In Re: F.J.T., Appeal of: F.T. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: F.J.T., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF F.T., NATURAL FATHER
No. 1196 WDA 2014
Appeal from the Order June 26, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CYS 025 OF 2011
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 29, 2015
Appellant F.T. (“Father”) appeals from the order entered in the
Allegheny County Court of Common Pleas that terminated his parental rights
to his natural son, F.J.T. (“Child”), born November, 2006.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
Father and A.T. (“Mother”) are the natural parents of five daughters and one
____________________________________________
1
The June 26, 2014 order also terminated the parental rights of Child’s
natural mother (“Mother”), who did not file an appeal, and of Child’s
unknown father. Although paternity is not contested in this case, it seems
the court terminated the rights to any unknown father so that Child could be
adopted.
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son, Child.2 The Allegheny County Office of Children, Youth and Families
(“CYF”) first became involved with this family in 1991 after reports that
Mother had thrown her oldest daughter. After twenty-four (24) additional
reports of abuse, in which Mother allegedly threw and punched her
daughters, beat them with spatulas, batons, hairbrushes, belts and
extension cords, forced them to eat feces, and verbally abused them with
racial slurs, the court ordered that Mother was to have no contact with her
children on July 18, 2005. On March 23, 2006, the court terminated Mother
and Father’s parental rights to all of the daughters.3 The same day, the
court ordered Mother not to have any contact with any children under the
age of eighteen (18).
Child was born in November, 2006. On September 27, 2007, CYS
received a report that Child was living with Mother and removed Child. After
a hearing, Child was returned to Father on October 1, 2008, and Father
understood that he was not to permit Mother to have any contact with Child.
CYS closed the file on the case on May 27, 2009. On August 24, 2009, CYS
____________________________________________
2
When Father married Mother in 1990, she was pregnant with another
man’s child. Father was the legal parent of this child. Additionally, the five
natural daughters of Mother and Father were born October, 1992, August,
1997, September, 1998, October, 2001, and November, 2002, respectively.
3
Although most of the children claimed Father did not physically abuse
them, two of the daughters alleged Father had pinched them on the nipple
until it bled. In addition to abusing the daughters, Mother allegedly abused
her nieces and stabbed Father with a kitchen knife because she suspected
him of cheating on her.
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received a report that Mother was living with Father and Child. CYS
removed Child and he was adjudicated dependent on March 10, 2010. CYS
established Family Service Plan (“FSP”) goals for Father and instructed him
to attend all scheduled visits with Child, cooperate with CYS, and have no
contact with Mother. Although Father cooperated with CYS and attended
most of his scheduled visits with Child, he continued to have contact with
Mother.
On February 25, 2011, CYS filed a petition for involuntary termination
of parental rights against Father, Mother and unknown father of Child. The
court conducted hearings on June 22, 2012, July 20, 2012, July 30, 2012,
October 5, 2012, March 1, 2013, April 12, 2013, May 10, 2013, October 18,
2013, and November 22, 2013. On June 26, 2014, the court granted CYS’s
petition and terminated the parental rights of Mother, Father, and unknown
father. On July 25, 2014, Father timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
Father raises the following issues for our review: 4
IS THE TRIAL COURT’S FINDING OF GROUNDS FOR
INVOLUNTARY TERMINATION OF [FATHER’S] PARENTAL
RIGHTS UNDER 23 PA.C.S. § 2511(A)(2), (5) AND (8)
PROVEN BY A SHOWING OF CLEAR AND CONVINCING
EVIDENCE?
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4
We have reordered Father’s issues for purposes of disposition.
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IS THE TRIAL COURT’S FINDING THAT TERMINATION OF
PARENTAL RIGHTS SERVES THE DEVELOPMENTAL,
PHYSICAL AND EMOTIONAL NEEDS AND WELFARE OF THE
CHILD PROVEN BY CLEAR AND CONVINCING EVIDENCE
UNDER 23 PA.C.S. § 2511 (B)?
IS IT AN ERROR OF LAW FOR THE TRIAL COURT TO
TERMINATE PARENTAL RIGHTS IN A CASE WHERE CYF
HAS FAILED TO FULFILL ITS LEGAL OBLIGATION TO
PROVIDE THE PARENT WITH REASONABLE EFFORTS TO
PROMOTE REUNIFICATION, PRIOR TO THE FILING OF A
TERMINATION PETITION?
Father’s brief at 1.
In his first issue, Father argues CYS failed to present clear and
convincing evidence that grounds for termination exist under subsections
(2), (5) or (8) of 23 Pa.C.S. § 2511(a) because Father was meeting Child’s
needs upon removal, he was affirmatively participating in non-offenders’
counseling, and he had made substantial progress toward alleviating the
circumstances which necessitated the original placement. We disagree.
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the
evidence presented as well as the trial court’s factual
findings and legal conclusions. However, our standard of
review is narrow: we will reverse the trial court’s order
only if we conclude that the trial court abused its
discretion, made an error of law, or lacked competent
evidence to support its findings. The trial judge’s decision
is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa.Super.2007) (citations omitted).
Further, we have stated:
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Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing
court even though the record could support an opposite
result.
We are bound by the findings of the trial court which have
adequate support in the record so long as the findings do
not evidence capricious disregard for competent and
credible evidence. The trial court is free to believe all,
part, or none of the evidence presented, and is likewise
free to make all credibility determinations and resolve
conflicts in the evidence. Though we are not bound by the
trial court’s inferences and deductions, we may reject its
conclusions only if they involve errors of law or are clearly
unreasonable in light of the trial court’s sustainable
findings.
In re M.G., 855 A.2d 68, 73-74 (Pa.Super.2004) (citations omitted).
To affirm the termination of parental rights, this Court need only agree
with any one subsection of section 2511(a), in addition to section (b). See
In re B.L.W., 843 A.2d 380, 384 (Pa.Super.2004) (en banc), appeal denied,
863 A.2d 1141 (Pa.2004).
23 Pa.C.S. § 2511 governs requests to terminate a natural parent’s
parental rights, and provides, in pertinent part:
§ 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:
* * *
(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
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incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
* * *
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
* * *
(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.
* * *
(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.
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23 Pa.C.S. § 2511.
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires 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 T.F., 847 A.2d 738, 742 (Pa.Super.2004).
Our Supreme Court has addressed the incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature, however,
in enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
In re Adoption of S.P., 47 A.3d 817, 827 (Pa.2012) (quoting In re:
Adoption of J.J., 515 A.2d 883, 891 (Pa.1986)).
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.
In re Z.P., 994 A.2d 1108, 1118-19 (Pa.Super.2010) (quoting In re
B.,N.M., 856 A.2d 847, 855 (2004), appeal denied, 872 A.2d 1200(Pa.2005)).
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Regarding termination under § 2511(a)(5) and (8):
Termination of parental rights under Section 2511(a)(5)
requires that: (1) the child has been removed from
parental care for at least six months; (2) the conditions
which led to removal and placement of the child continue
to exist; and (3) termination of parental rights would best
serve the needs and welfare of the child. 23 [Pa.C.S.] §
2511(a)(5). “[T]o terminate parental rights pursuant to 23
[Pa.C.S.] § 2511(a)(8), the following factors must be
demonstrated: (1) the child has been removed from
parental care for 12 months or more from the date of
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 Adoption of M.E.P., 825
A.2d 1266, 1275–76 (Pa.Super.2003); 23 [Pa.C.S.] §
2511(a)(8). “Section 2511(a)(8) sets a 12–month time
frame for a parent to remedy the conditions that led to the
children’s removal by the court.” In re A.R., 837 A.2d
560, 564 (Pa.Super.2003). Once the 12–month period has
been established, the court must next determine whether
the conditions that led to the child’s removal continue to
exist, despite the reasonable good faith efforts of the
Agency supplied over a realistic time period. Id.Termination under Section 2511(a)(8) does not require the
court to evaluate a parent’s current willingness or ability to
remedy the conditions that initially caused placement or
the availability or efficacy of Agency services. In re
Adoption of T.B.B., 835 A.2d 387, 396 (Pa.Super.2003);
In re Adoption of M.E.P., supra.
In re Z.P., 994 A.2d at 1118-19 (some internal citations and emphasis
deleted).
Although this Court need only agree with one subsection of section
2511(a), in addition to section 2511(b) to affirm the termination of parental
rights, see In re B.L.W., supra, the competent evidence of record supports
the court’s finding of grounds for termination under subsections (2), (5), and
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(8) of section 2511(a). Father did not physically abuse or neglect Child, but
he has shown a repeated and continued incapacity to protect Child from
Mother, which provides grounds for termination under subsection (2).
Additionally, Child has been removed from Father for over six (6) months,
and the condition for removal, Father’s contact with Mother, continues to
exist. Although Father is correct that he attended counseling and did not
miss many visits with Child, he failed to remedy the most dangerous
condition that led to Child’s removal. Despite Father’s claims that he will no
longer see Mother, the record reflects otherwise. Father has been with
Mother for over thirty-five (35) years. He continued to see her after their
parental rights to their daughters were terminated because of Mother’s
horrific abuse, after she stabbed him with a knife, and after being apprised
that if he maintained any contact with her, his parental rights to his son
would be terminated. Father has shown an incapacity to stay away from
Mother that he cannot or will not remedy. Thus, grounds for termination
exist under subsection (5). Further, because Child has been removed for
over twelve (12) months, Father’s failure to remedy the current conditions of
separation at this point, regardless of his ability to possibly change in the
near future, provide grounds for termination under subsection (8).
Next, Father argues that even if grounds for termination exist,
involuntary termination of his parental rights would not serve the needs and
welfare of Child, as required by section 2511(b). He claims that Child’s
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needs could only be met if he were to maintain his relationship with Father,
who has exhibited good parenting skills and maintains a strong bond with
Child. He concludes that the court erred by disregarding testimony about
how Child would respond adversely to the termination of their close and
meaningful relationship, and determining that termination of his parental
rights would best serve the welfare of Child. We disagree.
Once the statutory grounds for termination have been met under
section 2511(a), the court must also consider whether termination would
best serve the needs and welfare of the child pursuant to section 2511(b).
In re C.L.G., 956 A.2d 999, 1009 (Pa.Super.2008). The Adoption Act
provides that a trial court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). Although the Act does not specifically refer to the
necessity of an evaluation of the bond between parent and child, our case
law requires an evaluation of any such bond. See In re E.M., 620 A.2d 481(Pa.1993). However, this Court has held that neither statute nor precedent
require a trial court to order that an expert perform a formal bonding
evaluation. In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super.2008). This
Court has explained:
Intangibles such as love, comfort, security, and
stability are involved when inquiring about the needs
and welfare of the child. The court must also discern
the nature and status of the parent-child bond,
paying close attention to the effect on the child of
permanently severing the bond.
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In re C.P., 901 A.2d 516 (Pa.Super.2006). Moreover,
The court should also consider the importance of
continuity of relationships to the child, because
severing close parental ties is usually extremely
painful. In re Adoption of K.J., [936 A.2d 1128,
1134 (Pa.Super.2007)]. ... 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. In
re C.S., [761 A.2d 1197 (Pa.Super.2000)]. Most
importantly, adequate consideration must be given
to the needs and welfare of the child. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super.2002).
In re K.Z.S., 946 A.2d at 760.
In re C.L.G., 956 A.2d 999, 1009-10 (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. See [In re K.M., 53 A.3d 781, 791
(Pa.Super.2012)].
* * *
[M]embers of [our Supreme] Court have opined that the
existence of a pre-adoptive home is “an important factor”
in termination cases. In re R.I.S., 36 A.3d 567, 575
([Pa.]2011) (Saylor, J., concurring). … “While having an
identified adoptive resource is not a prerequisite for
[termination of parental rights], ideally there should be a
strong likelihood of an eventual adoption.” Administrative
Office of Pennsylvania Court's Office of Children and
Families in the Courts, Pennsylvania Dependency
Benchbook § 12.1 at 126 (2010).
In re T.S.M., 71 A.3d 251, 268 (Pa.2013).
Here, the court considered the bond between Father and Child and the
bond between the foster family and Child before determining that
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termination of Father’s parental rights served the needs and welfare of the
child. The court found:
39. In assessing the relationship between [Child] and
[Father] in conjunction with and yet bifurcating this
[c]ourt’s assessment of the relationship between [Child]
and the foster parents, it was necessary for the [c]ourt to
examine the record as a whole including history,
observations, impressions, the experiences of the
stakeholders and most importantly, giving deference to the
findings and opinions of the [c]ourt [e]xperts offered in
this case. The [c]ourt finds that both Dr. Pepe and Dr.
Rosenblum concluded that [Child] had an attachment to
[Father]. The County Agency caseworkers who testified at
trial believe that [Father] and [Child] have a bond.
Further, in the same testimony of the portion of the trial
which took place on July 20, 2012[,] the County Agency
caseworkers believe that the foster parents are meeting
[Child’s] needs and welfare as they view [Child] to be very
comfortable in his foster home and bonded to his foster
parents. In specifically reviewing the testimony and the
opinions of the [c]ourt [e]xperts in this case concerning
the interactional evaluations conducted and the individual
evaluations which took place as well, Dr. Pepe conducted
an interactional evaluation with then almost four (4) year
old subject child and his foster parents in late 2010. She
observed [Child] to have multiple attachment behaviors
and believes he was building a primary attachment to the
foster parents, despite evidence of him being emotionally
blunted, which is a characteristic of children who have
been exposed to trauma. When Dr. Pepe conducted an
individual evaluation of [Child] six (6) months later, [Child]
described foster parents as his primary and psychological
parents and expressed feeling happy. Dr. Pepe at that
time also believed that [Child] was [quite] attached to his
foster sister. Dr. Pepe further believed as reported in the
trial transcript of October 5, 2012 that [Child] had made
developmental gains compared to the issues he had when
he came into care and experiencing stability with the foster
parents. Dr. Rosenblum conducted an interactional
evaluation of almost five (5) year old [Child] and foster
parents in late 2011. Based on the interactional
evaluation, Dr. Rosenblum assessed [Child] as being “very
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strongly attached” with foster parents. (See [F]ather
Exhibit "C"). Dr. Rosenblum at that time saw their
relationship as comfortable, secure and very trusting and
believes [Child’s] attachment to be primary. Dr.
Rosenblum noted [Child’s] attachment to his foster
siblings, especially his foster sister whose name begins
with an E. During the individual evaluation of [Father],
[Child] was tentative about separating from foster parents
initially. [Child] at that time described his foster parents
as mommy and daddy. Dr. Rosenblum reported in
[Father’s] Exhibit C that [Child] indicated that he wanted
to “I just want to stay at school, not want visit too much”
and that he grew anxious about being separated from the
foster parents later in the sessions, but appeared to be
reassured when Dr. Rosenblum told him that they were in
the next room. Notwithstanding his attachment to
[Father], Dr. Pepe believes adoption by the foster parents
is in [Child’s] best interest due to the safety risks that
[Father] poses. In the trial transcript of October 5, 2012,
Dr. Rosenblum acknowledged that [Child’s] relationship to
the foster parents is stronger than the one he has with
[Father].
* * *
42. Equally abundantly clear and convincing based on the
record as a whole[,] including the insightful and learned
opinions of Dr. Robert Coufal that [Father’s] dishonesty,
deficiencies, abnormalities and lack of conscientiousness,
facilitates, establishes and presents as an equivalent threat
and risk to this young child’s present existence and future.
This [c]ourt can reasonably conclude that the imagination
alone cannot envision given the extensive record in this
case which the [c]ourt has reviewed carefully in support of
its determination, that both [Mother] and [Father] present
[to] this child, to borrow from the seminal quotation of
respected Justice Oliver Wendell Holmes, a clear and
present danger.
* * *
45. The County Agency has proved by clear and convincing
evidence, that termination of [Mother] and [Father’s]
parental rights serves the needs and welfare of [Child]. In
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the home of the foster parent’s care, [Child] experiences
love, safety, stability and security. [Child’s] strongest
attachment is the positive bond he has with the foster
parents and his foster siblings. The [c]ourt acknowledges
that [Child] has an attachment to [Father] and
discontinuing the relationship with [Father] will likely cause
[Child] some level of emotional expression. However, the
reality is that [Child] has been out of [Father’s] care for
almost four and a half years. The current situation causes
[Child] confusion because he is torn between his foster
parents and [Father]. Moreover, the only way to ensure
[Child’s] safety is to keep him out of [Father’s] care.
Despite all of the efforts of the County Agency in this case,
to provide the necessary services, to examine [Father’s]
motives, and await [Father’s] honesty and comprehension
in a healthy and reliable way, [Child] should not languish
in foster care while waiting for his [parents] to
demonstrate their ability to care for him. [Child] has
waited in abeyance and deserves the permanency which
adoption can best offer him at this time, and therefore, it
best meets the needs and welfare of the subject child to
terminate the parental rights of [Mother], [Father] and the
Unknown father and proceed to adoption by the foster
parents.
Orphans’ Court’s Findings of Fact, Conclusions of Law and Order of Court
(“Findings of Fact”), filed June 26, 2014, at 23-28 (pagination supplied by
this Court) (internal quotation marks and citations omitted). Because the
orphans’ court had competent evidence to support its findings, Father’s
contention that the court erred in determining the termination of his parental
rights would serve the needs and welfare of Child merits no relief.
In his final issue, Father contends the refusal of CYS to provide
reunification efforts to Father prior to the filing of the termination petition
violated his due process rights and requires reversal of the trial court’s
decree. Again, we disagree.
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In In re D.C.D., 105 A.3d 662 (Pa.2014), our Supreme Court held
that a trial court is not required to consider an agency’s provision of
reasonable reunification services to a parent before deciding to terminate
parental rights. Further, after Child’s August 24, 2009 removal from Father,
Father’s FSP goals were to cooperate with CYS, attend scheduled visits with
Child, and have no contact with Mother. CYS did not offer further
reunification services to Father, as he had already successfully completed
non-offenders’ counseling and CYS did not have concerns about Father’s
parenting skills. CYS’s major concern with Father was that he would not
make the conscious decision to avoid Mother. In finding that CYS had
fulfilled its obligation to Father, the court stated:
23. As much as [Father] engaged in visitation, deceptively
cooperated with [CYS] and its providers, participated in
addressing [Child’s] medical needs, attended parenting
classes, attended and reasonably completed parenting
classes, met his mental health goals insomuch as he
attended evaluations conducted by Court Experts through
the Allegheny Forensic Associates, [Father’s] pursuit of his
FSP goals were checkered with inconsistencies, some
uncooperativeness and instances of opposition and
resistance. A historic overview of [Father’s] participation
with the services provided by [CYS] as set forth by the
record as a whole, would demonstrate the patterns and
history previously articulated as aforestated by the Court.
This [c]ourt finds that [CYS], indeed, did provide [Father]
with all necessary available services that were relevant to
and germane, consistent with [CYS’s] plan for reunification
and the maintenance of a stable relationship between
[Father] and [Child]. [CYS] did not, however, provide
[Father] with any services between when [Child] was
removed the second time in August 2009 and when this
[c]ourt relieved the Agency of reasonable efforts to reunify
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the family in November 2010. At this point, in the history
of the case, the overall record supports that essentially
there was nothing more by way of services that [CYS]
could offer [Father] to facilitate reunification. A reasonable
mind could conclude that [Father] was somewhat
successful at pursuing his FSP goals with the exception of
the one (1), which given the history of this case was the
most critical for purposes of reunification and in order to
meet the needs and welfare of the subject child. This
particular FSP goal in which [F]ather failed terribly was
based on [CYS’s] grave concern which was also maintained
by the [c]ourt, was not relevant to [Father’s] hands-on
parenting skills and provisions for [Child’s] basic needs but
rather, [Father’s] decision making, judgment and ability to
protect [Child]. [CYS] had exhausted all services that
could assist father for purposes of reunification. In
addition, [CYS] had also provided services in an attempt to
hopefully have [Father] address this critical FSP goal of
protecting [Child] from [M]other and [Father]
disconnecting himself completely from [Mother]. The
record indicates that [Father] had successfully completed
non-offenders’ counseling at the Center for Family
Excellence. As a result of [Father’s] deceptive and
deceitful pursuit, as the record demonstrates, of his
lifestyle and connect to [Mother], [CYS] maintains and
remains, acknowledged by this [c]ourt, that [Father] is not
capable of protecting [Child] and disconnecting himself and
[Child] from [Mother].
Findings of Fact at 11-12. The record provides ample support for the court’s
findings of fact.
Our review of the record reveals that the orphans’ court’s decision to
terminate Father’s parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(2), (5),
(8) and (b) is supported by clear and convincing evidence, and we see no
abuse of discretion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2015
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