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In re P.Z.

Superior Court of Pennsylvania

April 10, 2015

IN RE: P.Z., A MINOR, Appellee APPEAL OF: M.L., FATHER, Appellant

Argued January 27, 2015

Page 841

Appeal from the Order August 19, 2014 of the Court of Common Pleas, Allegheny County, Civil Division, No(s): TPR 20 of 2014. Before HENS-GRECO, J.

Marsha C. H. Grayson, Pittsburgh, for appellant.

Amy L. Berecek, Pittsburgh, for appellee.

Paula J. Benucci, Pittsburgh, for CYS, participating party.

BEFORE: BOWES, OLSON, and STRASSBURGER,[*] JJ.

OPINION

BOWES. JUDGE

Page 842

M.L. (" Father" ) appeals from the order terminating his parental rights to his minor child, P.Z. We affirm.

P.Z. was born in Pittsburgh, Pennsylvania, during February 2012. He has never been in the care of either parent. At birth, M.Z. (" Mother" ) tested positive for methadone and marijuana.[1] P.Z. also had methadone in his system and displayed withdrawal symptoms for approximately two months. Upon discharge from the hospital, P.Z. was transferred to the Children's Home. Allegheny County Children Youth and Family (" CYF" ) obtained emergency custody of P.Z. during April 2012, and the juvenile court adjudicated him dependent the following month. When P.Z. was three months old, the juvenile court placed him in his current, pre-adoptive foster home.

Father resides in Arizona, the state where P.Z. was conceived. When Mother returned to Pennsylvania to give birth, Father remained in Arizona. CYF contacted Father during May 2012. Father requested custody and visitation with his son and stated that he would commence the required measures in Arizona to facilitate that contact. Father not only failed to initiate those processes, but he also neglected to participate in the adjudication of his son's dependency. Nevertheless, since P.Z.'s original permanency goal was reunification, CYF developed a Family Service Plan (" FSP" ) for Father and advised him

Page 843

of his enumerated goals, including, inter alia, to execute a confirmation of paternity, meet the child's basic financial demands, address domestic violence, understand and address P.Z.'s developmental and physical delays, obtain housing, and cooperate with CYF and service providers.

Although Father proclaimed his certainty of P.Z.'s lineage, he failed to execute an acknowledgement of paternity at the outset of the dependency proceedings. Instead, Father waited until September 2012, when he obtained the results of a court-ordered paternity test confirming his genetic relationship with P.Z. Over the next twenty-one months, CYF exhausted substantial resources in order to reunify P.Z. with Father, including providing Father with bus fare from Arizona on one occasion and airfare and hotel accommodations for at least three other five-day visitations with P.Z. Nonetheless, Father's compliance with the FSP goals was minimal. He ignored the requests of the caseworker assigned to the case in Arizona in order to determine if his home was a suitable placement option, and he did not execute documents, submit his fingerprints for a criminal background check, or complete the necessary in-home visits. Likewise, Father failed to satisfy the parenting component of the FSP and it remains unclear whether the anger management course that he completed satisfied his goal relating to domestic violence.

In the meantime, during July 2013, Neil C. Rosenblum, Ph.D., the court-appointed evaluator, performed the first of three interactional evaluations between P.Z. and his pre-adoptive foster mother. Dr. Rosenblum concluded that, in light of the fact that P.Z. was near the zenith of the attachment process with the foster mother and mindful of the excellent care that she provided the child since May 2012, the recommended disposition of the dependency proceedings was adoption. Following the August 2013 permanency review hearing, during which the juvenile court noted Father's continued lack of progress toward reunification, the juvenile court directed CYF to file a petition to terminate Father's parental rights. Instead, CYF initiated a " permanency round table," i.e., an internal audit including top CYF officials, supervisors and caseworkers, as well as representatives from the Alliance For Infants and Toddlers and The Annie E. Casey Foundation.[2] See N.T., 6/25/13, at 212-213. The result of the internal audit was to increase CYF's reunification efforts despite the juvenile court's order and Father's documented failures. Accordingly, CYF declined to file the petition for termination at that juncture.

CYF did not file the underlying petition to terminate parental rights until February 7, 2014, six months after the juvenile court's initial directive and upon the court's additional findings of minimal progress by Father and reiterations of its instruction to the agency. Three months after the agency complied with the juvenile court's edict to file the petition to terminate Father's parental rights, CYF attempted to withdraw the petition, and when that was fruitless, it filed a motion for a continuance seeking to postpone the hearing pending its continued reunification

Page 844

efforts.[3]

Thereafter, at the outset of the evidentiary hearing, the trial court addressed another motion to withdraw that had been filed by CYF the previous day. CYF and Father's counsel argued in favor of withdrawing the petition to terminate Father's parental rights. The guardian ad litem opposed the motion for withdrawal. Following argument, the trial court denied CYF's motion and immediately commenced the evidentiary hearing. Specifically, the court concluded,

[T]he Court having listened to arguments of all counsel, finds persuasive that the Adoption and Safe Families Act,[4] which requires the state to file a [p]etition for TPR [(termination of parental rights)] unless one of the three exceptions [was] in fact applicable to this case, finds that the Motion to Withdraw the Petition is denied. That the Adoption and Safe Families Act could not possibly have meant that the state's filing should be a pro forma filing, and in fact[,] a filing would assume that the state would proceed on a TPR.

N.T., 6/25/14, at 18.

Thus, having just sought to withdraw its petition to terminate Father's parental rights, CYF dutifully presented testimony from Dr. Rosenblum and the family's caseworker and then rested its case. The trial court then continued the hearing until July 21, 2014. When the parties reconvened, Father confirmed that CYF had rested its case-in-chief and then moved for dismissal due to the agency's failure to establish the statutory grounds for termination under 23 Pa.C.S § 2511(a). CYF indicated that it did not object to the dismissal of the case on those grounds; however, the guardian ad litem argued that the agency had, in fact, presented clear and convincing evidence to support terminating Father's parental rights. Additionally, the guardian ad litem noted that the court had not permitted her to present any witnesses on the matter. After an extended argument concerning CYF's burden of proof, the guardian ad litem's singular responsibility to represent P.Z.'s best interest, Father's rights, and the quantum of evidence that CYF had adduced at that juncture, the trial court denied Father's motion to dismiss. Following additional testimony by Father's and the guardian ad litem' s witnesses and a subsequent proceeding concerning an unavailable witness, the trial court entered the above captioned order terminating

Father's parental rights to

Page 845

P.Z. pursuant to § 2511(a)(2), (5), and (8) and § 2511(b). Father filed a timely appeal.[5]

Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of errors complained of on appeal concomitant with his notice of appeal. The Rule 1925(b) statement raised five issues, which Father reiterates on appeal as follows:

I. The [t]rial [c]ourt erred and/or abused its discretion in moving forward with the Petition to involuntarily terminate the parental rights of [Father] when the [c]ounty sought to withdraw its [p]etition because the county did not feel that involuntarily terminating the parental rights of [Father] would best serve the needs and welfare of the minor child P.Z.;
II. The [t]rial [c]ourt erred and/or abused its discretion in denying Appellant's Motion to Dismiss the Petition to Involuntarily Terminate the Parental rights of [Father] ...

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