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[U] In re Adoption of S.T.G.S.

Superior Court of Pennsylvania

January 24, 2014

IN RE: ADOPTION OF: S.T.G.S. APPEAL OF: C.S. IN RE: ADOPTION OF: C.N.G.S. APPEAL OF: C.S.

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 6, 2013, In the Court of Common Pleas of Montgomery County, Orphans' Court Division, at No. 2012-A0216.

Appeal from the Order Entered June 6, 2013, In the Court of Common Pleas of Montgomery County, Orphans' Court Division, at No. 2012-A0215.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

C.S. ("Father") appeals from the orders entered June 6, 2013, granting the petitions filed by the Montgomery County Office of Children and Youth ("OCY") involuntarily terminating his parental rights to his then fifteen-year-old son, C.N.G.S., born in March 1998, and his fourteen-year-old daughter, S.T.G.S., born in July 1999 (collectively "the Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).[1] We affirm.

OCY's involvement began in 2011 when it obtained custody of the Children and placed them into a foster home on April 7, 2011; S.T.G.S. was eleven years old and C.N.G.S. was thirteen years of age. N.T., 5/8/13, at 15, 84). That foster home remains the current placement for the Children. Id. at 15. For two years prior to OCY involvement, the Children had been residing with a maternal aunt and uncle through placement by the Philadelphia Department of Human Services. Id. at 15, 86–87. In April 2011, when the aunt filed a PFA petition against uncle, and he left the marital home, OCY was contacted that the aunt could no longer care for the Children. Id. at 15, 84. At that time, Father's whereabouts were unknown, but he was subsequently located in a Philadelphia homeless shelter in May 2011. Id. at 20, 87.

OCY developed several family service plans in order to assist Father's reunification with the Children. N.T., 5/8/13, at 15. The plan required Father to obtain and maintain a residence that would be suitable for the Children and to provide documentation that he was financially able to meet the Children's needs. Father also was required to submit to drug testing and provide documentation explaining his prognosis and diagnosis regarding his health issues. The plan also provided that Father engage in family counseling with the Children. Finally, Father was to maintain a healthy relationship with the Children while they were in placement and cooperate with OCY. N.T., 5/8/13, at 21–22.

On December 17, 2012, OCY filed petitions seeking the involuntary termination of Father's parental rights to the Children. Citing In re B.L.L., 787 A.2d 1007 (Pa.Super. 2001), the orphans' court ordered on March 1, 2013, that the Children need not testify at the termination hearing and quashed all subpoenas requiring their appearance. Thereafter, on March 4, 2013, Father filed a motion in limine and a motion to permit the Children to testify at the termination hearing, stating that the Children had previously testified at the permanency review hearing on September 5, 2012, before Master Stephen P. Imms, Jr. Father also sought admission into evidence of the notes of testimony from the September 5, 2012 hearing.

The orphans' court ordered on March 8, 2013, that the Children would be permitted to testify in camera in the presence of counsel and on the record, with questions to be posed by the court. The parties were not permitted to be present. The orphans' court directed the parties' counsel to submit questions for the orphans' court's review.

The orphans' court held an in camera interview with the Children on April 10, 2013, at which the orphans' court asked the Children questions that counsel had previously submitted. N.T., 4/10/13, at 3. Subsequently, the orphans' court held a hearing on May 8, 2013, at which OCY presented the testimony of Melinda Shelton, the assigned caseworker for the family; Angela Krebsbach, the foster care case manager and adoption specialist for Friendship House; and Stephen Polonsky, an OCY adoption caseworker. Father testified on his own behalf. Mother, who had not been located, was not present. N.T. 5/8/13, at 9, 271. The orphans' court also admitted into evidence the notes of testimony from the September 5, 2012 permanency review hearing. Id. at 123–124. Further, the orphans' court stated that it was deferring its ruling regarding Father's parental rights to allow time to locate Mother and facilitate her participation in the proceedings. Id. at 272.

On June 6, 2013, the orphans' court granted the petition to involuntarily terminate Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b). On July 5, 2013, Father filed notices of appeal along with concise statements of errors complained of on appeal. We consolidated the appeals on July 29, 2013.

In his brief on appeal, Father raises three issues, as follows:

1. Whether the Evidence was sufficient to establish Termination of Appellant's Parental Rights as to 23 Pa.C.S. section 2511(a)(1); that Appellant had either Refused or Failed to Perform Parental Duties, or that he had evidenced a Settled Purpose of Relinquishing his Parental Claim.
2. Whether the Evidence was sufficient to establish that Termination of Parental Rights would best serve the Needs and Welfare of the Minor Children, under 23 Pa.C.S. section 2511(b).
3. Whether the Trial Court erred in denying Appellant's request to allow the Minor Children to provide "Full Testimony" to the Court; i.e., Testimony that would have been subject to the direct, and cross examination by the parties.

Father's Brief at 5 (verbatim).

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., 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., 34 A.3d 1, 51 ([Pa.] 2011); Christianson v. Ely, 838 A.2d 630, 634 ([Pa.] 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).

We focus on 23 Pa.C.S.A. § 2511(a)(1) and (b), which provide, 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:
(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.
We have explained this Court's review of such a challenge as follows:
To satisfy the requirements of section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa.Super. 2006).
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 Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (citing In re Adoption of Charles E.D.M., 708 A.2d 88, 91 (Pa. 1998)).

"Parental duties" have been defined 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.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.

In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (quoting In re C.M.S., 832 A.2d 457, 462 (Pa Super. 2003)). Parental duty requires that the parent "act affirmatively with good faith interest and effort, and not yield to every problem, . . . even in difficult circumstances." Id. A parent must utilize all available resources and exercise reasonable firmness "in resisting obstacles placed in the path of maintaining the parent-child relationship." Id. To be legally sufficient, post abandonment contact "must demonstrate a serious intent on the part of the parent to re-cultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role." In re Z.P., 994 A.2d 1108, 1119 (Pa.Super. 2010) (quoting In re D.J.S., 737 A.2d 283, 286 (Pa.Super. 1999)).

Instantly, the orphans' court issued its decision from the bench and noted that its oral ruling would serve as its opinion for purposes of Pa.R.A.P. 1925(a). N.T., 5/8/13, at 252–272. The orphans' court found that the Children had been in multiple homes since 2006 or 2007, and except for a brief period, had not resided with Father. Id. at 255–256, 267. For the two years preceding the filing of the termination petitions, the Children had been living in a foster home. Id. at 267.

The orphans' court referred to several Family Service Plan ("FSP") goals that OCY had established for Father, including obtaining housing, maintaining a residence, providing a safe environment for the Children, maintaining a healthy relationship with the Children, and visiting with them on a consistent basis. N.T., 5/8/13, at 255. The orphans' court concluded Father had satisfied the housing goal. Id. The orphans' court further found that of the fifty visits offered to Father between July 5, 2011 and April 26, 2013, he had arrived late on twelve occasions and had attended ten additional timely visits while he was hospitalized or in a rehabilitation center. N.T., 5/8/13, at 256. Further, the orphans' court determined that Father had participated in two visits with the Children following court dates, one of which was a group decision-making meeting at the rehabilitation center. Id. Thus, the orphans' court concluded that although Father was present at twenty-four of the fifty visits he was offered, he transported himself only to twelve of the twenty-four visits. Id. at 257. The orphans' court also found that Father had failed to appear on thirteen occasions and had failed to confirm four times, thereby causing those visits to be cancelled. Id. He also was late by more than fifteen minutes on nine occasions. Id. Thus, the orphans' court expressed concern that Father could not provide stability for the Children. Id.

Father's FSP also included a goal of achieving and maintaining recovery from substance abuse and providing drug test samples. N.T., 5/8/13, at 257. The orphans' court found that OCY had difficulty achieving a resolution of this objective with Father, and that he was not cooperative in providing physicians' notes and complying with requests for tests. Id. Relating to Father's FSP goal of providing OCY with information regarding his diagnosis and health prognosis, the orphans' court concluded that Father was argumentative and not forthcoming at the hearing as to whether he was required to provide information about his prognosis. N.T., 5/8/13, at 258. The orphans' court found from the evidence that Father was hospitalized and in rehabilitation on several occasions in the two-year period since the Children had been in foster care under OCY supervision. Id. at 258–259. Thus, the orphans' court determined that Father had been unavailable to care for the Children for several months between November 2011 and March 2012. Id. Moreover, the orphans' court indicated that Father had been hospitalized on at least one other occasion, and had canceled two visits based on hospitalization. Id. at 260–261.

The orphans' court explained that Father lacked adequate back-up when he was hospitalized, and that the documentation he submitted to OCY was insufficient to address OCY's concerns. N.T., 5/8/13, at 260. Additionally, the orphans' court concluded that Father failed to submit adequate documentation regarding his finances. Id. at 261. The orphans' court determined that because Father had improperly commingled his funds with those of the estate of his sister, who was an incapacitated person, OCY could not expect Father to pay for the Children's needs from his sister's funds. Id. at 261-262.

Another FSP goal was participation in family counseling, particularly with C.N.G.S. The orphans' court determined that Father had resisted, and further, he denied receiving OCY's letter about the matter. N.T., 5/8/13, at 262–263. The orphans' court concluded that Father lacked an adequate explanation both for missing a May 3, 2012 counseling appointment and his failure to participate in the family counseling with the Children. Id. at 263. The orphans' court underscored that this failure to participate in family counseling demonstrated Father's lack of commitment to and failure to cooperate with efforts to reunify him with the Children. Id. The orphans' court also determined that Father had placed the Children in the unacceptable position of bearing the onus to telephone him to remind him of visits. Id. at 264. Moreover, the orphans' court noted that Father had no familiarity with the Children's teachers, activities, counselors, or important people in their lives, and had failed to attend their counseling, medical appointments, and sporting events. Id. at 265. Finally, Father improperly placed the blame on the Children for his shortcomings by claiming that he was not invited to their events. Id. at 264.

Based on the foregoing facts, the trial court found that OCY had proven by clear and convincing evidence that Father had failed and refused to perform his parental duties for a lengthy period beyond the six-month period prior to the filing of the termination petitions. N.T., 5/8/13, at 265– 266. The orphans' court properly considered Father's post-abandonment contact, and his explanations for his failures, and found them unacceptable. In re Z.S.W., 946 A.2d at 730. As we discern competent evidence in the record supporting the credibility and weight assessments of the orphans' court, we conclude that the orphans' court did not abuse its discretion in terminating Father's parental rights under section 2511(a)(1).

In reviewing the evidence in support of termination under section 2511(b), our Supreme Court recently stated as follows:

[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 "intangibles 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, 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.

T.S.M., 71 A.3d at 267.

The orphans' court found that the Children's needs and welfare had been met in foster care for at least the two years prior to the filing of the petition, and that the Children had no bond with Father. The Children, however, did rely on their foster parents to meet their needs and clearly had a bond with them. N.T., 5/8/13, at 267–268. The orphans' court found that the termination of Father's parental rights would serve the Children's best interests and allow them to be adopted into a home in which they could have the safety and security that Father could not provide for them. Id. at 268– 271.

In In re K.Z.S., 946 A.2d 753 (Pa.Super. 2008), this Court explained that in cases where there is no evidence of any bond between the parent and child, it is reasonable to infer that no bond exists. "The extent of any bond analysis, therefore, necessarily depends on the circumstances of the particular case." Id. at 763. We instructed therein that the orphans' court should also consider intangibles, such as love, comfort, security, and stability that a child might have with the foster parent. Additionally, we advised the orphans' court to consider the importance of continuity of relationships and to assess whether any existing parent-child bond may be severed without detrimental effects on the child. Id.

We further observed in K.Z.S. that where the subject child had been constantly and consistently separated from his mother for four years, any relationship between the two had to be "fairly attenuated" such that even if a bond existed, it did not defeat the termination of the mother's parental rights. Id. at 764. Based on the strong relationship that the child had with his foster mother, the child's young age, and his very limited contact with his mother, this Court found competent evidence to support the termination of the mother's parental rights without a bonding evaluation. Id.

In conducting a bonding analysis, the orphans' court does not require a formal bonding evaluation or expert testimony; it may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d at 1121. Here, the caseworkers addressed the bond between the Children and their foster parents and the Children and Father. The orphans' court considered that testimony in rendering its decision. N.T., 5/8/13, at 268–269.

We conclude that there was sufficient evidence from which the orphans' court properly determined that Father failed to "exhibit [the] bilateral relationship which emanates from the parent['s] willingness to learn appropriate parenting . . . ." In re K.K.R.S., 958 A.2d 529, 534 (Pa.Super. 2008). As Father did not put himself in a position to assume daily parenting responsibilities, he could not develop a real bond with the Children. See In re J.L.C., 837 A.2d 1247, 1249 (Pa.Super. 2003). Additionally, as part of its bonding analysis, the orphans' court appropriately examined the Children's relationship with their foster parents. See T.S.M., 71 A.3d at 267–268 (stating that the court must consider whether the child has a bond with the foster parents).

The orphans' court found that Father loves the Children and they love him, however, there is no strong parental bond between Father and the Children, and they do not look to him to meet their needs. N.T., 5/8/13, at 268. A parent's own feelings of love and affection for a child, alone, will not preclude termination of parental rights. Z.P., 994 A.2d at 1121. We stated in Z.P. that a child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting." Id. at 1125. Rather, "[A] parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d at 856. The record reflects that the orphans' court appropriately considered the Children's best interests and conducted a bond-effect analysis in deciding whether to terminate Father's parental rights.

With regard to Father's final issue on appeal, Father argues that the orphans' court abused its discretion in denying his petition for the Children to testify in open court and be subjected to direct and cross-examination by all parties. In support of his argument, Father acknowledges this Court's decision in In re B.L.L., 787 A.2d 1007 (Pa.Super. 2001), but contends that the present case is distinguishable.

In B.L.L., a mother whose parental rights were terminated filed an appeal, arguing that the orphans' court erred in refusing her request to schedule an additional hearing for the child to testify. This Court stated:

The admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law.

B.L.L., 787 A.2d at 1011 (citations omitted). We concluded that the orphans' court did not abuse its discretion in refusing to schedule an evidentiary hearing so that the subject child could testify. Id.

Father asserts that B.L.L. is distinguishable because herein, he was not seeking an additional hearing; rather, Father sought the Children's testimony in the same termination hearing at which he was present and testified. Father complains that at the April 10, 2013 hearing, he could not cross-examine the Children because the orphans' court conducted the questioning of the Children.

We do not agree with Father that the trial court abused its discretion in this matter. The orphans' court stated that although the Children love Father and wanted him to meet his FSP objectives, they were frustrated and disappointed that he had not been able to succeed. N.T., 5/8/13, at 264. Further, the orphans' court indicated that the Children do not wish to, nor should they be required to, make the decision regarding termination, nor did they want to express their anger, frustration, disappointment, and desire to remain with their foster parents directly to Father. Id. The orphans' court stated:

And given [the] extremely difficult and numerous transitions these children have been in and the lack of security the [C]hildren feel[, ] it was extremely poor judgment by [Father] to try to put his children on the spot that way.

Id. at 264-265. Moreover, the questions posed to the Children were the questions presented to the orphans' court by the parties. Father does not make any claim that the orphans' court refused to ask the questions submitted by his counsel. We conclude that the orphans' court did not abuse its discretion in denying Father's petition to require the Children to testify in open court at the termination hearing.

Accordingly, we hold that the competent evidence of record supports the credibility and weight assessment of the orphans' court. Thus, we conclude that the orphans' court did not abuse its discretion in terminating Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).

Orders affirmed.

Judgment Entered.


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