In the interest of: A.J.A. Appeal of: L.A. (memorandum)
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J-S38016-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: A.J.A., IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: L.A., FATHER, Appellant No. 3215 EDA 2013 Appeal from the Order Dated October 28, 2013 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000568-2013, CP-51-DP-0062301-2000, FID: 51-FN-329289-2009 BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ. MEMORANDUM BY BOWES, J.: FILED JULY 14, 2014 his parental rights to his now-fourteen-year-old son, A.J.A., hereinafter referred to as A.A.1 We affirm. This family has a protracted involvement with the Philadelphia concern th 2 were unprepared to ____________________________________________ 1 order in which the juvenile court changed reunification to adoption, he does not challenge that order specifically in his brief. 2 appeal that decision. J-S38016-14 Mother. In addition, hospital staff alleged that Father emitted an odor of lthough Father denied these allegations, A.A. was adjudicated dependent and remained in foster care the dependency on January 9, 2003. with the family as follows: On September 4, 2012, the Department of Human Services (DHS) received a General Protective Services (GPS) Report alleging that Mother did not provide appropriate supervision for A.A. and that she would not let him into the home until late at night. The report further alleged that Mother and Father had a history of domestic violence and alcohol abuse, that Father was incarcerated due to a domestic dispute, and that A.A. had witnessed and become involved in incidents of domestic violence between Mother and Father in the past. The GPS report was substantiated. At the Contested Goal Change Hearing on October 28, 2013, the DHS intake social worker testified that when she went to Mother and Father's home to investigate the allegations in the GPS report, Mother was intoxicated and had difficulty expressing herself; however, she did disclose prior incidents of domestic violence. Father was incarcerated for domestic violence at the time the social worker came to the home to investigate on September 4, 2012. The social worker also had an opportunity to speak with A.A. She testified, He told me that he was very afraid of his Father and that he was worried about his Father learning what he disclosed to me. He told me that there was a lot of domestic violence occurring in the home and that he would intervene. He said that Mom was constantly intoxicated and that he would stay out sometimes until -2- for J-S38016-14 10:00, 11:00, 12 o'clock at night, until Mom finally fell asleep because he didn't want to deal with her intoxication. He said he either slept in the bed with his Mother or on the floor with his Father. He said that the last time he had intervened during a domestic violence incident, that Father had slammed his head into the refrigerator. He said . . . Mom had kicked him out one time all night and made him stay out all night. (N.T. 10/28/2013, p. 67, line 14 p. 68, line 7). An Order of Protective Custody (OPC) for A.A. was obtained on September 5, 2012, and A.A. was placed in the home of a maternal cousin. A shelter care hearing was held on September 7, 2012 at which time the Court lifted the OPC and ordered the temporary commitment to DHS to stand. Parents were ordered to the Clinical Evaluation Unit (CEU) for a forthwith drug and alcohol screen. A.A. was adjudicated dependent and committed to DHS on September 13, 2012. Parents were re-referred to CEU and were to undergo a parenting capacity evaluation. A.A. was referred to Behavioral Health Services (BHS) as well as for a physical, dental and mental examination. The kinship care provider's address was to be kept confidential, and a Stay Away Order was entered against L.A. as to A.A. and maternal cousin, A.A.'s foster parent. The initial Family Service Plan (FSP) [m]eeting was held on with adequate supervision; 2) learn age-appropriate behavior for A.A.; 3) provide adequate and safe living conditions for A.A.; and 4) participate in parenting capacity evaluations and comply with the recommendations. It was further recommended that Father: 1) remain sober; 2) follow the recommendations in the psychiatric evaluation; 3) address issues of domestic violence; and 4) utilize non-violent methods of discipline. Trial Court Opinion, 1/10/14, at 2-4 (superfluous citations omitted). -3- J-S38016-14 At subsequent permanency review hearings during October 2012 and February 2013, it was determined that Father achieved minimal compliance with the permanency plan. Accordingly, the juvenile court maintained the no-contact order against Father, and after Father was incarcerated during summer 2013 following yet another domestic dispute with Mother, the juvenile court suspended all contact between A.A. and either of his parents. (5), (8) and (b). rights.3 Father retained private counsel to defend his parental During the ensuing hearing, DHS presented the testimony of psychological/parenting evaluation, Debra Ruben and Okay Hubbard, the DHS caseworkers assigned to the family, and Jessica Bishop, the caseworker the close of the hearing, the trial court observed that Father achieved only minimal compliance with the FSP and that clear and convincing evidence existed to involuntarily terminate Father's parental rights pursuant to § 2511(a)(1), (2), (5), (8), and (b). Father filed a timely notice of appeal and a concomitant Rule 1925(b) statement asserting four issues that he reiterates on appeal as follows: ____________________________________________ 3 The trial court subsequently appoi through the appeal process. -4- J-S38016-14 1. Did the Court erroneously fail to find that there were no dependency issues for Appellant? 2. Did the Court erroneously fail to find that Appellant had substantially complied with the Family Service Plan to the extent that he was requested to do so? 3. Did the Court erroneously find that the Department of Human Services did not make reasonable efforts to facilitate reunification for Appellant and that it prematurely decided not to assist him with reunification? 4. Did the Court rights when Appellant never had the opportunity to resolve any issues with his son through any form of visitation, because the Court restricted visitation and contact with the child from the start of the case? F We apply the following standard of review of an order terminating parental rights: In cases concerning the involuntary termination of parental rights, our review is limited to a determination of whether the decree of the termination court is supported by competent evidence. Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203, 207 statutory criteria for that termination by at least clear and In re T.R., 502 Pa. 165, 465 A.2d 642, 644 (1983). Clear and convincing evidence is defined as enable the trier of fact to come to a clear conviction, without Matter of Sylvester, 521 Pa. 300, 555 A.2d 1202, 1203 04 (1989). In re Adoption of L.J.B., 18 A.3d 1098, 1107 (Pa. 2011). As the ultimate trier of fact, the trial court is empowered to make all determinations of credibility, resolve conflicts in the evidence, and believe all, part, or none of the evidence presented. In re A.S., 11 A.3d 473, 477 (Pa.Super. 2010). -5- J-S38016-14 rt's findings, we will affirm even Id. We address collectively the first and second issues that Father listed in his brief. These issues concern whether Father rectified the problems that necessitated DHS intervention and whether he complied substantially with that [he] had any form of substance abuse issue, or that [he] had not already provided a physically safe and adequate Id. In further support of his position, Father points to his own self-serving testimony that he was an involved parent, never employed corporal punishment, and drank only moderate amounts of alcohol. Id. at 6-8. DHS counters with myriad references to the certified record that established that Father still has not satisfied several components of the FSP, or addressed the problem of domestic violence or his impulsiveness. For example, Okay Hubbard, a DHS caseworker assigned to the family, testified during the hearing that while Father completed some of his service referrals with Achieving Reunification Center 10/28/13, at 101. Mr. Hubbard specified that Father failed to complete programs relating to domestic violence, parenting, or mental health. Id. at 105-106. Indeed, the only aspect of the FSP that Father addressed at ARC -6- J-S38016-14 was anger management. Id. at 106. Unfortunately for Father, that training was clearly ineffectual, as Father was arrested for assault after completing the course. Id. at 149-150. s regarding his level of compliance with the FSP and its determination that clear and convincing evidence existed to sustain the statutory grounds to terminate Father's parental rights. While we observe that Father made progress toward completing some of his goals, we cannot reweigh the trial supported by the record. In re A.S., supra. Mindful of our limited standard fact that are supported by the record. Thus, even though a modicum of determination that his compliance was minimal, we will not disturb it. Id. A. The following principles are Before filing a petition for termination of parental rights, the Commonwealth is required to make reasonable efforts to promote reunification of parent and child. However, the Commonwealth does not have an obligation to make such efforts indefinitely. The Commonwealth has an interest not only in family reunification but also in each child's right to a stable, safe, -7- J-S38016-14 and healthy environment, and the two interests must both be considered. A parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the parent's failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. When reasonable efforts to reunite a foster child with his or her biological parents have failed, then the child welfare agency must work toward terminating parental rights and placing the child with adoptive parents. The process of reunification or adoption should be completed within eighteen (18) months. While this time frame may in some circumstances seem short, it is based on the policy that a child's life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting. In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa.Super. 2006) (emphasis, citations, and internal quotation marks omitted) (footnote omitted). t, absent evidence of physical abuse or expert testimony that visitation would have harmed A.A., the agency provided a disservice to A.A. by failing to provide even therapeutic contin -contact address that obstacle was tantamount to a failure to make reasonable efforts toward reunification. In a related argument, Father criticizes the trial court for failing to ease the no-contact order so that Father could participate in a form of therapeutic visitation with A.A. For the following reasons, no relief is due. -8- J-S38016-14 DHS did not capriciously withhold deep-seated issues with his Father were beyond repair. Ms. Schmitheizer testified during the July 1, 2013 permanency review hearing that she had been providing A.A. bi-monthly outpatient clinical services for six months. N.T., 7/1/13, at 5. She explained that A.A. suffers from extreme anxiety stemming from his fear that he would be removed from foster placement and returned to his biological parents. Id. Ms. Schmitheizer continued that A.A. is capable of relaying his fears and concerns of visiting with Father. Id. at 9. For example, she recently discussed with A.A. the possibility of Id Id level of fear about his relationship with Father and his apprehension that Father would abduct him and take him to his home country of Jamaica, it would be useless to attempt therapeutic sessions. Id. at 20-21. theizer highlighted the extreme actions that the teen informed her that he would lengths to describe what he would do if he had [to face Father]. He would like to have someone who is very strong with him, a big strong male[,] and -9- J-S38016-14 he would . . . [disguise] himself under a wig and other clothing to avoid his Id. at 20-21. In light of the significant emotional harm that would befall A.A. if DHS or the trial court imposed a forced relationship with Father upon him under provide reasonable efforts toward reunificati interest in maintaining a safe, stable, and healthy environment for A.A. while contravention of the no-contact order. No relief is due. We also note that th repeatedly requested the trial court to provide him visitation with A.A. In actuality, Father made one request for A.A. to appear at a permanency review hearing, which the trial court considered and denied following a hearing and its deliberation of the foregoing evidence. Thus, this contention also fails. Finally, while Father does not level a conventional argument against abundance of caution, we observe that had Father challenged any of the statutory grounds that the trial court found to support termination or the -and-welfare analysis, we would affirm the order the basis of the cogent discussion - 10 - J-S38016-14 relating to § 2511(a) and (b) at pages six through thirteen of the Honorable -reasoned opinion entered on January 10, 2014.4 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2014 ____________________________________________ 4 In light of the significant consequences of the order involuntarily that Father raised material arguments regarding his level of compliance and assess counsel fees against Father on the basis that the instant appeal was frivolous. See Trial Court Opinion, 1/10/14, at 13-14. - 11 - Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12 32 PM Circulated 06/27/2014 12 32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM Circulated 06/27/2014 12:32 PM
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