Opinion
J-S41044-17 No. 355 MDA 2017
06-22-2017
IN RE: A.R.L., JR. APPEAL OF: A.T.G., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree January 30, 2017
In the Court of Common Pleas of Lancaster County
Orphans' Court at No(s): 2206 of 2016 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, A.T.G. ("Father"), appeals from the decree entered in the Lancaster County Court of Common Pleas, Orphans' Court, which changed the family goal to adoption and granted the petition of the Lancaster County Children and Youth Social Service Agency ("Agency") for involuntary termination of Father's parental rights to his minor child, A.R.L., Jr. ("Child"). We affirm in part and remand with instructions and for further proceedings if necessary.
In its opinion, the Orphans' Court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Father raises one issue for our review:
DID THE [ORPHANS'] COURT ERR IN FINDING THAT THE AGENCY MET ITS BURDEN OF PROOF THAT INVOLUNTARY TERMINATION IS WARRANTED UNDER 23 PA.C.S. SECTION 2511(A)(1) AND (2)?(Father's Brief at 7).
Appellate review of 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) (quoting In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009)).
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. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (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., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008)).
The Agency filed a petition for the involuntary termination of Father's parental rights to Child 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:
23 Pa.C.S.A. § 2511(a)(1)-(2). Termination under Section 2511(a)(1) involves the following:(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.
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.
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:
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).
[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), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal 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 (Pa.Super. 2002). "Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." Id. at 340. The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger , 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), "the petitioner for involuntary termination 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). "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., supra at 1117. See also In re K.Z.S., 946 A.2d 753, 758 (Pa.Super. 2008) (stating: "Satisfaction of any one subsection of Section 2511(a), along with consideration of Section 2511(b), is sufficient for involuntary termination of parental rights").
"Under section 2511, the trial court must engage in a bifurcated process." In re I.J., supra at 10.
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... 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).
[A] best interest of the child analysis under [section] 2511(b) requires consideration of intangibles such as love, comfort, security, and stability. To this end, this Court has indicated that the trial 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. Moreover, in performing a "best interests" analysis[, t]he court should also consider the importance of continuity of relationships to the child, because severing close parental ties is usually extremely painful. The court must consider whether a natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. Most importantly, adequate consideration must be given to the needs and welfare of the child.In re I.J., supra at 12 (internal citations and quotation marks omitted) (remanding for comprehensive best interests analysis under Section 2511(b); although court reviewed evidence of record regarding relationship between child and mother, which appears to reflect that no natural parental bond exists, court did not reach definitive finding on whether such bond exists; on remand, court had discretion to take additional testimony and receive more evidence to complete best interests analysis).
"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., supra at 1121 (internal citations omitted). "While a parent's emotional bond with his... child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child." In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011). "The mere existence of an emotional bond does not preclude the termination of parental rights." Id. Moreover, a "parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights." In re Z.P., supra at 1121. "In cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." In re K.Z.S., supra at 762-63.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Leslie Gorbey, we conclude Father's issue merits no relief. The Orphans' Court opinion comprehensively discusses and properly disposes of the question presented. ( See Orphans' Court Opinion, filed March 28, 2017, at 6-9) (finding: under Section 2511(a)(1), in the six months immediately preceding filing of petition for involuntary termination of Father's parental rights, Father's only effort on behalf of Child included taking DNA test a full year after he was first notified that he might be Child's biological father; Father missed 3 appointments for testing because "he was not good with dates"; court recognized that Child was forced to remain in placement for almost two years, while continuing to wait for Father to "step up"; under Section 2511(a)(2), Father's efforts were not even minimal; had Father attended genetic testing when originally scheduled, the Agency would have been able to assess Father and make necessary service referrals before Child remained in placement for 15 months; Father was solely responsible for delay in genetic testing; Father's continued disinterest in caring for Child supports court's termination decision under subsection (a); court cannot gamble with safety and welfare of Child). Accordingly, as to Father's issue on appeal regarding the sufficiency of the evidence to support termination of his parental rights under 23 Pa.C.S.A. § 2511(a)(1)-(2), we affirm on the basis of the Orphans' Court opinion.
Father criticizes the court's mention of Mother's report, as presented in a February 2016 permanency review hearing petition, that Father was not interested in submitting to any testing. Nothing in the record, however, indicates this reference was a dispositive factor in the Orphans' Court's final decision. --------
Nevertheless, careful review of the certified record reveals the court did not place on the record any "best interests" analysis under Section 2511(b). We recognize Father did not challenge the court's decision under Section 2511(b) on appeal. Still, the Orphans' Court's consideration of Section 2511(a) and (b) is necessary for the involuntary termination of parental rights. Therefore, we are constrained to remand the matter to the Orphans' Court for a full Section 2511(b) analysis. See In re I.J., supra ; In re K.Z.S , supra. On remand, the court has the discretion to take additional testimony and receive more evidence to complete the Section 2511(b) best interests analysis. See In re I.J., supra. Accordingly, we affirm the Orphans' Court decision under 23 Pa.C.S.A. § 2511(a) but remand for the court's consideration and analysis under 23 Pa.C.S.A. § 2511(b) and further proceedings, if necessary.
Decree affirmed in part; case remanded with instructions. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/22/2017
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