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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.K.B., JR., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.W., MOTHER :
:
:
:
:
: No. 14 MDA 2020
Appeal from the Decree Entered December 11, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2165 of 2019
IN RE: S.K.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.W., MOTHER :
:
:
:
:
: No. 15 MDA 2020
Appeal from the Decree Entered December 11, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-02166
IN RE: D.K.B., JR., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.B., SR., FATHER :
:
:
:
:
: No. 52 MDA 2020
Appeal from the Decree Entered December 11, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-02165
J-S25025-20 & J-S25026-20
IN RE: S.K.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.B., SR., FATHER :
:
:
:
:
: No. 53 MDA 2020
Appeal from the Decree Entered December 11, 2019
In the Court of Common Pleas of Lancaster County Orphans' Court at
No(s): 2019-02166
BEFORE: LAZARUS, J., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 01, 2020
In these appeals, D.B., Sr., (“Father”) and D.W. (“Mother”) appeal from
the Decrees entered by the Court of Common Pleas of Lancaster County
Orphans’ Court, dated December 4, 2019, and entered on December 11, 2019,
involuntarily terminating their parental rights with respect to their two sons,
D.K.B., Jr., born in January of 2009, and S.K.W., born in May of 2011
(collectively, “Children”). Because the record supports the findings and
conclusions of the orphans’ court, we affirm the Decrees.1
SUMMARY OF FACTS AND PROCEDURAL HISTORY
We glean the following factual and procedural history from the orphans’
court’s opinion, which is supported by the certified record. Mother has been
known to Lancaster County Children and Youth Services (“CYS”) since 2008.
____________________________________________
1 On February 13, 2020, and March 9, 2020, respectively, this Court, sua
sponte, consolidated Father’s and Mother’s separate Notices of Appeal as to
Children. We address both consolidated appeals in a single Memorandum for
ease of disposition.
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Pertinent to this appeal, in January of 2018, the Manheim Township Police
were called to Mother’s home because Mother traveled to Philadelphia and left
Children, then ages 9 and 6 years old, unattended for several days. Orphans’
Court Opinion, 1/30/20, at 1-2. At that time, Father was incarcerated and
had only limited contact with Children. Id. Accordingly, CYS obtained Orders
for Protective Custody of Children. Id.
Thereafter, CYS filed Dependency Petitions. On January 30, 2018, the
orphans’ court adjudicated Children dependent. Id. The orphans’ court
developed a Child Permanency Plan (“Plan”) for Mother and Father with a goal
of reunification. Objectives of the Plan required that Mother: undergo mental
health treatment; undergo drug and alcohol treatment; remain crime-free;
attend parenting and domestic violence classes; and obtain financial and
housing stability.
With respect to Father, the Plan required that he: remain free from
drugs and alcohol; remain crime free; remain free of domestic violence; attend
parenting classes; obtain financial and housing stability; and demonstrate an
ongoing commitment to Children.
On September 4, 2019, CYS filed Petitions to involuntarily terminate
Mother’s and Father’s parental rights to Children. The orphans’ court
conducted hearings on the Termination Petitions on October 8, 2019,
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November 5, 2019, and December 3, 2019.2 CYS presented the testimony of
Dominik Berthold, an adoption caseworker at Pressley Ridge; Kara Davis, a
CYS caseworker; Carrie Dolphin, case management supervisor at Family
Alternatives; Mark Rettew, Mother’s parole officer; and Catherine Bonser, the
Court-Appointed Special Advocate (“CASA”) assigned to Children. Mother
appeared at both hearings and testified on her own behalf. Mother also
presented the testimony of two of her friends. Father, who participated via
telephone during the first hearing, testified on his own behalf. The orphans’
court also conducted an in camera interview with Children.
On December 4, 2019, the orphans’ court entered Decrees involuntarily
terminating Mother’s and Father’s parental rights to Children pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Thereafter, Mother and Father
filed timely Notices of Appeal and Concise Statements of Errors Complained of
on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
ISSUES ON APPEAL
Mother now raises the following issues for our review:
1. Whether the [orphans’ c]ourt erred when it terminated
Mother’s rights?
2. Whether the [orphans’ c]ourt erred in concluding that [CYS]
had met its burden in proving that Mother’s parental rights
should be terminated when there was evidence that she had
been actively working on and completing the goals [of] her
[Plan]?
____________________________________________
2Cynthia Garman, Esq., served as guardian ad litem and Robert S. Cronin,
Esq., represented Children’s legal interests.
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3. Whether the [orphans’ c]ourt erred in finding [sic] that
terminating Mother’s parental rights would best serve the
needs and welfare of the children?
Mother’s Brief at 8.
Father raises the following claims:
1. Whether the [orphans’] court erred in terminating Father’s
parental rights to the children[?]
2. Whether the [orphans’] court erred in concluding [that CYS]
met its burden in proving that Father’s rights should be
terminated[?]
3. Whether the [orphans’] court erred in determining that
terminating Father’s rights when he would be getting out of jail
in the near future would best serve the children’s needs and
welfare[?]
Father’s Brief at 10.
LEGAL ANALYSIS
In reviewing cases in which the orphans’ court involuntarily terminated
parental rights, appellate courts must accept the findings of fact and credibility
determinations of the orphans’ court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). If the record supports the factual
findings, appellate courts then determine if the orphans’ court made an error
of law or abused its discretion. Id. Where the competent record evidence
supports the court’s findings, we must affirm the orphans’ court decree even
though the record could support an opposite result. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
“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.
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2004) (citations omitted). Appellate courts defer to the orphans’ court that
often has “first-hand observations of the parties spanning multiple
hearings.” In re T.S.M., supra at 267 (citations and quotation marks
omitted). Importantly, “[t]he court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims of
progress and hope for the future. Indeed, we work under statutory and case
law that contemplates only a short period of time . . . in which to complete
the process of either reunification or adoption for a child who has been placed
in foster care.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006) (emphasis in original; citations omitted).
In addressing petitions to terminate parental rights involuntarily, the
Adoption Act requires the court to conduct a bifurcated analysis. See 23
Pa.C.S. § 2511(a) and (b). The court first focuses on the conduct of the
parent, and, if the party seeking termination presents clear and convincing
evidence that the parent’s conduct meets one of the grounds for termination
set forth in Section 2511(a), then the court will analyze whether termination
of parental rights will meet the needs and welfare of the child, i.e., the best
interests of the child, as provided in Section 2511(b). The courts must
examine the existence of the child’s bond with the parent, if any, and the
potential effect on the child of severing such bond. In re L.M., 923 A.2d 505,
511 (Pa. Super. 2007). 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 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).
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While the orphans’ court here found that CYS met its burden of proof
under 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b) with regard to Mother
and Father, we need only agree with its decision as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm the termination
of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc). Here, we will focus our analysis on Section 2511(a)(2) and (b),
which provides as follows:
§ 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:
***
(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) and (b).
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Termination Pursuant to Section 2511(a)(2)
We first conclude that the court properly exercised its discretion by
terminating Mother’s and Father’s parental rights pursuant to Section
2511(a)(2). Section 2511(a)(2) provides for termination of parental rights
where the petitioner demonstrates by clear and convincing evidence that
“[t]he 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.” 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P.,
47 A.3d 817, 827 (Pa. 2012) (citations omitted). The grounds for termination
of parental rights under Section 2511(a)(2) due to parental incapacity 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).
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. Id. At a termination hearing, the orphans’ court may
properly reject as untimely or disingenuous a parent’s vow to follow through
on necessary services when the parent failed to co-operate with the agency
or take advantage of available services during dependency proceedings. Id.
at 340.
With respect to incarcerated parents, our Supreme Court has held that
“incarceration, while not a litmus test for termination, can be determinative of
the question of whether a parent is incapable of providing essential parental
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care, control, or subsistence.” In re Adoption of S.P., 47 A.3d 817, 830 (Pa.
2012) (citation and internal quotation marks omitted). Notably, “the length
of the remaining confinement can be considered as highly relevant to whether
the conditions and causes of the incapacity ... cannot or will not be remedied
by the parent, sufficient to provide grounds for termination pursuant to 23
Pa.C.S. § 2511(a)(2).” Id. (internal quotation marks omitted).
Also relevant are the efforts the parent made to care for a child before
the parent was incarcerated as an indication of the efforts the parent will make
when no longer incarcerated. See In re Z.P., 994 A.2d 1108, 1126 (Pa.
Super. 2010) (terminating parental rights of incarcerated father after
examining his parenting history before incarceration and finding “Father’s
overall parenting history revealed no genuine capacity to undertake his
parental responsibilities”). Another factor to consider is the parent’s effort to
maintain a relationship with a child while incarcerated. In re E.A.P., 944 A.2d
79, 83 (Pa. Super. 2008). However, this factor is not determinative because
the orphans’ court may place weight on other factors even when the parent is
doing what he is supposed to do while incarcerated:
Each case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind, with respect to
subsection (a)(2), that the child’s need for consistent parental
care and stability cannot be put aside or put on hold simply
because the parent is doing what [he] is supposed to do in prison.
Id. at 84. In other words, the orphans’ court must consider “[t]he complete
circumstances” of the case. Z.P., 994 A.2d at 1125.
Mother’s Appeal
Mother contends that her testimony established that she was making
progress on the goals set forth in the Plan. Mother’s Brief at 13-19. Mother
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concedes that she did not complete her Plan objectives, but argues that it was
error for the orphans’ court not to give her additional time to complete the
Plan. Mother’s Brief at 9, 11 and 20.
In its Opinion, the orphans’ court concluded that Children lacked
essential parental care for twenty-two months at the time of the termination
hearing, and that Mother failed to complete her objectives as set forth in the
Plan. Orphans’ Court Opinion, 1/30/20, at 4. The orphans’ court explained
that Mother was unsuccessfully discharged for noncompliance with attendance
policies for trauma therapy, medication management, drug and alcohol
therapy, and parenting classes. Id. The orphans’ court noted that Mother
reengaged in drug and alcohol counseling at another provider in July of 2019;
however, at the time of the termination hearing, Mother “was in danger of
being unsuccessfully discharged again for poor attendance, declining drug
screenings, and positive drug screenings.” Id. Further, Mother was
discharged in January 2019 from a visitation program due to her inconsistent
visitation with Children. Id.
The orphans’ court concluded that Children lacked essential parental
care, and that Mother’s inability to consistently participate and comply with
the Plan was the source of her repeated and continued parental incapacity.
The orphans’ court further determined that Mother could not remedy her
incapacity. Id. at 6.
Having reviewed the record, we conclude that it supports the findings of
the orphans’ court that Mother has not provided Children with the essential
parental care, control and subsistence necessary for their mental and physical
well-being, and that Mother is unable to remedy the causes of her parental
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incapacity, neglect or refusal any time in the foreseeable future. Thus, Mother
is not entitled to relief.
Father’s Appeal
Father contends that the orphans’ court erred when it determined that
CYS met its burden and terminated his parental rights to Children because he
was working on his objectives set forth in the Plan despite his incarceration.
Father’s Brief at 13, 17-18. More specifically, Father avers that there were no
additional steps he could have taken to fulfill his Plan requirements. Id. at
17.
The orphans’ court analyzed Father’s compliance with the Plan and
determined that he “has failed to timely address his objectives of remaining
free from drugs and alcohol, to remain crime free, to remain free of domestic
violence, to learn and use good parenting, to be financially stable, and to
obtain and maintain housing and an ongoing commitment to his children.”
Orphans’ Court Opinion, 1/30/20, at 7. The orphans’ court concluded Father
will not or cannot remedy the causes of his parental incapacity, and that
termination was appropriate pursuant to Section 2511(a)(2).
Our review of the record supports the orphans’ court’s findings. Father
failed to make any material progress towards reunification following Children’s
removal in January of 2018. Although Father completed an anger
management program, two parenting programs, and a vocational training
program while incarcerated, Father failed to provide documentation of
progress on his objectives related to being financially stable, obtaining
appropriate housing, addressing domestic violence, and remaining free from
misuse of drugs and alcohol. CYS Exhibit 2, Business Testimony, at 7. In the
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intervening years, Father has not had any visitation with Children, but has
sent letters and had minimal telephonic communication with Children. We
defer to the factual findings of the orphans’ court and conclude that Father,
while incarcerated, “failed to utilize given resources and to take an affirmative
approach to fulfill his parental duties.” In re D.J.S., 737 A.2d 283, 286 (Pa.
Super. 1999). Thus, Father is not entitled to relief.
Termination Pursuant to 2511(b)
With respect to Section 2511(b), we consider whether termination of
parental rights will best serve Children’s developmental, physical, and
emotional needs and welfare. 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. “[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).
It is sufficient for the orphans’ court to rely on the opinions of social
workers and caseworkers when evaluating the impact that termination of
parental rights will have on a child. In re Z.P., supra at 1121. The trial court
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
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(Pa. Super. 2011). Ultimately, the concern is the needs and welfare of a child.
In re Z.P., supra at 1121.
The orphans’ 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. See In re
K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
Mother’s Appeal
Mother avers that the orphans’ court erred when it determined that CYS
met its burden under Section 2511(b). More specifically, Mother argues that,
while little testimony was provided on this issue, the testimony presented
indicated that there was a bond between Mother and Children. Mother’s Brief
at 19-20.
The orphans’ court concluded that CYS met its burden of proof pursuant
to Section 2511(b), and observed:
The best interests of [Children] are served by remaining in foster
care and being adopted. The [C]hildren have been in custody for
twenty-two (22) months and the [c]ourt is convinced Mother and
Father will not resolve their significant issues in a reasonable
amount of time. The [C]hildren remain in loving and healthy
homes which are potentially permanent resources. Id. at 46, 50.
The [C]hildren cannot wait for an indefinite period of time for the
stability and care of a permanent family in the hope that their
parents will drastically change their behavior and accomplish their
goals. The Court Appointed Special Advocate and the Guardian
ad litem support the termination of parental rights. N.T., 12/3/19,
at 73, 83.
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Orphans’ Court Opinion, 1/30/20, at 7.
Additionally, the orphans’ court agreed that there is a bond between
Mother and Children, but proffered “that bond does not trump the fact that
these children need stability. They need continuity. They need love, which I
don’t know that they’re getting from [M]other.” N.T., 12/3/19, at 91. The
orphans’ court found credible Ms. Davis’ testimony that she observed Mother
attempt to undermine D.K.B., Jr.’s placements in the past and acted in such
a way “that cause[d] him to feel concerned for her well-being rather than
focusing on. . . his emotional needs.” N.T., 11/5/19, at 52. Moreover, the
orphans’ court credited the testimony that Children are developing a more
secure attachment to their respective resource parents.
Thus, the record confirms that the orphans’ court properly determined
that terminating Mother’s parental rights would best serve Children’s needs
and welfare. While Children have a relationship with Mother, their relationship
is not one that is necessary and beneficial. See In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010).
Father’s Appeal
Father avers that he has maintained a bond with Children despite his
incarceration. More specifically, Father contends that he maintained contact
with Children via telephone and letters and “utilized every resource he had
while incarcerated.” Father’s Brief at 17.
Father's argument is unpersuasive. The evidence demonstrated, and
Father admitted, that, at the time of the hearing, Father had not seen Children
since 2015. Orphans’ Court Opinion, 1/30/20, at 7. The orphans’ court found
credible the testimony that Children stated that they know who Father is and
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would like to “meet him.” Id. In light of this evidence of a lack of meaningful
contact with Father since 2015, it was reasonable for the court to infer that
there is no bond between Father and Children, the severance of which would
cause detriment to Children’s well-being.
Our review of the record supports the orphans’ court’s determination
and we discern no abuse of discretion or error of law. We, thus, affirm the
court’s determination that involuntary termination of Father’s parental rights
is in the best interests of Children.3
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion or commit an error of law by terminating the parental
rights of Mother and Father to Children involuntarily. Therefore, we affirm the
orphans’ court’s December 11, 2019 Decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/01/2020
____________________________________________
3 Legal counsel for Children agrees with Mother and Father that their rights
were improperly terminated because of the preferred outcomes expressed by
Children against termination, the bond between Children and Mother, and
Father’s contact with Children from prison. Legal Interests Counsel’s Brief, at
3, 5-6, 9-10. Because Children need stability and Mother cannot provide them
with stability, and Children do not have a meaningful bond with Father, we
reject legal counsel’s argument that the trial court failed to consider the best
interests of Children.
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