In the Interest of: S.E.J. Appeal of: I.J.

• Court: Superior Court of Pennsylvania
• Decided: August 13, 2014
• Docket: 517 EDA 2014
• Status: Unpublished

Opinion

J-S45015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.E.J., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: I.A.J., FATHER,

Appellant No. 517 EDA 2014

Appeal from the Order January 8, 2014 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): CP-51-DP-0001379-2011, DP-51-AP-0000710-2013

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 13, 2014

wherein the trial court involuntarily terminated his parental rights to his five-

year-old daughter, S.E.J.1 We affirm.

On June 14, 2011, the Philadelphia Department of Human Services

treatment following a psychotic episode. The report further alleged that

Mother chronically abused drugs, angered easily, yelled at the children, and

-sister. The report was substantiated. ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 J-S45015-14

Father was not involved with the family at that juncture. He resided

maternal grandmother initially cared for S.E.J. and the older half-sister.

However, on July 7, 2011, the children were removed from maternal

reside with their maternal aunt, K.S.

Then, during March 2012, they were relocated to a pre-adoptive foster

Meanwhile, approximately one month after DHS opened the GPS

report, the juvenile court adjudicated S.E.J. and her sister dependent

pursuant to 42 Pa.C.S. § 6302(1) involving children who are without proper

parental care or control. Father attended the hearing and expressed his

desire to care for his daughter and her half-sister at Pat

home. DHS performed a home assessment, approved the proposed

placement, and initiated a transition plan. The plan was thwarted, however,

after Father was arrested and incarcerated on a probation detainer. He has

remained incarcerated since that time.

so that it could determine what services Father could obtain while

incarcerated. DHS mailed the FSP to Father, and it later corresponded with

counselor, but her efforts were fruitless. However, DHS was able to contact

Father directly and eventually created the additional FSP objectives that

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Father was to participate in parent training and drug and alcohol treatment

while incarcerated.

e plan

providing supervised visitations between Father and S.E.J. at the prison,

e FSP and ISP goals was modest. He

maintained contact with DHS and JFCS, and while he alleged that he

completed parent classes and substance abuse treatment in prison, he failed

to provide any written documentation to substantiate that claim.

On December 20, 2013, DHS filed petitions for the involuntary

goal to adoption. Following a hearing on January 8, 2014, the trial court

nt to 23 Pa.C.S.

§ 2511(a)(1), (2), (5) and (8) and (b). This timely appeal ensued. Father

complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of errors

complained of on appeal simultaneously with his notice of appeal.

Father presents two questions for our review:

1. Did the trial court err in determining that DHS presented clear and convincing evidence that grounds for involuntary termination exist?

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2. Did the trial court err in determining that the best interest of the child would be rights?

involuntarily terminate parental rights for an abuse of discretion. In re

C.W.U., Jr., 33 A.3d 1, 4 (Pa.Super. 2011).

In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004) (quoting In re C.S.,

broad, comprehensive review of the record in order to determine whether

In re

C.W.U., Jr., supra at 4. If the trial court's findings are supported by

competent evidence of record, we must affirm even if the record could

support the opposite result. In re R.L.T.M., supra at 191-192.

Although it is not apparent from his statement of questions presented,

ot utilize reasonable efforts to

reunify him with his daughter. He argues that DHS ignored his request that

S.E.J. reside with Paternal Grandfather and delayed securing the required

s

accomplishments while in prison, and faults the agency for failing to make

contact with his prison counselor. In sum, Father complains that the

reject this position.

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Initially, w

determination of whether the agency established the statutory grounds to

termination proceeding is on the parents' conduct, and the adequacy of the

In re A.D., __A.3d __, 2014 WL

2566284 (Pa.Super. 2014) citing In re B.L.W., 843 A.2d 380, 384 n.1

(Pa.Super. 2004) (en banc

reunification is not a valid consideration at the termination of parental rights

stage, as the law allows CYS to give up on the parent once the service plan

statutory

propriety of its decision to pursue termination in the first place. The

Before filing a petition for termination of parental rights, the Commonwealth is required to make reasonable efforts to promote reunification of parent and child. However, the Commonwealth does not have an obligation to make such efforts indefinitely. The Commonwealth has an interest not only in family reunification but also in each child's right to a stable, safe, and healthy environment, and the two interests must both be considered. A parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the parent's failure to fulfill his or her parental duties, to the child's right to

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have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. When reasonable efforts to reunite a foster child with his or her biological parents have failed, then the child welfare agency must work toward terminating parental rights and placing the child with adoptive parents. The process of reunification or adoption should be completed within eighteen (18) months. While this time frame may in some circumstances seem short, it is based on the policy that a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.

In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa.Super. 2006) (emphasis,

citations, and internal quotation marks omitted) (footnote omitted).

In In re D.C.D., 91 A.3d 173 (Pa.Super. 2014), appeal granted, __

utilization of reasonable efforts was a prerequisite to filing a petition to

city. Id. at 177. Without

-petition efforts were deficient. Id. at

parental rights in spite of its finding that CYS failed to provide him with

reasonable efforts to promote reunification prior to filing its termination

see also id. at 182-183.

Instantly, however, any potential application of our holding in In re

D.C.D. In re D.C.D., the

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Thus, In re D.C.D. is facially inapplicable. What is more, even if we force a

strained application of our holding in In re D.C.D. to the facts of this case,

reunification with S.E.J., they are unpersuasive. Simply stated,

in that regard is unrelated to its efforts to provide Father resources and

services designed to effectuate his reunification with S.E.J. Thus, no relief is

due.

assertions also fail. Unlike an unacceptable scenario where a child service

agency simply abandons a parent, DHS contacted Father at the outset of its

involvement, considered him as a potential placement resource, at least

prior to his incarceration, and maintained contact with him in prison

throughout the proceedings. N.T., 1/8/14, at 16-17, 18, 21, 27-28. Father

was informed of the FSP process and advised of the results of the FSP

meetings. DHS Exhibits 4, 8, and 10. Moreover, the agency corresponded

with Father in prison, developed goals that he could attain while

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incarcerated, and offered visitation with S.E.J. N.T., 1/8/14, at 18, 27-28,

39, 48. These efforts were sufficient.

Finally, while Father faults DHS for not ascertaining his level of

compliance with the FSP goals while incarcerated, the record belies this

contention. First, Father must concede that his prison counselor failed to

contact DHS despite two telephone messages to the counselor requesting

that outreach. Id. at 47-48. We will not fault DHS for the prison

to perform. Second, and more importantly, while Father

reported that he completed a parenting class and drug treatment, he failed

to provide DHS with any written documentation that he completed those

programs. Id. at 39, 48, 51, 132-133. Thus, despite

to the contrary, the certified record includes scant evidence to support his

assertion that DHS abandoned him during the reunification process.

finding that DHS established the statutory grounds to terminate his parental

rights are governed by 23 Pa.C.S. § 2511. Herein, the trial court found

(2), (5), (8) and (b), which provide in pertinent part 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:

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(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.

....

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

(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,

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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. § 2511.

clear and convincing evidence that its asserted grounds for seeking the

In re R.N.J., supra at 276.

convincing as to enable the trier of fact to come to a clear conviction,

without hesitance, of the truth of the pr Id. at 276

(quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)). The trial

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-

In re N.C., 763 A.2d 913,

917 (Pa.Super. 2000).

We need only agree with one subsection of 23 Pa.C.S. § 2511(a) and

In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Herein, the

trial court concluded that DHS satisfied the statutory grounds to terminate

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address those subsections.

The pertinent inquiry for our review follows:

To satisfy 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. . . . Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.

In re D.J.S., 737 A.2d 283, 285 (Pa.Super. 1999) (quoting Matter of

Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)) (internal

citations omitted). Although it is the six months immediately preceding the

filing of the petition that is the most critical to the analysis, the trial court

must consider the whole history of a given case and not mechanically apply

the six-month statutory provision. In re B.,N.M., 856 A.2d 847 (Pa.Super.

2004).

In In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003), we explained,

A parent is required to exert a sincere and genuine effort to maintain a

parent-child relationship; the parent must use all available resources to

resisting obstacles placed in the path of maintaining the parent-child

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reiterated in In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012), that the

primary focus of the § 2511(a)(1) analysis is whether an incarcerated parent

exercised reasonable firmness in declining to yield to obstacles created by

imprisonment and employed available resources to maintain a relationship

abandonment analysis [an incarcerated parent has] a duty to utilize

Id.

Instantly, the trial court found that Father failed to exercise reasonable

firmness in attempting to overcome the obstacles presented by his

incarceration. The trial court reasoned as follows:

The Court's focus under 23 Pa.C.S.A. §2511(a)(1) is on whether or not Father utilized the resources available to him while he was incarcerated to further a relationship with his child. In re Adoption of S.P., 616 Pa. 309. 328. 47 A.3d 817 (2012). While Father asserts that he maintained a relationship with his child

evidence presented that Father sent letters or gifts to the child, and he has not seen the child since July of 2011. Father did not maintain contact with his social workers, the two individuals in the best position to help him achieve his goals and to keep him

and

128, lines 120-16). Therefore, the Court found that Father had not utilized the resources available to him to the best of his ability.

Trial Court Opinion, 3/11/14, at 6-7.

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evidentiary hearing, Akilah Owens, the DHS caseworker assigned to the

family testified that the agency initially desired to place S.E.J. and her half-

sister with Father but his incarceration ultimately thwarted those efforts.

N.T., 1/8/14, at 16-17. She stated that following his incarceration, Father

contacted the agency on a couple of occasions during 2011 and 2012 to

direct the agency to place S.E.J. with his parents. Id. at 18, 27-28. He also

informed DHS of the programs available to him at the prison. Id. at 48.

She further elucidated that Father left one telephone message with DHS,

wherein he requested that DHS transport S.E.J. to the prison so that she

could attend his planned graduation from a parenting class. Id. at 38.

Ms. Owens explained that the request was not fulfilled, however, because

Father had previously declined visitation with his daughter and the agency

medically able to visit the prison. Id. at 39.

Zakiah Snead, the JFCS foster care supervisor, also testified during the

evidentiary hearings. She stated that her first contact with Father did not

occur until December 2013, even though she mailed correspondence to his

prison address during 2011 and 2012. Id. at 84. None of the

correspondence was returned as undeliverable. Id

contact with Ms. Snead related to his one request for visitation with S.E.J. in

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conjunction with his expected graduation from the prison parenting program.

Id. at 85-

rebuff of any visitation. Id. at 94. Ms. Snead explained that she could not

collect the required authorizations and documentation within the brief period

Id. at 94-96. In

addition to refusing visitation with S.E.J., Father failed to send Ms. Snead

any correspondence about his case or give her letters to forward to S.E.J. at

her foster home Id. at 86.

With regard to the lack of physical contact with S.E.J. since July 2011,

Ms. Snead relayed that Father reportedly called Paternal Grandfather and

Mother on their mobile phones during their respective visitations with S.E.J.

Id

Ms. Snead was unable to determine if those telephone conversations were

appropriate. Id. at 97. Likewise, Ms. Snead testified that Mother attended

only forty-five percent of her scheduled visitations with S.E.J., and on the

few occasions that Mother did attend the supervised visitations, she was

high on drugs sixty-five percent of the time. Id. at 79, 92-93. While the

record supports that there was some telephone contact between Father and

S.E.J. during her visits with Mother and Paternal Grandfather, the nature and

frequency of these surreptitious conversations cannot be substantiated.

Rather, the certified record confirms that Father contacted DHS on a

few occasions over the three-year period that S.E.J was in placement.

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Those contacts included correspondence regarding the FSP and his goals

under that plan. Father rebuffed the court-ordered visitation with his

daughter at the prison, and he made a solitary telephone call to DHS.

Moreover, he failed to contact the foster care social worker until 2013, and

then he simply requested a special accommodation so that S.E.J. could

attend his planned graduation from parenting class. He failed to give the

foster care social worker any gifts, letters, or cards to forward to his

daughter.

This case is not a scenario where an incarcerated parent cultivated a

relationship with his daughter despite the obstacles of incarceration.

Instead, throughout this case, including the six months that are most critical

to the §2511(a)(1) analysis, Father was content to delegate his parental

responsibilities to Paternal Grandfather.2 Father did not correspond with

DHS regularly or contact JFCS at all. He failed to contact his daughter

through proper channels or send any cards or gifts to the agency or her

foster home to celebrate birthdays and major holidays. At most, Father

completed two prison programs, neither of which was documented by a ____________________________________________

2 Father testified that he gave Paternal Grandfather items for S.E.J.,

reading the book. N.T., 1/8/14, at 128-130. The trial court considered

at 10- determinations of weight and credibility. See In re R.L.T.M., supra at 191- 192. is supported by competent ).

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certificate of completion, and he apparently spoke with his then-five-year-

old daughter on a makeshift party line during her visitations with Paternal

Grandfather and Mother. As noted, however, the frequency and nature of

those contacts are unknown. In light of the foregoing evidence and our

Father failed to exercise reasonable firmness to overcome the obstacles

presented by incarceration in attempting to establish a relationship with

S.E.J.

Having concluded that the trial court did not err in finding that DHS

satisfied its burden pursuant to 23 Pa.C.S. § 2511(a)(1), we next review the

While the Adoption Act

does not mandate that the trial court consider the effect of permanently

severing parental bonds, our case law requires it where a bond exists to

some extent. See In re E.M., 620 A.2d 481, 485 (Pa. 1993).

-effect analysis depends upon the

circumstances of a particular case. In re K.Z.S., 946 A.2d 753, 763

(Pa.Super. 2008).

bond with his child is a major aspect of the § 2511(b) best-interest analysis,

it is nonetheless only one of many factors to be considered by the trial court

when determining what is in the best interest of the child. In re K.K.R.-S.,

958 A.2d 529, 535-536 (Pa.Super. 2008). Indeed, the mere existence of an

emotional bond does not preclude the termination of parental rights. See In

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re T.D.

parental rights was affirmed where court balanced strong emotional bond

As we explained in In re K.Z.S., supra at 763 (emphasis omitted),

In addition to a bond examination, the court may equally emphasize the safety needs of the child under subsection (b), particularly in cases involving physical or sexual abuse, severe child neglect or abandonment, or children with special needs. The trial court should also examine the intangibles such as the love, comfort, security and stability the child might have with the foster parent. Another consideration is the importance of continuity of relationships to the child and whether the parent child bond, if it exists, can be severed without detrimental effects on the child. All of these factors can contribute to the inquiry about the needs and welfare of the child.

See also In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010) (

can emphasize safety needs, consider intangibles, such as love, comfort,

security, and stability child might have with the foster parent, and

importance of continuity of existing relationships).

Instantly, the trial court concluded that severing the parental bond and

See Trial Court

Opinion, 3/11/14, at 8, 11-12. Relying upon testimony proffered by

Ms. Owen and Ms. Snead during the hearing, the trial court found that S.E.J.

shared a meager bond with Father that was based upon their limited

telephone contact. Id. at 8-11. The court continued that the meaningful

parent-child relationships in this case were between S.E.J. and her pre-

adoptive foster parents, who satisfied her developmental, physical, and

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emotional needs. Id. at 9-11. After reviewing the pertinent testimony, the

trial court reasoned,

While there was some evidence presented that Father has had phone contact with S.E.J. while incarcerated, the Court found it to be insufficient to create a parent/child bond. When asked about his efforts to maintain contact with his daughter

things in my Dad's hands because I was in jail and there wasn't really wasn't much I could do." (N.T. 1/8/2014, p. 128. lines 12- 16). Father testified that he recently sent a book and a DVD showing him reading the book to his daughter. (N.T. 1/8/2014, p. 129, lines 3-16).

Despite some efforts by Father to maintain contact with his child, the evidence established that S.E.J. was well-cared for and bonded to her foster family. As the agency social worker testified, the foster parents are the only family the child knows.

The Court concluded that S.E.J. would not suffer irreparable harm if Father's rights were involuntarily terminated, that she would suffer harm were she to be removed from her foster family, and adoption would be in the best interest of the child.

Id. at 10-11.

Our review of the certified

Ms. Owens testified that S.E.J. was approximately two years old when the

child was removed from Mother and that Father did not have any contact

with his daughter since that date other than intermittent telephone contact.

N.T., 1/8/14, at 41-42. Ms. Owens also indicated that she observed S.E.J.

approximately twenty-four occasions. Id. at 40. She characterized the

foster home as loving, nurturing, and structured, and opined that

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have a negative effect on the child. Id. 40-42.

Similarly, Ms. Snead testified that there would be no negative effects

upon S.E.J. if the parental rights of Father were terminated, id. at 89, and

opined that adoption was the proper goal for the child. Id. at 90. In

contrast to the paltry connection S.E.J. has with Father, Ms. Snead stated

that the foster parents care for S.E.J. as their own and she described their

relationship as follows.

[She is] very bonded to [her] foster family, call[s] them Mom and Dad. [She] ha[s] been there . . . since she was in Pampers and she is now walking around. That is all she knows, the foster parents. . . . [She] turn[s] to them for nurture, [lies] on their shoulder, cry, help, that is who [she] turn[s] to. They are very bonded.

Id. at 88-89.

Mindful of the additional factors that we stressed should be

emphasized during the needs-and-welfare analysis in In re K.Z.S., supra at

beneficial

needs and welfare.3

____________________________________________

3 In addition to the testimony cited by the trial court, we observe that it is

(Footnote Continued Next Page)

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For all of the foregoing reasons, affirm the trial court order terminating

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2014

_______________________ (Footnote Continued)

beneficial that she and her older half-sister share the same pre-adoptive foster home.

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