In Re: Adoption of: N.K.M. Appeal of: M.J.M. ( 2018 )

J-S82045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: N.K.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
:
APPEAL OF: M.J.M., NATURAL :
FATHER : No. 1410 WDA 2017
Appeal from the Order Entered August 3, 2017
in the Court of Common Pleas of Westmoreland County Orphans’ Court
at No(s): No. 38 of 2017
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 29, 2018
M.J.M. (Father) appeals from the order entered August 3, 2017, in the
Court of Common Pleas of Westmoreland County, which terminated
involuntarily his parental rights to his minor son, N.K.M. (Child), born in July
2007.1, 2 We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
1 C.B. (Mother) relinquished her parental rights voluntarily. Mother did not
file a brief in connection with this appeal, nor did she file a separate appeal.
2 Child was represented by two attorneys, one serving as guardian ad litem
and one serving as legal counsel. Child’s guardian ad litem submitted a
letter to this Court indicating that he was unable to file a brief due to a
recent surgery and expressing his position that the orphans’ court acted
properly in terminating parental rights. We note with extreme displeasure
that Child’s legal counsel failed to file a brief or otherwise advocate for and
(Footnote Continued Next Page)
J-S82045-17
The orphans’ court summarized the factual and procedural history of
this matter as follows.
... A Petition for Emergency Protective Custody was filed by the
Westmoreland County Children’s Bureau [(WCCB)], and [C]hild
was placed into [WCCB] custody on September 11, 2015[,] due
to [Child‘s] witnessing domestic violence between his parents, as
well as Father’s abuse of alcohol. The domestic violence
witnessed by [C]hild led to a Protection from Abuse Order
(“PFA”) filed by Mother against Father, [which] Father
subsequently violated. Additionally, both [p]arents had
significant criminal histories, with Mother experiencing periods of
incarceration which left Father as the primary caretaker. [C]hild,
approximately seven [] years old at the time, expressed being
fearful of Father due to Father’s alcohol usage.
[Child] was adjudicated dependent on September 25,
2015. [WCCB] ordered services for both parents in this case, in
order to further their goal of reunification with [C]hild. Father
was specifically ordered to undergo a parenting program,
outpatient drug and alcohol treatment, random drug screenings,
domestic violence offenders treatment, and to obtain suitable
housing and employment. He was eventually also ordered to
complete a mental health evaluation. Father successfully
completed the parenting program, mental health evaluation, and
(Footnote Continued) _______________________
set forth Child’s position to this Court. Counsel’s responsibility to Child did
not end at the conclusion of the termination of parental rights hearing. See
In re Adoption of J.L., 769 A.2d 1182, 1185 (Pa. Super. 2001); see also
In re M.T., 607 A.2d 271, 276 (Pa. Super. 1992) (observing that child’s
counsel abdicated his legal responsibilities to his client because counsel,
inter alia, failed to file a brief, indicate that he joined another party’s brief,
or otherwise notify this Court of his client’s position). While in this case our
appellate review was not impeded by counsel’s failure, and we were able to
surmise Child’s position from the record (discussed more specifically infra),
we caution counsel that it is his job “to represent [his client] with zeal and
professionalism. [Child has] no say in [appointment of counsel] and
deserve[s] to have the benefit of effective representation, particularly when
a matter as important as [his] future relationship with a biological parent is
at stake.” In re J.J.F., 729 A.2d 79, 83 (Pa. Super. 1999) (Schiller, J.,
concurring).
-2-
J-S82045-17
recommendation to complete a second round of drug and alcohol
treatment in 2017. He did enroll in treatment; however, he was
unsuccessfully discharged from Gateway drug and alcohol
treatment center on June 26, 2017.
The most recent problematic incident involving Father was
another instance of domestic violence between Father and
Mother. Allegedly, Mother was asleep in Father’s apartment,
when Father came in and violently attacked her. It was reported
that [F]ather hit her, kicked her, threw her against a wall, and
held an electric drill to her head and threatened to kill her. The
caseworker stated that she believed Father and Mother had been
under the influence at the time of the event. Father is currently
incarcerated for this reason, and the case is currently pending ...
in Westmoreland County.[3] He has been charged with terroristic
threats, disorderly conduct, harassment, simple assault and two
felony counts of aggravated assault. Upon learning of this
incident, [C]hild expressed serious anger towards Father, stating
that he would only go to visit [F]ather in jail to “beat him up.”
Visitation with Father has been suspended since this time. ...
Orphans’ Court Opinion, 9/22/2017, at 2-4.
On March 28, 2017, WCCB filed a petition to terminate Father’s
parental rights involuntarily. The orphans’ court conducted a termination
hearing on August 3, 2017. Following the hearing, the court entered an
order terminating Father’s parental rights. Father timely filed a notice of
appeal on August 25, 2017, along with a concise statement of errors
complained of on appeal.
Father now raises the following issues for our review.
____________________________________________
3 Father was incarcerated in June 2017, the same month that Gateway
discharged him from drug and alcohol treatment. It is not clear from the
record whether Gateway discharged Father because of his incarceration.
-3-
J-S82045-17
1. Was clear and convincing evidence presented to show that
termination was warranted pursuant to 23 Pa. C.S.[ subs]ections
2511(a)(2), 2511(a)(5), 2511(a)(8), and 2511(b)?
2. Did the [orphans’] court err in terminating Father’s parental
rights despite evidence that Father had participated and made
significant progress in services provided?
3. Did the [orphans’] court err in terminating Father’s parental
rights despite evidence that [C]hild [] dictated the extent of
services provided to Father and frequency of visits?
4. Did the [orphans’] court err in terminating Father’s parental
rights despite evidence that [C]hild’s alleged wishes in regard to
Father were influenced by [] Mother and foster parents?
5. Did the [orphans’] court err in terminating Father’s parental
rights due to the weight placed on Father’s pending criminal
charges that were not disposed [of] and Father was not
convicted of and said charges were filed after [WCCB’s] filing of
the underlying termination petition?
6. Did the [orphans’] court err in relying on environmental
factors beyond Father’s control in terminating Father’s parental
rights?
7. Did the [orphans’] court err in terminating Father’s parental
rights despite evidence that Mother had unlimited access to
[C]hild despite not participating in any court-ordered services
and evidence that Mother heavily influenced [C]hild in regard to
Father?
8. Did the [orphans’] court err in terminating Father’s parental
rights based upon evidence received from Mother and foster
parents, despite concerns from both [WCCB], Father and the
[orphans’ c]ourt about Mother and foster parents?
Father’s Brief at 4-5 (suggested answers omitted) (emphasis in original).
We review Father’s issues mindful of our well-settled standard of
review.
-4-
J-S82045-17
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in [sub]ection 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 [sub]ection 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to subsections 2511(a)(2), (5), (8), and (b). We need only agree
with the court as to any one subsection of 2511(a), as well as subsection
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
-5-
J-S82045-17
2004) (en banc). Here, we analyze the court’s decision to terminate under
subsections 2511(a)(2) and (b), which provide as follows.
(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. § 2511(a)(2), (b).
We first address whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to subsection 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 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
-6-
J-S82045-17
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
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 A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted). Importantly, “a parent’s incarceration is relevant
to the [sub]section (a)(2) analysis and, depending on the circumstances of
the case, it may be dispositive of a parent’s ability to provide the ‘essential
parental care, control or subsistence’ that the section contemplates.” In re
A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation omitted).
While Father lists eight issues in his statement of questions involved,
he includes only four issues in the argument section of his brief. Father’s
issues are interrelated; so we will address them together. With respect to
subsection 2511(a)(2), Father argues that he complied with services, and
disputes the finding of the orphans’ court that he continues to engage in
domestic violence and alcohol abuse. Father’s Brief at 13-15, 25. Father
further argues that he has not pled guilty to, or been convicted of, his
current criminal charges, and that he was charged after WCCB filed its
termination petition. Id. at 16-17, 24-26. Because of this, Father contends
that the charges “should not be relied upon as the sole basis” to terminate
his parental rights. Id.
-7-
J-S82045-17
Instantly, the orphans’ court found that Father is incapable of
parenting Child, and that Father cannot, or will not, remedy his parental
incapacity. Orphans’ Court Opinion, 9/22/2017, at 8. The court reasoned
that Father failed to remedy his domestic violence and alcohol abuse issues.
Id. at 8-9. The court emphasized that Father was discharged unsuccessfully
from domestic violence counseling and offenders treatment, that Father
received criminal charges stemming from a recent incident of alleged
domestic violence, that the WCCB caseworker and Child’s visitation
supervisor discovered alcohol in Father’s apartment consistently, and that
Child reported smelling alcohol on Father’s breath. Id.
Our review of the record supports the findings of the orphans’ court.
During the termination hearing, WCCB presented the testimony of Father’s
domestic violence counselor, Cynthia King, MSSA, LCSW. Ms. King testified
that she began providing counseling to Father in March 2015, and that her
treatment goals were to reduce the intensity and frequency of Father’s
impulsive behaviors, to assist Father in forming healthy adult relationships
that did not include violence, and to help Father learn how to parent Child in
a healthy way that involves consistency, structure, and making good
decisions for Child. N.T., 8/3/2017, at 8, 21.
Ms. King conducted a mental health examination of Father, which
revealed that Father displays narcissistic personality traits. Id. at 7-8, 14.
Furthermore, Father’s score on the Hare Psychopathy Checklist was highly
-8-
J-S82045-17
concerning, particularly relative to Father’s “interpersonal and affective
facets.” Exhibit WCCB 1 (Termination of Parental Rights Court Summary
Report), at 5-6. Ms. King testified that individuals with these characteristics
“are individuals who are typically focused on their own needs and wants.
They have a difficult time placing their needs and desires behind someone
else. And parenting is primarily about someone else.” Id. at 7-8.
With respect to Father’s success in treatment, Ms. King testified that
he began exhibiting progress in “April to early to mid-June” 2015. Id. at 21.
However, Father’s progress soon deteriorated, and substance abuse became
a major concern.4 Id. at 11. Ms. King described the impact of Father’s
substance abuse as follows.
He was getting very angry and made a lot of threatening
statements around the individuals around him at the time. He
was coming into session and talking about getting even with
[Mother]. He had sent an inappropriate text to the foster
parents of [Child]. He took no responsibility at all for his
positive drug tests that were coming up.
Id. at 13.
____________________________________________
4 Ms. King explained that Father admitted to alcohol use “pretty regularly”
during their counseling sessions, but that he minimized his drinking and
denied that it interfered with his life. N.T., 8/3/2017, at 12. Additionally,
the record reflects that Father tested positive for controlled substances on
three occasions during Child’s dependency. Id. at 62. In November 2015,
Father tested positive for cocaine. Exhibit WCCB 3 (dependency orders). In
October 2016, Father tested positive for morphine and opiates. Id. In
December 2016, Father once again tested positive for cocaine. Id.
-9-
J-S82045-17
As a result of Father’s substance abuse, Ms. King discharged Father
from domestic violence counseling unsuccessfully in January 2017. Id. at
11. She discharged Father with a strong recommendation that he seek
additional drug and alcohol counseling. Id. Ms. King instructed Father that
he could return for additional domestic violence counseling once he was able
to manage his substance abuse. Id. at 11-12. Father did not return. Id. at
12.
Ultimately, Ms. King opined that Father is not ready or able to parent
Child. Id. at 16. She explained,
[Father] was in a very bad place when I last saw him. In
the last several sessions, he had turned to blaming everyone
else for his behavior. He was unable to focus on [Child] at all.
Most of our sessions were him being very angry with everyone,
work, [Mother], the foster parents. He was out of control
basically. I think that his substance usage was a significant part
[of] that. So, he would need to be clean and sober and
demonstrate that, and be able to step away from what is in his
best interest and to what is in [Child’s] best interest.
Id. at 16-17. Ms. King added that it would be “very difficult for [Father] to
ever be in a situation where he could be a single father.” Id. at 17-18. She
believed that additional therapy would be helpful for Father, but that “I don’t
know if that would eliminate all of the barriers.” Id. at 18.
Thus, the record confirms that Father is incapable of parenting Child,
and that he cannot, or will not, remedy his parental incapacity. While Father
made some efforts to comply with services during Child’s dependency, his
unresolved substance abuse issues and failure to complete domestic violence
- 10 -
J-S82045-17
counseling remain significant concerns. Moreover, while it is true that
Father has not been convicted of his current criminal charges, his
incarceration poses a significant impediment to his ability to parent Child.
As Father admitted during the hearing, he will remain incarcerated “into the
foreseeable future[.]” N.T., 8/3/2017, at 121. Even when Father is released
from incarceration, he will be in no position to provide parental care. Child
cannot wait for permanency and stability any longer. 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).
We next consider whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to subsection 2511(b).
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term ‘bond’ is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. 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
- 11 -
J-S82045-17
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Here, the orphans’ court found that terminating Father’s parental
rights would best serve Child’s needs and welfare. Orphans’ Court Opinion,
9/22/2017, at 10. The court reasoned that Child is thriving in his foster
home, and that Child has stated that he wants to remain with his foster
family. Id. The court reasoned that Child is fearful of Father, and that Child
does not feel comfortable having unsupervised visits with Father. Id. at 10-
11. While the court acknowledged that Child and Father share a bond, it
concluded that this bond is not “a consistently positive influence” for Child,
and that terminating Father’s parental rights would not negatively impact
Child. Id. at 11.
Father argues that WCCB failed to present sufficient evidence with
respect to subsection 2511(b).5 Father’s Brief at 17, 19. Father argues that
____________________________________________
5 As part of his argument with respect to subsection 2511(b), Father
contends that the orphans’ court terminated his parental rights based on
environmental factors, including his lack of housing and employment, which
were beyond his control due to his incarceration. Father’s Brief at 24.
Subsection 2511(b) provides, in relevant part, that “[t]he rights of a parent
(Footnote Continued Next Page)
- 12 -
J-S82045-17
he maintained contact with Child, that he performed well during his visits
with Child, and that he and Child share a bond. Id. at 18, 21. Father
further argues that Child’s foster parents granted Mother “unfettered access”
to Child, and that the foster parents and Mother manipulated Child in order
to weaken his relationship with Father. Id. at 20-23.
Our review of the record again supports the findings of the orphans’
court. During the termination hearing, WCCB presented the testimony of
caseworker, Dawn Trail. Ms. Trail testified that Child showed little
enthusiasm for Father during their visits. N.T., 8/3/2017, at 67-68. She
explained, “[Child] doesn’t get excited or light up when he sees his dad. He
doesn’t run to him. He acknowledges him and has more of just a
conversation.” Id. at 68. WCCB provided Father with opportunities to
increase his visits with Child, but Father did not avail himself of those
opportunities. Id. at 66-67, 78. Ms. Trail testified that Child has been very
upset with Father recently, due to his alleged domestic violence against
Mother and resulting incarceration in June 2017. Id. at 67. As the orphans’
court indicated in its opinion, the court suspended Child’s visits with Father
(Footnote Continued) _______________________
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.” 23 Pa.C.S. § 2511(b)) (emphasis
added). This claim fails immediately, as it is clear that the court did not
terminate Father’s parental rights based solely on those factors. The court
specifically rejected this claim in its opinion, stating, “[t]his [c]ourt is
convinced that termination in this case is not based only on environmental
factors beyond Father’s control.” Orphans’ Court Opinion, 9/22/2017, at 11.
- 13 -
J-S82045-17
after Child made comments that “he would only go to the jail to see [Father]
so he can beat him up.” Id.
In contrast, Ms. Trail testified that Child is doing well in his pre-
adoptive foster home. Id. at 73. Ms. Trail recalled a recent conversation
that she had with Child about the possibility that his foster parents would
adopt him. Id. at 72. Child stated “that where he is now is his home, it has
been his home and that’s where he wishes to stay.”6 Id.
Ms. Trail acknowledged that Child’s foster parents allow Mother to
have “unlimited access” to Child. Id. at 77. She also acknowledged that
there has been at least one occasion during which Mother spent time with
Child, and Child became less “enthusiastic” about seeing Father. Id. 79.
Ms. Trail agreed that she has concerns “as far as all adults having
discussions in front of [C]hild about each other[.]” Id. at 78. However, she
testified that Child suffers from post-traumatic stress disorder, and opined
that Child’s reluctance to visit with Father results from his past trauma
rather than “the current conversations.” Id. at 80.
Thus, the record confirms that terminating Father’s parental rights will
best serve Child’s needs and welfare. As discussed above, Father is
____________________________________________
6 Similarly, Child’s visitation supervisor, Olivia Halula, testified that Child
“has told me before that he wants to stay with the foster parents. He does
not want to go back with [Father].” N.T., 8/3/2017, at 48. Child reported to
Ms. Halula that he is afraid of Father, that he has been hoping that Father
would go to jail, and that he never wants to be alone with Father. Id. at 42-
43, 56.
- 14 -
J-S82045-17
incapable of parenting Child, and he will not be capable of parenting Child at
any point in the foreseeable future. While Father has been incapable of
parenting Child, Child has been experiencing love, safety, stability, and
security with his foster family. Child is doing well with his foster family and
views the foster home as his home. Although Child has a relationship with
Father, the record indicates that the relationship is not “necessary and
beneficial” to Child, and that severing the relationship will not cause Child to
suffer emotional harm. In re Adoption of G.L.L., 124 A.3d 344, 347 (Pa.
Super. 2015) (instructing courts to discern effect on child if parental rights
were to be terminated, and to consider whether terminating parental rights
would destroy an existing bond that is “necessary and beneficial” to the
child). Contrary to Father’s argument on appeal, the record indicates that
Child’s negative feelings towards Father stem from fear and past trauma,
rather than manipulation by Mother and Child’s foster parents.
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by terminating Father’s parental rights involuntarily.
Therefore, we affirm the court’s August 3, 2017 order.
Order affirmed.
- 15 -
J-S82045-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/17
- 16 -