Opinion
J-S25044-19 No. 99 MDA 2019
06-20-2019
IN THE INTEREST OF: S.S., A MINOR APPEAL OF: R.S., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered December 13, 2018 in the Court of Common Pleas of Lancaster County
Orphans' Court at No(s): 2018-00374 BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
R.S. ("Father") appeals from the Decree granting the Petition filed by the Lancaster County Children and Youth Social Service Agency ("CYS"), and involuntarily terminating his parental rights to his minor daughter, S.S. ("Child"), born in December 2015, pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We affirm.
In the same Decree, the trial court also involuntarily terminated the parental rights of Child's mother, A.L. ("Mother"). Mother has not filed an appeal from the Decree, but she filed a counseled brief in the instant appeal, wherein she argued that Father had failed to preserve his sole issue on appeal.
The trial court set forth the factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 2/12/19, at 2-11.
The trial court held termination hearings with regard to Child on April 19, 2018, July 12, 2018, and December 6, 2018. At these hearings, Pamela J. Breneman, Esquire, the guardian ad litem ("GAL") for Child and her minor half-sibling, X.L., opined that the GAL could serve as both GAL and the legal interest counsel for the children, as there was no conflict in the children's legal interests and best interests. See N.T., 4/19/18, at 5-6; N.T., 7/12/18, at 6-7. The GAL explained that Child was three years old and unable to express a preferred outcome. N.T., 12/6/18, at 4, 6. At the hearing on July 12, 2018, Father asked the trial court not to terminate his parental rights to Child, as he needed additional time to better himself and become involved in Child's life. Id. at 44.
See In re Adoption of L.B.M., 161 A.3d 172, 180 (Pa. 2017) (plurality) (holding that 23 Pa.C.S.A. § 2313(a) requires the appointment of counsel to represent the legal interests of any child involved in a contested involuntary termination proceeding, and defining a child's legal interest as synonymous with his or her preferred outcome).
See In re T.S., 192 A.3d 1080, 1092 (Pa. 2018) (explaining that if the preferred outcome of the child is incapable of ascertainment because the child is very young, there can be no conflict between the child's legal interests and his or her best interests).
On December 13, 2018, the trial court entered the Decree involuntarily terminating Father's parental rights to Child, pursuant to section 2511(a)(1), (2), (5), (8), and (b). Father then 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 Concise Statement, Father asserted that the trial court "erred in its decision to change the goal for [] [C]hild because it was not supported by the evidence and because it is not in the best interests of [] [C]hild." Concise Statement, 1/10/19 (emphasis added).
In his brief on appeal, Father raises one issue for our review:
I. Did the trial court abuse its discretion when it held that the best interests and welfare of [Child] would be best served by a termination of [Father's parental] right[s] even though Father had regular, frequent visits with [Child], previously lived with [Child], and the record lacks evidence of the emotional impact on [] [C]hild upon severance of the parental bond?Father's Brief at 4.
We must first determine whether Father preserved his issue on appeal, in light of the fact that the issue he identified in his brief is different from the issue presented in his Concise Statement. On this basis, we could deem Father's issue to be waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that "[i]ssues not included in the Statement ... are waived."); see also Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that "[a]ny issues not raised in a 1925(b) statement will be deemed waived."); In re L.M., 923 A.2d 505, 510 (Pa. Super. 2007) (applying Lord ). However, the trial court, in its Opinion, discerned that Father desired to challenge the termination of his parental rights to Child (not a change of Child's placement goal), see Trial Court Opinion, 2/12/19, at 18, and addressed his claim as such. See generally Commonwealth v. Burton , 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) (declining to find waiver because the trial court had addressed the issues raised in an untimely concise statement). We will likewise address the merits of Father's challenge to the termination of his parental rights.
We review Father's appeal in accordance with the following standard:
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 T.C., 984 A.2d 549, 551 (Pa. Super. 2009) (citation omitted).
Termination of parental rights is controlled by section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. 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). "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." Id. (citation and internal quotation marks omitted). Further, 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." In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017) (citation omitted). "[I]f competent evidence supports the trial court's findings, we will affirm even if the record could also support the opposite result." Id. (citation omitted).
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), along with a consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we will review the trial court's decision to terminate Father's parental rights based upon sections 2511(a)(2) and (b), which state the following:
§ 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:
* * *
(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.
* * *
23 Pa.C.S.A. § 2511(a)(2), (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.
The Pennsylvania Supreme Court has addressed incapacity sufficient for termination under section 2511(a)(2) as follows:
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., 47 A.3d 817, 827 (Pa. 2012) (citations omitted); see also In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010) (explaining that the grounds for termination are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied).
This Court has long recognized 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.
In the instant appeal, the trial court primarily analyzed the evidence under subsection 2511(a)(8), but also stated that it found clear and convincing evidence to terminate under subsection (a)(2), stating, in relevant part, as follows:
Testimony at the July 12, 2018, hearing indicated that Father had been given a referral for a psychological evaluation but had not even scheduled same, and that Father had not re-engaged in drug and alcohol counseling[,] as he had been incarcerated so often.
Father's domestic violence objective had not been addressed. Father was living with his mother, which was not an adequate setting for [] Child. On June 21, 2018, Father pled guilty to public drunkenness. It is apparent that as of the July 12, 2018, hearing date - four months after Father was served with [CYS's] [P]etition to terminate his parental rights - Father was not remotely close to completing the objectives on [] [C]hild's permanency plan.Trial Court Opinion, 2/12/19, at 15 (citation to record omitted).
Further, although the record does show that Father attended some visits with Child, this fact alone will not prevent the termination of his parental rights, particularly where Father failed to complete nearly all of his court-ordered objectives:
According to the GAL, during the approximately 2-year period that Child was in placement, Father visited with Child approximately 12 times. Brief for the GAL at 10. Additionally, the GAL maintains that even though Child and Father did live in the same household for, approximately, the first 9 months of Child's life, Father "was never in a caretaking role of [Child]." Id. at 7.
See , e.g., In re Z.P., 994 A.2d at 1121 (stating that "[a] parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights.").
• Mental Health and Drug and Alcohol Objective: Incomplete. Father was unsuccessfully discharged from at least three separate mental health/drug and alcohol programs, mostly due to noncompliance. See N.T., 4/19/18, at 49-52. Father failed to sign releases so that CYS could communicate with the respective facilities. See id. Father also failed to schedule a psychological evaluation, despite receiving a referral from CYS. N.T., 7/12/18, at 15.
• Domestic Violence Counseling Objective: Incomplete. Father failed to schedule a domestic violence evaluation, despite receiving a referral from CYS. Id.
• Crime-Free Objective: Incomplete. Father has an extensive criminal history, committed a new offense in June 2018, and
was on house arrest at the time of entry of the Decree. Id. at 15-19, 23-24; N.T., 4/19/18, at 49-54, 57; see also Trial Court Opinion, 2/12/19, at 7-8.
• Parenting Counseling Objective: Incomplete. CYS was unable to make a parenting referral due to Father's sporadic incarceration and his failure to complete mental health/drug and alcohol treatment. N.T., 4/19/18, at 59.
• Housing Objective: Incomplete. Father was residing in the home of his mother, which was deemed an inappropriate place for Child to reside due to the fact that this was the home from which she was removed by CYS, due to domestic violence incidents involving the adults residing in the home. N.T., 7/12/18, at 15, 28-30, 45; see also N.T., 4/19/18, at 60.
• Maintain Adequate Income Objective: Incomplete. Father was not employed at the time of any of the termination hearings.
Thus, because the record shows that Father was either incapable of or refused to address his objectives, and that the causes of his incapacity or refusal cannot or will not be remedied by Father, the record supports the termination of his parental rights under subsection 2511(a)(2). See In re M.P., 204 A.3d 976, at **9-10 (Pa. Super. 2019) (holding that termination of mother's parental rights under subsection 2511(a)(2) was proper where mother had failed to complete many of her objectives, including those concerning her drug addiction, remaining crime-free, and obtaining suitable housing for the children, and rejecting mother's plea that she needed more time to address these issues). Additionally, although Father claimed that he wanted to preserve his relationship with Child and needed additional time in which to complete his goals, in light of Father's long history of uncooperativeness, the trial court properly rejected Father's plea as being untimely or disingenuous. See In re A.L.D., 797 A.2d at 340; see also In re M.P., 204 A.3d 976, at *10. The evidence is clear that Child needs permanency; it would not be in her best interests for her life to be placed on hold any longer. See In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (noting that 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."); see also In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006) (stating that "a child's life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future."). We, therefore, find no reason to disturb the trial court's conclusions or its discretion in terminating Father's parental rights to Child under subsection 2511(a)(2).
Next, we review Father's contention that the trial court abused its discretion in determining that termination served Child's best interests under section 2511(b). Father's Brief at 10-12. Father challenges the trial court's finding that there was no bond, or only a de minimis bond, between Father and Child. Id. at 10-11. Father counters that
[t]he record proves that [F]ather spent the first eight months living with [Child]; frequently visited [Child] both in and out of prison and treatment facilities; and that these visits were appropriate. Based on the record[,] ... a bond does exist. The trial court cannot summarily dismiss it.Father's Brief at 11; see also id. (asserting that the record is devoid of any evidence demonstrating how the severance of this bond will effect Child).
We conclude that the evidence in the certified record demonstrates that the termination of Father's parental rights would best serve Child's needs and welfare because (1) it would provide Child with the permanence and stability that she needs in her life with her pre-adoptive family, where she resides with her step-brother, X.L.; and (2) even if there is a de minimis bond between Child and Father, it is in Child's best interests for such bond to be severed, and she will suffer no detriment. See Trial Court Opinion, 2/12/19, at 17; see also id. at 13 (wherein the trial court found that Child now resides in a "nurturing, loving and [] stable home environment, which Father failed to provide."). At the time of the entry of the Decree terminating Father's parental rights, Child had been in placement for nearly 2 years, the majority of her young life. It serves Child's developmental, physical and emotional needs and welfare to terminate Father's parental rights, since it is unclear when, if ever, Father will be ready to assume his parental responsibilities. See In re Adoption of C.L.G., 956 A.2d at 1007 (noting that courts "will not toll the well-being and permanency of [a child] indefinitely."). We determine that there is clear and convincing evidence in the record that supports the trial court's conclusion regarding the termination of Father's parental rights to Child pursuant to section 2511(b). Accordingly, we affirm the trial court's Decree.
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 06/20/2019
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