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[U] In re S.A.T.

Superior Court of Pennsylvania

February 12, 2014

IN THE INTEREST OF: S.A.T., A MINOR
v.
APPEAL OF: G.T., FATHER IN THE INTEREST OF: M.D.S., A MINOR APPEAL OF: G.T., FATHER IN THE INTEREST OF: G.L.T., A MINOR APPEAL OF: G.T., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered September 4, 2013 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000377-2012, CP-51-DP-0123466-2009, CP-51-AP-0000378-2012, CP-51-DP-0123465-2009, CP-51-AP-0000379-2012 CP-51-DP-0123467-2009

BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

G.T. (Father) appeals from the order entered on September 4, 2013, which terminated involuntarily his parental rights to his children, S.A.T. (born in March of 2002), M.D.S.[1] (born in February of 2000), and G.L.T. (born in October of 2003) (collectively "the Children"). We affirm.

The trial court summarized the background underlying this matter in the following manner.

[Father has been incarcerated since March of 2009.] On December 12, 2009, the Department of Human Services (DHS) received a General Protective Services (GPS) report that [the Children's natural mother, M.S., (Mother)] and [the C]hildren were living in deplorable conditions. The police had received a report of a breaking and entering at Mother's home; however, when the officers arrived, Mother refused to allow them to enter the home, requiring the officers to use force. Upon gaining entry, the police observed that the home was dirty and bug-infested, and there was no furniture aside from a few bare mattresses on the floor. The police observed buckets of feces scattered throughout the home and urine and feces covering the basement floor, presumably from two pitbulls found there. The [C]hildren appeared to be malnourished and improperly clothed.
DHS obtained an Order of Protective Custody (OPC) for the [C]hildren and placed them in foster care through Children's Choice. The [C]hildren were adjudicated dependent and committed to DHS. Father did not appear at the adjudicatory hearing. The initial Family Service Plan (FSP) meeting was held on January 8, 2010, at which time Father's objectives were to make his whereabouts known to DHS and attend a parenting class. The Order entered by the [trial c]ourt at the permanency hearing on May 12, 2010 indicated that Father had not been in contact with either the [C]hildren or DHS. At the hearing held on October 6, 2010, the [trial c]ourt found that Father was not in compliance with the permanency plan. On January 20, 2011, the [c]ourt noted that a Parent Locator Search (PLS) had been conducted for Father, the results of which were to be forwarded to Father's attorney.
The children were moved to the home of maternal uncle at the end of 2011, where they reside at present. [On August 9, 2012, DHS filed a petition to terminate the parental rights of Mother and Father.] The Honorable Thomas Nocella heard testimony regarding the termination of Father's parental rights on August 27, 2012, but held the Petition under advisement. It was noted at that time that Father was incarcerated in Jessup, Maryland. Father's attorney presented Certificates of Completion for Anger Management, All the Right Moves and Commitment to Change, which he completed while incarcerated.
At the permanency review hearing before th[e trial c]ourt on January 9, 2013, the [c]ourt noted that Father had been minimally compliant with the permanency plan. On September 4, 2013, [the trial c]ourt found clear and convincing evidence to terminate Father's parental rights pursuant to 23 Pa. C.S.[] §§ 2511(a)(1), (2), (5) & (8) and further found that pursuant to 23 Pa. C.S.[] § 2511(b), adoption would be in the best interest of [the Children].[2]

Trial Court Opinion, 10/18/2013, at 2-4 (citations omitted).

Father timely filed a notice of appeal and attached to it a Pa.R.A.P. 1925(a)(2)(i) statement. The trial court subsequently issued an opinion. In his brief to this Court, Father contends that the trial court erred by terminating his parental rights because DHS failed to present sufficient evidence to prove that termination of his parental rights was proper pursuant to 23 Pa.C.S. §§ 2511(a)(1) or (b).[3]

We consider Father's arguments mindful of the following.

In cases involving the termination of a parent's rights, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child.
Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand…. 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 C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011) (quotation marks and citations omitted).

Our courts apply a two-part analysis in considering termination of 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 if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).

The governing statute provides as follows, in relevant part.

(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) … 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. § 2511.

We have explained this Court's review of a challenge to the evidence to support the involuntary termination of a parent's rights pursuant to section 2511(a)(1) 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 addition, [s]ection 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to [s]ection 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties. 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 [s]ection 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations and quotations omitted).

We have offered the following to guide us in determining what exactly parental duties are.

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.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. 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 re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (internal citations and quotations omitted).

Here, DHS filed the petition to terminate Father's parental rights on August 9, 2012. The pertinent evidence presented at the termination hearings was as follows.

At the August 27, 2012 hearing, DHS called Yvonne Scott as a witness. Ms. Scott is a social worker for DHS and began working on this case in the spring of 2010. Ms. Scott testified that DHS became aware of the Children when it received a report that they "were living in deplorable conditions with buckets of feces all through the house, sleeping on a dirty mattress, dogs in the basement with feces all over. The kids weren't clothed right and they looked malnourished." N.T., 8/27/2012, at 17. A police officer brought the Children to DHS, and DHS placed them into foster care. These events occurred in December of 2009.

According to Ms. Scott, the family's first FSP meeting took place on January 8, 2010. At that time, Father's objectives were "to make his whereabouts known and complete parenting classes." Id. at 23. Several meetings and hearings took place after the initial January 8th FSP meeting; however, Ms. Scott stated that Father did not attend these meetings or hearings due to his incarceration.

In December of 2010, Ms. Scott discovered that Father was incarcerated at Jessup County Prison.[4] Ms. Scott testified that, when she spoke to Father, he did not know the Children were in care, but Ms. Scott informed him of their situation. She also informed Father that the Children would be placed in kinship care with their uncle; Father expressed to Ms. Scott that he did not mind the uncle caring for the Children. Father told Ms. Scott that "he would be in [prison] for a long time, he would not be out until 2021." Id. at 28.

Ms. Scott further testified that she sent copies of the FSP to Father. Ms. Scott indicated that Father does not communicate with her or the Children and that, at the December 12, 2011 FSP meeting, the Children's goal was changed to adoption because Father has no contact with them. Ms. Scott stated that Father continued to have no contact of any kind with the Children in 2012. Ms. Scott also stated that, when she asks the Children about the last time they saw Father, "they don't really remember because it's been so long." Id. at 38. When she asked whether she believed the termination of Father's parental rights would have a negative effect on the Children, Ms. Scott responded in the negative.

According to Ms. Scott, the Children have expressed that they want to continue to live with their uncle. When Ms. Scott discusses adoption with the Children, they express that they would like to stay with their uncle and be permitted to visit with Mother; they, however, do not mention Father.

Father testified after Ms. Scott. When counsel for DHS asked Father when he entered prison, he stated, "March in 2009." Id. at 53. He testified that he was sentenced to "sixteen years" "for conspiracy of robbery, and conspiracy to drug charges." Id. at 54. Appellant asserted that he is eligible for parole in November of 2013.

The Child Advocate asked Father what efforts he has made to contact the Children, and Father answered, "Well, I just received information in 2011 stating that they were in DHS custody. So my fianc[é]e reached out and notified me and she told me she found my other kids. So prior to that I been trying to reach out to them." Id. at 55. When the Child Advocate asked Father how many children he has, Father stated, "I have five. I have [M.S.], and a set of twins and the other one." Id. at 56. Father claimed that he did not know he had any DHS-related goals.

When he was questioned by his counsel, Father asserted that he contacted Ms. Scott after she sent him a letter in July of 2011 and that he spoke to N.S. for two months during 2011. According to Father, after that two-month period, "they changed addresses so I couldn't call no more." Id. at 63. Father entered into evidence certificates that indicated that he completed, inter alia, an anger management program. Father described his relationship with the Children as "loving and fun." Id. at 65.

At the end of the August 27th hearing, the court held DHS's petition regarding Father's parental rights under advisement. The next hearing took place on September 4, 2013. Ms. Scott testified again at this hearing. Ms. Scott stated that, since the August 27th hearing, she has sent to Father notices regarding FSP meetings and the actual FSPs. Father has not written or called Ms. Scott. Ms. Scott had no personal knowledge of Father attempting to speak with the Children.

Diandra Thompson, a case manager from First Home Care, also testified. Ms. Thompson stated that Father has not communicated with her despite the fact that she sent him an introductory letter and attempted to contact him by phone. Ms. Thompson also was unaware of Father attempting to contact the Children. According to Ms. Thompson, the Children's kinship foster parents have expressed a willingness to be an adoptive resource for the Children.

Based upon this evidence, the trial court concluded, inter alia, that Father has failed to perform his parental duties. Trial Court Opinion, 10/18/2013, at 8. The court rejected Father's attempt to explain his conduct by concluding that Father's alleged effort to contact the Children in 2011 was insufficient to demonstrate a desire to maintain an interest in the Children's well-being.

We can discern no error in the court's conclusions. A combination of the testimony of Ms. Scott, Father, and Ms. Thompson establishes that Father has had minimal to no contact with the Children since they were referred to DHS in 2009. The evidence firmly establishes that Father has played no role in the Children's lives and has had no communication with the Children in the six months prior to the filing of the termination petition. We conclude that DHS has proven that, in that six-month period, Father, inter alia, has failed to perform his parental duties. We now turn our attention to subsection 2511(b).

In reviewing the evidence in support of termination under 2511(b), we consider whether the 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). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287 (citations omitted). The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect of permanently severing the bond on the child. See id.

In response to Father's issue regarding subsection 2511(b), the trial court made the following conclusions.

The evidence demonstrates that the [C]hildren are doing well with their uncle and are bonded to their foster family. Furthermore, the [C]hildren would not suffer harm if Father's rights were terminated because the testimony demonstrates that the [C]hildren have not formed a parent/child relationship with their Father and, in fact, cannot remember the last time they had contact with him.

Trial Court Opinion, 10/18/2013, at 9.

A review of the certified record reveals that the trial court's conclusions are supported by the record, and we can discern no error in the court's decision to terminate Father's parental rights pursuant to subsection 2511(b). The evidence demonstrates that the termination of Father's parental rights will best serve the Children's developmental, physical, and emotional needs and welfare by allowing them to move closer to permanency in their lives. Moreover, the evidence establishes that termination of Father's parental rights will not have a detrimental effect of the Children.

For these reasons, we find that the trial court properly terminated Father's parental rights to the Children pursuant to subsections 2511(a)(1) and (b). Accordingly, we affirm the court's order.

Order affirmed.

Judgment Entered.


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