Opinion
J-A01045-16 No. 1229 EDA 2015
02-10-2016
IN THE INTEREST OF: V.M.W., JR., L.R.W. AND N.T.W., MINORS APPEAL OF: V.W. A/K/A V.T.W., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree March 24, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000596-2014, CP-51-AP-0000597-2014, CP-51-AP-0000598-2014, CP-51-FN-004719-2011 BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
V.W. (Father) appeals from the decrees involuntarily terminating his parental rights to his children, V.M.W., Jr. (born June 2010), L.R.W. (born July 2011) and N.T.W. (born April 2013) (collectively Children). After careful review, we affirm.
We recognize that Father filed one notice of appeal from three separate trial court decrees terminating parental rights to Children. Each decree was entered on March 24, 2015, at the conclusion of termination proceedings relating to his three children, V.M.W., Jr., L.R.W. and N.T.W. The decrees differ only as to the name of each child and the docket number of the corresponding case for each child. We see no error in this procedure where timeliness is not at issue and where this Court would have most likely consolidated the cases were they separately appealed. See Pa.R.A.P. 513 (where there is more than one appeal from same order, or where same question is involved in two or more appeals in different cases, appellate court may order them to be heard together).
We note that:
[i]n a proceeding to terminate parental rights involuntarily, 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 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." 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 termination.In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted). See also In C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of proving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
M.R.R. (Mother) has not appealed the decrees terminating her parental rights to Children.
The trial court aptly summarized the facts leading to Children's dependency and placement as follows:
On December 11, 2011, [Philadelphia Department of Human Services] DHS received a Child Protective [S]ervices ("CPS") report alleging that [L.R.W.] sustained a fractured rib and was admitted to the Children's Hospital of Philadelphia ("CHOP"). The date in which [L.R.W.]'s injury occurred was unknown and no perpetrator was identified. The CPS report alleged that [L.R.W.]'s parents took her to the hospital due to a fever and cough. A chest X-ray revealed that [L.R.W.] had a left rib fracture. L.R.W. was underweight and diagnosed with failure to thrive, but the cause of [L.R.W.]'s failure to thrive was unclear. During hospitalization, [L.R.W.] gained weight. On December 21, 2011, [L.R.W.] was ready for discharge. On the same day, DHS obtained an Order for Protective Custody ("OPC") for [L.R.W.]. On December 22, 2011, [L.R.W.] was placed in foster care [through] Bethanna. On January 10, 2012,
[L.R.W.] was adjudicated dependent and committed to DHS. On January 18, 2012, In-Home Protective Services ("IHPS") were placed in the family home thru Presbyterian Children's village. On January 20, 2012, an initial Family Service Plan was developed. Father's objectives were: to meet with the Bethanna agency on a bi-weekly basis to understand how his behavior/neglect resulted in injury to [L.R.W.]; to locate and maintain suitable housing for the family with suitable space, heat and all other operable utilities; to provide [L.R.W.] with regular nutrit[ious] meals; and to make sure [L.R.W.] was properly clothed. Father signed the FSP. On May 31, 2012, at another FSP meeting, the objectives for Father remained the same. Again, Father signed the FSP and attended the meeting. On January 8, 2013, Father was found in full compliance with his FSP objectives and the trial court ordered that after Father's three successful overnight visits reunification with [L.R.W.] could take place. On January 25, 2013, [L.R.W.] was reunified with her parents with supervision.
On March 23, 2013, DHS received a CPS report alleging that Father hit [V.M.W., Jr.,] who was two years old at the time. [V.M.W., Jr.] had welts on his thighs and legs. [V.M.W., Jr.] also had bruises on his arms and his eye appeared to be swollen. Father was one of [V.M.W., Jr.]'s primary caregivers. On March 27, 2013, Father admitted using physical methods of discipline and that he also hit L.R.W. three days earlier. Mother was present at the time of the incident. DHS escorted [V.M.W., Jr.] and parents to CHOP, where a medical evaluation revealed handprints on [V.M.W., Jr.'s] thighs. Subsequently, DHS obtained an OPC for [L.R.W.] and [V.M.W., Jr.,] and placed them in the care of paternal grandmother where they currently remain. On March 28, 2013, at the Shelter Care hearing, [V.M.W., Jr.]'s OPC was lifted and the temporary commitment was ordered to stand. As to L.R.W., the OPC was lifted and the temporary commitment to OHS was discharged. L.R.W. was recommitted to DHS. On April 9, 2013, [V.M.W., Jr.] was adjudicated dependent, placed in foster care with paternal grandmother and his legal custody was [temporarily] transferred to DHS. The trial court also ordered Father to have supervised visits with [L.M.W.] and [V.M.W., Jr.].
On April 16, 2013, Mother gave birth to a third Child. DHS implemented a safety plan at the family home. Father agreed not to act dangerously or violently towards [N.T.W.]. On April 24, 2013, Father was arrested and charged with aggravated assault, unlawful restraint, serious bodily injury, endangering of
welfare of [c]hildren, simple assault and recklessly endangering another person. On April 25, 2013, the criminal court issued a stay away order. On April 26, 2013, a revised FSP was developed for the family. Father's objectives were: to maintain suitable housing; to participate in a parenting capacity evaluation and follow all the recommendations; to attend domestic violence counseling; to keep visits and maintain regular contact with the Children; to maintain regular contact with the provider agency and understand how his behavior resulted in injury to his Children; to attend ARC [for] key support areas identified for mental health; to attend family school and to follow recommendations; and to attend anger management. Father attended and signed the FSP. On May 1, 2013, Father posted a [sic] bail and was released from prison.
On May 21, 2013, DHS obtained an OPC for [N.T.W.]. At the Shelter Care [H]earing, the OPC was lifted and temporary commitment ordered to stand. On June 4, 2013, the trial court adjudicated [N.T.W.] dependent. At the same hearing, the trial court ordered Father to have supervised visits, if the criminal court stay away order is lifted. On July 9, 2013, at a permanency review hearing, Father was found minimally compliant with his FSP objectives. Children remained in foster care with paternal grandmother. On August 19, 2013 a revised FSP was developed. Father attended and signed the FSP. Father's objectives remained the same. On October 8, 2013, at a permanency review hearing, Father was found minimally compliant with his FSP. Children continued in foster care with paternal grandmother. The trial court found that Father was attending anger management at ARC and had a psychological evaluation. Father was re-referred to domestic violence, and to the CEU for a drug screen and assessment. Father completed his Parenting Capacity Evaluation. The report noted that Father denied any responsibility for his Children injuries or history of domestic violence, and any pending criminal charges. Father did not demonstrate ability to provide safety for his Children. The report also stated that in order to be reunified with his Children, Father would need to explore and identify the role he played in his Children injuries. . . . The trial court ordered that Father's visits must remain suspended until further order of the criminal court lifting the stay away order. On October 10, 2013, Father [pled] guilty to endangering the welfare of children and simple assault against a victim under 12 years of age. The criminal court ordered Father to have no contact with minors under 10 years of age, and DHS to supervise any [] contact with minors. .
. . On December 20, 2013, a revised FSP was developed. Father attended the FSP meeting and signed the FSP. The following additional objectives were added to Father's FSP: to comply with all treatment recommendation of CEU; to sign authorization forms allowing DHS to obtain copies of evaluations and progress reports; to continue with mental health treatment and [to] meet with a psychiatrist on a monthly basis.Trial Court Opinion, 6/25/15, at 1-4.
In February 2014, the criminal court lifted the stay away order. On February, 11, 2014, at a permanency review hearing, Father was found in moderate compliance with his FSP. Children remained in foster care with paternal grandmother. Father was ordered to have supervised visits with the Children at Family School. Father was re-referred to BHS for monitoring and ordered to attend Family School. Father was also re-referred to therapy to address domestic violence issues. On June 25, 2014, the FSP goal was changed to adoption. On August 11, 2014, at a permanency review hearing, Father was found to be in full compliance with his FSP. Father had suitable housing, signed releases, was attending Family School and was receiving mental health treatment. The court found that Father did not need more D&A treatment. . . . Family Support Services Report recommended Father to continue to attend Family School on a weekly basis. However, Father['s] attendance at Family School declined after August 11, 2014. . . . Children remained in foster care with paternal grandmother. Father was ordered to have visits with the Children once weekly at Family School. Consortium was ordered to provide DHS with Father's progress reports and treatment plans within thirty days.
On November 6, 2014, DHS filed petitions to involuntarily terminate Father's parental rights to Children, pursuant to sections 2511(a)(1), (2), (5), (8), and (b). On March 24, 2015, the court held a termination hearing where DHS presented the testimony of a social worker, paternal grandfather, and a social worker. Father testified on his own behalf at the hearing. At the conclusion of the hearing, the court entered three separate decrees involuntarily terminating Father's parental rights to each of the Children. This timely appeal followed.
On appeal, Father presents the following issues for our consideration:
(1) Did the court below err in failing to find that reasonable efforts were not made to reunify Father with his children, V.W., Jr., L.W., and N.W.?
(2) Did the court below err in finding that DHS had met its burden in proving grounds under 23 Pa.C.S.A. §2511(a)(1), (2), (5) and (8)?
(3) Did the court below err in finding that DHS had met its burden to prove that termination would be in the children's best interests, under 2511(b)?
(4) Did the court below err in denying Due Process of Law to Appellant V.W., Father, as guaranteed by the Constitution of the United States and of the Commonwealth of Pennsylvania?
We review a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to determining whether the trial court's order is supported by competent evidence. Id.
Father first asserts that DHS did not make reasonable efforts to reunify him with Children prior to filing its termination petitions. He contends that the criminal court failed to provide a reason for barring his visits with Children and that, as a result of its stay-away order, the court erected a barrier which protracted the case and delayed permanency. We disagree.
In In re D.C.D., 105 A.3d 662 (Pa. 2014), our Supreme Court acknowledged that neither subsection (a) nor (b) of the Adoption Act requires a court to consider the reasonable efforts provided to a parent prior to terminating parental rights. Id. at 672. However, the Court noted that the "provision or absence of reasonable efforts may be relevant to a court's consideration of both the grounds for termination and the best interest of the child." Id.
Instantly, Father fails to acknowledge that his repeated, physical abuse of Children precipitated the criminal court's stay-away order. Father is to blame for his actions which led to his limited visitation with Children, and, in turn, caused a delay in permanency and the ultimate filing of the termination petitions. DHS is not to blame for Father's failure to reunify with Children. Suspending visitation, based on a concern for a child's safety, is a distinct issue and does not call into question DHS's efforts to provide services to Father.
With regard to whether termination was proper under sections 2511 (a) and (b), we rely upon the well-reasoned and thorough opinion authored by the Honorable Joseph L. Fernandes in affirming the termination decrees. As Judge Fernandes found with regard to subsection 2511(a): (1) Father's attendance at Family School has been inconsistent at best; (2) due to the criminal court's stay-away order, Father was unable to establish any direct contact with Children from 4/13-2/14; (3) during the stay-away period, Father did not send letters or cards to Children or ask caseworkers about their well-being; (4) Father continues to fail to understand how his abusive behavior resulted in Children's injuries; (5) Father denied a history of domestic violence and any responsibility for pending criminal charges; (6) Father failed to provide DHS with documentation verifying his compliance with services provided to him to complete his Family Service Plan (FSP) goals, N.T. Termination Hearing, 3/24/14, at 39; (7) Children have been in foster care for almost three years which is most or all of their young lives; (8) Father is not a safe and appropriate resource for Children, having pled guilty to endangering the welfare of children and simple assault against V.M.W., Jr.; and (9) Father will remain on probation until October 2016, with a condition that he have no unsupervised contact with minors aged 10 or younger.
Despite the fact that Father testified at the termination hearing that he understands the effect that his behavior has had on his Children, N.T. Termination Hearing, 3/24/14, at 45, we note that pursuant to 23 Pa.C.S. § 2511(b), "[w]ith 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."
With regard to subsection 2511(b), the court found the following: (1) Children have been living with foster parents, their paternal grandparents, who provide them with a safe and stable environment that attends to their needs; (2) they have resided with paternal grandparents, a pre-adoptive resource, for almost three years; (3) a DHS witness testified there is no positive parental bond between Father and Children, N.T. Termination Hearing, 3/24/14, at 35; (4) termination is in Children's best interest, id. at 27; (5) Children will not suffer any irreparable harm if Father's rights are terminated, id.; and (6) Children need permanency.
We, therefore, rely upon Judge Fernandes' opinion, in affirming the termination decrees, for Father's second and third issues on appeal. We advise the parties to attach his decision in the event of further proceedings in the matter.
With regard to Father's final claim that he was deprived of his right to due process and equal protection, we likewise find no merit to this issue. Not only does Father fail to give any concrete examples of how "the trial court necessarily violated his fundamental rights," Appellant's Brief, at 11, but the record amply supports the fact that Father was given notice and a full hearing to defend the petitions to terminate filed against him. See In re Adoption of Dale A., 683 A.2d 297 (Pa. Super. 1996) (no denial of due process and equal protection where Father had access to court's termination proceeding with appointed attorney that cross-examined witnesses).
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/10/2016
We can affirm the trial court's decision regarding the termination of parental rights with regard to any singular subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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