Opinion
J-S14002-19 No. 3112 EDA 2018 No. 3113 EDA 2018 No. 3114 EDA 2018
04-23-2019
IN THE INTEREST OF: M.B., A MINOR APPEAL OF: C.B., FATHER IN THE INTEREST OF: N.B., A MINOR APPEAL OF: C.B., FATHER IN THE INTEREST OF: B.B., A MINOR APPEAL OF: C.B., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 36 O.C.A. 2018, 42-DP-2017, FID: 45-FN-25-2015 Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 34 O.C.A. 2018, 40 DP 2015, 45-FN-25-2015 Appeal from the Order Entered September 19, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 37 O.C.A. 2018, 39 DP 2015, 45-FN-25-2015 BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
C.B. (Father) appeals from the trial court's orders involuntarily terminating his parental rights to his three minor children, B.B. (born 3/2011), N.B. (born 3/2014), and M.B. (born 2/2016) (collectively, "Children"). After careful review, we affirm.
In Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018), our Supreme Court recently held:
[I]n future cases [Pa.R.A.P.] 341(a) will, in accordance with it Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.Id. at 977 (emphasis added). Here, Father filed one notice of appeal for each Child. Each notice of appeal contains two docket numbers, one from the dependency (goal change) matter and the other from the adoption (termination) matter in each Child's case. However, the order from which Father appeals, entered on September 19, 2018, only lists the adoption docket number for each Child (36 O.C.A. 2018; 34 O.C.A. 2018; and 37 O.C.A. 2018) and resolves only the issue regarding the termination of Father's parental rights to Children. As part of the termination process, the order also permits the adoption of Child to proceed without Father's consent and transfers custody of Children to CYS. Id. at 2. The order does not resolve any issues with regard to dependency. Therefore, because the orders do not resolve issues arising from anything but the lower court's adoption dockets, i.e., issues relating to terminating parental rights, we need not quash the appeal under Walker.
Monroe County Children and Youth Services (CYS) first became involved with Father's family in April 2015 when the agency became aware that Father was selling cocaine and heroin out of the family home. On May 1, 2015, B.B. and N.B. were adjudicated dependent and placed into foster care. In early 2016, dependency was terminated and B.B. and N.B. returned to live at home with Mother and Father; Father, however, was incarcerated months later on firearms and drug charges. In April 2017, CYS received a referral that Children's youngest sibling, six-week old "Baby M.B.2," had been hospitalized with two skull fractures, a brain bleed, a fractured cheekbone, and a broken nose. The court entered an emergency protective custody order for Children and they were placed into agency custody and put back into foster care. At that time, Paternal Grandmother (Grandmother) requested to be a placement resource for Children, however she reported having some health concerns, told the agency that she does not drive, and stated that she would call the caseworkers later to determine if she wanted to be a resource. Mother was arrested on April 30, 2017, and charged with attempted homicide, aggravated assault, and endangering the welfare of a child. Grandmother contacted the agency on May 1, 2017, again indicating that she wished to be a placement resource.
M.B. had not yet been born.
Mother is not involved in the current appeal.
Baby M.B.2 is not involved in the current appeal.
Mother was sentenced to 4-8 years' incarceration, with a two-year probationary tail. Additionally, in September 2017, the court entered an order finding aggravating circumstances existed with regard to Mother as the perpetrator of abuse toward M.B.2.
In September 2017, the court suspended Mother's and Father's visitation with Children and changed the goal to adoption, with a concurrent goal of placement with a legal custodian (relative). Foster mother's daughter and son-in-law have been approved as adoptive resources for Children. On April 23, 2018, Grandmother indicated that she did not want to be a resource for Baby M.B.2 due to his significant medical issues; however, Grandmother stated that she still wanted to be an adoptive resource for Children, who are the subject of the current termination matter.
Foster mother's daughter and son-in-law regularly visit with Children at the foster home, are very involved with Children, and vacation with Children and foster parents.
On June 4, 2018, CYS filed a petition to involuntarily terminate Father's parental rights to Children. On September 18, 2018, the court held a termination hearing. Mother, Father, Grandmother, Paternal Aunt, CYS Caseworker Melissa Daubert, attorney Brandie Belanger, and guardian ad litem Barbara Fitzgerald testified at the proceeding. At the time of the termination hearing, Children had been living with foster parents for 17 months. Caseworker Daubert testified that Mother and Father, who were incarcerated at the time of the termination hearing, are not ready, willing or able to take care of Children, that Children are in need of permanency, and that it is in Children's best interest to have Father's parental rights terminated. N.T. Termination Hearing, 9/18/18, at 45-46. Caseworker Daubert testified that the only service plan objective that Father had completed was a "Read to Your Child" program in prison. Id. at 87. Daubert also testified that B.B. told her that Father used to hit Mother and that he remembers his parents fighting.
Each child was represented by guardian ad litem, Barbara Fitzgerald, and attorney, Brandie Belanger, Esquire, at the termination hearing. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel in contested involuntary termination proceedings) and In re K.R., 2018 PA Super 334 (Pa. Super. filed Dec. 10, 2018) (en banc), but see In Re: T.S., E.S., 2018 Pa. LEXIS 4374, 2018 WL 4001825, at *10 (Pa. filed Aug. 22, 2018) ("[D]uring contested termination-of-parental-rights proceedings, where there is no conflict between a child's legal and best interests, an attorney-guardian ad litem representing the child's best interests can also represent the child's legal interests.").
Baby M.B.2 has been placed with a separate foster family since his release from the hospital. The family is a pre-adoptive placement for him.
At the time of the termination hearing, an Interstate Custody Placement Compact (ICPC) from New Jersey, Grandmother's home state, was still pending. Id. at 63. However, in January 2018, an initial, preliminary evaluation and recommendation indicated that Grandmother would be a good resource for Children. Id. at 76. Caseworker Daubert noted that that recommendation did not include a home visit with Grandmother, an assessment as to whether there was a bond between Grandmother and Children, or a determination as to whether placement with Grandmother was appropriate based upon concerns about Grandmother's health history. Grandmother testified that in January 2018 she was hospitalized for heart failure due to a medication issue, id. at 97, and that in July 2018, Paternal Aunt moved in with her to help her cook and clean. Id. at 108. Children's guardian ad litem testified that Grandmother had never called CYS to set up a visit with Children or to check in on the Children, and had only attended one placement hearing. Id. at 85.
See 62 P.S. § 761. The ICPC is an agreement among the states, the District of Columbia and the Virgin Islands to cooperate with each other in the interstate placement of children. See id. at Article I ("(a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.").
Grandmother, on the other hand, testified that she called foster mother to speak to Children and that foster mother would not answer her phone. Id. at 100. Grandmother also testified that she called CYS four or five times and was able to speak to Children on two of those occasions. Id. Grandmother testified that she has been preparing for Children to live with her for over a year and had attended foster parent classes. Id. at 103-104. At the time of the hearing, Grandmother was not aware of Baby M.B.2's medical condition and the extent of his medical needs, id. at 101; when Grandmother heard testimony about the baby's extensive medical condition, she told the court that she would not be able to care for him. Id. at 102. Grandmother also testified that Children lived with her when Mother was pregnant with M.B. until two months after M.B. was born, in April 2016. Id. at 111.
Paternal Aunt also was a foster parent with custody of two of her other nieces and nephews in 2005-2006. N.T. Termination Hearing, 9/18/18, at 118.
Father, who was still incarcerated at the time of the termination hearing, testified that his minimum date of release from incarceration is August 2021, although he had an appeal pending. Id. at 129. He testified that while he currently is unable to care for Children, he would like Children to be with his mother and sister (Grandmother and Paternal Aunt) while he is incarcerated. Id. at 120. Father testified that he loves his Children, wants to see them, and wants his visitation rights reinstated. Id. at 135. At the time of the hearing, Father had not seen Children in over a year. Id. Father also testified that he called foster mother weekly to talk to Children but that she either did not have her phone in her possession or she told him that the Children were in bed. Id. at 142.
In August, a caseworker met with Father in jail. Father was on the waiting list for drug and alcohol and parenting classes. Father also reported that he did not believe Mother inflicted the injuries on Baby M.B.2. Rather, he told CYS caseworkers that he believed either M.B. or B.B. inflicted the injuries on their baby brother. Father was not permitted to visit with Children at the prison at that time due to prison unit restrictions.
Children's attorney testified that she met with B.B. and N.B., who indicated that they did not want to live with Father. Id. at 144. Both children recall Father being abusive when the family lived together. The oldest of the Children, B.B., who was seven-and-one-half years old at the time of the meeting, did not remember Grandmother. Attorney Belanger concluded that there was no bond between Grandmother and Children. Id. at 145-46.
Following the hearing, the court entered an order involuntarily terminating Father's parental rights to Children pursuant to sections 2511(a)(1), (2), (8), and (b) of the Adoption Act. Father filed a timely notice of appeal and concurrent Pa.R.A.P. 1925(a)(2)(i) concise statement of errors complained of on appeal. He raises one issue for our consideration:
Whether the [l]ower [c]ourt erred by terminating Father's [p]arental [r]ights . . . where Monroe County Children and Youth Services failed to make reasonable efforts towards reunification with [P]aternal [G]randmother despite Father's clear and settled purpose to have his mother/family care for his children, and despite a lack of clear convincing evidence that termination best served the children's needs and welfare?Appellant's Brief, at 14.
In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The 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." It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of proving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b)). Moreover, the fact that a parent is incarcerated neither compels nor precludes termination. Rather, it is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under section 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. See In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).
After a comprehensive review of the certified record, the parties' briefs on appeal, and relevant case law, we have concluded that the trial court adequately disposes of Father's issue on appeal. We, therefore, rely upon the well-written opinion, authored by the Honorable Jonathan Mark, to affirm the order involuntarily terminating Father's parental rights to Children pursuant to 23 Pa.C.S. §§ 2511(a)(2) and (b). See Trial Court Opinion, 12/4/18, at 22-28 (termination proper where court found: Father has been incarcerated since Children were adjudicated dependent and placed in CYS' care in April 2017; Father not eligible for parole until at least August 2021; Father had not seen Children in over one year at the time of termination hearing; Father has not used available resources and taken affirmative steps to support parent-child relationship while incarcerated; Father has failed to perform parental duties for almost two years and lacked capacity to parent Children prior to incarceration; Father has only made handful of calls to talk to Children and has written single card to each Child; Father has never promoted Children's mental, physical, spiritual or emotional well-being; Father was selling drugs out of family home during brief time he lived with B.B. and N.B.; Children do not want to live with Father; little to no bond exists between Father and Children; any apparent bond between Father and oldest Child, B.B., is not healthy; Children are bonded with foster family; foster mother's daughter and son-in-law are adoptive resource for Children; termination of Father's parental rights would be in Children's best interests; CYS need not make reasonable efforts to reunify Children with grandparent under 23 Pa.C.S. §§ 2511(a)(2) and (8); Grandmother had not yet been approved as kinship resource at time of hearing; and no evidence of bond between Grandmother and Children).
Thus, we conclude, based on competent evidence in the record, the trial court's decision to involuntarily terminate Father's parental rights was neither an abuse of discretion nor an error of law. In re A.R., supra. We direct the parties to attach a copy of Judge Mark's opinion in the event of further proceedings in the matter.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/23/19
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