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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF L.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.H., FATHER :
:
:
:
:
: No. 949 WDA 2016
Appeal from the Order June 9, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No(s): CP-02-AP-0000001-2016
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2016
Appellant, C.H. (“Father”), appeals from the June 9, 2016, order
involuntarily terminating his parental rights to his minor child, L.S. (born in
March of 2012), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2),
(5), (6), and (b).1 We affirm.
The relevant facts and procedural history are as follows: L.S. was
born in March of 2012 to Mother, who was single and had never been
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1
Mother signed a consent for adoption as to L.S., and following a hearing,
the trial court confirmed Mother’s consent. Mother is not a party to this
appeal, and she has not filed a separate appeal.
* Former Justice specially assigned to the Superior Court.
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married.2 L.S. was living with maternal grandmother, until he was removed
by the Allegheny County Office of Children, Youth, and Families (“CYF”) on
August 14, 2014.3 At this time, Mother could not be located and Father was
incarcerated at SCI Greene for homicide with 2021 as his earliest release
date.
On September 3, 2014, L.S. was adjudicated dependent, and due to
lack of contact, the trial court determined aggravated circumstances existed
such that CYF was relieved of its obligation to provide reunification efforts
for Mother. On January 8, 2016, CYF filed a petition for the involuntary
termination of Father’s parental rights as to L.S.,4 and on January 20, 2016,
the goal for L.S. was changed to adoption.
On June 3, 2016, the trial court held a hearing as to CYF’s petition to
terminate Father’s parental rights. At the hearing, Jessica Andrews, a CYF
caseworker, testified that Father was incarcerated in 2012, and he
completed parenting classes during his incarceration. Id. at 12. In August
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2
Mother did not list a father on L.S.’s birth certificate; however, she later
informed authorities that Father was L.S.’s biological father. Subsequent
genetic testing in December of 2014 confirmed Father is L.S.’s biological
father.
3
Mother left L.S. in the care of maternal grandmother in June of 2014 and
then failed to return. Upon investigation, it was discovered that maternal
grandmother and maternal grandfather had extensive criminal histories.
4
The petition also sought the involuntary termination of Mother’s parental
rights; however, CYF later withdrew its petition when Mother signed the
consent for adoption, which the trial court confirmed.
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of 2015, L.S. began visiting Father at the prison in Waynesburg,
Pennsylvania. N.T., 6/3/16, at 12-13. Caseworkers, including Ms. Andrews,
drove L.S. for the visitations. Id. at 13. Ms. Andrews testified that she
witnessed the visitations, and in particular, she testified as follows:
[L.S.] is very active. He’s a 4-year-old child and he likes
to run around and play. And during—there is a visiting room and
stuff and so he likes to be in there. So I try to get him to be out
in—because [Father] isn’t allowed in the playroom. They don’t
let inmates in the playroom. So I try to get [L.S.] to stay out in
the visitation area where he can actually visit with [Father], but
there is a lot of him just running around and me chasing him to
try to get him to stay put to visit with [Father] and a lot of me
trying to, you know, get him to just play with the toys right
there.
Id. at 13-14.
As to whether Father is able to redirect or chase L.S. during the visits,
Ms. Andrews testified:
I don’t know if [Father] is actually allowed to get up and chase
after him. That, I’m not sure of but I believe that it’s been—the
interaction seems kind of awkward which would be
understandable given that it’s my understanding that the first
time [Father] met [L.S.] was when I took [L.S.] for his first visit
on August 29th of 2015. So there is a bit of unfamiliarity,
whereas [L.S.] at that point had known me for over a year and
[I] had been visiting and seeing him on a regular basis because
of that. So there are a number of factors I think that play into
that.
Id. at 14.
Ms. Andrews testified that, during the visits, Father will hug L.S. and
try to talk to him, but it is difficult because L.S. just wants to play. Id. Ms.
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Andrews testified that, if Father’s parental rights are terminated, there will
be no detriment to L.S. as it relates to a parent-child bond. Id. at 14-15.
Ms. Andrews testified Father asked that L.S. be placed with paternal
grandmother and, accordingly, in January of 2015, Ms. Andrews went to
paternal grandmother’s residence. However, upon inspection of the
residence, Ms. Andrews discovered three roommates residing with paternal
grandmother. One of the roommates was a registered Megan’s Law sex
offender; one of the roommates had been indicated on ChildLine for sex
abuse; and one of the roommates had previously had her parental rights as
to her children terminated due to physical abuse. Id. 17-18. Accordingly,
CYF did not deem paternal grandmother to be suitable for placement
purposes. Id. at 18.
Thereafter, Father informed CYF that his brother had evicted paternal
grandmother’s roommates, and thus, he asked that CYF reconsider placing
L.S. with paternal grandmother. Id. However, CYF indicated it declined to
do so since paternal grandmother identified one of the roommates as her
paramour and there was “a trust issue.” Id.
Ms. Andrews testified that L.S. was placed with a foster mom and dad,
and their adult daughter, A.T., moved in with them in February of 2015 to
assist with L.S.’s care. A.T. indicated she had become attached to L.S. and,
therefore, on December 15, 2015, placement of L.S. was officially granted to
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A.T. with the goal of adoption.5 Id. at 15-16. Ms. Andrews noted that Dr.
Rosenblum had evaluated A.T. and L.S., and he recommended that A.T. be
permitted to adopt L.S. Id. at 16. Moreover, Ms. Andrews testified CYF has
concluded that it would be detrimental to remove L.S. from the care of A.T.
as he has lived with her for close to a year and a half. Id. at 19.
Ms. Andrews denied that CYF was seeking termination of Father’s
parental rights solely due to his incarceration; but rather, she indicated CYF
was seeking termination as “he’s not capable of providing the care and
control that [L.S.] needs.” Id. She opined that termination of Father’s
rights would best meet L.S.’s needs and welfare. Id.
On cross-examination, Ms. Andrews admitted that Father attempted to
maintain contact with L.S. by sending letters and cards to him. Id. at 24.
She also admitted that Father seemed to want to establish a bond with L.S.;
however, “it was just difficult because there hadn’t been a prior relationship
and trying to build that is difficult with a child that wants to run around.”
Id. at 23.
Father, who was represented by counsel, testified that, as soon as
paternity testing confirmed that L.S. was his biological child, he requested
visitation through CYF. Id. at 28. He testified that he has done all that he
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5
The record reveals that L.S. has a half-sibling, A.M.J. The children have
the same biological mother but different biological fathers. Along with L.S.,
A.M.J. has also been placed with A.T. with the goal of adoption.
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was supposed to do to begin visitations, and he has had “more than three or
four” visits with L.S. Id. at 27-28. Father testified that “[t]he visits were
nice. I enjoyed them. Because like Ms. Andrews said, he’s very playful and
he’s happy all the time. So I enjoyed all the visits.” Id. at 28. Father noted
he has maintained contact with the caseworker, has completed parenting
classes, has written letters to L.S., and has sent cards to L.S. Id. at 28-29.
Father indicated that, when he suggested paternal grandmother as a
placement resource, he was unaware that she had other people living in her
home. Id. at 29-30. When he was informed of the fact by CYF, he enlisted
the help of his brother to have the people evicted because he “want[s] [his]
son.” Id. at 30. Father indicated he was contesting the termination of his
parental rights because he does not want to give up his child and it is only
because of his incarceration that his relationship with L.S. is hindered. Id.
at 30. Father testified that he was incarcerated in 2011, and when he was
told that Mother alleged he was the biological father of L.S., he wanted it
confirmed via a paternity test. Id. He noted that he “took the test” in
October of 2013, but he had to wait an entire year for the results. Id. at
30-31.
Father admitted that he is “limited” as to what he can do for L.S. and
“all [he] can do at the time [is] reach out to the family, potential people to
see if they can help.” Id. at 31. Father indicated he loves L.S., and it is the
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only child he has. Id. He acknowledged his earliest release date from
prison is 2021. Id. at 32.
On cross-examination, Father indicated he would concur with the
caseworker’s report that he had seven visits with L.S. Id. He acknowledged
that he knew Mother was pregnant when she testified against him at his
criminal trial, but he did not think the baby was “his baby.” Id. at 32-33.
He admitted that because of his incarceration he is not able to care for L.S.;
however, he wants L.S.’s paternal grandmother to care for L.S. Id. at 33-
34.
At the conclusion of all testimony, by order entered on June 9, 2016,
the trial court granted CYF’s petition to involuntarily terminate the parental
rights of Father. Specifically, the trial court determined that CYF met the
grounds for termination under 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).
Father filed a timely counseled notice of appeal, as well as a
contemporaneous statement pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
The trial court filed a responsive Pa.R.A.P. 1925(a) opinion.
Father raises the following issues in his counseled brief:
1. Is the trial court’s findings of grounds for involuntary
termination of [Father’s] parental rights under 23 Pa.C.S.[A.]
§ 2511(a)(2), (5), and (8) proven by [a] showing of clear and
convincing evidence?
2. Is the trial court’s finding that termination of parental rights
serves the developmental, physical and emotional needs and
welfare of the child [ ] proven by clear and convincing
evidence under 23 Pa.C.S.[A.] § 2511(b)?
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Father’s Brief at 5.6
Our Supreme Court has set forth the following standards in reviewing
the termination of parental rights.
[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., 608
Pa. 9, 9 A.3d 1179, 1190 (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. As has been
often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id. 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., [608 Pa. at
28-30], 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, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (1994).
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6
Father has presented no issues regarding the trial court’s order changing
the permanency goal for L.S. to adoption.
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In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012)
(some internal citations omitted).
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)).
In terminating Father’s parental rights, the trial court relied on
Subsections 2511(a)(2), (5), (8), and (b) of the Adoption Act. This Court
may affirm the trial court’s decision regarding the termination of parental
rights with regard to any one Subsection of 2511(a). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc). In the case sub judice, we
will focus on Subsections 2511(a)(2) and (b).
Section 2511 provides, in relevant part, 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:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
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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 have stated:
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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citations
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
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duties.” In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002) (citations
omitted). Further, as our Supreme Court has held:
[I]ncarceration, 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.[A.] § 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
[subsection] 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. at 332, 47 A.3d at 830-31 (citations and
parentheticals omitted).
In terminating Father’s parental rights under Subsection 2511(a)(2),
the trial court relevantly found the following:
Father, who has been imprisoned since 2011, met [L.S.]
for the first time in August, 2015, when visits with [L.S.] were
scheduled at SCI Greene. Since then, Father’s only interactions
with [L.S.] have been occasional visits at SCI Greene [ ] which,
according to the testimony of the attending CYF caseworker[,]
are “awkward” due to the “unfamiliarity” between [L.S. and
Father]. Father has never provided [L.S.] with daily parental
care and supervision, and Father’s “repeated and continued
incapacity” has “caused the child to be without essential parental
care, control or subsistence necessary for his physical or mental
well-being.” See 23 Pa.C.S.A. § 2511(a)(2).
[The trial court] concluded, furthermore, that the
conditions which led to the removal of [L.S.] continue to exist
and could not be remedied, within a reasonable period of time,
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given the length of time remaining before Father’s earliest
possible release date in 2021, at which time [L.S.]—who was
over three years old when he first met Father, and who [ ] has
never resided with Father or interacted with Father except for
periodic visits at SCI Greene—will be nine to ten years old.
Accordingly, [the trial court] concluded that Father has not in the
past, and will not within a reasonable time, be able to provide for
the child’s needs[.]
Trial Court Opinion, dated 8/8/16, at 6-7.
After a thorough review of the record, we conclude the trial court did
not abuse its discretion by concluding CYF met its burden of proving
termination of Father’s parental rights was warranted, by clear and
convincing evidence, under Subsection 2511(a)(2). In re R.N.J., supra.
The evidence clearly demonstrates that Father is incapable of providing L.S.
with parental care, control, or subsistence necessary for his physical or
mental well-being. While Father may claim to love L.S., a parent's own
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). We
have stated that a child's life “simply cannot be put on hold” in the hope that
a parent will somehow summon the ability to handle the responsibilities of
parenting. Id. 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., 856 A.2d 847, 856 (Pa.Super. 2004).
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After we determine that the requirements of Subsection 2511(a) are
satisfied, we proceed to review whether the requirements of Subsection
2511(b) are satisfied. See In re C.L.G., 956 A.2d 999, 1009 (Pa.Super.
2008) (en banc). This Court has explained that the focus in terminating
parental rights under Subsection 2511(a) is on the parent, but, under
Subsection 2511(b), the focus is on the child. Id. at 1008.
In reviewing the evidence in support of termination under Subsection
2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
child have been properly interpreted to include “[i]ntangibles
such as love, comfort, security, and stability.” [The court] [has]
held that the determination of the child's “needs and welfare”
requires consideration of the emotional bonds between the
parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond.
In re T.S.M., 620 Pa. 602, 628-29, 71 A.3d 251, 267 (2013) (quotation and
citations omitted).
As to the bond analysis, we have stated that, in conducting a bonding
analysis, the court is not required to use expert testimony, but may rely on
the testimony of social workers and caseworkers. In re Z.P., supra. This
Court has observed that no bond worth preserving is formed between a child
and a natural parent where the child has been in foster care for most of the
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child's life, and the resulting bond with the natural parent is attenuated. In
re K.Z.S., 946 A.2d 753, 764 (Pa.Super. 2008).
In concluding termination of Father’s parental rights was in L.S.’s best
interest under Subsection 2511(b), the trial court relevantly found the
following:
[The court], in terminating Father’s parental rights,
considered the developmental, physical and emotional needs of
[L.S.] pursuant to 23 Pa.C.S.A. § 2511(b), and determined that
termination was warranted in light of [L.S.’s] lack of any
relationship with Father from birth until August of 2015, and
[L.S.’s] limited relationship with Father thereafter, together with
the fact that Father has been imprisoned since 2011, and will not
be able to provide for [L.S.’s] daily needs, at least until his
earliest possible release date in 2021. In addition, evidence and
testimony presented at the hearing indicated that [L.S.]
displayed a “very strong emotional connection” to his pre-
adoptive mother, referring to her as “Mommy,” and that [L.S.]
“respond[s] very well to her.” (See Ex. 2 Expert Report of Dr.
Rosenblum, 7/31/15). Moreover, CYF presented evidence and
testimony that she has “earned the child’s love and trust,” is
“attached” to him, is eager to assume parental responsibility,
and has the ability to effectively provide for [L.S.’s] needs.
Trial Court Opinion, dated 8/8/16, at 7-8.
Further, the trial court recognized that it would not be in L.S.’s best
interest to reside with paternal grandmother, as suggested by Father, in
light of the criminal history of paternal grandmother’s roommates, as well as
the fact L.S. has never met paternal grandmother. Id. at 8. The trial court
concluded that “given the length of time that [L.S.] has resided with [pre-
adoptive mother], with whom [L.S.] has formed a bond, it would be
detrimental to remove him from [her] care.” Id. at 9.
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After a thorough review of the record, we conclude the trial court did
not abuse its discretion in terminating Father’s parental rights under
Subsection 2511(b). While Father argues that CYF did not meet its burden
since the evidence was insufficient to establish a lack of a parental bond
between him and L.S., we disagree. Ms. Andrews, the CYF caseworker,
testified that, if Father’s parental rights are terminated, there will be no
detriment to L.S. as it relates to a parent-child bond. N.T., 6/3/16, at 14-
15. Moreover, Father admitted that he visited with L.S. a total of seven
times during L.S.’s lifetime, and all of these visits occurred at the prison.
Accordingly, we reject Father’s claim.
For all of the foregoing reasons, we affirm the trial court’s June 9,
2016, order terminating Father’s parental rights as to L.S. on the basis of
Subsections 2511(a)(2) and (b) of the Adoption Act.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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