In the Int. of: A.N.E.H., Appeal of: E.S.

• Court: Superior Court of Pennsylvania
• Decided: March 6, 2023
• Docket: 2018 EDA 2022
• Status: Unpublished

Opinion

J-A28040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.N.E.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: E.S., FATHER : : : : : No. 2018 EDA 2022

Appeal from the Decree Entered July 22, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000095-2021

IN THE INTEREST OF: A.N.I.-E.S., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: E.S., FATHER : : : : : No. 2019 EDA 2022

Appeal from the Decree Entered July 22, 2022 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-AP-0000412-2021

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED MARCH 6, 2023

E.S. (“Father”) appeals from the decrees involuntarily terminating his

parental rights to his daughter, A.N.E.H., born in January of 2016, and his

son, A.N.I.-E.S., born in June of 2019 (collectively, “the Children”). We affirm.

The relevant factual and procedural history of this case is as follows.

The Philadelphia Department of Human Services (“DHS”) opened a case for

in-home services for this family in January 2019, following its validation of a J-A28040-22

report alleging that the Children’s mother was in a car accident with three-

year-old A.N.E.H., who had not been “strapped in” in the car and suffered a

hematoma. See N.T., 7/22/22, at 14. In April 2019, Father was arrested and

charged with murder and related offenses. See id. at 15-16. The next month,

the mother was incarcerated, following a probation violation, and the court

placed A.N.E.H. in the custody of DHS. See id. at 16. A.N.E.H. immediately

began residing in kinship care with her paternal grandmother. See id. The

court adjudicated A.N.E.H. dependent on May 21, 2019.

A.N.I.-E.S. was born with opiates in his system during the mother’s

incarceration. See id. at 17. The court adjudicated A.N.I.-E.S. dependent on

June 24, 2019. The court placed A.N.I.-E.S. in the protective custody of DHS,

which then placed him with his paternal cousin. See id. at 17-18. In

September 2019, A.N.I.-E.S. began residing in kinship care with A.N.E.H. and

their paternal grandmother. See id. at 18.

The Community Umbrella Agency (“CUA”) established single case plan

objectives for Father, to be completed during his incarceration, with the goal

being reunification. The objectives included participating in a parenting

program, mental health and drug and alcohol services, and visitation with the

Children. See id. at 20. CUA case managers visited Father in prison and

provided him with his permanency objectives. See id. at 19. With respect to

visitation, the court ordered one hour in-person visits with the Children at the

prison. See id. at 20. The parties agreed to switch from in-person to virtual

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and/or telephone visits “due to the [C]hildren being upset during” prison visits.

Id. Father had daily contact by telephone or video with the Children residing

in kinship care with their paternal grandmother. See id. at 30-31. However,

Father ultimately complied with only one objective while his criminal charges

were pending, namely, phone/virtual visitation.

DHS filed a petition for the involuntary termination of Father’s parental

rights to A.N.E.H. on February 19, 2021, and A.N.I.-E.S. on July 22, 2021.1

The trial court held an evidentiary hearing on July 22, 2022, during which DHS

presented the testimony of Jessica Estevez, a CUA case manager. Father

testified on his own behalf from prison via videoconferencing.2 By the time of

the subject proceeding, A.N.E.H. was six years old and had been in placement

for more than three years. A.N.I.-E.S. was three years old and had been in

placement his entire life. As noted above, Father complied with just one of

his objectives. The record is unclear as to whether any of these programs

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1 DHS also petitioned for the involuntary termination of the parental rights of the Children’s mother. The trial court held the petition with respect to the Children’s mother in abeyance. See id. at 11-12. There is no indication in the record that the mother’s parental rights have been terminated.

2 The Children, then ages six and three, were represented by separate legal and best interests counsel in accordance with 23 Pa.C.S.A. § 2313(a). See In re K.M.G., 240 A.3d 1218, 1235 (Pa. 2020) (holding that appellate courts “should engage in sua sponte review to determine if [trial] courts have appointed counsel to represent the legal interests of children in contested termination proceedings, in compliance with [s]ubsection 2313(a)”). Both legal and best interests counsel agreed that Father’s parental rights should be terminated. See, e.g., N.T., 7/22/22, at 37-38.

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were discontinued following advent of the COVID-19 pandemic, and if so, for

how long. See, e.g., N.T., 7/22/22, at 29-30 (Ms. Estevez testifying that she

was unsure about whether the programs were discontinued, and, if so, when

they restarted). Father, for his part, testified to his belief that the programs

had ceased during the pandemic, but he was unaware whether the programs

had since re-started and were available to him at the prison. See id. at 34.

Father provided no explanation for why he did not engage in and/or complete

the programs prior to the pandemic, nor did he assert that he had taken any

steps to inquire about whether these programs were available post-pandemic.

At the conclusion of the hearing on July 22, 2022, the trial court

involuntarily terminated Father’s parental rights to the Children.3 Father

timely filed notices of appeal and concise statements of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court

consolidated sua sponte. The trial court complied with Rule 1925(a).4

Father raises the following issues for our review:

1. Did the [t]rial judge rule in error that [DHS] me[t] its burden of proof that Father’s parental rights to [the C]hildren be terminated[?]

3With respect to A.N.I.-E.S., the trial court also involuntarily terminated the parental rights of any unknown father. See N.T., 7/22/22, at 41.

4 On August 23, 2022, the trial court notified this Court, pursuant to Rule 1925(a), that its rationale appears of record at the conclusion of the evidentiary hearing.

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2. Did the trial judge rule in error that the termination [of] Father’s rights would best serve the needs and welfare of the [C]hildren[?]

Father’s Brief at 5.

Our standard of review is as follows:

[I]n cases involving involuntary termination of parental rights[, our review] is limited to determining whether the trial court’s determination is supported by competent evidence. When applying this standard of review, an appellate court must accept the findings of fact and credibility determinations of the trial court if they are supported by evidence of record. Where the trial court’s factual findings are supported by the evidence, an appellate court may not disturb the trial court’s ruling unless it has discerned an error of law or abuse of discretion. An abuse of discretion is found where there is a demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will. It matters not that an appellate court might have reached a different conclusion, as it is well-established that absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand.

In re Adoption of L.A.K., 265 A.3d 580, 591 (Pa. 2021) (internal citations

omitted).

Pennsylvania’s Adoption Act (“the Act”) governs involuntary termination

of parental rights proceedings. See 23 Pa.C.S.A. §§ 2101-2938. Subsection

2511(a) provides grounds for the involuntary termination of parental rights.

If the trial court finds clear and convincing evidence supporting the existence

of one of the grounds for termination set forth in subsection (a), the court

must then consider whether termination would best serve the child under

subsection (b). See id. § 2511(b). This Court need only agree with one of

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the grounds set forth in subsection (a) to affirm, provided subsection (b) is

also satisfied. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).

Here, the trial court involuntarily terminated Father’s parental rights to

the Children pursuant to section 2511(a)(1), (2), (5), and (b). As we need

only agree with the trial court’s determination as to any one section of

2511(a), we limit our discussion to sections 2511(a)(2) 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:

****

(2) 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 well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

(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)(2), (b).

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In his first issue, Father contends that the trial court erred in finding

that grounds existed to terminate his parental rights pursuant to section

2511(a)(2). The grounds for termination of parental rights under section

2511(a)(2) due to parental incapacity are not limited to affirmative

misconduct; those grounds may also include acts of refusal and incapacity to

perform parental duties. See In re S.C., 247 A.3d 1097, 1104 (Pa. Super.

2021). Section 2511(a)(2) “emphasizes the child’s present and future need

for essential parental care, control or subsistence necessary for his physical

or mental well-being,” especially “where disruption of the family has already

occurred and there is no reasonable prospect for reuniting it.” In re Z.P., 994

A.2d 1108, 1117 (Pa. Super. 2010) (internal citation and emphasis omitted).

We have long recognized that a parent is required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.

See In re Adoption of M.A.B., 166 A.3d 434, 443 (Pa. Super. 2017). At a

termination hearing, the trial court may properly reject as untimely or

disingenuous a parent’s vow to follow through on necessary services when the

parent failed to co-operate with the agency or take advantage of available

services during the dependency proceedings. See In re S.C., 247 A.3d at

1105.

In In re Adoption of S.P., our Supreme Court addressed the relevance

of incarceration in termination decisions under section 2511(a)(2), holding,

incarceration is a factor, and indeed can be a determinative factor, in a court’s conclusion that grounds for termination exist under

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[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.

47 A.3d 817, 828 (Pa. 2012).

Father asserts that the trial court erred in finding grounds for involuntary

termination of his parental rights, given he maintained daily contact with the

Children, though he was unable to complete his other permanency objectives

because “the programs were shut down at the prison” during the COVID-19

pandemic. Father’s Brief at 11-12.

The trial court considered Father’s first issue and determined it lacked

merit. At the conclusion of the hearing, the trial court explained:

The testimony reflects that these children have been in care for [approximately thirty] months.

Father has been incarcerated since the children were placed. In[-]person visits were attempted, but unfortunately the in[- ]person visits were upsetting the children and had to be switched to virtual. Single case plan objectives were established to achieve the goal of reunification.

The testimony reflects that Father was able to complete one objective of those that were put in place[, i.e., the phone/virtual visitation]. I find that the circumstances that necessitated placement have not been alleviated and will not be alleviated in a reasonable period of time.

N.T., 7/22/22, at 39-40.

Following our review, we discern no abuse of discretion by the trial court

finding that grounds existed to terminate Father’s parental rights pursuant to

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section 2511(a)(2). We note that Father was incarcerated in April of 2019,

which was approximately one year prior to the COVID-19 pandemic. A case

manager visited him in jail and provided him with his single case plan

objectives, including, but not limited to, completing parenting classes, mental

health services, and drug and alcohol services. See id. at 19-20. Ms. Estevez,

the CUA caseworker, testified that while Father started parenting classes at

an unspecified time in prison, he was discharged from the class for fighting.

See id. at 21. Ms. Estevez further testified that Father never engaged mental

health or drug and alcohol services. See id.5 The record thus demonstrates

Father’s repeated and continued incapacity to engage in, or complete, his

objectives during his incarceration. This caused the Children to be without

essential parental care, control or subsistence necessary for their physical or

mental well-being for approximately thirty months. The record further

supports the trial court’s conclusion that Father’s incapacity, neglect, or

5 As we noted above, the record is unclear as to whether any of these programs were discontinued following advent of the COVID-19 pandemic, and if so, for how long. See, e.g., id. at 29-30, 34. However, it was Father’s responsibility to make diligent efforts toward assuming his parental responsibilities, and thus, to make reasonable inquiries about whether these programs, assuming they were discontinued, had resumed. See In re Adoption of M.A.B., 166 A.3d at 443 (noting that a parent is required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities.). We further note that Father provided no explanation for why he did not engage in and/or complete the programs prior to the pandemic or assert that he took any steps post-pandemic to investigate whether these programs were open.

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refusal cannot or will not be remedied.6 See Interest of K.M.W., 238 A.3d

465, 475 (Pa. Super. 2020) (affirming the trial court’s finding of grounds for

termination under subsection (a)(2) where the intermittently incarcerated

mother “remained non-compliant with court-ordered tri-weekly drug screens,

non-cooperative with the Agency, and had not progressed past supervised

visitation with [the c]hild while [the c]hild remained in placement for over 40

months”); see also In re S.C., 247 A.3d at 1105 (noting that a parent’s vow

to cooperate, after a long period of uncooperativeness regarding the necessity

or availability of services, may properly be rejected as untimely or

disingenuous); see also In re Adoption of M.A.B., 166 A.3d at 443

(providing that “[a] parent has a duty to work towards reunification by

6 We observe, moreover, that Ms. Estevez opined that Father’s reunification with the Children is not viable. See N.T., 7/22/22, at 22. Regarding Father’s release date, Ms. Estevez testified that his murder charges were still pending at the time of the involuntary termination hearing, which was then approximately three years after the Children’s placement. Id. at 22. She further explained, “Father remains incarcerated. We do not know a release date. And he hasn’t completed any other objectives.” Id. Father confirmed that he was proceeding to trial on the charges, and that his next court date was scheduled for November of 2022. See id. at 33-34. The record contains the docket number for Father’s criminal case, and a search of the publicly available docket indicates Father was acquitted of his murder charge, but convicted of hindering apprehension or prosecution, a third-degree felony. See Docket, CP-51-CR-5410-2019; see also 18 Pa.C.S.A. 5105(a)(1). The docket also indicates, as of this writing, that Father’s sentencing is scheduled for March 2023. However, the Children cannot wait for permanency and stability any longer. See In re Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa. Super. 2015) (stating that this Court cannot and will not subordinate indefinitely a child’s need for permanency and stability to a parent’s claims of progress and hope for the future).

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cooperating with the rehabilitative services necessary for him or her to be able

to perform parental duties and responsibilities”).

In his second issue, Father contends that the trial court abused its

discretion by finding that termination of his parental rights was in the

Children’s best interest pursuant to section 2511(b). Regarding the section

2511(b) best interest analysis, this Court has explained:

While a parent’s emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child. The mere existence of an emotional bond does not preclude the termination of parental rights. Rather, the [trial] court must examine the status of the bond to determine whether its termination would destroy an existing, necessary and beneficial relationship. . . ..

In addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, . . . the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (internal citations,

quotations, brackets, and indentation omitted). Furthermore, our Supreme

Court has stated that, “[c]ommon sense dictates 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.” In re T.S.M.,

71 A.3d 251, 268 (Pa. 2013). In weighing the bond considerations pursuant

to section 2511(b), “courts must keep the ticking clock of childhood ever in

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mind.” Id. at 269. Children “are young for a scant number of years, and we

have an obligation to see to their healthy development quickly. When courts

fail . . . the result, all too often, is catastrophically maladjusted children.” Id.

Father argues the trial court erred in finding pursuant to section 2511(b)

that termination of his parental rights served the best interest of the Children,

since he was maintaining contact with them and they had a relationship. See

Father’s Brief at 16-17. He further maintains A.N.E.H. did not “understand

the ramifications of adoption,” and was therefore unable to express a

preference about the matter. See id. According to Father, DHS was required

to take further steps to explain to A.N.E.H. the adoption process. See id. at

17.

The trial court considered Father’s second issue and concluded it lacked

merit:

[The t]estimony reflects that there is no bond with Father for either of the [C]hildren . . . no parental bond. For [A.N.I.- E.S.], [Father] is a voice on the phone. And for [A.N.E.H.], the testimony reflects that she does acknowledge him as Father, but there is no parental bond with her either. She refers to the paternal grandmother as mother. The bond is with the paternal grandmother.

I find that no irreparable harm would be suffered if parental rights are terminated. Both children look to their paternal grandmother to meet their needs, to find love, as well as care. Security and safety are provided by her. These children need permanency.

I find it’s in their best interest to be freed for adoption . . ..

N.T., 7/22/22, at 40.

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We conclude the trial court did not abuse its discretion in determining

that terminating Father’s parental rights serves the Children’s developmental,

physical, and emotional needs and welfare pursuant to section 2511(b). While

there is no dispute that Father had daily contact by telephone or video with

the Children residing in kinship care with their paternal grandmother, see id.

at 30-31, Ms. Estevez opined, nevertheless, that no parent-child bond existed

between Father and the Children. See id. at 30. Ms. Estevez described the

interaction between the younger child, A.N.I.-E.S.—then three years old—,

and Father as “the voice that he knows via the phone.” Id. at 23. With

respect to A.N.E.H.—then six years old—, Ms. Estevez testified that she

acknowledges Father as her father, but that A.N.E.H.’s only interaction with

Father is by the telephone, and she does not share a parental bond with him.

Id. Rather, Ms. Estevez testified that both A.N.I.-E.S. and A.N.E.H. share a

parental bond with their paternal grandmother. Id. at 25, 26. Ms. Estevez

testified that the Children’s paternal grandmother is a pre-adoptive resource,

and, because the Children look to her “for love, care, and day to day needs,”

they will not suffer any irreparable harm if Father’s parental rights are

terminated. Id. at 23-24, 26. Further, to the extent Father argues that the

court abused its discretion under section 2511(b) because the CUA caseworker

did not explain the possibility of adoption to A.N.E.H., Father provides no legal

authority to support his claim. In any event, the trial court properly appointed

counsel to represent the Children’s best, and legal, interests pursuant to

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section 2313(a). A.N.E.H.’s guardian ad litem agreed that termination of

Father’s parental rights was in A.N.E.H.’s best interest. See N.T., 7/22/22, at

37-38. Further, while A.N.E.H.’s legal counsel concluded that A.N.E.H. was

unable to comprehend what adoption entailed, and therefore unable to

express a preference, her legal counsel “indicated that she referred to paternal

grandmother as mother.” Id. at 38. Given this evidence, we conclude the

trial court did not abuse its discretion in finding that that the termination of

Father’s parental rights was in the Children’s best interest.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/6/2023

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