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[U] In re R.A.A.

Superior Court of Pennsylvania

February 12, 2014

IN THE INTEREST OF: R.A.A., III, A MINOR APPEAL OF: R.A., JR., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Orders Entered September 18, 2013 in the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000447-2012 CP-51-DP-0000384-2011

BEFORE: BENDER, P.J.E., WECHT and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

R.A., Jr. (Father) appeals from orders entered on September 18, 2013. One of the orders Father challenges terminated involuntarily his parental rights to R.A., III (Child) (born in August of 2010).[1] The other order Father challenges changed Child's goal to adoption. We affirm.

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

On February 28, 2011, the Department of Human Services (DHS) received a General Protective Services (GPS) report alleging that Mother left [Child] in the care of maternal aunt and failed to return. The report further alleged that [Child], who was six months old, had tested positive for heroin at the time of his birth and spent two months in the hospital suffering from withdrawal symptoms, acid reflux and diarrhea. The report alleged that Mother had a criminal record and a history of substance abuse, and Father had just been released from prison and was possibly homeless, but was not involved in [Child's] care. The GPS Report was substantiated.

DHS obtained an Order of Protective Custody (OPC) on February 28, 2011, and [Child] remained in the care of maternal aunt. A Shelter Care hearing was held on March 2, 2011 at which time the OPC was lifted, and [Child] was committed to DHS on a temporary basis. Father was referred to the Clinical Evaluation Unit (CEU) for an assessment and screen and was to have supervised visits at the agency.

Mother was arrested on March 16, 2011 and subsequently pled guilty to robbery, inflicting and threatening bodily harm and conspiracy for which she received a sentence of three to five years [of incarceration]. The [c]ourt's [o]rder of June 9, 2011 noted that Father might be incarcerated, and DHS was to conduct a Parent Locator/Prison Search as to Father. On July 5, 2011, DHS held the initial Family Service Plan (FSP) meeting, at which time the objectives for Father were to participate in an evaluation for drug and alcohol abuse and comply with the treatment recommendations of the provider. Later, Father's objectives were revised to include: 1) to meet with a parenting support group on a weekly basis and complete a parenting education program; 2) to learn expected behaviors for his child; 3) to locate and occupy suitable housing; and 4) to complete job training and/or to seek and maintain employment and/or complete a GED Program. On September 16, 2011, DHS was ordered to make outreach to parents, and the [o]rder of the [c]ourt further specified that visitation with parents in prison was only to occur if [C]hild's pediatrician was in agreement.
The Permanency Review Order of November 29, 2011 stated that Father was residing with paternal grandmother and was enrolled in a Connection Training Program offering drug and alcohol treatment and job skills training. Father was referred to the CEU for a forthwith screen and assessment. Father was also referred for parenting classes and offered supervised visits with [Child], which could be modified by agreement of the parties. DHS was to conduct clearances on all individuals residing in grandmother's home and invite Father to attend [C]hild's medical appointments.
On February 28, 2012, the [c]ourt [o]rder indicated that Father had not been visiting consistently, but DHS was to continue to make outreach to Father. Father was ordered to the CEU for a forthwith screen and assessment. On May 1, 2012, the [c]ourt noted that Father was incarcerated at Curran-Fromhold Correctional Facility, and Father had specifically requested that no visitation occur. Father was referred to the CEU for a forthwith screen and assessment upon his release, and DHS was ordered to assist Father with obtaining drug and alcohol treatment in prison if appropriate. [DHS filed the petition to terminate involuntarily Father's parental rights on September 17, 2012.] According to the [c]ourt [o]rder of December 17, 2012, Father was incarcerated at SCI Camp Hill and was not interested in voluntarily relinquishing his parental rights. On June 4, 2013, the [c]ourt [o]rder noted that Father was still incarcerated, had one visit with his child since the last court date, and was to be offered once monthly visits at the prison.
A Contested Goal Change hearing was held on September 18, 2013, and the[c]ourt found clear and convincing evidence to terminate Father's parental rights pursuant to 23 Pa. C.S.A. §§ 2511(a)(1), (2), (5) [and] (8) and further found that pursuant to 23 Pa. C.S.A. § 2511(b), adoption would be in the best interest of [Child].

Trial Court Opinion, 10/31/2013, at 2-5 (citations omitted).

Father timely filed a notice of appeal and concurrently filed 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. §§ 2501(a)(2) or (b).[2] Father also argues that the trial court erred by changing Child's goal to adoption.

We consider Father's arguments regarding the termination of his parental rights 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, in relevant part, as follows.

(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 causes 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) … 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.

In support of its decision to terminate Father's parental rights, the trial court stated, "Despite Father's attempts to comply with his FSP goals while in prison by completing substance abuse treatment and job training, he has never parented [Child], nor maintained a place of importance in his son's life." Trial Court Opinion, 10/31/2013, at 6. The court further observed:

Father's earliest possible release date is March of 2014, and he testified that he hopes to be able to take care of his son within six months of his release date; however, given that Father has to obtain a source of income and housing, permanency could be delayed indefinitely for [Child].

Id. at 7.

Father's argument regarding subsection 2511(a)(2) can be summarized as follows.

In this matter[, F]ather has six months left on his sentence, and we do not have [an] especially lengthy sentence which would present clear and convincing evidence that Father will not be able to remedy the incapacity or conditions which led to placement. This case does not present a situation where the father is expected to remain in custody for a long time. Additionally, [F]ather's expected need to reside in a halfway house to save money for a decent place for himself and [C]hild for six months is not clear and convincing evidence that [F]ather is unable to remedy can not or will not [sic] the conditions and causes of incapacity, abuse and neglect or refusal cannot or will not be remedied by the parent.
D.H.S. did not establish that Father was under a "continued incapacity" under section 2511[(a)](2) or has caused the child to be without essential parental care, control or subsistence necessary for physical or mental well-being and the conditions and causes of incapacity, abuse, neglect or refusal cannot or will not be remedied by parent.

Father's Brief at 18 (emphasis in original).

The record establishes that Child came to DHS's attention in February of 2011 after Mother abandoned Child. N.T., 9/18/2013, at 6. Since that time, Father has been repeatedly incarcerated, and his continued incapacity has rendered him unable to provide Child with essential parental care, control, and subsistence necessary for Child's physical and mental well- being. The record further establishes that Father's earliest possible release date from prison is March of 2014 and that Father would not be in a position to parent Child upon his release. Id. at 10-12. In fact, Father testified that, after he is released, he would have to live in a halfway house and that his "plans" are to be able to care for Child within six months of his release from prison. Id. at 21-22.

While Father may be released from prison in March of 2014, he may not be released until a later date. Furthermore, Father's plan to care for Child six months after his release, regardless of when that release occurs, is speculative at best, particularly considering that Father never has parented Child in the past. "The courts of this Commonwealth have long held that a child's life simply cannot be put on hold in the hope that [Father] will summon the ability to handle the responsibilities of parenting." In re Z.S.W., 946 A.2d 726, 732 (Pa.Super. 2008) (internal quotation omitted). Accordingly, because the record supports a determination that Father will not remedy his incapacity within a reasonable time, we hold that the trial court did not err in finding that DHS met its burden under subsection 2511(a)(2). See, e.g., In re A.S., 11 A.3d 473, 480 (Pa.Super. 2010) ("Father's recurrent incarceration is evidence of his parental incapacity.… [Father's] pattern of behavior [of continuing the criminal activity that resulted in incarceration] supports the trial court's conclusion that Father has refused to remedy the conditions that led to Children's placement, per Section 2511(a)(2)."). See also In re C.L.G., 956 A.2d 999, 1008 (Pa.Super. 2008) (en banc) ("[I]f we were to permit Mother further opportunity to cultivate an environment where she can care for C.L.G., we would be subjecting a child, who has been waiting for more than two years for permanency, to a state of proverbial limbo in anticipation of a scenario that is speculative at best."). We now turn our attention to subsection 2511(b).

In reviewing the evidence in support of termination under subsection 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, 1286-87 (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. Id.

Regarding subsection 2511(b),

Father asserts that there was no clear and convincing evidence presented that [C]hild would suffer no harm in being deprived of a father, particularly where [C]hild is being raised by his aunt only and where the social worker[']s testimony presented at trial regarding [C]hild['s] relationship with [F]ather did not rise to the level of clear and convincing evidence.

Father's Brief at 21-22.

To the extent that Father is claiming that the evidence presented at the termination hearing was insufficient to prove that Child would not be harmed if the trial court terminated his parental rights, we observe that DHS social worker, James Hood, testified at the hearing. Mr. Hood testified that the termination of Father's parental rights to Child would not cause Child irreparable harm. N.T., 9/18/2013, at 13. Mr. Hood further testified that he believed it was in Child's best interest to remain with, and to be adopted by, his current caregiver. Id. at 13-14.

Melvita Tarry, the Agency Social Worker, also testified at the hearing. Ms. Tarry opined that the termination of Father's parental rights will not cause Child harm and that a goal change to adoption is in Child's best interest. Id. at 18-19. This evidence is sufficient to support a determination that Child will not suffer harm if Father's parental rights are terminated.

To the extent that Father challenges the weight of this evidence, the trial court clearly credited this testimony, as was its right to do; moreover, the court's credibility determinations are supported by the record. Thus, we will not disturb those determinations. See In re J.F.M., 71 A.3d 989, 992 (Pa.Super. 2013) ("The trial court is free to make all credibility determinations, and may believe all, part, or none of the evidence presented. If the findings of the trial court are supported by competent evidence, we will affirm even if the record could also support the opposite result.").

Lastly, Father contends that the trial court erred by changing Child's goal to adoption. The substance of Father's arguments is as follows.

If it was improper to terminate [F]ather's parental rights it was likewise improper to determine that [DHS] should not continue to provide Father with services required under the Juvenile Act.

Father's Brief at 22. Because we have determined that the trial court did not err by terminating Father's parental rights, this argument fails and warrants no further consideration.

For these reasons, we find that the trial court properly terminated Father's parental rights to Child pursuant to subsections 2511(a)(2) and (b). Furthermore, we find no error in the court's decision to change Child's goal to adoption. Accordingly, we affirm the court's orders.

Orders affirmed.

Judgment Entered.


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