From Casetext: Smarter Legal Research

In re

SUPERIOR COURT OF PENNSYLVANIA
Sep 8, 2016
No. 531 WDA 2016 (Pa. Super. Ct. Sep. 8, 2016)

Opinion

J-S65015-16 No. 531 WDA 2016

09-08-2016

IN THE MATTER OF THE ADOPTION OF: S.R.B. APPEAL OF: C.R.B. AND S.B.


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered March 10, 2016
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 55 IN Adoption 2015 BEFORE: LAZARUS, J., OLSON, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:

Retired Senior Judge assigned to the Superior Court.

C.R.B. and S.B. appeal from the trial court's order denying their petition to involuntarily terminate the parental rights of Appellee, A.B. ("Father") to his daughter, S.R.B. ("Child") (born 2/12). After careful review, we affirm.

The parental rights of Child's mother, N.R, were also involuntarily terminated. She, however, is not a party to this appeal.

Appellants are Child's legal guardians. C.R.B. is Child's maternal grandmother; S.B. is Child's step-grandfather. J.R. is Child's maternal grandfather and C.R.B.'s former husband. Mother and Father met in 2011; Mother became pregnant with Child shortly thereafter. Mother has serious drug abuse issues; Father was incarcerated for theft in early 2013, just after Child's first birthday. Due to Mother and Father's erratic and dangerous behaviors, Appellants often cared for Child. In May 2013 Child was adjudicated dependent after Mother was arrested for driving under the influence with Child in the vehicle. Child remained in foster care for one month and, in 2014, Child was placed in Appellants' care. In June 2014, Appellants were awarded legal custodianship of Child.

On July 20, 2015, Appellants filed a petition to terminate Father's parental rights under sections 23 Pa.C.S. §§ 2511(a)(1), (a)(2), (a)(5), (a)(8) and (b) of the Adoption Act. On March 10, 2016, the trial court held a termination hearing at which C.R.B., J.R., and Father (via telephone from prison) testified. On March 10, 2016, the trial court entered an order denying Appellants' petition to terminate Father's parental rights. This timely appeal follows.

On appeal, Appellants present the following issue for our review:

Did the trial Court abuse its discretion and render its opinion on insufficient evidentiary support when it refused to terminate the parental rights of Father to his daughter [S.R.B.] where, in the first year of [S.R.B.'s] life, Father lived a chaotic lifestyle, abused drugs, used alcohol and failed to provide his daughter with a stable, safe living situation, and since that time has been incarcerated, has failed to indicate when he will be released, has failed to solidify tangible plans for housing and a job upon his release, has made only minimal attempts to contact his daughter, and has only a tenuous parental bond with her?

When reviewing a trial court's decision to grant or deny a termination of parental rights petition, an appellate court should apply an abuse of discretion standard, accepting the court's findings of fact and credibility determinations if they are supported by the record, and reversing only if the trial court made an error of law or abused its discretion. In re S.P., 47 A.2d 817, 826 (Pa. 2011). "[A] decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will." Id.

It is well established that "[i]ncarceration of a parent does not, in itself, provide grounds for the termination of parental rights[;] a parent's responsibilities are not tolled during his incarceration." In re D.J.S., 737 A.2d 283, 286-87 (Pa. Super. 1999). In In re S.P., supra , the Pennsylvania Supreme Court further explored the relevance of incarceration in termination cases under section (a)(2). The Court stated:

[I]ncarceration, 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).
Id. at 830. Moreover, the Court noted that
[a] parent's absence or/or failure to support [his or her child] 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.
Id. at 828 (emphasis added).

Instantly, Father was incarcerated just after Child's first birthday and will remain incarcerated, at a minimum, until Child is 4 years of age, and likely older. See id. at 831 ("[L]ength of 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.'" ). However, "[p]arental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances." In re D.J.S., supra at 284.

Here, the testimony unequivocally shows that Father calls Child at least once or twice daily when she is in Maternal Grandfather, J.R's care. While Child has not visited with Father recently, this as a result of Appellants' decision "to not normalize the prison system for [Child]." N.T. Termination Hearing, 3/10/16, at 43. Moreover, the trial court did not find C.R.B.'s (Maternal Grandmother) testimony regarding Father's failure to request visits or call Child on the phone credible. See In re S.P., supra. Instead, the court chose to credit Father's testimony that: (1) he attempted to call Child at least four times a month when she was in Appellants' care; (2) he has consistently sent Child letters, pictures of himself, and presents during the holidays; (3) Appellants refused to allow him to talk or visit with Child continuously throughout 2014-2015; (4) despite Appellants' obstructionist tactics, Father has continued to remain in contact with Child via reaching out to J.R. (Maternal Grandfather); (5) Father has been taking classes and workshops in prison to address his behavior problems; (6) Father is a trained laborer and currently works in a carpentry shop to build his employability skill post-incarceration; (7) Father has a post-incarceration plan for supporting him and Child; and (8) Father has a bond with Child.

After reviewing the certified record, relevant case law and the parties' briefs on appeal, we rely upon the comprehensive opinion authored by the Honorable Robert A. Sambroak, Jr., to affirm the trial court's order denying Appellants' petition to terminate Father's parental rights to Child. We instruct the parties to attach a copy of Judge Sambroak, Jr.'s decision in the event of further proceedings in the matter.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/8/2016

Child's Guardian Ad Litem has also filed a brief in the instant appeal and concurs with the trial court's order denying termination of Father's parental rights to Child.

Image materials not available for display.


Summaries of

In re

SUPERIOR COURT OF PENNSYLVANIA
Sep 8, 2016
No. 531 WDA 2016 (Pa. Super. Ct. Sep. 8, 2016)
Case details for

In re

Case Details

Full title:IN THE MATTER OF THE ADOPTION OF: S.R.B. APPEAL OF: C.R.B. AND S.B.

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 8, 2016

Citations

No. 531 WDA 2016 (Pa. Super. Ct. Sep. 8, 2016)