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In the Interest of I.E.P.

Superior Court of Pennsylvania

March 7, 2014

IN THE INTEREST OF: I.E.P., I.S.P. and I.Z.P.; APPEAL OF: S.P., FATHER

Submitted: January 6, 2014.

Appeal from the Orders of the Court of Common Pleas, Philadelphia County, Family Court Division, Nos. CP-51-AP-0000110-2011; CP-51-AP-0000111-2011; CP-51-AP-0000112-2011. Before TERESHKO, J.

Aaron A. Mixon, Philadelphia, for appellant.

Michael P. Marryshow, Philadelphia, for appellee.

Jeri H. Behrman and Cynthia N. Keller, Philadelphia, for Dept. of Human Services, participating party.

Craig T. Hosay, Philadelphia, for I.E.B.R., participating party.

BEFORE: BENDER, P.J., SHOGAN and FITZGERALD [*], JJ. OPINION BY SHOGAN, J. FITZGERALD, J., Concurs in the Result.

OPINION

Page 341

SHOGAN, J.:

S.P. (" Father" ) appeals from the orders entered on July 12, 2013, in the Court of Common Pleas of Philadelphia County, involuntarily terminating his parental rights

Page 342

to his three sons, I.E.P., born in July 2003, I.S.P., born in July 2005, and I.Z.P., born in September 2007 (collectively, " Children" ).[1] We affirm.

The certified record reveals the unique procedural posture of this case. On March 15, 2011, the Philadelphia Department of Human Services, Children and Youth Division (" DHS" ), filed petitions for the involuntary termination of parental rights of Father and I.B.R. (" Mother" ) pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). The termination hearing commenced before the Honorable Thomas Nocella on April 23, 2012, and continued on April 25, 2012, June 5, 2012, and October 17, 2012. DHS presented the testimony of Ellen Nelson, a case manager from the Bethana Foster Care Agency; Latifah Chin, the DHS caseworker; and C.C., the kinship foster care mother.[2] Mother testified on her own behalf, and she presented the testimony of Ida Rosado, her counselor in the domestic violence program, and Judy Bunn, her substance abuse counselor. Father testified on his own behalf, and he presented the testimony of Mostafa Easa, his counselor.[3]

At the conclusion of the hearing on October 17, 2012, the parties rested. The trial court directed the parties, on the record and in open court, to submit their arguments by written brief within fifteen days of receipt of the hearing transcripts and scheduled a subsequent hearing for December 18, 2012. N.T., 10/17/12, at 93-95. Sometime between October 17, 2012, and December 18, 2012, the Pennsylvania Supreme Court suspended Judge Nocella, and the case was reassigned to the Honorable Allan L. Tereshko. See Trial Court Opinion, 9/4/13, at 1.

Thereafter, on March 19, 2013, Judge Tereshko held a hearing to determine whether the record was sufficient for him to render a decision. Father's counsel argued that " credibility does play an important role." [4] N.T., 3/19/13, at 6. Judge Tereshko took the matter under advisement to review the notes of testimony and determine " how large a role . . . credibility plays in this case, whether or not the record is essentially fact driven and the facts are uncontested . . . . And whether or not the factually driven evidence is sufficient to support a case of clear and convincing

Page 343

evidence that termination should occur." [5] N.T., 3/19/13, at 9-10. The trial court concluded as follows:

After a thorough review of the record and briefs submitted by Counsel, this Court entered . . . Findings and [an] Order on July 9, 2013,[6] finding that the Record previously developed was sufficient to proceed, closing the Evidentiary Record, denying the request to proceed de novo and ordering that the hearing scheduled for July 12, 2013 be used to enter final Orders on the outstanding Petition to Involuntarily Terminate Parental Rights . . . .

Trial Court Opinion, 9/4/13, at 1-2.

At the July 12, 2013 hearing, the trial court determined on the record that the evidence established termination under section 2511(a)(1), (2), (5), (8), and (b). See N.T., 7/12/13, at 4. Likewise, by orders entered on July 12, 2013, the court involuntarily terminated Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On July 31, 2013, Father filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Father presents the following issues, which we have reordered for purposes of appeal:

A. Whether the trial court committed reversible error when it made a finding of facts and rendered a decision as to the custody of [Children] based on the transcripts of the case without observing the testifying witnesses during their testimony, and did not preside over the matter during the hearing[?]
B. Whether the trial court committed reversible error when it involuntarily terminated [F]ather's parental rights where such determination was not supported by clear and convincing evidence under the Adoption Act[,] 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), and (a)(8) as [F]ather made progress towards working and meeting his FSP goals[?]
C. Whether the trial court committed reversible error when it involuntarily terminated [F]ather's parental rights without giving primary consideration to the effect that the termination would have on the developmental[,] physical and emotional needs of [Children] as required by the Adoption Act[,] 23 Pa.C.S.A. § 2511(b)?

Father's brief at 2.

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, 36 A.3d [567,] 572 [(Pa. 2011) (plurality)].

Page 344

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); Christianson v. Ely , 575 Pa. 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 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. , 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. , 616 Pa. 309, 47 A.3d 817, 826-827 (Pa. 2012).

Termination of parental rights is governed by section 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. , 2007 PA Super 120, 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. § 2511). The burden is on 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. , 2009 PA Super 248, 985 A.2d 273, 276 (Pa. Super. 2009).

This Court must agree with only one subsection of 23 Pa.C.S.A. § 2511(a), in addition to subsection 2511(b), in order to affirm the termination of parental rights. See In re B.L.W. , 2004 PA Super 30, 843 A.2d 380, 384 (Pa. Super. 2004) ( en banc ). Herein, we review the ...


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