In Re: J.W., a Minor ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER : No. 2594 EDA 2018
Appeal from the Decree Entered August 3, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000088-2018,
CP-51-DP-0001265-2012
IN THE INTEREST OF: S.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER : No. 2595 EDA 2018
Appeal from the Decree Entered August 3, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000089-2018,
CP-51-DP-0002751-2015
IN THE INTEREST OF: I.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER : No. 2597 EDA 2018
Appeal from the Decree Entered August 3, 2018
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000091-2018,
CP-51-DP-0002752-2015
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED FEBRUARY 21, 2019
Appellant, D.W. (“Father”), appeals from the decrees entered in the
Philadelphia County Court of Common Pleas Family Court, which granted the
petitions of the Department of Human Services (“DHS”) for involuntary
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termination of Father’s parental rights to his minor children, J.W., S.W., and
I.W. (“Children”) and changed their permanency goals to adoption. We affirm.
In its opinion, the Family Court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.1 Procedurally we add, Father timely filed notices of appeal and
contemporaneous statements of errors complained of on appeal per Pa.R.A.P.
1925(a)(2)(i) on Tuesday, September 4, 2018 (September 2, 2018, was a
Sunday, and Monday, September 3, 2018, was Labor Day).2 On September
17, 2018, this Court consolidated Father’s appeals sua sponte.
Father raises three issues for our review:
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY FINDING THAT [DHS] PROVED BY CLEAR
AND CONVINCING EVIDENCE THAT IT WAS
IN…CHILDREN’S BEST INTEREST TO GRANT THE DHS
PETITION TO CHANGE THE GOAL TO ADOPTION[?]
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY GRANTING THE DHS PETITION TO
TERMINATE FATHER’S PARENTAL RIGHTS BECAUSE IT
FAILED TO CONSIDER THE [SECTIONS] 2511(A)(1)[,
(A)](2) EVIDENCE IN THE “TOTALITY OF THE
CIRCUMSTANCES”[?]
____________________________________________
1 The record makes clear the court appointed separate legal counsel for
Children in addition to the Guardian ad Litem. Both counsel articulated and
concurred at the hearing that termination served Children’s legal and best
interests.
2The certified record resolves any question as to whether Father filed notices
of appeal at each docket number. See Commonwealth v. Walker, ___ Pa.
___, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal from
orders which resolve issues arising on separate docket numbers).
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WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION BY FINDING THAT DHS PROVED BY CLEAR
AND CONVINCING EVIDENCE THAT IT WAS IN THE “BEST
INTERESTS” OF…CHILDREN TO BE ADOPTED[?]
(Father’s Brief at 3).
In his first and third issues combined, Father argues the trial court
violated Father’s due process rights, when the court prevented Father from
testifying and cross-examining witnesses regarding whether adoption was in
Children’s best interest. Father concludes this Court should reverse the
decrees and remand. We cannot agree.
As a prefatory matter, “issues not raised in the [trial] court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Additionally, issues not raised in a Rule 1925 concise statement of errors will
be deemed waived. Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006).
See also In re L.M., 923 A.2d 505 (Pa.Super. 2007) (applying Rule 1925
waiver standards in family law context). “Rule 1925(b) waivers may be raised
by the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa. 410,
428, 16 A.3d 484, 494 (2011). The Rule 1925(b) statement must be “specific
enough for the trial court to identify and address the issue [an appellant]
wishe[s] to raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “[A]
[c]oncise [s]tatement which is too vague to allow the court to identify the
issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement
at all.” Id.
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Here, Father failed to raise before the trial court any violation of his due
process rights. On appeal, however, Father couches his arguments regarding
the goal change and part of his argument regarding termination as due
process claims. Specifically, Father claims the court prevented him from
testifying and cross-examining witnesses. Father did not raise his due process
challenge at the termination/goal change hearing. Further, Father’s concise
statement reads as follows:
1. The trial court erred and/or abused its discretion by
finding that [DHS] proved by clear and convincing evidence
that it was in [Children]’s best interests to grant its petitions
to change the goal to adoption because Father was a viable
reunification resource and was bonded to…[C]hildren.
2. The trial court erred and/or abused its discretion by
granting the DHS petition to terminate Father’s parental
rights because it failed to consider the [Section] 2511(a)(1),
(2), (5), (8) evidence in the “totality of the circumstances.”
3. The trial court erred and/or abused its discretion by
finding that DHS proved by clear and convincing evidence
that it was in the “best interests” of [Children] to be adopted
without taking into consideration the “totality of the
circumstances.”
(See Concise Statement, filed September 4, 2018; Father’s Brief at Exhibit
B.) Thus, Father failed to preserve his due process complaints. Therefore,
Father’s first and third issues are waived in their entirety. To the extent Father
frames his second issue as a due process claim, that issue is also waived for
purposes of appeal. See Pa.R.A.P. 302(a); Lineberger, supra.
Appellate review of termination of parental rights cases implicates the
following principles:
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In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by the finder of fact. The burden of proof is
on the party seeking termination to establish by clear
and convincing evidence the existence of grounds for
doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.
2004).
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In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165
(2008)).
DHS filed a petition for the involuntary termination of Father’s parental
rights to Children on the following grounds:
§ 2511. Grounds for involuntary termination
(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:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
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* * *
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
* * *
(b) Other considerations.―The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Parental rights may be
involuntarily terminated where any one subsection of Section 2511(a) is
satisfied, along with consideration of the subsection 2511(b) provisions.” In
re Z.P., supra at 1117.
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… parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under
the standard of best interests of the child.
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In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to the
filing of the termination petition, which reveals a settled
intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his...conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his...parental
rights, to determine if the evidence, in light of the totality of
the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
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718, 872 A.2d 1200 (2005) (internal citations omitted).
The grounds for termination of parental rights under Section
2511(a)(2), 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 (Pa.Super. 2002). “Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.”
Id. at 340. The fundamental test in termination of parental rights under
Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.
636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced
that under what is now Section 2511(a)(2), “the petitioner for involuntary
termination must prove (1) repeated and continued incapacity, abuse, neglect
or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child
to be without essential parental care, control or subsistence; and (3) that the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
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Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, the 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., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have his…rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a
place of importance in the child’s life.
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Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his…ability, even in difficult circumstances. A
parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with [the child’s] physical and
emotional needs.
In re B.,N.M., supra at 855 (internal citations and quotation marks omitted).
“[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.” Id. at 856.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable Daine Grey, Jr., we
conclude Father’s second issue merits no relief. The Family Court opinion
comprehensively discusses and properly disposes of the question presented.
(See Family Court Opinion, filed October 25, 2018, at 4-10) (finding: record
indicates Father demonstrated settled purpose of relinquishing parental claim
to Children and failed to perform parental duties for at least six months before
DHS filed termination petitions; at termination hearing, Father testified that
for over six years before termination hearing he was aware of DHS’
involvement with Children, knew single case plan (“SCP”) objectives were in
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place, and knew completion of SCP objectives was vital to reunification with
Children; nonetheless, Father failed to comply with court’s orders, take any
assessments ordered, and attend supervised visits with Children; after July
2016, Father did not visit Children for over two years; Father only visited
Children again five months after DHS filed termination petitions; additionally,
case worker testified that although she spoke to Father several times, he failed
to perform tasks to meet SCP objectives; Father’s failure to complete SCP
objectives demonstrated his lack of interest in caring for Children; Father
offered no evidence to show he had made any effort to re-establish ties with
Children during six-month period before DHS filed termination petitions;
termination of Father’s parental rights to Children under Section 2511(a)(1)
was warranted; regarding termination pursuant to Section 2511(a)(2), Father
failed to cooperate with social services, including completing dual diagnosis
assessments, anger management classes, and housing clearances; Father’s
failure consistently to visit Children established his indifference to Children;
Father’s failure to comply with SCP objectives left Children without essential
parental care, which Father refused to remedy; record supports termination
of Father’s parental rights under Section 2511(a)(2); under Section 2511(b),
record demonstrated Children would not suffer irreparable harm if court
terminated Father’s parental rights; compelling testimony established
Children are not bonded with Father, but Children are bonded with pre-
adoptive parents, to whom Children look for their needs and parental
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guidance; case worker testified J.W. did not want to see Father again and I.W.
did not understand concept of father; Father failed to offer evidence
establishing existence of parent-child bond; in determining termination best
serves needs and welfare of Children, court considered that Father has not
met Children’s emotional, physical, and developmental needs, or provided
Children with healthy, safe environment for more than twenty-two months
prior to termination hearing). The record supports both the court’s rationale
and its decision. Accordingly, we affirm based on the Family Court opinion.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/19
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