In Re: B.T.F., a Minor Appeal of: M.M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.T.F., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: M.M., FATHER : No. 839 MDA 2020
Appeal from the Decree Entered May 21, 2020
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No: 2019-02489
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 16, 2020
M.M. (“Father”) appeals from the decree entered May 21, 2020, which
terminated involuntarily his parental rights to his son, B.T.F. (“Child”).1 After
careful review, we affirm.2
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* Retired Senior Judge assigned to the Superior Court.
1The orphans’ court entered a separate decree terminating the parental rights
of Child’s mother, K.F. (“Mother”). Mother appealed at Superior Court docket
number 857 MDA 2020. We address her appeal in a separate memorandum.
2 The orphans’ court based its order in part on information contained in Child’s
dependency record. While the court incorporated the dependency record as
part of the termination proceedings, it did not enter a copy of the record as
an exhibit, and Father did not appeal from any dependency orders. Thus, this
Court did not receive the dependency record to review for this appeal. For
the reasons discussed below, however, the evidence was sufficient to support
the court’s decision, even in the absence of the dependency record. We also
note that it was Father’s responsibility to ensure that the record before this
Court was complete. See Pa.R.A.P. 1921, Note (“All involved in the appellate
process have a duty to take steps necessary to assure that the appellate court
has a complete record on appeal, so that the appellate court has the materials
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The Lancaster County Children and Youth Social Services Agency (“the
Agency”) became involved with Child at the time of his birth in March 2018,
after receiving a report that Child was experiencing withdrawal symptoms due
to prenatal exposure to “substances.” N.T., 2/6/20, at 6. The Agency devised
a safety plan, providing that Child’s maternal grandmother would supervise
all contact between Mother and Child. Id. at 5. Mother allegedly violated the
safety plan by leaving her home with Child and without the supervision of the
maternal grandmother. Id. As a result, the Agency obtained custody of Child
in June 2018 and placed him in foster care. Id. at 4.
At the time the Agency obtained custody of Child, it was not aware of
Father’s identity. The Agency identified Father in September 2018, confirmed
his paternity via a paternity test, and provided him with child permanency
plan goals. Id. at 10-11. While Father complied with his goals to some extent,
by completing biopsychosocial and parenting capacity evaluations, he largely
failed to address the Agency’s concerns. Id. at 11. Most critically, he failed
to address his significant history of substance abuse. Father admitted to using
heroin as recently as August 2019, and his ongoing failure to comply with
substance abuse treatment resulted in two probation/parole3 violations and
accompanying periods of incarceration. Id. at 13-14, 18-19, 71-72. Father
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necessary to review the issues raised on appeal. Ultimate responsibility for a
complete record rests with the party raising an issue that requires appellate
court access to record materials.”).
3There was conflicting testimony as to whether Father was on probation or
parole. See N.T., 2/6/20, at 14-15, 19, 36, 78.
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was incarcerated in May 2019, released in July 2019, and incarcerated again
in August 2019. Id. at 13-14, 18. He was released in December 2019 and
went to a rehabilitation facility, which discharged him successfully on February
4, 2020. Id. at 14.
Meanwhile, on October 11, 2019, the Agency filed a petition to terminate
Father’s parental rights to Child involuntarily. The orphans’ court conducted
a hearing to address the petition on February 6, 2020. Following the hearing,
on May 21, 2020, the court entered its decree terminating Father’s parental
rights. Father timely filed a notice of appeal on June 17, 2020, along with a
concise statement of errors complained of on appeal.
Father now raises the following claims for our review:
I. Whether the [orphans’ c]ourt erred when it terminated Father’s
rights?
II. Whether the [orphans’ c]ourt erred in concluding that the . . .
Agency had met its burden in proving that Father’s parental rights
should be terminated when there was evidence that he had been
actively working on and completing the goals on his child
permanency plan[?]
III. Whether the [orphans’ c]ourt erred in finding that terminating
Father’s parental rights would best serve the needs and welfare of
the child?
Father’s Brief at 7 (suggested answers omitted).
We review Father’s claims pursuant to the following 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
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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).
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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 under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Here, the orphans’ court terminated Father’s parental rights pursuant to
Section 2511(a)(1), (2), and (b). We need only agree with the court as to
any one subsection of Section 2511(a), as well as Section 2511(b), to affirm.
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied,
863 A.2d 1141 (Pa. 2004). In this case, we focus on Section 2511(a)(2) and
(b), which provide:
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(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.
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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)(2), (b).
We begin by addressing the termination of Father’s parental rights to
Child pursuant to Section 2511(a)(2), which Father challenges in his first and
second claims.
. . . . In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
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causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. . . . [T]hose grounds
may include acts of refusal as well as incapacity to perform parental duties.”
In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations omitted). “[A]
parent’s incarceration is relevant to the [S]ection [2511](a)(2) analysis and,
depending on the circumstances of the case, it may be dispositive of a parent’s
ability to provide the ‘essential parental care, control or subsistence’ that the
section contemplates.” In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014)
(citation omitted).
In his brief, Father maintains that the orphans’ court should not have
terminated his parental rights because of the progress he was making toward
completing his child permanency plan goals. Father’s Brief at 10-18. Father
emphasizes that he completed substance abuse treatment, had a source of
income in the form of Social Security payments, was compliant with the terms
of his probation/parole, and was visiting Child. Id. at 13-18. He also notes
that he did not know he was Child’s father until several months after Child
entered foster care, and that he was incarcerated for periods of time, which
limited his ability to complete his goals. Id. at 13, 17.
The orphans’ court explained its decision to terminate Father’s parental
rights pursuant to Section 2511(a) as follows, in relevant part:
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Father was granted a child’s permanency plan with a goal of
reunification with the [c]hild. The greatest concerns for Father
are his struggle with illegal drugs and his related criminal
activities. By the time the termination of parental rights hearing
concluded, the [c]hild was nearly twenty-three months of age.
Father failed four drug and alcohol rehabilitation programs before
successfully completing the program at Conewago Pottsville just
two days before the final termination of parental rights hearing.
Father spent the greater part of the [c]hild’s life to that point in
drug rehabilitation programs or in prison. It was projected that
Father would need to reside in a recovery house for at least six
months after the hearing ended while participating in intensive
outpatient counseling. Father would remain unavailable to the
[c]hild during that time. Based upon Father’s history in this case,
Father’s request for yet more time to be ready to parent is a
request the court cannot in good conscience grant. For more than
a year and a half, Father squandered the opportunities the Agency
provided to him to correct his incapacity to parent. It is doubtful
whether Father can remedy his parenting deficits within six
months or, for that matter, ever.
Orphans’ Court Opinion, 7/16/20, at 17-18.
The record supports the decision of the orphans’ court. As summarized
above, the Agency did not know Father’s identity at the time Child entered
foster care. The Agency first identified Father in September 2018, confirmed
his paternity via a paternity test, and provided him with child permanency
plan goals. N.T., 2/6/20, at 10-11.
Father’s most significant goal was to address his history of substance
abuse. However, Father did not receive substance abuse treatment until the
eve of the termination hearing. The Agency caseworker, Jacqueline McNelis,
testified that Father engaged with at least four different treatment providers
or recovery houses between November 2018 and August 2019, and either
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failed to attend, left, or was asked to leave each one.4 Id. at 13-14. Father’s
failure to obtain appropriate treatment also resulted in two probation/parole
violations and accompanying periods of incarceration. Id. at 13-14, 19, 78.
Ms. McNelis explained that Father was incarcerated in May 2019 and released
in July 2019, only to be incarcerated again in August 2019. Id. at 13-14, 18.
He was released in December 2019 and went to a rehabilitation facility, which
discharged him successfully on February 4, 2020, only two days prior to the
hearing. Id. at 14.
Despite Father’s successful discharge from the rehabilitation facility, it
was clear that his substance abuse history remained unresolved. Ms. McNelis
testified that Father began residing at a recovery house after his discharge,
and that his probation/parole officer was recommending that he stay there for
at least six months while receiving intensive outpatient treatment. Id. at 14-
15. Father testified that he was court-ordered to stay at the recovery house,
and that he would be there for “[f]ive or six months.” Id. at 68. Notably,
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4 The orphans’ court appears mistaken in its assertion that Father “failed four
drug and alcohol rehabilitation programs,” which it indicates elsewhere in its
opinion occurred “between November 29, 2018, and August of 2019.”
Orphans’ Court Opinion, 7/16/20, at 10, 17. Ms. McNelis testified that Father
completed an intake at Pennsylvania Counseling Services in November 2018
but left against medical advice. N.T., 2/6/20, at 13. Father then completed
an assessment at T.W. Ponessa in March 2019 but failed to attend his follow-
up appointment. Id. Father had another appointment with Pennsylvania
Counseling Services in July 2019, but Ms. McNelis was not able to confirm
whether he attended or not. Id. Next, Father entered a recovery house but
was asked to leave in August 2019, “due to not following the rules[.]” Id.
Father entered another recovery house later that same month but was asked
to leave for the same reason. Id.
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Father stated that he completed rehabilitation programs twice before, in 2016
and 2017, and that he had relapsed quickly each time. Id. at 82-83. He
acknowledged that he last used heroin in August 2019, which would have been
shortly before his most recent incarceration, and “doesn’t really know a lot of
coping skills about recovery,” but maintained that he was attending Narcotics
Anonymous meetings and attempting to learn those skills. Id. at 71-72, 80-
81.
Accordingly, while Father argues on appeal that he was making progress
toward the completion of his child permanency plan goals, and that he was
disadvantaged by a lack of time to make further progress, the record belies
this contention. Father had over a year to address his goals by the time of
the termination hearing in February 2020. Far from making progress, Father
used heroin as recently as August 2019, and it appears that only becoming
incarcerated later that month intervened to stop his substance abuse and set
him on the path toward obtaining necessary treatment. Given Father’s history
of completing rehabilitation programs and then relapsing, and given that he
would need to remain at his recovery house for another five or six months, it
was within the discretion of the orphans’ court to conclude that he remained
incapable of parenting Child, and that he could not or would not remedy his
parental incapacity pursuant to Section 2511(a)(2).
We next turn our attention to Father’s third claim, in which he challenges
the termination of his parental rights to Child pursuant to Section 2511(b).
The requisite analysis is as follows:
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Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the [S]ection 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.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted).
Father’s argument regarding Section 2511(b) consists of two sentences,
with no citation to relevant legal authority. Thus, Father has waived this claim.
See In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa. Super. 2017) (“[T]his Court
will not review a claim unless it is developed in the argument section of an
appellant’s brief, and supported by citations to relevant authority.”).
Even if Father had not waived this claim, it would be meritless. Father
contends that the Agency presented inadequate evidence regarding Child’s
needs and welfare. Father’s Brief at 18. He emphasizes that, although Child’s
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guardian ad litem stated Child was bonded with his foster family,5 “no bonding
assessment was completed, the resource family did not testify, and very little
testimony was presented regarding the resource family and their home.” Id.The orphans’ court explained its decision to terminate Father’s parental
rights pursuant to Section 2511(b) as follows:
Father’s history of visitation with the [c]hild, with the
concomitant opportunity to build a bond between them, is
stronger than Mother’s. There was some indication in the
testimony that Father’s visits with the [c]hild (which did not go
well at the outset) had improved. Nonetheless, during those
periods of time when Father was not incarcerated or otherwise
impeded from participating in visits with the [c]hild, he managed
to attend only 67% of the time, which, in the court’s view, is a
failing grade. When the court weighs the damage to the [c]hild of
severing the Father/Child bond against the harm to the [c]hild
which would flow from the [c]hild’s removal from his resource
family (where he has thrived since June, 2018), the answer to the
necessary inquiry is crystal clear.
The [c]hild deserves a nurturing, loving and stable home.
The [c]hild enjoys a home possessing these characteristics with
the resource family. It is in the [c]hild’s best interest that . . .
Father’s parental rights be terminated so the [c]hild will have
permanency and a loving family to support all of his needs.
Orphans’ Court Opinion, 7/16/20, at 21-22.
The record once again supports the decision of the orphans’ court. As
we have explained, Child did not live with Father after his birth and the Agency
did not identify Father until September 2018, approximately three months
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5 Specifically, Father refers to the guardian ad litem’s argument in support of
termination at the conclusion of the hearing, which she based in part on her
assertion that Child shared a bond with his foster family. See N.T., 2/6/20,
at 105-07.
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after Child entered foster care. N.T., 2/6/20, at 4, 10. In addition, although
Father attended visits with Child, the record confirms that his attendance was
inconsistent. Ms. McNelis testified that Father had the opportunity to attend
one visit with Child each week for two hours. Id. at 18. Visits began at the
Agency and then moved to the Bethanna visitation program. Id. Bethanna
discharged Father after he was incarcerated in May 2019, but visits resumed
at the Agency in July 2019, after he was released. Id. at 13, 18. Ms. McNelis
explained that Father attended nineteen out of his twenty-six possible visits
at Bethanna and two out of his four possible visits after they resumed at the
Agency.6 Id. at 18-19. Following Father’s incarceration in August 2019, he
visited with Child only three additional times, in September 2019, November
2019, and January 2020. Id. at 17-18.
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6 The orphans’ court believed erroneously that Father had five opportunities
to visit at the Agency, which appears to be the cause of its statement that
Father visited Child “only 67% of the time.” Orphans’ Court Opinion, 7/16/20,
at 11, 21. Ms. McNelis testified regarding this issue as follows:
When [Father] was released from Lebanon County, visits
resumed at the Agency on July 31st of 2019, and he -- [Father]
had a visit on the 31st and then August 8th of 2019. He was
scheduled for August 15th, but he called the day of the visit to
cancel due to a job interview. He was scheduled for the following
week, on August 22nd, 2019, but he was a no call, no show.
And then the following week he was incarcerated at the
Lebanon County Prison on August 26th of 2019.
N.T., 2/6/20, at 19.
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Predictably, the record does not indicate that Father and Child exhibited
a meaningful bond during their limited number of visits together. Ms. McNelis
testified that Child cried for the majority of Father’s “first few” visits and cried
for the first ten to fifteen minutes of the subsequent visits, although he then
calmed down “easily.” Id. at 19. As visits continued, Child “seemed to be a
little bit more comfortable with” Father. Id. at 20. Ms. McNelis explained that
she last observed a visit in August 2019, and that it “went well” overall. Id.
at 37. In contrast to Child’s minimal contact with Father, Ms. McNelis agreed
that Child had spent his entire placement in foster care residing with the same
pre-adoptive foster family, and that he did not “know anyone else . . . as a
“parental role model[.]” Id. at 20-21.
Thus, despite Father’s arguments to the contrary, we conclude that the
Agency presented sufficient evidence regarding Section 2511(b). While Father
contends that the orphans’ court did not have the benefit of an expert bonding
assessment when reaching its decision, no such assessment was necessary.
See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010), reargument denied
(May 28, 2010) (“When conducting a bonding analysis [pursuant to Section
2511(b)], the court is not required to use expert testimony. Social workers
and caseworkers can offer evaluations as well.”) (citations omitted). While
Father also maintains that the Agency did not present adequate testimony
regarding Child’s pre-adoptive foster family, our law does not require that pre-
adoptive foster parents testify, or that an agency present a specific amount of
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evidence regarding a pre-adoptive foster family or its home. Indeed, a court
may grant an agency’s termination petition even in the absence of a pre-
adoptive placement. See In re K.C.F., 928 A.2d 1046, 1052-54 (Pa. Super.
2007), appeal denied, 936 A.2d 41 (Pa. 2007) (affirming termination where
the children were not in pre-adoptive placements). In light of Child’s young
age, his minimal contact with Father, and Father’s significant and unresolved
history of substance abuse, we see no basis to disturb the court’s decision that
termination of Father’s parental rights would best serve Child’s needs and
welfare. See C.D.R., 111 A.3d at 1220 (“Clearly, it would not be in Child’s
best interest for his life to remain on hold indefinitely in hopes that Mother will
one day be able to act as his parent.”).
Based on the foregoing, the orphans’ court did not abuse its discretion
or commit an error of law by terminating Father’s parental rights involuntarily.
Therefore, we affirm the court’s May 21, 2020 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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