J-S88017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.T.L., T.M.L., : IN THE SUPERIOR COURT OF
D.N.L. AND M.E.J.D.L., MINORS : PENNSYLVANIA
:
:
APPEAL OF: D.T.B., FATHER :
:
:
:
: No. 751 EDA 2016
Appeal from the Decree February 5, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): CP-51-AP-0000769-2015,
CP-51-AP-0000770-2015, CP-51-AP-0000771-2015,
CP-51-AP-0000772-2015, CP-51-DP-0000323-2014,
CP-51-DP-0001341-2014, CP-51-DP-0001342-2014,
CP-51-DP-0001343-2014
BEFORE: OLSON, RANSOM, and STRASSBURGER1, JJ.
MEMORANDUM BY RANSOM, J.: FILED January 12, 2017
Appellant, D.T.B. (“Father”), appeals from the order in the Philadelphia
County Court of Common Pleas, which terminated his parental rights to his
minor children, M.E.J.D.L., N.T.L., T.M.L., and D.N.L., pursuant to the
Adoption Act, 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and 2511(b). After a
thorough review of the record, we affirm.
The relevant facts are as follows:
The family in this case became known to [the Department of
Human Services] DHS on November 11, 2013, when DHS
received a substantiated General Protective Services (“GPS”)
report alleging that Mother’s home was without heat or food, and
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1
Retired Senior Judge assigned to the Superior Court.
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that [M.E.J.D.L.] had cerebral palsy and was left alone or with
inappropriate caregivers. Another GPS report was received by
DHS on December 6, 2013, alleged that [M.E.J.D.L.] was missing
medical appointments. Over the course of 2013, [M.E.J.D.L.]
missed thirteen medical appointments. DHS filed an urgent
petition for [M.E.J.D.L.] on February 5, 2014. [M.E.J.D.L.] was
adjudicated dependent and committed to DHS on March 7, 2014.
She was placed with E.L. (“Foster Mother”), her maternal
grandmother. [M.E.J.D.L.] is a very medically needy child.
Mother was present at the time of the adjudication, where the
court ordered her to attend substance abuse treatment. In
March 2014, Mother began attending Caton Village, an inpatient
substance abuse treatment facility. Mother was allowed to have
the three other Children reside with her at the inpatient facility.
Mother’s goals under the April 16, 2014, Family Service Plan
(“FSP”) were to participate in family therapy, stabilize mental
health, attend drug and alcohol treatment, maintain sobriety and
secure safe living conditions for the Children. Father’s FSP goals
were to obtain housing, attend all hearings and ensure the
Children attend all medical appointments. On May 9, 2014,
another GPS report alleged that Mother used physical discipline
against the Children. The treatment facility sought to transfer
Mother elsewhere because of altercations with other patients.
Foster Mother removed the three children from the treatment
facility on May 20, 2014, and Mother left the program the same
day without successfully completing treatment, against medical
advice. On June 2, 2014, DHS filed urgent petitions for N.T.L.,
T.M.L. and D.N.L. These three children were adjudicated
dependent on June 18, 2014. They were committed to DHS and
placed with Foster Mother. The court also ordered Mother and
Father to the Achieving Reunification Center (“ARC”) for
additional services, and Mother was ordered to the Clinical
Evaluation Unit (“CEU”) for forthwith drug screen and dual
diagnosis assessment. Both parents were offered supervised
visitation. Over the next year, Mother and Father were found
non-compliant at every permanency review. The trial court
found at every review that DHS had made reasonable efforts to
reunify the family. DHS filed petitions to involuntarily terminate
Mother’s and Father’s parental rights, and to change the
Children’s permanency goals to adoption on October 29, 2015.
Trial Court Opinion, 4/20/16, at 1-2.
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At the hearing, the trial court terminated Father’s parental rights as to
all four children pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), as
well as 2511(b), and changed the children’s goal to adoption. On March 7,
2016, Father’s counsel timely filed a notice of appeal as well as a statement
pursuant to Pa.R.A.P. 1925(b).
Father raises the following issues on appeal:
(1) Did the court below err in finding that grounds for
termination of parental rights had been proven by “clear
and convincing evidence”?
(2) Did the court below err in finding that the Department of
Human Services (hereinafter, “DHS”), had met its burden
in proving grounds under 23 Pa.C.S.A. §§ 2511(a)(1), (2),
(5) and (8)?
(3) Did the court below err in finding that DHS had met its
burden to prove that termination would be in the children’s
best interest, under § 2511(b)?
(4) Did the court below err in denying Due Process and Equal
Protection of Law to Appellant, [D.T.B.], Father, as
guaranteed by the Constitution of the United States and
the Commonwealth of Pennsylvania?
Our standard of review regarding orders terminating parental rights is as
follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
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record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence2
that the asserted grounds for seeking the termination of parental rights are
valid. Id., at 806.
“The trial court is free to believe all, part, or none of the evidence
presented, and is likewise free to make all credibility determinations and
resolve conflicts in the evidence.” In re M.G. and J.G., Minors, 855 A.2d
68, 73-74 (Pa. Super. 2004). “If competent evidence supports the trial
court’s findings, we will affirm even if the record could also support the
opposite result.” In re Adoption of T.B.B., Jr., 835 A.2d 387, 394 (Pa.
Super. 2003).
While Father’s appeal raises issues pertaining to all of the grounds for
termination, this Court may affirm the trial court’s decision with regard to
any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380,
384 (Pa. Super. 2014) (en banc). As such we will focus on 2511(a)(1) and
2511(b), which provide as follows:
§ 2511. Grounds for involuntary termination
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2
The standard of clear and convincing evidence is defined as testimony that
is so “clear, direct, weighty and convincing as to enable the trier of fact to
come to a clear conviction, without hesitance, of the truth of the precise
facts in issue.” In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa. Super.
2003).
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(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
filling of the petition either has evidenced a
settled purpose of relinquishing parental claim to
a child or has refused or failed to perform
parental duties.
* * *
(b) Other considerations. – The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6), or (8), the court shall
not consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
This Court has explained the review of a challenge to the sufficiency of
the evidence supporting the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of section 2511(a)(1), the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform
parental duties.
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***
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his 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) (citations omitted).
[T]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a
serious intent on the part of the parent to recultivate a parent-
child relationship and must also demonstrate a willingness and
capacity to undertake the parental role. The parent wishing to
reestablish his parental responsibilities bears the burden of proof
on this question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en
banc).
This Court has emphasized that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the development
of the child.” In re B.N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (internal
citations omitted). We have explained:
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
require affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
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genuine effort to maintain communication and association with
the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a place
of importance in the child’s life.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with…her physical and emotional needs.
Id.
Further, we have stated that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities In re A.L.D., 797 A.2d 326, 327 (Pa. Super. 2002). A
parent’s vow to cooperate after a long period of uncooperativeness regarding
the necessity or availability of services, may properly be rejected as
untimely or disingenuous. Id. at 340.
By Father’s own admission, he has made no efforts toward assuming
responsibility for his children. Father admitted that he “can’t really do much
for his kids at the moment.” Notes of Testimony (N.T.), 12/11/15, at 75.
Father did not utilize any of the resource offered by DHS. He is homeless
and indicated to the court that in three to six months he would have a plan
to provide for his children. N.T. at 82. Father’s vow to cooperate after
eighteen months is disingenuous. Father has not demonstrated a desire to
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parent or maintain a relationship with his children. He attended only one
supervised visit the entire time the children were in care. N.T. at 65.
In reaching its decision, the trial court noted that, in the six-month
period preceding the petition for involuntary termination, Father did not
complete any of his objectives and, throughout the life of the case, Father
has never been compliant with court orders. Trial Court Opinion at 8. The
trial court found that “Father, by his conduct, had refused and failed to
perform parental duties, so termination under this section was proper.” Id.
Accordingly, our review of the record supports the trial court’s
conclusion that termination of Father’s parental rights was proper under
Section 2511(a)(1). As noted above, this Court need only agree with the
trial court’s decision to terminate parental rights under one subsection of
Section 2511. See In re B.L.W., supra.
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of Section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc). Pursuant to Section 2511(b), the court, in
terminating the rights of a parent, shall give primary consideration to the
developmental, physical, and emotional needs and welfare of a child.
Kristen Jenkins, Children’s Choice social worker, testified that Father
only visited the children once during the entire eighteen months they were in
care. N.T. at 65. Since the visit in March 2015, Father never contacted Ms.
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Jenkins for additional visits. Id. at 66. Based on the lack of visitation, Ms.
Jenkins reasoned that the children did not maintain an attachment to Father,
thus they would suffer no irreparable harm if Father’s rights were
terminated. Id. at 67. Furthermore, Ms. Jenkins testified that the children
look to foster mother to meet all of their needs. Id. at 68. The children
view Foster Mother as the parental figure in their lives. Id.
As there is competent evidence in the record that supports the trial
court’s credibility and weight assessments that severing the bond with
Father would not cause the children irreparable harm, we conclude that the
trial court did not abuse its discretion in terminating Father’s parental rights
to the Children with regard to section 2511(b).
Finally, Father argues that the trial court committed errors depriving
him of his Due Process and Equal Protection rights. Father’s reliance on
Stanley v. State of Illinois, 92 S. Ct. 1208 (1972) is misplaced. In that
case, the Supreme Court held that a parent was entitled to a hearing on his
fitness as a parent before his children were taken away and, thus, the State
had violated his equal protection of the laws guaranteed by the Fourteenth
Amendment. Id. at 1212.
In the instant case, Appellant had a hearing on the termination of
parental rights petition. At which, evidence was presented regarding his
fitness as a parent. Trial counsel had the opportunity to cross-examine
witnesses and present witnesses if they wished. Furthermore, Appellant
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testified at trial and had the opportunity to refute testimony. Father’s fourth
issue is without merit, the trial court did not violate Father’s due process
rights. Accordingly, after a careful review, we affirm the order terminating
Father’s parental rights on the basis of 2511(a)(1) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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