In Re: C.A.Y., Appeal of: R.Y. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.A.Y., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.Y., FATHER No. 1789 EDA 2014
Appeal from the Decree and Order entered May 20, 2014,
in the Court of Common Pleas of Philadelphia County, Juvenile
Division, at No(s): CP-51-AP-0000691-2013, CP-51-DP-0000656-2012,
FID No. 51-FN-001207-2012
BEFORE: BENDER, P.J.E., DONOHUE, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 02, 2015
R.Y. (Father) appeals from the decree entered May 20, 2014, in the
Court of Common Pleas of Philadelphia County, which terminated
involuntarily Father’s parental rights to his minor daughter, C.A.Y. (Child),
born in February of 2012. Father also appeals from an order entered that
same day, which changed Child’s permanency goal to adoption. We affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On February 6, 2012, the Department of Human Services (DHS)
received a General Protective Services (GPS) report due to
[M]other testing positive for Oxycontin, cocaine and opiates
while giving birth to [Child]. The report also alleged that [Child]
was administered morphine to counter her Oxycontin withdrawal
symptoms. The report was substantiated.
At birth, [Child] was diagnosed as suffering from low birth
weight and prescribed a diet to gain weight. [Child] remained
hospitalized until February 22, 2012. Upon discharge, [Child]
* Retired Senior Judge assigned to Superior Court.
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was released to [M]other, who was enrolled in an intensive
outpatient dual diagnosis treatment program.
On February 22, 2014, In-home Protective Service (IHIP)
through DHS Northeast Treatment Center (NET) was
implemented in the home of [Child’s] paternal grandmother.
The [F]ather of the [C]hild resided in the paternal grandmother’s
home.
On March 16, 2012, the IHIP’s social worker visited the home of
the paternal grandmother. The IHIP worker found the home
smelled of marijuana and observed fresh ashes in an ashtray.
The [F]ather admitted to the IHIP’s social worker that he had
been using synthetic marijuana.
In March 2012, [M]other and [Child] began residing with
[Child’s] maternal grandmother. As of April 13, 2013, [M]other
and [Child] were again residing in paternal grandmother[’s]
home with [F]ather.
On April 18, 2012, DHS filed an urgent petition on behalf of
[Child].
An adjudicatory hearing was held on May 1, 2012, before the
Honorable Jonathan Irvine. Judge Irvine adjudicated … [Child]
dependent and awarded temporary legal custody to the maternal
grandparents [(Grandparents)]. The [trial c]ourt specifically
ordered [M]other and [F]ather of [Child] to the Clinical
Evaluation Unit (CEU) for forthwith drug screens, dual diagnosis
and monitoring. The [C]hild … was placed in care of family
members. Mother and [F]ather were present at the hearing.
Father tested positive for cocaine and benzodiazepines on May 1,
2012. On May 9, 2012, [F]ather was evaluated at the CEU and
again tested positive for cocaine. The [F]ather reported to the
CEU that he had an extensive history of drug abuse. The drug
abuse history is as follows: (1) seven years of cocaine abuse, (2)
ten years of Valium and Xanax abuse, (3) a five year period of
PCP abuse, (4) one year of heroin abuse (5) consistent
marijuana abuse and (6) a six year period of Percocet abuse.
Mother died of a drug overdose on June 30, 2012.
[Grandparents] requested kinship care subsequent to [M]other’s
death.
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In July 2012, DHS temporarily suspended [F]ather’s visitation
with [Child] due to his erratic behavior, inappropriate late night
contact with [Child’s] caregivers and his failure to enroll in a dual
diagnosis treatment program.
A permanency review hearing was held on August 2, 2012. The
Honorable Jonathan Irvine vacated temporary legal custody and
ordered [Grandparents] be referred for kinship assistance. A
protective order was issued preventing [F]ather from contacting
[Grandparents]. The [trial c]ourt incorporated [F]ather’s CEU
report of non-compliance, which indicated positive screens for
cocaine and benzodiazepines on 5/1/12 and 5/9/12.
Additionally, the CEU reported that [F]ather was not compliant
with the recommended intensive outpatient drug treatment.
A Family Service Plan meeting was held by the Department of
Human Services. The Family Service Plan objectives for [F]ather
were (1) to maintain sobriety by attending drug treatment and
complying with all recommendation[s], including CEU
assessments, monitoring and random drug screens (2) to
complete job training and/or maintain employment, (3) attend
parenting classes.
Trial Court Opinion, 7/18/2014, at 1-3 (unnumbered pages).
On December 4, 2013, DHS filed a petition to terminate Father’s
parental rights to Child involuntarily, as well as a petition for goal change to
adoption. A termination and goal change hearing was held on May 20,
2014. Following the hearing, the trial court entered a decree terminating
Father’s parental rights. The court also entered a permanency review order
changing Child’s goal to adoption. Father timely filed a notice of appeal,
along with a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).1
1
Father’s notice of appeal indicated that he was appealing both from the
decree terminating his parental rights, as well as the order changing Child’s
permanency goal to adoption. We observe that it was improper for Father to
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Father now raises the following issues for our review.
1. Whether the [t]rial [court] erred and/or abused its discretion
as a matter of law in granting the petition to involuntarily
terminate Father’s parental rights pursuant to 23 Pa.C.S. [§]
2511(a)[?]
2. Whether the [t]rial [c]ourt erred or abused its discretion as a
matter of law by terminating Father’s parental rights under
2511(b) of the Adoption Act[?]
3. Whether the [t]rial [c]ourt erred or abused its discretion by
changing the goal from reunification to adoption[?]
4. Whether the [t]rial [c]ourt erred by failing to make a
determination as to the credibility of Father’s testimony[?]
Father’s Brief at 3.
In his first two issues, Father argues that the trial court abused its
discretion by terminating his parental rights pursuant to 23 Pa.C.S.
§ 2511(a) and (b).
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
file a single notice of appeal as to both the termination decree and the goal
change order. See Pa.R.A.P. 341, Note (“Where, however, one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). However,
we decline to quash Father’s appeal. It is likely that, had Father correctly
filed two notices of appeal, this Court would have consolidated both cases,
and we discern no prejudice stemming from Father’s procedural misstep.
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previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
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 (citations omitted).
Here, the trial court terminated Father’s rights pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8), and (b). “This [C]ourt may affirm the trial
court’s decision regarding the termination of parental rights with regard to
any one subsection of Section 2511(a).” In re J.F.M., 71 A.3d 989, 992
(Pa. Super. 2013) (citing In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004)). For the
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purposes of our analysis, we focus on Section 2511(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:
***
(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 pursuant to subsection (a) … (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. § 2511.
To terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(8), the following factors must be demonstrated: (1)
the child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child. Section 2511(a)(8) sets a 12–month time
frame for a parent to remedy the conditions that led to the
[child’s] removal by the court. Once the 12–month period has
been established, the court must next determine whether the
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conditions that led to the child’s removal continue to exist,
despite the reasonable good faith efforts of [the child welfare
agency] supplied over a realistic time period. Termination under
Section 2511(a)(8) does not require the court to evaluate a
parent’s current willingness or ability to remedy the conditions
that initially caused placement or the availability or efficacy of
[the child welfare agency’s] services.
In re D.A.T., 91 A.3d 197, 204-05 (Pa. Super. 2014), appeal denied, 95
A.3d 278 (Pa. 2014) (quoting In re K.Z.S., 946 A.2d 753, 759 (Pa. Super.
2008)).
Instantly, the trial court concluded that Father’s parental rights should
be terminated, and emphasized Father’s failure to remedy his history of drug
abuse. Trial Court Opinion, 7/18/2014, at 4-5 (unnumbered pages). Father
argues that the court abused its discretion in light of, inter alia, the efforts
he made to meet his FSP objectives. Father asserts that he completed a
parenting class, gained employment, visited with Child, and made diligent
efforts to overcome his drug addiction. Father’s Brief at 12-15, 17-19.
We conclude that the record supports the trial court’s decision. During
Father’s goal change and termination hearing, DHS social worker Catherine
Poczkowski testified that Child was adjudicated dependent after DHS
received “safety alerts” concerning Father’s parenting and suspected drug
use. N.T., 5/20/2014, at 27.2 Ms. Poczkowski explained that she had
2
In his brief, Father claims that Child was not removed from his care, but
that “[t]he facts demonstrate that the [C]hild was initially removed from her
Mother’s care.” Id. This assertion is contradicted by Ms. Poczkowski’s
testimony, supra, as well as the order adjudicating Child dependent, which
adopted the factual allegations contained in the DHS dependency petition.
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stressed to Father the importance of obtaining drug and alcohol treatment,
and that this was “the main issue of the case.” Id. at 28-29, 39-40.
However, Ms. Poczkowski indicated that Father did not take his drug problem
seriously. Id. at 29, 43. For example, she testified that, following a Family
Services Plan meeting on April 30, 2013, Father did not “talk about being
serious about a treatment program” and made excuses for his positive drug
screens. Id. at 29-30. Ms. Poczkowski agreed that Father would “still have
to do intensive outpatient to completion, and outpatient to completion, and
lack of relapse before DHS would feel that there had been significant
progress concerning his chronic drug additions[.]” Id. at 62.
Father’s failure to remedy his drug problem also was established by
Clinical Evaluation Unit (CEU) reports, which are contained in the certified
record on appeal, and which were presented by DHS during the termination
and goal change hearing. See N.T., 5/20/2014, at 8-12. The reports reveal
that Father underwent a drug and alcohol evaluation on May 9, 2012. DHS
Exhibit 3, at 1. As a result of this evaluation, it was recommended that
Father take part in an intensive outpatient dual diagnosis treatment
program. Id. at 4. At first, Father engaged in treatment inconsistently.
DHS Exhibit 4, at 1-4. By December of 2013, Father was maintaining good
Order of Adjudication and Disposition, 5/1/2012, at 1. The dependency
petition reveals that, at the time the petition was filed, Child was residing
with Father and Mother in the home of her paternal grandmother.
Dependency Petition, 4/18/2012, Statement of Facts at 1-2. Child was
adjudicated dependent as a result of allegations that Father was using drugs,
and that Child was being left alone in his care. Id. at 1-2.
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attendance and participating in treatment. Id. at 5. However, Father had
“regressed to active addiction,” as evidenced by a positive drug test for
cocaine on September 18, 2013, and positive tests for opiates on November
26, 2013, December 2, 2013, and December 12, 2013. Id. Father “was
asked to develop a relapse prevention plan and was offered a higher level of
care to which he refused.” Id. Father’s final positive drug tests took place
on December 20, 2013, when he tested positive for cocaine and opiates, and
on January 28 2014, when he tested positive for alcohol. DHS Exhibit 4 at
6; DHS Exhibit 5 at 1-2. Father began to attend a different treatment
program in February of 2014. DHS Exhibit 4 at 6. As of May of 2014, his
attendance was “sporadic.” Id.
Accordingly, the record confirms that Child has been out of Father’s
care for a period in excess of 12 months, and that the conditions which led
to Child’s placement continue to exist, as Father has failed to remedy his
drug abuse problem. While Father testified that he was now making strides
with regard to overcoming his drug issues, he acknowledged that he had
only stopped using opiates since “the beginning of the year,” which Father
stated was the longest he had gone without a relapse for most of his life.
Id. at 139-41. Because Father’s most recent effort at conquering his drug
addiction took place after DHS filed the petition to terminate his parental
rights, the trial court was not permitted to consider it. See 23 Pa.C.S.
§ 2511(b) (“With respect to any petition filed pursuant to subsection (a)(1),
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(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.”).
Additionally, the record supports the other requirement under Section
2511(a)(8), regarding the needs and welfare of Child. While Father claimed
to have made progress with regard to his drug problem, he admitted that he
did not know how much drug treatment he would need, and that he would
be “battling this disease the rest of my life.” Id. at 170, 173. It is unclear
when, if ever, Father will be able to care for Child. Conversely, Child is
bonded with Grandparents, who already care for her and provide for her
needs. Ms. Poczkowski testified that Child has lived with Grandparents for
the last 21 months. N.T., 5/20/2014, at 45. Child and Grandparents have
developed a “[v]ery strong” bond, and Child treats Grandparents “as if they
were her parents.” Id. at 49. Child appears happy with Grandparents, and
looks to them for affection. Id. Similarly, Grandparents “love and adore”
Child. Id. Ms. Poczkowski opined that it would be in Child’s best interest to
be adopted, and that it would cause Child “serious harm” to be removed
from Grandparents. Id. Ms. Poczkowski’s testimony was confirmed by
foster care case manager Ivy Lloyd, who agreed that Child is bonded with
Grandparents, and that Child would suffer irreparable harm if she were
taken from them. Id. at 117, 119-20, 122. We therefore conclude that the
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trial court did not abuse its discretion in finding that DHS met its burden
under section 2511(a)(8).
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights under Section 2511(b).
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some
citations omitted).
Here, the trial court concluded that termination would be in Child’s
best interests because Child is in a stable environment with Grandparents,
and because Child is bonded to Grandparents. Trial Court Opinion,
7/18/2014, at 4-5 (unnumbered pages). The court also determined that
“[Child] has not had an opportunity to bond with [F]ather due to [F]ather’s
consistent drug abuse,” and that Child would not suffer irreparable harm if
Father’s rights were terminated. Id. at 5. Father argues that the trial court
abused its discretion because, inter alia, Child is bonded to Father. Father’s
Brief at 20-22. He also complains that a bonding evaluation should have
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been conducted because “[t]he DHS worker and Agency worker witnessed
less than three percent of the interactions between [Father] and his [C]hild.
That is not enough of an observation to make a well[-]reasoned decision
about the bond between [Father] and Child in this case.” Id. at 21.
We conclude that the trial court did not abuse its discretion by
terminating the parental rights of Father pursuant to Section 2511(b). As
noted, supra, Child is bonded with Grandparents. Further, Ms. Poczkowski
testified that there was no parent/child bond between Father and Child. Id.
at 57. She noted that Father’s interaction with Child “is somewhat guided”
by Child’s extended family, and explained, “for example, [Father’s mother]
would be like, [Child], go take a picture with your father. [Child], there’s
your DaDa. There’s Daddy. It seems to be forced by outside individuals and
not by the child, herself.” Id. at 58, 91-92. She also noted that Child did
not seem excited to see Father following a period of six weeks during which
he was unable to visit, reportedly due to his conflicting employment
schedule. Id. at 59. Ms. Lloyd agreed that Father’s interaction with Child
was poor and that “Father needs to be redirect[ed] by usually the person
accompanying him to the visit to interact with [Child], more so.” Id. at 115-
17, 121. Both Ms. Poczkowski and Ms. Lloyd stated that Child would not
suffer irreparable harm if the bond with Father were severed. Id. at 63,
122.
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Father and his mother testified that Father and Child are bonded, and
that Father does not require redirection during visits. Id. at 150, 152, 155-
57, 180-82. However, the trial court was free to reject this testimony, and
to credit the statements and opinions of Ms. Poczkowski and Ms. Lloyd.
Additionally, we observe that “[t]his Court has held that the trial court is not
required by statute or precedent to order that a formal bonding evaluation
be performed by an expert.” In re B.C., 36 A.3d 601, 611 (Pa. Super.
2012) (quoting In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010)). Ms.
Poczkowski and Ms. Lloyd witnessed a combined 9 or 10 visits between
Father and Child. N.T., 5/20/2014, at 55, 89, 123. It was for the court to
determine whether this was sufficient to reach an opinion concerning their
parent/child bond, or lack thereof. No relief is due.
Father’s third claim is that the trial court abused its discretion by
changing Child’s permanency goal from reunification to adoption. Father’s
Brief at 22-23. We consider this issue mindful of the following.
[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court's inferences or conclusions of law. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act,
when considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service plan; (3) the
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extent of progress made towards alleviating the circumstances
which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for
the children; (5) a likely date by which the goal for the child
might be achieved; (6) the child’s safety; and (7) whether the
child has been in placement for at least fifteen of the last
twenty-two months. The best interests of the child, and not the
interests of the parent, must guide the trial court. As this Court
has held, 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 A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and
quotation marks omitted).
With respect to this issue, Father contends that it was not in the best
interests of Child to change her permanency goal to adoption. Father’s Brief
at 23. Father argues that he was attempting to reunify himself with Child,
and that the court “should have afforded [Father] the opportunity to reunify
with his daughter given the fact that she had tragically lost her Mother two
years earlier.” Id. Father also asserts, inter alia, that Child spends the
majority of her time in daycare, that Grandparents “are older” and will be “of
advanced age” during Child’s teen years, and that Child “will ultimately
question her background and become curious as to where her natural Father
is.” Id.We again conclude that the trial court did not abuse its discretion. As
discussed supra, Father had ample opportunity to complete drug treatment
over the course of 21 months, but he failed to do so. Further, Child
presently resides with Grandparents, who have provided for Child, and with
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whom Child is bonded. Grandparents are in their “[l]ate 50’s” and in
“[g]ood” health, and there is no reason to conclude that they are too old or
will be incapable of caring for Child. See N.T., 5/20/2014, at 107. While
both Grandparents work outside the homeand Child spends time in daycare
as a result, it was reasonable for the court to conclude that it would be in
Child’s best interest to be adopted. To conclude otherwise would result in
Child’s life continuing to be put on hold in favor Father, whose ability to
overcome his drug addiction and care for Child remains speculative. Father
is not entitled to relief.
Father’s final claim is that “the trial court erred by failing to make a
determination as to the credibility of Father’s testimony.” Father’s Brief at
24. Father argues that the trial court failed to make a “specific
determination” of Father’s credibility as a witness and that, as a result, “it is
impossible for the Appellate Court to determine whether findings of the
[t]rial [c]ourt [are] supported by competent evidence.” Id. We disagree.
Tellingly, Father cites no authority for the proposition that a trial court
must make written findings of credibility as to each witness in order for this
Court to review a case. Moreover, to the extent the trial court’s decree and
opinion contradict portions of Father’s testimony, it is clear that the court
implicitly rejected that testimony. We see no basis on which to conclude
that the trial court abused its discretion.
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Accordingly, because we conclude that none of Father’s claims entitles
him to relief, we affirm the decree and the order of the trial court.
Decree and Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2015
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