In the Interest of: Y.J.B.J. a/k/a Y.J., Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Y.J.B.J. A/K/A : IN THE SUPERIOR COURT OF
Y.J., A MINOR : PENNSYLVANIA
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APPEAL OF: W.J., FATHER :
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: No. 3539 EDA 2017
Appeal from the Decree Entered September 27, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000559-2017,
CP-51-DP-0001856-2016
IN THE INTEREST OF: E.S.J. A/K/A : IN THE SUPERIOR COURT OF
E.J., A MINOR : PENNSYLVANIA
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APPEAL OF: W.J., FATHER :
:
:
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: No. 3540 EDA 2017
Appeal from the Decree Entered September 27, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000560-2017,
CP-51-DP-0001947-2016
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MAY 18, 2018
W.J. (“Father”) appeals from the trial court’s decrees1 entered
September 27, 2017, which granted the petition filed by the Philadelphia
Department of Human Services (“DHS”) to involuntarily terminate his parental
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1 This Court consolidated the cases sua sponte on December 5, 2017.
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* Former Justice specially assigned to the Superior Court.
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rights to his daughters, Y.J.B.J., born in February of 2009, and E.S.J., born in
November of 2014 (collectively, “Children”), pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8) and (b).2 After careful review, we affirm.
The trial court thoroughly summarized the facts and procedural history
of this case, in relevant part, as follows:
DHS became involved with this family on November 28, 2014,
when DHS received a General Protective Services (“GPS”) report
that [M]other gave birth to [E.S.J. i]n November [of] 2014, and
both tested positive for marijuana at the time of delivery;
[Y.J.B.J.] was in the care of Father; Father admitted to having a
criminal history but did not provide specific information. [E.S.J.]
was subsequently released to both parents and referrals were
made for community-based services.
The family became involved with DHS again on August 15, 2016,
when DHS received a GPS report alleging that paramedics were
called to the family home; [Y.J.B.J.] told mother that she had been
sexually abused by a family friend; [Y.J.B.J.] gave inconsistent
information regarding the alleged abuse; [Y.J.B.J.] suffers from
asthma and autism; Father was intoxicated when the paramedics
arrived at the home; Father knew the family friend who committed
the alleged abuse; Father admitted to drinking alcohol; Father and
[M]other began arguing in the presence of the paramedics; Father
accused [M]other of being a long-time drug user; [M]other stated
that Father had sexually abused [Y.J.B.J.] in the past; Father
wanted [Y.J.B.J.] to be examined at the hospital, but [M]other did
not; and [Y.J.B.J.] was transported to Hahnemann University
Hospital. This report was substantiated. DHS received a
supplemental GPS report on August 16, 2016. The report stated
that [Y.J.B.J.] was transported to Hahnemann University Hospital;
Father appeared to be intoxicated and was belligerent; Father told
hospital staff that [Y.J.B.J.] had been sexually abused by
[M]other’s paramour and that a knife had been involved in the
incident; a medical examination was performed and . . . the
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2 By separate decrees, the trial court involuntarily terminated the parental
rights of Y.J.J. (“Mother”) on September 27, 2017. Mother did not file separate
appeals, nor is Mother a party to the instant appeals.
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results revealed no findings; [Y.J.B.J.] was transferred to
Children’s Hospital of Philadelphia (“CHOP”) by ambulance. This
report was substantiated.
On August 23, 2016, Father and [C]hildren went to the
Philadelphia Children’s Alliance (“PCA”) for [Y.J.B.J] to be
interviewed. PCA observed that Father smelled of alcohol and that
[E.S.J.] was dressed in a shirt, diaper, and shoes that appeared
to be the wrong size. PCA also observed that Father and
[C]hildren had an unpleasant odor. DHS conducted an
unannounced visit on the same date, August 23, 2016, at Father’s
home. [C]hildren were not present in the home during the visit.
DHS observed that Father was intoxicated and Father admitted
that he drank alcohol when the children were not present.
On August 26, 2016, DHS conducted another unannounced visit
at Father’s home. DHS observed that [Y.J.B.J.] was in severe
respiratory distress. Father gave [Y.J.B.J.] an inhaler, but the
respiratory distress continued. Father told DHS that [Y.J.B.J.] has
asthma medication, but that it can only be taken with meals.
Father also told DHS that he had given [Y.J.B.J.] a nebulizer
treatment earlier that day. DHS called an ambulance and Father
became upset and stated that [Y.J.B.J.] did not need hospital
treatment. The paramedics arrived at Father’s home and stated
that the inhaler Father gave to [Y.J.B.J.] was empty and that the
child was in severe respiratory distress. [Y.J.B.J.] was then
transported to St. Christopher’s Hospital for Children for
treatment. While at the hospital, Father stated that [Y.J.B.J.] was
faking her symptoms. On August 26, 2016, DHS obtained an
OPC[3] for [Y.J.B.J.] and placed the child with her adult sister
[(“Kinship Parent”)]. On August 27, 2016, [Kinship Parent] went
to Father’s home to get [Y.J.B.J.’s] clothing and [Kinship Parent]
agreed that [E.S.J.] could also reside with her.
Trial Court Opinion, 1/17/18, at 1–3 (footnote omitted).
The trial court entered a shelter care order for Y.J.B.J. on August 29,
2016, and adjudicated Y.J.B.J. dependent on September 7, 2016. At Y.J.B.J.’s
adjudication hearing, the trial court also ordered DHS to obtain an OPC for
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3 Order for Protective Custody.
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E.S.J., which DHS obtained that same day. E.S.J. was adjudicated dependent
on September 21, 2016.
Following Children’s adjudication of dependency, the Community
Umbrella Agency (“CUA”) prepared a Single Case Plan (“SCP”) for Father on
October 28, 2016. Father’s SCP objectives were to: (1) comply with CUA
services and recommendations; (2) participate in supervised visits with
Children at the agency; (3) sign all necessary educational documents for
Children; (4) comply with all CEU recommendations; (5) enroll in drug
treatment through NorthEast Treatment Center (“NET”); (6) submit to three
random drug screens before the next court date; and (7) participate in
Achieving Reunification Center (“ARC”) services. See Petition for Involuntary
Termination of Parental Rights, 5/18/17, at Exhibit A (referencing DHS Exhibit
10); N.T., 9/27/17, at 71.
For the next year, Father made little progress toward complying with
these objectives. Accordingly, on May 18, 2017, DHS filed a petition to
terminate Father’s parental rights to Children and a petition to change
Children’s permanency goal from reunification to adoption. The trial court
held a joint hearing on the petitions on September 27, 2017, during which it
heard testimony of CUA case manager Tashera Maldonado, and Father.4 At
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4 Children had the benefit of both legal counsel and a guardian ad litem during
the hearing. N.T., 9/27/17, at 5–6.
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the conclusion of the hearing, the trial court orally delivered its decree
terminating Father’s parental rights and changing the permanency goal to
adoption and entered its decree that same day. Decrees, 9/27/17. On
October 27, 2017, Father filed a timely notice of appeal along with a concise
statement of errors complained of on appeal.
Father raises a single issue for our review:
1. Did the lower court err in changing the goal to adoption
and terminating [Father’s] parental rights under 23 Pa.C.S. §[]
2511(a)(1), (2), (5), (8) because [DHS] failed to establish by clear
and convincing evidence that [Father] has evidence[d] a settled
purpose of relinquishing his claim to [Children] or has refused or
failed to . . . perform his parental duties; that [Father] cannot or
will not be able to remedy his incapacity, abuse, neglect or refusal;
and that [Father] cannot or will not remedy the conditions which
led to the removal or placement of the children.
Father’s Brief at 3.5
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5 In his notice of appeal and Pa.R.A.P. 1925 statement, Father indicated that
he is appealing both the termination of his parental rights and the trial court’s
decision to change Children’s permanency goal to adoption. In his brief,
however, Father has abandoned any argument relating to the goal-change
determination. Accordingly, we find any issue related to the goal change
waived. Banfield v. Cortes, 110 A.3d 155, 168 (Pa. 2015) (“Where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived. It is not the obligation of an appellate
court to formulate [an] appellant’s arguments for him.” Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2014)); In re M.Z.T.M.W., 163 A.3d
462, 465 (Pa. Super. 2017) (“It is well-settled that this Court will not review
a claim unless it is developed in the argument section of an appellant’s brief.”).
Moreover, even if not waived, we would affirm the trial court’s decision to
change the goal based upon its thorough and detailed opinion. Trial Court
Opinion, 1/17/18, at 17–20.
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In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
1179, 1190 (Pa. 2010). 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.; In re R.I.S., 614 Pa.
275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion. Id.;
see also Samuel-Bassett v. Kia Motors America, Inc., 613
Pa. 371, 455, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575
Pa. 647, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may
be reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.
Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite result,
as is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the trial court
and impose its own credibility determinations and judgment;
instead we must defer to the trial judges so long as the factual
findings are supported by the record and the court’s legal
conclusions are not the result of an error of law or an abuse of
discretion. In re Adoption of Atencio, 539 Pa. 161, 165, 650
A.2d 1064, 1066 (Pa. 1994).
In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
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The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that the “standard of clear and convincing evidence is defined
as testimony 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.’” Id. (quoting In re J.L.C., 837 A.2d 1247, 1251
(Pa. Super. 2003)). Moreover, this Court may affirm the trial court’s decision
regarding the termination of parental rights with regard to any one subsection
of Section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
In this case, the trial court terminated Father’s parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Here, we analyze the trial
court’s decision to terminate under Section 2511(a)(2) and (b), which provide
as follows:
§ 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 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. § 2511(a)(2) and (b). This Court has explained that the focus in
terminating parental rights under Section 2511(a) is on the parent, but under
Section 2511(b), the focus is on the child. In re Adoption of C.L.G., 956
A.2d 999, 1008 (Pa. Super. 2008) (en banc).
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
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In its opinion, the trial court concluded that Father is incapable of
parenting Children and that Father cannot, or will not, remedy his parental
incapacity. Trial Court Opinion, 1/17/18, at 9–11. The court found credible
Ms. Maldonado’s testimony that Father failed to comply with his SCP
objectives. Id.
In response, Father argues that he completed a dual diagnosis program
and parenting program. Father’s Brief at 9. Father contends that because he
completed his dual diagnosis program the morning of the termination hearing,
he was never afforded the opportunity to demonstrate his sobriety after
receiving treatment. Id. Father asserts that the record demonstrates that he
is “diligently remedying” the issues that led to Children’s removal and that it
would not be in Children’s best interest to terminate Father’s parental rights.
Id.6
Our review of the record supports the trial court’s findings. During the
termination hearing, Ms. Maldonado testified that Father has failed to address
his drug and alcohol issues. N.T., 9/27/17, at 17–21. Ms. Maldonado noted
that although Father completed an outpatient drug and alcohol program at
STOP,7 he completed the program on the day of the termination hearing and
continued to produce positive urine screens while participating in the program.
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6 We are compelled to note that Father’s argument in his brief, in addition to
setting forth the relevant standards and statute, consists of two paragraphs.
Father’s Brief at 9.
7 The full name of this program is not revealed in the record.
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Id. at 17-21, 47–48. Specifically, Ms. Maldonado noted that Father tested
positive for marijuana on June 28, 2017, and September 7, 2017, merely
twenty days prior to the termination hearing. Id. at 18-19. Likewise,
Ms. Maldonado recalled that Father attended a visit with Children visibly
“inebriated, disengaged and even slumped over in the chair.” Id. at 17. She
testified that although Father attended all of his visits with Children, he does
not engage in the visits and “there’s very little contact between him [and] the
girls.” Id. at 24.
In addition to these issues, Ms. Maldonado testified that Father had not
completed a parenting program or addressed his anger management issues.
N.T., 9/27/17, at 21. Father also remains without appropriate housing. Id.
at 16, 33–35. Father reported to CUA that there was a raccoon problem in
his neighborhood and Father’s home lacks the appropriate barriers to protect
animals from entering his home. Id. at 34. Finally, Father’s mental health
continues to be a concern. Id. at 21. At the time of the termination hearing,
Father had provided no documentation that he had been evaluated or is
addressing his mental health issues. Id.
Based on the foregoing, we discern no abuse of discretion by the trial
court in terminating Father’s parental rights pursuant to Section 2511(a)(2).
Father’s repeated and continued incapacity, neglect, or refusal to perform his
parental duties has caused Children to be without essential parental care,
control or subsistence necessary for their physical and mental well-being.
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Father’s failure to meet his objectives supports the trial court’s conclusion that
Father refuses to remedy the conditions that led to Children’s placement.
Having determined that Father’s parental rights were properly
terminated under Section 2511(a)(2), we engage in the second part of the
analysis pursuant to section 2511(b), in which we determine if termination
serves the best interests of Children. In re L.M., 923 A.2d 505, 511 (Pa.
Super. 2007). Instantly, Father has not presented a specific challenge to the
termination of his parental rights under Section 2511(b); however, we decline
to find waiver and shall address the trial court’s findings. See Adoption of
C.L.G., 956 A.2d at 1010 (addressing Section 2511(b) despite the mother’s
failure to challenge the trial court’s determination under that subsection).
We have explained that the focus in terminating parental rights under
Section 2511(a) is on the parent, but under Section 2511(b), the focus is on
the child. Adoption of C.L.G., 956 A.2d at 1008. In reviewing the evidence
in support of termination under Section 2511(b), our Supreme Court stated
as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 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., [620 A.2d 481, 485 (Pa. 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.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the 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). While a bonding evaluation may be conducted and made
part of the certified record, “[t]here are some instances . . . where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
The trial court made the following determinations relative to the bond,
or lack thereof, between Father and Children, and the needs and welfare of
Children:
Father has attended all scheduled visits with [C]hildren but he
does not engage with [C]hildren at the visits. Instead, Father
engages with the caregivers during visits and has very little
contact with [C]hildren while the children play with each other.
(N.T. 09/27/17, pgs. 23-24). At one visit, Father appeared
intoxicated and disengaged. (N.T. 09/27/17, pg. 17). Although
the children recognize Father, the CUA Case Manager has never
observed [C]hildren referring to Father as “dad.” (N.T. 09/27/17,
pg. 44). Father has failed to graduate past weekly supervised
visits at the agency. Father wants [C]hildren to return to his care
because it would enable him to resume receiving [C]hildren’s
social security benefits. (N.T. 09/27/17, pgs. 22-23). [C]hildren
are currently placed in a stable, loving kinship home and have
been in this home since August 2016. The kinship parent,
[C]hildren’s older sister, is meeting their everyday needs and have
bonded. This kinship home provides [C]hildren with structure that
they lacked with Father. Father has never attended any medical
appointments, while he has had many opportunities to ask when
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the appointments are scheduled since he often interacted with the
caregivers during the scheduled visits. Additionally, Father does
not attend any school functions or parent-teacher conferences for
[Y.J.B.J.].7 (N.T. 09/27/17, pgs. 24-25). The kinship parent has
advocated greatly on [Y.J.B.J.’s] behalf with the school district to
get her the services she needs and receives support in the kinship
home. (N.T. 09/27/17, pg. 30). [C]hildren would not suffer any
irreparable harm if Father’s rights were terminated (NJ. 09/27/17,
pgs. 25-26). [C]hildren do not share a positive, healthy, paternal
relationship with Father and there is no bond between [C]hildren
and Father. (N.T. 09/27/17, pgs. 25-26, 27-28, 44-45). The
kinship parent is very responsive in taking care of [C]hildren.
(N.T. 09/27/17, pgs. 24-25). The record establishes by clear and
convincing evidence that termination would not sever an existing
and beneficial relationship. Father has failed to create any
parental bond with [C]hildren by not being fully engaged during
the visits. The trial court’s termination under [Section] 2511(b)
was proper and there was no abuse of discretion.
7 Only [Y.J.B.J.] attends school. [E.S.J.] is three years old.
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Trial Court Opinion, 1/17/18, at 17.
After careful review of the record in this matter, we conclude that the
record supports the trial court’s factual findings, and the trial court’s
conclusions are not the result of an error of law or an abuse of discretion with
regard to Section 2511(b). Accordingly, it was proper for the trial court to
determine that there was no bond such that Children would suffer permanent
emotional harm if Father’s parental rights are terminated and that termination
served the needs and welfare of Children.
For the reasons set forth above, we conclude that Father is entitled to
no relief. Therefore, we will not disturb the trial court’s determination, and
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we affirm the decrees involuntarily terminating Father’s parental rights to
Children.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/18
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