In re S.J.M.-B.

Full title: IN THE INTEREST OF: S.J.M.-B. APPEAL OF: D.M., Father IN THE INTEREST OF…

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Feb 13, 2017

J-S95032-16 (Pa. Super. Ct. Feb. 13, 2017)

Opinion

J-S95032-16 No. 2463 EDA 2016 No. 2464 EDA 2016

02-13-2017

IN THE INTEREST OF: S.J.M.-B. APPEAL OF: D.M., Father IN THE INTEREST OF: S.M.M.-B. APPEAL OF: D.M., Father

MEMORANDUM BY MUSMANNO, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree July 25, 2016 in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-AP-0000603-2016, CP-51-DP-0001671-2014 Appeal from the Decree July 25, 2016 in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): CP-51-AP-0000604-2016, CP-51-DP-0001670-2014 BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:

D.M. ("Father") appeals from the Decrees granting the Petitions filed by the Department of Human Services ("DHS") to involuntarily terminate his parental rights to his minor children, S.M.M.-B. (d/o/b 10/9/06) and S.J.M.-B. (d/o/b 12/3/08) (collectively "Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and changing Children's permanency goal to adoption.¹ We affirm.

1 The trial court also terminated the parental rights of Children's mother, T.B. See Trial Court Opinion, 10/18/16, at 1. T.B. did not appeal the Decrees.

The trial court set forth the relevant underlying facts in its Opinion, which we adopt for the purpose of this appeal. See Trial Court Opinion, 10/16/16, at 2-10.²

2 DHS filed the Petitions for Involuntary Termination of Parental Rights on July 7, 2016.

Following the hearing on the Petitions to terminate, the trial court entered Decrees terminating Father's parental rights. Father filed timely Notices of Appeal and Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statements. This Court consolidated the appeals.

On appeal, Father raises the following questions for our review:

1. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [Father,] pursuant to 23 Pa.C.S.A. [§] 2511(a)(1)[,] where [F]ather presented evidence that he met his [Family Service Plan ("FSP")] goal and tried to perform his parental duties[?]

2. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [Father,] pursuant to 23 Pa.C.S.A. [§] 2511(a)(2)[,] where [F]ather presented evidence that he has remedied his situation by taking violence prevention and a drug and alcohol treatment program[s, and] Father has the present capacity to care for [C]hildren[?]

3. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [Father,] pursuant to 23 Pa.C.S.A. [§] 2511(b)[,] where evidence was presented that established [C]hildren had a parental bond with [Father] prior

to his incarceration and continue this bond through phone contact and letters[?]

Father's Brief at 7.

We review an appeal from the termination of parental rights 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 L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations 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 its asserted grounds for seeking the termination of parental rights are valid." In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). "[C]lear 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 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 M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If the 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).

Satisfaction of any one subsection of section 2511(a), along with consideration of Section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we will review the trial court's decision to terminate Father's parental rights based upon section 2511(a)(1) 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:

(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.


* * *

(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.

23 Pa.C.S.A. § 2511(a)(1), (b).

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. ... [P]arental duty is best understood in relation to the needs of a child. ... [T]his court has held that the parental obligation is a positive duty[,] which requires affirmative performance. This affirmative duty ... requires a continuing interest in the child and a genuine effort to maintain communication and association with the child.

In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal quotations and citations omitted); see also In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004).

With regard to incarceration and the preservation of parental rights, we have stated the following:

[I]ncarceration of a parent does not, in itself, provide sufficient grounds for termination of parental rights; however, an incarcerated parent's responsib ilities are not tolled during [her] incarceration. ... [P]arental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of [his] ability, even in difficult circumstances.

In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations omitted); see also In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). 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 re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).

In his first claim, Father contends that the trial court erred in granting the termination Petitions because DHS did not establish, by clear and convincing evidence, that his parental rights should be terminated under Section 2511(a)(1). Father's Brief at 12-13. Father argues that he never relinquished his parental rights, or refused to perform his parental duties. Id . at 14. Father asserts that he met his FSP goal of maintaining contact with Children. Id . at 13. Father claims that he asked for prison visits, but that he was never afforded a visit. Id . Father further claims that he had telephone contact with Children. Id . Father also argues that he has completed drug and alcohol treatment and violence prevention programs in prison. Id .

The trial court found that there was clear and convincing evidence to support the termination of Father's parental rights under section 2511(a)(1). See Trial Court Opinion, 10/16/16, at 12; id . at 8-10 (wherein the trial court set forth a summary of the evidence presented at the termination hearing). Specifically, the trial court pointed out that the credible testimony of Kimberly Walker ("Walker"), the caseworker assigned to this case, indicated that Father had not complied with his FSP objectives, only had contact with Children in May 2016, and that Father had made no effort to be involved in Children's lives. See id. at 10-12. Further, the trial court found Father's testimony regarding his contacts with Children to be incredible. See Trial Court Opinion, 10/16/16, at 12.

In the instant matter, the evidence demonstrates that Father did not provide for the needs of Children, and has made minimal efforts to establish a relationship with them. See In re Adoption of S.P., 47 A.3d at 828 (stating that a parent "has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child.") (citation omitted); see also In re G.P.-R., 851 A.2d 967, 976 (Pa. Super. 2004) (stating that "[i]t is incumbent upon a parent[,] when separated from his child[,] to maintain communication and association with the child. This requires an affirmative demonstration of parental devotion, imposing upon the parent the duty to exert himself, to take and maintain a place of importance in the child's life.").

Furthermore, the fact that Father was in prison did not excuse his failure to perform his parental duties. See In re Adoption of S.P., 47 A.3d at 828 (stating that the trial court may consider a parent's incarceration in ruling on a termination petition). After our careful review of the trial court's application of the law to the facts of this case, we will not disturb the trial court's findings that Father failed to perform his parental duties with regard to Children for a period of at least six months immediately preceding the filing of the Petition. See In re B., N.M., 856 A.2d at 858 (concluding that father showed a settled purpose of relinquishing his parental rights where he sat idle for most of child's life, and that father's wish to not have his "parental rights terminated was insufficient to protect those rights without acting affirmatively to foster a parental relationship with [c]hild during his incarceration."). Thus, the trial court's determinations regarding section 2511(a)(1) are supported by competent, clear and convincing evidence in the record.

Regarding section 2511(b), the trial court inquires whether the termination of parental rights would best serve the developmental, physical and emotional needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005); see also In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In re C.M.S., 884 A.2d at 1287 (citation omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id.; see also In re Z .P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (stating that "the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship."). In conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d at 1121. Finally, although the focus in terminating parental rights under section 2511(a) is on the parent, it is on the child under section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc); see also In re Z .P., 994 A.2d at 1125 (stating 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.").

Father contends that the trial court erred in determining that termination served Children's best interests under section 2511(b). Father's Brief at 15-16. Father argues that Children had a relationship with him prior to his incarceration, and that he attempted to continue that bond through phone calls and letters. Id . at 15. Father asserts that there was no evidence presented demonstrating a lack of bond, as the caseworker never supervised a visit with Father. Id .

Here, the trial court found that the evidence demonstrated, by clear and convincing evidence, that Children have no bond with Father. See Trial Court Opinion, 10/16/16, at 13; see also N.T., 7/25/16, at 12-14 (wherein Walker testified that Children had minimal contact with Father, that Children do not ask for Father, and that Children would not be harmed by the termination of Father's parental rights); id . at 13 (wherein Walker stated that Children were safe and their needs were being met by the resource home). The trial court's determination that Father cannot provide for Children's needs and welfare, and that their best interests are served by the termination of Father's parental rights, is supported by competent, clear and convincing evidence in the record. See In re K.K.R.-S., 958 A.2d 529, 535-36 (Pa. Super. 2008) (stating that where no clear bond between the parent and the subject child was apparent, the county children and youth agency was not required to prove the absence of a positive bond); In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003) (stating that parent must put himself in a position to assume daily parenting responsibilities so that he could develop a bond with child). We, therefore, conclude that the trial court did not abuse its discretion in terminating the parental rights of Father under section 2511(b).³

3 Father failed to challenge the goal change in his appellate brief. Thus, he waived any challenge to the goal change. --------

Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/13/2017

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