In re P.Z., a Minor, Appellee. Appeal of M.L., Father.
Superior Court of Pennsylvania.
Argued Jan. 27, 2015. Filed April 10, 2015.
113 A.3d 840
At some point, Fernandez saw Jacquez discard a black trash bag into the dumpster. When police retrieved the bag, they found a bank deposit bag from the store, bills addressed to the store, cigar wrappers and construction tools. Further investigation revealed Jacquez‘s fingerprints and Nieves’ palm print on the items.
“Circumstantial evidence may provide proof of [a] conspiracy. The conduct of the parties and the circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008, 1017 (Pa.Super.2005). The evidence cited above was sufficient, if believed, to establish that Jacquez conspired to commit a burglary at La Esquina Famosa.
Judgment of sentence affirmed.
In re P.Z., a Minor, Appellee.
Appeal of M.L., Father.
Superior Court of Pennsylvania.
Argued Jan. 27, 2015.
Filed April 10, 2015.
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
OPINION BY BOWES, J.:
M.L. (“Father“) appeals from the order terminating his parental rights to his minor child, P.Z. We affirm.
P.Z. was born in Pittsburgh, Pennsylvania, during February 2012. He has never been in the care of either parent. At birth, M.Z. (“Mother“) tested positive for methadone and marijuana.1 P.Z. also had methadone in his system and displayed withdrawal symptoms for approximately two months. Upon discharge from the hospital, P.Z. was transferred to the Children‘s Home. Allegheny County Children Youth and Family (“CYF“) obtained emergency custody of P.Z. during April 2012, and the juvenile court adjudicated him dependent the following month. When P.Z. was three-months old, the juvenile court placed him in his current, pre-adoptive foster home.
Father resides in Arizona, the state where P.Z. was conceived. When Mother returned to Pennsylvania to give birth, Father remained in Arizona. CYF contacted Father during May 2012. Father requested custody and visitation with his son and stated that he would commence the required measures in Arizona to facilitate that contact. Father not only failed to initiate those processes, but he also neglected to participate in the adjudication of his son‘s dependency. Nevertheless, since P.Z.‘s original permanency goal was reunification, CYF developed a Family Service Plan (“FSP“) for Father and advised him
Marsha C.H. Grayson, Pittsburgh, for appellant.
Amy L. Berecek, Pittsburgh, for appellee.
* Retired Senior Judge assigned to the Superior Court.
Although Father proclaimed his certainty of P.Z.‘s lineage, he failed to execute an acknowledgement of paternity at the outset of the dependency proceedings. Instead, Father waited until September 2012, when he obtained the results of a court-ordered paternity test confirming his genetic relationship with P.Z. Over the next twenty-one months, CYF exhausted substantial resources in order to reunify P.Z. with Father, including providing Father with bus fare from Arizona on one occasion and airfare and hotel accommodations for at least three other five-day visitations with P.Z. Nonetheless, Father‘s compliance with the FSP goals was minimal. He ignored the requests of the caseworker assigned to the case in Arizona in order to determine if his home was a suitable placement option, and he did not execute documents, submit his fingerprints for a criminal background check, or complete the necessary in-home visits. Likewise, Father failed to satisfy the parenting component of the FSP and it remains unclear whether the anger management course that he completed satisfied his goal relating to domestic violence.
In the meantime, during July 2013, Neil C. Rosenblum, Ph.D., the court-appointed evaluator, performed the first of three interactional evaluations between P.Z. and his pre-adoptive foster mother. Dr. Rosenblum concluded that, in light of the fact that P.Z. was near the zenith of the attachment process with the foster mother and mindful of the excellent care that she provided the child since May 2012, the recommended disposition of the dependency proceedings was adoption. Following the August 2013 permanency review hearing, during which the juvenile court noted Father‘s continued lack of progress toward reunification, the juvenile court directed CYF to file a petition to terminate Father‘s parental rights. Instead, CYF initiated a “permanency round table,” i.e., an internal audit including top CYF officials, supervisors and caseworkers, as well as representatives from the Alliance For Infants and Toddlers and The Annie E. Casey Foundation.2 See N.T., 6/25/13, at 212-213. The result of the internal audit was to increase CYF‘s reunification efforts despite the juvenile court‘s order and Father‘s documented failures. Accordingly, CYF declined to file the petition for termination at that juncture.
CYF did not file the underlying petition to terminate parental rights until February 7, 2014, six months after the juvenile court‘s initial directive and upon the court‘s additional findings of minimal progress by Father and reiterations of its instruction to the agency. Three months after the agency complied with the juvenile court‘s edict to file the petition to terminate Father‘s parental rights, CYF attempted to withdraw the petition, and when that was fruitless, it filed a motion for a continuance seeking to postpone the hearing pending its continued reunification efforts.3
[T]he Court having listened to arguments of all counsel, finds persuasive that the Adoption and Safe Families Act,4 which requires the state to file a [p]etition for TPR [(termination of parental rights)] unless one of the three exceptions [was] in fact applicable to this case, finds that the Motion to Withdraw the Petition is denied. That the Adoption and Safe Families Act could not possibly have meant that the state‘s filing should be a pro forma filing, and in fact[,] a filing would assume that the state would proceed on a TPR.
N.T., 6/25/14, at 18.
Thus, having just sought to withdraw its petition to terminate Father‘s parental rights, CYF dutifully presented testimony from Dr. Rosenblum and the family‘s caseworker and then rested its case. The trial court then continued the hearing until July 21, 2014. When the parties reconvened, Father confirmed that CYF had rested its case-in-chief and then moved for dismissal due to the agency‘s failure to establish the statutory grounds for termination under
Father complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise statement of errors complained of on appeal concomitant with his notice of appeal. The Rule 1925(b) statement raised five issues, which Father reiterates on appeal as follows:
- I. The [t]rial [c]ourt erred and/or abused its discretion in moving forward with the Petition to involuntarily terminate the parental rights of [Father] when the [c]ounty sought to withdraw its [p]etition because the county did not feel that involuntarily terminating the parental rights of [Father] would best serve the needs and welfare of the minor child P.Z.;
- II. The [t]rial [c]ourt erred and/or abused its discretion in denying Appellant‘s Motion to Dismiss the Petition to Involuntarily Terminate the Parental rights of [Father] at the close of [CYF‘s] [c]ase in [c]hief;
- III. The [t]rial [c]ourt erred and/or abused its discretion in finding that [CYF] met [its] burden of proof by clear and convincing evidence that the parental rights of [Father] should be terminated pursuant to
23 Pa.C.S.A. [§] 2511(a)(2) ,(5) ,(8) ; - IV. The [t]rial [c]ourt erred and/or abused its discretion in finding that [CYF] met [its] burden of proof by clear and convincing evidence that [it] provided reasonable services to [Father] sufficient to timely reunify [Father] with his minor child P.Z.;
- V. The [t]rial [c]ourt erred and/or abused its discretion in finding that [CYF] met their burden of proof by clear and convincing evidence that terminating the parental rights of [Father] would best meet the needs and welfare of P.Z. pursuant to
23 Pa.C.S.A. [§] 2511(b) [.]
Father‘s brief at 1-2.
While Father presents five distinct issues in his statement of questions presented, the argument section of his brief reduced those issues into three arguments, two of which are redundant.6 First, Father assails CYF‘s effort in providing him services toward reunification and complains that the trial court erred in denying the agency‘s motions to withdraw the petition on this basis. Next, Father challenges the sufficiency of the evidence that CYF adduced to establish the statutory grounds to terminate Father‘s parental rights. As a sub-issue, Father argues that the court erred in denying his motion to dismiss the case at the close of the agency‘s case-in-chief. Finally, reiterating his initial argument, Father posits that considering his indigent status and responsibilities in Arizona, the court erred in finding
At the outset, we observe that the trial court, guardian ad litem, and CYF all contest Father‘s ability to challenge the trial court‘s decision to deny CYF‘s motion to withdraw the petition. The focus of this collective position is that Father did not file the underlying motion to withdraw and CYF, the party that filed the pertinent motion, declined to appeal from the order terminating Father‘s parental rights. The trial court adds that, by the close of the evidentiary hearing, CYF altered its position and, in fact, argued in favor of termination. Thus, the court and both appellees argue that Father does not have standing to raise this argument on appeal.
We reject the bare claim that Father lacks standing on appeal to challenge the trial court‘s denial of the agency‘s motion to withdraw the petition. Notwithstanding the absence of any citation to legal authority in support of this collective position, we observe that, as the aggrieved party appealing a final order, Father can challenge all previous interlocutory orders. See Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa.Super.2008) (“It is established that a notice of appeal filed from the entry of the final order in an action draws into question the propriety of any prior non-final orders.“). More importantly, the record bears out that, contrary to the foregoing assertions, Father, in fact, “join[ed] in asking the petition be withdrawn.” N.T., 6/25/14, at 4-5. In light of Father‘s explicit request, the fact that CYF declined to appeal the order terminating parental rights or argue that the trial court erred in denying the motion to withdraw is irrelevant. Father joined the agency‘s motion to withdraw, that joint request for relief was denied, and Father now seeks to rectify what he perceives as the trial court‘s error. Hence, we address the merits of Father‘s argument.
The crux of Father‘s primary position is that, since CYF did not provide him the necessary services to achieve reunification, the juvenile court should not have applied a rote consideration of the ASFA timing mechanisms in denying the agency‘s motion to withdraw the petition to terminate parental rights. Father‘s position relies upon the portion of the internal audit wherein the agency determined that additional services were needed to reunify Father with P.Z. He adds that the circumstances of his life in Arizona and the seven-month delay in confirming paternity exacerbated CYF‘s deficiencies. Essentially, Father argues that he fit within a statutory exception to the Juvenile Act‘s time constraints outlined in
Pursuant to
- (9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the child‘s parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless:
- (i) the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child;
- (ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental
(iii) the child‘s family has not been provided with necessary services to achieve the safe return to the child‘s parent, guardian or custodian within the time frames set forth in the permanency plan.
The statute does not establish a litmus test that requires a juvenile court to alter the course of reunification due simply to the amount of time a child has been in placement. See In re R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (2010). It does, however, create a mechanism for keeping juvenile courts alert to the potential for foster care drift, i.e., “where children [languish] in the foster care system while their parents unsuccessfully [attempt] to regain custody.” Id. at 1186. Thus, once a child‘s placement in foster care reaches the fifteen-month threshold, juvenile courts are mandated to query whether the agency has initiated proceedings to terminate parental rights. In In re D.C.D., — Pa. —, 105 A.3d 662, 674 (2014), our Supreme Court highlighted the significance of
Herein, following the August 26, 2013 permanency review hearing, the trial court entered an order in compliance with
In denying CYF‘s motion to withdraw the involuntary termination petition, the trial court reasoned that it would be unreasonable to require the agency to file a petition for termination yet permit it to withdraw the petition absent one of the enumerated exceptions. As none of the exceptions was apparently applicable and since P.Z. had been in placement for twenty-seven months by that juncture, the court denied the agency‘s petition to withdraw.
We find no basis to disturb the trial court‘s determination. The certified record reveals that CYF expended substantial resources on its reunification efforts. The agency contacted Father in Arizona prior to the adjudication of dependency. N.T., 6/25/14, at 118. Father declined to participate in the adjudication hearing and failed to execute an acknowledgment of paternity. Id. at 135. He did not submit to the DNA test verifying P.Z.‘s paternity until September of 2012, seven months later. Id. In the meantime, Father was not eligible to receive services. However, CYF
Once paternity was established, CYF referred Father to an Arizona child service agency under the Interstate Compact for the Placement of Children (“ICPC“),
Despite the foregoing defaults, which proved insurmountable for Father, CYF provided him transportation and hotel fare to meet with P.Z. The first meeting occurred during April 2013, when P.Z. was fourteen months old. Id. at 142-143. The agency also established roughly two months of online contact between Father and P.Z. via Skype; however, that contact terminated abruptly after Father broke his tablet and failed to inform CYF of his unavailability. Id. at 164-165. After the trial court ordered CYF to file a petition to terminate parental rights due to Father‘s demonstrated lack of initiative, the agency increased its reunification efforts. Id. at 165-167. It delayed filing the petition for six months, and in the meantime, it provided Father extensive services, including airfare to Pittsburgh and accommodations to visit with P.Z. during November of 2013 and January, March, and April of 2014. Id. at 166, 169-171. CYF also reinitiated the Skype contacts in March 2014. Id. at 166. Additionally, based upon Father‘s ephemeral interest in relocating to Pittsburgh, the agency referred him to the Urban League and Holy Family for assistance in locating and obtaining housing. Id. at 176-177. However, as of the date of the termination proceedings six to eight months later, Father had yet to commit to relocating to Pittsburgh. Id. at 178.
The foregoing evidence supports the trial court‘s determination that CYF made reasonable efforts to promote reunification. Father‘s argument that he was not provided with necessary services to achieve reunification within the fifteen-to-twenty-two-month time frame is meritless. Additionally, we observe that, contrary to Father‘s position, the trial court‘s denial of the petition to withdraw was not tantamount to an order terminating his parental rights. Indeed, CYF was still required to prove by clear and convincing evidence the statutory grounds for termination under
Next, we encounter Father‘s contention that the trial court erred in denying his motion to dismiss CYF‘s petition at the close of the agency‘s case-in-chief. This issue has two components. First, Father argues that the court erred as a matter of law in concluding that it was required to consider evidence adduced by the guardian ad litem prior to ruling on the agency‘s motion. Second, Father ar-
Initially, we reject Father‘s assertion that the trial court denied his motion to dismiss based upon its inaccurate belief that it had to hear evidence from the guardian ad litem before assessing the petition. Indeed, in complete contrast to Father‘s assertion that the trial court permitted CYF to share its statutory burden of proof with the guardian ad litem, the record makes clear that the trial court assessed the agency‘s evidence independently and concluded that the petition to terminate Father‘s parental rights was supported by clear and convincing evidence. Significantly, the court rendered its conclusion before Father or the guardian ad litem introduced any evidence in this case. After discussing the agency‘s burden of proof and the guardian ad litem‘s role in the termination proceedings, the trial court had the following exchange with Father‘s counsel:
[Father‘s Counsel]: Your honor, I respectfully—I understand very well what the Court stated. However, again, it is not the [guardian ad litem‘s] petition, it is not the [guardian ad litem‘s] burden to prove by clear and convincing evidence, so that is the grounds and especially if the Court states that the Court did not find [CYF‘s] testimony credible—
The Court: I am talking about the [CYF] caseworker. I did not find the [CYF] caseworker‘s testimony credible about her opinion about what she believes is the best interest of this child. I did not find her credible. But other than that, I believe that there are sufficient facts that [CYF] has proven based on the facts of this case and what has happened for [P.Z.] and what the father has done or failed to do, but there is clear and convincing evidence right now.
N.T., 7/21/14, at 10 (emphasis added).
As demonstrated by the foregoing excerpt, the record belies Father‘s argument that the trial court eased CYF‘s burden of proof or shifted part of it to the guardian ad litem. In reality, the trial court did not consider any evidence adduced by the guardian ad litem when it denied Father‘s motion to dismiss the termination proceedings. The court simply measured CYF‘s evidence and examined the credibility of the two witnesses that it presented. Father‘s argument is meritless.
Finally, the record sustains the trial court‘s conclusion that CYF established the statutory grounds to terminate parental rights pursuant to
(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.
....
(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, 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.
The test for terminating parental rights consists of two parts. In In re L.M., 923 A.2d 505, 511 (Pa.Super.2007), we explained:
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.
Initially, we reject Father‘s preliminary contention that the trial court erred in considering Dr. Rosenblum‘s testimony
Next, we review the merits of the court‘s decision to terminate parental rights. We need only agree with the court‘s decision as to one subsection of
We have explained our review of the evidence pursuant to
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(8) , the following factors must be demonstrated: (1) The child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa.Super.2003). Thus, in order to satisfy the requirements of
Herein, P.Z. was placed with CYF during April 2012, when the newborn displayed sustained symptoms from opiate withdrawal and Father was physically absent and unavailable to parent. The agency plainly satisfied the threshold requirement that the child be removed for at least twelve months. Furthermore, as it relates to the continued existence of the conditions that predicated P.Z.‘s removal, the certified record demonstrates that Father remains unable to provide essential parental care. Likewise, the record establishes that terminating Father‘s parental rights would best serve P.Z.‘s needs and welfare. Hence, for the reasons we discuss below, we sustain the trial court‘s conclusion that CYF satisfied its burden of proof.
During the evidentiary hearing, Dr. Rosenblum testified that between July 2013 and April 2014, he conducted two interactional evaluations between P.Z. and Father and performed one individual evaluation with Father.7 N.T., 6/25/14, at 23.
Dr. Rosenblum found Father‘s parenting to be limited and marginal. Id. at 67. He characterized Father‘s parenting style as passive, nonresponsive, and incapable of providing P.Z. structure. Id. Dr. Rosenblum highlighted that Father failed to engage P.Z. in learning activities or set limits during the interactional evaluations. He also observed that, although Father was pleasant and used appropriate tones with P.Z., Father was not proactive, instructional, or capable of establishing behavioral boundaries. Id. at 67-68. Dr. Rosenblum stated, “he did not set limits, [he] allowed [P.Z.] to climb dangerously [and] throw toys indiscriminately.” Id. Thus, Dr. Rosenblum outright rejected the position that Father demonstrated sufficient parenting abilities. He stated, “So I would definitely disagree with any conclusion that father displays age appropriate parenting skills for [P.Z.]” Id. at 68.
As it relates to P.Z.‘s wellbeing and the absence of a meaningful parent-child bond, Dr. Rosenblum stressed that, while P.Z. was familiar with Father, no attachment existed. Id. at 34, 40. He explained, “There is no history of father engaging in a caregiving relationship with [P.Z.], having to take responsibility for him over an extended period of time.” Id. at 40. He continued, “An attachment comes out of a care giving role and out of a repeated history of living and continuing a relationship with someone and having them meet a variety of developmental needs over a period of time, [such as] what I observed between [P.Z.] and foster mother.” Id. at 40-41. For example, Dr. Rosenblum referenced an incident during one of the father-son interactional evaluations during which P.Z. began requesting his foster mother. Dr. Rosenblum testified that Father did an adequate job of consoling the child; however, the incident was evidence that P.Z. “had not identified father as a surrogate or alternative caregiver who could calm him[,] reassure him and make him feel fully comfortable.” Id. at 32. He opined that the parent-child relationship had not started early enough for P.Z. to develop an attachment to Father. Thus, Dr. Rosenblum concluded that terminating Father‘s parental rights best served P.Z.‘s needs and welfare and that, in light of the nurturing, supportive, and secure environment that the pre-adoptive foster mother provides, the evidence warranted proceeding with adoption. Id. at 41-42, 50. Tellingly, when Father‘s counsel suggested a hypothetical possibility of utilizing subsidized permanent legal custody (“SPLC“) in lieu of adoption, Dr. Rosenblum reinforced, “in [P.Z.‘s] case[,] I believe that adoption is far more superior than SPLC.” Id. at 55.
Accordingly, for all of the foregoing reasons, we find that the record sustains the trial court‘s determination that CYF established the statutory grounds to terminate Father‘s parental rights pursuant to
Order affirmed.
Christopher JUSZCZYSZYN, Appellant
v.
Obafemi Simeon TAIWO, individually and d/b/a Lid‘s Lounge a/k/a Lid‘s Bar and Lounge a/k/a Lid‘s Bar N Lounge and Lounge 62 and CST Entertainment, Inc., individually and d/b/a Lid‘s Lounge a/k/a Lid‘s Bar and Lounge a/k/a Lid‘s Bar N Lounge and Lounge 62, Appellees.
Superior Court of Pennsylvania.
Argued Feb. 5, 2015.
Filed April 10, 2015.
Notes
ASFA was enacted to combat the problem of foster care drift, where children ... are shuttled from one foster home to another, waiting for their parents to demonstrate their ability to care for the children. This drift was the unfortunate byproduct of the system‘s focus on reuniting children with their biological parents, even in situations where it was clear that the parents would be unable to parent in any reasonable period of time. Following ASFA, Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons. See