J-S37018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: C.S., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: J.D., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 596 EDA 2019


               Appeal from the Decree Entered, January 25, 2019,
                in the Court of Common Pleas of Monroe County,
                     Orphans' Court at No(s): 57 OCA 2018.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED AUGUST 23, 2019

        J.D. (Father) appeals from the orphan’s court decree that granted the

petition filed by the Monroe County Children and Youth Services (CYS) to

involuntarily terminate his parental rights to son, C.S. (Child), pursuant to the

Adoption Act. See Pa.C.S.A. § 2511(a)(1) and (b).1 After review, we affirm.

        The early years of this case are sparsely detailed. Child was born in

April 2012. The family came to the attention of CYS in 2014 and in 2016, but

on both occasions it was determined that Child was not without parental care.

The relevant factual and procedural history is as follows:         In April 2017,

however, CYS received a report that Father had sexual contact with Child.

Father maintained that he was teaching Child the difference between a “good

touch and a bad touch.” See N.T., 1/22/19 at 10. These allegations were
____________________________________________


1   The trial court also terminated the rights of N.L (Mother), who did not appeal.
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founded; Father was indicated for sexual abuse and charged with various

sexual offenses.

       Meanwhile, in July 2017, Mother brought Child to CYS and stated she

could no longer care for him and requested that he be placed in foster care.

Mother appeared to have unstable mental health. CYS sought to place Child

with maternal grandmother, but she declined because she was already

providing care to Mother’s 11-year-old autistic son. Child was adjudicated

dependent on July 28, 2017.           Child has remained in the care of his pre-

adoptive foster parent.

       Father eventually entered a plea to endangering the welfare of a child.

For this offense, Father was incarcerated from March 27, 2018 until July 27,

2018. Father maintains that his actions were accidental, unintentional, and

not a sexual assault.       The day before Father’s release, CYS petitioned to

terminate Father’s parental rights. Upon his release, Father made an inquiry

to CYS to learn what he needed to do in order to resume visitation with Child.

Ultimately, Father did not complete the steps necessary before he could

resume contact with Child, nor did Father follow up with CYS to determine

what, if anything, he still needed to do.

       The court held a hearing on CYS’ termination petition on January 22,

2019.2 Although CYS sought termination under 23 Pa.C.S.A. § 2511(a)(1),

(2), (5), (8) and (b), the court only granted the petition under Section 2511
____________________________________________


2Child was properly represented by counsel pursuant to 23 Pa.C.S.A. §
2313(a).

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(a)(1) and (b). The court also granted CYS’ request to change the goal of the

dependency case from reunification to adoption.

         Father filed this timely appeal. He presents for our review the following

issue:

            Whether the court erred in finding that CYS provided the
            elements of 23 Pa.C.S.A. § 2511(a)(1) and (b) through clear
            and convincing evidence.

Father’s Brief at 5.

         We begin with our well-settled standard of review:

            The standard of review in termination of parental rights
            cases requires appellate courts to accept the findings of fact
            and credibility determinations of the trial court if they are
            supported by the record. If the factual findings are
            supported, appellate courts review to determine if the trial
            court made an error of law or abused its discretion. A
            decision may be reversed for an abuse of discretion only
            upon demonstration of manifest unreasonableness,
            partiality, prejudice, bias, or ill-will. The trial court's
            decision, however, should not be reversed merely because
            the record would support a different result. We have
            previously emphasized our deference to trial courts that
            often have first-hand observations of the parties spanning
            multiple hearings.

In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In

re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

         Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 §§ 2101-2938, which requires a bifurcated analysis.

            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

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         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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      We have defined clear and convincing evidence as that which is so

“clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in

issue.” In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (citation

and quotation marks omitted).

      Father contends that the court failed to properly consider the efforts he

made to establish visitation with his son and complete all goals in his service

plan both over the life of the case as well as the six months immediately

preceding the filing of the termination petition.     Father alleges that CYS

prevented him from establishing contact with his son by failing to make

reasonable efforts to verify or assist with his compliance.     Finally, Father

argues CYS failed to present clear and convincing evidence that termination

was in Child’s best interest.

      Section 2511(a)(1) provides that a court can terminate parental rights

if, inter alia, the petitioner provides clear and convincing evidence that the

respondent-parent failed to perform parental duties for a period of at least six


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months immediately preceding the filing of the petition. See 23 Pa.C.S.A. §

2511(a)(1).

      Although it is the six months immediately preceding the filing of the

petition that is most critical to the analysis, the trial court must consider the

whole history of a given case and not mechanically apply the six-month

statutory provision. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004)

(citation omitted).

      In an analysis under this section, we have acknowledged there is no

simple or easy definition of parental duties. But we have explained:

         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.

                                     ***

         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 or her 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.

Id. (Internal citations and quotations omitted).




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      The court must examine the individual circumstances of each case and

consider all explanations offered by the parent facing termination of his or her

parental rights, to determine if the evidence, in light of the totality of the

circumstances, clearly warrants the involuntary termination. Id.

      A parent’s incarceration does not, in itself, provide grounds for the

termination of parental rights. Id.      An analysis of an incarceration case

depends upon which provision under section 2511(a) termination is sought.

      When a petitioner seeks to terminate an incarcerated parent’s rights

under section 2511(a)(1), we have said a parent's responsibilities are not

tolled during incarceration. Id.    The court’s focus is whether the parent

utilized resources available while in prison to maintain a relationship with his

or her child. Id. (citation omitted).    An incarcerated parent is expected to

utilize all available resources to foster a continuing close relationship with his

or her children. Id. Where the parent does not exercise reasonable firmness

“in declining to yield to obstacles,” parental rights may be forfeited. In re

Adoption of A.C., 162 A.3d at 1130 (quoting In re Adoption of McCray,

331 A.2d 652, 655 (Pa. 1975)).

      Finally, the court must account for an incarcerated parent’s self-imposed

barriers while simultaneously evaluating the parent’s duty to overcome them:

         Where a non-custodial parent is facing termination of his or
         her parental rights, the court must consider the non-
         custodial parent's explanation, if any, for the apparent
         neglect, including situations in which a custodial parent has
         deliberately created obstacles and has by devious means
         erected barriers intended to impede free communication
         and regular association between the non-custodial parent

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         and his or her child. Although a parent is not required to
         perform the impossible, he must act affirmatively to
         maintain his relationship with his child, even in difficult
         circumstances. A parent has the duty to exert himself, to
         take and maintain a place of importance in the child's life.

In re B.,N.M., 856 A.2d at 855-856 (citations omitted).

      Instantly, Father created for himself considerable obstacles that

impeded his ability to freely communicate and associate with Child.       His

inability to overcome these barriers equated a failure to perform his parental

duties under Section 2511(a).

      At the inception of the dependency case in July 2017, the court ordered

Father to comply with offender’s treatment in forensic counseling, and to

engage in a risk assessment while his charges were pending. See N.T.,

1/22/19, at 13. Only after CYS received a recommendation and approval from

counseling providers could visitation between Father and Child occur.

      Father apparently engaged in counseling, but in March 2018, Father

pleaded guilty to endangering the welfare of a child.       As a part of his

sentencing, CYS received a forensic counseling recommendation. The

recommendation indicated that Father should be referred to sex offender

group treatment; he should abide by all the rules of any treatment program

he enters; he should submit to a crime-specific therapeutic polygraph exam

within two months after beginning his treatment if he continued to deny

assaulting the victim in any manner; and it was recommended that he not

have any unsupervised contact with any minors. Id. at 18.        Still, he was

considered low risk for reoffending. Id.

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      After four months’ incarceration, Father was released in July 2018.

Critically, Father’s compliance and cooperation with CYS was minimal in the

months following his release. Id. at 24. The CYS caseworkers testified that

in order for Father and Child to resume contact, CYS needed to know from

Father’s therapist that such contact was appropriate. Id. at 25; 30. CYS was

also concerned because Father had a history of being hospitalized for suicidal

ideations. Id. at 40.    CYS also never received any information regarding

whether Father submitted to the therapeutic polygraph as a part of his criminal

sentence. Id. at 27.    A caseworker explained that Father never called the

agency to question any of the goals or ask about what he needed to do in

order to reunify with Child. Id. While Father initially contacted the agency in

August 2018, he never contacted CYS after mid-September 2018. He did not

provide proof that his therapist approved of contact between Father and Child.

At the time of the hearing, Father had yet to complete all the steps necessary

before he could have contact with Child. Id. at 53.

      Father contends that CYS had an obligation to reach out to the therapist

in order to help Father do what he needed to do in order to see Child. Id. at

38. In other words, Father argues CYS did not make reasonable efforts to

facilitate the reunification. This argument is relevant to a court’s consideration

of both grounds for termination and the best interests of the child, but neither

Section 2511(a) or (b) requires a court to consider the reasonable efforts

provided to a parent prior to the termination of parental rights. In Interest




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of H.K., 161 A.3d 331, 337 (Pa. Super. 2017) (citing In re D.C.D., 105 A.3d

662, 672 (Pa. 2014)).

      Our Supreme Court has concluded that although

         reasonable efforts should be considered and indeed, in the
         appropriate case, a trial court could insist upon their
         provision, we hold that nothing in the language or purpose
         of [42 Pa.C.S.A. § 6351(f)(9) of the Juvenile Act] forbids the
         granting of a petition to terminate parental rights, under
         Section 2511, as a consequence of the agency’s failure to
         provided reasonable efforts to a parent.

In re D.C.D., 105 A.3d at 675.

      Here, Father had an affirmative duty to exert himself, employ all

available resources, and use reasonable firmness to maintain a relationship

with Child. We recognize that Father faced atypical difficulties, but they were

all of his own making. Even if we agreed with Father, that CYS was not in a

rush to aid him in his reunification, we cannot say that CYS failed to provide

reasonable efforts.   And we certainly cannot conclude that CYS’s actions

barred the court from granting the termination petition. Considering only the

time period following Father’s release, the court apparently determined that

Father was content to do very little while others provided Child with necessary

and vital care. The court found Father failed to perform his parental duties;

this finding was not an abuse of discretion. We conclude that termination was

warranted under the first prong of the requisite analysis.

      We turn now to the second prong of the termination analysis.         The

barriers to the parent-child relationship – which again, were the result of



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Father’s actions and inactions – also prohibited Father from having a

worthwhile bond with Child. Child had not seen Father since April 2017, or for

approximately 21 months at the time of the termination hearing. Child’s

counsel indicated that Child was bonded to his foster parents and preferred to

stay in their care.   He does not ask about Father. Id. at 58.     Conversely,

Father offered no testimony or evidence on this portion of the termination

inquiry. In cases where there is no evidence of any bond between the parent

and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d

753, 762-763 (Pa. Super. 2008). We conclude that the orphans’ court did not

abuse its discretion by concluding that termination best serves Child’s needs

and welfare.

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion by involuntarily terminating Father’s parental rights to

Child pursuant to Section 2511(a)(1) and (b). Accordingly, we affirm the

decree of the orphans’ court.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/219




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