Opinion
J-S01001-16 No. 1805 EDA 2015 No. 1806 EDA 2015
01-28-2016
IN THE INTEREST OF: M.S.P., a Minor, APPEAL OF: M.P., Father IN THE INTEREST OF: Q.C.P., a Minor, APPEAL OF: M.P., Father
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered May 12, 2015 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): 51-FN-002952-2012; CP-51-AP-0000043-2015 Appeal from the Order entered May 12, 2015 in the Court of Common Pleas of Philadelphia County, Family Court Division, No(s): 51-FN-002952-2012; CP-51-AP-0000044-2015 BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
M.P. ("Father") appeals from the Order granting the Petition filed by the Philadelphia Department of Human Services ("DHS") involuntarily terminating his parental rights to his minor female children, Q.C.P. and M.S.P. (collectively, "Children"), twins born in December 2008, pursuant to Section 2511(a)(1), (2), (5), (8) and (b), and changing Children's permanency goal to adoption. We affirm.
The Order terminated the parental rights of both Father and C.D. ("Mother"). Trial Court Opinion, 8/13/15, at 1 n.1. Mother does not appeal from the Order.
The trial court aptly summarized the factual and procedural history of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 8/13/15, at 1-6.
Relevantly, Father was convicted of Involuntary Deviate Sexual Intercourse in 1980 and was in prison until December 2003. Upon his release, Father was required to register as a Megan's Law Offender for 10 years. Father spent 5 years in jail, beginning in September 2009, as a result of his failure to register as a Megan's Law Offender. Consequently, Father was in prison for a majority of Children's lives.
Children were adjudicated dependent on November 26, 2012, after Mother texted a neighbor to indicate that she had relapsed from drug treatment, and instructed the neighbor to contact DHS. DHS obtained an Order of Protective Custody, and thereafter, Children remained under the care of DHS.
Previously, in September 2011, Mother called in a General Protective Services report on herself after an all-day drug binge during which she left Children unsupervised and without food or water. Mother subsequently completed both inpatient and outpatient drug treatment programs. --------
Children were placed in a pre-adoptive home in September 2014. On January 20, 2015, DHS filed an Involuntary Termination of Parental Rights ("ITPR") Petition against Father under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b). The Petition also changed Children's permanency goal to adoption. The trial court conducted hearings on February 2, 2015, and April 28, 2015. On May 12, 2015, the trial court terminated Father's parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and changed Children's permanency goal to adoption. Father filed a timely Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
On appeal, Father raises the following questions for our review:
I. Did the [t]rial [c]ourt err in terminating [Father's] parental rights under Pa.C.S.[A. §] 2511?Father's Brief at vi.
II. Did the [t]rial [c]ourt err in finding that termination of parental rights best served [C]hildren's developmental, physical and emotional needs under [subsection] (b)?
III. Did the [t]rial [c]ourt err in changing [C]hildren's goal to adoption?
We review an appeal from the termination of parental rights in accordance with the following standard:
In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence presented as well as the trial court's factual findings and legal conclusions. However, our standard of review is narrow: we will reverse the trial court's order only if we conclude that the trial court abused its discretion, made an error of law, or lacked competent evidence to support its findings. The trial judge's decision is entitled to the same deference as a jury verdict.In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Termination of parental rights is controlled by section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner "to prove by clear and convincing evidence that its asserted grounds for seeking the termination of parental rights are valid." In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). "[C]lear 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." Id. (citation and quotation marks omitted). Further, the "trial court is free to believe all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence." In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004). If the competent evidence supports the trial court's findings, "we will affirm even if the record could also support the opposite result." In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
Satisfaction of any one subsection of Section 2511(a), along with consideration of Section 2511(b), is sufficient for the involuntary termination of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we will review the trial court's decision to terminate Father's parental rights based upon Section 2511(a)(1) and (b), which state the following:
§ 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.
* * *
23 Pa.C.S.A. § 2511.
(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.
Parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties. ... [P]arental duty is best understood in relation to the needs of a child. ... [T]his court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty ... requires a continuing interest in the child and a genuine effort to maintain communication and association with the child.In the Interest of J.T., 983 A.2d 771, 776-77 (Pa. Super. 2009) (internal quotations and citations omitted).
In regard to incarceration and the preservation of parental rights, we have stated the following:
[I]ncarceration of a parent does not, in itself, provide sufficient grounds for termination of parental rights; however, an incarcerated parent's responsibilities are not tolled during [her] incarceration. ... [P]arental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of [her] ability, even in difficult circumstances.In the Interest of C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (citations omitted); see also In re S.P., 47 A.3d 817, 828 (Pa. 2012). Further,
[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 or her physical and emotional needs.In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).
In his first claim, Father asserts that the trial court erred in granting the ITPR Petition because DHS did not satisfy, by clear and convincing evidence, that his parental rights should be terminated under Section 2511(a). Father's Brief at 6. As to the requirements of subsection (a)(1), Father argues that the trial court relied almost entirely on his incarceration as evidence of a settled intent to relinquish parental claim and failure to perform parental duties. Id. at 7-8. Father claims that he has made efforts to be reunified with Children by sending cards, calling Children while in placement, and communicating with DHS workers about Children. Id. at 8-9. Father also asserts that he has participated in the Family Service Plans by enrolling in a parenting class. Id. at 8.
The trial court appropriately applied Section 2511(a)(1) to this case, and we adopt its Opinion as to that subsection for the purposes of this appeal. See Trial Court Opinion, 8/13/15, at 7-9; see also In re B., N.M., 856 A.2d 847, 858 (Pa. Super. 2004) (concluding that father showed a settled purpose of relinquishing his parental rights where he sat idle for most of child's life while mother performed all parental duties, and that father's wish to not have his "parental rights terminated was insufficient to protect those rights without acting affirmatively to foster a parental relationship with [c]hild during his incarceration.").
In his second claim, Father contends that the trial court erred in determining that termination served Children's best interests under Section 2511(b). Father's Brief at 13. Father argues that the social worker's testimony regarding Children's relationship with Father did not rise to the level of clear and convincing evidence. Id. at 13-14. Father claims that "it is hard to believe" that Children are completely bonded with the foster mother after living with her for less than a year. Id. at 14. Further, Father asserts that adoption in not in Children's best interests because he is now ready, willing, and able to care for them. Id.
The trial court set forth the relevant law regarding Section 2511(b), and determined that it was in Children's best interest to terminate Father's parental rights. See Trial Court Opinion, 8/13/15, at 12-13; see also In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that "courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents."). Upon our review, the trial court appropriately applied Section 2511(b) to this case, and we adopt its Opinion for the purposes of this appeal. See Trial Court Opinion, 8/13/15, at 12-13.
In his third claim, Father asserts that the trial court erred in changing Children's permanency goal to adoption. Father's Brief at 14. Father argues that if the trial court erred in terminating his parental rights, it also erred in determining that DHS should not continue to provide Father with services. Id. at 15.
When we review a trial court's order to change the placement goal for a dependent child to adoption, our standard is abuse of discretion. In order to conclude that the trial court abused its discretion, we must determine that the court's judgment was manifestly unreasonable, that the court did not apply the law, or that the court's action was a result of partiality, prejudice, bias or ill will, as shown by the record. We are bound by the trial court's findings of fact that have support in the record. The trial court, not the appellate court, is charged with the responsibilities of evaluating credibility of the witnesses and resolving any conflicts in the testimony. In carrying out these responsibilities, the trial court is free to believe all, part, or none of the evidence. When the trial court's findings are supported by competent evidence of record, we will affirm even if the record could also support the opposite result.In re N.C., 909 A.2d 818, 822-23 (Pa. Super. 2006) (citations and quotation marks omitted).
In a change of goal proceeding, the trial court must focus on the child and determine the goal in the child's best interest. . . . As a practical and legal matter, an order by the juvenile court changing the child's placement goal from reunification to adoption ends any dispute that may exist between [DHS] and the parent as to the adequacy of [DHS's] services aimed at reuniting the parent with [his] children and, of course, at to whether [DHS] had selected the most appropriate goal for this family. By allowing [DHS] to change its goal to adoption, the trial court has decided that [DHS] has provided adequate services to the parent but that [he] is nonetheless incapable of caring for the child and that, therefore, adoption is now the favored disposition. In other words, the trial court order is the decision that allows [DHS] to give up on the parent.In the Interest of A.L.D., 797 A.2d 326, 339 (Pa. Super. 1996) (citations omitted). "Matters of custody and placement for a dependent child must be decided under the standard of the child's best interests, not those of his or her parents." In re N.C., 909 A.2d at 823 (emphasis in original).
Upon our review, we conclude that there is adequate support in the record for the trial court's decision to change Children's permanency goal to adoption. Having already determined that it is in Children's best interests to terminate Father's parental rights, we must also agree that it is in Children's best interests to change their permanency goal to adoption.
Based upon the foregoing, the trial court did not err in granting the ITPR Petition and changing Children's permanency goal to adoption.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/28/2016
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