In the Interest of: J.M., Appeal of: J.A.M.

J-S01044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: J.A.M., SR., NATURAL :
FATHER : No. 1463 WDA 2014

Appeal from the Order August 11, 2014
In the Court of Common Pleas of Lawrence County
Orphans’ Court at No(s): 20014 of 2014 O.C. Adoption

BEFORE: GANTMAN, P.J., JENKINS, J. and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 29, 2015

Appellant, J.A.M., Sr. (“Father”), appeals from the order entered in the

Lawrence County Court of Common Pleas, which involuntarily terminated his

parental rights to his minor child, J.M. (“Child”). We affirm.

In its opinion, the trial court fully set forth the relevant facts of this

case. Therefore, we have no reason to restate them. Procedurally, on

March 14, 2014, Lawrence County Children and Youth Services (“CYS”) filed

a petition for involuntary termination of Father’s parental rights to Child.1

The court held a hearing on the petition on July 31, 2014. On August 14,

2014, the court entered an order involuntarily terminating Father’s parental

rights to Child. Father filed a timely notice of appeal on September 9, 2014,

1
The petition also sought to terminate the parental rights of B.M.L.
(“Mother”), who is not a party to this appeal. Following a hearing, the court
terminated Mother’s parental rights by a separate order filed on April 16,
2014.
J-S01044-15

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i).

Father raises the following issues for our review:

WHETHER [CYS] PROVIDED BY CLEAR AND CONVINCING
EVIDENCE THAT [FATHER] 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 [CHILD] OR HAS REFUSED OR
FAILED TO PERFORM HIS PARENTAL DUTIES.

WHETHER [CYS] PROVIDED BY CLEAR AND CONVINCING
EVIDENCE THAT THE CONDITIONS AND CAUSES OF THE
INCAPACITY, ABUSE, NEGLECT OR REFUSAL CANNOT OR
WILL NOT BE REMEDIED BY [FATHER].

WHETHER [CYS] PROVIDED BY CLEAR AND CONVINCING
EVIDENCE THAT IT IS IN THE BEST INTEREST OF [CHILD]
THAT [FATHER’S] PARENTAL RIGHTS BE TERMINATED.

(Father’s Brief at 5).

The standard and scope of review applicable in termination of parental

rights cases are as follows:

When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law,
or insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision
the same deference that it would give to a jury verdict.
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.

Furthermore, we note that the trial court, as the finder of
fact, is the sole determiner of the credibility of witnesses

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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 clear and convincing evidence
the existence of grounds for doing so.

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.
We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even though the record could support an
opposite result.

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) (internal citations omitted).

CYS sought 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:

* * *

(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.

* * *

(b) Other considerations.—The court in
terminating the rights of a parent shall give primary

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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.A. § 2511(a)(2), (b). “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., 994

A.2d 1108, 1117 (Pa.Super. 2010).

Under Section 2511(b), the court must consider whether termination

will best serve the child’s needs and welfare. In re C.P., 901 A.2d 516

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child.” Id.

at 520. “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.

When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.

Id. (internal citations omitted).

“The statute permitting the termination of parental rights outlines

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certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and may properly have his…rights terminated.” In re

B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001).

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 court 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 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 [the child’s] physical
and emotional needs.

Where a parent is incarcerated, the fact of incarceration

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J-S01044-15

does not, in itself, provide grounds for the termination of
parental rights. However, a parent’s responsibilities are
not tolled during incarceration. The focus is on whether
the parent utilized resources available while in prison to
maintain a relationship with his…child. An incarcerated
parent is expected to utilize all available resources to
foster a continuing close relationship with his…children.

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 and quotation marks omitted).

“[A] parent’s basic constitutional right to the custody and rearing of

his…child is converted, upon the failure to fulfill his…parental duties, to the

child’s right to have proper parenting and fulfillment of his…potential in a

permanent, healthy, safe environment.” Id. at 856.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the order and well-reasoned opinion of the Honorable

Eugene E. Fike, II, we conclude Father’s issues merit no relief. The trial

court’s order and Rule 1925(a) opinion comprehensively discuss and

properly dispose of the questions presented. (See Trial Court Opinion, filed

September 23, 2014, at 2-7; Trial Court Order, filed August 14, 2014, at 2-

3) (finding: Father was incarcerated for various periods of time beginning in

2008, including at time of hearing on July 31, 2014; after Father’s release

from prison in July 2013, CYS prepared permanency plan and family service

plan with primary goal of reunification; Father incurred new criminal charges

in December 2013; Father did not exert significant effort to achieve

objectives of plans, which included treatment of his drug and alcohol

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J-S01044-15

addictions and achievement of financial and personal stability; Father failed

drug tests on multiple occasions; although Father made contact for drug and

alcohol assessment, he failed to follow up with intake or treatment

recommended by Drug and Alcohol Commission; Father did not participate in

required psychological evaluations; Father has not demonstrated financial

and personal stability; in December 2013 meeting with CYS caseworker,

Father reported his housing circumstances were uncertain because of his

failure to pay rent; Father’s testimony was unclear as to planned living

arrangements after his expected release from prison in August 2014; Father

has cancelled multiple scheduled visits with Child; classes and programs

Father completed while in prison were not relevant to family service plan

requirements and Father’s specific needs for rehabilitation; CYS caseworker

testified that Child has progressed in residential treatment facility; Child has

far fewer outbursts and exhibits much less disruptive behavior; Child

appears happy and well-adjusted, talking and interacting positively with

foster family; caseworker testified that Child did not display significant

positive bond with Father; Father failed to take responsibility for his previous

failings and addictions, and failed to take advantage of opportunity to

demonstrate improvement in parenting skills and ability to care for Child

responsibly and safely; CYS proved by clear and convincing evidence that

continued incapacity, neglect, and refusal of Father has caused Child to be

without essential parental care, control, and subsistence necessary for

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Child’s physical or mental well-being; evidence is clear and convincing that

Father cannot or will not remedy conditions that led to termination of his

parental rights, and termination will best serve Child’s needs and welfare).

Accordingly, we affirm on the basis of the trial court opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2015

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IN THE COURT OF COMMON PLEAS OF LAWHENCE COUNTY
PENNSYLVANIA

IN THE INTEREST OF: )
J. M., a minor ) No. 20014 of2014, D.C. Adoption g, Y""-.
)

STATEMENT OF 1RIAL COURT PURSUANT TO PAR.A.P. 1925

The reasons for the rulings and errors complained of on appeal may be found in the

trial court's Order of August 11,2014, supplemented by the following discussion and

summary of significant facts upon which the trial court's findings and conclusions were

based.'

The subject child, J.M., Jr. was bom' r-/A, t'VC/, 2002. Lawrence County Children

and Youth Services ("CYS") first became involved with the child in the early spring of

2012. The Agency had previously been working with the child's older sister. At the time

of contact with CYS, J.M., Jr. was residing in a residential treatment facility. His mother,

B.M.L., was living in Ohio and had not had contact with the child for several years. The

child's father and subject of these proceedings, J.M.,Sr., was incarcerated and was not

able to provide care for J.M.

Sometime prior to CYS involvement, when the child was in his custody, J.M., Sr.

was facing incarceration, and, consequently, asked his mother to care for the child.

FILED/ORIGINA.'
I References to the testimony and other evidence are based on the trial court's notes.

2014 SEP 23 P 2: aI
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Although initially accepting the responsibility, I.M., Sr.'s mother then passed away.

Becanse of his continuing involvement with the criminal justice system and resulting

inability to provide care, I.M., Sr. gave custody of the child to his sister and her husband.

However, the paternal aunt and uncle were unable to cope with I.M., Ir.'s behavioral

problems, and placed the child with CYS.

CYS took custody of I.M., Ir. on Iune 27, 2012, and the child was adjudicated

dependent on Iuly 12,2012. A six-month review was held on December 3,2012.

Neither parent was present. After a continuance, further review was held on Iuly 25,

2013, which I.M., Sr. attended. After several continuances, a review was held on March

13,2014, also attended by I.M., Sr.2

I.M., Sr. was born ::rIM\V', 1971, and is 43 years old. He was incarcerated for
varying periods of time, beginning in 2008. He was in jail for several weeks in June and

July, and in September of 2008; for approximately three weeks in February and March of

2009; and from November 2010 to June 2012. In June 2012, J.M., Sr. had been released

from state prisort to the Penn Pavilion halfway house, but by consuming alcohol while on

a home pass in violation of halfway house rules, he was returned to prison in September

2012 where he remained until expiration of his maximum in July 2013.

After his release from prison, CYS prepared a Permanency Plan and Family

Service Plan, which I.M., Sr. signed on August 29,2013. At that point, the primary goal

was reunification.

The Family Service Plan established objectives for I.M., Sr. to pursue in order to

demonstrate that the conditions that required I.M., Ir.'s placement could be remedied,

and that I.M., Sr. could provide responsible parental care for the child.

2 The dependency file at 47 of2012 was incfJ~~tQ'ihWb\bl~tO~d of these termination proceedings.
aI
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I.M., Sr. had a history of drug and alcohol addiction, and, consequently, one of the

objectives was for 1.M., Sr. to address his drug and alcohol issues. He was charged with

the tasks, inter alia, of scheduling an assessment with the Drug and Alcohol Commission

following all treatment recommendations; submitting to random drug screens; providing

proof of all medications; refraining from illegal activity; participating in aftercare and

support programs at least three meetings a week; and providing CYS with proof of

attendance.

The Plan also established an objective for I.M., Sr. to address his mental health

issues. I.M., Sr. was, inter alia, to schedule a mental health assessment through Human

Services, attend all evaluation sessions, follow all recommended treatment, schedule a

psychological evaluation, provide copies of the evaluations to CYS, and was to take no

narcotic medication.

A further objective was for I.M., Sr. to address financial and personal stability, by

establishing a residence and maintaining housing for the duration of the case, keep the

home clean and free from clutter, provide age appropriate furnishings for the child,

provide a private bedroom for the child, and if housing were not available, to use County

agencies to find housing.

I.M., Sr. was to improve his parenting skills to show mastery in safely caring for

the child. He was to register for a program through the Children's Advocacy Center, was

to attend all sessions of the program, was to bring age-appropriate activities to engage the

child during visits, and was to complete CPR and a first aid class.

The Plan, also, required I.M., Sr. to cooperate with CYS and service providers, and

to attend visits with the child and engage in family therapy
FILED/ORIGI~U'.

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After release from prison, I.M., Sr. did not exert significant effort to achieve the

objectives of the Child Permanency Plan and Family Service Plan.

I.M., Sr. did not address his drug and alcohol issues.

After release from prison in 2013, five attempts were made to administer drug tests

or screens. On Iuly 25, 2013, I.M., Sr. tested positive for various drugs, including

marijuana, amphetamines and methamphetamines. On August 29, September 12, and

October 31,2013, I.M., Sr. reported that he was unable to provide the required urine

sample, although allowed to remain at the facility until closing time at 4:00 p.m. When at

the testing facility on August 29, September 12, and October 31, 2013, I.M., Sr. had at

least four hours to provide a specimen. Because of the failure to provide a sample, the

screens were reported as positive. On December 4, 2013, I.M., Sr. admitted that he had

taken various drugs, including marijuana, vicodin and amphetamines, and, therefore, the

scheduled test was not administered.

Although making contact for a drug and alcohol assessment, J.M., Sr. did not

follow up with intake or treatment recommended by the Drug and Alcohol Commission,

as required.

After an initial contact with a mental health agency on September 5, 2013, J.M.,Sr.

did not remain for intake. There is no evidence that he has initiated or participated in the

psychological evaluations required by the Family Service Plan.

I.M., Sr. has not demonstrated financial and personal stability. At the December

12,2013 session with the Agency caseworker, it was reported that I.M., Sr.'s housing

circumstances were uncertain because of failure to pay rent, and at a Decmber 18, 2013

meeting, I.M., Sr. reported that he was not living at an apartment where the child could
FILED/OHIGINA'.

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be accommodated. I.M., Sr. testified that he had lived at a recently acquired three-

bedroom home in Ellwood City, Lawrence County; that he will be doing work for the

owner as rent; and that his friend also lived there. However, his testimony was unclear as

to whether he would be living at that location when released from jail and as to whether

he would be ready for reunification with his son. In a conversation on March 12,2014, it

was reported that I.M., Sr. was being evicted from his residence.

At the Iuly 31, 2014 hearing, the caseworker reported that I.M., Sr. had been

arrested on criminal charges in late December 2013. As a result, I.M., Sr. was

incarcerated in the Lawrence County Iail from December 31, 2013 to Ianuary 22,2014.

Subsequently, I.M., Sr. called the caseworker and reported that he had suffered a heart

attack and was hospitalized in Allegheny General Hospital. In a February 5, 2014

conversation with the caseworker I.M., Sr. stated that he had been released from the

hospital on February 1,2014, and that he was going to a rehabilitation program in Ohio.

However, I.M., Sr. was again incarcerated-- from March 30, 2014 to May 11,2014 in the

Lawrence County Iail, and then in the Beaver County Iail from May 28, 2014 up to the

time of the hearing. I.M., Sr. represented that he was expecting to be released in August

2014.

At a December 2013 meeting, I.M., Sr. requested that the proceedings be

suspended because of his desire to go to a rehabilitation program after the holidays.

However, as noted above, he again was charged with criminal offenses, and arrested and

incarcerated on December 31, 2013. The caseworker has not received any indication that

I.M., Sr. made any attempt or effort to enroll in a rehabilitation facility or program.

FILED/ORIGIN ..'.

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I HELEN I. MORGA·
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DiW AND CI.ER'
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J.M., Sr. did attend visits with the child on August 29, 2013, September 12, 2013.

October 24,2013, October 31,2013, November 14,2013 and December 4, 2013.

However, he cancelled the visit scheduled for September 26, 2013, because of a reported

death in his family, and cancelled the visits scheduled for October 3 and October 10,

2013, reporting that he had to attend hearings in court for a brother and nephew resulting

from drug arrests. According to the caseworker, the visits on September 12 and October

31, 2013 were positive.

1M., Sr. cooperated with CYS in the sense of maintaining communication and

attending CYS meetings, but, as noted above, did not initiate services required by the

Family Service Plan and did not communicate with service providers referred to in the

Plan.

Although J.M., Sr. completed various classes and counseling programs while in

prison, none of the classes or programs were relevant to J.M., Sr.' s needs for

rehabilitation or to the requirements established by the Family Service Plan to show that

he had remedied the conditions that had kept him from parenting his son.

According to the caseworker, J.M., Jr. struggled when initially placed in the

residential treatment facility. Now, however, in a specialized foster home, the child has

progressed, exhibiting far fewer outbursts and much less disruptive behavior. His IQ has

advanced. The child appears happy and well-adjusted, talking and interacting positively

with the foster family.

According to the caseworker, although recognizing and knowing J.M., Sr. at visits,

J.M., Jr. has exhibited no positive bond with J.M., Sr.

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J.M., Sr. failed to take responsibility for his previous failings and addiction, and

failed to take advantage of the opportunity to demonstrate improvement in parenting

skills and ability to care for the child responsibly and safely. No effort was made to

engage in rehabilitation. Even after aware of the need to demonstrate ability to care for

the child, J.M., Sr. again be.came involved with criminal activity resulting in renewed

imprisomnent.

The evidence is clear and convincing that continued incapacity, neglect and refusal

of J.M., Sr. has caused the child to be without essential care, control and subsistence

necessary for the child's physical or mental well-being, that the child has been in

placement for over two years, that the conditions and causes of incapacity, neglect and

refusal cannot or will not be remedied by J.M., Sr., and that termination will best serve

the developmental, physical and emotional needs and welfare of the child.

The Prothonotary shall be responsible for properly serving a copy of this

Statement upon counsel of record in accordance with Pa.R.C.P. 236 and Rule L236.

BY THE COURT:

Eugene E. F" e Senior Judge

FltED/ORIGINi~1

2014 SEP 23 P 2: a
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INTHECOUERTOFCO~ONPLEASOFLA~NCECOUNTY
PENNSYLVANIA

IN THE INTEREST OF: }
J. M., a minor } No. 20014 of2014, O.C. Adoption
}

ORDER

NOW, this J I "f'Oday of_----'A!......:.-=v:..c..~v~s:......
=____ __', 2014, hearing on a Petition

. for Involuntary Termination of Parental Rights of the biological father, J ,M.
,I Sr. ("Father"), to the child" -::s: fI\. , Jr., having been held on July 31,

2014; Carolyn J. Flaunery, Esq. having appeared on behalf of the Petitioner, Lawrence

County Children and Youth Services; the biological father, , .::r: N\o ,Sr.,
appearing, represented by Deborah A. Shaw, Esq.; Robert J. DiBuono, Esq. appearing as 0-
,."

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