J-S60019-19
2020 PA Super 33
IN THE INTEREST OF: J.R.R., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: J.R., FATHER :
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: No. 1263 MDA 2019
Appeal from the Decree Entered June 26, 2019
In the Court of Common Pleas of Huntingdon County
Orphans' Court at No: 2019-00004
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED FEBRUARY 11, 2020
J.R. (“Father”) appeals from the June 26, 2019 decree in the Court of
Common Pleas of Huntingdon County involuntarily terminating his parental
rights to his son, J.R.R. (“Child”), then fourteen years old.1, 2 Upon careful
review, we vacate and remand for further proceedings.
On March 1, 2019, Huntington County Department of Children and Youth
Services (“CYS”) filed a petition for the involuntary termination of Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a) and (b). The orphans’
court held a hearing on June 21, 2019, during which CYS presented the
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* Retired Senior Judge assigned to the Superior Court.
1 Child was born in April of 2005.
2P.R. (“Mother”) voluntarily relinquished her parental rights, and the orphans’
court entered a decree terminating them on June 26, 2019.
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testimony of its caseworker, Lori Deline, and H.W., Child’s foster mother.
Father testified on his own behalf via telephone from State Correctional
Institute (“SCI”)-Somerset. During the hearing, Michael M. Kipphan, Esquire,
represented Child’s legal interests, and the Guardian ad litem (“GAL”), Robert
M. Covell, Esquire, represented Child’s best interests. The testimonial
evidence revealed as follows, in relevant part.
The juvenile court placed Child in the emergency protective custody of
CYS on February 2, 2017, due to a “drug bust” at Mother’s home. N.T.,
6/21/19, at 2-3. At that time, Father was incarcerated at SCI-Somerset,
where he had been since approximately 2007, for crimes involving robbery
and aggravated assault for which he was sentenced to a term of incarceration
of fifteen to thirty years. Id. at 3-4, 32. Father’s minimum sentence date is
December of 2022, at which time Child will be seventeen years old. Id. at 5,
32. Father’s maximum sentence date is December of 2037. Trial Court
Opinion, 8/6/19, at 4.
Father has not seen Child since he was approximately three years old.
N.T., 6/21/19, at 5-6. Father testified that he “repeatedly” requested
visitation with Child, but the court denied him. Id. at 30. Nevertheless, the
foster mother, who is a pre-adoptive resource, testified that Child “has a bond
with his dad now that he [has] been longing for that he hasn’t had before.”
Id. at 15. She testified on direct examination,
Q. Can you explain that to me?
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A. He said that he didn’t get to talk to his dad frequently[,] and
his mom moved a lot, so his dad wasn’t able to send letters and
keep contact[,] and he said now he doesn’t have to worry about
that. You know, his dad calls frequently. Sometimes more than
twice, three times a week. We answer the calls when we’re not
at the ballfield . . . But everything [has] been positive[,] and I
think it [has] done [Child] well . . ., having that relationship that
he [has] been missing. It [has] helped him grow as a person.
Id.3 The foster mother testified that Father “gives [Child] positive
reinforcement. . . . I remember one time [Child] said . . . dad told me that I
was supposed to keep on my toes and do well[,] and . . . it’s always
important.” Id. at 18.
On cross-examination by Father’s counsel, the foster mother further
explained:
Q. [H]as [Child] expressed to you any anger or sadness about
[F]ather?
A. I mean he misses him. He always says, you know, I wish I
could see dad. Haven’t seen him since I was little. I don’t
remember [Father], . . . but [Child] talking to [Father] makes
[Child] feel better.
Id. at 19.
There is no specific testimony about Child’s preference regarding the
involuntary termination of Father’s parental rights, but the foster mother
testified that Child wants to maintain a relationship with Father. Id. at 19-
20. She testified on direct examination:
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3Besides Father, the foster mother testified that Child’s paternal grandparents
contact him. N.T., 6/21/19, at 22. Child’s paternal grandfather, with whom
Father’s ten-year-old daughter resides, contacts him weekly. Id. at 22-23.
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Q. If you were to adopt [Child] would you continue to allow [Child]
to have communication [with Father]?
A. Yes, most definitely.
Q. You would?
A. Yes.
THE COURT: Do you think that’s best for the child?
A. Yes.
Id. at 14-15.
However, on cross-examination by Father’s counsel, the foster mother
testified:
Q. Am I correct that you do not wish to enter into a binding post-
adoption visitation?
A. . . . [T]he phone calls, letters, pictures -- I’ve sent multiple
pictures of [Child,] but as far as a binding contract, I don’t. I’ll
continue the contact that we have.
Id. at 20.
At the conclusion of the testimonial evidence, Child’s counsel stated, in
part, on the record in open court:
[M]y client understands that his father is not going to be available
as a resource for him in terms of where he lives or who provides
his support. He is concerned, Judge, about his connections to his
biological family. That’s a big deal for him. . . . I feel I need to
put on the record that that’s a significant concern for [Child], not
just with his dad but with his grandfather, his sister who lives with
[Child]’s grandfather. . . . And so that’s my client’s position,
Judge.
Id. at 37.
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In his closing statement, the GAL stated, “For [Child’s] own continued
growth there is a need for permanency[,] and I think we get there by a
termination and an adoption[,] and I don’t see that his relationship with
[F]ather will change at all with the termination.” Id. at 36.
By decree dated and entered on June 26, 2019, the orphans’ court
granted CYS’s petition to involuntarily terminate Father’s parental rights.
Father timely filed a notice of appeal and a concise statement of errors
complained of an appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
court filed its Rule 1925(a) opinion on August 6, 2019.
On appeal, Father requests that we review “[w]hether the [orphans’]
court lacked sufficient evidence that the proposed adoption was in [C]hild’s
best interest.” Father’s brief at 3. Father’s argument involves 23 Pa.C.S.A. §
2511(b). Specifically, Father asserts that the record was insufficient for the
court to discern the effect on Child of “permanently severing the parental bond
with . . . [F]ather.” Id. at 10. We are constrained to agree.
We review Father’s issue pursuant to an abuse of discretion standard,
as follows.
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
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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) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 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 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).
Instantly, Father does not raise Section 2511(a) in the statement of
questions involved in his brief. As such, we review the decree pursuant to
Section 2511(b) only.4 See Krebs v. United Refining Company of
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4 The orphans’ court involuntarily terminated Father’s parental rights pursuant
to Section 2511(a)(5) and (8), which 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:
...
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Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue
not set forth in or suggested by an appellate brief’s statement of questions
involved is deemed waived).
Section 2511(b) provides as follows:
...
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(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 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.
...
23 Pa.C.S.A. § 2511(a)(5), (8). In In re C.S., 761 A.2d 1197 (Pa. Super.
2000) (en banc), this Court held that Section 2511(a)(5) and (8) did not
provide a basis for terminating the father’s parental rights in that case when
he was incarcerated at the time of the child’s removal from the mother’s care.
Pursuant to this well-established case law, the orphans’ court in this case
improperly terminated Father’s parental rights under the foregoing provisions.
However, because Father did not raise any issue on appeal related to Section
2511(a), we do not reverse the decree on this basis.
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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(b).
This Court has explained that, “the needs and welfare of the child are
the paramount consideration in deciding whether to terminate parental
rights.” In re S.D.T., 934 A.2d 703, 706 (Pa. Super. 2007) (citation
omitted). Our decisional law recognizes that “[o]ne 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 at 511
(citation omitted). This Court has recognized that “severing close parental
ties is usually extremely painful.” In the Interest of K.Z.S., 946 A.2d 753,
760 (Pa. Super. 2008). As such, we have stated, “The court must consider
whether a natural parental bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial relationship.”
Id. (citation omitted); see also In re E.M., 620 A.2d 481 (Pa. 1993) (order
terminating parental rights of the mother reversed by the Pennsylvania
Supreme Court where the evidence supported termination under Section
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2511(a), but the trial court did not fully explore the emotional needs of the
children under Section 2511(b)).
Further, this Court has explained:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and should
also consider the intangibles, such as the love, comfort,
security, and stability the child might have with the foster
parent. . . .
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)).
Instantly, in its Rule 1925(a) opinion, the orphans’ court emphasized
that it is, “very impressed with, and greatly commends, the efforts Natural
Father has made, and the very important bond he has developed with his son
under difficult circumstances.” Orphans’ Court Opinion, 8/6/19, at 4. The
court also found that a parent-child bond exists between the foster mother
and Child. Decree, 6/26/19, at ¶ 9.
It is undisputed in the certified record before this Court that a bond
exists between Father and Child; moreover, this relationship is beneficial to
Child, who was fourteen years old at the time of the subject proceeding.
Likewise, the record supports the court’s finding that Child shares a bond with
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his foster mother;5 however, there is no evidence that bond supplants Child’s
need for a relationship with Father. Indeed, the orphans’ court recognized
this and stated to Father on the record in open court, “There is no doubt in
my mind under the law that my decision has to be a termination of your
parental rights. . . . In this situation I’m doing it with the comfort of knowing
that nothing is going to change for you and your son[,] and I know that when
your son is 17, and you have the ability to be paroled, the situation [is] only
going to be enhanced.” Id. at 39.
As such, the court credited the testimony of the foster mother who
stated that, if Father’s parental rights are terminated, and she adopts Child,
she will permit the kind of contact that has been occurring between Father
and Child until he reaches majority age, which will approximately be when
Father is paroled, his minimum sentence date being December of 2022. N.T.,
6/21/19, at 39-40. Although the foster mother testified that she is unwilling
to enter into a legally enforceable contract to this effect should she adopt
Child, the court found that Child’s relationship with Father will not change if
Father’s parental rights are terminated.
Nevertheless, pursuant to the foregoing well-settled case law, the
orphans’ court was required to explore what, if any, emotional impact the
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5 The CYS caseworker, Ms. Deline, testified that Child is “very well adjusted”
in the foster home, where he resides with his brother. N.T., 6/26/19, at 9.
There is no testimonial evidence regarding the age of Child’s brother. In
addition, there is no evidence that Child’s brother is Father’s natural child.
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involuntary termination of parental rights will have on Father’s then fourteen-
year-old son. See In re E.M., supra. The record is devoid of evidence in
this regard.
Accordingly, we reverse the decree involuntarily terminating Father’s
parental rights and remand the case for the parties to present evidence
regarding Child’s preferred outcome in this termination matter and the effect
that termination would have on Child. Subsequent to the presentation of this
evidence, the orphans’ court shall conduct a proper analysis pursuant to 23
Pa.C.S.A. § 2511(a) and (b).6
Decree vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/11/2020
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6 Based on the record before this Court, there is no evidence that CYS
considered changing Child’s permanency goal to permanent legal custody
pursuant to Section 6351(a)(2.1) of the Juvenile Act, 42 Pa.C.S. §
6351(a)(2.1), rather than adoption. See In re S.H., 71 A.3d 973 (Pa. Super.
2013).
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