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[U] In re Adoption of A.Y.

Superior Court of Pennsylvania

February 27, 2014

IN RE: ADOPTION OF: A.Y., a Minor, APPEAL OF: T.Y., Father Appellant IN RE: ADOPTION OF: N.Y., a Minor, APPEAL OF: T.Y., Father Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Decree entered May 22, 2013, in the Court of Common Pleas of Northumberland County, Orphans' Court, at No(s): 2 Year of 2012

BEFORE: SHOGAN, ALLEN and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

T.Y. ("Father") appeals from the Decrees entered on May 22, 2013, which granted the Petitions, filed by the Northumberland County Children and Youth Services ("CYS" or the "Agency"), to involuntarily terminate his parental rights to his daughter, A.Y. (born in May 2003), and his son, N.Y. (born in May 2008) (collectively, the "Children"). Father's parental rights were terminated pursuant to subsections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We affirm.

The Children were placed in foster care with their maternal uncle, T.W. ("Uncle"), and his wife, V.W. ("Aunt"), on January 13, 2011. N.T., 9/5/12, at 23, 120-21; N.T., 10/17/12, at 4-5. In January 2012, CYS filed Petitions for the involuntary termination of the parental rights of Father and D.D. (a/k/a D.Y.) ("Mother")[1] with regard to the Children. The trial court conducted evidentiary hearings on the Petitions.

At a hearing on September 5, 2012, CYS presented the testimony of Jennifer Donmoyer, a CYS caseworker in the general protective services section, who worked with the family between July 24, 2009 and February of 2011. N.T., 9/5/12, at 5-6. CYS also presented the testimony of Kimberly Heitzman, a CYS general protective services caseworker who worked with the family between August or September of 2008 and March of 2009. Id. at 12-13. Further, CYS presented the testimony of Laurilee Kerstetter, a CYS caseworker who began working with the family in February of 2011. Id. at 22. Additionally, CYS presented the testimony of Lisa Shaffer, the CYS Director of Social Services. Id. at 81. Finally, CYS presented the testimony of Uncle and Aunt. Id. at 120-21. Mother presented the testimony of S.Z., Father's former "Big Brother" through the Big Brother program. Id. at 92.

At a hearing on October 17, 2012, CYS presented the testimony of Aunt. N.T., 10/17/12, at 5. At a hearing on January 9, 2013, CYS presented the testimony of the female child, A.Y., in chambers, in the presence of all counsel. N.T., 1/9/13, at 7.

Father testified on his own behalf. Id. at 88. According to Father, at the time of the removal of the Children from Mother's custody and care, he had been incarcerated for four or five months in the Northumberland County prison. Id. at 89. Father stated that he was presently released from his sentence on parole. Id. at 95.

Based on the testimonial and other evidence, the trial court set forth the factual and procedural history, and summarized the relevant testimony presented at the hearing, which we adopt as though fully restated herein. Statement in Lieu of Opinion, 7/25/13, at 1-6.

On May 22, 2013, the trial court entered the Decrees terminating Father's parental rights to the Children under sections 2511(a)(1), (2), (5), (8), and (b). On June 21, 2013, Father filed his Notices of Appeal, along with Concise Statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).[2] This Court, acting sua sponte, consolidated the appeals on July 22, 2013.

On appeal, Father raises two issues for our review:

I. Whether the trial court erred in determining that [CYS] presented clear and convincing evidence that grounds for involuntary termination exist?
II. Whether the trial court erred in determining that the best interests of the [Children] would be served by terminating parental rights?

Father's Brief at 12.

We review Father's 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 567, 572 (Pa. 2011) (plurality opinion). 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., 613 A.2d 371, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 A.2d 647, 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 [the Pennsylvania Supreme Court] discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. [The Supreme Court] 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, 826–27 (Pa. 2012).

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 decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we will focus on section 2511(a)(2).

Section 2511 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:
(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), (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.

23 Pa.C.S.A. § 2511.

We have stated:
In order to terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), the following three elements must be met: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citations omitted).

The trial court found the following with regard to section 2511(a)(2):
This [c]ourt finds that the credibility of Father in his testimony is suspect. While he alleges, in response to his attorney's questions[, ] that he has completed mental health services, in the same response he refers to a psychological/psychiatric appointment scheduled for the same week of the hearing. It appears that Father does not fully comprehend the dire nature of the situation. He has been incarcerated for the duration of the [C]hildren's placement in care, roughly twenty-four (24) months. During that time, while most of the testimony focused on visitation, Father was unable to effectively maintain contact with the Agency. He was unavailable for Agency solicitation regarding the services made available at the prison complex he was being housed at. While Father indicates he completed drug and alcohol counseling and various other services while incarcerated[, ] and his successful parole suggests that the same is true, Father has not provided documentation of completing such services. Parental incapacity does not require the [c]ourt [to] find malignant intent or some form of bad will, psychological incapacity-- a simple physical, mental, and emotional incapacity to parent -- imparts no fault on the parent, but identifies the abundant needs of the [C]hildren to have permanency and CONSISTENT care and sustenance from their parental figures. Father is no closer to affording permanency to these [C]hildren than he was twenty-four (24) months ago. It is the opinion of this [c]ourt that parental incapacity has been demonstrated on the part of Father.

Statement in Lieu of Opinion, 7/25/13, at 6 (emphasis in original).

The trial court issued the following conclusions of law:
It is the opinion of this [c]ourt that the statutory grounds for parental incapacity have been proven by clear and convincing evidence against Father. By further directive, it is the opinion of this [c]ourt that the best interests of both children clearly indicate termination of parental right [sic] to be proper.

Id. at 7.

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 In re 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." In re Adoption of S.P., 47 A.3d at 828 (quoting In re Adoption of McCray, 331 A.2d 652, 655 (1975)). Also, in In re 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 . . . ."

In re Adoption of S.P., 47 A.3d at 830. Accordingly, as the Supreme Court definitively ruled in In re Adoption of S.P., the trial court may examine the effect of a parent's incarceration in ruling on a termination petition.

In the instant matter, the trial court appropriately considered the incarceration of Father in addressing the evidence offered to support the termination of his parental rights. The trial court also considered that, even when not incarcerated, Father had failed to provide the Children with the essential parental care, control or subsistence necessary for their physical or mental well-being, and that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by Father.

"Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities." In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002) (citation omitted). "[A] parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous." Id. (citation omitted). Thus, the trial court could have properly refused to consider Father's indication that he wished an opportunity to improve his parenting in the future.

As we find competent evidence in the record supporting the credibility and weight assessments of the trial court, we conclude that the court did not abuse its discretion in terminating the parental rights of Father under section 2511(a)(2). In re Adoption of S.P., 47 A.3d at 826–27.

Next, we proceed to review whether the requirements of subsection (b) have been met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en banc). The focus in terminating parental rights under section 2511(a) is on the parent, but, under section 2511(b), the focus is on the child. Id. at 1008.

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 "[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, 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.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

In its Statement in Lieu of Opinion, the trial court determined that the termination of Father's parental rights was in the best interests of the Children, which we incorporate herein by reference. Statement in Lieu of Opinion, 7/25/13, at 7.

The record reflects that the trial court appropriately considered the Children's best interests and conducted a bond-effect analysis in deciding whether to terminate the parental rights of Father. Accordingly, we find that the competent evidence of record supports the credibility and weight assessments of the trial court. In re Adoption of S.P., 47 A.3d at 826-27. The evidence supports the trial court's termination of Father's parental rights to the Children under section 2511(b). Thus, we conclude that the trial court did not abuse its discretion in terminating Father's parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).

Decrees affirmed.

Judgment Entered.


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