In the Interest of: A.J.E., Appeal of: H.A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.E. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: H.A. :
:
:
:
:
: No. 1227 WDA 2019
Appeal from the Order Entered July 18, 2019
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-25-2019
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 06, 2020
H.A. (Father) appeals from the order, entered in the Court of Common
Pleas of Allegheny County, terminating his parental rights to his son, A.J.E.
(Child) (born 3/2017), pursuant to section 2511(a)(2), (a)(5), (a)(8) and (b)
of the Adoption Act.1 On appeal, Father claims the Allegheny County Office of
Children, Youth and Families (CYF) did not meet its burden of proving by clear
and convincing evidence that termination of Father’s parental rights best
served Child’s needs and welfare. 23 Pa.C.S.A. § 2511(b). After our review
of the record and the arguments on appeal, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 23 Pa.C.S.A. §§ 2101 et seq.
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A.S.E. (Mother) gave birth to Child while incarcerated.2 At that time,
Father had not been identified. Child was placed in a foster home when he
was four days old. Two months later, in May 2017, after Father’s paternity
was confirmed, CYF met with Father and performed a home assessment. At
that time, Father resided in a one-bedroom apartment, was not working, was
on disability, had been diagnosed with bipolar disorder and schizophrenia, and
was taking medication for his mental health disorders. N.T. Termination
Hearing, 7/12/19, at 14-15.
On June 7, 2017, the Honorable Dwayne D. Woodruff adjudicated Child
dependent. The court based its adjudication on Mother’s stipulation of
incarceration and mental health issues and Father’s stipulation that he was
unwilling or unable to care for Child at that time. Order of Adjudication and
Disposition, 6/7/17. The court placed Child with a maternal cousin, A.H.,
where he remained until February 19, 2019, when custody was given to
paternal grandfather, H.A., Jr.3 (Grandfather). Grandfather is Child’s current
foster parent and is an adoptive resource. Id. at 21-22.
On February 7, 2019, CYF sought termination of both Father’s and
Mother’s parental rights to Child. With respect to Father, CYF alleged that
despite various services, including in-home visitation coaching, Father, over
an eighteen-month period, did not progress in meeting the goals of his family
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2 Mother is not a party to this appeal.
3We note Judge Woodruff presided over both the dependency and termination
proceedings in this case.
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service plan (parenting, housing, and maintaining mental health). On July 12,
2019, the court held a termination of parental rights hearing. Following the
hearing, the court entered an order terminating both Father’s and Mother’s
parental rights to Child. Father filed this appeal.
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 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 quotations omitted).
Father acknowledges that Child has been in placement for the statutory
period. See 25 Pa.C.S.A. § 2511(a)(8) (child has been removed from care of
parent, 12 months or more have elapsed from date of removal or placement,
conditions which led to removal or placement continue to exist, and
termination would best serve needs and welfare of child). He contends,
however, that the court erred in finding CYF met its burden of proving by clear
and convincing evidence that termination would best serve Child’s needs and
welfare. See 23 Pa.C.S.A. § 2511(b) (if grounds for termination under
subsection (a) are met, court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the child.”).
Section 2511(b) provides:
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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(b) (emphasis added). The emotional needs and welfare
of the child have been interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005). Further, this Court has determined that a “needs and welfare”
analysis requires an examination of the “natural parental bond.” In re E.M.,
620 A.2d 481, 485 (Pa. 1993). See In re K.M., 53 A.3d 781, 791 (Pa. Super.
2012) (court should pay “utmost attention” to discerning effect on child of
permanently severing parent/child bond); see also T.S.M., supra at 268
(when considering termination, court must consider whether child is in pre-
adoptive home and whether child has bond with foster parents).
In this context, the court must take into account whether a bond exists
Between child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship. In re C.S., 761 A.2d 1197, 1202 (Pa.
Super. 2000) (en banc). When conducting a bonding analysis, the court is
not required to use expert testimony. In re K.K.R.-S., 958 A.2d 529, 533
(Pa. Super. 2008) (citing In re I.A.C., 897 A.2d 1200, 1208-09 (Pa. Super.
2006)). Social workers and caseworkers can offer evaluations as well. See
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In re A.R.M.F., 837 A.2d 1231 (Pa. Super. 2003) (court properly terminated
parental rights where decision based in part on social worker’s and
caseworker’s testimony that children did not share significant bond with
biological parents and were well bonded with foster parents). Additionally,
section 2511(b) does not require a formal bonding evaluation. In re K.K.R.-
S., supra at 533. Here, several witnesses testified with respect to Child’s
bond with Father.
CYF caseworker Justine Jordan testified, “[Child] goes to his father. He
likes to be picked up by his dad and held. I’ve observed [F]ather sit with
[Child] and watch videos on his phone.” N.T. Termination Hearing, supra at
60. She also stated “[Child] is two, so he has been having visits with his
father for the past few years. I mean, there is a connection there.” Id. at
89.
CYF caseworker Martin Dorfman also testified. He provided Father with
two-hour parenting instruction sessions for “six or seven” visits. Id. at 161.
He stated that despite his suggestion to Father to get down on the floor and
play with Child, Father “parented from the couch.” Id. at 151. Dorfman
stated that Child “certainly seemed happy to see [F]ather when he got there.”
Id. at 164. He also stated that Child liked to sit with Father to watch videos,
but Child did not seek out Father’s attention and primarily played on his own.
Id. at 164.
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Kirk Thoma, a visit coach from Project STAR,4 also worked with Father
twice a week from April 2019 to June 2019.5 He testified similarly, describing
the interaction between Father and Child as follows: “[Father] would prefer
to just hold [Child] on his lap and use the phone to listen to videos, watch
videos[.]” Id. at 109. He testified that, despite repeated suggestion there
was “less of the interaction on the floor with toys and so forth and that usually
meant that I needed to prompt [F]ather to try to do more of that kind of thing
so that there was learning in play[.]” Id. Thoma acknowledged, “there was
definitely a connection there,” but emphasized that Child “would look for
[Father] to engage with him while he was playing and that wasn’t happening.”
Id. at 113.
Terry O’Hara, Ph.D., a court-appointed psychologist, also testified.
Doctor O’Hara performed evaluations on Father between May and mid-June of
2019. He testified to his observations of Father’s interactions with Child as
follows:
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4 Founded in 1985, Project STAR is licensed by the Pennsylvania Department
of Public Welfare as an adoption, foster care and private children and youth
social service agency. Project STAR provides services for children in need of
permanency from infancy through the age of 21.
https://www.alleghenycounty.us/Human-Services/News-
Events/Engagement/Foster-Care/Meet-the-Agencies/City-of-Pittsburgh-
Agencies.aspx (last visited 12/17/19).
5Services were discontinued according to Project Star policy because Father
missed three scheduled appointments within a 30-day period. N.T.
Termination Hearing, supra at 105.
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For extended periods of time [Father] was not particularly
interactive or engaging with [Child]. He acknowledged to me that
he had to be prompted typically even at this time by the in-home
service clinician who supervises visits, I believe from Project
STAR, who also did not contact me until after the report was
submitted, unfortunately. But [Father] stated that to me that he
still needed prompting by Project STAR when he’s with his son. I
did observe that myself, that he was not particularly engaging and
would have benefited from prompting, although that’s not my role
as the evaluator. He also seemed to direct himself to me
throughout the evaluation as opposed to engaging with his son,
even after I specifically provided him with unstructured time with
his son. During this evaluation [Father] continued to complain
about his own father and this seemed to be a theme that he can
really perseverate upon. I would be concerned about him
perseverating upon this theme and also other themes of
persecution and paranoia to the extent that [Child] would be at
risk of not being supervised. . . . I didn’t see him utilizing [Father]
as a secure base, and this was qualitatively different from how
[Child] was with his paternal grandfather during their
interaction[.]
Id. at 179-80.
Thus, the evidence presented did indicate a bond, described by the
evaluators as a “connection,” between Father and Child. Of note, however,
Dr. O’Hara opined that termination of that bond would not be detrimental to
Child:
Q: [D]id you observe in [Child] such a significant relationship,
attachment or bond with [Father] that if that bond were to be
severed [Child] would be detrimentally hurt?
A: I think that’s a question that has many parts. I think my
main concerns in this case included [Father’s] level of stability.
From my perspective, he had not demonstrated the stability
necessary to care for a child’s needs and welfare. I’m very
concerned with his ongoing history of psychiatric hospitalization.
He reported . . . being in treatment at [Western Psychiatric
Institute and Clinic] at the time of my evaluation of him for only
approximately one month, and I didn’t’ see a narrative of him
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considering the seriousness of his psychiatric history and that he
suffers from major mental illness. . . . So I would have a lot of
concerns with even unsupervised time at this point. I didn’t have
much evidence, at least during this observational period, that
[Child] has much security in his relationship with [Father], but
there was some collateral data from the Arsenal report, for
example, that [Child] appeared to feel pretty comfortable with
[Father]. But from the standpoint of attachment, security and
attachment really supposes consistency, responsiveness,
nurturance and emotional stability for a caregiver, I don’t think
[Father] would be able to establish that sort of stability and
responsiveness and nutur[ing] for his son if his mental health
needs are not more sufficiently addressed.
Id. at 181-84 (emphasis added).
With respect to Child’s bond with Grandfather, Dr. O’Hara testified as
follows:
[Child] was very curious, vocal. He smiled, he sang, he was
playful, calm and relaxed. He explored toys. He interacted well
with his grandfather. So I thought his comportment toward
[F]ather was–toward [Father] and grandfather were completely
different, and I think that this has a lot to do with the parenting
presences by [Father] and [Grandfather]. [Father], as I
mentioned, seemed to be preoccupied with his own father and was
often interacting with me, not particularly engaging with [Child],
and this was concerning as he’s had a lot of parenting training
thus far, but on the other hand, [Grandfather] was very interactive
with [Child]. He showed affection, he had a gentle presence with
him, and I think [Child] responded much better to this sort of
interaction, this sort of–these sorts of parenting skills exhibited by
[Grandfather].
Id. at 181.
This Court has emphasized that “the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition.” T.S.M., supra at 267. “Common sense dictates that
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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.”
Id. at 268. “As with dependency determinations, we emphasize that the law
regarding termination of parental rights should not be applied mechanically
but instead always with an eye to the best interests and the needs and welfare
of the particular children involved.” Id. Further, courts must keep “the
ticking clock of childhood ever in mind[.]” Id. at 296.
Children are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When
courts fail . . . the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past
fifteen years, a substantial shift has occurred in our society’s
approach to dependent children, requiring vigilance to the need to
expedite children’s placement in permanent, safe, stable, and
loving homes. [The Adoption and Safe Families Act] [(]ASFA[)][6]
was enacted to combat the problem of foster care drift, where
children . . . are shuttled from one foster home to another, waiting
for their parents to demonstrate their ability to care for the
children. This drift was the unfortunate byproduct of the system’s
focus on reuniting children with their biological parents, even in
situations where it was clear that the parents would be unable to
parent in any reasonable period of time. Following ASFA,
Pennsylvania adopted a dual focus of reunification and adoption,
with the goal of finding permanency for children in less than two
years, absent compelling reasons.
Id. (citations omitted).
With these considerations in mind, we acknowledge the existence of a
bond between Father and Child. However, we agree with the trial court’s
assessment that termination of that bond would not negatively affect Child.
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6 42 Pa.C.S.A. §§ 6301–65.
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In his opinion, Judge Woodruff determined that Child has a “positive parent-
child relationship with Grandfather,” and that Grandfather provides for Child’s
“support, comfort and wellbeing” as well as Child’s “emotional, medical and
educational needs.” Trial Court Opinion, 8/13/19, at 11. As the record
supports the court’s conclusions under section 2511(b), we see no reason to
disturb its decision. Given Child’s strong bond with Grandfather, we conclude
the court did not abuse its discretion in concluding that termination of Father’s
rights would best serve the “developmental, physical and emotional needs and
welfare” of Child. 23 Pa.C.S.A. § 2511(b).7 See In re T.S.M., supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2020
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7 We note counsel for Child has filed a brief in support of the trial court’s order
terminating Father’s parental rights. See Brief for Appellee, A.J.E., a minor,
at 18 (“Given the Child’s young age, his Father’s continued instability, and the
secure attachment the Child had developed with Grandfather, the [t]rial
[c]ourt did not err by finding that termination of Father’s rights serves the
Child’s needs and welfare.”).
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