Opinion
39 MDA 2024
09-10-2024
IN RE: P.S.W., A MINOR APPEAL OF: D.L.W., FATHER
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Decree Entered December 18, 2023 In the Court of Common Pleas of Lancaster County Orphans' Court at No(s): 1804 of 2023.
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., STABILE, J., and MURRAY, J.
MEMORANDUM
BOWES, J.:
D.L.W. ("Father") appeals from the decree involuntarily terminating his parental rights as to his daughter, P.S.W., born in August 2022. We affirm.
Of relevance to the instant appeal, the Lancaster County Children and Youth Social Services Agency ("CYA") became involved in P.S.W.'s life when she tested positive for cocaine, methamphetamine, and fentanyl at birth. See N.T. Hearing, 10/3/23 at 10. P.S.W. remained in the hospital for five days, during which time Father had some level of contact with her, though it is unclear how much. In addition to the substance abuse of both Mother and Father, CYA was also concerned about Father being indicated in child sexual abuse allegations in 2002, 2004, and 2018. Therefore, upon her release from the hospital at five days old, P.S.W. was placed into protective care. She has since remained in the same pre-adoptive home with her maternal half-brother. Father has not seen her since she was released from the hospital to the resource parents.
In October 2023, the orphans' court involuntarily terminated the parental rights of P.S.W.'s mother, I.R. ("Mother"). She has not appealed that order.
On September 27, 2022, P.S.W. was adjudicated dependent. Father's permanency plan for reunification had a single task for him to complete, namely, to undergo a psychosexual evaluation. Until he completed that assessment, the court suspended his visitation with P.S.W.
Father did not schedule the assessment on his own initially, and CYA was unable to contact him throughout the first half of October 2022. On October 17, 2022, the agency learned that he had been incarcerated that day for violating his probation by admitting to cocaine use for a third time. Although Father ultimately executed the necessary release for a referral to the Commonwealth Clinical Group ("CCG") to be scheduled for an evaluation when CYA visited him in jail in November, he could not complete the evaluation until his release on December 10, 2022. Following his release, Father failed to schedule or complete the evaluation. CYA tried to contact him twice in December, through his probation officer, but their efforts were to no avail. The agency continued to attempt contact throughout January, only to learn that he had re-entered jail on January 30, 2023.
On February 27, 2023, the trial court held a permanency review hearing, which Father did not attend. The court approved a permanency plan for Father as follows:
Father's only reunification objective was to resolve the issues that led him to sexually offend. To complete this objective, Father was to attend a sexual offender evaluation to determine the appropriate treatment and follow all recommendations of the treatment providers. Also, Father was to have no unsupervised contact with children until agreed upon by his therapist, the victim's therapist, and [CYA]. Following the permanency review hearing, the [c]ourt found that Father was not in compliance with the permanency plan because he had no contact with [CYA] and there was no effort to complete the psychosexual evaluation that he was ordered to complete five months prior.Trial Court Opinion, 12/11/23, at 3.
Father was released from jail sometime in late April. CYA re-established contact on May 18, 2023, at which time Father reported that he had scheduled the evaluation with CCG for June 27, 2023. The appointment was moved to July 31, 2023, because he was participating in an in-patient rehabilitation program, and again to August 2, 2023, for CCG to secure an English-speaking therapist.
Father finally completed the evaluation by phone on August 2, 2023. However, he did not provide any information regarding the sexual abuse allegations lodged against him and did not follow up with the therapist's requests for clarification. As a result, the evaluator could not set a treatment plan or assess whether Father posed a safety concern. Therefore, she recommended on September 26, 2023, that Father complete an additional psychosexual evaluation with a therapeutic polygraph test. Additionally, based on Father's self-reporting of various mental health diagnoses and an overdose in June 2023, she directed that he undergo psychiatric and drug and alcohol evaluations, conform with any suggested therapy from those evaluations, and be granted only supervised contact with P.S.W.
In the interim, on July 26, 2023, CYA filed the petition to terminate Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (6), and (b). The orphans' court held two hearings, one on October 3, 2023, focusing on Mother, and a second hearing on November 21, 2023, regarding Father. CYA presented testimony from Father's CYA caseworker, Summer Weaver, and the CCG counselor who conducted his psychosexual evaluation, Jessica Lauver. Father testified on his own behalf. Significantly, as of the November 21, 2023 termination hearing, he had not complied with Ms. Lauver's recommendations following the evaluation.
At the hearing, Gina M. Carnes, Esquire represented P.S.W. as legal counsel and guardian ad litem ("GAL"). The GAL confirmed that, due to her young age, there was no conflict between P.S.W.'s legal and best interests. See N.T. Hearing, 11/21/23, at 65. On appeal, she filed a brief in support of termination.
The court found that CYA had met its burden as to § 2511(a)(1), (2), (6), and (b), and entered a decree involuntarily terminating Father's parental rights as to P.S.W. on December 18, 2023. Father timely filed the instant notice of appeal and concise statement in accordance with Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans' court directed us to its prior opinion. Father raises the following issues for our consideration:
1. Whether the orphans' court erred in its decree dated December 18, 2023, that [CYA] had met its burden in proving that Father's parental rights should be terminated when there was
evidence he was working on and completing his goals on his child permanency plan throughout his incarceration, drug treatment and freedom and would be completing his plan soon.
2. Whether the orphans' court erred in its decree dated December 18, 2023 in terminating Father's parental rights and not allowing additional time to complete the necessary requirements to enable reunification when Father testified under oath to the progress and efforts that were being made towards reunification with his child, P.S.W.
3. Whether the orphans' court erred when it ruled [P.S.W.]'s best interests and welfare would be served by termination of parental rights even though Father was denied visitation to his child and the record lacks clear and convincing evidence of the emotional impact on a child, having been denied the possibility of a parental bond by the court.
Father's brief at 9 (cleaned up).
We begin with the legal principles governing decrees terminating parental rights:
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. This standard of review corresponds to the standard employed in dependency cases, and requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but it does not require the appellate court to accept the lower court's inferences or conclusions of law. That is, if the factual findings are supported, we must determine whether the trial court made an error of law or abused its discretion. An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion; we reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will. Thus, absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings. However, 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 Adoption of C.M., 255 A.3d 343, 358-59 (Pa. 2021) (cleaned up). "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 M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (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." In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
Section 2511 of the Adoption Act requires a bifurcated analysis of the grounds for termination and the needs and welfare of the child:
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 [§] 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to [§] 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.In re Adoption of B.G.S., 245 A.3d 700, 705 (Pa.Super. 2021) (cleaned up). We have defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (cleaned up).
To affirm a termination order, we need only agree with any one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). As it pertains to the case sub judice, we consider § 2511(a)(2) and (b), which provide as follows in relevant part:
(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.. . . .
(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.23 Pa.C.S. § 2511.
The grounds for termination of parental rights under § 2511(a)(2) due to parental incapacity are not limited to affirmative misconduct but may also "include acts of refusal as well as incapacity to perform parental duties." In re Adoption of M.A.B., 166 A.3d 434, 444 (Pa.Super. 2017). We have long recognized that a parent is "required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." Id. at 443 (cleaned up). In that regard:
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. 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.Id. (cleaned up). At a termination hearing, the orphans' court may properly reject as untimely or disingenuous a parent's vow to follow through on necessary services when the parent failed to cooperate with the agency for a lengthy period or to take advantage of available services during the dependency proceedings. See In re Z.P., 994 A.2d 1108, 1117-18 (Pa.Super. 2010).
Father argues that "[a]lthough [he] has been incarcerated or in a drug rehab for much of P.S.W.'s short life, he did successfully complete or make significant progress in the areas required by the" permanency plan. See Father's brief at 16. He maintains that he asked for pictures and updates regarding P.S.W. and "[h]e wanted to pursue a close relationship with his daughter, but visits were not happening due to the court order[.]" Id. Father contends that CYA failed to prove a continued incapacity under § 2511(a)(2) because he completed his permanency goal, has not been incarcerated or in rehab since July 10, 2023, and was working and attending school. Id. at 19.
Father is correct that visits were suspended by court order. However, he alone possessed the power to have those visits reinstated by completing his psychosexual evaluation. He did not timely do that. Instead, our review of the record reveals: a history of re-incarcerations and relapses over the nine months it took Father to schedule the evaluation; a general lack of initiative to meet the solitary goal he had in order to both visit and ultimately reunify with P.S.W.; and an inability to remain drug-free and in the community.
For example, Father tested positive for cocaine and THC at a probation drug screening less than two weeks before the November termination hearing. Concomitantly, it took him eleven months to comply with his sole goal of completing the psychosexual examination, the results of which proved inconclusive and necessitated additional assessments that were never performed. Certainly, Father has made some efforts in that he did schedule and participate in the initial evaluation. We further recognize that he faced scheduling difficulties between his incarcerations and rehabilitations. However, the onus is on Father to overcome those hurdles and demonstrate diligent efforts to reunify. See In re Adoption of M.A.B., 166 A.3d at 443. As aptly stated by the GAL, "[t]he fact that [Father] was either unwilling or unable to maintain his freedom for a consistent period of time is a demonstration of [F]ather's level of commitment to his child." GAL's brief at 9.
The certified record confirms the orphans' court's assessment that Father failed to expeditiously overcome his own roadblocks in scheduling the one goal he had to begin reunification with his daughter. Indeed, his lack of effort and inability to remain in the community resulted in over a year passing without Father having any visitations with P.S.W. and without any meaningful headway in determining whether he posed a safety concern. Even he recognized during his testimony that his "time was limited. [He] was in and out of incarceration and that's on [him]." N.T. Hearing, 11/21/23, at 61. Furthermore, Father readily admitted that at the time of the termination hearing he still would "have to do a lot" to be a good parent for P.S.W. Id. at 59. Specifically, he explained that he needed to "get [his] drug addiction under control" and "would have to have a stable job[.]" Id.
Stated simply, Father's delaying has prolonged his inability to care for P.S.W. and demonstrated an unwillingness to remedy those conditions. Our Supreme Court has disavowed such lackadaisical responses to reunification:
The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child's life. Fortitude is required, as a parent must act with reasonable firmness to overcome obstacles that stand in the way of preserving a parent-child relationship and may not wait for a more suitable time to perform parental responsibilities.In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021) (cleaned up). Since the record supports the court's conclusions, we hold that the orphans' court did not abuse its discretion in finding statutory support for termination pursuant to § 2511(a)(2).
Father raises a separate issue that the court erred by granting the petition and not allowing him additional time to comply with his permanency plan. See Father's brief at 22-24. The gist of his argument is that "[a]lthough he did not address all of the usual requirements by the time of the filing of the [termination] petition, he was making progress and would have been able to be reunified with his daughter if given a bit more time." Id. at 24 (cleaned up). This claim is subsumed by our analysis of § 2511(a)(2), and we find that he is not entitled to relief for the same reasons discussed at length supra. We reiterate that despite several months passing between the filing of the petition and the November 2023 hearing, Father had not complied with Ms. Lauver's recommendations from September, and therefore had not made any additional progress towards reunification.
Having found statutory support for termination under subsection (a), we now pivot to § 2511(b), which is reviewed from the child's perspective. See Matter of Adoption of L.C.J.W., 311 A.3d 41, 51 (Pa.Super. 2024). In conducting a § 2511(b) analysis, the court must place the child's "developmental, physical, and emotional needs and welfare above concerns for the parent. Accordingly, the determination of the child's particular developmental, physical, and emotional needs and welfare must be made on a case-by-case basis." Id. (cleaned up). Those emotional needs "include intangibles such as love, comfort, security, and stability." Id. at 52 (cleaned up). As to the bonds children share with their foster and biological parents, "[t]he court must consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents. And, if the child has any bond with the biological parent, the court must conduct an analysis of that bond, which is not always an easy task." Id. (cleaned up). Finally, this Court "must keep the ticking clock of childhood ever in mind" and we "will not disturb [the court's bonding] assessment when [its] factual findings are supported by the record." Id. (cleaned up).
The CYA caseworker testified that on the few occasions where she met with Father, she "would provide an update and [Father] would ask about how his daughter's doing." N.T. Hearing, 11/21/23, at 35. As indicated in the above-recited history, Father has not seen P.S.W. since she was released from the hospital five days after she was born. Further, his visitation was suspended on September 27, 2022, and never lifted because he failed to timely comply with the psychosexual evaluation or the follow-up examination. Given this lack of contact, the court determined that P.S.W. "has no relationship with her father." Orphans' Court Opinion, 12/11/23, at 9.
On the other hand, P.S.W. "has lived in a potentially permanent placement her entire life." Id. Furthermore, she has thrived in that setting and is no longer in need of early intervention services. See N.T. Hearing, 11/21/23, at 36. The record confirms the GAL's assessment that "[w]hile [F]ather squandered his time, his daughter was growing and bonding with the resource parents and her half-brother." GAL's brief at 10.
Our review of the record bears out the orphans' court's conclusions and we discern no abuse of discretion on the court's part in determining that termination was in the best interests of P.S.W.
Based on the foregoing, we affirm the decree terminating Father's parental rights as to P.S.W. Decree affirmed.
Judge Murray joins this Memorandum.
Judge Stabile files a Dissenting Memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
STABILE, J.:
I respectfully dissent. The Majority concludes that the Lancaster County Children and Youth Social Services Agency ("CYA") proved by clear and convincing evidence that Father's conduct satisfies the statutory grounds for termination of parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2).
To satisfy Section 2511(a)(2), the petitioning party must establish: "(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 re Adoption of A.H., 247 A.3d 439, 443 (Pa. Super. 2021). Grounds for termination pursuant to Section 2511(a)(2), however, "are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied." Id. (citing In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010)).
On this point, we emphasize that "[p]arents are required to make diligent efforts toward the reasonably prompt assumption of full parental duties." Id.
Here, I do not believe that CYA proved the third element for an (a)(2) termination; that the cause(s) of Father's incapacity, abuse, neglect or refusal cannot or will not be remedied, by clear and convincing evidence. The Majority agrees that Father failed to make diligent efforts to reunify with P.S.W. due to "a history of re-incarcerations and relapses over the nine months it took Father to schedule the evaluation; a general lack of initiative to meet the solitary goal he had in order to both visit and ultimately reunify with P.S.W.; and an inability to remain drug-free and in the community." Majority Memorandum, at 9.
Father argues that he completed his sole objective, the psychosexual evaluation. See Father's Brief at 19. He further contends that there is no indication in the record that he would cease making the progress necessary to reunify with Child. See id. at 19-20. I agree.
Initially, CYA had trouble contacting Father to have him execute the necessary release so that a referral could be made to Commonwealth Clinical Group ("CCG"). See N.T., 11/21/2023, at 28. CYA caseworker Summer Weaver attempted to contact him on October 3, 11, 12, 14, and 17, 2022. See id . On October 17, 2022, she learned that Father was incarcerated because, for the third time, he reported cocaine use to his probation officer. See id. Ms. Weaver then visited Father in prison, and he executed the release. See id. at 28-29. CYA made the referral to CCG on November 15, 2022. See id. at 29. However, CCG informed Ms. Weaver that they could not complete the evaluation while Father was in prison. See id.
Ms. Weaver learned from Father's probation officer that he was required to spend 45 days incarcerated or participate in a "door-to-door rehabilitation facility," and Father opted for incarceration. It is unclear from the certified record what a "door-to-door rehabilitation facility" entails.
Following his release from prison on December 10, 2022, Father was reincarcerated in February 2023. See id. at 29-30. Father was released from prison in late April 2023, and he met with Ms. Weaver on May 18, 2023, during which he advised her that he had scheduled his psychosexual evaluation for June 27, 2023. See id.
It is unclear from the certified record why Father was re-incarcerated.
Father began an inpatient drug and alcohol rehabilitation program on June 14, 2023, and concomitantly informed Ms. Weaver that he would be there until July 10, 2023. See id. Father informed Ms. Weaver that he was concerned he may miss the psychosexual evaluation because the evaluation was scheduled to occur before his rehabilitation was completed. See id. at 31. Father inquired with Ms. Weaver about completing the evaluation while he was attending inpatient rehabilitation. See id. at 55. Ms. Weaver contacted CCG on Father's behalf and, as best we can discern, on the recommendation of CCG, she rescheduled his evaluation for July 31, 2023. See id. Thereafter, CCG contacted Father and informed him that they needed to reschedule the evaluation because they did not have an English-speaking therapist for July 31, 2023. See id. at 31, 57. After being successfully discharged from his rehabilitation program, Father completed the psychosexual evaluation virtually on August 2, 2023. Despite CYA knowing Father's evaluation was scheduled and before obtaining any further recommendations from CCG, on July 26, 2023, CYA filed a petition to involuntarily terminate Father's parental rights after only eleven months of P.S.W. being in placement.
As best we can discern from the certified record, Father attended inpatient rehabilitation under his own volition.
Ms. Lauver testified that she believed Father requested the evaluation occur virtually because by the time the psychosexual evaluation occurred in August 2023, he was residing in Philadelphia, Pennsylvania. See N.T., 11/21/2023, at 19-20. She further testified that it is not uncommon to conduct the evaluation virtually. See id. at 6.
Jessica Lauver, licensed professional counselor at CCG, submitted her report and recommendations on September 26, 2023. Ms. Lauver reported that Father stated he was unaware of any details regarding the sexual abuse allegations against him, all of which were levied at least four years before P.S.W. was born. See id. at 14-15, 21, 25. She further stated that there's a possibility that the allegations are "false," and that further evaluation may "clear them up." See id. at 22.
The details of these reports are absent from the record. Father was not convicted of any crimes stemming from these allegations. See N.T., 11/21/2023, at 14-15, 55.
Moreover, the findings of Father's psychosexual evaluation were indeterminate. Ms. Lauver testified as follows:
Q: [W]ith regard to [Father], what were your recommendations at the conclusion of the evaluation?
A: [T]he general consensus here is the idea that [Father] should be evaluated further[.]
[T]he recommendation is that he needs to present for more in-depth therapy over a longer period of time to evaluate and that [would] culminate with the use of a therapeutic polygraph which allows us to verify the information that we gather from [Father.]
Once we gather that information, it's verified true, if [] he's being truthful, there are no serious concerns of any sexual allegation, he's deemed a protective factor.
* * * *
Q: [F]or [Father], because of his [] alleged past history, you wanted him polygraphed?
A: Correct.
Q: So you don't know whether or not he's being honest in his selfreporting or his lack of knowledge of these incidents so that's your reason for these recommendations?
A: Specific to the polygraph?
Q: Well, the supervised contact with [Child], the specialized individual therapy -- I mean, those.
A: Yeah, all of it is to allow him time, like I said, to have the information, you know provided to use in better and greater detail . . . you know, build a therapeutic rapport. It's difficult to talk about some of those topics with somebody that you don't know.
You build a therapeutic rapport, you verify, you continue to process through your history, then that is given over to a polygraph examiner to conduct the polygraph to verify [the answers Father] gave during that time[],and from there we make additional recommendations.N.T., 11/21/2023, 6-7, 18-19. As such, Ms. Lauver recommended that Father participate in an additional evaluation that would include a therapeutic polygraph test to determine if he posed any serious concerns as it would relate to P.S.W. See id. at 6-7, 18-19. We also emphasize Father's testimony on direct examination, as follows.
Q: Is there anything else you would like the [j]udge to know?
A: [L]ike I said before, I know as a man I made mistakes. My time was limited. I was in and out [of] incarceration and that's on me. I understand that. I still just want a chance at whatever I got to do just to get it right.... I just want that chance [to] be her father. Id. at 61.
Ms. Lauver testified that she does not always recommend a therapeutic polygraph but did so for Father because the initial evaluation was inconclusive. See N.T., 11/21/2023, at 18-19.
Thus, I would conclude that CYA failed to satisfy its burden of proving by clear and convincing evidence "that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied." 23 Pa.C.S.A. § 2511(a)(2); A.H., 247 A.3d at 443. Although Father was at fault for the initial roadblocks preventing the completion of the evaluation, he ultimately began making progress. Additionally, the testimony provided revealed a need for further psychosexual evaluation to determine whether Father poses a risk to P.S.W., and, if so, what services would be recommended. In my opinion, these facts do not demonstrate, as the Majority has concluded, that the cause(s) of Father's incapacity cannot or will not be remedied to justify termination by clear and convincing evidence.
Although the Majority affirmed based on Section 2511(a)(2), therefore obviating the need to consider any other basis for termination by the trial court, the orphans' court found additional grounds for involuntary termination pursuant to Section 2511(a)(1) and (6). I address each in turn and would conclude similarly that CYA did not prove termination under these alternative grounds by clear and convincing evidence.
To establish grounds for termination pursuant to Section 2511(a)(1) "[a] petitioner. . . must demonstrate by competent, clear and convincing evidence, '[t]he 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.'" C.M., 255 A.3d at 363-64 (citation omitted) (footnote omitted). While undefined,
our courts long have interpreted parental duties in relation to the needs of a child, such as love, protection, guidance and support. Parental duties are carried out through affirmative actions that develop and maintain the parent-child relationship. The roster of such positive actions undoubtedly includes communication and association. The performance of parental duties requires that a parent exert himself to take and maintain a place of importance in the child's life.In re Adoption of L.A.K., 265 A.3d 580, 592 (Pa. 2021) (internal citations and quotation marks omitted). Furthermore, "[f]ortitude is required, as a parent must act with 'reasonable firmness' to overcome obstacles that stand in the way of preserving a parent-child relationship and may not wait for a more suitable time to perform parental responsibilities." Id. at 592 (citation omitted).
In assessing Section 2511(a)(1), trial courts should consider the entire history of the case and avoid applying the statutory six-month requirement mechanically. C.M., 255 A.3d at 364. However, the General Assembly's emphasis on the six months immediately preceding the filing of the termination petition indicates this timeframe is the "most critical period for evaluation" of a parent's conduct. L.A.K., 265 A.3d at 592.
"[T]he question of whether a parent has failed or refused to perform parental duties must be analyzed in relation to the particular circumstances of the case." In re Burns, 379 A.2d 535, 540 (Pa. 1977). Thus, "even where the evidence clearly establishes a parent has failed to perform affirmative parental duties for a period in excess of six months. . ., the court 'must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination [of parental rights].'" L.A.K., 265 A.3d at 593. The totality of the circumstances includes consideration of the following: "(1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between the parent and child, if any, including any efforts made by the parent to reestablish contact with the child; and (3) the effect that termination of parental rights would have on the child pursuant to Section 2511(b)." Id. As explained by our Supreme Court, "the purpose of this analysis is to give effect to our mandate that courts avoid a mechanical application of the law regarding the termination of parental rights. The law must be applied with the purpose of serving needs and welfare of each individual child in his or her particular circumstances." Id.
Instantly, the orphans' court found the following regarding Section 2511(a)(1):
Father has failed to address [CYA's] concerns regarding his criminal history and his history of sexual abuse. It took Father over ten (10) months to complete the initial psychosexual evaluation that was ordered on September 27, 2022. During that period, Father has provided no care, love, or support for the Child. Father was not working on his sole reunification objective. Father has never reached out to the [c]aseworker to see how the Child is doing or see how the Child is developing. Father presented no evidence of a "continuing interest in the [C]hild and a genuine effort to maintain communication and association with the [C]hild." C.M.S., [supra at 462]. While Father would ask about the Child during his infrequent communications with the [c]aseworker, he never reached out to the [c]aseworker himself. The [c]aseworker was always the one to initiate communication with Father. During the time the [c]ourt gave Father to work on reunification, he has failed to perform essential parental duties because of his drug addiction, recidivism, and lack of contact with [CYA].Orphans' Court Opinion, 1/30/2023, at 6-7.
Upon review, I would conclude the certified record does not support the orphans' court's findings. Primarily, contrary to the court's assertion, testimony from Ms. Weaver indicated that Father was working towards his sole reunification objective, i.e., completing a psychosexual evaluation at CCG. Ms. Weaver testified that when she met with Father on May 18, 2023, he informed her that he had scheduled the psychosexual evaluation for June 27, 2023. See N.T., 11/21/2023, at 30. However, as discussed above, Father testified that he was trying to complete the evaluation during the course of his inpatient rehabilitation program, and that Ms. Weaver ultimately rescheduled that for July 31, 2023. See N.T., 11/21/2023, at 55. Ms. Weaver testified that "the plan was for [the evaluation] to be in person, [so we] agreed [] that I would reschedule it." See id. at 31. Father completed the psychosexual evaluation virtually on August 2, 2023. Despite doing this, CYA already had filed a petition seeking the involuntary termination of Father's parental rights on July 27, 2023. At the time CYA filed the petition, P.S.W. had been in placement for eleven months.
Further, although the orphans' court suspended Father's visitation pending the psychosexual evaluation, Father maintained a continuing interest in P.S.W. Although Ms. Weaver reported difficulties reaching Father at the outset of the case, she also testified that Father would inquire about P.S.W. when they met. See id. at 35, 57. In addition, contrary to the orphans' court's findings, Ms. Weaver testified that "there have been several times throughout the duration of the case that [Father] had called me." Id. at 44. Father confirmed that he would ask Ms. Weaver how P.S.W. is doing, and Ms. Weaver showed him pictures. See id. at 57.
The certified record demonstrates that Father was attempting to reestablish contact with P.S.W. by completing his sole permanency objective, the psychosexual evaluation. As discussed above, the evaluation was inconclusive, and Ms. Lauver testified that Father required further assessment. In addition, it is important to note that Father also successfully completed a drug and alcohol rehabilitation program, and he attempted to initiate contact with Ms. Weaver as well and inquired about P.S.W. when they spoke.
As such, the record demonstrates that Father was not sitting idly by, but rather attempted to perform parental duties for P.S.W. in the six months preceding the filing of the subject petition. See 23 Pa.C.S.A. § 2511(a)(1); L.A.K., 265 A.3d at 593 ("the court 'must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination [of parental rights].'"). Based upon the foregoing, I would also conclude that CYA failed to meet its burden of proof pursuant to Section 2511(a)(1).
Turning to Section 2511(a)(6), that provision provides:
(6) In the case of a newborn child, the parent knows or has reason to know of the child's birth, does not reside with the child, has not married the child's other parent, has failed for a period of four months immediately preceding the filing of the petition to make reasonable efforts to maintain substantial and continuing contact with the child and has failed during the same four-month period to provide substantial financial support for the child.23 Pa.C.S.A. § 2511(a)(6).
I again would conclude that the orphans' court erred in finding that CYA met its burden of proof inasmuch as it applies exclusively to a "newborn child." See In re Adoption of M.R.B., 25 A.3d 1247, 1253-1254 (Pa. Super. 2011). The Adoption Act defines a "newborn child" as "[a] child who is six months of age or younger at the time of the filing of any petition pursuant to Chapter 25 (relating to proceedings prior to petition to adopt." 23 Pa.C.S.A. § 2102. At the time CYA filed the petition seeking the involuntary termination of Father's parental rights, in July 2023, P.S.W. was already eleven months old. Therefore, pursuant to the Adoption Act, P.S.W. was no longer considered a "newborn child." Thus, I find that the orphans' court abused its discretion in finding that CYA satisfied its burden under Section 2511(a)(6).
Accordingly, I would conclude that the orphans' court abused its discretion by involuntarily terminating Father's parental rights pursuant to Section 2511(a)(1), (2), (6). Moreover, since I would conclude that CYA failed to meet its burden under Section 2511(a), there is no need to address Father's final issue which relates to Section 2511(b). See In re L.M., 923 A.2d 505, 511 (Pa. Super 2007) ("Only if the court determines that the parents conduct warrants termination of his or her parental rights [pursuant to Section 2511(a)] does the court engage in the second part of the analysis pursuant to Section 2511(b).").
I respectfully dissent.