In Re: Adoption of Z.Y.S., a Minor

J-S87018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: Z.Y.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: M.S.U., FATHER

No. 1120 MDA 2016

Appeal from the Order Entered June 1, 2016
In the Court of Common Pleas of Lackawanna County
Orphans' Court at No(s): A-89 of 2015

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 16, 2016

M.S.U. (“Father”) appeals from the June 1, 2016 order that

involuntarily terminated his parental rights to his daughter, Z.Y.S. (“the

Child”). Upon careful review, we affirm.

The Child was born in March 2010 and is Father’s second child. N.T.,

4/18/16, at 17, 29-30. Father’s other child, K.U., was born two months

earlier, in January 2010. Father retains his parental rights with respect to

K.U.

Shortly after the Child’s birth, Father was incarcerated in Lackawanna

County Prison for possession with intent to deliver, simple assault, and

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-S87018-16

driving under the influence. In May 2011, he was transferred to SCI

Smithfield. N.T., 4/18/16, at 16-17.

In January 2014, the Lackawanna County Office of Youth and Family

Services (“OYFS”) received a phone call from the Child’s mother, K.S.

(“Mother”), stating that she might hurt herself or the Child. N.T., 1/12/16,

at 12. Mother was taken to Scranton Counseling Center, then to Community

Medical Center – Geisinger,1 and finally to another Geisinger facility in

Wilkes-Barre, where she was admitted to the Crisis Unit.

On March 17, 2014, OYFS located Father at SCI Smithfield. N.T.,

1/12/16, at 9, 21, 65-66. OYFS sent him a letter on that date, informing

him that the agency had opened a case involving the Child. On June 25,

2014, the Child was placed in foster care.

On July 2, 2014, OYFS called SCI Smithfield to inform Father that a

dependency hearing was scheduled for the Child on July 7, 2014;2 the record

is unclear as to whether OYFS was able to speak with Father before July 7,

2014. Pet. for Involuntary Termination, dated 12/9/15, at 1; N.T., 1/12/16,

at 21. On July 7, 2014, the Child was adjudicated dependent.

On July 18, 2014, OYFS called SCI Smithfield again and asked to

speak with Father's counselor. N.T., 1/12/16, at 21. OYFS was told to call

____________________________________________

1
Geisinger is a health system in Northeastern and Central Pennsylvania.
2
Lackawanna County Juvenile Court Docket Number CP 35 DP 110-2014.

-2-
J-S87018-16

back the following Monday. Id. On July 21, 2014, OYFS called SCI

Smithfield for the third time and was informed that Father was being paroled

that day to Philadelphia Diagnostic and Rehabilitation Center at Gaudenzia

(“Gaudenzia”). Id.

On August 5, 2014, OYFS called Gaudenzia but was not able to speak

with anyone regarding Father. N.T., 1/12/16, at 21. Later that same day,

OYFS mailed a copy of a permanency plan via regular and certified mail to

Father at Gaudenzia. Id. OYFS was eventually able speak with an

employee of Gaudenzia, but he was unable to confirm whether Father was in

the facility. Finally, on August 5, 2016, Father returned OYFS’ call and was

informed that a “Family Team Conference” was scheduled for August 7,

2014; Father participated in the conference by telephone. Id. at 22.

On August 29, 2014, OYFS again spoke with Father. N.T., 1/12/16, at

22. Father stated that he would be submitting a home plan for approval by

September 18, 2014, and that if the plan was approved, Father would be

moving back to Lackawanna County. Id.3 The caseworker inquired about

____________________________________________

3
The term “home plan” is never defined in the record, but this Court infers
that all parties understood this term to mean a plan for Father’s living
arrangements after his release from incarceration and from any halfway
house, possibly where the Child could visit or live with him.

-3-
J-S87018-16

scheduling visits between Father and the Child when he returned. Id.4

OYFS sought to schedule such visits to establish a relationship between

Father and the Child. Id. at 26-27.

In October 2014, Father was discharged from Gaudenzia because he

did not complete certain requirements of Gaudenzia’s rehabilitation program.

He moved to a halfway house. N.T., 1/12/16, at 22. OYFS was unable to

schedule any visits between Father and the Child at that time because

Father had not yet completed a treatment program. Id. at 23.

A visit between Father and the Child eventually occurred on December

1, 2014. N.T., 1/12/16, at 24. Prior to this visit, Father had only met the

Child once when the Child was a newborn in the hospital. Id. at 77; N.T.,

4/18/16, at 17. A second visit occurred on January 26, 2015. N.T.,

1/12/16, at 24. Both visits reportedly went well, and each visit was between

one hour and ninety minutes long. Id. at 24, 77. The visits then stopped

because Father advised the caseworker that he obtained employment and

was working full time during the week. Id. OYFS made weekend

appointments available to Father, but Father never scheduled any weekend

visits. Id.

____________________________________________

4
There is nothing in the record of the results of these discussions; it is
unclear whether any visits were scheduled, although none appear to have
occurred. See N.T., 1/12/16, at 22.

-4-
J-S87018-16

OYFS then lost contact with Father. On March 25, 2015, OYFS e-

mailed Father's former counselor at Gaudenzia to see if the counselor had

Father’s current phone number, but OYFS did not receive a response. N.T.,

1/12/16, at 24. On March 30, 2015, OYFS called the counselor but received

no answer. Id. at 25. On April 3, 2015, OYFS called Gaudenzia again, but

again was unable to connect with the counselor. Id. At that point, OYFS

sent a letter via regular mail and another e-mail to the counselor. Id.5

According to later testimony of the Child’s OYFS case worker at that

time, Danielle Beahan:

At some point in April [2015,] I was informed by this counsellor
that [Father] was moved to a different facility. Allegedly his
room was raided. There was paraphernalia found. And he was
transferred to another facility.

It wasn’t until April 23rd, that I contacted Liberty
Management[6] to confirm that he was there, left a message for
his new counselor[.]

N.T., 1/12/16, at 25.

On June 3, 2015, OYFS was able to contact Father by phone, and

Father explained he was still preparing a home plan. N.T., 1/12/16, at 25.

After unsuccessful attempts to reach Father’s counselor at the detention

facility on June 5 and 17, 2015, an OYFS counselor reached Father’s
____________________________________________

5
The letter and e-mails are not in the record, and no summary of their
contents was provided.
6
According to the orphans’ court opinion, Liberty Management is a halfway
house. Orphans’ Court Opinion, 9/23/16, at 4.

-5-
J-S87018-16

counselor by phone on June 29, 2015, and was informed that visits between

Father and the Child could be scheduled only on weekends. Id. Ms. Beahan

testified that she “wasn’t able to bring [the Child] down there for a visit

during the week” because Ms. Beahan “couldn’t leave the county due to

medical reasons. And there wasn’t a visit set up for someone to transport

her down there.” Id. at 25-26. OYFS had no contact with Father from July

through November 2015, but Father called the Child’s foster parents once

during this time period to inquire about the Child. Id. at 86; N.T., 4/18/16,

at 32.

In November 2015, OYFS discovered that Father was incarcerated in

the Lackawanna County Prison. N.T., 1/12/16, at 86. When OYFS spoke to

Father, he stated that he had a home plan – specifically, a plan to rent a

single room in a home – and that he would be released soon. Id. at 87;

N.T., 4/18/16, at 41; Orphans’ Court Opinion, 9/23/16, at 9. However, a

counselor at the prison disputed Father’s statement that Father had a home

plan, N.T., 1/12/16, at 87, and OYFS later learned that, due to his lack of a

home plan, Father had been moved from the Lackawanna County Prison to

SCI Wernersville. Id. at 89. From July 2015 until commencement of the

termination of parental rights hearings in January 2016, Father had no

contact with the Child and never called OYFS to inquire about the Child, even

though he had access to a telephone. Id. at 86; N.T., 4/18/16, at 31.

-6-
J-S87018-16

On December 9, 2015, OYFS filed petitions seeking the involuntary

termination of both Father’s and Mother’s parental rights pursuant to the

Adoption Act, 23 Pa.C.S. § 2511(a)(1)-(2), (5), (8), (b). On January 12,

2016, and April 18, 2016, the orphans’ court held termination of parental

rights hearings. On the first date, Father was incarcerated at SCI

Wernersville and participated by phone. By the second hearing, Father had

again moved to a halfway house, and he participated in person. N.T.,

4/18/16, at 15.

During the hearings, the Child’s first OYFS caseworker, Ms. Beahan,

testified that Father was not a placement candidate due to his continued

incarceration. N.T., 1/12/16, at 26. Ms. Beahan explained that the only

objective in the permanency plan that OYFS developed for Father was to

establish a relationship with the Child. Id. at 26-27. She added that after

OYFS lost contact with him in the spring of 2015, Father did not

communicate with the agency. Id. at 80.

The Child’s then-current OYFS caseworker, Lisa Herie, testified that, as

late as November 2015, Father was still telling her that he had a home plan:

he was going to be moving to Monroe Avenue in Scranton; he also promised

her that he would talk to her again when he was released from Lackawanna

County Prison. N.T., 1/12/16, at 87. Ms. Herie further testified that the

Child is doing well with her foster parents, who are ready, willing, and able

-7-
J-S87018-16

to adopt the Child. Id. at 97. Ms. Herie had no concerns about the Child’s

placement and considers it a safe and appropriate setting. Id.

Following the conclusion of OYFS’s case-in-chief, the orphans’ court

granted Father’s demurrer with respect to the portions of OYFS’s petition

based on 23 Pa.C.S. § 2511(a)(5) and (8), because, at the time of the

Child’s removal from Mother’s home and placement in foster care in early

2014, the Child was not “removed from the care of [Father],” as required by

subsections (a)(5) and (a)(8). The uncontroverted evidence established that

Father was incarcerated at that time. See N.T., 4/18/16, at 10-14;

Orphans’ Ct. Op. at 10 (citing In re C.S., 761 A.2d 1197, 1200 & 1201 n.5

(Pa. Super. 2000) (termination under subsections 2511(a)(5) and (a)(8) is

not appropriate where the record reflects that the child was not in the

parent’s care – due to the parent’s incarceration – at the time that the child

was removed from his or her previous situation)).

Father testified on own his behalf. N.T., 4/18/16, at 15-52. He stated

that he “would like to have [the Child] by his side.” Id. at 29. During cross-

examination, Father admitted that he had never lived with the Child,

changed the Child’s diaper, taken care of the Child when she was sick, fed

the Child, or sent the Child a card or other correspondence directly or via

-8-
J-S87018-16

OYFS. N.T., 4/18/16, at 44, 48.7 Father also acknowledged that, although

he produced four home plans, none of them were ever approved. Id. at 44.

By an order signed on June 1, 2016, and filed on June 6, 2016, the

orphans’ court terminated Father’s parental rights to the Child pursuant to

Section 2511(a)(2)8 and (b). On July 6, 2016, Father filed this timely

appeal. Father presents two issues for our review:

A. Whether the TRIAL COURT erred as a matter of law and/or
manifestly abused its discretion in determining the AGENCY
sustained its burden of proving the termination of FATHER's
parental rights is warranted under Sections 2511(a)(1) and/or
2511(a)(2) of the Adoption Act?

B. Even if this Court concludes the AGENCY established
statutory grounds for the termination of FATHER's parental
rights, whether the TRIAL COURT nevertheless erred as a matter
of law and/or manifestly abused its discretion in determining the
AGENCY sustained its additional burden of proving the
termination of FATHER's parental rights is in the best interests of
the CHILD?

Father’s Brief at 5 (emphasis in original).

We consider Father’s issue mindful of our well-settled standard of

review.

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
____________________________________________

7
By the time of the hearing, the Child was six years old.
8
Although the orphans’ court recognized that OYFS had petitioned to
terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1) as
well, the court based its decision only on subsection (a)(2). Orphans’ Ct.
Op. at 8.

-9-
J-S87018-16

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. §§ 2511, which requires a bifurcated analysis:

Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). The

burden is on the petitioner seeking termination to prove by clear and

convincing evidence that the asserted statutory grounds for seeking the

termination of parental rights are met. In re R.N.J., 985 A.2d 273, 276

(Pa. Super. 2009).

- 10 -
J-S87018-16

The orphans’ court found that there was sufficient evidence to

terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and

(b) of the Adoption Act. Orphans’ Ct. Op. at 8. These provisions state:

(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.

Father argues that the evidence does not support termination under

Section 2511(a)(2), because —

The AGENCY failed to establish the statutory factors necessary to
terminate his parental rights pursuant to Section[] 2511(a)(2) of
the Adoption Act by clear and convincing evidence. . . .

The TRIAL COURT erred as a matter of law and/or manifestly
abused its discretion in determining the AGENCY sustained its
burden of proving the termination of FATHER’s parental rights is
warranted under Section[] 2511(a)(2) of the Adoption Act.

As this Court has explained:

"Judicial inquiry is to be centered on the best interest
of the children, rather than the fault of the parent,

- 11 -
J-S87018-16

but ONLY AFTER [Father’s] incapacity has been
proven by clear and convincing evidence."

In re Adoption of C.A.W., 683 A.2d 911, 917-918 (Pa.Super.
1996)(Emphasis Added)
...
To support termination under Section 2511(a)(2) of the Adoption
Act, the AGENCY is required to demonstrate the reasons for
placement cannot or will not be remedied by the parent. . . .
Applying the criteria of this Section of the Adoption Act to the
circumstances confronted by FATHER at the time of placement
of the CHILD, FATHER was incarcerated. [NT, (01/12/2016),
pp. 21, 65-66]

Although FATHER's formal home-plan had not been adopted as
of April of 2016, his access to CHILD was the only obstacle to
maintaining a relationship with CHILD similar to his relationship
with his other daughter, K.U., with whom he talks to every day
on the phone and visits whenever he gets a travel pass. [NT,
(04/18/2016), pp. 29-32]

Father’s Brief at 7-8, 13-14 (emphasis in original).

The record shows that OYFS began to provide services to the Child in

January 2014, at a time when Father’s location was unknown. N.T.,

1/12/16, at 12, 21, 65-66. OYFS was unable to locate Father until March

17, 2014, and was not able to communicate with him until August 2014. Id.

at 21, 65-66. In the meantime, on June 25, 2014, the Child was placed in

foster care. Id. at 9, 65. Thus, there was a span of eight months during

which the agency was involved with the Child and unable to locate and/or to

communicate with Father. After he was located, Father had only two

supervised visits with the Child, and they lasted only 60 to 90 minutes each.

Id. at 24, 77. Before that, Father had seen the Child only once, when the

Child was a newborn in the hospital. Id. at 77; N.T., 4/18/16, at 17. Father

- 12 -
J-S87018-16

and the Child have therefore spent only a few hours in each other’s company

during the Child’s entire six-year life.

From August 29, 2014 until April 18, 2016, Father repeatedly reported

to OYFS that he would soon be released from prison and be able to regain

custody of the Child; however, as of the date of the final hearing, Father was

still living in a halfway house. N.T., 4/18/16, at 15. Further, Father’s

proposed home plan was to rent only a single room. Id. at 44; Orphans’ Ct.

Op. at 9. Additionally, Father made no attempts during or after his

incarceration to communicate with or to learn about the Child: he never

sent her a card or other correspondence, and he never called OYFS to

inquire about the Child, even when he had regular access to a telephone.

N.T., 1/12/16, at 86; N.T., 4/18/16, at 31, 44, 48. OYFS had no contact

with Father from July through November 2015, and Father spoke with Child’s

foster parents only once to ask about the Child’s wellbeing. N.T., 1/12/16,

at 86; N.T., 4/18/16, at 32.

Thus, we agree with the orphans’ court that the “uncertainty in

housing and lack of contact for [the Child’s] entire life clearly shows a failure

on Father’s part to perform essential parental duties.” Orphans’ Ct. Op. at

9. Hence, we again concur with the orphans’ court, id., that OYFS “has

satisfied its burden of proof” by providing clear and convincing evidence of

the “repeated and continued incapacity” of Father to provide the Child with

“essential parental care,” see 23 Pa.C.S. § 2511(a)(2), therefore satisfying

- 13 -
J-S87018-16

the statutory grounds for termination. See L.M., 923 A.2d at 511. Thus,

the trial court did not commit an error of law or abuse its discretion in

holding that the requirements of Section 2511(a)(2) were met.

With respect to Section 2511(b), this Court has explained that,

“[i]ntangibles such as love, comfort, security, and stability are involved in

the inquiry into [the] needs and welfare of the child.” In re C.M.S., 884

A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted), appeal denied, 897

A.2d 1183 (Pa. 2006). The trial court must “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). “The extent of any

bond analysis . . . necessarily depends on the circumstances of the particular

case.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (citation

omitted). Additionally, 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). The well-

being and permanency of a child cannot be tolled indefinitely. In re C.L.G.,

956 A.2d 999, 1007 (Pa. Super. 2008).

Father argues that the evidence does not support termination under

Section 2511(b). See Father’s Brief at 7; see also id. at 14, 16. Although

Father does not contend that a parent-child bond exists between him and

the Child, he quotes In re S.D.T., Jr., 934 A.2d 703, 706 (Pa. Super. 2007),

appeal denied, 950 A.2d 270 (Pa. 2008), op. after remand, 964 A.2d 953

- 14 -
J-S87018-16

(Pa. Super. 2008), for the proposition that “[t]he effect of severing the bond

between the parent and child is ‘a major aspect of the needs and welfare

analysis.’” Father’s Brief at 15. Because there is no existing bond between

Father and the Child, we find that principle inapplicable here.

Father was incarcerated in March 2010, a few days after the Child was

born. Father has had two parental visits with the Child, occurring almost

two years ago, and the Child has not seen or heard from Father since that

time, let alone been in his exclusive care. Orphans’ Ct. Op. at 3-4, 10; N.T.,

1/12/16, at 24-26, 77; N.T., 4/18/16, at 17. Father did not initiate any

contact with the Child, either by telephone or otherwise, since those visits.

N.T., 1/12/16, at 24-26, 77, 80, 86; N.T., 4/18/16, at 31-32. Father does

not contest these facts. Father’s Brief at 15 (citing N.T., 1/12/16, at 23-24,

69; N.T., 4/18/16, 25-26). The orphans’ court thus correctly held that there

is no existing bond between Father and the Child. Orphans’ Ct. Op. at 10.

The Child has resided in the child’s current foster home since June 25,

2014. N.T., 1/12/16, at 9, 65. This placement has afforded the Child

permanency for a substantial part of the Child’s young life and has fulfilled

“the developmental, physical and emotional needs and welfare of the child.”

23 Pa.C.S. § 2511(b).

The orphans’ court reasoned that delays and lack of permanency are

“clearly harmful” to the Child's emotional well-being and that termination of

Father’s parental rights will allow the Child “to achieve permanency and end

- 15 -
J-S87018-16

the uncertainty that has consumed the past two (2) years of [the Child’s]

life.” Orphans’ Ct. Op. at 10. Although Father argues that he will eventually

be released from incarceration, including from halfway houses, and will

ultimately find appropriate housing, see, e.g., N.T., 1/12/16, at 22, 87, we

cannot toll the Child’s well-being and permanency indefinitely while waiting

for Father to shoulder the responsibilities of parenting. See C.L.G., 956

A.2d at 1007; Z.S.W., 946 A.2d at 732.

Accordingly, the orphans’ court did not abuse its discretion in holding

that “it is in the best interest of the [C]hild for the parental rights of Father

[to] be terminated.” Orphans’ Ct. Op. at 10. The record supports the

orphans’ court’s view that the involuntary termination of Father’s parental

rights will serve the developmental, physical, and emotional needs and

welfare of the Child pursuant to Section 2511(b).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2016

- 16 -