In Re: Adoption of A.G.H., a Minor ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.G.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.H., FATHER :
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: No. 1842 EDA 2020
Appeal from the Decree Entered August 18, 2020
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2020-A0034
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 31, 2020
J.H. (Father) appeals from the decree entered in the Court of Common
Pleas of Montgomery County (trial court) involuntarily terminating his parental
rights to his daughter, A.G.H. (Child) (D.O.B. January 2018) and changing
Child’s permanency goal to adoption.1 We affirm.
I.
A.
The Montgomery County Office of Children and Youth (OCY) became
involved with Child’s family in August 2018 because of concern regarding
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*
Retired Senior Judge assigned to the Superior Court.
1
Child’s birth mother, L.M. (Mother) voluntarily relinquished her parental
rights on July 27, 2020. She is not a party to this appeal.
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Father and Mother’s (collectively, Parents) lack of stable housing,
unemployment and drug abuse (heroin). The Family Service Plan (FSP) OCY
implemented in October 2018 provided for Child to live with paternal
grandmother (Grandmother) and for supervised visitation with Parents. Child
was adjudicated dependent on January 15, 2019, after Father violated the FSP
by refusing to comply with OCY’s drug screen request.
B.
On February 24, 2020, OCY filed a petition seeking termination of
Parents’ parental rights to Child. The trial court held a hearing with regard to
Father on August 18, 2020.2 OCY presented the testimony of the family’s
caseworker Reginald Nelson (Nelson) and Father testified on his own behalf.
Nelson testified that Child has continuously resided with Grandmother
since October 2018. (See N.T. Termination Hearing, 8/18/20, at 11-12).
After Nelson’s initial attempts to schedule a meeting with Father to discuss
the goals of the FSP via text messages, phone calls and unannounced visits
failed, he sent Father a copy of the plan in the mail. (See id. at 15). When
Nelson made contact with Father, they discussed the requirements of the FSP,
specifically, that Father participate in drug and alcohol treatment, submit to
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2
The hearing was conducted remotely via videoconference due to the COVID-
19 pandemic.
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random drug screening, obtain stable housing and steady employment,
abstain from drug use and consistently visit with Child. (Id. at 16).
Nelson testified that at the time OCY filed the petition for termination of
parental rights, Father had not met any of the FSP goals. (See id.). Although
Father underwent an evaluation and was advised of his need for substance
abuse treatment in July 2019, he failed to enroll in any such program. (See
id. at 17-18). Father did not provide OCY with any documentation of
treatment until approximately one month before the hearing in July 2020 that
showed that he was participating in a Suboxone medication management
treatment program.3 (See id. at 18, 36). Nelson testified that Father was
largely noncompliant with drug screening attempts and that three of his four
drug tests were positive. (See id. at 21-22). Father has tested positive for
cocaine, methamphetamine, opiates and fentanyl and he admitted to
marijuana use. (See id. at 21-22, 37). Nelson also obtained Father’s drug
screen results administered through the medication management treatment
program. These screens were negative except for the drugs he had been
prescribed. (See id. at 36-37).
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3
Suboxone is a medication approved by the Food and Drug Administration for
the treatment of opioid addiction. See Abruzzese v. Bureau of Prof'l &
Occupational Affairs, State Bd. of Cosmetology, 185 A.3d 446, 449 n.1
(Pa. Cmwlth. 2018).
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Regarding the requirement of suitable housing, Nelson testified that he
was able to visit Father’s apartment on April 19, 2019. The residence was not
appropriate for Child and had no electricity. (See id. at 23, 25). Father did
not cooperate with Nelson’s numerous attempts to revisit the home until two
weeks before the hearing and it remained unsuitable for Child. (See id. at
23-25).
Concerning the goal of stable employment, Nelson explained that Father
does not have a steady job, that he works seasonally and that he was
unemployed during the six months prior to the filing of the termination
petition. (See id. at 25-26). At the time of the hearing, Father had recently
started a job but Nelson opined that Father still did not have the ability to
support himself and Child. (See id. at 26). With regard to visitation, Father
has not been consistent in his efforts to schedule supervised visitation with
Child and his whereabouts have been unknown to OCY during certain time
periods. (See id. at 27-28). When Father eventually attempted to arrange
vitiation in July 2020, the visits were declined because he did not provide
documentation of his participation in drug treatment nor was he compliant
with drug screens. (See id. at 28-29). Just prior to the hearing, Father began
FaceTime telephone visitation with Child but the calls were not consistent.
(See id. at 29, 37-38).
In describing the conditions of Grandmother’s home, Nelson testified
that it is suitable for Child and that Grandmother provides Child with
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appropriate clothing and meets all of her other everyday necessities. (See
id. at 25, 33). Grandmother and Child have a strong bond and Grandmother
provides her with emotional support. (See id. at 33-34). Nelson opined that
Father’s parental rights to Child should be terminated, that termination is in
Child’s best interests, and that she would not be irreparably harmed by
termination. (See id. at 34).
Father then testified that he has lived by himself in his apartment for
about two years, that it is a safe and stable environment for Child and that he
has allowed Nelson to visit on multiple occasions. (See id. at 45). Father
explained that he is participating in a Suboxone maintenance treatment
program and that he was about to start an intensive six-month outpatient
program. (See id. at 46, 63). Father testified that he provided for Child while
she lived with him until she was eight months’ old, and that when supervised
visitation began, he saw her every other day at Grandmother’s house. (See
id. at 47-49, 52). Father averred that he has telephone or FaceTime contact
with Child daily through Grandmother, that Child is happy when she sees him
and that she calls him “Dada.” (See id. at 51-52). Father expressed his love
for Child and his desire to change his life to raise her. (See id. at 52).
Father admitted on cross-examination that he began using heroin in
August 2018 when his brother died. (See id. at 53). Prior to that, he used
Percocet because he had kidney stones. (See id. at 54). Father explained
that he had used heroin once every three or four days and that he snorted
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about seven bags of the drug during each episode. (See id. at 58). Father
testified that he stopped using heroin in June 2020. (See id. at 59). He also
stated that his apartment was never without electricity and that Nelson’s
testimony to the contrary was “a lie.” (Id. at 60). Father explained that he
was laid off from his job at about the time he started using heroin, that he
was collecting unemployment and working “under the table lately.” (Id.).
At the conclusion of the hearing, the trial court entered its decree
terminating Father’s parental rights pursuant to § 2511(a)(1),(2),(8) and (b)
of the Adoption Act.4 Father timely appealed and he and the trial court
complied with Rule 1925. See Pa.R.A.P. 1925(a)(i)-(ii).5
II.
On appeal, Father contends that the trial court erred in terminating his
parental rights pursuant to multiple subsections of 2511(a). The crux of
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4
23 Pa.C.S. §§ 2101-2938.
5
Our standard of review in termination of parental right 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.
In re J.W.B., 232 A.3d 689, 695 (Pa. 2020) (citation omitted).
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Father’s claim is that he has made significant progress towards improving his
life to care for Child, including participating in drug treatment and screening,
securing suitable, safe housing and maintaining consistent contact with Child.
Father also argues that termination of his parental rights is not in Child’s best
interests and is premature given that he has a significant bond with Child and
is capable of caring for her.
A.
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights and 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 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 Adoption of B.G.S., 240 A.3d 658, 662-63 (Pa. Super. 2020) (case
citation omitted).
As noted, the trial court terminated Father’s parental rights pursuant to
Section 2511(a)(1),(2), (8) and (b) of the Adoption Act, which provide:
(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:
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(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition either
has evidenced a settled purpose of relinquishing parental claim to
a child or has refused or failed to perform parental duties.
(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.
* * *
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency, 12
months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or placement
of the child continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
(b) Other considerations.─The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(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. § 2511(a)(1), (2), (8) and (b).
It is well-settled that “[w]e need only agree with [the trial court’s]
decision as to any one subsection of Section 2511(a) and subsection (b) in
order to affirm the termination of parental rights.” Int. of K.M.W., 238 A.3d
465, 473 (Pa. Super. 2000) (citation omitted). For the following reasons, we
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conclude that the trial court correctly determined that OCY met its burden of
proof under subsections 2511(a)(2) and (b).
B.
We first address termination of Father’s parental rights pursuant to
Section 2511(a)(2).
Section 2511(a)(2) provides for termination of parental
rights where the petitioner demonstrates by clear and convincing
evidence that “[t]he 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.” 23 Pa.C.S. § 2511(a)(2). The grounds
for termination of parental rights under Section 2511(a)(2) due to
parental incapacity are not limited to affirmative misconduct; to
the contrary, those grounds may include acts of refusal as well as
incapacity to perform parental duties.
This Court has long recognized that a parent is required to
make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. At a termination hearing, the
orphans’ court may properly reject as untimely or disingenuous a
parent’s vow to follow through on necessary services when the
parent failed to co-operate with the agency or take advantage of
available services during dependency proceedings.
Id. at 473–74 (case citations omitted).
Applying these principles, the trial court concluded that Father’s history
of substance abuse, unstable employment and inadequate housing rendered
him incapable of parenting Child and caused her to be without essential
parental care, control or subsistence. The court found:
Father does not have the means to support Child because
he is unemployed. He was laid off from his former job when he
started to use heroin. He admitted to using heroin beginning
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between August and November 2018 and continuing until June
2020. He admitted to spending his unemployment income on
drugs.
Father’s living arrangement is not suitable to provide the
subsistence necessary for Child’s wellbeing. Father has made no
meaningful attempts to remedy this situation before OCY filed the
termination petition. Such neglect has caused Child to be without
essential parental care, control or subsistence necessary for her
physical or mental wellbeing, and Father has not shown that the
cause of his neglect can be remedied.
. . . The overwhelming evidence that Father did not comply
with substance-abuse treatment [] suggests that he continues to
use drugs or does not care about his Child. His drug use has
caused Child to be without essential parental care, control or
subsistence necessary for her physical or mental well-being.
Despite efforts of OCY and Mr. Nelson to make Father seek
treatment for substance-use disorder, it appears that such
incapacity or refusal cannot or will not be remedied voluntarily by
him. These circumstances indicate that Father is incapable of
providing safety and permanency for Child now and in the future.
(Trial Court Opinion, 9/24/20, at 10-11).
Further, with regard to Father’s living arrangements, the trial court
specifically found Father’s testimony alleging Nelson’s “lie” concerning the
condition of his apartment not credible. (See N.T. Termination Hearing, at
70). Our review of the record supports the trial court’s findings. We decline
to disturb the court’s credibility determinations or reweigh the evidence.
Accordingly, we conclude that the court did not abuse its discretion when it
terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2).6
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6
For similar reasons, clear and convincing evidence demonstrates that
termination was also warranted under subsections 2511(a)(1) and (8). Father
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C.
Having found that termination of Father’s parental rights was
appropriate under Section 2511(a), the next step of our inquiry is to consider
whether termination is in the best interests of Child under Section 2511(b).
With respect to Section 2511(b), our analysis focuses on the
effect that terminating the parental bond will have on the child.
In particular, we review whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. It is well settled that intangibles
such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.
One major aspect of the “needs and welfare” analysis
concerns the nature and status of the emotional bond that the
child has with the parent, with close attention paid to the effect
on the child of permanently severing any such bond. The fact that
a child has a bond with a parent does not preclude the termination
of parental rights. Rather, the trial court must examine the depth
of the bond to determine whether the bond is so meaningful to
the child that its termination would destroy an existing, necessary,
and beneficial relationship. Notably, where there is no evidence
of a bond between the parent and child, it is reasonable to infer
that no bond exists.
It is sufficient for the trial court to rely on the opinions of
social workers and caseworkers when evaluating the impact that
termination of parental rights will have on a child. The trial court
may consider intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.
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has not shown an ability to overcome his substance abuse, unemployment or
living arrangement issues to the extent that he could appropriately care for
Child. Although he has recently undergone some substance abuse treatment
and claims to have made lifestyle changes to provide necessary support for
Child, the trial court did not err in concluding that he fell short in this regard.
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Int. of K.M.W., supra at 475 (case citations and most quotation marks
omitted).
Instantly, Father maintains that he and Child have a significant bond
and that Child is excited to see him during telephone visitation and refers to
him as “Dada”. He argues that termination is premature and not in Child’s
best interests.
In contrast, Nelson testified that Child has lived continuously with
Grandmother for approximately two years and that Grandmother has
consistently met all of Child’s material and emotional needs. Nelson further
testified that Child and Grandmother share a strong bond and he opined that
termination of Father’s rights is in Child’s best interests and would not
irreparably harm her.
The trial court, after considering all of the testimony, determined that
termination served Child’s best interests. The court noted its appreciation for
Father’s recent efforts to place himself in drug treatment and make regular
telephone contact with Child. (See N.T. Termination Hearing, at 70-71).
However, it found that termination would best meet Child’s developmental,
emotional and physical needs, stating: “. . . the fact that she recognizes you
and is happy to see you on FaceTime does not make you an appropriate parent
for this child. . . . I believe you love her, but that’s not enough. You are
fortunate that your mother was willing to step in.” (Id. at 71; see also Trial
Ct. Op., at 13).
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The evidence supports the trial court’s conclusion that terminating
Father’s parental rights is in Child’s best interests. Child has resided with
Grandmother for most of her short life. Grandmother cares for Child and
meets all of her needs. Father’s opioid addiction and inability to provide a
safe environment or financial support for Child further establish that
termination is in her best interests. Thus, we find no abuse of discretion in
the trial court’s decision to terminate Father’s parental rights to Child and in
changing her goal to adoption.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/20
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