In re D.C.D.

91 A.3d 173

2014 PA Super 81

In the Interest of D.C.D., Minor.

Appeal of J.T.W., Father.

Superior Court of Pennsylvania.

Submitted Feb. 25, 2014.

Filed April 23, 2014.

David A. Strouse, Lock Haven, for appellant.

Michael D. Angelelli, Lock Haven, for Clinton County, appellee.

David I. Lindsay, Lock Haven, for Guardian Ad Litem, appellee.

BEFORE: GANTMAN, P.J., DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.:

J.T.W. (“Father”) appeals from the trial court's July 23, 2013 decree, which granted the petitions filed by Clinton County Children and Youth Services (“CYS” or “the Agency”) to involuntarily terminate his parental rights to D.C.D. (“Child”) pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b). Upon review, we find that the orphans' court erred as a matter of law by terminating Father's parental rights in spite of its finding that CYS failed to provide him with reasonable efforts to promote reunification prior to filing its termination petition. We therefore reverse.

In deciding a prior appeal, we previously summarized the facts of this case, in relevant part, as follows:

CYS became involved with the family the day after D.C.D.'s March 2011 birth. The [A]gency intervened due to medical problems that D.C.D. suffered as a result of Mother's drug use and the unavailability of the then unknown birth father. The juvenile court adjudicated D.C.D. dependent on April 14, 2011. A court-ordered test subsequently confirmed Father's paternity on May 6, 2011. CYS initially placed D.C.D. in kinship care with her maternal uncle and the uncle's paramour for approximately two months; however, when that relationship dissolved, [C]hild resided with the uncle's paramour for an additional month until the paramour relinquished D.C.D. to the [A]gency during July 2011. [Child was placed in the Barnes foster home until November 2011, and was subsequently placed with the Barnes' adult daughter and her husband, where she remained at the time of the instant appeal].

* * *

Father has been incarcerated throughout D.C.D.'s life. [N.T., 5/31/12,] at 8, 38–39. [Father is serving an aggregate sentence of 93 to 192 months, which he began serving prior to Child's birth. His minimum release date from prison is July 15, 2018, at which time Child will be more than seven years old. Father's maximum sentence date is October 15, 2026.]

On November 29, 2011, Father requested virtual visitations with D.C.D. via live video from prison in Virginia. By order dated December 12, 2011, the juvenile court directed that virtual visitation occur monthly beginning January 2012. Id. at 17. That order was entered over Mother's and the guardian ad litem's objections. Id. The first visitation occurred as scheduled on January 12, 2012. Id. at 8, 16. It lasted approximately fifteen to thirty minutes. Id. at 9, 40. However, due to Father's separation from the general prison population and placement in the prison's segregation unit, the Virginia prison authorities refused to permit additional virtual visitations to occur, notwithstanding the juvenile court's order. Id. at 18, 19. Father sought CYS's assistance in getting the virtual visitations reinstated, but [his] attempts were unsuccessful. Id. at 17–19. After he returned to SCI Graterford during March 2012, Father requested in-person visitation with D.C.D. because that facility was not equipped for virtual visitation. Id. at 35, 41, 44. However, CYS never responded to Father's request or sought to initiate visitations in accordance with the juvenile court's December 12, 2011 order. Id. at 20, 22, 44. Thus, despite his several requests for visitations with D.C.D., as of the date of the [first] termination proceedings, Father's total contact with his daughter amounted to a single virtual visitation. Id. at 9, 38.

Throughout the course of his incarceration, Father corresponded with CYS monthly and provided D.C.D. birthday and Christmas cards and gifts. In addition, he designated his niece, S.R., as a possible kinship placement resource until he was released from prison. Id. at 8, 16, 42–43, 44. CYS communicated with Father regularly; however, it declined to offer S.R. temporary kinship care of D.C.D. Id. at 57–58, 62. Instead, the [A]gency informed S.R. that it intended to terminate Father's parental rights and that she would be considered only as a permanent placement option or adoptive resource for D.C.D. Id. at 57–58. CYS has not interacted with S.R. since April 16, 2012, when it instructed her to contact the [A]gency to establish a time to meet D.C.D. and schedule a psychological evaluation if she desired to pursue a permanent placement such as adoption. Id. at 53, 57, 62–63, 64.In re: D.C.D., 1335 MDA 2012, 1–5, 68 A.3d 362 (Pa.Super. February 14, 2013) (unpublished memorandum).

On May 8, 2012, CYS filed a petition to change Child's permanency goal to adoption and to involuntarily terminate the parental rights of C.Y.D. (“Mother”) and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (5), (8), and (b).¹ The orphans' court denied termination as to Father based upon its finding that Father had tried everything he could to establish a relationship with Child and that he attempted to have Child placed with his family members. The orphans' court faulted CYS for the failure to achieve either of the concurrent permanency goals for Child of reunification or placement with a fit and willing relative. According to the orphans' court, “[t]he Agency has simply failed to assist Father. The Agency had determined the goal to be adoption before this [c]ourt even heard one piece of evidence on the requested goal change.” Orphans' Court Opinion, 6/21/12, at 10–11. ² In the juvenile court order denying the Agency's goal change request issued the same date, the court stated, inter alia, “The Agency shall immediately begin assisting Father in Father's attempt to establish a relationship with this child and to meet the established goals of return to parent or guardian or placement with a fit and willing relative.” Court Order, 6/21/13, at ¶ 2.³

CYS appealed the determination to this Court, arguing that the orphans' court erred and abused its discretion by failing to terminate parents' rights. On February 14, 2013, this Court affirmed the orphans' court's decision as to Father.⁴ We found that the record supported the orphans' court's finding that “CYS provided Father effectively no assistance and that, notwithstanding the dearth of services he received from CYS, Father utilized the resources available to him in prison to attempt to fashion a relationship with his daughter.” In re: D.C.D., 1335 MDA 2012, at 17.

Approximately 10 weeks after we rendered our decision, CYS filed a second petition to terminate Father's parental rights, this time proceeding under 23 Pa.C.S.A. § 2511(a)(2)⁵ and (b). At the termination hearing, CYS caseworker Danielle Sherman testified that she transported Child to visit with Father one time at SCI Graterford on April 22, 2013, which Ms. Sherman admitted was to establish Father's lack of bond with Child for the purposes of the termination hearing. There was no evidence presented that CYS did anything to help Father establish a relationship with Child or to place Child with a fit and willing relative prior to filing the second petition to terminate his rights. Nonetheless, believing it was bound to do so by our Supreme Court's decision in In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817 (2012), ⁶ the orphans' court granted CYS's petition and terminated Father's parental rights to Child. In its written opinion in support of the decree terminating Father's rights, however, the orphans' court once again found that “the Agency has simply failed to assist Father.” Orphans' Court Opinion, 7/23/13, at 7.

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)(i). He raises the following issues for our review:

1. The [orphans'] court committed an abuse of discretion and/or error of law in finding, pursuant to 23 Pa.C.S.A. § 2511(a)(2), that Father was incapacitated and therefore unable to provide D.C.D. with essential parental care, control or subsistence necessary for her physical or mental well-being;

2. The trial court committed an abuse of discretion and/or error of law in finding, pursuant to 23 Pa.C.S.A. § 2511(b), that termination of Father's parental rights is in the best interest of the developmental, physical and emotional needs and welfare of the child; and

3. The trial court committed an abuse of discretion and/or an error of law in terminating Father's parental rights where overwhelming evidence showed the Agency to have failed to assist Father to establish or maintain a relationship with the child, and the Agency's conduct prevented the establishment of any bond between Father and the child.

Father's Brief at 4.

Our standard for reviewing a decree terminating a parent's rights requires that we accept all findings of fact and credibility determinations made by the orphans' court that are supported by the record. In re T.S.M., ––– Pa. ––––, 71 A.3d 251, 267 (2013). If the orphans' court's factual findings are supported by the record, we may only reverse its decision if the court made an error of law or abused its discretion. Id. We may not reverse merely because we would have reached a different result based upon the facts presented. Id.

We begin by addressing the third issue raised by Father, as it is dispositive of the entire appeal. Detailing his efforts to have contact with Child—including regular contacts with the CYS caseworker, sending birthday cards for Child, repeatedly requesting visitation with Child, and offering family members who could transport Child to visit him in prison—Father states that CYS failed to provide him any assistance in establishing a relationship with Child. Father's Brief at 13–15. Father asserts that the orphans' court's decision to terminate his parental rights excused CYS's failure...