In re A.A.F.

Full title: IN THE INTEREST OF: A.A.F., JR., A MINOR, Appellee APPEAL OF: S.F., FATHER

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 12, 2017

J-S09005-17 (Pa. Super. Ct. Apr. 12, 2017)

Opinion

J-S09005-17 No. 2903 EDA 2016

04-12-2017

IN THE INTEREST OF: A.A.F., JR., A MINOR, Appellee APPEAL OF: S.F., FATHER

MEMORANDUM BY SHOGAN, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree August 16, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000385-2016, FID: 51-FN-002549-2014 BEFORE: SHOGAN, STABILE, and PLATT,^* JJ. MEMORANDUM BY SHOGAN, J.:

* Retired Senior Judge assigned to the Superior Court.

Appellant, S.F. ("Father"), appeals from the decree granting the petition filed by the Philadelphia Department of Human Services ("DHS") to involuntarily terminate his parental rights to his son, A.A.F., Jr., born in July of 2013 ("Child"), pursuant to sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101 et seq., and changing Child's permanency goal from reunification to adoption under the Juvenile Act, 42 Pa.C.S. § 6351. After careful review of the record, we affirm.¹

1 The trial court also entered a decree terminating the parental rights of V.B. ("Mother") to Child. Mother's appeal, docketed at 2955 EDA 2016, is addressed in a separate memorandum.

The trial court thoroughly set forth its factual findings, which we adopt and incorporate herein. See Trial Court Opinion, 11/14/16, at 1-4

Father raises the following issues for review:

1. Did the [t]rial judge rule in error that the Philadelphia City Solicitor's Office [met] its burden of proof that Father's parental rights to [his Child] should be terminated.
2. Did the trial judge rule in error that the termination of Father's parental rights would best serve the needs and welfare of [Child].
3. Did the trial judge rule in error by changing the goal to adoption.

Father's Brief at 3.

In reviewing an appeal from an order terminating parental rights, we adhere to the following standard:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., 36 A.3d [567, 572 (Pa. 2011) (plurality)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel-Bassett v. Kia Motors America , Inc., ___ Pa. ___, 34 A.3d 1, 51 (2011); Christianson v. Ely , 575 Pa. 647, 654, 838 A.2d 630, 634 (2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J. & G.J., 985 A.2d 273, 276 (Pa. Super. 2009). Moreover, we have explained that "[t]he 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." Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

The termination of parental rights involves a bifurcated analysis, governed by Section 2511 of the Adoption Act.

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) (citations omitted).

In the matter sub judice, the trial court terminated Father's parental rights under 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), 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 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). We need only agree with the trial court as to any one subsection of section 2511(a), as well as section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc); see also In the Interest of M .T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc) (this Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a)). As Father did not identify any particular statutory subsection wherein DHS failed to meet its burden of proof sufficient to support termination of Father's rights, we briefly delineate the requirements for termination under each relevant subsection.

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

To satisfy the requirements of section 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 . . . 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) (internal 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 . . . 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).

23 Pa.C.S. § 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that "[t]he 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." In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012). "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 the Interest of A.L.D., Jr., 797 A.2d 326, 337 (Pa. Super. 2002) (citation omitted). "Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." Id. at 340.

Termination of parental rights under section 2511(a)(5) requires that: "(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 1108, 1118 (Pa. Super. 2010) (citation omitted).

To terminate parental rights under section 2511(a)(8), the petitioner must prove the following: "(1) [t]he 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 needs and welfare of the child." In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa. Super. 2003).

Finally, 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. (citation omitted). Significantly,

[i]n 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 (internal citations omitted).

"The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have his . . . [parental] rights terminated." In the Interest of B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001) (citation omitted). Furthermore, this Court has observed:

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 . . . 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 [the child's] physical and emotional needs.

In re B., N.M., 856 A.2d at 855 (internal citations omitted). "[A] parent's basic constitutional right to the custody and rearing of his . . . child is converted, upon the failure to fulfill his . . . parental duties, to the child's right to have proper parenting and fulfillment of . . . [his] potential in a permanent, healthy, safe environment." Id. at 856.

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Joseph L. Fernandes, we conclude Father's issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, 11/14/16, at 6, 8, 10-15). As to termination under section 2511(a)(1), the trial court found that: Father did not complete housing services provided by the Achieving Reunification Center; Father did not allow the Community Umbrella Agency ("CUA") to assess his living conditions and he has not provided a current address; though Father is employed, he refused to provide pay stubs, as ordered by the court; Father was ordered to obtain a state identification, but the only evidence of complying with this objective was a notice from Homeland Security with a received date of August 1, 2016, well after the date the petition for termination was filed; Father did not engage in any mental health services and testified that he was unwilling to participate in these services;² Father missed one quarter of his supervised visits and Father has never complied with court orders nor has he successfully completed his Single Case Plan ("SCP") objectives that were explained to him several times. Based upon these findings, the trial court concluded that Father evidenced a settled purpose of relinquishing his parental claim to Child. Trial Court Opinion, 11/14/16, at 6. Citing this same behavior by Father, the trial court also determined that termination of parental rights was likewise warranted under sections 2511(a)(2), (5), and (8). Id. at 8, 11, 13.

2 We note that Father testified that he did not refuse mental health counseling, but asserted that therapy was unavailable to him because he did not have a state-issued identification. N.T., 8/16/16, at 91. However, Father's Parenting Capacity Evaluation indicated that Father voiced an objection to mental health therapy because "[Father's caseworker] wants to know my personal life. I want to stop. I don't need therapy." DHS Exhibit 15, 6/11/15, at 4.

The trial court also decided that DHS proved, by clear and convincing evidence, that termination of parental rights served the needs and welfare of the child, pursuant to Section 2511(b), premised upon the following: Father missed one quarter of his visits with Child over the life of the case; Child recognizes Father, but "there is no hint of a deeper, parent-child bond"; Child is in a pre-adoptive home; the CUA caseworker, Stephanie Riley, testified that Child is bonded with his foster parents and would not suffer irreparable harm if Father's rights were terminated.³ Trial Court Opinion, 11/14/16, at 14.

3 Ms. Riley also testified that the bond between Father and Child "goes from Father to [Child.]." N.T., 8/16/16, at 50.

While Father contends that his parental rights should not be terminated because he was continuing to work on achieving his SCP objectives, his actions in this regard amount to too little, too late. Particularly regarding the goal of receiving mental health therapy and acquiring state identification, the latter which Father avers was necessary for him to procure before he could seek counseling, the record indicates that Father initiated the process to acquire the identification well after the termination petition was filed. N.T., 8/16/16, Father's Exhibit F1. Furthermore, while Father asserts that he has been employed and has suitable housing, he never complied with court orders to submit pay stubs nor has he supplied an address for his residence. "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 [the child's] physical and emotional needs." In re B., N.M., 856 A.2d at 855.

Father has failed to demonstrate that the trial court's factual findings were unsupported or that the trial court made an error of law. We therefore conclude that the trial court did not abuse its discretion in terminating Father's parental rights. Accordingly, we affirm on the basis of the trial court opinion.⁴ See Trial Court Opinion, 11/14/16, at 6, 8, 10-15.

4 In the event of further proceedings in this matter, Father is directed to attach a copy of that opinion.

Father also argues that the trial court erred in changing Child's permanency goal from reunification to adoption. The trial court explained its rationale for the goal change as follows:

[Father] also alleges that the court erred in changing the [Child's] permanency goal from reunification to adoption. In a

change of goal proceeding, the child's best interest must be the focus of the trial court's determination. The child's safety and health are paramount considerations. In re A .H., 763 A.2d 873 (Pa. Super. 2000). Pennsylvania's Juvenile Act recognizes family preservation as one of its primary purposes. In the Interest Of R .P. a Minor , 957 A.2d 1205 (Pa. Super. 2008). As a result, welfare agencies must make efforts to reunify the biological parents with their child. Nonetheless, if those efforts fail, the agency must redirect its efforts toward placing the child in an adoptive home. Agencies are not required to provide services indefinitely when a parent is unwilling or unable to apply the instructions received. In re R .T., 778 A.2d 670 (Pa. Super. 2001). The trial court should consider the best interest of the child as it exists presently, rather than the facts at the time of the original petition.

* * *

Father does not have appropriate housing. After eighteen month[s], he is still unable to provide a current address. (N.T. 8/16/16, pgs. 31, 66, 95). He cannot provide proof of his employment. (N.T. 8/16/16, pgs. 32-33). Father has never obtained a non-driver's state identification, as ordered by the court from the beginning of the case. Father attempted to show that he applied for work authorization through the Department of Homeland Security, but gave no explanation why it took eighteen months to begin the process. (N.T. 8/16/16, pgs. 33-34, 91, 96), (Father's Exhibit 1). Father testified that he will not engage with mental health services. (N.T. 8/16/16, pgs. 34, 69, 91).⁵ He has missed a quarter of his visits with [Child]. Father's visits have never been changed to unsupervised. (N.T. 8/16/16, pgs. 35-37). Father has a criminal record for sexual offenses against a minor. (N.T. 8/16/16, pg. 46). DHS and CUA have made reasonable efforts to provide Father with services. (N.T. 8/16/16, pg. 109). [Child] recognizes Father during visits, but there is no deeper relationship. (N.T. 8/16/16, pgs. 50, 68). [Child] is in a pre-adoptive home with bonded foster parents who care for [his] needs. It is in [Child's] best interest to be adopted. (N.T. 8/16/16, pgs. 48-49). Because these facts were clearly and convincingly established by the credible testimony of

DHS's witnesses, the court's change of permanency goal from reunification to adoption was proper.

Trial Court Opinion, 11/14/16, at 14-15.

5 See note 2, supra. --------

This Court has stated:

[T]he focus of all dependency proceedings, including change of goal proceedings, must be on the safety, permanency, and well-being of the child. The best interests of the child take precedence over all other considerations, including the conduct and the rights of the parent . . . [W]hile parental progress toward completion of a permanency plan is an important factor, it is not to be elevated to determinative status, to the exclusion of all other factors.

In the Interest of M.T., 101 A.3d at 1175 (quoting In re A.K., 936 A.2d 528, 534 (Pa. Super. 2007)). Moreover, "the standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law." Accordingly, we review for an abuse of the trial court's discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (quotation omitted).

On appeal, Father primarily disagrees with the trial court's assessment of Father's efforts to meet his SCP goals. While Father argues for a different reading of the facts, we will not disturb the trial court's findings because they are supported by the record. Furthermore, while Father references the affection and perceived bond he shares with Child, he offers no argument that he has taken steps to assure the safety, permanence and well-being of Child which are of paramount importance in goal change proceedings. Accordingly, the trial court's ruling changing the goal from reunification to adoption was well within its discretion in this matter and will not be disturbed on appeal.

Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/12/2017

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