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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: M.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.M., FATHER :
:
:
:
:
: No. 2066 EDA 2016
Appeal from the Order Entered May 31, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): AP# CP-51-AP-0000420-2016,
DP# CP-51-DP-0002822-2014, FID# 51-FN-002570-2014
BEFORE: PANELLA, SOLANO, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 17, 2017
R.M. (“Father”) appeals from the order that involuntarily terminated
his parental rights to his daughter, M.S. (“Child”), born in November of
2014.1 Father claims that the trial court erred in finding clear and
*
Former Justice specially assigned to the Superior Court.
1
By separate orders dated May 31, 2016, the trial court involuntarily
terminated the parental rights of K.K.S. a/k/a K.S. (“Mother”) and any
unknown father. Neither Mother nor any unknown father filed a notice of
appeal from the respective orders. We note that although there was some
dispute regarding whether Father submitted to a paternity test, there was no
indication in a result of such testing was received.
The trial court also issued a goal change order dated May 31, 2016.
Because Father has not challenged the goal change, we will not address it in
this appeal. See Krebs v. United Ref. Co. of Pa., 893 A.2d 776, 797 (Pa.
Super. 2006) (“We will not ordinarily consider any issue if it has not been set
forth in or suggested by an appellate brief’s statement of questions
involved. . . .” (citations omitted)).
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convincing evidence for termination under 23 Pa.C.S. § 2511(a)(1), (2), and
(b). We affirm.
Shortly after Child’s birth in November of 2014, the Philadelphia
Department of Human Services (“DHS”) received a report that Child, along
with Mother, tested positive for opiates. Mother was discharged shortly after
Child’s birth. However, Child remained hospitalized. DHS visited Mother at
her home, and she admitted using drugs. DHS observed that Mother did not
have the necessities to care for Child.
On December 4, 2014, upon Child’s discharge from the hospital, the
trial court placed Child in the protective custody of DHS. The dependency
petition initially listed Child’s father as M.F., with whom Mother had another
child. The court adjudicated Child dependent on December 11, 2014.
Subsequently, M.F. was determined not to be Child’s biological father, and
Father became known to DHS. The Community Umbrella Agency (“CUA”)
established a single case plan (“SCP”) objective for Father to make his
whereabouts known to CUA.
Father appeared at the first permanency review hearing on March 12,
2015, and counsel was appointed. The court directed a paternity test for
Father and supervised visits. Father did not appear at the next three
permanency review hearings conducted on June 11, 2015,2 August 27,
2
The trial court again ordered Father to appear for a paternity test on June
11, 2015.
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2015, and January 14, 2016, although Father’s counsel was present at these
hearings. According to Father, he was incarcerated from May or June of
2015 until April of 2016.3
On May 12, 2016, one month after Father’s release from custody, DHS
filed a petition for the involuntary termination of Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), and (b). A hearing was held on
May 31, 2016.
With respect to Father, Sharon Palmer, a CUA supervisor at Catholic
Community Services, testified that Father (1) never met Child, (2) did not
visit with Child, (3) did not respond to letters from her agency, (4) did not
call the agency, and (5) could not be located when CUA workers went to the
address he provided the agency. N.T., 5/31/16, at 24, 29-32. Additionally,
Ms. Palmer testified that her file did not contain documentation that Father
submitted to a paternity test. Id. at 24. On cross-examination by Father’s
counsel, Ms. Palmer conceded that Father met his single goal of making his
whereabouts known by appearing at the March 12, 2015 permanency review
hearing. Ms. Palmer further stated that she did not attempt to contact
Father personally until May 23, 2016, eight days before the hearing, and
3
The record reveals that Father entered a guilty plea on May 26, 2015, for
drug crimes. DHS Ex. 8, at 4. In addition, the record reveals that Father
has an extensive criminal history involving robbery and theft. DHS Ex. 8, at
1-10.
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that she did not personally conduct clearances or a home assessment for
Father. Id. at 37-39, 42.
Michelle Jackson, a caseworker at Catholic Community Services,
testified that Child and foster parent had a “very close bond.” Id. at 47.
The remainder of Ms. Jackson’s testimony related to Mother, not Father.
Father testified on his own behalf and acknowledged that he appeared
at the March 12, 2015 permanency review hearing. Id. at 77-78. According
to Father, CUA did not give him a visitation schedule or other objectives
except making himself known to DHS. Id. at 78. Father did not personally
contact CUA to inform the agency of his incarceration. Id. at 79. Instead,
Father contacted his family members, including his female cousin, T.F., to
ask whether they “heard anything . . . .” Id. at 79. Father asserted that he
received no response to his inquiries. Id. Additionally, Father asserted that
he took parenting classes while in prison and entered into evidence a letter
from one of his classes. Id. at 80.
Father also testified that he met Child “about three times” during
Mother’s supervised visitations. Id. at 78-79, 83. He requested visitation
with Child, and concluded that he was in a position to take Child, but CUA
had not assessed his home. Id. at 83. On cross-examination, Father
conceded that he did not request additional visitation “[b]ecause the
paternal results didn’t come back and [he] wasn’t sure . . . .” Id. at 90. He
further acknowledged that he had a lawyer for the dependency and
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termination proceeding, as well as a social worker in prison, but did not
contact CUA for additional visitation though them. Id. at 89-90.
T.F., Father’s cousin, also testified at the hearing. T.F. asserted that
she attempted to help Father complete a paternity test and requested
kinship care for Child. Id. at 94-95. T.F. testified that she was in contact
with “Mr. Walt,” whom she believed was with the foster agency or DHS, a
“few times a month,” and informed Mr. Walt of Father’s incarceration on
three occasions. Id. at 95-99.
By order dated May 31, 2016, the trial court involuntarily terminated
Father’s parental rights. Father timely filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court filed its Rule 1925(a) opinion on
August 17, 2016.
In its opinion, the trial court stated that it found the testimony of
Father and his cousin, T.F., incredible. Trial Ct. Op., 8/17/16, at 5. The
court instead found credible the testimony of Ms. Palmer, the CUA
supervisor. Id. The court noted:
[The CUA] supervisor testified that Father had one [ ] SCP
objective. The SCP objective for [F]ather was to make his
whereabouts known to CUA. On March 12, 2015, [F]ather
appeared at a Permanency Hearing and provided the [c]ourt with
an address. The CUA supervisor testified that two CUA workers
visited the address provided. Furthermore, letters were sent to
the address which contained CUA’s contact information. Lastly,
attempts were made to contact [F]ather by telephone. Father
never responded to CUA’s attempts to contact him.
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On March 12, 2015 and June 11, 2015, [F]ather was ordered by
the court to submit to a paternity test and to visit with the child.
Father did not submit to a paternity test. Furthermore, [F]ather
never did visit [ ] with [Child]. The CUA supervisor testified that
they were unable to schedule visits with [F]ather because he
never responded to CUA’s attempts to contact him.
Id. at 3 (citations to record omitted). Thus, the court concluded Father
failed to perform his parental duties. Id.
On appeal, Father presents 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
subsections (a)(1) and (a)(2)?
2. Whether the [t]rial [c]ourt erred by finding, under 23
Pa.C.S.A. § 2511(b), that termination of [Father’s]
parental rights best serves the Child’s developmental,
physical and emotional needs and welfare?
Father’s Brief at 4.
Father first argues that the evidence was insufficient to terminate his
parental rights pursuant to Section 2511(a). The crux of Father’s argument
is that DHS did not make reasonable efforts to reunify him with Child.
Father supports this contention by insisting that he was fully compliant with
his Single Case Plan by making his whereabouts known. Id. at 9. Father
notes CUA did not evaluate his home, perform background clearances on
him, or arrange visitation between him and Child. Id. at 9-10. He avers
that Sharon Palmer, the CUA supervisor, failed to contact him, and only
called him once, eight days before the termination hearing. Id. at 9. Father
also notes that although Ms. Palmer testified that she was not aware of his
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incarceration, T.F. testified that she informed Mr. Walt of Father’s
incarceration. Id. at 9-10. Further, Father asserts that he has overcome
any barriers that would prevent reunification, completed a parenting class
while incarcerated, and is “ready to have the Child placed in his care.” Id.
No relief is due.
We review Father’s appeal according to the following standard:
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of
fact and credibility determinations of the trial court if they
are supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely because
the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
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 the second part of the analysis
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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) (citations omitted).
We need only agree with the trial court as to any one subsection of
Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc). In this case, we review the trial court’s termination of Father’s
parental rights pursuant to Section 2511(a)(1), which provides:
(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.
23 Pa.C.S. § 2511(a)(1).
Section 2511(a)(1) requires that “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 Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citation
omitted).
There is no simple or easy definition of parental
duties. Parental duty is best understood in relation
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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
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 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.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
When the evidence establishes a failure to perform parental duties, the
trial court must further consider:
(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).
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In re Z.S.W., 946 A.2d at 730 (citation omitted). With respect to
incarceration, our Supreme Court has emphasized:
[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 817, 828 (Pa. 2012) (citation omitted)
(emphasis added).
This Court has also rejected the suggestion that a parent is “only
required to attempt the level of parenting consistent with his and the
agency’s knowledge of parentage.” In re Z.S.W., 946 A.2d at 731
(quotation marks omitted). We reasoned: “To adopt [such a] rationale
would relieve all fathers of their parental duties until their parentage was
confirmed by a paternity test.” Id.
Instantly, the trial court made credibility determinations that despite
appearing at the first permanency review hearing, Father failed to maintain
contact with Child or CUA. See Trial Ct. Op. at 3, 5. The court’s
determination was supported in the record by Ms. Palmer’s testimony that
Father did not contact CUA, did not respond to CUA, and could not be
located by two CUA employees that went to his home. Additionally, Ms.
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Palmer testified that Father did not inform CUA that he was incarcerated
between May of 2015 and April of 2016.
Although Father stated he instructed T.F. to tell CUA that he was in
prison, and T.F. testified that she informed “Mr. Walt” of Father’s
incarceration, the trial court was within its province as the finder of fact to
reject that testimony. See In re T.S.M., 71 A.3d at 267. Similarly, the trial
court was entitled to reject Father’s testimony that he visited with Child
three times on his own accord during Mother’s supervised visits. In any
event, it is significant that when asked why he did not request additional
visitations, Father asserted that he was awaiting the results of the paternity
tests. See In re Z.S.W., 946 A.2d at 731.
We also note that Father was incarcerated for approximately the first
five of the six months preceding the filing of the petition to terminate his
parental rights. Although this incarceration is not alone dispositive, Father
conceded that he had resources available to him while in prison, namely, his
court-appointed attorney in this matter, as well as a prison social worker.
Father admitted he did not take efforts to reach out to CUA through these
resources.
In light of the foregoing, we discern no basis to disturb the trial court’s
findings and credibility determinations that Father undertook no efforts to
cultivate a parent-child relationship or demonstrate a willingness or capacity
to undertake a parental role. We further find ample support for the court’s
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legal conclusion that Father’s conduct in the six months immediately
preceding the filing of the petition to terminate his parental rights failed to
perform his parental duties. Moreover, we agree with the court’s analysis
that Father’s lack of diligence in performing his parental duties caused CUA’s
inability to provide services for him. Thus, we conclude the court properly
found the grounds for termination under Section 2511(a)(1).
In his second issue, Father argues that the court erred in terminating
his parental rights pursuant to Section 2511(b). Specifically, Father asserts
that “[a]ny lack of a bond that the child has with Father is due to the agency
not following court orders to set[]up a visitation schedule. Father believes
that with consistent visitation, Child will be ready to reunify with him.”
Father’s Brief at 13-14. No relief is due.
Section 2511(b) states, in relevant part:
(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. . . .
23 Pa.C.S. § 2511(b).
This Court has stated that, “[i]ntangibles such as love, comfort,
security, and stability are involved in the inquiry into the needs and welfare
of the child. The court must also discern the nature and status of the
parent-child bond, with utmost attention to the effect on the child of
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permanently severing that bond.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citations omitted). However, “[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. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946
A.2d 753, 762-63 (Pa. Super. 2008) (citation omitted).
Moreover,
in addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010) (citation omitted). Further,
our Supreme Court has stated that “[c]ommon sense dictates that courts
considering termination must also consider whether the children are in a
pre-adoptive home and whether they have a bond with their foster parents”
and directs “courts . . . keep the ticking clock of childhood ever in mind.” In
re T.S.M., 71 A.3d at 268-69 (citation omitted).
Instantly, there is no evidence of a parent-child bond between Father
and Child. Child was born in November 2014, was placed in the care of DHS
in December 2014. Father attended one hearing regarding Child. However,
shortly thereafter, Father was incarcerated, and remained in prison until one
month before the filing of the petition to terminate his parental right in May
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2016. The CUA supervisor, Ms. Palmer, testified that Child has never met
Father. N.T. at 32. Moreover, even accepting Father’s testimony that he
visited with Child three or four times during Mother’s scheduled visitations,
we discern no suggestion from the record that a parental bond was formed
or existed. Therefore, it was reasonable for the trial court to infer that a
bond did not exist. See In re K.Z.S., 946 A.2d at 762-63. Moreover, as
discussed above, we discern no merit to Father’s assertion that the absence
of a bond is the result of CUA not scheduling supervised visits, rather than
Father’s failure to perform his parental duties.
The evidence also reveals that a parent-child bond exists between the
foster parent and Child. N.T. at 47. Child has resided in the same foster
home since her placement shortly after birth, and it is a pre-adoptive
resource. Id. at 9. As such, we discern no abuse of discretion by the trial
court in concluding that terminating Father’s parental rights serves the
developmental, physical and emotional needs and welfare of Child pursuant
to Section 2511(b).
Accordingly, because we find no abuse of discretion in the trial court’s
credibility findings and legal conclusion regarding Section 2511(a)(1) and
(b), we must affirm. See In re T.S.M., 71 A.3d at 267.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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In the Matter of: M.S., a Minor
Combined Opinion