Interest of: S.A.W., a minor, Appeal of: K.W. ( 2017 )

J-S60044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.A.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: K.W. :
:
:
:
: No. 792 WDA 2017
Appeal from the Decree May 4, 2017
in the Court of Common Pleas of Blair County
Orphans’ Court at No(s): No. 2017 AD 3
BEFORE: OLSON, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 16, 2017
Appellant, K.W. (“Father”), files this appeal from the decree dated May
3, 2017, and filed May 4, 2017,1 in the Blair County Court of Common Pleas,
Orphans’ Court division (“trial court”), granting the petition of Blair County
Children, Youth, and Families (“BCCYF”) and involuntarily terminating his
____________________________________________
* Former Justice specially assigned to the Superior Court.
1
While docketed as filed by the Blair County Prothonotary’s Office on May 4,
2017, there is no notation on the docket or otherwise that notice was ever
given and that the order was entered for purposes of Pa.R.C.P. 236(b). 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) (emphasis added). We caution the Blair County
Prothonotary’s Office with regard to compliance with these rules.
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parental rights to his minor daughter, S.A.W. (“Child”), born in October
2013, pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a), (2), (5), (8),
and (b).2 After a careful review, we affirm the trial court’s decree.
The trial court summarized the relevant procedural and factual history
as follows:
This matter begins with an ongoing [BCCYF] dependency
matter. The Termination of Parental Rights Hearing incorporated
the record for dependency proceedings….[BCCYF] filed a Shelter
Care Application and Emergency Protective Custody Application
on February 19, 2016 and Dependency Petition followed on
February 23, 2016. All three petitions involved the fact that
[Child], a Type 1 diabetic, had a dangerously high sugar reading
due to Mother giving [Child] sugar intense foods, despite the in-
home education and services Kids First and Home Nursing[3]
since November 2016. The providers had serious concerns that
the parents’ capacity to meet the medical needs of [Child]
remain unchanged, despite the education provided. [BCCYF]
placed the two older sibling brothers in emergency custody and
[sic] Maternal Great-Grandparents[4] and [BCCYF] received
custody of [Child]. After a short time the [g]reat-[g]randparents
agreed to take custody of [Child]; however, it overwhelmed the
[g]reat-[g]randmother and[,] on March 4, 2016[,] the [c]ourt
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2
By the same decree, the trial court involuntarily terminated the parental
rights of A.W. (“Mother”) with respect to the Child. Mother has neither filed
a separate appeal nor is she a party to the instant appeal.
3
Upon review, services with Home Nursing Care commenced on January 12,
2016. N.T., 10/4/16/, at 29.
4
Mother and Father additionally have two sons, one older and one younger
than Child, who are not the subject of this matter. While dependency
petitions were also filed with regard to these two children by BCCYF, the
petitions were ultimately withdrawn. N.T., 10/4/16/, at 1. The children
voluntarily reside with Mother’s grandparents in Luzerne County. N.T.,
5/3/17, at 43-44.
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transferred custody to [BCCYF] resulting in [Child’s] placement
into foster care. The foster home has managed [Child’s]
diabetes quite well and she continues to improve, stabilize and
meet all other developmental benchmarks in a family fashion.
The agency began reunification services with the parents.
The parents separated and Father lived locally with the two
(2) sons in his own residence and then with friends after his
landlord experienced tax difficulties with the trailer in which
Father resided.
At the time of the 6-month review, Father had the more
stable situation and had worked with the providers who were
offering reunification services and had maintained his mental
health treatment.
***
On October 5, 2016, at the 6-month review the [c]ourt
learned Father had moved to Wayne County with his [m]other
and the [c]ourt ordered a referral to Wayne County Children,
Youth and Families so [Child] could return to her [f]ather and
brothers and receive supportive services through Wayne County
Children, Youth and Families. Mother and Father continued
contact with [Child]; however, the geographic distance created
logistical challenges.[5] Based upon the [c]ourt direction to
transfer this matter to Wayne County, reunification stopped in
Blair County as factually impossible to accomplish.
By the 9-month permanency review hearing, Father had
experienced a falling out with his [m]other and the referral to
Wayne County never came to fruition due to the Father’s
instability as reported by the [p]aternal [g]randmother. Father
continued to experience an escalation of his depression due to
his frustration with agency rules and directives and a sense of
hopelessness and grief about the loss of his daughter.
Due to Father’s struggles, the agency requested a change
in goal from reunification with Father to adoption[,] which the
[c]ourt granted on November 22, 2016. The [c]ourt note[d] the
reason for the change of goal as “[M]other or Father are not
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5
Mother had relocated to Luzerne County at the time.
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presenting capacities to care for the extreme risk related to
[Child’s] medical treatment.”
***
At the 12-month review, Father had developed some
stability. Specifically, this [c]ourt noted “[F]ather has
consistently visited the child, has saved money for his own
residence, has completed his training for medical care of
[Child’s] diabetes to his knowledge, and has maintained contact
with his other children while they reside with family out of
county so he can reside here and stay close to [Child] for visits.
He is finishing his workers’ compensation benefits and will return
to work when released to do so.” Father indicated he had
established a residence with his girlfriend’s parents as a
temporary spot and had their help and support for his efforts to
reunify with [Child]; however, they did not want their home
assessed or visited by [BCCYF].
[BCCYF] had scheduled the Termination of Parental Rights
for the same day as the 12-month review,[6] although Father did
not have counsel and [BCCYF] had not accomplished 10-day
notice for Mother[,] so the [c]ourt rescheduled those
proceedings for May 3, 2017[,] and gave direction to [BCCYF] to
assist Father in determining the status of his medical care
training records and to assess Father’s current living
arrangements[.] [The court] specifically stat[ed]…“although a
Termination of Parental Rights is scheduled for May 3, this
[c]ourt directs [BCCYF] to continue to concurrently explore the
possibility of a return to the Father and support his efforts so the
[c]ourt can make a fair determination of issues and resources in
the life of [Child].”
Trial Court Opinion (“T.C.O.”), 6/23/17, at 2-6 (citations to record and
footnote omitted) (footnotes added).
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6
BCCYF filed a petition to terminate Mother and Father’s parental rights on
February 15, 2017.
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The trial court held a termination hearing on May 3, 2017. BCCYF
presented the testimony of the current caseworker, Mackenzie Bagley, and
Peritech Pediatric Home Health Agency registered nurse, Patricia Parks.7
The court additionally incorporated the prior dependency proceedings. N.T.,
5/3/17, at 2-3. Father was not present, but was represented by counsel.
Id. at 1.
Following the hearing, by decree dated May 3, 2017, and filed May 4,
2017, the trial court involuntarily terminated the parental rights of Father
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).8 On May 31, 2017,
Father, through appointed counsel, filed a notice of appeal, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
On appeal, Father raises the following issues for our review:
I. Whether the trial court erred and/or abused its discretion
when it found clear and convincing evidence existed to
terminate [Father’s] parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2)?
II. Whether the trial court erred and/or abused its discretion
when it found clear and convincing evidence existed to
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7
Subsequent to termination, the court proceeded to a status review and
additionally heard testimony from Mother’s cousin, H.D. N.T., 5/3/17, at 66-
67.
8
This decree and order memorialized the decision placed by the court on the
record at the conclusion of the hearing.
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terminate [Father’s] parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(5)?
III. Whether the trial court erred and/or abused its discretion
when it found clear and convincing evidence existed to
terminate [Father’s] parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(8)?
IV. Whether the trial court erred and/or abused its discretion
when it found clear and convincing evidence existed to
terminate [Father’s] parental rights pursuant to 23
Pa.C.S.A. § 2511(b)?
Father’s Brief at 4.
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 [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)].
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)
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(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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter
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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), (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 subsections 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
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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(a)(2), and (b) (bold in original).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
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)).
In the instant matter, in finding grounds for termination pursuant to
Section 2511(a)(2), the trial court reasoned as follows:
Here, neither Mother nor Father has provided a stable
home for themselves or any of their three (3) children since the
finding of dependency for [Child]. After separation[,] each
parent has struggled with mental health matters, moved out of
county and then returned, which created impossible conditions
for any meaningful services to build parenting capacities or a
reunification. At the 12-month review, Father had progressed
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and stabilized by his own report; however, he then failed to
appear for the rescheduled Termination of Parental Rights
Hearing[,] despite knowing the nature of the hearing and what
rights he jeopardized. He also failed to advantage himself by
communicating facts or evidence of his situation or intentions
with his attorney. Father lived with the Mother when Mother was
fabricating the sugar readings for [Child] and he had sufficient
reasons to understand the critical nature of his daughter’s
medical condition, yet his incapacity to create stability gives the
[c]ourt reason to believe that the causes of his incapacity cannot
and will not be remedied. Shirley Bowser testified that[,] after
the first unfounded child abuse matter in September 2015,
[BCCYF] continued to provide General Protective Services for the
family[.] Mother was not managing the diabetes readings well
and Shirley discussed it with the Father. Father agreed to begin
to take responsibility to do so, but never accomplished that
intention. One of [Child’s] nurses[,] Amy Dodson, also testified
that[,] in February of 2016[,] when she visited the home, she
learned that Father was aware [Child] had high sugar since they
had been on a trip, had not documented those reading[s] and
had awareness that [Child] had Fruit Loops for breakfast[,]
which contained sugar. He justified the actions by indicating
they had been away and had not made it to the store yet.
T.C.O. at 8-10.
Father, however, argues that the record does not establish his
incapacity, abuse, neglect or refusal and that, if it did, it does not evidence
that he could not or would not remedy the issue. Father’s Brief at 13.
Father maintains that the record does not contain evidence of his incapacity,
abuse, neglect or refusal, but rather focuses on the actions of Mother, which
led to Child’s removal and placement. Id. at 13-15. While acknowledging
testimony of providing Child an inappropriate cereal and of knowledge of
Mother’s false reporting of glucose readings, Father asserts that he was
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unable to challenge this testimony through cross-examination or rebuttal.9
Id. at 16. He further notes that the trial court expressed its desire for him
to have an opportunity to display his capacity a mere three months prior to
termination. Id. at 17. Moreover, Father contends that the record does not
support that he cannot or will not remedy the issues, noting his completion
of diabetes education and numerous attempts to complete additional
education and training. Id. at 18.
A review of the record supports the trial court’s determination of a
basis for termination under Section 2511(a)(2). The evidence corroborates
Father’s inability to safely and appropriately manage and care for Child’s
diabetes, despite education and training, as well as his instability. Further,
Father cannot or will not remedy these circumstances.
Shirley Bowser, assessment unit caseworker for BCCYF, testified that a
child abuse investigation was opened in September 2015 due to alleged
medical neglect of Child, who was diagnosed with Type I diabetes in March
2015. N.T., 11/21/16, at 10, 59-60. Despite the investigation being
unfounded, Ms. Bowser noted ongoing concerns and a general protective
services case remained open with BCCYF, with BCCYF monitoring Child’s
care and initiating services. Id. at 60-61. Critically, Ms. Bowser reported
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9
While Father, who was pro se at the time, was not present on November
21, 2016, he was present on October 4, 2016 for some of the relevant
testimony in question, in particular as providing Child sugary cereal.
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that, after Mother admitted to falsifying blood sugar readings, Father was
supposed to “take over the care of [Child] at that time to make sure the
readings got called in and that she got the correct insulin and the carbs were
counted correctly[.]” Id. at 63. Ms. Bowser testified that she was advised
that Father never did so. Id. at 64. Further, she indicated that Father
acknowledged that he knew Mother was reporting incorrect blood sugar
readings, but did not explain why he did not contact BCCYF or Child’s
medical provider. Id. at 63-64.
A second investigation, again related to medical neglect, was opened
in February 2016. Id. at 64. While meeting with Father on February 18,
2016, Amy Dodson, a registered nurse who provided education services
through Home Nursing Care, discovered that there were no documented
readings from a period where the family reported being away,10 the
glucometer that had been used was broken, and Child had a high reading
after eating surgery cereal that morning. N.T., 10/4/16, at 32-35. Ms.
Dodson expressed “concerns over the fact that we weren’t able to see any
blood sugars and know that they were being recorded or reported accurately
at this point.” Id. at 37. Child was removed and placed into foster care the
same day. N.T., 5/3/17, at 23; N.T., 11/21/16, at 65.
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10
BCCYF and service providers reported a lack of access and/or difficulty
contacting Mother and Father for approximately a one to two-week period.
N.T., 11/21/16, at 61; N.T., 10/4/16, at 7-9.
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This investigation was ultimately indicated against both Mother and
Father. N.T., 11/21/16, at 65. As explained by Ms. Bowser, the
investigation was indicated as “the failure to follow through with what the
doctor was saying put [Child] at risk and what the doctor’s information that
they gave to us that also stated that failure to follow through with the insulin
and carb counting would cause severe injury or death to the child.” Id. at
65-66. By order dated November 21, 2016, and entered November 23,
2016, the trial court entered a finding of abuse against both Mother and
Father. Order, 11/23/16. Notably, Father did not appeal this finding.
Child began treatment at Geisinger in December 2015 after transfer
from Children’s Hospital of Pittsburgh.11 N.T., 11/21/16, at 10. Dr. Rashita
Tiwari, a pediatric endocrinologist at Geisinger who was involved in Child’s
treatment and also stipulated to by counsel as an expert in pediatric
endocrinology, id. at 7-8, testified that Mother and Father were given a lot
of education due to issues controlling Child’s diabetes, which was noted upon
transfer to Geisinger from Children’s Hospital of Pittsburgh. Id. at 10. She
later described this education as “extensive.” Id. at 11. Significantly, from
the time treatment began in December 2015 until Child was placed in
February 2016, Dr. Tiwari observed “no improvement in the parents[’] ability
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11
Mother and Father transferred Child’s care from Children’s Hospital of
Pittsburgh after learning the hospital was responsible for the report initiating
the first investigation by BCCYF. N.T., 11/21/16, at 10, 62.
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to either [] manage [Child’s] healthcare or [] effectively communicate with
the hospital staff when her care or her levels were in question or
problematic[.]” Id. at 32-33. More importantly, Dr. Tiwari opined that “the
actions or lack of actions taken by the parents over this course of
time…endanger[ed] the [C]hild’s health.” Id. at 33.
Further, when asked if, given the history, she would trust Mother and
Father to care for Child medically, Stacy Tovich, certified nurse practitioner
and certified diabetic educator in pediatric endocrinology, who was also
involved in Child’s treatment at Geisinger and stipulated to by counsel as an
expert in pediatric endocrinology, id. at 49, responded, “No. No. I can’t
medically, I can’t put her at risk because it only takes a day or two of not
getting enough insulin not getting blood sugars tested for a child to go into
diabetic ketoacidosis which if not caught in time children can die from.”
N.T., 11/21/16, at 56. Ms. Tovich expressed difficulty trusting either Mother
or Father to follow-through with what they were taught. Id. at 55-56. Ms.
Tovich stated,
[K]nowing how to do something and actually doing it are two
different things. And so giving them the education and knowing
that they know how to test the blood sugar and how to count
carbs and how to give insulin--to teach them how to do that and
have them tell me back in an appointment this is what I’m
supposed to do, that is very--that is something that anyone can
do. It is actually following through and the follow-through was
the issue that we were having with the family--with her parents
is that her blood sugars were not being tested when they were
supposed to be. Insulin wasn’t given when it was supposed to
be. And that is the hard part. And then they would call in and
give us blood sugars that weren’t actually accurate. They would
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give us blood sugars that looked really good and then when they
would come to the appointment and we would actually see the
meter, the blood sugars on the meter did not match what the
blood sugars were that they had been calling in and verbally
giving us. So to develop that type of trust again, it is going to
be very hard. How do you send a child back into that
environment and just cross my fingers and hope that they are
going to do it.
Id. Ms. Tovich also offered that neither Mother nor Father had attended
Child’s appointments since May 26, 2016. Id. at 54.
Similarly, Patricia Parks, registered nurse with Peritech Pediatric Home
Health Agency, who provided diabetic education on two separate occasions
after Child’s placement,12 also expressed concern as to Father’s follow-
through. N.T., 5/3/17, at 54. While not questioning Father’s knowledge and
education, Ms. Parks did, however, question his actions. Id. Ms. Parks
stated,
My knowledge of that was he was knowledgeable in the care[,]
the counting, giving the injections. What I couldn’t promise
when I am done is if he’s going to follow…through with it[.] [S]o
I was teaching--my understanding is he--they already had 2 or 3
agencies then prior to me going in for teaching also[.] [S]o
knowledge base[,] he had the basic knowledge of the care for
her[.] Now[,] whether or not the follow through was going to
go[,] I can’t say for sure[,] because two of my four visits with
just him he never showed.
Id.
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12
Ms. Parks first provided education to both Mother and Father commencing
in April 2016 and ending in May 2016. Sessions were reinstated for Father
in August 2016. N.T., 5/3/17, at 52-53.
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Moreover, Father has demonstrated continued personal instability.
The current BCCYF caseworker at the time of the termination hearing,
Mackenzie Bagley, testified to Father residing in six different residences
since BCCYF became involved with the family, including two residences in
Wayne County, Pennsylvania.13 Id. at 27-28. Ms. Bagley confirmed that, as
a result of this residential instability, Father is not in a place to take Child
back into his care. Id. at 28-29. Further, evidence was presented of the
volatile nature of some of Father’s personal relationships. Dana Giger, New
Steps family worker, who provided preservation and reunification services to
the family over an extended period of time, described the relationship
between Mother and Father as “unstable.” Id. at 12. In addition, Father’s
mother obtained a Protection from Abuse Order against him, resulting
Father’s return to Blair County from Wayne County. N.T., 2/28/17, at 43-
44.
Ms. Giger likewise characterized Father as “inconsistent” over her time
working with him from February to September 2016. N.T., 5/3/17, at 13.
While she noted that Father displayed some progress while engaging in
mental health services, which included counseling and medication
management, Father ceased these services and did not feel he needed to
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13
Ms. Bagley had not been able to assess Father’s most recent residence as
he had just signed a lease the day prior to the termination hearing. N.T.,
5/3/17, at 30.
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reinitiate them. Id. at 9-11. Relatedly, Ms. Bagley testified that she was
not aware that Father reinstituted counseling and was taking medication.
Id. at 29. Ms. Giger’s services then unexpectedly ended when Father
advised that he had moved to Wayne County. Id. at 13. Notably, Ms. Giger
indicated that she would have a concern if Child would have been returned
to Father based on her understanding of Child’s medical needs. Id.
Lastly, Father did not appear for the rescheduled termination hearing
on May 3, 2017, unbeknownst to his attorney, demonstrating the lack of
seriousness and magnitude Father attributed to the proceedings.14 Id. at 1.
On this topic the court stated,
[W]e felt certain we had communicated at the 12-month hearing
the gravity of the imminent decision on May 3rd for termination
of parental rights. Father’s absence therefore, provided
evidence that Father either had no helpful evidence to promote
his resumption of custody or demonstrates his lack of ability to
grasp the seriousness of the situation, which reflects on his
problem solving and rational thinking, both required for effective
parenting-especially in regard to a special needs child such as
[Child]….
T.C.O. at 7.
As a result, Ms. Bagley, therefore, expressed concern with regard to
reunification, testifying as follows:
Q. At this point and time based on the totality of the
circumstances that have taken place in this case to date does
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14
As reported to Ms. Bagley, Father did not want to request off as he was on
a probationary period at a new job. N.T., 5/3/17, at 30.
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the agency have any confidence that the child could be
successfully reunified with either parent and basically
maintaining safe stable environment moving forward?
A. I have concern over just lack of a personal stability with each
of them and just the [] lack of trust from the medical providers
that either one would be able to care for [Child] from this point
forward giving the case history medically wise and regardless of
the education that they receive with the agency and medical
professionals can’t ensure [Child’s] safety with either one of
them.
N.T., 5/3/17, at 38.
As this Court has stated, “[A] child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa.Super. 2006). Hence, the record substantiates the conclusion
that Father’s repeated and continued incapacity, abuse, neglect, or refusal
has caused Child to be without essential parental control or subsistence
necessary for her 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 noted above, 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) before assessing the determination under
Section 2511(b), and we, therefore, need not address any further
subsections of Section 2511(a). In re B.L.W., 843 A.2d at 384.
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We next determine whether termination was proper under 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. § 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 subsection 2511(b) best-interest analysis, it is
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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….
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).
In the case sub judice, in determining 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,
Finally, the [c]ourt must analyze 2511 (b) as to the best
interests of [Child] and her bonding with her birth parents.
[BCCYF] placed [Child] with [foster parents] for a brief time
before she resided with her [m]aternal [g]reat-[g]randparents
and returned her to [foster parents] when the [g]reat-
[g]randparents indicated they could not continue the care for
custody. She has remained there for over one (1) year. The
caseworker, Mackenzie Bagley, testified that [Child] is thriving in
[foster parents’] home. She has also bonded with the two (2)
siblings of [foster parents]. The doctors treating [Child] have
praised [foster parents] for their care of [Child] and her
progress. They have made every appointment, had every
training recommended and[,] if [foster parents] adopt [Child][,]
the medical professionals will approve an insulin pump for her.
The caseworker observed [Child] in the foster home and she
appears natural and well bonded in her interactions. [Foster
parents] remain available as an adoptive resource.
Both Mother and Father have worked to maintain visits
with [Child] as they have been able to so do; however, long-
term consistency has not occurred. The parents received visits
at the Path House and also received Bridging the Gap services
for them as parents of a placed child. During the time the
parents moved out of county, visits were less regular and [Child]
had no adverse reaction brought to the attention of the [c]ourt.
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The [c]ourt never received any reports of [Child] having any
adverse reaction to separating from her parents after visits. To
the contrary, [Child] has bonded, over the last year, with [foster
parents] who have provided the stability, security and daily
regimental medical care (insulin and “counting carbs”) necessary
to control her Type 1 [d]iabetes. Accordingly, we find the foster
home has met the needs and welfare of [Child]. The clear and
convincing evidence of her well-being exists in her ability to
thrive emotionally and developmentally consistently in [foster
parents’] home by all accounts over the last 12-months or one
third of her life. Mother and Father have failed to demonstrate
they have the capacity to manage the complicated care
management of [Child][,] which requires great diligence and
vigilance.
We have no doubt both Mother and Father love [Child] and
just as clearly, we have no doubt [Child] would not suffer
physical or emotional harm with the termination of her parents’
rights as any bond has sadly become minimal after the last 12
months of her needs being met elsewhere.
T.C.O. at 13-14 (citation to record omitted).
Father, however, argues error in terminating his parental rights
pursuant to subsection (b) as “any medical issues that precipitated [Child’s]
placement were beyond Father’s control, and there was no evidence on
record to suggest that Father would neglect [Child]’s medical needs as
Mother had done.” Father’s Brief at 21. Father points to the fact at the time
of Child’s removal he was dealing with an injury and Mother was providing
the primary care for Child’s diabetes. Id. at 21-22. He further maintains
that he was not afforded the opportunity to demonstrate that he was able to
provide appropriate care. Id. at 22. Hence, Father argues that his parental
rights were terminated for reasons beyond his control. Id.
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Upon review, the record supports the trial court’s findings and
determinations that Child’s developmental, physical and emotional needs
and welfare favor termination of Father’s parental rights pursuant to Section
2511(b), and we find no abuse of discretion or error of law. In re T.S.M.,
620 Pa. at 628, 71 A.3d at 267. Hence, termination pursuant to Section
2511(b) was proper.
While Father may profess to love Child, a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental
rights. In re Z.P., 994 A.2d at 1121. 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 trial court appropriately terminated Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2017
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