J-S59001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.S.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
APPEAL OF: E.J., FATHER : No. 1076 EDA 2018
Appeal from the Decree Entered March 13, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000978-2016,
CP-51-DP-0001922-2015, FID: 51-FN-000440-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 19, 2018
Appellant, E.J. (“Father”) appeals from the decree, entered in the
Philadelphia County Court of Common Pleas Family Court, which granted the
petitions of the Philadelphia Department of Human Services (“DHS”) for
involuntary termination of Father’s parental rights to R.S.C. (“Child”) and to
change the permanency goal to adoption. We affirm.
The trial court opinion fully sets forth the relevant facts and procedural
history of this case. Therefore, we have no need to restate them.1
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1 Throughout Child’s placement and during the termination proceedings, the
same attorney-GAL represented Child’s interests. Because Child has been in
foster care since four months after his birth, was not in Father’s care before
placement, and was less than three years old at the time of the termination
proceedings, we can presume, absent any evidence in the record to the
contrary, that there was no conflict between Child’s best interests and his legal
interests. See In Re: T.S., ___ A.3d ___, 2018 WL 4001825 (filed August
J-S59001-18
Father raises these issues for our review:
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. §
2511(A)(1)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. §
2511(A)(2)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. §
2511(A)(5)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE
PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. §
2511(A)(8)?
WHETHER THE TRIAL COURT ERRED BY FINDING, UNDER
23 PA.C.S.A. § 2511(B), THAT TERMINATION OF
[FATHER’S] PARENTAL RIGHTS BEST SERVES [CHILD]’S
DEVELOPMENTAL, PHYSICAL AND EMOTIONAL NEEDS AND
WELFARE?
(Father’s Brief at 5).2
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
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22, 2018) (holding appointment of second counsel for children, in contested
termination proceedings, is not required to represent separate legal interests
of children, where children’s legal interests and best interests do not diverge;
due to their young age (less than three years old), presumption exists that
children were too young to express subjective preferred outcome of
termination proceedings; therefore attorney-GAL could fulfill statutory
mandate for appointment of counsel and represent both best interests and
legal interests of children).
2 Father did not challenge the goal change order on appeal.
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order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … 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 B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165
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(2008)).
DHS filed a petition for the involuntary termination of Father’s parental
rights to Child on the following grounds:
§ 2511. Grounds for involuntary termination
(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.
(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.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
* * *
(8) The child has been removed from the care of the
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parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
* * *
(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.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). “Parental rights
may be involuntarily terminated where any one subsection of Section 2511(a)
is satisfied, along with consideration of the subsection 2511(b) provisions.”
In re Z.P., supra at 1117.
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have his… rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
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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 [C]ourt 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…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 his…physical and
emotional needs.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of his…child is converted, upon
the failure to fulfill his…parental duties, to the child’s right to have proper
parenting and fulfillment of his…potential in a permanent, healthy, safe
environment.” Id. at 856.
Importantly, neither Section 2511(a) nor Section 2511(b) requires the
court to consider, at the termination stage, whether an agency made
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reasonable efforts to reunify the parent with his child before the agency
petitioned for termination of the parent’s parental rights. In re D.C.D., 629
Pa. 325, 342, 105 A.3d 662, 672 (2014). Nothing in the statute prohibits the
court from granting a petition to terminate parental rights under Section 2511,
even if the agency failed to make reasonable efforts at reunification. Id. at
346, 105 A.3d at 675.
After a thorough review of the record, the brief of the parties, the
applicable law, and the comprehensive opinion of the Honorable Allan L.
Tereshko, Sr. J., we conclude Father’s issues merit no relief. The court’s
opinion fully discusses and properly disposes of the questions presented. (See
Family Court Opinion, filed May 10, 2018, at 2-25) (finding: (1-4) court
terminated Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and
(a)(2), and limits discussion of Section 2511(a) to those sections; clear and
convincing evidence showed Father failed and refused to perform parental
duties, failed to address conditions that brought Child into placement, and
lacks capacity to provide adequate care, control, and stable environment
necessary for Child; Child was four months old when he came into DHS’ care
in July 2015, after Mother was arrested, leaving Child in the care of his
fourteen-year old sibling; Mother’s parental rights were terminated on June
28, 2017; Father failed to meet, or provide documentation that he had met,
his Single Case Plan (“SCP”) objectives to participate in mental health therapy,
participate in domestic violence counseling, obtain employment, secure
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housing appropriate for Child, and participate in programming to encourage
sobriety and to maintain sobriety; credible testimony revealed Child cried
during visits with Father and clung to caregiver when Father attempted to hold
Child; after visits with Father, Child regressed and displayed disruptive
behavior at foster home; Child’s behavior improved after Father’s visitation
ceased in December 2017; Parenting Capacity Evaluation (“PCE”), dated May
9, 2017, indicated Father failed to present with capacity to provide
permanency and safety to Child; PCE identified serious concerns, including
inappropriate housing, non-compliance with mental health treatment and
domestic violence classes, failure to make himself available to Community
Umbrella Agency−Turning Points for Children (“CUA−TP4C”), and his history
of substance abuse; record demonstrates Father cannot or will not remedy
conditions which brought Child under supervision and will be unable to fulfill
parental responsibilities for Child in reasonable future; Father is not in position
to care for Child or provide for Child’s present and future need for essential
parental care and control necessary for Child’s well-being; further, court found
DHS testimony credible and Father’s testimony incredible; Father is unable
and unwilling to parent Child; court found clear and convincing evidence to
satisfy 23 Pa.C.S.A. § 2511(a)(1) and (a)(2); (5) regarding Section 2511(b),
adoption will best serve Child’s interests, given serious concerns over Father’s
unstable living situation and Father’s effect on Child’s behavior during visits;
Child is thriving in care of foster parent; Child is not bonded to Father but is
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bonded to foster parent; Child would not suffer irreparable harm if Father’s
parental rights were terminated; Child has been in foster care for thirty-two
months, and adoption will serve Child’s best interests and need for
permanency). The record supports the court’s termination decision under
Section 2511(a)(1), (a)(2) and (b), based on parental incapacity and the best
interests of Child. See In re Z.P., supra. Therefore, we have no need to
disturb it. Based upon the foregoing, we affirm the decree terminating
Father’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/18
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s: Circulated 10/03/2018 10:53 AM
THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, PHILADELPIIlA COUNTY
IN THE COURT OF COMMON PLEAS
IN THE INTEREST OF: : FAlVIILY COURT DIVISION
: JUVENILE BRANCH-DEPENDENCY
R.S.C., a Minor : CP-51-AP-0000978-2016/CP-51-DP-0001922-2�
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