Opinion
J-S09032-17 No. 2781 EDA 2016
03-22-2017
IN THE INTEREST OF: A.J.D., A MINOR APPEAL OF: D.D., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree July 21, 2016 in the Court of Common Pleas of Philadelphia County
Family Court at Nos.: CP-51-AP-0000422-2016 CP-51-DP-0002411-2014 FID: 51-FN-002210-2014 BEFORE: SHOGAN, J., STABILE, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
D.D. (Father) appeals from the decree of the Court of Common Pleas of Philadelphia County (trial court), entered July 21, 2016, that terminated his parental rights to his daughter, A.J.D., born in June of 2012. This decree also changed A.J.D.'s goal to adoption. We affirm.
The parental rights of S.C., the mother of A.J.D., were also terminated, and this Court addresses her appeal from the court's decree in a separate memorandum. --------
Philadelphia's Department of Human Services (DHS) filed a petition to terminate Father's parental rights to A.J.D. on May 12, 2016. The trial court aptly summarized the events that led DHS to file the petition in its opinion entered September 29, 2016. We direct the reader to that opinion for the facts of this case.
The trial court held a hearing on DHS' petition on July 21, 2016. Testifying at that hearing, in addition to Father, were Turning Points for Children case managers, Carol Robinson and Sharita Lee. The trial court entered its decree terminating Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (8), and (b) on July 21, 2016. Father filed a timely notice of appeal and concise statement of errors complained of on appeal on August 19, 2016. See Pa.R.A.P. 1925(a)(2)(i). The trial court entered an opinion on September 29, 2016. See Pa.R.A.P. 1925(a)(2)(ii).
Father raises the following questions for our review:
1. Did the trial court err in changing the goal to adoption and terminating [Father's] parental rights because [DHS] failed to establish by clear and convincing evidence that [Father] has evidence [sic] a settled purpose of purpose of [sic] relinquishing claim to a child or has refused or failed to his perform [sic] parental duties[?]
2. Did the trial court err in changing the goal to adoption and terminating [Father's] parental rights as [DHS] failed to establish by clear and convincing evidence that the incapacity, abuse, neglect or refusal of [Father] cannot or will not be remedied by [Father][?]
3. Did the trial court err in changing the goal to adoption and terminating [Father's] parental rights because [DHS] failed to establish by clear and convincing evidence that [twelve] months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement continue to exist, and termination would best serve the needs and welfare of [C]hild[?]
4. Did the trial court err in changing the goal to adoption and terminating [Father's] parental rights as [DHS] failed to establish by clear and convincing evidence that termination of parental rights would best serve the needs and welfare of [Child?](Father's Brief, at 3).
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.
Here, the trial court terminated Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (8), and (b). In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Requests to have a natural parent's rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 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.
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23 Pa.C.S.A. § 2511(a)(1), (b).
(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.
It is well settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence," a standard which requires evidence 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." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further,
[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 his or her physical and emotional needs. . . .In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
In regard to incarcerated persons, our Supreme Court has stated:
[I]ncarceration is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity cannot or will not be remedied.In re Adoption of S.P., 47 A.3d 817, 828, 830-31 (Pa. 2012) (case citations omitted).
* * *
[W]e now definitively hold that incarceration, 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). If a court finds grounds for termination under subsection (a)(2), a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for every child to determine, inter alia, how a parent's incarceration will factor into an assessment of the child's best interest.
To terminate parental rights pursuant to section 2511(a)(1), the person or agency seeking termination must demonstrate through clear and convincing evidence "that[,] for a period of at least six months prior to the filing of the petition, the parent's conduct demonstrates a[] settled purpose to relinquish parental rights or that the parent has refused or failed to perform parental duties." In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation omitted).
With respect to section 2511(a)(1), our Supreme Court has held:
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 or her 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).Matter of Adoption of Charles E.D.M., II , 708 A.2d 88, 92 (Pa. 1998) (citation omitted). Further,
the 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 or her 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, 872 A.2d 1200 (Pa. 2005) (citations omitted).
The Adoption Act provides that a trial court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S.A. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
"In an appeal from a goal change order, our standard of review is abuse of discretion; we are bound by the facts as found by the trial court unless they are not supported in the record." In re L.J., 691 A.2d 520, 523 (Pa. Super. 1997), appeal denied, 699 A.2d 735 (Pa. 1997) (citation omitted).
We have examined the opinion entered by the trial court on September 29, 2016, in light of the record in this matter, and are satisfied that the opinion is a complete and correct analysis of this case. Accordingly, we affirm the decree of the Court of Common Pleas of Philadelphia County that terminated Father's parental rights and changed A.J.D.'s goal to adoption on the basis of the opinion of the Honorable Joseph Fernandes.
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/22/2017
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