In Re: J.H.G., Appeal of: J.D-G. ( 2023 )

J-A09045-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.H.G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.D-G., FATHER :
:
:
:
:
: No. 1445 MDA 2022
Appeal from the Decree Entered September 14, 2022,
in the Court of Common Pleas of Lancaster County,
Orphans' Court at No(s): 2022-01206.
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 8, 2023
In this matter, J.D.-G. (“Father”) appeals the decree entered by the
Lancaster County Orphans’ Court, which granted the petition filed by the
Lancaster County Children and Youth Social Services Agency (“Agency”) and
terminated Father’s rights to his two-year-old daughter, J.H.G. (“the Child”),
pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8)
and (b).1 After review, we affirm.
The record discloses the following factual and procedural history. The
family came to the Agency’s attention after the Child was born in January
2020 upon concern for the Child’s lack of prenatal care. At the Child’s birth,
Mother named Father as the other parent. Father was incarcerated at the
____________________________________________
1 Mother voluntarily relinquished her rights to the Child and is not a party to
these proceedings.
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time, but he reportedly acknowledged paternity. The Agency’s concerns were
temporarily allayed when Mother and the Child moved in with the Maternal
Grandparents.
Over the next several months, the Agency received reports of Mother’s
illicit drug use, lack of housing, and incarceration. In August 2020, the
juvenile court adjudicated the Child dependent. By the time the court held a
dispositional hearing in November 2020, Father had been released. However,
his whereabouts were unknown, and a bench warrant had been issued due to
a probation violation. The Agency was able to contact Father in January 2021,
but Father was unwilling to take a paternity test because of the outstanding
warrant. The court ordered the Agency to establish paternity. Father
ultimately complied, and his paternity was established in March 2021. His
first visit with Child occurred in April 2021.
In June 2021, the juvenile court combined its second permanency
review hearing with a dispositional hearing as to Father. Regarding Father,
the court ordered a permanency plan, which included the following goals:
maintain financial stability; maintain a home free and clear of hazards;
improve mental health functioning to the extent he could care for the Child;
remain crime free; remain clean and sober from illicit drugs and alcohol; and
remain free from domestic violence.
In its Pa.R.A.P. 1925(a) opinion, the orphans’ court summarized Father’s
minimal compliance with his permanency plan throughout the rest of the
dependency proceedings:
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As to Father’s mental health and drug and alcohol goals, the
court heard testimony that Father participated in a
biopsychosocial evaluation conducted by Lynn Appleby of
Jaskot Consulting on August 10, 2021. Ms. Appleby’s report
recommended that Father undergo anger management
classes, parenting classes, and that he enter an intensive
outpatient drug and alcohol treatment program with
ongoing outpatient care after his completion of the inpatient
program. Pursuant to the recommendations of the
biopsychosocial evaluation, Father was referred by the
Agency to Commonwealth Clinical Group (CCG) for domestic
violence classes and counseling. On September 10, 2021,
Father completed an intake evaluation at CCG, and it was
recommended that he participate in a batterer’s intervention
group, individual therapy, complete a drug and alcohol
evaluation, and attend a parenting program. The Agency
was also working with Father to identify appropriate
providers and make referrals in order to complete the
additional recommendations from the biopsychosocial
evaluation report as well as the recommendations from CCG
intake evaluation.
Pursuant to the recommendations, on November 19, 2021,
the Agency made a referral to CCG for Father to participate
in individual mental health therapy and anger management
treatment. Father scheduled an intake appointment for
those specific therapeutic interventions with CCG for
December 16, 2021. He canceled the December 16, 2021
appointment and scheduled the intake appointment for
December 27, 2021, which Father again cancelled. Father
rescheduled two additional appointments, neither of which
he attended. He was a no-show on December 30, 2022,
and January 10, 2022. Father was subsequently discharged
from CCG.
Father was also referred to PA Counseling for drug and
alcohol treatment on November 19, 2021. He failed to
attend his November 26, 2021 intake appointment, and was
then put on a wait list and asked to call weekly for
availability. Father reported that he did not want to wait for
PA Counseling and requested the Agency refer him to
another provider. On February 11, 2022, Father was
referred to Blueprints for drug and alcohol treatment. He
was required to schedule his intake appointment but never
contacted them. He also had not been drug screened since
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August 10, 2021, and he had either failed to comply or show
up to attempted drug screens on October 29, 2021,
November 5, 2021, November 19, 2021, December 10,
2021, January 1, 2022, and April 1, 2022.
Regarding Father’s employment goal, he reported that he
was hired at Distinctive Detail of Manheim on January 24,
2022. However, Father later reported that he no longer
worked there. At the time of the [termination] hearing, he
was not employed.
Regarding his housing goal, Father provided the Agency
with a copy of his lease agreement for a single room unit
with a communal bathroom. The Agency reported this was
not a residence which the Child could return to, and Father
reported he was still looking for an appropriate apartment.
Regarding his crime free goal, Father was put on house
arrest on January 13, 2022, which ended on April 13, 2022.
He was supervised on two separate criminal dockets.
During the review period, he did not receive any new
charges or probation/parole violations. [2]
Regarding Father’s commitment to the Child, he attended
his first visit with the Child on April 23, 2021. Due to
multiple no-shows/no-calls, Father signed an agreement
requiring that he call the Agency at least two hours prior to
visit to confirm his attendance. During the review period,
he ended his visits early on November 18, 2021, and
February 4, 2022. He failed to confirm his attendance on
November 19, 2021, December 3, 2021, January 7, 2022,
January 14, 2022, January 28, 2022, February 11, 2022,
and March 4, 2022, and thus, the visits did not occur. He
canceled visits due to a schedule conflict or illness on
December 3, 2021, December 6, 2021, December 30, 2021,
January 21, 2022, March 18, 2022, March 25, 2022, and
April 1, 2022. On February 25, 2022, Father was referred
to Bethanna Visitation Services to allow him the opportunity
to have community visits as he had requested. He had not
yet had a visit at Bethanna due to cancelling scheduled visits
on March 18, 2022, March 25, 2022, and April 1, 2022. In
general, the Agency reported that Father was inconsistent
____________________________________________
2 On May 28, 2022, approximately three weeks before the termination
proceedings, Father was charged with simple assault.
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regarding his communication and cooperation with the
Agency.
Subsequently, a permanency review hearing was held on
April 27, 2022. The court found that there had been minimal
compliance with the permanency plan and minimal progress
toward alleviating the circumstances necessitating the
Child’s placement as to Father and progress on all goals was
ongoing.
Orphans’ Court Opinion, 9/14/22, (O.C.O.) at 4-6 (footnote added).
The Agency filed the termination petition on May 11, 2022. The orphans’
court held a hearing as to Father on July 18, 2022; Mother had voluntarily
relinquished her rights in June. The court granted the Agency’s petition and
entered a decree terminating Father’s rights, pursuant to Section 2511(a)(1),
(2), (5), (8) and (b).
Father timely filed this appeal.3 He presents the following issues for our
review:
1. Whether the Agency produced clear and convincing
evidence to terminate Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8).
2. Whether the best interests and welfare of the Child
would be served by termination of Father’s parental
rights[, pursuant to 23 Pa.C.S.A. § 2511(b)].
Father’s Brief at 8.
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
____________________________________________
3 The decree was dated July 19, 2022; however, the decree was evidently not
filed until September 14, 2022. Father filed a timely notice of appeal on
October 13, 2022.
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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
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 court 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).
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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
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).
Therefore, we review Father’s first appellate issue regarding the
termination of his rights under Section 2511(a)(2), which provides:
(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:
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[…]
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied by the parent.
23 Pa.C.S.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted).
Parents are required to make diligent efforts toward the reasonably prompt
assumption of full parental duties. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010). We note that the grounds for termination are not limited to
affirmative misconduct like abuse but concern parental incapacity that cannot
be remedied. See id.Instantly, the orphans’ court determined that the Agency met its burden
under Section 2511(a)(2) for the following reasons:
Father’s lack of progress on the key objectives of his plan,
as well as his current incarceration and pending criminal
charges illustrate that he will not be ready to parent the
Child within the next six months. He has not completed the
objectives set out by the Agency, and he has not
demonstrated the commitment to follow through with the
recommended mental health care from his two evaluations.
The court believes the 17-month period since Father’s
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paternity was confirmed shows an incapacity to care for his
Child that has not been remedied, nor can it be in the
immediate future. Therefore, this court finds that the
Agency proved by clear and convincing evidence that
termination of Father’s parental rights is warranted under
Section 2511(a)(2).
O.O.C. at 13-14.
On appeal, Father first takes issue with the court’s reliance on
timeframes. He argues that his paternity was not established at the beginning
of the Child’s dependency case, and thus he maintains that he was not
afforded a 17-month period to demonstrate his ability to parent. Father
reasons that because his paternity was only established in March 2021 and
that his permanency plan goals were not approved until June 2021, Father
had less than a year to demonstrate his parental capacity before the Agency
filed the termination petition in May 2022. See Father’s Brief at 19-20.
We are not persuaded by this argument. Unlike subsections (a)(1), (5),
and (8), Section 2511(a)(2) does not impose qualifying time constraints.
Instead, the Agency must demonstrate that parental incapacity, abuse,
neglect, or refusal was repeated and continued; and that the same cannot or
will not be remedied. Moreover, the court is not forbidden from considering
Father’s actions or inaction after the filing of the termination petition. Thus,
even if we agreed with Father’s temporal argument – that the clock should
not have started ticking until June 2021 (when he was put on notice of the
court’s expectations), Father still had 13 months (from June 2021 until the
termination hearing in July 2022) to demonstrate his resolve to reunify with
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the Child. The orphans’ court did not err or abuse its decision when it
concluded that enough time had elapsed for it to render sufficient findings.
Father also argues that the Agency failed to provide sufficient evidence
of his inability or refusal to parent. Father argues that while some of his
permanency goals were incomplete, there was no basis that these goals
should have been instituted in the first place. Moreover, Father claims that
his lack of housing or consistent employment should not have been factors in
the court’s analysis. See Father’s Brief at 20-21.
We are not persuaded by this argument, either. Father is correct that
termination will not be warranted solely on the basis of environmental factors,
like inadequate housing or income. See 23 Pa.C.S.A. § 2511(b). However,
lack of housing or employment were not the primary reasons for the orphans’
court’s decision. Rather, the orphans’ court’s determination was based on the
fact that Father never followed through with any of the recommended courses
of action, whether it be drug and alcohol treatment, mental health treatment,
or visitation. Although the record suggests that Father was sometimes
proactive in his participation in his permanency plan – as evidenced by his
intention to seek a new drug treatment provider rather than be confined to a
waitlist – the record also indicates that this was as far as Father would go. He
would schedule intake appointments, but then not participate thereafter.
We also find unpersuasive Father’s argument that his goals were
unnecessary. Father relies on the fact that he participated in one drug and
alcohol evaluation, which did not recommend that he receive treatment.
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Notably, the Agency did not participate in that evaluation, but Father
maintains that, at the termination hearing, the Agency could not say what
information it would have given to the evaluator to make her change her mind.
See Father’s Brief at 21. Be that as it may, Father participated in another
evaluation during the same month - one that the Agency was able to
participate in – and that evaluator did recommend Father receive drug
treatment.
To that end, we reiterate that our appellate court function is merely to
review the record to see if the evidence supports the lower court’s conclusions;
it is not our role to search the record for contrary facts or substitute our
judgment for that of the lower court. See also Interest of S.K.L.R., 265
A.3d at 1124. In reviewing this record, we discern no error or abuse of
discretion. The orphans’ court properly determined that the Agency met its
burden under Section 2511(a)(2).
Having discerned no error or abuse of discretion as to the first prong of
the bifurcated termination analysis, we next address the trial court’s findings
under Section 2511(b), which Father challenges in his second appellate issue.
That Section provides:
(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
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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).
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)).
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“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
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).
The orphans’ court explained its reasoning for finding that the Agency
also met its burden under Section 2511(b):
The court heard testimony during the termination of
parental rights hearing regarding the Child’s stability in her
placement, and the ability of the resource family to provide
for comfort and the care for the Child’s basic needs. The
Child was placed in a kinship resource with her maternal
half-sibling who had been previously adopted by the
[Kinship Family]. The Child was placed in the home in [late
November] 2020 when she was six months old. Since
placement, the Agency reported that she has been doing
well with her resource family. The Agency caseworker
testified that she sees her foster parents as [her mom and
dad], she’s very comfortable and affectionate around them,
and she seeks them out for comfort whenever she needs.
She has been getting regular well[ness] checks and is up to
date on her vaccines. Additionally, she was evaluated with
Early Intervention and received physical therapy as well as
speech/social/emotional therapy. The resource mother
reported that the Child had completed physical therapy in
September 2021 and remains in the tracking program with
Early Intervention. The Child also maintains contact with
her maternal grandparents, who provided childcare early in
the Child’s life, but were unable to be a permanent
placement option. [The guardian ad litem (GAL)] stated that
she agreed with the Agency’s request to terminate Father’s
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parental rights. She further stated that the Child is with a
family that loves her, she considers them her parents, and
it would not be fair to put the Child’s life on hold while Father
continues to work out his issues with domestic relations and
involvement in the criminal justice system.
The court did not hear testimony regarding the Child’s
attachment to Father. However, the young age of the Child,
the lack of contact with Father since the Child’s birth clearly
illustrate that there has not been an opportunity for the
Child to develop a meaningful attachment with Father.
Since Father was given a plan, he failed to maintain
consistent contact with the Agency and would routinely
either cancel his visits or simply fail to appear for the visits.
Although it was reported that Father was affectionate and
played with the Child well, his sporadic attendance, and his
periods of incarceration during the Child’s life, have made it
virtually impossible for him to develop a parental bond with
his Child. Give the Child’s young age, and the importance
of the early years in a Child’s life, particularly the
importance of establishing parental relationships, the Court
finds that the Child does not have an attachment to Father.
The Court also finds that it is not likely that Father would be
able to establish a meaningful attachment with the Child
soon, especially given his failure to take advantage of the
visitation, particularly community visits, offered during his
short period at Bethanna Visitation Services. At present,
the Child’s welfare is best served by terminating the
parental rights of Father.
O.O.C. at 15-17.
On appeal, Father presents a narrow challenge, namely that the
orphans’ court conflated the Section 2511(a) analysis with the Section
2511(b) analysis. Father explains that the only evidence supporting
termination under Section 2511(b) was “limited to one paragraph of testimony
by the caseworker,” who testified about the relationship between the Child
and the Kinship Family. The caseworker stated that termination would be in
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the Child’s best interest because Father demonstrated that he was not able or
willing to comply with the plan. See Father’s Brief at 24 (citing N.T., 7/18/22,
at 25). According to Father, evidence of his compliance with the permanency
plan, or lack thereof, was relevant only to the 2511(a) analysis – and that the
Section 2511(b) analysis required an entirely different inquiry. Id. Father
concludes that the Agency failed to meet its burden.
We disagree. We acknowledge that these analyses differ in their focus;
Section 2511(a) concerns the conduct of the parent, whereas Section 2511(b)
focuses on the needs and welfare of the Child. See C.M.K., 203 A.3d at 261-
62. But Father fails to appreciate how his conduct (relevant to Section
2511(a)) affects the Child’s needs and welfare (relevant to Section 2511(b)).
For instance, because of Father’s conduct – e.g., his inability to provide
parental care and his failure to visit the Child – the Child developed a primary
attachment to the Kinship Parents. The evidentiary record of Father’s conduct
also reveals the Father’s failure to provide the Child with the those
“intangibles” at the center of the Section 2511(b) inquiry – i.e., stability,
security, love, and comfort. Given Father’s conduct, the orphans’ court could
properly find that the Kinship Parents – not Father – met the Child’s needs
and welfare, and that termination would not sever any parental bond worth
preserving. Thus, although the focus of these statutory inquiries is different,
they stem from the same factual predicate. Father’s second appellate issue
merits no relief.
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In sum, upon review of the orphans’ court’s decision to terminate
Father’s parental rights under Section 2511(a)(2) and (b), we discern no error
or abuse of discretion.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2023
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