In the Int. of: C.R., Appeal of: E.R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.R., FATHER :
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: No. 1405 EDA 2021
Appeal from the Order Entered June 24, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001087-2017
IN THE INTEREST OF: C.I.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: E.R., FATHER :
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: No. 1406 EDA 2021
Appeal from the Order Entered June 24, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000150-2019
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 8, 2022
E.R. (Father) appeals from the orders involuntarily terminating his
parental rights to C.R. (Child), born in March 2017, and changing the
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permanency goal to adoption.1 This matter returns to this panel after the trial
court filed a supplemental Pa.R.A.P. 1925(a) opinion. We affirm.
The trial court set forth the factual and procedural history of this appeal
as follows:
[DHS] first became aware of this family on March 30, 2017, when
it received a General Protective Services (GPS) report concerning
allegations that [Child] tested positive for cocaine and opiates at
birth. Mother admitted to using drugs throughout her pregnancy.
Mother also admitted using cocaine on March 29, 2017, which
induced Mother to go into labor. The GPS report also stated that
[Child] exhibited symptoms of withdrawal. The report was
determined to be valid.
After spending weeks in the [neonatal intensive care unit (NICU)],
[Child] was discharged [from] Thomas Jefferson University
Hospital (TJUH) on April 25, 2017. That same day, DHS obtained
an Order of Protective Custody (OPC) for [Child] and placed him
in a foster home. On April 21, 2017, [Child’s] paternal grandfather
contacted DHS, stated that he resided in Maryland, and was willing
to care for [Child].
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1 Consistent with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018),
Father filed separate notices of appeal at the dependency and termination of
parental rights dockets. This Court consolidated Father’s appeals on July 26,
2021.
We note that the record in the dependency case refers to Child as C.I.R., while
the record in the termination of parental rights case refers to Child as C.R.
Additionally, the trial court also terminated the parental rights of A.H.
(Mother). Mother has not appealed, nor has she participated in Father’s
appeals. Although Father did not deny paternity of Child, the Philadelphia
Department of Human Services (DHS) filed petitions to terminate the parental
rights of any unknown fathers because Child’s birth certificate did not list
Father as Child’s father. No unknown fathers appeared at the hearing or
appealed.
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At the April 27, 2017 shelter care hearing, the OPC was lifted and
the temporary commitment to DHS was ordered to stand. The
[c]ourt ordered that Mother and Father be referred to the Clinical
Evaluation Unit (CEU) for assessment, and one random drug and
alcohol screen prior to the next court date. On April 28, 2017,
Father submitted a urine drug screen, the results of which were
positive for cocaine. Following the shelter care hearing, DHS filed
a dependency petition for [Child] on May 1, 2017. On May 3,
2017, [Child] was decided dependent based on present inability
and committed to DHS.
A Single Case Plan (SCP) meeting was held on May 24, 2017, at
which time the permanency goal was reunification. The parental
objectives for Father were to comply with all court orders; to
comply with random drug screens and CEU assessment; to comply
with Achieving Reunification Center (ARC) referrals; to comply
with substance abuse treatment and recommendations; to
participate in scheduled supervised visits with [Child]; and to
comply with Probation Officer’s recommendations. On April 30,
2018, Community Umbrella Agency (CUA) changed the primary
permanency goal for [Child] to adoption.
At the permanency review hearing on December 5, 2018, the
[c]ourt ordered that [Child] immediately be placed in kinship care
with his paternal grand[father] in Maryland through an Interstate
Compact on the Placement of Children (ICPC), where he has since
remained. Paternal grand[father and step-grandmother] have
identified themselves as pre-adoptive resources for [Child].
On March 4, 2019, DHS filed petitions to change the goal from
reunification to adoption and to involuntarily terminate Father’s
parental rights. On June 12, 2019, DHS filed amended petitions
revising [Child’s] demographic information.
Following numerous continuances, a Goal Change Hearing
(hereinafter the TPR hearing) was held before this Court on June
24, 2021.[2]
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2 We note that the TPR hearing considered the termination of Mother’s and
Father’s parental rights concerning Child, the requested change of Child’s goal
to adoption, and a review of DHS’s case concerning Mother and Father’s child,
(Footnote Continued Next Page)
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At the TPR hearing, the [c]ourt heard testimony from CUA Case
Manager/Supervisor, Mr. Andrew Lemon, current CUA Case
Manager, Mr. Nathan Kipp, [Mother], and [Father]. At the TPR
hearing, Mr. Lemon testified that he has been the supervisor on
this case since March 2020 and that he reviewed the entire case
file as part of his supervisory duties. Mr. Lemon testified that
[Child] came into care because he tested positive for cocaine and
opiates at birth and was experiencing withdrawal symptoms. Mr.
Lemon testified that Mother admitted to cocaine use. Mr. Lemon
also testified that [Child] has remained in DHS care since an OPC
was obtained for him on April 25, 2017.
Mr. Lemon further testified that Father’s [SCP] objectives were as
follows: (1) submit to random drug screens and CEU assessment,
(2) drug and alcohol treatment, (3) ARC for appropriate services,
(4) participate in visitation with [Child], (5) sign all consents and
releases, and (6) comply with the terms of his probation as well
as follow any recommendations from his Probation Officer.[fn2] In
regard to Father’s compliance with his SCP objectives, Mr. Lemon
rated Father’s compliance []as “minimal” for the year of 2018.
[fn2]The testimony was given regarding Mother’s [SCP]
objectives. Mr. Lemon testified that Mother and Father’s
SCP objectives, were essentially the same with the addition
that Father comply with his probation.
____________________________________________
A.R., born in 2019, during the continuances of the hearing. Mother, Father,
and A.R. lived with paternal grandmother at the time of the hearing.
Additionally, Jo-Ann Braverman, Esq. represented Child as guardian ad litem,
and Marilyn Rigmaiden-DeLeon, Esq. represented Child as child advocate.
See generally In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017).
According to the trial court, the more than two-year delay between DHS’s
filing of the petition and the TPR hearing resulted from the court’s case load,
the unavailability of witnesses, further investigation, motions, and
continuance requests by counsel. Trial Ct. Op., 1/13/22, at 9. Additionally,
the trial court noted that a new CUA case manager was assigned and that the
COVID-19 pandemic led to suspended court proceedings. Id. The trial court’s
opinion did not expressly address Father’s claim that DHS’s petition to
terminate his parental rights was “stale” due to the delay. See id.; see also
N.T., 6/24/21, at 91-92.
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With regard to CEU screens for Father, Mr. Lemon testified that
prior to June 12, 2019—the date DHS filed Goal Change/TPR
Petitions—Father submitted two drug screens, both of which were
positive for cocaine. With regard to Father’s drug and alcohol
treatment, Mr. Lemon testified that Father did not successfully
complete substance use treatment program prior to June 12,
2019. Mr. Lemon did testify that Father completed a drug and
alcohol program in October 2020, after the Goal Change/TPR
Petitions had been filed. Mr. Lemon further testified that Father’s
substance use and sobriety were the primary dependency
concerns with respect to Father.
Regarding Father’s ARC referrals, Mr. Lemon testified that Father
did not successfully complete any parenting courses or other
services at ARC prior to June 12, 2019. Mr. Lemon did testify that
after the Goal Change/TPR Petitions were filed, Father completed
financial education and housing through ARC and was provided
certificates. Mr. Lemon testified that he did not have a certificate
that Father ever completed parenting classes through ARC.
With regard to Father’s compliance with the terms of his
probation, Mr. Lemon testified that prior to June 12, 2019, there
was a probation violation that resulted in Father being
incarcerated. Father also testified that he was incarcerated for
several months in 2019, but stated that he was currently
compliant with probation.
When asked about Father’s visitation with [Child], Mr. Lemon
testified that prior to [Child] being placed with his paternal
grand[father] in Maryland in December 2018, Father’s visits with
[Child] were to be supervised at the agency. After [Child] was
placed with paternal grand[father], Father was to have one in-
person visit with [Child] per month. Mr. Lemon also testified that
Father’s remaining visits throughout the month were virtual. Mr.
Lemon testified that Father’s visits with [Child] prior to June 12,
2019 were mostly consistent. Due to the COVID-19 pandemic,
Mr. Lemon testified that that Father’s in-person visits with [Child]
were suspended and switched to virtual. Mr. Lemon also stated
that Father’s in-person visits with [Child] began again in
September 2020. Mr. Lemon testified that since he obtained the
case in March 2020, Father’s visits with [Child] were consistent.
Mr. Lemon testified that [Child] does recognize Father but the
relationship is not a caregiver-child relationship. Contrarily,
[Child] is bonded with his paternal grand[father and step-
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grandmother] who have been his primary caregivers for most of
his life. He is doing well in the home. The current CUA Case
Manager, Mr. Nathan Kipp, testified that [Child] is very bonded
with paternal step-grandmother and respects her [as] a caregiver.
[Child] looks to his [paternal grandfather and step-grandmother]
for his basic needs as well as love, support, care, comfort, and
stability. Mr. Lemon advised the [c]ourt that while [Child] was
initially placed in a foster home, he was placed with his paternal
grand[father] in December 2018 and has been living there since
then. Mr. Lemon also testified that paternal grand[father’s] home
is a pre-adoptive home for [Child]. Mr. Lemon stated that if the
[c]ourt were to involuntarily terminate Father’s rights, there would
be no irreparable harm to [Child]. Mr. Kipp[] testified that
removing [Child] from paternal grand[father’s] home where he
has lived for most of his life would cause [Child] harm.
Trial Ct. Op., 1/13/22, at 1-6 (citations, some footnotes, and quotation marks
omitted).
At the conclusion of the testimony concerning Child, the trial court
terminated Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8), and (b), and changed Child’s goal to adoption. That same day, the
trial court entered the order terminating Father’s parental rights to Child and
an order changing Child’s goal to adoption.
Father timely appealed the orders terminating his parental rights and
changing Child’s goal to adoption, and he submitted statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court filed a Rule 1925(a) opinion citing to the June 24, 2021 hearing
transcripts. Trial Ct. Op., 8/5/21, at 1-2. As noted above, the trial court
complied with this Court’s direction to file a supplemental Rule 1925(a)
opinion.
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Father raises the following issues in these consolidated appeals:
1. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act, 23 Pa.[C.S.] § 2511(a)(1),
(2), (5), (8).
2. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical and emotional needs of
the child as required by the Adoption Act, 23 Pa.[C.S.] §
2511(b).
3. Whether the trial court committed reversible error when it
changed the goal to adoption where such determination was
not supported by clear and convincing evidence under the
Juvenile Act, 42 Pa.[C.S.] § 6301 et seq.
Father’s Brief at 6 (formatting altered).
Termination of Parental Rights
Father’s first two claims challenge the trial court’s ruling that
involuntarily terminated his parental rights. The following principles govern
our review:
[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. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
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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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted); see also Interest of S.K.L.R., 256 A.3d 1108, 1123-24 (Pa. 2021)
(emphasizing that “[w]hen a trial court makes a ‘close call’ in a fact-intensive
case . . . the appellate court should not search the record for contrary
conclusions or substitute its judgment for that of the trial court”).
The burden is on 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). We
have explained that “[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. (citation omitted).
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
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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) . . . .
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). 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).” In re
M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc) (citation omitted).
Section 2511(a)(8)
Father first claims that the 2019 petition to terminate his parental rights
was “stale.” Father’s Brief at 19. Father emphasizes that DHS filed the instant
petition to terminate his parental rights two years before the hearing and that
he met his SCP objectives by the time of the hearing. Id. at 20. According
to Father, fundamental fairness required consideration of his post-petition
attempts to meet his SCP objectives and that DHS should have filed a new
petition to terminate his parental rights before the June 24, 2021 hearing. Id.
Father continues that the conditions that led to Child’s removal no longer exist
and asserts that he was compliant with his SCP objectives by the time of the
hearing. Id. at 24. Father adds that the trial court should have considered
the fact that DHS did not remove A.R., Mother and Father’s other child, from
his care. Id. at 20-21.
DHS responds that the trial court properly terminated Father’s parental
rights pursuant to Section 2511(a)(8). DHS notes that Father “does not make
specific argument as to” subsection (a)(8), and instead relies on “conclusory
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allegations” that the conditions that led to Child’s removal no longer exist.
DHS’s Brief at 23. DHS adds that Father’s testimony that he was ready for
reunification contradicted his statements that he wanted “Child back only after
he gets everything squared away.” Id. (quoting N.T. at 74-76). DHS also
notes that Child was in DHS’s care for fifty months at the time of the hearing,
Father was minimally compliant with the SCP before the filing of the petition,
and Father only recently took steps to address his SCP objectives after the
filing of the petition. Id. at 13. DHS concludes that Father’s failures to
perform parental duties and take timely steps to alleviate the conditions that
led to Child’s removal supports the trial court’s decision to terminate Father’s
parental rights. Id.
Section 2511(a)(8) states:
(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:
* * *
(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.
23 Pa.C.S. § 2511(a)(8).
Pursuant Section 2511(a)(8), once the trial court determines that the
twelve-month period has run, it must next consider whether the conditions
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that led to the child’s removal continue to exist. In re A.R., 837 A.2d 560,
564 (Pa. Super. 2003). The “relevant inquiry in this regard is whether the
conditions that led to removal have been remedied and thus whether
reunification of parent and child is imminent at the time of the hearing.” In
re I.J., 972 A.2d 5, 11 (Pa. Super. 2009). “Notably, termination under
Section 2511(a)(8)[] does not require an evaluation of [a parent’s]
willingness or ability to remedy the conditions that led to placement of her
children.” In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super. 2006)
(citations omitted) (emphasis in original).
A court may consider post-petition efforts if the efforts were initiated
before and continued after the filing of a petition to terminate parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). However, a court may
not consider efforts that a parent first initiated after the filing of the petition
to terminate his parental rights. See id.; see also 23 Pa.C.S. § 2511(b).
Section 2511(a)(8) also requires a court to assess the needs and welfare
of the relevant child or children. The needs and welfare analysis “under
Section 2511(a)(8) accounts for the needs of the child in addition to the
behavior of the parent” and must be addressed separately before considering
the best interests of a child. See In re C.L.G., 956 A.2d 999, 1008-09 (Pa.
Super. 2008) (en banc).
This Court has stated:
[T]he application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her children. . . . However, by allowing
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for termination when the conditions that led to removal of a child
continue to exist after a year, the statute implicitly recognizes that
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. Indeed, we
work under statutory and case law that contemplates only a short
period of time, to wit eighteen (18) months, in which to complete
the process of either reunification or adoption for a child who has
been placed in foster care
R.J.S., 901 A.2d at 513.
Instantly, the trial court explained its decision to terminate Father’s
parental rights as follows:
[Child] was born on March 30, 2017 and has been in care since
April 25, 2017. He has been residing with paternal grand[father]
since December 2018. The conditions that led to [Child’s] removal
were because [Child] tested positive for cocaine and opiates at
birth. Prior to the filing of the petition to terminate Father’s
parental rights, Father submitted two drug screens which were
positive for cocaine, and did not successfully complete any
substance abuse treatment program. Prior to the filing of the TPR
petition, Father also did not successfully complete any ARC
services. Father has been consistent with visits, which remain
supervised. Father was also incarcerated for periods of time
throughout the life of the case. Additionally, Father testified that
he is not currently in a position to be reunified with [Child], but
that reunification may be possible in the future. [Child] needs
permanency now. Prior to June 12, 2019, Father failed to
complete his [SCP] objectives to alleviate the need for placement.
As a result, this Court believes that Father will not remedy the
conditions that led to [Child’s] placement in a reasonable time.
[Child] needs permanency now. Moreover, the evidence clearly
established that termination would best serve the needs and
welfare of [Child]. He has been residing in paternal
grand[father’s] home since December 2018, is well-adjusted, and
has a strong bond with his paternal grand[father and step-
grandmother].
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Trial Ct. Op., 1/13/22, at 13-14.
The record supports the trial court’s findings that termination was proper
under Section 2511(a)(8). DHS presented evidence, and Father does not
dispute, that DHS filed the June 12, 2019 petition to terminate Father’s
parental rights more than twelve months after DHS removed and placed Child
in April 2017. Further, it is undisputed that Father did not comply with his
SCP objectives before DHS filed the petition to terminate his parental rights
on June 12, 2019.
Father instead emphasizes that more than two years passed between
the filing of the petition to terminate Father’s parental rights on June 12, 2019,
and the hearing on June 24, 2021. Father, through cross-examination of Mr.
Lemon, established that after DHS filed the petition to terminate Father’s
parental rights, Father completed several or all of his SCP objectives. N.T. at
32-35. Those objectives included consistent visitation with Child, passing drug
screens, and completing drug and alcohol treatment. Id. Father also worked
at two different kitchens, and his shifts ranged from eight to ten hours, seven
days a week. Id. at 72. Mr. Lemon testified that the primary concerns for
Father were “substance use and sobriety,” and, on cross-examination, Mr.
Lemon stated that Father was compliant with his objectives concerning Child
in the year before the June 24, 2021 hearing.3 Id. at 19, 35.
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3 In rebuttal, DHS presented Mr. Lemon’s testimony that he received a report
from Mother and Mother’s therapist that Father relapsed. N.T. at 82. When
(Footnote Continued Next Page)
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However, when Father’s counsel asked why Father thought the trial
court should allow him to “keep [his] parental rights,” Father responded:
Well, I’ve never wanted to give him up in the first place. I am his
father at the end of the day. And I am grateful that my family is
taking care of him. I do want [Child] back, so -- I mean, at this
time psychologically, for [Child], he’s better where he’s at. I don’t
-- like [Mother] stated, I don’t want to -- I don’t want to rip him
out of where he’s at when he’s doing well. It’s not the best choice
for him. But when I do get everything squared away and I’m
settled in a home, you know, if that’s something we can work out
as a family I was told, you know, down the road, you know, that’s
a possibility. I want that. I don’t -- I want my son.
Id. at 73-74. Father acknowledged that he and Child should be closer than
they are. Id. at 71. Father explained that “[d]ue to the choices I’ve made, I
only have limited time with [Child].” Id.
Further, on cross-examination, counsel for DHS asked whether Father
was currently in a position to care for Child, and Father responded:
At this time -- I mean, I’m not in my own place, and that was one
of the – it was one of the goals that were set for me to get [Child],
was to have stability, a stable home of my own, not [paternal
grandmother’s] home. You know what I mean? So -- at this
point, he’s been there most of his life, you know? I -- at this point,
no, I don’t -- it probably wouldn’t be in [Child’s] best interest.
What’s in my best interest is to have him now. But it’s not about
me. It’s about [Child]. So at this point, no, it probably wouldn’t
be the best to be under [paternal grandmother’s] roof. I want my
own roof before I get [Child], or at least try to get him back.
____________________________________________
asked to specify contents of the report, Mr. Lemon stated that “[Mother] had
some concerns that Father may have relapsed,” but that Mother provided no
further information concerning the substance at issue or a time frame. Id.
There is no indication that the trial court credited this report as competent
evidence of Father having relapsed.
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Id. at 75-76.
Based on the foregoing, we conclude that the record established that
twelve months had passed between Child’s removal and placement and the
filing of the petition to terminate Father’s parental rights. See 23 Pa.C.S. §
2511(a)(8); A.R., 837 A.2d at 564. Next, the record established that the
conditions that led to Child’s removal still existed in the twelve months before
DHS filed the petition. See I.J., 972 A.2d at 11. Moreover, the trial court
acted within its discretion not to consider Father’s post-petition efforts
initiated after the filing of the petition.4 See 23 Pa.C.S. § 2511(b); Z.P., 994
A.2d at 1121; Trial Ct. Op., 1/13/22, at 15.
Lastly, as to the needs and welfare of Child, the trial court was entitled
to credit Father’s own testimony, as well as the case managers’ testimony, as
evidence that Father had not achieved a parental bond with Child. See C.L.G.,
956 A.2d at 1008-09; N.T. at 75-76. Further, evidence supported the finding
that paternal grandfather and step-grandmother provided for Child’s needs
and welfare. See N.T. at 19-21 & 32-33 (indicating that Mr. Lemon reviewed
reports for case aides and testified that paternal grandfather and step-
____________________________________________
4 We acknowledge, as did the trial court, that Father had taken steps to meet
his initial SCP objectives by the time of the hearing. To the extent the trial
court considered Father’s post-petition conduct, we note that the court also
weighed Father’s recent progress against Father’s own testimony about the
possibility of reunification “at some time in the future.” See I.J., 972 A.2d at
11; N.T. at 75-76, 96. The trial court’s finding of fact in this regard also had
support in the record and is binding on this Court. See S.P., 47 A.3d at 826-
27.
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grandmother had Child for most of his life and were currently “operating in a
parenting capacity”), 41 (indicating that Mr. Kipp discussed Child’s bonds with
step-grandmother and the appropriateness of paternal grandfather and step-
grandmother’s home for Child); see also N.T. at 75-76.
For these reasons, we conclude that the record supports the trial court’s
decision under Section 2511(a)(8) and that the decision was free of legal
error. To the extent Father asserts that DHS’s petition to terminate his
parental rights was stale, we discern no legal error in the trial court’s decision
that Father’s post-petition conduct, which he initiated after the filing of the
petition, was not relevant. See Z.P., 994 A.2d at 1121. Accordingly, we
affirm the trial court’s ruling that DHS proved the grounds to terminate
Father’s parental rights under Section 2511(a)(8). See S.P., 47 A.3d at 826-
27; R.J.S., 901 A.2d at 513 (emphasizing that a “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”).
Section 2511(b)
Next, Father contends that DHS’s evidence concerning Child’s best
interests was insufficient. Father’s Brief at 24-27. Father notes that Mr.
Lemon did not personally observe Father’s interactions with Child and that Mr.
Kipp personally only observed limited interactions between Child and step-
grandmother. Id. at 25-27. Father argues that the trial court could not assess
the effects of terminating his parental rights “[w]ithout any firsthand
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testimony regarding [F]ather’s bond with [C]hild or [C]hild’s bond with
paternal grandfather and step-grandmother].” Id. at 27.
DHS counters that the trial court properly considered the Child’s best
interests under Section 2511(b). DHS notes Mr. Lemon’s and Mr. Kipp’s
testimony concerning Child’s bond to paternal grandfather and step-
grandmother and their beliefs that Child’s removal from paternal grandfather
and step-grandmother would be harmful. DHS’s Brief at 26-27. DHS
emphasizes that Father acknowledged that paternal grandfather and step-
grandmother were meeting Child’s needs and that Child’s removal from their
care would not be in Child’s best interest. Id. DHS asserts that Father
acknowledged that he was not in a position to assume responsibility for Child
even at the time of the hearing. Id. at 19-20, 26.
Section 2511(b) states:
(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(b).
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, as “[e]ven the
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most abused of children will often harbor some positive emotion towards the
abusive parent.” Id. at 267 (citation omitted). The trial court may emphasize
the safety needs of the child. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.
2008) (affirming involuntary termination of parental rights, despite the
existence of some bond, where placement with mother would be contrary to
the child’s best interests); see also In re Adoption of J.N.M., 177 A.3d 937,
946 (Pa. Super. 2018) (citation omitted) (reiterating that the detrimental
effects of severing a parent-child bond could be outweighed by the need for
safety and security). As this Court has noted, “a parent’s basic constitutional
right to the custody and rearing of . . . [his] child is converted, upon the failure
to fulfill . . . [his] 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) (citation
omitted).
Instantly, there was uncontradicted evidence of a bond between Father
and Child. See Trial Ct. Op., 1/13/22, at 5; N.T. at 19-21. However, as noted
by the trial court, the record establishes that Child had been removed from
Father’s care shortly after Child’s birth. See Trial Ct. Op., 1/13/22, at 1-2;
N.T. at 11-13. Child was living with paternal grandfather and step-
grandmother since 2018, and DHS filed the petition to terminate Father’s
parental rights in 2019. See Trial Ct. Op., 1/13/22, at 15; N.T. at 16. The
trial court accepted testimony that Father appeared to be more of a visitation
resource for Child and that Child did not have a caregiver-child relationship
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with Father. See Trial Ct. Op., 1/13/22, at 15. The trial court emphasized
Father’s failure to progress beyond supervised visitation with Child and noted
his testimony that it was in Child’s best interests to remain with paternal
grandfather and step-grandmother’s home.5 See Trial Ct. Op., 1/13/22, at
16; N.T. at 75-76. The trial court also considered Father’s testimony about
“possible reunification at some point in time in the future” but concluded that
Child “needs permanency now.” See Trial Ct. Op., 1/13/22, at 16; N.T. at
73-74.
Based on the foregoing record, we find no abuse of discretion or error
of law in the trial court’s determinations under Section 2511(b). The trial
court was entitled to consider that Child was in DHS’s care since his birth in
2017. The trial court further heard testimony that Father did not progress
with his SCP objectives prior to the filing of the petition to terminate in 2019.
Although the trial court acknowledged Father’s post-petition compliance with
his SCP objectives, the trial court noted, and the record supports, Father’s
agreement that Child’s best interest was to remain with paternal grandfather
and step-grandmother. Further, the trial court weighed Father’s testimony
that he hoped to be in a position to care for Child in the future against Child’s
____________________________________________
5Although not referred to by the trial court, we note that on cross-examination
by Child’s advocate, Father testified that Child did not express an interest in
going home with Father. N.T. at 79. Father explained that Child never knew
about being with “dad in a home” because DHS removed Child before Child
went home. Id. Additionally, in closing arguments, Child’s advocate asserted
that Child wished to live with paternal grandfather and step-grandmother and
that Child did not respond when the advocate asked if Child wanted to “go live
with [Father.]” N.T. at 86.
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need for permanency. We find no abuse of discretion or error of law in the
trial court’s emphasis on Child’s need for permanency after Child was in DHS’s
care for approximately four years. See R.J.S., 901 A.2d at 507 (noting that
“[a] child’s life simply cannot be put on hold in the hope that the parent will
summon the ability to handle the responsibilities of parenting” (citation and
footnote omitted)). For these reasons, our review of the record, the parties’
arguments, and the trial court’s rulings compels the conclusion there was
support for the trial court decision to terminate Father’s parental rights under
Section 2511(b).
In sum, we have reviewed Father’s arguments concerning the
termination of his parental rights, the trial court’s findings and conclusions
pursuant to Section 2511(a)(8) and (b), and the record. Following our review,
we affirm the order terminating Father’s parental rights. See S.P., 47 A.3d
at 826-27.
Goal Change
In his third issue, Father contends that the trial court erred in changing
Child’s permanency goal to adoption. Father’s Brief at 21. Father reiterates
that the trial court should have considered his compliance with the SCP plan
after DHS filed the petition to terminate his parental rights and change Child’s
permanency goal to adoption. Id.
At the outset, we note that Father’s challenge to the goal change is moot
based on our decision to affirm the order terminating Father’s parental rights
under Section 2511(a)(8) and (b). See Interest of A.M., 256 A.3d 1263,
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1272-73 (Pa. Super. 2021). In any event, for the reasons stated herein
concerning the Child’s best interests, we discern no abuse of discretion or
error of law in the trial court’s determination that a goal change to adoption
was in Child’s best interests. See 42 Pa.C.S. § 6351 (requiring the trial court
to consider: (1) the continuing necessity for and appropriateness of the
placement; (2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and feasibility of
the current placement goal for the children; (5) a likely date by which the goal
for the child might be achieved; (6) the child’s safety; and (7) whether the
child has been in placement for at least fifteen of the last twenty-two months);
In re R.M.G., 997 A.2d 339, 345, 347 (Pa. Super. 2010) (noting that “goal
change decisions are subject to an abuse of discretion standard of review” and
that a child’s safety, permanency, and well-being take precedence over all
other considerations in a goal change decision (citation omitted)).
Therefore, even if we were to consider Father’s challenge to order
changing Child’s goal to adoption, we conclude that the trial court considered
all relevant factors for a goal change to adoption, and this Court will not
disturb the trial court’s determination that Child’s need for permanency
outweighed Father’s hopes to reunify with Child in the future. See R.M.G.,
997 A.2d at 347. For these reasons, we affirm the trial court’s orders.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2022
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