In the Int. of: M.S.J., Appeal of: J.J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.S.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.J., FATHER :
:
:
:
: No. 779 EDA 2020
Appeal from the Order Entered February 19, 2020,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000347-2019.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 24, 2020
In this matter, Appellant J.J. (Father) appeals from the order
involuntarily terminating his parental rights to his two-year-old daughter
M.S.J. (Child) pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), (8), and (b).1 We affirm.
The trial court summarized the pertinent factual and procedural history
in its opinion:
[Child] has been in care continuously for approximately two
and a half years. [The Philadelphia Department of Human
Services (DHS)] initially became involved with this family
when Child tested positive for cocaine. An Order of
Protective Custody (OPC) was subsequently obtained due to
the positive drug screen and concerns regarding Mother’s
lack of housing and [the presence of] domestic violence. In
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* Retired Senior Judge assigned to the Superior Court.
1 Mother consented to the termination of her parental rights, and thus is not
a party to this appeal.
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September 2017, [Child] was adjudicated dependent and
committed to DHS because [Child] was “without proper care
or control, subsistence, education as required by law or
other care or control necessary for his physical, mental, or
emotional health or morals.” Based on those concerns Fred
Anderson, the Community Umbrella Agency (CUA) case
manager supervisor, testified that his agency established a
single case plan objectives for Father [to accomplish
reunification].
On May 7, 2019, DHS filed petitions to involuntarily
terminate Father’s parental rights to [Child] pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) and to change
[Child’s] permanency goal to adoption. [The trial court]
conducted a combined termination and goal change hearing
(TPR hearing) on February 19, 2020. At the hearing, Mr.
Anderson testified that Father’s single case plan objectives
were as follows: (1) attend Menergy, a domestic violence
program; (2) attend ARC for housing and employment; (3)
attend visitation. Regarding Father’s compliance with his
objectives, Mr. Anderson testified that Father only attended
one session of Menergy in two and a half years.
Additionally, Father never completed housing at the ARC
and did not have housing at the time of the TPR hearing.
Father was offered supervised visits with [Child] but
hadn’t been consistently visiting. Lauren Wade, the
visitation coach, testified that Father attended four of fifteen
offered visits between November 2019 and February 2020.
Ms. Wade testified that Father had cancelled several visits
at the last minute or failed to attend after confirming several
times, including the Friday prior to the TPR hearing. With
respect to the bond between [Child] and Father, Ms. Wade
indicated that there was very minimum contact between
them at visits. She clarified that Father does not verbally
engage with [Child] and she has never heard [Child] speak.
Ms. Wade also testified that [Child] does not appear to be
bonded with Father. Additionally, Ms. Wade testified that
Father does not appear bonded with [Child.] Ms. Wade also
stated that [Child] shows no emotion towards Father. The
foster parent is the one who meets all of [Child’s] general
and medical needs. Additionally, Child’s foster parent
testified that [Child] calls her [“]mom[”] and has never
asked for Father. [Child’s] foster parent also testified that
[Child] is very talkative and animated at home.
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Based on the foregoing testimony, [the trial court] issued
a decree involuntarily terminating Father’s parental rights
under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and finding,
in accordance with 23 Pa.C.S.A. § 2511(b), that such
termination best serves the developmental, physical and
emotional needs and welfare of [Child.] Father filed a timely
notice of appeal on March 3, 2020 along with a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b)[.]
Trial Court Opinion (T.C.O.), 4/23/20, at 1-3 (citations to the record omitted).
Father presents one issue for our review:
Did the trial court err and/or abuse its discretion by
terminating the parental rights of Father pursuant to 23
Pa.C.S.A. § 2511(b) where DHS failed to prove by clear and
convincing evidence that involuntarily terminating his
parental rights best served the emotional needs and welfare
of [Child]?
Father’s Brief at 5.
We begin our discussion mindful of our well-settled standard of review
in termination cases:
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court’s
decision, however, should not be reversed merely because
the record would support a different result. We have
previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
In this case, the court terminated Father’s parental rights pursuant to
subsections 2511(a)(1) (2), (5), (8), and (b). Father does not challenge the
trial court’s conclusions that termination was warranted under Section
2511(a), thereby conceding the first prong of the termination analysis.
Rather, he focuses his appeal on the second prong under Section 2511(b).
That section provides:
(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) ... or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein
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which are first initiated subsequent to the giving of notice
of the filing of the petition.
23 Pa.C.S.A. § 2511(b).
In the context of the Section 2511(b) analysis, “the court must take into
account whether a bond exists between child and parent, and whether
termination would destroy an existing, necessary and beneficial
relationship.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). The court
is not required to use expert testimony, and social workers and caseworkers
may offer evaluations as well. Id. Still, the ultimate concern is the needs and
welfare of a child.
We have explained:
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love,
comfort, security, and closeness—entailed in a parent-child
relationship, as well as the tangible dimension. Continuity
of the relationships is also important to a child, for whom
severance of close parental ties is usually extremely painful.
The trial court, in considering what situation would best
serve the child's needs and welfare, must examine the
status of the natural parental bond to consider whether
terminating the natural parent's rights would destroy
something in existence that is necessary and beneficial.
Matter of M.P., 204 A.3d 976, 984 (Pa. Super. 2019) (citing Z.P., 994 A.2d
at 1121).
Lastly, where there is no evidence of a bond between the parent and
child, it is reasonable to infer that no bond exists. See M.P., 204 A.3d at 984
(citing In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)).
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Instantly, Father’s argument on appeal pertains exclusively to the bond
question, notwithstanding the fact that the bond issue is only one aspect of
the Section 2511(b) analysis. See Father’s Brief at 8-9. Specifically, Father
contends that the court erred when it determined there was no bond between
Father and Child. The court made its determination based, in part, on the
testimony of Ms. Wade, the visitation coach tasked with supervising visits
between Father and Child. Ms. Wade explained that while Father attended the
visits with snacks and entertainment, he and Child often sat together in silence
and watched videos on his phone. Father argues that the court did not give
enough appreciation to the fact that Child was very anti-social, and needed a
speech therapist with her social and language skills. He concludes that Child’s
desire to sit quietly on Father’s lap while they engaged in an hour-long
visitation is indicative of a bond.
We conclude Father’s argument lacks merit. Child spent three days in
Father’s care before she was removed by court order. She proceeded to spend
the following 32 months with her pre-adoptive foster parent at which point
the court held the termination hearing. Father never obtained reunification,
and in fact, requested a paternity test approximately a year into the
dependency proceedings. Throughout the dependency case, Father was
inconsistent with his visitations with Child, attending just four appointments
of the fifteen offered in the three months prior to the termination hearing.
Although Father was apparently very pleasant to Child, Child did not consider
him to be a source of parental care. For instance, if Father reached down to
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hug Child, Child would walk off and go to Ms. Wade without acknowledging
Father. Ms. Wade testified that she never heard Child speak a word during
the visits. According to the foster parent, Child is actually animated and
talkative when she is inside her comfort zone, but she shuts down and
becomes non-communitive when she is outside of it. That Child can sit
patiently on Father’s lap for an hour is not a testament to their bond, but to
the efforts of the foster parent who provided her with vital developmental
care. Moreover, and perhaps more importantly, Father misses the point of
the bonding inquiry. The question is not whether a parental bond exists, but
whether one is worth preserving. As Father has never provided parental care
to Child, the answer to this question is self-evident. Based on the foregoing,
the court did not abuse its discretion in determining that no bond exists, much
less one worth preserving.
Thus, we conclude that the trial court did not err or commit an abuse of
discretion by finding involuntary termination of Father’s rights was warranted
under Section 2511(b) of the Adoption Act.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/20
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