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Appeal of: J.C.

January 13, 2012

APPEAL OF: J.C., BIOLOGICAL FATHER


In the Court of Common Pleas of Lawrence County, Civil Division at No. 20004 of 2011 OC Adoption

The opinion of the court was delivered by: Opinion BY Allen, J.:

Appeal from the Order Entered April 18, 2011,

BEFORE: ALLEN, LAZARUS, and OTT, JJ.

J.C. ("Father") appeals from the order dated April 13, 2011, and entered April 18, 2011, in the Court of Common Pleas of Lawrence County, terminating the parental rights to his son, B.C. (d.o.b. 8/8/08) ("Child"), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(8) and (b). For the following reasons, we affirm.

The trial court accurately summarized the history of this case as follows:

[The Lawrence County Children and Youth Services ("CYS")] initiated a case file regarding the [Child] in August of 2008 after receiving several calls regarding the natural parents' ability to care for him. Shortly thereafter, in September of 2008, [CYS] petitioned this Court to grant them legal and physical custody. This Court granted [CYS's] request, but the parents fled to North Dakota prior to [CYS] obtaining physical custody of [Child]. With the assistance of the North Dakota law enforcement agency, [Child] was found and returned to Lawrence County in January of 2009; [Child] has remained in [CYS's] care since that time. See In re: B.C., at case No. 225 of 2008, Dep. Lawrence County, Pennsylvania.

[Father] was subsequently incarcerated on charges relating to fleeing the jurisdiction of this Court with the minor child in question. He was eventually released in June, 2009, and a family service plan was established on his behalf.

On January 10, 2011, [CYS] filed a Petition for Involuntary Termination of Parental Rights with respect to [Father]. In the petition, [CYS] averred that the conditions which led to the initial placement of the minor child have continued to persist without resolve and that termination would therefore be in [Child's] best interests.

A hearing was held on April 8, 2011, wherein this Court confirmed [the Consent to Adoption of Child's natural mother, V.C. ("Mother")], and subsequently heard testimony regarding the Petition for Involuntary Termination of [Father's] parental rights. [Father] did not appear despite his counsel's efforts to contact him and [make] proper service upon him, evidenced by the green card receipt, on January 13, 2011. Additionally, Ms. McConahy, who testified on behalf of [CYS], as the minor child's caseworker, stated that she saw [Father] several days prior to the termination hearing and reminded him of the same being scheduled.

Ms. McConahy was very candid with the Court in describing [Father's] efforts to comply with the family service plan. She stated that [Father] was, for the most part, cooperative with CYS throughout the history of this case, with the exception of his flight to North Dakota. Ms. McConahy additionally stated that [Father] had good attendance for most of his scheduled visitations with the minor child. However, Ms. McConahy went on to describe [Father's] visits as more routine in nature, and lacking any real effort to develop any appropriate bond with [Child]. This fact was apparent from [Father's] limited involvement with the child during visitations, and the child's inability to emotionally connect with [Father].

Trial Court Opinion, 6/2/11, at 2-4.

In an order dated April 13, 2011, and entered April 18, 2011, the trial court granted the petition of CYS and terminated Father's parental rights to Child. Father filed a timely notice of appeal from the trial court's order on May 12, 2011, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On appeal, Father presents two interrelated issues for our review:

1. Was the evidence insufficient to terminate the parental rights of the [Father] where the amended [Child's] permanency plan contained elements[,] which were financially prohibitive to the appellant?

2. Was the evidence insufficient to terminate the parental rights of the [Father] where the amended [Child's] permanency plan contained elements[,] which were unduly repetitive, burdensome and prohibitive?

Father's Brief at 5.

At the outset, we note that Father's claims on appeal are waived for the purpose of our review, as a result of his failure to raise these issues at the termination hearing. The Pennsylvania Rules of Appellate Procedure require that issues not raised in the lower court be waived because they cannot be raised for the first time on appeal. Pa.R.A.P. 302. Father did not raise these issues before the trial court at the termination hearing. Accordingly, these issues are waived. R.P. v. L.P., 957 A.2d 1205, 1222 (Pa. Super. 2008) (issues raised for the first time on appeal are waived and cannot be considered). In addition, our Supreme Court has held that the Rule 1925(b) statement cannot be used to raise a claim for the first time on appeal. Steiner v. Markel, 986 A.2d 1253, 1257 (Pa. 2009). Although Father was not present at the termination hearing, Father's counsel attended the hearing and cross-examined the witnesses at the hearing. In his cross- examination of the witnesses, Father's counsel did not raise either of the issues presently on appeal, asserting the financial hardship of the Family Safety Plan ("FSP"), or the redundancy and unreasonable burden of the goals in the FSP. See N.T., 4/8/11, at 36-53. Since Father did not raise his appellate issues at trial, CYS was denied the opportunity to address them at the hearing, and we are precluded from meaningful review. Although Father does not raise any cognizable claims regarding the termination of his parental rights, we proceed, arguendo, to address the trial court's order.

The standard and scope of review applicable in termination of parental rights cases are:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that it would give to a jury verdict. 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 B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc).

Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by ...


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