In the Int of: K.M.P-B., Appeal of: E.B. (memorandum)
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J-S22001-14 & J-S22002-14 NON-PRECEDENTIAL DECISION IN THE INTEREST OF: K.M.P.-B. A MINOR Appeal of: K.R.P. SEE SUPERIOR COURT I.O.P. 65.37 : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1974 MDA 2013 Appeal from the Decree entered October 7, 2013, in the Court of Common Pleas of Lancaster County, IN THE INTEREST OF: K.M.P.-B., A MINOR Appeal of: E.B. : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1922 MDA 2013 Appeal from the Decree entered October 7, 2013 in the Court of Common Pleas of Lancaster County BEFORE: PANELLA, DONOHUE, AND MUNDY, JJ. MEMORANDUM BY PANELLA, J.: FILED JUNE 12, 2014 In these related cases, K.R.P. (Mother) and E.B. (Father) appeal the decree of the Court of Common Pleas of Lancaster County, entered October 7, 2013, that terminated their parental rights to their, K.M.P.-B. (Child), born in December of 2006, and changed his goal to adoption. We affirm. Lancaster County Children and Youth Services (CYS or the Agency) 2012. The trial court held hearings on that petition on May 30, 2013, and J-S22001-14 & J-S22002-14 August 1, 2013. Testifying at the hearings were COBYS Family Services caseworker, Krista Burkholder1; licensed clinical psychologist, Suzanne Ail; and Father. Mother did not testify at the first hearing and did not appear at the second hearing. The first time that Child entered placement, there were concerns eviction from her residence.2 N.T., 5/30/13, at 64-65. When a CYS led appointment, Mother was not there and her children, who were home alone, did not know where she was or how to reach her. CYS placed the children, including Child, in foster care on April 13, 2007. The trial court found Child dependent and placed him in the legal and physical custody of CYS in an order entered May 24, 2007. CYS created a Child Permanency Plan (CPP) for Mother and Father with the goal of reunification. Mother successfully completed the goals of that plan and CYS returned Child to her on March 4, 2008. Id., at 63. Father did not complete the goals of that CPP. During 2009 and 2010, CYS received multiple referrals regarding 1 COBYS Family Services is a contract provider of casework services to CYS. N.T., 5/30/13, at 62. 2 litigation. -2- J-S22001-14 & J-S22002-14 Id., at 65. On October 13, 2010, CYS received a report that the police had firearm, marijuana, cocaine, and drug paraphernalia. Mother admitted to, and was prosecuted for, prostitution. On October 19, 2010, Mother told CYS that she was having significant mental health issues and that she had relapsed on drugs. On October 21, 2010, the Agency received a phone call from Mother during which her speech was slurred and her thought processes were incoherent. Id. Mother showed up at the Agency later on that day with Child. She stayed in the parking lot and screamed angrily. Id., at 67-68. Mother almost hit several cars as she drove out of the parking lot. Id., at 68. The police found Child and his half-brother, M., the next day; CYS placed them in foster care. Id., at 68. Mother with the goal of reunification. CYS again established a CPP for Id. Mother, however, never completed the goals of that CPP, and contacted CYS only twice in the year prior to the hearing on her parental rights, both times by telephone. Id., at 73. Child has been in placement since October 22, 2010; Mother has visited him twice during that period. Id., at 64, 68, 75. The trial court adjudicated Child dependent once again and awarded legal custody of Child to CYS on December 30, 2010. Id. At the same time, CYS established another CPP for Father with the goal of reunification. The -3- J-S22001-14 & J-S22002-14 though CYS established a goal of reunification for Father, we note that Father has never had custody of Child. N.T., 8/1/13, at 47-48. Father attended and successfully completed a parenting class but was unable to implement the skills taught there. Child reacts to Father with fear at 76. Mother had obtained a protection from abuse order against Father at the time of the second placement. Id., at 76. A domestic violence evaluation of Father resulted in a recommendation for ongoing therapy, but Father was discharged for inconsistent attendance on July 25, 2012. Father resumed therapy two months after the petition to terminate his parental rights was served on him but Father has not provided CYS with any treatment plan nor has he provided any reports of his progress. Father reported that he was receiving unemployment compensation and working part-time serving at banquets but did not provide pay stubs as required by his CPP. Id., at 78; N.T., 8/1/13, at 10. At the time of the hearing, Father was behind in his required payments at a transitional living shelter. Until four months after the petition to terminate his parental rights was filed, Father lived in an apartment, which he was told was insufficient for Child. He moved into the Transitional Living Center where he had one room with two beds. N.T., 5/30/13, at 78-79. As the name of the facility states, this is a temporary residence. His CPP required him to provide monthly rent receipts. Father only provided two of -4- J-S22001-14 & J-S22002-14 the Transitional Living Center. N.T., 8/1/13, at 8-9. One rent receipt was received in 2012, and one rent receipt was received in 2013. N.T., 5/30/13, at 78-80. Father attends supervised visits with Child, but he sits and sleeps or watches Child play during visits; he does not participat half-brother, M., accompanies him to visits, Father upsets Child by interacting with M. and ignoring Child. Child leaves the room when this happens. Id. at 79- - to prevent Child from wandering the building alone. Father requested a bonding evaluation that was performed by Dr. Suzanne Ail. Dr. Ail concluded that Father and Child have an insecure attachment. Id., at 8. According to Dr. Ail, Child demonstrates controlling, non-compliant, disrespectful and avoidant behavior towards Father. also displays anger, aggression and frustration towards Father. Child Father stated that he needs help in caring for a child and is ambivalent about his ability to care for Child. N.T., 8/1/13, at 43. Child has a very strong attachment to his half-brother, who has been his most consistent caregiver, and he is forming a secure attachment to his foster parents, who plan to adopt him. Id., at 11, 53-54. -5- J-S22001-14 & J-S22002-14 Father filed his notice of appeal and concise statement of errors complained of on appeal on October 24, 2013. Mother filed her notices of appeal and concise statements of errors complained of on appeal on November 5, 2013. Mother raises the following question on appeal: Father raises the following questions on appeal: A. Whether the Cou when Father had successfully completed his reunification plan[?] B. Whether the Court erred when it determined that it was in the Our standard of review is as follows: In an appeal from an order terminating parental rights, our scope of review is comprehensive: we consider all the evidence conclusions. However, our standard of review is narrow: we will re court abused its discretion, made an error of law, or lacked decision is entitled to the same deference as a jury verdict. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). Further, we have stated: competent evidence of record, we must affirm the hearing court even though the record could support an opposite result. We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of -6- J-S22001-14 & J-S22002-14 the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted). We note our standard of review of a change of goal: e the placement goal for a dependent child to adoption, our standard is abuse of discretion. In order to conclude that the trial court abused its manifestly unreasonable, that the court did not apply the law, or or ill will, as shown by the record. In the Interest of S.G., 922 A.2d 943, 946 (Pa. Super. 2007). In order to affirm the termination of parental rights, this Court need only agree with any one subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part: § 2511. Grounds for involuntary termination (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 -7- J-S22001-14 & J-S22002-14 causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. ... (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. 23 Pa.C.S.A. § 2511. weighty, and convincing as to enable the trier of fact to come to a clear In re T.F., 847 A.2d 738, 742 (Pa. Super. 2004). Further, A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parentchild relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs. In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (internal citations omitted). -8- J-S22001-14 & J-S22002-14 The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger, 331 A.2d 172 (Pa. 1975). There the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), that the petitioner for involuntary d 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, Id., at 173. shall give primary consideration to the developmental, physical and emotional needs and b). The Act does not make specific reference to an evaluation of the bond between parent and child but our case law requires the evaluation of any such bond. See In re E.M., 620 A.2d 481 (Pa. 1993). However, this Court has held that the trial court is not required by statute or precedent to order a formal bonding evaluation performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008). In regard to incarcerated persons, our Supreme Court recently stated: [I]ncarceration is a factor, and indeed can be a termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or -9- J-S22001-14 & J-S22002-14 subsistence and that [sic] the causes of the incapacity cannot or will not be remedied. In re Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012). ... [W]e now definitively hold that incarceration, while not a litmus test for termination, can be determinative of the question confinement can be considered as highly relevant to whether ses of the incapacity, abuse, neglect or to provide grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2). See e.g. Adoption of J.J. parent who is incapable of performing parental duties is just as In re:] E.A.P., [944 A.2d 79, 85 (Pa. Super. 2008)] (holding incarcerations and failure to be present for child, which caused child to be without essential care and subsistence for most of her with various prison programs). If a court finds grounds for termination under subsection (a)(2), a court must determine whether termination is in the best interests of the child, considering the developmental, physical, and emotional needs and welfare of the child pursuant to § 2511(b). In this regard, trial courts must carefully review the individual circumstances for every child to determine, inter alia 47 A.3d at 830-831.3 te 3 Mother was in Lancaster County Prison for a probation violation from September 21, 2012, to November 29, 2012. N.T., 5/30/13, at 72. Nothing in the record demonstrates that this brief incarceration had any material effect on this case. - 10 - J-S22001-14 & J-S22002-14 discretion. We have read the trial court opinions in this matter and we are concise, and well-written opinions of the Honorable Jeffrey J. Reich, that we adopt as our own. Decree affirmed. Judgment Entered. JosephD.Seletyn,Esq. Prothonotary Date: 6/12/2014 - 11 -
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