In the Int. of A.L., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.H. :
:
:
:
: No. 1661 MDA 2017
Appeal from the Order Entered September 29, 2017
In the Court of Common Pleas of Cumberland County Juvenile Division at
No(s): CP-21-DP-0000167-2015
ADOPTION OF: A.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.W. :
:
:
:
:
: No. 1671 MDA 2017
Appeal from the Decree Entered September 29, 2017
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 002-ADOPT-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 23, 2018
R.W. (“Father”) appeals from the trial court’s permanency review order
changing the goal from reunification to adoption1 and the decree involuntarily
____________________________________________
1The permanency order is final and appealable. See In re H.S.W.C.-B., 836
A.2d 908 (Pa. 2003) (order granting or denying goal change is appealable).
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terminating his parental rights to his minor daughter, A.L. (“Child”) (born
8/15).2 After careful review, we rely upon the trial court’s opinion, authored
by the Honorable Christylee L. Peck, in affirming the permanency review order
and termination decree.
Based on Mother’s3 mental instability and erratic behavior in the hospital
following Child’s birth, Child came under court supervision out of fear for
Child’s physical safety and welfare. Child was adjudicated dependent in
October 2015 and placed in the custody of Cumberland County Children and
Youth Services (“CYS”). Child was placed in foster care in November 2015;
at the time, Father’s whereabouts were unknown. In February 2016, Child
was placed in a formal kinship home with a pre-adoptive foster family, with
whom she remains to date.4
Father was not located until late 2016; a paternity test confirmed he
was Child’s biological father in February 2017. CYS developed a Family
Service Plan (“FSP”) for Father that consisted of the following: (1) obtain and
maintain adequate and safe living conditions; (2) participate in parenting skills
____________________________________________
2We have consolidated Father two separate appeals, filed at 1661 MDA 2017
and 1671 MDA 2017, as they involve the same parties and related issues.
See Pa.R.A.P. 513 (Consolidation of Multiple Appeals).
3 Mother voluntarily consented to the termination of her parental rights with
regard to Child. She is not a party to this appeal.
4At the goal change/termination hearing, the foster family indicated that they
are willing to adopt Child and would permit Father to visit Child. N.T. Goal
Change/Termination Hearing, 9/27/17, at 47.
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assessments and follow-up with any recommendations; (3) address drug and
alcohol concerns; (4) perform random drug screens through CYS; (5) maintain
stable employment; (6) obtain a mental health evaluation; and (7) visit with
Child through Alternative Behavioral Consultants (“ABC”). When Father
continued to make only minimal progress on his FSP goals, CYS filed a petition
to terminate Father’s parental rights pursuant to sections 2511(a)(2) & (b) of
the Adoption Act.5
On September 27, 2017, the court held a goal change/termination
hearing. After the hearing, the court entered a permanency review order
changing the current goal from reunification to adoption based on the
following findings: Father had minimally complied with his FSP and made
minimal progress toward alleviating the circumstances that led to Child’s
placement; while Father completed a drug and alcohol evaluation, he had yet
to complete a FAST6 evaluation through ABC; Father had not yet begun
____________________________________________
5 23 Pa.C.S. §§ 2101-2910.
6 A FAST evaluation is a parental fitness evaluation. It is defined as a:
[F]orensic, multi[-]faceted evaluation that couples both a
psychological exam, identifying emotional or intellectual barriers
a parent may exhibit, with additional objective measures to assess
parental risk and skill levels. This evaluation includes a minimum
of two parent/child observations and collateral contacts with other
service providers, or individuals connected to the parent in some
way as to offer insight into historic behaviors. The objective of
this evaluation is to get a comprehensive forensic evaluation of a
parent[’s] strengths and needs, typically used to determine the
parental capabilities to assist in custodial matters. . . . [I]t merely
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parenting classes; while Father visited with Child weekly and was cooperative
with agency personnel, he had also missed some visits with Child and had
failed to notify ABC in advance; the permanency plan developed for Child in
August 2017 was no longer appropriate or feasible; and Child had been in
placement for 15 of the last 22 months. At the conclusion of the hearing, the
court also entered a final decree terminating Father’s parental rights to Child.
Father filed a timely notice of appeal from both the order and decree as
well as a Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on
appeal. He presents the following questions for our review:
(1) Whether the trial court erred as a matter of law in finding
that Father had made minimal progress toward alleviating
the circumstances that necessitated the original placement
of the Child?
(2) Whether the trial court erred as a matter of law in finding
that the Cumberland County Children and Youth Agency had
met its burden of proof in determining that reasonable
efforts to place the Child with Father had ultimately failed
and it was appropriate to change the goal to adoption?
(3) Whether the trial court erred as a matter of law and abused
its discretion in finding that the Cumberland County Children
and Youth Agency had proven by clear and convincing
evidence the grounds for termination of [Father’s]
____________________________________________
offers information about a parent[’s] strengths and needs and
recommendations to support reunification goals.
See http://alternativebehaviorconsultants.com/psychological-evaluations-
and-assessements (last visited Feb. 28, 2017).
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[p]arental [r]ights under Section 2511[7] of the Adoption
Act?
(4) Whether the trial court erred as a matter of law and abused
its discretion in finding that termination of [Father’s]
parental rights best served the developmental, physical and
emotional needs of the Child pursuant to 23 Pa.C.S. §
2511(b)[8]?
Father’s first two issues concern the trial court’s permanency order
changing the goal from reunification to adoption. In particular, he claims that
the court erred when it determined he had made minimal progress toward
____________________________________________
7 Pursuant to section 2511(a)(2):
(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.
8 Pursuant to section 2511(b):
(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.
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alleviating the circumstances that necessitated the original placement of Child
and in finding that CYS had met its burden of proving that reasonable efforts
to place the Child with Father had ultimately failed and it was appropriate to
change the goal to adoption.
The standard of review of a court’s permanency determination is as
follows:
In cases involving a court’s order changing a court-ordered goal
to adoption, an appellate court’s standard of review is abuse of
discretion. To hold that the trial court abused its discretion, an
appellate court must determine its judgment was manifestly
unreasonable, that the court disregarded the law, or that its action
was a result of partiality, prejudice, bias or ill will. While an
appellate court is bound by the facts determined in the trial court,
the appellate court is not tied to the court’s inferences, deductions
and conclusions; the appellate court has a responsibility to ensure
that the record represents a comprehensive inquiry and that the
hearing judge has applied the appropriate legal principles to that
record. Therefore, an appellate court’s scope of review is broad.
In the Interest of L.T., 158 A.3d 1266, 1276 (Pa. Super. 2017) (citation
omitted). In a change of goal proceeding, the best interests of the child, and
not the interests of the parent, must guide the trial court, and the parent’s
rights are secondary. In the Interest of D.P., 972 A.2d 1221 (Pa. Super.
2009). Likewise, this Court has held, “a child’s life simply cannot be put on
hold in the hope that the parent will summon the ability to handle the
responsibilities of parenting.” In re Adoption of M.E.P., 825 A.2d 1266,
1276 (Pa. Super. 2003).
Here, the trial court correctly disposes of Father’s issues with regard to
changing the goal to adoption where: (1) CYS made reasonable efforts to
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identify, locate, work with, and provide services to Father to aide in the
reunification process; (2) Father was uncooperative with CYS and service
providers in working toward his FSP goals; (3) Father missed agency visits
with Child; (4) Father did not take advantage of the opportunity to visit with
Child through the foster family; (5) Father has failed to make sufficient
progress in his relationship with Child over seven months; and (6) Child is
thriving in her pre-adoptive foster home with loving parents she considers her
mom and dad. See Trial Court Opinion, 11/30/17, at 15-18.
In his final two issues on appeal, Father contends that CYS failed to
prove, by clear and convincing evidence, that his parental rights should be
terminated under sections 2511(a) and (b) of the Adoption Act. In particular
he asserts that termination does not best serve Child’s developmental,
physical and emotional needs. We disagree.
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The standard of clear and convincing evidence is defined
as testimony that is so “clear, direct, weighty and convincing as
to enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.” It is well
established that a court must examine the individual
circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence in
light of the totality of the circumstances clearly warrants
termination.
In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party
seeking termination of parental rights bears burden of proving by clear and
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convincing evidence that at least one of eight grounds for termination under
23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs
and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
Again, we rely upon the well-written opinion, authored by Judge Peck,
in concluding that termination of Father’s parental rights under section
2511(a)(2) was proper where Father: (1) failed to progress appropriately in
his FSP goals; (2) did not maintain contact with Child’s foster family between
scheduled agency visits; (3) did not complete ordered parenting classes and
psychological evaluation; (4) was unable to progress to unsupervised visits;
and (5) has not demonstrated that he is capable of providing a safe and stable
environment in which to parent Child. See N.T. Goal Change/Termination
Hearing, 9/27/17, at 10-13.
Termination was also proper under section 2511(b) where: (1) evidence
suggests Father chose not to be involved in Child’s early life; (2) Father was
unable to develop a bond with Child as a result of missed visits and failure to
progress to unsupervised visits; (3) Child is not bonded to Father; (4) Child
has strong bond with pre-adoptive foster family where she is living in a safe
and happy environment; (5) foster family is willing to permit Father to
maintain contact with Child; and (6) Child needs permanency and stability in
her life. Id. at 12-13.
The parties are directed to attach a copy of Judge Peck’s Rule 1925(a)
opinion in the event of further proceedings in the matter.
Order and decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/23/2018
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Circulated 03/05/2018 12:00 PM
IN TIIE INTEREST CW A.L., : IN TIIE COURT OF COMlviON PLEAS OF
a Minor, : CUMBERLAND COUNTY, PENNSYLVANIA
D.O.B. 08/, J/15
Appeal of R.H., Father CP-2l-DP-0000167-2015
OPINION PURSUANT TO PA.R.A.P. 1925
Peck, J., November 30, 2017 -
On October 5, 2015, A.L. was adjudicate� dependent after being under Court
supervision since August 2015.1 On November 20, 2015, A.L. was placed into foster
care.' On December 22, 2016, Cumberland County Children and Youth Services
(CCCYS, or the Agency), by and through its solicitor, Lindsay D. Baird, Esquire, filed a
Petition to Schedule a Goal Change Hearing.3 On April 13, 20,17, the Agency, by and
through Ms. Baird, filed a Petition for Involuntary Termination of Parental Rights of
Father, R. . ; iJ W'. ·,.; ,. 4 A Goal Change and Termination of Parental Rights Hearing
was scheduled for September 29, 2017.5 After the hearing and consideration of the
evidence, this Court issued a Permanency Review Order changing the Child's goal to
adoption and a Final Decree terminating the parental rights of Appellant on September
1
29, 2017.6 On October 27, 2017, Appellant filed a Statement of Errors Complained of on
Appeal, complaining that:
I. The Honorable Court erred as a matter of law and abused
its discretion in finding that the Cumberland County
Children and Youth Agency had proven by clear and
convincing evidence the grounds for termination of
1 CCCYS Exhibit No. 1, Master's Recommendation for Adjudication and Disposition - Child Dependent,
1, September 29, 2017. '
2 CCCYS Exhibit No. 1, Ex Parte Order for Emergency Custody, September 29, 2017.
3 Petition for Goal Change Permanency Hearing, December 22 2016.
1
4 Re: Petition for Involuntary Termination of Parental Rights of Father, ! --- . --- AP under Section
2512 of the Adoption Act, April 13, 2017. .
5 Order of Court, June 21, 2017 (Peck, J).
6
Permanency Review Order, Dependency Docket No. CP-21-DP-0000167-2015, 2, September 2�, 2017
(Peck, J .); RE: Petition for Involuntary Termination of Parental Rights of Father, It. • W.
Under Section 2512 of the Adoption Act, Final Decree, September 29, 2017 (Peck, J.).
Appellant's Parental Rights under Section 2511 of the
Adoption Act.
2. The Honorable Court erred as a matter of law and abused
its discretion in finding that termination of the Appellant's
parental rights best served the developmental, physical
and emotional needs of the Child pursuant to 23 Pa.C.S. §
251l(b).
3. The Honorable Court erred as a matter of law in finding
that the Cumberland County Children and Youth Agency
had met its burden of proof in determining that reasonable
efforts to place the Child with Father had ultimately failed
,,.........._ and it was appropriate to change the goal to adoption.
4. This Honorable Court erred as a matter of law in finding
that Father had made minimal progress toward alleviating
the circumstances that necessitated the original placement
of the Child. 7
I
Pursuant to Pa.R.A.P: 1925(a), this opinion is written in support of this Court's
judgment.
STATEMENT OF FACTS
a. Background
Appellant is the biological father of A.L., born August 1015. A.L. was
adjudicated dependent on October 5, 2015 and placed into foster care on November 20,
2015 due to Mother's mental instability8 and concerns over the physical safety of the
Child while in Mother's care.9 A.L. had been living with her Mother under Court
supervision for approximately two months at the time she was adjudicated dependent. 10
1
Appellant's Statement of Errors Complained of on Appeal, October 27, 2017. ·
8
Mother has been diagnosed with PTSD, ADHD, ADD, OCD, depression, and bi-polar disorder. See
Transcript of Proceedings, In Re: Permanency Review Hearing, September 29, 2017 (Peck, J .)
(hereinafter, "N.T. at_") at 14; See also CCCYS Exhibit No. 2, Dependency Petition dated 08/24/15, 1,
September 29, 2017. · 1
9 Mother was not
providing appropriate supervision for the Child in the home, and there were concerns
about domestic violence among Mother, Mother's paramour, and maternal great-grandmother. Mother
later reported to the Agency that her paramour, during a domestic violence incident, had thrown 5-month·
old A.L. onto a bed by her arm. The Child was taken to the hospital, and was not reported to have any
injuries resulting from the incident. Due to this incident and concerns about Mother's unstable mental
health condition and possible drug use in the home, the Child was removed from Mother's care.
10 The
Agency first became involved with the family due to Mother displa�ing concernin�, erratic, and
volatile behaviors in the hospital after A.L.'s birth. She scratched at and spit on a nurse, hat her mother,
and threw her phone at a window while engaging in a loud verbal altercation with her paramour. Due to
The Agency did not know of Father's identity at the time that the Child was placed with
alternate caregivers, and Mother's family members were not an appropriate resource for
the Child.11 A.L. was initially placed with temporary foster parents, then was moved to
the kinship foster home of family friends, J(, ·; and J, 'i Ti · "' on February 3, 2016. 12
A.L. 's current caregivers are a pre-adoptive resource. 13 A.L. has remained in placement
since November 2015, which at the time of the termination hearing had been over
twenty-two months.
In November 2015, a permanency plan and family serviceplan were put in place
with the goal of family reunification.14 Appellant was not included in either of these
,,.-,
·. plans, as his identity remained unknown. Early on in the dependency action Mother had
put forth the name of Appellant as a potential father, but the Agency was unable to locate
Appellant until late 2016.15 In December 2016, Appellant submitted to a DNA test, and
was proven to be the biological father of A.L. in February 2017.16 Once Appellant was
identified as the father, the Agency began making efforts toward reunification.17 The
Agency developed a revised Family Service Plan to include Appellant on March 10,
2017.18 Appellant was referred for a FAST evaluation19 and guided visitation through
observations of Mother not paying attention to the safety of the Child in the hospital, it was decided that
she would not be discharged with the Child without appropriate supervision in place.
11
Mother initially told the Agency that the Child was conceived by rape. Mother's grandmother and
paramour were not considered appropriate resources for the Child because of their involvement with the
Agency. 1
12
Order Regarding Modification of Child's Placement, Dependency Docket No. CP-2l-DP-0000167-
2015, February 2, 2016 (Peqk, J.).
13
See Report of Intention to Adopt, September 20, 2017.
14
See CCCYS Exhibit 3, Child's Permanency Plan, September 29, 2017; CCCYS Exhibit 4, Family
Service Plan dated 11/25/2015, September 29, 2017,
is N.T. at 55-56, 58.
16
N.T. at 56.
17
N.T. at 56, 72.
18 CCCYS Exhibit 4,
Family Service Plan dated 3/I0/2017, September 29, 2017.
19 A FAST evaluation is a forensic, multi-faceted evaluation that includes a psychological examination
which identifies emotional or intellectual barriers a parent may exhibit, coupled with additional objective
measures to assess parental risk and skill levels. It includes at least two parent/child o.bservations and
collateral contacts with other service providers or individuals connected to the parent m order to o�er
insight into historic behaviors. The objective is to determine the parent's stren�s, needs, and a�1hty to
assist in custodial matters, and to offera recommendation to support reunification goals, Seelndrvldua/
and Family Services - Evaluations and Assessments: FAST Evaluation,
3\
Alternative Behavior Consultants (hereinafter, "ABC'') pursuant to the revised plan.20
Between March and June 2017, numerous efforts were made toward completing
Appellant's FAST evaluation; however, Appellant's evaluation referral was ultimately
closed by ABC on June 28, 2017 for non-cooperation.i' Between March and August
2017, Appellant engaged sporadically in guided visitation at the ABC facility with A.L.22
On August 16, 2016, Appellant's guided visitationwas changed to the STEPS program,
which is a less restrictive form of visitation between parent and child.23
Appellant has a criminal history spanning more than a decade. Appellant was
,-,
incarcerated for a weapons violation in 2001.24 Father has pied guilty to several DUis,
Public Drunkenness, and possession of marijuana in the past.25 At the time of the hearing,
Father was on probation for a DUI from 2016, and will remain on probation until 2018.26
Appellant currently does not have a driver's license and is not expected to be able to get
his driver's license back until at least 2018.27
Appellant has three other children, none of which he exercises custody over.
Appellant testified that all three of his children live with their mothers out-of-state, and
he does not see them often.28 Appellant has a 21-year-old who lives in New York, and a
four-year-old and five-year-old who live in Georgia.29 Appellant testified that he has not
....--...
-....
ALTBRNATIVEBEHAVIORCONSULTANTS.COM {October 20, 2017),
http://altemativebehaviorconsultants.com/psychological-evaluations-and·assessements/ (defining FAST
evaluation).
°
2
21
CCCYS Exhibit 4, Family Service Plan dated 3/10/2017, September 27, 2017.
N.T. at20-24, 27.
22
N.T. at 29, 32-34.
23
N.T. at 29.
24
N.T. at 103.
2s See CCCYS Exhibit No.6, Criminal Dockets for Father, September 27, 2017. There was some dispute
in the record as to how many DUis for which Father had been convicted. See N.T. at 55; but see N .T. at
63, and of. N.T. at 66 and 74. Father was convicted of Public Drunkenness in 2010. N.T. at 66, 75. Father
was convicted of possession of marijuana in 2012.
26
N.T. at 53, 55, 65, 74, 76.
27
N.T. at 67, 75-76.
28N.T. at98-99, 101, 103.
29N.T. at 98-99.
visited his two younger children in a year and a half, and does not provide any daily care
for them."
The Agency no longer believes that reunification· is the best option for A.L. and
initiated the process to terminate Appellant's parental rights and allow A.L. to he
adopted.31 JI. ., _ _... . 1!111 . ., : filed a Report of Intention to Adopt on September 20,
2017. 32 A Goal Change and Termination of Parental Rights Hearing was held on
September 27, 20 J 7. The following pertinent information was presented at the hearing:
b. Appellant's Status at Time of Goal Change and Tennination Hearing
The CCCYS caseworker, Mr. Jordan Luther, testified about the goals the Agency
had developed for AppeIIant and his adherence to those goals. The following goals were
put in place: (1) to obtain and maintain adequate and safe living
I
conditions; (2) to
improve parenting skills, including a FAST evaluation; (3) to address drug & alcohol
concerns; (4) to maintain stable employment; and (5) to follow recommendations from
his mental health evaluation. 33 Mr. Luther testified that Appellant" has stable housing and
employment,34 has consistently given negative drug screens when tested by the Agency,
and that he has substantially participated in the required visitation with A.L.35 However,
Appellant has not engaged in any parenting classes, has not completed his FAST
assessment, and has only partially complied with the mental health evaluation
36
requirement.
Appellant has been inconsistent in meeting his goals; he participates in visitation
with A.L., but frequently will be unavailable for visits or contact with ABC.37 Ms. Linda
30
N.T. at 102-03.
31
See Petition for Goal Change Permanency Hearing, December 22, 2016; Re: Petition for Involuntary
Termination of Parental Rights of Father, Raheim Williams, under Section 2512 of the Adoption Act,
April 13, 2017.
32
Report of Intention to Adopt, September 20, 2017. .
33
N.T. at 51-54. .
34
Appellant lives in Carlisle with his paramour. Mr. Luther stated that Appellant's employment may not
be stable, however, as he had worked for at least two different employers in the calendar year.
3sN.T. at51-53, 67.
36
N.T. at 52-53, 55, 65.
37
N.T. at 20-21, 23-24, 32-34, 38.
Mapes, the visit supervisor for ABC, testified that Appellant had visitation with the Child
one time per week for two hours, and also had the ability to have supervised visitatiort
with the child in the community as the parties arranged.38 Appellant has had 20 visits
with the Child at ABC since March 2017.39 On five 'occasions, someone else attended the
visit with Appellant, which made it difficult for the supervisor to see Appellant
independently interact with the Child. 40 Appellant cancelled his first visit, no-showed for
two visits,41 and missed all his scheduled visits between May 31, 2017 and June 21, 2017
without providing ABC with an explanation.42 Although Appellant does interact
appropriately with the Child and the Child feels comfortable around Appellant, there does
.-..... not appear to be a parental bond between the Child and Appellant." Appellant also
exhibits odd behaviors during the visits, such as looking out the window and talking to
himself.44 Mrs. T: the foster mother, testified that Appellant has never called to
arrange community visitation with A.L., and that he has never called to ask about A.L.
between visits.45 Since the Child has been placed with the T:. ::" :, there have been only
three community visits with Appellant, and Appellant had not contacted the T .. ,_.;·1.; to
arrange any visits in the three months prior to the hearing. 46
Appellant has not completed his goal of obtaining a FAST assessment. Ms. Andee
Warner, Appellant's FAST evaluator, testified to Appellant's seemingly odd behaviors
and difficulty to work with during FAST evaluation sessions. Ms. Warner initially met
with Appellant on April 24, 2017, and scheduled an initial appointment
I
at his residence
for May 3, 2017.47 Following this date, Appellant no-showed for two scheduled follow-
38N.T. at 29, 31.
39
N.T. at 29.
40
Appellant's girlfriend, Appellant's mother, or the Child's Mother attended the visits. N.T. at 30-31:
41 Father most recently no-showed in the beginning of September, 2017.
42
N.T. at 32-34, 36.
43
N.T. at 34-35, 37.
44
N.T. at 37. · · · hl
45 N.T. at 40-42. Appellant refuted this testimony, complaining that the T, _ :. ·, do not invite im to
events involving A.L. (e.g., her 2nd birthday party), and that his mother calls the foster mother to arrange
the community visits because "a woman can speak to a woman." N.T. at 88-89.
46N.T. at41-42.
47
N.T. at 20.
up appointments on ·May 25 and June 1, 2017, and was late for his appointment
scheduled for June 23, 2017.48 Ms. Warner stated that on the occasions she did meet with
Appellant, he talked to himself and seemed very paranoid and agitated. 49 Appellant
eventually refused to work further with ABC, so the evaluation 'referral was closed on
June 28, 2017.50 Appellant received a mental health evaluation ,at his own prerogative,
but did not give the evaluator all the necessary information in. order to complete that
portion of the FAST assessment. 51 Due to not completing the prerequisite mental health
and parenting skills evaluations, Appellant was unable to have any unsupervised visits
with the child.52
--.., Mr. Luther testified that Appellant is very paranoid, and believes that the system
(the Court, the Agency, and ABC) is prejudiced and wants to keep A.L. away from him.53
Appellant's efforts to parent have been inconsistent, and although hegets along well in a
controlled and supervised setting, there has been no opportunity for the Agency thus far
to .see how he can handle parenting on his own. 54 As of the time of the hearing, Mr.
Luther believed that Appellant would not be able to properly care for A.L. if he were to
have custody of her. 55
Appellant does not attend medical appointments for the child or take care of the
child's daily needs.56 Appellant has not taken advantage of the opportunity to participate
in parenting education, because he has refused to cooperate with ABC in completing his
FAST assessment. As of the time of the termination hearing, Appellant was not seeking
or attending any counseling for possible mental health concerns, or having consistent
contact with the child.57
48
N.T. at 21.
49
N.T. at 24, 26.
50N.T. at 27.
51
N.T. at 22-23, 26.
52
N.T. at 52, 55, 65.
s3 N.T. at 52, 59-60.
54 N.T. at 43, 46, 68-69.
55
N.T. at 67.
56
N.T. at 43, 49, 110.
s7 N.T. at 87.
Appellant testified that he wants to have custody of his daughter. Specifically,
Appellant stated that he had no idea that A.L. existed until the end of 2016 when he was
informed by family members that he may be the father, and was subsequently conflrmed
by a DNA paternity test to be the father of A.L. in February. 2017.58 Appellant has
i
remained in contact with the Agency by riding his bike to the CCCYS office or calling
the caseworker on the phone about once a week.59 Appellant has a crib for A.L. and his
residence is set up in such a way as to accommodate her.60 Appellant brings cards and
toys to visits with A.L.61 Appellant contends that he only ever missed two visits with
..........
A.L., and that he informed 'the Agency in advance both times of his reason for missing
62
the visit. Appellant also insists that ABC cancelled the visits between May and June
2017 because the foster family went on vacation, and not because of anything he did.63
Appellant testified that he recorded the visits at ABC.because he wanted evidence that the
visit supervisor was taking time out of his visit to play with A.L. herself.64 Appellant
denied he missed any scheduled appointments for a FAST ·evaluation at ABC.65
Appellant has no formal diagnosis of any mental health issue, and does not believe he
needs to seek counseling or treatment.66 Appellant believes that he has done everything
he can in order to form a relationship with A.L., and just needs more time to form the
58
N.T. at 71 - 72. Mother gave testimony refuting that Father did not know of his possible paternity.
Mother testified that she told Appellant about the child on December 16, 2014 andthereafter informed
him of the child's due date. At that time, he denied he was the father and refused to sign the child's birth
certificate because he did not want to pay child support. N.T. at 132-134. ·
59N.T. at 72. Mr. Luther stated that Appellant often came to theAgency to do drug tests or called to
complain about ABC. N.T. at 57-59.
60N.T. at 51, 73.
61
N.T. at 49-50, 89.
62
N.T. at 77-78.
63
N.T. at 79-80.
64
N.T. at 80-81.
65
N.T. at 86.
66 N.T. at 87. Dr. Thomas, the psychologist who performed Appellant's mental, health assessment, opined
that Appellant showed signs of ADHD and a learning disability during their interaction. However, the
assessment given to Appellant was meant to be a "general evaluation with respect to his overall fitness
with regard to his ability to see his daughter>' and was not meant to give Appellant any type of mental
health diagnosis. Dr. Thomas admitted he did not have certain information related to Appellant that may
have aided in a diagnosis, such as Appellant's criminal history and information from other sources
besides Appellant himself. �LT. at 114-17, 124-25. 1
.3b
bond; he believes the Agency did not give him the chance to reunify with her before
67
beginning the process to terminate his rights.
The Agency's primary concern was that due to Appellant's inconsistent efforts to
parent and the amount of time he has spent away from the Child, he has not proven
himself ready to take on the parenting role for A.L. thus far. The Agency also raised
concerns that Appellant had not made progress on his goals to improve his parenting
skills, obtain treatment for any mental health condition, or maintain consistent contact
with the child. In the Agency's view, A.L. needs stability and permanency, which
..--....
Appellant is not ready to provide.
c. A.L. 's Status at the Time of the Hearing
A.L. is a 2-year-old child in need of permanency. A.L. has been under the care of
caregivers other than her parents for the vast majority of her life. Appellant has never
been involved in the child's medical care or care of her daily needs, and only became
acquainted with her approximately six months prior to the instaht Hearing, when the
Child had already been in substitute care for over sixteen months.
Multiple parties testified that although A.L. is comfortable interacting with
Appellant at visits, she has not formed a parent-child bond with him; instead, the child
considers the T..·: · to be her parents and is well-bonded with the T · ;� family.68 Since
........
the child is so young and has not spent any part of her life under her father's care, this
Court found that she would not be negatively affected by a termination of Appellant's
parental rights. In addition, the child's caregivers are family friends of Mother, and
testified that they are willing to maintain contact and have visits with the child's
69
biological family on both sides.
67
N.T. at 89-94. · · 4
68 N.T. at 30-31, 34-35, 37, 43, 46-49. The Child has lived with the Tt.:····:.:, continuous lY smce s he was
Y2 months old, and has also formed a sibling bond with the T . · , s daugnter..
69
N.T. at 47.
31
With regards to the potential adoptive family, the T _ . : _)rovide a loving and
stable home for the Child.70 A.L. is doing well in her kinship foster home, and being
developmentally on track, does not require any special services.71 The Ti. . : :i are
prepared to adopt A.L., and plan to keep in contact with the child's natural parents and
extended families. There is a very strong and loving bond between the child and her
caregivers. Appellant's own mother, when questioned at the hearing, conceded that the
caregivers were taking good care of A.L.72 The Child's guardian ad litem was in
agreement with the Agency that Appellant's rights should be terminated so that the
,.,..-.,.
T may adopt A.L.
After the hearing, this Court issued an Order changing the Child's permanency
goal to adoption and a Final Decree terminating the parental rights of Appellant on
September 27, 2017. On October 27, 2017, Appellant filed �i$ Statement of Errors
Complained of on Appeal.
DISCUSSION
The Appellant has alleged that:
1. The Honorable Court erred as a matter of law and abused
its discretion in finding that the Cumberland County
Children and Youth Agency had proven by clear and
convincing evidence the grounds for termination of
Appellant's Parental Rights under Section 2511 of the
Adoption Act.
2. The Honorable Court erred as a matter of law and abused
its discretion in finding that termination of the Appellant's
parental rights best served the developmental, physical
and emotional needs of the Child pursuant to 23 Pa.C.S. §
251l(b).
3. The Honorable Court erred as a matter of law in 'finding
that the Cumberland County Children and Youth Agency
had met its burden of proof in determining that reasonable
70
N.T. at 14, 48. .
71 N.T. at 43, 49. Speech therapy has been discontinued because an Early lnterven�to� assess�ent
determined that the child is within the verbal range for her age group, and. no contmumg services have
been recommended.
72
N.T. at 129.
efforts to place the Child with Father had ultimately failed
and it was appropriate to change the goal to adoption.
4. This Honorable Court erred as a matter of law in finding
that Father had made minimal progress toward alleviating
the circumstances that necessitated the original placement
of the Child.73 ·
This Court begins by addressing the standard of review applicable to the
Appellant's claims. Pennsylvania appellate courts defer to the trial courts, "adher[ing] to
the view that the trial court is in the best position to determine credibility, evaluate the
evidence, and make a proper ruling." In re Adoption of Atencio, 650 A.2d 1064, 1066
. .
(Pa. 1994). Absent an abuse of discretion or error of law, where the trial court's findings
are supported by competent evidence, an appellate court must affirm the trial court even
though the record could support the opposite result. In the Interest of R.J,T., 9 A.3d
1179, 1190 (Pa. 2010). Pennsylvania courts have held that "an abuse of discretion does
not result merely because the reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion only·upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will." In re Adoption of S.P.,
47 A.3d 817, 826 (Pa. 2012) (internal citations omitted).
When evaluating a petition for termination of parental rights, the court must
conduct a two-part analysis. First, the Court must determine if the Agency has proven
that at least one of the statutory grounds of termination set out in 23 Pa.C.S.A. §2Sll(a)
i
has been met. See In re B.L.W., 843 A.3d 380, 384 (Pa. Super. 2004) (en bane). Then,
the court must evaluate whether the termination is in the best interest of the child, as
required by 23 Pa.C.S.A. §251 l(b). Id. The burden is on the Petitioner to prove by clear
and convincing evidence74 that the asserted grounds for seeking the termination of
parental rights are valid. In re R.N.J ., 985 A.2d 273, 276 (Pa. Super. 2009).
73
Appellant's Statement of Errors Complained of on Appeal, October 27, 2017:
74"Before tenninating a parent's rights, the trial court must receive testimony '�hat is .so clear, �ireot,
weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise mets in lssue.?' In re Adoption of A.C., 1-62 A.3d 1123, 1133 (Pa. Super. 2017)
(quoting In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994)).
�
Here Appellant argues that the Agency has failed to meet the statutory grounds for
termination of parental rights under 23 Pa.C.S.A. §251 l(a), and has failed to prove under
23 Pa.C.S.A. §251 l(b) that termination was in the Child's best interests. Appellant also
argues that the Agency did not meet its burden to prove that a goal change to adoption
was appropriate. This Court believes that because competent evidence supports its
decision, the rulings should stand.
a. Sufficiency of Evidence of Statutory Ground under 23 Pa.C.S.A. §251 Ha)
,--... The fulfillment. of any one subsection of§ 251 l(a) satisfies a threshold sufficient
for the court to proceed to evaluate the best interest of the child under 23 Pa.C.S.A.
· §251 l(b). In re B.L.W., 843 A.3d 380, 384 (Pa. Super. 2004)(en· bane). The Agency's
Petition alleged that the statutory grounds for termination were met under 23 Pa.C.S.A.
§251 l(a)(2). On appeal, Appellant's claim is that this Court erred because there was not
clear and convincing evidence to support termination of his parental rights. With this
argument, Appellant contends the Agency has not met the standard for termination under
23 Pa.C.S.A. §251 l(a)(2). This section allows for termination of.parental rights under
the following conditions:
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.
23 Pa.C.S:A. §251 l(a)(2).
In this case, A.L. was placed into foster care in November 2015 due to concerns
that Mother's untreated mental health, possible drug use in the home, and domestic
violence was creating an unsafe home for A.L.75 At this time, Appellant was identified by
the Mother but could not be reached by the Agency, despite numerous efforts to do so, to
15See CCCYS Exhibit No. 1, Master's Recommendation for Shelter Care dated 11/23/15, September 29,
2017.
begin the reunification process. There was credible. testimony by Mother that Appellant
knew he was the potential father of A.L. during Mother's pregnancy, and that Appellant
at that time and in the time prior to February 2017 refused to take on a parenting role. In
fact, Appellant only came forward as a potential resource after he learned that the Child
was in foster care and that a different potential father had been eliminated through DNA
testing.76 At that point, the Child had already been in foster care for thirteen months.
Once Appellant was confirmed as the biological father of A.L., Appellant agreed
to a service plan that required him to have consistent contact with the Child, comply with
drug and alcohol and mental health evaluations and recommendations, and participate in
courses. that would improve his parenting skllls. The record shows Appellant did not
make the required progress on his goals, was inconsistent in his efforts to visit with and
contact the child, and 'that he is still not ready to be the primary caretaker of A.L. after
. :
having mor� than six months of reasonable services provided to him by the Agency. This
Court notes that the purpose of the family service plan the Agency and the Appellant
have agreed to is to reunify the Father with the child and transition to full-time care, and
Father's lack of progress on his goals make this transition impossible.
Viewing the 'record as a whole, this Court agrees with the Agency's assessment
that Appellant has not proven himself capable, thus far, of providing safe and stable
<,
primary care essential to the child's well-being. While Appellant testified to his
commitment to being in his daughter's life, his pattern of non-cooperation with ABC,
lack of progress on his service plan goals, cancelling or no-showing for visits with A.L.,
and not maintaining contact with A.L. 's caregivers or A.L. in .the times between
scheduled visits show that he is not ready to take on the full-time care of his daughter.
While the Agency, the guardian ad litem, and indeed, even A.L.'s current caregivers have
provided Appellant with ample time to form a relationship with A.L. and prove himself
capable of providing safe and stable parental supervision for the child, he has not
achieved that goal. This Court found the Agency has shown that the Appellant's repeated
neglect has caused the Child to be without essential parental care and control; that
76
N.T. at 111-12.
Appellant has made minimal progress to relieve the conditions of neglect, and that
Appellant has not been able to provide the Child with the care and control she needs
within a reasonable period of time despite opportunities to do so.
With the substantive requirements of23 Pa.C.S.A. §25 l l(a)(2) fulfilled, this Court
found the Agency had proven by clear and convincing evidence that a ground for
termination under 23 Pa.C.S.A. §2Sll(a) was met. This Court now turns to analysis
under 23 Pa.C.S.A. §251l(b), which looks to the best interests of the child.
b. Sufficiency of Evidence that Termination of Parental Rights was in the Child's
,...........,__
Best Interest
Having found the Agency proved a statutory ground for termination under 23
Pa.C.S.A. §251 l(a), this Court turned to consider the best interest of the child under 23
Pa.C.S.A. §251 l(b). hl re B.L,W,, 843 A.3d 380, 384 (Pa. Super. 2004) (en bane). The
standard requires the court "to give primary consideration to the developmental, physical
and emotional needs and welfare of the child." 23 Pa.C.S.A. §2511:(b). Furthermore, "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." Id. However, the courts have stated that the emotional
/-...
needs and welfare of the child have properly been interpreted to include "intangibles such
<, as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
When making a Section 2511 (b) determination, the courts are to focus on the child, not
the parent. In Re Adoption ofC.L.G., 956 A.2d 999, 1008 (Pa. Super 2008) (en bane).
This Court finds competent evidence in the record that it is in A.L.' s best interests
to terminate Appellant's parental rights and allow for her to be adopted by her current
caregivers. The record contains evidence that Appellant knew about the Child before she
was born, but refused to put himself forth as a parental figure in her life until the Agency
had already begun the process of finalizing the Child's permanency with substitute
caregivers, and after the Child had already been with foster parents· for over a year. There
was nothing in the record to suggest that Appellant's circumstances prevented him from
seeing the Child or being a part of the Child's life at any point in time. Despite Appellant
having several months of visits and opportunity to progress in his parenting role with the
Child, there was testimony from multiple parties that the Child is not bonded to
Appellant.
By contrast, there was testimony from multiple parties that A.L. and her caregivers
have a strong bond. The T. ., ( s have had the Child in their home since she was 4Y2.
months old, and have provided for all of her daily physical, medical, and emotional needs
since then. The Child. is now two years old, and is safe, happy, and bonded with the
T, family as if they were her natural family. The caregivers are appropriately caring
for the Child in their home, and wish to adopt the Child. The caregivers are also willing
to maintain connections with the child's biological family. The child's guardian ad litem
stated that the Child is doing well and is happy in the home and recommended that the
Appellant's rights should be terminated.
Though Appellant wishes to have custody of the Child, he has been unable or
unwilling to make the progress necessary on his parenting goals to do so, and A.L. needs
stability and permanency that Appellant cannot provide. The 'f . . s have proven
themselves capable of providing the stability, love, and security A.L. needs for her
,..-, overall well-being. This Court agrees with the Agency's position that it is in the best
interest of the Child to terminate parental rights and allow for adoption. The Agency has
..........
proven, by clear and convincing evidence, that it is in the best interests of the child to
allow for a termination of parental rights under 23 Pa.C.S.A. §251 l(b). Noting substantial
overlap in the facts and discussion regarding the Child's best interests as stated above,
this Court now briefly turns to Appellant's last two arguments regarding its decision to
change the Child's permanency goal to adoption.
c. Goal Change to Adoption and Appellant's Progress
When considering a petition for a goal change to adoption of a dependent child,
the trial court will evaluate:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances that necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and a likely date by which the
goal for the child might be achieved.
In Interest of A.N.P .• 155 A.3d SS, 66 (Pa. Super 2017) (internal citations omitted).
Although reunification of the family is the primary permanency goal, the Juvenile
. . . ---.. Act mandates the arrangement of "another alternative permanent family when the unity
of the family cannot be maintained." 42 Pa.C.S.A. §630l(b). Accordingly, reuniting a
Child with his or her biological parent(s) rather than changing the goal to adoption should
not become "rigid adherence to the principle regardless of the .circumstances." In re
J.S.W., 651 A.2d 167, 170 (Pa. Super 1994). Changing a child's goal to adoption is based
on the policy that "[a] child's life simply cannot be put on hold in the hope that the parent
will summon the ability to handle the responsibilities of parenting." In re Adoption of
M.E.P .• 825 A.2d 1266, 1276 (Pa. Super. 2003). If a child welfare Agency has made
reasonable efforts at reunification that have failed, then within 18 months, the Agency
r>. must redirect its. efforts toward finalizing
. permanency for the Child
. in an adoptive home.
In re.G.P ...R.• 851 A.2d 967 (Pa. Super. 2004) (emphasis added). The trial court looks to
subsections 63Sl{e), (f), (f.1), and (g) of the Juvenile Act77 to determine the permanency
goal that is "best suited to the safety, protection, and physical, mental, and moral welfare
of the Child." In Interest of A.N.P., 155 A.3d at 67. The best interests of the Child must
direct the Court's reasoning, and the "[s]afety, permanency, and well-being of the child
must take precedence over all other considerations, including the rights of the parents."
l
In re A.K .• 906 A.2d 596 (Pa. Super. 2006); In re N.C .• 909 A ..2d 818, 823 (Pa. Super
2006) (emphasis in original).
Appellant's arguments complaining that the Child's goal change to adoption was
inappropriate as a matter of law are without merit. The Appellant argues that the Court
77
See 42 Pa.C.S.A, §6351.
erred in finding reasonable efforts to place the Child with him had failed, and that
Appellant bad made minimal progress toward alleviating the circumstances that made the
Child's original placement necessary.
As this Court has already stated in the sections above, the record contains ample
evidence to show that the Agency made reasonable efforts over several months to
identify, locate, work with, and provide services to Appellant to help him reunify with
A.L. Because Appellant had never met the Child prior to April 2017, it was essential for
Appellant's visitation with A.L. to be supervised until the Child, would be emotionally
and physically safe in his care, During this process of attempted· reunification, there were
several times when Appellant was uncooperative with the Agency and the service
providers in working toward his service plan goals, when he missed visits with the Child,
and where he would be incommunicado for long periods of time. There was also
testimony that Appellant did not take advantage of the opportunity to work with the foster
parents to have visits or contact with the Child between visits at ABC. With all the
supports and services that were in place for Appellant between the time he learned of his
paternity and the timehis rights were terminated, there was sufficient opportunity for a
parental bond to be created with the Child and for Appellant to make significant progress
on his service plan goals. As the record indicates, this did not happen.
Although a parent's rights to his Child are important, ultimately, it is the best
interests of the Child .that must guide this Court's reasoning and take precedence over all
;
other considerations when considering a change in the Child's permanency goal. Here, it
is in the best interests of the Child to change the goal to adoption. A.L. currently resides
with the only family she has ever known, and has been with them for the vast majority of
her life. Appellant has not made significant progress in his relationship with the Child or
in meeting his service plan goals. It is also clear that the Child needs permanency at this
point in her life to prevent her from languishing in foster care long-term until Appellant
can someday prove himself capable of being her full-time parent. In addition, the
testimony that the caregivers are willing to maintain visits and contact with Appellant
cuts against any argument that the Child will be detrimentally affected by a termination
of Appellant' s parental rights.
This Court considered all the factors and decided that the change of goal to
adoption would be best suited to the needs and well-being of the Child. In this case, foster
care has continued to be necessary for A.L., as Appellant has not taken the steps to
establish a bond with her, provide for her, or be her full-time parent. Appellant has not
done anything to alleviate the circumstances that initially brought the Child into care,
namely, being without essential parental care and control. Appellant has not made the
required progress on his service plan goals to achieve this purpose despite having had
several months with Agency resources and support at his disposal to do so. This Court
determined after a consideration of all the evidence that reunification was no longer
feasible because Appellant would not be able to take full-time custody of the Child within
a reasonable time, the Child has been in care for twenty-two months, and the Child needs
and deserves to have permanency. This Court also considered that at this point, it would
be detrimental for the Child's physical and emotional well-being' to be taken out of the
home of her caregivers, who have - for all intents and purposes ;- been her family for
. almost all her life, to be placed with Appellant, a virtual stranger to her. It is for these
reasons that this Court believes that Appellant's third and fourth arguments must fail.
CONCLUSION
This Court finds the issues raised by Appellant on appeal are without merit. For
the reasons articulated in the above opinion, this Court respectfully requests the Superior
Court of Pennsylvania to affirm this Court's Orders granting the Agency's Petitions for a
Goal Change to Adoption and Involuntary Termination of Parental Rights of Appellant,
R/:;;_'.;..1 W)UL1f11.
BY THE COURT,
®ry�x�
Christylee L. Peck, 1 · J.