In The Int. of: J.L., a Minor

J-S49001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.L., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: A.V., FATHER

No. 702 MDA 2015

Appeal from the Decree Entered March 20, 2015

In the Court of Common Pleas of Luzerne County

Orphans' Court at No(s): A-8203

BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 04, 2015

A.V. (“Father”) appeals from the decree entered on March 20, 2015,

that granted the petition filed by the Luzerne County Children and Youth

Services Agency (“CYS”) to involuntarily terminate his parental rights to his

minor, male child, J.L. (“Child”) (born in December of 2008) pursuant to

section 2511(a)(1) and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.

We affirm.

In its opinion, the orphans’ court set forth the following factual history

of this case:

It is unrebutted that … [C]hild’s most recent placement

commenced when he was removed from the care of [A.L.

(“Mother”)] on June 20, 2012. The paramount reason for

placement was Mother[’s] placing [Child] in an unsafe situation.

[Child] had been deemed dependent prior to June 20, 2012 and

remained dependent at the time of his repeat placement. It was

Mother’s lack of parenting and lack of supervision of [Child] and

his siblings that led to an initial finding of dependency. [Child]

had been returned to Mother’s custody prior to the June 20,

2012 placement. Father has been incarcerated effective one and

one-half months subsequent to [Child’s] birth until the present.

In June of 2012, [Child] was placed in a foster home. He

remained in the initial placement for one month and then moved

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to a pre-adoptive placement where he remained until April of

2014. The foster father passed away and the foster mother was

not able to raise [Child] alone. In April of 2014, [Child] moved

to his current home and has been residing with his current foster

parents until the present. The record supports the finding that

from the date of [Child’s] birth until the present, Father has not

had any contact with the minor child.

Orphans’ Court Opinion (O.C.O.), 5/14/15, at 2 (citations to the record

omitted).

On April 17, 2014, CYS filed petitions for the involuntary termination of

parental rights of Mother and Father. A hearing was held regarding

termination of Mother’s parental rights, which concluded on February 12,

2015. A subsequent hearing was held on March 5, 2015 concerning

termination of Father’s parental rights. At the hearing, CYS presented the

testimony of Jo-Ann Costanzo, a Child Protective Services (“CPS”) intake

supervisor at CYS, and Father testified on his own behalf. On March 6,

2015, the orphans’ court issued decrees (entered on the orphans’ court’s

docket on March 20, 2015) terminating Father’s parental rights pursuant to

23 Pa.C.S. § 2511(a)(1) and (b), and terminating Mother’s parental rights

pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8) and (b). Mother did not file an

appeal.

However, on April 15, 2015, Father filed a timely notice of appeal,

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2) and (b). In his brief, Father raises the following sole

issue on appeal: “Whether the trial court erred in finding that children and

youth services proved the elements of termination with respect to 23 Pa.

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C.S.A. Section 2511(a)(1) and 23 Pa. C.S.A. Section 2511(b), through clear

and convincing evidence.” Father’s Brief at 3.

We review an appeal from the termination of parental rights 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 Pa. 371[, 455], 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., 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).

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In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

In termination cases, the burden is upon the petitioner to prove by

clear and convincing evidence that the asserted grounds for seeking the

termination of parental rights are valid. In re S.H., 879 A.2d 802, 806 (Pa.

Super. 2005). We have previously stated:

The standard of clear and convincing evidence is defined as

testimony that is so clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without

hesitance, of the truth of the precise facts in issue.

In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation

marks omitted).

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 interest 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;

other citations omitted). This Court must agree with only one subsection of

2511(a), in addition to section 2511(b), in order to affirm the termination of

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parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc).

In this case, the orphans’ court concluded that CYS provided clear and

convincing evidence that Father’s parental rights should be terminated

pursuant to sections 2511(a)(1) and (b). Those provisions provide as

follows:

(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.

***

(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)(1), (b).

As we addressed the application of section 2511(a)(1) in In re C.M.S.,

832 A.2d 457, 461 (Pa. Super. 2003), we noted:

To satisfy Section 2511(a)(1), the moving party must produce

clear and convincing evidence of conduct sustained for at least

the six months prior to the filing of the termination petition,

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which reveals a settled intent to relinquish parental claim to a

child or a refusal or failure to perform parental duties.

Id. (quoting Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91

(Pa. 1998)). In C.M.S., we further acknowledged the following statement by

our Supreme Court:

There is no simple or easy definition of parental duties. Parental

duty is best understood in relation to the needs of a child. A

child needs love, protection, guidance, and support. These

needs, physical and emotional, cannot be met by a merely

passive interest in the development of the child. Thus, this court

has held that the parental obligation is a positive duty which

requires affirmative performance.

This affirmative duty encompasses more than a financial

obligation; it requires continuing interest in the child and a

genuine effort to maintain communication and association with

the child.

Because a child needs more than a benefactor, parental duty

requires that a parent ‘exert himself to take and maintain a place

of importance in the child’s life’.

C.M.S., 832 A.2d at 462 (quoting In re Burns, 379 A.2d 535, 540 (Pa.

1977)).

Here, in support of its finding that Father failed to perform his parental

duties, which established grounds for termination under 23 Pa.C.S. §

2511(a)(1), the orphans’ court stated the following:

The credible and uncontradicted testimony of Jo-Ann Costanzo,

CPS intake supervisor at [CYS], is [that] Father has not had any

contact with [Child] since the date of placement, on June 20,

2012, and even since [Child’s] birth [in December of 2008], until

the filing of the [p]etition for [t]ermination of [p]arental rights

on April 17, 2014. Ms. Costanzo testified that Father was

indicated as the natural Father on the birth certificate. She

further testified that prior to repeat placement of [Child] on June

20, 2012, the Agency kept Father apprised of [Child’s]

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placement based upon the aforementioned prior finding of

dependency. Father forwarded a letter to [CYS] dated October

11, 2011 stating that he never signed an acknowledgement of

paternity[,] … nor did he take a paternity test proving that he

was the [f]ather. Father further stated in his October 2011

letter that he needed to stay focused on rehabilitating himself

and that he wanted to take a paternity test. He also stated that

once a paternity test establishes that he is the natural father of

[Child], he would then acknowledge [Child] as his son and would

be more willing to have a personal relationship with [him] once

he is released from prison. Father stated that his release date

would be in 2019 or in 2017 at the earliest.

Father wrote another letter prior to placement of [Child] dated

March 21, 2012. In that letter, Father stated again that he had

not taken a paternity test to establish that he is the [f]ather of

[Child]. Father further requested that the agency refrain from

advising him in writing of the court dates since he cannot attend

them. He stated that he was 500 miles away and would not be

released until 2019. In response, the agency attempted to

contact Father’s counselor in [an] attempt to have Father

undergo the paternity test. However, Ms. Costanzo stated that

she was unaware whether any testing was done and that she did

not receive the results of any testing performed upon [Father].

Despite [his] request for [CYS] to stop advising him of the court

dates and updates, [CYS] continued to update Father with notice

of all proceedings, including the shelter care that took place in

June of 2012.

Between the date of placement of June 20, 2012 until the

filing of the [p]etition for [t]ermination of [p]arental [r]ights on

April 17, 2014, Father only wrote one letter to [CYS] stating

again that he did not take a paternity test establishing he is

[Child’s] [f]ather. He further stated in his letter that he did not

have an opportunity to address the court in court proceedings

even though Father was advised by [CYS] of every court

proceeding. He stated that he wanted the [c]ourt to give him

and [Child] a chance to be a family once he would be released

from incarceration in 2019. However, he renewed his request to

take a paternity test to establish whether he is the [f]ather of

[Child].

O.C.O. at 5-7.

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Father asserts that he was incarcerated throughout the entire time

Child was in placement and contends that the orphans’ court failed to

consider the efforts he made while incarcerated. Father’s Brief at 5.

However, we have previously asserted:

A parent is required to exert a sincere and genuine effort to

maintain a parent-child relationship; the parent must use all

available resources to preserve the parental relationship and

must exercise “reasonable firmness” in resisting obstacles placed

in the path of maintaining the parent-child relationship.

C.M.S., 832 A.2d at 462. Moreover, in In re McCray’s Adoption, 331 A.2d

652 (Pa. 1975), our Supreme Court considered the effect of a parent’s

incarceration on abandonment and held:

[A] parent’s absence and/or failure to support due to

incarceration is not conclusive on the issue of abandonment.

Nevertheless, we are not willing to completely toll a parent’s

responsibilities during his or her incarceration. Rather, we must

inquire whether the parent has utilized those resources at his or

her command while in prison in continuing a close relationship

with the child. Where the parent does not exercise reasonable

firmness in declining to yield to obstacles, his other rights may

be forfeited.

Id. at 655.

In the present case, it is clear that Father failed to use the resources

available to him while incarcerated, as the record indicates that he failed to

do any of the following: (a) make any telephone calls to CYS; (b) have his

corrections facility counselor telephone CYS; (c) write letters other than the

April 2, 2014 letter; (d) contact CYS to inquire as to the well-being of Child;

(e) financially support Child; (f) send cards or letters directly to Child; (g)

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request visitation with Child in any manner; (h) request telephone calls with

Child; and/or (i) provide gifts to Child on Child’s birthday or holidays.

O.C.O. at 7.

Finally, the orphans’ court noted that despite Father’s awareness of

the court proceedings and his right to have counsel provided, Father did not

request counsel, nor did he request to participate in any of the hearings. Id.

at 7. Father testified that he declined to request counsel because he wanted

to first take a paternity test. Id. at 8. Moreover:

Ms. Costanzo testified that Father was initially sent a letter upon

placement of [Child] on June 20, 2012 which explained that

Father had a right to have visits with [Child]. Ms. Costanzo

testified that the service plan which was provided to Father also

explained how Father could have visits with [Child] and how

parents should be maintaining contact with [Child].

Nevertheless, despite the information provided to [him], Father

never requested to have visits with [Child]. Instead, he

requested that [CYS] stop mailing him legal documents

regarding this matter so that he could focus on himself in prison.

The [c]ourt, therefore finds that based upon the testimony

of Ms. Constanzo and the evidence presented before the [c]ourt,

Father has refused or failed to perform his parental duties since

the date of placement on June 20, 2012.

Id.

The record clearly reflects that Father made no attempts to form a

relationship with Child. Accordingly, we conclude that the orphans’ court’s

determinations regarding section 2511(a)(1) are supported by sufficient,

competent evidence in the record.

After we determine that the requirements of section 2511(a) are

satisfied, we proceed to review whether the requirements of subsection (b)

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are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.

Super. 2008) (en banc). This Court has stated that the focus in terminating

parental rights under section 2511(a) is on the parent, but it is on the child

pursuant to section 2511(b). 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 “intangibles 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.

1992)], 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).

As part of its bonding analysis, the orphans’ court appropriately

examined Child’s relationship with the foster parents. See T.S.M., 71 A.3d

at 267-68 (stating that existence of a bond attachment of a child to a parent

will not necessarily result in the denial of a termination petition, and the

court must consider whether the child has a bond with the foster parents).

The orphans’ court noted the following:

Ms. Costanzo testified that [Child] has been with the foster

parents since April of 2014. According to Ms. Costanzo, [Child]

has assimilated into the household in which he is placed. The

foster parents also have custody of [Child’s] two siblings and

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there are a few animals in the home. [Child] is very attached to

his siblings as he has lived with his siblings throughout his life.

[Child] is also included in all activities with the family. They

celebrate birthdays and other family functions together.

According to Ms. Costanzo, the foster parents meet all of

[Child’s] physical needs. They provide the child with food,

clothing, and shelter. They also meet [Child’s] developmental

needs. The foster parents are involved in [Child’s] school and

also [e]nsure that he is meeting all of his “milestones.” They

also [e]nsure that [Child’s] medical needs are met. [Child] is up

to date with all of his immunizations. The foster parents also

meet [Child’s] emotional needs. Ms. Costanzo testified that the

foster parents provide [Child] with love, support and stability.

Based on Ms. Costanzo’s personal observations, [Child] is very

comfortable around the foster parents. He sits on their laps and

is very loving around them.

In addition, Ms. Jones, the caseworker, visited the foster

parents’ home once per month and based on her records and Ms.

Costanzo’s observations, [Child] has a close bond with the foster

parents. [Child] is very happy and loving in the home. The

bond is also reciprocated by the foster parents. They express

their love for him and plan many activities with him. Ms.

Costanzo testified that there is not a bond existing between the

Father and [Child]. [Child] has never met his Father. Ms.

Costanzo testified that there would not be any detrimental effect

on [Child] if Father’s parental rights were terminated. In the

event [Child] is adopted by the foster parents, Ms. Costanzo

believes the adoption would have a positive effect upon [him].

O.C.O. at 11-12.

As there is competent evidence in the record that supports the

orphans’ court’s credibility and weight assessments regarding Child’s needs

and welfare, and the absence of any bond with Father, we conclude that the

court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d

at 826-27. Accordingly, we affirm the orphans’ court’s decree terminating

Father’s parental rights to Child.

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Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/2015

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