J-S01017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.T.B.-R., IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
v.
APPEAL OF: J.M.R., FATHER
No. 1387 EDA 2015
Appeal from the Decree March 26, 2015
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-DP-0000209-2013
DP-51-AP-0000133-2015
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 02, 2016
Appellant, J.M.R. (Father), appeals from the decree entered March 26,
2015, involuntarily terminating his parental rights to his minor daughter,
S.T.B.-R., born in January 2007.1 After careful review, we affirm.
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1
The trial court docket indicates that the parental rights of S.T.B.-R.’s
mother, S.B. (Mother), were terminated by a separate decree entered July
6, 2015. Mother is not a party to this appeal. Additionally, on July 6, 2015,
this Court entered an order per curiam, indicating that Father’s counsel had
failed to file a docketing statement, and remanding the case to the trial court
in order to determine whether Father had been abandoned by counsel. On
July 10, 2015, Father’s counsel filed a docketing statement. The trial court
held a hearing later that day, during which Father’s counsel indicated that
she had not abandoned Father. See N.T., 7/10/15, at 4. Father’s counsel
continues to represent him on appeal, and she has filed a brief on Father’s
behalf.
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The trial court summarized the factual and procedural history of this
matter as follows.
On January 29, 2013, [the Department of Human
Services of Philadelphia County (“DHS”)] received a
Child Protective [S]ervices (“CPS”) report alleging
that [S.T.B.-R.]’s eldest sibling was afraid to return
home due to [M]other’s untreated mental health
issues. The report also alleged that [S.T.B.-R.]’s
mother showed erratic behavior, suffered from
anxiety, and appeared to be under the influence of
drugs. [S.T.B.-R.] resided with [M]other since
Father was incarcerated. On January 29, 2013[,]
DHS went to [S.T.B.-R.]’s school and learned that
[S.T.B.-R.] was not enrolled in school. On the same
day, DHS visited [M]other’s home[.] [M]other was
present and stated to DHS that “she could not leave
home because Michelle Obama was on her way to
pick her up and escort her to the White House”. On
January 29, 2013, DHS obtained an Order for
Protective Custody (“OPC”) and [S.T.B.-R.] was
placed with [S.T.B.-R.’s adult] sister. At that time
Father was incarcerated at Curran-Fromhold
Correctional. On January 31, 2013, at a Shelter
Care hearing, the OPC was lifted and the temporary
commitment to DHS was ordered to stand.
At the Adjudicatory hearing, on March 8, 2013, the
[trial] court discharged the temporary commitment,
[and S.T.B.-R.] was adjudicated dependent and
placed in foster care thr[ough] Friendship House. On
May 21, 2013, a Family Service Plan (“FSP”) was
developed for [M]other. At a Permanency Review
Hearing on October 4, 2013, the trial court found
that Father was incarcerated at SCI Camp Hill and
that a criminal Stay Away Order was issued against
Father. Father was referred to the CEU (“Clinical
Evaluation Unit”) for a drug screen when he avails
himself. Father was found in minimal compliance.
Visits with the Father were held under advisement
until further order of the court. The reason for the
suspension of Father’s visits was the fact that
[S.T.B.-R.] witnessed episodes of domestic violence
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between Father and [M]other. Father is in [j]ail due
to stabbing Mother; therefore, the criminal and
dependency court had imposed a Stay Away Order
against Father.
At [a] Permanency Review Hearing, on January 31,
2014 and May 2, 2014, DHS was ordered to do
outreach to Father. At [a] Permanency Review
Hearing, on July 2, 2014, the trial court found that
DHS reached out to Father at Huntington State
Correctional Institution. Father’s minimum release
date is August 2016 and his maximum release date
is August 2020. The trial court also ordered Father
to not have visits with [S.T.B.-R.], unless
recommended by [S.T.B.-R.]’s therapist. Finally, the
trial court found that Father’s compliance with the
Permanency plan was not applicable. At a
Permanency Review Hearing, on October 3, 2014,
the trial court found that Father remained
incarcerated and that Wordsworth [Community
Umbrella Agency (“CUA”)] also reached out to
Father. The trial court ordered Wordsworth CUA to
continue outreach with [Father’s] prison social
worker to set up an interview with Father to inform
him about his [Single Case Plan (“SCP”)] objectives
and recommendations. Father’s visitations remained
suspended.
Trial Court Opinion, 7/20/15, at 1-2 (citations to the record omitted).
On March 4, 2015, DHS filed a petition to terminate Father’s parental
rights involuntarily.2 A termination hearing was held on March 26, 2015,
____________________________________________
2
The order also stated “[t]he adoption of [S.T.B.-R.] may continue without
further notice to or consent of [Father.]” Trial Court Order, 3/26/15.
However, because Mother’s rights had not been terminated, the order did
not change S.T.B.-R.’s permanency goal. The trial court docket indicates
that S.T.B.-R’s permanency goal was changed to adoption on July 6, 2015,
following the termination of Mother’s rights.
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and the trial court entered its decree terminating Father’s parental rights
that same day. Father timely filed a notice of appeal on April 24, 2015,
along with a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issues for our review.
1. Did DHS make reasonable efforts to assist Father
in being reunited with [S.T.B.-R.]?
2. Did [DHS] sustain it’s [sic] burden that Father’s
rights should be terminated?
3. Did [DHS] sustain it’s [sic] burden regarding the
requirements of 23 Pa.C.S.A. § 2511 (b)?
Father’s Brief at 5.
We consider Father’s claims mindful of our well-settled standard of
review.
The standard of review in termination of parental
rights cases requires appellate courts to accept the
findings of fact and credibility determinations of the
trial court if they are supported by the record. If the
factual findings are supported, appellate courts
review to determine if the trial court made an error
of law or abused its discretion. A decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely
because the record would support a different result.
We have previously emphasized our deference to
trial courts that often have first-hand observations of
the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), and (b). We need only agree with the
trial court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we
analyze the court’s decision to terminate under Sections 2511(a)(2) and (b),
which provide as follows.
(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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(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
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).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
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.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted). “[A] parent’s incarceration is relevant to the
section (a)(2) analysis and, depending on the circumstances of the case, it
may be dispositive of a parent’s ability to provide the ‘essential parental
care, control or subsistence’ that the section contemplates.” In re A.D., 93
A.3d 888, 897 (Pa. Super. 2014) (discussing In re Adoption of S.P., 47
A.3d 817 (Pa. 2012)).
Instantly, the trial court found that Father’s incarceration has rendered
him incapable of providing S.T.B.-R. with essential parental care, control,
and subsistence, and that Father will be unable to remedy the causes of his
parental incapacity. Trial Court Opinion, 7/20/15, at 7-8. The trial court
emphasized that Father has not made efforts to remain in contact with
S.T.B.-R., that Father has failed to complete any of his FSP or SCP
objectives, and that it is unclear when Father will be released from
incarceration. Id. at 5-8.
Father argues that the trial court erred by terminating his parental
rights because DHS failed to provide reasonable efforts to assist him in being
reunited with S.T.B.-R. Father’s Brief at 17-22. Specifically, Father alleges
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that DHS failed to make sufficient efforts to have S.T.B.-R. placed in
therapy, so that she could begin visitation with Father. Id. at 19-22. Father
also contends that DHS failed to present clear and convincing evidence that
his parental rights should be terminated. Id. at 22-32. Father insists that
he was unable to maintain contact with S.T.B.-R. due to the stay away
order, but that he consistently inquired about S.T.B.-R.’s well-being. Id. at
25-26, 28, 31. Father also asserts that the FSPs he received contained
objectives for Mother only, and that he was not advised of the objectives he
needed to complete until less than a month prior to the termination hearing.
Id. at 26-29, 31. Father states that he completed two parenting-related
programs while incarcerated, and that he was prevented from completing
additional programs due to prison policy. Id. at 30-31.
After a thorough review of the record, we conclude that the trial court
did not abuse its discretion by involuntarily terminating Father’s parental
rights to S.T.B.-R. Initially, we reject Father’s claim that his parental rights
should not have been terminated because DHS failed to provide him with
reasonable reunification efforts. Our Supreme Court recently held that
reasonable reunification efforts are not necessary to support a decree
terminating parental rights pursuant to Section 2511(a)(2). We have
discussed the Court’s decision as follows.
In In re D.C.D., ___ Pa. ___, 105 A.3d 662 (2014),
our Supreme Court analyzed the language of Section
2511(a)(2) of the Adoption Act, as well as Section
6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351. The
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Court reasoned that, while “reasonable efforts may
be relevant to a court’s consideration of both the
grounds for termination and the best interests of the
child,” neither of these provisions, when read
together or individually, requires reasonable efforts.
The Court also concluded that reasonable efforts
were not required to protect a parent’s constitutional
right to the care, custody, and control of his or her
child.
In re Adoption of C.J.P., 114 A.3d 1046, 1055 (Pa. Super. 2015) (some
citations omitted).
Moreover, our review of the record confirms that DHS presented clear
and convincing evidence in support of its termination petition. During the
termination hearing, DHS presented the testimony of CUA case manager,
Ms. Monique Cliett. Ms. Cliett explained that she was assigned to this case
in February of 2015. N.T., 3/26/15, at 4, 23. Ms. Cliett sent Father a letter
introducing herself as the new case manager, and spoke to Father on the
phone “several times.” Id. at 13, 25, 35. Ms. Cliett reported that an SCP
was prepared at the end of December 2014, and that Father’s SCP
objectives were to attend anger management and parenting programs. Id.
at 13, 32-33. Ms. Cliett noted that it is the policy of the CUA to send a copy
of the SCP to a child’s parents, and that she also spoke with Father about
these objectives. Id. at 13-14, 32, 48. Ms. Cliett recalled that Father
signed up for anger management classes in “the beginning of March” of
2015, but is on a waiting list. Id. at 14-15, 25. She did not have
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documentation to indicate that Father had signed up for parenting classes.3
Id. at 15, 26.
Ms. Cliett further testified that Father has been incarcerated since
before S.T.B.-R. was placed in foster care, and that Father’s visits with
S.T.B.-R. were suspended pursuant to a court order. Id. at 11-12, 14, 25,
33-35. As a result, Ms. Cliett believed that Father has not had any contact
with S.T.B.-R. since the case began. Id. at 20-21. Father did not send
letters or gifts to S.T.B.-R., and he did not ask to send letters or gifts. Id.
at 20, 36. However, Father asks how S.T.B.-R. is doing. Id. at 41.
DHS also presented the testimony of DHS social worker, Gabriel Li.
Mr. Li explained that he worked on S.T.B.-R.’s case for approximately eight
months to a year, starting in January 2013. Id. at 54. Mr. Li agreed that
Father had no contact with S.T.B.-R. during that time, because Father was
incarcerated, and because Father’s visits with S.T.B.-R. had been suspended
by court order. Id. at 55. Father’s visits were suspended due to Father’s
acts of domestic violence against Mother, including a stabbing witnessed by
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3
During cross-examination, Father’s counsel reviewed the documentation
Ms. Cliett received from Father concerning his attempts at enrolling in
programs while incarcerated. N.T., 3/26/15, at 42. According to Father’s
counsel, Father sent a request to prison authorities on March 8, 2015, asking
to be enrolled “in counseling and parenting classes and outpatient anger
management.” Id. at 44. On March 9, 2015, Father sent a similar request
to the prison’s psychological department asking to be enrolled in “‘mental
and behavioral health, outer stress inner calm group, grief and losses group,
positive mental attitude group, cage your rage anger control and recovery
group and beyond stress.’” Id.
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S.T.B.-R. Id. at 55, 63. Mr. Li noted that Father wrote to him to request
visitation and ask how S.T.B.-R. was doing. Id. at 55, 61. Father also sent
a birthday card for S.T.B.-R. Id. at 61-62. However, Father never indicated
to Mr. Li that he had completed or was attending any programs while
incarcerated. Id. at 59-60.
Finally, Father testified on his own behalf. Father explained that he
was incarcerated on August 8, 2012. Id. at 70. Father was convicted of
aggravated assault, and currently is serving a four to eight year sentence,
with a minimum release date in August 2016, and a maximum release date
in August 2020. Id. at 75-76, 84. Father recalled that he first received
documentation indicating that S.T.B.-R. had been removed from Mother’s
care in February 2013. Id. at 70. Father wrote to DHS and began
corresponding with Mr. Li. Id. at 71. According to Father, Mr. Li never
informed him that he should be taking classes while incarcerated. Id.
Additionally, Father stated that the FSPs he received did not require him to
do anything, and referenced only Mother. Id. at 71-72. Father reported
that he completed a victim’s awareness program while incarcerated, as well
as programs entitled “Inside Out Dad” and “Reading to [Y]our Children.” Id.
at 72, 76. Father indicated that he has attempted to enroll in several other
programs, but “they don’t let you take them until you’re a certain amount of
time to your minimum. … [Y]ou don’t see those classes until you get to your
minimum. At least six months into your minimum.” Id. at 74-76.
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Father admitted that he has not spoken to S.T.B.-R. since prior to his
incarceration. Id. at 82. Father stated that he attempted to write to S.T.B.-
R.’s foster mother on one occasion, but that he later received a letter from
“[s]omebody else” indicating that he should not. Id. at 73-74. Father
explained, “I wasn’t gonna keep written [sic] because I wasn’t really trying
to push and get in any type of trouble.” Id. at 74. Father acknowledged
that he has no job waiting for him upon his release, but claimed that he is
“doing a trade up here that’s going to help me with employment,” and that
he will be able to reside at his father’s home. Id. at 77-78.
Accordingly, the record supports the trial court’s conclusion that
Father’s incarceration renders him incapable of providing S.T.B.-R. with
essential parental care, control, or subsistence necessary for S.T.B.-R.’s
physical or mental well-being. Moreover, Father cannot, or will not, remedy
his parental incapacity. Father has been incarcerated since August 8, 2012,
and it is not clear when Father will be released. If Father’s parental rights
are not terminated, S.T.B.-R. could be left to languish in foster care until
Father completes his maximum sentence in 2020, and possibly later. Even
assuming that Father is released upon completing his minimum sentence in
August 2016, the record demonstrates that Father’s incapacity will not be
remedied. Father has been either unwilling or unable to stay in contact with
S.T.B.-R. during his incarceration, and he has yet to complete the necessary
anger management and parenting programs. Father has no employment
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waiting for him upon his release. As such, Father will not be able to
immediately provide essential parental care, control, or subsistence.
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) 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).
Here, the trial court found that there is no bond between Father and
S.T.B.-R., that S.T.B.-R. would not suffer irreparable harm if Father’s
parental rights are terminated, and that termination would be in S.T.B.-R.’s
best interest. Trial Court Opinion, 7/20/15, at 9. The trial court emphasized
that S.T.B.-R. has had no recent contact with Father, and that S.T.B.-R. is
thriving in the care of her foster mother, with whom she is bonded. Id.
Father argues that the testimony presented by DHS during the termination
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hearing was insufficient to discern whether Father and S.T.B.-R. share a
bond, and whether S.T.B.-R. would be harmed if Father’s parental rights are
terminated. Father’s Brief at 32-34.
We again discern no abuse of discretion. Ms. Cliett testified that
S.T.B.-R. gets along well with her pre-adoptive foster mother, and that they
are bonded. N.T., 3/26/15, at 21, 28-29. S.T.B.-R. does not ask about
Father, and appears to be “fine” having no contact with him. Id. at 21, 28,
49-50. Similarly, Mr. Li reported that he visited S.T.B.-R. on a monthly
basis, and that S.T.B.-R. never mentioned Father. Id. at 56. When Mr. Li
asked S.T.B.-R. about Father, she had little to say about him. Id. at 68-69.
Mr. Li opined that there is no bond between Father and S.T.B.-R. due to
Father’s incarceration and lack of contact, and that S.T.B.-R. would not
suffer irreparable harm if Father’s parental rights are terminated. Id. at 59-
60. He stated that S.T.B.-R. is thriving in foster care, and that S.T.B.-R. and
her pre-adoptive foster mother have an “extremely strong bond.” Id. at 59,
61, 63.
Thus, the record confirms that S.T.B.-R. is bonded with her pre-
adoptive foster mother. In contrast, S.T.B.-R. has not seen or spoken to
Father since prior to August 2012, and does not mention Father in
conversation. S.T.B.-R. appears to have no bond with Father, and she will
not suffer irreparable harm if Father’s parental rights are terminated. It is
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clear that S.T.B.-R.’s needs and welfare will be served by terminating
Father’s parental rights, and permitting S.T.B.-R. to be adopted.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Father’s parental rights to S.T.B.-
R. Accordingly, we affirm the trial court’s March 26, 2015 decree
involuntarily terminating Father’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2016
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