In Re: J.F.K., Appeal of E.F., father

J-S86043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.F.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: E.F., NATURAL FATHER : No. 1153 WDA 2016

Appeal from the Order Entered June 22, 2016
In the Court of Common Pleas of Jefferson County
Orphans’ Court at No(s): 20A-2016 O.C.

IN RE: B.R.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: E.F., NATURAL FATHER : No. 1154 WDA 2016

Appeal from the Order Entered June 22, 2016
In the Court of Common Pleas of Jefferson County
Orphans’ Court at No(s): 21A-2016 O.C.

IN RE: K.J.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: E.F., NATURAL FATHER : No. 1155 WDA 2016

Appeal from the Order Entered June 22, 2016
In the Court of Common Pleas of Jefferson County
Orphans’ Court at No(s): 22A-2016 O.C.

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 02, 2016

Appellant, E.F. (“Father”), appeals from the order entered in the

_____________________________

*Former Justice specially assigned to the Superior Court.
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Jefferson County Court of Common Pleas Orphans’ Court, which involuntarily

terminated his parental rights to his minor children, J.F.K., B.R.K., and

K.J.K. (“Children”). Upon a thorough review of the record, we affirm.

In its opinion, the Orphans’ court fully and correctly sets forth the

relevant facts of this case. Therefore, we have no reason to restate them.

Procedurally, on April 11, 2016, Jefferson County Children and Youth

Services (“CYS”) filed a petition for involuntary termination of Father’s and

Mother’s parental rights to Children. The parties proceeded to a termination

hearing on June 8, 2016, where Mother voluntarily relinquished her parental

rights. CYS then presented the testimony of Dr. Allen Ryen, a licensed

psychologist, who performed a bonding assessment with Children and Father

in March 2016. Dr. Ryen stated that Father exhibited some good parenting

skills; however, Dr. Ryen opined that a primary bond did not exist between

Father and Children. Dr. Ryen also expressed concern with Children’s

negative behavioral reactions after Father’s visits. CYS next presented the

testimony of Danielle Smith, the Children’s CYS caseworker. Ms. Smith

testified that Father had visited J.F.K. and B.R.K. nine times since the court

adjudicated the Children dependent in April 2014. Ms. Smith also stated

Father had visited K.J.K. even less frequently during the same period

because K.J.K. resides in a residential treatment facility. Ms. Smith further

explained that Father had not obtained stable housing or demonstrated his

ability to handle the needs of Children. Ms. Smith testified that Children

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were in placement with prospective adoptive families. Ms. Smith ultimately

opined that grounds for termination of Father’s parental rights existed under

23 Pa.C.S.A. §§ 2511(a)(1) and 2511(a)(2), and termination was in the best

interests of Children pursuant to 23 Pa.C.S.A. § 2511(b). Father testified on

his own behalf at the hearing. Father expressed his love and desire to

regain custody of Children. Father also explained that he had recently

obtained stable employment and continued to look for a stable housing

option. At the conclusion of the hearing, the court took the matter under

advisement.

On June 22, 2016, the court terminated Father’s parental rights to

Children. On July 5, 2016, Father filed a motion for reconsideration, in light

of the fact that both J.F.K. and B.R.K.’s foster parents had withdrawn as

prospective adoptive families. The court denied Father’s motion on July 7,

2016. On July 21, 2016, Father timely filed a notice of appeal and concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i).

Father raises the following issues for our review:

WHETHER THE [ORPHANS’] COURT COMMITTED AN ERROR
AND/OR ABUSE OF DISCRETION IN TERMINATING
FATHER’S PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.A.
§ 2511(A)(1) WHEN FATHER TOOK AFFIRMATIVE ACTION
TO ASSERT PARENTAL RIGHTS BY RELOCATING FROM
LOUISIANA TO PENNSYLVANIA, WHEN HE MADE ALL
POSSIBLE SCHEDULED VISITATION WITH HIS CHILDREN,
AND WHEN HE DEMONSTRATED A SERIOUS INTENT TO
REESTABLISH AND CONTINUE THE PARENT-CHILD
RELATIONSHIP[?]

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WHETHER THE [ORPHANS’] COURT COMMITTED AN ERROR
AND/OR ABUSE OF DISCRETION IN TERMINATING
FATHER’S PARENTAL RIGHTS UNDER 23 PA.C.S.A. §
2511(A)(2) WHEN [CYS] FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT FATHER CANNOT REMEDY
ANY CURRENT PARENTAL INCAPACITY[?]

WHETHER THE [ORPHANS’] COURT COMMITTED AN ERROR
AND/OR ABUSE OF DISCRETION IN FINDING THAT THE
TERMINATION OF FATHER’S RIGHTS WAS IN THE BEST
INTEREST OF THE DEVELOPMENTAL, PHYSICAL, AND
EMOTIONAL NEEDS AND WELFARE OF THE [CHILDREN?]

(Father’s Brief at 3-4).

The standard and scope of review applicable in a termination of

parental rights case is as follows:

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 it 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.

Furthermore, we note that the trial court, as the finder of
fact, is the sole determiner of the credibility of witnesses
and all conflicts in testimony are to be resolved by [the]
finder of fact. The burden of proof is on the party seeking
termination to establish by clear and convincing evidence
the existence of grounds for doing so.

The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.

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We may uphold a termination decision if any proper basis
exists for the result reached. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result.

In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal

denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted).

See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super.

2008) (en banc).

DHS sought the involuntary termination of Father’s parental rights on

the following grounds:

§ 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:

(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.

(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

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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(a)(1), (2), and (b).

“Parental rights may be involuntarily terminated where any one

subsection of Section 2511(a) is satisfied, along with consideration of the

subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1117

(Pa.Super. 2010).

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…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) (internal citations omitted).

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,

Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to

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perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.

Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his…conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted). Regarding the six-month period prior to filing the termination

petition:

[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his…parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

718, 872 A.2d 1200 (2005).

The grounds for termination of parental rights under Section

2511(a)(2), 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 (Pa.Super. 2002). “Parents are required to make

diligent efforts towards the reasonably prompt assumption of full parental

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responsibilities.” Id. at 340. The fundamental test in termination of

parental rights under Section 2511(a)(2) was long ago stated in the case of

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania

Supreme Court announced that under what is now Section 2511(a)(2), “the

petitioner for involuntary termination must prove (1) repeated and continued

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse,

neglect or refusal caused the child to be without essential parental care,

control or subsistence; and (3) that the causes of the incapacity, abuse,

neglect or refusal cannot or will not be remedied.” In Interest of Lilley,

719 A.2d 327, 330 (Pa.Super. 1998).

Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond,

paying close attention to the effect on the child of permanently severing the

bond.” Id. at 520. Significantly:

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. When conducting a bonding
analysis, the court is not required to use expert testimony.
Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a
formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

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“The statute permitting the termination of parental rights outlines

certain irreducible minimum requirements of care that parents must provide

for their children, and a parent who cannot or will not meet the requirements

within a reasonable time following intervention by the state, may properly be

considered unfit and have his…parental rights terminated.” In re B.L.L.,

787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this court has held that the parental obligation
is a positive duty which requires affirmative performance.

This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.

Because a child needs more than a benefactor, parental
duty requires that a parent exert [himself] to take and
maintain a place of importance in the child’s life.

Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his…ability, even in difficult circumstances.
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with [the child’s] physical
and emotional needs.

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic

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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 his…potential in a permanent, healthy,

safe environment.” Id. at 856.

Importantly, neither Section 2511(a) nor Section 2511(b) requires a

court to consider at the termination stage, whether an agency provided a

parent with reasonable efforts aimed at reunifying the parent with his

children prior to the agency petitioning for termination of parental rights. In

re D.C.D., 629 Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure

to provide reasonable efforts to a parent does not prohibit the court from

granting a petition to terminate parental rights under Section 2511. Id. at

346, 105 A.3d at 675.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable John Henry

Foradora, we conclude Father’s issues on appeal merit no relief. The

Orphans’ court opinion comprehensively discusses and properly disposes of

the questions presented. (See Orphans’ Court Opinion, filed June 22, 2016,

at 5-9) (finding: between April 14, 2014 and April 11, 2016, Father saw

J.F.K. and B.R.K. only nine times, once in June 2015, and eight times

between January 2016 and March 2016; Father saw K.J.K. even less during

this period due to K.J.K.’s placement in residential treatment facility;

significantly, Father declined to visit K.J.K. at residential treatment facility;

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Father’s decision to forego visits with K.J.K., despite availability and offers of

transportation assistance from CYS, demonstrated Father’s lack of fortitude

to put K.J.K.’s needs ahead of his own; while Father did take advantage of

visits with J.F.K. and B.R.K., these visits do not evidence Father’s willingness

and ability to perform parental duties because visits did not require Father to

make any real effort to spend time with Children; similarly, Father’s decision

to relocate from Louisiana to Pennsylvania does not weigh in Father’s favor;

Father made decision to move without preparation and without employment

or housing arrangements in place; in fact, Father’s move served only to

exacerbate instability that had led to denial of Father’s two previous

Interstate Compact on Placement of Children (“ICPC”) requests; after almost

six months in Pennsylvania, Father continues to live in shelter, has recently

obtained part-time employment, and does not have identifiable plan to

achieve reunification with Children; Father has known unstable housing and

employment are obstacles to reunification for significant period of time;

nevertheless, Father has repeatedly failed to rectify any of these concerns;

Father has continually taken path of least resistance in parenting Children,

as exhibited by Father’s failure to protect his custody rights when Mother

moved to Pennsylvania in 2012, do anything to remove Children from

violence between Mother and stepfather, and exert himself to change

Children’s circumstances, despite their placement in foster care for twenty

months; notwithstanding his own failures, Father blames foster care for

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Children’s behavioral problems; under these circumstances, termination is

warranted under Section 2511(a)(1) and (a)(2) due to unlikelihood that

Father will remedy causes of parental incapacity within reasonable period of

time; moreover, termination of Father’s parental rights will serve best

interests of Children; J.F.K. and B.R.K. live with foster parents who meet

their needs and intend to confirm love and commitment to J.F.K. and B.R.K.

through adoption; both J.F.K. and B.R.K. have expressed desire for

permanent homes with people they know as “Mom” and Dad”; while K.J.K.’s

preferences are less clear, she has foster family who cares for her and

intends to welcome her back upon discharge from residential treatment

facility; Father’s reintroduction in Children’s lives has only intensified

Children’s behavioral issues; in fact, Children’s behavioral issues improved

after court discontinued Father’s visits in March 2016; termination of

Father’s parental rights will not destroy important emotional bond between

Father and Children; Dr. Ryen testified that bond between Father and

Children is weak at best, while Children have identifiable bonds with foster

parents; termination of Father’s parental rights will serve to ensure

permanency of Children’s bonds with their foster parents; because CYS

demonstrated by clear and convincing evidence that termination is

appropriate pursuant to 2511(a)(1) and (a)(2), and is in best interests of

Children under 2511(b), court properly terminated Father’s parental rights).

With respect to these issues, we affirm on the basis of the Orphans’ court

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opinion.

To the extent Father claims the court erred when it denied his motion

for reconsideration in light of the withdrawal of J.F.K. and B.R.K.’s foster

families as prospective adoptive parents, Father failed to separately identify

this issue in his Rule 1925(a)(2)(i) statement. See Commonwealth v.

Johnson, 51 A.3d 237 (Pa.Super. 2012), appeal denied, 619 Pa. 701, 63

A.3d 1245 (2013) (explaining failure to specify issues raised on appeal in

Rule 1925(b) statement constitutes waiver for purposes of review). Thus,

Father’s challenge to the court’s denial of his motion for reconsideration is

arguably waived.

Moreover, the Orphans’ court explained its denial of Father’s motion

for reconsideration as follows:

Ms. Smith did indeed testify at the most recent
permanency review hearing that [J.F.K. and B.R.K.’s foster
families] had withdrawn as [J.F.K.] and [B.R.K.’s]
prospective adoptive parents. That development, though
unfortunate, does not change the [c]ourt’s conclusion that
termination of Father’s parental rights is in [the Children’s]
best interests. As the testimony indicated, the [Children’s]
contact with Father was actually a detriment to their
emotion well-being, which is why the [c]ourt terminated
visitation over three months ago.

Will the [c]ourt’s decision leave the [C]hildren without an
immediate plan for a permanent home? Unless [J.F.K. and
B.R.K.’s foster families] again change their minds, the
answer is yes. As things stand, though, permanency with
Father is also a distant prospect. Given his mottled work
history, it is still too early to call a few months with
Walmart “stable employment,” while [Father] frankly
admits that he does not yet have an appropriate residence.

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In addition, the [C]hildren barely know Father. They were
all very young when Mother moved to Pennsylvania, and
since then, [J.F.K.] and [B.R.K.] have only spent about 12
hours with him, [K.J.K] even less, and that includes the
time all four were together for Dr. Ryen’s bonding
assessment. Thus, Father’s concern that it would take
time for [C]hildren to form relationships with “effective
strangers” even if CYS identified new prospective adoptive
parents in the near future rings hollow, as he, too, falls
within that category.

Furthermore, [the decision of J.F.K. and B.R.K.’s foster
families] not to adopt does not suddenly qualify Father to
raise three children with varied behavioral and disciplinary
problems. As the [c]ourt previously observed, [Father]
does not demonstrate a realistic perception of what may
have precipitated [Children’s] issues, let alone the capacity
to appropriately deal with them, and his averred
willingness to “get training” in that regard is no guarantee
from a man who is still homeless after nearly seven
months in [Pennsylvania].

In short, Father’s parental deficiencies and his [Children’s]
unfavorable reactions to his reintroduction into their lives
leads the [c]ourt to believe that [K.J.K.], [J.F.K.], and
[B.R.K.’s] needs and welfare will be best served by
terminating Father’s parental rights and making them
available for adoption, even if that result is not
immediately foreseeable.

(Opinion in Support of Denial of Father’s Motion for Reconsideration, filed

July 7, 2016, at 1-2). The record supports the court’s sound reasoning.

Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016

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