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[U] In re C.J.C.

Superior Court of Pennsylvania

August 13, 2013

IN THE INTEREST OF: C.J.C. APPEAL OF: B.C., FATHER IN THE INTEREST OF: A.M.F. APPEAL OF: B.C., FATHER IN THE INTEREST OF: B.K.C., JR. APPEAL OF: B.C., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree March 12, 2013, Court of Common Pleas, Montgomery County, Orphans' Court at Nos. 2012-A0184, 2012-A0185, 2012-A0186

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM

DONOHUE, J.

In this appeal, B.C. ("Father") appeals from the decrees entered in the Montgomery County Court of Common Pleas terminating his parental rights to three children, C.J.C., A.M.F., and B.K.C., Jr. Following our careful review, we affirm.

The three children at issue in this appeal first became involved with Montgomery County Office of Children and Youth ("OCY") on July 17, 2009, when OCY took custody of them, along with four other children, on an emergency basis. The impetus for the removal was OCY's discovery that L.D. ("Mother") left all seven children unattended in a home that was in such deplorable condition that it was subsequently condemned. Father is the father of six of these children, all of whom were immediately placed in foster care.

At the time of the children's removal in 2009, Father was living in DuBois, approximately 265 miles away from the children and Mother. Father continues to reside in DuBois. OCY created FSP goals for Father with regard to all of the children, and he has subsequently regained custody of the three oldest children. On November 14, 2012, OCY filed petitions seeking the involuntary termination of Father's rights to the three youngest children (hereinafter referred to collectively as "the Children" or individually by their initials). A hearing on these petitions was held on January 9, 2013, and on March 12, 2013, the trial court granted OCY's petitions, findings that termination was appropriate pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2) and (b).

This timely appeal follows, in which Father argues that the trial court's determination was not supported by clear and convincing evidence as required by law. See Appellant's Brief at 4. The standards governing our review of a decree terminating parental rights are well settled:

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 we 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. The burden is upon the petitioning person or agency to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid. Moreover, … [t]he 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. The trial court is free to make all credibility determinations, and may believe all, part, or none of the evidence presented. If the findings of the trial court are supported by competent evidence, we will affirm even if the record could also support the opposite result.

In re T.M.T., 64 A.3d 1119, 1124 (Pa. Super. 2013) (citations omitted).

Section 2511 of the Adoption Act governs termination of parental rights. Under Section 2511, the trial court must engage in a bifurcated process. In re C.L.G., 956 A.2d 999, 1004 (Pa. Super. 2008). The initial focus is on the conduct of the parent, and the burden of proof is on the petitioner to establish by clear and convincing evidence the existence of grounds for termination under Section 2511(a). Id. If the trial court finds that termination is warranted under Section 2511(a), it must then turn to Section 2511(b), and determine if termination of the parent's rights is in the child's best interest. Id.

Father first challenges the trial court's finding that termination was appropriate pursuant to Section 2511(a)(1) and (2). "For the purpose of reviewing this issue, we note that this court need only agree with the trial court's decision as to any one subsection in order to affirm the termination of parental rights." In re T.M.T., 64 A.3d at 1125. Accordingly, we focus on Section 2511(a)(1), which provides:

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.

23 Pa.C.S.A. § 2511(a)(1).

Our Court has described the nature of "parental duties" as follows:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance. 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).

In finding that termination was proper under Section 2511(a)(1), the trial court acknowledged that Father "has worked hard to do what has been asked of him[.]" Trial Court Opinion, 3/12/13, at 13. However, it concluded that,

… under all of the circumstances established here by clear and convincing evidence, given his inability to make himself aware of and meet the special needs of the three younger children and given his already nearly overwhelming obligations and responsibilities to the three [other children] that are in his home, the [c]ourt concluded that OCY has established a basis for terminating parental rights under 23 Pa.C.S.A. § 2511(a)(1) in that he has failed to parent [the Children] for an extended period of time, not only in missing numerous visits but also failing to make himself aware of their diagnoses, participate in their therapy, and understand and meet their needs.

Id.

The trial court's conclusion is supported by evidence of record. When the Children were initially placed in foster homes, Father was not in contact with Mother and did not know about the uninhabitable conditions of her house or that they were left unsupervised. N.T., 1/9/13, at 125. In fact, he had not seen them for approximately three months when they were removed. Id. at 135. At that time, Father was entitled to bi-weekly visitation; however, because of the cost Father would incur to travel for visitation, he was only able to attend visitation once a month. Id. at 128. In the six months before the termination hearing, Father only had four visits with the Children, and those occurred on dates when Father was in Montgomery County for court appearances. Id. at 26, 144. Between August and November 2012, Father had no visits with the Children because his car was not functioning and he did not have money to fix it; however, Father admits that he did not ask OCY for assistance in seeing the Children at that time or for other accommodations that would have allowed him to see the Children. Id. at 129, 142. Father concedes that he does not regularly attempt to speak to A.M.F. and C.J.C. on the phone because he feels that they are too young to communicate over the phone. Id. at 133. Father testified that with regard to A.M.F. and C.J.C., the youngest two children, he "[doesn't] know them that well because … of their age." Id. at 132. All of the Children have mental health issues and are in counseling, yet Father does not know what each child's mental health issues are, and he has never asked to attend counseling sessions or inquired as to their progress. Id. at 136-41.

This evidence supports that trial court's conclusion that Father has not "exercise[d] reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship, " and therefore we find no error in the trial court's determination that the requirements of Section 2511(a)(1) have been met. See In re K.Z.S., 946 A.2d at 759.

In support of his position, Father points to evidence that he completed most of the FSP goals established for him by OCY and that he has always cooperated with OCY. We agree with Father that there is evidence of record to support these claims. We remind Father, however, that it was the trial court's function to make credibility determinations and weigh the evidence, and we cannot disturb such decisions by the trial court on appeal. In re T.M.T., 64 A.2d at 1124. Accordingly, as there is evidence to support the trial court's determination, we will not disturb it.

We now turn to Father's argument that the trial court erred in finding that the evidence warranted termination of his rights under Section 2511(b). Father argues that termination is not warranted under this provision because the evidence establishes that he has a bond with the Children such that termination of his right will not "clearly promote the welfare of the [C]hild[ren]." Appellant's Brief at 20 (citing In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001)).

Section 2511(b) provides as follows:

(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(b).

When considering the needs and welfare of a child pursuant to the Section 2511(b) inquiry, the trial court must consider whether termination of parental rights would best serve the developmental, physical and emotional needs of the child. In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005), appeal denied, 587 Pa. 705, 897 A.2d 1183 (2006). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287 (citation omitted). The trial 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.

In reaching its conclusion with regard to this provision, the trial court noted the "delicate balance between preserving the family unit and preventing a state of constant uncertainty and limbo for a child[.]" Trial Court Opinion, 3/12/13, at 15. It then found that the Children are in pre-adoptive homes where their emotional and physical needs are being met, and that each has formed a bond with his foster parents. Id. The trial court also found that there is no bond between Father and the two younger children, and that while there is a bond between Father and B.K.C., it is not a healthy bond that serves B.K.C.'s emotional welfare. Id. Based upon these findings, the trial court concluded that the requirements of Section 2511(b) were met.

The record again contains evidence to support the trial court's findings. Julia Solomon is the OCY caseworker that has been assigned to the Children for the last two years. N.T., 1/9/13, at 4. She testified that during visitations, she observed no bond between Father and the younger two children, but that she has observed very positive bonds between these two children and their respective pre-adoptive families.[1] Id. at 27, 33-34. She further testified that the behavioral issues of the two younger children are exacerbated prior to a visit with Father, in that they become manic and exhibit dangerous and regressive behaviors, such as head banging, toileting regression and speech regression. Id. at 28, 38. It sometimes takes up to two days following a visit with Father for these behaviors to subside. Id. at 28.

Solomon also testified that she did observe a bond between Father and the oldest child, B.K.C., and noted that B.K.C. is very protective of Father. Id. at 28. She further testified, however, that that this is not a positive bond, as Father has appeared infrequently for visits and the unstable place Father has in this child's life is unhealthy for him. Id. at 28-29. Solomon testified that in contrast, B.K.C. is bonded to his foster parents, who want to adopt him, and that he looks to them for emotional support and to meet his needs. Id. at 30-31. She also noted that B.K.C. had been with his foster parents for nearly two years at the time of the hearing, that they provide a stable environment for him, and that he has made significant progress with his anger management issues in the time he has been with them. Id. at 31-32.

This evidence supports the trial court's conclusion that Father has failed to provide the "[i]ntangibles such as love, comfort, security, and stability" to Child. See In re C.M.S., 884 A.2d at 1287. Accordingly, we find no abuse of discretion in the trial court's determination that termination of Father's parental rights will "best serve the developmental, physical and emotional needs of the child." Id.

Having found no error by the trial court, we affirm its decision.

Decrees affirmed.


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