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In re R.S.

Superior Court of Pennsylvania

November 7, 2013

IN RE: R.S., A MINOR APPEAL OF: C.S. IN RE: A.S., A MINOR APPEAL OF: C.S.

NON-PRECEDENTIAL DECISION

Appeal from the Decree Entered June 13, 2013, In the Court of Common Pleas of York County, Orphans' Court Division, at Nos. 2009-0141, 2009-0142.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and PLATT [*] , JJ.

MEMORANDUM

SHOGAN, J.

C.S., Father ("Father"), appeals from the decrees entered on June 13, 2013, granting the petition filed by the York County Office of Children, Youth and Families ("CYF"), that sought to involuntarily terminate his parental rights to his two dependent sons, R.S., a/k/a R.I.S., born in October 2008, and A.S., a/k/a A.I.S., born in July 2007 (the "Children"). The orphans' court terminated Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b).[1] We affirm.

This case is before this Court after a remand from our Supreme Court to the trial court for further proceedings. See In re R.I.S., 36 A.3d 567 (Pa. 2011). In that decision, our Supreme Court fully set forth the factual background and procedural history of this case. In June 2008, Father was sentenced to serve a term of incarceration. Id. at 569. In December 2009, CYF filed the first set of petitions seeking (1) to terminate Father's parental rights to the Children, and (2) to change the permanency goals for the Children from reunification to adoption. The trial court denied the termination and goal-change petitions, and this Court reversed. In re R.I.S., 791–792 MDA 2010 and 828–829 MDA 2010, 23 A.3d 591 (Pa.Super. filed December 22, 2010) (unpublished memorandum). In a plurality decision, the Supreme Court reversed and remanded the matter to the trial court. R.I.S., 36 A.3d 567.[2]

On March 5, 2013, CYF filed second petitions for the involuntary termination of Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). The trial court held a hearing on the petitions on June 11, 2013. CYF presented the testimony of Teri Hollway, a CYF permanency supervisor, and the Children's foster mother. N.T., 6/11/13, at 12–13, 35. Father remained incarcerated but was present and testified on his own behalf. CYF proceeded only as to subsections (a)(8) and (b), withdrawing with prejudice the allegations in its petitions as to all other subsections of section 2511(a). N.T., 6/11/13, at 5–9.

Counsel for Father conceded that the Children had been removed by CYF for a period in excess of twelve months, the conditions that led to the removal continued to exist, and the only issue before the court under subsection (a)(8) was whether the termination served the Children's best interests. N.T., 6/11/13, at 11–12.

Ms. Hollway testified that Father's earliest release date is July 15, 2014, and the latest release date is July 15, 2018, due to a parole violation. N.T., 6/11/13, at 15, 34. Father's last visit with the Children was in March 2010, when CYF conducted the closure visit in relation to the first petition to terminate his parental rights. Id. at 17. Ms. Hollway also testified that Father had telephone contact with the Children until August 9, 2012, when the trial court discontinued the telephone calls. Id. at 17. Moreover, Ms. Hollway observed that since the change in the goal for the Children in April 2012, Father mailed six items of correspondence or gifts to the Children, beginning in July of 2012. Id. at 17–18.

Ms. Hollway stated that the Children do not know Father, and that his telephone calls disrupted their lives with their foster parents. N.T., 6/11/13, at 18–19. Ms. Hollway testified that the Children lack any parental bond with Father; indeed, Father has seen R.S. only once since R.S.'s birth in 2008. Id. at 18–19. She testified that the Children are well cared for by the foster family, that they are bonded to them, and they refer to the foster parents as "Mommy" and "Daddy." Id. at 19–22. She opined that the Children would have permanency and stability through adoption by the foster family. Id. at 25.

Ms. Hollway testified that CYF has not offered Father any services since the goal change, and because he is incarcerated, Father cannot assume physical custody of the Children. N.T., 6/11/13, at 22–24. She detailed the Children's special needs and noted they have been in care for fifty-three months. Id. at 20, 24–26. She explained that the foster parents have structure in their home and observed that the Children have undergone a remarkable transformation in the foster home. Id. at 20–21. The foster parents are the pre-adoptive resource and already have adopted the Children's biological sister. Id. at 24–25. Ms. Hollway testified that termination of Father's parental rights would not cause any short-term or long-term negative impact on the Children. Id. at 25. Ms. Hollway indicated that the Children are on medication for their behavioral issues and both have asthma. Id. at 25–27.

Foster Mother testified that A.S. was just over one year old and R.S. was approximately three months old when the Children came into their care. N.T., 6/11/13, at 37. She stated that the Children had been in their care for approximately four years at the time of the hearing; for R.S., it virtually was his entire life. Id. at 35. Foster Mother testified that Father's letters to the Children are one page or less, are generic, simply inquire how the Children are, and lack any connection with them. Id. at 36. She explained the Children make no connection between Father and the gifts he has sent them, although the foster parents tell them about Father. Id. at 37.

Foster Mother testified that both of the Children have attention deficit hyperactivity disorder, and A.S. also has reactive attachment disorder. N.T., 6/11/13, at 36–37. Foster Mother explained that when the Children first came to her home, they had destroyed the wallpaper on her walls because they were unable to control their energy. Id. at 39. She stated that R.S.'s asthma has compelled foster parents to accommodate his need for Albuterol treatments. Id. at 40. She also indicated that the family members interact well together. Id. at 38. Foster Mother described the modifications that she and her husband had to make in their home to accommodate the Children's special needs. Id. at 37–40.

In decrees dated June 11, 2013, and entered on June 13, 2013, the trial court terminated Father's parental rights to the Children pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b) and dictated its opinion into the record at the close of the hearing. Father timely filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) on July 3, 2013. The trial court adopted its on-the-record opinion as its Rule 1925(a) opinion. See Statement of the Lower Court Pursuant to Pa.R.A.P. 1925(a), 7/11/13.

Father raises a single issue on appeal, as follows:

Whether the trial court erred in terminating Father's parental rights when Father, despite his incarceration, demonstrated efforts to establish a bond with the Children[?]

Father's Brief at 4 (full capitalization omitted).[3]

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 at 572. 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., __Pa. __, 34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634 (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). See also In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) ("We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.").

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). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).

The focus in the instant case is on 23 Pa.C.S.A. § 2511(a)(8) 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:
* * *
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
* * *
(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.

Thus, in order to terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8), it must be demonstrated that: "(1) the child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child." In re Adoption of M.E.P., 825 A.2d 1266, 1275–1276 (Pa.Super. 2003); 23 Pa.C.S.A. § 2511(a)(8). "Section 2511(a)(8) sets a 12-month time frame for a parent to remedy the conditions that led to the children's removal by the court." In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the twelve-month period has been established, the trial court must next determine whether the conditions necessitating placement persist, despite the reasonable good faith efforts that the agency supplied over a realistic period of time. Id. Terminating parental rights under section 2511(a)(8) does not require the trial court to evaluate a parent's current "willingness or ability to remedy the conditions that initially caused placement." In re Adoption of T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003) (citation omitted).

As the parties and the trial court noted, the parties stipulated that the Children have been removed from parental care for more than twelve months, and the conditions that led to the Children's removal continue to exist. Thus, the focus at the hearing "was on whether termination of Father's rights would best serve the Children's needs and welfare." Father's Brief at 14.

The trial court provided the following analysis of the factors set forth under section 2511(a)(8):

We have indicated at the outset that we are going to take judicial notice of all matters of record. So, rather than reiterate again what [CYF counsel] made reference to, I will incorporate into my decision the long procedural history that I set forth in my prior decision a little over a year ago.
We had a change of goal hearing, as was indicated, April 25 and April 26, 2012, at which time I authored a 21-page opinion in open court setting forth all the reasons for change of goal. Those reasons remain the same. They remain valid and, in fact, they remain affirmed by the decision of the Superior Court on November 12, 2012.
I am certainly mindful that as of this date, give or take a few days, these children have been in continuous care for 53 months, in the case of [R.I.S.], the youngest [sic] child, his entire life, all but three months.
Mother's rights had already been terminated by prior order of court, and today's proceeding seeks to terminate the rights of the father pursuant to 23 Pa.C.S.A. [§] 2511, Subsection (a)(8). And that specific statute says that the child in this case—the children have been removed from the care of the parent by the Court or under a voluntary agreement with the agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist, and the termination of parental rights would best serve the needs and welfare of the child.
As I indicated, all parties have stipulated that the child has been removed from the care of the parent by an order of court. That matter is approved by agreement.
Twelve months or more have elapsed from the date of removal or placement. That matter is approved by agreement or by stipulation.
The conditions which led to the removal and placement of the child continue to exist. That matter has been agreed and stipulated by the parties.
The only matter that is appropriately before the Court is this last, the overarching concern when we terminate anybody's parental rights, when we deal with custody rights of any child, is would the termination of parental rights best serve the needs and welfare of the children, not [Father's] needs, not anybody else's needs, but solely the needs of those children.
Of course, then it is under that statute we have to make our analysis[, ] and we have to take into consideration the other matter of bonding as required by case law, as required by Subsection B, the other considerations of [the r]ubric which requires us to take a look at that component.

N.T., 6/11/13, at 74–76.

Father contends that his incarceration posed an obstacle to his relationship with the Children, and that the trial court abused its discretion in terminating his parental rights. Father's Brief at 16. Father cites Adoption of S.P. and In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), for the proposition that in cases involving an incarcerated parent, the trial court must consider the efforts made by the incarcerated parent to foster a close relationship with his children. Father's Brief at 10. Father maintains that he made consistent efforts to remain in contact with the Children by sending cards, letters, and gifts on a regular basis, and by participating in the "Reading to Your Children" program at the State Correctional Institute- Albion. Father claims that he participated in monthly telephone calls with the Children until the trial court granted the second petition for change of goal. Father avers that he also requested visitation with the Children, as well as "virtual visitations" through video-conferencing. Thus, Father asserts, despite being incarcerated, he availed himself of all available resources that could assist him in maintaining a place of importance in the Children's lives. Father's Brief at 10.

Our Supreme Court, in its plurality decision in R.I.S., stated that the incarceration of a parent, standing alone, cannot constitute proper grounds for the termination of that parent's rights to his child. R.I.S., 36 A.3d at 574. Thereafter, in Adoption of S.P., the Supreme Court reiterated 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." Adoption of S.P., 47 A.3d at 828 (quoting McCray, 331 A.2d at 655). 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 . . . ."

Adoption of S.P., 47 A.3d at 830.[4]

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.

As to the needs and welfare analysis under section 2511(a)(8), the trial court provided the following analysis:

[W]hat's important in this case is what's best for [the Children]. What would serve the needs and welfare of the [C]hildren. It's almost four and a half years of the [foster parents] serving the needs and welfare of these [C]hildren in their home, which they have physically adjusted to make safe and healthy for them, the heavy lifting, as [CYF counsel] calls it, the caring for the [C]hildren on a day-to-day basis, the things I agree you couldn't do because of the things you did do. I am surprised, sir, quite frankly, you don't think that it is more important for your [C]hildren to be healthy and safe than for them to know you never gave up on them. I don't know how that serves their needs and welfare like these folks have done.
They are loved. They call them mom and dad. You are Mr. [S.]. They have family, the most important thing these [C]hildren could have, which they never had with you. They have a sibling who has been adopted by the [foster parents] that they can grow up and live with. They have step-siblings, and if they were adopted, more siblings, two older brothers in that house, who love and care for them. They love and care for each other.
Their physical needs are cared for on a daily basis, their counseling sessions. The list is amazing what these people have done to make these [C]hildren safe.
And clearly, with respect to your oldest [sic] son, still the continuing diagnostic process to determine what other needs your child has, and they keep working at that; whereas, you say I am getting out of prison if I am good and meet all three goals and if all the members of the state parole board agree to let me out of prison on July 15, [2014, ] and so, on that date I am ready to parent. You say I might need some help, I will need some help. No kidding you are going to need help. But, you are sitting here saying I am ready to parent. You can't actually think you are going to meet the needs and welfare of your [C]hildren on that date.

N.T., 6/11/13, at 79-81.

The trial court considered that Father had written a few letters and had a few phone calls with the Children while he was incarcerated, but found that contact was insufficient to defeat the fact that Father had not been taking care of them, and would not be ready to take care of them, even if he is released at his minimum date. See N.T., 6/11/13, at 76–81. The trial court, therefore, determined that Father cannot meet the needs and welfare of the Children, as he is incarcerated at least through June 15, 2014, and will not be prepared to care for them upon his release from incarceration. These considerations were appropriate under Adoption of S.P. and Adoption of McCray.

We must defer to the trial court's decision, as the factual findings with regard to section 2511(a)(8) 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. Adoption of S.P., 47 A.3d at 826–827.

After we find that the requirements of subsection (a) are satisfied, we proceed to review whether the requirements of subsection (b) are satisfied, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). "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." Adoption of S.P., 47 A.3d at 830–831. We have stated that the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc).

[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa.Super. 2012). In In re E.M., 620 A.2d [481] at 485 [Pa. 1993], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791. However, . . . evaluation of a child's bonds is not always an easy task.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). The T.S.M. Court also stated, "Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents. See In re K.M., 53 A.3d at 791." In re T.S.M., 71 A.3d at 268.

Father argues that he has made consistent efforts to remain in contact with the Children and to maintain a bond with them, demonstrating his unwavering love and concern for them and his desire to assume a place of importance in their lives. Father's Brief at 16. In response to Father's claims with regard to the bond analysis under section 2511(b), the trial court found as follows:

I heard from [Father] and from counsel for [Father] that bonding, oh well, it is not really his fault. It is the fault of the fact that he is incarcerated. And again, I made reference to his incarceration being his fault the last time we had this proceeding. The length of his incarceration, his fault. And the fact that he was incarcerated for doing an act specifically while he was on parole and prohibited from doing an act which expanded the term of his incarceration. So, quite clearly, it is his conduct which has put this circumstance before the Court.
During that period of time, however, you have had up until last August three years of contact with the [C]hildren, three years of telephone calls that had no impact whatsoever in bonding those [C]hildren to you in their lives.
We heard testimony the last time, which I have incorporated into today's proceedings, that the [C]hildren, quite frankly, had no idea who you were on the telephone. While they knew you were [F]ather, it made no sense to them because they are talking to [F]ather while father is in the room with them. It was confusing. It was hectic. It was not conceivable that the [C]hildren could bond. Unfortunately, because of the nature of their ADD, they couldn't focus. They run around, run under tables. But, the opportunity was there. It was there for you to bond. And again, it didn't take.
I am not criticizing you for the inability of you and the [C]hildren to bond. I am just noting it. For you to come in and say we haven't had an opportunity in the last year, well, I don't know that it would work. But, it is not completely accurate to say you hadn't had the opportunity in the last year. You did. And [CYF counsel] notes quite clearly that you had eight envelopes and eight stamps a month, and it has been 14 months. . . . That's 104 times you could have corresponded with your [C]hildren. 104 times. And we heard testimony of six in 14 months. So, to suggest you did what you could is preposterous. You didn't get anywhere close.
Secondly, the description of the correspondence that you had with your [C]hildren was how is school, how are you doing. I didn't hear you say any other inquiry was made. But, the question was asked of you while you were on the witness stand what did you do with the [C]hildren to let them know about you. And you didn't answer that question. Nothing. You didn't tell them anything about you. Bonding is getting to know somebody, establishing a connection. It is sharing what is going on in your lives. For you to say how is school, how are you doing doesn't come close to bonding.
I suspect the phone calls you had weren't significantly different. I don't disagree with you, there is a great challenge to attempt to bond with children over the phone, to attempt to bond with children by letter. But, attempt is an important component to that. And quite frankly, I am not sure that you rose to that level. In my own life, I use the example of my grandchildren. They live in Georgia, farther away than where you are. And I make every effort to correspond with them either on the phone or by mail as frequently as I possibly can. I have the luxury of calling whenever I want. You don't have that luxury.
But, bonding is a process. It is not just I am going to give you a shot, you haven't bonded. You by your testimony say I have not bonded with these [C]hildren. You by your own testimony say I don't know these [C]hildren. Yet, you come into court and you say the termination of the rights of those [C]hildren would be detrimental because you want them to know you tried. You want them to know that you didn't abandon them, that you didn't neglect them, and that you are their biological dad. Nobody said they won't ever tell the [C]hildren of your efforts.
* * *
So, I believe that [CYF] has clearly met the burden of establishing by clear and convincing evidence that it is in the best interest of these [C]hildren and best serves the needs and welfare of both [C]children for your parental rights to be terminated under those circumstances.

N.T., 6/11/13, at 76–79, 81.

Again, we observe that the trial court's factual findings with regard to section 2511(b) 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. Thus, we must defer to the trial court's decision. Adoption of S.P., 47 A.3d at 826–827. Although Father professes to love the Children, this Court has stated that a parent's own feelings of love and affection for a child, alone, will not preclude termination of parental rights. In re Z.P., 994 A.2d at 1121.

To the extent that Father wishes to have an opportunity to bond with the Children, this Court has 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). See also In re Adoption of C.L.G., 956 A.2d at 1007 (child's life will not be put on hold in hope that parent will assume responsibilities of parenting). In In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004), we stated, "A parent cannot protect his parental rights by merely stating that he does not wish to have his rights terminated." The competent evidence in the record supports the trial court's conclusion that no bond exists between Father and the Children that would be harmed by the termination of Father's parental rights, and that the termination would serve their best interests.

Decrees affirmed.

Judgment Entered.


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