In the Int. of: K.V.S., Appeal of: W.S. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.V.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
APPEAL OF: W.S., FATHER : No. 1615 EDA 2018
Appeal from the Decree Entered April 30, 2018,
in the Court of Common Pleas of Philadelphia County
Family Court Division at Nos. CP-51-AP-0000671-2016,
CP-51-DP-0001418-2014, FID#: 51-001374-2014
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 18, 2018
W.S. (“Father”) appeals from the April 30, 2018 decree entered in the
Court of Common Pleas Philadelphia County, Family Court Division,
involuntarily terminating his parental rights to his dependent child, K.V.S.,
female child, born in November of 2008 (“Child”), pursuant to the Adoption
Act, 23 Pa.C.S.A. §§ 2511(a)(1), (2), and (b). After careful review, we
affirm.
The trial court set forth the following:
On May 1, 2013, the Department of Human Services
(DHS) received a General Protective Serv[ice]s
(GPS) report alleging that [Child] was fo[u]nd nude
and w[a]ndering unsupervised, that [Child] had been
w[a]ndering for approximately thirty minutes. [T]he
Philadelphia Police Department (PPD) was able to
locate [Child’s] mother with assistance of the
neighbors. The report also alleged that Mother had a
history of drug use. Mother stated [Child] had
crawled out of the window. The report was
substantiated.
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On May 1, 2013, DHS received a [s]upplemental
report alleging that a similar incident had occurred
on April 25, 2013, that [Child] had been found
wandering without supervision approximately one
block [from] her home[,] that the PPD had been
called[,] that the PPD returned [Child] to Mother and
Mother had stated that she had fallen asleep on the
couch and when she woke up[, Child] was gone.
On May 2, 2013, DHS received another supplement
to the May 1, 2013 GPS report alleging that [Child]
had again been found wandering outside her home
without supervision. The report stated that the PPD
was called and returned [Child] to Mother. Mother
appeared disoriented and under the influence of an
unknown substance.
On June 14, 2013, DHS received a GPS report
alleging that Mother fell asleep and [Child] walked
out of the home. [Child] was found alone, blocks
away from the home and escorted home. The report
alleged that this was the third time that [Child] had
left the home unbeknownst to Mother, who did not
appear to be under the influence of drugs and
alcohol, but needed to secure the doors and windows
to ensure [Child’s] safety. The report was
substantiated.
On February 12, 2014, DHS received a GPS report
alleging that the family had previously resided [on]
Wishart Street in Philadelphia, where the home
lacked heat and gas service and Mother fell through
the floorboards. The report also alleged that
[F]ather moved from the home after he was
diagnosed with a serious health problem because the
home was too cold for him. Father allowed Mother
and [Child] and her sibling to remain in the home.
Father moved to a studio apartment and [allowed]
Mother and the children to temporarily reside there
in order to bathe. Father had recently been paroled
from prison after being incarcerated for four years as
a result of being convicted of charges related to
domestic violence against Mother. The report further
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alleged that [Child’s] sibling ran away because she
felt uncomfortable around Father due to previous
issues of domestic violence between Father and
Mother. Mother, [Child] and [Child’s] sibling were
transient and residing with a family friend [on]
Martha Street in Philadelphia at the time of the
report. The family friend used marijuana and Mother
refused to reside in a shelter. The report alleged
Mother was diagnosed with depression, anxiety,
Bipolar Disorder, and a seizure disorder and it was
suspected that Mother’s seizure disorder was a result
of being physically assaulted by Father.
[Child] was diagnosed with Bipolar Disorder and had
suffered due to her exposure to Mother’s issues with
substance abuse and domestic violence. [Child]
attended therapeutic daycare at People Acting to
Help (PATH). This report was substantiated.
On June 11, 2014, Father telephoned DHS and
reported that [Child] was with Mother and that
Mother was under the influence of an unknown
substance.
On June 11, 2014, DHS telephoned Mother.
Mother’s speech was incoherent and she could not
form sentence [sic]. DHS notice[d] that [Child]
could be heard in the background. Mother abruptly
disconnected the telephone call and did not answer
when DHS telephoned a second time.
On June 11, 2014, DHS obtained an Order of
[P]rotective Custody (OPC) for [Child] and her sibling
and placed them with their Maternal Aunt.
At the Shelter Care Hearing held on June 13, 2014,
Judge Joseph Fernandez lifted the OPC and ordered
the temporary commitment of [Child] to stand. The
Court ordered that Father receive supervised visits at
the agency; that DHS to ensure [sic] that all
prescriptions are filled as to [Child] and that DHS
explore all family members.
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DHS learned [Child] had been diagnosed with
Attention Deficit Hyperactivity Disorder ([A]DHD)
and Bipolar Disorder. [Child] was attending mental
health treatment through Northwest Human Services
(NHS). Mother had a history of mental health issues
and drug and alcohol issues, for which she attended
Northeast Treatment centers (NET) for outpatient
therapy. Mother had been diagnosed with anxiety
and depression. Father was minimally involved in
[Child’s] care and Father had a history of drug use
and lacked appropriate housing.
Father filed a petition with Domestic Branch of
Family Court seeking custody of [Child].
Father pled guilty to aggravated assault and was
sentenced to serve one year and six months of
incarceration and seven years of probation on
September 23, 2010. Mother was the alleged victim
of the assault.
Father pled guilt[y] to endangering the welfare of
children and recklessly endangering another person
on October 30, 1990 and May 3, 1991.
Father was found guilty of drug-related offenses on
April 28, 1997 and September 11, 1997.
At the Adjudicatory Hearing held on June 23, 2014,
Father appeared before the Honorable Jonathan Q.
Irvine who adjudicated [Child] dependent and
committed her to DHS. The Court ordered that
Father receive twice weekly supervised visits at the
DHS and/or provider agency as arranged by the
parties, which could be modified. Father was
referred to the Clinical Evaluation Unit (CEU) for an
evaluation, a full drug and alcohol screen, and
monitoring. Father was ordered to comply with all
FSP objectives, services and recommendations.
On September 16, 2014, DHS held a Family Service
Plan (FSP) meeting. [T]he goal identified for [Child]
was placement with a fit and willing relative. The
objectives identified for Father were: 1) to achieve
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and maintain recovery from drugs/alcohol by
attending Alcohol [sic] Anonymous (AA) meetings;
2) to assist with meeting [Child’s] daily needs
including food and clothing and 3) to continue to
comply with probation officer’s directives. Father
attended the meeting and signed the FSP.
On September 23, 2014, CEU completed a Progress
Report regarding Father stating that he completed a
drug and alcohol assessment on August 27, 2014.
Father had been referred for outpatient treatment at
the Wedge Medical Center Frankfort, and that he was
scheduled to attend an intake appointment on
September 26, 2014. CEU recommended the Father
attend that scheduled intake appointment at Wedge
Medical Center.
At the Permanency Review Hearing held on
October 20, 2014, Father appeared before Master
Alexi Ciccone, who ordered that [Child] remain as
committed. The Court ordered Father to be
[]referred [to] the CEU for an assessment and full
drug and alcohol screen. The Court furthermore
ordered Father to comply with all FSP objectives,
services and recommendation; Father’s supervised
visitation schedule be modified to unsupervised day
visits in the community as arranged; Father was not
allow to allowed [sic] Mother to participate in the
unsupervised visitation schedule. The Court held
that [Child] was doing well. [Child] was receiving
services through NET; and Father was referred to the
Wedge Medical Center for Services.
On December 17, 2014, DHS revised the FSP. The
goal identified for [Child] was changed to return to
parent, guardian, custodian. The objectives for
Father were: 1) to make sure children are clean and
appropriately dressed; 2) to keep all visits and
maintain regular contact with [C]hild; 3) to meet
regularly with agency social worker and follow
through with Individual Service Plan (ISP); 4) to
continue to comply and follow the recommendations
of the probation officer (PO); 5) to enroll in and
regular[ly] attend a General Equivalency Diploma
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(GED) program; 6) to stay employed or seek job
counseling and referral; 7) participate in mental
health evaluation; 8) to sign authorization form to
allow the Children and Youth Division (CYD) to obtain
copies of evaluations and progress reports;
9) participate in evaluation for drug/alcohol abuse
and continue to attend AA meetings; 10) comply
with all treatment recommendations of provider;
11) locate and occupy suitable housing for family
with the suitable space, heat, and all other operable
utilities; 12) to receive appropriate medical
evaluation; and 13) comply with all recommended
treatments.
On January 9, 2015, CEU completed a progress
Report regarding Father stating that he completed a
drug and alcohol assessment on November 19, 2014.
Father stated [he] had been referred for outpatient
treatment but CEU was unable to secure funding for
treatment due to his private insurance through
Medicaid A&B. Father was advised to contact the
Behavioral Health on the back of his insurance card
to arrange for a pre-certification evaluation. Father
was to contact CEU after securing treatment in order
for CEU to monitor his treatment. CEU
recommended that Father provide verification of his
enrollment in treatment.
At the Permanency Review Hea[r]ing held on
March 9, 2015, Father appeared before Judge Irvine
who ordered [Child] remain as committed. The
Court ordered Father receive unsupervised visits
every Sunday and that Father be referred to the CEU
for a full drug and alcohol screen, a dual diagnosis
assessment, and monitoring. The Court held that
Father had made no compliance with the
permanency plan.
On June 16, 2015, DHS again revised the FSP. [T]he
goal identified for [Child] was changed to return to
parent, guardian, custodian. The objectives
identified for Father remained the same as the
previous FSP. Father participated via telephone.
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A[t] the Permanency Review hearing held on
June 29, 2015, Father appeared before
[J]udge Irvine, who ordered that [Child] rema[i]n as
committed. Father receive[d] supposed visits with
[Child] and be [sic] referred to the CEU for a drug
screen, three random drug screens, assessment, and
monitoring. [T]he Court held that [Child] was
receiving therapeutic services and med
management.
In May 2015, Father tested positive for cocaine and
his visits with [Child] were reversed to supervised
visits at the provider agency.
On September 16, 2015, CEU completed a Progress
Report regarding Father stating that he presented at
CEU and rendered a Urine Drug Screen (UDS) on
July 1, 2015; Father failed to appear at a scheduled
appointment to provide verification of his enrollment
in drug and alcohol treatment on July 17, 2015;
Father had no further contact with CEU. CEU
recommended that Father receive a substance abuse
assessment immediately following the scheduled
court hearing on September 18, 2015.
At the Permanency Review Hearing held on
September 18, 2015, Father appeared before
Judge Irvine who ordered that [Child] remain as
committed [and Child] be referred to Behavioral
Health System (BHS) for consultation and/or
evaluation. The Court ordered Father receive
therapeutic visits until [Child’s] behavior becomes
stabilized. Father was referred for anger
management counseling and referred to the CEU for
a drug screen, a dual-diagnosis assessment,
monitoring and three random drug screens. The
foster parent request [sic] an Individual Education
Plan (IEP) for [Child].
At the Permanency Review Hearing held on
December 7, 2015, Judge Irvine ordered that [Child]
remain as committed and Father’s visits remain
suspended. [T]he Court held that [Child] was doing
well in placement and at school. [Child] receive [sic]
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a psychiatric evaluation through Northwestern
Human Services (HS). The Court ordered [Child] to
be moved up to treatment level foster care and
maint[ai]n a scheduled appointment for wrap-around
services on June 16, 2016. Father failed to comply
with his FSP objectives.
On December 7, 2015, DHS referred Father to the
Achieving Reunification Center (ARC) program.
On December 14, 2015, DHS again revised the FSP.
The goal identified for [Child] was changed to
Permanent Legal Custody (PLC). The objectives
identified for Father remained the same as the
previous FSP. Father attended the meeting and
signed the FSP.
On February 6, 2016, Mother died.
On February 23, 2016, the ARC program completed
a Parent/Caregiver Status report regarding Father
stating that he has attended 3 out of 5 anger
management workshops. Father failed to attend
Parent Action Network (PAN) since his scheduled
start date of January 7, 2016 and he had failed to
meet with his reunification [s]upport specialist (RSS)
on February 22, 2016. Father did not address the
goal of parenting education.
At the Permanency Review Hearing held on March 7,
2016[], Father appeared before Judge Irvine, who
ordered that [Child] remain as committed and
granted a continuance as a result of his counsel’s
failure to attend.
At the Permanency Review Hearing held on May 13,
2016, Father appeared before the Honorable Lyris F.
Younge, who ordered that [Child] remain as
committed and that Father [be] referred to the
CEU [sic] of drug screen, three random drug
screens, an assessment and monitoring. The Court
held that [Child] was receiving therapeutic services
and medication management.
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On or about early July 2016, Father was incarcerated
for violating probation.
A[t] the Permanency Review Hearing held on
July 13, 2016, Father appeared before
Judge Younge, who ordered that [Child] remain as
committed. Father was ordered to receive
supervised visits at [Child’s] discretion. Father was
ordered not to have contact with the foster parent or
foster home. The Court issued a Stay-way [sic]
Order as to Father regarding the agency’s case
manager and issued a No Contact Order as to Father
to include telephone contact and/or text messaging
until further order of the Court.
The matter was the [sic] listed on a regular basis on
the docket of the Philadelphia Court of Common
Pleas, Family Court Division-Juvenile Branch
pursuant to section 6351 of the Juvenile Act,
42 Pa.C.S.A. § 6351, and evaluated for the purpose
of reviewing the permanency plan of the children.
In subsequent hearings, the Dependency Review
Orders reflect the Court’s review and disposition as a
result of evidence presented, primarily with the goal
of finalizing the permanency plan.
On April 30, 2018, during the Termination of
Parental Rights hearing for Father, the Court found
by clear and convincing evidence that Father’s
parental rights as to [Child] should be terminated
pursuant to the Juvenile Act. Furthermore, the Court
held it was in the best interest of the [C]hild that the
goal be changed to [a]doption.
Trial court opinion, 7/18/18 at 1-5.
The record reflects that on May 29, 2018, Father filed a timely notice
of appeal, together with a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court then filed its
Rule 1925(a)(2)(ii) opinion.
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Father raises the following issues1 for our review:
[1.] Whether the Trial Court erred by allowing the
Department of Human Services to move
forward with and complete their case in chief
without Father’s appearance or participation
during the hearing[?]
[2.] Whether the Trial Court erred by terminating
the parental rights of Appellant, Father, under
23 Pa.C.S.A. § 2511 subsections (a)(1) and
(a)(2)?
[3.] Whether the Trial Court erred by finding, under
23 Pa.C.S.A. § 2511(b), that termination of
[Father’s] parental rights best serves the
Child’s developmetal, physical and emotional
needs and welfare?
Father’s brief at 4.
Father first complains that the trial court erred when it bifurcated the
termination hearing and permitted DHS to present its case-in-chief in
Father’s absence.
We note initially that neither the Adoption Act nor
the cases interpreting it require that a parent must
be present in order for a court to grant a Petition to
Terminate Parental Rights. The Act merely requires
that “[a]t least ten days’ notice shall be given to the
parent or parents, putative father, or parent of a
minor parent whose rights are to be terminated, by
personal service or by registered mail to his or their
last known address or by such other means as the
court may require.” 23 Pa.C.S.[A.] § 2513(b). See
In re K.B., 2000 PA Super 355, 763 A.2d 436, 440
(Pa. Super. 2000) (finding affidavits of service
support trial court’s finding that the parents received
notice of parental rights termination hearing).
1 We have re-ordered Father’s issues for ease of discussion.
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Once a court is satisfied that a parent has received
notice of the hearing, it is then entirely within the
trial court’s discretion to make a ruling on the
continuance request based on the evidence before it.
As in all matters involving parental rights, the best
interests of the child are paramount. Accordingly,
the exercise of the trial court’s discretion includes
balancing the evidence submitted in support of the
request against other relevant factors, such as a
parent’s response and participation, or lack thereof,
in prior proceedings and appointments important to
the welfare of the child. Most importantly, the trial
court is in the best position to factor in the impact
that further delay will have on the child’s
well-being.[Footnote 4]
[Footnote 4] The trial court’s
consideration in granting or denying a
continuance in a parental rights
termination proceeding necessarily will
include consideration of the amount of
time that will lapse before it is able to
schedule another hearing, and the
impact that that further delay will have
on the child’s security and welfare.
In the Interest of D.F., 165 A.3d 960, 965 (Pa.Super. 2017), appeal
denied, 170 A.3d 991 (Pa. 2017).
Here, the record reflects that DHS filed the petition for involuntary
termination of parental rights on July 26, 2016, and the evidentiary hearing
was originally scheduled for August 12, 2016. Thereafter, nine continuance
orders were entered. The termination hearing was then held on
November 8, 2017. At the beginning of that hearing, Father’s counsel
informed the trial court that Father had been arrested on November 3, 2017.
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(Notes of testimony, 11/8/17 at 10.)2 Counsel further stated that he had
secured a bring-down order and had followed up with the prison, but
“unfortunately, because of the prison’s fire procedure right now, [Father] will
not only not be able to participate telephonically, but he will not be able to
be present[].” (Id. at 12.) Counsel then moved for a continuance.
The trial court first acknowledged its satisfaction that Father, as well
as all parties, had received notice of the hearing. (Id. at 9.) Indeed, Father
advances no argument with respect to notice. The trial court then
determined that in light of the history of the case, the case needed to move
forward; that except for Father, all parties and witnesses were present; and
that it was not willing to continue the case any longer than necessary, but
would bifurcate the hearing and hear Father’s testimony at a later date.3
(Id. at 13-16.) Because the best interests of the Child were paramount in
2 We note that the certified record fails to contain the November 8, 2017
hearing transcript. That transcript, however, is included in the reproduced
record. Additionally, Father and Child’s guardian ad litem, whose brief
Jeffrey C. Bruch, Esq., Child’s advocate, joined by letter to this court dated
September 21, 2018, cite to the transcript. “It is well-established in this
Commonwealth that it is ‘the appellant’s responsibility to order the transcript
required and ascertain its presence in the record prior to certification for
appeal.’” Commonwealth v O’Black, 897 A.2d 1234, 1238 (Pa.Super.
2016) (citation omitted). Nevertheless, because the reproduced record
includes the November 8, 2017 transcript and no party disputes its accuracy,
we will consider it. See Commonwealth v. Brown, 52 A.3d 1139,
1145 n.4 (Pa. 2012).
3 The trial court initially scheduled the continuation of the termination
hearing for January 5, 2018. (Notes of testimony, 11/8/17 at 209.) The
hearing was then rescheduled to April 30, 2018.
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the termination hearing and because the trial court was in the best position
to determine the impact of further delays on the Child, we discern no abuse
of discretion.
Father next challenges the termination of his parental rights to Child
pursuant to Sections 2511(a)(1), (2), and (b).
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.“[A] decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or
ill-will.” Id. The trial court’s decision, however,
should not be reversed merely because the record
would support a different result. Id. at 827. We
have previously emphasized our deference to trial
courts that often have first-hand observations of the
parties spanning multiple hearings. See In re
R.J.T., 9 A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
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the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. Initially,
the focus is on the conduct of the parent. The party
seeking termination must prove by clear and
convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and
status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which 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 C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
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In this case, the trial court terminated Father’s parental rights
pursuant to Sections 2511(a)(1), (2), and (b). We have long held that, in
order to affirm a termination of parental rights, we need only agree with the
trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the trial court’s termination decree pursuant
to Subsections 2511(a)(2) and (b), which provide as follows:
(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
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parent to remedy the conditions described
therein which are first initiated subsequent to
the giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being; and (3) the causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa.Super. 2015), quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002). “Parents are required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities. . . . [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.” In re A.L.D., 797 A.2d at 340 (internal
quotation marks and citations omitted).
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Here, in terminating Father’s parental rights under Section 2511(a),
the trial court found:
[W]hat is clear is that, for every case that comes
before the Court where a child is placed outside of
the care of the parents, there are objectives that are
set forth.
And, yes, we want parents to complete the
objectives, but it’s not just about checking boxes; it’s
about ensure [sic] that if we take a parenting class,
we take an anger management class, that those
classes will not just be taken in, but you will see it
exercised in the day to day behaviors of the party
that was the recipient of the class.
I’m concerned that, even though [Father] has had
anger management classes -- I’m concerned because
we’ve had testimony by workers assigned to this
case, in particular, Ms. [Vernice] Whitaker[, Child’s
former treatment foster,] about the nature and tenor
of the phone messages left for her by [Father] where
he is using expletives and he is using derogatory
names in terms of Ms. Whitaker.
I’m concerned because [F]ather does not operate
within parameters and boundaries, and that gives
me pause when we talk about possibly returning a
child into his care.
As we sit here today, [F]ather continues, I believe,
to run afoul of anything that the Court may put in
place because, as we sit here today, he’s in -- he has
a bench warrant. He’s in probation violation.
And that was just issued April 13th, 2018. So,
[F]ather has not demonstrated over a period of time
that he would be appropriate for us to even consider
reunification.
....
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[F]ather just hasn’t really made himself available to
[Child] because [F]ather continues to find himself in
situations where he’s just not available, whether it’s
through incarceration, whether it’s because of his
actions that causes [sic] us to kind of pause in terms
of moving forward with reunification.
And, quite honestly, [F]ather continues to get into
his own way in terms of trying to be reunified with
this [C]hild.
I find that the testimony of Ms. [Jenna] Cotton was
credible. That was the therapist of [C]hild. I find
that the foster parents’ testimony was credible, and
the foster parents said that, after the limited visits --
and I think the last time there might have been a
visit might have been in October 2015 -- that there
were concerns about the behaviors of [Child] after
the visit.
I find that the testimony of Mr. [Britton] Stewart[,
the DHS case worker assigned to Child’s case,] has
been credible, and I don’t find the testimony of
[Father] credible. I listened to him very intently,
and while he is willing to say all that he’s done, he’s
not willing to take ownership of some of the things
that, clearly, he has done through the life of this
case.
I’m concerned about [Child’s] well-being, and I do
not believe that [F]ather is capable of being a
reunification resource or that it would be appropriate
or in her best interest.
Notes of testimony, 4/30/18 at 68-70.
We have reviewed the record and conclude that it supports the trial
court’s factual findings and that the trial court did not abuse its discretion in
terminating Father’s parental rights under Section 2511(a)(2). The record
demonstrates that Father’s repeated and continued incapacity, abuse,
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neglect, or refusal to parent the Child has caused the Child to be without
essential parental care, control, or subsistence necessary for her physical or
mental well-being and that the conditions and causes of Father’s incapacity,
abuse, neglect, or refusal cannot be remedied by Father.
We now turn to whether termination was proper under
Section 2511(b). As to that section, our supreme court has stated as
follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b).
The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles
such as love, comfort, security, and stability.”
In re K.M., 53 A.3d 781, 791 (Pa.Super. 2012). In
In re E.M., 620 A.2d [481, 485 (Pa. 1993)], this
Court held that the determination of the child’s
“needs and welfare” requires consideration of the
emotional bonds between the parent and child. The
“utmost attention” should be paid to discerning the
effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
However, as discussed below, evaluation of a child’s
bonds is not always an easy task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
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When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b)
best-interest analysis, it is nonetheless only one of
many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the
trial court can equally emphasize the
safety needs of the child, and should also
consider the intangibles, such as the
love, comfort, security, and stability the
child might have with the foster
parent. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33
A.3d 95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon 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.” T.S.M., 73 A.3d at 268. The court directed that, in weighing the
bond considerations pursuant to Section 2511(b), “courts must keep the
ticking clock of childhood ever in mind.” Id. at 269. The T.S.M. court
observed, “[c]hildren are young for a scant number of years, and we have
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an obligation to see to their healthy development quickly. When courts fail
. . . the result, all too often, is catastrophically maladjusted children.” Id.
In determining that termination of Father’s parental rights favored the
Child’s needs and welfare, the trial court found that
with every day that passes, [Child] is in a home that
has provided her safety and comfort, and she’s being
nurtured and she’s doing well and she’s flourishing
and she’s, every day, getting more and more bonded
with her current caregiver, and that is a pre-adoptive
home.
....
I do find that [Child], who has been in this foster
home for a significant period of time, is bonded and
well-assimilated into this family.
Notes of testimony, 4/30/18 at 69, 71.
Additionally, the trial court found Mr. Stewart’s testimony to be
credible. (Id. at 70.) Mr. Stewart testified that he has spoken with Child
and that she indicated that her preference was to have no contact with
Father and to remain with her foster family. (Notes of testimony, 11/8/17 at
37-38.) Finally, the trial court determined that termination of Father’s
parental rights to Child was in Child’s best interest. (Notes of testimony,
4/30/18 at 70.) Our review of the record supports this determination, and
the trial court did not abuse its discretion in terminating Father’s parental
rights to Child.
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Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights to the Children under Sections 2511(a)(1), (2), and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/18
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