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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: Z.S.F.-M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.W., FATHER No. 2942 EDA 2014
Appeal from the Order entered September 9, 2014,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000629-2012,
CP-51-DP-0062820-2010, FID: 51-FN-471204-2009
BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 02, 2015
Appellant, C.W. (“Father”), appeals from the order involuntarily
terminating his parental rights to Z.S.F.-M. (“Child”) (born in May of 2008)
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b), and changing
Child’s permanency goal to adoption pursuant to section 6351 of the
Juvenile Act, 42 Pa.C.S.A. § 6351.1 We affirm.
On June 4, 2009, the parties first became known to the Department of
Human Services (“DHS”), as a result of a General Protective Services
(“GPS”) report alleging that Child was dirty and unkempt with an odor. The
report alleged that Child cried constantly and appeared to be disheveled.
The report further alleged that the family home where Child resided was
filthy, dirty, and infested with roaches, and that the home was structurally
1
The parental rights of Child’s minor mother, T.F. (“Mother”), were
terminated on September 9, 2014. Mother is not a party to the
current appeal, nor did she file a separate appeal.
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unstable and appeared ready to collapse. A subsequent report alleged that
the residents of the home were engaged in drug activities.
On January 14, 2010, an adjudicatory hearing was held for Child’s
minor Mother. The trial court adjudicated Mother, Child, and Child’s siblings
dependent, and committed them to the care of DHS. The trial court ordered
DHS to locate a mother/child placement for Mother and Child, and ordered
DHS to refer Mother to the Adolescent Initiative Center (“AIC”). Father’s
identity and whereabouts were unknown to DHS.
On June 7, 2010, DHS placed Child in care with a maternal aunt
through Children’s Choice, Inc. (“Children’s Choice”). At a shelter care
hearing on June 8, 2010, the trial court specifically ordered Child to be
temporarily committed to DHS. On June 16, 2010, following an adjudicatory
hearing, the trial court ordered Mother to have weekly supervised visits, and
ordered Father, once he made himself known to DHS, to have weekly
supervised visits.
On October 6, 2010, Father appeared for a permanency review. The
trial court ordered Child to remain committed to DHS. On December 9,
2010, DHS held a Family Service Plan (“FSP”) meeting, which Mother and
Father did not attend. At a subsequent permanency review hearing on May
9, 2011, the trial court ordered Child to remain committed to DHS. At the
time of that hearing, Father’s whereabouts were unknown. On November
28, 2011, another permanency review hearing was held, and Father was not
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present. The trial court ordered DHS to implement the recommendations
from Mother’s Parenting Capacity Evaluation and to review the evaluation
with Mother.
On January 26, 2012, following a permanency review hearing, the trial
court ordered Child to remain committed to DHS, and directed DHS to
conduct a Parent Locator Search for Father. The trial court ordered that
Child be placed in a new, pre-adoptive home. On January 30, 2012, DHS
held an FSP meeting. The trial court directed that Father: (1) make himself
known to DHS; (2) complete a parenting class for teen parents; (3) attend
family therapy with Child if appropriate; (4) visit biweekly with Child; (5)
obtain suitable housing with operable utilities; and (6) obtain and maintain
employment.
On November 16, 2012, DHS filed a petition to involuntarily terminate
Father’s parental rights to Child. On September 9, 2014, the trial court held
a hearing on the petition. At the hearing, Jennifer Kreplesky, a DHS social
worker; Shannon O’Malley, a Children’s Choice Supervisor; and Shavon
Joseph, a Children’s Choice caseworker, all testified. On September 9, 2014,
the trial court entered its decree terminating Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changing
Child’s permanency goal.
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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)(i) and
(b). Father presents the following issue for our review:
1. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’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),
(a)(2), (a)(5), and (a)(8) when [Father] contends [F]ather
made progress towards working and meeting the FSP goals
[?]
Father’s Brief at 2.2
Our standard of review regarding orders terminating parental rights is
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 we 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.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
2
Father does not challenge § 2511(b) in his Statement of
Questions Presented. Father appears to have copied and pasted
his second Statement of Question Involved from the first one.
However, Father does challenge 2511(b) in the argument section
of his brief. See Father’s Brief 10-13.
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the asserted grounds for seeking the termination of parental rights are valid.
Id. at 806. We have stated:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented, and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm, even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 581
Pa. 668, 863 A.2d 1141 (2004).
In terminating Father’s parental rights, the trial court relied upon
Section 2511(a)(1) and (b) which provide:
§ 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:
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(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 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.
We have explained this Court’s review of a challenge to the sufficiency
of the evidence to support the involuntary termination of a parent’s rights
pursuant to section 2511(a)(1) as follows:
To satisfy the requirements of 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 addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to perform
parental duties. Accordingly, parental rights may be
terminated pursuant to [s]ection 2511(a)(1) if the parent
either demonstrates a settled purpose of relinquishing
parental claim to a child or fails to perform parental
duties.
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Once the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines of
inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of
termination of parental rights on the child pursuant to
[s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations
omitted).
Regarding the definition of “parental duties,” this Court has stated:
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 or her
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 . . . her physical and emotional
needs.
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In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 582
Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted).
The trial court found “it is clear from the record that for a period of six
months leading up the filing of the Petition for Involuntary Termination,
[F]ather failed to perform any parental duties for the [C]hild.” Trial Court
Opinion, 11/12/14, at 4 (unpaginated). The trial court also found that
“[Child] has been in care for over thirty-seven months.” Id. at 5. The trial
court’s findings are supported by the hearing testimony. Ms. Kreplesky
testified that Father was not compliant with any of his FSP objectives. N.T.,
9/9/14, at 46. Ms. Kreplesky testified that Father did not complete his
parenting classes. She stated that Father “attended three sessions, then
Father was released for about three weeks, then he was re-incarcerated and
he never reengaged with parent [classes].” Id. Ms. O’Malley testified that
outreach letters were sent to Father while he was incarcerated and when he
was released from incarceration. Id. at 67. Ms. O’Malley testified that
Father did not respond to any of the outreach. Id.
We defer to a trial court’s determination of credibility, absent an abuse
of discretion, and discern no such abuse in the trial court crediting the
testimony of Ms. Kreplesky and Ms. O’Malley. In re M.G., 855 A.2d 68, 73-
74. Our review of the record supports the trial court’s determination that
Father has failed or refused to perform parental duties as delineated in 23
Pa.C.S. § 2511(a)(1). Accordingly, Father’s claim regarding clear and
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convincing evidence pursuant to 23 Pa.C.S. § 2511(a) is without merit. See
id.
Next, although Father did not raise Section 2511(b) in his Statement
of Questions Presented, we review the termination of Father’s parental rights
relative to the needs and welfare of Child pursuant to 23 Pa.C.S.A. §
2511(b). See In re C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en
banc). Pursuant to section 2511(b), the trial court’s inquiry is specifically
directed to a consideration of whether termination of parental rights would
best serve the developmental, physical and emotional needs of the child.
See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005), appeal
denied, 587 Pa. 705, 897 A.2d 1183 (2006). “Intangibles such as love,
comfort, security, and stability are involved in the inquiry into the needs and
welfare of the child.” Id. at 1287 (citation omitted). We have instructed
that the 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. See id.
The trial court concluded that Child would not suffer any irreparable
emotional harm if Father’s parental rights were terminated. Trial Court
Opinion, 11/12/14, at 6 (unpaginated) (citations omitted). The trial court
found that “[Child] has had no contact with [F]ather since April 2012,” and
that “[Child] did not have an opportunity to bond with [F]ather due to
[F]ather’s repeated incarcerations and long periods of his whereabouts being
unknown.” Id. Ms. Kreplesky and Ms. O’Malley testified that there is no
parent-child bond between Child and Father, and that termination is in
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Child’s best interests. N.T., 9/9/14, at 52, 68. Ms. Kreplesky testified that
Father has only seen his son twice, and the second time he saw his son,
Father did not know who Child was. Id. at 53. Ms. Kreplesky also testified
that terminating Father’s parental rights would not cause any permanent
emotional harm to Child, and that terminating Father’s parental rights to
Child is in the best interest of Child. Id. at 53. Moreover, Ms. O’Malley
stated that, when Father first met Child, Child did not go toward Father, and
Child did not have an interest in even talking to Father. Id. at 68.
Furthermore, the trial court found that Child has bonded with his foster
parents, and that “[Child] had a positive relationship with his foster parents
and expressed feelings of stability and consistency.” Trial Court Opinion,
11/12/14, at 6. Ms. Kreplesky and Ms. Joseph testified that Child has been
in foster care for two and a half years, and has bonded with both his foster
parents and siblings. N.T., 9/9/14, 14-17; 29. Ms. Kreplesky stated that
Child refers to foster parents as “mom” and “dad,” and that foster parents
love Child. Id. at 17. Ms. Joseph testified that Child is “very, very happy to
be [with foster parents].” Id. at 29.
Father testified that he received the outreach letters, and wanted to
have contact with Child, but did not follow through with DHS. Id. at 71.
Father also testified that he is willing to try to be in Child’s life. Id. at 76.
In sum, the trial court credited the testimony presented by DHS in
support of termination. We defer to a trial court’s determination of
credibility, absent an abuse of discretion, and discern no such abuse in this
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case. See In re M.G., 855 A.2d 68, 73-74. To the extent evidence of a
bond between Child and Father is before this Court, the trial court did not
abuse its discretion in concluding that there was no bond between Child and
Father. See in re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008). The trial
court gave adequate consideration of the developmental, physical, and
emotional needs of Child in determining that Father’s parental rights should
be terminated pursuant to section 2511(b), and the record supports the trial
court’s best interest analysis. In re C.M.S. supra.
Upon review, we affirm the order terminating Father’s parental rights
on the basis of section 2511(a)(1) and (b), and changing the permanency
goal for Child to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2015
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