763, we
find that the record confirms that terminating Father’s parental rights best
satisfies M.A.K.’s developmental, physical, and emotional needs and welfare.
For all of the foregoing reasons, we affirm the trial court order
terminating Father’s parental rights to M.A.K. pursuant to § 2511(a)(8) and
(b).
Order affirmed.
- 16 -
J-A35033-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
- 17 -