In the Int. of: J.H.P., III, a Minor ( 2022 )

J-A23026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: J.H.P., III A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.H.P., JR., NATURAL :
FATHER AND C.A.P., NATURAL :
MOTHER :
:
:
: No. 827 MDA 2022
Appeal from the Order Entered May 2, 2022
In the Court of Common Pleas of Huntingdon County Orphans’ Court at
No(s): CP-31-OC-16-2021
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 20, 2022
J.H.P., Jr. (“Father”) and C.A.P. (“Mother”), collectively “Parents,”
appeal from the May 2, 2022 order granting the petition filed by Huntington
County Children’s Services (“CYS”) to involuntarily terminate their parental
rights to their son, J.H.P., III (“J.H.P.”).1 We affirm.
In February 2020, J.H.P. was born to Mother and Father, who have mild
intellectual disabilities and mental health problems associated with
psychological trauma. The family was referred for family preservation services
due to J.H.P.’s failure to thrive and the inability of Mother and Father to satisfy
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 As the orphans’ court identified the child as J.H.P. in its thorough opinion
and order terminating the parental rights of Mother and Father, we refer to
the child in the identical manner herein.
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his basic needs. Despite this assistance, the situation continued to deteriorate
and on April 13, 2020, J.H.P. was hospitalized with a diagnosis of failure to
thrive as he had not gained weight in the past month. CYS obtained
emergency protective custody of J.H.P. when he was approximately two
months old. He was immediately placed in his current foster home, a pre-
adoptive resource, where he remains.
On April 29, 2020, the juvenile court adjudicated J.H.P. dependent. CYS
provided Parents reunification services through a program administered by
Raystown Developmental Services (“RDS”). Parents were also provided
supervised in-person visitations and video visitations when necessary to limit
exposure to Covid-19. The supervised visitations were initially scheduled in
two three-hour periods per week, but based upon CYS recommendations, in
February 2021, the court reduced the duration of the visits to one and one-
half hours per session. Despite receiving services through RDS, Parents failed
to remedy the parenting deficiencies that led to CYS intervention. They still
struggled to perform basic childcare tasks independently. The caseworkers
noted Parents’ difficulty in properly changing J.H.P.’s diaper, preparing meals,
recognizing safety hazards, and providing the child meaningful supervision.
On July 28, 2021, CYS filed petitions to terminate the respective
parental rights of Mother and Father pursuant to 23 Pa.C.S. § 2511(a)(5) and
(8). The Court appointed counsel for Parents. J.H.P. was represented by
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Robert M. Covell, Esquire, who acted as the child’s guardian ad litem in the
dependency proceedings.2
At the outset of the ensuing evidentiary hearing, the orphans’ court
incorporated the record of the dependency proceedings into the adoption
docket. Thereafter, CYS presented the expert testimony of Sarah Jefferson,
the licensed clinical social worker who performed the bonding assessment and
filed a concomitant report in 2020. CYS also presented the testimony of Christi
Shawley, the CYS caseworker assigned to work with the family, Piper Tanner,
who was the family service manager at RDS, and Heather Fisher, the RDS
reunification caseworker who supervised Parents’ visitation with J.H.P.
Parents testified and introduced a collection of emails as an exhibit. Following
the submission of post-hearing briefs, the orphans’ court entered a single
decree terminating the respective parental rights of Mother and Father
pursuant to 23 Pa.C.S. § 2511(a)(5), (8) and (b). This timely appeal followed.
As Parents and the orphans’ court both complied with Pa.R.A.P. 1925, the
matter is ripe for our review.
Parents present the following issues for our review:
____________________________________________
2 Pursuant to In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), we note
that the orphans’ court determined that there was no conflict in Attorney
Covell’s dual role as counsel and guardian ad litem because J.H.P.’s age
prevented him from stating a preferred outcome. See N.T., 12/14/21, at 1-
2. See also In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (If a child is “too
young to be able to express a preference as to the outcome of the
proceedings,” there is no conflict between legal and best interests.).
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I. Whether the evidence was insufficient to sustain a
termination of the natural parents’ parental rights to J.H.P., III
under 23 Pa.C.S. § 2511(a)(5) in light of the specific allegation
that was contained within the petition to terminate parental rights
in that the conditions which led to the child’s removal or placement
no longer existed as only those issues raised in a pleading may be
tried?
II. Whether the evidence was insufficient to sustain a
termination of the natural parents’ parental rights to J.H.P., III
under 23 Pa.C.S. § 2511(a)(8) in light of the specific allegation
that was contained within the petition to terminate parental rights
in that the conditions which led to the child’s removal or placement
no longer existed since only those issues raised in a pleading may
be tried?
III. Whether the evidence was insufficient to sustain a
termination of the natural parents’ parental rights to J.H.P., III
under both 23 Pa.C.S. § 2511(a)(5) and 23 Pa.C.S. § 2511(a)(8)
since the child’s needs and welfare will not be best met by the
proposed termination of natural Parents’ parental rights and
pursuant to 23 Pa.C.S. § 2511(b) upon proper consideration of
the developmental, physical and emotional needs and welfare of
the child?
Parents’ brief at 4 (cleaned up).3
We review these issues mindful of our well-settled standard of review.
“In cases concerning the involuntary termination of parental rights, appellate
review is limited to a determination of whether the decree of the termination
court is supported by competent evidence.” In re Adoption of C.M., 255
A.3d 343, 358 (Pa. 2021). When applying this standard, the appellate court
must accept the trial court’s findings of fact and credibility determinations if
____________________________________________
3 We note with disapproval that Attorney Covell neglected to file a brief with
this Court on J.H.P.’s behalf.
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they are supported by the record. Interest of S.K.L.R., 256 A.3d 1108, 1123
(Pa. 2021). “Where the trial court’s factual findings are supported by the
evidence, an appellate court may not disturb the trial court’s ruling unless it
has discerned an error of law or abuse of discretion.” In re Adoption of
L.A.K., 265 A.3d 580, 591 (Pa. 2021).
As our High Court stated, “an abuse of discretion does not result merely
because the reviewing court might have reached a different conclusion” or
“the facts could support an opposite result.” In re Adoption of S.P., 47 A.3d
817, 826-27 (Pa. 2012). Instead, an appellate court may reverse for an abuse
of discretion “only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. at 826. This standard of review
reflects the deference we pay to trial courts, who often observe the parties
first-hand across multiple hearings. Interest of S.K.L.R., supra, at 1123-
24.
In considering a petition to terminate parental rights, a trial court must
balance the parent’s fundamental “right to make decisions concerning the
care, custody, and control” of his or her child with the “child’s essential needs
for a parent’s care, protection, and support.” C.M., supra, at 358.
Termination of parental rights has “significant and permanent consequences
for both the parent and child.” L.A.K., supra, at 591. As such, the law of
this Commonwealth requires the moving party to establish the statutory
grounds by clear and convincing evidence, which is evidence that is so “clear,
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direct, weighty, and convincing as to enable a trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” C.M.,
supra, at 359 (citation omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act. “Subsection (a) provides eleven enumerated grounds describing
particular conduct of a parent which would warrant involuntary termination.”
C.M., supra, at 359; see also 23 Pa.C.S. § 2511(a)(1)-(11). In evaluating
whether the petitioner proved grounds under §2511(a), the trial court must
focus on the parent’s conduct and avoid using a “balancing or best interest
approach.” Interest of L.W., 267 A.3d 517, 524 n.6 (Pa.Super. 2021). If
the trial court determines the petitioner established grounds for termination
under § 2511(a) by clear and convincing evidence, the court then must assess
the petition under § 2511(b), which focuses on the child’s needs and welfare.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Instantly, we analyze the orphans’ court’s decisions pursuant to
§ 2511(a)(8) and (b) of the Adoption Act:4
(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:
(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
____________________________________________
4 This Court need only agree with any one subsection of § 2511(a), in addition
to § 2511(b), in order to affirm the termination of parental rights. See In re
B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
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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. § 2511(a)(8), (b).
To satisfy § 2511(a)(8), the petitioner must show three components:
(1) that the child has been removed from the care of the parent for at least
twelve months; (2) that the conditions which led to the removal or placement
of the child still exist; and (3) that termination of parental rights would best
serve the needs and welfare of the child. In re Adoption of J.N.M., 177
A.3d 937, 943 (Pa.Super. 2018).
The crux of the instant appeal concerns the second component of
§ 2511(a)(8), i.e., whether the conditions which led to removal continue to
exist. Unlike other subsections, § 2511(a)(8) does not require the court to
evaluate a parent’s willingness or ability to remedy the conditions that led to
the placement of the children. In re M.A.B., 166 A.3d 434, 446 (Pa.Super.
2017). “[T]he relevant inquiry” regarding the second prong of § 2511(a)(8)
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“is whether the conditions that led to removal have been remedied and thus
whether reunification of parent and child is imminent at the time of the
hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009). Further, the Adoption
Act prohibits the court from considering, as part of the § 2511(a)(8) analysis,
“any efforts by the parent to remedy the conditions described [in the petition]
which are first initiated subsequent to the giving of notice of the filing of the
petition.” 23 Pa.C.S. § 2511(b).
Arguing their first two issues collectively, Parents initially assert that we
must reverse the termination of their parental rights because the orphans’
court considered evidence that exceeded the allegations set forth in CYS’s
petitions to terminate the parental rights of Mother and Father, respectively.
See Parents’ brief at 12, 14. Parents posit, “Based upon the status of the
pleadings and the failure to conform the filings to the evidence that was
presented in Court, the Order which terminated [Parents’] rights as to [J.H.P.]
must be reversed. Id. at 12.
Relatedly, Parents contend that the record does not support the
termination decrees because Parents remedied the only reasons given in CYS’s
petitions for the involuntary termination of parental rights. Id. at 16-17.
Quoting select portions of CYS’s termination petitions, Parents attempt to
restrict the grounds for termination to the noted concerns that “the child was
exhibiting signs of failure to thrive” and “that the natural parents were not
feeding the child as needed.” Id. At 16, 17. Next, Parents reason that since
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the evidence established that J.H.P. is currently healthy and developing
normally, and that Parents demonstrated the ability to feed J.H.P. ready-made
meals during the supervised visitations, the conditions that CYS pled
necessitated removal no longer exist. Id. At 18-20.
In rejecting the contentions that Parents asserted relative to the
sufficiency of CYS’s petitions, the orphans’ court reasoned, “if natural Parents
do attempt to argue that . . . CYS went outside of the scope of the issues
raised in its petitions, the allegations set forth therein are broad enough to
encompass all issues and evidence raised at the termination of parental rights
hearing[.]” Rule 1925(a) Opinion, 6/7/22, at 2. For the following reasons,
we agree with the orphans’ court’s finding that the petitions were sufficiently
specific.
At the outset, we observe that Parents read the averments in CYS’s
termination petitions too narrowly. While Parents’ brief quotes portions of a
single paragraph in framing its argument concerning the allegedly insufficient
facts pled therein, the petitions pled pertinent facts in at least four other
enumerated paragraphs. Including the specific paragraph that Parents invoke
in their brief, the petitions included four sets of allegations that related to
Parents collectively and one set that referred to Mother and Father’s individual
parental deficiencies.
The pertinent averments that appear in both petitions asserted the
following:
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7. [J.H.P.] has been in placement since April 16, 2020, based
upon the [emergency protective custody o]rder entered by this
Honorable Court. This Order was entered because the child
was exhibiting signs of a failure to thrive, and had been
admitted to Penn State Health Milton S. Hershey Medical Center
for treatment. The concern was that the natural parents
were not feeding the child as needed.
....
9. The Agency believes and therefore avers that [Parents]
failed to make adequate progress in caring for [J.H.P.] and
lack the parenting skill to parent [their] child.
....
11. At the time [J.H.P.] was removed from his parents’
care, both parents demonstrated an inability to provide
proper parenting for the child. To the best of the Agency’s
knowledge, the parents have not remedied these concerns and it
appears unlikely that they will remedy these issues within a
reasonable period of time.
....
Count II
23 Pa.C.S. § 2511(a)(8)
....
23. The conditions which led to the removal and placement of
the child, namely the [parent’s] general inability to provide
parental care to the child, continue to exist.
CYS Petition to Terminate Parental Rights, 7/28/21, at unnumbered 1-3
(emphases added).
Next, the respective petitions outlined each parent’s specific
weaknesses. As to Father, CYS averred,
8. The natural father has made no progress toward alleviating
the circumstances which necessitated placement. An attachment
assessment, conducted by Sarah Jefferson, LCSW, in December
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2020, indicated both cognitive impairment and severe
attachment disruption for the natural father. It was observed
during this assessment that the natural father lacked the
ability to understand and meet the needs of his child, and
that it was not safe or appropriate for [J.H.P.] to return full
time to the care of his biological parents. Subsequent
observations made during supervised visitations through
Raystown Developmental Services confirmed to the Agency the
concerns regarding the natural father’s ability to care for
his child[.]
Petition to Terminate Father’s Parental Rights, 7/28/21, at unnumbered 3
(emphases added).
Likewise, the CYS petition delineated Mother’s parenting defects as
follows:
8. The natural mother has made no progress toward alleviating
the circumstances which necessitated placement. During
supervised visitation[,] . . . reunification workers observed that
the natural mother required multiple prompts during
visitations, does not retain the parenting knowledge and
skills provided to her, and is not able to apply that
information in visits with her child. An attachment
assessment conducted by Sarah Jefferson, LCSW, in December
2020, indicated both cognitive impairment and severe
attachment disruption for the natural mother. It was
observed during this assessment that the natural mother lacked
the ability to understand and meet the needs of their child,
and that it was not safe or appropriate for [J.H.P.] to return
full time to the care of his biological parents.
Petition to Terminate Mother’s Parental Rights, 7/28/21, at unnumbered 3
(emphases added).
Thus, contrary to Parents’ protestations, CYS leveled detailed
allegations of fact that were far broader than what Parents suggested by
focusing solely upon the isolated references to J.H.P.’s failure to thrive and
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Parents’ inability to feed the child properly. See Parents’ brief at 16-18.
Plainly, the agency set forth the precise grounds for termination under
§ 2511(a)(8). Indeed, Paragraph 23 of the CYS petition explicitly sets forth
the element of § 2511(a)(8) that Parents place at issue and mischaracterize
in their brief. See CYS Petition to Terminate Parental Rights, 7/28/21, at
unnumbered 3. Thus, rather than limiting the predicate condition to J.H.P’s
failure to thrive or Parents’ inability to prepare food, the CYS petitions averred
that “[t]he conditions which led to the removal and placement of the child
[were Parents’] general inability to provide parental care to the child[.]” Id.
Moreover, as underscored by the foregoing highlighted averments, in addition
to noting Parents’ role in the child’s failure to thrive, CYS made specific
allegations of facts concerning Parents’ general inability to provide parental
care, lack of parenting skills, and slow progress in rectifying that deficiency.
See CYS Petition to Terminate Parental Rights, 7/28/21, at ¶¶ 9,11, 23.
Furthermore, the agency unambiguously pled that Father’s cognitive
impairment and mental health problems affected his ability to comprehend
and satisfy his son’s needs insofar as it was unsafe for J.H.P. to return to
Father’s full time care. See Petition to Terminate Father’s Parental Rights,
7/28/21, at ¶ 8. Similarly, CYS explicitly averred that Mother does not retain
instruction and failed to demonstrate parental skills during the supervised
visitations despite multiple prompts. See Petition to Terminate Mother’s
Parental Rights, 7/28/21, at ¶ 8. As with Father, the agency pled that Mother
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suffers from cognitive impairments, has mental health problems, and lacks
the ability to understand and meet the needs of her son. Id. Again, it
asserted that “it was not safe or appropriate for [J.H.P.] to return full time to
the care of his biological parents.” Id.
As outlined above, the respective petitions to terminate parental rights
clearly alleged facts sufficient to form the foundational framework to bear the
relevant evidence that the agency subsequently presented during the hearing.
Accordingly, we reject Parents’ threshold argument that the trial court
terminated parental rights on facts that were not properly pled.
Next, to the extent that Parents challenge the sufficiency of the evidence
that CYS presented during the hearing, that claim also fails. Retaining their
narrow perspective of the relevant inquiry as the child’s failure to thrive,
Parents assert that the trial court disregarded testimony that J.H.P. is
currently healthy and that Parents feed J.H.P. during the supervised
visitations. See Parents’ brief at 18-20. Parents contend that this evidence
“conclusively demonstrates” that the conditions which led to J.H.P.’s
placement no longer exist. Id. at 20.
First, Parents’ reliance upon the child’s current progress patently ignores
the essential role of the foster parents in J.H.P.’s continued development since
his placement in their care in April 2020. Similarly, while Parents’ basic
achievements under the supervision of service providers are encouraging,
they are not representative of Parents’ ability to care for the child
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independently. Hence, notwithstanding Parents’ protestations to the contrary,
we reject the contentions that these facts “conclusively demonstrate” that the
conditions which led to placement, i.e., Parents’ inability to provide parental
care, no longer exist.
More importantly, the force of Parents’ argument goes to the weight of
the evidence as opposed to whether CYS presented sufficient evidence to
establish each element of the statutory grounds to terminate the parental
rights of Mother and Father pursuant to § 2511(a)(8). Insofar as the certified
record supports the orphans’ court’s finding that the parental deficiencies that
gave rise to this case continue to exist, we cannot substitute our judgment for
that of the orphans’ court. See In the Interest of D.F., 165 A.3d 960, 966
(Pa.Super. 2017) (“The [o]rphans’ [c]ourt 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.”).
Instantly, the certified record sustains the determination of the orphans’
court. In terminating the parental rights of Mother and Father, the orphans’
court made the following pertinent findings of facts, which it characterized in
its opinion and order as “Troubling issues raised by Ms. Fisher’s testimony[,]”
a. Despite receiving services since just after J.H.P.’s birth, and
then in-person for eighteen months, Parents still struggle to
change J.H.P.’s diaper properly. . . . As of the [Termination of
Parental Rights] Hearing, Parents still struggled to clean J.H.P
adequately, but more troublingly, struggled to complete diaper
changes independently (i.e., either Mother or Father acting alone,
as opposed to helping each other). [N.T., 12/14/21,] at 57.
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b. Feeding was a concern early on, as evidenced by J.H.P.’s
failure to thrive, but continues to be a concern, as the meals that
Parents prepare for J.H.P. during their visits are very basic. Id.
at 51, 55-56; id. at 115 (. . . usually . . . a sausage, egg, and
cheese bagel or a muffin and a hash brown).
c. Parents have a very poor understanding of safety issues and
risks for J.H.P., including how quickly he can get hurt, and neither
recognize risks quickly nor remember to address them
consistently when they are identified for Parents and the proper
resolution is modeled repeatedly. Id. at 55. (Parents had to
repeatedly be directed not to heat bottles in the microwave, to the
point that Ms. Fisher had to stop the microwave mid-heating to
drive home the point emphatically), 58-59 (as Mother was bathing
J.H.P. in the kitchen sink, she failed to identify that the coffee
maker sitting on the counter next to the sink, plugged in and
containing a full pot of fresh, hot coffee, was a serious risk for
J.H.P.[)]
....
d. Parents generally have a poor understanding of child
development, how quickly young children change and engage in
new behaviors, and the need to interact with J.H.P. regularly and
engage in activities to bond with him. Id. at 51, 54-55, 61-62,
65-66, 67. They tend to do okay if prompted, but if left alone,
revert to allowing other activities (such as reading on a
smartphone) to distract them while J.H.P. is left on his own
without meaningful supervision or interaction. Id.
e. Parents struggle to perform even basic childcare tasks
independently. . . .
Orphans’ Court Opinion, 5/2/22, at 5.
After listing several other findings of fact relating to Ms. Jefferson’s
expert testimony concerning Parents’ cognitive issues and mental health
problems, the court returned to Ms. Fisher’s testimony and surmised, “Simply
put, it is clear that they cannot adequately care for J.H.P. and provide
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for his physical and emotional needs without daily, intensive
supervision and guidance.” Id. at 13 (emphasis added).
Thereafter, under the heading “Analysis,” the orphans’ court reasoned,
In the instant case, the facts and testimony establish,
beyond a reasonable doubt, that the conditions that gave rise
to the Dependency Case continue to exist and cannot be
remedied by Parents. Where the record establishes that a
parent is not capable of providing their child with a safe and
healthy environment in which to live due to an inherent incapacity,
and there is no evidence in the record that the fact of such
incapacity could change, termination is warranted regardless of
the parent’s sincerely stated desire to raise their child and lack of
responsibility for causing such incapacity. Despite the tragic
nature of such situations, “sympathies to the plight of the parent
cannot cloud the consideration of whether parental termination
meets the needs and welfare of the child.”
Id. at 16 (quoting B.L.W., 843 A.2d 380, 387 (Pa.Super. 2004) (en banc)
(cleaned up)).
As the certified record supports the orphans’ court’s finding that Parents
have not remedied the predicate parenting deficiencies despite the best efforts
of CYS and its service providers, we reject Parents’ argument that CYS
adduced insufficient evidence to prove that the conditions which led to J.H.P.’s
placement continue to exist. Hence, we discern no basis to upset the orphans’
court’s conclusion that CYS established by clear and convincing evidence the
statutory basis to terminate the parental rights of Mother and Father pursuant
to § 2511(a)(8).
Having found that the certified record supports the orphans’ court’s
determination pursuant to § 2511(a), we address Parents’ arguments relating
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to § 2511(b), which requires the orphans’ court to “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 intangibles such as love, comfort,
security, and stability.” T.S.M., supra, at 628 (citation and quotation marks
omitted). Our Supreme Court has made clear that § 2511(b) requires the trial
court to consider the nature and status of the bond between a parent and
child. In re E.M., 620 A.2d 481, 484-85 (Pa. 1993). It is reasonable to infer
that no bond exists when there is no evidence suggesting the existence of
one. See In re K.Z.S., 946 A.2d 753, 762–63 (Pa.Super. 2008). To the
extent there is a bond, the trial court must examine whether termination of
parental rights will destroy a “necessary and beneficial relationship,” thereby
causing a child to suffer “extreme emotional consequences.” E.M., supra, at
484-85.
“While a parent’s emotional bond with his or her child is a major aspect
of the [s]ubsection 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.” In re M.M., 106 A.3d 114, 118 (Pa.Super. 2014).
“In 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.” Id. In determining the needs and welfare, the court may properly
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consider the effect of the parent’s conduct upon the child and consider
“whether a parent is capable of providing for a child’s safety and security or
whether such needs can be better met by terminating a parent’s parental
rights.” L.W., supra, at 524.
Furthermore, our Supreme Court has stated, “[c]ommon sense dictates
that courts considering termination must also consider whether the children
are in a pre-adoptive home and whether they have a bond with their foster
parents.” T.S.M., supra, at 268. The Court directed that, in weighing the
bond considerations pursuant to § 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. Court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
Instantly, based upon the evidence adduced at the termination hearing,
including Ms. Jefferson’s expert testimony and Ms. Fisher’s observations
during supervised visitations, the orphans’ court found that, even though
Parents clearly love their son, no meaningful parent-child bond existed with
J.H.P. Instead, the court determined that J.H.P. maintains a strong familial
bond with his pre-adoptive foster parents who have cared for him since April
2020. Hence, the court concluded that “[t]ermination of parental rights in this
case will therefore not destroy the existing, necessary, and beneficial
relationship for J.H.P. (which is with his foster parents), but rather will
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strengthen and support it.” Orphans’ Court Opinion, 5/2/22, at 18-19
(cleaned up).
In assailing the orphans’ court’s best-interest analysis, Parents first
invoke aspects of the dependency record, which was expressly incorporated
into the record during the evidentiary hearing. Parents assert that CYS is
judicially estopped from denying the existence of a parent-child bond in the
instant case because the permanency plans that CYS fashioned for J.H.P.’s
dependency proceedings and filed in the juvenile court during May 14, and
October 14, 2020 previously noted “strong” and “good” parent-child bonds,
respectively. See Parents’ brief at 25. Characterizing these statements as
judicial admissions, Parents posit that the orphans’ court now “must find [CYS]
was bound by their judicial admissions . . . including that there is a very close
attachment and extremely strong bond, which existed and continued to exist
between [Parents] and [J.H.P.]” Id. at 28.
Parents’ argument is more daring than convincing. Assuming,
arguendo, that the statements in J.H.P’s juvenile court permanency plans from
2020 constitute pleadings, stipulations, or testimony that are tantamount to
a judicial admission, and by no means are we suggesting that they are, judicial
estoppel would not preclude CYS from asserting the absence of a meaningful
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parent-child bond when the termination hearing occurred in December 2021.5
At most, CYS would be barred from refuting that a “strong” or “good” parent-
child bond existed in May and October 2020. Tellingly, however, CYS makes
no such assertion as to the state of the parent-child bond during those periods.
To the extent that Parents make this identical claim in regard to the
isolated reference in Ms. Jefferson’s 2020 bonding assessment to J.H.P.’s “not
inconsequential” relationship with Parents, this claim also misses the mark. It
is critical to note that while Parents interpret the phrase “not inconsequential”
to mean significant or substantial, Ms. Jefferson’s use of the terminology was
considerably less positive. In fact, the reference appears in the bonding
assessment as part of Ms. Jefferson’s conclusion in favor of adoption and
specifically describes “the loss that is inherent in not being raised by biological
family.” N.T., 12/14/21, Exhibit D at 6. During cross-examination,
Ms. Jefferson further explained that all children have an innate relationship
with their biological parents and that it eventually will be important for J.H.P.
to understand that his biological parents existed. N.T., 12/14/21, at 29-31.
Thus, insofar as Ms. Jefferson’s reference did not describe a meaningful
parent-child bond, CYS still would not be barred from contesting its existence.
Accordingly, Parents’ novel judicial estoppel claim fails.
____________________________________________
5 Additionally, Parents fail to explain how their suggested application of
judicial estoppel would enhance the 2020 characterization of a “strong” or
“good” bond to the “extremely strong bond” that they currently assert
continues to exist. See Parents’ brief at 28.
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Their alternative argument is more conventional. Essentially, Parents
contend that CYS did not satisfy its burden of proving that terminating
parental rights served J.H.P.’s developmental, physical, and emotional needs
and welfare. The focus of this assertion is that Ms. Jefferson’s 2020 report did
not address the effect that severing the parent-child bond would have on
J.H.P. Id. at 30. Further, Parents contend that the orphans’ court neglected
to consider the “intangible dimensions” of the needs and welfare analysis.
Mother and Father argue that they are capable of formulating a healthy bond
with their son and assert that “the record is replete with references that [they]
very much love and care for their minor child[.]” Id. at 33.
The certified record both belies Parents’ assertions of error and sustains
the orphans’ court’s determination that termination best serves J.H.P.’s
developmental, physical, and emotional needs and welfare. First, contrary to
Parents’ contentions that they can maintain a safe and beneficial bond with
J.H.P., the foregoing discussion of the evidence demonstrates that Parents’
substantial parenting deficiencies continue to present a significant risk to
J.H.P.’s safety and physical wellbeing. See N.T., 12/14/21, 19. Ms. Jefferson
agreed that L.H.P. would face a “grave risk of injury” if he was left
unsupervised with Parents. Id.
Indeed, in contrast to Parents’ characterization of the record, Ms. Jefferson
clearly opined that she could not envision a healthy parent-child bond ever
developing between Parents and J.H.P. Id. at 21. In relation to Mother,
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Ms. Jefferson simply opined that “the attachment deficit is extremely severe
and great.” Id. At 21. As to Father, Ms. Jefferson explained that Father lacked
“the cognitive capacity to [learn] to keep him safe.” Id. at 20. She continued,
“even though there is that genuine feeling of attachment [with J.H.P.,] it is
not strong enough or healthy enough to keep him safe.” Id. The orphans’
court did not err or abuse its discretion in considering the effect of Parents’
conduct upon J.H.P.’s safety and wellbeing. See L.W., supra, at 524 (noting
aptness of considering “whether a parent is capable of providing for a child’s
safety and security or whether such needs can be better met by terminating
a parent’s parental rights”).
Parents accurately observe that Ms. Jefferson’s assessment focused upon
the deficient nature of the parent-child relationship rather than specifically
confronting the effect of severing that relationship. However, Ms. Jefferson
explained that her discussion was, in fact, relevant to the ultimate
determination before the court. Id. at 32. She reasoned that where, as here,
attachment wounding and disruption exist, it takes several years of intense
therapy to ameliorate it. Id. at 32. Accordingly, notwithstanding the lack of
a specific discussion regarding severance, there “is a serious concern for
[Parents’] ability to develop [a] healthy and safe attachment with [L.J.P.].”
Id. at 33. Phrased differently, this case does not present a necessary and
beneficial relationship between Parents and J.H.P. that would cause harm to
J.H.P. if severed.
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Furthermore, notwithstanding Parents’ reliance upon Ms. Jefferson’s
acknowledgement of their relationship with J.H.P. in the 2020 bonding
assessment, Ms. Jefferson’s testimony described J.H.P.’s positive bond with
the foster family, with whom he has lived for all but two months of his life.
Id. at 95-96, 21-22. She recounted her assessment of the child’s bond with
his foster family as follows:
[I]n stark contrast to what I observed when [J.H.P]. was with his
biological parents[,] . . . [he] was bright and vocalizing. They
were making faces, there was touch. He was being held. I mean,
he was absolutely vibrant and appearing . . . without distress,
[and] . . . of normal development. It was warm and natural and
I had absolutely no concerns. You could see it in an instant.
Id. at 21-22. Ms. Jefferson expounded on the significance of this observation
by highlighting that the interactions with the foster family exhibited the
foundational hallmarks of attachment, i.e., “[i]f I reach out for help, is
someone going to respond, and [J.H.P.’s] behavior indicated his clear
confidence of that.” Id. at 22 (cleaned up).
The testimony of Ms. Shawley, the CYS caseworker assigned to the family,
similarly confirmed that J.H.P.’s primary bond is with his foster parents, one
of whom he refers to as “mom-mom.” Id at 103. She described a loving
relationship in a vibrant environment where J.H.P. is “very interactive with the
family.” Id. at 102-03.
Hence, the fact that Ms. Jefferson previously noted Parents’ relationship
with J.H.P. in 2020 does not negate the testimony regarding the significant
parent-child bond that the child maintains with his foster family, which the
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court concluded was “the existing, necessary, and beneficial relationship” that
should be supported. Orphans’ Court Opinion, 5/2/22, at 18-19.
In sum, the testimony presented at the evidentiary hearing
demonstrated that the only beneficial and necessary parent-child bond in this
case exists between J.H.P. and his foster parents, rather than between him
and Parents, and that J.H.P continues to thrive in his foster home. Thus, the
certified record supports the orphans’ court’s finding that the termination of
parental rights will serve the child’s developmental, emotional, and physical
needs and welfare. Id. at 18-19. In contrast to Parents’ arguments
concerning the significance of “intangible dimensions,” including their love for
J.H.P., the focus of the § 2511(b) analysis remains upon J.H.P. and the effect
upon him of severing a beneficial existing parent-child bond. See Parents’
brief at 30. In this vein, we observe that considerations relating to J.H.P.’s
relationship with the foster parents are crucial components of the court’s
§ 2511(b) analysis. See In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010) (“[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.”). Accordingly, we discern no abuse of discretion in the orphans’
court’s needs and welfare analysis.
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For all of the foregoing reasons, we affirm the orphans’ court order
terminating the parental rights of Mother and Father pursuant to § 2511(a)(8)
and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2022
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