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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: M.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.P., FATHER :
:
:
:
:
: No. 1373 MDA 2018
Appeal from the Decree Entered July 20, 2018
In the Court of Common Pleas of Dauphin County Orphans’ Court at
No(s): 43 AD 2018,
CP-22-DP-000295-2016
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 19, 2019
B.P. (Father) appeals from the decree involuntarily terminating his
parental rights to his minor child, Ma.P. (born July 2011) (Child),1 pursuant to
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act.2 After
careful review, we affirm.
Dauphin County Social Services for Children and Youth (the Agency)
became involved with the family in November 2016, after receiving a report
that Father and Mother were using drugs, and that Mother had delivered a
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1Child has a younger half-sibling, M.P., born January 2013 to S.L. (Mother)
and J.H. Where appropriate, we refer collectively to M.P. and Ma.P. as
Children.
2 That same day, the court terminated the parental rights of Mother and J.H.
Mother has appealed the termination of her parental rights, and that appeal
is pending before this Court at 1371 MDA 2018. J.H. has not appealed the
termination of his parental rights.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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stillborn child and used drugs prior to delivery. See N.T., 7/19/18, at 8-13.
While Mother was hospitalized, Children were removed from the home and
placed in kinship foster care with a maternal aunt and uncle. Id. In December
2016, the Agency held a family group conference during which Mother
admitted to using cocaine five days before the birth of the child. Id. at 9-10.
On January 18, 2017, Children were adjudicated dependent. Father
attended the dispositional hearing. Id. at 26. Father’s objectives included
attending all court hearings, Agency meetings, and treatment team meetings;
signing all releases of information; notifying the Agency of a new address
within 24 hours; returning phone calls and text messages within 24 hours;
attending, participating, and actively interacting with Child during visits;
attending all medical appointments; developing effective parenting skills;
obtaining a legal source of income; maintaining a stable residency; contacting
the Agency within 24 hours if unable to attend visits; maintaining positive
interactions with caregivers and regular contact with the Agency; submitting
to random drug screens, obtaining a drug and alcohol evaluation, and
remaining drug-free. See N.T. at 26-27, Ex. 8; see also Pet. for Termination
of Parental Rights, 4/26/18, at ggg.
That same day, the Agency received a report that prior to the removal
of Children from the home, Father had fed Children marijuana-laced cookies.
See N.T. at 10. Mother was aware of Father’s actions but did not stop him
from giving Children the cookies. Id. Both parents were indicated as child
abusers. Id.
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Father attended a permanency review in February 2017. Id. at 26.
However, he missed review hearings in April 2017, August 2017, and
September 2017. Id. at 49. He also returned two urine screens, both of
which were positive for tetrahydrocannabinol (THC), the active ingredient in
marijuana, as well as cocaine. Id. at 27-28. In November 2017, an
aggravated circumstances order was entered against Father due to his failure
to maintain substantial and continuing contact with Child for a period of six
months. See Order, 11/14/17, at 1.
In December 2017, both Father and Mother were charged with
endangering the welfare of children and corruption of minors related to the
incident with the marijuana cookies.3 Mother entered a guilty plea to those
offenses, but as of the time of the hearing, Father had not gone to trial. See
N.T. at 48.
On April 26, 2018, the Agency petitioned for termination of Father’s
parental rights, asserting that Father had failed to complete and/or make
sufficient progress toward the goals outlined in the family service plans and
court orders. Specifically, the Agency petitioned for termination under Section
2511(a)(2), (5), (8), and (b). Also, the Agency sought to change Children’s
permanency goal from reunification to adoption.
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3 See 18 Pa.C.S.A. §§ 4304, 6301, respectively.
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The court convened a hearing on the petitions on July 18, 2018.
Children were represented by Sarah Hoffman, Esquire, as guardian ad litem
and legal counsel.4 Father, represented by counsel, testified on his own
behalf.
The Agency caseworker, Rebecca Yost, testified that during the
pendency of the case, Father returned only two urine screens, both of which
were positive for illegal substances. See N.T. at 27-28. Additionally, Father
failed to comply with any of the service objectives submitted by the Agency,
and had not performed any parental duties for Child during that time. Id. at
26-27. Father had minimal to no involvement or visitation with Child. Id. at
30. In February 2018, Father confirmed his correct address in Harrisburg and
his phone number with Ms. Yost, but did not return calls after she left him a
message. Id. at 59-60. Ms. Yost testified that Child was very bonded with
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4 We briefly address, sua sponte, the representation of counsel. See In re:
K.J.H., 180 A.3d 411, 412-414 (Pa. Super. 2018). The Pennsylvania Supreme
Court held that legal counsel must be appointed to represent a child’s interests
in a contested termination proceeding. In re Adoption of L.B.M., 161 A.3d
172, 183 (Pa. 2017) (plurality). However, a GAL may serve as counsel where
there is no conflict between a child’s legal and best interests. See In re T.S.,
192 A.3d 1080, 1092-93 (Pa. 2018). At the time of the hearing, Children were
approximately six and five years old. Attorney Hoffman, originally appointed
as GAL, filed a motion seeking to be appointed as legal counsel and averring
that there was no conflict between Children’s best and legal interests. See
Motion, 6/14/18, at 1-3. The orphans’ court granted the motion and appointed
Attorney Hoffman as legal counsel for Children. See Order, 6/15/18, at 1.
Accordingly, the requirements of L.B.M. and T.S. were satisfied. See L.B.M.,
161 A.3d at 183; T.S., 192 A.3d at 1092-93.
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Child’s foster parents, who provided for Child’s needs and welfare, and that it
was in Child’s best interest for Father’s rights to be terminated. Id. at 29-30.
Father testified that he lives in Harrisburg with his parents. Id. at 75-
76. He is employed by a temp agency, his current job is in construction, and
he works approximately forty hours a week. Id. at 77-78. Father’s most
recent job required him to commute back and forth between Harrisburg and
North Carolina, and accordingly, he missed court dates. Id. Father averred
he did not receive notice of the court dates. Id. at 79. Father also claimed
that he stopped seeing Child due to conflicts between Mother and Child’s foster
family, and he did not want to be involved. Id. Additionally, Father claimed
that because he did not have time to go to the Agency’s offices for urine
screens, he had obtained a sample from someone else. Id. at 80.
At the conclusion of testimony, the orphans’ court terminated Father’s
parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and (b), and
changed Child’s permanency goal to adoption. Id. at 96-102. Father timely
appealed and filed a statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).5
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5 On September 12, 2018, this Court issued a rule to show cause why the
appeal should not be quashed, as the notice of appeal contained multiple
docket numbers from the court of common pleas. See Order, 9/12/18, at 1
(citing Pa.R.A.P. 341(a) and Commonwealth v. Walker, 185 A.3d 969
(2018) (filed June 1, 2018, and noting that in future cases, where a single
order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed, or the appeal will be quashed)). On
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On appeal, Father presents two issues:
1. Whether the trial court abused its discretion and erred as a
matter of law in terminating the parental rights of [Father] as to
[Child]?
2. Whether the trial court abused its discretion in concluding that
the best interests of [Child] would be served by terminating the
parental rights of [Father]?
Father’s Brief at 4 (unnecessary capitalization and suggested answers
omitted).
We review cases involving the termination of parental rights according
to the following standards:
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
____________________________________________
September 17, 2018, Father filed a response to the rule, explaining that
although the termination decree listed both the termination and dependency
dockets in its caption, he was challenging only the decree terminating his
parental rights, and not the permanency goal change order. On October 10,
2018, this Court discharged the rule to show cause and referred the issue to
the merits panel. See Order, 10/10/18, at 1.
Following our review of the record and briefs, we note that, in his statement
of errors complained of on appeal, Father challenged both the goal change
and the termination. Per his response to the rule, Father does not challenge
the goal change order on the dependency docket. A review of Father’s brief
reveals that, although he purports to challenge the goal change to adoption,
the argument in the section is really a challenge to the orphans’ court’s Section
2511(b) findings. Accordingly, we need not quash the instant appeal pursuant
to Walker.
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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) (internal citations and quotations
omitted).
Termination 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 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). As the
trial court in this case focused its analysis on the termination of Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(8), we focus our own analysis
accordingly.
The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
(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:
***
(8) The child has been removed from the care of the 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.
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***
(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.
As noted, Section 2511(a)(8) sets a twelve-month time frame for a
parent to remedy the conditions leading to the child’s removal. See In re
A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Here, Child was out of Father’s
care for over twelve months. At the time of the termination hearing, Child
had been in care for nineteen months and twenty days. Thus, “the court must
next determine whether the conditions that led to the [Child’s] removal
continue to exist. If a parent fails to cooperate or appears incapable of
benefiting from the reasonable efforts supplied over a realistic period of time,
[CYS] has fulfilled its mandate and upon proof of satisfaction of the reasonable
good faith effort, the termination petition may be granted.” Id. at 564 (citing
In Interest of Lilley, 719 A.2d 327, 332 (Pa. Super. 1998)).
Father argues that although he stopped seeing Child, it was not because
“he did not want to be involved.” Father’s Brief at 11. Rather, Father asserts
that he ceased visitation and involvement with Child because of the conflict
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with Mother and Child’s foster parents. Id. Further, Father counters that at
the outset of the case, he attended some court hearings, and submitted two
urine screens. Id. at 10.
The orphans’ court concluded that clear and convincing evidence
established grounds for termination under 23 Pa.C.S.A. § 2511(a)(8). See
Trial Court Opinion, 10/3/18, at 11. The court observed that “Father has been
unwilling or unable to provide essential parental care to [Child] since
November 2016).” Id. The record supports this determination. Child was
originally placed in foster care in November 2016, as a result of both parents’
drug use, and Father’s actions of feeding Child marijuana-laced cookies. While
Father initially attended the shelter care and dependency adjudication
proceedings in January 2017, and one permanency review hearing, Father was
otherwise noncompliant with all objectives. Father did not contact or visit with
Child during the time Child was in care. Father did not remain in regular
contact with the Agency, and did not return calls or request visitation.
Although one of Father’s objectives was to remain drug-free and provide
regular urine screens, Father provided only two urine screens at the outset of
the case, and both were positive. Finally, in November 2017, an aggravated
circumstances order was entered against Father based upon his lack of contact
with Child. Father did not appeal that order.
Section 2511(a)(8) does not inquire into the reasons a parent has been
unwilling or unable to provide essential parental care – only that the conditions
still exist. A.R., 837 A.2d at 564. Additionally, in this case, while reasonable
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efforts were made by the Agency, Father’s unwillingness to cooperate, and
unwillingness to remain in contact with Child, necessitated the entry of an
aggravated circumstances order.
Accordingly, we discern no error in the orphans’ court’s finding that
competent, clear, and convincing evidence supported the termination of
Father’s parental rights pursuant to Section 2511(a)(8), based upon the fact
that Child had been removed from Father’s care for over twelve months, and
the conditions which led to the removal or placement of Child continued to
exist. A.R., 837 A.2d at 564.
Next, we must consider whether Child’s needs and welfare will be met
by termination pursuant to Subsection (b). See In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010). “In this context, the court must take into account
whether a bond exists between child and parent, and whether termination
would destroy an existing, necessary and beneficial relationship.” Id. The
court is not required to use expert testimony, and social workers and
caseworkers may offer evaluations as well. Id. Ultimately, the concern is the
needs and welfare of a child. Id.
We have stated:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
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welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Where there is no evidence of a bond between the
parent and child, it is reasonable to infer that no bond exists. Id. “[A] parent’s
basic constitutional right to the custody and rearing of . . . her child is
converted, upon the failure to fulfill . . . her parental duties, to the child’s right
to have proper parenting and fulfillment of [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004) (internal citations omitted).
Father asserts that termination was not in Child’s best interests. See
Father’s Brief at 12-13. Father blames foster parents for his lack of
involvement with Child, and argues that he ceased contact with Child to avoid
further conflict, and because his work required him to travel to North Carolina.
Id. at 13. This argument is both self-serving and unavailing.
No evidence of record was introduced to show that any parental bond
existed between Child and Father. See, e.g., K.Z.S., 946 A.2d at 763.
Regarding Section 2511(b), the orphans’ court observed:
. . . Father professes to love [Child]. However, for an
unreasonable period of time, he has been absent from [Child’s]
life and has failed to perform the essential duties of parenting.
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The record is devoid of a bond with Father which, if broken, would
cause detriment to [Child].
Children have resided with the kinship foster family since
November 2016. In that home they have received the love, care,
and attention needed to address all of their needs. Their bond
with the foster parents is evidenced by their happiness and
affection toward the foster parents. Significantly, Foster Mother
took a leave of absence from her employment to ensure she could
stay with M.P. during her hospitalization. Foster Mother has
returned to work, but takes time off as needed . . . . The kinship
foster parents have provided all of the devotion and stability
Children require and deserve.
Orphans’ Court Opinion, 10/3/18, at 12-13 (citations to the record omitted).
We discern no abuse of discretion in the court’s conclusion.
In sum, clear and convincing evidence supports the orphans’ court’s
termination of Father’s parental rights under Section 2511(a)(8), as well as
the Section 2511(b) findings that there was no bond between Father and
Child, and that adoption would best serve Child’s needs and welfare. See
Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763. Accordingly, we affirm
the decree terminating Father’s parental rights.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2019
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In the Matter of: M.P., Appeal of: B.P.
Combined Opinion