Opinion
J-A29005-17 No. 1275 EDA 2017
11-13-2017
IN THE INTEREST OF: A.S.B., JR. A/K/A A.B., A MINOR APPEAL OF: A.B., SR., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 15, 2017
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000959-2016, CP-51-DP-0000653-2011 BEFORE: LAZARUS, J., PLATT, J., and STRASSBURGER*, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
A.B., Sr. ("Father") appeals from the trial court's order involuntarily terminating his parental rights to his minor son, A.S.B. ("Child") (born 1/10). After careful review, we affirm based upon the cogent opinion authored by the Honorable Joseph Fernandes.
Child was first brought to the attention of the Philadelphia Department of Human Services ("DHS") when it received a report in March 2011 that Child had been found in the care of his paternal grandmother, who was unconscious due to a drug overdose. DHS's Motion to Compel Cooperation with Child Protective Services Investigation of Abuse and/or Neglect, 4/1/11, at c. Over the next several months, DHS visited the home of family members caring for Child, where reports of unsanitary home conditions were substantiated. Finally, in December 2011, amidst allegations of family members using drugs, DHS filed an emergent dependency petition. In January 2012, the court held a hearing and adjudicated Child dependent; DHS was ordered to supervise Child while family members continued to care for him. In March 2012, the court ordered DHS to obtain protective custody of Child.
We note a discrepancy in the trial court opinion where it indicates that Child's Mother had overdosed and been rushed to a hospital. See Trial Court Opinion, at 7/21/17, at 1. In fact, it was paternal grandmother, in whose care Parents had left Child, who was rendered unconscious from an apparent overdose. Father and Mother, however, had been arrested at the same time surrounding reports of domestic violence.
At this time, Father, a known drug user, was given the following objectives as part of a Family Service Plan ("FSP"): receive drug and alcohol and mental health treatment, complete a parenting capacity evaluation ("PCE"), obtain stable and appropriate housing, and attend supervised visits. In August 2012, Child was placed in a foster home; parents were granted supervised visits. Throughout the ensuing years, Father demonstrated inconsistency with regard to his FSP objectives. Child was adjudicated dependent for a second time on September 18, 2015, and he has been in foster care, under the custody of DHS, since August 2015.
Child was placed in the custody of DHS and placed in foster care three times in August 2012, December 2013, and finally in August 2015.
On October 17, 2016, DHS filed a petition to involuntarily terminate Father's parental rights to Child. The trial court held a two-day termination hearing on January 17, 2017 and March 15, 2017, at which case manager, Curtis Tate, and Father testified. On March 15, 2017, the trial court entered an order terminating Father's parental rights to Child pursuant to sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, and changed the goal to adoption. Specifically, the court found Father's testimony not credible, that he had not completed his stated objectives under the FSP, and that there was no paternal bond with Child. N.T. Termination Hearing, 3/15/17, at 27.
Father attended the second day, not the first day, of the termination proceedings.
23 Pa.C.S. §§ 2101-2910.
Father filed a timely appeal and Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on appeal. On appeal, Father presents the following issue for our consideration: Did the trial court err or abuse its discretion when it determined that DHS had met its burden of proof and then terminated Father's parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b), and changed the permanency goal to adoption pursuant to 42 Pa.C.S. § 6301, et seq.?
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).
In 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)).
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.
While Father correctly acknowledges that it is petitioner's burden to prove, by clear and convincing evidence, that termination is proper under sections 2511(a) and (b), Father's sole legal argument on appeal is that "other than Father's own testimony, the record of this case is that the court simply has too little information to test the information he has provided, and therefore cannot [terminate under sections 2511(a)(1), (2), (5), (8)]" and that there is "absolutely NO information directly from this 7-year-old child [to terminate under section 2511(b)]." Appellant's Brief, at 23-26.
DHS best describes parents' performance since Child was declared dependent and put in placement as "yo-yo[ing] between compliance and non-compliance with their objectives." Appellee's Brief, at 4. Essentially, Father relapsed throughout Child's placement, failed to complete a court-ordered PCE, minimally complied with his FSP objectives, consistently missed his visits with Child, failed to take Child to medical appointments, and was incarcerated during periods of Child's placement. Father's transgressions and inability to actively and positively parent Child caused Child to enter and exit foster care three times over the course of three years. Child had been in foster care for a period of 16 consecutive months at the time of the termination proceedings. Child, who is now seven-years-old, needs stability and permanency. He is in a loving and nurturing home where he has bonded with his foster parent; adoption is in his best interests.
Father takes issue with the trial court's and DHS's reliance upon an exhibit ("Exhibit A"), which he claims was never moved or accepted into evidence below. Father, therefore, claims that the exhibit cannot be considered competent evidence upon which to rely on for termination. See Appellant's Brief, at 7. Exhibit "A" consists of a 32-page recitation of facts regarding the case. Father is correct that it was not a part of the exhibits explicitly entered into evidence during the termination hearings. It is well known that "[a] trial court may not consider evidence outside of the record in making its determination. Nor may this Court uphold a trial court's order on the basis of off-the-record facts." Ney v. Ney , 917 A.2d 863, 866 (Pa. Super. 2007) (internal citations and quotation marks omitted); see also M.P. v. M.P., 54 A.3d 950, 954 (Pa. Super. 2012) (trial court may not consider evidence outside record in making decision).
While Father accepts the trial court's recitation of the facts and procedural background in its Rule 1925(a) opinion, he "specifically challenges the 'Factual and Procedural Background' of the lower court's Opinion insofar as it includes allegations of the DHS 'Exhibit A' which is not properly in evidence." Id. We note that at the January termination hearing, the court entered Exhibits 117 into evidence, as well as a copy of Child's birth certificate. See N.T. Termination Hearing, 1/17/17, at 9; id. 3/15/17, at 4. The parties also agreed to a stipulated trial and that if called to testify "CUA will testify to the facts alleged in the petition." N.T. Termination Hearing, 1/17/17, at 8; id. 3/15/17, at 4. Moreover, on January 17, 2017, the court specifically entered a separate order entering Exhibits 117 into evidence. Order, 1/17/17. Exhibit "1" consists of case files, detailed permanency review orders that contain findings, docket entries from Child's dependency case, case event outcomes, substance testing results, and trial court CEU progress reports. To the extent that the trial court may have relied upon information contained in Exhibit A in its factual and procedural background, we note that the majority if not all of this information was also contained within properly admitted Exhibits 117. Therefore, we do not find this to be a ground for reversal where the properly admitted evidence otherwise supports termination.
At the termination hearing, Tate indicated that Child's foster resource parent is interested in adopting him. N.T. Termination Hearing, 1/17/17, at 19. --------
After careful consideration of the notes of testimony from the two-day termination hearing, the remainder of the certified record, the parties' briefs and relevant case law, we affirm on the basis of Judge Fernandes' Rule 1925(a) opinion. We instruct the parties to attach a copy of Judge Fernandes' decision in the event of further proceedings in the matter.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2017
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