In Re: J.F.K., Appeal of E.F., father (memorandum)

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J-S86043-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: J.F.K. APPEAL OF: E.F., NATURAL FATHER : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1153 WDA 2016 Appeal from the Order Entered June 22, 2016 In the Court of Common Pleas of Jefferson County Orphans’ Court at No(s): 20A-2016 O.C. IN RE: B.R.K. APPEAL OF: E.F., NATURAL FATHER : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1154 WDA 2016 Appeal from the Order Entered June 22, 2016 In the Court of Common Pleas of Jefferson County Orphans’ Court at No(s): 21A-2016 O.C. IN RE: K.J.K. APPEAL OF: E.F., NATURAL FATHER : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1155 WDA 2016 Appeal from the Order Entered June 22, 2016 In the Court of Common Pleas of Jefferson County Orphans’ Court at No(s): 22A-2016 O.C. BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.* MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 02, 2016 Appellant, E.F. (“Father”), appeals from the order entered in the _____________________________ *Former Justice specially assigned to the Superior Court. J-S86043-16 Jefferson County Court of Common Pleas Orphans’ Court, which involuntarily terminated his parental rights to his minor children, J.F.K., B.R.K., and K.J.K. (“Children”). Upon a thorough review of the record, we affirm. In its opinion, the Orphans’ court fully and correctly sets forth the relevant facts of this case. Therefore, we have no reason to restate them. Procedurally, on April 11, 2016, Jefferson County Children and Youth Services (“CYS”) filed a petition for involuntary termination of Father’s and Mother’s parental rights to Children. The parties proceeded to a termination hearing on June 8, 2016, where Mother voluntarily relinquished her parental rights. CYS then presented the testimony of Dr. Allen Ryen, a licensed psychologist, who performed a bonding assessment with Children and Father in March 2016. Dr. Ryen stated that Father exhibited some good parenting skills; however, Dr. Ryen opined that a primary bond did not exist between Father and Children. Dr. Ryen also expressed concern with Children’s negative behavioral reactions after Father’s visits. CYS next presented the testimony of Danielle Smith, the Children’s CYS caseworker. Ms. Smith testified that Father had visited J.F.K. and B.R.K. nine times since the court adjudicated the Children dependent in April 2014. Ms. Smith also stated Father had visited K.J.K. even less frequently during the same period because K.J.K. resides in a residential treatment facility. Ms. Smith further explained that Father had not obtained stable housing or demonstrated his ability to handle the needs of Children. -2- Ms. Smith testified that Children J-S86043-16 were in placement with prospective adoptive families. Ms. Smith ultimately opined that grounds for termination of Father’s parental rights existed under 23 Pa.C.S.A. §§ 2511(a)(1) and 2511(a)(2), and termination was in the best interests of Children pursuant to 23 Pa.C.S.A. § 2511(b). Father testified on his own behalf at the hearing. regain custody of Children. Father expressed his love and desire to Father also explained that he had recently obtained stable employment and continued to look for a stable housing option. At the conclusion of the hearing, the court took the matter under advisement. On June 22, 2016, the court terminated Father’s parental rights to Children. On July 5, 2016, Father filed a motion for reconsideration, in light of the fact that both J.F.K. and B.R.K.’s foster parents had withdrawn as prospective adoptive families. The court denied Father’s motion on July 7, 2016. On July 21, 2016, 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). Father raises the following issues for our review: WHETHER THE [ORPHANS’] COURT COMMITTED AN ERROR AND/OR ABUSE OF DISCRETION IN TERMINATING FATHER’S PARENTAL RIGHTS PURSUANT TO 23 PA.C.S.A. § 2511(A)(1) WHEN FATHER TOOK AFFIRMATIVE ACTION TO ASSERT PARENTAL RIGHTS BY RELOCATING FROM LOUISIANA TO PENNSYLVANIA, WHEN HE MADE ALL POSSIBLE SCHEDULED VISITATION WITH HIS CHILDREN, AND WHEN HE DEMONSTRATED A SERIOUS INTENT TO REESTABLISH AND CONTINUE THE PARENT-CHILD RELATIONSHIP[?] -3- J-S86043-16 WHETHER THE [ORPHANS’] COURT COMMITTED AN ERROR AND/OR ABUSE OF DISCRETION IN TERMINATING FATHER’S PARENTAL RIGHTS UNDER 23 PA.C.S.A. § 2511(A)(2) WHEN [CYS] FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT FATHER CANNOT REMEDY ANY CURRENT PARENTAL INCAPACITY[?] WHETHER THE [ORPHANS’] COURT COMMITTED AN ERROR AND/OR ABUSE OF DISCRETION IN FINDING THAT THE TERMINATION OF FATHER’S RIGHTS WAS IN THE BEST INTEREST OF THE DEVELOPMENTAL, PHYSICAL, AND EMOTIONAL NEEDS AND WELFARE OF THE [CHILDREN?] (Father’s Brief at 3-4). The standard and scope of review applicable in a termination of parental rights case is as follows: When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge’s decision the same deference that it would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence. Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. -4- J-S86043-16 We may uphold a termination decision if any proper basis exists for the result reached. If the trial court’s findings are supported by competent evidence, we must affirm the court’s decision, even if the record could support an opposite result. In re Adoption of K.J., 936 A.2d 1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165 (2008) (internal citations omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1003-04 (Pa.Super. 2008) (en banc). DHS sought the involuntary termination of Father’s parental rights on the following grounds: § 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: (1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. (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 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 -5- J-S86043-16 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(a)(1), (2), and (b). “Parental rights may be involuntarily terminated where any one subsection of Section 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions.” In re Z.P., 994 A.2d 1108, 1117 (Pa.Super. 2010). Initially, 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…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. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted). Termination under Section 2511(a)(1) involves the following: To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition, Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to -6- J-S86043-16 perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties. Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent’s explanation for his…conduct; (2) the postabandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b). In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations omitted). Regarding the six-month period prior to filing the termination petition: [T]he trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his…parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination. In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005). The grounds for termination of parental rights under Section 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary those grounds may include acts of refusal as well as incapacity to perform parental duties. A.L.D., 797 A.2d 326 (Pa.Super. 2002). In re “Parents are required to make diligent efforts towards the reasonably prompt assumption of full parental -7- J-S86043-16 responsibilities.” Id. at 340. The fundamental test in termination of parental rights under Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), “the petitioner for involuntary termination must prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998). Under Section 2511(b), the court must consider whether termination will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond.” Id. at 520. Significantly: In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. When conducting a bonding analysis, the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation. In re Z.P., supra at 1121 (internal citations omitted). -8- J-S86043-16 “The statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state, may properly be considered unfit and have his…parental rights terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said: There is no simple or easy definition of parental duties. 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. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent exert [himself] to take and maintain a place of importance in the child’s life. Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his…ability, even in difficult circumstances. 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 parent-child 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 [the child’s] physical and emotional needs. In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic -9- J-S86043-16 constitutional right to the custody and rearing of his…child is converted, upon the failure to fulfill his…parental duties, to the child’s right to have proper parenting and fulfillment of his…potential in a permanent, healthy, safe environment.” Id. at 856. Importantly, neither Section 2511(a) nor Section 2511(b) requires a court to consider at the termination stage, whether an agency provided a parent with reasonable efforts aimed at reunifying the parent with his children prior to the agency petitioning for termination of parental rights. In re D.C.D., 629 Pa. 325, 342, 105 A.3d 662, 672 (2014). An agency’s failure to provide reasonable efforts to a parent does not prohibit the court from granting a petition to terminate parental rights under Section 2511. Id. at 346, 105 A.3d at 675. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable John Henry Foradora, we conclude Father’s issues on appeal merit no relief. The Orphans’ court opinion comprehensively discusses and properly disposes of the questions presented. (See Orphans’ Court Opinion, filed June 22, 2016, at 5-9) (finding: between April 14, 2014 and April 11, 2016, Father saw J.F.K. and B.R.K. only nine times, once in June 2015, and eight times between January 2016 and March 2016; Father saw K.J.K. even less during this period due to K.J.K.’s placement in residential treatment facility; significantly, Father declined to visit K.J.K. at residential treatment facility; - 10 - J-S86043-16 Father’s decision to forego visits with K.J.K., despite availability and offers of transportation assistance from CYS, demonstrated Father’s lack of fortitude to put K.J.K.’s needs ahead of his own; while Father did take advantage of visits with J.F.K. and B.R.K., these visits do not evidence Father’s willingness and ability to perform parental duties because visits did not require Father to make any real effort to spend time with Children; similarly, Father’s decision to relocate from Louisiana to Pennsylvania does not weigh in Father’s favor; Father made decision to move without preparation and without employment or housing arrangements in place; in fact, Father’s move served only to exacerbate instability that had led to denial of Father’s two previous Interstate Compact on Placement of Children (“ICPC”) requests; after almost six months in Pennsylvania, Father continues to live in shelter, has recently obtained part-time employment, and does not have identifiable plan to achieve reunification with Children; Father has known unstable housing and employment are obstacles to reunification for significant period of time; nevertheless, Father has repeatedly failed to rectify any of these concerns; Father has continually taken path of least resistance in parenting Children, as exhibited by Father’s failure to protect his custody rights when Mother moved to Pennsylvania in 2012, do anything to remove Children from violence between Mother and stepfather, and exert himself to change Children’s circumstances, despite their placement in foster care for twenty months; notwithstanding his own failures, Father blames foster care for - 11 - J-S86043-16 Children’s behavioral problems; under these circumstances, termination is warranted under Section 2511(a)(1) and (a)(2) due to unlikelihood that Father will remedy causes of parental incapacity within reasonable period of time; moreover, termination of Father’s parental rights will serve best interests of Children; J.F.K. and B.R.K. live with foster parents who meet their needs and intend to confirm love and commitment to J.F.K. and B.R.K. through adoption; both J.F.K. and B.R.K. have expressed desire for permanent homes with people they know as “Mom” and Dad”; while K.J.K.’s preferences are less clear, she has foster family who cares for her and intends to welcome her back upon discharge from residential treatment facility; Father’s reintroduction in Children’s lives has only intensified Children’s behavioral issues; in fact, Children’s behavioral issues improved after court discontinued Father’s visits in March 2016; termination of Father’s parental rights will not destroy important emotional bond between Father and Children; Dr. Ryen testified that bond between Father and Children is weak at best, while Children have identifiable bonds with foster parents; termination of Father’s parental rights will serve to ensure permanency of Children’s bonds with their foster parents; because CYS demonstrated by clear and convincing evidence that termination is appropriate pursuant to 2511(a)(1) and (a)(2), and is in best interests of Children under 2511(b), court properly terminated Father’s parental rights). With respect to these issues, we affirm on the basis of the Orphans’ court - 12 - J-S86043-16 opinion. To the extent Father claims the court erred when it denied his motion for reconsideration in light of the withdrawal of J.F.K. and B.R.K.’s foster families as prospective adoptive parents, Father failed to separately identify this issue in his Rule 1925(a)(2)(i) statement. See Commonwealth v. Johnson, 51 A.3d 237 (Pa.Super. 2012), appeal denied, 619 Pa. 701, 63 A.3d 1245 (2013) (explaining failure to specify issues raised on appeal in Rule 1925(b) statement constitutes waiver for purposes of review). Thus, Father’s challenge to the court’s denial of his motion for reconsideration is arguably waived. Moreover, the Orphans’ court explained its denial of Father’s motion for reconsideration as follows: Ms. Smith did indeed testify at the most recent permanency review hearing that [J.F.K. and B.R.K.’s foster families] had withdrawn as [J.F.K.] and [B.R.K.’s] prospective adoptive parents. That development, though unfortunate, does not change the [c]ourt’s conclusion that termination of Father’s parental rights is in [the Children’s] best interests. As the testimony indicated, the [Children’s] contact with Father was actually a detriment to their emotion well-being, which is why the [c]ourt terminated visitation over three months ago. Will the [c]ourt’s decision leave the [C]hildren without an immediate plan for a permanent home? Unless [J.F.K. and B.R.K.’s foster families] again change their minds, the answer is yes. As things stand, though, permanency with Father is also a distant prospect. Given his mottled work history, it is still too early to call a few months with Walmart “stable employment,” while [Father] frankly admits that he does not yet have an appropriate residence. - 13 - J-S86043-16 In addition, the [C]hildren barely know Father. They were all very young when Mother moved to Pennsylvania, and since then, [J.F.K.] and [B.R.K.] have only spent about 12 hours with him, [K.J.K] even less, and that includes the time all four were together for Dr. Ryen’s bonding assessment. Thus, Father’s concern that it would take time for [C]hildren to form relationships with “effective strangers” even if CYS identified new prospective adoptive parents in the near future rings hollow, as he, too, falls within that category. Furthermore, [the decision of J.F.K. and B.R.K.’s foster families] not to adopt does not suddenly qualify Father to raise three children with varied behavioral and disciplinary problems. As the [c]ourt previously observed, [Father] does not demonstrate a realistic perception of what may have precipitated [Children’s] issues, let alone the capacity to appropriately deal with them, and his averred willingness to “get training” in that regard is no guarantee from a man who is still homeless after nearly seven months in [Pennsylvania]. In short, Father’s parental deficiencies and his [Children’s] unfavorable reactions to his reintroduction into their lives leads the [c]ourt to believe that [K.J.K.], [J.F.K.], and [B.R.K.’s] needs and welfare will be best served by terminating Father’s parental rights and making them available for adoption, even if that result is not immediately foreseeable. (Opinion in Support of Denial of Father’s Motion for Reconsideration, filed July 7, 2016, at 1-2). The record supports the court’s sound reasoning. Accordingly, we affirm. Order affirmed. - 14 - J-S86043-16 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/2/2016 - 15 - Circulated 11/22/2016 01:54 PM

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