The opinion
J-S89033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.D.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.N., FATHER
No. 107 EDA 2016
Appeal from the Decree December 11, 2015
in the Court of Common Pleas of Philadelphia County Family Court
at No(s):
CP-51-AP-0000183-2015
CP-51-DP-0000110-2013
IN THE INTEREST OF: L.A.N., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.N., FATHER
No. 149 EDA 2016
Appeal from the Decree December 11, 2015
in the Court of Common Pleas of Philadelphia County Family Court
at No(s):
CP-51-AP-0000182-2015
CP-51-DP-0001492-2012
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED January 13, 2017
M.N. (“Father”) appeals from the decrees entered in the Philadelphia
County Court of Common Pleas, which involuntarily terminated his parental
rights to minor children, D.D.M. and L.A.N. (“Children”), pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, and
simultaneously held that the adoption of the Children could proceed in
accordance with the goal change. Father’s counsel has filed a petition to
*
Former Justice specially assigned to the Superior Court.
J-S89033-16
withdraw and an Anders brief.1 We affirm and grant counsel’s motion to
withdraw.
We adopt the facts and procedural history set forth by the trial court’s
opinion. See Trial Ct. Op., 6/30/16, at 1-5.2
On appeal, Father’s counsel filed an Anders brief and a motion to
withdraw with this Court. As a prefatory matter, we examine whether
counsel complied with the requirements of Anders, as clarified by the
Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
Santiago. The brief must:
(1) provide a summary of the procedural history and
facts, with citations to the record;
1
Anders v. California, 87 S. Ct. 1396 (1967).
2
We note that the trial court’s opinion states that the Philadelphia
Department of Human Services (“DHS”) filed the petitions to involuntarily
terminate Father’s parental rights to the Children on November 24, 2015.
See Trial Ct. Op. at 1. A review of the record reveals that DHS filed a
petition to terminate Father’s parental rights to L.A.N. on March 27, 2015.
However, that same day, DHS also filed a petition to terminate the parental
rights of D.D.M.’s unknown father. Thereafter, a paternity test determined
M.N. to be the father of D.D.M., and DHS filed an amended petition to
terminate Father’s parental rights to D.D.M. on November 24, 2015.
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(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the
relevant facts of record, controlling case law, and/or
statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
deems worthy of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted). Moreover, “this Court extended the
Anders principles to appeals involving the termination of parental rights.”
In Int. of J.J.L., ___ A.3d ___, ___, 2016 WL 6776288 at *3 (Pa. Super.
Nov. 15, 2016) (citing In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992)).
Instantly, counsel provided a factual and procedural summary of the
case with citations to the record. Anders Brief at 7-13. Counsel explained
the relevant law, discussed why Father’s issues are meritless, and
determined the appeal is frivolous. Id. at 18-26. Counsel provided Father
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with a copy of the Anders brief and a letter advising Father of his right to
retain new counsel or proceed pro se to raise additional issues in this Court.
See Orellana, 86 A.3d at 879-80; Counsel’s Mot. to Withdraw, 9/21/16. In
light of the foregoing, we hold counsel has complied with the requirements
of Santiago. See Orellana, 86 A.3d at 879-80. Father has not filed a pro
se or counseled brief. We now examine the record to determine whether the
appeal is wholly frivolous. See id. at 882 n.7.
The Anders brief raises the following issues for our review:
Whether under the Juvenile Act, 42 Pa.C.S.A. Section
6351, and 55 Pa. Code Section 3130.74, in accordance
with the provisions of the Federal Adoption and Safe
Families Act, 42 U.S.C. Section 671 et seq., reasonable
efforts were made to reunite . . . Father with his Children
and whether the goal changes to adoption was the
disposition best suited to the safety, protection and
physical, mental and moral welfare of the Children.
Whether it was proven by clear and convincing evidence
that Father’s parental rights should be terminated under
Sections 2511(a)(1), (2)[,](5) and (8) [and Section]
2511(b).
Whether there is anything in the record that might
arguably support the appeal that obviates a conclusion
that the appeal is frivolous.
Anders Brief at 6 (capitalization removed).3
Appellate review in termination of parental rights cases implicates the
following principles:
3
We have reordered Father’s issues for ease of disposition.
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In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent
evidence, and whether the trial court gave adequate
consideration to the effect of such a decree on the welfare
of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010) (citation omitted).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. . . . We must
employ a broad, comprehensive review of the record
in order to determine whether the trial court’s
decision is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa. Super.) (en banc),
appeal denied, 863 A.2d 1141 (Pa. 2004) (internal
citations omitted).
Furthermore, we note that the trial court, as the
finder of fact, is the sole determiner of the credibility
of witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa. Super.
2002) (internal citations and quotation marks omitted).
The standard of clear and convincing evidence means
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 J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).
We may uphold a termination decision if any proper basis
exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa. Super. 2000) (en banc). If the court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92]
(Pa. Super. 2004).
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In re Z.P., 994 A.2d at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa. Super. 2007)).
In the first issue identified by counsel, Father asserts that DHS failed
to make reasonable efforts to reunite him with the Children because DHS did
not provide him with any necessary paperwork or correspondence regarding
the Children. Father also claims the goal change to adoption was not in the
best interests of the Children because Father had fulfilled some of his
objectives and was on the verge of obtaining stable housing to assume his
parental responsibilities of the Children. No relief is due.
Here, the trial court discussed these arguments as follows:
Under 42 Pa.C.S.A. § 6351:
(9) If the child has been in placement for at least 15
of the last 22 months or the court has determined
that aggravated circumstances exist and that
reasonable efforts to prevent or eliminate the need
to remove the child from the child’s parent, guardian
or custodian or to preserve and reunify the family
need not be made or continue to be made, whether
the county agency has filed or sought to join a
petition to terminate parental rights and to identify,
recruit, process and approve a qualified family to
adopt the child unless:
(i) the child is being cared for by a relative
best suited to the physical, mental and moral
welfare of the child;
(ii) the county agency has documented a
compelling reason for determining that filing a
petition to terminate parental rights would not
serve the needs and welfare of the child; or
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(iii) the child’s family has not been provided
with necessary services to achieve the safe
return to the child’s parent, guardian or
custodian within the time frames set forth in
the permanency plan.
The Children were in placement for over two years, and
[the Community Umbrella Agency] has made numerous
attempts to reach out to Father and assist him in meeting
his FSP objectives. Certified letters were sent and signed
by Father at his only known address. Father was present
at three [c]ourt hearings indicating that he had notice of
the hearings, and for all of the hearings after May 20,
2013, Father was represented by counsel in all of the
proceedings. Further, by Father’s own admission, he was
aware of the Children being in DHS[’s] care since the
inception of these cases and has until recently resided in
the same place since 2012 and that DHS and the [c]ourts
had his address. Based on the record, Father had been re-
referred to [the Achieving Reunification Center (“ARC”)] on
multiple occasions and has not completed them. Further,
Father was informed on the days he was present in court
of what his objectives were and offered an opportunity to
meet [these] objectives.
For the foregoing reasons, the [c]ourt made reasonable
efforts to reunify Father with the Children.
Trial Ct. Op. at 5-6 (footnotes and citations to record omitted). Therefore,
we agree with counsel that a review of the facts and the law establish that
this issue is frivolous.
In the second issue identified by counsel, Father argues that DHS
failed to prove by clear and convincing evidence that Father’s parental rights
to the Children should be terminated under 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8), and (b). Father contends that the conditions that led to his
previous neglect of the Children have been remedied, and Father is best
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suited to provide for the Children’s developmental, physical, and emotional
needs. No relief is due.
DHS sought involuntary termination of Father’s parental rights on the
following grounds:
§ 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.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
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(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
* * *
(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), (2), (5), (8), and (b).
“Parental rights may be involuntarily terminated where any one
subsection of Section 2511(a) is satisfied, along with consideration of the
subsection 2511(b) provisions.” In re Z.P., 994 A.2d at 1117.
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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations
omitted).
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows:
Once the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines of
inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of
termination of parental rights on the child pursuant to
Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has stated:
the trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the
totality of the circumstances, clearly warrants the
involuntary termination.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
Moreover, under Section 2511(b), the trial court must consider
whether termination will meet the child’s needs and welfare. In re C.P.,
901 A.2d 516, 520 (Pa. Super. 2006). “Intangibles such as love, comfort,
security, and stability are involved when inquiring about the needs and
welfare of the child. The court must also discern the nature and status of
the parent-child bond, paying close attention to the effect on the child of
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permanently severing the bond.” Id. at 520 (citations omitted).
Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., 994 A.2d at 1121 (citations omitted).
Our Supreme Court has stated:
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.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available
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resources to preserve the parental relationship, and must
exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship.
Parental rights are not preserved by waiting for a more
suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or
her physical and emotional needs.
Where a parent is incarcerated, the fact of incarceration
does not, in itself, provide grounds for the termination of
parental rights. However, a parent’s responsibilities are
not tolled during incarceration. The focus is on whether
the parent utilized resources available while in prison to
maintain a relationship with his or her child. An
incarcerated parent is expected to utilize all available
resources to foster a continuing close relationship with his
or her children.
In re B., N.M., 856 A.2d at 855 (citations and quotation marks omitted).
“[A] parent’s basic constitutional right to the custody and rearing of his or
her 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.” Id. at 856.
Instantly, the court concluded:
[T]here is unrefuted evidence that since the Children came
into DHS[’s] care, they have not resided with Father.
Father’s visits essentially disappeared from the Children’s
lives. There was no testimony presented that Father made
any outreach to the Children either while he was on bed
rest or while he was incarcerated. There was also no
mention of any outreach of Father to the Children. Father
attended only three court hearings, one court hearing in
2012 and two in 2013. In addition to Father’s three court
appearances, Father only attended three visits in the year
preceding the filing of the Petition for Termination:
February 10, 2015, June 10, 2015 and July 8, 2015.
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This case is not only one where Father stopped showing
up for his Children, but through his own inaction or
criminal behavior has not been successful in fulfilling any
of his FSP objectives which were mainly drug and alcohol
treatment and attend programs through ARC. Father
admitted that for at least ten months he was neither able
to care for the Children nor fulfill his FSP objectives; for
five months he had been in bed rest after being shot.
Father was unable to care for his Children after July 8,
2015 because he was incarcerated for five additional
months.
Because Father abdicated his parental responsibilities
more than six months prior to the actual termination
hearing and made no affirmative actions to remain in the
Children’s lives, the [c]ourt did not err in terminating
Father’s parental rights . . . .
* * *
[Furthermore,] [t]here was no testimony of a bond
between Father and the Children. Father spent less than
three hours with them in the last eighteen months.
* * *
Specifically, during Father’s only visits with D.D.M., the
visit was cut short because of Father’s irate behavior.
Father was able to visit L.A.N. on two other occasions in
2015.
Conversely, there was testimony that the Children are
bonded with their respective foster parent. L.A.N. has
been in her current placement for two years and calls her
foster parent “Momma De.” D.D.M. has been in placement
since she was three months old, and she calls her foster
parent “mommy.” This [c]ourt found that the Children’s
main source of “love, protection, guidance and support”
has been with their respective foster parent, and Father’s
interactions were almost non-existent. The [c]ourt further
found that there would be no detrimental harm if Father’s
parental rights were terminated.
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Based on the foregoing, this [c]ourt properly found that
termination of Father’s parental rights would best serve
the needs and welfare of the Children.
Trial Ct. Op. at 8-10 (citations to record omitted). Thus, following our
review of the record and the law, we agree with Father’s counsel that any
appeal from this declaration is frivolous.
Finally, regarding Father’s last issue, we have conducted an
independent review of the record and discovered no other issues of arguable
merit. See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant counsel’s
motion to withdraw and affirm the trial court’s decrees.
Decrees affirmed. Counsel’s motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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Circulated 12/30/2016 01 :56 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COYNTY
FAMILY COURT DIVISION
JUVENILE BRANCH
! .
In The Interest Of: CP-5l-DP-0001492-2012
t: /Z o/~/Jf1__ o CJ {)0 ! ff;;?· ;J tJ IS
L.A.N ., a Minor FID: 51-FN-002326-2012
Appeal of M.N., Father 149 EDA 2016
In The Interest Of: CP-51-DP-0000110-2013 .
(1/J- <;;. f// c)()(!)tJ I f3 · df)/5°
D.D.M., a Minor FID: 51-FN-002326-2012
Appeal of M.N., Father 107 EDA 2016
OPINION
This Opinion is submitted relative to the appeal of Father, M.N. ("Father"), from this
Court' s Order dated December 11, 2015. For the reasons discussed, this Court respectfully
submits that its decision should be affirmed. This case is one where the Father abandoned L.A.N.
and D.D.M. (collectively referred to as "the Children"). Father presented two main reasons for
his extended absence from the Children: a recent five month incarceration and being bedridden
after being shot in his groin. He did not keep in contact with the Children or the social services
team to maintain a relationship despite his physical limitations/incarceration.
Background
On August 31, 2012, L.A.N. was adjudicated dependent and committed to OHS care. On
January 24, 2013, D.D.M. was adjudicated dependent and committed to OHS care.
The Petitions for Involuntary Termination of Parental Rights was filed on November 24,
2015. The Termination Hearing was held on December 11, 2015. During the hearing, the Court
heard from two witnesses: Precious Randall (APM CUA) and Father.
1
Ms. Randall testified that Father's FSP objectives were: random drug screens, follow
CEU recommendations and to attend ARC (parenting, reunification, visitation, anger
management, drug and alcohol, drug and alcohol support, job training, housing and
employment). N.T. 12/11/15 at 8. Ms. Randall indicated that despite Father receiving certified
mail with the Children's visitation schedules, Father only attended 3 total visits with the Children
in 2015. Id. at 10, 29-30. There were 3 visits with L.A.N. 1 (February 10, 2015, June 10, 2015 and
July 8, 20152) and one with D.D.M.3 (June 10, 2015). Id. at 10. On June 10, 2015, the visit
between Father and the Children was cut short because of Father's irate behavior. Id. at 10.
Ms. Randall also indicated that although Father was referred to ARC three times, he
never followed up on the referrals. Id. at 9. Father was sent numerous notices at the only address
he had listed. Id. at 11. On one occasion, Ms. Randall met Father outside of his listed address on
October 22, 2014. Id. When Ms. Randall spoke to Father, she stated that the Children were in
placement and talked about his visitations, ARC, the ongoing services available and the need for
a home assessment. Id. at 11-12. A home assessment was scheduled, but Father was not present.
Id. at 12.
As of the date of the termination petitions for the Children, Father had not completed any
of his FSP objectives. Id. at 13.
Ms. Randall then testified that L.A.N. had a strong bond with her foster parent over the
last two years and called her "Momma De." Id. at 14, 23. Additionally, Ms. Randall stated that
1
For a total of 3 hours in the past 18 months. Id. at 22.-23.
2
Father was incarcerated on the same day as this visitation. Id. at 27.
3
For a total of l hour i..n the last 18 months. Id. at 23.
2
D.D.M., who has been with her foster mother since she was three months old, calls her foster
mother"mommy." Id. at 14-15, 25.
On December 11, 2015, Father testified that this was his first time in the new courtroom 4.
Id. at 32. During direct examination, Father stated that he was aware of the OHS case since the
Children first came into care because he was living with L.M. ("Mother") during his first
appearance in Court. Id. at 31-32. Prior to L.A.N.'s placement with OHS, she had never lived
with Father, and D.D.M. was not yet born. Id. at 34, 39. The Children were taken out of Mother's
("Mother") care while Father was living with his sister. Id. at 39.
Father also testified that because he was locked up for five months in 2015, he was not
able to complete his FSP objectives. Id. at 35, 37. Father admitted that he had resided in the same
place since 2012 and that CU A had his proper address which changed recently as a result of a
fire. Id. at 36, 38, 43-44. Father also testified that he was on bed rest for about 5 months in 2014
after being shot in his right groin area and was not able to care for his children. Id. at 36, 42-43.
Father had access to a phone while he was on bed rest but did not call the Children. Id. at 42.
Father stated that "I love my daughters ... I mean I'm going through something right now ... " Id.
at 40.
After closing arguments, the Court made the following findings as to the credibility of the
witnesses: 1) Ms. Randall was credible and her testimony accepted in full; and 2) Father was
credible and his testimony accepted in full.
In particular, the Court stated:
4
It should be noted that the new Family Court building has been open since January 4, 2015.
3
Ms. Randall testified that [F]ather made no visits to [C]ourt. That is not the case.
Father came to [C]ourt November 26, 20125, looking at the permanency review
order. That was his first hearing ... Then for a period of time father did not show
up ... Then I did not see dad until May 20, 20136 ... At that time, we did the
paternity test [for D.D.M.] ... I saw father again August 19, 20137• This states
[that] on August 19, 2013 father has weekly supervised visits. At that point visits
were consistent and in fact I ordered father's visits, they could be
modified ... Then in all honesty I didn't see father any more. Those are the times
that father showed up in court, I took the time to go through all of my notes to
determine when father was here. And the times that I've given you are the times
that father appeared based upon my notes8 ..• But since then father has been
absent ... I have nothing for 2014. I have nothing for 2015.
Id. at 50-51 ( emphasis added). The Court further noted that Father had an affirmative duty to the
Children "even when things are going bad." Id. at 51. To Father, the Court stated that "for some
reason at some point in time you gave up and stopped. But the [C]hildren were cared for by
someone else. Someone else took over your job because you abdicated your role that [ was] non-
transferable." Id. at 52.
The Court found that the Child Advocate had met its burden and presented clear and
convincing evidence to support the termination of Father's parental rights under 23 Pa. C.S. §§
2511 ( a)(l ),(2), (5) and (8) of the Adoption Act. Id. at 52. Pursuant to 23 Pa. C.S. § 2511 (b), the
Court further found that with L.A.N., there was a "bond but not a substantial bond," and there
5
See also Court's Exhibit "A" (Permanency Order from November 26, 2012 for L.A.N.). During Father's first
hearing, he was appointed counsel and referred for a forthwith drug screen.
6
See also Court's Exhibit "B" (Permanency Orders from May 20, 2013 for the Children.). During this hearing,
Father had attended 9 out of 11 visits of supervised visits. Father's visits were permitted to be modified after a
negative drug screen. Father was also re-referred to the ARC program. DHS was asked to explore paternal relative's
sibling family as a possible placement resource,
7
See also Court's Exhibit "C" (Permanency Orders from August 19, 2013 for the Children). Father's visits with
L.A.N. were to be modified to unsupervised day visits, with a negative drug screen. Father's visits with D.D.M.
8
From the Court Orders ofL.A.N., Father had been present three out of eleven hearings (excluding the Termination
Hearing and continuances) since the Adjudication Hearing. The dates Father missed for L.A.N. were:
8/31/ I 2(adjudicatory hearing), 11/18/13, 1/8/14, 4/1 /14, 6/23/14, 9/16/14, 4/22/15, 9/11/15. The dates Father missed
for D.D.M since a paternity test was ordered on May 20, 2013 for him were: 8/19/13, l/8/14, 4/1/14, 6/23/14,
9/16/14, 4/22/15, 9/11/15.
4
would be no irreparable harm if the bond was terminated. Id. at 52-53. However, the Court did
find there was a bond with L.A.N. and her foster parent. Id. at 53.With D.D.M., the court found
that Father had only visited the child once on June l 0, 2015 and was not bonded to the child. Id.
at 53-54. Based on Father's one visit with the child, there would be no irreparable harm if
Father's rights were terminated. Id. at 54. However, the Court found that D.D.M. had a loving
and supportive bond with her foster parent. Id.
On appeal, Father argues that":
1. Whether under the Juvenile Act, of 42 Pa.C.S.A. Section 6351, and 55 Pa.Code
Section 3130.74, in accordance with the provisions of the Federal Adoption and Safe
Families Act, 42 U.S.C. Section 671 et seq., reasonable efforts were made to reunite
Father with his child and whether the goal of adoption was the disposition best suited
to the safety, protection and physical, mental and moral welfare of the child.
2. Whether it was proven by clear and convincing evidence that Father's parental rights
should be terminated under Sections 2511 (a)(2) and 2511 (b)[.]
I. Reasonable Efforts were made to Reunite Father with the Children and the Goal
of Adoption was in the best interest of the Children.
Father argues that there were no reasonable efforts made to reunify him with the
Children. Under 42 Pa. C.S.A § 6351:
(9) If the child has been in placement for at least 15 of the last 22 months or the
court has determined that aggravated circumstances exist and that reasonable
efforts to prevent or eliminate the need to remove the child from the child's
parent, guardian or custodian or to preserve and reunify the family need not be
made or continue to be made, whether the county agency has filed or sought to
join a petition to terminate parental rights and to identify, recruit, process and
approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to the physical,
mental and moral welfare of the child;
(ii) the county agency has documented a compelling reason for
determining that filing a petition to terminate parental rights would not
serve the needs and welfare of the child; or
9
Sic.
5
(iii) the child's family has not been provided with necessary services to
achieve the safe return to the child's parent, guardian or custodian within
the time frames set forth in the permanency plan.
The Children were in placement for over two years, and CUA has made numerous
attempts to reach out to Father and assist him in meeting his FSP objectives. N.T. 12/11/15 at
11, 22-23. Certified letters were sent and signed by Father at his only known address. Id. at 29-
3 0. Father was present at three Court hearings indicating that he had notice of the hearings, and
for all of the hearings after May 20, 2013, Father was represented by counsel in all of the
proceedings. Further, by Father's own admission, he was aware of the Children being in OHS
care since the inception of these cases and has until recently resided in the same place since
2012 and that OHS and the Courts had his address ID. Id. at 36, 38. Based on the record, Father
had been re-referred to ARC on multiple occasions and has not completed them. Id. at 9.
Further, Father was informed on the days he was present in court of what his objectives were
11.
and offered an opportunity to meet this objectives
For the foregoing reasons, the Court made reasonable efforts to reunify Father with the
Children.
II. There was Sufficient Evidence to Change the Goal to Adoption and Terminate
Father's Parental Rights Under 2511(a) and 2511(b).
A court's decision on whether to terminate parental rights is governed by the statutory
requirements of 23 Pa. C.S. § 2511. In re Child M., 681 A.2d 793, 797 (Pa. Super. 1996). The
1 °
Father does not currently reside in his house as a result of a recent fire. ]Q. at 38.
11
On November 26, 2012, Father was referred for a forthwith drug screen. On May 20, 2013, Father was offered
the opportunity to modify his visits if he had a negative drug screen. Also during the May hearing, Father was
offered an opportunity to prove paternity for 0.0.M and was offered supervised visits with the child. On August
19, 2013, Father was re-referred to the CEU and his visits were modified with L.A.N. to unsupervised visits.
6
"party seeking to terminate parental rights bears the burden of proving by clear and convincing
evidence the statutory grounds for doing so." Id. Appellate review of an order terminating
parental rights is limited to a determination of whether the decision of the trial court is supported
by competent evidence. In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004). "Absent an abuse of
discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the
decree must stand." Id.
Father's second issue questions whether there is clear and convincing evidence that
Father's parental rights should be terminated under 2511 (a) and 2511 (b).
a. There was Sufficient Evidence to Support 2511(a).
In the present case, DHS brought its petition for involuntary termination of Father's
parental rights under 23 Pa. C.S. §§ 2511 (a)(l ),(2),(5), and (8) of the Adoption Act, which
provide, in pertinent part, that the rights of a parent may be terminated upon 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.
( 5) The child has been removed from the care of the parent by the court
or under a voluntary agreement with an agency for a period of at least six
months, the conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not remedy those
conditions within a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy the conditions
which led to the removal or placement of the child within a reasonable
7
period of time and termination of the parental rights would best serve the
needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court
or under a voluntary agreement with an agency, 12 months or more have
elapsed from the date of removal or placement, the conditions which led
to the removal or placement of the child continue to exist and
termination of parental rights would best serve the needs and welfare of
the child.
The Court found that there was sufficient evidence to terminate Father's parental rights
based on 2511 (a)(!), (2), (5) and (8).
In the instant case, there is unrefuted evidence that since the Children came into OHS
care, they have not resided with Father. Father's visits never went past unsupervised day visits.
N. T. l 2/l l/l 5 at 5 l-52. After a period of time, Father essentially disappeared from the
Children's lives. There was no testimony presented that Father made any outreach to the
Children either while he was on bed rest or while he was incarcerated. Id. at 42. There was also
no mention of any outreach of Father to the Children. Father attended only three court hearings,
one court hearing in 2012 and two in 2013. In addition to Father's three court appearances,
Father only attended three visits in the year preceding the filing of the Petition for Termination:
February JO, 2015, June 10, 2015 and July 8, 2015. Id. at JO.
This case is not only one where Father stopped showing up for his Children, but through
his own inaction or criminal behavior has not been successful in fulfilling any of his FSP
objectives which were mainly drug and alcohol treatment and attend programs through ARC. Id.
at 8. Father admitted that for at least ten months he was neither able to care for the Children nor
fulfill his FSP objectives; for five months he had been on bed rest after being shot. Father was
unable to care for his Children after July 8, 2015 because he was incarcerated for five additional
months. Id. at 27, 35, 37.
8
Because Father abdicated his parental responsibilities more than six months prior to the
actual termination hearing and made no affirmative actions to remain in the Children's lives, the
Court did not err in terminating Father's parental rights under 2511 (a)( l ), (2), (5), and (8).
b. There was no parent-child bond under 2511(b)
There was no testimony of a bond between Father and the Children. Father spent less
than three hours with them in the last eighteen months. Id. at 22-23.
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 chi Id's
lite.
In re Z.P ., 994 A.2d 1108, 1118-19 (2010).
Specifically, during Father's only visit with D.D.M., the visit was cut short because of
Father's irate behavior. Id. at l 0. Father was able to visit L.A.N. on two other occasions in 2015.
Id. at 10.
Conversely, there was testimony that the Children are bonded with their respective foster
parent. Id. at 14-15, 23, 25. L.A.N. has been in her current placement for two years and calls her
foster parent "Momma De." Id. at 14, 23. D.D.M. has been in placement since she was three
months old, and she calls her foster parent "mommy." This Court found that the Children's main
source of "love, protection, guidance and support" has been with their respective foster parent,
9
and Father's interactions were almost non-existent. Id. at 51-54. The Court further found that
there would be no detrimental harm if Father's parental rights were terminated. Id.
Based on the foregoing, this Court properly found that termination of Father's parental
rights would best serve the needs and welfare of the Children.
Conclusion
For these reasons, the Court respectfully submits that its decision be affirmed.
BY THE COURT,
Dated: June 29, 2016
10