In the Interest of: J.M.D., a Minor ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.M.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.D., FATHER
: No. 2692 EDA 2016
Appeal from the Order Entered July 25, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations Division at No(s): CP-51-AP-0000607-2016;
FID: 51 -FN -001355-2013
BEFORE: OLSON, SOLANO, and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 04, 2017
T.D. ("Father") appeals from the decree and order entered on July 25,
2016, terminating his parental rights to his female child, J.M.D. ("Child")
(born in April of 2006), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511,
and changing the permanency goal for Child to adoption pursuant to the
Juvenile Act, 42 Pa.C.S.A. § 6351.1 We affirm.
In its opinion entered on November 29, 2016, the trial court set forth
the following factual background and procedural history of this appeal, which
we incorporate as this Court's own. See Trial Court Opinion, 11/29/16, at 2-
1
In a separate decree entered on that same date, the trial court terminated
the parental rights of Child's mother, J.R. ("Mother"). Mother has not filed
an appeal from the termination of her parental rights to Child, nor is she a
party to the instant appeal.
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18. Importantly, on July 8, 2016, the Philadelphia Department of Human
Services ("DHS" or "the Agency") filed a petition to involuntarily terminate
Father's parental rights and change Child's permanency goal to adoption.
On July 25, 2016, the trial court held an evidentiary hearing on the
termination and goal change petitions.2 The trial court issued findings of
fact with regard to the evidentiary hearing as follows.
T.D., Father[,] was present and represented by his attorney.
(N.T. 7/25/2016, p.6 at 14-18).
The Assistant City Solicitor's first witness was Sherice Blount,
DHS Social Worker, assigned to this family's case in August 2015
until April 2016. She noted that in January 2013, there was a
GPS Report that alleged that J.M.D. pushed her brother down a
flight of stairs. That Report was substantiated. There was a
subsequent GPS Report in March 2013 with allegations that the
home was dirty and it lacked appropriate food. There were also
allegations that Mother was using marijuana and cocaine, and
using her food stamps to purchase the drugs. That Report was
substantiated. DHS implemented in -home protective services
and subsequently the Children came into placement. (N.T.
7/25/2016, p.16 at 13-25; p.17 at 1-10).
[Ms. Blount] testified a Family Service Plan (FSP) Meeting was
held on July 22, 2015, and Father's objectives were that he
would make his whereabouts known. Prior to that, the [c]ourt
[o]rdered Father on May 13, 2015, to provide mental health
documentation. (N.T. 7/25/2016, p.21 at 24-25; p.22 at 1-3;
p.25 at 17-25).
Ms. Blount further testified that the Court found on July 28, 2015
that Father had not provided DHS with a copy of the Mental
2 In its opinion, the trial court noted that Child's four siblings: D.C. (born in
December of 2008); E.T. (born in April of 2010); L.R. (born in July of 2012);
and J.R. (born in August of 2014), were also subjects of the hearing on July
25, 2016. Trial Court Opinion, 11/29/16, at 1 n.1, 16 n.2.
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Health Report as [o]rdered by the [c]ourt at the last listing.
Further[,] the [c]ourt found that the parents have not visited
[c]hild on a consistent basis. She noted that she had never met
the Father and today at this hearing was the first time she had
seen him. (N.T. 7/25/2016, p.27 at 13-25; p.28 at 1-13).
Ms. Blount testified that the FSP and other documentation had
been mailed to Father at the address that the Agency had,
however, she never had contact with him. She noted that during
the term of her involvement in the case there was no contact
between [] Child and [] Father. (N.T. 7/25/2016, p.30 at 10-
19).
Ms. Blount stated she believed there was no bond between []
Child and Father because Father had never contacted her nor the
previous DHS worker, nor had he contacted [] Child. She opined
that [] Child would not suffer irreparable harm if Father's
parental rights were terminated. (N.T. 7/25/2016, p.31 at 7-
19).
Regarding the foster parent, M.A., Ms. Blount stated [] Child is
bonded with her foster parent. She observes caring and
affection between the two, and [] Child is very helpful to her
foster parent, listens and tries hard to follow the directions of
her foster parent. Ms. Blount believes it is in the best interest of
[] Child (and the other [c]hildren) that they be adopted. (N.T.
7/25/2016, p.31 at 20-25; p.32 at 1-14).
The next witness to testify was Kamesh Callands, the CUA
Wordsworth [c]aseworker. She stated she was assigned this
case in April 2016, and noted that Father never contacted her
nor visited [] Child. She noted letters were sent to Father,
however, he never responded. She opined there is no parental
bond between [] Child and Father because Father has not visited
her. Also she believes [] Child would not suffer irreparable harm
if Father's parental rights were terminated. (N.T. 7/25/2016,
p.33 at 6-25; p.34 at 1-8, 20-25; p.35 at 1-2).
Regarding the [f]oster [p]arent, M.A., Ms. Callands stated []
Child is safe and all her needs are being met by the [f]oster
[m]other. The safety date for the [c]hildren was 7/13/2016.
Ms. Callands reported that they are bonded. M.A. is a great
caregiver and parent to [] Child and the rest of the [c]hildren.
Only one sibling, J.R., is not in the same home. Further, Ms.
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Callands noted that M.A. is the pre -adoptive home foster parent
through Devereaux. She opined it is in the best interest of []
Child to be adopted. (N.T. 7/25/2016, p.35 at 3-22).
Father, T.D., was next to testify. He stated he has telephone
contact with [] Child every two months, and the last time he
spoke to her was before the summer began. He stated he spoke
to her for about 20 minutes and asked her how school was and
how she was doing. He finally stated he does not want his
parental rights terminated. (N.T. 7/25/2016, p.39 at 16-25;
p.40 at 1-25; p.41 at 1-14).
Trial Court Opinion, 11/29/16, at 16-18 (footnote omitted).
At the conclusion of the hearing, the trial court found clear and
convincing evidence to terminate Father's parental rights and change Child's
permanency goal to adoption, and entered its termination decree and goal
change order. On August 22, 2016, Father filed a notice of appeal with
concise statement of errors complained of on appeal pursuant to Pa.R.A.P
1925(a)(2)(i) and (b).
In his brief on appeal, Father raises the following issues:
1. Whether the trial court erred in terminating Appellant's
parental rights under 23 Pa.C.S.A. section 2511(a)(1), the
evidence having been insufficient to establish Father had
evidenced a settled purpose of relinquishing parental claim, or
having refused or failed to perform parental duties[?]
2. Whether the trial court erred in terminating Appellant's
parental rights under 23 Pa.C.S.A. section 2511(a)(2), the
evidence having been insufficient to establish Father caused
[C]hild to be without essential parental care, nor could that not
have been remedied[?]
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Father's Brief, at 5.3
Father argues that the evidence is insufficient to demonstrate that he
lacks the capacity to parent. He contends that the record merely reflects a
vague reference relating to his failure to produce his mental health report.
According to Father, this failure is clearly insufficient for DHS to meet its
burden of proof. See Father's Brief at 8, 12.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court's determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). 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.; R.I.S., 36 A.3d 567, 572 (Pa.
2011) (plurality opinion). As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Id.; see also
Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51
(Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of discretion
3 Father does not challenge section 2511(b) in either his concise statement
or his statement of questions involved portion of his brief. We, thus, find
that he waived the issue. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal). For the same reason, Father has waived any challenge
to the change in permanency goal to adoption.
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only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill -will. Id.As we discussed in R.J.T., there are clear reasons for applying
an abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact -specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court's legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined as
testimony that 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."
Id. quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court's decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). We will focus on section 2511(a)(2) and (b), and review Father's
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challenges together, as did the trial court. Section 2511(a)(2) and (b)
provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule. --The rights of aparent 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.
* * *
(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.
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
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mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
Termination is warranted pursuant to subsection (a)(2), as Father
clearly lacks parental capacity, and the evidence showed that he will be
unable to remedy that situation within a reasonable period of time, if ever.
As there is competent evidence in the record that supports the trial court's
findings and credibility determinations, we find no abuse of the trial court's
discretion in finding that Father's parental rights should be terminated under
section 2511(a)(2). In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa.
2012).
Although Father waived any challenge to section 2511(b), we will
analyze the sufficiency of the evidence under that section in accordance with
our caselaw. We have explained that the focus in terminating parental
rights under section 2511(a) is on the parent, but it is on the child pursuant
to section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008
(Pa. Super. 2008) (en banc). In reviewing the evidence in support of
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termination under section 2511(b), our Supreme Court recently 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.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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) (internal
citations omitted). Although it is often wise to have a bonding evaluation
and make it part of the certified record, "[t]here are some instances . .
where direct observation of the interaction between the parent and the child
is not necessary and may even be detrimental to the child." In re K.Z.S.,
946 A.2d 753, 762 (Pa. Super. 2008).
A parent's abuse and neglect are likewise a relevant part of this
analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
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dangerous, it is logically unsound. If a child's feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . .
Nor are we of the opinion that the biological connection between
[the parent] and the children is sufficient in and of itself, or
when considered in connection with a child's feeling toward a
parent, to establish a de facto beneficial bond exists. The
psychological aspect of parenthood is more important in terms of
the development of the child and [his or her] mental and
emotional health than the coincidence of biological or natural
parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations
and quotation marks omitted). Thus, the court may emphasize the safety
needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa. Super.
2008) (affirming the involuntary termination of the mother's parental rights,
despite the existence of some bond, where placement with the mother would
be contrary to the child's best interests, and any bond with the mother
would be fairly attenuated when the child was separated from her, almost
constantly, for four years).
The trial court found as follows with regard to section 2511(a)(2) and
(b):
The [r]ecord demonstrates Father's lack of bond with [] Child
and lack of contact with [] Child, claiming he had telephone calls
every two months. It is clear by the evidence presented that
there is no bond between Father and [] Child. Credible evidence
was presented of Father's lack of presence and lack of
communication with Agency personnel and with [] Child.
After hearing the credible testimony of Sherice Blount, the DHS
Social Worker, and Kamesh Callands, the CUA Wordsworth
Caseworker, the [c]ourt found by clear and convincing evidence,
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that their observations and conclusions regarding Father's
noncompliance with the FSP objectives, and lack of contact and
communication were persuasive.
* * *
The documents and testimony provided this [c]ourt with clear
and convincing evidence that termination of Father's parental
rights would be in the best interest of [] Child. This [c]ourt finds
credible the testimony from the [a]gency staff members that []
Child would not suffer irreparable harm if Father's rights were
terminated and that termination of Father's parental rights would
be in the best interest of [] Child. The evidence was clear that
Father did not make the effort to communicate with the Agency
nor did he contact [] Child. [] Child currently lives in a nurturing
and loving home with the [f]oster [m]other, who is bonded to []
Child and meets all of her emotional and physical needs.
CONCLUSION
The [c]ourt found that Father repeatedly failed to complete
objectives and failed to make contact or communicate with the
Agency and with [] Child. The [c]ourt was not persuaded that
Father could or would resolve these issues in the near future to
provide permanency and safety for [] Child.
At the conclusion of the hearing the Court stated:
Regarding [] Child, J.M.D., the evidence is clear and
convincing that both parents have failed to remedy any of
the issues that brought [] Child into care, have failed to
create a parental bond with [] Child and will not be able
to create a parental bond with [] Child going forward.
Notwithstanding Father's testimony[,] the existence of a
few phone calls every couple of months does not make a
parent nor does it create a likelihood that he would be
able to parent [] Child.
She has been in care since 2014, with the same caretaker
and the evidence is uncontested that she has in fact
formed a parental bond with the existing caretaker and
does not have a parental bond with either of her natural
parents.
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With respect to Father, the evidence established under
Section 2511(a)(1) and (2), since [] Child was not in
Father's care when removed and the placement has been
in excess of one year,[sic] in addition [Section] 2511(b)
is satisfied because again there would be no harm in
severing a relationship that does not exist. Father's
rights are terminated as well as Mother's rights are
terminated. And the goal may be moved to adoption for
[] Child." [sic]
(N.T. 7/25/2016, p.42 at 10-25; p.43 at 1-17).
[c]ourt respectfully requests that
For the foregoing reasons, this
the Order of July 25, 2016 [t]erminating Father, T.D.'s
[p]arental [r]ights and changing the [p]ermanency [g]oal to
[a]doption, be AFFIRMED.
Trial Court Opinion, 11/29/16, at 19-22.
Our Supreme Court has observed that the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition, and that "[e]ven the most abused of children will often
harbor some positive emotion towards the abusive parent." See In re:
T.S.M., 71 A.3d at 267 (quoting In re K.K.R.-S., 958 A.2d at 535). The
Supreme Court instructed, "[t]he continued attachment to the natural
parents, despite serious parental rejection through abuse and neglect, and
failure to correct parenting and behavior disorders which are harming the
children cannot be misconstrued as bonding." In re: T.S.M., 71 A.3d at 267
(quoting In re Involuntary Termination of C.W.S.M., 839 A.2d 410, 418
(Pa. Super. 2003) (Tamilia, J. dissenting)).
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We have explained that a parent's own feelings of love and affection
for a child, alone, do not prevent termination of parental rights. In re Z.P.,
994 A.2d at 1121. Further, this Court has stated: "[A] parent's basic
constitutional right to the custody and rearing of . . . her child is converted,
upon the failure to fulfill . . . her parental duties, to the child's right to have
proper parenting and fulfillment of [the child's] potential in a permanent,
healthy, safe environment." In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (internal citations omitted). It is well -settled that "we will not toll the
well-being and permanency of [a child] indefinitely." In re Adoption of
C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting that 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.")).
After a careful review of the record in this matter, we find the record
supports the trial court's factual findings, and the court's conclusions are not
the result of an error of law or an abuse of discretion. In re Adoption of
S.P., 47 A.3d at 826-827. There was sufficient, competent evidence in the
record for the trial court to find the grounds for termination of parental
rights under section 2511(a)(2), due to parental incapacity that cannot be
remedied. There was also sufficient, competent evidence in the record for
the trial court to find that Child's best interests are served by her foster
mother, and that no bond exists between Child and Father such that Child
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would suffer permanent emotional harm from the termination of Father's
parental rights. We therefore affirm the order terminating Father's parental
rights with regard to Child under section 2511(a)(2) and (b).
Decree and order affirmed.
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 4/4/2017
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