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In re D.M.J.

Superior Court of Pennsylvania

October 8, 2013



Appeal from the Order Dated May 7, 2013, in the Court of Common Pleas of Blair County Orphan's Court Division at Nos. 2013 AD 6A, 2013 AD 6C, 2013 AD 6B, 2013 AD 6




R.J. ("Father") appeals from the orders entered on May 7, 2013, which granted the petitions filed by the Blair County Children and Youth Services ("CYF"), terminating Father's parental rights to his minor children, Do.J. (born 9/01); Da.J. (born 3/04); Jar.J. (born 2/06); and Jad.J. (born 7/08) ("the Children"). We affirm.

The Children were removed from Father's custody in June of 2012. The family had been involved with CYF at various times since 2005. During the ensuing seven years, CYF and other agencies provided a number of services to the family. CYF filed petitions for adjudications of dependency for each of the Children after their removal from the family home. On August 30, 2012, the trial court made an adjudication of dependency for each child. The trial court also suspended contact of each child with both Father and their mother ("Mother") due to an investigation of allegations, made by the Children during counseling, of physical and sexual abuse. The trial court deferred establishing a placement goal until the completion of the investigation.

The result of the investigation was an indicated finding of sexual abuse against Father with regard to Jad.J., his youngest daughter, and against Fred Banks ("Banks"), who lived in the family's home for a period of time, with regard to Da.J., the oldest son. On November 9, 2012, CYF filed a motion for finding of aggravated circumstances as to both Mother[1] and Father. The trial court held a permanency review hearing on November 29, 2012, and a further hearing was conducted on January 10, 2013. On January 15, 2013, the trial court issued orders regarding each child, in which the court (1) determined that the indicated finding of sexual abuse against Father with regard to Jad.J. was founded; (2) found aggravated circumstances against Father with regard to Jad.J.; and (3) established a placement goal of adoption for all four children. Father filed a timely appeal and in a memorandum decision, this court affirmed the orders on July 23, 2013. See In the Int. of Da.J., a minor, et al., No. 370 WDA 2013, unpublished memorandum (Pa.Super. filed July 23, 2013).

While Father's appeal was pending, CYF filed petitions to involuntarily terminate Father's parental rights on February 19, 2013. A hearing on the petitions was held on April 4, 2013. At the hearing, the underlying record of evidence stemming from the juvenile dependency and permanency review hearings was incorporated into the record. Father's parental rights were terminated on May 7, 2013, pursuant to 23 Pa.C.S.A. § 2511(a)(2). Father now appeals those orders.

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

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.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).

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 upon the party seeking termination to establish by "clear and convincing" evidence the existence of grounds for doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations omitted). The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). If the trial court's findings are supported by competent evidence, we must affirm the court's decision even though the record could support an opposite result. In re R.L.T.M., 860 A.2d 190, 191-192 (Pa.Super. 2004). The termination of parental rights is controlled by statute. In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa.Super. 2006).

In In re Adoption of C.L.G., 956 A.2d 999 (Pa.Super. 2008) (en banc), this court explained the analysis for a termination petition.

Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only after determining that the parent's conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interests of the child. Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent's conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child.

Id. at 1004 (internal citations omitted).

Instantly, the trial court found that termination of parental rights was warranted pursuant to Section 2511(a)(2). Section 2511(a)(2) provides 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:
(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 cause 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.

23 Pa.C.S.A. § 2511.

Father contends that CYF did not meet its burden of proof that he "cannot or will not" remedy the issues which brought the Children into care. (Father's brief at 15-16.) Father asserts that his willingness to submit to a polygraph test to prove his innocence shows he was willing to do anything that CYF and the trial court asked him to do, but no programs or services were offered to him. (Id. at 23.)

In order to terminate parental rights under Section 2511(a)(2), the petitioner must prove the parent's (1) repeated and continued incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse, neglect, or refusal must be shown to have caused the child to be without essential parental care, control, or subsistence; and (3) the causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied. In re E.A.P., 944 A.2d 79, 82 (Pa.Super. 2008). Grounds for termination of parental rights under Section 2511(a)(2) are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. Id. at 340.

Our review indicates Father's argument lacks merit. Priscilla Daniel, the CYF caseworker, testified that prior to the removal of the Children, "we had general protective services for a little over two years now, and also we had FICS preservation working with the father once he got custody of the children in his home, and we also had Family Base through Home Nursing Agency working in the father's home." (Notes of testimony, 4/4/13 at 41.) When asked if Father participated in any services of his own accord relative to the sexual abuse findings that were made for the Children, Ms. Daniel responded, "Not to my knowledge." (Id. at 49.) We note that Father continues to deny the sexual allegations against him and proclaim his innocence while pointing to the fact that he passed the polygraph test. In our prior decision, we observed:

[A]lthough the record shows that Father had passed a polygraph test in regard to the allegations of sexual abuse, Melissa Hale ("Hale"), a licensed social worker who prepared a psycho-sexual evaluation of Father, of which the polygraph test was a part, testified that polygraph test results are used only in connection with other testing because the polygraph tests are often inaccurate. N.T., 1/10/13, at 85, 88. Hale also indicated that she had administered the Affinity sexual interest test to Father, which showed that Father had a clinically significant, abnormal interest in males ages 6-13 and in females ages 6-9. Id. at 73-75, 77-78.

In the Int. of Da.J., a minor, et al., supra at 14.

The trial court found Father's testimony "incredulous." (Trial court opinion, 3/19/13 at 3.)[2] On issues of credibility, we defer to the findings of the trial judge. Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004). Moreover, the sexual abuse of Jad.J. by Father has been decided against him and affirmed on appeal. Father's lack of recognition of his role in the abuse and neglect of his children warrants the finding that he is incapable of remedying the circumstances that led to the Children's need for placement.

Finally, regarding Section 2511(b), although Father does not address this issue, we have held that, in a case involving the termination of parental rights, the trial court is required to consider whatever bonds may exist between the child and parent, as well as the emotional effect that termination will have upon the child. In re Adoption of A.C.H., supra at 229. Under Section 2511(b), we inquire whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005), appeal denied, __Pa.__, 897 A.2d 1185 (2006). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into 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." See id. at 1287 (citations omitted).

In this case, we conclude the trial court correctly determined that the Children's needs and welfare are best served by terminating Father's parental rights. The trial court opined:

The testimony of the therapist confirms that each of these children has suffered severe emotional harm that will take a lifetime to resolve if ever. Any progress the children have made is attributed to the care and attention they have received through appropriate foster care and therapy - their hope to "undo" the damage that occurred while in the custody of their parents.
[Father] could provide no explanation for the emotional issues evident in his children other than to question the motive and credibility of his children. This Court does not share his skepticism in that regard.

Trial court opinion, 3/19/13 at 2-3.

The Children's counselor, Millie Baker, testified that since being placed in foster care they are doing well although each child has his or her own set of problems. She testified that she is trying to help each of them establish a sense of identity with their own sense of boundaries, what's appropriate and what's not appropriate, along with the sense of safety. (Notes of testimony, 4/4/13 at 6.) When asked if the Children inquire about their birth parents, she responded, "No, no they don't other than things that happened in the past." (Id. at 16.) Ms. Baker also stated the Children do not ask to visit Father or Mother; they do not mention them; they do not talk about them. (Id. at 17.) There is no record evidence of a parent-child bond between Father and Children. Accordingly, we affirm the orders terminating his parental rights.

Orders affirmed.

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