J-S62042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: C.L., FATHER : No. 788 MDA 2017
Appeal from the Order Entered April 3, 2017
in the Court of Common Pleas of Mifflin County
Orphans’ Court at No(s): 11 of 2016
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 17, 2017
C.L. (Father) appeals from the order entered April 3, 2017, in the
Court of Common Pleas of Mifflin County, which terminated involuntarily his
parental rights to his minor son, B.H., born in March 2008.1 We affirm.
We summarize the relevant factual and procedural history of this
matter as follows. Child entered foster care on June 3, 2015, after Mother
informed Mifflin County Social Services Agency (the Agency) that she was
unable to care for Child and his half-brother. N.T., 12/12/2016, at 62. Child
was adjudicated dependent by order dated June 22, 2015. Petitioner’s
Exhibit B.H. - 1 (Order of Adjudication – Child Dependent). The record
reveals that Child and Father have never met in person, due to Father’s
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* Retired Senior Judge assigned to the Superior Court.
1 The order also terminated the parental rights of Child’s mother, E.H.
(Mother). Mother did not file a brief in connection with this appeal, nor did
she file a separate appeal.
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frequent incarcerations. N.T., 12/12/2016, at 21, 79. At the time Child was
adjudicated dependent, Father was incarcerated at Forrest City Medium
Federal Prison in Arkansas. Id. at 78. Father was released to a halfway
house on July 5, 2015. Id. However, Father was incarcerated at
Lackawanna County Prison in Pennsylvania shortly thereafter, on August 11,
2015. Id. Father was released on November 1, 2015, only to be
incarcerated again on November 18, 2015. Id.
On September 27, 2016, the Agency filed a petition to terminate
involuntarily Father’s parental rights to Child. The orphans’ court conducted
a termination hearing on December 12, 2016. Following the hearing, on
April 3, 2017, the court entered an order terminating Father’s parental
rights.2 Father timely filed a notice of appeal on April 28, 2017, and filed a
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2 It appears that the orphans’ court waited to enter its termination order
until it could enter a single order terminating both Father’s and Mother’s
parental rights at the same time. Mother initially executed a consent to
adoption form on December 12, 2016. However, Mother later filed a petition
to revoke her consent on February 17, 2017, which the court granted on
February 22, 2017. The court then scheduled an additional termination
hearing as to Mother only on March 24, 2017.
Prior to the hearing, on March 22, 2017, the Agency filed a motion to
supplement the record with updated information regarding the location and
duration of Father’s current incarceration. The orphans’ court entered an
order indicating that it would consider the motion at the March 24, 2017
hearing. It is not clear from the record whether the court ultimately granted
or denied the Agency’s motion, because Father did not request that the
March 24, 2017 hearing be transcribed, and because the court did not
address the motion in its opinion or enter a subsequent order disposing of
the motion.
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concise statement of errors complained of on appeal on May 2, 2017.3
Father asks this Court to review whether the record contains competent
evidence to support the orphans’ court’s determination that the termination
of Father’s parental rights was warranted. Father’s Brief at 5.
We address this issue mindful of our standard of review.
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.
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3 Father violated Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise
statement of errors complained of on appeal at the same time as his notice
of appeal. We have accepted Father’s concise statement pursuant to In re
K.T.E.L., 983 A.2d 745, 748 (Pa. Super. 2009) (holding that the appellant’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party).
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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 [subs]ection 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 pursuant to [subs]ection
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).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to subsections 2511(a)(2), (5), (8), and (b).4 We need only agree
with the court as to any one subsection of 2511(a) in order to affirm. 5 In re
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4 Father makes no effort to challenge the termination of his parental rights
pursuant to subsection 2511(b) in the argument section of his brief.
Therefore, we conclude that Father waived any challenge to subsection
2511(b), and we focus solely on subscection 2511(a). See In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (holding that the
appellant waived any challenge to subsections 2511(a)(2) and (5) by failing
to develop an argument in her brief, and by conceding that the agency
presented clear and convincing evidence).
5 We note that the orphans’ court erred by concluding that Father’s parental
rights could be terminated under subsections (a)(5) and (8). Both of these
subsections require that the subject child has “been removed from the care
of the parent by the court or under a voluntary agreement with an agency”
in order to be applicable. 23 Pa.C.S. § 2511(a)(5), (8). Because Child was
never in Father’s care, and therefore was not removed from Father’s care,
his parental rights cannot be terminated under those subsections. See In
re C.S., 761 A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (concluding that
termination was inappropriate under subsections 2511(a)(5) and (8)
“because the record reflects that C.S. was never in [the a]ppellant’s care
and, therefore, could not have been removed from his care”).
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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we analyze
the court’s decision to terminate under subsection 2511(a)(2), which
provides as follows.
(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 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.
23 Pa.C.S. § 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 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) (citation
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 duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
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Instantly, the orphans’ court found that Father is incapable of
parenting Child, and that Father cannot remedy his parental incapacity in a
timely manner. Orphans’ Court Opinion, 4/3/2017, at 9. The court
observed that Father has a lengthy history of criminal activity and
incarcerations. Id. The court further noted that Father has never met Child
in person, and that Father was prevented from visiting with Child because
his behaviors while incarcerated caused him to be placed in restricted
housing. Id. at 8-9.
Father argues that the orphans’ court erred by terminating his parental
rights based solely on his incarceration. Father’s Brief at 8-14. Father
contends that his incarceration prevented him from complying with the
Agency’s child permanency plan, but that he utilized what limited resources
were available to him to maintain a relationship with Child while
incarcerated. Id. at 8, 11.
Our review of the record supports the findings of the orphans’ court.
During the termination hearing, the court heard the testimony of Mother.
Mother testified that Father and Child have never met in person. N.T.,
12/12/2016, at 21. However, Father made a consistent effort to call her and
send cards to Child from prison. Id. at 12, 21-23. Mother recalled that she
moved to Seattle in 2009, when Child was about a year old. Id. at 23. At
that time, Mother told Father that he should not call her anymore or write as
often, because she was in a relationship with another man. Id. at 22.
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Nonetheless, Father continued to send cards or letters to Child about every
three months. Id.
The orphans’ court also heard the testimony of Agency caseworker,
and Assistant Administrator, Nicole Patkalitsky. Ms. Patkalitsky testified that
Father has a lengthy history of criminal activity, substance abuse,
incarceration, unstable housing, financial instability, and inability to
demonstrate proper parenting. Id. at 77. Ms. Patkalitsky detailed Father’s
history of incarcerations as follows.
He was incarcerated on August 26th of 2004 to May 5th of -- to
May 12th of 2005 at the county jail. He was then released until
August 9th of 2006 and was in county jail until August 11th of
2006. On August 11th of 2006 he was then transferred to state
prison until March 1st of 2007. July 25th of 2008 he was sent to
Dauphin County Prison. He was then extradited back to New
Jersey and went to Forrest City Medium Federal Prison on May
8th of 2009. On July 5th of 2015 he was released from For[r]est
City and moved into a half-way house in Scranton. Then on
August 11th of 2015 he went back to Lackawanna county prison.
He was released from there on November 1st and then was re-
incarcerated on November 18th of 2015. And that is where he
con -- that’s where he still is. And he was just sentenced to 14
to 36 months in state prison.
***
. . . . And I believe after he goes to -- after he does his recent
[s]entence there’s still a federal detainer that he could be then
transferred to federal prison.
Id. at 77-78.6
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6 Father’s most recent incarceration is the result of his guilty plea to
possession with intent to deliver a controlled substance. Petitioner’s Exhibit
(Footnote Continued Next Page)
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Ms. Patkalitsky further testified that the Agency attempted to provide
Father with services during his brief release from incarceration in November
2015. Id. at 79. However, Father’s return to incarceration prevented him
from participating in services. Id. at 79-80. Ms. Patkalitsky explained that
she spoke with Father’s prison counselor, who informed her that Father is
“currently classified as special handling violent,” and that he is not permitted
to participate in services, visits, or phone calls. Id. at 80. Father did not
have any in-person contact with Child during his dependency. Id. at 79.
Moreover, while Father sent letters to Child during his dependency, the
letters were not given to Child due to the recommendations of Child’s
therapist. Id. at 98.
Thus, the record confirms that Father is incapable of parenting Child,
and that Father cannot remedy his parental incapacity. The record reveals
that Father has been incarcerated almost continuously since 2004. When
Father was released from incarceration in July 2015, he immediately began
committing new crimes and was incarcerated again. Father has never acted
as a parent for Child at any point in his life, and it is clear that Father will
not be able to act as Child’s parent at any point in the foreseeable future.
Indeed, Child is now nine and a half years old, and has never even met
(Footnote Continued) _______________________
R.H. – 4 (Mifflin County Secure Court Summary). We note that Petitioner’s
Exhibit R.H. – 4 is mislabeled, as R.H. is Child’s half-brother, whose father is
not Father.
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Father. As this Court has stated, “a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006).
In reaching this decision, we stress that our Supreme Court has
clarified the extent to which an orphans’ court may rely upon a parent’s
incarceration when terminating parental rights. In re Adoption of S.P., 47
A.3d 817 (Pa. 2012). It is now settled that “a parent’s incarceration is
relevant to the [sub]section (a)(2) analysis and, depending on the
circumstances of the case, it may be dispositive of a parent’s ability to
provide the ‘essential parental care, control or subsistence’ that the section
contemplates.” In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation
omitted). Contrary to Father’s argument on appeal, the orphans’ court was
well within its discretion when it relied on Father’s repeated periods of
incarceration, as well as his apparent incorrigibility, as its principal reasons
for terminating his parental rights. In re Adoption of W.J.R., 952 A.2d
680, 687 (Pa. Super. 2008) (affirming trial court’s determination that the
father’s “repeated pattern of criminal activity and his failure to comply with
his FSP goals satisfies the requisites of incapacity, abuse, neglect or refusal
of the parent”).
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Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by terminating Father’s parental rights to Child
involuntarily. Therefore, we affirm the court’s April 3, 2017 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2017
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