J-S39003-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.F.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: T.S., FATHER : : : : : No. 916 MDA 2022
Appeal from the Decree Entered May 26, 2022 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-9107
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 6, 2023
T.S. (“Father”) appeals the Luzerne County Court of Common Pleas’
decree involuntarily terminating his parental rights to A.M.F.S. (“Child”).
Father primarily argues the orphans’ court abused its discretion by terminating
his parental rights because the court failed to consider that he participated in
certain parenting and drug and alcohol programs while he was incarcerated.
We discern no such abuse of discretion, and we affirm.
Child was born in December 2017. Child’s natural parents are Father
and A.S. (“Mother”). Mother’s parental rights to Child, along with her parental J-S39003-22
rights to Child’s half-sibling, were also involuntarily terminated. Mother has
filed a separate appeal from that decree.1
The facts leading up to Father’s termination are largely undisputed. Child
was placed in the care of the Agency pursuant to an emergency shelter care
order on May 31, 2019. At the time, Child lived with Mother and the location
of Father was unknown. At the subsequent adjudication hearing, Father was
ordered to submit to the Agency for a full assessment upon his location. It
was later discovered Father was incarcerated.
The Agency eventually filed a petition to terminate Father’s parental
rights on January 7, 2021. At the time of the filing of the petition, Child had
been in placement with her half-sibling and the same foster family for 19
months. The orphans’ court held hearings on Father’s termination petition,
along with the petition to terminate Mother’s parental rights also filed by the
Agency on January 7, 2021. The hearings took place on July 28, 2021,
September 15, 2021, January 31, 2022 and March 7, 2022.
At the hearing on January 31, 2022, the Agency presented the testimony
of Anthony Bellizia, a caseworker for the Agency who had been involved with
Child’s case since August 2019. Bellizia testified that when he assumed
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1Luzerne County’s Children and Youth Services Agency (“Agency”) mistakenly believes Father’s and Mother’s appeals have been consolidated. They have not, and we decline to do so now sua sponte. Mother’s appeal involves separate facts, separate issues, and an additional child. Father is, to be clear, not the biological father of that additional child.
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responsibility for Child’s case, Father was incarcerated. He further testified he
received a letter from Father asking about Child’s location. See N.T., 1/31/22,
at 10. According to Bellizia, he attempted to respond to Father’s letter by mail
but his letters were returned to the Agency by the prison mail system. See
id. at 10.
Bellizia testified that Father was released from prison in May 2020.
Father participated in a permanency review hearing for Child in June 2020,
although Bellizia was unable to attend that hearing. See id. at 11. Bellizia
subsequently learned that Father indicated during that hearing that he would
contact the Agency to begin services and visitation. Father, however, never
contacted the Agency, and Bellizia had no way of contacting Father. See id.
at 11-12, 24.
Paul Guido, a supervisor at the Agency who supervised Child’s case and
who had attended the June 2020 permanency review hearing, expanded on
Bellizia’s testimony regarding that hearing. He explained that Father was
asked to provide his telephone number and address at the meeting, but Father
did not provide that information. See id. at 46. Instead, Father stated he
would contact the Agency following the hearing, but never did so. See id. at
46. Guido acknowledged that this occurred during the COVID-19 pandemic,
but testified that, even when the Agency’s building was closed, he was able to
receive communication from clients. Moreover, Guido testified, there was a
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security officer outside the building to take written messages from anyone
who appeared at the building when it was closed. See id. at 51.
Guido also emphasized that during the hearing, the hearing officer
stressed to Father and Mother that Child had already been in care for twelve
months. According to Guido, the officer “really took that opportunity to
encourage both parents to take that opportunity to engage or re-engage .. in
services at that point based upon the time line.” Id. at 48.
Bellizia testified that Father did not reach out to the agency, have any
contact with Child, or seek any services following that hearing and before he
was arrested again in November 2020. See id. at 24, 37. The parties
stipulated that Father was charged at that time with, inter alia, endangering
the welfare of children, fleeing or attempting to elude officers, manufacturing,
delivery and possession with intent, reckless driving, and driving with a
suspended license, in addition to a slew of summary offenses.
Bellizia recounted he was finally able to locate Father in December 2020
at Columbia County Prison. See id. at 10-11. He called Father at the prison
and was able to speak with Father and basically do an assessment at that
time. See id. at 11. Bellizia reported that during their conversation, Father
told Bellizia he had attended a drug and alcohol program and an Inside Out
Dad program while he had been in prison. See id. at 12, 25-26. Father did
not, however, provide any documentation related to those programs. See id.
at 12. Bellizia testified that, following their conversation, he attempted to mail
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Father a copy of Child’s permanency plan, but that mail was also returned to
the Agency. See id. at 11.
Bellizia also testified that he attempted to set up visitation for Father
and Child while Father was incarcerated. However, he was unable to do so in
light of the third-party visitation procedure used by the prison. See id. at 12-
13, 24.
Bellizia reported that the conditions that led to Child’s placement
continue to exist. He further opined that he does not believe Father could or
will remedy those conditions given that he has been incarcerated for all but
six months of the life of this case. See id. at 11, 28-29. And, during that six
months, Father did not contact Bellizia or have any contact with Child. See id.
at 24.
Father also testified at the hearing on January 31, 2022. He stated he
was incarcerated in the Columbia County Prison in May 2019, when Child, he
later learned, was taken into custody. See id. at 55. He reported he was at
Columbia County Prison until December 2019, when he was transferred to the
State Correctional Institution (“SCI”) at Pine Grove (“SCI Pine Grove”). See
id. at 55. He testified that he participated in a drug and alcohol program called
Therapeutic Community, along with some other programs, while at SCI Pine
Grove. See id. at 56, 66-67. He stated he began the Inside Out Dad program,
but was unable to complete the program because he was transferred to
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Columbia County Prison on a writ for a period of time during the course of the
program. See id. at 63.
Father reported he was incarcerated at SCI Pine Grove until May 2020,
when he was released. Father stated he was out of prison from June 2020 to
December 2020. Father testified that he participated in a permanency review
hearing for Child in June 2020, and maintained that he did, contrary to what
was reported by the Agency, provide his phone number to the Agency at that
time. See id. at 60, 61. According to Father, following that hearing, he
attempted to contact the Agency, but the Agency’s building was not accessible
to the public during July and August 2020 due to COVID-19. See id. at 60.
Father maintained he went to the building at one point but nobody was there.
See id. at 61-62. However, Father was not able to give the address of the
building or describe what the building looked like. See id. at 69, 71. Father
also maintained he left voicemails at the Agency but did not receive any return
phone calls. See id. at 61-62. He stated that although he was in contact with
Mother at least initially after his release, he did not ask Mother for the contact
information for Bellizia. See id. at 75.
Father testified he was currently incarcerated at SCI Rockview for a
parole violation but believed he would be released in October 2022. See id.
at 68, 73. Following Father’s testimony, the court set the next hearing date
for March 7, 2022. Bellizia told the court he would attempt to set up visitation
for Father and Child. Bellizia stated he had previously been told by SCI
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Rockview that Father was at SCI Pine Grove, and he had not yet had a
response to his inquiries there. See id. 97-98. Father’s attorney clarified that
Father had actually been in Columbia County Prison, transferred to SCI
Smithfield, and then transferred again to SCI Rockview “so there could have
been some problems there.” Id. at 98.
At the hearing on March 7, 2022, Bellizia testified that Father had been
able to have two phone visits with Child since the previous hearing. See N.T.,
3/7/22, at 68. Bellizia stated he was unable to say whether there was any
bond between Father and Child. See id. at 62, 65, 66.
Father also testified at the March 7, 2022 hearing. During this
testimony, Father shed some light on his history with Child. He reported that
he did not see Child for a time after Child was born but did see her before her
first birthday and before he was incarcerated. See id. at 91. He testified that
before the two recent phone visits, it had been “more than two years” since
he had seen Child. See id. at 88. He maintained, however, that the phone
visits had gone well and he believed he and Child share a bond. Id. at 87.
Following the hearings, the orphans’ court entered a decree terminating
Father’s rights pursuant to 23 Pa.C.S.A. § 2511 (a)(2) and (b). Father filed a
timely notice of appeal and a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. In its Pa.R.A.P. 1925(a) opinion, the orphans’ court
found it had not abused its discretion by terminating Father’s rights given that
Father had been incarcerated for all but six months of Child’s dependency;
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failed to make efforts to see Child or obtain services during the six months he
was out of prison; and that, even if Father had participated in classes while in
prison, he did not benefit from those classes as he had been rearrested on
drug charges. See Orphans’ Court Opinion, 7/27/22, at 28, 29, 33. Father
now challenges the orphans’ court termination decree with the following three
issues:
1. Does the failure of the Court to consider the services Father completed in prison constitute reversible error?
2. Was the Court’s determination against the weight of the evidence when the Agency did not assess the services performed by Father while incarcerated?
3. Did the Court err by granting a termination under circumstances whereby the Agency failed to provide services to Father, despite Father seeking the assistance of the Agency?
Appellant’s Brief at 4 (suggested answers omitted).
When this Court reviews an order of an orphans’ court terminating
parental rights, we must accept the findings of fact and credibility
determinations of the court as long as the record supports them. See In the
Interest of D.R.-W., 227 A.3d 905, 911 (Pa. Super. 2020). If the findings of
fact are supported by the record, this Court may only reverse the order if the
orphans’ court made an error of law or abused its discretion. See id. We may
not reverse merely because the record could support an alternate result. See
id. Instead, we give great deference to the orphans’ court because those
courts often have the opportunity to observe the parties first-hand over the
course of multiple hearings. See In re Adoption of K.M.G., 219 A.3d 662,
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670 (Pa. Super. 2019). Further, the orphans’ court, as the fact-finder, is free
to believe all, part or none of the evidence presented and is likewise free to
resolve any conflicts in the evidence. See id.
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. Under Section 2511, the orphans’
court must engage in a bifurcated process prior to terminating parental rights.
See In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the court must
find that the party seeking termination has proven by clear and convincing
evidence that the parent’s conduct satisfies any one of the eleven statutory
grounds set forth for termination under Section 2511 (a). See id.; 23 Pa.
C.S.A. § 2511 (a)(1-11). If the orphans’ court finds that one of those
subsections has been satisfied, it must then, pursuant to Section 2511(b),
make a determination of the needs and the welfare of the child under the best
interests of the child standard. See In re L.M., 923 A.2d at 511; 23 Pa.C.S.A.
§ 2511(b).
Here, regarding the first prong of the analysis, the orphans' court found
that the Agency had proven by clear and convincing evidence that Father’s
conduct met the grounds for termination of his parental rights under Section
2511 (a)(2), which provides that parental rights may involuntarily be
terminated on the grounds that:
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
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well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
23 Pa. C.S.A. § 2511(a)(2).
Under Section 2511(a)(2), then, parental rights may be terminated if it
is shown that: 1) there was repeated and continued incapacity of the parent;
2) such incapacity caused the child to be without essential parental care; and
3) the incapacity cannot or will not be remedied. See In re N.A.M., 33 A.3d
95, 100 (Pa. Super. 2011).
Significant to this appeal, our Supreme Court evaluated the relevance
of a parent’s incarceration to an orphans’ court decision to terminate parental
rights under Section 2511(a)(2) in In re Adoption of S.P., 47 A.3d 817 (Pa.
2012). There, the Supreme Court held that “incarceration is a factor, and
indeed can be a determinative factor, in a court’s conclusion that grounds for
termination exist under Section 2511 (a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the child to be without
essential parental care, control or subsistence and that the causes of the
incapacity cannot or will not be remedied.” Id. at 828.
Here, as the orphans’ court pointed out and Father concedes, Father
was incarcerated for much of the life of this case. See Appellant’s Brief at 5.
The orphans’ court acknowledged that Father was not in prison for six months
of the relevant time - from May 2020 to November 2020. The court looked at
that period of time and found that Father, although out of prison, did not reach
out to Bellizia or see Child during that time. See Orphans’ Court Opinion,
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7/27/22, at 29. While the court acknowledged Father’s testimony that he
made efforts to contact the Agency so that he could see Child during this six-
month period, the court did not find Father’s testimony to be credible. See id.
at 33. The court also highlighted that Father was then rearrested and charged
with drug and other offenses and was once again incarcerated. See id. The
orphans’ court determined that this conduct provided sufficient grounds to
terminate Father’s rights under Section 2511 (a)(2), and we see no abuse of
discretion or error of law in this determination.
Father argues, however, that termination was improper because the
Agency barely communicated with him during Child’s time of dependency and
failed to provide him with any services or make reasonable efforts to reunify
him with Child. In the first place, this argument ignores the fact that Father’s
whereabouts were at times unknown to the Agency, that Father was
incarcerated for a large portion of the relevant time, and that the Agency did
not have contact information for Father during his period of non-incarceration.
Moreover, our Supreme Court has held that Section 2511(a)(2) does not
require “a court to consider the reasonable efforts provided to a parent prior
to termination of parental rights.” In re D.C.D., 105 A.3d 662, 672 (Pa. 2014)
(holding that the provision of reasonable efforts to reunite parents and
children is not a requirement for termination). Accordingly, we are
unpersuaded by Father’s argument in this regard.
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Father also asserts that it is “unclear what further efforts Father could
have engaged in to ensure he was able to resume his parental duties in a
timely manner.” Appellant’s Brief at 19. In support, he points to his testimony
that he gave his phone number to the Agency at the single permanency review
hearing he attended, attempted to call the Agency on several occasions, and
even went to the Agency’s offices during the COVID-19 pandemic but was not
able to speak to anyone. See id. at 18–19. Again, the trial court did not credit
Father’s testimony, as was its prerogative to do as the fact-finder, and we
reject this claim on that basis alone. See In re Adoption of K.M.G., 219 A.3d
at 670.
We therefore conclude that the orphans’ court did not abuse its
discretion or commit an error of law when it found that the Agency met its
burden of establishing grounds for terminating Father’s parental rights
pursuant to Section 2511 (a)(2).
Turning to the second part of the termination test, which involves a
needs and welfare analysis under Section 2511(b), we note that Father did
not include any challenge regarding this section in his statement of questions
involved or in his statement of matters complained of on appeal. Any
argument regarding Section 2511(b) is therefore waived. See in re
M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017) (stating that “issues not
included in an appellant’s statement of questions involved and concise
statement of errors complained of on appeal are waived”).
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Even if not waived, we see no abuse of discretion in the orphans’ court’s
conclusion that termination of Father’s rights would best serve the needs and
welfare of Child pursuant to Section 2511(b).
“Intangibles such as love, comfort, security, and stability are involved
in the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005) (citation omitted). In determining a child’s
needs and welfare, the orphans’ court is required to consider “whatever bonds
may exist between the children and [the natural parent], as well as the
emotional effect that termination will have upon the [child].” In re Adoption
of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002) (citation omitted). At the
same time, the court should also consider the intangibles, such as the “love,
comfort, security, and stability,” the child might have with the foster parent.
In re K.Z.S., 946 A.2d 753, 760 (Pa. Super. 2008) (citation omitted).
Here, as the orphans’ court pointed out, Father has never had custody
of Child. He has been incarcerated for much of the time Child has been in
placement and had no contact with Child during the short time he was not
incarcerated during this placement period. The orphans’ court noted that
Bellizia testified he was not able to determine if Father and Child had a bond.
And although Father asserted he and Child do have a bond, even if this
assertion had otherwise been substantiated, the mere presence of a parent’s
emotional bond with a Child does not preclude a finding that termination is in
a child’s best interests. See In re N.A.M., 33 A.3d at 103.
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The orphans’ court highlighted the love, comfort, security, and stability
Child has with her foster parents, with whom Child has spent the majority of
her life and who wish to adopt Child. The court noted Bellizia’s testimony that
Child lives with her half-sibling, and the two children are assimilated into the
foster family’s home. See Orphans’ Court Opinion, 7/27/22, at 21. The court
also noted Bellizia testified that the foster family meets the physical,
developmental, and emotional needs of Child, and there is a bond between
Child and her foster family. See id. Child calls the foster parents “Mom and
Dad,” and seeks them out for comfort and security. See id. The court further
noted Bellizia opined that termination of Father’s rights would not have a
detrimental impact on Child. See id.
Based on the above, along with testimony from the foster father and a
case manager who has worked closely with Child while in her foster home,
see id. at 22-24, the orphans’ court concluded that it was in Child’s best
interests to terminate Father’s parental rights pursuant to Section 2511(b).
Again, we see no abuse of discretion or error of law in this conclusion, even
had Father properly raised a challenge to it.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 01/06/2023
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