NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37
MEMORANDUM BY BENDER, P.J.E.
J.S.M. (Father) appeals from the order entered on May 16, 2016, involuntarily terminating his parental rights to his daughter, A.M. (Child), born in May of 2013.
On appeal, Father's brief provides the following questions for our review:
Father's brief at 4.
We review an order terminating parental rights in accordance with the following standard:
We are guided further by the following: Termination of parental rights is governed by Section 2511 of the Adoption Act, which requires a bifurcated analysis.
With regard to Section 2511(b), we direct our analysis to the facts relating to that section. This Court has explained that:
We have reviewed the certified record, the briefs of the parties, the applicable law, and the comprehensive opinion written pursuant to Pa.R.A.P. 1925(a) that was authored by the Honorable Katherine B. Emery of the Court of Common Pleas of Washington County, and filed on August 1, 2016. We conclude that Judge Emery's well-reasoned decision correctly addresses the issue raised by Father relating to Section 2511(a)(1), and rely on it for our review of Father's first issue.
However, for the reasons stated below, we address a limited portion of Judge Emery's decision with regard to Section 2511(b). In particular, we recognize that Judge Emery's opinion references the foster parents' willingness to have Father maintain a relationship with Child. Specifically, the trial court stated:
Trial Court Rule 1925(a) Opinion (TCO), 8/1/16, at 11 (citation to the N.T. omitted).
With reference to this portion of the trial court's decision, Father contends that the trial court "should not have considered the foster parents['] willingness to maintain contact between  [F]ather and the minor [C]hild, as there is nothing enforceable about such an agreement. Such a consideration was an improper analysis of the totality of the circumstances in this case." Father's brief at 14 (emphasis added). To support this argument, Father relies on
Again, we conclude that in its opinion, the trial court sufficiently discussed the evidence presented, specifically recognizing that no "close, strong bond" exists between Father and Child and that the sole visit between Father and Child in the ten months prior to the termination hearing occurred at the behest of the foster parents.
Separately, we note that the trial court's discussion quoted supra, relating to an Act 101 agreement, is superfluous at this point in the process as such an agreement for continuing contact "shall be filed with the court that finalizes the adoption of the child." 23 Pa.C.S. § 2735(a). Moreover, acceptance of such an agreement by the court does not occur until after a termination petition has been granted. Thus, we conclude that Father's assertions with regard to the trial court's consideration of an after-termination contact agreement are of no moment. Sufficient support for the trial court's decision appears in the record and the court's discussion of that evidence addresses Father's claims of error. Therefore, we also rely on Judge Emery's opinion for our review of Father's second issue.
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION
TRIAL OPINION PURSUANT TO PA. R.A.P. 1925(A)
This case came before the Court on a Petition for the Involuntary Termination of Parental Rights filed by Washington County Children and Youth Social Services Agency (CYS) on February 23, 2016. The petition sought to terminate the rights of J.S.M. (hereinafter referred to as "Father") to A.M. A hearing was held on May 3, 2016. Father was present and represented by counsel; the child was represented by a Guardian ad Litem appointed by the Court. Upon consideration of the facts elicited in the termination hearing, the Court found that the Petitioner, CYS, proved by clear and convincing evidence that statutory grounds for the involuntary termination of the rights of the Father exist pursuant to 23 Pa. C.S.A. §2511(a)(1) and §2511(b) and terminated the Father's parental rights on May 16, 2016. This timely appeal ensued.
A.M. was born May [REDACTED\], 2013 in Virginia. Her Mother is A.S.C. who voluntarily terminated her parental rights. (T.T. p. 14) At the time of the child's birth, the parents were living in Virginia. The Commonwealth of Virginia Child Protective Services received allegations on August 20, 2013 of drug use in the home and concern over the child's low weight. Allegations were again made to Virginia Protective Services on August 15, 2014 that the child was not being cared for properly and living in filthy conditions and the case was accepted for ongoing services. However, their case was closed in September of 2014 as the family moved to West Virginia, then to Pennsylvania. Virginia records indicated Father's involvement was minimal and that they urged him to be more involved with the child. (T.T. pp. 49-50) The Father was employed in the gas industry, working on various gas rigs. (T.T. p. 110-111).
Washington County CYS became involved with the family on February 7, 2015, when Mother was stopped for a traffic violation with the child in the car and heroin was found. (T.T. p. 47) The Mother admitted to being addicted to heroin. At the time of her arrest, Mother reached the Father by phone; he was unavailable to return home immediately as he was at a gas well rig in West Virginia. (TT. pp. 48, 83) The child was placed on that date in foster care where she has remained. (T.T. p. 19) At the time of placement the child was filthy and significantly underweight, being in the 10
Father regularly visited with the child, although he was often late. (T.T. p. 32) Father acted appropriately during the visits. (T.T. p. 51) In March of 2015, the Father had an industrial accident and lost his small finger and a small part of his hand and has been unable to work and receives Worker's Compensation. (T.T. p. 94) The Father has a history of drug abuse. Father reported he had been addicted to pain pills but had been clean for four years. (Exhibit 2) After meeting his wife, he began using drugs again and ultimately began drug treatment with Suboxone. At the hearing on June 1, 2015, CYS drug tested Father. The drug tester discovered a bladder type device strapped to Father's inner thigh that contained urine; this device was intended to be used to avoid drug detection. Father admitted to trying to tamper with the drug test, and when he provided a valid sample, he was positive for Suboxone for which he had no prescription. (T.T. p. 21).
Father began parenting classes on June 1, 2015. He completed the first part of the program but was unsuccessfully discharged as he quit the program in August of 2015. (T.T. p. 43) On August 15, 2015, the Father separated from his wife and moved back to Virginia where he lives with his brother and his wife. (T.T. p. 82) He began drug and alcohol treatment in Virginia in August 2015 for opiate addiction. (Exhibit A) His treatment includes daily Suboxone and group and individual counseling; he has been compliant with treatment. (T.T. p. 40) The Father completed a mental health evaluation in January 2016. (T.T. p. 86) Dr. Steward diagnosed him with Adjustment Disorder with Anxiety and Substance Abuse. He recommended individual and family counseling, parenting and life skills classes and continued substance abuse treatment. He opined that his prognosis was guarded and without remediation, poor. (Exhibit B) The Father began seeing a psychiatrist in March of 2016; she prescribed medication but he has not yet begun to take them. (T.T. pp. 90, 91) He has not begun family personal counseling. (T.T. p. 92) Since moving to Virginia, the Father has seen the child one time; that visit occurred when the foster parents were in Virginia over Christmas and took the child to the Father's locale for a three hour visit. (T.T. p.p. 34, 62) The Father maintains phone contact with the child approximately five times a week. (T.T. p. 72)
II. STANDARD OF REVIEW
In considering the petition, the Court utilized the standard of review that the moving party must present clear and convincing evidence of one of the grounds enumerated in the petition.
The Termination Petition alleged that Father's rights should be terminated pursuant to §2511(a)(1), (2), (5) and (8) of the Adoption Act enumerated as follows:
23 Pa. C.S.A. §2511
To satisfy the requirements pursuant to 23 Pa. C.S. §2511(a)(1), CYS must establish by clear and convincing evidence that for the six months prior to filing the petition, the Father failed to perform his parental duties or evidenced a settled purpose of relinquishing his parental claims. Although it is the six month period immediately preceding the filing of the petition that is most critical to the analysis, the Court must also consider the whole history of the case and not mechanically apply the six month statutory provision.
"Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child . . . parental obligation is a positive duty which requires affirmative performance . . . parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life."
The Court found that CYS did not establish by clear and convincing evidence the elements of §2511(a)(2), (5) and (8). The Father has been attempting to remedy the conditions that led to the removal of the child and those sections would not apply to this case.
CYS also proved that termination best serves the developmental, physical and emotional needs and welfare of the child. 23 Pa. C.S. §2511(b). The Court found that a bond existed between the Father and child but it was not a strong one. Importantly, the termination would not sever the bond. The foster parents indicated that regardless of the outcome of the termination petition, they would continue to allow the Father to have contact with the child. The foster parents visit Virginia several times a year and stated they would continue contact with the Father regardless of the outcome of the hearing. (T.T. pp. 68, 77) The foster family has fostered 35 children and strongly feels that a child cannot have too many people love her. (T.T. pp. 74, 77) The Guardian ad Litem for the child strongly supported the termination and opined that a termination was in her best interest. (T.T. p. 121)
IV. ISSUES ON APPEAL
A. The trial court erred in terminating Father's parental rights where the Agency failed to prove by clear and convincing evidence that Father evidenced a settled purpose of relinquishing parental claims to the child and failed to prove that Father refused or failed to perform parental duties.
The evidence is overwhelming that the Father has both failed to perform parental duties and evidenced a settled purpose of relinquishing his parental rights. At the time of the hearing, the child had been in placement for fifteen (15) months. In the six months prior to the filing of the petition, the Father visited the child only one time — at a visit suggested and arranged by the foster parents. During that period, the Father attended two review hearings on August 31, 2015 and November 30, 2015, but did not arrange for a visit with the child. Father has the time and financial resources to make regular visits with the child, but has chosen not to do so; rather, his contact is limited to phone calls with the child. The child is only two years old and lacks the ability to engage in any meaningful conversation. The Father moved to Virginia because he "figured out the truth about . . . his wife." (T.T. p. 93) His child's needs were ignored. The Father has not performed
B. The trial court erred in terminating Natural Father's parental rights pursuant to Section 2511(b) when the record is devoid of any testimony as to the Father's bond with the minor child or as to what effect the severing of any bond would have on the minor child.
CYS must establish, by clear and convincing evidence, that termination of the Father's rights best meets the needs and welfare of the child. 23 Pa. C.S.A. §2511(b). The Court must examine the nature and strength of the parent-child bond and the effect of the severance of that bond.
The evidence shows that, while there is no doubt that Father loves his child, the Father and child never had a close, strong bond. When the family was together, before the child's placement, the Father has never been actively involved in her daily life and routine. Father worked a lot and was away from home for extended periods as he was busy working in the gas industry. When questioned about how much time he spent with his child, Father stated, "I've lived in my home but worked out of state." (T.T. p. 111) The Virginia authorities found his involvement with the child to be "minimal" and encouraged him to become more active in her life. (T.T. p. 50) His response to that was to move to West Virginia, then Pennsylvania, so he could continue to work in the gas industry.
Father never described any activities that he did with the child or any special routines. When asked to describe his relationship with his child, he responded simply, "Good." (T.T. p. 96) He responded to the Guardian ad Litem's questions that he was away a lot. (T.T. p. 111) The Court logically concluded that the Father and child, at the time of the child's placement, when the child was not yet two years old, did not have a close, strong bond but did have a normal but distant relationship as Father and child.
After the child's placement, the Father maintained that relationship for approximately six months, with the Father visiting twice a week for up to two hours per visit. The Father never requested additional time with the child. (Exhibit 1) The Father then abruptly moved, not even informing the caseworker of his intentions. He has only seen that child one time, for a few hours in a McDonald's, in the ten months prior to the termination hearing. The Father has relied on maintaining a relationship with his child through telephone calls. Due to the child's tender years, the Court finds that to be not practical or possible. The foster mother's testimony was credible. While she clearly loves the child and is desirous of adopting her, she has a positive relationship with the Father and wants to maintain contact with him. She is exceptionally experienced fostering over 35 children. (T.T. p. 74) She testified that the child recognizes the Father's voice but doesn't engage in conversation with the Father but merely listens. (T.T. p. 79) She talks with other family members on the phone much differently and in a more engaging manner. (T.T. p. 79) The child never asks about her Father (T.T. p. 78) and is not sad or upset when the phone call ends or if he does not call. (T.T. p. 78) Those facts lead to the logical inference that any bond between the Father and child is minimal. Any severance of a minimal bond would not cause any adverse effect on a slightly less than three year old child. The child has a strong attachment with her foster parents and looks to them for all her care and parental guidance. (T.T. p.p. 35, 66)
The fact that the foster parents are willing to maintain a relationship with the Father is relevant as well. Their willingness will maintain the status quo. While the Court recognizes that, with the Father, there is no guarantee that foster parents will do so, they have already agreed to an Act 101 Agreement with the Mother and her voluntary relinquishment was done with that contingency. (T.T. p. 13) There is no doubt with the Court that the foster parents will indeed maintain contact. They pursued the Christmas visit, not the Father, and have been very supportive of both parents. The totality of the evidence established that no adverse effect will occur if the parental bond is legally severed as the status quo will continue and that there is only a minimal bond and the termination best meets the needs and welfare of the child.
The Court's Order of May 16, 2016 should be affirmed.
23 Pa.C.S. § 2731.