In the Int. of: C.P., Appeal of: T.P. ( 2023 )

J-S07016-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.P., FATHER :
:
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: No. 2460 EDA 2022
Appeal from the Order Entered September 14, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-DP-0000806-2018.
IN THE INTEREST OF: C.C.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: T.P., FATHER :
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:
:
: No. 2461 EDA 2022
Appeal from the Decree Entered September 14, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-AP-0000758-2021.
IN THE INTEREST OF: C.P., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.P., FATHER :
:
:
:
:
: No. 2462 EDA 2022
J-S07016-23
Appeal from the Order Entered September 14, 2022,
in the Court of Common Pleas of Philadelphia County,
Juvenile Division at No(s): CP-51-DP-0001237-2019.
IN THE INTEREST OF: C.T.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: T.P., FATHER :
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:
:
: No. 2463 EDA 2022
Appeal from the Decree Entered September 14, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000759-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 17, 2023
T.P. (Father) appeals the decrees issued by the Philadelphia County
Court of Common Pleas, which terminated his rights to his five-year-old son,
C.C.P., and his four-year-old daughter, C.T.P. (the Children), pursuant to the
Adoption Act. See 25 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), (b). Father also
challenges the trial court’s decision to change the goal of the Children’s
respective dependency cases, from reunification to adoption.1 After review,
we affirm the termination decrees and dismiss Father’s goal change appeals
as moot.
____________________________________________
1The trial court also terminated the rights of M.B. (Mother) and likewise issued
goal change orders. See 2512, 2513, 2514, and 2515 EDA 2022. Mother’s
appeal is separately listed before this panel.
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In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
thoroughly set forth the following factual and procedural history:
[…] DHS first became aware of this family on February 27,
2016, when it received a general protective services (GPS)
report indicating concerns for the safety of the Children’s
older sibling and parent’s drug activity. The report indicated
concerns for the older sibling’s hygiene and food intake,
Mother’s use and abuse of Xanax and Percocet, and the
family’s living conditions. Based on this report, Community
Umbrella Agency (CUA) Tabor Community Partner services
were implemented in-home for the family until October 16,
2017, when it was determined that the family was
stabilized.
[In March 2018], following the birth of C.C.P., DHS received
a GPS report which alleged Mother tested positive for
benzodiazepine, marijuana and opiates at the birth of C.C.P.
C.C.P. also tested positive for benzodiazepine and
marijuana at birth. Mother was not prescribed the
medication and admitted to taking Xanax, Percocet and
marijuana every other day. Mother also admitted that she
last used drugs […] two days prior to the birth of C.C.P.
When Father was present at the hospital, the room smelled
of marijuana and he appeared under the influence of drugs
and/or alcohol. Father was walking unsteadily, falling,
slurring his words, and exhibiting inappropriate behavior.
Following the birth of C.C.P., Father and Mother continued
to visit the hospital under the influence of drugs and neither
[was] engaged in drug and alcohol treatment. On April 8,
2018, DHS obtained an order of protective custody (OPC)
for C.C.P. and placed him into the care of [Maternal
Grandmother]. FN3
FN3: C.C.P. was placed together with his older sibling at
the [Maternal Grandmother’s] home.
The adjudicatory hearing was held on April 19, 2018
whereby this court adjudicated C.C.P. dependent based on
[the] present inability of parents to provide proper parental
care and control, and C.C.P. was fully committed to DHS.
[In July 2019, C.T.P. was born.] [On the day of the birth],
DHS received another GPS report stating that Mother had
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given birth and tested positive for benzodiazepines,
marijuana, and oxycodone. C.T.P. tested negative for those
substances, however, C.T.P. was showing withdrawal
symptoms which led to the hospital keeping C.T.P. for
observations. Mother and Father appeared to be under the
influence of drugs when they arrived at the hospital. They
were unable to speak coherently, and Mother did not recall
the date or year. A few days later, DHS spoke with Maternal
Grandmother who stated that Mother was active in her drug
use and not receiving treatment. [In July 2019], DHS
obtained an OPC, and placed C.T.P. in care with [Maternal
Grandmother]. The adjudicatory hearing was held on
August 22, 2019 whereby this court adjudicated C.T.P.
dependent based on the present inability of parents to
provide parental care and control, and C.T.P. was fully
committed to DHS.
Throughout the life of this case, Father’s single case plan
objectives have remained essentially the same. Father was
referred to the Clinical Evaluation Unit (CEU) for a forthwith
drug screen, an assessment, monitoring, and three random
drug screens. He was also ordered to: 1) attend a substance
abuse treatment program; 2) attend Achieving Reunification
Center (ARC) or another agency for housing, employment
assistance, and parenting education classes; 3) attend
weekly supervised visits with the Children at the agency;
and 4) attend a domestic violence counseling program. FN4
FN 4: Domestic violence was added as an objective after
Mother and Father engaged in a fight during a visit.
At the relevant goal change [and termination] hearing, the
former CUA case manager supervisor, Tenessa Overton,
testified that she had been the supervisor on the case from
March of 2018 until January of 2020. She stated that Father
was incarcerated twice over the course of her supervision.
Father testified that he was incarcerated from on or about
August 15, 2020 until December 4, 2020, and then against
from on or about July 29, 2021 until May 28, 2022. FN5
FN 5: On August 17, 2020, Father was arrested and
charged with aggravated assault, strangulation, simple
assault, reckless endangering another person, criminal
trespassing, burglary, and two counts of criminal
mischief. The complainant was Mother. On July 27,
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2021, Father was arrested and charged with
manufacture, delivery, or possession of a controlled
substance with the intent to manufacture or deliver and
intentional possession of a controlled substance by a
person not registered. Father was incarcerated for
approximately 412 days. Children are three years old
and four years old, respectively.
Father further stated that he currently has an open criminal
case for aggravated assault. FN6
FN 6: Father testified that these charges relate back to
August 15, 2020. He is currently in the trial phase.
Prior to his incarceration, Ms. Overton testified that Father
only attended one drug screen in June of 2019 that came
back positive for benzodiazepines and marijuana. CUA case
manager, Sakeena Sidq, was assigned this case in January
of 2022. She testified that Father completed the forthwith
and two out of the three random drug screens. Those
screens came back positive for marijuana and Father did not
provide Ms. Sidq with a medical marijuana card. Ms.
Overton testified that Father was inconsistent with his drug
and alcohol treatment. Ms. Sidq futher testified that Father
has been offered 25 out-patient sessions through Northeast
Treatment (NET) Centers but attended only 13 sessions and
missed 12. Two of the screens came back positive for only
THC, one was negative, and then one was positive for THC
and alcohol. Father continues his drug treatment at the
NET.
Over the life of the case Father’s housing situation has been
inconsistent. FN7
FN 7: Ms. Overton testified that throughout her time on
the case, Father lived with different family members and
never had a place of his own.
Ms. Sidq testified that Father completed ARC’s housing
program and was in the process of obtaining housing as
recommended by ARC but currently lives with a family
member. As for Father’s employment objective, Father
testified that he is employed through a temp agency called
HireQuest. Ms. Sidq stated that she was able to verify
Father’s employment through his paystubs. Additionally,
Ms. Sidq verified that Father was enrolled in ARC parenting
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classes and only had two more classes to complete. As for
Father’s domestic violence component, Ms. Sidq testified
that she was unaware if Father completed a program.
With regard to Father’s visitation objective, Ms. Overton
testified that visits never progressed passed supervised at
the agency. She stated that there were domestic violence
issues with the parents during a visit resulting in the
separation of their visits. [Footnote omitted]. She further
agreed that Father was consistent with visitation in-between
his periods of incarceration. Father also testified that he
called daily to speak with the Children while he was
incarcerated. Ms. Sidq further elaborated on Father’s
visitation status since being released from prison and stated
his visits are held weekly supervised at the agency for an
hour. Father has been offered ten visits since his release
and attended eight. Father testified that during the visits
with the Children he engages with them through play and
tries to teach them some fundamentals.
The CUA case manager also testified about the relationship
and bond that the Children share with their pre-adoptive
families. Ms. Sidq testified that C.C.P. has been in care now
for his whole life for four and a half years since birth. C.C.P.
looks at his Maternal Aunt as his mother and her husband
as a father. C.T.P. has been in care for three years, since
birth as well. Ms. Sidq stated that C.T.P. has been in her
current placement for over 18 months. FN8.
FN 8: C.T.P. has been in her current placement since
March of 2021 with Paternal Cousin.
Ms. Sidq testified that C.T.P. looks to her Paternal Cousin as
a mother. She further stated that C.T.P. has some
attachment issues from being moved and not having a
consistent caregiver or her biological parents since birth.
The current kinship parents are willing to be adoptive
resources for the Children. Additionally, Ms. Sidq testified
that the Children would not suffer any harm from
terminating Mother’s and Father’s parental rights and that
she believes it is in the best interest of the Children to
change the goal to adoption.
At the conclusion of the hearing, the Court issued a decree
involuntarily terminating Father’s parental rights and
changing the permanency goal to adoption pursuant to 23
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Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and finding in
accordance with 23 Pa.C.S.A. § 2511(b) that such
termination best serves the developmental, physical, and
emotional needs and welfare of the [Children].
Trial Court Opinion (T.C.O.), 12/14/22, at 1-6 (citations to the record and
some footnotes omitted) (style adjusted).
Father timely filed this appeal. He presents the following issues for our
review:
1. Did the trial court rule in error that DHS met its burden
of proof warranting the termination of Father’s
parental rights?
2. Did the trial court rule in error that the termination of
Father’s rights would best serve the needs and welfare
of the Children?
3. Did the trial court rule in error that the goal be
changed to adoption?
4. Did the trial court rule in error that it was in the best
interest of the Children to change the goal to
adoption?
Father’s Brief at 7 (cleaned up).
We begin with our well-settled standard of review:
The standard of review in termination of parental rights
cases requires appellate courts to accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. A
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. The trial court's
decision, however, should not be reversed merely because
the record would support a different result. We have
previously emphasized our deference to trial courts that
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often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Our Supreme Court has repeatedly stated that in termination cases,
deference to the trial court is particularly crucial. In re Adoption of L.A.K.,
265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108,
1124 (Pa. 2021) (“When a trial court makes a ‘close call’ in a fact-intensive
case involving…the termination of parental rights, the appellate court should
review the record for an abuse of discretion and for whether evidence supports
that trial court’s conclusions; the appellate could should not search the record
for contrary conclusions or substitute its judgment for that of the trial court.”).
The abuse-of-discretion standard in termination cases “is a highly deferential
standard and, to the extent that record supports the court’s decision, we must
affirm even though evidence exists that would also support a contrary
determination.” In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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
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2511(b): determination of the needs and welfare of the
child[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence 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
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
Critically, we may uphold a termination decision if any proper basis
exists for the result reached. C.S., 761 A.2d at 1201. We need only agree
with the orphans’ court as to any one subsection of Section 2511(a), as well
as Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
We therefore review Father’s appeal under Section 2511(a)(8) and (b),
which provide:
(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:
[…]
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led
to the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
[…]
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(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)(8), (b).
To terminate parental rights under Section 2511(a)(8), the petitioner
must prove: (1) the child has been removed from parental care for 12 months
or more from the date of the removal; (2) the conditions which led to the
removal or placement of the child continue to exist; and (3) termination of
parental rights would best serve the needs and welfare of the child. In re
K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted).
With respect to any petition filed pursuant to subsection (a)(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(b). 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 the
placement, or the availability or efficacy of the services provided by the local
children and youth agency. K.Z.S., 946 A.2d at 759 (citation omitted).
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In its Rule 1925(a) opinion, the trial court set forth its reasons for
granting termination under this subsection:
C.C.P. has been in care for over four years. C.T.P. has been
in care for over three years. The Children were removed
from Mother and Father’s care due to substance abuse and
the lack of appropriate housing. Since that time, Father was
incarcerated for over a year and remained in minimal
compliance for over three years. After being released from
prison, Father began to comply with his single case plan
objectives […] however, Father still lacks appropriate
housing, continues to test positive on drug screens and has
not engaged in a domestic violence program. Additionally,
Father has an open criminal case that he is awaiting trial for
aggravated assault charges. As a result, this Court is
uncertain when Father will be able to remedy the conditions
which led to the placement of his Children. The evidence
clearly established that termination and adoption would be
in the best interests of the welfare of the Children. They
have a strong bond with their [respective pre-adoptive
resources]. Thus, this court properly terminated Father’s
parental rights pursuant to [Section 2511(a)(8)].
T.C.O. at 12-13 (citations to the record omitted) (style adjusted).
In his Brief, Father maintains DHS failed to meet its burden. For
support, he relies on our precedents confirming that incarceration, alone, will
not result in termination. See Father’s Brief at 29 (citing In re R.I.S, 36 A.3d
567, 574 (Pa. 2011) (“We state emphatically that this Court has never adopted
or countenanced a view that incarceration alone is per se evidence of parental
incapacity or that it represents appropriate and sufficient grounds for the
involuntary termination of parental rights.”)). Father also cites the Adoption
Act’s prohibition against terminating parental rights based on “environmental
factors such as inadequate housing, furnishings, income, clothing and medical
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care if found to be beyond the control of the parent.” Id. (citing 23 Pa.C.S.A.
§ 2511(b)). Finally, Father cites all the steps he has undertaken to satisfy his
single case plan objectives, which include participation in parenting classes
and drug treatment, applying for housing, and visiting the Children.
Upon review, we conclude Father’s arguments merit no relief. The trial
court did not terminate his rights solely because Father was incarcerated,
faces incarceration again, or failed to secure appropriate housing. Rather,
these were simply relevant factors in the court’s overall Section 2511(a)(8)
analysis, which inquires whether the conditions that led to removal continue
to exist after 12 months. We cannot ignore the fact that the Children’s
dependency cases lasted three and four times as long as the statutory
timeframe provides. And still, the conditions which led to the Children’s
removal continued to exist. Given the length of time the Children have been
without Father’s care, his current willingness or ability to remedy those
conditions are no longer part of the termination analysis. Additionally, we
observe the court’s finding that Father has been minimally compliant
throughout the history of this case, and that his single case plan remains
largely unfulfilled.
In reaching our conclusion, we reiterate that it is not the function of this
Court to search the record for evidence that would support a contrary result.
See S.K.L.R., 265 A.3d at 1124. “Not only are our trial judges observing the
parties during the hearing, but usually, as in this case, they have presided
over several other hearings with the same parties and have a longitudinal
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understanding of the case and the best interests of the individual child
involved[.]” Id. (quoting R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)). Our role is
simply to review the record for an abuse of discretion and for whether the
evidence supports the trial court’s conclusions. Id.Having concluded that the trial court properly determined that DHS
established the first two prongs of the Section 2511(a)(8) analysis, we must
address the court’s conclusions under the third element: whether termination
best served the needs and welfare of the Children. This analysis is
substantially similarly to the analysis under Section 2511(b). Therefore, we
address Father’s challenge to this element of the Section 2511(a)(8) analysis
contemporaneously with his challenge to the court’s determinations under
Section 2511(b).
Both analyses consider “intangibles such as love, comfort, security, and
stability.” In re I.J., 972 A.2d 5, 12 (Pa. Super. 2009) (citation omitted). The
court “must also discern the nature and status of the parent-child bond, paying
close attention to the effect of permanently severing the bond.” I.J., 972 A.2d
at 12 (citation omitted). In performing a “best interests” analysis:
The court should also consider the importance of continuity
of relationships to the child, because severing close parental
ties is usually extremely painful. The court must consider
whether a natural parental bond exists between child and
parent, and whether termination would destroy an existing,
necessary and beneficial relationship. Most importantly,
adequate consideration must be given to the needs and
welfare of the child.
Id. (citations omitted).
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This Court has explained further:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
bond to be too attenuated). Moreover, the court is not required to use expert
testimony to resolve the bond analysis. In re Z.P., 994 A.2d 1108, 1121
(citing In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)).
“Common sense dictates that courts considering termination must also
consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” T.S.M., 71 A.3d at 268. Finally, we
emphasize that “[w]hile a parent’s emotional bond with her and/or her child
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is a major aspect of the Section 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the court when
determining what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
Here, we reiterate that the trial court determined that termination would
best serve the Children’s interest under Section 2511(a)(8), given their
attachment to their pre-adoptive kinship caregivers. See T.C.O. at 13. In its
analysis of Section 2511(b), the trial court expounded upon its conclusions:
In the instant matter, this court determined the Children
would not suffer irreparable harm if Father’s parental rights
were terminated. There was compelling testimony that the
Children would not suffer harm if Father’s parental rights
were terminated and that the Children were significantly
bonded with their kinship parents. Father has remained
minimally compliant throughout the majority of this case
and continues to lack appropriate housing to care for the
Children. The testimony demonstrated that the Children’s
primary bond is with their pre-adoptive resources.
Additionally, the testimony demonstrated that the Children’s
kinship resources meet all of their medical and emotional
needs. In determining that termination would best serve
the needs and welfare of the Children, this court considered
that Father has not been able to meet the Children’s
emotional, physical, and developmental needs for over
three years prior to the termination hearing.
T.C.O. at 14 (citations to the record omitted).
On appeal, Father argues that he maintained regular visitation with the
Children. He also claims that DHS failed to supply sufficient evidence of a lack
of bond between him and the Children. See Father’s Brief at 31-33, 34-36.
We reiterate that the lack of evidence of a bond between a parent and child,
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allows a trial court to reasonably infer that no bond exists. K.Z.S., 946 A.2d
at 762-63. Upon review of the record, such an inference was reasonable in
this case. Moreover, the bonding analysis is just one as aspect of the Section
2511(b) analysis. Father has been unable to meet the Children’s needs and
welfare for years. They have lived outside of his care for most of their lives.
As a result, their primary attachments are to their respective pre-adoptive
kinship parents. For these reasons, we discern no err or abuse of discretion
with the court’s determination that DHS met its burden under Section
2511(b).
In sum, we conclude that the trial court did not err or abuse its discretion
when it granted the request of DHS to terminate Father’s rights pursuant to
Section 2511(a)(8) and (b). Father’s first and second appellate issues are
without merit. Father's remaining appellate issues concern the trial court’s
decision to change the goal of the dependency cases from reunification to
adoption. Because we have concluded that termination was warranted, we
dismiss these challenges as moot. See Interest of D.R.W., 227 A.3d 905,
917 (Pa. Super. 2020) (“An issue before a court is moot if in ruling upon the
issue the court cannot enter an order that has any legal force or effect.”).
Decrees affirmed. Appeals concerning the goal change orders
dismissed.
Judge King joins the memorandum.
Judge Dubow did not participate in the consideration or decision in this
case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2023
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