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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: G.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: P.F., FATHER :
: No. 1161 MDA 2016
Appeal from the Decree June 15, 2016
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 053-ADOPT-2016
IN RE: ADOPTION OF: G.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: P.F., FATHER :
: No. 1162 MDA 2016
Appeal from the Decree June 15, 2016
In the Court of Common Pleas of Cumberland County
Juvenile Division at No(s): 21-DP-112-2014
BEFORE: BOWES, DUBOW, and FITZGERALD*
MEMORANDUM BY FITZGERALD, J.: FILED MAY 12, 2017
P.F. (“Father”) appeals from the decree dated June 15, 2016, and
entered on June 16, 2016, terminating his parental rights to his male child,
G.F., (born in of June 2014) pursuant to the Adoption Act, 23 Pa.C.S. §
2511(a)(1), (2), and (b), and the order dated June 15, 2016, and entered
*
Former Justice specially assigned to the Superior Court.
J-S26042-17
June 20, 2016, changing Child’s permanency goal to adoption under the
Juvenile Act, 42 Pa.C.S. § 6351.1 We affirm.
In its opinion entered on August 23, 2016, the trial court set forth the
factual background and procedural history of this appeal, which we
incorporate as this Court’s own. See Trial Ct. Op., 8/23/16, at 1-7.
Importantly, on May 12, 2016, the Cumberland County Children and Youth
Services (“CYS” or “the Agency”) filed a petition to change Child’s
permanency goal to adoption, and, on May 19, 2016, CYS filed a petition to
involuntarily terminate Father’s parental rights with regard to Child.
On June 15, 2016, the trial court held an evidentiary hearing on the
termination/goal change petitions. At the hearing, CYS presented the
testimony of Amanda Sigrist, its caseworker assigned to the family. N.T.,
6/15/16, at 12. CYS next presented the testimony of E.B., Child’s maternal
aunt and formal kinship caregiver who wishes to adopt Child. Id. at 13-14.
Father then testified on his own behalf. Finally, the guardian ad litem
(“GAL”) presented the testimony of M.A., Mother’s older sister. Id. at 65.
The trial court summarized Ms. Sigrist’s testimony as follows.
Ms. Sigrist testified that[,] while [Father] has taken
positive steps during his incarceration, the Agency views
[Father’s] history of criminal convictions and incarcerations
as demonstrative that, while [Father] has recently shown
an ability to maintain stable behaviors in the controlled
1
Child’s mother, L.A, (“Mother”), died in May of 2015. N.T., 6/15/16, at 14,
65.
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prison environment, he has not shown the same ability in
a non-controlled setting (outside of prison). Ms. Sigrist
noted the October 2014 assault on [Mother] as specifically
representative of this concern.[55]
[55
N.T., 6/15/16, at 28.] Ms. Sigrist also testified to
an awareness that the relationship between [Father]
and [Mother] was violent and tumultuous throughout
its existence. Id. at 31.
As to [Father’s] potential to serve as a caretaker, Ms.
Sigrist testified that [Father] has never had individual
caretaking responsibility for [Child], nor has [Child] ever
resided with [Father]. Furthermore, Ms. Sigrist testified
that [Child] does not share a significant bond with
[Father], because [Father] has been incarcerated for a
large portion of [Child’s] life. Ms. Sigrist acknowledged
that [Father] has not had the same opportunity to bond
with [Child], but stated the Agency’s view that [Father’s]
incarceration was the result of his own actions. Ms. Sigrist
affirmed it was uncertain if [Father] would be granted
parole, and[,] according to his Department of Corrections
counselor, if he was granted parole, the date of his actual
release was unknown; according to the counselor, his
release could come in two weeks or two months. Ms.
Sigrist emphasized the Agency’s two primary concerns: 1)
that [Child] and [Father] do not have a significant bond
and 2) that the timeline regarding [Father’s] ability to care
for [Child] is very uncertain.
It is the Agency’s position that termination of [Father’s]
rights to allow for [Child’s] adoption by [E.B.] would be in
the best interest of [Child]. Ms. Sigrist testified that
[Child] and his sister are in need of a stable, nurturing
consistent environment. Ms. Sigrist noted that[,] while
[Father] has never had individual parenting responsibility
for [Child], [E.B.] has been providing appropriate and
loving parenting for [Child] for more than half his life,
since May 2015.[63]
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[63]
See [i]d. at 24; [E.B.] officially became the
informal kinship caregiver in June 2015, but the
record shows that [Child] resided with [E.B.] and her
mother, [Ms. M.], beginning after [Mother’s] death
[in May of 2015].
Ms. Sigrist reported [Child] and his sister are very safe
and “appear to be very comfortable and loved in their
home.” [E.B.’s] household includes [Child], his half-sister,
A.B., E.B.’s mother (Child’s maternal grandmother) and
[E.B.’s] biological daughter (Child’s cousin), who is 12
years old. [E.B.] testified that all the children get along
and after some initial adjustment issues are all doing very
well together. The guardian ad litem, Marylou Matas, Esq.,
who observed the children in [E.B.’s] home, reported that
[Child] is particularly bonded with [E.B.].
Trial Ct. Op. at 7-8 (most footnotes omitted).
On June 16, 2016, the trial court entered the decree terminating
Father’s parental rights under Section 2511(a)(1), (2), and (b) of the
Adoption Act. On June 20, 2016, the trial court entered the order dated
June 15, 2016, changing Child’s permanency goal to adoption.
On July 15, 2016, Father timely filed notices of appeal, along with
concise statements of errors complained of on appeal, pursuant to
Pa.R.A.P.(a)(2)(i) and (b). This Court, sua sponte, consolidated the appeals,
on August 30, 2016.
On appeal, Father raises four issues, which we have reordered as
follows:
[Whether the trial court] erred as a matter of law and
abused its discretion in changing the goal to adoption and
terminating [Father’s] parental rights because a parent’s
absence or failure to support his or her child due to
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incarceration is not, in itself, conclusively determinative of
the issue of parental abandonment[?] Incarceration alone
is not an explicit basis upon which an involuntary
termination may be ordered pursuant to § 2511 of the
Pennsylvania Adoption Code, 23 Pa.C.S. § 2511. Courts
must inquire whether the parent has utilized those
resources at [Father’s] command while in prison to
continue and pursue a close relationship with the child or
children. [Father] did desire to retain parental rights and
exerted himself to take and maintain a place of importance
in the child’s life.
[Whether the trial court] erred as a matter of law and
abused its discretion in terminating [Father’s] parental
rights in that the conditions which led to the removal or
placement of the child no longer existed or were
substantially eliminated[?]
[Whether the trial court] was in error in determining the
best interest of the child would be served by terminating
[Father’s] parental rights[?]
[Whether the trial court] erred as a matter of law and
abused its discretion in changing the goal for this child to
adoption and terminating [Father’s] parental rights in that
[Father] is able to provide the child with the essential
parental care, control, and subsistence in the very near
future[?]
Appellant’s Brief at 4.2
2
Father stated his issues somewhat differently in his concise statement
concerning trial court error or abuse of discretion, particularly with regard to
changing Child’s permanency goal to adoption. See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal). We, nevertheless, find that his concise statement
preserved his challenge to the goal change for our review.
Moreover, Father’s brief presents a single argument in support of all
four questions. See Pa.R.A.P. 2119(a) (“[t]he argument shall be divided
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We review an appeal from the termination of parental rights with the
following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of
a petition for termination of parental rights. As in
dependency cases, our standard of review requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by
the record. In re: R.J.T., [] 9 A.3d 1179, 1190 (Pa.
2010). If the factual findings are supported, appellate
courts review to determine if the trial court made an error
of law or abused its discretion. Id.; R.I.S., 36 A.3d 567,
572 (Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely
because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v.
Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate
courts are not equipped to make the fact-specific
determinations on a cold record, where the trial judges are
observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the
child and parents. R.J.T., 9 A.3d at 1190. Therefore,
even where the facts could support an opposite result, as
is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the
into as many parts as there are questions to be argued”). The failure to
comply with Rule 2119(a) does not impede meaningful appellate review.
Lastly, although Father’s consolidated argument purports to challenge
the termination of his parental rights under subsections (a)(5) and (8), the
decree did not provide that Father’s parental rights were terminated under
either of those subsections. See Trial Ct. Op. at 14.
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trial court and impose its own credibility determinations
and judgment; instead we must defer to the trial judges so
long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined
as testimony that is so “clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise
facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of Section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, the trial court terminated Father’s parental rights under
Section 2511(a)(1), (2), and (b). Father challenges the sufficiency of the
evidence under those subsections of Section 2511, 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:
(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
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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 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)(1)-(2), (b).
Father argues that the trial court erred and abused its discretion in
finding that CYS presented sufficient evidence to support the termination of
his parental rights under Section 2511(a)(1), (2), and (b). See Father’s
Brief, at 6-9. Father asserts that he has used all available resources to
preserve his parental relationship while he has been incarcerated. Id. at 6-
7, 13-14.
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We have explained this Court’s review of a challenge to the sufficiency
of the evidence supporting the involuntary termination of a parent’s rights
pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of section 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.
***
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 or her
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) (citations omitted).
Further, we have stated:
[T]o be legally significant, the [post-abandonment] contact
must be steady and consistent over a period of time,
contribute to the psychological health of the child, and
must demonstrate a serious intent on the part of the
parent to recultivate a parent-child relationship and must
also demonstrate a willingness and capacity to undertake
the parental role. The parent wishing to reestablish his
parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted); see
also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super 2008) (en
banc).
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Moreover, regarding the definition of “parental duties,” this Court has
stated as follows:
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 or her 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 . . . her
physical and emotional needs.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
In In re Adoption of S.P., our Supreme Court discussed In re
Adoption of McCray, 331 A.2d 652 (Pa. 1975), and stated:
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Applying in McCray the provision for termination of
parental rights based upon abandonment, now codified as
§ 2511(a)(1), we noted that a parent “has an affirmative
duty to love, protect and support his child and to make an
effort to maintain communication and association with that
child.” Id. at 655. We observed that the father’s
incarceration made his performance of this duty “more
difficult.” Id.
In re Adoption of S.P., 47 A.3d at 828. The Supreme Court continued:
[A] parent’s absence and/or failure to support due to
incarceration is not conclusive on the issue of
abandonment. Nevertheless, we are not willing to
completely toll a parent’s responsibilities during his
or her incarceration. Rather, we must inquire
whether the parent has utilized those resources at
his or her command while in prison in continuing a
close relationship with the child. Where the parent
does not exercise reasonable firmness in declining to
yield to obstacles, his other rights may be forfeited.
[McCray] at 655 (footnotes and internal quotation marks
omitted). . . .
Id.
Here, the trial court stated:
This [c]ourt notes [Father’s] first three errors
complained of on appeal essentially argue the Agency has
failed to meet the statutory grounds for termination under
23 Pa.C.S. § 2511(a). The fulfillment of any one
subsection of Section 2511(a) provides a threshold
sufficient for the court to proceed to evaluate the best
interest of the child under 23 Pa.C.S. § 2511(b). In re
B.L.W., 843 A.2d 380 (Pa. Super. 2004) (en banc). The
Agency’s Petition alleges the statutory grounds for
termination have been met under 23 Pa.C.S. § 2511(a)(1)
and (a)(2). Noting the substantive overlap in [Father’s]
first three arguments, this [c]ourt addresses them in turn.
[Father’s] first argument is that this [c]ourt improperly
found a basis for termination of [his] parental rights on the
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basis of his incarceration alone. First, [Father’s] argument
is conclusory. Neither the transcript of the relevant
hearing or [sic] the Final Decree granting the termination
contain any such statement by the [c]ourt. This [c]ourt is
well aware of its responsibility to consider the totality of
the circumstances and particular facts of each case:
It is well-established that a court must examine the
individual circumstances of each and every case and
consider all explanations offered by the parent to
determine if the evidence, in light of the totality of
the circumstances, clearly warrants the involuntary
termination.
In re R.I.S., 36 A.3d 567, 572, (Pa. 2011) (internal
citations omitted).
Furthermore, the record shows this [c]ourt considered
[a] substantial body of evidence. The record shows the
[c]ourt heard from a number of witnesses and accepted a
variety of exhibits regarding a number of issues, including
but not limited to: the history of the child and [Father’s]
lack of interactions with the Agency; the child’s current
health and status in his foster home; [Father’s] past and
current bond with the child; the impact of [Father’s]
incarceration on his Family Service Plan goals; [Father’s]
communication and visitation with the child during [his]
current incarceration; and [Father’s] future plans. In light
of these facts and in the absence of any indication to the
contrary, [Father’s] argument that the [c]ourt’s decision
was based on the fact of his incarceration alone does not
stand.
Secondly, [Father] seems to argue that based on the
fact that he has attempted to remain a part of his child’s
life alone is sufficient to prohibit the termination of his
rights. It is true that “incarceration alone is not an explicit
basis upon which an involuntary termination may be
ordered pursuant to Section 2511 of the Pennsylvania
Adoption Code.” In re R.I.S., 36 A.3d 567, 572-573 (Pa.
2011). When a parent is incarcerated, it is incumbent
upon him or her to utilize all resources available to
maintain a relationship with the child and maintain a place
of importance in the child’s life. Id. The courts have said
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it is a “definitive principle that when a parent uses the
opportunities that are available in prison to make sincere
efforts to maintain a place of importance in the lives of his
or her children, incarceration alone will not serve as
grounds for the involuntary termination of his or her
parental rights.[”] Id. at 574.
The record does show that [Father] has utilized the
resources available to him to maintain a relationship with
the child and maintain a role in his life. resents a single
argument in support of all four questions.[72] However,
this [c]ourt stresses the language that “incarceration
alone” is insufficient. As discussed, this [c]ourt does not
base its decision on incarceration alone. Again the court is
to consider the totality of the circumstances and the
particular facts of each case. Id. at 572. In In re R.I.S.,
a seminal case involving the termination of parental rights,
the Supreme Court affirmed a trial court’s denial of a
petition to terminate the father’s rights, but it did so in
consideration of all the facts of the case. See In re
R.I.S., 36 A.3d 567 (Pa. 2011) (the record showed the
father was complying with all of the goals of his family
service plan and that he had been the primary caretaker of
the children before his incarceration). This [c]ourt affirms
that it considered the totality of factors in the instant case.
[72
Father] requested visits from an early stage in
incarceration and maintains regular correspondence
with [Child]. See N.T. at 20-21.
Trial Ct. Op. at 10-12 (most footnotes omitted).
After our careful review of the trial court’s application of the law to the
facts of this case, we find no reason to disturb the trial court’s conclusions.
Thus, the trial court’s determinations regarding Section 2511(a)(1) are
supported by competent, clear and convincing evidence in the record. See
In re Adoption of S.P., 47 A.3d at 826-27.
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To satisfy the requirements of Section 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 has
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.
See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003)
(citation omitted). The grounds for termination of parental rights under
Section 2511(a)(2) for parental incapacity that cannot be remedied are not
limited to affirmative misconduct, but 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).
Our Supreme Court addressed the relevance of incarceration in
termination decisions under Section 2511(a)(2) as follows:
[I]ncarceration 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.
In re Adoption of S.P., 47 A.3d at 828.
Our Supreme Court set forth our inquiry under Section 2511(a)(2) as
follows.
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This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature,
however, in enacting the 1970 Adoption Act, concluded
that a parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to
perform the duties.
In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 891 (Pa.
1986) (quoting In re: William L., 477 Pa. 322, 383 A.2d 1228,
1239 (Pa. 1978)).
In re Adoption of S.P., 47 A.3d at 827.
After re-visiting its decision in In re R.I.S. regarding incarcerated
parents, our Supreme Court stated:
[W]e now definitively hold 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). 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
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 (citations omitted).
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Here, the trial court found as follows with regard to Section
2511(a)(2):
At the time of the hearing, [Father] was incarcerated
and therefore unable to provide essential parental care,
control, and subsistence. [Father] argues he will be able
to provide essential parental care control and subsistence
“in the very near future” based in his hope that he will be
granted parole in the near future. However, it is uncertain
if [Father] will be granted parole, when that will occur, how
long it would take for him to actually be released, and
what his living situation would be like after his release.
[Father] stated he hoped he would be granted parole
within approximately three months, and that after his
release he would go to a halfway house, and that after
arriving at the halfway house he hoped to secure a job that
would allow him to rent a two bedroom apartment. This
[c]ourt notes [Father] does not have any confirmed job
prospects or plans for child care in place, and has no
family support in the area.
[Father’s] plans, while hopeful, are by no means
guaranteed to materialize. This [c]ourt notes [Father] has
been incarcerated for all but approximately six months of
the preceding thirty; therefore, the record does not show
evidence of [Father’s] ability to provide even his own basic
needs, let alone those of a child. [Father] himself
admitted that[,] if he is not granted parole, he will not be
released until June, 2017. This [c]ourt does not consider a
year’s wait “the very near future”, and even the timeline
optimistically presented by [Father] seems to entail a wait
of some weeks or months before [he] is able to secure
appropriate housing for [Child], if at all. In addition,
[Father] is currently unable to provide medical care for the
child, which is particularly important to the child due to
[Child’s] cleft palate condition and anticipated need of
future treatment. [Father] has never been a primary
caregiver for the child. Therefore, this [c]ourt finds the
record contains competent evidence to find [Father] is
unable to provide essential parental care, control, and
subsistence at this time, and that [Father] cannot remedy
such causes in a timely manner to provide the child with
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permanency. Therefore, this [c]ourt find [sic] the Agency
proved ground [sic] for termination under § 2511(a)(2).
Trial Ct. Op. at 12-14 (footnotes omitted).
This Court has stated “[P]arents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.”
In re A.L.D. 797 A.2d at 340. “[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.
After our careful review of the record in this matter, we find that the
trial court’s credibility and weight determinations are supported by
competent evidence in the record. In re Adoption of S.P., 47 A.3d at 826-
827. Father’s argument regarding Section 2511(a)(2) essentially seeks for
this Court to make credibility and weight determinations different from those
of the trial court. The trial court properly considered the history of the case,
including Father’s neglect as a parent to Child and his incarceration, and
determined that he would not remedy his failure to parent. Accordingly, we
find that the trial court’s determinations regarding Section 2511(a)(2) are
supported by sufficient, competent evidence in the record.
In sum, we discern no basis to disturb the trial court’s determination
that there was clear and convincing evidence that termination of Father’s
parental rights was appropriate under Section 2511(a)(1) and (2).
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
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are satisfied. See In re Adoption of C.L.G., 956 A.2d at 1009. This Court
has stated that the focus in terminating parental rights under Section
2511(a) is on the parent, but it is on the child pursuant to Section 2511(b).
Id. at 1008.
In reviewing the evidence in support of termination under Section
2511(b), our Supreme Court recently stated as follows.
[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).
Instantly, the trial court stated as follows:
[Father] has alleged the court abused its discretion or
committed an error of law in finding that terminating
[Father’s] rights was in [C]hild’s best interest. [Father]
has not alleged any facts to support his claim that the
[c]ourt abused its discretion, and this [c]ourt is therefore
unable to address it with specificity. The record contains
no evidence that this court demonstrated manifest
unreasonableness, partiality, prejudice or ill-will.
Nor has [Father] alleged any facts to support his claim
that this [c]ourt erred as a matter of law on this issue.
Having found the Agency proved a statutory ground for
termination under 23 Pa.C.S. § 2511(a), this [c]ourt
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turned to consider the best interest of the child under 23
Pa.C.S. § 2511(b). In re B.L.W., 843 A.3d 380, 384 (Pa.
Super. 2004) (en banc). The standard requires the court
“to give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). Furthermore, “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.” Id. However, the
courts have stated that the emotional needs and welfare of
the child have properly been interpreted to include
“intangibles such as love, comfort, security, and stability.”
In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). When
making a Section 2511(b) determination, the courts are to
focus on the child, not on the parent. In Re Adoption of
C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
As discussed above, [Father’s] history of providing
parental care for [Child] is very limited, as is the bond
shared by [Father] and [Child]. [Father’s] ability to
provide even basic housing for [Child], at any time in the
near future is uncertain. Thus, at the same time as
[Father’s] ability to provide a secure and appropriate
physical environment [for Child] is uncertain, [Father’s]
parenting abilities are almost entirely unproven.
[Father] has never been the primary caretaker for
[Child], nor have they ever shared a residence. [Father]
had zero contact with [Child] for almost a year and a half,
and his current interactions are limited to twice-monthly
visits of no more than two hours, during which [Father] is
never alone with the child and is not allowed to conduct
such basic functions as changing [C]hild’s diaper. The
limited evidence in the record supporting [Father’s]
parenting abilities encompasses a certificate of completion
for a parenting class; testimony that he sends regularly
and age-appropriate correspondence; and testimony that
the half-dozen visits have gone about as well [as] could be
expected of a two-year-old in an unfamiliar and busy
environment. [Father] has clearly demonstrated his desire
to parent, but his abilities remain almost entirely untested.
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As Ms. Sigrist noted repeatedly, while [Father’s] recent
abilities to provide for and bond with [C]hild have been
limited, those limitations are due to incarceration as a
consequence of [his] personal choices. As such, this court
agrees with the Agency’s assessment that it was not
“beyond the control” of [Father] to provide parental care
and control where [Father] could have avoided further
incarceration.
In contrast, [Child] is provided with plentiful love,
comfort, security, and stability in the care of [E.B.]. In her
care, he enjoys a stable home, surrounded by his half-
sister, cousin, and maternal grandmother. He is loved by
[E.B.]. He has a strong bond with [E.B.], who has been
his primary caretaker for over a year. [E.B.] has stable
employment and housing[,] and is monitoring [Child]’s
medical needs.[82] Importantly, [Child] has now lived with
[E.B.] for more than half his life. She is an experienced
caretaker. While [Father] certainly has demonstrated love
for [Child] and a desire to remain an important figure in
[Child]’s life, [E.B.] has engaged in daily, loving care of
[Child] for more than a year. The conditions of [Child]’s
future life with [Father] would be highly uncertain, while
his life with [E.B.] is confirmedly stable and secure. The
record shows termination of [Father’s] parental rights will
allow for [Child]’s adoption by a relative with whom he is
strongly bonded, who is already providing him with a
loving and stable home, and in whose household he is
surrounded by extended family. Therefore, this [c]ourt
finds the record contains competent evidence to find the
termination is in [Child]’s best interest under Pa.C.S. §
2511(b).
[82]
[E.B.] is employed by Highmark Blue Shield.
[N.T., 6/15/16], at 44.
Trial Ct. Op. at 14-16 (most footnotes omitted).
While Father may profess to love Child, a parent’s own feelings of love
and affection for a child, alone, do not preclude termination of parental
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rights. In re Z.P., 994 A.2d at 1121. 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.” Id. at 1125 (citation omitted). 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 at 856.
As there is competent evidence in the record that supports the trial court’s
credibility and weight assessments regarding Child’s needs and welfare and
the absence of any bond with Father, we conclude that the trial court did not
abuse its discretion in finding that Father’s appeal lacks merit as to Section
2511(b). See In re Adoption of S.P., 47 A.3d at 826-27.
Lastly, Father argues that the trial court erred in changing the
permanency goal to adoption. Father’s Brief at 11-12. Section 6351
controls the question of change in permanency goal. See 42 Pa.C.S. §
6351. The Pennsylvania Supreme Court recently set forth our standard of
review in a dependency case as follows.
“The standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
determinations of the trial court if they are supported by
the record, but does not require the appellate court to
accept the lower court’s inferences or conclusions of law.”
In re R.J.T., [] 9 A.3d 1179, 1190 (Pa. 2010). We review
for abuse of discretion[.]
In Interest of L.Z., 360, 111 A.3d 1164, 1174 (Pa. 2015).
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When considering a petition for goal change for a dependent child, the
trial court considers:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made
towards alleviating the circumstances which necessitated
the original placement; the appropriateness and feasibility
of the current placement goal for the child; and, a likely
date by which the goal for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S. §
6351(f)).
Regarding the disposition of a dependent child, Section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with numerous
criteria for its permanency plan for the subject child. Pursuant to those
subsections, the trial court is ultimately charged with determining the
“disposition which is best suited to the safety, protection and physical,
mental and moral welfare of the child.” 42 Pa.C.S. § 6351(g).
For the reasons expressed by the trial court regarding Child’s best
interests quoted above, there was also sufficient, competent evidence in the
record to support the finding that a goal change to adoption, so that E.B.
may adopt Child, serves Child’s best interests.
Accordingly, we affirm the termination decree and the goal change
order.
Decree and order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2017
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