March 6, 2014
IN RE: K.S.C., A/K/A K.S.C., A/K/A BABY GIRL C., A MINOR APPEAL OF: ALLEGHENY COUNTY OFFICE OF CHILDREN, YOUTH AND FAMILIESIN RE: K.S.C., A/K/A K.S.C., A/K/A BABY GIRL C., A MINOR APPEAL OF: K.S.C., A/K/A K.S.C., A/K/A BABY GIRL C., A MINOR CHILD
Appeal from the Decree entered on July 11, 2013 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): TPR 045 OF 2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
In these related appeals, Appellants, the Allegheny Office of Children, Youth and Families (CYF), and K.S.C.,  appeal from the July 11, 2013 decree denying CYF's petition to involuntarily terminate the parental rights of J.M.B. (Father), to K.S.C. After careful review, we vacate the decree of the orphans' court and remand this matter with instructions in accordance with this memorandum.
The relevant facts and procedural history of this case are as follows. K.S.C.'s mother is J.D.C. (Mother). At the time of K.S.C.'s birth, Mother's three other children had already been adjudicated dependent and placed in foster care. N.T., 7/1/13, at 30, 54. On June 27, 2011, CYF obtained a restraining order to prevent K.S.C.'s removal from the hospital after Mother tested positive for various drugs throughout her pregnancy. Thereafter, on June 29, 2011, CYF removed K.S.C. from Mother. On July 1, 2011, the orphans' court conducted a shelter care hearing, and adjudicated K.S.C. dependent on July 8, 2011. Id. at 11-12. K.S.C. has been in the care of pre-adoptive parents ever since. Id. at 27.
The record reflects that both Father and the orphans' court were informed of his paternity to K.S.C. on March 12, 2013. Id. at 9, 12, 55. Father testified that he became aware that Mother had identified him as K.S.C.'s father in December 2011 when Mother signed a voluntary consent to adoption when K.S.C. was approximately six months old. Father admitted that he knew that Mother was pregnant and that K.S.C. was possibly his. Father also admitted that Mother had written him a letter asking him to pay for an abortion. Id. at 108-109. Father testified that the first time he met K.S.C. was when he showed up for paternity testing and that his first visit with her was in March 2013. Id. at 24, 100.
On August 23, 2011, Father was arrested at his sister's home, and sent to the Renewal Center, a community correctional facility. Id. at 46-47, 91-92, 119. Thereafter, on February 21, 2012, Father was sentenced to three to six years' imprisonment, and was subsequently transferred from the Renewal Center to SCI Camp Hill and then to SCI Pittsburgh. Id. at 19, 92, 116. Father's release date is December 1, 2014, but he might be eligible for release as early as March 1, 2014, contingent upon good behavior and his acceptance into a therapeutic community. Id. at 87, 108. Upon his release from SCI Pittsburgh, Father will reenter the Renewal Center for at least four months, and the earliest possible date Father could take custody of K.S.C. would be July 2014, when K.S.C. would be more than three years old.
After a series of permanency review hearings, CYF filed its petition to terminate the parental rights of Mother and Father on March 1, 2013. Mother consented to the termination of her parental rights on July 1, 2013. At the July 11, 2013 termination hearing, CYF presented the testimony of its caseworker, Marie Duranti, and foster care case specialist, Courtland Forsythe. Father testified by phone from prison.
The record reflects that CYF created six Family Service Plans (FSP) for Father. Duranti testified that Father's initial FSP goals were "contact and cooperation[, ]" and CYF was aware of Father's incarceration at SCI Pittsburgh. Id. at 15, 38, 57. The June 12, 2012 FSP also contained the additional goals of addressing drug and alcohol issues and parenting. Id. at 15, 37. Duranti testified that she believed that CYF sent the FSPs to Appellant in prison, as well as to his sister's residence. Id. at 36, 111. However, Duranti stated she not know if Father ever received any FSPs or hearing notices. Id. at 58-60. Father admitted receiving at least one FSP, and has been represented by an attorney at all proceedings in this case since October 2011. Id. at 111. Duranti further testified that CYF was not aware of the progress that Father had made on his FSP goals. Duranti testified that she did receive one letter from Father in which he stated that he was attending A.A. and N.A. meetings, but he did not mention participation in any other programs. Id. at 17.
Additionally, Duranti testified that K.S.C.'s foster family is meeting her educational, developmental and psychological needs, that there is an observable bond among K.S.C. and her foster family when they interact, and that K.S.C.'s foster mother is the only mother K.S.C. has ever known. Id. at 27, 81-82.
Father, in turn, testified that he attends N.A. and A.A. meetings, that he has been sober since August 2011, and that he has been living in a recovery block for the past year. Id. at 101, 102. Father acknowledged, however, that he has had no formal treatment for his gambling and drug abuse problems, and that he has never spent time in the community without gambling or using illegal substances. Id. at 126.
On July 11, 2013, the orphans' court concluded that CYF had failed to meet its burden of proof and declined to terminate Father's parental rights to K.S.C.. CYF and K.S.C. filed timely notices of appeal on August 5 and 12, 2013, respectively.
On appeal, CYF presents the following issues for our review.
1. Did the [orphans' c]ourt err as a matter of law and/or abuse its discretion in denying CYF's petition to involuntarily terminate the parental rights of [Father] pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8) after CYF proved by clear and convincing evidence the statutory grounds for termination?
2. [Whether t]he [orphans' c]ourt erred as a matter of law and/or abused its discretion in denying CYF's petition to involuntarily terminate the parental rights of  Father pursuant to 23 Pa.C.S.A. § 2511(b) after CYF proved by clear and convincing evidence that termination of  Father's parental rights would best serve the developmental, physical and emotional needs and welfare of [K.S.C.?]
CYF's Brief at 5.
We begin by noting our well-settled standard and scope of review.
When reviewing a decree entered by the [orphans'] court [regarding a petition to terminate parental rights], this Court must determine whether the record is free from legal error and if the [orphans'] court's factual findings are supported by the evidence. Because the [orphans'] court sits as the fact-finder, it determines the credibility of witnesses, and on review, we will not reverse its credibility determinations absent an abuse of that discretion.
In other words, [i]n cases involving [the] termination of parental rights, our scope of review is broad. All of the evidence, as well as the orphans' court's factual and legal determinations, are to be considered. However, our standard of review is limited to determining whether the order of the orphans' court is supported by competent evidence, and whether the orphans' court gave adequate consideration to the effect of such a decree on the welfare of the child. We have always been differential to the orphans' court as the fact finder, as the determiner of the credibility of witnesses, and as the sole and final arbiter of all conflicts in the evidence.
In re E.M.I., 57 A.3d 1278, 1284 (Pa.Super. 2012) (citations omitted). Moreover, we recognize that while "we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings." In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citations omitted).
The Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, controls termination of parental rights proceedings. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Specifically, Section 2511 requires the orphans' court to engage in a bifurcated process before terminating parental rights. Id.
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 J.M., 991 A.2d 321, 323 (Pa.Super. 2010) (citation omitted). "[C]lear and convincing evidence" requires "testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue." In re R.I.S., 36 A.3d 567, 572 (Pa. 2011) (citations omitted).
Instantly, the orphans' court addressed Father's parental rights to K.S.C. pursuant to Sections 2511(a)(1) and (2), which provide 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.
(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.
23 Pa.C.S.A. § 2511(a).
The Adoption Act further provides that an orphans' court consider the developmental, physical and emotional needs and welfare of the child. Id. § 2511(b). The Act does not make specific reference to an evaluation of the bond between parent and child, and this Court has recognized that the orphans' court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008). Moreover, our Supreme Court has held that an orphans' court may not rely on the "mere existence" of a bond between a parent and child to deny a petition to terminate parental rights. In re T.S.M., 71 A.3d 251, 270-271 (Pa. 2013).
In situations where a child's parent is incarcerated, as is the case here, our Supreme Court has stated as follows.
[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 [sic] the causes of the incapacity cannot or will not be remedied.
[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, " sufficient to provide grounds for termination pursuant to 23 Pa.C.S.[A.] § 2511(a)(2). If a court finds grounds for termination under subsection (a)(2), a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, orphans' courts must carefully review the individual circumstances for every child to determine, inter alia, how a parent's incarceration will factor into an assessment of the child's best interest.
In re Adoption of S.P., 47 A.3d 817, 828, 830-831 (Pa. 2012) (citations omitted).
In the instant matter, the orphans' court began its analysis by stating, "[a]t the crux of the case sub judice is CYF's neglect and disregard of Father." Orphans' Court Opinion, 9/10/13, at 9. The orphans' court then focused its analysis on what it perceived as CYF's failure to provide Father with the resources he required to be a part of K.S.C.'s life and to prepare him to parent K.S.C. once he was released from prison. The orphans' court's analysis necessarily focused on whether Father had refused or failed to perform his parental duties pursuant to Section 2511(a)(1) and CYF's role in that failure. The focus under Section 2511(a)(2), however, should be on the analysis of Father's capacity to parent K.S.C., and "whether 'the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent[.]'" S.P., supra at 830.
S.P. makes clear that the analyses under subsections (a)(1) and (a)(2) are distinct. The line of cases S.P. endorses have long recognized that subsection (a)(1) focuses on an incarcerated parent's efforts, while subsection (a)(2) looks at the extent of an incarcerated parent's incapacity and the parent's ability to remedy the incapacity. See In re Z.P., 994 A.2d 1108, 1117 (Pa.Super. 2010) (stating, "sincere efforts to perform parental duties can preserve parental rights under subsection (a)(1)[, ]" but "those same efforts may be insufficient to remedy parental incapacity under subsection (a)(2)").
Herein, Duranti testified that CYF sent copies of Father's FSP goals and of all other correspondence to Father in prison and to him in care of his sister, and Father testified that he had received at least one copy of his FSP goals. N.T., 7/1/13, at 111. There is no evidence in the record, however, that Father ever addressed any of his goals beside his testimony that he had attended A.A. and N.A. meetings. When we consider this with the fact that Father has been incarcerated for all but two months of K.S.C.'s life, it is clear that Father has failed to perform his parental duties pursuant to subsection (a)(1).
Although this Court need only address any one subsection of section 2511(a) in evaluating a trial court's decision to terminate parental rights, we believe a brief inquiry into subsection (a)(2) would be beneficial in this instance. See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc) (citation omitted), appeal denied, 863 A.2d 1141 (Pa. 2004). In In re E.A.P., 944 A.2d 79 (Pa.Super. 2008), this Court stated that subsection (a)(2) "does not emphasize a parent's refusal or failure to perform parental duties, but instead emphasizes the child's present and future need for essential parental care, control or subsistence necessary for his [or her] physical or mental well-being." Id. at 82. Thus, under subsection (a)(2), even a well-intentioned parent who utilizes his best efforts to connect with his child during the incarceration, will not be able to overcome the incapacity to parent that child when the remaining length of incarceration prevents the parent from reunifying with the child quickly enough to provide the child with a permanent home. See S.P., supra at 828-830.
At the time of the hearing, Father had, at the very least, eight months of incarceration remaining and, as Father acknowledged, that eight months was still only a "possibility." N.T., 7/1/13, at 87-88. In addition, as a condition of release, Father will spend four months in a transitional program where he will not be able to reside with K.S.C.. Id. at 98-99. Thus, even assuming, as the orphans' court did, that Father is released in March 2014, it will be at least one more year after that before Father could begin to care for K.S.C., and K.S.C. will then be almost four years of age. Accordingly, we conclude that it was an abuse of the orphans' court's discretion in determining that it was in K.S.C.'s best interest to reunite with Father after at least four years in foster care, and with little or no contact with Father. See In re M.G., supra.
Additionally, we note that the orphans' court did not make any findings regarding Section 2511(b) in this matter, as such an analysis is only necessary where an orphans' court finds that the termination of parental rights is appropriate under Section 2511(a). Accordingly, we remand this matter to the orphans' court with instructions to address K.S.C.'s developmental, physical and emotional needs and welfare and conduct a bond analysis pursuant to Section 2511(b).
For all the foregoing reasons, we vacate the July 11, 2013 decree of the orphans' court, and remand this matter with instructions in accordance with this memorandum.
Decree vacated. Case remanded with instructions. Jurisdiction relinquished. Judgment Entered.