Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: A.M., A MINOR [1] IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: L.M., FATHER
No. WDA 2016 Appeal from the Order June 13, 2016 In the Court of Common Pleas of Beaver County Juvenile Division at No(s): CP -4 -DP- 0000047 -2015, NO. BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.* FILED JANUARY 17, 2017
MEMORANDUM BY MOULTON, J.: L.M. ( "Father ") appeals from the June 13, 2016 decree entered
Beaver County Court of Common Pleas terminating parental rights A.M. ( "Child "), born May affirm.
Since shortly after Child's birth, Children Youth Services ( "CYS ") had an active regarding Child due to Mother's addiction to Vicodin Father's homelessness. On May 29, 2014, filed emergency motion for protective custody of Allegheny County. On 30, 2014, Child ordered remain at the Families United ( "FUN ") foster home, and on June Child was adjudicated dependent Mother. Because
* Retired Senior Judge assigned to the Superior Court. neither parent was capable of caring Child, Child was placed with Mother's aunt, M.E., and partner, K.V.
At June 16, 2014 dependency hearing, Father, who was represented counsel, failed to appear, and Child was adjudicated dependent as Father.' The trial court found criminal history included 10 years' incarceration for involuntary deviate sexual intercourse and corruption minor. Father classified as Megan's Law offender and required attend sexual offender treatment properly care for Child. Furthermore, trial court found tested positive for tetrahydrocannabinol ( "THC ") on June 2, 2014. At the conclusion of the hearing, the ordered Father to: become clean and sober; attend a drug alcohol evaluation recommended treatment and screenings; attend supervised visitations with Child once per week; attend sexual offender treatment; obtain safe appropriate housing.
At the October 27, permanency review hearing, the trial court found voluntarily reduced visits with hour per week, continued to refuse sexual offender treatment, tested positive THC. next hearing held on January 2015, which Father did attend. trial court found no compliance the permanency plan
' Although generally child adjudicated dependent to both parents at the same hearing, the adjudicated dependent as Mother June based stipulation deferred Father's contested adjudicatory hearing until June 16, 2014.
J-S92028-16 found Father had not attended visits with Child since November 24, The next hearing was April 10, 2015, which Father did attend.
The court again found no compliance asked Father why was not addressing his goals. Father responded he had "no time to run around."
On August 24, 2015, the case was transferred Beaver County because Mother had moved. On October 13, 2015, permanency review hearing was held, which Father attend. Because Mother was making progress, the trial court reunified Child and Mother date. Three other permanency review hearings were held, none of which Father attended. On April 4, 2016, filed motion requesting returned foster care, because Mother had relapsed to drug alcohol abuse, struggled with mental health issues, was homeless. The trial court granted the motion.
On May 2016, the held permanency review and goal change hearing. This was the first hearing in Beaver County Father attended. court explained to Father the matter was urgent because Child been in placement of the last 22 months. trial continued the until June 13, so time complete parenting evaluation obtain lawyer. At the June 13, 2016 hearing, trial court made the following findings: provided the family service plan from Beaver
County February 2016. [It substantially same plan plan from Allegheny County.] He informed numerous times of right counsel, but never completed application to have lawyer appointed until first appeared court. From inception of the case, both Allegheny Beaver -3-
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County, Father resisted any involvement from CYS, refused to attend any evaluations or services.
Among the tasks Father was to complete in the Family Service Plan were a parenting evaluation sexual offender treatment. The parenting evaluation was part of the Family Service Plan since August 2015. Father never attended the evaluation the initial referral was closed. referral for a parenting evaluation was made again in May the evaluation was scheduled for Father on two separate occasions. The case worker attributed first missed appointment miscommunication, because when she went pick up Father following the visit with the child, he was there. He had gone home. Apparently, he claimed that he not know whether he ride to the appointment, although the parenting evaluator confirmed with him the day before she would be seeing him. The second appointment was cancelled because Father overslept. appointment was scheduled for 12:30 p.m. he was be picked up in Monaca 12:15 p.m. Father never called or the evaluator explain why he wasn't there time. Parenting evaluations can take months schedule. In this case, accommodations were made for Father to have two opportunities, very quick timeframe, be able to complete the evaluation prior the hearing, and he missed them both.
It was expected that the parenting evaluation would reveal other services might necessary the parents complete. It well- rounded evaluation talks about how the parent was raised child, marital history, drug alcohol use[,] me[n]tal health, criminal history, etc. At the time of the hearing, however, still not completed the parenting evaluation. was offered eight visits with [Child] since last
time he appeared He missed five visits attended three.
Father claimed he was not involved minor throughout because he homeless several months. Father homeless for approximately first 9 months case, which lived car. However, admitted back on his feet for -4-
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past year, still visit regularly or attend services. He has never [Child] care, for the past year, at least, has her at home, even for a visit, unless Mother took there during the brief period of reunification.
See 1925(a) Opinion, 9/1/16, ( "1925(a) Op. ") (unpaginated) (internal citations footnotes omitted).
On July 2016, Father timely filed a notice of appeal. Father raises the following issue:
Whether abused its discretion and /or erred a matter of law determining the agency, [CYS], established clear convincing evidence parental rights of [Father] should terminated pursuant Pa.C.S.A. § 2511? Br. 4. review court's order terminating parental rights an abuse of discretion. In re Adoption of S.P., 47 A.3d (Pa. 2012). An abuse discretion "does result merely because the reviewing court might have reached different conclusion. Instead, decision may be reversed abuse of discretion only upon demonstration manifest Id. unreasonableness, partiality, prejudice, bias, or ill- will." (internal citations omitted). Pennsylvania Supreme Court explained the reason for
applying particularly deferential standard decisions:
[U]nlike trial courts, appellate courts are not equipped make the fact -specific determinations cold record, where the judges are observing parties during relevant hearing often presiding over numerous other hearings regarding the parents. Therefore, even -5-
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where the facts could support an opposite result, as is often the dependency and termination cases, an appellate court must resist the urge to second guess and impose its own credibility determinations and judgment; instead we must defer the trial judges so long as the factual findings are supported by the record the court's legal conclusions are not the result of an error of law or abuse of discretion.
Id. at 826 -27 (internal citations omitted). At the same time, "[t]he burden of proof is on the party seeking termination establish by clear convincing evidence the existence of grounds doing so." In re Z.P., 994 A.2d 1108, 1116 (Pa.Super. 2010).
Termination of parental rights is governed by section of the Adoption Act, 23 Pa.C.S. § 2511, which requires bifurcated analysis.
Initially, the focus the conduct of the parent. party termination must prove clear convincing seeking evidence the parent's conduct satisfies the statutory grounds for termination delineated Section 2511(a). Only if the court determines the parent's conduct warrants or her parental rights does court engage in 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 welfare analysis concerns the nature status of the emotional bond between parent child, with close attention paid the effect permanently severing any such bond.
In re L.M., 923 A.2d 505, (Pa.Super. 2007) (citations omitted). found two grounds for termination of Father's parental rights, 23 Pa.C.S. §§ 2511(a)(2) (8). However, we need only agree court's determination subsection of section 2511(a) order affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
J-S92028-16 banc). Thus, we will analyze the court's decision terminate under section 2511(a)(2), which provides:
(a) General rule. --The rights parent regard a may be terminated after petition filed any of the following grounds:
* * * (2) repeated continued incapacity, abuse, neglect or refusal of the parent has caused child be without essential parental care, control or subsistence necessary for physical or mental well -being the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will be remedied by the parent. 23 Pa.C.S. §§ 2511(a)(2). To terminate parental rights pursuant to section 2511(a)(2),
the following three elements must be met: (1) repeated continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused child to be without essential parental care, control or subsistence necessary [her] physical or mental well- being; (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not remedied.
In re Adoption of C.D.R., A.3d 1216 (Pa.Super. 2015) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003)).
Father contends present clear convincing evidence meet elements section 2511(a)(2). Br. 9. does dispute he failed comply with the Family Service Plan; rather, argues now willing comply. Id. -10. maintains failure attend scheduled supervised visits was based travel demands occasioned the distance lived from
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J-S92028-16 visitation site. Id. at He further suggests that Child could live his home with his two other children. Id. Finally, Father maintains that CYS has not proven that he unwilling remedy neglect. Id.
In its opinion, the trial court set forth its reasoning for finding grounds for termination under section 2511(a)(2):
[F]rom the inception of this . . outright . refused to attend sexual offenders' treatment. He believed treatment was irrelevant that he did not need to attend. He was informed at the of the adjudication hearing, June treatment was necessary. As the final hearing June 13, 2016, two years later, he begun treatment. His refusal follow the left [Child] without essential family service plan has parental control necessary for well- being. court cannot place Father, who has conviction for involuntary deviant sexual intercourse with minor, before completes this treatment. For more than two years, the cause of the neglect or refusal attend treatment was [sic] remedied Father, court no indication, other than Father's last minute will ever complete promise attend, treatment necessary reunification.
1925(a) Op. 8 -9 (internal citation omitted). In addition, Father failed attend the parenting evaluation, even though it was scheduled more than one occasion provided transportation. Id. -6. We conclude abuse its discretion when it found section 2511(a)(2) warrants of Father's parental rights.2 acknowledge distance issue Father; however, that merely factor court's determination. In terminating (Footnote Continued Next Page)
J-S92028-16 next turn section 2511(b), which we have described as follows:
Section 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, emotional needs and welfare of the child. As this Court has explained, Section 2511(b) does explicitly require bonding analysis and the term 'bond' is not defined the Adoption Act. Case law, however, provides that analysis of the emotional bond, if any, between parent and child is factor be considered as part of our analysis. While parent's emotional bond with or child is major aspect of the subsection 2511(b) best - interest analysis, it is nonetheless only many factors be considered the court when determining what the best interest of the child.
[I]n addition bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such love, comfort, security, stability the might have with foster parent. Additionally, Court stated court should consider importance of continuity relationships whether any existing parent -child bond can severed without detrimental effects the child.
C.D.R., A.3d at 1219 (quoting In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)) (citations internal quotations omitted).
Father claims failed to present clear convincing evidence regarding the emotional bond between Father Child and the effect of permanently severing the parental bond. Father's Br. Father states not obtain counsel until and did have adequate review his case counsel prior hearing. Id. (Footnote Continued) parental rights, the focused primarily Father's failure complete the parenting evaluation sexual offender treatment.
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Father contends after consulting with counsel, made reasonable request for comply with and the Family Service Plan. Id.
The trial court considered the developmental, physical, and emotional needs welfare of the child. The trial court found it could not entrust Child with Father without the required evaluation treatment. 1925(a) Op. at 10. It further stated not been involved Child's life resisted any services two years. Id. The trial court found it Child's best interest remain without permanent home, that neglected his parental duties, of parental rights appropriate to serve needs provide permanency. Id. at 9 -10; Involuntary Termination Parental Rights Decree, 6/13/16.
Contrary Father's contentions, trial consider the effect on severing the parental bond, if any existed. court stated, "[Father] done very little foster [a] relationship. From very beginning of the case, voluntarily reduced his visits once week for hour." 1925(a) Op. at court went explain how constant refusal to attend the parenting evaluation sexual offender treatment indicated taking the necessary steps Child placed his care. Id. -10. Finally, the stated that "[Father's] bond daughter strong one, due to lack of visits. Severing the bond at this point will not have negative impact child." Id. 7.
- - As observed, Father multiple opportunities to retain counsel chose wait until of 2016 to do so. His conscious decision complete the parenting evaluation or sexual offender treatment for two years led termination parental rights. Father argues all asking is opportunity remain in daughter's life, Father's Br. but fails acknowledge he has been given, and squandered, many such opportunities. "[A] parent's vow cooperate, after long period of uncooperativeness regarding the necessity of availability of services, may properly rejected untimely or disingenuous." In re A.L.D., 797 A.2d 326, 340 (Pa.Super. 2002). been placement most of her life, we agree trial court she should be left linger until Father decides will truly comply. Child deserves permanency family can provide with the care attention she needs. conclude abuse its discretion finding parental rights would best serve Child's
developmental, physical, emotional needs welfare.
Decree affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 1/17/2017
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