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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF T.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: P.G., JR., NATURAL :
FATHER : No. 367 WDA 2018
Appeal from the Order Entered February 28, 2018
in the Court of Common Pleas of Fayette County
Orphans’ Court at No(s): 44 Adopt 2017
BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 20, 2018
P.G., Jr. (Father) appeals from the order entered February 28, 2018, in
the Court of Common Pleas of Fayette County, which terminated involuntarily
his parental rights to his minor son, T.S., born in May 2016. We affirm.
Child’s biological parents are Father and M.S. (Mother). 1 Fayette
County Children and Youth Services (CYS) became involved at Child’s birth
because Mother tested positive for drugs. Mother was arrested four days after
Child’s birth for a parole violation, and she was incarcerated in the Allegheny
County Jail. At that time, she made arrangements with a friend to care for
Child upon his discharge from the hospital. Child was discharged two weeks
after his birth to that friend. However, two days later, that friend cancelled a
medical appointment for Child, and CYS obtained an order for emergency
protective custody of Child. Child was adjudicated dependent on May 25,
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* Retired Senior Judge assigned to the Superior Court.
1In November 2017, Mother voluntarily terminated her parental rights to
Child.
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2016, and was placed with his maternal grandmother, C.K., and step-
grandfather. Child was not placed with Father because Father was
incarcerated.
Father is currently 37 years old and has a lengthy criminal history. He
has been in jail for all but 7 months since he was 19 years old. He is currently
serving a 2 ½ to 5 year term of incarceration for robbery. His maximum
sentence expires on July 25, 2018.2
Upon Child’s adjudication, CYS caseworker, Leigh Ann David, sent a
family service plan (FSP) to Father. Father was required to, inter alia, “register
for and participate in and successfully complete parenting classes,” “[s]ubmit
to all requests for drug tests,” and “sign any and all releases for providers and
agencies that he’s been involved with for treatment.” N.T., 2/28/2018, at 5.
Father also had a series of goals to complete upon his release from
incarceration. According to CYS, Father was not cooperative with participating
in programs while incarcerated, has not responded to mail sent by CYS, and
has only sent one letter, in February 2017, to Child.
Thus, on May 26, 2017, CYS filed petitions to terminate the parental
rights to Child of both Mother and Father. A hearing was held initially on
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2Father is serving the maximum due to his having left a halfway house without
permission upon being paroled initially.
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November 20, 2017.3 That hearing was continued until February 28, 2018.
At that hearing, the orphans’ court heard testimony from David, C.K., Father,
and paternal grandmother.4
According to David, at the time of the hearing, Father had still not
participated in an approved parenting class while incarcerated. Days before
the hearing, David received a letter that Father had been participating in an
“inmate[-]run group” as of December 6, 2017. N.T., 2/28/2018, at 6. In
addition, Father had completed a number of “programs” prior to Child’s birth.
Id. David testified that Father had not signed any releases for records
regarding any mental health or drug treatment programs he may have
attended. Id. at 8. Furthermore, Father did not correspond with CYS when
requested.
Father testified that he regularly inquired of C.K. about Child’s welfare.
Father claimed he did not send any gifts to Child because C.K. did not respond
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3That transcript is not part of the certified record. However, according to CYS,
“Father started to voluntarily terminate his parental rights on November 20,
2017, the same date that [M]other did. However, during his testimony,
[F]ather had a change of heart and the court permitted him to withdraw his
voluntary termination and to contest the matter.” CYS’s Brief at 4.
4 At both the hearing and on appeal, Child has been represented by a guardian
ad litem (GAL). The GAL agrees with the orphans’ court that “[t]ermination
of parental rights of [Father] is in the best interest of [Child].” GAL’s Brief at
6 (unnumbered). This Court has held that a child’s right to counsel pursuant
to 23 Pa.C.S. § 2313, is satisfied by a lawyer serving as a GAL if there is no
conflict between a child’s best and legal interests, which is the case when a
child is unable to express a preferred outcome. In re D.L.B., 166 A.3d 322,
329 (Pa. Super. 2017). Here, Child was not quite two years old at the time of
the hearing. Thus, there was no such conflict.
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to his letters. With regard to CYS, Father testified that he doesn’t “trust”
David. Id. at 29. He claimed that David “didn’t really like” him and “kept
trying to get [him] to sign over [his] rights voluntarily.” Id. Therefore, he
refused to correspond with her. Father also testified that he had successfully
completed drug and alcohol classes and had also completed “parenting classes
that you don’t receive a certificate from.” Id. at 31. Father also testified that
he had signed the releases. Id. at 33. Father acknowledged that he has not
“had a chance to even meet” Child yet, but believes that if his rights are not
terminated, he will “get to see [Child] more.” Id. at 33.
Additionally, C.K. testified about her relationship with Child. Child calls
her “Mum” and her husband, “DaDa.” Id. at 23. She maintains a good
relationship with paternal grandmother,5 and testified that if the orphans’
court permits her to adopt Child, she would still continue to maintain contact
with Father and his family.6 Id. at 24. Moreover, C.K. testified that Father
sent a letter to her in July 2016 where Father asked her to give Child to
paternal grandmother. Id. at 23.
Based on the foregoing, on February 28, 2018, the orphans’ court
entered a decree terminating Father’s parental rights to Child. Father timely
filed a notice of appeal along with a concise statement of errors complained
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5Paternal grandmother also testified at the hearing and confirmed that she
and C.K. maintained a positive relationship.
6In fact, C.K. testified that as “long as [Father is] clean and sober,” and even
while he is incarcerated, she would permit him to contact Child even if she
adopts Child. N.T., 2/28/2018, at 24, 25.
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of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The orphans’ court filed an
opinion on April 24, 2018.
On appeal, Father asks this Court to review whether the record contains
sufficient evidence to sustain CYS’s burden of proof. Father’s Brief at 3.
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.
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 ….
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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In this case, the orphans’ court terminated Father’s parental rights
pursuant to subsections 2511(a)(2), (5), (8), and (b). 7 We need only agree
with the court as to any one subsection of 2511(a) in order to affirm. 8 In re
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,
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7 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 subsection 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).
8 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 due to his incarceration, 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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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). We also bear in mind 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).
Father contends that even though “he failed to complete his goal plan,
he utilized the limited resources that were available at the prison and sought
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to maintain a bond with [Child] during his incarceration.” Father’s Brief at 15.
However, as the orphans’ court concludes, “[t]his case is deeper than just an
instance of an incarcerated parent.” Orphans’ Court Opinion, 4/24/2018, at 7.
Father has been imprisoned consistently for his entire adulthood. As
recounted by David at the hearing, Appellant pled guilty in 2002 to robbery of
a motor vehicle and was sentenced to 3½ to 7 years of incarceration. N.T.,
2/28/2018, at 10. Since that time, he has either been convicted of or pled
guilty to receiving stolen property, fleeing, terroristic threats, simple assault,
intimidation of witnesses, theft, unauthorized use of a motor vehicle, and
accident involving death or injury. Id. at 11. His most recent charges,
possession of firearms and drug paraphernalia, occurred in 2013. Id.
Moreover, as the orphans’ court points out, even when Father is released from
prison, he would not be prepared to parent Child.9
Upon release, Father would still have to find appropriate housing,
maintain employment, undergo mental health [evaluations], as
well as drug and alcohol evaluations, and complete parenting
classes. Given his recidivist record of crime and spending nearly
half of his life behind bars, [the orphans’ court] finds and so holds
that the best interest of [Child] is to not prolong permanency.
Orphans’ Court Opinion, 4/24/2018, at 4.
The orphans’ court’s conclusions are supported by the record, and we
discern no error or abuse of discretion. The record confirms that Father is
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9At the hearing, Father essentially acknowledged that he is not interested in
parenting Child; rather, he “just want[s] to be in [Child’s] life.” N.T.,
2/28/2018, at 33. He testified that he is contesting CYS’s petition because he
believes if he “fight[s], [he will] get to see him more.” Id.
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incapable of parenting Child now and in the foreseeable future, and that Father
cannot or will not remedy his parental incapacity. Father has been
incarcerated almost continuously during his adult life. 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. 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). Moreover, 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”).
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 February 28, 2018 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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