In Re: S.-A.T., Appeal of: T.T. ( 2023 )

J-A28010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.-A.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.T., JR., FATHER :
:
:
:
:
: No. 1549 EDA 2022
Appeal from the Decree Entered June 2, 2022
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): 2021-A0002
IN RE: T.T., III, A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.T., JR., FATHER :
:
:
:
:
: No. 1550 EDA 2022
Appeal from the Decree Entered June 2, 2022
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): 2021-A0003
IN RE: S.A.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.T., JR., FATHER :
:
:
:
:
: No. 1551 EDA 2022
Appeal from the Decree Entered June 2, 2022
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): 2021-A0005
BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
J-A28010-22
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 28, 2023
T.T., Jr. (“Father”) appeals from the involuntary termination of his
parental rights to his three youngest children, S.-A.T., S.A.T. and T.T., III
(“Children”). On June 4, 2019, the Montgomery County Office of Children and
Youth (“OCY”) obtained physical and legal custody of the Children, who were
living with Mother and Father at the time. After attempting reunification with
the parents for almost two years, OCY filed Petitions for Termination of
Parental Rights. Following a hearing, the trial court terminated Mother and
Father’s parental rights. Father appealed and this Court vacated the
termination and remanded to the trial court for further proceedings. See In
re Adoption of S.-A.T., T.T., III, S.A.T., 1191 EDA 2021, 1192 EDA 2021,
1193 EDA 2021 (Pa. Super. filed January 18, 2022) (unpublished
memorandum).1
The prior panel concluded that the trial court had erroneously admitted
hearsay statements. See id., at 11-12. The panel vacated the termination of
Father’s rights, and instructed the trial court to hold “a new termination
hearing … in accordance with our Rules of Evidence and case law ….”. See id.,
at 14. The panel of this Court did not reach Father’s remaining issues. See
id., at n.8.
____________________________________________
1Mother also appealed the termination of her parental rights. See In re
Adoption of S.A.T., T.T., III, S.A.T., 875 EDA 2021, 876 EDA 2021, 877
EDA 2021 (Pa. Super. filed November 16, 2021 (unpublished memorandum)).
However, a panel of this Court affirmed the decrees.
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The trial court held a hearing complying with our instructions on remand
and issued an order terminating father’s parental rights on June 2, 2022. At
the hearing, counsel stipulated to incorporating much of the evidence from
the previous termination hearing, but redacted certain parts in accordance
with the instructions on remand. See N.T. 2/23/22 at 5-6. The court also
heard testimony from Miriam Gilday, a nurse practitioner who treats the
Children; Melinda Shelton, an adoption caseworker for CYS; Father’s older
daughter, who is not a subject of this appeal; and Father. The trial court
terminated Father’s parental rights to the Children pursuant to subsections
(1), (2) and (8) of 23 Pa.C.S.A. §2511(a) and noted that it gave proper
consideration required under 23 Pa.C.S.A. §2511(b).
On appeal Father claims that the trial court did not have clear and
convincing evidence to terminate his parental rights under any of the
subsections cited in the termination decrees. See Appellant’s Brief at 8.
Initially, we note that when reviewing an order terminating parental rights,
we evaluate whether the trial court abused its discretion or committed an error
of law while accepting findings of fact and credibility determinations that are
supported by the record. See In re Adoption of K.M.G., 219 A.3d 662, 670
(Pa. Super. 2019). We will not reverse a decision merely upon a finding that
the record could produce a different outcome, but we will defer to the trial
court’s multiple first-hand observations of the parties. See id. Further, we will
only find an abuse of discretion where we find manifest unreasonableness,
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partiality, prejudice, bias or ill-will. See In re T.S.M., 71 A.3d 251, 267 (Pa.
2013).
The statutory grounds for termination must be proved by clear and
convincing evidence. See id. “[C]lear 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.” In re G.P.-R., 851 A.2d 967, 973 (Pa. Super. 2004)
(citations omitted). Additionally, we note that while a trial court may find that
the petitioner has met its burden of proving clear and convincing evidence for
multiple subsections of 23 Pa.C.S.A. §2511(a), we only need to agree with
that decision for any one of the subsections to affirm the termination decree.
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004). When making a
termination decision the trial court must engage in a bifurcated process,
focusing first on the parent and evaluating their conduct under the statute
and, if it is found that termination is appropriate, determining the needs of
the child under the best interest of the child standard. See In re Adoption
of S.P., 32 A.3d 723, 736 (Pa. Super. 2011).
As we conclude OCY met its burden under subsection (a)(8), we will
focus our analysis there. Under subsection (a)(8), the statute provides that
termination is appropriate when a child has (1) been removed from the care
of a parent for twelve months or more, (2) the conditions leading to the
removal still exist and, (3) termination best serves the needs and welfare of
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the child. See 23 Pa.C.S.A. § 2511(a)(8). “Termination under Section
2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of Agency services.” In re Z.P., 994 A.2d 1108,
1118 (Pa. Super. 2010) (citations omitted).
Father does not dispute that the Children have been removed from his
care for more than twelve months. See Appellant’s Brief, at 18-20. Nor does
he explicitly challenge the trial court’s finding under subsection (a)(8) that
termination best serves the needs and welfare of the Children.2 See id.Instead, he argues that he has made changes personally and in the home
since the Children were removed and those improvements were not
adequately considered by OCY. See id.Here, the primary cause of the Children being removed from Father’s
care was Father’s neglect. The most urgent example of this neglect was
Father’s failure to protect the Children from Mother’s drug abuse. On March
30, 2019, Father learned that Mother was driving while intoxicated with the
Children in the car. N.T. 4/8/21, at 101. To his credit, Father contacted the
police and had Mother stopped and arrested. See id.____________________________________________
2 Even if Father had presented argument on this point, we would have
concluded it merited no relief for the same reasons we would conclude there
was sufficient evidence to justify termination under section 2511(b).
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However, despite his knowledge of Mother’s substance abuse issues, he
continued to leave the Children in her exclusive care while he worked. See
id., at 102. On April 23, 2019, Mother was hospitalized for a drug overdose.
See id., at 101. Mother had taken the Children to Norristown for a truancy
hearing when she collapsed. See id., at 102. On May 6, 2019, OCY instituted
a safety plan with Father to ensure that Children were not left alone with
Mother or that she be allowed to drive them anywhere. See id., at 103.
Shortly thereafter, Mother was arrested for driving while intoxicated. See
N.T., 4/7/21, at 45-46; 50. The Children were in the car. See id., at 46-47.
The Children were not properly secured in child safety seats. See id., at 47.
Father had an excuse for this failure to comply with the safety plan: he
claimed he was hospitalized with pneumonia. See N.T., 4/8/21, at 104. When
asked what he did to ensure the Children’s safety while he was hospitalized,
he responded that he had told Mother to inform his OCY caseworker of his
status. See id.
However, the trial court did not find Father’s testimony credible. See
Trial Court Opinion, 6/2/22, at 5-6. Further, the trial court noted that even if
Father was hospitalized, his efforts to protect the Children from Mother’s
substance abuse were insufficient. See id. When OCY subsequently
investigated the Children’s maternal grandmother as a possible resource, they
learned that Mother was still driving the Children on trips with maternal
grandmother. See N.T., 4/8/21 at 14-15.
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In addition to Father’s failure to protect the Children from Mother, OCY
also noted that there was no food in the family home. See N.T., 4/8/21, at
13. The home investigation also revealed a lack of running water. See id.
After the Children were removed from Mother and Father’s care, they were
discovered to be suffering from significant dental health issues. See id., at
26-27. In particular, the oldest child had braces on her teeth for two years,
but the orthodontist had not seen her since the braces were installed. See id.
All three Children had cavities and required surgery to address their dental
issues. See id., at 28.
The Children were placed in foster care on June 4, 2019. Father’s goals
for reunification were: “locate and engage in therapy as outlined in the
parenting evaluation; … obtain a psychological evaluation and follow all
recommendations; … lead a sober lifestyle; … obtain a place to live that would
accommodate himself and his family.” Id., at 21. Father complied with a
psychological evaluation, where he was diagnosed with adjustment disorder
and possible opioid abuse disorder. See N.T., 4/7/21, at 199. The psychologist
recommended that Father participate in mental health counseling and
parenting instruction. See id., at 200.
OCY presented evidence that Mother continued to abuse oxycodone up
until the last screening before the termination hearing. See N.T., 4/8/22, at
34-36. Father has continued to live with Mother during this case. See id., at
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40. Father has been prescribed oxycodone for his own pain management. See
N.T., 4/7/21, at 43.
Father never presented OCY with records to indicate he had obtained
mental health treatment or any other form of counseling about parenting the
Children. See id., at 201; see also N.T., 4/8/21 at 42. Father continues to
align himself with Mother. See N.T., 4/8/21, at 50. As a result, he minimizes
his failure to protect the Children from Mother’s drug abuse. See id., at 51.
Father failed to fully participate in his psychological assessment, which was
consistent with his failure to accept responsibility for the Children’s safety.
See N.T., 4/7/21, at 203. As a result, the psychologist opined that Father had
failed to adequately address the concerns that led to the Children’s placement.
See id.
This record was sufficient to support the trial court’s conclusion that the
conditions that led to the Children’s removal from Father’s care were not
remedied. Father continued to live with Mother but consistently denied or
minimized his responsibility to protect the Children from Mother’s drug abuse.
Meanwhile, Mother continued to abuse oxycodone. And while there was no
evidence Mother had obtained oxycodone from Father, it is notable that his
prescription for oxycodone creates a reasonably foreseeable possibility that
Mother could surreptitiously satisfy her habit through Father’s supply. Since
Father has demonstrated behaviors indicating he is not responsible for
protecting the Children from Mother, the trial court was entitled to be
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concerned by these circumstances. When viewed as a whole, the record is
sufficient to support a finding that Father would continue to fail to protect the
Children from Mother’s drug abuse. Accordingly, the record supports the trial
court’s conclusion that the conditions that led to the Children’s removal from
Father’s care continue to exist. Father’s argument that the trial court erred
merits no relief.
We note that Father’s appellate brief lists a challenge to the trial court’s
conclusion that there was sufficient evidence to terminate his parental rights
pursuant to 23 Pa. C.S.A. § 2511(b). See Appellant’s Brief, at 8. However,
Father fails to present any argument in support of this issue. See Appellant’s
Brief, at 11-22. He has therefore waived this challenge.
Even if he had preserved this challenge, we would conclude it merits no
relief. Section 2511(b) requires the court, before terminating parental rights,
to consider the emotional and physical needs and welfare of the child that
cannot be measured by environmental factors that may be out of the parent’s
control such as housing, income, and medical care. See In re L.M., 923 A.2d
505, 511 (Pa. Super. 2007). “Intangibles such as love, comfort, security, and
stability are involved in the inquiry into needs and welfare of the child.” In re
C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted). In
determining a child’s needs and welfare, the orphans’ court is required to
consider “whatever bonds may exist between the [Children] and [Father], as
well as the emotional effect that termination will have upon the [Children].”
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In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002) (citation
omitted). At the same time, the court should also consider the intangibles,
such as the “love, comfort, security, and stability,” the child might have with
the foster parents. In re K.Z.S., 946 A.2d 753, 760 (Pa. Super. 2008)
(citation omitted).
Father and mother failed to take the opportunity to work on their
relationship with their Children during supervised visitation. See N.T. 4/8/21
at 46. The Children’s adoption caseworker has observed them interacting with
their foster parents in a loving way, seeking approval and guidance from them.
See N.T. 2/23/22 at 30. The caseworker opined that the Children’s needs are
being met in the pre-adoptive home. See id. at 30-31. The Children do not
ask about birth father or interact with him. See id. at 32. In addition, the
psychologist opined that the Children had “weak and insecure [bonds with
their parents that included] some unhealthy elements.” See N.T., 4/7/21, at
190.
The trial court found:
It is abundantly clear to the court in this case that termination of
parental rights is in the best interest of all three children. The
children’s basic nutritional, emotional, medical, education, or
developmental needs were severely neglected while they were in
the care of Birth Father. Since being placed with foster parents,
the children have made remarkably significant improvements in
their health, development, education and behavior.
Trial Court Opinion at 19.
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Based on this record, we cannot conclude the trial court’s reasoning was
an abuse of discretion. Even if Father had properly presented argument to
challenge the trial court’s determination under section 2511(b), it would merit
no relief. As we conclude that OCY presented sufficient evidence to justify
termination of Father’s parental rights pursuant to 23 Pa. C.S.A. §2511(a)(8)
and (b), we affirm the decrees terminating his parental rights.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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