In Re: Adoption of S.B.K. ( 2015 )

J. S33001/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF S.B.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER, :
:
Appellant : No. 166 EDA 2015
Appeal from the Decree, December 10, 2014,
in the Court of Common Pleas of Montgomery County
Orphans’ Court Division at No. 2014-A0057
IN RE: ADOPTION OF B.J.L.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER, :
:
Appellant : No. 173 EDA 2015
Appeal from the Decree, December 10, 2014,
in the Court of Common Pleas of Montgomery County
Orphans’ Court Division at No. 2014-A0058
IN RE: ADOPTION OF K.F.L.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER, :
:
Appellant : No. 179 EDA 2015
Appeal from the Decree, December 10, 2014,
in the Court of Common Pleas of Montgomery County
Orphans’ Court Division at No. 2014-A0059
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IN RE: ADOPTION OF T.L.K., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER, :
:
Appellant : No. 182 EDA 2015
Appeal from the Decree, December 10, 2014,
in the Court of Common Pleas of Montgomery County
Orphans’ Court Division at No. 2014-A0060
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND LAZARUS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2015
T.K., Sr. (“Father”), appeals the decrees terminating his parental
rights to his four children pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b) of
the Adoption Act. After careful review, we affirm.
Father and A.W. (“Mother”)1 met in 2000 and over the course of
six years had four children: K.F.L.K. born in 2001; T.L.K., Jr. born in 2003;
B.J.L.K. born in 2005; and S.B.K. born in 2006 (“the Children”). Father and
Mother never married, and their relationship included several periods in
which they lived together and several periods in which they were separated.
From 2007 until 2011, Mother had primary custody of the Children except
for K.F.L.K., who resided with Father. During March or April of 2011, Father
took custody of all the Children. They remained with Father and his
1
Mother has filed separate appeals from the decrees terminating her
parental rights to the Children.
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girlfriend until the Montgomery County Office of Children and Youth’s
(“OCY”) involvement in March 2012. At that time, OCY began investigating
an allegation that Father sexually abused K.F.L.K.
During the investigation, Father agreed to two different safety plans,
first to have no unsupervised contact with his daughters, K.F.L.K. and
B.J.L.K., and subsequently, no contact with them. During this time, the girls
lived in Father’s home in the care of his girlfriend. On April 16, 2012, the
two girls were removed from the home after Father had contact with them in
violation of the safety plan. On May 4, 2012, the boys, T.L.K., Jr. and
S.B.K., were removed from Father’s home after Father sent notes in their
lunches to pass to the girls, after previously being instructed not to do so, in
violation of the safety plan.
Based on its investigation, OCY determined that the allegations made
by K.F.L.K. of sexual abuse by Father were credible and reported these
allegations as “indicated” to the state registry, ChildLine. Father did not
appeal this finding. Father was charged with sexual assault; however, all
criminal charges were subsequently dropped in September of 2013.
In order to facilitate reunification with the Children, OCY created a
family service plan (“FSP”) for Mother and Father. Father’s goals included:
obtain stable housing and provide proof of financial ability to care for the
Children; obtain drug and alcohol evaluation and follow all treatment
recommendations; obtain a psycho-sexual evaluation and follow all
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treatment recommendations; demonstrate an understanding of sexual abuse
and its effects on children; resolve his legal issues and cooperate with OCY;
follow the conditions of his bail; and if visits were reinstated, to demonstrate
appropriate parenting boundaries. (Notes of testimony, 10/1/14 at 54.)
On April 8, 2014, OCY filed petitions to terminate Father’s parental
rights to the Children. Hearings were held on October 1, 2014, and
November 12, 2014. OCY caseworker, Julia Solomon, testified that she was
assigned the case in June of 2012. (Id. at 41.) Ms. Solomon testified that
the court suspended Father’s visitation with the Children after they were
placed in foster care in May of 2012 due to Father’s repeated violations of
the safety plan and his refusal to follow orders not to have contact with the
Children. (Id. at 51.) Ms. Solomon testified that Father was not very
cooperative and was repeatedly confrontational with OCY. (Id. at 84.) She
testified the vast majority of her communication with Father was received
through his girlfriend. (Id.) She stated, “I had very infrequent contact with
father, and he did not ask me about the children when he would contact me.
(Id.)
Regarding Father’s FSP goals, Ms. Solomon testified that he refused to
comply with many of them, and that Father repeatedly stated that his
attorney had instructed him not to complete certain things that OCY had
asked him to do. (Id. at 84-85.) When asked about Father’s housing
status, Ms. Solomon replied that Father and his girlfriend maintained the
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home they had when the Children were removed, and the girlfriend provided
OCY with a copy of the lease. (Id. at 85-86.)
Regarding income and employment, Father’s girlfriend provided some
of the proof. (Id. at 86.) Father worked for a fencing company and had
another job in general construction. (Id.)
From the outset of this case, Father was directed to obtain a drug and
alcohol evaluation. He did not comply until November of 2013. The
recommendations were for him to attend outpatient treatment, to attend
groups, and also to attend individual drug and alcohol counseling on a
weekly basis. (Id. at 94.) According to Ms. Solomon, Father only attended
a few sessions. (Id.) Ms. Solomon testified that Father denied that he had
any substance abuse problems. (Id. at 95.) Father acknowledged that he
drank, but that was not a crime, and it was not an issue. (Id.)
Ms. Solomon testified that although Father’s visits were suspended
during the time she was assigned to the case, he did not assert himself to
stay informed about the lives of his children or be involved as much as he
could. (Id. at 96.)
Stephanie Setty, an OCY caseworker, testified that she was assigned
the case in January of 2014. (Id. at 163.) Ms. Setty testified concerning
Father’s failure to provide urine screens within 24 hours of a request, despite
being told that a failure to respond would be considered a positive test.
According to her log, there were twelve 24-hour notices that Father failed to
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respond to. (Id. at 177.) Father did respond twice; one result came back
negative but “diluted” and another came back negative. (Id. at 177.)
Father testified he was advised by his criminal defense attorney not to
participate in a psycho-sexual evaluation which had been requested by OCY
while the criminal charges were pending. After the criminal charges were
dropped in September of 2013, Father did take part in a psycho-sexual
evaluation. While the evaluator, Barry Zakireh, Ph.D., found insufficient
evidence that Father’s behaviors “rise to the level of any specific sexual
disorder or reflect severe, enduring, sexual, or highly frequent
manifestations of sexual preoccupation, sexual obsessions or compulsive
sexual behaviors,” he did note other issues that were consistent with the
observations and testimony of others. Those issues included “a history of
aggression in a domestic context involving his ex-paramour,” “evidence of
abuse of alcohol and narcotic analgesics, which [Father] seems to downplay
or underreport,” and a “tendency to place himself in a favorable light and
deny difficulties.” (See report of Dr. Barry Zakireh.)
Regarding the sexual assault allegations made by K.F.L.K. that were
later dropped, the trial court made it clear that it “[could] not draw any
conclusion regarding why the criminal charges were dropped. Nor was
sufficient evidence presented to this Court to conclude whether the abuse
occurred or not. Therefore, this Court will not make any determination that
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depends upon whether or not the sexual abuse occurred.” (Trial court
opinion, 12/10/14 at 10.)
On December 10, 2014, the trial court granted the petitions to
terminate Father’s parental rights and entered final decrees. Father filed
this timely appeal.
Father raises two issues for our consideration:
1. Whether the trial court committed an error of
law and/or abuse of discretion when it held
that OCY had proven by “clear and convincing
evidence” that Father’s parental rights should
be terminated pursuant to 23 Pa.C.S.
§ 2511(a)(2)?
2. Whether the trial court committed an error of
law and/or abuse of discretion in concluding
that changing the goal from reunification to
adoption is best suited to the safety, protection
and physical, mental, and moral welfare of the
children, when reunification remains the most
appropriate and feasible goal?
Father’s brief at 5.
We review the termination of parental rights in accordance with the
following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s
determination of a petition for termination of
parental rights. As in dependency cases, our
standard of review requires an appellate court to
accept the findings of fact and credibility
determinations of the trial court if they are supported
by the record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa.
2010). 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.;
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In re: R.I.S., 36 A.3d [567,] 572 [(Pa. 2011)
(plurality opinion)]. As has been often stated, an
abuse of discretion does not result merely because
the reviewing court might have reached a different
conclusion. Id. [] Instead, a decision may be
reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.. . . . [E]ven where the facts could support an
opposite result, as is often the case in dependency
and termination cases, an appellate court must resist
the urge to second guess the trial court and impose
its own credibility determinations and judgment;
instead we must defer to the trial judge[] so long as
the factual findings are supported by the record and
the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re
Adoption of Atencio, 650 A.2d 1064, 1066 (Pa.
1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations
modified, some citations omitted). It is well settled that a party seeking
termination of a parent’s rights bears the burden of proving the grounds by
clear and convincing evidence, a standard that 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).
We believe the record contains sufficient evidence to support the
termination of Father’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2). In order to terminate parental rights pursuant to
Section 2511(a)(2), three elements must be met: (1) repeated and
continued incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse,
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neglect, or refusal caused the child to be without essential parental care,
control, or subsistence; 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) (citations omitted).
Our supreme court has explained our inquiry under Section 2511(a)(2)
as follows:
As stated above, § 2511(a)(2) provides statutory
grounds for termination of parental rights where it is
demonstrated by clear and convincing evidence that
“[t]he 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.” If and only if
grounds for termination are established under
subsection (a), does a court consider “the
developmental, physical and emotional needs and
welfare of the child” under § 2511(b).
This Court has addressed incapacity sufficient
for termination under § 2511(a)(2):
A decision to terminate parental rights,
never to be made lightly or without a
sense of compassion for the parent, can
seldom be more difficult than when
termination is based upon parental
incapacity. The legislature, however, in
enacting the 1970 Adoption Act,
concluded that a parent who is incapable
of performing parental duties is just as
parentally unfit as one who refuses to
perform the duties.
In re Adoption of S.P., 47 A.3d at 827 (citation omitted).
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Instantly, Father asserts that the criminal charges filed against him
impeded his ability to fully comply with OCY. He further contends that the
steps he has taken since his criminal case was withdrawn warranted further
deference from the court. (Father’s brief at 9.) That is the total of Father’s
argument to this court. We cannot grant Father relief on his claim.
As already stated, Father’s children were removed in April and May of
2012 and were placed in foster care. Father’s criminal case was withdrawn
in September of 2013. Father would have us ignore the 16 months between
May of 2012 and September of 2013 where he did very little to resolve the
issues of his parental incapacity. This court has stated that a parent is
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002). A parent’s vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. Id. at 340.
Father claims that his impending criminal charges impeded his ability
to fully comply with OCY. We find that assertion disingenuous. Initially,
Father was not permitted to see the Children because of his failure to follow
the safety plan. The filing of criminal charges also prevented Father from
having contact with the Children. However, there was no bar to Father
contacting OCY to inquire as to the Children’s well-being. The OCY
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caseworkers testified that it was Father’s girlfriend who spoke with them
about the Children, and not Father.
OCY Caseworker Solomon testified that at a meeting on December 18,
2013, Father was “very confrontational with all staff members present, and
he, you know, repeatedly denied he needed to do these things.” (Notes of
testimony, 10/1/14 at 92-93.) She was referring to giving a urine sample
which Father was ordered to provide. Additionally, while Father eventually
obtained drug and alcohol evaluations, he failed to attend counseling
sessions. He consistently maintained he never had a drinking problem.
(Notes of testimony, 11/12/13 at 193.)
The record belies Father’s assertion that he did not have a drinking
problem. Diana Rosenstein, Ph.D., an expert in psychology, psychoanalysis,
and bonding and attachment assessments among children, parents, and
other caregivers, testified that she performed assessments of the parenting
capacity of each of the birth parents, and an evaluation of each of the
Children to each birth parent. Dr. Rosenstein testified that all four children
had observed Father abuse alcohol and stated that Father became “mean,”
“violent,” or “physical” when he was drinking. All four children mentioned
his drinking and the frightening effect it had on them. (Id. at 44-46.) The
Children also mentioned incidents of violence between Father and his
girlfriend. (Id. at 45.) Dr. Rosenstein stated, “I found all four of the
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children to be credible in their description of the father’s alcohol abuse.”
(Id. at 47.)
In her testimony, Mother described acts of violence perpetrated
against her by Father when he was drunk, such as, punching her in the face,
and pinning her against a wall and choking her. (Id. at 148.) Mother
testified that the Children had witnessed one of the physical altercations
between herself and Father. (Id. at 150.)
Father’s girlfriend, while denying he had an alcohol abuse problem,
described an incident where Father was arrested because he was drinking
and depressed that he did not have a job at the time. (Id. at 241.)
Additionally, Father’s repeated failure to provide urine screens within
24 hours upon request, despite being advised that a failure to respond would
be considered a positive test, infers he feared a positive test result.
The above evidence clearly contradicts Father’s statements that he did
not have a drinking problem and raises concerns about Father’s reliability as
a witness. Along with Father’s alcohol abuse was a history of domestic
violence that clearly had an effect on the Children. The clear and convincing
evidence of record confirms the trial court’s determination that “Father’s
alcohol use and history of domestic violence, as well [as] his inability to
meet the emotional needs of the children, creates a parental incapacity that
prevents him from providing a safe and secure home for the children.” (Trial
court opinion, 12/10/14 at 17.) Accordingly, we conclude the record
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evidence supports the termination of Father’s parental rights under
Section 2511(a)(2).
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of Subsection (b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009
(Pa.Super. 2008) (en banc) (providing that, once a court determines that
the parent’s conduct warrants termination of his or her parental rights
pursuant to Section 2511(a), the court then conducts the second part of the
analysis, pursuant to Section 2511(b), to determine “the needs and welfare
of the child under the standard of best interests of the child.”). This court
has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but it is on the child pursuant to
Section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under
Section 2511(b), we consider whether termination of parental rights would
best serve the developmental, physical, and emotional needs and welfare of
the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005),
appeal denied, sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa.
2006). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child. The court
must also discern the nature and status of the parent-child bond, with
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utmost attention to the effect on the child of permanently severing that
bond.” Id. at 1287 (citation omitted).
We note Father has failed to present an argument regarding
Section 2511(b). Suffice it to say, the trial court has addressed this section,
and we conclude its analysis that the termination of Father’s parental rights
will best serve the needs and welfare of the Children is supported by the
record.
Father’s remaining issue concerns whether the trial court abused its
discretion when it approved a change of goal from reunification to adoption.
According to Father, the facts and circumstances of this case do not support
the goal change. On appeal, goal change decisions are subject to an abuse
of discretion standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super.
2006).
In order to conclude that the trial court abused its
discretion, we must determine that the court’s
judgment was “manifestly unreasonable,” that the
court did not apply the law, or that the court’s action
was “a result of partiality, prejudice, bias or ill will,”
as shown by the record. We are bound by the trial
court’s findings of fact that have support in the
record. Id. The trial court, not the appellate court,
is charged with the responsibilities of evaluating
credibility of the witnesses and resolving any
conflicts in the testimony. In carrying out these
responsibilities, the trial court is free to believe all,
part, or none of the evidence. When the trial court’s
findings are supported by competent evidence of
record, we will affirm “even if the record could also
support an opposite result.”
Id. at 822-823 (internal citations omitted).
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This matter is controlled by the Juvenile Act, 42 Pa.C.S.A. § 6301.
When considering a petition for goal change for a dependent child, the trial
court considers:
the continuing necessity for and appropriateness of
the placement; the extent of compliance with the
service plan developed for the child; the extent of
progress made towards alleviating the circumstances
which necessitated the original placement; the
appropriateness and feasibility of the current
placement goal for the child; and, a likely date by
which the goal for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa.Super. 2007), citing 42 Pa.C.S.A.
§ 6351(f).
Additionally, Section 6351(f.1) requires the trial court to make a
determination regarding the child’s placement goal:
(f.1) Additional determination.--Based upon the
determinations made under subsection (f) and
all relevant evidence presented at the hearing,
the court shall determine one of the following:
....
(2) If and when the child will be placed
for adoption, and the county
agency will file for termination of
parental rights in cases where
return to the child’s parent,
guardian or custodian is not best
suited to the safety, protection and
physical, mental and moral welfare
of the child.
42 Pa.C.S.A. § 6351(f.1).
On the issue of a placement goal change, this court has stated:
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When a child is adjudicated dependent, the
child’s proper placement turns on what is in the
child’s best interest, not on what the parent wants or
which goals the parent has achieved. See In re
Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691
(1990) (noting that “[o]nce a child is adjudicated
dependent . . . the issues of custody and
continuation of foster care are determined by the
child’s best interests”). Moreover, although
preserving the unity of the family is a purpose of
[the Juvenile Act], another purpose is to “provide for
the care, protection, safety, and wholesome mental
and physical development of children coming within
the provisions of this chapter.” 42 Pa.C.S.
§ 6301(b)(1.1). Indeed, “[t]he relationship of
parent and child is a status and not a property right,
and one in which the state has an interest to protect
the best interest of the child.” In re E.F.V., 315 Pa.
Super. 246, 461 A.2d 1263, 1267 (1983) (citation
omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa.Super. 2006).
Instantly, after careful review of the record, we discern no abuse of
discretion by the trial court. The crux of Father’s argument is that he had
essentially alleviated the circumstances, i.e., the allegations of sexual
abuse, which led to placement of the Children. (Father’s brief at 11.) Father
contends because the criminal charges were not pursued and Dr. Zakireh
concluded there was insufficient evidence to establish Father sexually
assaulted the victim in this case, that the trial court should have maintained
reunification as the goal and directed OCY to provide more services to
Father. (Id.)
As previously discussed, the trial court could not draw any conclusion
regarding why the criminal charges were dropped. As such, the court
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declined to consider whether the sexual abuse occurred when making its
determination. Clearly, Father ignores the other factors which prevented
him from retaining custody of the Children, such as: Father repeatedly
ignored OCY’s safety plans which caused his two sons to be removed from
his home; he failed to cooperate and was confrontational with OCY staff; he
failed to attend counseling sessions; he failed to admit he had a drinking
problem; he failed to produce urine screens at least 15 times when called
upon to do so; all four children told Dr. Rosenstein that Father’s drinking had
a frightening effect on them (see notes of testimony, 11/12/14 at 44-46).
Based on the entire record, we find the trial court correctly determined that
continued placement was best suited to the safety, protection, physical,
mental, and moral welfare of the Children. Accordingly, we affirm.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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