In re GPR

851 A.2d 967

2004 PA Super 205

In re: G.P.-R. a/k/a Baby Boy R.

Appeal of: G.P.-R. Natural Father, Appellant.

In the Interest of G.R.

Appeal of: G.P.-R. A Natural Father,

Superior Court of Pennsylvania.

Submitted February 23, 2004.

Filed June 3, 2004.

Gunnar L. Armstrong, Lancaster, for appellant.

Jeffrey Gonick, Leola, Guardian Ad Litem, for appellee.

Lisa J. McCoy, Lancaster, for A.R., appellee.

Anne L. Cooper, Lancaster, for Lancaster County, appellee.

Before: JOYCE, BENDER and KELLY, JJ.

BENDER, J.

¶ 1 G.P.-R. (Father), the natural father of G.R., appeals from two orders both dated June 30, 2003, that changed the placement goal from reunification to adoption, and granted the petition to terminate Father's parental rights to G.R. filed by the Lancaster County Children and Youth Social Service Agency (Agency).¹ We affirm both orders.²

¶ 2 On April 8, 2002, following a permanency hearing, the placement goal for the child was changed from "return-to-home" to "adoption" pursuant to the Juvenile Act, 42 Pa.C.S. §§ 6301-6365, based in part upon a finding of aggravated circumstances. See 42 Pa.C.S. § 6302. Father filed exceptions that were not served on the Agency. Subsequently, on July 3, 2002, the Agency filed the termination petition, alleging that the parental rights of both Mother and Father should be terminated pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). Counsel was appointed for Father, and the court consolidated the goal change and the termination proceedings for joint disposition.³ Hearings on both matters were held on January 29 and 30, 2003, and based on the testimony and other evidence received, the court set forth the following recitation of the facts:

The child was born on April 11, 2001 at the Women's and Babies' Hospital. Mother is a heroin addict who was taking methadone during the last two months of the pregnancy and she had received no prenatal care. She had used an assumed name in order to receive methadone treatment from a clinic in Coatesville, Pennsylvania. She used the assumed name because there was an outstanding warrant for her arrest on a charge of violating her parole. The Agency took physical custody of the child on April 12, 2001. The child remained in the hospital for several days since he needed to be observed for heroin and methadone withdrawal.

At the time of the child's birth, [F]ather was incarcerated in the Lancaster County Prison. Ultimately, he received a State Prison sentence of 1-1/2 to 3 years on a burglary conviction. This sentence was imposed on June 15, 2001. On November 28, 2002, [F]ather was released from the State Correctional Institution at Frackville, Pennsylvania to a half-way house, Community Correction Program at Conewago, Wernersville, Pennsylvania. He was released on parole from the half-way house on approximately January 20, 2003.

On April 12, 2001, [F]ather was advised of his various rights by Lorraine D. Drost who was a caseworker with the Agency. At that time, [F]ather indicated that no members of his family were in a position where they could care for the child.

Subsequent to the Agency taking custody of the child, an adjudication was scheduled for July 24, 2001. Father was unable to attend since the Agency did not have sufficient time to arrange for his transport from the classification unit at the State Correctional Institution at Camp Hill. At that time, Attorney Daniel Shertzer was appointed counsel for [F]ather. Attorney Shertzer advised the Agency that he would make arrangements for [F]ather to attend the continued hearing if [F]ather contacted him. On August 1, 2001, the Agency sent a letter to [F]ather requesting that he contact Mr. Shertzer. It advised him that the adjudication/disposition hearing was scheduled for October 9, 2001. A follow-up letter was sent by the Agency to [F]ather on August 17, 2001. This letter again advised [F]ather to contact Attorney Shertzer if he wished representation. Father did not attend the adjudication hearing and at that time, Attorney Shertzer's appearance was withdrawn.

A placement plan amendment was approved on October 9, 2001. This plan set forth various conditions for the return home of the child.

Doris Risser is an adoption caseworker and had a telephone conference with [Father] prior to the initial date for the adjudication hearing. While incarcerated at Frackville, [F]ather sent one letter to Ms. Risser and he never called her. After his release from prison, he called Ms. Risser requesting pictures of the child and assistance in obtaining parenting classes. Father first wrote a letter to the child on or about June 25, 2002. There were later letters from [F]ather which were received by the Agency on October 19, 2002, November 10, 2002 and December 9, 2002. The only gifts that [F]ather sent to the child were a handkerchief enclosed with the letter of December 19, 2002 and a photograph of himself.

For a period in excess of one year, [F]ather displayed a complete lack of interest in the child. He failed to inquire of the Agency concerning the child's well being and there were no attempts at contact with his son. Significantly, [F]ather never indicated that he was having difficulty in contacting the Agency.

Father's testimony concerning his excuses for failing to write and attempt contact were incredible and unworthy of belief. I was impressed that [F]ather is a recidivist who testified concerning his attempts to manipulate the prison and parole systems. He testified that he did not have a drug problem and that he participated in programs such as the Twelve Steps solely in an attempt to reduce his sentence. Like his behavior in prison, I found his testimony to be a very superficial effort to manipulate the Court so that he could maintain his parental rights without demonstrating any commitment or responsibility.

* * * G.P.R. has been in placement virtually his entire life. He resides in a foster home with his half-brother who has already been adopted by his foster parents. He recognizes his foster parents as his true parents. He has never had any contact with his biological father. Accordingly, the child has never developed any bond with his biological father. To terminate the parent-child relationship between G.P.-R. and his biological father will not have any adverse affect on the child. He has done extraordinarily well developmentally. His only "problem" has been a rather common one with inner ear infections which has been remedied through the use of tubes. He is extremely bonded to his foster parents. To disrupt a developing and happy child from the stable loving family unit would be the height of injustice. For all these reasons, the termination of parental rights is in the best interest of the child.

Trial Court Opinion (T.C.O.), 10/28/2003, at 4-7, 10 (citations to the record omitted). Accordingly, with reliance on the above, the court confirmed the goal change to adoption and ordered the involuntary termination of Father's parental rights pursuant to four subsections of Section 2511(a) of the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8).⁴ This appeal followed.

¶ 3 On appeal, Father raises four issues for our review:

1. Whether a finding of aggravated circumstances against Father was appropriate when the record established that he had exercised much effort in attempting to re-obtain custody of his child?

2. Whether the goal for the child should be changed to adoption when the record established that the Father had made much effort in attempting to re-obtain custody of his child?

3. Whether the Petition for Termination of Parental Rights should have been dismissed because it was in violation of the Fourteenth Amendment to the United States Constitution for the Agency and the Guardian Ad Litem to file a petition for termination of parental rights before Father had had adequate time to attempt reunification with his son and while the goal of the placement plan amendment remained reunification and, to the extent that 23 Pa.C.S. § 2512 [Petition for involuntary termination] allows such a filing, is it unconstitutional?

4. Whether the petition for termination of parental rights should have been dismissed because the evidence established that Father had made substantial efforts to obtain reunification, beginning before the filing of the petition, and that he was both able and willing to remedy the situation upon his release from incarceration?

Father's brief at 10.

¶ 4 When considering appeals such as the one presently before us, we are guided by the following:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that we would give to a jury verdict.

In re: Involuntary Termination of C.W.S.M. and K.A.L.M., 839 A.2d 410, 414 (Pa.Super.2003). We are also aware that:

In a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by "clear and convincing" evidence the existence of grounds for doing so. The standard of "clear 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.

In re A.L.D., 797 A.2d 326, 336 (Pa.Super. 2002) (quoting In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994)). Moreover, an abuse of discretion occurs "when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that...