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[U] In re E.M.S.

Superior Court of Pennsylvania

May 21, 2013

IN THE INTEREST OF: E.M.S., A MINOR Appeal of: B.S., Father Appellant IN THE INTEREST OF: E.M.S., A MINOR Appeal of: B.S., Father Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered October 26, 2012 in the Court of Common Pleas of York County, Orphan's Court Division, at No. 2012-0042

Appeal from the Order entered October 26, 2012 in the Court of Common Pleas of York County, Criminal Division, at CP-67-DP-28-2011

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM

OLSON, J.

B.S., ("Father"), appeals from the decree entered on October 26, 2012, which granted the petition filed by the York County Office of Children, Youth, and Families ("CYF"), seeking to involuntarily terminate Father's parental rights to his dependent, female child, E.M.S., born in May 2009, ("Child"), pursuant to sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Father also appeals from the October 26, 2012 order that changed the permanency goal for Child to adoption, pursuant to section 6351 of the Juvenile Act. 42 Pa.C.S.A. § 6351.[1] We affirm.

The trial court ably set forth the factual background and procedural history with regard to this appeal, which we adopt. See Trial Court Opinion, 10/26/12, at 1-8. We set forth herein only those facts found by the trial court as are necessary to understand the instant appeals.

In 2003, Father received his fourth conviction for possessing a controlled substance with the intent to deliver and the trial court sentenced Father to a term of five to ten years in prison. N.T. Hearing, 8/27/12, at 62-63; Trial Court Opinion, 10/26/12, at 3. Father began serving this sentence on June 27, 2004 and Father was initially paroled in June 2008. Trial Court Opinion, 10/26/12, at 3. On November 16, 2010, however, Father was re-incarcerated for violating his parole (as a result of a physical altercation with Mother) and, since that time, Father has remained in prison. N.T. Hearing, 8/27/12, at 64-65; Trial Court Opinion, 10/26/12, at 3. Father's maximum release date is May 27, 2013. N.T. Hearing, 8/27/12, at 20; Trial Court Opinion, 10/26/12, at 6.

Child was born in May 2009, during Father's period of release on parole. Father claims that he was the primary caregiver for Child after she was born in 2009 until Father's re-incarceration in November 2010. N.T. Hearing, 8/27/12, at 58. In January 2011, Mother became incarcerated. She placed Child in the care of her paramour, M.B. In June 2011, Mother gave birth to a daughter, L'R.L.M., Child's half-sibling, fathered by M.B. N.T. Hearing, 8/27/12, at 8-9.

In March 2011, Child, while in the care of M.B., was injured. At that time, the trial court placed Child in the legal and physical custody of CYF, based on allegations that M.B. physically abused Child. N.T. Hearing, 8/27/12, at 8-9. On April 13, 2011, the trial court adjudicated Child dependent, and awarded CYF both legal and physical custody of Child. Id. at 10-13. Child has remained dependent since the adjudication.

On April 14, 2011, CYF established Family Service Plan ("FSP") objectives for both Father and Mother. Id. at 13-14. CYF revised the FSP objectives on September 1, 2011, and updated the FSP objectives on March 1, 2012 and July 25, 2012. Id.

On June 12, 2012, CYF filed the termination and goal change petitions with regard to both parents. On August 27, 2012, the trial court held an evidentiary hearing on CYF's petitions. At the hearing, CYF presented the testimony of Ms. Pam Hunt, the caseworker assigned to the family. Father testified on his own behalf, via telephone, from prison.[2]

In the decree and order entered on October 26, 2012, the trial court involuntarily terminated Father's parental rights and changed the permanency goal for Child to adoption. On November 21, 2012, Father filed notices of appeal from the decree and the order, along with concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Father raises two issues:[3]
I. Whether the [trial] court abused its discretion in terminating parental rights of [Father] against the sufficiency and weight of the evidence[?]
II.Whether the [trial] court abused its discretion in ordering a change of goal to adoption against the sufficiency and weight of the evidence by finding that [Child's] best interests would be served by terminating Father's parental rights by finding Father had been given a reasonable amount of time to achieve permanency due to incarceration[?]

Father's Brief at 6.

First, Father claims that the evidence is insufficient to support the termination of his parental rights to Child. Father also claims that the trial court's decree is against the weight of the evidence. Both claims are premised upon Father's contention that he "has done everything he could do while incarcerated to maintain his parental duties" and to achieve his FSP goals. Father's Brief at 12-17. These claims fail.

In reviewing an appeal from the termination of parental rights, we utilize the following standard:

appellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires [that we] accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
As [was] discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal citations omitted).

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). We have explained:

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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, the trial court terminated Father's parental rights under sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. On appeal, however, we will focus on sections 2511(a)(1), (2), and (b).

In relevant part, section 2511 provides:

§ 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.
(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, ...

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