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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF E.G.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.A.B. :
:
:
:
:
: No. 622 WDA 2018
Appeal from the Order Entered March 23, 2018
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): No. 094 of 2017
BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 07, 2018
S.A.B. (Father) appeals from the trial court’s order involuntarily
terminating his parental rights to his daughter, E.G.B. (Child) (born 2/2010).
After review, we affirm.
Father was incarcerated in 2014 after pleading guilty to involuntary
deviate sexual intercourse (IDSI), aggravated indecent assault of a child, and
endangering the welfare of a child (EWC). Father’s other natural daughter
was the victim of Father’s sexual abuse. Father is a registered lifetime sexual
offender under Pennsylvania’s Sex Offender Registration and Notification Act
(SORNA) and has been classified as a Sexually Violent Predator.1 Father was
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1 SORNA, 42 Pa.C.S.A. §§ 9799.10-9799.42, establishes a statewide registry
of sexual offenders. See 42 Pa.C.S.A. § 9799.16(a). On December 20, 2012,
SORNA replaced the sexual offender registration statutory provisions, which
were known as Megan’s Law III, 42 Pa.C.S.A. §§ 9791-9799.9 (expired).
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sentenced to serve a term of 4-12 years’ incarceration; he is due to be paroled
in August 2018.
In August 2017, J.L.B. (Mother) and her fiancée, J.C., a prospective
adoptive parent,2 filed a petition to involuntarily terminate Father’s parental
rights. On March 22, 2018, the court held a termination hearing where
Mother, Father, and J.C. testified. The court interviewed Child3 in camera.
Following the hearing, the court entered an order terminating Father’s
parental rights under sections 2511(a)(1), (10), (11) and (b) of the Adoption
Act.4
Father filed a timely court-ordered Pa.R.A.P. 1925(b) concise statement
of matters complained of on appeal and notice of appeal. He raises the
following issue for our review: Whether the trial court erred in finding by clear
and convincing evidence that [Petitioner] met her burden under 23 Pa.C.S. §
2511(b)?5
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2 Mother and J.C. are scheduled to be married in August 2018.
3 Both a guardian ad litem as well an attorney represented Child at the
termination proceedings. See In re Adoption of L.B.M., 161 A.3d 172 (Pa.
2017) (counsel required to be appointed in contested involuntary termination
proceedings to represent Child’s legal interests if they differ from best
interests); see also 23 Pa.C.S. § 2313(a) (mandating appointment of counsel
in contested involuntary termination proceedings).
4 23 Pa.C.S. §§ 2101-2910.
5 Father does not contest the court’s order terminating his parental rights
under section 2511(a). Thus, we have confined our review to the propriety of
the termination order as it relates to section 2511(b).
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The thrust of Father’s argument on appeal is that the status of his bond
with Child was not adequately examined under section 2511(b), and, thus,
due to the lack of substantive testimony on the issue, termination was not
proper. We disagree.
Under 23 Pa.C.S. § 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 after determining that the
parent's conduct warrants termination of his or her parental rights must the
court engage in the second part of the analysis: determination of the needs
and welfare of the child under the standard of best interests of the child. See
23 Pa.C.S. § 2511(b). One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between parent and
child.
In In re Adoption of C.L.G., 956 A.2d 999 (Pa. Super. 2008), our Court
noted:
Incarceration alone is not sufficient to support termination of
parental rights under any subsection. A parent desiring to retain
parental rights must exert himself to take and maintain a place of
importance in his child’s life. A parent’s responsibilities are not
tolled during incarceration, and therefore the court must inquire
whether the parent utilized those resources available while he or
she was in prison to continue a close relationship with the child.
[Moreover, i]n cases involving an incarcerated parent, this Court
has emphasized that a “parent’s basic constitutional right to the
custody and rearing of his child is converted, upon the failure to
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fulfill 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 N.M.B., [] 856 A.2d 847, 856 (Pa. Super.
2004)[.] “[T]he parent wishing to reestablish his parental
responsibilities bears the burden of proof relative to post-
abandonment contact.” See In re K.Z.S., [] 946 A.2d 753, 759
(Pa. Super. 2008).
Id. at 1006.
Instantly, Child was 3½ years old when Father was incarcerated. At no
point in time since then has Child been in Father’s custody and care. At the
time of the termination hearing, Child had not spoken to Father in 2½ years
and she had not seen Father in over 3½ years. The only contact that Father
had with Child while he was incarcerated was in the form of ten phone calls
and twelve letters.
With regard to section 2511(b), our Court has also stated that:
Intangibles such as love, comfort, security, and stability are
involved when inquiring about the needs and welfare of the child.
The court must also discern the nature and status of the parent-
child bond, paying close attention to the effect on the child of
permanently severing the bond. In re C.P., [] 901 A.2d 516 (Pa.
Super. 2006).
In re Adoption of C.L.G., 956 A.2d at 1010.
Father complains that the court did not order a bonding assessment as
part of the process of determining whether termination was proper under
section 2511(b). However, section 2511(b) does not require a formal bonding
evaluation. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Rather, “the
court must take into account whether a bond exists between child and parent,
and whether termination would destroy an existing, necessary, and beneficial
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relationship.” Id. Moreover, in addition to a bonding examination, the court
can equally emphasize the safety needs of the child under subsection (b),
particularly in cases involving physical or sexual abuse, severe child neglect
or abandonment, or children with special needs. In re K.Z.S., 946 A.2d 753,
763 (Pa. Super. 2008).
Instantly, at an in camera interview, Child told the trial judge that she
thinks Father is “really bad,” that she would not recognize Father if she saw
him, and that she does not want to see him. N.T. Termination Hearing/In
Camera Interview, 3/22/18, at 158. Child’s feelings are legitimized where
Child knew her sibling suffered sexual abuse at the hands of Father. Father
also testified that he does not have a bond with Child. Id. at 133. J.C.
testified that he loves Child like a daughter and that if Father’s parental rights
were terminated, he intends to adopt Child. Id. at 95.
We find that termination was proper under section 2511(b) due to the
lack of any bond between Father, the safety needs of Child due to Father’s
sexual abuse history, and the fact that Mother’s soon-to-be husband is a
prospective adoptive resource. Under such circumstances, termination would
best serve Child’s needs and welfare where she would find the stability
necessary for “the fulfillment of her potential in a permanent, healthy and safe
environment.” In Interest of Lilley, 719 A.2d 327, 335 (Pa. Super. 1998).
“[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 1108, 1125 (Pa. Super. 2010).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2018
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