In the Interest of: L.F., a Minor Appeal of: J.R. ( 2015 )

J-S06044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.F., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.R., FATHER No. 2709 EDA 2014
Appeal from the Order entered August 25, 2014,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000629-2013;
CP-51-DP-0001582-2011
IN THE INTEREST OF: J.F., IN THE SUPERIOR COURT OF
A/K/A J.R., A MINOR PENNSYLVANIA
APPEAL OF: J.R., FATHER No. 2757 EDA 2014
Appeal from the Order entered August 25, 2014,
in the Court of Common Pleas of Philadelphia County,
Family Court, at No(s): CP-51-AP-0000628-2013;
CP-51-DP-0001583-2011
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 11, 2015
Appellant, J.R. (“Father”), appeals from the orders entered in the
Philadelphia County Court of Common Pleas involuntarily terminating his
parental rights to L.F., born in January 2007, and J.F., born in June 2011
(collectively “the Children”).1 He avers the court erred in finding grounds for
termination under 23 Pa.C.S. § 2511 (a)(1), (2), (5), (8), and (b). We
* Former Justice specially assigned to the Superior Court.
1
On the same day, the court terminated the parental rights of the mother,
R.F. (“Mother”). According to Appellee Philadelphia Department of Human
Services (“DHS”), Mother did not appeal. DHS’ Brief at 11 n2.
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affirm.
The trial court aptly summarized the factual and procedural history of
this case as follows.
DHS initially became involved with this family on
January 29, 2007, [upon] a General Protective Services
report (“GPS”) alleging that [Mother] tested positive for
phencyclidine (“PCP”) at the time of [L.F.’s] birth. [L.F.]
remained hospitalized due to his exposure to drugs in
utero. Mother admitted that she used cigarettes, alcohol,
and cocaine on an almost daily basis during her pregnancy
with [L.F.] The family subsequently stabilized and DHS
closed its case.
The family became involved with DHS again on June 6,
2011, when DHS received a GPS report which alleged that
Mother tested positive for PCP at the birth of [J.F. J.F.’s]
subsequent toxicology screen at the hospital was positive
for PCP. [J.F.] weighed four pounds and eight ounces at
the time of his birth.
On July 18, 2011, DHS developed the Initial Family
Service Plan (“FSP”) and held a meeting. Father did not
attend or otherwise participate in that meeting. At this
time, there were no objectives for Father.
On August 9, 2011, DHS received a GPS report alleging
that Mother was observed attempting to push [J.F., who
was in a stroller,] into traffic. [J.F. was] not strapped in,
and only wearing a one-piece infant undergarment.
Mother was under the influence of PCP at the time of the
incident. Following this incident, DHS obtained an Order of
Protective Custody (“OPC”) for both children and placed
them in foster care.
At the time of the [C]hildren’s placement, Father was
minimally involved in their care. However, Father was
made aware of Mother’s PCP abuse. Father stated that he
was unable to care for the [C]hildren because of his work
schedule. On August 24, 2011, an adjudicatory hearing
was held for both children. The [trial] court adjudicated
the [C]hildren dependent and committed them to DHS
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based on the present inability of the parents.
On September 20, 2011, DHS revised the FSP. [The]
Children’s goal was to return to parent/guardian/custodian.
Father’s objectives were to visit [the C]hildren at the office
of the placement agency on a weekly basis, keep and
maintain regular contact with [the C]hildren, meet
regularly with the agency social worker, participate in the
Healthy Relationships Couples program with Mother, and
comply with the Individual Service Plan (“ISP”). Father
attended the meeting and signed the revised FSP. On
November 29, 2011, DHS referred Father to the Achieving
Reunification Center (“ARC”). However, ARC deemed the
referral inappropriate because Father did not speak
English, and as a result could not participate in the
services provided by ARC. Further research by ARC
revealed that all service goals for Father could be achieved
at Casa de Consejeria Y Salud Integral, Inc. (“CCSI”) in
Spanish. ARC referred Father to CCSI on November 29,
2011.
On December 1, 2011, the FSP was again revised. The
goal for [the C]hildren was to return to
parent/guardian/custodian and Father’s objectives were to
visit [the C]hildren at the office of the placement agency
on a weekly basis, keep and maintain regular contact with
[the C]hildren, to meet regularly with the agency social
worker, to comply with the ISP, and attend services at
CCSI. Father attended the meeting and signed the FSP.
The FSP was revised again on May 15, 2012 and on
November 27, 2012. All of Father’s objectives remained
the same. Father attended and signed the revised FSP.
During the time the [C]hildren have been in care, Mother
has resided on and off with Father.
In the ISP quarterly reports for the [C]hildren from El
Concilio for the period of May 7, 2013 through August 7,
2013, it was noted that obstacles to reunification
remained. It was also noted that there were concerns
about Father’s ability to care for the [C]hildren
independently, set boundaries for Mother and the
[C]hildren while Mother attempted to achieve and maintain
sobriety, and ensure the [C]hildren’s safety with and
around Mother. Father has stated that he is unable to
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create boundaries for Mother throughout the life of this
case. Father is unwilling to put the [C]hildren’s needs
before Mother’s. Father also attended parenting classes,
but did not complete the program due to his work
schedule. Father was given twice a week supervised visits.
Father only was able to visit once a week. When Father
attends his visits, Father is reluctant to work on activities,
such as assisting [L.F.] with homework. Instead, Father
gives his cell phone to the [C]hildren so they can play
games on his cell phone instead of spending quality time
with [the C]hildren. Father brings inappropriate foods for
the [C]hildren. Father must be prompted to participate in
daily care activities for [the C]hildren, such as changing
diapers and setting boundaries. Father always had
supervised visits. Father struggles to take initiative in
interacting and maintaining the attention of [the C]hildren.
[L.F.] attends trauma focused therapy once per week since
November 2012. [L.F.] becomes extremely upset when
Father or Mother miss visits. [L.F.] has a lot of anxiety
about parent’s well-being. Father and Mother stopped
attending couples counseling. DHS had serious concerns
about Father’s ability to provide appropriate care and
supervision for [the C]hildren independently. Although in
the early part of the case, Father was found substantially
and fully compliant, at the last review hearing on June 19,
2013, prior to DHS filing the Goal Change/Termination
petition, Father was found minimally compliant. . . .
Trial Ct. Op., 10/20/14, at 1-3.
On October 31, 2013, DHS filed petitions to involuntarily terminate
Mother and Father’s parental rights to the Children. A March 24, 2014 FSP
indicated the Children were in kinship care. On July 18 and August 25,
2014, the trial court held hearings. The witnesses were Maria Spencer, a
DHS caseworker, Damaris Oliveria, a court case manager, Jennifer
Brerethon, a therapist for L.F., and Father. On August 25, 2014, the trial
court entered the instant orders terminating Mother’s and Father’s parental
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rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b). Father
timely filed notices of appeal, along with Pa.R.A.P. 1925(a)(2)(i) statements
of errors complained of on appeal.
Father’s first four issues are whether the trial court erred in finding
clear and convincing evidence for terminatiion under Subsections (a)(1), (2),
(5), and (8). Because many of his arguments overlap, we summarize his
arguments together. Father maintains “the children were removed from the
care of [M]other due to her drug problems,” and that he “has never
evidenced a settled purpose of relinquishing his rights to his children.”
Father’s Brief at 15, 16. Father asserts he “has remedied his problems,”
“has cooperated with DHS,” “substantially completed his FSP goals,”
completed parenting training and couples counselling, “visited regularly with
both . . . children while continuing to be employed.” Id. at 15, 17. He adds
his home “was not evaluated for the children to live there,” and “[t]he only
testimony [about] the adequacy of his housing was the lack of beds for the”
Children. Id. at 16. Father also asserts he “was a young [f]ather who did
not speak English and looked to DHS . . . for guidance in reunification,” but
DHS failed to provide him “with reasonable efforts for reunification.” Id. at
17. We find no relief is due.
We note the relevant standard of review:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining
whether the decision of the trial court is supported
by competent evidence. Absent an abuse of
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discretion, an error of law, or insufficient evidentiary
support for the trial court’s decision, the decree must
stand. Where a trial court has granted a petition to
involuntarily terminate parental rights, this Court
must accord the hearing judge’s decision the same
deference that we would give to a jury verdict. We
must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s
decision is supported by competent evidence.
In addition, the trial court, as fact finder, is the sole
determiner of the credibility of witnesses and resolves all
conflicts in testimony.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (citations omitted).
The party seeking termination bears the burden “to establish by clear
and convincing evidence the existence of grounds for doing so.” Id. at 806.
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 J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003). “Our
appellate review, however, does not require us to find clear and convincing
evidence. We will affirm if the trial court's findings are supported by
competent evidence, even if the record could also support an opposite
result.” In re S.H., 879 A.2d at 806. “In addition, we need only find
competent evidence to support the trial court's decision as to any one
subsection of 23 Pa.C.S. § 2511(a) to affirm the termination.” Id.
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Section 2511(a)(1) and (b) provide:
§ 2511. Grounds for involuntary termination
(a) General rule.—The rights of a parent in regard to
a child may be terminated after a petition filed on any of
the following grounds:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
* * *
(b) Other considerations.—The court in terminating
the rights of a parent shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child. The rights of a parent shall not be
terminated solely on the basis of environmental factors
such as inadequate housing, furnishings, income, clothing
and medical care if found to be beyond the control of the
parent. With respect to any petition filed pursuant to
subsection (a)(1), (6) or (8), the court shall not consider
any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (b).
This Court has stated:
To satisfy the requirements of section 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
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may be terminated pursuant to [s]ection 2511(a)(1)
if the parent either demonstrates a settled purpose
of relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines
of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child
pursuant to [s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).
Regarding the definition of “parental duties,” this Court has stated:
There is no simple or easy definition of parental
duties. Parental duty is best understood in relation
to the needs of a child. A child needs love,
protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely
passive interest in the development of the child.
Thus, this Court has held that the parental obligation
is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a
financial obligation; it requires continuing interest in
the child and a genuine effort to maintain
communication and association with the child.
Because a child needs more than a benefactor,
parental duty requires that a parent exert himself to
take and maintain a place of importance in the
child’s life.
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available
resources to preserve the parental relationship, and must
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exercise reasonable firmness in resisting obstacles placed
in the path of maintaining the parent-child relationship.
Parental rights are not preserved by waiting for a more
suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or
her physical and emotional needs. . . .
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
After careful review of the parties’ briefs, the trial court opinion, and
the record, including the notes of testimony, and the applicable law, we
conclude that the thorough opinion filed by the Honorable Joseph Fernandes
on October 20, 2014, addresses Father’s issues and supports the reasons for
termination under Subsection 2511(a)(1). On appeal, Father ignores the
findings of the trial court and instead recasts the evidence in a light
favorable to him. We cannot, however, reweigh the evidence. See In re
S.H., 879 A.2d at 805, 806. Accordingly, we adopt its analysis and affirm its
findings under that subsection. See Trial Ct. Op. at 5 (finding Father: was
“minimally compliant with his FSP objectives” “even though [he] was aware
of” them; only attended visitation once per week although he was offered
two visits per week, and thus missed 50% of his visits; failed to attend any
of Children’s medical visits, although he was invited; “never demonstrated
his ability to keep the children safe from Mother;” “had to be redirected to
participate in the daily care activities for his children;” “stopped going to
couples counselling;” and further finding DHS provided reasonable and
adequate services, including documents and interpreting services in his
native Spanish). Because we affirm termination under Subsection
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2511(a)1), we need not consider the grounds for termination under
Subsections (a)(2), (5), and (8). See In re S.H., 879 A.2d at 806.
Father’s second claim on appeal is that termination does not serve the
Children’s physical and emotional needs under Subsection 2511(b). He
maintains L.F. lived with him “for the first four years of his life and has a
strong bond with” him, and that although [J.F.] only lived with Father for
part of the first year of his life, Father “kept [their] strong bond through his
continued visitation.” Father’s Brief at 18, 19. Father asserts he “should
have been provided with realistic goals that would have permitted him
unsupervised visitation.” Id. at 18. Finally, he maintains “[t]he social
worker testified that there was a bond between Father and L.F.” Id. at 19.
We find no relief is due.
With respect to Subsection 2511(b),
Once the statutory requirement for involuntary
termination of parental rights has been established under
subsection (a), the court must consider whether the child's
needs and welfare will be met by termination pursuant to
subsection (b). In this context, the court must take into
account whether a bond exists between child and parent,
and whether termination would destroy an existing,
necessary and beneficial relationship.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted).
This Court has held “the existence of some bond with [a parent] does
not necessarily defeat termination of her parental rights. The question
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becomes whether the bond between [the child and parent] is the one worth
saving or whether it could be sacrificed without irreparable harm to” the
child. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). “In cases where
there is no evidence of any bond between the parent and child, it is
reasonable to infer that no bond exists. The extent of any bond analysis,
therefore, necessarily depends on the circumstances of the particular case.”
Id. at 762-63.
We summarize that when the Children were adjudicated dependent
and placed in foster care in August 2011, L.F. was four and a half years old
and J.F. was two months old. When DHS filed the instant petitions to
terminate, L.F. was almost seven years old and J.F. was two years and five
months old. They remain in the same foster home.
At the first termination hearing, when asked whether there was a bond
between Father and the Children, the prior DHS caseworker, Marcia
Spencer,2 testified that L.F. “knows” Father, as he was four years old when
he was removed from the home. N.T., 7/18/14, at 38-39. However, Ms.
Spencer responded “No,” to the questions of whether she believed there was
“a positive paternal bond” and “there would be irreparable harm to the
children if [Father’s] rights were terminated.” Id. at 39. Finally, Ms.
2
Ms. Damaris, the current DHS caseworker, assumed supervision of the
case in June 2014, after DHS had filed the petition to terminate and
approximately five weeks prior to the July 18, 2014 termination hearing.
See N.T., 7/18/14, at 56. Ms. Damaris’ first name was not revealed in the
hearing transcript.
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Spencer opined it was in the Children’s best interests for Father’s parental
rights to be terminated. Id. On cross-examination, Father’s counsel asked
Ms. Spencer about her knowledge of the bond between Father and the
Children. Id. at 49. Ms. Spencer testified she had observed three or four
visits and received reports from DHS and stated, “My observation is that
very close interactive [sic] with [L.F. J.F.] was an infant, less interaction
with [J.F.] [sic] because he was a baby. He would play with them and all.
But to parent on a day to day basis long term, I don’t think it was there.”
Id. at 49-50. On redirect examination, the following exchange occurred:
[DHS’ counsel:] . . . And even if the interaction between
father and the child was close, do you think that that
would cause irreparable harm to [L.F.] to have that bond
severed?
[Ms. Spencer:] No.
Id. at 55.
Damaris Oliveira, the current DHS caseworker, monitored visits
between the Children and both parents.3 Id. at 62. When asked if she
thought there would “be any irreparable harm if the parental rights were
terminated,” Ms. Oliveira replied, “No, I think it would be more better [sic]
mentally,” and that termination would provide stability. Id. at 67. Ms.
3
At the July 18, 2014 hearing, DHS’ attorney called her next witness as “the
current [case]worker, Miss Damaris.” N.T., 7/18/14, at 56. However, the
next line in the transcript is “(Witness not identified),” and the direct
examination begins without the witness’ stating her name or occupation on
the record. Id. at 56. We presume the witness was Damaris Oliveira, who
also testified at the August 25, 2014 hearing.
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Oliveira also stated the Children had “very strong” bonds with their foster
parents and call their foster mother “mom.” Id. at 66.
Jennifer Brereton, L.F.’s therapist, testified to the following. L.F. calls
Father “Dad” and knows he is his biological father. Id. at 76. The following
exchange occurred:
[Father’s counsel:] Did [L.F.] ever express any feelings
for his dad?
[Ms. Brereton:] He’s expressed anger about missed
visits.
Q. Has he ever expressed any kind of love for his
father?
A. Not, not that I recall.
Q. . . . [D]id [L.F.] ever appear upset if his father didn’t
come?
A. He’s been upset when both [parents] have no[t]
showed to the visits and there were no visits he’s become
upset.
Q. Okay. You’ve never observed his interaction with
his father?
A. I have not.
Id. at 76-77. When asked by DHS’ counsel whether she believed there
would be irreparable harm if the parental rights were terminated, Ms.
Brereton replied,
I’m not minimizing that it would be a significant stressor
but I believe in the current home and being in therapy
[L.F.] has enough support to (inaudible). I think with
what’s more damaging [sic] to [L.F.] right now is his
inconsistency—just about every session, honestly, [L.F.]
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says, what’s taking the judge so long, when I get an
answer [sic].
Id. at 77-78. Ms. Brereton further testified L.F. “definitely wants to be
adopted” and it was in his best interest to be adopted. Id. at 78.
The trial court, citing the above testimony of DHS caseworker Spencer,
found Father and the Children do not have a parent/child bond. Trial Ct. Op.
at 8 (citing N.T., 7/18/14, at 39, 49). The court recounted L.F.’s therapist
Ms. Brereton’s testimony that L.F. “never expressed any kind of love for his
Father.” Trial Ct. Op. at 8 (citing N.T., 7/18/14, at 76-77). With respect to
the younger child, J.F., we note that a careful review of the record has
revealed no specific testimony as to whether there was a bond between him
and Father. Nevertheless, the trial court noted, “Children barely know their
Father,” “Father missed 50% of his visits and never attended any of the
medical visits,” and “[n]ot visiting with their Father would bring emotional
stability to their lives.” Trial Ct. Op. at 8-9. However, as noted above, J.F.
was removed from Mother’s care when he was two months old, and by the
time DHS filed the termination petition, had spent two years and four
months in foster care. Furthermore, both caseworkers, Ms. Spencer and Ms.
Oliveira, opined termination would not cause irreparable harm to the
Children and was in the Children’s best interests. After careful review of the
record, we agree with the trial court that DHS established grounds for
termination under Subsection 2511(b). See 23 Pa.C.S. § 2511(b); In re
K.Z.S., 946 A.2d at 764 (stating in cases where there is no evidence of any
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bond between parent and child, it is reasonable to infer no bond exists).
For the foregoing reasons, we affirm the orders of the trial court
granting DHS’ petitions to terminate Father’s parental rights.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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Circulated 04/29/2015 04:12 PM
IN THE COURT OF COMMON PLEAS:!: ': ! . . .
FOR THE COUNTY OF PHILADELPHIA
FAMILY COURT DIVISION 70!1 1 DU 2u Ii\ II.' i·:J
In Re: In the Interest of J.R and LF. : CP-51-DP-0001582-2011 , , 'f ! : : ,.
CP-5 l-DP-0001583-201 l I ".I'
\ ·, \.) ! ' ' '
CP-5 l-AP-0000628-2013
CP-5 l-AP-0000629-2013
APPEAL OF: J.R., Father 2757 EDA 2014
2709 EDA 2014
OPINION
Fernandes, J.:
Appellant, J.R. ("Father"), appeals from the Orders entered on August 25, 2014, granting the
petition filed by the Department of Human Services of Philadelphia County ("DRS") to
involuntarily tenninate his parental rights to LF. ("Child #1") and J.R. ("Child #2") pursuant to the
Adoption Act, 23 Pa.CS.A. §2511 (a)(l), (2), (5), (8), and (b). Lisa M. Visco, Esquire, counsel for
Father, filed a timely Notice of Appeal with a Statement of Enors Complained Of pursuant to Rule
1925(b).
Factual and Procedural Background
DRS initially became involved with this family on January 29, 2007, when a General Protective
Services report ("GPS") alleging that R.F. ("Mother") tested positive for phencyclidine ("PCP") at
the time of Child #1 's birth (N.T. 7/18/14, pg. 15). Child #1 remained hospitalized due to his
exposure to drugs in utero. Mother admitted that she used cigarettes, alcohol, and cocaine on an
ahnost daily basis during her pregnancy with Child # !. The family subsequently stabilized and
DRS closed its case.
The family became involved with DRS again on June 6, 2011, when DRS received a GPS report
which alleged that Mother tested positive for PCP at the birth of Child #2 (N.T. 7/18/14, pg. 16).
Child #2's subsequent toxicology screen at the hospital was positive for PCP. Child #2 weighed
four pounds and eight ounces at the time of his birth.
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On July 18, 2011, DHS developed the Initial Family Service Plan ("FSP") and held a meeting (N.T.
7/18/14, pgs. 17-18). Father did not attend or otherwise participate in that meeting. At this time,
there were no objectives for Father (N.T. 7/18/14, pg. 18).
On August 9, 2011, DHS received a GPS report alleging that Mother was observed attempting to
push Child #2 into traffic (N.T. 7/18/14, pgs. 18, 25). Child #2 was in a stroller, but not strapped in,
and only wearing a one-piece infant undergarment. Mother was under the influence of PCP at the
time of the incident (N.T. 7/18/14, pgs. 18, 25). Following this incident, DHS obtained an Order of
Protective Custody ("OPC") for both children and placed them in foster care (N.T. 7/18/14, pg. 19).
At the time of children's placement, Father was minimally involved in their care. However, Father
was made aware of Mother's PCP abuse (N.T. 7/18/14, pgs. 24-26, 30-31). Father stated that he
was unable to care for the children because of his work schedule. On August 24, 2011, an
adjudicatory hearing was held for both children. The court adjudicated the children dependent and
committed them to DHS based on the present inability of parents (N.T. 7/18/14, pgs. 20-21). On
September 20, 2011, DHS revised the FSP. Children's goal was to return to
parent/guardian/custodian. Father's objectives were to visit children at the office of the placement
agency on a weekly basis, keep and maintain regular contact with children, meet regularly with the
agency social worker, participate in the Healthy Relationships Couples program with Mother, and
comply with the Individual Service Plan ("ISP"). Father attended the meeting and signed the
revised FSP. On November 29, 2011, DHS referred Father to the Achieving Reunification Center
("ARC") (N.T. 7/18/14, pg. 28). However, ARC deemed the referral inappropriate because Father
did not speak English, and as a result could not participate in the services provided by ARC.
Fmiher research by ARC revealed that all service goals for Father could be achieved at Casa de
Consejeria Y Salud Integral, Inc. ("CCSI") in Spanish. ARC refe!1'ed Father to CCSI on November
29, 2011.
On December I, 2011, the FSP was agam revised. The goal for children was to return to
parent/guardian/custodian and Father's objectives were to visit children at the office of the
placement agency on a weekly basis, keep and maintain regular contact with children, to meet
regularly with the agency social worker, to comply with the ISP, and attend services at CCSI.
Father attended the meeting and signed the FSP. The FSP was revised again on May 15, 2012 and
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on November 27, 2012. All of Father's objectives remained the same. Father attended and signed
the revised FSP (N.T. 7/18/14, pgs. 27-30). During the time the children have been in care, Mother
has resided on and off with Father.
In the ISP quarterly repo11s for the children from El Concilio for the period of May 7, 2013 through
August 7, 2013, it was noted that obstacles to reunification remained. It was also noted that there
were concerns about Father's ability to care for the children independently, set boundaries for
Mother and the children while Mother attempted to achieve and maintain sobriety, and ensure the
children's safety with and around Mother (N.T. 7/18/14, pg. 60). Father has stated that he is unable
to create boundaries for Mother throughout the life of this case. Father is unwilling to put the
children's needs before Mother's (N.T. 7/18/14, pgs. 36, 39-40, 69-70). Father also attended
parenting classes, but did not complete the program due to his work schedule. Father was given
twice a week supervised visits. Father only was able to visit once a week. When Father attends his
visits, Father is reluctant to work on activities, such as assisting Child # 1 with homework. Instead,
Father gives his cell phone to the children so they can play games on his cell phone instead of
spending quality time with his children. Father brings inappropriate foods for the children. Father
must be prompted to participate in daily care activities for his children, such as changing diapers
and setting boundaries. Father always had supervised visits. Father strnggles to take initiative in
interacting and maintaining the attention of his children. Child #I attends trauma focused therapy
once per week since November 2012. Child #1 becomes extremely upset when Father or Mother
miss visits. He has a lot of anxiety about parents' well-being. Father and Mother stopped attending
couples counseling. DHS had serious concerns about Father's ability to provide appropriate care
and supervision for his children independently. Although in the early part of the case, Father was
found substantially and fully compliant, at the last review healing on June 19, 2013, prior to DHS
filing the Goal Change/Tennination petition, Father was found minimally compliant. DHS filed
their Goal Change/Tennination petition on October 31, 2013. The trial comt tenninated Father's
parental rights on August 25, 2014. The bmTier for Father to reunify the children with him is his
inability to keep the children safe and protect them from Mother, along with providing appropriate
care.
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It should be noted that from a procedural standpoint, the trial comi announced its decision on
August 25, 2014, but the testimony as to Father was heard on July 18, 2014. The trial court
required DHS to make reasonable effo1is to provide notice to Mother; therefore, as to Mother only,
the termination hearing was continued to August 25, 2014. On August 25, 2014, the trial comi
found DHS made reasonable effo1is to serve Mother, but Mother chose not to appear for the Goal
Change/Termination hearing.
Discussion:
On appeal, Father raised the following issues:
1. Did the trial court commit an error of law and abuse of discretion by involuntarily
tenninating Father's parental rights under 23 Pa.C.S.A. §251 l(a), where the evidence showed
that Father substantially complied with the FSP goals established by DHS?
2. Did the trial court commit an error of law and abuse of discretion by involuntarily
terminating Father's parental rights under 23 Pa.C.S.A. §251 l(b), where DHS failed to prove
by clear and convincing evidence that involuntary terminating Father's parental rights would
best serve emotional needs and welfare of Children?
As to the first issue on appeal, the grounds for involuntary tennination of parental rights are
enumerated in the Adoption Act at 23 Pa.C.S.A. §2511(a). The Adoption Act provides the
following grounds for involuntary termination:
(a) General rule - The rights of a parent, in regards to a child, may be terminated after a petition is
filed on any of the following grounds:
(1) The parent, by conduct continuing for a period of at least six months innnediately preceding the
filing of the petition, has evidenced a settled purpose of relinquishing parental claim to a child or
has refused or failed to perfonn parental duties.
In proceedings to involuntary tenninate parental rights; the burden of proof is on the party seeking
tennination to establish by clear and convincing evidence of the existence of grounds for
tennination. /11 re Adoption o(Atencio, 539 Pa. 161, 650 A.2d 1064 (1994). To satisfy section
(a)(l), the moving paiiy must produce clear and convincing evidence of conduct sustained for at
least six months prior to the filing of the tem1ination petition, which reveals a settled intent to
relinquish parental claim to a child or a refusal or failure to perfonn parental duties. The standard
of clear and convincing evidence is defined as testimony that is so clear, direct weighty and
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convincing as to enable the trier of fact to come to a clear conviction without hesitance of the trnth
of precise facts in issue. !11 re D.J.S., 1999 Pa. Super. 214 (1999).
Father did not achieve all of his FSP objectives throughout the life of case, even though Father was
aware of his FSP objectives (N.T. 7/18/14, pgs. 26-33). At the last permanency review hearing on
June 19, 2013, before DHS filed their Goal Change/Termination petition, Father was found
minimally compliant with his FSP objectives. Father was offered twice a week supervised
visitation, but he only made it for one day a week (N.T. 7/18/14, pgs. 34, 63-64). Father missed 50
percent of his visits and never attended any of the medical visits, even though Father was invited
(N.T. 7/18/14, pgs. 63-64, 68). Father's visits were never changed from supervised to unsupe1vised.
Father never demonstrated his ability to keep the children safe from Mother (N.T. 7/18114, pgs. 34-
36). Father had to be redirected to pmticipate in the daily care activities for his children, such as
changing diapers and setting boundaries (N.T. 7/18114, pgs. 43-44) and (DHS Exhibit 45). Father
had to be redirected to bring appropriate foods to the visits (N.T. 7/18114, pgs. 37, 62-63). Father
and Mother stopped going to couples counseling (N.T. 7/18/14, pg. 43) and (DHS Exhibit 45). All
the se1vices were offered to help Father reunify with his children. The record establishes that DHS
provided and offered reasonable and adequate se1vices to remedy the conditions that brought the
children into care and throughout the life of this case, Father was offered documents and
interpreting se1vices in his native language, which is Spanish.
On October 31, 2013, DH;S filed the petition for termination. Since 2011, Father continuously fails
to perform his parental duties toward the children. Father's pattern of non-compliance continued
for at least six months prior to the filing of the termination petition, as established by the trial comt
pennanency review order from June 19, 2013. As a result, all the elements of the Adoption Act, 23
Pa.C.S.A. §251 l(a)(l) have been fully satisfied.
The Adoption Act at 23 Pa.C.S.A. §251 l(a)(2) also includes, as a ground for involuntary
termination of parental rights, the repeated and continued incapacity, abuse, neglect or refusal of the
parent that causes the children 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. This ground is not limited to
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affinnative misconduct. It may include acts of refusal to perform parental duties but more
specifically on the needs of the children. Adoption o(C.A. W., 683 A.2d 911, 914 (Pa. Super. 1996).
Co mis have further held that the implications of the parent's limited success with services geared to
remedy the bmTiers to effective parenting can also satisfy the requirements of §2511 (a)(2). !11 the
matter o(B.L. W., 843 A.2d 380 (Pa. Super. 2004), the court's grave concerns about the Father's
ability to provide the level of protection, security and stability that his children needed was
sufficient to warrant termination. Id. at 388.
Parent's lack of care and supervision of their children led to the children's dependency adjudication
and to their placement in foster care on August 24, 2011. Father had consistently failed and refused
to remedy the causes that brought children into care. Father is unable and unwilling to provide the
level of protection, security and stability that the children need. Because of Father and Mother's
relationship being on and off, and Father's knowledge that Mother has tested positive for PCP at
least 16 times tln·oughout the life of this case, Father is unable to protect children from Mother and
keep them safe (N.T. 7/18/14, pgs. 30, 36, 39-40, 59-60). Father continues to live with Mother at
the same address (N.T. 7/18/14, pg. 62). Father continuously puts the needs of the Mother before
the needs of the children (N.T. 7/18/14, pgs. 36, 69-70). Based on the testimony on the record, the
trial court had grave concerns about Father's ability to provide the level of protection, security, and
stability that the children need. For Father, the needs of the children were secondary to Mother's
needs. The children have been in placement for a period of thirty-six months (N.T. 8/25/14, pg. 23).
The children need permanency. Father is unable to remediate the causes that brought children into
care. DRS has met its burden under 23 Pa.C.S.A. §251 l(a)(2).
DRS also requested termination of parental rights under 23 Pa.C.S.A. §251 l(a)(5), whereby
children may be removed by court or voluntary agreement and placed with an agency at least six
months, conditions which led to the placement of the children continue to exist, the parent cannot or
will not remedy those conditions within a reasonable period of time, the services reasonably
available to the parent are not likely to remedy the conditions leading to placement, and tennination
best serves the children's needs and welfare.
DRS, as a child and youth agency, cam1ot be required to extend services beyond the period of time
deemed as reasonable by the legislature or be subjected to herculean efforts. A child's life cannot
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be put on hold in hope that the parent will summon the ability to handle the responsibilities of
parenting. /11 re J. T.. 817 A.2d 509 (Pa. Super. 2001 ). As a consequence, Pennsylvania's Superior
Cami has recognized that the children's needs and welfare requires agencies to work toward
termination of parental rights when a children has been placed in foster care beyond reasonable
temporal limits and after reasonable efforts for reunification have been made by the agency, that
have resulted unfruitful. This process should be completed within eighteen months. In re NW.,
851 A.2d 508 (Pa. Super. 2004).
The children have been in care for a period of thirty-six months (N.T. 8/25/14, pg. 23). Father
continues to be unable to sunl111on the ability to handle his responsibilities of parenting. Hence,
Father's lack of parental skills and minimal compliance with his FSP objectives compel this court to
conclude that children are no closer to be reunified with Father. The children's life carmot be put on
hold any longer in hope that the Father will remedy the conditions that led to placement within a
reasonable amount of time. Father was aware of his FSP objectives, but was unable to complete
them within thhiy-six months. Through the life of this case Father was never able to obtain
unsupervised visitation with his children because based on his supervised visits, Father was unable
to demonstrate that he had the capacity to parent (N.T. 7/18/14, pgs. 36, 43-44). For instance,
Father did not know how to change a diaper and Father had to be prompted to change Child #2's
diaper (N.T. 7/18/14, pg. 44). Father brought junk food to the visits, even after he was told not to
(N.T. 7/18/14, pgs. 62-63). The lack of pennanency for children takes an emotional toll on Child
#1. The main reason why Child #1 is in therapy is lack ofpemrnnency (N.T. 8/25/14, pgs. 20-21).
When there are periods of time when Child # 1 does not have visits from his parents, he seems to be
functioning really well and therapy progresses (N.T. 8/25/14, pg. 21). However, when the visits do
happen or are inconsistent Child #1 becomes confused and no progress happens in therapy (N.T.
8/25/14, pg. 21). Child #1 has even expressed anger towards Father when Father missed visits
(N.T. 7/18/14, pg. 76). Child #2 is not receiving therapy because he is only three years old (N.T.
8/25/14, pg. 20). The children have been in care for thitiy-six months. The needs and welfare of
the Children dictate that tennination and adoption would best serve their pennanency needs. DHS
met its burden under the Adoption Act, 23 Pa.C.S.A. §251 l(a)(5).
As to §251 l(a)(8) of23 Pa.C.S.A., DHS met its burden by clear and convincing evidence that the
children have been out of Father's care for twelve months or more, and the conditions leading to the
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placement still exist, and tennination would best serve the needs and welfare of the children. The
children have been continuously under DHS' custody for a period of thitty-six months (N.T.
8/25/14, pg. 23). The conditions that led to the children's placement still exist. Despite the good
faith efforts of DHS to make services available, it is in the best interest of the children to te1minate
Father's parental rights (N.T. 7/18/14, pgs. 39, 67, 78), (N.T. 8/25/14, pgs. 15-16, 18).
The trial comt will now consider Father's last issue on appeal, whether the termination of parental
rights would best serve the emotional needs and welfare of the children under 23 Pa.C.S.A.
§2511 (b). The party seeking tennination must prove by clear and convincing evidence that the
termination is in the best interest of the child. The best interest of the child is detennined after
consideration of the needs and welfare of the child, such as love comfort, security and stability. In
re Bowman, 436 Pa. Super. 647, A.2d 217 (1994). See also In re Adoption o[T.B.B.. 835 A.2d 387,
397 (Pa. Super. 2003). Pursuant to 23 Pa.C.S.A. §251l(b), the trial court must also consider what,
if any bond exists between Father and children. In re Involuntm)I Ter111i11atio11 of C. W.S.M. and
K.A.L.M.. 839 A.2d 410, 415 (Pa. Super. 2003). The trial comt must examine the status of the bond
to detennine whether its te1111ination "would destroy an existing, necessary and beneficial
relationship." In re Adoption o[T.B.B .. 835 A.2d 387 (Pa. Super. 2003). In assessing the parental
bond, the trial court is pennitted to rely upon the observations and evaluations of social workers. In
re K.Z.S., 946 A.2d 753,762-763 (Pa. Super. 2008). Under 23 Pa.C.S.A. §251 l(b), the rights of a
parent shall not be terminated solely on the basis of envit'onmental factors such as inadequate
housing, furnishings, income, clothing and medical, if found to be beyond the control of the parent.
The children will not suffer any irreparable harm by tenninating Father's parental rights (N.T.
7/18/14, pgs. 55, 67, 77), (N.T. 8/25/14, pgs. 15, 17, 23). Foster parents and children have a strong
parent/child bond (N.T. 7/18/14, pg. 66), (N.T. 8/25/14, pg. 23). Father and children do not have a
parent/child bond (N.T. 7/18/14, pgs. 39, 49), (N.T. 8/25/14, pg. 23). Child #1 has never expressed
any kind of love for his Father (N.T. 7/18/14, pgs. 76-77). The children continue to flourish in the
foster home and the children have bonded with the foster family (DHS Exhibit 45). Terminating
Father's parental rights would not destroy an existing necessary relationship between Father and
Child # 1 and Child #2. Children barely know their Father. Not visiting with their Father would
bring emotional stability to their lives (N.T. 7/18/14, pgs. 67, 74-75). Father missed 50 percent of
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his visits and never attended any of the medical visits, even though Father was invited (N.T.
7/18/14, pgs. 63-64, 68).
It is in the best interest of children to be adopted (N.T. 7/18/14, pgs. 39, 67, 78), (N.T. 8/25/14, pgs.
16, 18). DHS has provided reasonable services to Father. The trial comt has found reasonable
efforts at every pennanency review hearing. The comt detennined that the testimonies of the DHS
witnesses were credible. Additionally, the record clearly establishes that Father's parental rights are
being terminated due to his lack of non-compliance with his FSP objectives, no parent/child bond,
and no irreparable hatm would occur by tenninating Father's parental rights. Tenninating Father's
parental rights is not due to environmental factors. The children have been in placement for thirty-
six months and the children need permanency. Consequently, the trial comt did not err in
terminating Father's parental rights and changing the goal to adoption, it would best serve the
emotional needs and welfare of the children.
Conclusion:
For the aforementioned reasons, the comt finds that DHS met its statutory burden by clear and
convincing evidence regarding the termination of the parental rights pursuant to 23 Pa.C.S.A.
§251 l(a) and (b). The court also fmds that it will not cause irreparable harm to the children to sever
any bond, and it is in the best interest of the children since it would best serve the emotional needs
and welfare of the children.
Accordingly, the order entered on August 25, 2014, te1111inating the parental rights of Father, J.R.,
should be affirmed.
By the court .,
1~'-£>'-1~ ,~/~
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CERTIFICATE OF SERVICE
I hereby ce1tify that this court is serving a copy of this duly executed Order upon all
parties or their counsel on October 20, 2014, by regular mail and/or fax. The names and
addresses of all persons served are as follows:
Assistant City Solicitor Katherine Holland, Esq.
City of Philadelphia Law Department
1515 Arch Street, l 6 1h Floor
One Parkway Building
Philadelphia, Pennsylvania 19102-1595
Depaitment of Human Services
Lisa M. Visco, Esq.
1800 JFK Blvd. - Suite 300
Philadelphia, Pennsylvania 19103
Attorney for Father
Mary Cole, Esq.
1441 Sansom Street, 9th Floor
Philadelphia, PA 19103
Child Advocate
James Martin, Esq.
1800 JFK Blvd. - Suite 300
1424 Chestnut Street
Philadelphia, Pennsylvania 19103
Attorney for Mother
BY:~~ I?
Ana R. Melhor
Judicial Fellow
Hon. Joseph L. Fernandes
Judge Court of Conunon Pleas
First Judicial District of Pennsylvania
Family Division
Vine Street, Room 345
Philadelphia, Pa. 19103
Telephone: (215)-686-2660