In the Interest of: A.W., Appeal of: A.W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.W., A : IN THE SUPERIOR COURT OF
MINOR A/K/A A.L.W. : PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER :
:
:
:
: No. 619 EDA 2018
Appeal from the Order January 17, 2018
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): 51-FN-001181-2014,
CP-51-AP-0000632-2017, CP-51-DP-0001212-2014
BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 20, 2018
Appellant, A.W. (“Father”), files this appeal from the order entered on
January 17, 2018, in the Philadelphia County Court of Common Pleas, granting
the petition of the Philadelphia Department of Human Services (“DHS”) and
involuntarily terminating Father’s parental rights to his minor, dependent
daughter, A.L.W. (“Child”), born in May 2005, pursuant to the Adoption Act,
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1 Father further appeals from
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
1 By separate order, also entered on January 17, 2018, the trial court
voluntarily terminated the parental rights of Child’s mother, E.J.I. (“Mother”).
Mother has not filed an appeal and is not a party to the instant appeal.
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the order changing Child’s permanency goal to adoption pursuant to the
Juvenile Act, 42 Pa.C.S.A. § 6351.2 After a careful review, we affirm.
The trial court summarized the relevant procedural and factual history
as follows:
Factual and Procedural Background:
DHS became involved with this family on April 4, 2014,
when DHS received a Child Protective Services (“CPS”) report
alleging that Child was sexually abused by Mother; Child was
afraid to return home; Child disclosed the abuse to her maternal
grandmother; [M]aternal [G]randmother told Child to inform a
school authority the next day. This report was indicated. Child
began residing with [M]aternal [G]reat-grandmother on April 4,
2014. On April 8, 2014, Child completed an evaluation at the
Philadelphia Children’s Alliance (“PCA”). Child was subsequently
referred to Children’s Crisis Treatment Center (“CCTC”) for
therapeutic services. Father’s whereabouts were unknown at that
time.
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2 While Father additionally appeals from the order changing Child’s
permanency goal to adoption, we observe that, although stated on the record
at the conclusion of the hearing on January 17, 2018, that Child’s permanency
goal is changed to adoption, see Notes of Testimony (“N.T.”), 1/17/18, at 21,
the Permanency Review Order entered on January 17, 2018, does not indicate
a goal change. Moreover, any such opposition would be waived as Father
failed to include this issue in the Statement of Questions Involved section of
his brief and failed to present argument as to this issue in his brief. See
Krebs v. United Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (stating
that a failure to preserve issues by raising them both in the concise statement
of errors complained of on appeal and statement of questions involved portion
of the brief on appeal results in a waiver of those issues). See also In re
W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011 (quoting In re A.C., 991 A.2d
884, 897 (Pa.Super. 2010)) (“[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”). Regardless, even if such a claim as to goal change were viable, we
would have found it lacked merit. For the reasons stated within as to
termination of parental rights, a goal change to adoption would be in Child’s
best interests.
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On April 23, 2014, the family began receiving services
through Community Umbrella Agency (“CUA”) NorthEast
Treatment Centers (“NET”). On April 30, 2014, a Family Support
Conference was held. The parties agreed that Child would be safe
in the care of [M]aternal [G]reat-grandmother, with a plan. DHS
agreed to make a referral for Child to receive trauma therapy. At
this time, Child’s older sibling was also in the care of [M]aternal
[G]reat-grandmother. Father’s whereabouts were still unknown
at that time.
On April 30, 2014, the initial CUA Single Case Plan (“SCP”)
was developed. Father did not attend or otherwise participate in
this meeting. The goal for Child was to remain in the home.
Father’s parental objective was to contact CUA with information
regarding his whereabouts. At the time of the meeting, Father’s
whereabouts were unknown to DHS and CUA.
Child was adjudicated dependent on June 4, 2014. The trial
court ordered DHS to supervise Child’s care and that CUA follow
up with CCTC. Maternal [G]reat-grandmother was granted
temporary legal custody (“TLC”) of Child. The trial court
appointed [M]aternal [G]randmother and [M]aternal [G]reat-
grandmother as Child’s educational surrogates.
On September 11, 2014, a permanency review hearing was
held for Child. Father was not present for this hearing and his
whereabouts were unknown. The trial court ordered for DHS
supervision to stand; Child’s caregivers to participate in therapy
with her through CCTC, when appropriate, and at the
recommendation of Child’s therapist; TLC with [M]aternal [G]reat-
grandmother to stand; and BHS [(“Behavioral Health Services”)]
to monitor Child’s treatment.
On November 4, 2014, and May 27, 2015, permanency
review hearings were held for Child. Father was not present for
these hearings and his whereabouts were still unknown. The trial
court ordered DHS supervision of Child to stand. On July 21,
2015, the CUA SCP was revised. Father did not attend this
meeting. The parental objective for Father was to contact CUA
with information regarding his whereabouts. At the time of the
meeting, Father’s whereabouts were still unknown to DHS and
CUA. Subsequently, CUA learned that Father contacted
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[M]aternal [G]reat-grandmother and provided her with his contact
information.
On October 15, 2015, the CUA SCP was revised again.
Father did not attend this meeting. The parental objectives for
Father were to contact CUA with information regarding his
whereabouts. At the time of the meeting, Father’s whereabouts
were still unknown to DHS and CUA. However, at a later date,
Father reviewed the plan and signed the revised SCP. On October
26, 2015, Father met with CUA for the first time. At that meeting,
Father did not reveal his specific whereabouts to CUA. CUA later
learned that Father reportedly resided in a rented room in New
Jersey and was on parole for unknown reasons.
On October 27, 2015, a permanency review hearing was
held for Child. Father was not present for this hearing. The trial
court ordered that the new placement goal was to be a placement
with a fit and willing relative after learning that CUA was exploring
kinship care services with [M]aternal [G]reat-grandmother and
that a kinship care referral had previously been made. DHS
supervision of Child was discharged, the TLC order as to
[M]aternal [G]reat-grandmother was vacated, and Child was
committed to DHS. Child was to remain in [M]aternal [G]reat-
grandmother’s home. The trial court permitted Father to have
biweekly supervised visits with Child as arranged by the parties
and one of those visits to be supervised monthly by the agency.
Maternal [G]reat-grandmother was ordered to keep a log of
Father’s visits with Child and Father was ordered to contact the
agency twenty-four hours in advance of scheduled visits.
On January 27, 2016, a permanency review hearing was
held for Child. Father was present for this hearing. The trial court
found Child’s placement continued to be necessary and
appropriate and the current placement goal was for Child to return
to a parent or guardian. The trial court ordered that Child remain
committed to DHS; CCTC to start caregiver sessions with Father;
family therapy to be implemented when appropriate; a formal SCP
meeting occur within twenty days and include[d] objectives for
Father as well as invitations to all appropriate parties; CUA to refer
Father for appropriate services; Father to continue to participate
in supervised visits with Child in [M]aternal [G]reat-
grandmother’s home; and the agency to continue to supervise
Father’s visits with Child twice per month.
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On March 9, 2016, CUA had a SCP meeting. Father attended
this meeting. The primary goal for Child was to return to parent,
guardian, or custodian, and the concurrent goal was adoption.
The parental objective for Father was to contact CUA with
information regarding his whereabouts. Although Father attended
this meeting, but [sic] he did not sign the revised SCP.
On April 6, 2016, Father was referred to ARC [(“Achieving
Reunification Center”)] for employment, housing, and parenting.
Father did not comply with this referral. On April 19, 2016, CUA
had a SCP meeting. Father was present for this meeting. The
primary goal for Child was to return to parent, guardian, or
custodian, and the concurrent goal was adoption. The parental
objectives for Father were to participate in weekly supervised
visits with Child at the kinship home and attend ARC for parenting,
employment, and housing. On April 12, 2016, a brief permanency
review hearing was held for Child. Father was present for this
hearing. The trial court ordered that Child remain committed to
DHS and that Father was permitted to participate in CCTC
sessions.
On June 10, 2016, CUA had a SCP meeting. Father was
invited to participate in the meeting on June 3, 2016, but Father
failed to attend. The primary goal for Child was to return to
parent, guardian, or custodian, and the concurrent goal was
adoption. Father’s parental objectives remained the same as
previously ordered.
On July 13, 2016, a permanency review hearing was held
for Child. Father was not present for this hearing. The trial court
found Child’s placement continued to be necessary and
appropriate, the current placement goal for Child was to return to
a parent or guardian, and that reasonable efforts had been made
by DHS to finalize Child’s permanency plan. Father was found to
be substantially compliant with the permanency plan. The trial
court ordered Child to remain committed to DHS, Father was
permitted to have liberal supervised visits with Child as arranged
by the parties, and one of those visits to be supervised by the
agency monthly. The trial court also ordered CUA to make
outreach to Father, CUA was to contact the New Jersey Division
of Child Protection and Permanency in reference to a courtesy
home assessment of Father’s home in New Jersey. Father was
referred to ARC for parenting and housing, family therapy, and
caregiver sessions at CCTC. A SCP meeting to occur to discuss
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Child’s goal [sic], and that Father appear at the next court
hearing. On July 19, 2016, Father was re-referred to ARC.
On September 20, 2016, and December 30, 2016, CUA had
another SCP meeting. Father was invited to participate in the
September 20, 2016, meeting on September 13, 2016, but Father
failed to attend. Father was also invited to participate in the
December 30, 2016, meeting on December 23, 2016, but Father
failed to attend. The primary goal for Child was to return to
parent, guardian, or custodian, and the concurrent goal was
adoption. Father’s parental objectives remained the same as
previously ordered by the trial court.
On January 11, 2017, a permanency review hearing was
held for Child. Father was present for this hearing. The trial court
found that Child’s placement continued to be necessary and
appropriate, the current placement goal for Child was to return to
a parent or guardian, and that reasonable efforts had been made
by DHS to finalize Child’s permanency plan. Father was found to
be moderately compliant with the permanency plan. The trial
court ordered Child to remain committed to DHS and Father was
permitted to have weekly supervised visits at the agency. The
trial court also ordered Father to provide CUA with documentation
regarding his efforts to locate housing and copies of his paystubs.
Father was to be notified of and permitted to attend Child’s
medical, dental, and educational appointments.
On March 22, 2017, CUA had a SCP meeting. Father did not
attend this meeting. The primary goal for Child was to return to
parent, guardian, or custodian, and the concurrent goal was
adoption. Father’s parental objectives remained the same as
previously ordered by the trial court.
Child has been involved with DHS since June 4, 2014,[3] and
has been committed to DHS since October 27, 2015. Father has
failed to fully comply with his SCP objectives and comply with
court orders throughout the life of the case. Father lacks
appropriate housing and has failed to maintain consistent and
meaningful contact with Child throughout her placement.
Additionally, Father has failed to consistently maintain contact
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3 As indicated above, this is actually the date Child was adjudicated
dependent.
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with DHS, CUA, and other service providers to participate in
planning for Child. DHS filed a petition to involuntarily terminate
Father’s parental rights and change Child’s permanency goal from
reunification to adoption on June 7, 2017.
On January 17, 2018, the trial court held the termination
and goal change trial for Child.[4] Father was not present for the
trial.[5] The trial court found clear and convincing evidence to
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4 DHS presented the testimony of Dhyjuanae Abrams, CUA case manager,
NET, N.T. at 10-18, as well as Exhibits DHS 1 through 12, id. at 18. Although
the order terminating Father’s parental rights references only Exhibit DHS 1,
Order of Involuntary Termination of Parental Rights, 1/17/18, at 2, the record
reflects the admission of DHS Exhibits 1 through 12, N.T. at 18. There was
further a stipulation as to the facts set forth in DHS’s petition, but not their
veracity. Id. at 10. We observe that the exhibits contained with the certified
record also include Exhibit A as to service to Father. Although the Notes of
Testimony do not reflect that this exhibit was offered and admitted at the
hearing, counsel for Father acknowledged reasonable efforts at service were
made. Id. at 9. It was further indicated by Ms. Abrams that Father knew
about the hearing. Id.
5 While not present, Father was represented by counsel, Lawrence O’Connor,
Esquire. In addition, Child was represented at this proceeding by the guardian
ad litem, Joshua Weil, Esquire, who was appointed in May 2014 in connection
with the dependency proceedings. Attorney Weil participated in the hearing
and argued in support of termination of parental rights. N.T. at 20. Notably,
the Permanency Review Order of October 20, 2017, reflects the vacation of
legal counsel for Child, Marilyn Rigmaiden Deleon, Esquire, and a
determination that “no conflict exists” as to Attorney Weil. Permanency
Review Order, 10/20/17, at 2.
Our Supreme Court, in In re T.S., ___ A.3d ___, 2018 WL 4001825 (Pa. filed
8/22/18), held that Section 2313(a) requires that counsel be appointed to
represent the legal interests of any child involved in a contested involuntary
termination proceeding. See also In re Adoption of L.B.M., _ Pa. _, 161
A.3d 172, 180 (2017) (plurality). The Supreme Court defined a child’s legal
interests as synonymous with his or her preferred outcome and distinct from
a child’s best interests, which must be determined by a court. Further, the
Supreme Court held that a GAL who is an attorney may act as counsel
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change the permanency goal from reunification to adoption and to
involuntarily terminate Father’s parental rights under 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8) and (b). On February 16, 2018, Father
filed this appeal [and a Pa.R.A.P. 1925(b) statement].
Trial Court Opinion (“T.C.O.”), 4/13/18, at 1-5 (footnotes added).
On appeal, Father raises the following issues for our review:
1. Whether the trial court erred by terminating the parental rights
of [F]ather pursuant to 23 [Pa.C.S.A. §] 2511(a)(1) without
clear and convincing evidence of [F]ather’s settled purpose to
relinquish his parental claim or refusal to perform his parental
duties[?]
2. Whether the trial court erred by terminating the parental rights
of [F]ather pursuant to 23 [Pa.C.S.A. §] 2511(a)(2) without
clear and convincing evidence of [F]ather’s present incapacity
or that any incapacity continues to exist and will not be
remedied by the parent[?]
3. Whether the trial court erred by terminating the parental rights
of [F]ather pursuant to 23 [Pa.C.S.A. §] 2511(b) without clear
and convincing evidence that there is no parental bond
between [F]ather and [the child] and that termination would
serve the best interest of the child[?]
Father’s Brief at 7.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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pursuant to Section 2313(a) so long as the dual roles do not create a conflict
between the child’s best interests and legal interests.
Here, as indicated, the record reveals a determination by the trial court of no
conflict between Child’s best interests and legal interests. See Permanency
Review Order, 10/20/17, at 2. Further, we note Attorney Weil, who argued
that termination would be in Child’s best interest, cross-examined CUA case
manager, Dhyjuanae Abrams, so that Child’s preference to remain with
Maternal Great-grandmother and to be adopted was conveyed. N.T. at 16.
Therefore, we do not remand this matter. See In re T.S., supra.
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The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.at [325-26, 47 A.3d at] 827. We have previously emphasized our
deference to trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re R.J.T., [608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”
In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
“[I]f competent evidence supports the trial court’s findings, we will affirm even
if the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
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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 L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).
In the case sub judice, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).6 We have long
held that, in order to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a), as well
as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the court’s termination order pursuant to
subsections 2511(a)(2) and (b), which provide as follows:
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6 In its brief, DHS requests this Court affirm termination of Father’s parental
rights pursuant to subsections (a)(1) and/or (2), and not (a)(5) and (8), as
Child was not in Father’s custody at the time of adjudication. DHS’ Brief at 13
n.3. As to the application of Section 2511(a)(5) and (8), we observe that the
appropriate inquiry is the time of removal, not the time of adjudication. See
In re C.S., 761 A.2d 1197, 1200 n.5 (Pa.Super. 2000) (en banc) (stating that
Section 2511(a)(5) and (8) did not provide a basis for terminating the father’s
parental rights when he was incarcerated at the time of the child’s removal
from the mother’s care); see also In re Z.P., 994 A.2d 1108, 1123 n.2
(Pa.Super. 2010) (same).
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(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:
...
(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(a)(2), and (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
(quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002)). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability of services,
may properly be rejected as untimely or disingenuous.” In re A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
In the case at bar, in finding grounds for termination pursuant to Section
2511(a)(2), the trial court reasoned:
Child has been involved with DHS since [April] 2014, and
committed to DHS since October 27, 2015. Father’s SCP
objectives throughout the life of the case were to attend ARC for
housing, employment, and parenting, as well as to maintain
supervised visitation with Child. (N.T. 01/17/18, pg. 11; [See]
DHS Exhibits 3, 5-12). Father had previously participated in SCP
meetings and was aware of his objectives. (N.T. 01/17/18, pgs.
11-12; [See] DHS Exhibits 6-8). Father failed to maintain
appropriate housing for Child. Father was aware that obtaining
appropriate housing was an outstanding objective. Father was
referred to ARC for housing, but he did not attend and failed to
secure appropriate housing. (N.T. 01/17/18, pgs. 11-12; [See]
DHS Exhibit 12). Father has never provided CUA with
documentation verifying his employment. CUA has requested that
Father provide documentation verifying his employment
throughout the life of the case. The trial court ordered Father to
provide CUA with copies of his paystubs. (N.T. 01/17/18, pg. 12;
[See] DHS Exhibit 12; [See] Permanency Review Order,
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01/11/17). Father completed a parenting class. (N.T. 01/17/18,
pg. 11). As the record establishes, at all permanency hearings,
the trial court has given Father supervised visits with Child. For a
longtime [sic], Father had supervised visits with Child at
[M]aternal [G]reat-grandmother’s home, but since Father was not
making himself available to visits with Child, the trial court
changed his visits to weekly supervised at the agency. Since the
last court date of October 20, 2017, which is after the goal change
and termination petitions were filed, Father became more
consistent in attending supervised visits. However, for the last
three weeks before the termination trial on January 17, 2018,
Father was again a no-call and no-show. (N.T. 01/17/18, pg. 12).
Father’s visits remained supervised with Child at the agency.
Father did not provide any reason to CUA as to why he missed the
scheduled visits. When Father did attend the visits, he sometimes
would arrive up to 20 minutes late. (N.T. 01/17/18, pg. 12).
Additionally, the interactions between Father and Child are not the
interactions a Father would have with a child. Father has no
relationship with Child. Father and Child will play games and have
some interactions during the visits, but Father and Child do not
tend to have conversations with each other. Child is usually quiet
when around Father during the visits. (N.T. 01/17/18, pgs. 13,
17-18). At the permanency hearing on January 11, 2017, the
record establishes in the docket that Father was present in court.
Father was notified that he was permitted to attend Child’s
medical, dental, and education appointments. . . . Father was also
ordered by the trial court to start parent-caregiver sessions at
CCTC on January 27, 2016. This has been an outstanding order
of court and Father was present in the courtroom. As of August
2017, to the best knowledge of CUA, Father still had not made
outreach to CCTC to inquire about caregiver sessions. (N.T.
01/17/18, pg. 15). Child needs permanency, which Father cannot
provide. Father has demonstrated that he is unwilling to remedy
the causes of his incapacity to parent in order to provide Child
with essential parental care, control, or subsistence necessary for
Child’s physical and mental well-being. Termination under 23
Pa.C.S.A. §2511(a)(2) was also proper.
T.C.O. at 8-9.
Father, however, argues a lack of current parental incapacity. Father’s
Brief at 12. He states,
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Father, A.W., has documented a present capacity to care for his
child. There are no existing dependency issues. Father has
appropriate housing, although neither DHS nor NET CUA provided
any documentation of any efforts made to assess the suitability of
[F]ather’s housing. Additionally, parental rights may not be
terminated solely on the basis of environmental factors such as
inadequate housing. Father has resolved the issues that
contributed to the placement of the child and has established his
present capacity to parent his child. Father has remained clean
and sober, and has no recent arrests or active criminal cases.
Again, neither DHS nor NET CUA provided any documentation of
any prior criminal record for [F]ather. There is no documented
evidence of any possibility of [F]ather becoming incarcerated for
a parole or probation violation because no evidence was offered
to prove that [F]ather is currently serving a probation or parole
sentence. There are no legal grounds to terminate [F]ather's
parental rights under section 2511 (a)(2) because there is no clear
and convincing evidence of present incapacity and all conditions
that contributed to the placement of the child have been
remedied.
Id.
A review of the record supports the trial court’s determination of a basis
for termination under Section 2511(a)(2). Father failed to complete his
established SCP objectives. CUA case manager, Dhyjuanae Abrams,
recounted Father’s SCP objectives as to: attend parenting classes, maintain
appropriate housing, obtain employment, and maintain visitation.7 N.T. at
11; see also DHS Exhibits 8-12. Notably, as to these objectives, Ms. Abrams
confirmed that she had conversations with Father about them. Id. at 12. Ms.
Abrams acknowledged that Father had taken and completed a parenting class.
____________________________________________
7 Father’s whereabouts were initially unknown and his sole objective was to
contact CUA as to his whereabouts. See DHS Exhibits 3, 5, 6, 7; see also
Petition for Involuntary Termination of Parental Rights, 6/7/17, Exhibit “A,”
Statement of Facts, at ¶¶n, t, w, bb.
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Id. at 11. However, she testified that, as of the time of the hearing, Father
did not have appropriate housing. Id. Moreover, she indicated Father was
aware that housing was an objective and he had been referred to ARC. Id.
Further, despite requests “throughout the life of the case,” Father failed to
provide updated employment documentation. Id. at 12.
As to visitation, at the time of the hearing, Father was afforded weekly
supervised visitation at the agency. Id. Father previously had liberal
supervised visitation at the home of Maternal Great-grandmother, to include
a monthly visit supervised by the agency. See Permanency Review Order,
7/13/16. However, this was later changed to weekly supervised visitation at
the agency. See Permanency Review Order, 1/11/17. Although Ms. Abrams
testified that Father attended ten of twelve visits since the last court hearing,
she reported that he missed the last three weeks without reason. N.T. at 12.
She testified as follows:
Q. And has he made every visit since the last court date?
A. No.
Q. How many did he make?
A. Ten out of twelve, but for the last three weeks – he missed the
last three weeks.
Q. Do you know why he’s missed?
A. No, just no call, no show.
Id. Moreover, Ms. Abrams revealed that Father usually presents for visitation
twenty minutes late, id. at 12, and does not interact with Child the entire visit.
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Id. at 13, 17. Ms. Abrams stated, “They don’t really have the relationship,
like the conversations.” Id. at 13.
Lastly, Ms. Abrams testified that Child is receiving mental health
services through CCTC. Id. at 14. Pursuant to court order, CCTC was to
commence caregiver sessions with both Mother and Father, and Father was
permitted to participate in Child’s sessions. See Permanency Review Orders,
1/27/16 and 4/21/16. Ms. Abrams indicated that Father is not participating
in these sessions and has not contacted CCTC. N.T. at 14-15.
As this Court has stated, “[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.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super.
2006). Hence, the record substantiates the conclusion that Father’s repeated
and continued incapacity, abuse, neglect, or refusal has caused Child to be
without essential parental control or subsistence necessary for their physical
and mental well-being. See In re Adoption of M.E.P., 825 A.2d at 1272.
Moreover, Father cannot or will not remedy this situation. See id. As noted
above, in order to affirm a termination of parental rights, we need only agree
with the trial court as to any one subsection of Section 2511(a) before
assessing the determination under Section 2511(b), and we, therefore, need
not address any further subsections of Section 2511(a). In re B.L.W., 843
A.2d at 384.
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To the extent that Father’s argument may be read to include an
assertion of a lack of reasonable efforts on the part of the agency, this
argument is without merit. When reviewing a termination order on appeal,
we do not consider whether the agency made reasonable efforts. Our
Supreme Court has rejected the argument that the provision of reasonable
efforts by the county children’s services agency is a factor in termination of
the parental rights of a parent to a child. See In the Interest of: D.C.D.,
629 Pa. 325, 343-45, 348, 105 A.3d 662, 673-74, 676 (2014) (rejecting the
suggestion that an agency must provide reasonable efforts to enable a parent
to reunify with a child prior to the termination of parental rights, and rejecting
the suggestion that Section 2511 of the Adoption Act should be read in
conjunction with Section 6351 of the Juvenile Act, particularly Section
6351(f)(9)(iii)).
We next determine whether termination was proper under Section
2511(b). Our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.[A.] § 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. [a/k/a E.W.C. & L.M.
a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485 (1993)],
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791. However, as
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discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946 A.2d
753, 762-63 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he 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 at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. . . .
In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
In the case sub judice, in determining that termination of Father’s
parental rights favors Child’s needs and welfare under Section 2511(b) of the
Adoption Act, the trial court stated as follows:
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Father currently has weekly, supervised visits with Child at the
agency. As the record establishes, at all permanency hearings,
the trial court has given Father supervised visits with Child. For a
longtime, Father had supervised visits with Child at [M]aternal
[G]reat-grandmother’s home, but since Father was not making
himself available to visits with Child, the trial court changed his
visits to weekly supervised at the agency. Since the last court
date of October 20, 2017, which is after the goal change and
termination petitions were filed, Father became more consistent
in attending supervised visits. However, for the last three weeks
before the termination trial on January 17, 2018, Father was again
a no-call and no-show. (N.T. 01/17/18, pg. 12). Father did not
provide any reason to CUA as to why he missed the scheduled
visits. When Father does attend the supervised visits, he
sometimes will arrive up to 20 minutes late. (N.T. 01/17/18, pg.
12). The interactions between Father and Child are not the
interactions a Father would have with a child. Father has no
positive, healthy, paternal relationship with Child. Father and
Child will play games and have some interactions during the visits,
but Father and Child do not tend to have conversations with each
other. Child is usually quiet when around Father during the visits.
(N.T. 01/17/18, pgs. 13, 17-18). Child refers to Father as “Uncle”
instead of “Father.” There is no positive, healthy, paternal bond
between Father and Child. (N.T. 01/17/18, pg. 13). Child is
twelve-years-old and is currently placed in the home of [M]aternal
[G]reat-grandmother, where she is doing well in the home. Child
is up-to-date on medical and immunizations, attending school,
and receiving mental health services at CCTC, while in [M]aternal
[G]reat-grandmother’s care. (N.T. 01/17/18, pgs. 13-14). Child
has informed CUA that she is aware that she will be adopted and
that she wants to remain with [M]aternal [G]reat-grandmother
permanently. Child does not want to reside with Father. Child
has resided with [M]aternal [G]reat-grandmother since April
2014. Child wants to be adopted by [M]aternal [G]reat-
grandmother. (N.T. 01/17/18, pg. 16). Father has never
participated in Child’s mental health services at CCTC. Father was
also ordered by the trial court to start parent-caregiver sessions
at CCTC on January 27, 2016. This has been an outstanding order
of court and Father was present in the courtroom. As of August
2017, to the best knowledge of CUA, Father still had not made
outreach to CCTC to inquire about caregiver sessions. (N.T.
01/17/18, pg. 15). At the permanency hearing on January 11,
2017, the record establishes in the docket that Father was present
in court. Father was notified that he was permitted to attend
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Child’s medical, dental, and education appointments. . . . Child
receives love, safety, and comfort in [M]aternal [G]reat-
grandmother’s home. (N.T. 01/17/18, pgs. 14-15). There would
be no irreparable harm to Child if Father’s parental rights were
terminated. (N.T. 01/17/18, pg. 13). The record establishes by
clear and convincing evidence that termination would not sever an
existing and beneficial relationship between Father and Child. The
DHS witness was credible. The trial court’s termination of Father’s
parental rights to Child under 23 Pa.C.S.A. §2511(b) was proper
and there was no error of law or an abuse of discretion.
T.C.O. at 14-15.
Father, however, argues that he maintained consistent visitation and
has a bond with Child. He further blames DHS and NET for any breakdown in
his relationship with Child. Father’s Brief at 13. Specifically, he avers:
Father and the child have a strong emotional bond. Father
frequently and consistently visited with the child while she was
placed with caregiver. The failure of the caseworker from NET
CUA and DHS to initially notify [F]ather and make reasonable
efforts toward full and proper reunification interfered with
[F]ather’s ability to further strengthen his emotional bond with his
daughter. The child’s developmental, physical and emotional
needs and welfare suffered as a result of the Department’s failure
to make reasonable efforts.
There are no legal grounds to terminate [F]ather’s parental rights
under section 2511 (b) because there was no clear and convincing
evidence offered at trial to establish that termination would serve
the best interest of the child. Father has established a strong
emotional bond between him and his child. Termination of
[F]ather’s parental rights would not best serve the developmental,
physical and emotional needs of the child. Father’s ability to
deepen and strengthen the bond between him and the child[] was
limited by the actions of the Department of Human Services.
Id.
Upon review, we again discern no abuse of discretion. The record
supports the trial court’s finding that Child’s developmental, physical and
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emotional needs and welfare favor termination of Father’s parental rights
pursuant to Section 2511(b). There was sufficient evidence to allow the trial
court to make a determination of Child’s needs and welfare, and as to the lack
of a bond between Father and Child such that, if severed, would not have a
detrimental impact on her.
Significantly, as indicated above, Father missed visitation, which had
been changed to weekly supervised visitation at the agency, the last three
weeks prior to the hearing without reason or explanation, N.T. at 12, and is
sometimes twenty minutes late for visitation and does not interact with Child
the entire visit, id. at 12, 13, 17. Further, Ms. Abrams observed that Father’s
relationship with Child is not a father-child relationship, indicating, “. . .[I]t’s
not like a real relationship as a father, like a father relationship. I think she
really refers to him as like her uncle. . .” Id. at 13. Ms. Abrams further noted
the lack of a positive, healthy paternal relationship.8 Id. As such, Ms. Abrams
opined that there would not be irreparable harm to Child if Father’s parental
rights were terminated. Id.
Moreover, Ms. Abrams also indicated that Child, who was twelve years
old, wants to remain with and be adopted by her maternal great-grandmother.
Id. at 16. At the time of the hearing, Child had been residing with Maternal
Great-grandmother for almost four years and fully committed to DHS for over
____________________________________________
8Ms. Abrams testified that she supervised the last visit between Father and
Child, and spoke with Child during home visits regarding her relationship with
Father. N.T. at 16.
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two years. Id. at 19-20. Child was doing well and up-to-date medically. Id.
at 13-14.
Thus, as confirmed by the record, termination of Father’s parental rights
serves Child’s developmental, physical and emotional needs and welfare and
was proper pursuant to Section 2511(b). While Father may profess to love
Child, a parent’s own feelings of love and affection for a child, alone, will not
preclude termination of parental rights. In re Z.P., 994 A.2d at 1121. At the
time of the hearing, Child had been residing with and in the care of Maternal
Great-grandmother for almost four (4) years and is entitled to permanency
and stability. As we stated, 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.” Id. at 1125. Rather, “a parent’s basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and fulfillment
of his or her potential in a permanent, healthy, safe environment.” In re B.,
N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (citation omitted).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/18
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