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In re B.P.

Superior Court of Pennsylvania

September 4, 2013



Appeal from the Order March 1, 2013 In the Court of Common Pleas of Westmoreland County Orphans' Court at No(s): 29 of 2012, 30 of 2012




Appellant, B.A.P., Sr. (Father), appeals the March 1, 2013 orders terminating his parental rights to his daughter, M.P., and his son, B.P., Jr.[1]After careful review, we affirm.[2]

The relevant facts and procedural history, as gleaned from the certified record, follow. M.P. and B.P., Jr. first came to the attention of the Westmoreland County Children's Bureau (WCCB) on September 2, 2008, based on reports that Mother used pain pills, left M.P. without adequate care, and that her home was overcrowded and inappropriate. N.T., 3/1/13, at 27. WCCB put a safety plan into place that required household members and caretakers to be drug and alcohol free around M.P. and B.P., Jr. Id. WCCB opened its case formally on September 12, 2008, to assist Mother with transportation, housing, budgeting and parenting. Id. at 27-28. As part of the safety plan, WCCB contracted with M & N Drug and Alcohol Testing Services to monitor the parents' compliance with the drug and alcohol conditions of the safety plan. Subsequently, Father tested positive for THC on February 3, 2009, and refused to submit to a drug test on February 8, 2009. Id. at 32

On October 6, 2008, Mother filed a charge of simple assault against Father and, on November 10, 2008, procured a protection from abuse (PFA) order against him based on the assault. Id. at 28. The trial court granted Mother primary physical custody of M.P. Father said that he would not abide by the PFA. Id. at 32.

On February 25, 2009, Father attempted to contact Mother through third parties, in violation of the PFA. Father refused the offer of anger management classes because he thought they would be a waste of time. Id. at 33. Father was arrested on February 29, 2009, and charged with terroristic threats and simple assault against a friend of Mother. The charges were dismissed when witnesses failed to appear to testify against him. Id. at 32. Charges of indirect criminal contempt, burglary, harassment, and stalking were filed against Father on March 3, 2009, after he entered Mother's residence through a window. Id. These charges were dismissed when Mother refused to pursue them. Id.

Mother facilitated Father's violation of the terms of the PFA on March 18, 2009, when she permitted Father to have contact with M.P. Id. The police responded to the incident and had to use force to enter Mother's residence when she refused them entry. Id. at 33-34. The police arrested Father but charges were again dismissed when Mother refused to pursue them. Id. at 34.

WCCB initiated another safety plan on April 14, 2009, by which Mother was ordered not to consume controlled substances nor permit Father to have contact with M.P. without prior approval of the trial court. Nevertheless, based on Father's violation of the PFA and allegations of drug trafficking in Mother's home, the trial court adjudicated M.P. dependent on May 8, 2009. WCCB placed M.P. in foster care on June 11, 2009. The trial court ordered Father to complete anger management through Catholic Charities, undergo a drug and alcohol evaluation, submit to random drug screens, and continue with mental health treatment. Id. at 35. The trial court also granted Father two-hour supervised visitation at the home of M.P.'s paternal great-grandmother. Id. at 36.

On June 23, 2009, Ms. Sluka, a provider with Project STAR who had been providing parenting and other services to Mother and Father, reported that Mother and Father were back together. Id. at 36. Mother refused an offer of couples counseling. Id.

Father was arrested for public drunkenness on July 8, 2009, and Ms. Sluka reported that Father was at Mother's residence throwing furniture on July 15, 2009. Id. at 36. When Ms. Sluka was unable to calm Father down, she drove Mother and M.P. to the home of M.P.'s foster mother to get away from Father. Id. at 36-37. Subsequent visits between Father and M.P. were moved to the WCCB play room. Id. at 37.

Father began to refuse random drug screens as of August 17, 2009. Id. at 37. In September 2009, Father reportedly threatened Mother with a firearm because he had heard that she was seeing another man, and Mother and Father were reported to be fighting with each other on September 28, 2009. Id. at 38.

On November 9, 2009, the trial court found that Father had made no progress towards reunification. The trial court ordered Father to undergo drug, alcohol and mental health treatment, ordered Mother and Father to begin couples counseling, to work with Project STAR on parenting, and to submit to random drug screens, and ordered Father to complete anger management through Catholic Charities. Id.

Father began to comply with the trial court's orders but, on March 25, 2010, admitted to M.P.'s foster mother that he had punched Mother's paramour and had followed Mother in her car until Mother slammed on the brakes, causing Father's car to slam into her car. Id. at 40-41. Father was arrested on April 15, 2010, and, as a result, was discharged from drug and alcohol treatment and mental health treatment. Id. at 39. On May 10, 2010, the trial court again ordered Father to complete drug and alcohol treatment, to be subject to random screens, and to have a mental health evaluation. Id. at 41. Father's visitation was to be at the discretion of WCCB. Father was discharged unsuccessfully from anger management classes on July 14, 2010.

B.P., Jr. was born in August 2010, and, as of September 10, 2010, Mother and Father were permitted unsupervised visitation with M.P. Thereafter, on October 19, 2010, M.P. was permitted to return home, provided Mother and Father had clean drug screens and cooperated with service providers. Id., at 42.

Father was released from prison on April 26, 2011. WCCB placed M.P. and B.P., Jr. with Father and required him to supervise their time with Mother because, on the previous day, Mother had been found on her bed, unresponsive, with B.P., Jr. lying face down under the bed. Id. at 43.

Father tested positive for cocaine on July 11, 2011. As of July 25, 2011, Mother and Father stopped providing random drug screens and stopped going to couples counseling. It was reported that Father struck Mother on July 17, 2011, and threatened to kill her. Id. at 44.

On July 29, 2011, Mother filed another PFA against Father, alleging that Father forced her to have sex with him, and that Father had threatened to kill her. Id . at 44. On August 2, 2011, a WCCB caseworker found Father hiding in a closet at Mother's residence in violation of a safety plan that forbade his contact with Mother. Id.

WCCB took emergency custody of M.P. and B.P., Jr., and placed them with M.P.'s foster mother again because Father was becoming angry and threatening around Mother. Id. at 44-45. In fact, Mother had sent a text message to Jennifer Ambrose, a worker with Project STAR, in which Mother admitted that she was afraid of Father and asked for Ms. Ambrose's help. Id. at 13. When Ms. Ambrose and Ms. Sluka attended a home visit, the parents admitted to domestic violence and Father admitted that he had been involved in an incident in which he pushed Mother to the ground and threatened to slash her tires. Id. at 14. In July and August 2011, Project STAR had concerns that included domestic violence, poor parenting decisions and use of drugs. Id. at 15. Father tested positive for cocaine in July 2011, shortly after his release from electronic monitoring. Id. at 15.

Father was incarcerated on August 4, 2011, and was permitted supervised visitation with M.P. and B.P., Jr. at the Allegheny County Jail. Father was also to cooperate with drug and alcohol treatment. Id. at 45. At another hearing on March 1, 2012, the trial court ordered Father to comply with services while incarcerated and to work with the WCCB upon release. Father completed drug and alcohol treatment and anger management while at the Allegheny County Jail. Father was transferred to a state correctional institution in Allegheny County on August 27, 2012. At a hearing on September 10, 2012, the trial court ordered Father to comply with services while incarcerated and to work with the WCCB upon his release. He was also to have a mental health evaluation, drug and alcohol evaluation, and domestic violence counseling upon release. The trial court instructed Father's attorney to assist Father in obtaining visitation during his incarceration. Id. at 47-48. Father had visitation at the Westmoreland County Jail on October 9, and October 23, 2012. Id. at 48. Father was unable to visit with M.P. and B.P., Jr. while incarcerated in Allegheny County because the State Correction Institution would not honor the Westmoreland County order. Id. at 49. Father remained incarcerated at the time of the termination hearing.

WCCB filed a petition for involuntary termination of parental rights on March 16, 2012. The trial court entered the orders terminating Father's parental rights on March 1, 2013. Father filed his notices of appeal and statements of errors complained of on appeal on April 1, 2013.[3]

On appeal, Father raises the following issue for our review.

Did the trial court err in terminating the parental rights of [Father] where [Father] has remedied the conditions leading to removal of the [M.P. and B.P., Jr.], and [Father], although incarcerated, has undergone both personal rehabilitation and has utilized numerous means to maintain a meaningful relationship with [M.P. and B.P., Jr.]?

Father's Brief at 6.

We are guided by the following standard of review.

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).


[w]here the hearing court's findings are supported by competent evidence of record, we must affirm the hearing court even though the record could support an opposite result.
We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. 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. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).

Requests to have a natural parent's parental rights terminated are governed by 23 Pa.C.S.A. § 2511, which provides the following, in pertinent part.

§ 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.

It is well settled that a party seeking termination of a parent's rights bears the burden of proving the grounds to so do by "clear and convincing evidence, " a standard which requires evidence 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." In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004).

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 the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal citations omitted).

To terminate parental rights pursuant to section 2511(a)(1), the person or agency seeking termination must demonstrate through clear and convincing evidence that, for a period of at least six months prior to the filing of the petition, the parent's conduct demonstrated a settled purpose to relinquish parental rights or that the parent has refused or failed to perform parental duties. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).

With respect to subsection 2511(a)(1), our Supreme Court has held as follows.

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

[Further, ] the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re N.M.B., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted), appeal denied, 872 A.2d 1200 (Pa. 2005).

Additionally, pursuant to section 2511(b), this Court must consider whether the termination of Father's parental rights would best serve the developmental, physical and emotional needs and welfare of the children. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005), appeal denied, C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa. 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 in the case, with utmost attention to the effect of permanently severing that bond on the child. Id. Moreover, when evaluating a parental bond, "the [trial] court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation." In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations omitted).

In regard to incarcerated persons, our Supreme Court recently stated,

incarceration is a factor, and 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 [sic] the causes of the incapacity cannot or will not be remedied.

In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012).

[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., [511 Pa. at 605], 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.

Id. at 830-831.

Father's claim challenges the sufficiency of the evidence. In his argument Father claims, "In the instant matter, it cannot be said that the [WCCB] carried its burden of proof, nor is there justification for the determination by the [t]rial [c]ourt that termination of parental rights was warranted." Father's Brief at 15. We disagree.

In support of its decision to terminate Father's parental rights to M.P. and B.P., Jr., the trial court noted the following.

The history of the instant case supports the termination of parental rights. The parents in the instant case have had protracted problems with domestic violence, illicit and abusive drug use, and failure to properly parent [M.P. and B.P., Jr.] dating back to the original involvement of the WCCB. Father's history of drug use while he was not incarcerated continued to as late as July of 2011, when he tested positive for cocaine, prior to being incarcerated in August of 2011. Repeatedly, throughout the pendency of the case, Mother and Father have engaged in episodes of serious domestic violence. Such episodes have been severe enough to employ dangerous implements including a knife and automobiles as a means of subjecting one another to risk of bodily harm. Further, Father's anger problems have been so severe that he has persisted in punching others, even while undertaking an anger management course, and escalating to such a degree that even seasoned service providers have fled in order to assure safety. Mother and Father have engaged in significant domestic violence with one another as late as in summer of 2011, just before Father was incarcerated.
Father has suggested in his testimony during the termination hearing that he has, in effect, turned over a new leaf and seen the error in his prior ways. Father argues that he was too young previously to appreciate the effects of his actions and that he is now capable of being an appropriate parent because he has accepted the truth about the consequences of his actions. The [c]ourt does not find Father's assurances about his renewed commitment to safe parenting to be credible. The [c]ourt notes that when [M.P.] returned home on an extended trial home visit in April of 2011, it was approximately only four months later that Father was testing positive for drugs and was blatantly refusing drug tests. Further, during that same time period, about four months from the time [M.P.] was returned, Father struck Mother and threatened Mother's life. The [c]ourt cannot ignore the history of the case. Only one month after that, Father actively attempted to deceive the WCCB by hiding in a closet in Mother's house, in violation of a safety plan. The history of the case demonstrates close to five years of turmoil which manifests as the parents engaging in serious acts of violence and without regard to consequences for [M.P. and B.P., Jr.] or one another, drug use on the part of the parents, refusal to cooperate with the [WCCB] and deceit and defiance when steps have been taken by the WCCB to ensure safety of the [M.P. and B.P., Jr.]. In fact, it appears that the few periods of respite from violence and turmoil have occurred during those occasions when Father has been incarcerated, and therefore unable to use drugs or to engage in acts of violence with Mother, and when Father's compliance with a safety plan was not an issue due to Father's incarceration.

Trial Court Opinion, 4/26/13 at 5-6 (citations to notes of testimony omitted). The evidence presented at trial clearly supports the trial court's finding that Father has evidenced a settled purpose of relinquishing his parental claim to M.P. and B.P., Jr. or has refused or failed to perform his parental duties. We discern no abuse of discretion in the trial court's decision to terminate Father's parental rights.

The only reference Father makes to the developmental, physical and emotional needs and welfare of the children pursuant to subsection (b) is, "[a]lthough no formal 'bonding assessment' was conducted at any time, observations made by the [WCCB] of the visitations indicated that such visits were "appropriate.'" Father's Brief at 16-17. Visits may have been "appropriate", but the testimony offered at the hearing supported the conclusion that the termination of Father's parental rights would best serve the well-being and welfare of the Children. The trial court succinctly summarized that testimony.

With regard to bonding, the [c]ourt heard testimony of Carol Patterson, a licensed psychologist, who was qualified in the field of bonding and attachment. Ms. Patterson testified that it is the case with any child that a lack of contact would affect the ability of a parent to maintain any bond or attachment that parent may have had with their children. Ms. Patterson testified that the children displayed a "very strong bond" with the foster parents. She opined that if the children were to be removed from the care of the foster parents as of January 2013, the children could run the risk that the bond and attachment with the foster parents could be broken. Effects of breaking the bond with foster parents could include interfering with the children's ability to develop interpersonal relationships with others and their ability to trust others. WCCB Caseworker Josh Barnhart, who has had familiarity with the case since May of 2012, has likewise testified that he sees no harm in terminating parental rights.

Trial Court Opinion, 4/26/13, at 7-8. Therefore, we agree that the trial court did not abuse its discretion when it determined that the termination of Father's parental rights would serve the best interests and welfare of the Children.

Accordingly, for the reasons stated, we conclude that the trial court's decision to terminate Father's parental rights under sections 2511(a)(1) and (b) is supported by clear and convincing evidence in the record, and that there was no abuse of the trial court's discretion.

Orders affirmed.

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