In the Int. of: A.B., a minor Appeal of: D.B. (memorandum)

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J. A14031/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: A.B., A MINOR, APPEAL OF: D.B., FATHER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : No. 1992 MDA 2013 Appeal from the Order Dated October 17, 2013, in the Court of Common Pleas of Lackawanna County, Juvenile Division at No(s): CP-35-DP-0000203-2011 IN RE: ADOPTION OF A.B., A MINOR, APPEAL OF: D.B., FATHER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : No. 1993 MDA 2013 Appeal from the Order Entered October 17, 2013, in the Court of Common Pleas of Lackawanna County, -28 Year 2013 IN RE: ADOPTION OF Z.B., A MINOR, APPEAL OF: D.B., FATHER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : No. 1994 MDA 2013 Appeal from the Order Entered October 17, 2013, in the Court of Common Pleas of Lackawanna County, -27 Year 2013 J. A14031/14 IN RE: ADOPTION OF Z.B., A MINOR, APPEAL OF: D.B., FATHER : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : No. 2071 MDA 2013 Appeal from the Orders Entered October 17, 2013, in the Court of Common Pleas of Lackawanna County, Juvenile Division at No(s): CP-35-DP-0000204-2011 BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STRASSBURGER*, JJ. MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 24, 2014 D.B. (Father) appeals from the orders entered on October 17, 2013, which terminated involuntarily his parental rights to his daughters, A.B. and Z.B., born in June of 2011.1 Upon review, we affirm. A.B. and Z.B. (Children) are the twin biological daughters of L.R. (Mother) and Father. Children were born prematurely and spent the first two months of their lives in the hospital. When they were released to * Retired Senior Judge assigned to the Superior Court. 1 Father has filed four separate appeals in this case, two for each child. As to each child, Father appealed from the orders entered on the juvenile docket and the adoption docket. On December 10, 2013, this Court issued two rules to show cause as to why the appeals at the juvenile dockets for both children should not be dismissed because the October 17, 2013 order addressed only termination of parental rights. Father responded on 12/19/2013, at ¶ 17. On December 23, 2013, this Court discharged the show cause orders, and the issue is now ripe for review. Based on the resolution of this appeal, infra rights would be violated by dismissing appeals on the juvenile docket is al rights to both children. -2- J. A14031/14 Office of Youth and Family Services (OYFS) was involved with the family during this time. On January 11, 2012, Mother and Father were involved in an altercation outside the Center. Police were called, and Mother planned to press charges against Father because he attempted to strangle her. She was taken to the hospital with bruising, and Mother placed Children with OYFS voluntarily. N.T., 8/20/2013, at 27. Children were placed with Foster Parents, where they have remained throughout the case, and who are also prepared to adopt them. In June of 2013, OYFS filed petitions to terminate involuntarily the parental rights of both Mother and Father as to Children. Over the course of with the permanency plan and made minimal progress toward alleviating the matter, on July 24, 2012, Father was arrested and charged with two counts of possession with intent to deliver a controlled substance (heroin). On August 13, 2013, Father was convicted by a jury. He was sentenced to a occurred in a school zone. -3- J. A14031/14 At the termination hearing on August 20, 2013, Mother did not appear, but her attorney was present. Father, who had chosen to represent himself and was incarcerated, participated by telephone and requested a continuance. The trial court proceeded with the termination hearing as to Mother, but continued the termination hearing as to Father. The hearing reconvened on October 17, 2013, with Father appearing in person and represented by court-appointed counsel. Once again, Mother did not appear, but her counsel was present. At that hearing, both OYFS caseworker Cristin Wormuth and Father testified. At the close of the entered an appropriate order, and Father timely filed a notice of appeal and concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). On appeal, Father sets forth several issues for our review, all of which his parental rights. consider these issues mindful of the following. In cases involving the termination of a parent's rights, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the e must employ a broad, comprehensive -4- We J. A14031/14 review of the record in order to determine whether the trial court's decision is supported by competent evidence. In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (quotation marks and citations omitted). Our courts apply a two-part analysis in reviewing an order terminating parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super. 2007), [i]nitially, 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. Id. at 511. Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). trial court's decision regarding the termination of parental rights with regard In re J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013). For the purposes of our analysis, we focus on subsection (a)(8). The statute provides, in relevant part, as follows. (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: -5- J. A14031/14 *** (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 pursu 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. § 2511. Section 2511(a) parenting and fulfillment of his or her potential in a permanent, healthy, safe In the Interst of K.Z.S., 946 A.2d 753, 759-760 (Pa. Super. 2008) (quoting In re B.N.M., 856 A.2d 847, 856 (Pa. Super. 2004)). care for over 12 months at the time of the hearing. -6- J. A14031/14 Once the 12 month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of [OYFS] supplied over a realistic time period. Termination under Section 2511(a)(8) does not require the court the conditions that initially caused placement or the availability or efficacy of [CYS] services. K.Z.S., supra at 759 (quoting In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa. Super. 2007)). present clear and convincing evidence to support a decree of termination of parenta Id ildren should remain with Foster Parents until Father is ready to care for them. Id. The trial court offered the following analysis. The initial condition leading to the removal of [] [C]hildren was the alleged domestic abuse perpetrated by Father on Mother in the presence of the minor [C]hildren. This has not been remedied and continues to exist because Father has failed to attend domestic violence counseling as recommended by OYFS. Additionally, the OYFS had concerns of drug use. It would appear that this condition has not been remedied seeing as Father is currently incarcerated on drug-related charges. As discussed, Father was incarcerated at the time of the October 17, 2013 hearing. He remains incarcerated and is projected to be released from incarceration no earlier than November 2014. Trial Court Opinion, 1/10/2014, at 7. -7- J. A14031/14 involved with Children at the time they were born, and it was also her drug use that caused his legal and financial issues. N.T., 10/17/2013, at 61-64. Father also testified that Mother prevented him from seeing Children from the time they were born until the time they were placed with OYFS. Id. at 68. Father testified that he plans to participate in recommended programs while he is incarcerated. Father admitted that he and Mother were involved in a domestic dispute, and that he also had a prior domestic dispute with a former girlfriend. He also admitted that he had not yet attended a domestic violence program. Id. at 87. It is evident that Father has not remedied the domestic violence blamed Mother for all of his troubles, rather than taking responsibility for his own actions. Thus 2511(a)(8). We now turn to the other requirement under section 2511(a)(8), regarding the best interests of Children. Wormuth testified that Z.B. has recently been diagnosed with cerebral palsy, and Children attend a daycare for medically fragile children because th -8- J. A14031/14 stated that they intend to adopt Children. Id. at 22. Thus, the record best interests of Children. Accordingly, we conclude that the trial court did not err in finding that OYFS met its burden under section 2511(a)(8). See, e.g., In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc Mother further opportunity to cultivate an environment where she can care for C.L.G., we would be subjecting a child, who has been waiting for more than two years for permanency, to a state of proverbial limbo in anticipation of a scenario that is speculative at be We next consider whether the trial court gave adequate consideration comfort, security, and stability are involved when inquiring about the needs and welfare of the chil K.Z.S., supra at 760 (quoting In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006)). The court should also consider the importance of continuity of natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. Most importantly, adequate consideration must be given to the needs and welfare of the child. Id. (internal citations omitted). Father contends, once again, that the better alterative under these circumstances is to permit Foster Parents to continue to have custody of Children to provide Father time to bond with Children once he is released -9- J. A14031/14 that, at this point, he has no bond with Children worth preserving, but he would like more time to develop one. However, based on the aforementioned principles of law, time has run out. The trial court concluded that the needs of Children would best be permitting Foster Parents adopt them. Trial Court Opinion, 1/10/2014, at 8. This conclusion is supported by the record. Children have never lived with Father and have lived with Foster Parents for all but six months of their lives. Wormuth testified that prior to Father being incarcerated, he attended 11 out of 25 scheduled visits with Children.2 She further testified that, because Children had not seen Father in over a year, they did not have any bond with him. N.T., 10/17/2013, at 35. Wormuth testified that Children are bonded with Foster Parents, whom Id. at 16. Thus, there is ample evidence that Children have no bond with Father worth preserving and that they do have a strong bond with Foster Parents, who are willing to adopt them. See, e.g., L.M., supra ties between Mother and L.M. would have a negative effect on the child. Rather, unrefuted testimony indicated that L.M. was strongly bonded to her 2 The testimony reveals that Father did not attend visits between September 2012 and his incarceration in November 2012, as he was a fugitive. N.T., 10/17/2013, at 83. - 10 - J. A14031/14 convenient time to perform one's parental responsibilities while others In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010). Therefore, because the ions that led section 2511(a)(8) and (b). Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 - 11 -

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