July 3, 2013
IN RE: ADOPTION OF A.A. APPEAL OF: J.A., NATURAL FATHER IN RE: ADOPTION OF T.A. APPEAL OF: J.A., NATURAL FATHER
Appeal from the Order Entered July 11, 2011, In the Court of Common Pleas of Fayette County, Orphans' Court Division, at No. 16-Adopt-2010, 15-Adopt-2010.
BEFORE: SHOGAN, LAZARUS and PLATT [*], JJ.
J.A. ("Father") appeals from the orders entered July 11, 2011, which granted the petitions filed by the Fayette County Children and Youth Services ("CYS") seeking to involuntarily terminate Father's parental rights to his daughters, T.A., born in 1998, and A.A., born in 2002 (collectively "Children"), pursuant to section 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). We affirm.
Initially, CYS filed petitions on June 21, 2010, seeking the involuntary termination of Father's parental rights. The trial court appointed counsel and on September 28, 2010, denied the petitions, noting that Father had requested, but was never sent a Family Service Plan ("FSP") outlining his goals and objectives when he was incarcerated in 2009. Trial Court Opinion, 2/20/13, at 1.
Nearly a year later, on April 4, 2011, CYS filed second petitions seeking the involuntary termination of Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Counsel was appointed, and on July 11, 2011, the trial court held a hearing on the termination petitions. At the hearing, CYS presented the in camera testimony of A.A., who was then nine years old, and T.A., who was thirteen years old. N.T., 7/11/11, at 9, 29. CYS also presented the testimony of caseworker and permanency specialist, Colleen Zielinsky. Id. at 43–44. Father testified on his own behalf and presented no other witnesses. Id. at 79.
The trial court found the following facts from the testimony of Caseworker Zielinsky:
Both [C]hildren were placed in [the care and custody of CYS] on August 14, 2008 and except for the period of time the Court attempted kinship care, have remained in continuous foster care. The [C]hildren became dependent due to the homelessness of mother. Father's whereabouts were unknown. On August 22, 2008, [Father] visited the [C]hildren at the . . . Agency . . . office. During that visit, it was noted by the foster care caseworker, Colleen Zielinsky, that he slept most of the time. [Father] stated at the visit that he wanted to see the girls prior to [his] incarceration. Thereafter, [F]ather had no contact until February 12, 2009.
At a permanency review hearing held on February 12, 2009, the family service plan and child permanency plan were reviewed with [F]ather, but he refused to sign. Consequently, the plan was not fully developed until February of 2010. The first letter [Father] wrote to his daughters since August of 2008 was written on September 10, 2010. He wrote no letters for over two (2) years. [Father] followed the letter with Christmas and Easter cards. On June 29, 2011, [F]ather visited the [C]hildren at the Agency. Since August of 2008 until July of 2011, [F]ather had visited only twice, even though he had been living in a halfway house since April of 2011.
Ms. Zielinsky described the June 29, 2011 visit with the [C]hildren as distant. The [C]hildren played a game with [F]ather and would answer his questions but there was little discussion. There was no show of affection other than the hug [Father] requested at the end of the visit. T.A. informed the caseworker she was "glad it was over with" and requested that [Father] be told they do not wish to visit with him again.
Eventually [Father] entered into a family service plan. His goals required cooperation, increased parenting skills, developing a plan for an established home, engaging in drug and alcohol treatment and leading a crime free lifestyle. Of these goals, [Father] had enrolled in parenting classes and anger management courses while incarcerated.
Trial Court Opinion, 2/20/13, at 1–3 (citations omitted).
The trial court found the following facts from the testimony of Children:
A.A. testified at the hearing in quite eloquent fashion for a nine (9) year old that "The purpose of today's hearing is over our dad's permanency." She relates that "Before I came into foster care, I knew he was my father but I really didn't know what he looks like or who he really was." She admitted that at the visit he "fell asleep." She said she knew her father had been incarcerated "for a long time" and she didn't recognize him because she had not seen him for two (2) years. She liked the visit but I was "nervous and scared." A.A. does not want to visit again. The Court recognized her fear.
T.A., the older of the two sisters, testified pointedly[, ] "I want you to terminate his rights." She stated she has been in foster care for three years and even before the foster care did not know her father. They did not see him even during holidays. When she saw her father, she did not remember him nor [sic] recognize him. T.A. informed [the court] that "I do not want to continue seeing him because I don't know him. I don't want to try. It's what I want (the termination)." The Court views T.A.'s testimony as earnest and convincing.
Id., 2/20/13, at 3–4 (citations omitted).
The trial court found the following facts from the testimony of Father:
Father, J.A., took the stand and testified that he currently resided in a halfway house in Allegheny County and works at McDonald's. He admits he did not "have a place."
[Father] has a rather extensive criminal history. In 2002, he was incarcerated for Forgery and received consecutive probation; in 2004, he was convicted of Possession of a Controlled Substance; in 2005, theft charges, receiving 6 to 24 months incarceration; in 2008, the drug charge of Delivery, Possession with Intent to Deliver and Possession receiving three (3) years incarceration. Also in 2008, he hit the [C]hildren's mother with a gun, an obliterated firearm, as he threatened to kill her and received 3 to 6 years incarceration. In 2009, he was convicted of Possession. The Court notes that since T.A. was four (4) years old and A.A. was born, [Father] has maintained a steady lifestyle of crime.
Trial Court Opinion, 2/20/13, at 4–5 (citations omitted).
On July 11, 2011, the trial court entered the orders involuntarily terminating Father's parental rights to Children pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On August 4, 2011, Father timely filed notices of appeal and concurrent concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The trial court did not file its Rule 1925(a) opinion until eighteen months later, on February 20, 2013, and did not provide any explanation for the delay in this Children's Fast Track case.
On appeal, Father raises the following single issue:
Whether the [trial] court erred in determining that Fayette County Children and Youth Service met their burden by proving that Father, who was incarcerated but wrote letters, filed pro se briefs, took all classes available to him, and who had utilized every resource available to him, had forfeited his parental rights by clear and convincing evidence.
Father's Brief at 5 (full capitalization omitted).
We review the appeal in accordance with the following standard:
[A]ppellate 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 an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 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. Id.; R.I.S., 36 A.3d [567, ] 572 [(Pa. 2011) (plurality)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 ([Pa.] 2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 ([Pa.] 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we 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 Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 ([Pa.] 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The burden is on 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). Moreover, we have explained that the standard of clear and convincing evidence is defined as "testimony that is so clear, direct, weighty and convincing" as to enable the fact-finder 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).
We focus on 23 Pa.C.S.A. § 2511(a)(1), (2) and (b), which provides, in relevant part, as follows:
§ 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, 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. 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 trial court set forth the following reasoning to support its termination of Father's parental rights:
Many of the setbacks [F]ather encountered involve incarceration and the sheer limits resulting in inability to comply with the goals. At the time of the hearing, [F]ather was in a alfway house. He is now back in prison. There is no evidence adduced at the hearing that he is capable of maintaining a crime free life or has the ability to establish a home offering permanency to his daughters.
The Court reviewed the criminal record marked as Petitioner's Exhibit 3. Father's criminal record stems back to 2002, the year A.A. was born. Since 2008 until 2013, father has continuously served time excepting the brief stint in a halfway house. His sentence reflects a conviction for Delivery, Possession with Intent to Deliver and Possession of illegal narcotics. Given the length of time in this case, if [F]ather was released, he would still have to demonstrate for a sufficient period of time that he can maintain a healthy, drug free, crime free lifestyle. The [C]hildren simply cannot wait any longer to achieve permanency. Permanency and stability are the chief issues for the [C]hildren and the very two issues the Court determines [F]ather cannot provide. The [C]hildren have seen [F]ather three times since 2008 and have received only five (5) letters.
The Court notes that since T.A. was four (4) years old and A.A. was born, [Father] has maintained a steady lifestyle of crime. The Court will not continue these [C]hildren in limbo for the slim chance that [Father] may "someday" become a productive citizen with a crime free lifestyle. History has shown otherwise.
This Court finds that [Father] failed to continue and maintain importance in the lives of T.A. and A.A. Not only did he fail to visit and correspond appropriately in prison but he fell asleep during the first visit in 2008 after having not seen his [C]hildren in nearly two years. Throughout their lives, T.A. and A.A. did not know their father[, ] rarely ever seeing him to the point that they did not recognize him.
Although [Father] took an anger management course and some parenting courses in prison, he failed to keep in active communication with his [C]hildren.
Trial Court Opinion, 2/20/13, at 3–4, 6–7.
In his brief, Father cites In re R.I.S., 36 A.3d 567 (Pa. 2011) (plurality), and relies on the Supreme Court's statement, "This Court has long held that a parent's absence or failure to support his or her child due to incarceration is not, in itself, conclusively determinative of the issue of parental abandonment." Id. at 572 (citing In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975)). Father's Brief at 24. Father asserts there is a "penumbra of competent evidence in the record" supporting a conclusion that he utilized every available resource to maintain contact with his daughters. Id. at 25.
In Adoption of S.P., our Supreme Court reiterated the standard with which a parent must comply in order to avoid a finding that he abandoned his child.
Applying in McCray the provision for termination of parental rights based upon abandonment, now codified as § 2511(a)(1), we noted 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." [McCray] at 655.
Where the parent does not exercise reasonable firmness in declining to yield to obstacles, his other rights may be forfeited.
Adoption of S.P., 47 A.3d at 828 (quoting In re: Adoption of McCray, 331 A.2d at 655) (footnotes and internal quotation marks omitted). Also in Adoption of S.P., our Supreme Court re-visited its decision in In re R.I.S. and stated:
[W]e now definitively hold that incarceration, while not a litmus test for termination, can be determinative of the question of whether a parent is incapable of providing "essential parental care, control or subsistence" and the length of the remaining confinement can be considered as highly relevant to whether "the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent, " sufficient to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2). See e.g. Adoption of J.J., 515 A.2d at 891 ("A parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties."); [In re:] E.A.P., 944 A.2d [79, ] 85 [(Pa. Super. 2008)] (holding termination under § 2511(a)(2) supported by mother's repeated incarcerations and failure to be present for child, which caused child to be without essential care and subsistence for most of her life and which cannot be remedied despite mother's compliance with various prison programs). If a court finds grounds for termination under subsection (a)(2), a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for every child to determine, inter alia, how a parent's incarceration will factor into an assessment of the child's best interest.
In re Adoption of S.P., 47 A.3d at 830–831.
As the Supreme Court definitively ruled in Adoption of S.P., the trial court may examine the effect of a parent's incarceration in ruling on a termination petition. Herein, the trial court appropriately considered Father's incarceration in addressing the evidence offered to support the termination of Father's parental rights under section 2511(a)(1). The trial court determined that Father failed to perform his parental duties for the requisite six-month period. The trial court noted that Father's explanation for his failure to perform his parental duties and for his post-abandonment conduct was his incarceration. The trial court rejected, as insufficient, Father's few letters and two visits, noting they did not amount to the performance of his parental duties.
This Court has instructed:
It 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.
In re G.P.-R., 851 A.2d 967, 976 (Pa. Super. 2004).
Further, we have stated:
[A] "parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005). Moreover, "the parent wishing to reestablish her parental responsibilities bears the burden of proof relative to post-abandonment contact." See In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en banc).
After our careful review of the trial court's application of the law to the facts of this case, we discern no reason to disturb its determination that Father failed to perform his parental duties with regard to Children and that his explanations for his lack of contact were incredible. We conclude that the trial court's determinations regarding section 2511(a)(1) are supported by ample, competent evidence in the record. Adoption of S.P., 47 A.3d at 826–827.
Next, we address the evidence of record to support the termination of Father's parental rights under 23 Pa.C.S.A. § 2511(a)(2). Our Supreme Court set forth our inquiry under section 2511(a)(2) as follows.
[Section] 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that "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." . . . .
This Court has addressed incapacity sufficient for termination under 23 Pa.C.S.A. § 2511(a)(2):
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 J.J., 515 A.2d 883, 891 (Pa. 1986) (quoting In re William L., 383 A.2d 1228, 1239 (Pa. 1978).
Adoption of S.P., 47 A.3d at 827.
A parent is required to make diligent efforts toward 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.
[I]ncarceration is a factor, and [it] indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity cannot or will not be remedied.
In re Adoption of S.P., 47 A.3d at 828.
Pursuant to our Supreme Court's recent pronouncement in Adoption of S.P., the trial court properly considered the history of the case, including Father's present incarceration, the length of his remaining incarceration, and his lack of plans to care for his daughters. Importantly, the trial court observed that Father has been incarcerated and re-incarcerated for his drug-related conduct, and was imprisoned for violating his parole when he assaulted Children's mother.
Since we conclude that the requirements of 23 Pa.C.S.A. § 2511(a)(1) and (2) were satisfied, we proceed to review whether the requirements of subsection (b) were met. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We have stated that the focus in terminating parental rights under 23 Pa.C.S.A. § 2511(a) is on the parent, but the focus is on the child under subsection 2511(b). Adoption of C.L.G., 956 A.2d at 1008.
In reviewing the evidence in support of termination under section 2511(b), we consider whether termination of parental rights would best serve the developmental, physical and emotional needs and welfare of the child. In re C.W.U., Jr. 33 A.3d 1 (Pa. Super. 2011).
Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child. 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. at 6 (citations omitted).
With regard to section 2511(b), the Supreme Court, in Adoption of S.P., 47 A.3d at 830–831, held as follows:
If a court finds grounds for termination under subsection (a), . . . a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for every child to determine, inter alia, how a parent's incarceration will factor into an assessment of the child's best interest.
In its Pa.R.A.P. 1925(a) opinion, the trial court quoted the following from its summary from the bench at the conclusion of the termination hearing:
[T]hese are among the most serious decisions that any judge ever has to make, the termination of parental rights. The overall most important issue for me is the best interest and the stability of the children, and that is not sometimes the best interests of the parents. These girls are at a tender age. They are nine and [thirteen] and during their life before placement, they've had a difficult road. During placement in the last three years, they've had much instability about their future and they've had much emotional turmoil.
The Court recognizes your earnest desire to now be a father to your daughters, and I do not doubt for one moment that you have a parental love for your children. But I also recognize that the bond between your children and you has been broken. [T.A.] wants to be like "normal" people. [A.A.] is counting the days when the appeal period on this case is over so she can have some sense of permanency. They have both voluntarily changed their names.
This Court believes that it is in the best interest of these children, and that their best interest not only requires but it demands that they receive immediate permanency. These children, in my eyes, cannot wait any longer for that permanency without doing additional serious harm to their emotional development.
Trial Court Opinion, 2/20/13, at 7-8 (quoting N.T., 7/11/11, at 107–108).
Further, the trial court found:
The testimony establishes by clear and convincing evidence that for many years prior to [Father's] current incarceration, he ignored T.A. and A.A. by failing to perform parental duties. During his incarceration since 2008[, ] he has failed to preserve any relationship by failing to maintain active communication. For the entire life of A.A., [Father] has led a life of crime with frequent incarcerations. He neglected his parenting duties by repeatedly committing crimes and becoming incarcerated. Neither child has a bond with [Father] and both earnestly desire termination. In evaluating all the circumstances involved, the best interests of T.A. and A.A. clearly warrant the Involuntary Termination of Parental Rights. [Father's] desire to be a parent quite simply is too late.
Trial Court Opinion, 2/20/13, at 8.
With regard to 23 Pa.C.S.A. § 2511(b), the trial court found that Children and Father had two visits, and aside from a few letters, Father made no effort to be involved in Children's lives. The trial court specifically found that there is no bond between Children and Father. We have stated that a court, when conducting a bonding analysis, 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. The trial court herein appropriately relied on the testimony of CYS Caseworker Zielinsky, who recommended termination of Father's parental rights based upon the best interests of Children. N.T., 7/11/11, at 68. "In cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
Children, themselves, offered testimony explaining their lack of a bond with Father. A.A. testified that before entering foster care, she had no idea who Father "really was, " or what he looked like. N.T., 7/11/11, at 15. During the first visit she had with Father while in foster care, "he fell asleep." Id. at 16. A.A. stated that she did not recognize Father, she was "nervous and scared" when she saw him, and she did not want any more visits with him. Id. at 16–18. Similarly, T.A. testified that she wanted Father's parental rights terminated "because I don't really know him." Id. at 34. When she lived with her mother prior to entering foster care, Father never visited, not even on holidays. Id. at 35. T.A. stated that she did not want to see Father because she did "not know him, " that she did not want to try to have a relationship with him, and that she wanted Father's parental rights to be terminated. Id. at 38–39.
After our careful review of the record in this matter, including the testimony and the exhibits admitted into evidence, the arguments of the parties, and the applicable law, it is clear that the trial court's credibility and weight determinations are supported by competent evidence in the record. Adoption of S.P., 47 A.3d at 826. Thus, we conclude that there was sufficient and competent evidence to support the trial court's findings with regard to the three-pronged test for the termination of parental rights set forth in In re Z.S.W., 946 A.2d at 730.
To the extent Father wishes to have another opportunity to bond with Children, we are mindful that we have held, "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." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006); In re Adoption of C.L.G., 956 A.2d at 1007-1008. We have stated, "A parent cannot protect his parental rights by merely stating that he does not wish to have his rights terminated." In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted). As we stated in In re Z.P., 994 A.2d at 1125, 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."
Accordingly, we affirm the trial court's orders terminating Father's parental rights to T.A. and A.A.