In re Father

IN THE INTEREST OF: K.A.M., A MINOR

APPEAL OF: S.M., FATHER

J-S55045-14

No. 922 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

OCTOBER 16, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Decree February 25, 2014

In the Court of Common Pleas of Philadelphia County

Family Court at No(s): CP-51-AP-0000444-2013 CP-51-DP-0001953-2011 FID# 51-FN-000993-2011

BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:

S.M. ("Father") appeals from the decree entered on February 25, 2014, in the Court of Common Pleas of Philadelphia County, involuntarily terminating his parental rights to his daughter, K.A.M. ("Child"), born in January of 2008.¹ We affirm.

The trial court provided the following relevant background of this case in its opinion pursuant to Pa.R.A.P. 1925(a):

[Child] is currently six (6) years old and is placed in kinship foster care with her maternal grandmother. The family became known to the Department of Human Services ("DHS") on March28, 2008 pursuant to a general report that stated that the Child tested positive for opiates at her birth on January [ ], 2008. On September 29, 2011, DHS filed a dependency petition for the Child. An adjudicatory hearing was scheduled for October 25, 2011. On October 7, 2011, Father filed a Motion for Continuance regarding the adjudicatory hearing. In his Motion for Continuance, Father stated that he was incarcerated at SCI-Forest and would be released on November 4, 2011. On October 25, 2011[,] the Court granted Father's request for a continuance on the grounds to allow Father to be present at the next court date. The next court date was the adjudicatory hearing held on November 15, 2011, wherein the Child was adjudicated dependent and committed to the custody of DHS. Father did not attend the adjudicatory hearing.²

Trial Court Opinion, 5/9/14, at 1-2 (citations to record omitted).

On August 8, 2013, DHS filed a petition for the involuntary termination of parental rights of Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). On the same date, DHS filed a petition for a goal change to adoption. A hearing was held on the petitions on February 25, 2014, during which the following witnesses testified: Brian Bell, DHS caseworker; Kiana Sawyer, Delta Social Services caseworker; and Father. By decree dated and entered on February 25, 2014, the trial court involuntarily terminated Father's parental rights. Additionally, by order the same date, the court changed Child's goal to adoption. Father timely filed a notice of appeal anda concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).³

On appeal, Father presents the following issues for our review:

1. Whether the [t]rial [c]ourt erred by terminating the parental rights of [Father], when [DHS] failed to provide reasonable efforts to reunify the family[?]

2. Whether the [t]rial [c]ourt erred by terminating the parental rights of [Father], under 23 Pa.C.S.A. § 2511 subsections (a)(1), (a)(2), (a)(5), and § 2511(a)(8)?

3. Whether the [t]rial [c]ourt erred by finding, under 23 Pa.C.S.A. § 2511(b), that termination of [Father's] parental rights best serves the child's developmental, physical and emotional needs and welfare?

Father's brief at 4.

We review the decree involuntarily terminating Father's parental rights according to 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., [614Pa. 275,] 36 A.3d [567,] 572 [(Pa. 2011) (plurality)]. 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, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575 Pa. 647, 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, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

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 interests of the child. One major aspect of theneeds 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.A. § 2511). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Instantly, we review the decree pursuant to Section 2511(a)(1) and (b), which 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.A § 2511(a)(1), (b); see also In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc) (stating that, this Court need only agree with any one subsection of Section 2511(a), in addition to Section 2511(b), in order to affirm the termination of parental rights).⁴

With respect to 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, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties." In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citing In re Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). Further,

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).

Id. (quoting In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998)).

In In re Adoption of S.P., supra, our Supreme Court discussed In re Adoption of McCray, 331 A.2d 652 (Pa. 1975), a case wherein theCourt considered the issue of the termination of parental rights of incarcerated persons involving abandonment, which is currently codified at Section 2511(a)(1). The S.P. Court stated:

Applying in McCray the provision for termination of parental rights based upon abandonment, now codified as § 2511(a)(1), we noted that a parent "has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child." Id. at 655. We observed that the father's incarceration made his performance of this duty "more difficult." Id.

In re Adoption of S.P., 47 A.3d at 828. The S.P. Court continued:

[A] parent's absence and/or failure to support due to incarceration is not conclusive

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