In Re: D.M.W., a minor, Appeal of: D.M.G. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.M.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.M.G.
No. 1667 WDA 2015
Appeal from the Order Dated October 8, 2015
in the Court of Common Pleas of Allegheny County
Civil Division at No.: TPR No. CP-02-AP-000020-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 3, 2016
D.M.G. (Father) appeals the order, entered in the Court of Common
Pleas of Allegheny County (trial court), on October 8, 2015, that terminated
his parental rights to his son, D.M.W. (Child), born in April of 2013. We
affirm.1
The Allegheny County Office of Children, Youth, and Families (CYF)
obtained an emergency custody authorization for Child and his four older
siblings on August 21, 2013, when Mother was involuntarily committed for
severe mental health problems. There had been twelve prior referrals of this
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The trial court also terminated the parental rights to Child of M.K.W.
(Mother). Mother did not appeal that termination.
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family to CYF from June of 2009 through June of 2013, when police reported
domestic violence calls to the home during Mother’s pregnancy with Child.
At the time CYF removed Child, there was a court order in effect that barred
Father from any contact with Mother. The trial court entered the order after
Father pleaded guilty to aggravated assault for attacking Mother with a club
on February 1, 2013, two months prior to Child’s birth.
Father met Child for first time at the shelter care hearing on August
28, 2013, where the trial court scheduled weekly, supervised visits. The
trial court adjudicated Child dependent on January 29, 2014, continued the
visitation schedule, and ordered Father to attend the Arsenal Parenting
Program.
Over the next few months, CYF reduced the supervision of Father’s
visits to “pop in and out” supervision and then to unsupervised, but still in
the CYF office. Visits eventually moved to Father’s home on Saturdays for
four hours, supervised and then reduced to only one hour of supervision.
Father’s visits returned to supervised, however, when the testimony of Terry
O’Hara, Ph.D., raised doubts about Child’s safety. Dr. O’Hara was concerned
about Father’s cannabis abuse, his conviction for aggravated assault against
Mother, and his minimization of his role in, and responsibility for, that
domestic violence.
At the adjudication hearing, the trial court ordered Father to: 1)
undergo a mental health evaluation; 2) provide proof of mental health
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treatment; 3) provide proof of completion of the program at the Domestic
Abuse Counseling Center (DACC); and 4) attend the Men’s program at the
Women’s Center and Shelter.
Father attended a twelve-week parenting program with Arsenal and
signed all releases of information for the agency. Father underwent three
mental health evaluations with Dr. O’Hara, including individual psychological
and interactional evaluations. Dr. O’Hara remained concerned that Father
did not disclose significant problems with his various counselors. He did not
disclose his marijuana use, nor did he disclose the full extent of his history of
domestic violence and his criminal conviction for aggravated assault.
Father attended approximately half of his mental health appointments
and completed the Men’s program on his second attempt. The Men’s
facilitator, Rhonda Fleming, noted the Father was consistently late. Father
claimed he was one half hour late every week because of his visits with
Child. (See N.T. Hearing, 8/18/15, at 113-14). The record, however,
reveals that the Men’s sessions took place on Friday evenings, while Father’s
visits with his son occurred first on Thursdays and then on Saturdays. The
trial court deemed Father to have completed the Men’s program in spite of
his consistent tardiness, and excused Father from the DACC classes when it
gave him credit for attending the Men’s program. Father also completed the
twelve-week Arsenal parenting program.
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During his individual evaluation in April of 2014, Father disclosed to
Dr. O’Hara that he smoked cannabis on a monthly basis. In November of
2014, the trial court ordered Father to continue random drug screens. He
was to begin a treatment program with SHORES on December 4, 2014, but
missed the appointment. (See N.T. Hearing, 6/30/15, at 148). He
underwent a drug and alcohol evaluation with SHORES on January 16, 2015.
CYF caseworker, Megan McAfee, however, testified at the June 30, 2015
termination hearing that Father had been unsuccessfully discharged from the
SHORES program and that they had recommended a higher level of
treatment for him. (See id. at 148-49). Dr. O’Hara testified that, at the
time of his last evaluation with Father, in March 2015, nearly all of Father’s
drug screens had been positive for marijuana. (See N.T. Hearing, 8/04/15,
at 35-36). Ms. McAfee testified regarding Father’s marijuana use:
He had stated that he had [smoked marijuana] since he
was young, that it was something his parents introduced to him,
and that it was something that was part of his culture.
So he didn’t feel that the [c]ourt could order him to
partake in drug and alcohol treatment, as it was part of his
culture, and I explained to him that it was illegal in the State of
Pennsylvania, so he would need to comply.
(N.T. Hearing, 6/30/15, at 149).
In addition to the issues of his domestic violence and drug abuse,
Father is alleged to have sexually abused Child’s older sister, E.T. The trial
court summarized the allegations of child sexual abuse against Father in its
opinion of December 9, 2015:
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By the time [the court] held [Child’s] adjudicatory hearing,
it was made known that E.T.[,] the daughter born from Mother’s
other relationship, the older sister of [Child], had alleged that
Father had sexually assaulted her. Father had been a paramour
to Mother while she had the four older siblings in her care,
before the birth of [Child]. In 2011, a then four-year-old E.T.
had alleged that she had been sexually assaulted by Father.
(See CYF Exhibit 3, Dr. O’Hara Psychological Evaluation Report,
4/08/14, at 3). E.T. was forensically evaluated to address the
allegations after she stated that Father . . . “stuck his stick in my
cat.” (Id.). In June of 2013, E.T., then age six, made an
additional disclosure in which she stated that Father . . . “beat
me with a stick first and then he put it in me.” (Id. at 4). E.T.
further explained that Father . . . put the stick in “my cooch,”
referring to her vagina. (Id. at 4). In describing the event, E.T.
said, “when I was sleeping, [Father] came upstairs and he was
and . . . and I was awake . . . and after I woke up he was gone
and I saw my pants off.’” (Id.). E.T. also stated that the event
occurred in her bed in her mother’s house and that Father . . .
“touched me with a stick . . . the stick was pokey and it was . . .
this long and he was pushing it in and it hurted. I feeled it and I
woke up . . . pushed it so hard.” (Id. at 5). E.T. reported that
the “stick” was located “in between my legs.” (Id.).
Following E.T’s June 2013 disclosure, the police
investigated the allegations, and E.T. was forensically
interviewed by the Child Advocacy Center at the Children’s
Hospital. Although Father . . . was never arrested, [the] [c]ourt
found that Officer Anthony Cortazzo of the Baldwin Police, who
was present during E.T.’s forensic interview, credibly testified at
a previous permanency review hearing that E.T. was credible
and consistent during her previous forensics, and that [Father]
sexually assaulted E.T.
These disclosures also occurred while CYF had an open
case. E.T. made the same disclosure to her Families United
Caseworker, who, in response to E.T.’s disclosure, contacted
ChildLine. At least as of February 2015, E.T. was currently
engaged in counseling for the sexual abuse through Nolton
Diagnostics. Dr. O’Hara diagnosed E.T. with Post-Traumatic
Stress Disorder resulting from the sexual abuse. (Id. at 12). . .
.
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(Trial Court Opinion, 12/09/15, at 2-3) (footnotes and some record citations
omitted) (record citation formatting provided).
CYF filed its petitions to terminate Father’s parental rights on January
22, 2015. The trial court held hearings on those petitions on June 30, 2015,
August 4, 2015, August 18, 2015, and October 7, 2015. The trial court
entered its orders terminating Father’s parental rights, pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b), on October 8, 2015. Father
filed his notice of appeal and statement of errors complained of on appeal on
October 22, 2015.
Father raises the following questions on appeal:
1. Whether the [t]rial [c]ourt abused its discretion and/or err
[sic] as a matter of law by terminating Father’s parental rights
under Section 2511 (a)(1), (2), (5) and (8) where the court
order issued February 13, 2015 and the OCYF court addendum
declared that Father was in full compliance with his family
service plan goals and had made full progress on his family
service plan goals[?]
2. Whether the [t]rial [c]ourt abused its discretion and/or err
[sic] as a matter of law by determining that termination of
Father’s parental rights would meet the needs and welfare of
[Child] under Section 2511 (b), in spite of witness testimony to
the contrary showing a strong bond between [F]ather and
[Child?]
3. Whether the [t]rial [c]ourt abused its discretion and
committed an error of law by admitting evidence regarding
Father . . . allegedly abusing E.[T.] when the allegations were
refuted by several unfounded ChildLine investigations and where
no criminal charges were filed after a thorough police
investigation of the matter[?]
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(Father’s Brief, at 7) (emphases omitted).2
Our standard of review is as follows:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we have stated:
Where the hearing court’s findings are supported by competent
evidence of record, we must affirm the hearing court even
though the record could support an opposite result.
We are bound by the findings of the trial court
which have adequate support in the record so long
as the findings do not evidence capricious disregard
for competent and credible evidence. 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.
Though we are not bound by the trial court’s
inferences and deductions, we may reject its
conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s
sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
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2
In his concise statement of errors complained of on appeal, Father did not,
as he does in his questions presented, complain of the fact that the trial
court terminated his parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1),
and he has, therefore, waived that issue for our review. See Pa.R.A.P.
1925(b)(4)(vii); Yates v. Yates, 963 A.2d 535, 542 (Pa. Super. 2008).
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The trial court terminated Father’s parental rights pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection of Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004).
Requests to have a natural parent’s parental rights terminated are
governed by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 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:
* * *
(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).
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It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence that 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 T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citation omitted). Further:
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable firmness
in resisting obstacles placed in the path of maintaining the
parent-child relationship. Parental rights are not preserved by
waiting for a more suitable or convenient time to perform one’s
parental responsibilities while others provide the child with his or
her physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation
omitted).
The Adoption Act does not make specific reference to an evaluation of
the bond between parent and child but our case law requires the evaluation
of any such bond. See In re E.M., 620 A.2d 481, 485 (Pa. 1993).
However, this Court has held that the trial court is not required by statute or
precedent to order a formal bonding evaluation performed by an expert.
See In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008).
We begin our analysis by noting that Father has waived his claim that
the trial court erred or abused its discretion when it terminated his paternal
rights pursuant to section (a)(2). In support of his claim that the trial court
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erred when it terminated his parental right pursuant to section (a)(2), Father
states that he
has never been incapacitated, abused, neglected nor refused to
parent [Child]. To the contrary, once Father was notified of
[Child’s] existence and made contact with [CYF], he made clear
his desire to parent [Child]. There have been no allegations
made that he ever abused, neglected, or refused to parent
[Child]. None.
(Father’s Brief, at 17). This issue also is waived.
Pursuant to Pennsylvania Rule of Appellate Procedure 2119(a), the
argument section of an appellate brief must contain “such discussion and
citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). “[A]
failure to argue and to cite any authority supporting an argument constitutes
a waiver of issues on appeal.” Chapman-Rolle v. Rolle, 893 A.2d 770, 774
(Pa. Super. 2006) (citation omitted); see also Pa.R.A.P. 2119(a), 2101
(“[I]f [] defects [] in the brief . . . are substantial, the appeal or other matter
may be quashed or dismissed.”).
Here, Father’s argument contains no citation to any legal authority and
he makes no effort whatsoever to link the facts of his case to the law. In
sum, Father makes no attempt to develop a coherent legal argument to
support his conclusion that the trial court erred in terminating his parental
rights and he has, therefore, waived that argument. See Chapman-Rolle,
supra at 774; Pa.R.A.P. 2101, 2119(a). However, in spite of this waiver, we
will analyze the record as it relates to Section (a)(2). The trial court found
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four factors that constituted Father’s continued incapacity, abuse, neglect or
refusal to parent Child.
The first factor was drug use. In its opinion, the trial court stated,
“But this [c]ourt cannot discount Father’s choice to continue to use
marijuana, despite this [c]ourt’s order, despite it being a violation of his
probation and despite the ramifications his usage would have on his ability
to parent.” (Trial Ct. Op., at 8). The trial court found that Father
uses marijuana when he feels weak and was defensive about
being “forced” to discontinue his usage. Indeed, this [c]ourt is
already alarmed by Father’s inability to take responsibility for his
crimes or transgressions. That Father repeatedly chooses to use
drugs forces this [c]ourt to question whether he can
appropriately prioritize the needs of a very small child. Father
continually refused to remedy this condition.
(Id. at 8-9) (record citation omitted).
The second area of concern for the trial court was Father’s history of
domestic violence. Father pled guilty to aggravated assault with a deadly
weapon and recklessly endangering another person, charges that arose from
an incident with Mother. As a result of this incident, the trial court issued a
protection from abuse order against Father. As the trial court found,
however, Father violated that order:
Despite having a Protection From Abuse [(PFA)] order against
him, it was evident that Father maintained contact with Mother.
(See N.T. 6/30/15, at 116-18). The CYF caseworker happened
to drive by Father walking with Mother in the North Side. Given
Mother’s vulnerability resulting from her significant and obvious
mental health issues, Father’s continual pursuit of Mother not
only violated the PFA but also approaches a line somewhere near
predatory. But again, it is clear that Father outwardly refuses to
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take responsibility for his actions─actions that prevent him from
parenting [Child]. Father continually refused to remedy the
domestic violence condition.
(Trial Ct. Op., at 9) (record citation formatting provided).
The third issue of concern for the trial court was Father’s mental
health. Father refused to seek treatment for what Dr. O’Hara termed “a
possible major mental illness.” (N.T. Hearing, 8/04/15, at 79). Dr. O’Hara
testified that it was difficult to get information from Father. (See id.) In his
report, Dr. O’Hara relates that Father told him that he had been diagnosed in
2012 with either substance-induced psychosis or psychotic disorder. (See
Dr. O’Hara Psychological Evaluation Report, 3/23/15, at 25). The trial court
found, “It is clear that Father refuses or is unable to remedy this condition.”
(Trial Ct. Op., at 10).
The fourth issue of concern for the trial court was the issue of Father’s
sexual assault of E.T. Relying on In re C.B., 861 A.2d 287 (Pa. Super.
2004), appeal denied, 871 A.2d 187 (Pa. 2005), the trial court noted,
“visitation will not be denied or reduced unless it poses a grave threat. The
grave threat standard is satisfied when the evidence clearly shows that a
parent is unfit to associate with his or her children.” (Id. (citing In re C.B.,
supra at 293)) (internal quotation marks omitted). The trial court accepted
as true the allegations that Father sexually assaulted Child’s older sibling,
E.T. We quote the trial court’s conclusion that Father poses a grave threat
to Child, with approval:
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This [c]ourt found clear and convincing evidence that a
grave threat exists to [Child] based on E.T’s repeated and
consistent allegations against Father [], his history of domestic
violence, and his failure to engage in therapy to address E.T.’s
allegations or to address his drug and alcohol issues. See In re
C.B., [supra at 293)] (holding that father posed a grave threat
to his minor son, despite the fact that father was not convicted
of the alleged sexual abuse of his de facto stepdaughter). A
review of the findings this [c]ourt has made since this case’s
inception demonstrates the overwhelming evidence that Father
[] poses a grave threat to [Child].
(Id. at 11).
We conclude that the trial court did not err or abuse its discretion
when it determined that Father poses a grave threat to Child. Our review of
the record reveals that CYF presented sufficient, credible evidence to support
the trial court’s determination to terminate Father’s parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(2). Therefore, even if not waived, Father’s first
issue would not merit relief.
In his second claim, Father argues that the trial court erred and
abused its discretion when it terminated his parental rights pursuant to
section (b). In support of that claim, Father urges us to revisit the evidence
presented and reach a different conclusion. (See Father’s Brief, at 22-25).
Father, however, does not articulate how the trial court may have erred or
abused its discretion and he cites no case law to support his claim.
Therefore, Father has waived this issue. See Champman-Rolle, supra at
774; Pa.R.A.P. 2101, 2119(a). Moreover, our examination of the record
reveals sufficient credible evidence to support the trial court’s determination.
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Dr. O’Hara stated in his report that Child is bonded to his foster
parents and his four siblings and that it would be, “extremely psychologically
detrimental” to Child if he were to be removed from them. (Dr. O’Hara
Psychological Evaluation Report, 3/23/15, at 25). He conceded that Father
exhibits some positive parenting skills and has a positive relationship with
Child, but concluded, “the benefit of permanency for [Child] and the trust
and security and stability that he would experience with [his foster parents]
would outweigh the risk of detriment in losing his relationship with [Father].”
(N.T. Hearing, 8/04/15, at 70).
The doctor also found that Child and his siblings have thrived in the
care of their foster parents who have strong parenting skills. He observed
that the foster parents are patient and use positive redirection and praise
with Child and his siblings. Dr. O’Hara observed a secure attachment among
Child, his siblings and the foster parents, and noted that the foster home
provided a secure placement that, “greatly contrasts the instability,
exposure to violence and chaos that they endured while residing with
[M]other, [Father,] and [Child’s siblings’ father]. (Dr. O’Hara Psychological
Evaluation Report, 3/23/15, at 25).
Also, Dr. O’Hara did not see the same level of attachment with Father
as he saw with the foster parents. He noted that, despite repeated
redirection on his part, Father continually addressed the doctor with
statements and questions during the interactional portion of the evaluation,
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rather than staying focused on Child. This occurred during the last two
evaluations in September 2014 and March 2015. Dr. O’Hara concluded, “So
I didn’t have any evidence that this relationship is─that terminating this
relationship would significantly detrimental to the children.” (N.T. Hearing,
8/04/15, at 56).
Our review of the record in this matter reveals that it supports the trial
court’s determination to terminate Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(b). Therefore, Father’s second claim would not merit
relief.
Finally, in his third issue, Father complains that the trial court
committed an error of law by admitting evidence regarding his alleged abuse
of E.T. (See Father’s Brief, at 26-27). We disagree and quote the trial
court’s analysis of this issue, with approval:
The [c]ourt notes that Father raises the hearsay matter on
appeal, but did not raise it at trial. Father’s counsel did not
object during the admission of Dr. O’Hara’s forensic reports, nor
did she object during the admission of the certified record of the
dependency orders. (See N.T. Hearing, 10/07/15, at 37-38).
Counsel did not object during the CYF caseworker’s testimony
regarding E.T.’s disclosures of abuse. (See N.T. Hearing,
6/30/15, at 45-46, 49-53). And counsel was silent during Dr.
O’Hara’s testimony as well. (See N.T. Hearing, 8/04/15, at 24-
27). Even though [E.T.] did not testify during the TPR hearing,
there was ample evidence to establish sexual assault. Because
Father’s counsel did not object to the admissibility of the
testimony and other evidence, Father’s true contention is
whether this [c]ourt improperly weighed the evidence.
Father argues that because he was not charged with the
crime and because Childline investigations were categorized as
“unfounded,” then it would be erroneous of this [c]ourt to
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determine that he committed the act. On the contrary, E.T.
made specific, consistent, and repeated disclosures. The [c]ourt
also heard evidence that the reason the police and Childline
investigations ceased was because Mother refused to cooperate.
Dr. O’Hara testified that he was “amazed” no charges had been
filed against Father. (Id. at 27). In terms of admissibility, this
[c]ourt opines Father did not make proper objections at trial. In
terms of weight, this [c]ourt opines that its determination that
Father committed sexual abuse toward E.T. was properly based
on the evidence presented.
(Trial Ct. Op., at 12-13) (record citation formatting provided).
With our standard of review in mind, see In re L.M., supra at 511,
we have thoroughly reviewed the records, briefs, and the applicable law, and
determined that the evidence presented is sufficient to support the trial
court’s order terminating Father’s parental rights to Child.
Accordingly, we affirm the trial court’s order, entered October 8, 2015,
terminating Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2)
and (b).
Order affirmed.
Judge Panella joins the Memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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