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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.R.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.J.T. A/K/A J.C., :
FATHER :
:
:
:
: No. 1376 EDA 2016
Appeal from the Order April 1, 2016
In the Court of Common Pleas of Bucks County
Orphans’ Court at No(s): No. 2015-9103
BEFORE: BOWES, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 16, 2016
R.J.T. (“Father”), appeals from the decree entered April 1, 2016, in the
Court of Common Pleas of Bucks County, which involuntarily terminated his
parental rights to his daughter K.R.T. (“Child”), born in March of 2011.1 We
affirm.
Child was informally in the care of her paternal great-grandparents
from August 29, 2013 until Child was adjudicated dependent and came into
the temporary physical and legal care of the Bucks County Children and
Youth Social Services Agency (“CYS”) on November 1, 2013. At the time
Child was adjudicated dependent, Father was homeless and using heroin.
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1
The trial court also terminated the parental rights of L.E.B.
(“Mother”) on the same date. Mother has not filed an appeal and is not a
party to the instant appeal.
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On March 20, 2015, Child’s permanency goal was changed to adoption. On
August 31, 2015, CYS filed a petition to involuntarily terminate Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8).2
On March 30, 2016, the trial court held a hearing on the termination
petition. At the hearing, the trial court heard testimony from Father, via
telephone, and Shawn Rush, a CYS Intensive Services Worker. On April 1,
2016, the trial court entered a decree involuntarily terminating Father’s
parental rights to Child.
On April 28, 2016, Father timely filed a notice of appeal, together with
a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
Father raises two questions on appeal:
A. Was the Lower Court’s Decree based on insufficient evidence and
should [Father’s] parental rights not have been terminated[?]
B. Was [Father’s] incarceration wrongfully used against [Father] in
making the determination to terminate his parental rights[?]
Father’s Br. at 4.
We consider Father’s issues mindful of our well-settled standard of
review.
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2
The trial court opinion notes that, although the trial court docket
reflects that CYS filed the petition on September 2, 2015, that appears to be
the date the petition was internally electronically scanned following the
August 31, 2015 filing. Opinion, 5/25/2016, at 1 n.3 (“1925(a) Op.”).
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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 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, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis. We have stated:
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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). The
burden is upon the petitioner “to prove by clear and convincing evidence
that the asserted statutory grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). This
Court need only agree with the trial court’s determination under any one
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subsection of section 2511(a), along with section 2511(b), in order to affirm
the termination of parental rights. In re B.L.W., 843 A.2d 380, 384
(Pa.Super. 2004) (en banc).
We conclude that the trial court in this case properly terminated
Father’s parental rights pursuant to 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).
To terminate parental rights pursuant to section 2511(a)(2), the
moving party must produce clear and convincing evidence regarding the
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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 refusal cannot or will not be remedied.” In re Adoption of
M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003).
Our Supreme Court has instructed 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 care, control or
subsistence” and the length of the remaining confinement
can be considered as highly relevant to whether “the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent,”
sufficient to provide grounds for termination pursuant to
23 [Pa.C.S.] § 2511(a)(2). [See In re: E.A.P., 944 A.2d
79, 85 (Pa. Super. 2008)] (holding termination under §
2511(a)(2) supported by mother’s repeated incarcerations
and failure to be present for child, which caused child to be
without essential care and subsistence for most of her life
and which cannot be remedied despite mother’s
compliance with various prison programs).
In re Adoption of S.P., 47 A.3d 817, 830 (Pa. 2012) (some internal
citations omitted).3
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3
Further, the Supreme Court stated that:
If a court finds grounds for termination under subsection
(a)(2), a court must determine whether termination is in
the best interests of the child, considering the
developmental, physical, and emotional needs and welfare
of the child pursuant to § 2511(b). In this regard, trial
(Footnote Continued Next Page)
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Father argues that the trial court terminated his parental rights based
on insufficient evidence. Father’s Br. at 7.4 Father contends that, though he
has been incarcerated for most of the time since CYS filed its petition, he
has continued to maintain a relationship with Child, despite the fact that CYS
has done nothing to promote reunification. Id. Father further argues that
CYS filed the petition to terminate his parental rights while he was
incarcerated, and CYS failed to meet its burden of proof as to an
incarcerated parent. Id. We disagree.
We find the following portion of the trial court’s opinion relevant to our
inquiry with regard to section 2511(a)(2):
Father, now thirty (30) years of age, is presently
incarcerated in Lehigh County Prison and testified at the
hearing via telephone regarding his recent history of
arrests and incarceration, as follows: In November 2013,
when Child came under the care of the Agency, Father was
living on the streets with no housing of his own, and he
was abusing heroin. He was imprisoned in the summer of
2014 on charges of trespassing, and remained
incarcerated for six (6) months, after which he was
released to a recovery house in Philadelphia. However,
Father incurred a parole violation for drug use and was
_______________________
(Footnote Continued)
courts must carefully review the individual circumstances
for every child to determine, inter alia, how a parent’s
incarceration will factor into an assessment of the child’s
best interest.
In re Adoption of S.P., 47 A.3d at 830-31.
4
As both of Father’s questions on appeal arise out of section 2511(a),
and can be addressed under subsection 2511(a)(2), we will address them
together.
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again imprisoned, for two (2) months, in Lehigh County.
He was paroled on December 18, 2014, and returned to
the recovery house, where he remained clean from
substance abuse for six (6) weeks.
On January 23, 2015, Father was arrested again. Due
to the successive violations, Father's parole was revoked
and he was sentenced to serve his back time in Lehigh
County. After he was released on March 16, 2015, Father
testified that he was living on the streets and initially
avoided substance abuse. On July 31, 2015, however, he
was once again arrested in Bucks County, with criminal
charges of defiant trespass, false identification and
disorderly conduct. He received a sentence of twelve (12)
months probation. Since these criminal charges
constituted a violation of his Lehigh County parole, he was
again imprisoned in Lehigh County on January 22, 2016,
and ordered to serve one-half (1/2) of the balance of his
Lehigh County sentence.
Father’s earliest parole release date is currently August
26, 2016. Father testified that he hopes to be released,
once again, to a recovery house for a period of thirty (30)
days. After the 30 day period, he intends to move into his
father's home and be ready to parent Child at that time.
Father’s own father was not present at the hearing, and
did not offer testimony in support of his son’s
representation that he would be a resource for Father’s
housing and/or other support. Additionally, Father offered
no testimony as to his plans as to how he would acquire
income or remain drug-free.
1925(a) Op. at 5-6.
Additionally, Father testified on direct examination:
Q. Is there anything else you want to tell the judge?
A. I mean, yeah. I just – I mean, I know I made bad
choices, you know. I just – I just, at the time I know I had
plenty of chances. At the time I was still in active
addiction. I wish I would have taken it more seriously
then.
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I’ve been incarcerated. I’ve been clean now for almost
8 ½ months now. I’ve been in this program here. It’s
proved – it’s NA and AA all day long. Like I was clean for a
bit, like I said, last time I got out and it felt good. It felt
great. I was getting what I needed done.
I know what I need to do and I want to do it. I don’t
want to lose my daughter. I wish I could have one more
chance. I don’t know if it’s possible. I know she needs
stability. I’m asking for one more chance.
N.T., 3/30/16, at 25-26.
Shawn Rush of CYS testified that he had serious conversations with
Father regarding the importance of permanency for Child. Id. at 29-30. Mr.
Rush further testified that Father had one visit with Child after the March 20,
2015 goal change, but that shortly after that visit Father dropped out of
contact, relapsed, and left the recovery house. Id. at 31. Mr. Rush stated
that the March 2015 visit was the only visit Father had with Child when he
was not incarcerated. Id. at 32. Mr. Rush continued:
Q. So [as] 2015 continues on you told him that the
Agency was thinking about filing [a petition to involuntarily
terminate Father’s parental rights] in this case, and
eventually the Agency did file.
A. Yes.
Q. Were you still talking to him?
A. Yes.
Q. Did you still tell him that he needed to get things
together?
A. Yes.
Q. Did you tell him that the child couldn’t remain in limbo
forever?
A. Yes.
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Q. He appear to understand that?
A. Yes.
Id. at 32-33.
This Court has stated that a parent is “required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.”
In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). Further, “[t]he 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.” Id.
at 337 “[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.” Id. at 340.5 Instantly,
the evidence establishes that Child was removed from Father’s care because
Father was living on the streets with no housing of his own, and he was
abusing heroin. Rule 1925(a) Op. at 5. Further, Father’s pattern of
incarceration and relapse into heroin use supports a conclusion that Father’s
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5
This Court stated in In re Z.S.W., 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) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super.
2003)). Rather, “a parent’s basic constitutional right to the custody and
rearing of his child is converted, upon the failure to fulfill his or her parental
duties, to the child’s right to have proper parenting and fulfillment of his or
her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa.Super. 2004).
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continued incapacity, abuse, neglect or refusal to parent could not or would
not be remedied.6
We find that the trial court’s credibility and weight determinations are
supported by competent evidence in the record. See In re M.G., 855 A.2d
68, 73-74 (Pa.Super. 2004). Accordingly, we find that the trial court’s
determinations regarding Section 2511(a)(2) are supported by sufficient,
competent evidence in the record.
Next, although Father does not discuss Section 2511(b) in the
argument section of his brief, we will nonetheless consider this issue. See
In re C.L.G., 956 A.2d 999, 1010 (Pa.Super. 2008) (en banc) (considering
section 2511(b) despite the appellant’s failure to challenge the trial court’s
analysis). Once a trial court determines termination is proper pursuant to
section 2511(a), the trial court must also consider how terminating Father’s
parental rights would affect the needs and welfare of Child pursuant to 23
Pa.C.S. § 2511(b). Pursuant to section 2511(b), the trial court is to consider
“whether termination of parental rights would best serve the developmental,
physical and emotional needs and welfare of the child.” See In re C.M.S.,
884 A.2d 1284, 1286 (Pa.Super. 2005). “Intangibles such as love, comfort,
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6
Father has visits with Child while incarcerated and testified that he
wrote Child letters and sent pictures. N.T., 3/30/16, at 25. The trial court,
however, considered all the evidence presented and did not abuse its
discretion in finding grounds to terminate Father’s parental rights under
section 2511(a).
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security, and stability are involved in the inquiry into the needs and welfare
of the child.” Id. at 1287 (citation omitted). Further, 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.
(citation omitted). However, “[i]n cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-
763 (Pa.Super. 2008) (citation omitted).
Here, the trial court found that:
Mr. Rush testified that Child, who is now five (5) years
old, has been placed in five (5) different foster care
placements since she came into the care of the Agency on
November 1, 2013. Despite the initial instability of Child’s
placements, she has been with her current foster family
since November 28, 2014. Testimony revealed that Child
exhibits some emotional and behavioral issues, that Child
receives wrap-around services, and that Child’s speech is
slightly delayed. Child lives with two (2) older foster care
siblings in the foster home, with whom Child has bonded.
She is involved, loved and accepted in the foster family.
Mr. Rush testified that the foster parents, who have not
wavered in their commitment to Child, have expressed an
interest in adopting Child.
Furthermore, Father also testified that he is aware that
Child is being well cared-for by the foster family, and that
he has been provided photographs of Child.
Based on the above, we found the evidence of Child's
substantial bond with the foster family to be clear and
convincing.
1925(a) Op. at 8-9. The trial court further found:
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The record reveals absence of a significant relationship
between Father and Child, the existence of which would
result in a negative effect on Child should Father’s rights
be terminated. The record contains clear and convincing
evidence that Father, now and for the reasonably
foreseeable future, is not and will not be capable of
adequately parenting Child. . . Although we do not doubt
that Father loves [Child], when his repeated failure to
remedy his parental incapacity is balanced against Child’s
need for permanence and stability, this Court is
constrained to conclude that it would not be in Child’s best
interest for her life to remain on hold indefinitely. . .
Rule 1925(a) Op. at 9.
The trial court’s conclusions are supported by the record. Shawn Rush
testified that Child has been living in her current foster home since
November 28, 2014. N.T., 3/30/16, at 37. Mr. Rush observed that the
foster parents are very affectionate with Child, and Child is affectionate with
the foster parents. Id. at 38. Mr. Rush stated that the foster parents are
“able to manage [Child] very well with love, with structure, with support.”
Id. at 38-39.
Further, our review of the record supports the trial court’s conclusion
that Father and Child had no significant relationship. Mr. Rush testified that
when Child began visits with Father, Father was “like a virtual stranger” to
Child, and that later on, Child asked “Do I have to visit with Daddy
[Father]?” Id. at 57. We have stated, “[i]n cases where there is no
evidence of any bond between the 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).
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We find that the competent evidence in the record supports the trial
court’s determination that there was no bond between Father and Child
which, if severed, would be detrimental to Child, and that the termination of
Father’s parental rights would best serve the needs and welfare of Child.
Thus, we will not disturb the trial court’s determinations. See In re M.G.,
855 A.2d at 73-74.
Accordingly, we affirm the decree terminating Father’s parental rights
on the basis of section 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
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