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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NON-PRECEDENTIAL DECISION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 filed December 22, 2010) (unpublished memorandum).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 ...


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