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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.K.F., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.S. FATHER No. 1533 MDA 2015
Appeal from the Decree entered August 12, 2015,
in the Court of Common Pleas of Dauphin County, Orphan’s
Court, at No: 2-AD-2015
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 13, 2016
A.S. (“Father”) appeals from the order dated and entered on August
12, 2015, granting the petition filed by J.A.B. (“Foster Mother”) and her
husband, R.H.B. (“Foster Father”) to involuntarily terminate Father’s
parental rights to the minor, male child, C.K.F. (born in August of 2014),
“Child”), pursuant to section 2511(a)(1) and (b) of the Adoption Act, 23
Pa.C.S. § 2511(a)(1) and (b).1 We affirm.
The trial court has set forth the relevant history of this case in its
Opinion. See Trial Court Opinion, 10/1/15, at 1. We adopt the trial court’s
recitation for purposes of this appeal. See id. On March 19, 2015, Foster
Mother and Foster Father filed a petition to terminate the parental rights of
1
On December 30, 2014, D.F. (“Mother”) filed a consent to adopt and
adoption placement agreement. On June 25, 2015, Mother filed a petition
to revoke consent. On August 19, 2015, following a hearing, the trial court
found that Mother failed to revoke her consent, and Mother voluntarily
relinquished her parental rights to Child. Mother is not a party to this
appeal, nor did she file a separate appeal.
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Father to Child. On August 5, 2015, the trial court held a hearing on the
petition. At the hearing, Father was present pursuant to the trial court’s
order directing the warden of Cumberland County Prison to produce Father
at the time of the hearing. Father testified on his own behalf. Warren
Smith, pediatric social worker at Penn State Hersey Medical Center; Heather
Reybok, a paralegal at Smoker Gard Associates; Louis Martin, a Bible club
leader and friend of Mother; and Glenda Sensenig, a friend of Mother from
church; Foster Mother; and Mother also testified at the hearing. On August
11, 2015, the trial court terminated Father’s parental rights to Child.
On September 9, 2015, 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 raises the following issue on appeal:
Whether the [t]rial [c]ourt erred in determined [sic] that [Foster
Mother and Foster Father] established by clear and convincing
evidence the statutory grounds for involuntary termination of
parental rights was met pursuant to 23 Pa.C.S.[] §
2511(A)(6)?[2]
Father’s Brief, at 8.
Father argues that he did not relinquish parental claims or refuse to
perform his parental duties, and that any failure perform parental duties was
2
Father argues in his Statement of Errors on Complained on Appeal and the
argument section in his brief that the trial court terminated his rights
pursuant to 23 Pa.C.S. § 2511(a)(6). However, the trial court terminated
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1). Therefore, we
will conduct our review pursuant to 23 Pa.C.S. § 2511(a)(1).
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a result of his incarceration and resultant inability to contact Mother.
Father’s Brief, at 10. Thus, Father argues that the trial court abused its
discretion in terminating his parental rights. Id.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T., 9
A.3d 1179, 1190 (Pa.2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; R.I.S., 36
A.3d 567, 572 (Pa.2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
34 A.3d 1, 51 (Pa.2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa.2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa.1994).
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In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa.2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super.2009).
Moreover, we have explained:
[t]he 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.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super.2003)).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super.2004) (en banc).
We will focus on section 2511(a)(1) and (b), which provide, as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
* * *
(b) Other considerations.--The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
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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 subsections (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(a)(1), (b) (emphasis in original).
In In re Z.S.W., 946 A.2d 726 (Pa.Super.2008), this Court stated:
[t]o 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 re Adoption of R.J.S., 901 A.3d 502, 510
(Pa.Super.2006). 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 Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa.1998).
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 Section 2511(b).
Id. at 92 (citation omitted).
In re Z.S.W., 946 A.2d at 730 (parallel citations omitted).
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Our Supreme Court has instructed:
incarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination
exist under § 2511(a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the
child to be without essential parental care, control or
subsistence and [] the causes of the incapacity cannot or
will not be remedied.
In re Adoption of S.P., 47 A.3d at 828.
After re-visiting its decision in In re: R.I.S., 36 A.3d 567, 572
(Pa.2011), regarding incarcerated parents, our Supreme Court stated:
we now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the
question of whether a parent is incapable of providing
“essential parental care, control or subsistence” and the
length of the remaining confinement can be considered as
highly relevant to whether “the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent,” sufficient to provide grounds for
termination pursuant to 23 [Pa.C.S.] § 2511(a)(2). [See
In re: E.A.P., 944 A.2d 79, 85 (Pa.Super.2008)] (holding
termination under § 2511(a)(2) supported by mother’s
repeated incarcerations and failure to be present for child,
which caused child to be without essential care and
subsistence for most of her life and which cannot be
remedied despite mother’s compliance with various prison
programs). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether
termination is in the best interests of the child, considering
the developmental, physical, and emotional needs and
welfare of the child pursuant to § 2511(b). In this regard,
trial courts must carefully review the individual
circumstances for every child to determine, inter alia, how a
parent’s incarceration will factor into an assessment of the
child’s best interest.
In re Adoption of S.P., 47 A.3d at 830-831 (some internal citations
omitted).
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With regard to a parent’s incarceration, in In re Adoption of S.P., our
Supreme Court re-iterated the standard of analysis pursuant to section
2511(a)(1) for abandonment and added as follows:
[a]pplying [In re: Adoption of McCray] the provision for
termination of parental rights based upon abandonment, now
codified as § 2511(a)(1), we noted that a parent “has an
affirmative duty to love, protect and support his child and to
make an effort to maintain communication and association with
that child.” [331 A.2d 652, 655 (Pa.1975)]. We observed that
the father’s incarceration made his performance of this duty
“more difficult.” Id.
***
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of abandonment.
Nevertheless, we are not willing to completely toll a parent’s
responsibilities during his or her incarceration. Rather, we must
inquire whether the parent has utilized those resources at his or
her command while in prison in continuing a close relationship
with the child. Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his other rights may
be forfeited.
In re Adoption of S.P., 47 A.3d at 828 (quoting In re: Adoption of
McCray, 331 A.2d at 655) (footnotes and internal quotation marks omitted).
Further, the Supreme Court stated, “incarceration neither compels nor
precludes termination of parental rights.” In re Adoption of S.P., 47 A.3d
at 828 (adopting this Court’s statement in In re Z.P., 994 A.2d 1108, 1120
(Pa.Super.2010)).
Father testified he was not aware that Mother was pregnant with Child
until August or September of 2014. N.T., 8/9/15, at 168. Father said he
received a note from Mother’s cousin that said he was Child’s father and
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advising him to call Mother. Id. at 168. Father testified he called Mother to
visit with Child, but they kept missing each other. Id. at 169. Father met
Child for the first time in October of 2014, which was his only visit with
Child. Father testified that he has been incarcerated in the Cumberland
County Prison since October of 2014 for a simple assault conviction. Id. at
169. Father testified that, while incarcerated, he did not send Child any
letters. Id. at 193.
Mother testified that she told Father she was pregnant with Child six
months before he was born. Id. at 24. Ms. Reybok testified that she sent a
letter to Father in December of 2014 disclosing the consent to adoption form
for Child and the address of Foster Parents. Id. at 163. Furthermore, Ms.
Reybok testified that Father did not respond to the letter, he did not try to
contact her, and he did not contact Foster Parents. Id. at 164-65.
The trial court found
Father made very little effort to contact the child or remain an
important person in his life. Although Father claims that he did
not know how to contract [Mother], he testified he knew where
[Mother] lived. Father has taken virtually no affirmative actions
to maintain communication, contact, and association with [Child]
for a period of six months immediately preceding the filing of the
petition to terminate his parental rights and has not provided a
sufficient reason for his failure to do so.
Trial Court Opinion, 10/1/15, at 1-2.
The trial court carefully reviewed the testimony and the evidence
presented by the parties and held that Father had failed to perform his
parental duties for well over six months prior to the filing of the termination
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petition, and Father did not make an effort to maintain communication and
association with Child. The trial court rejected Father’s reasons for his
abandonment of Child and his explanation for his lack of contact with Child
as lacking credibility. We find that competent evidence of record supports
the trial court’s order holding that, for a period of at least six months prior to
the filing of the petition, Father has engaged in conduct evidencing a settled
purpose of relinquishing his parental rights to Child under section
2511(a)(1). See In re Adoption of S.P., 47 A.3d at 826-27.
Next, this Court has explained that the focus in terminating parental
rights under section 2511(a) is on the parent, but, under section 2511(b),
the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008
(Pa.Super.2008) (en banc). Pursuant to section 2511(b), we must consider
whether the termination of parental rights would best serve the
developmental, physical, and emotional needs and welfare of the child. See
In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super.2005). “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). The trial
court must also discern the nature and status of the parent-child bond in the
case, with utmost attention to the effect of permanently severing that bond
on the child. See id.3
3
Father did not challenge the best interest analysis pursuant to section
2511(b) in his statement of questions involved. See In re J.K., 825 A.2d
1277, 1280 n.4 (Pa.Super.2003), appeal denied, 835 A.2d 710 (Pa.2003)
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Foster Mother testified that it is in Child’s best interest for Father’s
rights to be terminated. N.T., 8/9/15, at 139. She testified that Father
never asked to visit Child, he did not send Child any gifts or letters, nor did
he provide any financial support. Id. at 138. Foster Mother testified that
she and Foster Father perform all of Child’s parental duties. Id. at 131.
Further, Foster Mother testified that Child is “very, very bonded” to her and
Foster Father. Id. at 140. Additionally, Foster Mother testified that Child is
thriving with her and Foster Father and removing Child from their home
would be “severely traumatic for him.” Id. at 140.
We have stated, “[i]n cases where there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.”
In re K.Z.S., 946 A.2d 753, 763 (Pa.Super.2008). The certified record
indicates that Father met Child only once, and has not seen Child, or even
been in contact with him, since October of 2014. Additionally, Father
admitted that he had not attempted to support Child. As we stated in In re
Z.P., supra, a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of parenting.”
Id. at 1125. We emphasized, “[p]arental rights are not preserved by
waiting for a more convenient time to perform one’s parental responsibilities
while others provide the child with [the] child’s physical and emotional
(citing Commonwealth v. Lord, 719 A.2d 306 (Pa.1998), for proposition
that issues not included in the statement of questions involved are waived).
Therefore, we find this issue waived. Even if this issue is not waived,
Father’s claim is without merit.
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needs.” Id. at 1119 (quoting In re B., N.M., 856 A.2d 847, 855
(Pa.Super.2004) (emphasis in original)). Rather, “a parent’s basic
constitutional right to the custody and rearing of his child is converted, upon
the failure to fulfill his or her parental duties, to the child’s right to have
proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment.” In re B., N.M., supra; see also In re:
T.S.M., 71 A.3d 251, 267 (Pa.2013).
Again, we find that the competent, clear and convincing evidence in
the record supports the trial court’s conclusion that the termination of
Father’s parental rights would best serve Child’s needs and welfare because
it would provide Child with the permanency and stability that he needs in his
life. The trial court’s factual findings are supported by the record. The
court’s legal conclusions are not the result of an error of law or an abuse of
discretion. Accordingly, we affirm the trial court’s decision with regard to
subsection (b). In re Adoption of S.P., 47 A.3d at 826-27.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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