Adoption of: A.W.F. etc. Appeal of: J.E.M., father ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.W.F., S.M.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.E.M., NATURAL :
FATHER :
:
:
:
: No. 253 WDA 2017
Appeal from the Order Entered January 9, 2017
in the Court of Common Pleas of Cambria County
Orphans’ Court at No(s): 2016-553 IVT,
2016-554 IVT
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 28, 2017
Appellant, J.E.M. (“Father”), files this appeal from the Order dated
January 6, 2017, and entered January 9, 2017,1 in the Cambria County
Court of Common Pleas granting the petition of the Cambria County Children
and Youth Service (the “Agency”) and involuntarily terminating his parental
rights to his minor, dependent children, A.W.F., a male born in May of 2014,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
While dated January 6, 2017, the order was not entered for purposes of
Pa.R.C.P. 236(b) until January 9, 2017, upon provision of notice. See
Frazier v. City of Philadelphia, 557 Pa. 618, 621-22, 735 A.2d 113, 115
(1999) (holding that “an order is not appealable until it is entered on the
docket with the required notation that appropriate notice has been given”).
See also Pa.R.A.P. 108(a) (entry of an order is designated as “the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b)”).
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and S.M.F., a female born in May of 2013 (collectively, the “Children”),
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).2 After review,
we affirm the trial court’s order.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
...
5. Mother and [Father] are parents to another child who lives
with [Father]. [Father] and his paramour also have a child
the approximate age of two who resides with [Father] and his
paramour.[3] [The Agency] is not involved with [Father]
concerning these two other children. The concerns of [the
Agency] are directed toward [Father]’s ability to parent more
than these two children. A representative of [the Agency]
stated that it has no plans or grounds to remove or oversee
these other two children living with [Father] and his
paramour. This does not make sense to this [c]ourt given the
reasons for termination.
6. The children had been removed from the care of [M]other and
[L]egal [F]ather by emergency order of October 14, 2014.4
____________________________________________
2
By the same Order, the trial court involuntarily terminated the parental
rights of K.M.C. (“Mother”) and H.L.F., Jr. (“Legal Father”) with respect to
the Children. Neither filed a separate appeal, and they are not parties to the
instant appeal.
3
Mother and Father’s oldest child, H., not a subject of this matter, was six
years old at the time of the hearing. Notes of Testimony (“N.T.”), 9/28/16,
at 17; N.T., 10/11/16, at 154. Father’s other child, E., also not a subject of
this matter, is two months younger than A.W.F. and was two years old at
the time of the hearing. Id.
4
Legal Father lived with Mother at the time of the Children’s removal and
the Children were held out as his children. However, it was not until after
removal, when paternity testing was conducted, that it was determined that
(Footnote Continued Next Page)
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There was no water in the home, the house was in a
deplorable state, the children were filthy, and the house
condemned. The family was homeless.
7. At the Permanency Review Hearing held on April 13, 2015,
the Juvenile Court determined that there had been minimal
compliance with the Permanency Plan, and that [M]other had
attended most scheduled visits, however, she made no
progress in housekeeping and had not enrolled in the court
mandated parenting classes. Legal [F]ather had made only
minimal compliance with the Permanency Plan, and neither
parent had made other than minimal progress in alleviating
the circumstances requiring placement of the [C]hildren[.]
8. At the Permanency Review Hearing held on August 17, 2015,
it was determined that neither [M]other, [L]egal [F]ather nor
[Father] had made any progress alleviating the circumstances
which led to the placement, and that there had been no
compliance with the Permanency Plan by any of the parties.
Further, [M]other now failed to attend visits with the
[C]hildren. The Juvenile Court ordered no further services to
[M]other and [L]egal [F]ather, and the permanency goal
concerning them was adoption. As to [Father], the placement
goal became return to parent or guardian with a concurrent
goal of adoption.
9. At the Permanency Review Hearing held on February 15,
2016, the Juvenile Court found that [Father] had moderate
compliance with the Permanency Plan. [Father] was given
three months of continued supervised visits to ascertain his
ability to parent.
10. Dennis Kashurba, a licensed psychologist, performed
evaluations of [Father] on May 13, 2015 and April 8, 2016.
He also performed a psychological bonding study on February
3, 2016.
_______________________
(Footnote Continued)
Legal Father was not the Children’s biological father. N.T., 9/28/16, at 5-6,
10, 13-14, 19-20; Exhibits 1 and 2. Nevertheless, there was testimony as
to prior knowledge that Legal Father was not S.M.F.’s biological father. N.T.,
9/28/16, at 20; N.T., 10/11/16, at 167.
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...
12. In his summary of the May 13, 2015 evaluation, Mr.
Kashurba found that [Father] had a “signigicant degree of
cognitive limitation” with a full scale IQ of “70.”
Mr. Kashurba further stated:
“[Father]’s paramour appeared to express
more affection toward [Father]’s two children than
did he. There was no separation anxiety displayed
by either of [Father]’s children at the end of the visit
when they were returned to the foster mom for
transportation to the foster home.”
13 . In his recommendations Mr. Kashurba stated:
“Continued supervised visitation at [the
Agency] office appears to be the most appropriate
level of interaction between [Father] and two young
children, [S.M.F. and A.W.F.] It does not appear
that [Father] has the intellectual ability to learn and
independently implement parenting strategies for
[the Children] within the foreseeable future that
would warrant consideration as a primary placement
option for these children. Thus, continued foster
care does appear to be in the [C]hildren’s best
interests. In the event that hands-on parenting
training were to be implemented as a means of
obtaining summative evaluation of the developing
parenting skills of [Father]’s paramour, it is
recommended that this be undertaken within the
confines of a setting that would include [H.], who
was not present for today’s visit. This type of
observation and skills training would afford the
opportunity for a parent trainer to provide the
[c]ourt with ongoing input regarding the ability of
[Father] and his paramour to multitask, as would be
necessary in the circumstances associated with
parenting four children, three of whom are two years
of age and younger.”
14 . Following Mr. Kashurba’s recommendation, Professional
Family Care Services were provided to [Father].
The following goals were established:
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“1. Father will properly supervise all children during
visits.
2. Father will gain insight to the [C]hildren’s
development.”
The results were as follows (see Petitioner Exhibit 15):
A. October 2, 2015 – “During these visits,
[Father] managed to supervise the children and keep
them safe. He spent time engaging in play and made
efforts to manage his time with each of them. [Father]
comforted [A.W.F.] when he was upset, encouraged the
children to use ‘please’ and [‘]thank you[,’] encouraged
them to share toys and tried teaching them new things
by talking about colors and shapes. [Father] seems to
understand that staying engaged and playing with the
children will make the visit more enjoyable and less
stressful. He has been receptive of me and made an
effort with suggestions given to him during visits. At
times [Father] can get overwhelmed while supervising
the children, but he has been able to manage them with
some help from [A.B.]”
B. October 28, 2015 – “When [Father]
attended visits without [A.B.], it was clearly more
difficult for him to supervise the children and ensure
their safety. At times [E.] was not being closely
watched and she put small toys in her mouth. This
concern was addressed with [Father] and the
preventive recommendations were discussed. [Father]
made efforts to give [S.M.F.] and [A.W.F.] his attention
along with his other children that participated in the
visits. He was made aware that he needs to make
efforts to spend more time and bond with [A.W.F.], as
during one visit he only had brief interactions with him.
[Father] acknowledges issues brought to his attention
that could be improved upon. There are times of stress
during visits, especially when [Father] is caring for
children on his own.”
C. November 30, 2015 – “[Father] continues to
have some difficulty with proper supervision and safety
of the children. [A.W.F.] was left sitting alone at a
table and fell off the chair. This concern was addressed
with [Father] and preventative recommendations were
discussed. Once identified, [Father] demonstrated an
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ability to better monitor the children. To increase their
safety, he stayed close to [A.W.F.] as he was at the
table, made sure the children were sitting properly on
their chairs, and kept the chairs pushed in while they
sat at the table. During the visit [A.W.F.] was hitting
[E.] with a toy and [Father] did not acknowledge the
behavior. [Father] followed through with suggestions
made to acknowledge when [A.W.F.] is hitting another
child and to set limits with his behavior. He
demonstrated an understanding of setting limits with
[A.W.F.]’s behavior by enforcing the recommendation at
a following visit without needing to be reminded.
[Father] was unaware that it is unsafe for the children
to consume raw cookie dough due to the possibility of
contracting salmonella. He was also unaware that he
has a malfunctioning carbon monoxide detecter [sic].
He was strongly encouraged to get it fixed. . . [.]
[Father] is receptive to recommendations and
suggestions given to him and participates in the pre and
post visit discussions. He acknowledges issues brought
to his attention and makes an effort to correct them in
the visits that follow. He has shown improvement with
his ability to read the children’s cues and be attentive to
their needs.”
D. December 30, 2015 – “[Father] has not
been making much of an effort to continue [b]onding
with [A.W.F.] as he had been during previous visits. He
has given [A.W.F.] one-on-one play time at visits and
brought him toys, but he does not show affection. This
has been addressed with [Father] at the most recent
visit and he acknowledge[s] the suggestions made.
Although [Father] is constantly with the children
showing that he will monitor their safety, it appears
that he slows down or becomes less motivated to
engage with them as the visit goes on. Towards the
end of the visit, he is typically observing them as they
play rather than playing along with them. It was noted
that during a visit at [the Agency] with the caseworker
supervising [Father] did not spend time engaging in
play with the children but instead followed them around
as they played. . . [.] Even though [Father] has been
able to observe the children and provide lunch during
visits, there are concerns that he would not be able to
manage caring for the children on his own if were on a
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full-time basis. There are also concerns that he does
not make continual effort to bond with the children
during visits.”
E. February 4, 2016 – “[Father] has been able
to follow most recommendations made to him. There
have been suggestions which he did not follow or only
followed through at the subsequent visit and then did
not continue thereafter. [Father] observes the children
closely throughout the visits, but he still encountered
incidents of potential harm and unsafe situations. He
spends the entire duration of visit with [S.M.F.] and
[A.W.F.], but his interactions are not fully engaging or
with affection. [Father] seems to care about the well-
being of the children and makes efforts to ensure they
are safe. There are concerns that it would be difficult
for him to manage all of the children on a regular basis.
[Father] has not demonstrated the desire or ability to
bond with [S.M.F.] and [A.W.F.]”
F. February 29, 2016 – “[Father] appeared
overwhelmed while the children were not compliant
during clean up time. He spends the majority of play
time following the children’s lead rather than being the
leader and engaging in activities. Although he
continues to make efforts to engage with the children
and keep them safe during visits, there continues to be
concerns that he would not be able to manage daily
tasks on regular basis while supervising the children.”
G. April 4, 2016 – “[Father] continues to follow
recommendations made to him, although it is not
always with consistency. [Father] appeared
overwhelmed when he took all three children out of the
home setting by himself. He continues to spend the
majority of play time following the children’s lead rather
than being the leader and engaging them in activities.
He makes efforts to have [the] children use more words
to express themselves and communicate their needs.
Although he continues to make efforts to engage with
the children and keep them safe during visits, there
continues to be concerns that he would not be able to
manage daily tasks on a regular basis while supervising
the children.”
H. April 22, 2016 – “While [Father] has
recently began to say ‘I love you’ to the [C]hildren after
certain visits, he does not consistently demonstrate the
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desire or ability to show continued affection with [the
Children] and has not been nurturing toward the
[C]hildren beyond the suggestions made to him. He will
prompt hugs at the beginning and end of visits, but
typically only gives random high fives throughout the
duration of the two hour visit.”
I. April 27, 2016 – “Until the most recent visit,
he typically only gives random high fives throughout
visit and hugs only at the beginning or end of visit.
Although he continues to make efforts to engage with
the children and keep them safe during visits, there
continues to be concerns that he would not be able to
manage daily tasks on a regular basis while supervising
the children.”[5]
15 . In his February 3, 2016 Psychological Bonding Evaluation,
Mr. Kashurba stated that:
“The purpose of the evaluation was to gather
information pertinent to ascertaining the level of
bond between [Father] and the two children in order
to determine whether he should be considered as a
potential placement option for these two children
who are currently in foster care placement.”
The report, Petitioner Exhibit 14, goes on to state that:
“A primary concern for [the Agency] regarding
[Father] being considered as a potential placement
option for the two children is that [Father] is a
founded perpetrator of physical abuse toward the
then 5-year-old daughter to his current paramour.”
Mr. Kashurba goes on to say that:
____________________________________________
5
One or both of Father’s two other children, H. and E., were also present at
visits, including those which continued at the Agency following the inception
of visitation coaching. N.T., 9/28/16, at 41-42, 51; N.T., 10/11/16, at 69-
70. See also Exhibits 15 and 16. Subsequent to the commencement of
visitation, however, Father’s paramour, A.B., with whom he resided, was
excluded from visitation due to concerns as to the permanency of the
relationship. Id. at 61-62; 56.
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“It was difficult to assess the degree of
affection between [Father] and the [C]hildren since
there was such a whirlwind of activity.”
However, he also states:
“In fact, both [S.M.F.] and [A.W.F.] appeared
to display a stronger emotional bond with the bio
mom’s paramour than with either of the biological
parents. . . [.] Overall, there did not appear to be
an emotional bond between either [S.M.F.] or
[A.W.F.] to [Father] that would suggest that
permanency through adoption would be deleterious
to either of them. It also appears that the amount of
progress that [Father] has made in the parenting
domain has been insufficient to suggest that he is
likely to develop independent parenting skills to a
degree that will enable him to be considered as a
primary caregiver for [the Children] in the
foreseeable future.”
16 . In his April 8, 2016 evaluation, Dr. Kashurba stated that:
“The purpose of the evaluation was to update
information pertinent to ascertaining [Father]’s
cognitive level of functioning as this relates to his
ability to be considered as a potential placement
option for two of his children who are currently in
foster care.”
He goes on to state:
“It was this examiner’s opinion that, based
upon the results of the initial psychological
evaluation as well as the bonding study, [Father]
would not be able to develop the ability to
independently parent [the Children] in the
foreseeable future due to his cognitive limitations as
well as his current responsibility for managing two
children who presently reside in the home ([H.] and
[E.]).”
Trial Court Order, filed 1/9/17, at 1-11.
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On June 7, 2016, the Agency filed a petition to involuntarily terminate
Father’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5),
(8), and (b). Thereafter, the Agency filed an amended petition on August
30, 2016.6 The trial court conducted hearings on the termination petition on
September 28, 2016, and on October 11, 2016, at which time the Agency
presented the testimony of the following: Carol Crouse, Agency caseworker;
Dennis Kashurba, licensed psychologist who conducted psychological
evaluations of Father on May 13, 2015, and on April 8, 2016, and a bonding
evaluation on February 3, 2016, with respect to Father and the Children; 7
Molly Humphrey, family support specialist with Professional Family Care
Services; and Sarah Sherry, family support program supervisor and licensed
social worker with Professional Family Care Services. Father presented the
testimony of A.B., Father’s paramour; C.H., Father’s mother; C.M., Father’s
brother; and C.L., Father’s sister. In addition, Father testified on his own
behalf. Legal Father, who was present and represented by counsel on
September 28th, also testified and expressed his desire to consent to the
termination of his parental rights to the Children. N.T., 9/28/16, at 5-10.
____________________________________________
6
The petition was amended to include Legal Father in the caption. N.T.,
9/28/16, at 12.
7
Mr. Kashurba’s psychological evaluations of Father were marked and
admitted collectively as Exhibit 13, and his bonding evaluation of Father and
the Children was marked and admitted as Exhibit 14. See Exhibits 13 and
14. Mr. Kashurba additionally conducted psychological evaluations of Mother
and Legal Father. See Exhibits 11 and 12.
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Mother, who did not appear on September 28th, was present on October 11th
pro se. She did not present any evidence. N.T., 10/11/16, at 182.
Following the hearings and subsequent to the submission of
memoranda, by Order dated January 6, 2017, and entered January 9, 2017,
the trial court involuntarily terminated the parental rights of Father pursuant
to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).8 On February 6, 2017,
Father, through counsel, filed a notice of appeal, along with a concise
statement of errors appointed complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The trial court entered an Order on February 14,
____________________________________________
8
The guardian ad litem, Christopher G. Gvozdich, Esquire, submitted a brief
in support of the termination of Father’s parental rights. See Guardian ad
litem’s Brief. We note here that in a divided decision our Supreme Court
recently held in In re Adoption of L.B.M., 2017 WL 2257203, at * 5 (Pa.
March 28, 2017) that 23 Pa.C.S.A. § 2313(a) requires a trial court to appoint
counsel for a child in contested involuntary termination of parental rights
proceedings. Authoring Justice Wecht, joined by Justices Donohue and
Dougherty, sought to hold that a trial court is required to appoint separate,
independent counsel to represent a child’s legal interests even where the
guardian ad litem is an attorney. However, Chief Justice Saylor, as well as
Justices Baer, Todd, and Mundy, disagreed in separate concurring and
dissenting writings. In sum, the latter four Justices agreed that the trial
court must appoint counsel to represent a child in all contested involuntary
termination hearings, but they did not join that portion of Justice Wecht’s
Opinion that sought to hold a guardian ad litem never may serve as the
child’s counsel. Herein, Father did not raise before the trial court any
concerns which would have created a need to appoint independent counsel
to advocate for the Children, nor does he make any claims on appeal that
the guardian ad litem did not properly represent the Children’s legal and
best interests due to a conflict of interest. Indeed, in this case, Attorney
Gvozdich zealously represented the Children.
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2017, pursuant to which it relied upon its Order entered on January 9, 2017,
and did not issue an additional or subsequent opinion.9
On appeal, Father raises the following issues for our review:
1. Whether the trial court properly considered the evidence that
[ ]Father was appropriately caring for two children not subject
to the present action in making the determination that the
[A]gency met its burden to involuntarily terminate his
parental rights in the present case.
2. Whether the [Agency] had met its burden of terminating
Father’s parental rights by clear and convincing evidence.
Father’s Brief at 2.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., [616 Pa.
309, 325, 47 A.3d 817, 826 (2012)]. “If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion.” Id. “[A] decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” Id. The trial court’s decision,
however, should not be reversed merely because the record
would support a different result. Id. at [325-26, 47 A.3d at]
827. We have previously emphasized our deference to trial
courts that often have first-hand observations of the parties
spanning multiple hearings. See In re R.J.T., [608 Pa. 9, 26-
27, 9 A.3d 1179, 1190 (2010)].
____________________________________________
9
Although not captioned or docketed as such, the trial court referred to its
January 9th order as an opinion and order.
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In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court
is free to believe all, part, or none of the evidence presented, and is likewise
free to make all credibility determinations and resolve conflicts in the
evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation
omitted). “[I]f competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the
child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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 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
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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) (quoting Matter
of Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91
(1998)).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (8), as well as (b).10
Nonetheless, “w[e] . . . may uphold a decision below if there exists any
proper basis for the result reached.” Weber v. Lynch, 346 A.2d 363, 366
n. 6 (Pa.Super. 1975), affirmed, 375 A.2d 1278 (Pa. 1977) (citing Hayes v.
Wella Corp., 309 A.2d 817 (Pa.Super. 1973)). Further, we have long held
that, in order to affirm a termination of parental rights, we need only agree
with the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc).
While he failed specifically to identify Subsections (a) and/or (b),
Father generally challenges the sufficiency of the evidence in terminating his
parental rights.11 However, Father presents argument only related to
____________________________________________
10
We disagree with the trial court as to the application of Section 2511(a)(5)
and (8), as the Children were not removed from Father’s care. See In re
C.S., 761 A.2d at 1200 n.5. See also In re Z.P., 994 A.2d 1108, 1121,
1123 n.3 (Pa.Super. 2010.)
11
While broadly expressed in his concise statement and statement of
questions involved, Father raises a challenge to the sufficiency of the
evidence. See Commonwealth v. Laboy, 594 Pa. 411, 415, 936 A.2d
(Footnote Continued Next Page)
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Subsections 2511(a)(1) and (b).12 Father failed to present argument related
to Subsections 2511(a)(2), (5), and (8) in his appellate brief. As such, we
find that Father has waived any claim regarding these subsections. See In
re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011), appeal denied, 24 A.3d
364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.Super. 2010))
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”).
We, therefore, analyze the court’s decision to terminate under
Subsections 2511(a)(2) and (b), which provide 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:
...
(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.
_______________________
(Footnote Continued)
1058, 1060 (2007) (holding that this Court erred in determining that the
appellant had failed to adequately develop, in his Rule 1925(b) statement,
the claim that the evidence was insufficient to support his conviction).
12
While Father does not expressly present argument with regard to Section
2511(b), he does present discussion and opposition as to the bonding
evaluation which we consider as a challenge pursuant to Section 2511(b).
Id.
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...
(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)(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)(2), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination 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.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002)).
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In the instant matter, in finding the Agency had established a basis for
terminating Father’s parental rights pursuant to Section 2511(a)(2), as well
as (a)(1), (5), and (8), the trial court relied upon the evaluations of Dennis
Kashurba, which noted Father’s cognitive limitations and need to care for
two other children resulted in his inability to develop the skills to parent
independently the Children, as well as the observations of Professional
Family Care Services made during visitations between Father and the
Children. Id. at ¶¶12-16. Significantly, as it relates to Father’s care for his
other two children, the trial court acknowledged, “A representative of [the
Agency] stated that it has no plans or grounds to remove or oversee these
other two children living with [Father] and his paramour. This does not
make sense to this [c]ourt given the reasons for termination.” Id. at ¶5.
A review of the record supports the trial court’s determination of a
basis for termination under Section 2511(a)(2). Mr. Kashurba, who
performed two psychological evaluations of Father as well as a bonding
evaluation of Father and the Children, opined that Father evidenced
“cognitive deficiency” to the extent “that he should not be considered as a
placement option” for the Children. N.T., 10/11/16, at 10. With the two
children Father already had in his care, Mr. Kashurba did not believe Father
possessed “adequate intellectual ability and insight” to parent two additional
children. Id. at 11. Mr. Kashurba further expressed that Father does not
have “the intellectual ability to learn and independently implement parenting
strategies within the foreseeable future.” Id. He noted that Father “had
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limited ability to anticipate potential hazards” and/or “potential
consequences with children’s behaviors as to avoid dangerous outcomes.”
Id. at 19-20. Notably, Mr. Kashurba also recognized that Father was an
indicated perpetrator of physical abuse of the older child of his paramour
who had been removed from the home. Id. at 11, 35. As a result, he
opined that continued foster care was in the Children’s best interest. Id. at
21. Significantly, subsequent to his second psychological evaluation, Mr.
Kashurba remained of the opinion that Father’s cognitive limitations
prevented him from being considered as a placement option for the Children.
Id. at 16. See also Exhibits 13 and 14.
Further, Agency caseworker Carol Crouse testified that Father is not
able to “demonstrate an ability to parent the [C]hildren.” N.T., 9/28/16, at
25. She stated, “Although he is very pleasant for the majority of the time, it
appears that he is very easily overwhelmed. He is very easily distracted and
he does appear to be cognitively limited.” Id. at 25-26. Ms. Crouse, who
supervised a monthly visit at the Agency,13 id. at 27, 41, 62, described, “I
would see [Father] being easily distracted. There were times that the
children would be doing their own thing, wandering around the room.
[Father] was unable to watch all of them. He seemed easily overwhelmed
____________________________________________
13
Ms. Crouse indicated that these monthly visits at the Agency continued
even after visitation coaching services commenced. Id. at 27, 61.
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by the prospect of having all of the children, and that was only in the
confines of an hour visit in the visit room with a closed door.”14 Id. at 27-
28. She testified that she was therefore in favor of the goal change to
adoption.15 Id. at 27.
Similarly, Molly Humphrey and Sarah Sherry, who were involved with
the visitation coaching services provided by Professional Family Care
Services, expressed concerns based upon their interactions with and
observations of Father’s visitation with the Children. 16 In their assessment,
Father failed to demonstrate progress with respect to properly supervising
all of the children and gaining insight into the Children’s development. N.T.,
10/11/16, at 50-51, 79, 100-02. Ms. Humphrey testified to continuing
safety concerns and Father’s need to exert more of an effort to bond with
the Children. Id. at 51-56, 76. She acknowledged “an overall lack of
understanding in. . . the ability to understand what it takes to parent [the
C]hildren effectively and safely.” Id. at 91. As a result, both supported
____________________________________________
14
As indicated, one or both of Father’s two other children, H. and E., were
also present at visits. N.T., 9/28/16, at 41-42, 51; N.T., 10/11/16, at 69-
70. See also Exhibits 15 and 16.
15
As it relates to Father, the trial court changed the Children’s placement
goal to adoption on May 16, 2016. N.T., 9/28/16, at 26; Exhibit 6 at 2, 5-6.
See also Exhibit 8.
16
As explained by Ms. Humphrey, the visitation coaching entailed both
observation and interaction, as well as suggestion. N.T., 10/11/16, at 71-
72.
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and/or indicated that it would be in the Children’s best interest for their goal
to be changed to adoption. Id. at 57, 103-04.
As this Court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa.Super. 2006). Hence, the record substantiates the conclusion
that Father’s repeated and continued incapacity, abuse, neglect, or refusal
has caused the Children to be without essential parental control or
subsistence necessary for her physical and mental well-being. See In re
Adoption of M.E.P., 825 A.2d at 1272. Moreover, Father cannot or will not
remedy this situation. See id. As noted above, in order to affirm a
termination of parental rights, we need only agree with the trial court as to
any one subsection of Section 2511(a) before assessing the determination
under Section 2511(b), and we, therefore, need not address any further
subsections of Section 2511(a). In re B.L.W., 843 A.2d at 384.
We next determine whether termination was proper under Section
2511(b). Our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M. [a/k/a E.W.C. & L.M.
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a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485
(1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791. However, as discussed below, evaluation of a child’s bonds
is not always an easy task.
In re T.S.M., 620 Pa. 602, 628-29, 71 A.3d 251, 267 (2013). “In cases
where there is no evidence of any bond between the parent and child, it is
reasonable to infer that no bond exists. The extent of any bond analysis,
therefore, necessarily depends on the circumstances of the particular case.”
In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “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., 994 A.2d at 1108, 1121 (Pa.Super. 2010) (internal
citations omitted).
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. . . .
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In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33
A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
In the case sub judice, in reasoning that termination of Father’s
parental rights favors the Children’s needs and welfare under Section
2511(b) of the Adoption Act, the trial court stated, “There does not presently
exist any meaningful bond between . . . [Father] with either of these
children.” Further, [i]n terminating the parental rights of these parents, this
[c]ourt has found that this will best meet the developmental, physical, and
emotional needs and welfare of the [C]hildren.” Trial Court Order, filed
1/9/16, at ¶¶ 19, 20.
Father, however, challenges the bonding evaluation. Father’s Brief at
10-11. Father indicates that in the report there is only one comment related
to his bond with the Children. Id. at 10. He also argues that the evaluation
“unfairly” makes a comparison to Mother and her paramour. Id. at 11. He
states:
It should be pointed out in this regard that, when said
assessment was done, [M]other’s paramour had no relationship
to the [C]hildren but was permitted to attend. Father’s
paramour was not permitted to attend. Moreover, when
[M]other and her paramour were being evaluated, there were
two adults and two children. When Father was being evaluated,
there was one adult and three children. Clearly, the
circumstances of the two evaluations were different and not
comparable.
Id. Lastly, Father maintains that the Agency should have utilized another
evaluator, as he posits that Mr. Kashurba had a “predetermined mindset that
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Father could not successfully parent more than one child” and “utilized the
bonding evaluation to underscore his earlier finding as opposed to doing an
evaluation as to the [C]hildren’s relationship and bond to Father.” Id.
Again, we disagree.
Here, the record likewise corroborates the trial court’s termination
orders pursuant to Section 2511(b). There was sufficient evidence to allow
the trial court to make a determination as to the Children’s needs and to the
existence of a bond between Father and the Children that, if severed, would
not have a detrimental impact on them. Specifically, Ms. Crouse recognized
difficulties with the Children’s visits with Father, in particular regarding
A.W.F. She indicated, “There is a lot of tears, there is a lot of crying,
reaching for the foster mother. He has a very difficult time making the
transition from going from the foster family to anybody else.” N.T.,
9/28/16, at 36-37. Further, while acknowledging that S.M.F. was
“comfortable” with Father, she indicated a lack of a bond between Father
and both children. Id. at 33, 36. She stated that A.W.F. “recognizes
[Father] as someone that he sees occasionally at [the Agency] that he
spends some time with and then he goes back to the foster parents.” Id. at
36.
Similarly, Mr. Kashurba, as well as Ms. Humphrey and Ms. Sherry, also
confirmed the lack of a bond between Father and the Children. N.T.,
10/11/16, at 21, 51-52, 57, 102-03. Notably, Mr. Kashurba offered, “[M]y
impression was that there did not appear to be an emotional bond between
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either [child] to [Father], that would suggest that permanency through
adoption would be deleterious to either of them.” Id. at 21. He further
stated, “I didn’t observe what appeared to be a parent/child bond on either
of those children toward [Father]. I had more the impression that they were
interacting in a play area, where they perhaps at a playground they see a
certain neighbor on a frequent or infrequent basis and so they are
comfortable enough doing whatever they want to do.” Id. at 32.
Moreover, and more importantly, the Children, who are placed
together, are doing well in their foster placement, where they have been
placed since removal and commitment, and have formed a positive
relationship with their foster family. N.T., 9/28/16, at 34-36. As reported
by Ms. Crouse, “[S.M.F.] is doing fantastic in her placement. Her speech is
improving dramatically. She does very well with potty training. She can
follow directives. She engages others in play with her. She is wonderful.”
Id. at 34. Ms. Crouse further noted positive changes in that S.M.F. is no
longer “parentified.” Id. “She is no longer her brother’s mother. She is his
sister.” Id. Ms. Crouse also described a “very strong bond” between S.M.F.
and her foster parents. Id. at 35. Likewise, as to A.W.F., Ms. Crouse
stated, “He does fantastic in the foster family. He is a very bright little boy.
He is working on potty training. He is very attached to the foster mother.
He would look out the window and yell for mommy. He is very attached to
the siblings who are the children of the foster parents. He does very well in
that setting.” Id. at 36.
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Lastly, and significantly, as indicated above, Ms. Humphrey expressed
that Father has “an overall lack of understanding in. . . the ability to
understand what it takes to parent [the C]hildren effectively and safely.”
N.T., 10/11/16, at 91. As such, referencing the length of time the Children
have been in care and the inability to provide “a safe and stable home,”
despite the provision of services, Ms. Crouse opined that it is “in best
interests of [the Children] if parental rights terminated and these children
would be permitted to move on and achieve permanency through adoption.”
N.T., 9/28/16, at 37-38. See also Exhibit 10. In addition, she agreed that
“severing any potential bond would promote needs and welfare of
[C]hildren.” Id. at 38. Ms. Crouse explained, the Children “need to be
given the opportunity to achieve permanency and to have a home where
they know that’s where they are going to stay and they are not going to
have to go visit other people and go into strange offices, that they’re going
to have a family that is always going to be there for them.” Id. Further,
Mr. Kashurba expressed that “removal from their present foster care setting
would be more deleterious to the [C]hildren than would severing the bond
with [Father] for adoption as recommended by [the Agency].” N.T.,
10/11/16, at 16.
Thus, as confirmed by the record, termination of Father’s parental
rights serves Children’s developmental, physical, and emotional needs and
welfare. While Father may profess to love the Children, a parent’s own
feelings of love and affection for a child, alone, will not preclude termination
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of parental rights. In re Z.P., 994 A.2d at 1121. As we stated, a child’s life
“simply cannot be put on hold in the hope that [a parent] will summon the
ability to handle the responsibilities of parenting.” Id. at 1125. Rather, “a
parent’s basic constitutional right to the custody and rearing of his child is
converted, upon the 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.” In re B., N.M., 856 A.2d at 856
(citation omitted).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2017
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