J-S25002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.E.L.M.P., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: B.P., FATHER
No. 3222 EDA 2016
Appeal from the Order September 13, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0000771-2016
CP-51-DP-0001804-2014
FID: 51-FN-001755-2014
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 16, 2017
B.P. (“Father”) appeals from the September 13, 2016 order that
granted the petition filed by the Philadelphia Department of Human Services
(“DHS”) to involuntarily terminate his parental rights to C.E.L.M.P. (“Child”),
born in January of 2010. We affirm.
In its opinion, the trial court set forth the factual and procedural
history of this case, as follows:
The family in this case first became known to DHS on June 8,
2014, when DHS received a Child Protective Services (“CPS”)
report that Child’s brother C.T. (“Brother”) sexually assaulted
Child in the home of Father and T.T. (“Mother”), Child’s mother.
This report was indicated. Child participated in a forensic
interview with Philadelphia Children’s Alliance (“PCA”), where she
described being forced to have vaginal, anal and oral sex with
Brother. Mother and Father denied to DHS that they knew of the
abuse. On June 27, In-Home Protective Services were
implemented by a Community Umbrella Agency (“CUA”). On
July 29, 2014, DHS received a report that Child had been
sexually assaulted by another of her brothers. At a second PCA
interview Child described anal and oral sex with this second
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brother. DHS obtained an Order of Protective Custody, removed
Child and placed her in a foster home. On August 8, 2014, the
court adjudicated Child dependent and fully committed her to
DHS custody. CUA developed a Single Case Plan (“SCP”) with
objectives for Father. Over the course of 2015 and 2016, Father
did not successfully complete his SCP objectives. On June 16,
2016, DHS filed a petition to terminate Father's parental rights.
The goal change and termination trial was held on July 1, 2016.
The CUA supervisor testified that Father’s visits had been
changed on June 6, 2016, at an emergency hearing to be line-of-
sight, line-of-hearing. The visits were changed by court order
because during visits Father would hide behind a newspaper and
speak[] inappropriately to Child and her siblings. Since that
hearing, Father still whispers to the children during visits in
violation of court orders. The CUA supervisor testified that
Father had coached Child, telling her to write a letter asking for
reunification. Father also called Child’s foster parent[]
frequently, and was so rude … that the foster parent[] became
afraid. Father was ordered to stop calling the foster parent[].
After Father was ordered to stop calling, an unknown male called
Child at the foster parent[’s] home, claiming he knew Child
through Father. Because Father will not obey court orders, and
because CUA does not have adequate personnel to enforce
orders if they are willfully violated, CUA was unable to provide
safe visitation for Child and her siblings. Father coaches Child
and her siblings on what to say to CUA, and this makes the
children upset. Father refused to comply with court orders.
Father has anger issues, and cursed at the CUA supervisor
during the termination trial, while the attorneys were at sidebar
with the judge. Following argument, the trial court found that
Father presented a grave threat to Child and her siblings, and
suspended Father’s visitation with all of them. The court then
incorporated all relevant testimony from the grave threat
hearing into the termination and goal change proceedings. The
current CUA social worker testified that Child came into care
twenty-three months ago. Mother and Father attend SCP
meetings and know their objectives. Because Father is often at
work, he delegated most parenting duties to Mother. Mother is
not capable of keeping Child safe on a day-to-day basis.
Father’s objectives are to take parenting classes, attend mental
health treatment, a domestic violence program and visit with
Child. Father has not attended parenting classes. Father is
involved in mental health treatment, but has not signed current
releases to permit CUA to assess his treatment progress. Father
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has not provided any documentation that he participates in
mental health. He only provided a therapist’s telephone number.
The CUA social worker referred Father for domestic violence
counselling, but there is no record of him engaging since Child
came into care. Father lives in an appropriate house, but does
not have a lease. Father had unsupervised visits with Child, but
took Child to see the sibling who had sexually abused Child, and
visits were changed to supervised by the trial court. Father's
visits were changed to supervised, but he still whispers to Child
to coach her. Child is in care because of sexual abuse by a
sibling. Father works long hours. Father is late to visits. Father
has been asked, but he never provided his work schedule to
CUA. Child does not talk about Father outside of visits. Child
would suffer no irreparable harm if Father’s rights were
terminated. Child is engaged in trauma therapy because of the
sexual abuse she suffered. Father has not involved himself in
Child’s therapy. Foster parent ensures that Child attends her
trauma therapy. Father had previously failed to enroll Child’s
sibling in trauma therapy as ordered by the trial court. Child is
in a pre-adoptive home. She calls the foster parent her “aunt”
and is very happy with her. It is in her best interest to be
adopted. The foster parent keeps Child safe and protected.
Father is not able to keep her safe and meet her needs. Father
testified that he attempted to engage in domestic violence
counselling, but the provider never responded. Father testified
that, against CUA’s instructions, he tells Child at visits that she
will be reunified with him soon. Because Mother wished to sign[]
voluntary relinquishments of her parental rights, the trial court
held it[s] decision in abeyance. At the next court hearing on
September 13, 2016, Mother had not signed. The trial court
terminated Mother’s and Father’s parental rights under 23
Pa.C.S.A. §2511(a)(1), (2), (5), (8) and (b). On October 6,
2016, Father filed this appeal.1
1
Mother has also appealed the termination of her
parental rights. See In the Interest of C.E.L.M.P., a
Minor, 3221 EDA 2016[.]
Trial Court Opinion (TCO), 11/21/16, at 1-3 (citations to the notes of
testimony omitted).
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Following its rendition of the facts and procedural history quoted
above, the trial court discussed the basis for its decision to involuntarily
terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8) and (b), setting forth the facts from the documentation and
testimony presented at the July 1, 2016 hearing. In its conclusion, the court
stated that it found that DHS had carried its burden of proof and that the
termination “would best serve Child’s emotional needs and welfare.” Id. at
11.
On appeal, Father raises the following issues for our review:
1. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. §2511(a)(1)?
2. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. §2511(a)(2)?
3. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. §2511(a)(5)?
4. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. §2511(a)(8)?
5. Whether the [t]rial [c]ourt erred by terminating the parental
rights of [Father] under 23 Pa.C.S.A. §2511(b)?
Father’s brief at 5.
We review an order terminating parental rights in accordance with the
following standard:
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
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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
record in order to determine whether the trial court's decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
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.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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., 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., 835 A.2d 387, 394 (Pa. Super. 2003).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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
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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) (citing 23 Pa.C.S. § 2511,
other 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. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
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 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
The trial court here terminated Father’s parental rights pursuant to
section 2511(a)(1), (2), (5), (8) and (b). In order to affirm, we need only
agree with the trial court as to any one subsection of section 2511(a), as
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well as section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Father’s brief provides argument regarding all four
subsections of section (a). We have chosen to address and analyze the
court’s decision to terminate Father’s parental rights under section
2511(a)(1) and (b), which provide:
(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
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. § 2511(a)(1), (b).
In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided
direction relating to what considerations need to be addressed when
reviewing a trial court’s decision to terminate parental rights under various
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subsections of 2511(a). Specifically, relating to subsection (a)(1), the Z.P.
Court stated:
A court may terminate parental rights under Section 2511(a)(1)
where the parent demonstrates a settled purpose to relinquish
parental claim to a child or fails to perform parental duties for at
least the six months prior to the filing of the termination petition.
In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court
should consider the entire background of the case and not
simply:
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) (citing In re D.J.S.,
737 A.2d 283 (Pa. Super. 1999)).
In re Z.P., 994 A.2d at 1117 (emphasis in original).
Essentially, Father argues that the evidence provided by witnesses for
DHS was insufficient to prove that his actions “evidenced a settled purpose
of relinquishing his claim to [Child] and [that he] failed to perform parental
duties.” Father’s brief at 15. In his brief, Father appears to attempt to
contradict testimony relating to a failure on his part to comply with the
objectives he was required to fulfill. Rather, he tries to convince this Court
that he in fact did work on the objectives and that any failures should have
been attributed to someone else. In discussing the facts relating to section
2511(a)(1), the trial court found:
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The petition for involuntary termination was filed on June 6,
2016. During the six-month period prior to the filing of the
petition, Father’s objectives were to take parenting classes,
attend mental health treatment, a domestic violence program,
and visit with Child. Father attends SCP meetings and knows his
objectives. Father claims he has taken parenting classes, but
has never provided CUA with any evidence or documentation
that he had actually done so. During the six-month period,
Father did not sign current releases to enable CUA to assess his
mental health treatment. Father has also not provided any
documentation. Father did not engage with domestic violence
counselling during the six-month period, or throughout the life of
this case. During the entire six-month period, Father’s visits
with Child were supervised, but he had been unsupervised
earlier in the case. Visits were changed from unsupervised to
supervised because Father took Child to see the sibling who had
sexually assaulted her. Father is late for visits. CUA asked him
for a work schedule, but he provided none. During visits, he
tells Child that she will be reunified with him soon. Father
coaches Child and her siblings, making them upset. Father tries
to avoid the court order requiring line-of-sight, line-of-hearing
visitation restrictions by hiding behind a newspaper to
improperly coach Child to write a letter request[ing]
reunification. Father calls or has other people call the foster
parent[] to inappropriately contact Child. Father is often at work
and has delegated most parental duties to Mother. Father has
failed to perform parental duties. Father has refused to
participate in Child’s therapy. Looking back beyond the six-
month period, Father’s compliance with objectives has been
decreasing over the life of this case, with visits going from
unsupervised to supervised to suspended. Father has not
successfully completed his objectives. As a result, the trial court
did not abuse its discretion by finding clear and convincing
evidence that Father, by his conduct, has refused and failed to
perform parental duties, so termination under this section was
proper.
TCO at 4-5 (citations to notes of testimony omitted).
As found by the trial court, Father failed to complete most of the
objectives, in particular, those dealing with parenting, domestic violence,
and mental health. In fact, the court found that Father’s compliance
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decreased over time, most notably, that visits with Child went from
unsupervised, to supervised, and eventually, the visits were suspended.
Thus, the court concluded that Father refused or failed to perform his
parental duties for a period of at least six month prior to the filing of the
petition to terminate his parental rights. See In re B.,N.M., 856 A.2d at
855 (stating “[p]arental 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”).
Our thorough review of the record reveals that the trial court did not
abuse its discretion in ordering the termination of Father’s parental rights.
The record supports the court’s findings and conclusion that Father’s refusal
or failure to perform parental duties occurred for a period of at least six
months prior to the filing of the petition. Since Father has not convinced us
otherwise, we conclude that he is not entitled to any relief.
Lastly, we address Father’s fifth issue in which he claims that DHS
failed to provide sufficient evidence to establish that termination would best
serve Child’s needs and welfare under 23 Pa.C.S. § 2511(b). In his brief,
Father sets out the law relating to section 2511(b), but only includes the
following two sentences to support his position relating to Child’s needs and
welfare:
Father testified that during the visits he and the child would
discuss her day, her book, her medals and about going
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swimming. They would discuss memories between the child and
father (N.T. 7/1/2016 p. 124).
Father’s brief at 19. Meanwhile, the trial court’s opinion includes the
following discussion in relation to this section, stating:
Father has consistently been late to visits with Child. He told
CUA this was because of his job, but has not provided a schedule
to allow CUA to change visits to comply with his schedule. Early
in the life of this case, Father had unsupervised visits with Child,
but he took Child to see the sibling who had sexually abused
Child. Father’s visits were changed to supervised. Father began
calling the foster parent[] to contact Child and coaching Child
during visits to write a letter requesting reunification. After
Father was ordered to stop calling, an unknown male began
calling in his place. Father testified that he whispered to Child
during visits, telling her she would be reunified with him soon.
He continued doing so, knowing that it violated CUA visitation
policies and court orders. Father’s coaching and hints at
reunification have a negative effect, and upset Child and her
siblings. As a result, his visits with Child were suspended.
Father has not involved himself in Child’s trauma therapy.
Foster parent ensures that Child attends trauma therapy. Child
does not talk about Father outside of visits, and would suffer no
irreparable harm if his rights were terminated. Child knows her
Father. Child has been placed in a pre-adoptive home with her
current foster parent[] for nearly two years. She calls the foster
mother her “aunt” and is happy and safe with her. It is in Child’s
best interest to be adopted. Father has a job and appropriate
housing although he has not provided a lease and rental license
to CUA. DHS witnesses were unwavering and credible.
Consequently, the court did not abuse its discretion when it
found that it was clearly and convincingly established that there
was no positive, beneficial parent-child bond with Father, and
that termination of Father's parental rights would not destroy an
existing beneficial relationship.
TCO at 10 (citations to notes of testimony omitted).
Father’s minimal argument does not convince us that the trial court
erred in its conclusion that no beneficial relationship existed between Father
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and Child that would have a negative effect on Child if it were severed.
Rather, the evidence shows that Child and foster mother have developed a
beneficial bond. Moreover, 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.” In re Z.P., 994 A.2d at 1125. “[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 at 856. Again, Father is not entitled
to relief.
Accordingly, because we conclude that the trial court did not abuse its
discretion by involuntarily terminating Father’s parental rights to Child, we
affirm the order terminating those rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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