In Re: N.H., a minor, Appeal of: A.H. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.H., BIOLOGICAL :
FATHER : No. 90 WDA 2017
Appeal from the Decree Entered December 19, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No: CP-02-AP-040-2016
BEFORE: STABILE, SOLANO, and FITZGERALD*, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 21, 2017
A.H. (“Father”) appeals from the decree entered December 19, 2016,
in the Court of Common Pleas of Allegheny County, which involuntarily
terminated his parental rights to his minor daughter, N.H. (“Child”), born in
December 2013.1 After careful review, we affirm.
The orphans’ court summarized the factual and procedural history of
this matter as follows.
[The Allegheny County Office of Children, Youth and
Families (OCYF)] originally became involved with the family in
December of 2009 after receiving a referral alleging Mother was
actively using drugs and that [Child’s older siblings] were not
being properly supervised. That case was closed in April of
2010. There were numerous other referrals made but all were
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*
Former Justice specially assigned to the Superior Court.
1
The decree also terminated the parental rights of Child’s mother, S.A.
(“Mother”). The disposition of Mother’s appeal is by separate memorandum.
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closed without further court intervention. OCYF received the
most recent referral on September 20th, 2013, and the concerns
were similar to the prior referrals. These concerns centered on
the lack of supervision of the children, Mother’s substance
abuse, deplorable housing conditions, and domestic violence
between the parents. Additionally, the oldest child had appeared
at school with physical marks on his face. An OCYF caseworker
met with Mother on September 25, 2013, at which time she
admitted to actively using heroin and suffering from mental
health issues. Additionally, Mother reported that she had
recently filed a Protection From Abuse Petition (hereinafter PFA)
against Father and that she had relapsed shortly thereafter.
Mother and the children were listed as protected parties in the
PFA Petition.
Shortly after Mother’s admissions, an OCYF caseworker
went to Father’s home where he found Mother and the children
despite the active PFA Petition. Mother refused to allow the
caseworker into the home and eventually the local police had to
assist OCYF in gaining entry into the home. Mother reported
that she had spoken to Father and that he had advised her not
to open the door. The house was observed to be in deplorable
condition with no running water or working electricity. At that
time, the caseworker created a safety plan for the family
wherein Mother agreed to stay with a friend and refrain from
allowing the children to have contact with Father.
Approximately one month later, Mother and the children
were again discovered in Father’s home. OC[YF] created
another safety plan for the family [in] December [of] 2013.
[Child] was born the following day . . . . The child was born at
approximately 30 weeks, weighed 2 pounds and 6 ounces and
tested positive for both cocaine and methadone. After the child’s
birth, Mother admitted to using heroin and crack cocaine three
days prior. Furthermore, she admitted to using crack cocaine
throughout her pregnancy. The City of Pittsburgh Police
reported receiving a 911 call from Mother on February 2nd, 2014,
reporting that Father had punched her in the face while at the
hospital with [Child]. The responding officer observed swelling
above Mother’s eye and Father was charged with simple assault
and was also charged with violating the PFA.
The child remained in the hospital until she was medically
cleared to return home on February 5th, 2014. The child was
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permitted to be released into Mother’s care because In-Home
Services through Holy Family were working with Mother in her
home and addressing drug and alcohol treatment and parenting.
However, OCYF made it clear that the child was to attend every
scheduled medical appointment as she was considered a
medically fragile child. Mother missed an appointment shortly
thereafter and OCYF requested and was granted an Emergency
Custody Authorization on February 19th, 2014. It was also
reported to OCYF that Mother did not have stable housing and
had been the victim of yet another domestic violence incident
with Father. OCYF discovered that Mother withdrew the PFA
Petition in March of 2014.
An Adjudicatory Hearing was held on April 1st, 2014 at
which time both Father and Mother stipulated to Dependency.
Mother stipulated that the child was born positive for both
cocaine and methadone, that she was in need of drug and
alcohol treatment, and that there was an active PFA Petition
excluding contact between herself[,] the children[,] and Father.
Father stipulated that he had criminal charges pending as a
result of an alleged domestic violence incident with Mother and
inadequate housing. . . .
Orphans’ Court Opinion, 2/10/17, at 2-5 (footnotes omitted).
On March 2, 2016, OCYF filed a petition to involuntarily terminate
Father’s parental rights to Child. The orphans’ court conducted a
termination hearing on July 22, 2016, and September 23, 2016. Following
the hearing, on December 19, 2016, the court entered the decree
complained of on appeal, in which it terminated Father’s parental rights.
Father timely filed a notice of appeal on January 12, 2017, along with a
concise statement of errors complained of on appeal.2
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2
Father’s counsel initially failed to file a docketing statement. As a result,
on March 14, 2017, this Court entered a per curiam order remanding this
matter to the orphans’ court to ensure that Father’s counsel had not
(Footnote Continued Next Page)
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Father now raises the following issue for our review. “Did the
[orphans’] court abuse its discretion and/or err as a matter of law in
concluding that OCYF met its burden of proving by clear and convincing
evidence that termination of [Father’s] parental rights would best serve the
needs and welfare of the child pursuant to 23 Pa.C.S.[A.] §[]2511(b)[?]”
Father’s Brief at 8.
We consider Father’s claim mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
_______________________
(Footnote Continued)
abandoned him. The court held a hearing on March 17, 2017, and entered
an order on March 22, 2017, finding that counsel did not abandon Father.
Counsel filed a docketing statement on April 3, 2017.
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to Section 2511(a)(2), (5), (8), and (b), which provides 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.
***
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
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with an agency for a period of at least six months,
the conditions which led to the removal or placement
of the child continue to exist, the parent cannot or
will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve
the needs and welfare of the child.
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed
from the date of removal or placement, the
conditions which led to the removal or placement of
the child continue to exist and termination of
parental rights would best serve the needs and
welfare of the child.
***
(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(a)(2), (5), (8), and (b).
At the outset, we observe that Father focuses his argument on appeal
almost exclusively on Section 2511(b). However, in a single paragraph in
the argument section of his brief, and in the conclusion paragraph at the end
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of his brief, Father attempts to challenge the termination of his parental
rights pursuant to Section 2511(a). See Father’s Brief at 15, 19. Father
waived any challenge to Section 2511(a) by failing to include it in his
statement of questions involved, and in his concise statement of errors
complained of on appeal. See In re M.Z.T.M.W., 2017 Pa. Super. LEXIS
360, 2017 WL 2153892 (Pa. Super. 2017) (holding that the appellant waived
her challenge to Section 2511(b) by failing to include it in her concise
statement and statement of question involved). Thus, we need only address
whether the orphans’ court abused its discretion by terminating Father’s
parental rights pursuant to Section 2511(b). The requisite analysis is as
follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. 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. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
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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 its opinion, the orphans’ court found that OCYF presented
overwhelming evidence in support of its petition to terminate Father’s
parental rights. Orphans’ Court Opinion, 2/10/17, at 15. The court
explained that Child recognizes Father and is minimally bonded to him, but
that “it is both unrealistic and unhealthy to expect [Child] to wait in
abeyance while the parents attempt to attain stability.” Id. at 13. The court
emphasized Father’s unresolved history of domestic violence, as well as
Child’s bond with her foster parents. Id. at 13-15.
In response, Father argues that he and Child are strongly bonded, and
that terminating his parental rights will deprive Child of his love and
affection. Father’s Brief at 16-17. Father argues that the orphans’ court
failed to give serious consideration to this bond, and relied too heavily on its
belief that Child would be better off in her foster home. Id.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion. During the termination
hearing, OCYF presented the testimony of psychologist, Terry O’Hara, Ph.D.
Dr. O’Hara testified that he conducted three interactional evaluations of
Father and Child, and that Father displayed positive parenting skills. N.T.,
9/23/16, at 46. Dr. O’Hara also observed “some signs of attachment”
between Child and Father. Id. at 48. “[D]uring the most recent
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interactional, [Child] did grow more calm and relaxed with her father as the
evaluation progressed. . . . She did direct herself to her father. She made
vocalizations.” Id.
However, Dr. O’Hara expressed concern regarding Father’s history of
alleged domestic violence. Id. at 55-56. Dr. O’Hara explained that he
reviewed several PFA petitions and police reports, and that “[Mother] has
alleged that [Father] had tackled her, grabbed her, slammed her head off
concrete, punched her in the face with a closed fist, kicked her, grabbed her
by her neck, strangled her, threw her to the ground. That these instances
have been witnessed by the children.”3 Id. at 39-40. Father takes no
responsibility for Mother’s domestic violence allegations, and claims that
Mother “has continuously fabricated allegations against him of assault and
violence. From his perspective, she has injured herself on purpose to have
injury when the police showed up.” Id. at 44-45, 72.
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3
Father’s most recent act of alleged domestic violence took place on January
12, 2016. According to Officer Troy Signorella, of the Pittsburgh Police,
Mother reported that Father “picked her up and slammed her on the
ground,” and that Father also “slammed” the head of one of Child’s older
siblings “into the car door outside.” N.T., 9/23/16, at 11-14. Officer
Signorella testified that he felt Mother’s head, and that she had a small
bump on her head consistent with “[b]eing hit or struck either on the ground
or [with] some sort of object[.]” Id. at 14. Officer Signorella arrested
Father that evening, and Father was charged with simple assault and
endangering the welfare of a child. Id. at 15. Officer Signorella recalled
that Mother later recanted her allegations, and that the charges against
Father were withdrawn after he completed anger management classes. Id.
at 16, 25.
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While Dr. O’Hara acknowledged that Mother often recants her
allegations of domestic violence, he cautioned that this does not mean that
Father is a suitable parent for Child. Id. at 40-41, 74, 77-78. He explained,
It’s very concerning that [Father] would remain in a
relationship with someone who was so manipulative and had
caused so much suffering for himself and his family if this were
in fact true.
***
. . . . And then if it were to be true that [Mother] is fabricating
these allegations, I don’t have evidence that he is able to show a
protective capacity in removing himself from unstable
relationships in order to protect his children from police
involvement and these types of occurrences.
Id. at 74, 77-78.
In addition, Dr. O’Hara testified that Child is thriving in the care of her
foster parents, with whom she has lived for over thirty months. Id. at 83.
Dr. O’Hara explained that he evaluated Child with her foster parents on
three occasions. Id. at 50. “During her interactions with her foster parents
[Child] is autonomous, euthymic, curious and frequently directs herself to
her foster parents. They also, in my opinion, have excellent parenting skills
as well.” Id. at 49. Removing Child from the care of her foster parents
would be “very psychologically detrimental for her.” Id. at 83.
Ultimately, Dr. O’Hara opined that Child should be adopted by her
foster parents. He summarized his conclusions as follows.
I think it would be ideal for [Child] to have an ongoing
relationship with her father. I think that she has some positive
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characteristics in this relationship, and I think it would be a
benefit for her.
However, on the other hand [Child] has been placed with
her foster parents for approximately 30 months. The foster
parents present with significant stability. They also show
excellent caring skills over time, as I’ve noted, and [Child]
exhibited securing an attachment with them. Very consistently
she has done that in the three times that I’ve seen her with the
foster parents.
It’s my opinion that any detriment that would occur in
termination of [Child’s] relationship with [Father], any detriment
would be outweighed by the benefit that [Child] gains in her
relationship with her foster parents.
She is a kid who has, as I’ve mentioned, she has been in
placement for much of her life. I think she is thriving in the
placement where she is, and as I’ve testified many times before
with regard to attachment, there are so many developmental
schemes that really depend upon a sense of security and
stability for children. There is a reduction in risk for
psychopathogy, [sic] there is an increase of school readiness for
children. There are benefits in emotional learning and emotional
regulation and cognitive learning for children who have security
and safety and a secure attachment.
So based upon these considerations, I am of the opinion
within a reasonable degree of certainty that the benefits for
[Child] remaining with her foster parents and being adopted by
them would outweigh any potential detriments in the termination
of parental rights of [Child] with regard to [Father].
Id. at 49-51.
Thus, the record confirms that terminating Father’s parental rights will
best serve Child’s needs and welfare. The record supports the finding of the
orphans’ court that Father is incapable of providing a safe and stable home
for Child, due to his unresolved history of domestic violence. In addition, it
would be psychologically detrimental to remove Child from the care of her
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foster parents, with whom she has lived for nearly her entire life. While
Child has a somewhat positive relationship with Father, it was within the
court’s discretion to conclude that the benefits of permanency through
adoption would outweigh whatever harm Child might experience if her
relationship with Father is ended. 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).
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Father’s parental rights to
Child. We therefore affirm the court’s December 19, 2016 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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