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[U] In re D.M.B.

Superior Court of Pennsylvania

February 28, 2014

IN RE: D.M.B., A MINOR, APPEAL OF: T.B., NATURAL FATHER, Appellant IN RE: A.L.B., A MINOR, APPEAL OF: T.B., NATURAL FATHER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated July 11, 2013 In the Court of Common Pleas of Blair County Civil Division at No(s): 2013 AD 21A.

Appeal from the Order Dated July 11, 2013 In the Court of Common Pleas of Blair County Orphans' Court at No(s): Docket No. 2013 AD 21.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

BOWES, J.

T.B. ("Father") appeals from the orders dated July 11, 2013, in the Court of Common Pleas of Blair County, involuntarily terminating his parental rights to his male child, D.M.B., born in January of 2012, and his female child, A.L.B., born in June of 2010.[1] We affirm.

The involvement of Blair County Children and Youth and Family Service ("CYF") with the family precedes A.L.B.'s birth due to the fact that A.W. ("Mother") was receiving services from the agency when she became pregnant with her daughter during 2009. CYF has had physical custody of A.L.B. recurrently since April 29, 2011, and the child was adjudicated dependent on May 24, 2011. Similarly, D.M.B. was placed in CYF's care during November of 2012, and the juvenile court adjudicated him dependent on January 10, 2013, one year after his birth. The facts relevant to Father's appeal are as follows.[2]

Father has a criminal history dating from 2009, when he was arrested for crimes involving burglary, theft, possession of a firearm by a minor, harassment, and statutory sexual assault, inter alia. On June 3, 2010, Father pleaded guilty to drug charges. On October 5, 2010, Father was arrested for simple assault and harassment during a domestic violence incident involving Mother.

At the time of A.L.B.'s adjudication on May 24, 2011, Father was incarcerated. The trial court, in its adjudication order, directed that reasonable efforts not be made to reunify A.L.B. with Father due to his violent history and criminal record. The court granted Father one supervised visit every two weeks at the CYF facility, and Father was responsible for his transportation costs.

Following the first permanency review hearing on October 17, 2011, by order dated October 19, 2011, the trial court found that Father was again incarcerated.[3] The court found that Father was directed to participate in parenting classes, drug and alcohol treatment, a mental health evaluation, and to resolve his legal issues through a service named Men Helping Men.[4]The court considered that Father had not participated in any of these services. The court directed that visits between Father and A.L.B. be at CYF's discretion.

At the next permanency review hearing on March 20, 2012, Father's son, D.M.B., was nearly two months old. By order dated March 23, 2012, the trial court ascertained that Father remained incarcerated in the Blair County Prison and was to be released to state parole on March 28, 2012. The court determined that Father will be subject to state supervision until 2017. Further, the court found that Father had a parole violation pending, and he needed to follow through on the following services: anger management, drug and alcohol treatment, and couples counseling. Finally, the court deemed Father's visits with A.L.B. and D.M.B. to be appropriate.[5]

By order dated March 23, 2012, the court directed that Father comply with all recommended services, including, but not limited to, successfully completing anger management classes, participating in a drug and alcohol evaluation and following through with all recommended treatment, attending couples counseling with Mother, and complying with the terms of his parole and/or probation. The court further ordered that Father's visits with A.L.B. and D.M.B. be arranged at the discretion of CYF.

Following a permanency review hearing on June 27, 2012, the trial court determined that Father had been released from prison as scheduled on March 28, 2012, and he visited with A.L.B. once a week, which was supervised by the Blair County Family Intervention Crisis Services Reunification Program. Father's last visit with A.L.B. was on April 26, 2012. The court concluded that Father has not participated in a drug and alcohol evaluation or an anger management evaluation, and that he denied needing the services. The court's findings continued:

On [April 26, 2012], [Father] refused a drug test and became verbally aggressive. He threatened to burn down the home of [C.C., A.L.B.'s kinship foster mother at the time], and the Duncansville Borough Police were contacted. [F]ather also verbally assaulted [M]other during their joint visit on 4/17/12, and again threatened [M]other on 5/3/12 when she advised him their relationship was over. [Father] threatened to kill [Mother] and the children through text messages. [M]other contacted the Greenfield Police Department and also filed a PFA [Protection from Abuse] petition. She was granted a 3-year PFA Order for herself and the children.[6]

Order, 7/2/12, at 2. As a result of the PFA order, the court directed that no further visits occur between Father and A.L.B. and D.M.B. In addition, the court found that Father had been arrested by the Altoona Police Department and the Greenfield Township Police Department for new charges related to crimes involving theft.

At the next permanency hearing occurring on September 20, 2012, the court found that Father remained incarcerated at the Blair County Prison, where he had been since May 20, 2012.[7] By the time of the permanency hearing on January 7, 2013, the court determined that Father was serving his state prison sentence at the State Correctional Institute ("SCI") – Camp Hill. In addition, the court ascertained that Father had no contact with CYF, A.L.B., and D.M.B. since his incarceration in May of 2012.

Thereafter, on January 10, 2013, the trial court adjudicated D.M.B. dependent. The trial court deferred establishing the permanency goal for D.M.B. for thirty days so that Father could submit written correspondence to the court. By letter dated January 16, 2013, Father requested that his mother, i.e., the paternal grandmother of A.L.B. and D.M.B., adopt the children.[8] By dispositional order dated February 4, 2013, the court established D.M.B.'s permanency goal as adoption.

Father testified by telephone at the next permanency review hearing on March 12, 2013, at which time he was incarcerated at SCI-Somerset. Father testified that he is taking a General Equivalency Diploma ("GED") class, and he is participating in prison in a "batter[er]'s group." N.T., 3/12/13, at 31-32. Father testified that his minimum release date is May 30, 2014. Id. at 32. Moreover, Father testified that, instead of Mother, "I feel my mom [the paternal grandmother of A.L.B. and D.M.B.] could have the kids ---." Id. at 31.

Finally, the combined permanency and termination hearing was held on July 9, 2013. Father, although present and represented by counsel, did not testify or present any witnesses. At the conclusion of the hearing, Father's counsel stated on the record and in open court, "[Father's] only wish at this point would be that [L.L.] be considered as [a] possible resource for the children[.][9] [T]hank you." N.T., 7/9/13, at 110-111.

By orders dated July 11, 2013, the trial court involuntarily terminated Father's parental rights. Father timely filed notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte.

On appeal, Father presents the following issue for our review:

A. Whether or not the trial court erred in terminating Father's parental rights?

Father's brief at 9.

We review this appeal according to 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., 614 Pa. 275, 284, [ __Pa. __, __, 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 Pa. 371, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 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., [608 Pa. at 28-30], 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, 165, ] 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

Termination of parental rights is governed by § 2511 of the Adoption Act, which requires a bifurcated analysis.

Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating 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) (citing 23 Pa.C.S. § 2511). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).

Instantly, we conclude the trial court properly terminated Father's parental rights pursuant to § 2511(a)(2) and (b), which provide as follows:[10]

(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. § 2511(a)(2), (b).

To satisfy the requirements of § 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003). The grounds for termination of parental rights under § 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002).

In In re Adoption of S.P., supra, our Supreme Court addressed the relevance of incarceration in termination decisions under § 2511(a)(2). The Court held that,

[I]ncarceration is a factor, and indeed can be a determinative factor, in a court's conclusion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity cannot or will not be remedied."

Id. at 829.

With respect to § 2511(b), this Court has explained the requisite analysis as follows:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

On appeal, Father objects to the orders terminating his parental rights to A.L.B. and D.M.B. because

[He] has attempted to exercise his rights when not constrained by incarceration or a PFA. He has continually sought relatives to be placement resources for the children. He anticipates being released in May of 2014. D.[M].B. was only declared dependent [o]n [January 10, 2013].

Father's brief at 18.

At the time of A.L.B.'s adjudication in May of 2011, Father was incarcerated. Father was released from incarceration for two brief periods of time, the latter of which was from March 28, 2012, to May 20, 2012, when he was re-incarcerated for new crimes. Father's minimum sentence date is May of 2014.[11] Moreover, on May 10, 2012, a three-year PFA order was issued against Father with respect to Mother, A.L.B., and D.M.B., and Father's visits with the children ceased.

Based on the foregoing, we conclude the record evidence supports the trial court's determination that Father's conduct warrants termination of his parental rights pursuant to § 2511(a)(2). Father's repeated and continued incapacity as a result of both the PFA order and his re-incarceration for new crimes committed during A.L.B.'s dependency and after D.M.B.'s birth, have caused A.L.B. and D.M.B. to be without essential parental care, control, or subsistence, and the causes of the incapacity cannot or will not be remedied. See In re Adoption of S.P., supra at 829.

Next, although Father does not present an issue on appeal with respect to § 2511(b), in light of our bifurcated analysis, we consider it. Upon thorough review, there is no record evidence of a bond between Father and A.L.B. or D.M.B. Father has been incarcerated since May 2012. He last visited A.L.B on April 26, 2012, at which time she was nearly one year and eleven months old. With respect to D.M.B., he was nearly four months old when the PFA order was issued against Father and when Father was re-incarcerated for new crimes. Moreover, at the onset of the underlying dependency proceedings, the juvenile court excused CYF from exercising reasonable efforts to reunify A.L.B. with Father, and it subsequently established D.M.B.'s initial permanency goal as adoption. Indeed, throughout the dependency and termination proceedings, Father's primary concern has never been reuniting with his son and daughter; instead, he focused his efforts upon having the trial court consider his family members as placement and adoptive resources. Based on the foregoing evidence, we cannot discern an abuse of discretion by the trial court in concluding that terminating Father's parental rights would best serve the developmental, physical, and emotional needs and welfare of A.L.B. and D.M.B. pursuant to § 2511(b). See In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (stating "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"). Accordingly, we affirm the orders pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).

Orders affirmed.

Judgment Entered.


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