In re Interest of E.C.

Full title: IN THE INTEREST OF: E.C., A MINOR APPEAL OF: P.C., FATHER IN THE INTEREST…

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Nov 16, 2016

J-S84031-16 (Pa. Super. Ct. Nov. 16, 2016)

Opinion

J-S84031-16 No. 1297 EDA 2016 No. 1299 EDA 2016

11-16-2016

IN THE INTEREST OF: E.C., A MINOR APPEAL OF: P.C., FATHER IN THE INTEREST OF: P.E.C., A MINOR APPEAL OF: P.C., FATHER

MEMORANDUM BY FITZGERALD, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered March 29, 2016 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000280-2015 CP-51-DP-0001663-2012 FID 51-FN-370117-2009 Appeal from the Order Entered March 29, 2016 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000279-2015 CP-51-DP-0001664-2012 FID 51-FN-370117-2009 BEFORE: OLSON, SOLANO, and FITZGERALD,^* JJ. MEMORANDUM BY FITZGERALD, J.:

* Former Justice specially assigned to the Superior Court. --------

Appellant, P.C. ("Father"), appeals from the orders entered in the Philadelphia County Court of Common Pleas, which involuntarily terminated his parental rights to minor children, E.C. and P.E.C. ("Children"), pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. We affirm.

We adopt the facts and procedural history set forth by the trial court's opinion. See Trial Ct. Op., 5/25/16, at 1-4.

Father raises the following issues for our review:

A. Whether the trial court committed reversible error when it involuntarily terminated [F]ather's parental rights where such determination was not supported by clear and convincing evidence under the Adoption Act 23 Pa.C.S.A. §2511 (a)(1), (a)(2), (a)(5), and (a)(8) as [F]ather made progress towards working and meeting his FSP goals.

B. Whether the trial court committed reversible error when it involuntarily terminated [F]ather's parental rights without giving primary consideration to the effect that the termination would have on the developmental physical and emotional needs of [Children] as required by the Adoption Act 23 Pa.C.S.A. §2511(b)?

Father's Brief at 2.

Appellate review in termination of parental rights cases implicates the following principles:

In cases involving termination of parental rights: "our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child."

In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (citation omitted).

Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. . . . We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa. Super.) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004) (internal citations omitted).

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

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002) (internal citations and quotation marks omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc). If the court's findings are supported by competent evidence, we must affirm the court's decision, even if the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa. Super. 2004).

In re Z.P., 994 A.2d at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa. Super. 2007)).

The Philadelphia Department of Human Services ("DHS") sought involuntary termination of Father's parental rights on the following grounds:

§ 2511. Grounds for involuntary termination

(a) General Rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose

of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.


* * *

(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 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.


* * *

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of 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. § 2511(a)(1), (2), (5), (8), and (b).

"Parental rights may be involuntarily terminated where any one subsection of Section 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions." In re Z.P., 994 A.2d at 1117.

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.

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

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

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

Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights

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

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his 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). Regarding the six-month period prior to filing the termination petition:

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

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). "Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." Id. at 340 (citation omitted). The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger , 331 A.2d 172 (Pa. 1975), where our Supreme Court announced that under what is now Section 2511(a)(2), the involuntary termination petitioner "must prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied." In Interest of Lilley , 719 A.2d 327, 330 (Pa. Super. 1998).

Furthermore, termination of parental rights under Section 2511(a)(5) requires: "(1) the child has been removed from parental care for at least six months; (2) the conditions which led to removal and placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Z.P., 994 A.2d at 1118 (citation omitted).

To terminate parental rights under Section 2511(a)(8), the petitioner must demonstrate the following factors: "(1) the child has been removed from parental care for [twelve] months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the [child's] needs and welfare . . . ." In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).

Under Section 2511(b), the court must consider whether termination will meet the child's needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006). "Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond." Id. at 520 (citations omitted). Significantly:

In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.

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

In re Z.P., 994 A.2d at 1121 (citations omitted).

Our Supreme Court has stated:

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 his or her physical and emotional needs.

Where a parent is incarcerated, the fact of incarceration does not, in itself, provide grounds for the termination of parental rights. However, a parent's responsibilities are not tolled during incarceration. The focus is on whether the parent utilized resources available while in prison to maintain a relationship with his or her child. An incarcerated parent is expected to utilize all available resources to foster a continuing close relationship with his or her children.

In re B., N.M., 856 A.2d at 855 (citations and quotation marks omitted). "[A] parent's basic constitutional right to the custody and rearing of his or her 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." Id. at 856.

After careful consideration of the parties' briefs, the record, and the decision of the trial court, we affirm on the basis of the court's opinion. See Trial Ct. Op. at 4-10 (holding: (1) Father has been incarcerated from the time Children came into care in September 2012, and, therefore, has been unable to meet Children's daily needs; Father's monthly visits with Children are insufficient to maintain a parent-child relationship; Father has not made any attempt to satisfy his FSP objectives; Father has an extensive criminal history and currently no date is set for his release from prison; Children are now in a positive environment with their foster parents, who provide for Children's daily needs and with whom Children have developed a parent-child bond; Children have received consistent love, care, support, and affection from their foster parents; Father's limited contact with Children prior to his incarceration combined with his current unavailability demonstrates his inability to undertake his parental duties, to provide a stable environment for Children, and to significantly contribute to Children's psychological health and well-being; the record indicates there was clear and convincing evidence that Father refused or failed to perform his parental duties pursuant to § 2511(a)(1), (2), (5), and (8); (2) Children would not suffer irreparable emotional harm by terminating Father's parental rights; the case manager's testimony indicated that Children have developed a strong parent-child bond with their foster parents; the case manager also testified that during visits with Father, P.E.C. was inattentive and routinely expressed a desire to watch television or play rather than interact with Father; the case manager attributed P.E.C.'s behavior to being placed in care at a young age and never having lived with Father; Father never established a parent-child relationship with P.E.C.; Father's relationship with E.C. resembled a friendship more than a parent-child relationship; even if Father was given an opportunity to care for Children, his plans for the future are speculative; Children can receive the necessary permanency and stability from their foster parents and, therefore, it is in Children's best interest to change the goal to adoption; there is clear and convincing evidence that DHS met its burden pursuant to § 2511(b)). Accordingly, we affirm the court's orders.

Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/16/2016

Image materials not available for display.