NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.D., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
APPEAL OF: LUZERNE COUNTY CHILDREN AND YOUTH SERVICES
No. 604 MDA 2021
Appeal from the Decree Entered April 1, 2021 In the Court of Common Pleas of Luzerne County Orphans' Court at No.: A-9089
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 9, 2021 Appellant Luzerne County Children and Youth Services (“CYS”) appeals from the decree entered on April 1, 2021 in the Court of Common Pleas of Luzerne County (“orphans’ court”), granting M.J.D.’s (“Father’s”) motion to dismiss CYS’s petition to terminate involuntarily the parental rights of Father to his daughter, B.D. (“Child”), born in May 2018 and denying the petition. Upon review, we affirm.
We glean the facts and procedural history of this case from the certified record. On November 3, 2020, CYS filed a petition to terminate Father’s parental rights to Child involuntarily pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (2). The orphans’ court appointed Maria Turetsky, Esquire, as legal counsel and guardian ad litem for Child. On January 14, 2021, the orphans’ court conducted a hearing, at which CYS offered the testimony of Tammy
Purpura, a CYS caseworker and Gina Bellanca, CYS casework supervisor. Ms. Purpura testified that she has been involved with Child’s case since 2018. N.T. Hearing, 1/14/21, at 7. She stated that from the beginning of Child’s case until December 19, 2018, Father was subject to a protection from abuse (“PFA”) order, which prohibited him from having any contact with Mother and Child. Id. at 14, 39. Nineteen days following the expiration of the PFA order, on January 7, 2019, Child was adjudicated dependent and placed into CYS’s custody because of “[p]arental substance abuse, domestic violence between the natural parents, and mental health issues.” Id. at 8. According to Ms. Purpura, at the time Child was adjudicated dependent, Father was not considered a resource because he was residing at “Just Believe Sober Living Facility,” id. at 8-9, but was directed to engage in services and work toward reunification with Child. Id. at 9. In particular, “[h]e was ordered for eight hours of supervised visits at [CYS] or Vision Quest, remain sober, random urinalysis, safe and stable housing, and parenting services at his discretion.” Id. at 9. According to Ms. Purpura, Father also was under house arrest until February 2020. Id. at 14, 16.
Ms. Purpura further testified that custody of Child was returned to her biological mother, T.L.L (“Mother”) on July 19, 2019, following a permanency review hearing. Id. Father, however, still was not considered a resource and “ordered to engage in anger management and continue with his visitation.” Id. at 10. He did not have safe and stable housing, because he was residing at the sober facility. Id. According to Ms. Purpura, CYS regained custody of
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Child on January 9, 2020, because Mother relapsed into substance abuse and “lost her housing.” Id. Even at this point, Father was not considered a resource, as he was residing at the sober facility. Id. CYS placed Child with maternal grandmother (“Grandmother”). Id. at 11.
Ms. Purpura testified that, following Mother’s death, Father’s schedule for visitation with Child was “[e]ight hours supervised by [CYS] or Vision Quest.” Id. In addition, Grandmother also was permitted to supervise Father’s visits and visitations were permitted to occur at Grandmother’s residence. Id. at 11, 18. However, because of the COVID-19 pandemic, Father’s visitation schedule was modified in March 2020. Id. at 18-19. Specifically, Father was permitted two video calls with Child per week, each lasting at least fifteen minutes. Id. at 19.
Ms. Purpura recalled that, since Child’s dependency adjudication, Father had not been consistent in his visitations. Id. at 11. According to Ms. Purpura, Father visited with Child only four times in person prior to CYS’s filing of the termination petition. Id. Furthermore, she testified that Father made only five video calls with Child prior to CYS’s filing of the termination petition (and two more since then). Id. at 19. Ms. Purpura recalled that Father’s last in- person visit with Child occurred on July 6, 2020 and his last video call on July 18, 2020. Id. at 18-19.
When asked whether Father—in the six months prior CYS’s filing of the termination petition—provided “any necessities, clothing, or anything” for Child, id. at 20, Ms. Purpura answered “[h]e did show up for an in person visit
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on June 30 at [Grandmother’s] home and he brought some gifts and toys in the form of toys[.]” Id. According to Ms. Purpura, that was the only time prior to the filing of the November 3, 2020 termination petition when Father provided anything for Child. Id.
Ms. Purpura testified that, other than being inconsistent in his visitations with Child, Father was compliant with his court-ordered services. Id. She further testified that Father was deemed in “substantial” compliance at the last permanency review in October 2020. Id. at 20-21. Ms. Purpura also testified that Father never evinced an intention to assume full custody of Child. Id. at 21. She recalled that Father wanted Child to remain with Grandmother, but “would like to be able to visit and take her out.” Id. at 22.
On cross-examination, Ms. Purpura acknowledged that CYS indicated at the October 19, 2020 permanency review hearing that it would not be filing a termination petition against Father because he “has been engaged with [CYS] and services, and is in the process of securing safe and stable housing.” 1 Id.
at 25. Ms. Purpura further acknowledged that the permanency review hearing
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1 On October 27, 2020, the juvenile court adopted the hearing master’s October 19, 2020 permanency review recommendations in this case. In particular, the court noted:
[CYS] does not intend to file or join a petition to terminate parental rights because a compelling reason has been documented by [CYS] that filing a petition to terminate parental rights would not serve the needs and welfare of [Child], to wit:
[Father] has been engaged with [CYS] and services and is in the process of securing safe and stable housing.
Permanency Review Recommendation, 10/19/20, at 2.
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occurred approximately two weeks prior to CYS’s filing of the termination petition. Id. at 25-26. When asked why CYS proceeded with termination, Ms. Purpura answered that the master’s recommendation that CYS would not be filing a termination petition was incorrect. Id. at 26. She then conceded that no one from CYS attempted to correct or modify the master’s recommendation. Id. Ms. Purpura also conceded that CYS was only concerned with Father’s lack of safe and stable housing at the October 2020 permanency review hearing. Id. She testified that, despite intending to file a termination petition, CYS asked Father to complete parenting education and to continue with his visitations. Id. When asked why, Ms. Purpura answered that Father did not have a bond with Child, although she later admitted that she never actually witnessed Father’s interactions with Child and did not know the nature of their bond. Id. at 27, 40, 42. Ms. Purpura acknowledged that CYS considered Mother to be Child’s primary resource from July 19, 2019 until January 5, 2020 and that CYS’s focused shifted to Father only after Mother’s death in February of 2020. Id. at 27. Ms. Purpura also acknowledged that CYS did not request that a court direct Father to complete parenting classes at the first permanency review hearing following Mother’s death. Id. at 27- 28. According to Ms. Purpura, Father was directed to complete parenting classes at the October 2020 permanency review hearing and he started taking the classes at Concern only after CYS filed the termination petition. Id. at 36- 27.
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Moreover, Ms. Purpura readily conceded that the relationship between Father and Grandmother was bad. Id. at 29. Ms. Purpura acknowledged that Grandmother blamed Father for Mother’s death, complained to CYS that Father had not attempted to contact Child since 2020, and made a referral to CYS against Father so that he would never be allowed around Child. Id. at 30. Specifically, Grandmother accused Father of child pornography in July and August 2020. Id. at 31, 49. Ms. Purpura admitted that given the relationship between Father and Grandmother, it was understandable that Father would “be reluctant to be overheard by or observed by” Grandmother. Id. at 32. In fact, even though Father was invited to have his supervised visits with Child at CYS office or Vision Quest, he declined the invitation and chose to be supervised by Grandmother. Id. at 39. Ms. Purpura testified that Father was “happy with [Grandmother] to continue supervising his visits” and that he “did not ask for a change in who supervised the visits” until after CYS filed the termination petition. Id. at 39-40.
Ms. Purpura clarified that Father was in substantial compliance at the May 13, 2020 permanency review hearing, but only in minimal compliance at the October 19, 2020 hearing. Id. at 32-34. She admitted that Father secured safe and stable housing on November 1, 2020, a few days prior to CYS’s filing of the termination petition, complying with the October 2020 permanency review recommendations. Id. at 34, 38.
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CYS next presented the testimony of Ms. Bellanca, who testified that CYS chose to file the termination petition against Father because CYS was concerned that
[T]hroughout the case [Father] never stepped forward to actually take custody of [Child] or be involved as a parent. He had very limited contact with her throughout the life of the case. And even during the first period of time that she was in care, he had stated he wanted custody to go to [Mother] . . . and he didn’t care to take on that role as a full-time parent.
Id. at 43-44. Ms. Bellanca, however, remarked that Father generally was cooperative with CYS and kept in contact. Id. at 44. Additionally, she remarked that CYS was not concerned with Father’s engagement with services because he “had been cooperative with services.” Id. According to Ms. Bellanca, Father wanted Child to reside with Grandmother and for Grandmother to have primary physical and shared legal custody of Child. Id. at 45-46. However, Ms. Bellanca testified that Grandmother wanted to adopt Child and did not want to share custody with Father. Id. at 46.
On cross-examination, Ms. Bellanca acknowledged that Grandmother accused Father of child pornography towards the end of summer and that, following an investigation, those accusations were determined to be unfounded. Id. at 49. Yet, despite the accusations being unfounded, according to Ms. Bellanca, Grandmother continues to believe “just because there wasn’t enough evidence to have it be indicated, she still believes the allegations are true.” Id.
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On February 18, 2021, Father moved to dismiss CYS’s termination petition. On February 19, 2021, GAL filed a letter brief opposing Father’s motion to dismiss. On the same day, CYS also filed a brief opposing the motion to dismiss. On April 1, 2021, the orphans’ court granted Father’s motion to dismiss and denied CYS’s termination petition under Section 2511(a)(1) and (2).2 CYS timely appealed. Both CYS and the orphans’ court complied with Pa.R.A.P. 1925.
On appeal, CYS presents a single issue for our review.
[I.] WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT CHILDREN AND YOUTH DID NOT MEET ITS BURDEN UNDER 23 PA. C.S.A. §§ 2511(A)(1) AND (2) TO OVERCOME NATURAL FATHER’S MOTION TO DISMISS, AS THE CLEAR AND CONVINCING EVIDENCE PRESENTED ESTABLISHED THAT THE MINOR CHILD HAS BEEN DEPENDENT SINCE JANUARY OF 2019, THE NATURAL FATHER HAS MADE NO SIGNIFICANT EFFORT TO MAINTAIN CONTACT WITH THE MINOR CHILD OR PERFORM PARENTAL DUTIES FOR THE MINOR CHILD AND THROUGH THE NATURAL FATHER’S ACTIONS AND STATEMENTS HAS EVIDENCED NO DESIRE OR INTENT TO EXERCISE ANY SIGNIFICANT PARENTAL CARE OR PERFORM PARENTAL DUTIES FOR THE MINOR CHILD IN THE FUTURE.
CYS Brief at 6 (capitalization in original).
When we review an orphans’ court’s decision to grant or deny a petition to involuntary terminate parental rights, we must accept the findings of fact
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2 Because the orphans’ court denied CYS’s termination petition under subsection (a), it declined to address subsection (b), the needs-and-welfare analysis. See In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (“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)[.]”).
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and credibility determinations of the orphans’ court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported, appellate courts review to determine if the [orphans’] court made an error of law or abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the [orphans’] court’s decision, the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted). We may not reverse merely because the record could support a different result. T.S.M., 71 A.3d at 267. We give great deference to the orphans’ courts “that often have first- hand observations of the parties spanning multiple hearings.” Id. Moreover, “[t]he [orphans’] court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).
Section 2511 of the Adoption Act governs involuntary termination of parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis.
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 the needs 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 at 511.
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In this case, the orphans’ court denied CYS’s petition to terminate Father’s parental rights to Child pursuant to subsection 2511(a)(1) and (2), which provide:
(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.
(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.
23 Pa.C.S.A. § 2511(a)(1), (2).
We first address CYS’s claim that the orphans’ court abused its discretion in denying the termination petition under subsection (a)(1). In this regard, CYS argues that Father failed to perform parental duties during the six months preceding the filing of the termination petition.
With regard to Section 2511(a)(1), this Court has observed:
To meet the requirements of this section, “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)). The court must then consider “the parent’s explanation for his or her conduct” and “the post-abandonment contact between parent and
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child” before moving on to analyze Section 2511(b). Id. (quoting In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88, 92 (1998)).
This Court has explained that a parent does not perform his or her parental duties by displaying a “merely passive interest in the development of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.
Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super.
2003), appeal denied, [] 859 A.2d 767 (2004)). Rather, “[p]arental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.” Id. (citation omitted).
In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).
Instantly, upon our review of the record and the relevant case law, we conclude that the orphans’ court accurately and thoroughly addressed the merits of CYS’s argument under subsection (a)(1). Orphans’ Court Opinion, 5/27/21, at 6-11. CYS failed to establish that Father refused to perform parental duties during the six months preceding the filing of the termination petition on November 3, 2020. The evidence established that Father not only remained in contact with Child until at least July 18, 2020, but also brought her gifts on June 30, 2020. As a result, Father did not fail to perform parental duties “for a period of at least six months.” Additionally, the court found that, even though Father’s visitations were sporadic, the COVID-19 pandemic pervaded from March 2020 up until, and continuing after, the filing of the termination petition in November 2020 and, as a result, affected Father’s visitations with Child. Id. at 7, 9. The court reasoned:
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The COVID-19, pandemic took [a] toll on the entire world in 2020 at which point only necessary trips outside of the, home was strongly recommended. The [c]ourt will take notice that the pandemic occurred throughout the majority of the child’s dependency. Father’s visits with [C]hild did not remain, “in person” but had to continue by video. Due to the young age of [C]hild at two (2) years old, it was difficult for Father to interact with [C]hild on video. According to Ms. Bellanca, over a period of one month, Father was not satisfied with the video calls with [C]hild while she was in the [G]randmother’s residence. Ms.
Bellanca stated that [C]hild was not participating in the video.
[CYS] had to advise [G]randmother to assist [C]hild in participating in the video call with her Father. Thus, this [c]ourt must consider the barrier of Covid-19 restrictions as it relates to video conference visitation rather than having an “in person” visit with a child of such a young age. . . . But for the Covid-19 restrictions discouraging “in person” contact during the majority of the case, and this [c]ourt’s global order restricting in-person visitation between households, Father could have had more “in person” contact with his daughter prior to the filing of the petition to terminate Father’s parental rights. Had [C]hild been older and more mature in interacting with Father on video, video calls as a means of contact would most probably not have been an issue.
Id. at 9-10. Moreover, the orphans’ court considered Father’s relationship with Grandmother and specifically deemed her unfounded accusations of child pornography against him as a reason for Father’s hesitation to visit Child during the late summer months. Id. at 7-8. Accordingly, the orphans’ court did not abuse its discretion in granting Father’s motion to dismiss and denying CYS termination petition under subsection (a)(1).
We now address CYS’s contention under subsection (a)(2). We have explained that the moving party must produce clear and convincing evidence with respect to the following elements to terminate parental rights pursuant to Section 2511(a)(2): (1) repeated and continued incapacity, abuse, neglect
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or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).
Pursuant to Section 2511(a)(2), parents are required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. In re A.L.D.,3 797 A.2d 326, 340 (Pa. Super. 2002). 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. Id. Further, the grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. Id. at 337.
Here, as with (a)(1), we conclude that the orphans’ court accurately and thoroughly addressed the merits of Appellant’s argument under subsection (a)(2). Orphans’ Court Opinion, 5/27/21, at 12-15. The orphans’ court reasoned:
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3 Although not relevant to the disposition of this appeal, the Supreme Court
recently overruled on other grounds A.L.D. in In re S.K.L.R., __ A.3d __, 2021 WL 3624786 at *12 (Pa. filed August 17, 2021).
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In the case at bar, the evidence adduced at trial does not support the contention that Father has displayed a repeated and continued incapacity to perform parental duties for [Child]. The conditions which gave rise to placement were parental substance abuse, domestic violence between natural parents and mental health issues. Father was ordered to remain sober, submit to random urinalysis, maintain or obtain safe and stable housing and complete parenting services of his own choice.
On cross examination, Ms. Purpura testified that a May 13, 2020 [p]ermanency [o]rder indicates that Father was in substantial compliance with his court ordered services. Ms. Purpura further admitted that at the time of the filing of the petition to terminate parental rights, the only thing that [CYS] was concerned with was Father’s ability to obtain safe and stable housing. Indeed, Father did secure same on November 1, 2020 prior to the filing of the petition to terminate his parental rights. Ms. Purpura testified that she had the opportunity to observe Father’s home and inspect it and found it to be an appropriate placement for [C]hild. Ms.
Purpura stated the Father was also ordered to attend parenting education courses and to continue with his visits. Ms. Purpura testified that Father began engaging in parenting services with a provider named “Concern.” Ms. Bellanca also testified that Father was cooperative with the services. Based upon the testimony of the caseworker and casework supervisor, Father had remedied his issues which led [Child] to placement. Based on the lack of evidence presented by [CYS], the [c]ourt does not find that [CYS]
presented clear and convincing evidence that the conditions which led to the removal or placement of [Child] continue to exist with respect to Father or that he has not remedied any incapacity within a reasonable amount of time.
Id. at 12-13 (record citation omitted).4 Accordingly, in light of the evidence
adduced at the termination hearing, the orphans’ court did not abuse its
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4 The orphans’ court also found that CYS failed to offer a reasonable explanation why it decided to file a termination petition on November 3, 2020 after explicitly representing to the hearing officer at the October 19, 2020 permanency review hearing that it would not be doing so. Orphans’ Court Opinion, 5/27/21, at 14. The court found that it “is appalled that [CYS] would explicitly represent to the Hearing Officer that [CYS] would not be filing a (Footnote Continued Next Page)
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discretion in granting Father’s motion to dismiss and denying CYS relief under subsection (a)(2). We, therefore, affirm the orphans’ court’s April 1, 2020 decree. We further direct that a copy of the orphans’ court’s May 21, 2021 opinion be attached to any future filings in this case.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/09/2021
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petition to terminate Father’s parental rights due to Father engaging in services and securing adequate housing and then proceed to file a petition to the contrary two weeks thereafter.” Id. The orphans’ court further found:
The Hearing Officer’s recommendation based on [CYS’s]
representation was adopted as a court Order. A court [o]rder is entered for a reason. Parties present their positions in [c]ourt and after a hearing a court [o]rder is entered. A court order is not to be taken lightly and disregarded without cause. Had [CYS]
believed that the [o]rder was entered by mistake, the agency needed to immediately file a petition to modify the [c]ourt Order and not file a petition to the contrary as if the court [o]rder never existed.
Id. at 14.
Circulated 08/30/2021 02:53 PM