In Re:Adoption of K.L.M. a minor, Appeal of K.A.C. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: K.L.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.A.M., NATURAL :
FATHER :
:
:
: No. 272 WDA 2017
Appeal from the Order Entered January 6, 2017
in the Court of Common Pleas of Westmoreland County
Orphans’ Court at No(s): 85 of 2016
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 15, 2018
Appellant, K.A.M. (“Father”), files this appeal from the order dated
January 5, 2017, and entered on January 6, 2017,1 in the Westmoreland
County Court of Common Pleas, granting the petition of the Westmoreland
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1 The subject order was dated January 5, 2017. However, the clerk did not
provide and docket notice pursuant to Pa.R.C.P. 236(b) until January 6, 2017.
Our appellate rules designate the date of entry of an order as “the day on
which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b).
Further, our Supreme Court has held that “an order is not appealable until it
is entered on the docket with the required notation that appropriate notice
has been given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735
A.2d 113, 115 (1999).
* Former Justice specially assigned to the Superior Court.
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County Children’s Bureau (the “Agency”) and involuntarily terminating
Father’s parental rights to his minor son, K.L.M. (“Child”), born in December
of 2013, pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).2, 3 After a
careful review, we affirm the trial court’s order.
The trial court summarized the relevant procedural and factual history
as follows:
This matter stems from an underlying dependency case at
No. CP-65-DP-[]-2016 (the “dependency case”). The minor child,
K.L.M., was born [in] December [of] 2013, with biological mother
testing positive for marijuana. This initiated involvement with the
[Agency]. A case was opened to initiate services for the biological
mother and Father with regard to K.L.M. and his half-brother, who
was also under the care of the biological mother and Father, and
who had previously been the subject of several agency referrals.
During the assessment phase, numerous concerns were brought
to light, including inadequate housing and parenting, and mental
health concerns for both parents, including Father’s persistent
issue with anger.
K.L.M. was adjudicated dependent on June 19, 2014. This
was based on an incident in which the biological mother was
present in her apartment with the minor child, his half-sibling, and
two men. Mother and one of the men became involved in a
physical altercation in which K.L.M.’s crib was shoved and knocked
over with the child inside. The same men also choked K.L.M.’s
three-year-old half-brother. For approximately the first year after
the child’s adjudication, Father struggled to complete various
services. He was initially ordered into anger management,
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2 By separate order entered the same date, the trial court involuntarily
terminated the parental rights of S.A.T. (“Mother”) with respect to Child
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Mother neither
filed a separate appeal nor is a party to the instant appeal.
3 Mother’s older son and Child’s half-brother, K.J.M., Jr., was also a subject of
the termination proceedings in question. He is, however, not a subject of the
instant appeal.
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however he did not get along with the assigned counselor, and his
anger issues appeared to worsen at this time. By May of 2015,
Father was being escorted out of multiple visits because of his
temper, and he was moved from merely supervised visitation to
therapeutic visitation with the child.
Father’s progress at this point, however, seemed to turn
around. Father was heavily involved with therapist Alexis
Jacomen of King and Associates over this time period, as she was
his supervised visitation specialist beginning in July of 2015. Ms.
Jacomen testified that Father made substantial progress in this
time, and was compliant with her directives. Father seemed
excited to parent K.L.M. while being compliant with all ordered
services, including anger management through a different
provider. Ms. Jacomen found Father consistently attentive and
engaged with regard to the child; he appeared to be set on the
path to reunification, and the Permanency Review Orders
throughout this time period are reflective of the same.
Due to Father’s progress, a trial home visit was scheduled
with the child and the child’s half-sibling, beginning on February
5, 2016. During the pendency of the trial home visit, Father began
to display worrisome behaviors including asking the caseworker
to bring him essential supplies such as food and diapers. During
the visit, which lasted less than two weeks, Father also asked the
foster mother to babysit the children as they had become
overwhelming for him. According to testimony from Ms. Jacomen,
it quickly became apparent that Father was unable to successfully
parent the children on his own due to these and similar concerns,
however the trial home visit was brought to an even quicker end
because of criminal allegations against Father that surfaced at this
time. It was alleged that Father had inappropriate sexual relations
with a thirteen-year-old. Father was eventually determined to be
an indicated perpetrator of this abuse. K.L.M. and his half-sibling
were removed from Father’s care on February 13, 2016, due to
these allegations.
At this point, Father was moved back to supervised
visitation with Ms. Jacomen. She describes Father’s parenting
from February through May as being on a severe downhill slide.
She states that Father cancelled a number of the visits and when
he did appear, he would be distant from the child, sometimes
staying on his phone via Bluetooth for the duration of the visit.
Ms. Jacomen would attempt to redirect Father to focus on the
child, however he would continue to discuss his pending criminal
case, often while becoming agitated and using inappropriate
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language in front of the child. Ms. Jacomen testified that Father
was behaving in a completely opposite manner compared to his
parenting before the trial home visit, and that no amount of
redirection was successful. Father’s sudden shift in attitude
toward K.L.M. was confusing and distressing to the child, even
bringing him to the point of tears. The caseworker testified that
Father’s anger issues are presently back to the same level as when
the case was initially opened for service.
Father’s criminal involvement regarding the February 2016
allegations is detailed at Docket Number [ ]. Father is currently
charged with statutory sexual assault with a victim over age
eleven, involuntary deviate sexual intercourse with a person less
than sixteen years of age, criminal solicitation of child
pornography, child pornography, corruption of minors, contact or
communication with a minor constituting sexual abuse, criminal
use of a communication facility, and indecent assault of a person
less than sixteen years of age. All charges have been waived for
trial, and all charges, excepting the last, are felony charges.
Father was incarcerated in the Westmoreland County Prison on
May 27, 2016, where he presently remains, awaiting trial.[4]
Testimony was given by Corrections Counselor, Derek
Enciso, who has worked with Father at the prison throughout his
incarceration. Mr. Enciso works with Father during his time in
disciplinary segregation, which he described as an inmate being
removed from the general prison population as a punishment for
disciplinary infractions. He described Father’s behaviors as
excessively violent and defiant, even when compared to other
individuals in the prison population. Mr. Enciso described
numerous instances of Father’s disobedient and sometimes
aberrant behaviors placing him in disciplinary segregation for
weeks at a time, accounting for a large portion of Father’s total
time in prison up to the point of the January 5, 2017, hearing.
Father’s first infraction occurred on June 9, 2016, not even
two weeks into his incarceration. On this occasion, Father
physically resisted movement, refused to obey the corrections
officer, and created a disturbance by destroying security
equipment, leading to twenty (20) days of disciplinary
segregation. On July 19, 2016, Father received thirty (30) days
of disciplinary segregation for creating a disturbance and
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4As reflected by the criminal docket, all charges were held for court on August
16, 2016. See Agency Exhibit 2.
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disrupting normal operations by disobeying lawful written orders.
On September 13, 2016, Father received disciplinary segregation
for an incident which involved an assault with possession of a
deadly weapon; specifically, Father placed sharpened pencils
between his fingers in a closed fist and wrapped his hand with torn
bed sheets to secure the pencils in a porcupine-like manner,
before repeatedly punching another inmate. On November 14,
2016, Father resisted physical movement, disrespected
corrections staff, and threatened them with bodily harm. Within
the same incident, Father threw bodily fluids and human fecal
matter at others. He received a total of sixty (60) days of
disciplinary segregation for this incident, continuing through the
time of the January 5, 2017, hearing.
Owing to the above disciplinary infractions, Father has been
placed in disciplinary segregation for a large part of his time in the
Westmoreland County Prison. When a prisoner is subject to
disciplinary segregation, he or she is unable to have any parent-
child visitation, and he or she is limited in participation in
educational programs. Father’s disciplinary segregation has
prevented Father from participating in a parenting program in
which he initially enrolled, and it has prevented him from any
visitation with the minor child. Alexis Jacomen testified that, at
least once per month since the beginning of Father’s incarceration,
she contacted the prison to set up visitation with Father and
K.L.M., but each time she was informed that Father was in
disciplinary segregation and was not able to visit with the child.
For this reason, Father has had no contact with K.L.M. since May
20, 2016. Father has not even attempted to send K.L.M. any
letters, cards, or gifts since that time.
K.L.M. is currently thriving in his foster home. The
caseworker, Colleen Flynn, reported that because he was placed
in foster care at five (5) months of age, K.L.M. never had any
issues adjusting. She states that he is consistently happy and
pleasant-tempered child, and that he is very attached to both his
foster parents and his foster siblings. She stated that he does not
speak about or inquire of Father. The Court Appointed Special
Advocate noted that when the child was asked to bring in a family
photo for school show-and-tell, the child proudly presented a
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picture of his foster family, stating to the teacher “all of these
people are in my family, and they all love me.”[5]
Trial Court Opinion (“T.C.O.”), 3/7/17, at 2-5 (footnotes added).
On August 5, 2016, the Agency filed petitions seeking to involuntarily
terminate parental rights. The trial court conducted a hearing on the
termination petitions on January 5, 2017. In support thereof, the Agency
presented the testimony of the following: Derek Enciso, 6 corrections
counselor, Westmoreland County Prison; Alexis Jacomen, therapist and
supervised visitation specialist, King & Associates; Amber Gordon,
permanency specialist, Project Star;7 Colleen Flynn, Agency caseworker; and
Mary Koziara, the Court Appointed Special Advocate (“CASA”). Father, who
was represented by counsel, did not present any evidence on his behalf. 8
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5Upon review of the Notes of Testimony, it appears that the CASA was actually
referring to Child’s half-brother, and not Child, with regard to this statement.
Notes of Testimony (“N.T.”), 1/5/17, at 121-22; see also Judicial Exhibit 1 at
3.
6 Mr. Enciso is improperly identified as Derek Encisco in the Notes of
Testimony.
7Ms. Gordon’s testimony was relevant to Mother and the termination of
Mother’s parental rights.
8 It is unclear whether Father was present, participated via telephone from
prison, or neither, at the January 5, 2017, hearing. We observe that, while
the trial court discusses the lack of Father’s former counsel’s filing a transport
order, counsel appears to consult with Father during the proceeding. N.T.,
1/5/17, at 4-5, 131.
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Mother, present and also represented by counsel, testified on her own behalf.
Child was represented by a guardian ad litem, Doreen N. Petonic, Esquire,
during the proceedings.
Following the hearing, on January 6, 2017, the trial court entered an
order involuntarily terminating the parental rights of Father pursuant to 23
Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).9 On February 6, 2017, Father,
through counsel, filed a notice of appeal, along with a concise statement of
errors appointed complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i)
and (b).10, 11
On appeal, Father raises the following issues for our review:
I. Whether the trial court erred in finding by clear and
convincing evidence that the [Agency] met its burden,
under 23 [Pa.C.S.A. § 2511(b)], that the best interest of the
Child is met by terminating Father’s parental rights?
II. Whether the trial court erred by not appointing counsel for
the Child pursuant to 23 [Pa.C.S.A. § 2313(a)]?
Father’s Brief at 4.
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9 This order memorialized the decision placed by the court on the record at
the conclusion of the hearing. N.T. at 147-50.
10 While the notice of appeal should have generally been filed no later than
February 4, 2017, February 4th fell on a Saturday. Hence, the notice of appeal
was timely filed on Monday, February 6, 2017. See Pa.R.A.P. 903(a) (notice
of appeal shall be filed within thirty days after the entry of the order from
which the appeal is taken); 1 Pa.C.S.A. § 1908 (computation of time).
11 Subsequent to the filing of a notice of appeal and concise statement of
errors complained of on appeal, new counsel was appointed for Father.
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Initially, we address Father’s second issue with regard to the
appointment of counsel for Child pursuant to 23 Pa.C.S.A. § 2313(a). Father
argues that the instant matter should be remanded to the trial court to appoint
counsel for Child and conduct a new termination proceeding. Father’s Brief at
8. Both the Agency and guardian ad litem suggest waiver of this issue for
Father’s failure to raise it before the trial court and/or failure to raise it in his
concise statement of errors complained of on appeal. Agency’s Brief at 14-
15; Guardian ad litem’s Brief at 7-8. While we do not find waiver, we find that
Father’s claim lacks merit.
As to the appointment of counsel to represent a child in involuntary
termination proceedings, 23 Pa.C.S.A. § 2313(a) provides:
§ 2313. Representation.
(a) Child.--The court shall appoint counsel to represent the child
in an involuntary termination proceeding when the
proceeding is being contested by one or both of the parents.
The court may appoint counsel or a guardian ad litem to
represent any child who has not reached the age of 18 years
and is subject to any other proceeding under this part
whenever it is in the best interests of the child. No attorney
or law firm shall represent both the child and the adopting
parent or parents.
Our Supreme Court, in In re Adoption of L.B.M., 639 Pa. 428, 441-
42, 161 A.3d 172, 180 (2017) (plurality), held that Section 2313(a) requires
that counsel be appointed to represent the legal interests of any child involved
in a contested involuntary termination proceeding. The Court defined a child’s
legal interests as synonymous with his or her preferred outcome and distinct
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from a child’s best interests, which must be determined by a court. Id. at
432, 161 A.3d at 174-75. In In re Adoption of L.B.M., four justices agreed
that a guardian ad litem who is an attorney may act as counsel pursuant to
Section 2313(a) so long as the dual roles do not create a conflict between the
child’s best interest and legal interest. Id. at 447-62, 161 A.3d at 183-93.
Recently, in In re T.S., ___ A.3d___, 2018 WL 4001825 (Pa. filed Aug.
22, 2018), our Supreme Court re-affirmed this legal principle, and, in so doing,
acknowledged that this Court had on multiple occasions recognized the
majority view expressed in In re Adoption of L.B.M. See In re T.S., supra
at *6 (citing D.L.B., 166 A.3d 322 (Pa.Super. 2017) and In re Adoption of
T.M.L.M., 184 A.3d 585, 588 (Pa.Super. 2018)). Critically, in In re T.S., in
finding that the trial court did not err in allowing the children’s guardian ad
litem to act as their sole representative during the termination proceeding,
the Supreme Court noted that, at two and three years old, the children were
incapable of expressing their preferred outcome of the termination
proceeding. In re T.S., supra. Thus, the Supreme Court held that a conflict
did not exist since the children in question were very young and pre-verbal
such that their preferences were not discernable. Id.
The Supreme Court reasoned, “As a matter of sound logic, there can be
no conflict between an attorney’s duty to advance a subjective preference on
the child’s part which is incapable of ascertainment, and an attorney’s
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concurrent obligation to advocate for the child’s best interests as she
understands them to be.” Id. As such, the Court held:
[I]f the preferred outcome of the child is incapable of
ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child’s legal interests and his
or her best interests; as such, the mandate of Section 2313(a) of
the Adoption Act that counsel be appointed ‘to represent the child,’
23 Pa.C.S.[A.] § 2313(a), is satisfied where the court has
appointed an attorney-guardian ad litem who represents the
child’s best interests during such proceedings.
Id. at *10.
Moreover, the Supreme Court in In re T.S. held that a child’s right to
counsel was not subject to waiver. Id. at *5.
The statutory right under Section 2313(a) belongs to the child,
not the parent. Accord In re E.F.H., 751 A.2d 1186, 1189
(Pa.Super. 2000). There was no attorney representing solely the
children’s legal interests who could have raised their rights in the
trial court, and the children plainly could not have done so
themselves. See In re K.J.H., 180 A.3d 411, 413 (Pa.Super.
2018) (“Child, due to his minority and lack of representation in
the orphans’ court, could not raise this issue himself.”); c.f.
Pa.R.J.C.P. 1152(A)(2) (stating minors can waive counsel in
dependency cases only if the waiver is knowing, intelligent, and
voluntary, and the court conducts a record colloquy). We
conclude, then, that the failure of any party, . . ., to affirmatively
request separate counsel for the children cannot have constituted
waiver.
In re T.S., supra at *5.
In the case sub judice, Child was represented in the termination
proceeding by the guardian ad litem, who is an attorney that also represented
Child throughout the dependency proceedings. Notably, Child turned three
only one month prior to the termination hearing. Child had just begun to
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verbalize words like “apple, bite, dad, and cupcake” in April 2016, only a little
over six months prior. N.T. at 31, 114. Moreover, Colleen Flynn, an Agency
caseworker, noted that, at the time of trial, “[Child] just turned three. He’s
very hard to interview.” Id. at 104-05. As such, it is clear that Child was too
young and unable to express his preferred outcome in this case. Thus, the
court’s appointment of a guardian ad litem satisfied Child’s right to appointed
counsel pursuant to 23 Pa.C.S.A. § 2313(a). 12 In re T.S., supra at *10.
Next, we turn to Father’s first issue and the termination of his parental
rights.
In matters involving the 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 [325-26, 47 A.3d 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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12We note Attorney Petonic participated in the cross-examination of witnesses
throughout the termination hearing and argued and submitted a brief in
support of the termination of Father’s parental rights. See N.T. at 136-38;
Guardian ad litem’s Brief.
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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)(2), (5), and (8), as well as (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). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). Here, Father does not challenge the trial court’s finding of grounds for
termination under Section 2511(a). We, therefore, analyze the court’s
termination pursuant to Section 2511(b) only, which provides as follows:
(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).
With regard 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,
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
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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 subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. . . .
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)) (quotation marks and
citations omitted).
In the case sub judice, in reasoning that termination of Father’s parental
rights favors Child’s needs and welfare under Section 2511(b) of the Adoption
Act, the trial court stated:
In consideration of 23 Pa.C.S.[A.] § 2511(b), it is clear that
the developmental, physical and emotional needs and welfare of
K.L.M. are such that Father’s parental rights should be terminated.
K.L.M. is currently thriving in his foster care placement, where he
resides with his half-brother. He refers to his foster parents as
“mom” and “dad,” and his foster siblings as his brothers and
sisters. As he has been in placement since he was five months
old, his foster parents are the only parents he has ever known,
and he appears consistently happy and loved.
A consideration of the emotional bond between the minor
child and the child’s biological parent is necessary in any case
involving involuntary termination of parental rights. K.L.M. does
not appear to exhibit any sort of bond or emotional connection
with Father. He makes no mention of Father even though he has
not seen him for over nine months. Father has not reached out
to the child in any way in this time frame. K.L.M. seems
completely happy and adjusted in his foster family. All of the
child’s emotional, developmental, and physical needs have been
met by his foster parents since five (5) months of age. Allowing
the termination of parental rights to proceed would best serve the
emotional needs of the child, as it would provide a complete sense
of permanency for the child with regard to the strong emotional
bonds he has established with the foster parents. Additionally, it
would have no adverse effect on the child, as there appears to be
absolutely no emotional bond between K.L.M. and Father.
T.C.O. at 10-11 (citations omitted).
Father, however, argues that the Agency failed to meet its burden of
proof. Father’s Brief at 8. Specifically, Father contends that a bonding
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assessment was not conducted. Id. at 7. He states, “While a bonding
assessment is not required, the record should not be devoid of substantive
testimony regarding whether a bond exists between Father and Child. This is
especially true in a case where the Father had a trial home visit with the child
[]6[] months prior to the filing of the termination petition.” Id. at 8. We
disagree.
Upon review, the record supports the trial court’s finding that Child’s
developmental, physical and emotional needs and welfare favor termination
of Father’s parental rights pursuant to Section 2511(b). There was sufficient
evidence to allow the trial court to make a determination of Child’s needs and
welfare, and as to the existence of a bond between Father and Child that, if
severed, would not have a detrimental impact on him.
At the time of the hearing, Child had been removed from parental care
and in placement for approximately two and one-half years. N.T. at 79-80.
From March through May of 2016, subsequent to Father’s failed trial home
visit, only five of twelve scheduled visits took place, with Father cancelling six
of the seven missed visits. Id. at 21-22, 49. Further, Father’s visitation
specialist, Alexis Jacomen, described these visits as devolving into an
“absolute downward spiral.” Id. at 23. Father no longer focused on or
engaged Child. Id. at 23, 39, 48. He was distracted and disinterested and
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often on the phone or talking with other people. He discussed inappropriate
topics and used inappropriate language.13 Id. at 23-33, 94.
In addition, Father failed to care for, comfort, and console Child, id. at
29-31, 48, and failed to recognize developmental advancements. Id. at 31.
Ms. Jacomen observed a “lack of engagement and just the lack of
acknowledgement” of Child. Id. at 39. Father was “unable to focus on
anything at all during the visits outside of himself.” Id. Ms. Jacomen
confirmed that the relationship between Father and Child, therefore,
“digressed” and proceeded “downhill,” stating, “[Father] used to pick [Child]
up and hold him and he was very loving. And that changed. It completely
changed.” Id. at 39-40. She further revealed that Child, who was only still
two years old, began to cry at visits. When asked why, Ms. Jacomen
explained:
My opinion would be that when Dad is ignoring him and he has to
be held and he’s not being held, he, at that time, was, you know
a two-year-old child who just wanted to be held and comforted.
It wasn’t happening. And he has no way of understanding that.
He just knows he doesn’t like it.
Id. at 39-40. Thereafter, Father had no contact with and had not seen Child
since his incarceration on May 27, 2016, due to disciplinary infractions
____________________________________________
13Ms. Jacomen testified to numerous attempts at redirection. Id. at 27-28,
51-52.
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incurred in prison, which prevented visitation.14, 15 Id. at 34-35, 37, 90-91,
95, 119-20. As a result, Agency caseworker, Colleen Flynn, testified that Child
has not seen Father for an extended period of time and essentially no longer
knows Father. Id. at 99, 103-05. Ms. Flynn, therefore, further opined that
there would be no detriment to Child in terminating Father’s parental rights.
Id. at 99, 103.
Notably, Ms. Flynn admitted that Father’s behavior during his last visits
with Child suggest issues with parenting, and his disciplinary actions in prison
exhibit that he “still has the same anger problems today the he had in the
beginning.” Id. at 96. Further, the fact that Father is an indicated perpetrator
of sexual abuse presents “a safety hazard.” Id. at 97.
Moreover, Child is “happy” and “very well-adjusted” in his foster home
where he had been placed with his half-brother for almost two years at the
time of the hearing. Id. at 86, 99, 103-04. As noted by Ms. Flynn, “[H]e’s
happy. He feels -- they treat him like he’s their own.” Id. at 99. She
continued, “He’s always very happy. He’s very attached to not only the foster
parents, but the other kids in the home.” Id. at 103. “[I]t’s like he’s a
member of that family.” Id. at 105. To this point, Ms. Flynn indicated that
____________________________________________
14 Father last saw Child on May 20, 2016. Id. at 119-20.
15Ms. Jacomen indicated that she contacted the prison “almost monthly” with
regard to Father’s availability for visitation. Id. at 34.
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Child refers to his foster parents as “mom” and “dad.” Id. at 104. Similarly,
the CASA report reflects a positive, affectionate relationship between Child
and his foster family. See Judicial Exhibit 1 at 2-3. Thus, as confirmed by
the record, termination of Father’s parental rights serves Child’s
developmental, physical and emotional needs and welfare.
Based on the foregoing analysis of the trial court’s termination of
Father’s parental rights, we, therefore, affirm the order of the trial court. 16
Order affirmed.
Judge Ransom did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2018
____________________________________________
16 On November 13, 2017, the Westmoreland County Children’s Bureau filed
an Application for Relief seeking to expedite this matter. In response, this
Court informally notified the parties that the matter was required to be held
internally pending the outcome of In re: K.R., 692 & 693 WDA 2017, J-
E03007.17. Subsequently, as indicated in this Court’s per curiam order filed
on September 24, 2018, during the pendency of In re: K.R., our Supreme
Court filed a precedential opinion in In re: T.S., ___ A.3d ___, 2018 WL
4001825 (Pa. filed Aug. 22, 2018), to which this Court is bound. Thus, we
now formally deny as moot the November 13, 2017, Application for Relief.
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