In Re: Y.K.L., a Minor ( 2021 )

J-A07034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: Y.K.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.S.L., FATHER :
:
:
:
:
: No. 1279 MDA 2020
Appeal from the Decree Entered September 2, 2020
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
87238
IN RE: Z.H.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF M.S.L., FATHER :
:
:
:
:
: No. 1280 MDA 2020
Appeal from the Decree Entered September 2, 2020
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
87239
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 05, 2021
Appellant, M.S.L. (“Father”), files this appeal from decrees dated and
entered September 2, 2020, in the Berks County Court of Common Pleas,
granting the petition of Berks County Children and Youth Services (“BCCYS”
or the “Agency”) to involuntarily terminate Father’s parental rights to his
____________________________________________
* Former Justice specially assigned to the Superior Court.
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minor, dependent daughters, Y.K.L., born in August 2016, and Z.H.L., born in
January 2019 (collectively, the “Children”), pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1 After a careful review, we
affirm.
The orphans’ court has aptly summarized the procedural and factual
history as follows:
A. PROCEDURAL HISTORY
On May 15, 2020, BCCYS filed separate Petitions for
Involuntarily Termination of Parental Rights relative to Mother
[and] Father. . .(collectively, the “Petitions”).[2] On August 24 and
28, 2020, the [orphans’] [c]ourt presided over a two[-]day
termination hearing (the “Hearing”).[3] Father attended the
Hearing with the assistance of counsel, Joseph T. Bambrick, Jr.
(“Counsel”);[4] Mother did not attend. Counsel advised the
[orphans’] [c]ourt that he had no contact with Mother immediately
leading up to the Termination Hearing. As such, on the first day
____________________________________________
1 Pursuant to separate decrees of the same date, the orphans’ court
terminated the parental rights of Mother, N.D.R. (“Mother”). Mother did not
participate in the instant appeals and did not file separate appeals.
2 The record suggests that BCCYS additionally filed goal change petitions;
however, such petitions and any resulting orders are not at issue in the instant
appeals. See Notes of Testimony (“N.T.”), 8/24/20, at 5.
3The Agency presented the testimony of Carla Sanders, Adoption Supervisor,
BCCYS; Alison Hill, licensed psychologist and professional counselor, who was
qualified as an expert in the area of psychology and trauma evaluations of
children; Josephine Heil, caseworker, BCCYS; and Father.
4 Father had previously been represented by court-appointed counsel
throughout the dependency proceedings until January 31, 2020.
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of the Hearing, Counsel made an oral motion to withdraw as
counsel for Mother, only, which the [orphans’] [c]ourt denied.[5]
On September 2, 2020, after careful consideration, the
[orphans’] [c]ourt entered separate orders terminating the
parental rights of Mother [and] Father, . . . finding that BCCYS
had established its burden under Section 2511 of the Act by clear
and convincing evidence.
...
B. FACTUAL HISTORY FROM DEPENDENCY PROCEEDINGS
On May 11, 2019, members of the Muhlenberg Township
Police Department responded to complaints of a domestic
disturbance at the Rodeway Inn in Muhlenberg Township, Berks
County, Pennsylvania, involving Mother and Father. Father
allegedly admitted to being under the influence of cocaine during
this encounter with the police. Mother, too, appeared to be under
the influence of controlled substances. Further, as set forth in
greater detail below, the hotel room was dirty, and the [C]hildren
were without proper nourishment, care, or control.[6]
A representative from BCCYS, Josephine Heil (“Ms. Heil”),
received a call from police dispatch indicating that Mother and
Father would be arrested/taken into custody. When Ms. Heil
arrived at the Rodeway Inn, Mother was on the ground yelling
obscenities. Ms. Heil needed to walk away from Mother because
of her hostility toward Ms. Heil and police[.] Further, Mother had
a number of outstanding warrants for her arrest issued in New
York. Father was combative and he appeared to be under the
influence; he smelled of alcohol, his eyes were red and dilated and
he was very hard to understand. Father identified the Children’s
[m]other as an individual named “Samantha Lee” - not the
Children’s [m]other. Mother also denied being the mother of
Children.
When Ms. Heil entered Mother and Father’s hotel room, it
was messy. Ms. Heil observed rolled up dollar bills next to an
unidentified white substance, a liquor bottle near the bathroom,
clothes all over the place, no food, and no bed for the Children.
Ms. Heil spoke to staff at the Rodeway Inn and wanted to know
____________________________________________
5 At the August 24 and 28, 2020, termination hearing, the Children were
represented by a guardian ad litem/legal counsel.
6 Mother had a prior history with BCCYS. See BCCYS Exhibits 1 and 2 at 6.
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when Mother and Father checked in. The staff member responded
that Mother and Father had been staying there for approximately
three months, since February. Ms. Heil discovered both [c]hildren
in diapers; [Y.K.L.] (approximately three-years-old at the time)
wanted a bottle, rather than solid food (a donut offered by staff of
the Rodeway Inn).
On May 11, 2019, the Hon. Mary Ann Ullman of the [] the
Berks County Court of Common Pleas entered separate orders
permitting BCCYS to take emergency protective custody of the
Children. On May 22, 2019, following a hearing on dependency
petitions filed by BCCYS, the Hon. Jeffery K. Sprecher entered
adjudicatory and dispositional orders finding the Children
dependent and ordering Father to comply with certain services,
treatment, and substance testing.[7] The [juvenile] [c]ourt
expanded that list of obligations through subsequent Orders
entered in connection with the dependency proceedings as a result
of Father’s continued failure to make suitable progress. Among
other things, the [juvenile] [c]ourt ordered Father to:
(a) Cooperate with parenting education;
(b) Undergo a mental health evaluation and comply
with any treatment recommendations;
(c) Undergo a drug and alcohol evaluation and comply
with any treatment recommendations;
(d) Undergo random urinalysis;
(e) Participate in casework sessions through BCCYS
and comply with any recommendations;
(f) Establish and maintain suitable and appropriate
housing and income;
(g) Notify BCCYS of changes in income or residence;
(h) Sign releases of information as requested; and
(i) Have supervised visitations with the children as
scheduled and act appropriately at those visitations.
Orphans’ Court Opinion (“O.C.O”), 12/1/20, at 1-4 (citation to record omitted)
(footnotes omitted) (footnotes added).
____________________________________________
7 Critically, neither Mother nor Father appealed the orders of adjudication and
disposition as to the Children.
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Subsequent to the hearing, the orphans’ court issued decrees dated and
entered September 2, 2020, terminating parental rights. Thereafter, on
September 30, 2020, Father, through counsel, filed timely notices of appeal,
as well as concise statements of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua sponte on
October 22, 2020.
On appeal, Father raises the following issues for our review:
1. Did the [orphans’] court have initial jurisdiction in this matter
because the parties were in transit and [BCCYS] only became
involved as a result of an argument between the mother and a
local police officer?
2. Did the [orphans’] court commit error when it terminated the
parental rights of the parents of the children?
3. Were the parents [adequately] represented by counsel during
the hearing before the [orphans’] court?
4. Did the [orphans’] court commit error when it permitted
testimony by [BCCYS] and admitted testimony regarding unlawful
search and seizure?[8]
Father’s Brief at 4 (suggested answers omitted) (unnecessary capitalization
omitted) (footnote added).
____________________________________________
8We observe that this issue is not included in Father’s Rule 1925(b) Statement
and, as such, it has been waived. See Krebs v. United Refining Co., 893
A.2d 776, 797 (Pa.Super. 2006) (stating that a failure to preserve issues by
raising them both in the concise statement of errors complained of on appeal
and statement of questions involved portion of the brief on appeal results in a
waiver of those issues).
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In his first issue, Father challenges the court’s jurisdiction to take the
Children into custody. Father’s Brief at 7. Father argues that he and the
Children were residents of New York.9 Id. at 7. He contends the Children
were brought to Pennsylvania by Mother for Mother’s Day weekend. Id. at 8.
As such, Father asserts a lack of jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (the “UCCJEA”), 23 Pa.C.S.A. § 5401 et
seq.10
In finding Father was not entitled to relief on his first issue, the orphans’
court reasoned:
Father’s first issue on appeal purports to challenge the
[juvenile] [c]ourt’s jurisdiction5 to make an initial finding of
dependency and to place the Children in the custody of BCCYS.
Specifically, Father argues that the Children should never have
been declared dependent because they were, at all relevant times,
residents of the State of Michigan, rather than Pennsylvania.
Father alleges that the Children were only in Pennsylvania in the
first instance because Mother brought them here to visit their
____________________________________________
9 Notably, throughout the termination hearing, Father maintained that he and
the Children were residents of Michigan. N.T., 8/28/20, at 3-6, 13-14; N.T.,
8/24/20, at 23-27.
10 Father cites 23 Pa.C.S.A. § 5424 with regard to temporary emergency
jurisdiction, which provides, in part:
(a) General rule.--A court of this Commonwealth has temporary
emergency jurisdiction if the child is present in this
Commonwealth and the child has been abandoned or it is
necessary in an emergency to protect the child because the child
or a sibling or parent of the child is subjected to or threatened
with mistreatment or abuse.
23 Pa.C.S.A. § 5424(a).
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maternal grandmother. Father stated he came to Reading to
retrieve the Children - nothing more.
5 The court can only assume Father means to challenge venue, as the
Act clearly grants the court subject matter jurisdiction in dependency
matters.
As an initial matter, Father never challenged the [juvenile]
[c]ourt’s jurisdiction in the dependency proceedings.[11] Father
attended the adjudicatory hearing on May 22, 2019, where he was
represented by counsel. Father failed to raise the issue of
jurisdiction at that time, and he subsequently failed to preserve
the issue before the Honorable Superior Court within the 30-day
appellate window. Further, the only evidence presented as to the
Children’s permanent residence not being in Pennsylvania came
from Father in his testimony, which the [c]ourt did not find to be
credible. As discussed more in depth elsewhere in this Opinion,
Father purported to be residing in multiple states at multiple
addresses at one time or another. The [c]ourt has no faith that
Father was honest regarding his residency at any point other than
when he said on the day of the Termination Hearing he was
staying at a homeless shelter in Reading.
In fact, Father raised this venue issue for the first time on
August 3, 2020 - nearly three months after BCCYS filed its
Petitions to terminate his parental rights - before a different judge
in a different division of the [t]rial [c]ourt.[12] By the time Father
raised this issue, the [C]hildren had been in the custody of BCCYS
for more than 15 months, living with resource parents upon whom
they have become dependent and bonded. Because Father failed
to raise this issue promptly before the initial judge assigned to his
case, or otherwise properly preserve this issue for appeal, his
argument with regard to venue of the [juvenile] [c]ourt to issue
an initial order regarding dependency should be deemed waived.
In any event, the Pennsylvania Juvenile Act specifically
provides, among other things, that a child protective agency may
____________________________________________
11 We recognize the dependency record was neither incorporated at the
termination hearing nor included with the certified record. Certain aspects
were, however, admitted as exhibits at the termination hearing and included
with the certified record.
12On August 3, 2020, Father filed a Motion to Dismiss for Lack of Jurisdiction.
This motion was denied by separate order entered on September 2, 2020.
See Order, 9/2/20.
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commence dependency proceedings “in the county the child is
present when it is commenced.” See 42 Pa.C.S.A. § 6321(b)(3).
As such, it is clear that the [c]ourt is statutorily granted subject
matter jurisdiction in this case.
When BCCYS took the Children into protective custody,
Father, Mother, and the Children were staying at the Rodeway
Inn, which is located within Berks County, Pennsylvania. Parents
had, in fact, been there for many months before the incident of
May 11, 2019. In any event, whether or not Mother and Father
were at the Rodeway Inn for a night, a week, or a month, they
were staying in Pennsylvania with the Children, together, when
police discovered the Children without proper parental supervision
and care. As a result, BCCYS filed emergency petitions and
subsequent dependency petitions, which the [juvenile] [c]ourt
granted after a full hearing which Father attended.
As discussed above, the statute is clear that a dependency
action may be commenced in the county where the child is
present, rather than where the child resides. The statute does
address that the [juvenile] [c]ourt may transfer proceedings to
the county a child resides in “on motion of a party or on its own
motion made after the adjudicatory hearing or at any time prior
to final disposition.” 42 [Pa.C.S.A.] § 6321(c)(1)
Father did not ask the dependency court to transfer the
proceedings to the alleged county of residence (which would
appear to be Wayne County, Michigan, if they were residents of
Detroit). BCCYS did, however, contact Michigan through the
Interstate Compact protocols to see if Michigan would assume the
case with either placement with Father, or paternal grandmother
acting as caretaker for the Children, because Father purported to
live there. Authorities in Michigan rejected both requests because
neither Father nor paternal grandmother was considered an
appropriate caregiver.
Under 42 [Pa.C.S.A.] § 6321(c)(1), the [juvenile] [c]ourt
may transfer the matter for further proceedings where the
Children reside. Assuming for the sake of argument that the
Children did previously reside in Michigan (again, no competent
evidence exists to demonstrate that they did at any time), the
appropriate agency there declined involvement, making
transferring proceedings a moot argument as the other suggested
venue refused participation. To dismiss the case, then, so that
the Children may be left to go back to the unrectified situation
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that created the need for dependency in the first instance[,] would
be directly in opposition to the Children’s best interests.
Returning focus to the question of jurisdiction, quite simply,
a petition was properly filed under the Juvenile Act regarding this
matter concerning events that occurred in Berks County,
Pennsylvania. The [c]ourt clearly has subject matter jurisdiction
under the Juvenile Act. The argument Father purports to make
sounds as a challenge to venue, rather than jurisdiction. Father
long ago waived that issue by failing to raise it before the
dependency court. Further, the Children have remained in
placement for more than one year pursuant to the [juvenile]
[c]ourt’s initial dependency and dispositional orders. Father
cannot, despite his efforts, attempt to reinvent the wheel and
deprive the [C]hildren of the permanency they deserve.
O.C.O. at 5-8 (emphasis in original) (footnotes omitted) (citation to record
omitted) (footnotes added).
We agree with the orphans’ court’s sound reasoning and conclude Father
is not entitled to relief on his first issue.13
Next, with his third issue, which we take out of order, Father argues that
his initial counsel during the dependency proceedings provided inadequate
representation. Father’s Brief at 24-25. Father contends prior counsel was
inadequate in failing to challenge jurisdiction, as well as failing to argue the
statutory language of the CPSL14 and unlawful search and seizure, in the
juvenile court. Id.
____________________________________________
13 We note that, to the extent the UCCJEA is implicated as Father alleges,
Pennsylvania contacted Michigan to see if Michigan wanted to assume
jurisdiction, which it did not. See 23 Pa.C.S.A. § 5421.
14 Child Protective Services Law (“CPSL”), 23 Pa.C.S.A § 6301 et seq.
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As to this issue, the orphans’ court stated:
It is well established that parents have a right to counsel
during dependency proceedings. Section 6337 of the Juvenile Act
specifically addresses the Right to Counsel by stating: “a party is
entitled to representation by legal counsel at all stages of any
proceedings under this chapter and if he is without financial
resources or otherwise unable to employ counsel, to have the
[t]rial [c]ourt provide counsel for him. If a party other than a
child appears at a hearing without counsel the [t]rial [c]ourt shall
ascertain whether he knows of his right thereto and to be provided
with counsel by the [t]rial [c]ourt if applicable.” 42 [Pa.C.S.A.] §
6337.
In the immediate case, Father was represented by counsel
of his choice at the Termination Hearing. Counsel had been
representing Father since at least January 2020. Prior to that,
Father had the benefit of court-appointed counsel in the
dependency proceedings, Mary Favinger, Esq. (“Attorney
Favinger”). Attorney Favinger is known by the [orphans’] [c]ourt
to be a competent and qualified member of the bar with significant
experience in dependency proceedings. Ms. Favinger attended
various court proceedings with Father and filed petitions in
November 2019 to have the Children returned to him.
Father raises the issue of having “adequate representation”
for “various hearings and in other interrelations” from May 12,
2019, until January of 2020. Father, however, fails to identify a
number of things in advancing this argument including, without
limitation:
a. which specific hearings between those dates did he
not have adequate representation?
b. What are “other interrelations?”
c. How was the representation inadequate?
Father’s testimony during the Termination Hearing is
notably devoid of discussing difficulties or issues with his prior
attorney. The one place where Father is questioned regarding his
prior representation is to inquire about a petition filed on his behalf
seeking to have the Children returned to his care. Absent some
sort of specificity as to issues with previous counsel (either in the
Concise Statement or in testimony given at the Termination
Hearing), the [orphans’] [c]ourt cannot adequately address the
issue. Issues addressed in the Concise Statement must “properly
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specify the error to be addressed on appeal.” [Commonwealth
v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011)]. “When a court
has to guess what issues an appellant is appealing, that is not
enough for a meaningful review.” [Commonwealth v. Dowling,
778 A.2d 683, 686 (Pa.Super. 2001)].
Here, in this matter, Father fails to address “inadequate
representation” or identify when this happened (either in relation
to specific hearing dates or whatever “other interrelations” might
be). What the [orphans’] [c]ourt can determine is that Father has
been represented by counsel, either his current attorney or his
previously court-appointed attorney, throughout the dependency
process and at the Termination Hearing.
O.C.O. at 8-10 (footnote omitted).
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) requires an
appellant in a Children’s Fast Track matter to submit a Concise Statement of
Errors Complained of on Appeal along with the Notice of Appeal. See Pa.R.A.P.
1925(a)(2)(i) (“The concise statement of errors complained of on appeal shall
be filed and served with the notice of appeal required by Rule 905[.]”)).
Where a Rule 1925(b) Statement does not sufficiently identify an issue on
appeal, this Court has found the issue to be waived.
Specifically:
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues.
In other words, a Concise Statement which is too vague to
allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all. While
[Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)]
and its progeny have generally involved situations where an
appellant completely fails to mention an issue in his Concise
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Statement,. . . we conclude that Lord should also apply to Concise
Statements which are so vague as to prevent the court from
identifying the issue to be raised on appeal.
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super. 2006) (quotation
omitted).
Here, in his Rule 1925(b) statement, Father averred:
Berks County CYS provided counsel to the Father for the hearing.
Was the Father adequately represented by the counsel appointed
by CYS at the various hearings and in other interrelations from
May 2, 2019, until January of 2020?
Father’s Rule 1925(b) statement, filed 9/30/20.
We agree with the orphans’ court that the issue set forth in Father’s Rule
1925(b) statement is too vague to permit meaningful review. Thus, we agree
Father waived the issue for appeal.15
Lastly, we review Father’s challenge to the orphans’ court’s termination
of his parental rights. While framed as a challenge to the termination of
parental rights, at its core Father attacks the underlying dependency. Father
again essentially argues that there was no jurisdiction under the UCCJEA and
there was no evidence of child abuse as defined by the CPSL. Father’s Brief
at 19-24. He summarizes:
____________________________________________
15 We further recognize that Father raises this issue for the first time on
appeal. Thus, we would also find this issue waived on this basis. See
Pa.R.A.P. 302(a) (providing for waiver of issues not first raised in lower court).
Moreover, to the extent this claim is a challenge to the orders of adjudication
and disposition, we would find that such a challenge, similar to that of
jurisdiction, is untimely. See Pa.R.A.P. 903(a).
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Clearly, all that can be concluded in this case is that the
decision of the Berks County Judge to take the [C]hildren from
their parents and to ultimately terminate their parental rights was
unlawful because [BCCYS] did not meet the criteria as set out in
23 [Pa.C.S.A.] § 5424, 23 [Pa.C.S.A.] § 6303, nor the decision of
our Supreme Court in [In Re: D.R., _ Pa. _, 232 A.3d 547(2020)], and as a result, the decision must be reversed and the
children returned to their natural parents for further proceeding
regarding custody.
Id. at 22-23.
As indicated above, any challenge to the orders of adjudication and
disposition is procedurally flawed. Moreover, Father fails to address the
appropriate law and standards set forth for termination of parental rights.
Nonetheless, we analyze the termination of parental rights and sufficiency of
the evidence.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at 827. We have previously emphasized our deference to trial
courts that often have first-hand observations of the parties
spanning multiple hearings. See In re R.J.T., [608 Pa. 9, 26-27,
9 A.3d 1179, 1190 (2010)].
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In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “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.”
In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
“[I]f competent evidence supports the trial court’s findings, we will affirm even
if the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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). We have
defined clear and convincing evidence as that which 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
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C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).
In the case sub judice, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We have long
held that, in order to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a), as well
as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the court’s termination decree pursuant to
Section 2511(a)(2) and (b), which provide as follows:
(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 incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
...
(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.A. § 2511(a)(2), and (b).
With regard to termination of parental rights pursuant to Section
2511(a)(2), we have indicated:
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
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. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
(quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002)). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability of services,
may properly be rejected as untimely or disingenuous.” In re A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
Further, as to whether termination was proper under Section 2511(b).
As to Section 2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
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physical and emotional needs and welfare of the child.” 23
Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
child have been properly interpreted to include “[i]ntangibles such
as love, comfort, security, and stability.” In re K.M., 53 A.3d
781, 791 (Pa.Super. 2012). In In re E.M. [a/k/a E.W.C. & L.M.
a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485 (1993)],
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791. However, as
discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946 A.2d
753, 762-63 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal
citations omitted).
Moreover,
While a parent’s emotional bond with his 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.
[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,
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comfort, security, and stability the child might have
with the foster parent. . . .
In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
Instantly, in terminating Father’s parental rights, the orphans’ court
reasoned:
The [orphans’] [c]ourt can appreciate that Father cares for
the Children. That said, given numerous opportunities, Father has
not shown he can comply with and follow through with [c]ourt-
ordered obligations. Father began but failed to complete mental
health counseling. Father initially participated in some urinalysis
but stopped, including directly refusing on days when ordered by
the [t]rial [c]ourt. Father initially regularly participated with
visitations but stopped seeing either [c]hild after visitations were
reduced to when therapeutically recommended for one of them.
Father failed to keep in regular contact with BCCYS and when he
would communicate it was often unreasonable and certainly
unproductive.
Based upon Ms. Sanders[’] testimony, the Children are
bonded with the foster parents. Terminating Father’s parental
rights will not detrimentally affect the Children. In fact, the foster
parents are resources who can continue to meet the Children’s
developmental, physical, and emotional needs. It is, therefore, in
the Children’s best interest to continue in the care of their foster
parents.
Father was unable or unwilling to comply with [c]ourt-
ordered services and to make the changes necessary to provide
for a safe, healthy, and permanent living environment for the
Children. In fact, as recently as the Termination Hearing, Father
was residing in a residence for homeless men.
After much reflection on the matter, and after careful
consideration, the [orphans’] [c]ourt terminated Father’s parental
rights to offer the Children the permanency they need. The
Children deserve stability, permanency, and an opportunity to
grow up in an environment free of the disruption and turmoil
surrounding the dependency process.
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Here, Father’s “right to the custody and rearing of [C]hildren
is converted, upon the failure to fulfill his parental duties, to the
[C]hildren’s right to have proper parenting and fulfillment of his
or her potential in a permanent, healthy safe environment.” [In
re: B.L.W.], 843 A.2d at 388. As the Superior Court has
observed, “it is time to give [the children] a chance to have [their]
fundamental needs met without the constant insecurity that
comes with knowing that someday, perhaps in the unreasonably
distant future, [they] might again be wrenched away from [their]
committed and capable caregivers.” [Id.] (quoting [In re N.C.,
763 A.2d 913, 919 (Pa.Super. 2000])).
For the foregoing reasons, the [orphans’] [c]ourt found that
BCCYS carried its burden of establishing by clear and convincing
evidence that Father’s parental rights should be terminated, and
that, in fact, it is in the best interest of the children that this occur.
As such, the [t]rial [c]ourt entered its Decree terminating the
parental rights of Father to the [C]hildren.
O.C.O. at 15-17 (footnotes omitted) (some brackets in original).
A review of the record supports the orphans’ court’s finding of grounds
for termination under Section 2511(a)(2). The record reveals that Father
failed to complete his objectives aimed at reunification with the Children. N.T.,
8/28/20, at 9-11, 30, 33-34; N.T., 8/24/20, at 12-14, 16-18, 21, 30-34. Carla
Sanders, BCCYS Adoption Supervisor, testified:
I mean, I think the issue is that the kids were brought into the
care -- I have drug and alcohol, mental health. At the time there
was -- at the time of the dependency hearing, the court found a
list of services that they ordered [M]other and [F]ather to comply
with, and those services have not been completed at this time. . .
.[16] The only services [Father] successfully completed in Michigan
____________________________________________
16 As to the specific services, Ms. Sanders testified:
Q[.] What services were [M]other and [F]ather ordered to
cooperate with?
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was the domestic violence treatment and anger management
treatment, which he clearly has not addressed the issues because
many of the incidents that had occurred were after that service
was completed.
N.T., 8/28/20, at 9-10. While acknowledging Father engaged in services, Ms.
Sanders explained, “I never said he didn’t participate. He did participate in
services. He has not completed any services successfully.” Id. at 11.
Hence, the record substantiates the conclusion that Father’s repeated
and continued incapacity, abuse, neglect, or refusal has caused the Children
to be without essential parental control or subsistence necessary for their
physical and mental well-being. See In re Adoption of M.E.P., 825 A.2d at
1272. Moreover, Father cannot or will not remedy this situation. See id. As
we discern no abuse of discretion or error of law, we do not disturb the
orphans’ court’s findings.
As to Section 2511(b), upon review, we likewise discern no abuse of
discretion. The record supports the orphans’ court’s finding that the Children’s
developmental, physical and emotional needs and welfare favor termination
____________________________________________
A[.] Mother was ordered to cooperate with a mental health
evaluation and any recommendation, parenting education, drug
and alcohol evaluation and any recommendation, random
urinalysis, casework services and any recommendations, and
establishing and maintaining stable and appropriate housing and
income, notifying BCCYS of any residence or income and signing
releases as requested. Father was court ordered to participate in
the same services.
N.T., 8/24/20, at 9. She emphasized that BCCYS workers, including herself,
had conversations with Father as to what services were required for
reunification. N.T., 8/28/20, at 33-34.
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of Father’s parental rights pursuant to Section 2511(b). See T.S.M., 620 Pa.
at 628-29, 71 A.3d at 267. Ms. Sanders observed that the Children are doing
well in their foster home with their needs met. N.T., 8/24/20, at 35; N.T.,
8/24/20, at 18-19. Similarly, Ms. Sanders opined that there would be no
resulting harm to the Children through termination of parental rights. N.T.,
8/28/20, at 32-33. She testified:
Q[.] And do you see any detriment to the [C]hildren if parental
rights are terminated in this case?
A[.] I do not. Neither of the children are seeing their father,
either of the parents in over six months, and at this point, they
are living in the foster home. They have made significant
progress. The only reports that we have of the [C]hildren talking
about their parents is [Y.K.L.], and those conversations that she
has are in the negative form towards dad. When she’s talking
about daddy, it’s daddy hit you, daddy yelled at you, things of that
nature.
Id. As a result, Ms. Sanders further opined it was in the Children’s best
interests to terminate parental rights. N.T., 8/24/20, at 21. She explained:
Q[.] Why is it the [A]gency feels it’s in the best interest of the
[C]hildren for the parental rights to be terminated?
A[.] Neither parent had completed any of the court-ordered
services they were court ordered to do. At this point, the
[C]hildren have not seen their parents since January of 2020.
They have formed a positive bond with their foster parents and at
this point these kids needs permanency and to be able to move
on with their lives.
Id.While Father may profess to love the Children, a parent’s own feelings
of love and affection for a child, alone, will not preclude termination of parental
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rights. In re Z.P., 994 A.2d at 1121. At the time of the conclusion of the
hearings, the Children had been in placement for over a year, and are entitled
to permanency and stability. As we stated, a child’s life “simply cannot be put
on hold in the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” Id. at 1125. Rather, “a parent’s basic
constitutional right to the custody and rearing of his child is converted, upon
the failure to fulfill his or her parental duties, to the child’s right to have proper
parenting and fulfillment of his or her potential in a permanent, healthy, safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (citation
omitted).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the orphans’ court appropriately terminated
Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2021
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