In Re: A.A.F., a minor, Appeal of: P.A.F. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.A.F., A MINOR IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: P.A.F., NATURAL FATHER
Appellant No. 1482 WDA 2017
Appeal from the Decree entered September 1, 2017
In the Court of Common Pleas of Blair County
Orphans' Court at No: 2017 AD 5
BEFORE: BOWES, PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 12, 2018
P.A.F. (Father) appeals from the amended decree entered September 1,
2017, which involuntarily terminated his parental rights to his minor son,
A.A.F. (Child), born in January 2016.1 After careful review, we affirm.
The trial court summarized the factual and procedural history of this
matter as follows.
. . . [Blair County Chlidren, Youth and Families (BCCYF)] was
granted verbal emergency protective custody of the subject child
by the undersigned on May 4, 2016. [BCCYF] filed an Application
for Emergency Protective Custody and a Shelter Care Application.
In the Order for Emergency Protective Custody entered May 5,
2016, BCCYF was granted custody, including right of placement.
BCCYF filed both applications based upon reports that the Mother
had not been bonding with the child since birth; that the child had
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1 The decree also terminated the parental rights of Child’s mother, B.M.B.
(Mother). Mother filed an appeal at Superior Court Docket No. 1421 WDA
2017, which we address in a separate memorandum.
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developmental delays; that the Mother was not following through
with recommendations of in-home service providers regarding the
child not meeting developmental milestones; that the Mother had
intellectual limitations and mental health concerns but was not
taking her prescribed medication; and that the parents would not
allow the child to be assessed for Early Intervention despite a
referral by the service provider. On May 4, 2016, the date the
emergency verbal order was given, BCCYF caseworkers went to
the family residence and observed the Mother holding the young
child inappropriately; that the child’s head was significantly flat;
that the child was not responding when they tried to interact with
him; and the Mother was unable to identify the child’s primary
care physician. Furthermore, they observed that the downstairs
of the residence was cluttered with construction tools and that the
Mother’s bedroom was cluttered with pill bottles and an old bottle
of baby formula on the floor. There was also an individual residing
in the home with an active arrest warrant.
After the Shelter Care hearing held May 6, 2016 before Hearing
Officer James V. McGough, Esquire, a Shelter Care Order was
entered on May 10, 2016 returning legal and physical custody of
the child to the Father and directing BCCYF to provide general
protective services. [BCCYF] was to make an immediate referral
for family preservation services; and the parents were directed to
cooperate with services through Home Nursing Agency Nurse
Family Partnership, the WIC Program and any recommendations
made by the pediatrician. Further, both parents were directed to
cooperate with an Early Intervention Assessment for the child and
cooperate with any recommended services.
Upon request of [BCCYF], a Shelter Care Rehearing was held on
May 11, 2016 before the undersigned, at which time the record
from the original shelter care hearing held May 6, 2016 was
incorporated. Legal and physical custody was vested in both
parents with the child to remain under the protective supervision
of [BCCYF]. Both parents were again directed to cooperate with
all recommended services, and the Mother was specifically
directed to engage in mental health counseling and follow all
treatment recommendations, including taking her medication as
prescribed.
On May 6, 2016, BCCYF filed a Dependency Petition and a Motion
for Finding of Aggravated Circumstances alleged as to the Father,
based upon the fact that his parental rights had previously been
involuntarily terminated relative to another child. After hearings
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held May 11, July 26 and August 11, 2016, we entered an Order
of Adjudication and Disposition on August 18, 2016 finding the
subject child to be dependent. The record from these three
proceedings was quite extensive. To summarize the several bases
for a finding of dependency, such would include the Mother’s
significant mental issues which affected her bonding and
attachment with the child; the developmental delays for the child
which were discussed with the parents; the parents consistently
placing a blanket or other items in the baby’s crib which created
safety concerns; the parents[’] refusal to follow through with
recommended services for Early Intervention and the Parents as
Teachers Program; unknown people coming in and out of the
home while service providers were present; inappropriate
behavior by D.F., the paternal grandfather, who has his own
mental health issues; the parents’ difficulty in establishing a daily
schedule and routine for their child; resistance; anger and hostility
by the Father toward service providers; the Father’s refusal to
undergo a mental health evaluation even though he had been
previously diagnosed with a bipolar condition; the conflict between
the parents, including yelling and screaming in the presence of
child; the parents’ inability to attend to the basic necessities for
the child; the lack of cooperation and progress with service
providers; and each service provider testifying that they could not
ensure the safety of the child within the parents’ home. Based
upon the evidence adduced during these hearings, we granted
BCCYF legal and physical custody of the child and placed the child
in a foster home. We also granted [BCCYF’s] Motion for
Aggravated Circumstances against the Father due to an
involuntary termination of his parental rights relative to another
child . . . .
Trial Court Opinion, 10/12/17, at 5-8 (emphasis omitted).
On January 18, 2017, the trial court entered a permanency review order
changing Child’s permanent placement goal from return to parent or guardian
to adoption, and relieving BCCYF of its obligation to provide reunification
efforts. Mother appealed, but Father did not. A prior panel of this Court
affirmed on July 19, 2017. In the Interest of A.F., 2017 WL 3050322 (Pa.
Super. filed July 19, 2017) (unpublished memorandum).
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On February 16, 2017, BCCYF filed a petition to involuntarily terminate
Father’s parental rights to Child. The trial court conducted a termination
hearing on August 29, 2017. Following the hearing, on August 31, 2017, the
court entered a decree terminating Father’s parental rights. The court entered
an amended decree on September 1, 2017.2 Father timely filed a notice of
appeal on September 29, 2017, along with a concise statement of errors
complained of on appeal.
Father now raises the following issues for our review:
A. Whether the trial court erred in terminating Father’s parental
rights to his child under 23 Pa. C.S.A. [§] 2511 (a)(2), (a)(5), and
(a)(8)?
B. Whether the trial court erred in terminating Father’s parental
rights under subsection (b)?
Father’s Brief at 6 (unnecessary capitalization and suggested answers
omitted).
We review Father’s issues 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
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2 The original decree included two grounds for terminating Father’s parental
rights, with the trial court adding a third ground in pen. The amended decree
included all three grounds.
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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).
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 trial court terminated Father’s parental rights pursuant
to Sections 2511(a)(2), (5), (8), and (b). We need only agree with the court
as to any one subsection of Section 2511(a), as well as Section 2511(b), in
order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s
decision to terminate under Section 2511(a)(2) and (b), which provide as
follows.
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(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider 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), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
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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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Instantly, the trial court found that Father is incapable of parenting
Child, and that he cannot, or will not, remedy his parental incapacity. Trial
Court Opinion, 10/12/17, at 19. The court reasoned that Father has never
maintained employment, and that he refused to engage in counseling. Id.
The court further reasoned that Father’s visits with Child remain supervised,
due to persistent safety concerns. Id. The court expressed concern that
Father continues to reside with Child’s paternal grandfather, who suffers from
his own mental health issues. Id.
Father argues that he has the ability to care for Child and to meet his
basic needs. Father’s Brief at 9, 18. Father contends that he has housing, as
well as access to food and formula, and that he would be available to care for
Child “24/7.” Id. at 18. Father contends that Child was doing well before the
trial court placed him in foster care, emphasizing that Child was
developmentally on target, gained weight, and had no illnesses or injuries.
Id.
Our review of the record supports the trial court’s decision. During the
termination hearing, the court incorporated by reference Child’s prior
dependency proceedings, including a report prepared by psychologist, Terry
O’Hara, Ph.D., in October 2016. See Petitioner’s Exhibit 1 (Psychological
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Evaluation Report). In his report, Dr. O’Hara explained that he conducted a
global assessment of Father, which revealed a variety of significant parenting
concerns. Id. at 21-25. Dr. O’Hara concluded that Child would be at risk for
“neglect, abuse, exposure to domestic violence and psychological instability,
depression, anxiety, truncation of appropriate development, and reactive
attachment disorder” if he were returned to Father’s home. Id. at 24-25.
In reaching this conclusion, Dr. O’Hara placed particular emphasis on
Father’s longstanding history of mental health issues. Father reported to Dr.
O’Hara that he overdosed on prescription medication twice in 2010. Id. at
17-18. Father characterized one of these overdoses as a “serious suicide
attempt,” which occurred after he broke up with a previous girlfriend. Id. at
17. Father reported that he stopped taking his medication in 2011, and that
he has “been better since.” Id. at 18.
Dr. O’Hara also emphasized Father’s history of engaging in aggressive
behaviors. Father informed Dr. O’Hara that he had a juvenile criminal record,
which stemmed from an incident during which he attacked a teacher. Id.
Father claimed that the teacher “was beating on the students and he came at
me and I stuck a pencil right across his hand.” Id. As an adult, Father pled
guilty to simple assault and disorderly conduct in 2008. Id. at 18-19. Father
explained that these charges resulted from an incident during which he
became intoxicated and “fought some friends . . . I pulled a sword, just to say
[b]ack off.” Id. at 19. Father admitted that his previous girlfriend obtained
two Protection from Abuse orders against him in 2009 and 2010, although he
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insisted that the orders were entered “for some unknown reason” and that his
girlfriend was “very manipulative.” Id. at 18. Finally, Father admitted to
being argumentative with service providers during Child’s dependency,
although he insisted that his behavior was justified because the service
providers themselves were argumentative. Id. at 16.
The testimony presented during the termination hearing reveals that
Father’s mental health issues and aggressive behaviors remain an ongoing
concern. Child’s visitation supervisor, Alexis Richards, testified that Father
was verbally abusive toward Mother during a visit on May 25, 2017. N.T.,
8/29/17, at 12-13. She explained, “[H]e swore at her because she wasn’t
correctly doing a diaper change. He was a little bit more demanding about it,
like how she is supposed to be doing it. . . . [H]owever, I believe that she was
doing it correctly.” Id. at 13. BCCYF caseworker, Ronna Holliday, testified
that Father gets angry with service providers and yells at them. Id. at 48.
On one occasion, Father grabbed a service provider’s arm during a doctor’s
appointment. Id. BCCYF recommended that Father seek counseling for anger
issues, alcohol use, and intermittent explosive disorder. Id. However, Father
has never engaged in any sort of counseling. Id. at 53.
Notably, Father himself testified that he is in need of counseling, and
will not be able to care for Child otherwise.
Q. And you would agree with me that it’s your belief you’ve
done everything that [BCCYF] has asked from you for purposes of
effectuating reunification?
A. No.
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Q. You haven’t?
A. No.
Q. What would you need to do still to effectuate
reunification?
A. I would have to go through counseling now because of all
of this.
Q. So is it your testimony today you presently would not be
able to reunify with your son as a result of your mental health
state?
A. From everything that I’ve been going through, no. I’d
have to go through some counseling first.
Id. at 81-82.
In addition to Father’s other issues, the record reveals that he continues
to live with Mother, with whom he has a tumultuous, and even violent,
relationship. Ms. Holliday testified that Father contacted BCCYF prior to Child’s
adjudication of dependency, and informed them that he had broken up with
Mother and that she had moved out of the house. Id. at 64. Mother later
alleged that Father and his cousin had been physically and emotionally abusive
to her.3 Id. More recently, in July 2017, Father called BCCYF stating that he
and Mother had been in an argument and that he “had to go to the hospital”
because Mother “may have broken his toe.” Id. at 61.
Father also continues to reside with Child’s paternal grandfather, D.F.
Id. at 39. The record reveals that D.F. suffers from his own significant mental
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3Mother recanted these allegations. Petitioner’s Exhibit 1 at 5; N.T., 8/29/17,
at 104.
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health issues. Id. at 40. Ms. Holliday explained, “I’ve tried to have
conversations with him. He talks about the war. He talks about the military
and we were informed by [Father] that he was never enrolled in the military.”
Id. Mother testified that she and Father “tried to like get a court order for
[D.F.] to get back on his medication,” but that D.F. is not dangerous and “just
has fantasy details in his mind and, you know, [] everyone goes through that.”
Id. at 88, 100.
Thus, the record supports the trial court’s conclusion that Father is
incapable of parenting Child, and that he cannot, or will not, remedy his
parental incapacity. Father suffers from significant mental health issues and
displays aggressive behaviors. Father himself admits that he is in need of
counseling, but failed to obtain counseling throughout Child’s dependency.
Moreover, Father continues to reside with Mother and D.F., despite his
tumultuous relationship with Mother and D.F.’s obvious mental instability.
When considered together, these issues confirm that Father cannot provide
the safe, stable, and nurturing environment that Child needs.4
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4 The record does not support the trial court’s finding that Father’s visits
remain supervised due to persistent safety concerns. Ms. Richards testified
that she observed no “endangered concerns” during Child’s visits with Father,
but recommended that visits remain supervised because Child likes to have
two people in the room with him at the same time. N.T., 8/29/17, at 15, 18.
She explained, “I feel like if the visits were unsupervised it would not go very
well for [Child]. I think he would get upset very easily and feel basically left
out, I guess would be the way to say it.” Id. at 15. Nonetheless, we conclude
that the court’s remaining findings are supported by the record, and are more
than sufficient to affirm the court's decision..
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We next consider whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b).
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.
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 trial court summarized the testimony presented by
BCCYF, including testimony that Child is not interested in interacting with
Father during visits, and that Child has a strong bond with his foster mother.
Trial Court Opinion, 10/12/17, at 15-16. Based on this evidence, the court
concluded that terminating Father’s parental rights would best serve Child’s
needs and welfare. Id. at 19.
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In response, Father argues that he and Child share a bond. Father’s
Brief at 21. Father directs our attention to his testimony describing the bond
during the termination hearing. Id. at 21-22 (quoting N.T., 8/29/17, at 74-
75).
Our review of the record again supports the trial court’s decision. Ms.
Richards testified that Father had the opportunity to attend sixteen visits with
Child between January 2017 and August 2017.5 N.T., 8/29/17, at 9. However,
Father attended only eight of those visits. Id. During the visits that Father
did attend, Child did not display an attachment to him. Id. at 12. Ms. Richards
explained, “[Child] was not really interested in interacting with [Father] during
the visits. I know there was a couple times where [Father] did pick up [Child]
and [Child] started to cry because he wanted either [Mother] or I.” Id.
In contrast, Ms. Richards testified that Child has a “very good bond” with
his foster mother. Id. at 14. When Ms. Richards picks up Child for visits, he
is often “very upset” to leave his foster mother. Id. at 14. When Ms. Richards
returns Child to his foster mother after visits, his arms “reach out to her
immediately.” Id.
Similarly, Ms. Holliday testified that Child appears bonded with his foster
parents and their biological children, and is comfortable in the foster home.
[Child] looks to the children, the biological children in this family
for his needs and wants. They enjoy -- he enjoys playing with
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5 In its opinion, the trial court states that there were seventeen visits
scheduled. Trial Court Opinion, 10/12/17, at 15. However, one of those visits
was cancelled due to Child being sick. N.T., 8/29/17, at 9.
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them. They enjoy playing with each other. They have a family
dog that is -- he is very close with. He really enjoys being with
the dog. Even with the adoptive resource father, he came in from
work one day and [Child] got very excited. He was dancing. When
he sat down [Child] sat with him and he stayed at his side for
several minutes and then played right in front of him for the rest
of the visit. The adoptive resource family has integrated him into
their daily life. He’s happy to see them. When I’m there he looks
to them for security. Eventually he has warmed up to me and
come to me but he knows that -- he seems to have -- there is a
safety protectiveness [sic] with the adoptive resource family I
should say. He is very comfortable in the home.
Id. at 50-51.
Thus, it is clear that terminating Father’s parental rights would best
serve Child’s needs and welfare. Father failed to attend half of his recent visits
with Child. During the visits that Father did attend, Child did not appear
bonded to him. Child displays a strong bond with his foster parents, and they
have integrated him fully into their family. Moreover, Father remains unable
to care for Child, and preserving his parental rights would serve only to deny
Child the benefits of a permanent, safe, and stable home.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Father’s parental rights to Child.
Therefore, we affirm the court’s September 1, 2017 decree.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/2018
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