Opinion
J-S59001-18 No. 1076 EDA 2018
10-19-2018
IN THE INTEREST OF: R.S.C., A MINOR APPEAL OF: E.J., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered March 13, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000978-2016, CP-51-DP-0001922-2015, FID: 51-FN-000440-2014 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, E.J. ("Father") appeals from the decree, entered in the Philadelphia County Court of Common Pleas Family Court, which granted the petitions of the Philadelphia Department of Human Services ("DHS") for involuntary termination of Father's parental rights to R.S.C. ("Child") and to change the permanency goal to adoption. We affirm.
The trial court opinion fully sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them.
Throughout Child's placement and during the termination proceedings, the same attorney-GAL represented Child's interests. Because Child has been in foster care since four months after his birth, was not in Father's care before placement, and was less than three years old at the time of the termination proceedings, we can presume, absent any evidence in the record to the contrary, that there was no conflict between Child's best interests and his legal interests. See In Re: T.S., ___ A.3d ___, 2018 WL 4001825 (filed August 22, 2018) (holding appointment of second counsel for children, in contested termination proceedings, is not required to represent separate legal interests of children, where children's legal interests and best interests do not diverge; due to their young age (less than three years old), presumption exists that children were too young to express subjective preferred outcome of termination proceedings; therefore attorney-GAL could fulfill statutory mandate for appointment of counsel and represent both best interests and legal interests of children).
Father raises these issues for our review:
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. § 2511(A)(1)?(Father's Brief at 5).
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. § 2511(A)(2)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. § 2511(A)(5)?
WHETHER THE TRIAL COURT ERRED BY TERMINATING THE PARENTAL RIGHTS OF [FATHER] UNDER 23 PA.C.S.A. § 2511(A)(8)?
WHETHER THE TRIAL COURT ERRED BY FINDING, UNDER 23 PA.C.S.A. § 2511(B), THAT TERMINATION OF [FATHER'S] PARENTAL RIGHTS BEST SERVES [CHILD]'S DEVELOPMENTAL, PHYSICAL AND EMOTIONAL NEEDS AND WELFARE?
Father did not challenge the goal change order on appeal.
Appellate review in termination of parental rights cases implicates the following principles:
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) (quoting In re I.J., 972 A.2d 5, 8 (Pa.Super. 2009)).
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. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (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 Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008)).
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).
DHS filed a petition for the involuntary termination of Father's parental rights to Child 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.
* * *
(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.
* * *
23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(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., supra at 1117.
(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.
"The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have his... rights terminated." In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:
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 [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (internal citations omitted). "[A] parent's basic constitutional right to the custody and rearing of his...child is converted, upon the failure to fulfill his...parental duties, to the child's right to have proper parenting and fulfillment of his...potential in a permanent, healthy, safe environment." Id. at 856.
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...ability, even in difficult circumstances. A parent must utilize 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. 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...physical and emotional needs.
Importantly, neither Section 2511(a) nor Section 2511(b) requires the court to consider, at the termination stage, whether an agency made reasonable efforts to reunify the parent with his child before the agency petitioned for termination of the parent's parental rights. In re D.C.D., 629 Pa. 325, 342, 105 A.3d 662, 672 (2014). Nothing in the statute prohibits the court from granting a petition to terminate parental rights under Section 2511, even if the agency failed to make reasonable efforts at reunification. Id. at 346, 105 A.3d at 675.
After a thorough review of the record, the brief of the parties, the applicable law, and the comprehensive opinion of the Honorable Allan L. Tereshko, Sr. J., we conclude Father's issues merit no relief. The court's opinion fully discusses and properly disposes of the questions presented. ( See Family Court Opinion, filed May 10, 2018, at 2-25) (finding: (1-4) court terminated Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (a)(2), and limits discussion of Section 2511(a) to those sections; clear and convincing evidence showed Father failed and refused to perform parental duties, failed to address conditions that brought Child into placement, and lacks capacity to provide adequate care, control, and stable environment necessary for Child; Child was four months old when he came into DHS' care in July 2015, after Mother was arrested, leaving Child in the care of his fourteen-year old sibling; Mother's parental rights were terminated on June 28, 2017; Father failed to meet, or provide documentation that he had met, his Single Case Plan ("SCP") objectives to participate in mental health therapy, participate in domestic violence counseling, obtain employment, secure housing appropriate for Child, and participate in programming to encourage sobriety and to maintain sobriety; credible testimony revealed Child cried during visits with Father and clung to caregiver when Father attempted to hold Child; after visits with Father, Child regressed and displayed disruptive behavior at foster home; Child's behavior improved after Father's visitation ceased in December 2017; Parenting Capacity Evaluation ("PCE"), dated May 9, 2017, indicated Father failed to present with capacity to provide permanency and safety to Child; PCE identified serious concerns, including inappropriate housing, non-compliance with mental health treatment and domestic violence classes, failure to make himself available to Community Umbrella Agency-Turning Points for Children ("CUA-TP4C"), and his history of substance abuse; record demonstrates Father cannot or will not remedy conditions which brought Child under supervision and will be unable to fulfill parental responsibilities for Child in reasonable future; Father is not in position to care for Child or provide for Child's present and future need for essential parental care and control necessary for Child's well-being; further, court found DHS testimony credible and Father's testimony incredible; Father is unable and unwilling to parent Child; court found clear and convincing evidence to satisfy 23 Pa.C.S.A. § 2511(a)(1) and (a)(2); (5) regarding Section 2511(b), adoption will best serve Child's interests, given serious concerns over Father's unstable living situation and Father's effect on Child's behavior during visits; Child is thriving in care of foster parent; Child is not bonded to Father but is bonded to foster parent; Child would not suffer irreparable harm if Father's parental rights were terminated; Child has been in foster care for thirty-two months, and adoption will serve Child's best interests and need for permanency). The record supports the court's termination decision under Section 2511(a)(1), (a)(2) and (b), based on parental incapacity and the best interests of Child. See In re Z.P., supra. Therefore, we have no need to disturb it. Based upon the foregoing, we affirm the decree terminating Father's parental rights to Child.
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/19/18
Image materials not available for display.