In the Interest of: J.A., a Minor Appeal of T.J.A ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.A., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.J.A., FATHER : No. 948 EDA 2018
Appeal from the Decree, February 28, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000101-2018,
FID#51-FN-000992-2011
BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 07, 2018
T.J.A. (“Father”) appeals from the February 28, 2018 decree granting
the petition of the Department of Human Services (“DHS”) to involuntarily
terminate his parental rights to his minor1 female child, J.A. a/k/a J.A.S.
(“Child”), pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b).2 After
careful review, we affirm.
The trial court summarized the underlying facts and procedural history
of this case as follows:
On January 31, 2017, [DHS] received a General
Protective Services (“GPS”) report alleging that the
mother of Child was incorrectly mixing Child’s infant
formula. The report further alleged that Child was
underweight as result of the improper feeding. The
1 Child was born in April 2016.
2 The record reflects that the trial court’s February 28, 2018 decree also
terminated the parental rights of M.E. (“Mother”) to Child. Mother is not a
party to this appeal.
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report also alleged that Mother had been diagnosed
with mental health issues and that she exhibited
aggressive behavior. DHS met Mother, Father and
Child, on February 3, 2017 to discuss the allegations
but thereafter the family failed to maintain contact
with DHS. Thereafter, DHS reestablished contact
and met with the family on April 10, 2017. It was
determined on that date that Child remained
underweight. On the same day, DHS obtained an
Order for Protective Custody (“OPC”) and Child was
placed in foster care. On April 19, 2017, the Child,
following a hearing, was adjudicated dependent.
On December 11, 2017, a revised Single Case Plan
(“SCP”) was created for Mother and Father. The
objectives for Father were (1) to participate in all
bi-weekly supervised visits of the Child; (2) to attend
parenting classes; (3) to participate in a parenting
capacity evaluation; (4) to engage in housing and
employment classes; and (5) Father would comply
with the court ordered recommendations of the
Clinical Evaluation Unit’s (“CEU”) evaluation and
assessment for drug and alcohol treatment. The
underlying Petition to Terminate Father’s Parental
Rights was filed on February 5, 2018 after Father
and Mother failed to meet their SCP objectives.
Trial court opinion, 5/11/18 at 2-3 (citations and footnote omitted).
On February 28, 2018, the trial court conducted a termination hearing;
Father was present for said hearing and was represented by counsel.
Following the hearing, the trial court entered a decree involuntarily
terminating Father’s parental rights to Child pursuant to
Sections 2511(a)(1), (2), (5), and (b), and changed the goal to adoption.
(See notes of testimony, 2/28/18 at 53-55.) In reaching this decision, the
trial court noted during the hearing that “aggravated circumstances” existed
as to Father given that his parental rights to another one of his children had
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been involuntarily terminated in November 2017. (See id. at 30.) On
March 22, 2018, Father filed a timely notice of appeal to this court, together
with a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(2)(i). On May 11, 2018, the trial court filed its
Pa.R.A.P. 1925(a) opinion.
Father raises the following issues for our review:
1. Whether the trial court committed reversible
error, when it involuntarily terminated
[F]ather’s parental rights where such
determination was not supported by clear and
convincing evidence under the adoption act,
23 P[a].C.S.A. § 2511(a)(1) (2) and (5)[?]
2. Whether the trial court committed reversible
error when it involuntarily terminated
[F]ather’s parental rights without giving
primary consideration to the effect that the
termination would have on the developmental,
physical and emotional needs of [C]hild as
required by the adoption act, 23 P[a].C.S.A.
§ 2511(b)[?]
3. Whether the trial court erred because the
evidence was overwhelming and undisputed
that [F]ather demonstrated a genuine interest
and sincere, persistent, and unrelenting effort
to maintain a parent-child relationship with
[C]hild[?]
Father’s brief at 8.
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
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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 internal quotation
marks omitted). “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., 855 A.2d 68, 73-74
(Pa.Super. 2004) (citation omitted). “[I]f competent evidence supports the
trial court’s findings, we will affirm even if the record could also support the
opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.
2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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
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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) (citation and
quotation marks omitted).
In this case, the trial court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), (5), and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in
regard to a child may be terminated after a
petition filed on any of the following grounds:
(1) The parent by conduct continuing
for a period of at least six months
immediately preceding the filing of
the petition either has evidenced a
settled purpose of relinquishing
parental claim to a child or has
refused or failed to perform
parental duties.
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(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
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.
....
(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
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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)(1), (2), (5), and (b). We need only agree with the
trial court as to any one subsection of Section 2511(a), in addition to
Section 2511(b), to affirm an order terminating parental rights. In re M.M.,
106 A.3d 114, 117 (Pa.Super. 2014).
Instantly, we analyze the trial court’s decision to terminate under
Sections 2511(a)(2) and (b).
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.
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)
(citations, internal quotation marks, and indentation omitted).
Upon review, we find that there was clear and convincing evidence to
support the trial court’s termination of Father’s parental rights to Child,
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pursuant to Section 2511(a)(2). The record establishes that “incapacity”
under Section 2511(a)(2) exists given that Father has demonstrated a
repeated and continual inability to remedy the problems that led to Child’s
placement by failing to satisfy any of his SCP objectives. As noted, DHS
became involved in this matter after concerns arose regarding Child’s being
significantly underweight. (Notes of testimony, 2/28/18 at 5.) At the time
of the February 28, 2018 termination hearing, Child was 22 months old and
had been in a pre-adoptive foster home for nearly 11 months. (Id. at 5-6.)
Jessica Law, the Community Umbrella Agency case manager assigned to this
matter, testified that Father’s SCP objectives for reunification with Child
included: (1) housing education classes; (2) parenting classes;
(3) participation in supervised visitation with Child; (4) participation in a CEU
evaluation to determine drug and alcohol abuse; and (5) participation in a
parenting capacity evaluation. (Id. at 14-15.)
Law testified that as of the date of the termination hearing, Father had
yet to participate in a parenting capacity evaluation with Forensic Mental
Health Services, LLC. (Id. at 15-16.) Specifically, Father failed to show up
for his first scheduled evaluation on September 19, 2017, and arrived late to
his January 3, 2018 evaluation, resulting in the appointment being
rescheduled. (Id.) Law also testified that Father had failed to participate in
a drug or alcohol evaluation with CEU or complete court-ordered random
drug screening. (Id. at 16.)
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Law next testified that Father had failed, in large part, to take
advantage of the housing, financial counseling, and parenting services
offered by the Achieving Reunification Center (“ARC”). Specifically, Father
was twice referred to ARC on April 19 and December 15, 2017, but as of the
date of the termination hearing, had attended one housing class, no financial
counseling classes, and four parenting classes. (Id. at 17-18.) Law also
testified that Father failed to establish any stability in his life with regard to
housing, had recently moved into a boarding house with Child’s Mother that
the trial court deemed inappropriate for reunification, and did not provide
Law a mailing address until January 2018, three weeks before the
termination hearing. (Id. at 16, 53-54.)
Additionally, the record reveals that Father has only sporadically
visited Child. At the initial April 19, 2017 adjudicatory hearing, the trial
court granted Father bi-weekly supervised visitation, but by the July 19,
2017 permanency review hearing, Father’s visitation had been reduced to
weekly due to his inconsistent attendance. (Id. at 18-19.) Thereafter, the
trial court further reduced Father’s visitation with Child to bi-weekly in
November 2017. (Id.) Law testified that even after these changes, Father
had only attended five of the seven scheduled bi-weekly visitation
appointments with Child since the last court date. (Id.)
Father, in turn, testified on his own behalf at the termination hearing
and stated that he missed supervised visitation with Child because the trial
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court had precluded him from taking his drug tests; Father, however, was
unable to explain exactly how the trial court had denied him his drug
screenings. (Notes of testimony, 2/28/18 at 43-45.) Father also indicated
that he was “somewhat” in a position to provide financial support for Child,
but could not explain why he had failed to satisfy his SCP objectives thus far,
and that he was “not making no [sic] excuses” and felt he had “done [his]
part.” (Id. at 46-47.)
Based on the foregoing, we agree with the trial court that there exists
clear and convincing evidence of record to justify the termination of Father’s
parental rights to Child pursuant to Section 2511(a)(2). See
In re Adoption of C.D.R., 111 A.3d at 1216.
Next, we consider whether termination was proper under
Section 2511(b). With regard to Section 2511(b), our supreme court has
stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
The emotional needs and welfare of the child have
been properly interpreted to include [i]ntangibles
such as love, comfort, security, and stability. . . .
[T]his 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. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
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In re T.S.M., 71 A.3d at 267 (internal case citations omitted).
“[I]n cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. Accordingly, the extent of
the bond-effect analysis necessarily depends on the circumstances of the
particular case.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super.
2010) (citations omitted). Additionally, when evaluating a parental bond,
“the court is not required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally, Section 2511(b)
does not require a formal bonding evaluation.” In re Z.P., 994 A.2d 1108,
1121 (Pa.Super. 2010) (citations omitted).
Upon review, we find that the record supports the trial court’s
determination that the termination of Father’s parental rights was clearly in
the best interests of Child, pursuant to Section 2511(b). At the termination
hearing, Law testified that Child had developed a strong “parental” bond
with her foster parents, whom she has resided with since August 2017, and
that they provide for her medical, emotional, and daily needs. (Notes of
testimony, 2/28/18 at 12-13.) On the contrary, Law indicated that Father
had failed to provide for any of Child’s daily needs since she was placed into
DHS custody, and had never attended Child’s medical appointments nor
provided her with any financial support. (Id. at 19-20.) Law opined that
Child would not suffer any irreparable harm if Father’s parental rights were
terminated and that adoption would clearly be in her best interests. (Id. at
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20.) The trial court found the testimony of Law to “be credible and accorded
[it] great weight.” (Trial court opinion, 5/11/18 at 6.)
This court has long recognized that “[a] child’s life, happiness and
vitality simply cannot be put on hold until the parent finds it convenient to
perform parental duties.” In the Matter of the Adoption of A.M.B., 812
A.2d 659, 675 (Pa.Super. 2002). Our standard of review requires us to
accept the trial court’s findings of fact and credibility determinations where,
as here, they are supported by the record. See In re T.S.M., 71 A.3d at
267. Accordingly, we decline to reweigh the evidence and reassess witness
credibility.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Father’s parental rights to Child
pursuant to Section 2511(a)(1) and (b). Accordingly, we affirm the
February 28, 2018 decree of the trial court.
Decree affirmed.
Nichols, J. joins this Memorandum.
Dubow, J. did not participate in the consideration or decision of this
case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/18
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