In Re: K.T.W.E. Appeal of: E.E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.T.W.E. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.E., FATHER :
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:
:
: No. 333 WDA 2020
Appeal from the Order Dated February 4, 2020
In the Court of Common Pleas of Butler County Orphans’ Court at No(s):
O.A. No. 36 of 2019
IN THE INTEREST OF: K.T.W.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.E., FATHER :
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:
: No. 334 WDA 2020
Appeal from the Order Entered February 4, 2020
In the Court of Common Pleas of Butler County Domestic Relations at
No(s): D.P. No. 89-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 2, 2020
E.E. (Father) appeals from the order granting the petition filed by the
Butler County Children and Youth Social Services (CYS) to involuntarily
terminate his rights to his minor child, K.T.W.E., born in May of 2016, pursuant
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to the Adoption Act, 23 Pa.C.S. § 2511(a)(1),(2), (5), (8), and (b),1 and the
order changing the permanency goal from reunification to adoption.2 After
careful review, we affirm.
The trial court accurately summarized the facts of this matter as follows:
On September 18, 2017, the Butler County Children and Youth
Services Agency (CYS) received a report from local law
enforcement of an incidence of domestic violence with a child
present. CYS Caseworker Michelle Womar responded to Mother’s
home. Mother confirmed the domestic violence incident,
explaining that she was the victim of Father’s assault. Mother
confirmed that she had to climb out of a two-story window to
escape Father at approximately 2:30 A.M. Mother had placed
Child in a playpen prior to leaving through the window.
Upon Caseworker Womar’s arrival, Father was no longer at the
home, and Caseworker Womar had no interaction with him.
Caseworker Womar observed the home to be appropriate. Mother
had secured Child’s safety, and she was an appropriate caregiver.
Caseworker Womar indicated at this time that Child was healthy
and that Mother was cooperative.
Mother filed a Petition for Protection from Abuse (PFA) [against
Father]. A temporary PFA was granted on September 18, 2017.
Father was charged by the police with assault and endangering
the welfare of a child. Mother informed Caseworker Womar that
Father made no attempts to physically harm Child. The matter
was closed with CYS on September 22, 2017. Mother filed a
Motion to Withdraw and Discontinue the PFA action, and the
Temporary Order was dismissed on September 28, 2017. The
Order of Court discontinuing the PFA action ordered the original
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1 Mother filed a separate appeal from the order terminating her parental
rights, which is docketed at 282 WDA 2020.
2 Father filed separate appeals from both the permanency review order (334
WDA 2020) and the trial court’s order terminating his parental rights (333
WDA 2020). This Court consolidated Father’s appeals sua sponte on March 5,
2020. See Order, 3/5/20.
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petition be forwarded to Butler CYS due to allegations in the
petition of potential abuse or threat of abuse of a child.
On November 12, 2017, CYS again received a report from local
law enforcement notifying CYS that Father had been arrested,
Mother’s whereabouts were unknown, and there was a child at the
scene. CYS Caseworker Jonibeth Loverick and Caseworker Jessica
Wagner went to the home. Upon their arrival, Child was with the
police and was wearing only a diaper. The caseworkers noted that
there was little food and only a few items for Child in the home.
The home was in slight disarray, and there were pieces of plastic
bags all over the floor near the couch. The police informed CYS
that they were at the home based upon an anonymous tip that
Father was at the address and had active warrants. The police
also informed CYS that Father had barricaded himself in the home
earlier, but he had voluntarily surrendered. Father was arrested,
so there was no caretaker present for Child.
The police provided a phone number for Mother to CYS.
Caseworker Loverick called the number and left a message for
Mother. She also called and spoke to Maternal Grandmother, who
reported that she did not know Mother’s whereabouts.
Caseworker Loverick inquired as to Maternal Grandmother’s
availability to be a placement, but based upon a prior criminal
history and the emergent nature of the placement, Maternal
Grandmother could not be a kinship placement at that time. She
further explained to Maternal Grandmother that CYS would take
further steps to determine if she was eligible for placement during
normal business hours. Around 1:30 A.M., having not been able
to locate Mother, CYS contacted this judge for an emergency
placement. This judge found that it would be contrary to Child’s
welfare to remain in the home and that CYS had made reasonable
efforts to prevent the removal and to find an adult relative or kin
for placement. Mother finally contacted CYS after 4:00 A.M. when
Caseworker Loverick was returning from placing Child with his first
foster home. Caseworker Loverick explained the process to
Mother. Paternal Aunt called CYS the following morning and
discussed what steps she could take to become a kinship
placement for Child. On November 13, 2017, this judge issued a
written court order to memorialize the court’s findings and verbal
order. On that same date, CYS filed a Dependency Petition
pursuant to 42 Pa. C.S. § 6302(1).
Caseworker Kayla Somerville-Carraher (who was, at the time,
Kayla Somerville) received the case as the primary caseworker.
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That same day, a Shelter Care Hearing was held before the
juvenile court hearing officer. Father did not attend. Mother and
Child were present. Mother was represented by counsel. A
Guardian-Ad-Litem was present for Child. Father was assigned
court-appointed counsel for the hearing. Father was present at
the time of the hearing in another courtroom on criminal matters.
The hearing officer found that Father has an extensive criminal
history, and there was a history of domestic violence between
Father and Mother. The hearing officer also found that Mother
dropped the emergency PFA order on September 28, 2017, only
a few days after it was issued. Mother also admitted to the
caseworker that she used THC and Ecstasy. The hearing officer
recommended the continued detention of Child and provided
Mother with supervised visitation a minimum of three days per
week for two hours per visit.
On November 14, 2017, Mother filed for and was granted a
temporary PFA. On November 22, 2017, Nia Ellis (Paternal Aunt)
was approved for a kinship placement subject to certification as a
placement provider within 60 days. Child was placed with Paternal
Aunt at both Father’s and Mother’s request. At the time of Father’s
request, Father was incarcerated. An Adjudication Hearing was
scheduled for November 22, 2017. Father’s counsel requested a
continuance due to the Sheriff’s Office being unable to transport
Father for the hearing from the Butler County Prison. All parties
consented to the continuance. The hearing was rescheduled for
November 27, 2017. On that date, due to the late hour of starting
the hearing and the requirement that the Sheriff have Father
returned to the Butler County Prison by 4:30 P.M., the hearing
was again continued.
Immediately prior to the Adjudication Hearing, Father made
allegations, in a letter to CYS, claiming that Mother was a drug
addict, had attempted to commit suicide on multiple occasions,
drank too much alcohol, and was involved with CYS in Allegheny
and Beaver Counties. He also stated that he did not feel that Child
was safe with Mother and that Mother did not clean Child or
change his diapers. Father claims now that he made all of the
allegations up in an attempt to hurt Mother.
Following the Adjudication Hearing on December 19, 2017 and
December 27, 2017, the hearing officer made findings of fact and
found Child to be dependent pursuant to 42 Pa. C.S. § 6302(1).
Mother and Father had a history of domestic violence incidents
which involved the police. In September 2017, Father was
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charged with aggravated assault, simple assault, child
endangerment, and theft after Mother escaped from a physical
confrontation with Father and she escaped by jumping out of a
second floor window, leaving Child with Father until the police
arrived. The assault charges were dismissed after Mother gave
contradictory testimony that favored Father at the preliminary
hearing.
In November [of] 2017, Father was arrested for trespass while at
Mother’s home. The police also found narcotics all over the
residence. Child was found on the floor. Mother was not home at
the time, but rather, was at a bar. Father admitted to drug and
alcohol use and an extensive criminal history that included
burglary. Father has anger issues, and he admitted that he and
Mother fight a lot.
Ultimately, the hearing officer found facts supporting domestic
violence, drug and alcohol use, anger issues, mental health issues,
criminal histories, and lack of stability for Mother and Father. On
January 22, 2018, a Dispositional Hearing was held. Prior to the
hearing, Mother and Father participated in Family Team Meetings
and participated in creating a Service and Visitation Plan. Mother’s
objectives were to maintain a sober lifestyle, maintain good
mental health, and meet Child’s basic needs. Father’s objectives
were to manage his anger with appropriate coping skills, maintain
a sober lifestyle, and meet Child’s basic needs.
On January 22, 2018, an indirect criminal contempt for violation
of Mother’s PFA was filed, with a final hearing held on January 30,
2018. Father was found in contempt and sentenced to one to six
months of incarceration, and Father was to be on parole for the
remainder of any time upon release. A Final PFA Order was
entered January 30, 2018, to expire January 30, 2019.
On January 25, 2018, Child was removed from the kinship
placement with Paternal Aunt because the certification service
provider notified CYS that the Paternal Aunt’s home could not be
certified. Marcia Ellis, (Maternal Grandmother), did not pursue
certification at that time. Child was then placed in the kinship
home of Maternal Great-Grandmother at Mother’s request. After
only a month or two, Maternal Great-Grandmother reported [that
she was] having vivid nightmares about Father and reported that
she was afraid that Father would come and take Child away. She
requested [that] Child be removed from her home. Again, on
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March 9, 2018, Child was detained, and Child was placed in a
confidential foster care.
On April 9, 2018, Father was arrested for violating the PFA again.
Father admitted that he violated the PFA and was sentenced to six
months of probation to run consecutive to the parole violation.
Father’s parole was revoked on the earlier violation.
A permanency review hearing was held on May 11, 2018. Mother
had made moderate progress with the service plan. Father had
made minimal progress, especially since he was incarcerated for
violation of a PFA. Father had not participated in any services.
On August 24, 2018, at a permanency review hearing, Mother had
still made moderate progress with the service plan in that she was
struggling to attend therapy. Father had still made only minimal
progress. The same was true at the October 12, 2018
Permanency Review Hearing. Father did not appear at the hearing
and had no contact with CYS since July 2018. Mother, however,
had missed therapy sessions only due to work and was providing
negative drug screens consistently. On or about November 12,
2018, CYS filed a motion for return of custody, which was granted.
Child was returned to the custody of Mother on November 12,
2018 for an extended visit. At this time, Father was not
participating in services. His last visit had occurred in July 2018.
His only contact with Caseworker Laura Bathgate consisted of a
voicemail where Father left no number for her to return his call.
Caseworker Bathgate testified that during the period of
reunification, Mother’s apartment was clean, Child was happy, and
Mother was working. Mother was relieved of having to participate
in drug and alcohol treatment at this time, but she was negative
on one random drug screening. Mother was in mental health
treatment. Child was in Mother’s care for approximately two
months.
On January 4, 2019, Mother called Caseworker Bathgate and
stated that Father had been arrested at her apartment complex.
Mother called because she was concerned that Father’s arrest on
the property would affect Child’s placement with her. Mother hid
the facts of the arrest from CYS. Father was arrested as an
unauthorized tenant in Mother’s apartment. The property
manager and maintenance staff of the apartment complex saw
Father on the property repeatedly. Father was arrested because
he had active warrants.
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At another indirect criminal contempt hearing in January 2019,
Father admitted he violated the Final PFA Order again on January
4, 2019. Father was sentenced to two to six months of
incarceration, with a period of parole for any time remaining after
release. On January 10, 2019, Mother’s Final PFA Order was
extended to July 30, 2019.
Following Father’s arrest at Mother’s home, on January 8, 2019,
Child was detained and placed in a new foster home. Following a
Permanency Review Hearing on January 11, 2019, the court found
that Father was on the premises of Mother’s apartment as early
as September, 2018, prior to the return of Child to Mother’s
custody and despite the PFA. Father was observed doing laundry,
being in Mother’s apartment, and socializing with employees. The
landlord filed a complaint with the police. An incident occurred
when the police located Father in Mother’s apartment, and he fled
by exiting a window, breaking the window screen and ultimately
being tased by law enforcement and taken into custody, although
Father disputes whether or not the window was broken and
whether or not he was ever tased. Mother hid Father’s activity in
her home and their continued relationship. Mother had also failed
to attend appointments for her mental health.
Caseworker Bathgate testified that the former foster care
placement for Child was not willing to have Child returned to them
because of concerns about their safety and Father. Child was
placed in a new confidential foster home. The permanency plan
for Mother and Father remained the same as prior to Mother’s
reunification with Child. At the time that Child was placed with
the new foster family, Mother’s visits began occurring at Totin
Family Services. . . .
Another criminal contempt complaint was filed alleging that Father
violated the Final PFA Order on June 22, 2019, and when Father
failed to appear for the hearing on July 2, 2019, a bench warrant
was issued for his arrest. Father was arrested and the bench
warrant was lifted. Father was ordered to appear for the hearing
on August 1, 2019. Father did not appear for the indirect criminal
contempt hearing and Gagnon I[3] hearing, and a bench warrant
was issued for Father’s arrest. The indirect criminal contempt and
Gagnon I hearings were dismissed after the hearing on August
8, 2019.
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3 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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On April 12, 2019, CYS filed a Petition to Involuntarily Terminate
Parental Rights of Mother and Father pursuant to 23 Pa. C.S. §§
2511(a)(1), (2), (5), and (8). CYS also requested a Preliminary
Review Hearing with a goal change from reunification to adoption.
The matters were consolidated for trial. Trial was held on October
1, 2019, October 2, 2019, and October 23, 2019.[4]
* * *
Father was incarcerated on and off during the time Caseworker
Somerville-Carraher had the case. Father first visited CYS on
December 11, 2017 after he was released from jail. CYS offered
to set up visits with Child and Father at this time. Father had had
no visits with Child prior to his release due to a Butler County Jail
policy that does not permit visitation between children and
incarcerated parents. Caseworker Somerville-Carraher reported
that her conversations with Father were cordial, and Father
understood what he needed to do to have Child returned to his
care. Father was again incarcerated. When he was released
March 7, 2019, he met with Caseworker Bathgate to discuss
setting up services. Caseworker Bathgate gave him referrals for
drug screening, anger management, and visitation with Child.
Father began regularly attending visits with Child at that time, and
Father began working with Specialty Outreach. Father started
anger management and began drug screening in March or April
2019.
* * *
Caseworker Somerville-Carraher testified that while Child was
placed with Paternal Aunt, Mother had to take two buses to get to
her visits with Child, and as a result, Mother missed some visits.
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4 At the hearing, Child was represented by a GAL, who argued in favor of
termination. Father does not raise any issues relating to Child’s right to
separate legal counsel. See In re Adoption of K.M.G., 219 A.3d 662, 670,
676 (Pa. Super. 2019) (holding that (1) that “this Court’s authority is limited
to raising sua sponte the issue of whether the orphans’ court violated Section
2313(a) by failing to appoint any counsel for the Child in a termination
hearing,” and (2) we may not “review sua sponte whether a conflict existed
between counsel’s representation and the child's stated preference in an
involuntary termination of parental rights proceeding” (citations omitted)
(emphasis in original)).
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Mother raised concerns that Paternal Aunt was doing drugs while
caring for Child. Mother wanted Child removed from Paternal
Aunt’s care and placed with her mother and grandmother. Later,
Mother said that it was her mother, Maternal Grandmother, who
had a problem with Paternal Aunt being Child’s placement.
Caseworker Bathgate received the case from Caseworker
Somerville-Carraher. At the time, Child was still placed with
Paternal Aunt. Paternal Aunt was working to complete the
certification to be a kinship care placement for Child with Family
Pathways. Caseworker Bathgate testified that in order to be
certified, a placement has to complete the certification process
within sixty days of starting it. On the forty-fifth day, Family
Pathways called Caseworker Bathgate to inform her that they
were concerned Paternal Aunt would not complete the certification
process. Caseworker Bathgate called Paternal Aunt several times
but was unable to reach her. Eventually, the sixty-day period ran,
and Paternal Aunt had not completed the certification process.
Caseworker Bathgate testified that she was not aware of other
cases where a possible foster family had failed to complete the
certification process within sixty days; however, Paternal Aunt had
not completed several steps, including getting a license,
completing FBI fingerprinting, contacting Family Pathways, and
completing a physical exam of Child. Additionally, Caseworker
Bathgate testified that for some period of time, Father was using
Paternal Aunt’s address, which would have precluded her from
being a placement for Child. Paternal Grandmother testified that
Father never lived at that address, but she was not aware of
whether or not that address was used on any documentation.
Paternal Grandmother testified at the termination hearing that she
was in the process of completing the paperwork to be certified as
a placement as of October 23, 2019. She had never proceeded
with the process before because she did not want to interfere, and
she thought that Mother would get Child back. Paternal
Grandmother noted that Mother “will be a good mother one day.”
However, Paternal Grandmother just started the certification
process at the end of August 2019.
Mother has had problems with the current foster family. Child is
biracial, and his foster parents are Caucasian. At visits, Mother or
Father has braided Child’s hair, which the foster parents would
then remove very soon after the visit. However, Caseworkers and
Dr. Bernstein noted that the foster parents have sought out
resources to learn how to properly care for a biracial child,
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especially in how to properly take care of Child’s hair. Caseworker
Tiffany Crotzer stated that the foster parents had indicated to her
that they had removed the braids after Mother’s visits because
they were coming loose, Child was pulling them out, and they
were getting matted and unclean. This court ordered the foster
parents to stop removing Child’s braids unless they had a
legitimate reason, so the foster parents stopped touching Child’s
hair altogether. Then Mother complained to Caseworker Crotzer
that Child’s hair was dirty and unmaintained. Father has also
raised some concerns regarding the differences in race between
Child and foster parents, citing as an example that one of the
foster parents’ parent (foster grandparent) referred to Child’s
private parts as “black dingles” during bath time one night. Father
was upset about the “black dingles” comment, but he admitted
that he did not know in what context the comment was made.
Father also stated that the few instances of Child’s race being
made an issue where not really problems for him, but he found it
concerning that everyone else kept bringing up Child’s race in
relation to his foster parents.
Mother has alleged that Child told her that the foster parents were
hitting him in the mouth and on the butt. Mother has called
Childline to report abuse of Child with the current foster family.
Mother alleges that Child was always covered in bruises, including
an incident where Mother alleges that Child had a handprint bruise
across his face, and that Child is not included in family activities.
Mother alleges that foster parents told her that the marks on
Child’s face were mosquito bites.
However, Mother had also called Childline on the prior foster
family. CYS Caseworker Olexsak testified that Mother has made
numerous complaints about the prior and current foster parents,
which she believed were made up. When Mother answered
questions about the number of times that she made complaints of
abuse by the foster parents, Mother was unsure of the number of
times she made complaints, was unsure of when or what details
she gave for each complaint, and was unsure of which foster
parent she was alleging was responsible for a particular alleged
injury. Further, Mother changed her testimony several times in
relation to the alleged abuse.
Caseworker Olexsak testified that Father reported a handprint on
Child’s face in June 2019; however, Child indicated that the former
foster parents were the ones who grabbed his face. Caseworker
Olexsak testified that two reports were sent to Childline, which is
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investigated by the regional office, and not the local CYS office.
One report was made in June 2019 that Child had been hit in the
eye and had blisters on his feet. The second report was made in
August 2019. Both investigations were conducted by the regional
CYS office, and not the local Butler CYS agency, and were returned
as unfounded. Child alleged, to Mother, that the current foster
mother had used a red spatula to hit him on the butt. During the
investigation, Child alleged that Mother had used a red spatula to
hit him on the butt. Caseworker Olexsak testified that the photos
Mother sent to CYS about any alleged abuse did not warrant any
investigation based on the photos themselves, which depicted
minor injuries such as small bruises and an old, healing scab.
Notably, Child makes a lot of allegations to Mother when not in
the presence of any other adult, and when Child is interviewed,
Child says something different than what Mother alleges he said
to her. Despite these concerns raised by parents, the caseworkers
report that at the foster parents’ home, Child shares a room with
their biological children and is included in family activities. The
foster parents’ natural children get along with Child, and the foster
parents have made, in Caseworker Crotzer’s opinion, substantial
efforts to understand and adjust to Child’s hygienic and cultural
needs.
As Caseworker Crotzer had only recently taken the case over in
August 2019, Caseworker Bathgate testified that both Mother and
Father were familiar with the objectives laid out in the service plan
based on a meeting that she had with them. Mother’s objectives
were as follows: to maintain a sober lifestyle, maintain good
mental health, and demonstrate an ability to meet Child’s basic
needs.
* * *
Father’s objectives were to developing coping skills to manage his
anger appropriately, maintain a sober lifestyle, and demonstrate
an ability to meet Child’s basic needs.
To meet his objective of developing coping skills to manage his
anger appropriately, Father had to sign releases of information
with CYS and the anger management program to share
information and participate in anger management until successful
completion. Fourteen months after the goals were set and
discussed with Father, Father began participating in anger
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management in March 2019. Father began anger management
one month before the Petition for Involuntary Termination of
Parental Rights was filed. After several months, Father’s first
counselor stopped working for Specialty Outreach Services.
Father was, then, assigned to a new counselor, who Father was
not able to schedule appointments with consistently. Father was
then assigned to a third counselor, who testified that he had only
met with Father three times over two months, and he did not
anticipate continuing to work with him because he thought Father
would be reassigned to a different counselor. He stated that
Father had missed one appointment and that he had not been able
to reach Father for the two weeks prior to his testimony at the
beginning of October 2019. He stated that Father was very early
in treatment, and he would, realistically, need to meet with Father
at least two times per week; unrealistically, he wanted to meet
with Father every day. He was unsure of any progress that Father
made with his prior counselor, but Father was not scheduled for
any appointments in the future.
Father stated that every anger management counselor that he had
been with had a different approach. Father found therapy helpful
in that it helped him to reflect on all parts of his life. However, he
admitted that he did not take the service plan seriously until the
beginning of 2019, approximately a year and a half after Child was
removed. Father stated that his intention was for Child to be with
Mother, so he did not do what he should have done because he
assumed Mother would do everything right. He said all he cared
about was visitation, and he admitted that he was going around
the systems set in place by seeing Child outside of his planned
visitation schedule. Father admitted that he understood that if he
had participated in the service plan, he could have been reunited
with Child.
Father also demonstrated, through his testimony, his
unwillingness to accept responsibility for the problems that he has
had with anger. He testified that he did not know if the PFA Mother
obtained was justified because he was not a judge, despite
admitting that there were physical altercations between Mother
and him. He stated that some of the violations of the PFA were
“just text messages.” He noted that he knew that if he was caught
with Mother during the period that the PFA was active that it could
affect Child’s reunification with Mother, but he took that risk
anyway because he thought that it would be viewed as him
supporting Mother.
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In order to demonstrate that Father was maintaining a sober
lifestyle, Father had to complete a drug and alcohol assessment,
follow all recommendations made pursuant to the assessment,
submit to a minimum of two drug and alcohol screens per week
and any requested random screenings, and provide any signed
releases necessary for CYS and the provider to share information.
Father was ordered by this Court to undergo drug screening at
Family Pathways. According to CYS, Father was inconsistent in
attending and was often positive for THC. Family Pathways
employee, Elaine Lydon, testified that Father was referred for drug
screenings on February 20, 2018, but Father completed only 9 out
of 51 scheduled drug screens. Father’s last drug screen at Family
Pathways took place on July 12, 2018, but he remained on the
schedule until November 7, 2018, so every missed appointment
between July 12, 2018 and November 7, 2018 counted as a
missed appointment. Five of Father’s completed drug screens
were positive for THC. Two had faint lines for cocaine but were
considered negative. Father participated in drug and alcohol
treatment at the Gaiser Center. Father completed outpatient
treatment; however, Gina Mangone, a Gaiser employee, testified
that Father had relapsed and had a positive drug test on the last
day of the program. Because the test was a send-away drug test,
Gaiser did not have the results of the final drug test when Father
was marked as having completed treatment, and Ms. Mangone
stated that she would not have marked Father as completed if she
had had the results of the final drug screen on the final day of
treatment. She could not, however, state what substance Father
tested positive for. Father testified that the substance was THC.
He stated that he had not obtained a card to use marijuana legally
because it was too expensive and his insurance does not cover it.
Father never provided a medical marijuana card. Father is not
presently enrolled in any drug or alcohol treatment.
In order to demonstrate that he was able to meet Child’s basic
needs, Father needed to ensure that all of his household members
and any potential caregivers were safe to be around Child, to
maintain a legal source of income sufficient to meet Child’s needs,
obtain and maintain safe and stable housing with working utilities,
and attend and actively participate in Child’s medical
appointments. Father indicated to CYS that, in 2018, he was
working under the table. Since that time, Father has submitted
no proof of employment or residence.
After he was released from incarceration, Father was referred to
Family Pathways for visitation with Child in March 2018. Father
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visited with Child frequently except when he was incarcerated.
Father’s visits with Child were appropriate, and Father and Child
were always happy to see each other. Father testified that he was
afraid that the foster parents would cut him completely out of
Child’s life because they do not want anything to do with him,
which he felt would destroy Child.
After 18-19 months, none of the objectives were completed by
Mother or Father. Child was removed in November 2017, and
except for an extended visit from October 2018 until the beginning
of January 2019, Child has been placed in kinship and/or non -
kinship foster care. Caseworker Crotzer indicated that there is
still a safety threat on the part of the agency because Mother has
not addressed the problems with domestic violence, her mental
health, and her unhealthy relationships. She also noted that
Mother was arrested in August 2019 for public drunkenness for
the third time this year, which demonstrated to her that Mother’s
behaviors are still not under control and Child is at a significant
risk of instability.
Dr. Eric Bernstein conducted a bonding assessment for Mother and
Child and Father and Child. The bonding assessment entailed a
“combination of methodology from interviews; a review of the
collateral information; to contact, of course, with the referral
source, in this case CYF; observations; and when necessary,
psychological testing, combined with a written report to reflect
everything [he] learned.” Dr. Bernstein also did an assessment
of Child’s interactions with the foster parents. Dr. Bernstein noted
that the foster parents are intimidated by Father due to what they
know about domestic violence between Father and Mother;
however, they were open to post -adoption contact with Mother.
Dr. Bernstein opined that Child fits in well with the foster parents
and their biological children. Dr. Bernstein indicated that there
were no problems with the interactions between the foster parents
and Child. Dr. Bernstein noted that calling many people mommy
and daddy can cause problems for a child, and the foster parents
had redirected Child away from calling them Mommy and Daddy
to calling them Mommy Katie and Daddy Ryan.
Dr. Bernstein conducted a clinical interview, the Personality
Assessment Screener, and the Beck Depression Inventory for
Mother and Father, which measures “for a wide range of
personality factors from addition to psychopathology, depression,
and anxiety.” Mother acknowledged some depressive
symptomatology. According to Mother’s self-reporting on the BDI,
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“she contended that she follows rules, respects authority.
Minimized any history of rebelliousness. She essentially portrayed
herself as a well-functioning adult, even despite the diagnoses of
generalized anxiety disorder [. . .] and major depressive
disorder.” Father did not consider that he had any issue with
anger or temper, despite acknowledging domestic violence and
acknowledging being arrested between 10 and 20 times, with 4
arrests for felonies. By Father’s report, he managed to control his
moods and emotions.
Dr. Bernstein found the interactions between Mother and Child to
be concerning. His main concern was regarding the way that
Mother corrected Child about terms of reference for her and Father
and for the foster parents. He stated that Mother told Child that
she did not want Child calling the foster parents “mommy” and
“daddy.” He felt that Mother was using inappropriate pressure
when Child is too young to appreciate the terms, which, to Child,
would indicate shame and disapproval. Dr. Bernstein conducted
a personality test on Mother, which was all based on Mother’s self-
reporting. Mother’s answers did not match the reality of the
situation, and he noted that Mother had a depressive tendency.
Dr. Bernstein raised concerns about whether or not Mother could
keep Father away if they were not in a relationship, stating that
based upon Mother’s characterization of the situation, it raised
concerns about whether she could establish safe boundaries
against Father if he attempted to reconcile or re-enter her life. Dr.
Bernstein expressed concerns that Child will begin to emulate
Father’s illegal activity.
Dr. Bernstein noted that Father is less than truthful. One example
he cited is the letter that Father wrote accusing Mother of being a
drug addict, which he then later retracted. Father described it to
Dr. Bernstein as “over exaggerating a whole bunch of nonsense.”
Father self-reported no problems with anger or any emotional
problems. Dr. Bernstein’s final recommendation was that the
foster parents offer a safe and stable home for Child, where there
is an absence of violence or drama. While Mother and Father love
Child and intend to meet his needs, they do not.
Ultimately, Dr. Bernstein opined that severing the bonds with
parents, or foster parents, may result in harm to Child, stating
“ultimately, he is likely to be negatively impacted not only by the
separation from his parents but also the lack of future support as
he grows and develops in need of their guidance and care.
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Granted, however, if reunited with [Mother] or [Father], he is also
at risk for compromise of his safety, well-being, and emotional
health.”
Dr. Bernstein supported terminating parental rights, testifying
“weighing both the matter of reunification versus termination of
parental rights, I support the court moving forward with the
termination of both parents’ rights and support the foster parents
as an adoptive resource. No matter how the court decides, [Child]
will likely be negatively impacted by the loss of an important bond
with his parents or established safety and stability provided for by
his foster parents. What tips the scale in favor of adoption is the
clear potential for increased risk of compromise to [Child’s] need
for safety and stability if the court reunified him and his parents.”
At Mother and Father’s request, Dr. Beth Bliss completed a
bonding assessment for Child and Mother and Child and Father
limited to the existence of a bond between parents and Child and
whether Child would be harmed if the parental relationship was
terminated. This [c]ourt ordered that Dr. Bliss was permitted to
include the foster parents if it would inform the above issues. Dr.
Bliss indicated that she got some background information from the
parents, including that Child was removed due to domestic
violence issues. Dr. Bliss concluded that Child is “closely bonded”
with Mother and Father. She observed that the interactions
between Mother and Child and Father and Child were natural.
Child often repeated Father and showed a strong desire to be like
Father. Father and Child held hands and read books. Dr. Bliss
testified that Child has a “strong and positive attachment” and a
“strong and positive bond” with Father. Dr. Bliss’ testified, in her
opinion, that “if the bond were severed, that it could harm
[Child].” Dr. Bliss stated that kids who move around frequently
can develop Reactive Attachment Disorder, where they have
difficulty forming healthy reactions to people or attachment to
people. Dr. Bliss indicated that her “fear would be that in severing
these bonds that he does have, that he could have difficulty in
bonding or attaching to others later on.”
Dr. Bliss noted that with Mother, Child often sought her out. Child
called her mom and loves her. Child and Mother talked during the
entire session; Child shared experiences with Mother, and they
practiced shapes and animal sounds. The interactions were
natural. In Dr. Bliss’ opinion, Child is “closely bonded” with
Mother, stating that he has a “strong, necessary, and important
bond with [Mother].” Dr. Bliss opined that “it would be
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psychologically harmful” if the bond between Mother and Child
was severed. When questioned about the difference in her
answers concerning whether it could or would harm Child, Dr. Bliss
clarified that harm was one possible outcome. She further added
that she did not know what would happen to a bond that Child
might have formed with a foster parent if that relationship was
severed.
Dr. Bliss did not perform any bonding between Child and the foster
parents because she stated that it was not relevant to the
questions posed by the [c]ourt. When asked if the bond between
Mother and Child could have formed after Child was removed by
virtue of their weekly visits, Dr. Bliss opined that a bond would
likely form if Child spent two hours per week with any stranger
but that it was unlikely that this level of bond would form solely
from twice-weekly visits. She noted that Child’s difficulty in
transitioning between his parents and the foster parents was due
to age-appropriate difficulties with separation, typical and normal
for kids his age. Dr. Bliss noted that the extent of any harm that
Child could face may be varied but that harm would likely still
occur. Dr. Bliss did not review Dr. Bernstein’s report and did not
state any opinions as to Dr. Bernstein’s methodology or opinions.
Trial Ct. Op. at 10-16, 20-24.
On February 4, 2020, the trial court issued an opinion and order granting
CYS’s petition to terminate Father’s parental rights under Section
2511(a)(1),(2), (5), (8), and (b) and changing the goal to adoption. Father
timely appealed and complied with Pa.R.A.P. 1925(a)(2)(i) and (b).5
Father raises the following issues on appeal:
1. Did the [trial c]ourt commit an error of law when it determined
that [CYS] proved by clear and convincing evidence all the
elements of 23 Pa. C.S. § 2511 (a)(1), (2), (5), and (8), thus
justifying the termination of [Father’s] parental rights?
____________________________________________
5 As mentioned previously, Father filed separate appeals at the docket
numbers for the goal change and the termination hearing. He also filed a
simultaneous Rule 1925(b) statement preserving his instant claims.
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2. Did the [trial c]ourt commit an error of law when it determined
that the there was sufficient evidence to support a finding that
the termination of parental rights served the best interest and
welfare of the child pursuant to 23 Pa.C.S. § 2511(b)?
3. Did the [trial c]ourt commit an error of law when it approved
the Change of Goal from reunification to adoption for [Child] as
recommended by [CYS]?
Father’s Brief at 8.
Claim That CYS Failed To Establish Grounds for Termination
In his first issue, Father argues that CYS failed to establish grounds for
termination under Section 2511(a)(1), (2), (5), or (8). Id. at 14. Father
asserts that “the initial concerns of [CYS] surrounded the alleged domestic
violence between Mother and Father.” Id. at 17. However, Father contends
that “it is important to note that none of the PFA filings included [C]hild as a
protected party” and there have been no allegations concerning Father’s abuse
of Child. Id. Further, he argues that although Father went “outside the
system” to visit Child, “there were no allegations of violence between Mother
and Father. When Father was arrested at Mother’s apartment it was due to
outstanding bench warrants, not due to any altercations between Mother and
Father.” Id. Father asserts that although he was “initially non-responsive to
the family service plan, [] since his most recent release from incarceration,
[he] has progressed rapidly through his goals” and “shown steady progress.”
Id. Specifically, Father notes that he has completed the drug and alcohol
program and “very well could have completed [] his anger management if the
service provider could provide a consistent counselor.” Id.
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CYS responds that the trial court properly terminated Father’s rights
under Section 2511(a)(1), (2), (5), and (8). 6 CYS asserts that “over the
course of the dependency case, Father was unable to demonstrate any
substantial period of sobriety.” CYS’s Brief at 16. Further, CYS contends that
Father did not have consistent employment, did not establish secure housing,
and did not demonstrate any progress with anger management. Id. Overall,
CYS argues that Father exhibited a lack of compliance with services. Id. CYS
concludes that “[g]iven the length of the dependency case . . . and Father’s
failure to complete services, the [t]rial [c]ourt did not err in finding that [CYS]
met by clear and convincing evidence the grounds for termination” of Father’s
parental rights. Id. at 18.
In reviewing an appeal from an order terminating parental rights, we
apply the following standard of review:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. [In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010)]. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
____________________________________________
6 The GAL also filed a brief in support of terminating Mother and Father’s
parental rights to Child. GAL’s Brief at 12-24.
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As we discussed in R.J.T., there are clear reasons for applying an
abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even where
the facts could support an opposite result, as is often the case in
dependency and termination cases, an appellate court must resist
the urge to second guess the trial court and impose its own
credibility determinations and judgment; instead we must defer
to the trial judges so long as the factual findings are supported by
the record and the court’s legal conclusions are not the result of
an error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
The burden is on the petitioner “to prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony that is so ‘clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.’” Id. (citation omitted).
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b) . . . .
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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Further, we “may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a).” In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc)
(citation omitted).
Initially, we review the trial court’s ruling under Section 2511(a)(2),
which provides:
§ 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:
* * *
(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 condition and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent. The child has been
removed from the care of the parent by the court or under
a voluntary agreement with an agency, 12 months or more
have elapsed from the date of removal or placement, the
conditions which led to the removal or placement of the child
continue to exist and termination of parental rights would
best serve the needs and welfare of the child.
23 Pa.C.S. § 2511(a)(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
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted).
Further, “[t]he grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa. Super. 2015) (citation omitted). “Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002) (citation
and quotation marks omitted).
Here, the trial court addressed Section 2511(a)(2) as follows:
Father continues to be a safety threat to Child. He has not
provided parental care, control or subsistence necessary for
[Child’s] physical or mental well-being in that he has not
participated in services for the majority of the time that Child has
been in placement. Father has participated minimally in anger
management. Father started anger management right before the
Petition for Involuntary Termination was filed, but he has made
no progress. Father participated in drug treatment and tested
positive for drugs on the last day of treatment. Father claims that
he does not have problems with anger management or domestic
violence, but Father completely lacks credibility based on his
actions to deceive the [c]ourt. There is no record evidence that
Father has ever parented Child without Mother’s assistance. The
conditions which caused Father’s refusal or inability to parent
Child continue to exist. Father cannot or will not remedy the
situation which initially caused the dependency adjudication.
Trial Ct. Op. at 34.
Following our review, we find no abuse of discretion or error of law in
the trial court’s ruling that CYS established grounds for terminating Father’s
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parental rights under Section 2511(a)(2). See S.P., 47 A.3d at 826-27. As
noted by the trial court, Father’s progress with his service plan goals was
minimal. See Trial Ct. Op. at 34; see also N.T. Trial, 10/1/19, 96-97; 100-
105; N.T. Trial, 10/23/19, at 160-63. Father completed only nine out of the
fifty-one scheduled drug screens, five of which were positive for THC. See
N.T. Trial, 10/1/19, at 221, 223. Although Father attended some anger
management therapy appointments, he did not begin treatment until fourteen
months after the service plan goals were established. N.T. Trial, 10/23/19, at
128-31. Further, Father admitted that he had not taken his service plan goals
seriously until 2019, approximately a year-and-a-half after Child was
removed. Id. at 131. Father also failed to demonstrate that he was able to
meet Child’s basic needs, as he did not submit any proof of employment or
residence. N.T. Trial, 10/1/19, at 148; N.T. Trial, 10/23/19, at 121. Finally,
Father stated that he was “never really all the way compliant with the program
aspect” of reunification. Id. He explained that his priority was to secure
visitation rights, he wanted Child to remain in Mother’s custody, and he did
not complete his service plan objectives because he assumed that Mother
would “do everything right.” N.T. Trial, 10/23/19, at at 131-32.
Under these circumstances, the record contains no indication that Father
made diligent efforts toward a reasonably prompt assumption of full parental
responsibilities. See A.L.D., 797 A.2d at 340.
In sum, having reviewed the parties’ arguments and the record, we find
no basis to disturb the trial court’s findings of fact, which were supported by
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the record. Moreover, we discern no error in the trial court’s legal conclusions
that Father’s repeated and continued incapacity to parent caused Child to be
without essential parental care and that Father could not or would not remedy
the incapacity. See C.D.R., 111 A.3d at 1216; M.E.P., 825 A.2d at 1272. As
this Court has stated, “[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 R.J.S., 901 A.2d 502, 507 (Pa. Super. 2006)
(citation and footnote omitted). Accordingly, we affirm the trial court’s ruling
to terminate Father’s parental rights under Section 2511(a)(2). See S.P., 47
A.3d at 826-27.
Challenge To Trial Court’s Conclusions Under Section 2511(b)
Father next argues that the trial court committed an error of law by
concluding that termination would best serve Child’s needs under Section
2511(b). Father’s Brief at 21. Father asserts that “[t]he testimony from both
Dr. Bliss and Dr. Bernstein supported a finding that there is an existing and
beneficial bond between Father and [C]hild.” Id. at 22. Father contends that
although “[m]uch concern appears to be placed with the Father going outside
the system to see his child,” he “remained in contact with his son because he
felt that he needed to support Mother in her capacity of raising the child.” Id.
at 23. Father claims that “[h]e has had a strong relationship with [Child] since
he was born,” which is “highlighted in the visitation reports” and “further
supported by both Dr. Bliss and Dr. Bernstein in their reports and testimony
to the [c]ourt.” Id. at 23-24. Father argues that his bond with Child “is even
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further heightened by the fact that [C]hild was visiting with the parents or an
extended family member almost every day of the week” and that Child was
only spending nights with his foster parents. Id. at 24. Father concludes that
“[t]erminating the bond between Father and Child will have devastating and
an everlasting impact on this child and is not in his best interest.” Id.
CYS responds that “[w]hile there is an appearance of a bond between
Father and Child, there was little evidence that this bond was positive and/or
strong.” CYS’s Brief at 22. Nonetheless, CYS contends that despite the bond
between Father and Child, “Child’s need for safety, stability, and permanency
outweigh any potential harm to [] Child in severing [] Father’s parental rights.”
Id.
Section 2511(b) states:
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent.
23 Pa.C.S. § 2511(b).
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the
child. See In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
In reviewing the evidence in support of termination under Section 2511(b),
our Supreme Court has stated as follows:
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[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In In re E.M., 620 A.2d [481,
485 (Pa. 1993)], this Court held that the determination of the
child’s “needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of permanently
severing the parental bond.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations omitted).
Nonetheless, the mere existence of a bond or attachment of a child to a
parent will not necessarily result in the denial of a termination petition, as
“[e]ven the most abused of children will often harbor some positive emotion
towards the abusive parent.” Id. at 267 (citation omitted). Further, “[t]he
continued attachment to the natural parents, despite serious parental
rejection through abuse and neglect, and failure to correct parenting and
behavior disorders which are harming the children cannot be misconstrued as
bonding.” Id. (citation and footnote omitted).
In evaluating a child’s best interests, the court may emphasize the
safety needs of the child. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008)
(affirming involuntary termination of parental rights, despite the existence of
some bond, where placement with mother would be contrary to the child’s
best interests); see also In re Adoption of J.N.M., 177 A.3d 937, 946 (Pa.
Super. 2018) (citation omitted) (reiterating that the detrimental effects of
severing a parent-child bond could be outweighed by the need for safety and
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security). As this Court has noted, “a parent’s basic constitutional right to the
custody and rearing of . . . [his] child is converted, upon the failure to fulfill .
. . [his] parental duties, to the child’s right to have proper parenting and
fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citation
omitted).
Nonetheless, “[w]hen examining the effect upon a child of severing a
bond, courts must examine whether termination of parental rights will destroy
a ‘necessary and beneficial relationship,’ thereby causing a child to suffer
‘extreme emotional consequences.’” J.N.M., 177 A.3d at 944 (citation
omitted). “In the case of an unhealthy bond, ‘attention must be paid to the
pain that inevitably results from breaking a child’s bond to a biological parent,
even if that bond is unhealthy, and we must weigh that injury against the
damage that bond may cause if left intact.’” Id. (citing T.S.M., 71 A.3d at
267).
Here, the trial court addressed Child’s best interests under Section
2511(b) as follows:
Both Dr. Bliss and Dr. Bernstein noted that terminating the
parental bonds between Child and his parents could harm Child.
Despite that, Dr. Bernstein supported termination of parental
rights to Child because of several concerns that he raised,
including Mother’s ability to keep Child safe from Father and
Father’s propensity to be less than truthful in dealing with his
ongoing problems with anger and domestic violence. Despite a
possible negative impact on Child from the separation from his
parents, Dr. Bernstein still supported termination of parental
rights because, in his opinion, Child’s safety and stability
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outweighed the potential for speculative harm caused to Child by
severing the bonds with Mother and Father. This is demonstrated
in Dr. Bernstein’s testimony that in “weighing both the matter of
reunification versus termination of parental rights, [Dr. Bernstein]
support[s] the [c]ourt moving forward with the termination of
both parents’ rights and support[s] the foster parents as an
adoptive resource. No matter how the [c]ourt decides, [Child] will
likely be negatively impacted by the loss of an important bond
with his parents or established safety and stability provided for by
his foster parents. What tips the scale in favor of adoption is the
clear potential for increased risk of compromise to [Child’s] need
for safety and stability if the [c]ourt reunified him and his
parents.”
Dr. Bliss, pursuant to the [c]ourt order that permitted her to
conduct the bonding assessment between Mother and Father and
Child, did not address whether the bond was outweighed by a
need for safety, stability, and permanency. Dr. Bliss’ only inquiry
was into whether or not a bond existed and what possible harm
could occur from a severance of the bond. She testified that harm
was one possible outcome of severing the bonds. Dr. Bliss did not
opine on whether or not parental rights should be terminated and
was not even aware of most of the background information,
preferring, by her own testimony, to avoid collateral information
that might bias her opinion of whether or not severing the bond
might harm Child. Further, Dr. Bliss never reviewed Dr.
Bernstein’s report, and she did not testify that any protocol used
by Dr. Bernstein was inappropriate. Dr. Bliss did not testify as to
how Child’s bond with the foster parents may mediate any harm
experienced by Child from termination of the bond with his
parents.
As agreed by Dr. Bliss and Dr. Bernstein, there is a possibility of
harm to Child if his bonds with Mother and Father were severed.
However, Dr. Bernstein noted, and this [c]ourt agrees, that the
risk to safety and stability faced by Child if he is reunited with
Mother and Father outweighs the potential for harm if the bonds
are severed.
Child is bonded with Mother and Father. Mother and Father love
Child, and Child loves them. Child looks to Mother and Father for
love. On visits, they play together and talk about things. The one
thing that Mother and Father have consistently done since Child
was detained is maintain their relationship with Child. However,
“the mere existence of a bond or attachment of a child to a parent
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will not necessarily result in the denial of a termination petition.”
T.S.M., 71 A.3d at 267. Stability and family permanence are
critical to the health and welfare of dependent children and must
take priority.
Despite Mother and Father’s bonds with Child, Child’s need for
safety, stability, and permanency outweigh any potential harm to
[Child] from the severing of Father’s parental rights. Father made
no effort to participate in services until March 2019, one month
before the filing of the Petition for Termination and sixteen months
after Child’s initial removal. Even considering that Father started
anger management in March 2019, there is nothing to indicate
that he has made any progress. He has had to change therapists
several times, and his current therapist did not anticipate working
with him again, partially due to the fact that Father had missed an
appointment and not answered phone calls for the three weeks
prior to the involuntary termination hearing. Father admitted that
he was expecting Mother to participate and get Child back so that
he did not have to do anything to obtain custody of Child. Father
did not participate in drug screenings, and when he did participate
in treatment, he tested positive for drugs on the last day of the
treatment program. Father never submitted any proof of
residence or employment.
* * *
Worse than Mother and Father’s failure to comply with the service
plan is Mother and Father’s lying and deceptive behavior designed
to circumvent the [c]ourt’s orders, placing Child at great risk of
harm. Both have repeatedly demonstrated an intent to sidestep
the safety measures in place to protect Child, putting their own
desires before Child’s safety.
Child has been involved with CYS for approximately two years of
the three years and a half years since his birth, while Mother and
Father have made no progress and continue to place Child at risk
of harm. Child needs to be safe and stable above all else. Safety,
permanency, and the well-being of Child “must take precedence
over all other considerations.” In re S.B., 943 A.2d 973 (Pa.
Super. 2008). Mother and Father’s inability or unwillingness to
remedy the problems that continue for them, most specifically the
domestic violence and drug and alcohol problems, cause it to be
in the best interests of Child to have parental rights terminated so
that Child can find safety, permanency, and stability.
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In this case, the parents have spent a lot of time comparing
themselves to the foster parents; however this is not the standard
in an involuntary termination of parental rights case that involves
agencies. Trial courts should pay the utmost attention to
discerning the effect on Child of permanently severing parental
bonds; however, the Adoption Act specifically provides that a
pending adoption is not a prerequisite to terminations of parental
rights that involve agencies like CYS. In re T.S.M., 71 A.3d at
267. This court understands that best practice is to have a stable
and permanent family if parental rights are terminated, and the
court may consider a child’s bond with his or her foster parents.
This court has given consideration to Child’s bond and interactions
with the foster parents in so far as it affects the developmental,
physical and emotional needs and welfare of Child; however, this
court has not, and will not, engage in a comparison of foster
parents and natural parents. The safety, permanency, and
stability of Child is the paramount concern.
* * *
Mother and Father have raised the failure to place Child in a
kinship home with Paternal Aunt or Paternal Grandmother. The
ability or inability to be placed in a kinship home is not relevant to
a termination proceeding. The court acknowledges that it is best
practice in a dependency action to place a child in kinship care
when possible and can consider this when considering the needs
and welfare of a child. Unfortunately, in this case, neither Paternal
Aunt nor Paternal Grandmother completed the certification
process. There is no evidence that this was the result of CYS[‘s]
action or inaction. Paternal Grandmother testified that she did not
start the process timely because she assumed that Mother would
get Child back. This appears to be a common presumption in
Father’s family. While the Paternal family waited for Mother to do
everything right, they took little to no action. At best, Child was
not placed with Father’s family because of a lack of follow through.
Regardless of how unfortunate it is, this is the factual scenario
that the court is left with due to the inaction of Father’s family in
completing or starting the certification process.
In summation, this court recognizes that, regrettably, Child may
suffer some grief and loss with the termination of rights of his
parents and the termination of relationship with Father’s extended
family. However, after nearly two years of providing opportunities
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for reunification, the court must ultimately meet Child’s best
interest by ensuring a safe, stable, and permanent home for Child.
Trial Ct. Op. at 40-45.
Based on our review of the record, we discern no basis to disturb the
trial court’s finding that termination of Father’s parental rights would best
serve Child’s needs and welfare. See T.S.M., 71 A.3d at 267. The trial court
acknowledged the existence of a bond between Father and Child and the fact
that Child may suffer grief or loss if that bond were severed. Trial Ct. Op. at
43; see also N.T. Trial, 10/2/19, at 71. However, as noted by the trial court,
Father “continues to be a safety threat to Child” and “has not provided any
parental care, control, or subsistence necessary for [Child’s] physical or
mental well-being.” Trial Ct. Op. at 34; see also N.T. Trial, 10/1/19, at 148;
N.T. Trial, 10/23/19, at 121. Therefore, the trial court properly concluded that
any detriment Child may suffer from severance of his bond with Father was
outweighed by Child’s need for safety, stability, and permanency. See
J.N.M., 177 A.3d at 944; see also B., N.M., 856 A.2d at 856; see also
K.Z.S., 946 A.2d at 763.
Under these circumstances, we discern no abuse of discretion by the
trial court in applying Section 2511(b). See S.P., 47 A.3d at 826-27. Clear
and convincing evidence supports the trial court’s conclusion that termination
of Father’s parental rights would best serve Child’s developmental, physical,
and emotional needs and welfare. See R.N.J., 985 A.2d at 276. Accordingly,
we affirm.
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Challenge To Goal Change From Reunification To Adoption
In his remaining issue, Father argues that the trial court committed an
error of law by approving the goal change from reunification to adoption.
Father’s Brief at 24. Specifically, Father contends that “there was no evidence
that touched on the [required] factors” and that “the main rationale behind
the goal change was the fact that the [c]ourt issued an order terminating
Father’s parental rights.” Id. at 25. Father also asserts that “there was no
analysis as to how any of the evidence fit into the standards” for evaluating a
goal change petition, and therefore, this Court should “vacate the order
terminating parental rights[, as] it would likewise vacate the order changing
the goal to adoption.” Id.
CYS does not address this issue in its brief. However, the GAL asserts
that Father “misunderstands the application of [the goal change] factors” and
that there was overlapping evidence to support both termination and the goal
change to adoption. GAL’s Brief at 15. Further, the GAL notes that the goal
change was necessary in light of the trial court’s conclusions regarding
termination and Child’s need for safety and stability. Id. at 16.
It is well settled that “goal change decisions are subject to an abuse of
discretion standard of review.” In re R.M.G., 997 A.2d 339, 345 (Pa. Super.
2010) (citation omitted).
In order to conclude that the trial court abused its discretion, we
must determine that the court’s judgment was “manifestly
unreasonable,” that the court did not apply the law, or that the
court’s action was “a result of partiality, prejudice, bias or ill will,”
as shown by the record. We are bound by the trial court’s findings
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of fact that have support in the record. The trial court, not the
appellate court, is charged with the responsibilities of evaluating
credibility of the witness and resolving any conflicts in the
testimony. In carrying out these responsibilities, the trial court is
free to believe all, part, or none of the evidence. When the trial
court’s findings are supported by competent evidence of record,
we will affirm, “even if the record could also support an opposite
result.”
Id. (citation omitted).
Pursuant to Section 6351(1) of the Juvenile Act, when considering a
petition for a goal change, the trial court must consider the following factors:
(1) the continuing necessity for and appropriateness of the placement; (2) the
extent of compliance with the family service plan; (3) the extent of progress
made towards alleviating the circumstances which necessitated the original
placement; (4) the appropriateness and feasibility of the current placement
goal for the children; (5) a likely date by which the goal for the child might be
achieved; (6) the child’s safety; and (7) whether the child has been in
placement for at least fifteen of the last twenty-two months. 42 Pa.C.S.
6351(1); see also R.J.T., 9 A.3d at 1185 n.8.
The best interests of the child, and not the interests of the parent, must
guide the trial court’s decision. S.B., 943 A.2d at 978. We have stated that
“[t]hese statutory mandates clearly place the trial court’s focus on the best
interests of the child.” Id. (citation omitted). “Although the agency has the
burden to show a goal change would serve the child’s best interests, ‘safety,
permanency, and well-being of the child must take precedence over all other
considerations’ under Section 6351. ‘The parent’s rights are secondary’ in a
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goal change proceeding.” R.M.G., 997 A.2d at 347 (citations omitted and
formatting altered).
Here, the trial court issued a permanency review order with its findings
of fact. See Permanency Review Order, 2/4/20. Therein, the trial court stated
that Child’s placement with foster family was necessary and appropriate, CYS
had made reasonable efforts to finalize Child’s permanency plan, and Child
was safe with his foster family. Id. Further, the trial court indicated that the
goal change to adoption was appropriate because it was “best suited to the
protection and physical, mental and moral welfare of the child.” Id.In its Rule 1925(a) opinion, the trial court thoroughly addressed Mother
and Father’s limited compliance with the service plan and their lack of progress
towards remedying the circumstances that led to Child’s placement. Trial Ct.
Op. at 29-43. The trial court also addressed Mother’s and Father’s failure to
complete their respective goals for reunification. Id. at 43; see also N.T.
Trial, 10/1/19, at 148; N.T. Trial, 10/23/19, at 121. The trial court explained
that “after nearly two years of providing opportunities for reunification, the
court must ultimately meet Child’s best interest by ensuring a safe, stable,
and permanent home for Child.” Trial Ct. Op. at 45. Further, the trial court
stated that it considered Child’s bond and interactions with his foster family in
the context of Child’s “developmental, physical and emotional needs and
welfare,” and again emphasized that “the safety, permanency, and stability of
Child is the paramount concern.” Trial Ct. Op. at 44; see also N.T. Trial,
10/2/19, at 71.
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In sum, the record reflects the trial court’s consideration of the factors
supporting the goal change, as well as the trial court’s emphasis on Child’s
best interests and his need for safety and stability. See S.B., 943 A.2d at
978. Under these circumstances, we find no abuse of discretion or error of
law in the trial court’s conclusion that the goal change to adoption was
appropriate. See R.M.G., 997 A.2d at 345. Therefore, Father is not entitled
to relief on this issue.
Accordingly, for the foregoing reasons, we affirm the termination of
Father’s parental rights to Child and the change of Child’s permanency goal to
adoption.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/02/2020
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