Opinion
J-S04028-16 No. 1116 WDA 2015
02-05-2016
IN RE: ADOPTION OF: F.H., Z.H. (MINOR CHILDREN) APPEAL OF: M.H., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Orders entered on June 26, 2015 in the Court of Common Pleas of Washington County, Orphans' Court Division, No(s): 63-15-0241; 63-15-0242 BEFORE: BOWES, OLSON, and STRASSBURGER, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge specially assigned to the Superior Court.
M.H. ("Father") appeals from the orders dated June 25, 2015, and entered on June 26, 2015, granting the petitions filed by the Washington County Children and Youth Social Service Agency ("CYS" or the "Agency") to involuntarily terminate his parental rights to his dependent, special needs children, F.H., a female born in September of 2003, and Z.H., a male born in September of 2005 (collectively, "the Children"), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). We affirm.
On November 16, 2015, this Court, acting sua sponte, dismissed Father's appeal at Docket No. 1117 WDA 2015 as duplicative, and preserved the right for him to assert issues properly raised at that docket number in the present appeal.
C.K., the natural mother of the Children, ("Mother"), died in June of 2011. N.T., 6/25/15, at 12.
The trial court set forth the relevant history of this case in its opinion. See Trial Court Opinion, 8/26/15, at 1-14. We adopt the trial court's recitation for purposes of this appeal. See id.
On July 20, 2015, Father timely filed a notice of appeal along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
In his brief on appeal, Father raises two questions for this Court's review, as follows:
I. Whether the trial court improperly terminated Father's parental rights where [F]ather was compliant with the court-ordered services but was unable to obtain employment or housing that was outside of his control pursuant to § 2511(b)[?]Father's Brief at 6.
II. Whether the trial court improperly terminated Father's parental rights where testimony indicated that [F]ather had a close bond with the [C]hild[ren] and that severing the bond would have a detrimental effect on the [] [C]hildren[?]
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 (Pa. 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., [614 Pa. 275, 284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. 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., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , [575 Pa. 647, 654-655], 838 A.2d 630, 634 (Pa. 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., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., [608 Pa. at 28-30], 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio , [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
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., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[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).
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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). The trial court terminated Father's parental rights under sections 2511(a)(1), (2), (5), (8), and (b). See Trial Court Opinion, at 9/2/15, at 1. Sections 2511(a)(1), (2), (5), (8), and (b) 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.
* * *
23 Pa.C.S.A. § 2511.
(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.
This Court has explained that the focus in terminating parental rights under section 2511(a) is on the parent, but, under section 2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
We could find that Father waived any challenge to the trial court's findings as to section 2511(a) and the subsections thereof by failing to challenge specifically that section in his concise statement and brief. See Krebs v. United Refining Company of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in both his or her concise statement of errors complained of on appeal and the Statement of Questions Involved in his or her brief on appeal). However, given the broad language used by Appellant in his concise statement and brief and, under an abundance of caution, we will review the trial court's holdings under section 2511(a). We will focus on subsection 2511(a)(2), and adopt the trial court's discussion in its opinion as this Court's own. See Trial Court Opinion, 8/26/15, at 15-20.
We note that the trial court relied on its discussion of the facts in relation to section 2511(a)(1) to support its analysis under section 2511(a)(2).
The Supreme Court set forth our inquiry under section 2511(a)(2) as follows:
[Section] 2511(a)(2) provides [the] statutory ground[] 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." . . .
[The Supreme Court] has addressed incapacity sufficient for termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The
legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.
In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986), quoting In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
This Court has stated that a parent is required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous. Id. at 340.
The trial court assessed the evidence regarding Father's repeated incapacity to parent the Children, and his inability to remedy the conditions and causes of his incapacity to parent the Children, at length, which we adopt herein. See Trial Court Opinion, 9/2/15, at 9-12.
The trial court found that the repeated and continued incapacity, abuse, neglect or refusal of Father has caused the Children to be without essential parental care, control or subsistence necessary for their physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by Father. See Trial Court Opinion, 8/26/15, at 19.
Father contends that the trial court abused its discretion and erred as a matter of law in terminating his parental rights when CYS failed to provide him with reasonable efforts to promote reunification between him and the Children prior to filing the termination petitions. Father's Brief, at 9-10. Specifically, Father complains that he lacked employment, despite applying for jobs, and that he lacked housing and a vehicle, until his mother, ("Paternal Grandmother"), gave him a vehicle at the time of the termination hearing. Father asserts that CYS did not contact Paternal Grandmother to inquire whether she would move back with Father when he obtained housing or independently become a placement resource for the Children. Id. at 10. Father states that Paternal Grandmother later moved to the Poconos to care for an elderly friend. He complains that CYS never contacted her as a placement resource for the Children, despite Father's request to consider her.
Our Supreme Court held, however, that the trial court is not required to consider reasonable efforts in relation to a decision to terminate parental rights under section 2511(a)(2). In the Interest of: D.C.D., ___ Pa. ___, ___, 105 A.3d 662, 675 (2014). Thus, we find his argument lacks merit.
The facts, as found by the trial court, nevertheless, support the conclusion that CYS made reasonable efforts to reunify the Children with Father, and Father failed to make sufficient progress with the services offered to him. The trial court stated:
[T]he [C]hildren were placed in foster care in 2011 due to the parents' drug use as well as their failure to provide appropriate medical care and safe and appropriate housing for the [C]hildren. Again in 2014, the [C]hildren were placed in foster care because [Father] failed to comply with his own treatment, failed to provide appropriate medical care, and failed to provide [a] safe and appropriate home for the [C]hildren. For the past thirteen (13) months [Father] proved unable to remedy these circumstances. Furthermore, he did not consistently comply with his own services while the [C]hildren were in placement. For these and all of the above reasons, the [c]ourt found that the Agency met its burden by clear and convincing evidence that grounds for termination under Subsection [2511] (a)(2) existed.Trial Court Opinion, 8/26/15, at 19-21.
Although a reasonable efforts inquiry is not an element to a termination decision under section 2511(a)(2), our review of the record shows that there is ample evidence to support a determination that CYS made reasonable efforts, yet Father failed to make sufficient progress with the services provided to successfully be capable of parenting the Children. As the trial court's factual findings are supported by the record, and the court's legal conclusions are not the result of an error of law or an abuse of discretion, we affirm the trial court's orders with regard to subsection 2511(a)(2). In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27.
Next, we review the termination of Father's parental rights under section 2511(b). Our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as
love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
Father asserts that there was no expert testimony regarding the bond between the Children and him, and no evidence of a true bonding assessment. He also asserts that the evidence presented at the hearing indicated that there is a close bond between the Children and him. Father's Brief at 14. For these reasons, Father claims the trial court failed to properly conduct its bond analysis under section 2511(b). Id.
We have stated that, in conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). This Court has also observed that no bond worth preserving is formed between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). It is appropriate to consider a child's bond with his or her foster parent. See In re: T.S.M., 620 Pa. at 629-630, 71 A.3d at 268.
In addition, in In re: T.S.M., our Supreme Court set forth the process for evaluating the existing bond between a parent and a child, and the necessity for the court to focus on concerns of an unhealthy attachment and the availability of an adoptive home. The Supreme Court stated the following:
[C]ontradictory considerations exist as to whether termination will benefit the needs and welfare of a child who has a strong but unhealthy bond to his biological parent, especially considering the existence or lack thereof of bonds to a pre-adoptive family. As with dependency determinations, we emphasize that the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved. See , e.g., R.J.T., [9 A.3d 1179, 1190 (Pa. 2010)] (holding that statutory criteria of whether child has been in care for fifteen of the prior twenty-two months should not be viewed as a "litmus test" but rather as merely one of many factors in considering goal change). Obviously, attention must be paid to the pain that inevitably results from breaking a child's bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact. Similarly, while termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home, termination may be necessary for the child's needs and welfare in cases where the child's parental bond is impeding the search and placement with a permanent adoptive home.
[The Adoption and Safe Families Act of 1997, P.L. 105-89] ASFA[,] was enacted to combat the problem of foster care drift, where children . . . are shuttled from one foster home to another, waiting for their parents to demonstrate their ability to care for the children. See In re R.J.T., 9 A.3d at 1186; In re Adoption of S.E.G., [901 A.2d 1017, 1019 (Pa. 2006)]. This drift was the unfortunate byproduct of the system's focus on reuniting children with their biological parents, even in situations where it was clear that the parents would be unable to parent in any reasonable period of time. Following ASFA, Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons. See , 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S. § 6351(f)(9) (requiring courts to determine whether an agency
has filed a termination of parental rights petition if the child has been in placement for fifteen of the last twenty-two months).In re: T.S.M., 620 Pa. at 631-632, 71 A.3d at 268-269.
In the present matter, the trial court considered the needs and welfare of the Children, and set forth its bond-effect analysis. The trial court also provided an explanation of why its termination decision was not based on matters that were outside of Father's control. We adopt the trial court's discussion herein. See Trial Court Opinion, 8/26/15, at 21-26. The trial court properly considered the best interests of the Children in rendering its decision that, although there was evidence of a bond between the Children and Father, it was in their best interests to sever that bond. See id.; In re: T.S.M., 620 Pa. at 631-632, 71 A.3d at 268-269.
Father testified that he loves the Children very much. N.T., 6/25/15, at 121. As we stated in In re Z.P., a child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting." Id. at 1125. Rather, "a parent's basic constitutional right to the custody and rearing of his 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." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004). Again, as the trial court's factual findings are supported by the record, and the court's legal conclusions are not the result of an error of law or an abuse of discretion, we affirm the trial court's decision with regard to section 2511(b). In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27.
Accordingly, we affirm the trial court's orders terminating Father's parental rights. As we have adopted portions of the trial court's opinion as our own, the parties are directed to attach a copy of the trial court's opinion of August 26, 2015 to any future filings with this Court.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/5/2016
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