In re Of

• Decision Date: 06 May 2014
• Docket Number: No. 1841 MDA 2013,J-A10005-14,1841 MDA 2013
• Court: Pennsylvania Superior Court
• Parties: IN RE: ADOPTION OF: A.R.B. APPEAL OF: A.B., FATHER

IN RE: ADOPTION OF: A.R.B.

APPEAL OF: A.B., FATHER

J-A10005-14

No. 1841 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

FILED MAY 6, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

Appeal from the Decree entered September 24, 2013,

Court of Common Pleas, Northumberland County,

Orphans' Court at No. Adoptee No. 4 of 2013

BEFORE: DONOHUE, ALLEN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:

A.B. ("Father") appeals from the decree entered by the Northumberland County Orphans' Court on September 24, 2013, granting the petition filed by Northumberland County Children and Youth Services ("CYS") to involuntarily terminate his parental rights to A.R.B. ("the Child") pursuant to 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). Upon review of the record and the applicable law, we affirm.¹

A brief summary of the relevant facts and procedural history are as follows. The Child was born on January 15, 2007. Orphans' Court Opinion, 12/6/13, at 1. On October 27, 2011, CYS received a referral that the Child "was found in Maryland and was taken into protective custody."² N.T.,8/28/13, at 10. Father was incarcerated at the Northumberland County Prison at the time. Id. On October 28, 2011, Father signed a voluntary entrustment agreement with CYS and the Child was placed in foster care. Id. at 7-8. On November 31, 2011, the Child was adjudicated dependent. Id. at 12.

CYS began consideration of the Child's paternal grandfather for kinship care on January 30, 2012. After a hearing on March 26, 2012, the Child moved from foster care into kinship care with paternal grandfather and his paramour and resided there until April 24, 2013. During his placement in the kinship home, the Child exhibited behavioral issues. Id. at 42-45. The Child was disruptive in school, defiant with the teacher, had a "low opinion of women," and had discipline issues at home. Id. at 42-44. Paternal grandfather's paramour had trouble managing the Child, and since paternal grandfather worked away from home for four weeks at a time, she threatened to leave paternal grandfather if the Child was not moved from the home. N.T., 8/28/13, at 51. The Child then moved back into the foster home into which he had originally been placed. Orphans' Court Opinion, 12/6/13, at 2.

While incarcerated at Northumberland County Prison, Father had five visits with the Child. N.T., 8/28/13, at 26. At the visits, the Child andFather spoke through the phone because they were separated by glass. Id. at 26-27. Father had no visits with the Child after he was moved from Northumberland County Prison. Id. at 78. One visit was attempted while Father was incarcerated at SCI Rockview, but the attempt failed because the Child was not listed on Father's visitors list. Id. at 81-82, 90. However, Father allegedly maintained contact with the Child through phone calls while the Child was placed with paternal grandfather.³ Father provided no financial support to the Child while the Child was in placement and did not send any written correspondence to the Child. Orphans' Court Opinion, 12/6/13, at 15.

Since Father was released from prison on May 28, 2013, he has only had one visit with the Child. N.T., 8/28/13, at 35. This visit occurred on July 16, 2013. Id. at 35, 135. Three other visits were planned, but Father's schedule prevented the visits from occurring. Id. at 35-36, 135.

The petition for involuntary termination of Father's parental rights presently before this Court was filed in January 2013 while the Child was placed in kinship care with paternal grandfather. Id. at 52. Father's counsel questioned a CYS caseworker on cross-examination regarding the timing of the filing since the Child was in kinship care and Father was released fromincarceration shortly thereafter. Id. at 51-52. The caseworker testified that an automatic procedural requirement mandates a petition to be filed "if the child's been in care 15 out of the last 22 months." Id. at 69. According to the caseworker's testimony, two instances where CYS is not required to file a petition for involuntary termination is when there are compelling reasons not to, such as when the parent complies with court orders to go to services and maintains housing, or when CYS does not want to disrupt a bond between the parent and child.⁴ Id. at 69-70. The CYS caseworker testified that compelling reasons were not present in this case because Father had made no progress to go to services or maintain housing. N.T., 8/28/13, at 70. Furthermore, the caseworker testified that terminating Father's parental rights would have no detrimental effect on the Child. Id. at 70-71.

On September 24, 2013, the orphans' court granted CYS's petition to terminate Father's parental rights pursuant to sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. Father timely filed a notice of appeal and a concise statement of error complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Father raises the following issue for our review:

1. Is the decision of the Orphans' Court to terminate Father's parental rights under 25 Pa.C.S.A. § 2511(a)(1), 23 Pa.C.S.A. § 2511(a)(2), 23 Pa.C.S.A. § 2511(a)(5), 23 Pa.C.S.A. § 2511(a)(8) and 23 Pa.C.S.A. § 2511(b) supported by competent credible evidence, in the best interests of the child or justified by necessity?

Father's Brief at 3.

Our standard of review in cases involving termination of parental rights is as follows:

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

In re J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013) (citing In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)). If the trial court's decision is supported by competent evidence, this Court must affirm the decision "even if the record could also support the opposite result." Id. (citing In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003)).

Involuntary termination of parental rights is governed by statute. 23 Pa.C.S.A. § 2511 et seq. Section 2511 of the Adoption Act provides, in pertinent part:

(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.

* * *

(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 6 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 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 orplacement, 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, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), (b).

In its analysis under section 2511, "the trial court must engage in a bifurcated process." In re B.C., 36 A.3d 601, 606 (Pa. Super. 2012).

The initial 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 at least one of the nine statutory grounds in section 2511(a). If the trial court determines that the parent's conduct warrants termination under section 2511(a), then it must engage in an analysis of the best interests of the child under section 2511(b), taking into primary consideration the developmental, physical, and emotional needs of the child.

Id.

Father argues that the orphans' court abused its discretion in terminating his parental rights because "he has made significant progress toward alleviating the circumstances that necessitated placement and that it is in [the Child's] best interests to maintain a relationship with him."Father's Brief at 5. After our review of the record, we conclude that the record contains competent evidence to support the orphans' court's decision and was not the result of an abuse of discretion or error of law.

In this case, the orphans' court terminated Father's rights under sections 2511(a)(1), (2), (5), (8), and (b)...