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2017 PA Super 188
IN RE: D.L.B., MINOR CHILD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.L.S. : No. 186 WDA 2017
Appeal from the Order, January 11, 2017,
in the Court of Common Pleas of Blair County
Orphans’ Court Division at No. 2016 AD 51
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED JUNE 15, 2017
T.L.S. (“Father”) appeals from the January 11, 2017 order granting the
petition of the Blair County Office of Children, Youth and Families (“CYF”) to
involuntarily terminate his parental rights to his minor female child, D.L.B.
(“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b). After
careful review, we affirm.
The relevant facts and procedural history of this case may be
summarized as follows. Child was born in May 2016 to Father and S.R.B.
(“Mother”)1 and was placed in foster care six days after being discharged
from the hospital after birth. At the time of her birth, Child exhibited
symptoms of prenatal drug use by Mother that resulted in Child being placed
on medical morphine. (Notes of testimony, 5/17/16 at 11-15.) CYF
1
The record reflects that Mother had a long-standing history of drug abuse
and mental health issues and died on October 24, 2016, while she was
incarcerated in the Blair County Prison.
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previously took custody of Mother and Father’s older daughter and Child’s
sister, W.R.B., who was born in February 2012 and was adjudicated
dependent on June 30, 2015.2
On May 17, 2016, the trial court conducted an adjudication hearing
with respect to Child. The record reflects that Father was incarcerated at the
time of this hearing and did not express a desire to be a permanent resource
for Child. (See notes of testimony, 5/17/16 at 27-28; Order of Adjudication
and Dependency, 5/23/16 at 2, ¶ 1.) At the conclusion of this hearing, the
trial court specifically directed Father to comply with all terms and conditions
of his parole; to refrain from the use or possession of controlled substances;
and to attain and maintain stable housing and employment. (See Order of
Adjudication and Dependency, 5/23/16 at 5-6, ¶ 17.) Neither parent
appealed the trial court’s May 23, 2016 adjudicatory order.
Father was subsequently released from prison on June 20, 2016, and
has been minimally involved in Child’s life since that time. The record
reflects that Father attended supervised visits with Child until September 3,
2016, but often showed up late and demonstrated poor parenting skills.
(Notes of testimony, 9/1/16 at 19-20, 29.) Since her discharge from the
hospital, Child has resided in the same foster home as W.R.B., and her
2
On January 27, 2017, a panel of this court affirmed the involuntary
termination of Father’s parental rights to W.R.B., pursuant to 23 Pa.C.S.A.
§§ 2511(a)(2) and (b), and dismissed Mother’s appeal as moot. See In Re:
W.R.B., A.3d , 2017 WL 384121 (Pa.Super. January 27, 2017)
(unpublished memorandum).
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foster parents serve as adoptive resources for both girls. (Permanency
Review Order, 12/21/16 at 6, ¶ 23b; Permanency Review Order, 12/21/16
at 2, ¶ 4a.)
On September 1, 2016, the trial court conducted a fourth-month
permanency review hearing and made the following findings of fact with
respect to Father:
[F]ather has failed to report to the Cambria County
Parole & Probation Office since his release from
incarceration on 6/20/16. He has not responded to
messages left by his parole officer, Shawn Leahey,
nor was Officer Leahey able to find [F]ather at his
approved residence. Thus, [F]ather is in violation of
the terms of his parole and is at risk of being
detained. It does not appear that [F]ather is
engaging in his treatment at the Open Door[ drug
and alcohol counseling], as he has been directed. If
[F]ather is detained, he could potentially remain
incarcerated up to his maximum date (an additional
30 months). [F]ather did cooperate with the
paternity testing, which established that he is the
biological father of D.L.B. [F]ather has attended
supervised visits (usually showing up late) but
demonstrates a lack of basic parenting skills.
[F]ather was drug screened on 8/18/16 (testing
positive for Suboxone, for which he does not have a
prescription) and on 8/20/16 (testing positive for
THC). It is also worth noting that [F]ather appeared
for our 9/1/16 hearing, but when advised that his
parole officer would be participating by telephone,
[F]ather left the courtroom and did not return.
Permanency Review Order, 9/6/16 at 2, ¶ 3b. The trial court subsequently
terminated Father’s visits with Child on September 1, 2016. (Id. at 8,
¶ 28.)
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Thereafter, on December 9, 2016, CYF filed a petition to involuntarily
terminate Father’s parental rights to Child. On December 14, 2016, Father
was found to have violated the terms of parole and was re-incarcerated with
a maximum release date of September 10, 2018. (Notes of testimony,
12/20/16 at 8, 10-11; Permanency Review Order, 12/21/16 at 1-2, ¶ 3b.)
On December 20, 2016, the trial court conducted a seventh-month
permanency review hearing and made the following additional findings with
respect to Father:
[F]ather is not actively involved in any drug and
alcohol treatment, nor mental health counseling. He
needs to complete 100 hours of community service
as part of his conditions of parole. He has not
maintained any contact with his children, [CYF] or
any service provider. While he was out on parole,
[CYF] had great difficulty in contacting him. The last
time [F]ather initiated contact with the Agency was
in mid-March[] 2016.
Permanency Review Order, 12/21/16 at 2, ¶ 3b.
On January 11, 2017, the trial court conducted a termination hearing
with respect to Child. During this hearing, the trial court granted CYF’s
request to incorporate the testimony from the aforementioned dependency
proceedings for Child and W.R.B. into the record. (Notes of testimony,
1/11/17 at 5-6.) That same day, the trial court entered an order
involuntarily terminating Father’s parental rights to Child, pursuant to
Sections 2511(a)(1), (2), (5), and (b). On January 24, 2017, Father filed a
timely notice of appeal to this court. That same day, Father filed a concise
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statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
On February 21, 2017, the trial court filed its Rule 1925(a) opinion.
On appeal, Father raises the following issues for our review:
I. WHETHER THE EVIDENCE WAS SUFFICIENT TO
SUPPORT TERMINATION ON GROUNDS OF
ABANDONMENT?
II. WHETHER THE EVIDENCE WAS SUFFICIENT TO
SUPPORT TERMINATION ON GROUNDS OF
INCAPACITY?
III. WHETHER 23 PA.C.S.A. § 2511(A)(5) APPLIES
TO A PARENT WHO WAS INCARCERATED AT
THE TIME OF REMOVAL OF HIS CHILD?
Father’s brief at 5.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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 internal quotation
marks omitted). “The trial court is free to believe all, part, or none of the
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evidence presented and is likewise free to make all credibility determinations
and resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004) (citation omitted). “[I]f competent evidence supports the
trial court’s findings, we will affirm even if the record could also support the
opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.
2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. 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). We
have defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
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conviction, without hesitance, of the truth of the precise facts in issue.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and
quotation marks omitted).
In this case, the trial court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), (5), and (b), which provide as follows:
§ 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.
....
(5) The child has been removed from
the care of the parent by the court
or under a voluntary agreement
with an agency for a period of at
least six months, the conditions
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which led to the removal or
placement of the child continue to
exist, the parent cannot or will not
remedy those conditions within a
reasonable period of time, the
services or assistance reasonably
available to the parent are not
likely to remedy the conditions
which led to the removal or
placement of the child within a
reasonable period of time and
termination of the parental rights
would best serve the needs and
welfare of the child.
....
(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.A. § 2511(a)(1), (2), (5), and (b). We need only agree with the
trial court as to any one subsection of Section 2511(a), in addition to
Section 2511(b), to affirm an order terminating parental rights. In re M.M.,
106 A.3d 114, 117 (Pa.Super. 2014).
Instantly, we analyze the trial court’s decision to terminate under
Section 2511(a)(2) and (b).
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In order to terminate parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(2), the following three
elements must be met: (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.
The grounds for termination due to parental
incapacity that cannot be remedied are not limited to
affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as
incapacity to perform parental duties.
In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
(citations, internal quotation marks, and indentation omitted).
Here, we find that there was ample evidence to justify the trial court’s
termination of Father’s parental rights to Child, pursuant to
Section 2511(a)(2). As discussed, Child has been in a pre-adoptive foster
home for the duration of her life, and Father has never had custody of Child.
But for a few supervised visits, Father has had virtually no contact or
involvement in Child’s life. Father has a lengthy criminal history and at the
time of Child’s birth was incarcerated until his release in June 2016. The
record further reflects that Father has consistently violated the terms of his
parole, which ultimately resulted in his re-incarceration less than one month
prior to the termination hearing, with a maximum release date of
September 10, 2018. There is also very little evidence that Father
attempted to establish a parental relationship with Child while incarcerated;
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Father did not contact CYF to inquire about Child and never sent any letters
or gifts to Child.
The evidence further establishes that “incapacity” under
Section 2511(a)(2) exists given that Father has failed to demonstrate a
concrete desire or ability to remedy the problems that led to Child’s
placement. Father has failed to cooperate with the services provided by
CYF, did not actively participate in drug or alcohol treatment, and did not
complete mental health counseling. Moreover, Father failed to establish any
stability in his life with regard to housing or employment. Based on the
foregoing, we agree with the trial court that there exists competent evidence
of record to justify the termination of Father’s parental rights to Child
pursuant to Section 2511(a)(2).
Next, we consider whether termination was proper under
Section 2511(b). With regard to Section 2511(b), our supreme court has
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.[A.] § 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. . . .
[T]his 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. However, as discussed below,
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evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267 (internal case citations omitted). “[I]n cases
where there is no evidence of a bond between a parent and child, it is
reasonable to infer that no bond exists. Accordingly, the extent of the
bond-effect analysis necessarily depends on the circumstances of the
particular case.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super.
2010) (citations omitted). Additionally, when evaluating a parental bond,
“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., 994 A.2d 1108,
1121 (Pa.Super. 2010) (citations omitted).
In concluding that the termination of Father’s parental rights best
served the needs and welfare of Child, the trial court emphasized that it was
clearly in Child’s best interest to move forward with her adoption by her
foster parents. The trial court noted that Child has resided alongside her
sister in a pre-adoptive foster home since shortly after her birth and that
“[her] needs are being met” and that she is “loved and cared for” by her
foster parents. (Trial court 1925(a) opinion, 2/21/17 at 13-14.)
Lesa Ramper, a caseworker for CYF who has been involved with this case
since shortly before Child’s birth, testified at the termination hearing that
Child seemed very comfortable in the pre-adoptive home and that Child’s
foster parents were very attentive to her and a viable adoptive resource.
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(Notes of testimony, 1/11/17 at 6, 8-9.) Additionally, Child’s foster mother
testified that Child was doing very well developmentally; was “cognitively,
physically, [and] developmentally on track for her age[;]” and that W.R.B.
was very nurturing with Child and enjoyed helping with her sister. (Notes of
testimony, 12/20/16 at 35-36.) Child’s foster mother further confirmed that
she and her husband were an adoptive resource for both Child and W.R.B.
(Id. at 39-40.)
This court has long recognized that “[a] child’s life, happiness and
vitality simply cannot be put on hold until the parent finds it convenient to
perform parental duties.” In the Matter of the Adoption of A.M.B., 812
A.2d 659, 675 (Pa.Super. 2002). Our standard of review requires us to
accept the trial court’s findings of fact and credibility determinations where,
as here, they are supported by the record. See In re T.S.M., 71 A.3d at
267. Accordingly, we decline to reweigh the evidence and reassess witness
credibility.
As a final matter, Father, in his reply brief, cites to our supreme
court’s recent decision in In re L.B.M., 2017 Pa. LEXIS 680 (Pa. March 28,
2017), wherein the court held that 23 Pa.C.S.A § 2313(a) requires the trial
court to appoint counsel for a child in a termination of parental rights
(“TPR”) case, and that the failure to do so is structural and can never be
harmless. (See Father’s reply brief at 1-2.) Father posits that the guardian
ad litem (“GAL”) in this case, Attorney Tyler Rowles, at all times
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represented Child as GAL and not as appointed counsel. In response to
Father’s reply brief, CYF filed a motion to strike Father’s reply brief on
April 27, 2017.
As a point of information, Justice Wecht’s opinion in L.B.M states that
the trial court is required to appoint a separate, independent attorney to
represent a child’s legal interests even when the child’s GAL, who is
appointed to represent the child’s best interests, is an attorney.
Justice Wecht would hold that the interests are distinct and require separate
representation. While Justice Wecht, joined by Justices Donohue and
Dougherty, sought to so hold, four members of the court, Chief Justice
Saylor and Justices Baer, Todd, and Mundy disagreed in different concurring
and dissenting opinions with that part of the lead opinion’s holding.
Specifically, while the other justices agreed that the appointment of counsel
for the child is required in all TPR cases and that the failure to do so by the
trial court is a structural error, they did not join that part of Justice Wecht’s
opinion which sought to hold that the GAL may never serve as counsel for
the child. Rather, such separate representation would be required only if the
child’s best interests and legal interests were somehow in conflict. As our
decision discusses, Child’s best interests and legal interests were
unquestionably well represented by Attorney Rowles in this case and such
interests were never in conflict. Accordingly, we decline Father’s request to
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remand this case for the appointment of additional counsel for Child. CYF’s
motion to strike Father’s reply brief, in turn, is denied as moot.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Father’s parental rights to Child
pursuant to Section 2511(a)(2) and (b). Accordingly, we affirm the
January 11, 2017 order of the trial court.
Order affirmed. Motion to strike Father’s reply brief denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2017
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