In Re: Z.J., a minor, Appeal of: J.W.J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: Z.J., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.W.J., FATHER
No. 787 WDA 2016
Appeal from the Order Entered May 5, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000053-2015
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 18, 2016
J.W.J. (“Father”) appeals from the order entered May 5, 2016, in the
Court of Common Pleas of Allegheny County, which involuntarily terminated
his parental rights to his minor daughter, Z.J. (“Child”), born in March of
2010.1 After careful review, we affirm.
The orphans’ court summarized the relevant factual and procedural
history of this matter as follows.
The child was initially referred to [the Allegheny County
Office of Children, Youth and Families (“CYF”)] in May 2010 [due
to] allegations that Mother had refused to get [] medical
treatment for the newborn child. Moreover, the Mother was no
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*
Former Justice specially assigned to the Superior Court.
1
The parental rights of Child’s mother, H.M.M. (“Mother”), were terminated
by the same order. Mother has not filed a brief in connection with this
appeal, nor has she filed her own separate appeal.
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longer allowed to reside with relatives after they accused her of
stealing. Mother was alleged to have unaddressed drug and
alcohol concerns. She had three other children outside of her
care. Father was incarcerated at the Allegheny County Jail. The
child was removed from Mother’s care and placed with the
maternal grandmother. But after services were installed, the
Mother was able to resume custody of [Child] in June and the
case was closed four months later in September.
The child came to the attention of the agency again in
January 2013 upon allegations that Mother was drinking and
driving with [Child] and other children in her car and that Mother
was not diligent in providing her children with necessary medical
care. Like the last time the child was removed, Father was not
in the home. Instead, he was living in Renewal, a halfway house
following his release from the Allegheny County Jail. [Child] was
returned to her Mother in October 201[3], but then removed for
a third time in January 2014. Mother had been arrested for
drunk driving; [Child] and other children had been in the car
without seatbelts.
Family Service Plans (“FSPs”) were created for both
parents to address the issues that seemingly prevented them
from providing adequate parental care. The FSPs were identical
for both parents. The goals included: follow the terms of
probation; achieve and maintain recovery from substance abuse;
ensure that the children attend and perform satisfactorily in
school; eliminate domestic violence; ensure supervision of the
children; ensure the children have medical care; maintain
contact and cooperation with the agency and visit with their
children; [and] attend[] [a] parenting program. . . .
Father was also largely noncompliant with his FSP goals.
He was incarcerated in 2010 and was living in the Renewal
halfway house in 2013. He has never been compliant with his
drug and alcohol goal; he refused to take drug screens, and in
2013 the children told authorities that he grew marijuana in the
home. Father has never attended any medical appointments or
any school meetings. Although he was probably not given notice
of such things, it is also clear that he did not ask. Father has
never provided any proof that he engaged in any domestic
violence prevention programs. . . . Meanwhile, he did not visit
consistently with the child until June 2015. Apart from his
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stretches of incarceration, there would still be months at a time
where he would not visit the child.
Father has an extensive criminal history. In 2007 he pled
[guilty] to two separate cases of disorderly conduct. In 2008 he
pled guilty to criminal conspiracy, felony manufacture and
delivery with intent, and receiving stolen property. In 2011 he
was found guilty of terroristic threats, simple assault and
resisting arrest.
Father testified that he was in the home of the child until
she was approximately a year old, at which time he was
incarcerated. He was released to the halfway house when the
child was two and a half. But he left without permission and was
eventually arrested six weeks later in March 2013. He served
another six months until he was released to another halfway
house. Again he left without permission and was arrested again
and incarcerated again in January 2015. He was incarcerated
until June 25, 2015. . . .
Orphans’ Court Opinion, 7/5/2016, at 1-3 (citations to the record and
footnote omitted).2
On March 10, 2015, CYF filed a petition to involuntarily terminate
Father’s parental rights to Child. CYF then filed a motion to withdraw its
termination petition on October 5, 2015, which the orphans’ court granted.3
CYF filed a second petition to terminate Father’s parental rights on January
25, 2016. The orphans’ court held a termination hearing on April 4, 2016,
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2
Child was adjudicated dependent as to Mother on January 28, 2013, and
adjudicated dependent as to Father on March 24, 2014. N.T., 5/4/2016, at
42.
3
In its motion, CYF averred that Child’s maternal grandmother, who is also
her foster mother, no longer wanted to adopt Child and instead wanted to be
Child’s permanent custodian. Child’s grandmother later changed her mind,
and again wants to adopt Child.
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and May 4, 2016, during which the court heard the testimony of
psychologist, Terry O’Hara, Ph.D.; family service transporter, Milton L. Butts,
Jr.; Child’s maternal grandmother, S.M.; CYF caseworker, Terese Tuminello;
and Father. Following the hearing, on May 5, 2016, the court entered an
order involuntarily terminating Father’s parental rights to Child. Father
timely filed a notice of appeal on June 2, 2016, along with a concise
statement of errors complained of on appeal.
Father now raises the following issue for our review.
Did the [orphans’ c]ourt commit fatal and reversible error and/or
abuse[] its discretion by ruling that [CYF] proved by clear and
convincing evidence that terminating the parental rights of
Father, [] best meets the needs and welfare of his minor child
[Child] pursuant to 23 Pa[.]C.S.A. [§] 2511(b)?
Father’s brief at 1.
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.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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 Sections 2511(a)(2), (5), (8), and (b). Father presents no
argument in his brief with respect to Section 2511(a). Thus, any challenge
to Section 2511(a) is waived, and we need only consider whether the court
abused its discretion by terminating Father’s parental rights pursuant to
Section 2511(b). See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011),
appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884,
897 (Pa. Super. 2010)) (“‘[W]here an appellate brief fails to provide any
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discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”’).
Section 2511(b) provides as follows.
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(b).
This Court has explained our analysis with respect to Section 2511(b)
in the following manner.
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
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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.
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).
Here, the orphans’ court concluded that terminating Father’s parental
rights would best serve Child’s needs and welfare. The court acknowledged
that Child and Father have a positive relationship. Orphans’ Court Opinion,
at 7/5/2016, 5-6. Nonetheless, the court found that Father has never been
a consistent caretaker for Child, and that “this positive relationship has
occurred in spite of Father’s behavior not because of it.” Id. at 6. The court
further observed that Child has a secure attachment with her maternal
grandmother and that Child has thrived in her care. Id. The court
emphasized the testimony of psychologist, Terry O’Hara, Ph.D., who opined
that Child’s need for stability, safety, and security, outweigh whatever
detriment Child might experience if Father’s parental rights are terminated.
Id.
Father argues that CYF failed present clear and convincing evidence
that terminating his parental rights would best serve Child’s needs and
welfare. Father contends that Dr. O’Hara “arrived at his opinion in part
based on collateral information that was not true or was taken out of
context.” Father’s brief at 6. Specifically, Father contends that Dr. O’Hara
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relied on negative and allegedly false statements made to him by Child’s
maternal grandmother.4 Id. at 6-8. Father also asserts that Dr. O’Hara
based his conclusions on “partial information he received from Father from
fifteen (15) years prior when Father was a juvenile.” Id. at 8-9. Finally,
Father claims that the orphans’ court failed to conduct a sufficient analysis
on how terminating Father’s parental rights will impact Child. Id. at 15-17.
After carefully examining the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by involuntarily terminating
Father’s parental rights to Child. During the termination hearing, Dr. O’Hara
testified that he conducted an interactional evaluation of Father and Child, as
well as an individual evaluation of Father and two interactional evaluations of
Child and her maternal grandmother. N.T., 4/4/2016, at 15, 22, 38.
With respect to Child’s interactional evaluation with Father, Dr. O’Hara
testified that Father “interact[ed] well” and “showed some positive parenting
skills with his daughter.”5 Id. at 38. Dr. O’Hara also observed that Child
displayed characteristics of a positive attachment with Father. Id. at 38,
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4
These statements include allegations by Child’s maternal grandmother that
Father says negative things about her and Mother during his visits with
Child, that Father told Child to tell Dr. O’Hara that she wants to live with
him, and that Father is unemployed. See Father’s brief at 7-8.
5
Dr. O’Hara testified that Father displayed parenting deficits as well. N.T.,
4/4/2016, at 38-39. Dr. O’Hara explained that Father spoke “very
negatively” about Mother in Child’s presence, and that Father’s comments
appeared to make Child upset. Id. at 39-41.
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41-42. Child “referred to him as daddy, . . . she smiled with her father and
praised him. She showed affection to him. She excitedly interacted with
him. She was compliant to [Father]. She made a statement something to
the effect of, ‘It’s fun when you’re around me.’” Id. at 38. Dr. O’Hara
opined that Child has a beneficial relationship with Father, and that “there
would certainly be some psychological harm” if Child’s contact with Father
were to cease. Id. at 46, 92.
However, Dr. O’Hara expressed concern regarding Father’s extensive
criminal record. Dr. O’Hara reported that Father has a history of convictions
dating back to 2007. Id. at 32. Most recently, Dr. O’Hara believed that
Father was “on the run” from police for a period of about two years, from
2013 until 2015, due to violating the conditions of his probation or parole.6
Id. at 33. Father also reported to Dr. O’Hara that he has a history of
juvenile delinquency. Id. at 30. Father informed Dr. O’Hara that he “was
placed at Harborcreek for four years . . . . It was sometime, I believe,
around 11 and 12 years of age until then 15 or 16.” Id. at 26-27. Based on
Father’s lengthy history of engaging in criminal activity, Dr. O’Hara
diagnosed Father with antisocial personality disorder. Id. at 30.
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6
Father testified that he absconded from a halfway house on January 27,
2013. N.T., 4/4/2016, at 113. Father recalled that he was arrested on
March 11, 2013, and was incarcerated for six months due to absconding.
N.T., 4/4/2016, at 113, 117-18. Father then went “on the run for a year
and a half” from September 11, 2013, until January 8, 2015. Id. at 116.
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Dr. O’Hara further testified that Child appears to be doing very well in
the care of her maternal grandmother. Id. at 20. Dr. O’Hara explained that
Child’s grandmother demonstrated “significant” parenting abilities during her
interactional evaluations with Child. Id. at 16-17. Child also exhibited
several factors indicative of a “secure attachment” with her grandmother.
Id. at 16-18. For example, during her second evaluation with her
grandmother in February of 2016, Child stated that her grandmother is “kind
and nice,” that she loves her grandmother, that she is best cared for by her
grandmother, and that she would like to continue living with her
grandmother. Id. at 17-18.
Ultimately, Dr. O’Hara opined that Child’s needs and welfare would
best be met by being adopted by her maternal grandmother. Id. at 43. Dr.
O’Hara emphasized the security and stability provided by Child’s
grandmother and explained, “When I look at [Father’s] level of criminal
activity, which includes assault and aggression and violence and then also
being on the run for two years, . . . I just don’t have evidence that [Father]
is able to refrain from criminal activity for a sustained amount of time.” Id.
at 42-43. While Dr. O’Hara recommended an open adoption if possible, he
believed that the benefits of adoption would outweigh any harm that Child
might experience even if she is not able to maintain a relationship with
Father. Id. at 43-44.
Thus, the record supports the finding of the orphans’ court that
terminating Father’s parental rights will best serve Child’s needs and
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welfare. At the time of the termination hearing in this matter, Child was six
years old, and had been in foster care continuously for nearly two and half
years. Further, Child has a positive relationship with her maternal
grandmother, and is thriving in her care. While the record indicates that
Child and Father also exhibit a positive relationship, it is clear that this
relationship is outweighed by Child’s need for permanence, safety, and
stability. 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).
Additionally, we reject Father’s claim that the orphans’ court abused
its discretion by accepting the testimony of Dr. O’Hara. First, our review of
the record belies Father’s assertion that Dr. O’Hara’s conclusions were
influenced by negative and allegedly false statements made to him by Child’s
maternal grandmother. When explaining why he believed that Child should
be adopted by her grandmother, Dr. O’Hara said nothing about the
grandmother’s statements concerning Father. Instead, Dr. O’Hara
emphasized the security and stability that Child’s grandmother provides, as
well as Father’s lengthy criminal history. The statements made by Child’s
grandmother appear to have had, at best, a minimal impact on Dr. O’Hara’s
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conclusions. Even if Dr. O’Hara had placed significant weight on the
statements made by Child’s grandmother, it was for the orphans’ court, not
this Court, to assess the veracity of those statements, as well as the
credibility and weight to be given to Dr. O’Hara’s testimony. See In re
T.S.M., 71 A.3d at 267.
For the same reasons, we reject Father’s claim that Dr. O’Hara’s
conclusions were based on incomplete information regarding Father’s
juvenile criminal record. During the termination hearing, Dr. O’Hara
explained that he took Father’s juvenile record into account when diagnosing
Father with antisocial personality disorder, as this diagnosis “supposes a
pervasive pattern of disregard for the violation of rights in others since 15
years of age.” N.T., 4/4/2016, at 104. However, Dr. O’Hara does not
appear to have relied significantly on Father’s juvenile record when making
his ultimate recommendation that Child should be adopted by her maternal
grandmother. To the contrary, it was Father’s recent criminal activity that
Dr. O’Hara emphasized when explaining why he believed that Child should
be adopted. The record confirms that Father’s criminal history as an adult is
quite extensive, and this history by itself amply supports Dr. O’Hara’s
opinion that Father is simply too prone to recidivism to serve as an
appropriate parent for Child.
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Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Father’s parental rights to
Child, we affirm the order of the orphans’ court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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