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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: Y.R.L.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: B.J.P., FATHER :
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: No. 2449 EDA 2019
Appeal from the Decree Entered July 17, 2019
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2019-A0066
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 06, 2020
B.J.P. (Father) appeals from the decree entered July 17, 2019, and
dated July 16, 2019, that granted the petition filed by the Montgomery County
Office of Children and Youth (OCY or Agency) seeking the involuntary
termination of Father’s parental rights to Y.R.L.P. (Child), born in September
of 2015. We affirm.
On April 25, 2019, the Agency filed its petition for termination of Father’s
parental rights and alleged grounds under 23 Pa.C.S. § 2511(a)(1), (2), (8)
and (b). The trial court provided a review of the factual and procedural history
of this case and its reasoning for terminating Father’s parental rights by
attaching the notes of testimony from the July 16, 2019 hearing to its
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* Former Justice specially assigned to the Superior Court.
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Pa.R.A.P. 1925(a) opinion.1 Specifically, the court determined that the Agency
had not proven the applicability of subsections (a)(1) and (8). Rather, it found
that the Agency had proven that termination of Father’s parental rights should
be terminated pursuant to sections (a)(2) and (b). With regard to subsection
(a)(2), the trial court explained:
In this case, as Mr. Quigg[, Father’s attorney,] has argued,
with respect to the birth [F]ather, the six-month period preceding
the filing of the petition on April 25th began on October 25th,
2018. I do not conclude that the Office of Children and Youth has
established a ground for termination under Section 2511(a)(1),
because during that six-month period prior to the filing of the
petition, birth [F]ather in the end of 2018, from October 25th,
2018, and before that, until December 4th or 5th of 2018, [F]ather
was not only in compliance but making strides towards
reunification and indeed had unsupervised visits with the [C]hild
and four overnight visits with the [C]hild between
October/November of 2018 through December 4th, I think, of
2018.
So for that early part of the six-month period preceding the
filing of the petition, birth [F]ather was making efforts to reunify
with the [C]hild and meeting the goals that OCY set for him.
I will also agree with Mr. Quigg with respect to the birth
[F]ather that under Section 2511(a)(8), the conditions that led to
the removal of the [C]hild primarily focused on the abuse that the
[C]hild suffered in September of 2017, and those conditions,
specifically the abuse and the fact that he was residing at the time
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1 At the same hearing, L.E.F.’s (Mother) parental rights to Child were also
terminated. Mother filed a separate appeal with this Court, which is addressed
in a separate memorandum at No. 2193 EDA 2019.
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with Mr. Darby[2] and at times under his supervision, no longer
exist.
So with respect to the birth [F]ather, … the [c]ourt
concludes that Section 2511(a)(8) is not an established ground
for termination of parental rights.
However, I do conclude that the Office of Children and Youth
has provided clear and convincing evidence for termination of the
birth [F]ather’s parental rights under Section (a)(2) of the statute
in that the birth [F]ather, since December of 2018, has refused to
parent the [C]hild and has simply removed himself from the
[C]hild’s life.
The testimony indicated that since December of 2018, when
the Office of Children and Youth determined to withdraw the
motion for redisposition and no longer sought to permit the [C]hild
to be reunified with … the birth [F]ather -- from that time until the
present, the birth [F]ather had requested only one visit with the
[C]hild on June 27th of 2018 -- that was after the filing of the
petition, obviously just in the last couple of weeks -- and has
missed the opportunity to visit with his [C]hild, provide for his
[C]hild, parent his [C]hild, provide for him financially, emotionally,
or in any other way for a lengthy period now in excess of six
months.
The [c]ourt is mystified as to why [Father] took this course
of action. He hasn’t maintained communication with the Office of
Children and Youth during this period. He hasn’t maintained
communication with his attorney during this period. He’s failed to
appear for court proceedings, including today’s court proceeding,
to take the opportunity to explain to the [c]ourt and to the Office
of Children and Youth how he intends to parent, how he would like
to go forward, or to provide any explanation at all of his behavior
for the last six months or his intentions with respect to the [C]hild.
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2 The actions of Mr. Darby, who was Mother’s boyfriend, caused the severe
injuries to the Child and prompted the Agency to get involved with the family.
Mr. Darby, who was caring for the Child at the time of the Child’s injuries,
violently assaulted the Child and caused the injuries that included Stage V
lacerations to the Child’s kidney and his spleen and fractures to the Child’s
clavicle and ribs. The Child remained in the hospital for over a month.
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The failure to consistently visit and maintain that
consistency on his part has caused a rupture to the bond between
the [C]hild and the birth [F]ather, and he has taken no steps since
December except for one visit, I will say. Other than the one
recent visit, he hasn’t taken steps to repair that bond and to build
upon that bond. He discontinued contact with OCY and neither
scheduled nor attended any visits with …, his son, in the last seven
months except for the one visit he scheduled with the foster
mother on June 27th, 2019. At least that’s my recollection of the
testimony.
In addition to the inconsistency and failure to parent for the
last six months, looking back at the testimony taken as a whole,
there were issues with his behavior that evidenced some
inconsistency, such as his frequent refusal to provide drug screens
to OCY and his sometimes positive drug screen when provided to
OCY, albeit for marijuana.
I think that summarizes the inconsistencies.
But just to reiterate, he repeatedly refused to provide drug
screens to OCY. He missed many opportunities to visit with his
[C]hild, particularly during the past seven months, except for one
recent. He failed to communicate with his OCY worker. He failed
to communicate with his attorney, and he failed to appear in court
today to advocate in his own interest or to advocate for his son’s
interest.
For all of those reasons, the [c]ourt concludes that the Office
of Children and Youth has established a refusal to parent under
Section 2511(a)(2) by [Father,] which will not be remedied and
has not been remedied and established a ground for termination
of parental rights.
N.T., 7/16/19, at 199-203.
The trial court then explained the facts and its reasoning relating to
section 2511(b), stating:
In this case, the testimony clearly established that the birth
[F]ather has, through his own decisions, not maintained contact
with or sought opportunities to maintain a parental relationship
with the [C]hild with the exception of the one visit that he
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requested that occurred in June, and therefore the parental bond
between this [C]hild and the birth [Father] has been radically
diminished through his own actions and inconsisten[cy] in
attendance with respect to the [C]hild.
. . .
The testimony … both of the caseworker Ms. Plakis and of
Ms. Martin indicated that [the Child] is happy, thriving, and
bonded in the foster home, that he is loved by the foster parents
and by the foster siblings, that he turns to the foster parents to
meet his needs, to provide for him for comfort, to provide for him
when he’s hungry and when he’s tired, that all of his needs are
met by the foster parents, and that there is a strong, reliable, and
stable parental bond with both of the foster parents and this
[C]hild as well as a healthy relationship with the foster siblings.
Therefore, from all of the evidence and testimony that I
considered this day, I find that termination of the birth [F]ather’s
parental rights … will best serve the needs and welfare of the
[C]hild, and termination of … the birth [F]ather’s parental rights
will not irreparably harm the [C]hild.
Id. at 211, 212-13.
On appeal, Father raises the following issues for our review:
1. Did the trial court err in finding clear and convincing
evidence that birth Father’s continued incapacity, abuse,
neglect, or refusal caused the Child to be without essential
parental care, control, o[r] subsistence necessary for Child’s
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?
2. Did the trial court err in finding that the Child’s
developmental, physical, and emotional needs and welfare
were best served through the permanent and irrevocable
termination of birth Father’s parental rights?
Father’s brief at 4.
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We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. 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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
The trial court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve conflicts
in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result. In re Adoption of T.B.B.,
835 A.2d 387, 394 (Pa. Super. 2003).
We are guided further by the following: Termination of parental rights
is governed by section 2511 of the Adoption Act, which requires a bifurcated
analysis.
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Our case law has made clear that under Section 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 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) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
and convincing evidence that the asserted grounds for seeking the termination
of parental rights are valid. R.N.J., 985 A.2d at 276.
With regard to section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In addition, we
instructed that the trial court must also discern the nature and
status of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. Id. However, in
cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. In re K.Z.S.,
946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
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In this case, the trial court terminated Father’s parental rights pursuant
to sections 2511(a)(2) and (b). We need only agree with the trial court as to
any one subsection of section 2511(a), as well as section 2511(b), in order to
affirm. 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 section 2511(a)(2) and
(b), which provide 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,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
***
(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. § 2511(a)(2), (b).
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We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to section 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).
The thrust of Father’s argument in his brief relative to subsection (a)(2)
is that he met or made progress in reaching the goals set forth by the Agency.
Specifically, Father lists the requirements that he completed, namely,
parenting classes, a mental health evaluation, which required no follow up
treatment, and maintaining employment and stable housing. Father
acknowledges that his compliance with the required drug screens was
“spotty,” but points out that that fact did not override the Agency’s December
2018 filing of a redisposition motion that would have returned the Child to his
custody.
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With regard to subsection (b), Father’s brief provides a discussion about
his bond with the Child, indicating that testimony established that there was
a strong, loving bond between the two. Father further asserts that despite
the period from December of 2018 to June of 2019, when he did not see the
Child, the bond was still intact because “the [C]hild immediately recognized
Father” despite the six month period of no contact. Father’s brief at 11.
Father further argues that the Agency’s failure to request a bonding
assessment is a tacit admission that a bond exists which is beneficial to the
Child. Lastly, Father asserts that the court did not adequately address the
impact on the Child that severing the bond would cause.
Having reviewed the record, we conclude that it supports the findings of
the trial court that Father has not provided the Child with the essential
parental care, control and subsistence necessary for his mental and physical
well-being, and that Father is unable or unwilling to remedy the causes of his
parental incapacity, neglect or refusal. While the trial court noted that Father
was not the cause of the Agency’s initial interaction with the family and that
he had accomplished many of the goals set forth by the Agency prior to
December of 2018, it is clear that at this point Father will not, or cannot,
become a capable parent for the Child in light of his inaction since the end of
2018. He stopped contacting the Agency and did not avail himself of the 26
offered visits with the Child except for one visit in June of 2019. Father never
explained why he no longer visited or called the Child, nor has he explained
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why he failed to attend the termination hearing. Rather, Father’s attorney
informed the trial court of his inability to make contact with Father.
Additionally, one of the Agency’s caseworkers testified that termination would
not be detrimental to the Child in that he is bonded with the foster parents
and considers them to be his mother and father. See In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010) (indicating that subsection 2511(b) does not
require a formal bond, that expert testimony is not required, and that a social
worker or caseworker can evaluate whether a bond exists with a biological
parent and/or with a foster parent).
Accordingly, we conclude that the trial court’s findings and conclusions
are supported by the evidence presented. Thus, we determine that the
Agency has carried its burden of proof required under sections 2511(a)(2) and
(b), and for that reason, we affirm the trial court’s decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/20
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