In the Interest of: S.L.K., a Minor ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: S.L.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: H.C., FATHER : No. 3245 EDA 2014
Appeal from the Decree October 9, 2014,
Court of Common Pleas, Philadelphia County,
Family Court at No(s): CP-51-AP-0000157-2013
and CP-51-DP-0001047-2011
BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MAY 06, 2015
H.C. (“Father”) appeals from the October 9, 2014 decree entered by
the Philadelphia County Court of Common Pleas terminating his parental
rights to S.L.K. (“Child”), a female born in August 2003, pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b),1 and changing Child’s
permanency goal to adoption. Upon review, we affirm.2
The Philadelphia Department of Human Services (“DHS”) became
involved with this family upon receiving a substantiated report that Father
1
In the decree, the trial court erroneously indicates that it terminated
Father’s parental rights pursuant to subsection (a)(6) instead of (a)(5). We
conclude that this was a scrivener’s error, as DHS raised subsection (a)(5),
not (a)(6), in its petition to involuntarily terminate Father’s parental rights to
Child, and there was no mention of subsection (a)(6) at the termination
hearing. See Petition for Involuntary Termination of Parental Rights,
3/15/13, ¶ 6. Furthermore, subsection (a)(6) only applies “[i]n the case of a
newborn child[.]” 23 Pa.C.S.A. § 2511(a)(6). Child was eleven years old at
the time of the termination hearing, rendering this subsection inapplicable.
Furthermore, Father does not raise this as error on appeal.
2
K.C.K. (“Mother”) passed away prior to the October 9, 2014 hearing.
*Retired Senior Judge assigned to the Superior Court.
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physically abused Child and that Child was afraid to return home. N.T.,
10/9/14, at 15. DHS filed a petition for dependency, and the juvenile court
adjudicated Child dependent on June 9, 2011. Id. On March 15, 2013 and
March 20, 2013, respectively, DHS filed petitions to involuntarily terminate
Father’s parental rights and change the permanency goal for Child to
adoption. After several continuances, the trial court held a hearing on both
petitions on October 9, 2014.
At the inception of the hearing, Father’s counsel requested to
withdraw, as Father wished to retain private counsel to represent him at the
hearing. Id. at 6-7. Both DHS and the child advocate objected to the
continuance. The trial court denied Father’s request for a continuance based
upon Father’s “opportunity on numerous occasions in the past to secure
private counsel or raise the issue in a timely manner so that the appropriate
administration of justice would not be delayed.” Id. at 12.
At the goal change/termination hearing, DHS presented the testimony
of Roya Paller (“Paller”), the worker from DHS assigned to Child’s case;
Jessica Redmond (“Redmond”), the supervisor at Jewish Family and Children
Services (the agency overseeing Child’s foster home placement) who
supervised visits between Child and Father; Zaikeya Snead (“Snead”), the
foster care case worker from Jewish Family and Children Services; and Kelly
Casper (“Casper”), Child’s therapist from Children’s Crisis Treatment Center
(“CCTC”). Paller testified that at the inception of the case, Father’s family
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service plan (“FSP”) goals included completing a parenting capacity
evaluation; completing anger management; completing domestic violence
therapy through Menergy; maintaining contact with DHS; and attending
supervised visits with Child. Id. at 15-16. Additionally, the juvenile court
ordered him to participate in mental health counseling and to participate in
Child’s trauma therapy3 through CCTC by attending psychoeducational
therapy.4 Id. at 25, 27. According to Paller, other than anger management,
which Father completed in 2011, Father had not provided any
documentation to indicate that he completed any of his FSP goals or
participated in the services ordered by the court. See id. at 16-19, 25-29.
Indeed, on April 5, 2012, the trial court suspended Father’s visitation with
3
Child was diagnosed with post-traumatic stress disorder (“PTSD”). N.T.,
10/9/14, at 83.
4
Throughout the notes of testimony, the court reporter erroneously
transcribed testimony concerning psychoeducational therapy as “cycle
educational therapy.” See, e.g., N.T., 10/9/14, at 26. A review of the
pertinent court orders reveals that Father was ordered to participate in
psychoeducational therapy. See, e.g., Trial Court Order, 4/5/12.
According to Casper, the purpose of having parents and caregivers engage in
psychoeducational therapy is
at first [] to help them understand about the impact
of trauma on children[,] with the goal eventually [of]
getting to the point of talking with them if they were
involved in the child’s trauma history about their
role, acknowledging their role, and how they can
support their child in the time of recovery.
N.T., 10/9/14, at 85.
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Child until he completed psychoeducational therapy and the Menergy
program. Id. at 26. Furthermore, despite Father’s completion of anger
management therapy, Paller and Casper testified that Father continued to be
“aggressive” during interactions with them and, on at least one occasion,
with Child. Id. at 23-24, 86. Paller, Redmond and Casper agreed that
terminating Father’s parental rights would best serve Child’s needs and
welfare. Id. at 20-21, 48-49, 87, 90-91.
Father testified on his own behalf. He admitted physically abusing
Child, but stated that he believed it was “discipline[].” Id. at 101, 113. He
further testified that he completed every FSP goal and court-ordered
program that he could, but did not have documentation because he gave it
to a prior attorney and the attorney never returned it or provided it to DHS
or to the trial court. Id. at 102, 106-07, 112, 116.
At the conclusion of the hearing, the trial court found that DHS had
satisfied its burden of proof. It found Father’s testimony was not credible
and that the testimony provided by DHS’ witnesses was credible. Id. at
121-23. The trial court entered a decree terminating Father’s parental rights
to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).
Father requested counsel to represent him on appeal, and the trial
court appointed counsel. He filed a timely notice of appeal along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
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1925(a)(2)(i). The trial court issued a responsive opinion pursuant to
Pa.R.A.P. 1925(a)(2)(ii).
Father raises the following issues for our review:
1. Did the trial court err by relying on facts that were
not introduced into evidence?
2. Did the juvenile court err in determining that it was
in the best interest of [C]hild to terminate Father’s
parental rights as Father had been moving towards
completing his FSP goals?
Father’s Brief at 4.5, 6
5
On March 31, 2015, this Court received a motion filed by Father
requesting to amend his appellate brief to include a fact “inadvertently
omitted” from Father’s statement of the case in his appellate brief, but
included in the argument section of his brief. Petition/Motion to Amend
Brief, 3/31/15, ¶ 3. Specifically, Father sought to add the following to his
statement of the case:
Document 24 in the lower court record contains a
certificate for [Father] regarding his completion of
[twenty-two] hours of parenting instruction on
September 19, 2011. Document 24 also includes
contains [sic] a certificate of achievement for
successful completion of anger management on
September 10, 2011. These documents showed how
[F]ather had been working toward completion of the
FSP goals that were set by DHS.
Despite these documents[,] the [c]ourt granted both
DHS Petitions’ to Terminate Parental Rights and
Change the Goal to Adoption [sic].
Father’s Brief at 7. Neither DHS nor the child advocate filed an objection to
this request. We therefore grant Father’s motion and consider his brief as
amended, which he filed concomitantly with his motion to amend, as his only
filing.
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Beginning with the first issue Father raises on appeal, he asserts that
the trial court improperly relied upon evidence not introduced at the October
9, 2014 hearing in rendering its decision. Father’s Brief at 9-14. Father
states that the trial court relied solely upon the facts contained in DHS’
petition to involuntarily terminate Father’s parental rights when fashioning
its findings of fact, in support of some of which DHS presented no evidence
at the October 9 hearing. According to Father, this means “that the trial
court failed to base [its] decision on evidence that was presented but relied
on an exhibit of facts that [DHS] intended to show at the hearing.” Father’s
6
The child advocate representing Child asserts that the appeal should be
quashed based upon Father’s failure to comply with Rules 2117 and 2119 of
the Pennsylvania Rules of Appellate Procedure. See Child’s Brief at 18-19;
see also Pa.R.A.P. 2117(a) (stating the contents of the statement of the
case), (c) (requiring information regarding how the appellant preserved the
issue(s) for appeal), 2119(c) (requiring citations to the record in the
argument). The child advocate asserts that Father “fail[ed] to provide a
statement of the facts necessary for a substantive review and [] fail[ed] to
cite to the record in either his [s]tatement of the [c]ase or [a]rgument,”
resulting in his “fail[ure] to show that he preserved any issues for review by
the appellate court.” Id. at 19.
Our review of Father’s brief reveals that it suffers from the deficiencies
alleged by the child advocate. Rule 2101 permits this Court to quash or
dismiss an appeal if an appellant materially fails to abide by our rules of
appellate procedure. Pa.R.A.P. 2101. In the interest of justice, however, we
decline to do so in this case. See Booth v. McDonnell Douglas Truck
Servs., Inc., 585 A.2d 24, 25 (Pa. Super. 1991) (“This Court does not
condone violations of its procedural rules. Nonetheless, in the interests of
justice we will not quash this appeal pursuant to Pa.R.A.P. 2101, as is our
prerogative under Pa.R.A.P. 105.”).
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Brief at 14.7 Father contends that these facts could have affected the trial
court’s decision and its credibility determinations, requiring remand for a
new proceeding before a different judge. Id. at 14.
Our review of the trial court’s 1925(a) opinion reveals that Father is
correct that the trial court cites exclusively to DHS’ petition to involuntarily
terminate Father’s parental rights in its findings of fact. See Trial Court
Opinion, 12/10/14, at 2-11. Father is also correct that some of those facts
find no evidentiary support in the notes of testimony of the October 9, 2014
goal change and termination proceeding. It is unclear why the trial court
chose to summarize its facts from DHS’ petition to involuntarily terminate
Father’s parental rights and we do not condone this practice. Nonetheless,
his argument does not warrant relief. In its legal analysis explaining the
reasoning for its decision, the trial court cites to the notes of testimony from
the October 9 proceeding, thus relying on evidence of record in support of its
decision. See id. at 13-15.
Furthermore, the trial court announced its credibility determinations on
the record at the end of the hearing, basing its conclusions on the testimony
it heard at the hearing and finding as follows:
7
We find this argument ironic, as on appeal, Father seeks for this Court to
entertain evidence not introduced at the October 9 hearing. Specifically,
documentation concerning his completion of twenty-two hours of parenting
classes and his completion of anger management were not introduced into
evidence, but are referenced in both the statement of the case and
argument sections of his appellate brief. See Father’s Brief at 7, 16.
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First, as a matter of findings, first thing, is
[F]ather is not credible. Father has a highly
manipulative personality. And[] he attempts to
manipulate the factual situation so that it is never his
fault. And he has never done anything wrong. And
he blames the agencies. He blames the workers. He
fails to take personal responsibility for any of his
actions.
That suggests to me that what I am hearing is not
credible. It’s manipulated such that he tries to twist
all of the events that have occurred in [C]hild’s life.
He fails to take responsibility for his own actions and
blames everyone else.
To [DHS] workers, the therapist, they were as
informed about the events of this case and the
events of the handling of [C]hild as any of the [DHS]
workers that I have had testified [sic] in front of me.
They had a grasp of detail. They were able to
answer all of the questions and had to be [sic] a
highly organized understanding of the development
of [C]hild throughout her placement. I find their
testimony to be significantly more credible than
[F]ather’s testimony.
N.T., 10/9/14, at 121-22.
The trial court’s credibility determinations are supported by the
testimony of record. Paller provided testimony regarding Father’s FSP goals
and the basis for requiring the fulfillment of each of the goals. Id. at 15-19.
She testified that Father has completed few of the goals, providing
documentation only of his completion of anger management counseling,
despite repeated reminders from both DHS and the trial court. Id. at 23-28.
Father, on the other hand, claimed to have completed all of the required FSP
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goals, and blamed his attorney for not providing the necessary
documentation to DHS. Id. at 108, 110, 111.
Although Father claimed to have completed his FSP goals and was fully
compliant with the trial court’s orders, when asked pointed questions about
goals that he had not yet satisfied, he provided excuses for each goal’s non-
completion. Father faulted DHS for his failure to attend a parenting
evaluation, stating that Paller never called to set it up for him. Id. at 111-
12. Paller testified, however, that she made the necessary referral twice and
that Father failed to follow through both times. Id. at 17.
Father further testified that DHS did not provide him with the contact
information for Child’s current therapist at CCTC, only giving him contact
information for a former therapist there, and so he could not contact the
proper person to arrange for psychoeducational therapy. Id. at 118. Paller
testified that she provided Father with the necessary contact information on
several occasions, including once “[a]t the bar of the court.” Id. at 29.
Father did not contact CCTC to set up psychoeducational therapy until June
of 2014. Id. at 85. Casper arranged two meetings with Father to which he
arrived forty-five minutes late. Id. Because DHS had already filed the
petition to terminate his parental rights to Child, Casper did not initiate
psychoeducational therapy with Father, and only met with Father to obtain
information about Child’s history to aid in her treatment for PTSD. Id.; see
n.4.
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According to Father, documents got lost in the mail; DHS’ clerical staff
was at fault; everyone else was to blame but Father for his failure to
complete his FSP goals, id. at 119, and the trial court found this testimony
was not worthy of belief. “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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation and quotation
marks omitted). As the record supports the trial court’s credibility
determinations, no relief is due.
As his second issue raised on appeal, Father asserts that the record
does not support the trial court’s decision to terminate his parental rights to
Child. Father’s Brief at 14-17. Father only addresses the sufficiency of the
evidence to terminate his rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and
(2); he presents no argument regarding the propriety of the decision to
terminate his rights pursuant to subsections (a)(5), (8) and (b). See id.;
see also Decree of Involuntary Termination of Parental Rights, 10/9/14. We
could affirm the trial court’s decision on that basis alone, but for purposes of
completeness, we will assess the sufficiency of the evidence to support the
trial court’s decree.
We review a decree terminating a parent’s rights for an abuse of
discretion or error of law. In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). As stated above, we must accept the credibility determinations and
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factual findings of the trial court that are supported by the record. Id. This
Court may not reverse a termination decree simply because we would have
reached a different result based on the same facts. Id.Under section 2511 of the Adoption Act, the trial court must engage in
a bifurcated process. First, the trial court must examine the parent’s
conduct under 2511(a). In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.
Super. 2006). The burden of proof is on the petitioner to establish by clear
and convincing evidence the existence of grounds for termination under
section 2511(a). In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa. Super.
2003). If termination is found by the trial court to be warranted under
section 2511(a), it must then turn to section 2511(b), and determine if
termination of the parent’s rights serves the children’s needs and welfare.
In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
This Court need only agree with the trial court’s decision as to any one
subsection of section 2511(a) in order to affirm the termination. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863
A.2d 1141 (Pa. 2004). We will therefore examine the facts under section
2511(a)(8), which states:
(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:
* * *
(8) The child has been removed from the care
of the parent by the court or under a voluntary
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agreement with an agency, 12 months or more
have elapsed from the date of removal or
placement, the conditions which led to the
removal or placement of the child continue to
exist and termination of parental rights would
best serve the needs and welfare of the child.
23 Pa.C.S.A. § 2511(a)(8). We will address each of the three elements
seriatim.
Beginning with the first element, the record clearly reflects that Child
was out of Father’s care for a period in excess of twelve months. DHS
removed Child from Father’s care on May 27, 2011, and DHS filed the
termination petition on March 15, 2013. See N.T., 10/9/14, at 13, 15.
Thus, the first requirement is met.
Turning to the second element, we recognize that “termination under
subsection (a)(8) ‘does not require an evaluation of [a parent’s] willingness
or ability to remedy the conditions that led to placement of [the] child[].’” In
re I.J., 972 A.2d 5, 11 (Pa. Super. 2009) (quoting In re Adoption of
R.J.S., 901 A.2d at 511)) (emphasis in the original). The relevant questions
under the second prong are whether the parent has remedied the conditions
that led to the removal of the child, whether those efforts were first initiated
prior to filing the petition to terminate the parent’s rights, and whether the
child’s reunification with that parent is imminent at the time of the
termination hearing. See 23 Pa.C.S.A. § 2511(b); In re I.J., 972 A.2d at
11; see, e.g., In re Adoption of R.J.S., 901 A.2d at 512 (termination
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under (a)(8) was appropriate where Mother was not in a position to parent
her children at the time of the termination hearing).
The record reflects that Child was removed from Father’s care
following a substantiated report to DHS that he had physically abused Child
and that Child was afraid to return to his care. N.T., 10/9/14, at 15. At the
time of the termination hearing, Father had not remedied the circumstances
that brought Child into DHS’ care. He failed to attend his parenting
evaluation (id. at 17); he failed to provide documentation of his attendance
in domestic violence counseling (id. at 18); he failed to participate in mental
health treatment (id. at 19); and he failed to participate in
psychoeducational therapy, which would have helped him to understand his
role in Child’s trauma and how to help her in her recovery (id. at 84-85).
Although Father attended anger management counseling, he continued
to be “aggressive” with service providers. Id. at 23-24, 86. Child even
reported that Father was physically aggressive with her during a visit.
Redmond testified that during a visit, Father reprimanded Child about
something concerning school. At the conclusion of the visit, Redmond
believed that he was hugging Child, but Child subsequently reported that
Father was “poking” Child in her side, causing Child to cry. Id. at 42. Child
told Redmond that she was scared of Father and came up with a “plan” that
if she felt scared in the future, she would tell Redmond that she needed to
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be excused to the restroom so that Redmond would know she was afraid.
Id.
Based on the testimony presented, Father not only failed to remedy
the circumstances that led to Child’s removal, but he failed, in large part,
ever to address these issues. As such, the second element of subsection
(a)(8) was satisfied.
Turning to the third requirement for termination under subsection
(a)(8), the record supports a finding that terminating Father’s parental rights
would best serve Child’s needs and welfare. Although Father was permitted
supervised visits with Child upon completion of the Menergy program and
psychoeducational therapy, both of which he failed to do, Father nonetheless
arranged for Child to meet him without the trial court’s permission or the
knowledge of DHS, one time transporting her to his home in Reading and
then refused to drive her back to Philadelphia because “he had no gas.” Id.
at 70-71, 72-73. Furthermore, Father’s inappropriate and unsanctioned
contacts with Child resulted in her being moved from a foster home where
she had been doing well to a new placement, the location of which was not
disclosed to Father. Id. at 74-75. According to Snead, Father would sit
outside of the foster home waiting for Child – “[i]t was not safe for her[;]
[h]e would take her[,] [a]nd [Child] knew that he would.” Id. at 74.
Child was diagnosed with PTSD, and according to Cooper, Child “needs
to be with [a] caregiver that can be supportive of her.” Id. at 87. Child was
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“angr[y]” and “hostile” after interacting with Father, acting out at her foster
home and at school following visits – the scheduled visits as well as the
unsanctioned visits. Id. at 45, 71, 87. Cooper testified that it was not in
Child’s best interest to have a relationship with Father at that time, as
Father did not respect the guidelines for contact with Child that have been
put in place. Id.
Moreover, because of Father’s failure to complete many of his FSP
goals, neither the trial court nor DHS had any information about his capacity
to parent Child, which was especially troubling because of the history of
abuse and Child’s PTSD diagnosis. Id. at 19. Testimony reflected continued
safety concerns about Child being in Father’s care which, as of the time of
the termination hearing, Father had failed to address. As such, the third
element under subsection (a)(8) is met.
Having concluded that the record supports the trial court’s finding of
clear and convincing evidence to terminate Father’s parental rights to Child
pursuant to section 2511(a)(8), we now turn to subsection (b), which
states:
(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.
23 Pa.C.S.A. § 2511(b).
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Under section 2511(b), we inquire whether termination of parental
rights would best serve the developmental, physical and emotional needs
and welfare of the child. In Re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super.
2005). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” Id. at 1287(citation omitted). The trial 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. The mere presence of a bond does not
preclude termination, as “even the most abused of children will often harbor
some positive emotion towards the abusive parent.” In re T.S.M., 71 A.3d
at 267 (quoting In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008)).
“The continued attachment to the natural parents, despite serious parental
rejection through abuse and neglect, and failure to correct parenting and
behavior disorders which are harming the children cannot be misconstrued
as bonding.” Id. “Common sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” Id. at 268
(citation omitted).
The trial court found, based on the testimony by DHS’ witnesses,
“there was not a strong bond between Father and [C]hild,” and thus,
“terminating Father’s parental rights would not cause [C]hild irreparable
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harm and would be in [her] best interest[.]” Trial Court Opinion, 12/10/14,
at 14. We agree.
The record reflects that Paller testified that Child “is in a safe and
loving environment.” N.T., 10/9/14, at 20. Although Child needs to
continue to work through her traumatic past, her foster parents “will be able
to meet her needs,” and “will be able to create a safe environment for
[Child].” Id. According to Paller, Child “right now, is in the safest place that
she can be.” Id. In contrast, Paller described the bond between Father and
Child as “very toxic,” based upon her observations of Father negatively
affecting Child’s stability. Id. at 21.
Redmond likewise testified that she believed terminating Father’s
parental rights was in Child’s best interest. Id. at 48. Like Paller, she
testified that she observed no beneficial bond between Father and Child. Id.
Lastly, as stated above, Cooper testified that a continued relationship
with Father was not in Child’s best interest at that time. Id. at 87. She
further testified that Child has disclosed that she wants to be adopted by her
current foster parents and only wanted to have some contact with Father.
Id. at 91-92.
The trial court found the above testimony credible, and, as stated
supra, the record supports the trial court’s credibility determinations. The
evidence presented supports a finding that terminating Father’s parental
rights would best serve Child’s needs and welfare under section 2511(b). As
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such, the trial court did not err by terminating Father’s parental rights to
Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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