In Re: Adoption of: K.P., a Minor ( 2017 )

J-S01024-17 & J-S01025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: K.P., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.T.B., JR.,
No. 1420 MDA 2016
Appeal from the Decree entered July 27, 2016,
in the Court of Common Pleas of Franklin County,
Orphans' Court at No(s): 32 ADOPT 2016.
IN RE: ADOPTION OF: R.B., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.T.B., JR., FATHER
No. 1421 MDA 2016
Appeal from the Decree entered July 27, 2016,
in the Court of Common Pleas of Franklin County,
Orphans' Court at No(s): 31 ADOPT 2016.
IN RE: ADOPTION OF: B.B., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.T.B., JR.,
No. 1422 MDA 2016
J-S01024-17 & J-S01025-17
Appeal from the Decree entered July 27, 2016,
in the Court of Common Pleas of Franklin County,
Orphans' Court at No(s): 30 ADOPT 2016.
IN THE INTEREST OF: K.P., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.T.B., JR.,
No. 1423 MDA 2016
Appeal from the Order entered July 27, 2016,
in the Court of Common Pleas of Franklin County,
Juvenile Division, at No(s): CP-28-DP-0000054-2015.
IN THE INTEREST OF: R.B., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.T.B., JR., FATHER
No. 1424 MDA 2016
Appeal from the Order entered July 27, 2016,
in the Court of Common Pleas of Franklin County,
Juvenile Division, at No(s): CP-28-DP-0000065-2014.
IN THE INTEREST OF: B.B., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: W.T.B., JR.,
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No. 1425 MDA 2016
Appeal from the Order entered July 27, 2016,
in the Court of Common Pleas of Franklin County,
Juvenile Division, at No(s): CP-28-DP-0000064-2014.
BEFORE: GANTMAN, P.J., DUBOW and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED MARCH 02, 2017
In these consolidated appeals, W.T.B., Jr., (“Father”) challenges the
Order changing the permanency goal from reunification to adoption, and the
Decree involuntarily terminating his parental rights to his three daughters,
K.P. (born February 2015), R.B. (born February 2013), and B.B. (born July
2011), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a) and (b). We
affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Father and C.P. (“Mother”)1 are the natural parents of the three
children at issue. Mother has been in and out of incarceration since August
2014. Their children, B.B. and R.B., had resided with extended family or
family friends until October 1, 2014, when they were placed in the
temporary legal and physical custody of the Franklin County Child and Youth
Service (“the Agency”) after being brought to the Agency by their maternal
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1
The Orphans’ Court also terminated Mother’s parental rights. Only Father’s
appeal is now before this Court.
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grandmother who was unable to care for them. Attempts to contact Father
were unsuccessful.
B.B. and R.B. were adjudicated dependent on December 9, 2014, and
have remained in the Agency’s custody. At the time of their placement,
Mother was pregnant with K.P. Upon her birth, K.P. was admitted to a local
hospital to receive treatment to assist her in withdrawing from methadone.
K.P. was ultimately discharged from the hospital to the care of her parents.
The Agency became aware, however, that neither Mother nor Father was
caring for K.P.; rather, extended family members were caring for her. On
June 24, 2015, the Agency conducted a home visit with K.P.’s then
caretaker, Mother’s sister. Mother’s sister informed the Agency that she
could no longer care for K.P. Following unsuccessful attempts to contact
Mother or Father, an emergency Order was entered that same day, placing
K.P. in the Agency’s care. On August 21, 2015, K.P. was adjudicated
dependent, and has remained in the Agency’s custody.
As a result of the adjudication hearings for all three children, as well as
subsequent permanency hearings, certain goals were established for Father.
He was to: (1) participate in a Parental Fitness Assessment and follow the
recommendations; (2) participate in a drug and alcohol evaluation and any
recommended treatment; (3) participate in individual therapy including
anger management services; (4) obtain and maintain stable housing; (5)
obtain and maintain financial stability; (6) maintain consistent visitation; (7)
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refrain from further criminal activity; and (8) to comply with the terms of his
probation and parole.2
On May 25, 2016, the Agency filed a petition for involuntary
termination of parental rights (“TPR Petition”), as to both Mother and Father,
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8). At the same time, in
the dependency action, the Agency requested a change in the permanency
goal from reunification to adoption. The Orphans’ Court held an evidentiary
hearing on July 26, 2016. The Agency presented the testimony of a
counselor for B.B. and R.B, and one of its caseworkers involved with all
three children. In addition, the Agency moved for admission of multiple
exhibits into evidence. Both Mother and Father presented their own
testimony.
At the close of this hearing, the Orphans’ Court took the matter under
advisement. By Order and Decree entered July 27, 2016, the court changed
goal for all three children to adoption, and terminated Mother’s and Father’s
parental rights pursuant to Sections 2511(a)(2), (5), (8), and 2511(b).
ISSUES ON APPEAL
Father raises the following issues on appeal:
The [Orphans’] court erred in terminating parental
rights and changing the goal to adoption as Father has
____________________________________________
2
On June 15, 2012, both Mother and Father pled guilty to recklessly
endangering another person following an incident that occurred while B.B.
was in their care.
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substantially remedied the condition that led to placement
of the children in that he had obtained appropriate housing
for the children.
Father’s Brief at 4.
Because evidence regarding the permanency plan goal change and
TPR petitions substantially overlap, and the legal standards to be applied are
the same, we will first address Father’s termination issue. See In the
Interest of R.J.T., 9 A.3d 1179, 1191 n.14 (Pa. 2010) (noting that courts
should combine hearings on these two petitions since the evidence
substantially overlaps and allows for faster permanency for the child).
LEGAL ANALYSIS
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.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). “If the factual findings are supported,
appellate courts review to determine if the trial court made an error of law
or abused its discretion.” Id. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result. Id. at 827.
We give great 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). The Orphans’ Court is free to believe all, part, or
none of the evidence presented and is likewise free to make all credibility
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determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination
of parental rights, this Court need only agree with any one subsection under
Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony 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.” Id. (citations omitted).
Termination Pursuant to 2511(a)(2)
Under Section 2511(a)(2), “the petitioner for involuntary termination
must prove (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) [that] such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) [that] the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied.” In re A.S., 11 A.3d 472, 479 (Pa. Super. 2010) (citation
omitted).
This Court has defined “parental duties” in general as the obligation to
affirmatively and consistently provide safety, security and stability for the
child:
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There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this Court has held that the parental
obligation is a positive duty which requires affirmative
performance. This affirmative duty … requires continuing
interest in the child and a genuine effort to maintain
communication and association with the child. Because a
child needs more than a benefactor, parental duty requires
that a parent exert himself to take and maintain a place of
importance in the child’s life.
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (citations omitted).
“Where the parent does not exercise reasonable firmness in declining to
yield to obstacles, his parental rights may be forfeited.” A.S., 11 A.3d at
481 (citation omitted).
And most importantly, “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 her physical and
emotional needs.” In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004)
(citations omitted).
In the instant case, the Orphans’ Court properly concluded that the
Agency met all three elements of Section 2511(a)(2). It reasoned:
After consideration of the record . . . it is clear Father’s
neglect meets the “repeated and continued” standard of
Section 2511(a)(2). At the time of filing, over one (1)
year since K.P.’s placement and nearly (2) years since B.B.
and R.B.’s placement have passed. However, at no time
during those placements has Father maintained consistent
visitation with the girls, obtained independent housing,
completed intensive in-home parenting education, or
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completed drug and alcohol treatment. In essence, Father
has consistently maintained his inconsistency in parenting
for the duration of the girls’ placements. Thus, Father has
“repeated[ly] and continu[ously]” neglected his children.
Having established the first element, the Agency easily
met the second—that the neglect left “the child . . .
without essential care, control or subsistence.” Father’s
neglect has left the children without a stable home.
Providing stable and adequate housing is perhaps one of
the most essential requirements of caring for one’s
children. Here, Father has been unable to provide even
this most basic need for his children. Father’s failure to
maintain consistent visitation also reflects on his ability to
provide his children with emotional support and stability,
and has left the girls without any real sense of emotional
care. Furthermore, Father’s failure to complete, and
repeated discharge from, intensive in-home parenting
classes indicate to this Court that Father is not prepared to
meet the level of parental care expected of a custodial
parent.
Finally, Father’s failure to [comply] or significant delay
in complying with the majority of the Court’s orders,
despite services made available to him by the Agency,
further demonstrate that the likelihood of remedying the
underlying conditions “within a reasonable period of time”
is minimal at best. Thus, the Agency has met the
requirement of unlikely remediation under Section
2511(a)(2).
Orphan’s Court Opinion, 9/28/16, at 19-20 (citations omitted).
Father argues that the Orphans’ Court erred in terminating his
parental rights and changing the goal to adoption with regard to his three
children because he “has complied with all of [the] directives in the
adjudication order.” Father’s Brief at 7. As to the goal of stable housing,
Father asserts that “[i]t has [taken] him longer to maintain stable housing
for the children as he was unable to realize his goal of obtaining his own
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home. However, he has obtained stable housing with the paternal
grandfather.” Id. at 9.
The Orphans’ Court found no merit to this contention, and explained
its rationale as follows:
[Father’s] argument fails to persuade this Court for a
number of reasons. First, this Court finds that Father has
failed to adequately demonstrate he has remedied the lack
of appropriate housing for the girls. The proposed
housing—moving the girls into his father’s residence with
him—is problematic. Not only did Father originally report
that the housing was inadequate due to space concerns,
but also at a later date when he reported his home as a
resource, he still lacked the necessary supplies and a
feasible babysitting plan.
Orphans Court Opinion, 9/28/16, at 20 (citations omitted).
The Orphans’ Court then cited the following passage from A.S.,
supra:
Unlike subsection (a)(1), subsection (a)(2) does not
emphasize a parent’s refusal or failure to perform parental
duties, but instead emphasizes the child’s present and
future need for essential parental care, control or
subsistence necessary for his physical or mental well-
being. Therefore, the language in subsection (a)(2) should
not be read to compel courts to ignore a child’s need for a
stable home and strong, continuous parental ties, which
the policy of restraint in state intervention is intended to
protect. This is particularly so where disruption of the
family has already occurred and there is not reasonable
prospect for reuniting it. . . . Further, grounds for
termination under subsection (a)(2) are not limited to
affirmative misconduct; those grounds may include acts of
incapacity to perform parental duties.
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A.S., 11 A.3d at 481 (citation omitted). The court concluded that
“[c]onsideration of this case’s facts in light of the above legal tenets compels
this Court to terminate Father’s parental rights.” Orphan’s Court Opinion,
9/28/16, at 21. In doing so, the Orphans’ Court concluded that Father has
“no concrete plan for fulfilling his children’s need for a stable home.” Id.
(citing A.S., supra).
Our review of the record supports the Orphans’ Court’s conclusion
regarding Father’s steps toward obtaining stable housing for the children. It
was for the Orphans’ Court, as a matter of credibility, to determine the
weight to be given Father’s attempts at remediation. In re M.G., supra.Moreover, our review of the record supports the Orphans’ Court’s conclusion
that, even if Father had obtained appropriate housing, his failure to
substantially fulfill his other goals, would still mandate the termination of his
parental rights. The Orphans’ Court explained:
Father’s attempt at rectifying the underlying conditions
which initiated the placements exists in the form of mere
promises, and is bereft of any real substantial action
indicative of an ability or commitment to the care and
parental responsibility of his three small children.
Assuming arguendo that this Court found Father has
indeed obtained appropriate housing for the girls, that
finding alone would not be enough to preclude termination
of Father’s parental rights. This Court is cognizant of the
fact that housing alone cannot constitute grounds for
termination. However, the conditions requiring Father’s
remedial efforts go beyond housing concerns. In addition
to the Court’s order to obtain and maintain stable housing,
Father was also ordered to participate in a Parental Fitness
Assessment and follow the recommendations, participate
in a drug and alcohol evaluation and any recommended
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treatment, participate in individual therapy including anger
management services, obtain and maintain financial
stability, maintain consistent visitation, refrain from further
criminal activity, and comply with the terms of his
probation/parole[.] The Parental Fitness Assessment
resulted in the recommendation that Father strengthen his
parenting skills by maintaining consistent visitation, and
participate in regular an intensive in-home parenting
education. Father has not only failed to obtain and
maintain stable housing; he has failed to complete his drug
and alcohol treatment, failed to maintain consistent
visitation, and failed to complete intensive in-home
parenting education. Thus, even if this Court were to find
that Father had obtained adequate housing for the girls as
Father alleges, his remaining failures to comply with this
Court’s orders are enough to support the termination of his
parental rights.
Father’s failure to [comply] or significant delay in
complying with the majority of the Court’s orders indicates
his unwillingness to remedy the conditions which led to his
daughters’ placements—meeting the final requirement of
Section 2511(a)(2). Having provided evidence that Father
has “repeated[ly] and continu[ously]” neglected his three
children, which left them “without essential parental care,
control, or subsistence”, and that his neglect is unlikely to
be remedied, the Agency has satisfied all three requisite
elements of Section 2511(a)(2).
Orphans’ Court Opinion, 9/2/16, at 21-22 (citations omitted).
We agree. Our review confirms that, while superficially, Father has
complied with his court-ordered goals, he has not followed through to such a
degree that he could adequately parent the three children within a
reasonable time. Therefore, for all of the reasons stated above, the Agency
has proven by clear and convincing evidence that termination of parental
rights to B.B., R.B., and K.P. is justified pursuant to Section 2511(a)(2) of
the Adoption Act.
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Accordingly, the court did not abuse its discretion in terminating
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), and we need
not consider the other bases for termination under this section. See
B.L.W., supra.Termination Pursuant to Section 2511(b)
Father presents no argument with regard to Section 2511(b).
Nevertheless, we also agree with the Orphans’ Court’s determination that
the Agency met its burden under 23 Pa.C.S. § 2511(b), and that terminating
Father’s parental rights is in the best interest of the children.
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the effect that terminating the
parental bond will have on the child. Section 2511(b) “focuses on whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of the child.” In re: Adoption of J.M.,
991 A.2d 321, 324 (Pa. Super. 2010).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
the orphans’ court must also discern the nature and status of the parent-
child bond, with utmost attention to the effect on the child of permanently
severing that bond. Id.In cases where there is no evidence of a bond between a parent and a
child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d
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753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case. Id. at 763.
In the instant case, the Orphans’ Court determined that the evidence
presented at the TPR hearing established that termination of Father’s
parental rights was in the best interests of the children. The court found
that no real parent-child relationship existed, that the foster parents have
consistently provided for the children’s needs, and that the children have
more of a parental bond with the foster parents than with their biological
parents. Citing to the testimony presented at the hearing, the Orphans’
Court explained:
As indicated by the above facts, Father has been offered
predominately weekly visitation for the duration of his
girls’ placements. Despite this limited opportunity to see
his children, Father has missed or cancelled these visits on
a number of occasions. Thus typically, the girls spend just
a few hours out of the entire week with their natural
father. Initially, Father was given the opportunity for extra
visitation with girls at the foster family’s home to learn
their daily routines. However, Father’s tardiness and
behavior during these visits resulted in disruption of the
girls’ bedtime routines and ultimately resulted in
discontinuation of the visits.
Further, when visits do occur, Father tends to take on the
role of playmate rather than parent. The Court heard
testimony at the hearing from a [caseworker] from the
Agency who worked closely with this family for nearly two
years. The [caseworker] testified that she did not believe
that a parent-child relationship exists in this case, or at
least not one that the children recognize. She based this
opinion on interactions she observed between Father and
the girls, as well as the way the visits have been going.
Specifically, the children have not regularly seen either of
their natural parents, and don’t understand what kind of
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relationship they have with them. Perhaps most
significantly, the inconsistent visitation between Father and
the girls seems to be causing the girls anxiety. The girls
are naturally confused about what is going on, and at their
young ages do not know how to express their emotions.
Father has also been absent or unaware of the girls’ needs.
For example, at the time of B.B. and R.B.’s placement,
Father was not aware of the girls’ recent medical history,
and throughout their placement it has been the foster
parents, not Father, who takes the girls to the doctor. It is
the foster parents who have established the girls’ everyday
routines, who take them to school and to doctor
appointments, and who are reliably there for them day in
and day out.
All three girls deserve consistency and permanency, which
Father has hitherto failed to provide. This Court does not
question Father’s love for his children. However, love
alone is not enough to dissuade this Court from
terminating parental rights. Like all children, these three
girls require protection, attention, and care. For the
majority of these girls’ lives, these needs have been met
by their foster parents, rather than their natural parents.
In consideration of the “nature and status of the emotional
bond between [Father] and [the] child[ren]”, it seems that
the present relationships are tenuous at best. The
evidence presented at the hearing demonstrates that the
relationship the girls share with their foster parents
appears stronger than with their natural parents, and more
closely resembles that of a traditional parent-child
relationship. This Court is persuaded that the “love,
comfort, security, and stability the child[ren] might have
with” their foster parents outweighs any existing emotional
bond they have developed with [Father]. Their needs and
welfare dictate the termination of Father’s parental rights,
so that they may establish a more secure and stable
quality of life.
While this Court takes no pleasure in severing parent-child
relationships through the termination of parental rights, it
nevertheless must carry out its duty to decide in favor of
the children’s best interest. In the instant case, this Court
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finds that the best interest of the children requires a
termination of Father’s parental rights.
Orphans’ Court Opinion, 9/2/16, at 27-29 (citations and footnote omitted).
GOAL CHANGE
Finally, given the above, we conclude that the Orphans’ Court did not
err in changing the children’s permanency goal to adoption. See R.J.T., 9
A.3d at 1183-84 (noting that when considering a goal change motion the
court looks to the bests of the child rather than those of the child’s parents;
the Agency must establish that its requested goal change option is best
suited to the child’s safety, protection, and physical, mental, and emotional
welfare).
CONCLUSION
In sum, our review of the record supports the Orphans’ Court’s order
concluding that the Agency met its statutory burden regarding the
permanency plan goal change for children to adoption, and its burden of
proving by clear and convincing evidence that Father’s parental rights should
be terminated pursuant to 23 Pa.C.S. §§ 2511(a)(1) and 2511(b).
Accordingly, we affirm.
Order and Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2017
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