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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.M.M., II : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: A.G., FATHER : No. 663 MDA 2016
Appeal from the Decree March 29, 2016
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 115 of 2016
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2016
Appellant, A.G. (“Father”), appeals from the decree entered in the
Lancaster County Court of Common Pleas, which granted the petition of the
Lancaster County Children & Youth Social Service Agency (“Agency”) for
involuntary termination of Father’s parental rights to his minor child, J.M.M.,
II (“Child”). We affirm.
The trial court opinion sets relevant facts and procedural history of this
case are as follows:
The [c]ourt first became involved with [J.M.M.] (Mother)
and [A.G.] (Father), the parents of [Child], on August 20,
2013, when the [Agency] received information that Mother
had purposely overdosed on prescription medications and
was found unresponsive.¹ Father was in prison. After
Mother was released from the hospital, a safety plan was
established. Mother did not follow through with the plan
and a Family Service Plan was put in place, but Mother
also made little progress in complying with its goals.
When the household’s electricity was turned off because of
unpaid bills, the children were placed in foster care on May
29, 2014. They were found to be dependent after [a]
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hearing on June 16, 2014. Mother never completed her
plan, [and] the Agency filed a petition to terminate her
parental rights to her two children on January 15, 2016,
and her [parental] rights were terminated by Decree on
March 29, 2016. Mother did not appeal this decision.
¹ Mother is the parent of [E.M.], who had a different
father other than J.M.M. II. The parental rights of
[E.M.] are not included in this appeal.
Father is incarcerated and has been so since 2010, a year
after [Child’s] birth, pursuant to charges for aggravated
assault, robbery with infliction or threat to cause bodily
injury and forcible rape. His earliest release date is 2026
[or 2027]. His only contact with [Child] is through the
mail, and he writes approximately once a month or less.
[Child] responds to his letters. Although Father in the past
asked the Agency for updates concerning his son, he has
not done so recently. The foster mother provides [Father]
with pictures of [Child]. When Father was in a prior
facility, he did have visits with [Child],[1] but since being in
his current facility, he does not see [Child] at all; his last
visit with [Child] was in 2014. He has not complied with
the obligations of his Agency Plan, since the only resource
the prison provides is a violence prevention program.
Father testified he has a bond with [Child], but presented
no evidence in support of that statement except his own
belief.
[Child] has been in a pre-adoptive home since June 2,
2014, with his half-sister, E.M. He is happy there. He is
receiving outpatient therapy and occupational therapy.
There are two older biological children in the home who
get along well with [Child] and [E.M.].
A petition for termination of Father’s parental rights to
[Child] was filed on January 15, 2016, and a hearing was
scheduled for Monday, February 29, 2016. That hearing
was continued to March 28, 2016 because of insufficient
1
When father was incarcerated in Lancaster County prison, Mother brought
Child to visit Father on a weekly basis. He continued to see Child on a more
or less monthly basis when transferred to other prisons, until Mother lost
custody of Child in 2014.
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time to present the necessary testimony. During the
truncated February 29th hearing, the [c]ourt agreed to
incorporate the prior Juvenile Matter into the Orphans’
[c]ourt proceeding. After [a] hearing on March 28, 2016,
the [c]ourt entered a decree on March 29, 2016,
terminating Mother’s and Father’s parental rights to
[Child].
(Trial Court Opinion, filed May 17, 2016, at 1-3) (internal citations to record
omitted). On April 22, 2016, Father filed a notice of appeal and concise
statement of errors complained of on appeal, per Pa.R.A.P. 1925(a)(2)(i).
Mother did not file an appeal.
Father raises the following issues:
WAS IT AN ABUSE OF DISCRETION TO GRANT THE
AGENCY’S PETITION TO TERMINATE WHERE FATHER,
ALTHOUGH FACING A LENGTHY SENTENCE,
CORRESPONDED WITH HIS CHILD ON A MONTHLY BASIS,
HAD VISITS WITH HIM ON A REGULAR BASIS UNTIL
STOPPED BY THE AGENCY ONCE THE CHILD WAS IN ITS
CUSTODY, ATTEMPTED TELEPHONE CONTACT WITH HIS
CHILD AND RECEIVED UPDATES AND PICTURES FROM THE
RESOURCE FAMILY?
DID THE AGENCY MEET ITS BURDEN OF INTRODUCING
SUFFICIENT EVIDENCE THAT TERMINATION OF PARENTAL
RIGHTS IS IN THE CHILD’S BEST INTEREST?
(Father’s Brief at 7).
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare
of the child.”
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In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … 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 B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the
finder of fact, is the sole determiner of the credibility
of witnesses 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.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted).
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.
In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
may uphold a termination decision if any proper basis
exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa.Super. 2000) (en banc). If the court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
(Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting 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)).
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The Agency sought 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:
(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.
(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 [her] 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.
* * *
(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
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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.A. § 2511(a)(1), (2), (5), (8), and (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., supra at 1117.
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…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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
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To satisfy the requirements of [S]ection 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 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.
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…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).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted) (emphasis added). Regarding the six-month period prior to filing
the termination petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his…parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005).
The grounds for termination of parental rights under Section
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2511(a)(2), 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 (Pa.Super. 2002). “Parents are required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. The fundamental test in termination of
parental rights under Section 2511(a)(2) was long ago stated in the case of
In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania
Supreme Court announced that under what is now Section 2511(a)(2), “the
petitioner for involuntary termination must prove (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,
neglect or refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In Interest of Lilley,
719 A.2d 327, 330 (Pa.Super. 1998).
Our Supreme Court addressed the relevance of incarceration in
termination decisions under Section 2511(a)(2), holding:
[W]e now adopt the view…that incarceration neither
compels nor precludes termination. Instead, we hold that
incarceration is a factor, and indeed can be a
determinative factor, in a court’s conclusion that grounds
for termination exist under [Section] 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 that the causes of
the incapacity cannot or will not be remedied.
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* * *
In line with the expressed opinion of a majority of justices
in [In re R.I.S. & A.I.S., 614 Pa. 275, 36 A.3d 567
(2011)], our prior holdings regarding incapacity, and
numerous Superior Court decisions, 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). … 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 [Section] 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., 616 Pa. 309, 328-31, 47 A.3d 817, 828 (2012).2
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
2
“Termination of parental rights under Section 2511(a)(5) requires that: (1)
the child has been removed from parental care for at least six months; (2)
the conditions which led to removal and placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Z.P., supra at 1118. “[T]o terminate parental
rights under Section 2511(a)(8), the following factors must be
demonstrated: (1) the child has been removed from parental care for
[twelve] 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.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super.
2003). Due to our disposition under other subsections of Section 2511, we
will not address the applicability of subsections (a)(5) or (a)(8).
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(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
bond.” Id. at 520. Significantly:
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. 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.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
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 have his…parental rights terminated.” In re B.L.L.,
787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
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
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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 [his] physical and
emotional needs.
In re B.,N.M., supra at 855 (internal citations 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.
“While a parent’s emotional bond with his…child is a major aspect of
the subsection 2511(b) best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when determining what is in the
best interest of the child.” In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011).
“The mere existence of an emotional bond does not preclude the termination
of parental rights.” Id. Rather, the court “must examine the status of the
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bond to determine whether its termination would destroy an existing,
necessary and beneficial relationship.” Id. (internal citations and quotation
marks omitted). “Above all else[,] adequate consideration must be given to
the needs and welfare of the child. A parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights.”
In re Z.P., supra at 1121.
Importantly, “this Court has recognized a connection between the
involuntary termination of parental rights and the Adoption and Safe
Families Act (“ASFA”)…” In re R.M.G., 997 A.2d 339, 349 (Pa.Super.
2010), appeal denied, 608 Pa. 648, 12 A.3d 372 (2010). The stated policy
of the ASFA is:
[T]o remove children from foster placement limbo
where they know neither a committed parent nor can
[they] look toward some semblance of a normal
family life that is legally and emotionally equivalent
to a natural family…. States such as Pennsylvania,
which participate in the program, are required to
return the child to its home following foster
placement, but failing to accomplish this due to the
failure of the parent to benefit by such reasonable
efforts, to move toward termination of parental
rights and placement of the child through adoption.
Foster home drift, one of the major failures of the
child welfare system, was addressed by the federal
government by a commitment to permanency
planning, and mandated by the law of Pennsylvania
in its participation in the Adoption and Safe Families
Act of 1997. Succinctly, this means that when a
child is placed in foster care, after reasonable efforts
have been made to reestablish the biological
relationship, the needs and welfare of the child
require [the Agency] and foster care institutions to
work toward termination of parental rights, placing
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the child with adoptive parents. It is contemplated
this process realistically should be completed
within 18 months.
Essentially, this legislation shifted away from an
inappropriate focus on protecting the rights of parents to
the priority of the safety, permanency and well-being of
the child. While this 18-month time frame may in some
circumstances seem short, it is based on the policy that a
child’s life simply cannot be put on hold in the hope that
the parent will summon the ability to handle the
responsibilities of parenting.
Id. (internal citations and quotation marks omitted) (emphasis in original).
Instantly, in response to Father’s claims, the Orphans’ court first
translated Father’s issue as: “Whether the parental rights of a father should
be terminated when the parent was imprisoned in 2010 for violent crimes
when his son was one year old, when he will be in prison until at least 2026,
when he has seen his son since 2010 only at prison visits which ended in
2014, but has taken no official action to reactivate those visits, when he
writes to his son less than once a month, and when he will need extensive
work on his reunification plan upon release[?]” (See Trial Court Opinion at
3.) Further, the court reasoned:
The record shows that Father has written to [Child] less
than once a month. Fewer than 12 letters a year is just
not enough to show Father’s sincere desire to form a bond.
And it is certainly an insufficient reason to deprive [Child]
of the security of the close and present love and care of his
foster parents. When his visits with [Child] were stopped,
Father complained to the Agency but did not formally ask
the [c]ourt to intervene. Father has not taken sufficient
action to remedy the conditions which rendered [Child] a
dependent child.
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The [c]ourt finds that the Agency has met its burden to
terminate Father’s parental rights under the standards set
out in Sections 2511(a)(1), (2)…. Father has been in
prison since [Child] was one year old. [Father] has not
taken sufficient action to maintain a parental role with his
child. He has not completed any aspect of his reunification
plan. At his father’s release date, [Child] will be almost
18. Even if his rights had not been terminated, Father
would be a parent in name only, since he is not in a
position to adopt a personal parental role with his son.
The [c]ourt realizes that Father has no choice in this
matter since he will be in jail until 2026, but his lack of
choice does not grant him a reprieve from a termination.
His reality is that he is not now and will not in the near
future be in a position to care for [Child].
* * *
The [c]ourt not only disagrees with, but is mystified by,
Father’s position in favor of maintaining his parental rights.
In what way is seven-year-old [Child’s] best interest
served by being turned into a foster child with no hope of
meaningful contact whatsoever with his biological parent
for a period of sixteen years? Do fewer than twelve letters
a year successfully substitute for [regular displays of love
and affection]? Of course not. But that is what Father
wants for [Child]. Father wants to retain his status as a
parent while leaving [Child] essentially parentless.
Father asserts that despite the separation, he has a
meaningful bond with [Child], but the [c]ourt does not
accept that assertion as true. Father had some visits with
[Child] at his previous prison setting, but those visits
ended in 2014, when [Child] was five, and Father did not
fight for their resumption. At [seven] years of age, [Child]
certainly knows Father, but recognition does not equal an
emotional bond. As the Superior Court has said:
… Being Uncle Daddy is not enough. Being a parent
means assuming responsibility so that a real bond
develops, not just a casual relationship.
The Superior Court has also eloquently commented on the
type of situation in which a parent fights to maintain
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his…rights, thereby condemning the child to the limbo of
unending foster care. …
What [the parent] attempts to preserve is [his]
sense of worth by holding onto the illusion of
[fatherhood]. In doing so, [he] would deny [his
child], in name only, the right to be totally
assimilated into the only family [the child] has
known. The price [the child] would pay is too high to
satisfy [the parent’s need]. Sometimes the greatest
act of love a parent can express is to let the child go.
…
And such is the case for [Child]. Because of the length of
Father’s sentence and his inability to maintain a parental
bond with [Child] it is impossible for [Father] to provide
[Child] with the love, security and stability that [Child]
deserves in his life.
(Id. at 5-7). The record supports the court’s termination decision under
Section 2511(a)(1), (a)(2) and (b), based on parental incapacity and the
best interests of Child. See In re Z.P., supra. Therefore, we have no need
to disturb it. Based upon the foregoing, we affirm the decree terminating
Father’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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