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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.S., FATHER :
:
:
:
:
: No. 90 MDA 2016
Appeal from the Decree Entered January 4, 2016
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 1709 of 2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 23, 2016
Appellant, E.S. (“Father”), appeals from the decree entered January 4,
2016, in the Court of Common Pleas of Lancaster County, involuntarily
terminating his parental rights to N.M.D. or N.D. (“Child”) (born in
September 2014), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1),
(2), (5), and (b).1 We affirm.
Mother has a long history with Lancaster County Children and Youth
Social Service Agency (the “Agency”) since well before Child’s birth. Child
has two older siblings by Mother, neither of whom are Father’s biological
____________________________________________
1
T.N.A.D. a/k/a T.N.D. (“Mother”) is not a party to this appeal nor did she
file a separate appeal.
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children. Child’s older half-brother, O.M.D. (“Half-Brother”) was adopted in
2011, and Child’s older half-sister, A.D.D. (“Half-Sister”) was adjudicated
dependent and placed in foster care in 2012. On May 16, 2014, the Agency
received a report that Mother was pregnant, using drugs, not receiving any
prenatal care, and prostituting herself for a place to live. The Agency
scheduled a home visit in May 2014, but the address provided to them was a
place of business.
On September 13, 2014, the Agency discovered Mother gave birth to
Child and tested positive for PCP, “a ‘dissociative anesthetic’” whose “effects
are trance-like, and patients experience a feeling of being ‘out of body’ and
detached from their environment.” Partnership for Drug Free Kids, available
at http://www.drugfree.org/drug-guide/pcp/ (last visited 8/10/16). Although
paternity was undetermined, Father was present for Child’s birth, which was
the first and only time he ever saw Child. Mother provided the Agency with
names of several men as putative fathers for Child.
On September 16, 2014, Child was placed into the temporary physical
and legal custody of the Agency. On September 24, 2014, the trial court
accepted the master’s recommendation that Child continue in foster care.
Child was adjudicated dependent at an adjudication hearing on October 20,
2014. Mother was not offered a child permanency plan for reunification.
Nine days after Child’s birth, Father was arrested and charged with
possession with intent to deliver, possession with intent to distribute
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narcotics, possession of a controlled substance, possession of marijuana,
and possession of drug paraphernalia. The Agency discovered Father’s
location in prison and obtained a court order for genetic testing between
Father and Child. The results of the genetic test established paternity
between Father and Child.
On November 5, 2014, a child permanency plan was court-approved
for Father, which set the goal of reunification with Child. Father’s goals
were: (1) to cooperate with the Agency to assess his current situation; (2)
to improve mental health functioning to the extent he can care for Child; (3)
to use good parenting skills; (4) to be financially stable in order to provide
for himself and Child; (5) to obtain a home free and clear of hazard; and (6)
to maintain ongoing commitment to Child.
On March 26, 2015, Father had a probation/parole violation hearing,
resulting in a state prison sentence of one to two years. While incarcerated,
Father sent six letters to the Agency pursuant to his ongoing commitment
objective. Father also completed one relevant program, Violence Prevention,
Moderate Intensity. Father was enrolled in a therapeutic community
program, providing cognitive behavioral therapy, but was dismissed for, of
all things, putting laxatives in the drinks of other program attendees. Father
gained re-entry into the program only to be terminated again for smoking a
cigarette in his cell. Father’s initial release date, September 2015, was
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deferred because of these two prison infractions. Father will be released
from jail at the earliest in May 2016 or at the latest in September 2016.
On July 30, 2015, the Agency filed a petition to involuntarily terminate
Mother’s and Father’s parental rights to Child. Mother signed a consent to
adoption on August 12, 2015. On September 21, 2015, the trial court
conducted a termination hearing and issued a decree terminating Mother’s
parental rights only. The trial court rescheduled the hearing for Father
because he was unable to participate due to a connection problem at the
prison.
At the rescheduled termination hearing on January 4, 2016, Ashley
Zuver, the Agency caseworker, and Father testified. Father participated by
telephone from Laurel Highlands Correctional Institution and was
represented by counsel. On the same day, the trial court entered a decree
involuntarily terminating Father’s parental rights to Child. Thereafter, the
trial court immediately held a permanency review hearing, ordering Child to
remain at the pre-adoptive resource home and changing Child’s permanency
goal to adoption.2
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2
Father also filed a notice of appeal from the order changing the Child’s
permanency goal to adoption, which was assigned a separate docket number
and is disposed of therein. See In re N.D., 97 MDA 2016.
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Father timely appealed. Father raises the following issue:3
1. Where Father was incarcerated prior to learning that he was
the parent of a dependent child; where he, while
incarcerated, initiated frequent contact with the Agency and
sought visitation opportunities with his child; where there
were few remedial programs available in prison; and where
his maximum release date was less than a year from the date
of the termination hearing, was it an abuse of discretion to
grant the Agency’s petition to terminate?
Father’s Brief, at 11.4
Our standard of review regarding orders terminating parental rights is
as follows:
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3
We note Father filed one brief, raising two issues in the statement of
questions involved portion: (1) challenging the decree terminating his
parental rights; and (2) challenging the order changing the child
permanency goal to adoption. Because Father’s appeal challenging the
permanency goal to adoption has been assigned a different docket number,
Father’s second issue was omitted as it was addressed in In re N.D., 97
MDA 2016.
4
In his statement of errors, we note that Father asked this Court to consider
whether the trial court erred in finding the Agency met its burden to
terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(8).
Although the trial court stated, in its opinion, that the Agency requested
termination under subsections (a)(1), (2), (5), and (8), we note the Agency
only sought termination pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (5)
as to Child. See Petition for Involuntary Termination, 7/30/15, at 3.
Additionally, the trial court entered a decree terminating Father’s parental
rights under subsections (a)(1), (2), and (5). See Decree, 1/4/16, at 1-2.
Therefore, this issue is moot. Additionally, Father waived this issue because
he did not raise it in his brief. See Krebs v. United Refining Co. of Pa.,
893 A.2d 776, 797 (Pa. Super. 2006).
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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 S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (citation omitted). In
termination cases, 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. See id. at 806.
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. See 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. See In
re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
In terminating Father’s parental rights, the trial court relied upon
sections 2511(a)(1), (2), and (5), and (b) of the Adoption Act. We need
only agree with the trial court as to any one subsection of § 2511(a), as well
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as § 2511(b), in order to affirm. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). Here, we analyze the trial court’s decision to
terminate under § 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.
To terminate parental rights pursuant to § 2511(a)(2), the moving
party must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal 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
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refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003).
“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).
Further, parents are required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities. See In re
A.L.D. 797 A.2d 326, 340 (Pa.Super. 2002). A parent’s vow to cooperate,
after a long period of uncooperativeness regarding the necessity or
availability of services, may properly be rejected as untimely or
disingenuous. See id.
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012), our Supreme
Court addressed the relevance of incarceration in termination decisions
under § 2511(a)(2). There, the Court held that
incarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination exist
under § 2511(a)(2) where the repeated and continued incapacity
of a parent due to incarceration has caused the child to be
without essential parental care, control or subsistence and that
the causes of the incapacity cannot or will not be remedied.
Id., at 828.
With respect to § 2511(b), this Court has explained the requisite
analysis as follows:
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[S]ubsection 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 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Instantly, Father contends that the trial court abused its discretion in
terminating his parental rights as the evidence showed Father made a good
faith effort to be involved in Child’s life and worked on his child permanency
plan to the extent possible while incarcerated. See Father’s Brief, at 18.
Father argues that the trial court failed to consider his criminal acts were not
part of the original reasons for Child’s removal and all of his criminal
activities preceded his knowledge of fathering Child. See id. at 17-18.
Father submits that there is no support for the trial court’s conclusion that
reunification would necessarily or probably take considerable time after
Father is released from prison. We disagree.
The Agency caseworker, Ashley Zuver, testified from her knowledge
and familiarity with the records of the Agency. Zuver provided the trial court
with the history of the case concerning the circumstances leading to the
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placement in foster care of Child, Father’s criminal history, which dates back
to 2006, and Father’s child permanency goals. See N.T., 1/4/16, at 7-12.
Zuver informed the trial court that, while incarcerated, Father cooperated
with the Agency, completed one relevant program, and sent the Agency six
letters regarding Child. See id. at 8-12. Zuver testified that Father has not
completed an Agency-approved parenting program, drug and alcohol
evaluation or mental health evaluation, due to his incarceration. See id. at
9-12. Zuver further testified that Father has not fulfilled his goals of being
financially stable or obtaining a hazard-free home due to his incarceration.
See id. at 12. Zuver stated that Father was hoping to be released in the fall
of 2015, but the date was revoked because Father received two prison
misconducts (spiking his peers’ drinks with laxatives and smoking in his cell)
and was kicked out of a plan-related program twice. See id. at 11.
Father provided the trial court with additional information regarding his
criminal history. Father testified that he received a two-year probation
sentence in 2010 for possession with intent to deliver. See id. at 26. Father
admitted that since sentencing in 2010, he has been in and out of prison due
to six probation/parole violations, which includes his recent arrest. See id.
at 27. Father testified that he will be released in September 2016 at the
latest, but could possibly be released as early as May 2016. See id. at 29.
Father testified that after he is released from prison, he plans to live at his
mother’s house and obtain a job from a friend at a crab shop. See id. at 32.
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The trial court concluded the Agency met its burden to terminate
Father’s parental rights. See Trial Court Opinion, 2/10/16, at 6. The trial
court noted Father has spent most of Child’s life in prison due to six
probation/parole violations and two prison misconducts, which have all
lengthened his prison term. See id. at 6. Although Father expressed his
intent to parent and desire to work on his child permanency plan
immediately upon release, the trial court concluded Father’s actual actions
have not served to carry out his intent to parent or his intent to accomplish
his child permanency plan. See id. at 7. The trial court recognized that while
prison makes it difficult for Father to comply with his child permanency plan,
Father’s two prison infractions not only removed him from a plan related
program but also increased his prison term, thereby delaying his ability to
parent Child. See id.
Due to the lack of evidence, the trial court was not persuaded by
Father’s argument that, if Child was born prior to the date of his most recent
drug offense, he would have not committed the crime. See id. at 7-8. The
trial court reasoned that, even after he knew of her existence, Father was
not able to impose self-discipline or good judgement to remain out of prison
and be available to Child. See id. at 8. Moreover, the trial court found that,
even if Father is released sometime in 2016, Child’s immediate need for
permanency in her life would be on hold as it will take Father several months
to complete his child permanency plan, and there is no guarantee that
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Father will actually follow through with his child permanency plan, based on
his history. See id. at 9.
We conclude Father’s arguments regarding subsection (a)(2)
essentially seek for this Court to make credibility and weight determinations
different from those of the trial court. This we cannot do.
Although Father may love Child and desire an opportunity to serve as
Child’s father, a parent’s own feelings of love and affection for a child, alone,
will not preclude termination of parental rights. See In re Z.P., 994 A.2d
1108, 1121 (Pa. Super. 2010). A child’s life “simply cannot be put on hold in
the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” In Re Z.S.W., 946 A.2d 726, 732 (Pa. Super.
2008) (citations omitted). Rather, 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 parental care. See In re
Z.P., 994 A.2d at 1120.
We find the competent evidence in the record supports termination of
Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) in that
Father’s repeated and continued incapacity, abuse, neglect, or refusal due to
six probation/parole violations and two prison misconducts has caused Child
to be without essential parental care, control, or subsistence necessary for
her physical or mental well-being. In addition, the causes of Father’s
incapacity, neglect, or refusal cannot or will not be remedied in that there is
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no record evidence related to when Father will be able to provide essential
parental care to Child. Thus, the trial court did not abuse its discretion in
terminating Father’s parental rights under section 2511(a)(2).
Next, despite raising a § 2511(b) claim in his concise statement,
Father failed to preserve this claim in his statement of questions involved
portion of his brief on appeal, thereby waiving this issue. See Krebs, 893
A.2d at 797. Additionally, Father has waived this issue for failure to discuss
§ 2511(b) in his brief. See Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa.
Super. 2006). See also Pa.R.A.P. 2119. We, therefore, find that Father
waived any challenge to the involuntary termination of his parental rights
under § 2511(b).
Even if Father had preserved this issue we would find that the trial
court committed no abuse of discretion.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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Here, Zuver stated that Child was currently in a resource home with
her older Half-Sister. See N.T., 1/4/16, at 14. Zuver stated that both
children are thriving at the resource home. See id. at 15. Zuver testified
that Child has learned to crawl and is currently learning to walk at the
resource home. See id. at 14. Zuver stated that Child has a significant bond
with Half-Sister, and Child’s face lights up when she sees and hears Half-
Sister enter the room. See id. at 14-15. Zuver also testified that Half-Sister
is very protective of Child. See id. Zuver opined that it was in the best
interest of Child to terminate Father’s parental rights so that she may be
adopted and have a stable permanent home. See id. at 14. Zuver believes
that prolonging Child’s foster care and not allowing her stability and
permanency in her life would cause her more harm than termination of
Father’s parental rights. See id.
The trial court found that Father’s assertion that Child, a fifteen-
month-old, is not affected or harmed by the absence of Father in her life,
affirms Child has absolutely no bond with him, does not miss him, and
believes herself to be a child of the resource home as she is unaware of his
existence. See Trial Court Opinion, 2/10/16 at 9-10. The trial court found
Father acted volitionally in a way to prolong his prison experience and his
time away from Child, and is without a reliable history that would lead the
court to accept his intentions to comply with his child permanency plan. See
id. at 10. The trial court determined that Father’s reentry into her life at this
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late stage would have a negative developmental, physical and emotional
effect on Child. See id. The trial court opined that Father’s letters to the
Agency and his future intentions to parent cannot be a reason to prolong
Child’s time in placement, only to be removed from her adoptive family and
her Half-Sister in order to live with a complete stranger. See id. The trial
court found Child has developed a meaningful bond with her Half-Sister and
considers her resource parents to be her parents. See id. at 11. The trial
court opined that Child is thriving at her respective home and there is no
support Father will ever be available to parent her as his parental capacity is
unknown at the time. See id. The trial court concluded that the best interest
of Child will be served by remaining with her resource parents and Half-
Sister, as she does not know Father and there is no bond between them.
See id.
Upon review, there is no evidence of a bond of any nature between
Father and Child. It was eminently reasonable for the trial court to conclude
that no bond exists between them. Based on the foregoing testimonial
evidence and the relevant case law, we discern no abuse of discretion or
legal error by the trial court in concluding that terminating Father’s parental
rights will serve the developmental, physical, and emotional needs and
welfare of Child.
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Accordingly, because we conclude that the trial court did not abuse its
discretion by involuntarily terminating Father’s parental rights pursuant to §
2511(a)(2) and (b), we affirm the decree of the trial court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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In Re: N.M.D. Appeal of: E.S.
Combined Opinion