In Re: E.G.J., minor, Appeal of: T.J. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.G.J., A/K/A E.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.J., BIRTH FATHER : No. 776 WDA 2016
Appeal from the Order Entered May 3, 2016,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-0000011-2016
IN RE: B.V.J., A/K/A B.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.J., BIRTH FATHER : No. 777 WDA 2016
Appeal from the Order Entered May 3, 2016,
in the Court of Common Pleas of Allegheny County
Civil Division at No. CP-02-AP-0000010-2016
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 06, 2017
T.J. (“Father”) appeals from the orders dated May 2, 2016, and
entered May 3, 2016,1 in the Court of Common Pleas of Allegheny County,
Orphans’ Court Division, granting the petition of the Allegheny County Office
* Retired Senior Judge assigned to the Superior Court.
1
While the order was dated May 2, 2016, notice pursuant to Pa.R.C.P. 236
was not provided until May 3, 2016. See Frazier v. City of Philadelphia,
735 A.2d 113, 115 (Pa. 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”).
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of Children, Youth and Families (“OCYF”) and involuntarily terminating his
parental rights to his dependent children, daughter, E.G.J., born in March of
2008, and son, B.V.J., born in August of 2006 (collectively, the “Children”),
pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).2
After review, we affirm.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
OCYF became involved with this family on June 19,
2014, subsequent to allegations made by the oldest
sibling, J.J., that Father was sexually abusive.
Father was charged in criminal court and was
ordered as a term of his bond to leave the home and
have no contact with his children.[3] At a forensic
interview on September 2, 2014, OCYF learned that
Father stayed overnight in the family’s home. Father
was arrested for Violation of Bond and Mother was
arrested for Endangering the Welfare of Children.
The Children were placed with family members.
On October 17, 2014, the Children were placed
with their Maternal Aunt [] at Mother’s request and
have since remained in her care.[4] On November 7,
2
By the same orders, the trial court also involuntarily terminated the
parental rights of Children’s mother, R.J. (“Mother”), also pursuant to
Sections 2511(a)(2), (5), (8), and (b). Mother has filed appeals at Superior
Court Docket Nos. 780 and 781 WDA 2016, addressed by separate
memorandum.
3
A criminal no contact order was in place with regard to Father and J.J.
Mother was to supervise any contact between Father and the other children.
(Notes of testimony, 5/2/16 at 11-12.)
4
Children were initially informally placed with extended family members
following Mother’s arrest in September 2014. Children were then placed
with maternal aunt in Ohio on October 17, 2014. (Notes of testimony,
5/2/16 at 13-16.)
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2014, the Children were adjudicated dependent as to
Father due to substantiated allegations of sexual
abuse against him by J.J.[5] Father did not receive
any treatment for sexually offending and continued
to have contact with the other children. The Family
Services Plan (hereinafter, “FSP”) did not provide
Father with goals. Father’s criminal attorney
informed [OCYF] that Father would not cooperate
with OCYF. Father was ordered by this Court to
complete a risk assessment and have no contact with
the Children.
At a hearing on February 13, 2015, this Court
determined that Father was not acknowledging the
sexual abuse of his oldest child. In May of 2015, the
Children alleged sexual abuse by Father. The
charges surrounding these allegations were later
withdrawn. The Children continued to allege abuse
against Father after the initial claims were made.[6]
On August 20, 2015, Father was convicted of
sexual abuse against J.J. and incarcerated. Father
was sentenced “to be confined for a minimum period
of 66 Month(s) and a maximum period of
160 Month(s)” for the offense of Rape Forcible
Compulsion. He was to “be confined for a minimum
period of 30 Month(s) and a maximum period of
60 Month(s)” for the offense of Statutory Sexual
Assault. Additionally, Father received a sentence to
“be confined for a minimum period of 24 Month(s)
and a maximum period of 48 Month(s)” for Incest.
Father was placed on probation for Corruption of
Minors, Endangering the Welfare of Children, and
Indecent Assault of a Person Less than 16 Years of
Age. Father will have a lifetime registration under
5
Children’s three older siblings, who are placed separately, were also
adjudicated dependent. In adjudicating Children dependent, the court
additionally considered the behavior of Mother. (Notes of testimony, 5/2/16
at 18-20.)
6
Children additionally made allegations against Mother. These allegations,
however, were unfounded. (Notes of testimony, 5/2/16 at 47-48.)
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Megan’s Law as a Tier 3 offender. Father has since
remained incarcerated.
Prior to November 2015, Father was not
permitted to have contact with the Children. On
November 20, 2015, this Court permitted Father to
write letters to the Children to be read during their
therapy sessions if their therapist deemed them
appropriate. . . .
Trial court opinion, 7/25/16 at 3-5 (footnotes omitted and citations to record
omitted).
On January 25, 2016, OCYF filed petitions to involuntarily terminate
parental rights. Thereafter, the trial court conducted a hearing on May 2,
2016.7 In support of the termination petitions, OCYF presented the
testimony of Clare Chiaverini, CYF caseworker; Dr. Beth Bliss, licensed
psychologist, who performed a risk assessment of Father and individual and
interactional evaluations of Children, Mother, and Maternal Aunt; 8 and
Sophia Sparks, Children’s therapist. Mother testified on her own behalf.
Mother additionally presented the testimony of her brother, S.M. Father,
who is incarcerated, was present, but did not testify.
7
A permanency review hearing with regard to Children’s three older siblings
was also conducted at this time.
8
Dr. Bliss’ assessments and/or evaluations were completed on
November 24, 2014, September 29, 2015, and April 8, 2016, and were
marked and admitted collectively as OCYF Exhibit 5 at the hearing on May 2,
2016.
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By order dated May 2, 2016, and entered May 3, 2016, the trial court
involuntarily terminated Father’s parental rights to Children.9 On May 31,
2016, Father, through counsel, filed timely notices of appeal, along with
concise statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issue for our review:
Did the trial court abuse its discretion and/or err as a
matter of law in concluding that [OCYF] met its
burden of proving that termination of Birth Father’s
parental rights would meet the needs and welfare of
the Child pursuant to 23 Pa.C.S.[A. §] 2511(b) by
clear and convincing evidence?
Father’s brief at 7.
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., 47 A.3d 817, 826 (Pa.
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 827. We have
previously emphasized our deference to trial courts
that often have first-hand observations of the parties
9
The trial court announced its decision, memorialized by subsequent order,
on the record at the conclusion of the hearing on May 2, 2016.
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spanning multiple hearings. See In re R.J.T., 9
A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 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 guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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.
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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), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), and (8), as well as (b). 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). Here, Father concedes grounds for
termination under Section 2511(a)(2). (See Father’s brief at 15.) We,
therefore, analyze the court’s termination pursuant to Section 2511(b) only,
which provides as follows:
(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
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therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(b).
With regard to 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.,
620 A.2d [481, 485 (Pa. 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., 71 A.3d at 267. “[I]n 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) (citations 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 1108, 1121 (Pa.Super. 2010), citing
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In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008) (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. .
..
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015), quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and
citations omitted).
Instantly, in examining Section 2511(b) and determining whether
termination of Father’s parental rights serves Children’s needs and welfare,
the trial court emphasized Father’s lack of bond with Children due to lack of
contact; safety concerns as a result of Children’s consistent allegations of
abuse against Father and fear of Father; the negative psychological impact
of the proceedings and alleged abuse on Children; and Children’s positive
relationship with Maternal Aunt. (Trial court opinion, 7/25/16 at 6-10.) The
trial court reasoned:
Here, this Court judiciously evaluated the bond
between Father and the Children and determined
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that there was no indication that an emotional bond
exists to the extent that the termination of parental
rights of Father would cause the Children to suffer
extreme emotional consequences. In reaching this
conclusion, this Court weighed the totality of the
circumstances and relied upon the testimony of OCYF
Caseworker, Ms. Chiaverini, counselor for the
Children, Ms. Sparks, and Dr. Bliss.
The Children have been out of the care of both
parents since September of 2014. This is a
significant period of time in which the Children have
had little contact with Father. . . .
....
Ms. Sparks testified that the Children have
mixed emotional reactions to Father’s letters that
they have read during therapy sessions. B.J. stated
that “. . . it makes him remember things that have
happened that he doesn’t want to remember.”
Ms. Sparks is concerned about the stress, anxiety,
and fear that the Children experience surrounding
this contact with Father. While Father has continued
to write letters to the Children, this is merely passive
contact between Father and the Children. This Court
does not believe that the superficial relationship
arguably established by the letters is demonstrative
of or akin to a parent-child relationship.
....
This Court determined, based on the testimony
of Ms. Sparks and Dr. Bliss, that the Children would
be unsafe if they had contact with Father. The
Children have continued to allege sexual abuse
against Father. . . . Ms. Sparks testified that the
Children’s allegations made against Father have been
consistent over time. The Court credited Ms. Sparks’
testimony that the Children fear their Father and that
severing this relationship would not cause extreme
emotional consequences. The Children have
consistently alleged that they were abused by Father
and repeatedly expressed fear that it would happen
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again. This Court believes that the Children would
be harmed if contact were to continue between them
and their Father.
During Father’s risk assessment on
November 24, 2014, Dr. Bliss described that Father
“was cautious regarding talking about sexual abuse
allegations. . .” In the personality test portion of the
evaluation, Dr. Bliss testified that “. . . he responded
in a guarded and defensive manner. He was not
willing to admit to even normal levels of any
problems.” This Court believes that Father’s
defensive response to the evaluation questions asked
by Dr. Bliss raises concerns regarding his ability to
assume responsibility for his actions. Dr. Bliss
recommended that Father attend individual
outpatient counseling and, if he was found guilty of
the alleged sexual offenses, sex offender treatment.
Father has failed to participate in any form of
therapy despite Dr. Bliss’ recommendation.
With regard to the Children’s evaluations,
Dr. Bliss testified that B.J. was diagnosed with Post
Traumatic Stress Disorder (PTSD) attributed to the
events surrounding their current OCYF case and the
alleged abuse. Dr. Bliss also testified that E.J. was
diagnosed with adjustment disorder attributed to the
same circumstances. These mental health diagnoses
in addition to the Children’s disclosure that they are
fearful of their Father are significant and were
weighed heavily in this Court’s decision to terminate
rights.
The Children have clearly expressed their
desire to continue residing with [Maternal Aunt].
Dr. Bliss believes that the Children would be
traumatized if they were removed from [Maternal
Aunt]’s home. Dr. Bliss recommended “that [the
Children] remain with their aunt.” Ms. Chiaverini
continues to assert that it is the agency’s position
that termination of parental rights would meet the
needs and welfare of the Children. Ms. Chiaverini
testified that the Children “. . .are doing well in their
foster home. They seem to be bonded to their foster
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family. They seem to feel safe there.” Dr. Bliss
testified that the relationship between [Maternal
Aunt] and the Children is not the same as a
parent-child relationship, however, she clarified that
is because they were primarily raised by their Mother
and Father. Dr. Bliss asserted that the Children and
[Maternal Aunt] demonstrated a very close and
positive relationship.
The evidence presented established that the
Children share a significant bond with [Maternal
Aunt]. Continued contact with Father would not
serve either child. Therefore, considering the
totality-of-the-circumstances, this Court concludes
that the developmental, physical, and emotional
needs and welfare of the Children would be best
served by terminating Father’s parental rights.
Trial court opinion, 7/25/16 at 6-10 (footnote omitted and citations to record
omitted).
Father, however, argues that a bond was present between him and
Children. (Father’s brief at 17.) Further, Father indicates that the trial court
improperly focused on Children’s continued allegations of sexual abuse
against him, as well as his “defensive” behavior when questioned by
Dr. Bliss. (Id. at 18.) Father avers that the trial court failed to examine the
emotional trauma that Children may suffer if his parental rights are
terminated, instead concentrating on the impact of maintaining Father’s
parental rights.10 (Id. at 19.) We disagree.
10
While Father does not complete this thought in his brief, we, however, do
not hold this against him.
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Upon review, the record supports the trial court’s finding that
Children’s needs and welfare favor termination of Father’s parental rights.
Children had been out of Father’s care for almost two years and only had
limited letter contact through and as deemed appropriate by their therapist
for six months.11 (Notes of testimony, 5/2/16 at 13-16, 29-20.) Children
consistently made allegations of abuse against Father and expressed a fear
of returning home and lack of safety. (Id. at 34-35, 130-131, 133, 135,
176-177, 181, 190, 192, 210, 225.) In addition, B.V.J. was diagnosed with
post-traumatic stress disorder and E.G.J. with adjustment disorder related to
the alleged abuse and/or involvement of OCYF. (Id. at 190, 192-193, 221.)
Symptoms centered around court appearances, evaluations, or family
visitation and/or contact. (Notes of testimony, 5/2/16 at 139, 145-146;
189-190; Exhibit 5, Psychological Evaluation 4/8/16, report dated 4/13/16,
at 17, 18, 20.) As a result, Children ultimately desire limited future contact
with Father. (Id. at 190; 19.)
Moreover, and more importantly, Children feel safe with and want to
remain with Maternal Aunt, with whom Dr. Bliss observed they are bonded
and have a “positive,” “close” relationship. (Id. at 130, 133, 136, 138-139,
144, 149-150, 179, 184, 185, 196; 19.) E.G.J., in particular, “appeared
11
Although Dr. Bliss references E.G.J.’s report of text messages from Father,
there is no further substantiation of such contact in the record, nor does the
record reveal the identity of parties to such contact. (Exhibit 5,
Psychological Evaluation 4/8/16, report dated 4/13/16, at 10.)
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strongly bonded” to Maternal Aunt. (Id. at 197; 19.) As such, Dr. Bliss
opined that Children should remain in Maternal Aunt’s care. (Id. at 223-
224; 20.) Thus, we conclude that the trial court did not abuse its discretion
in finding termination of Father’s parental rights serves Children’s needs and
welfare pursuant to Section 2511(b).
Accordingly, based on the foregoing analysis of the trial court’s
termination of Father’s parental rights, we affirm the orders of the trial
court.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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