In the Int. of: H.B.M., etc. Appeal of: W.F.M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.B.M. A/K/A : IN THE SUPERIOR COURT OF
H.M., A MINOR : PENNSYLVANIA
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APPEAL OF: W.F.M., FATHER :
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: No. 1451 EDA 2018
Appeal from the Order Entered April 17, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000780-2016,
CP-51-DP-0001845-2011, FID: 51-FN-003665-2011
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018
W.F.M. (“Father”) appeals from the trial court decree entered on April
17, 2018, that granted the petition filed by the Philadelphia Department of
Human Services (“DHS”) to involuntarily terminate his parental rights to his
daughter, H.B.M. He also appeals the concomitant juvenile court order that
changed H.B.M.’s permanency goal from reunification to adoption.1 We affirm.
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1 Father filed a single notice of appeal from the termination decree and the
goal change order. However, the correct procedure is to file a separate notice
of appeal for each docket. See Pa.R.A.P. 341, Note (“Where . . . one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). Recently, the
Pennsylvania Supreme Court held that the failure to file separate notices of
appeal from an order resolving issues on more than one docket requires the
quashal of the appeal. Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018). However, this holding applies only to future cases. Id. As Father filed
his notice prior to the filing of the Supreme Court’s decision in Walker, we do
not quash his appeal.
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We adopt the following statement of facts from the trial court opinion,
which is supported by the record. H.B.M., born in January 2003, was
diagnosed with hypotonic cerebral palsy and Sotos Syndrome, a genetic
disorder characterized by a distinctive facial appearance, overgrowth in
childhood, delayed development, and learning disabilities. Due to her
diagnoses, H.B.M. is non-verbal, and although she is ambulatory, she utilizes
a wheelchair. The child requires dedicated medical care and cannot perform
basic functions such as cleaning and feeding herself without assistance.
Father is legally blind and requires Mother’s assistance. D.M.B. (“Mother”)
has an intellectual disability.2
The family came to the attention of DHS in August 2011, after in-home
protective services were implemented to monitor H.B.M.’s care and
supervision. Upon DHS’s intervention, the agency discovered that Mother had
a history of transience, the family interfered with H.B.M.’s services, and
Mother and Father neglected to ensure that H.B.M. consistently received
physical and occupational therapy for her developmental delays.
In September 2011, the family became homeless. Although Mother
initially informed DHS that she intended to move H.B.M. into the home of the
paternal grandfather, neither parent provided DHS with an address or
telephone number to contact the child. Father was belligerent and
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2The trial court also terminated Mother’s parental rights to H.B.M. We address
Mother’s appeal separately.
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uncooperative, and he refused to disclose information regarding any relatives
or friends who were willing to care for his daughter.
On September 20, 2011, DHS obtained an order of protective custody
(“OPC”) for H.B.M. and placed her in a medical institution. Following a shelter
care hearing, the OPC was lifted and H.B.M.’s temporary commitment
continued, with parents allowed generous supervised visitation. On October
13, 2011, the court adjudicated H.B.M. dependent and continued her
placement, where she received physical therapy and on-going medical care.
In the ensuing four and one-half years, H.B.M. remained in residential
care where she received medical treatment and physical therapy. Mother and
Father attended family service plan (“FSP”) meetings and were provided with
various objectives designed to facilitate reunification. Their compliance with
the FSP objectives varied. Occasionally, parents complied with their
objectives and completed services, but they struggled to satisfy other
requirements, such as maintaining stable housing and employment.
During March 2015, William Russell, Ph.D. performed parenting capacity
evaluations of both parents. As it relates to Father, Dr. Russell opined that
Father would need significant support in order to successfully coordinate the
services and educational supports that H.B.M. required. The evaluation report
noted, particularly, that H.B.M. had been removed from Father’s care for five
years, and in that time Father was not able to obtain employment, stable
housing, or demonstrate an understanding of H.B.M.’s medical needs. Indeed,
Father was unable to identify the specific services in place for his daughter.
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In sum, Dr. Russell concluded that Father lacked the capacity to provide safety
and permanency, and that a long-term medical placement would best suit her
needs. Nevertheless, he opined that, since H.B.M. was reportedly bonded to
Mother and Father, supervised visitations should continue.
In August 2016, DHS filed a petition seeking to involuntarily terminate
Father’s parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8),
and (b). During the ensuing hearing on the termination petition, H.B.M. was
represented by a guardian ad litem and by legal counsel. Father, represented
by counsel, was present at the hearing but did not testify on his own behalf.
Dr. Russell testified that Father did not have the capacity to care for
H.B.M., and introduced a video of H.B.M. going about her daily routine to
illustrate the significant level of care that she requires. N.T., 4/17/18, at 25.
Yolanda Bronson-Williford, DHS social worker, testified that it was in H.B.M.’s
best interests to terminate Father’s rights, and that H.B.M. would not be
harmed by termination. Id. at 48. She explained that, at the time of the
hearing, H.B.M. was not in a pre-adoptive home, but would be referred to the
DHS Adoption Unit. Id. at 64-65.
During the hearing, Father admitted that DHS had proven by clear and
convincing evidence the statutory grounds for termination under § 2511(a).
Likewise, he conceded that he was unlikely to demonstrate any parental
capacity going forward. Nevertheless, he contested that it was in H.B.M.’s
best interests for his rights to be terminated under § 2511(b). Id. at 19, 46-
47.
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As it relates to one of Father’s complaints on appeal regarding court
interference, DHS presented the testimony of Octavia McLean, H.B.M.’s
program specialist at Woods Services, who stated that Father initially spent
the majority of every day with his daughter at the facility. However, his
prolonged presence interrupted H.B.M.’s daily routine and had a negative
impact on her ability to adapt to her new residential environment. Id. at 79-
80. Thereafter, the trial court reduced the visitations to a total of twelve hours
per week, i.e., three four-hour supervised visitations. Following that decision,
Father’s compliance waned. He missed several visitations, neglected to notify
Woods Services in advance of his scheduled visits, would not leave the
visitations at the designated time, and continued to disrupt H.B.M.’s daily
routine. Id. at 83-87. Moreover, Father was rude to the staff at the
residential facility, and he withheld consent to medication. Father’s outbursts
during the visitations increased the frequency of H.B.M.’s maladaptive
behaviors, as evidenced by her incidents of self-harm following the visits. Id.
at 101.
At the conclusion of the hearing, the court terminated Father’s parental
rights. He timely filed a notice of appeal and statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 1925(b).
On appeal, Father raises the following questions for our review:
1[.] Was there sufficient evidence presented to establish under 23
[Pa.C.S. §] 2511(b) that it was in the best interest of the child,
H.B.M., to terminate Father’s parental rights?
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2. Was there sufficient evidence presented to establish under [23
Pa.C.S. §] 2511(b) that Father demonstrated a sincere and
genuine desire to maintain a parent-child bond with H.B.M. when
it was the court’s order that curtailed Father’s visits with his child
thereby limiting his opportunities to perform the required duties
of a parent?
3. Did the [c]ourt commit reversible error when it terminated
Father’s parental rights when the City’s own expert, Dr. William
Russell, and the program coordinator from The Woods, Octavia
McLean, stated that continued contact with [H.B.M.] was not
harming [H.B.M.]’s development or interfering with her ongoing
routine and programs at [T]he Woods?
4. Did the trial court commit reversible error and abuse its
discretion changing [H.B.M.]’s goal to adoption which is not in the
best interest of the child. (Perhaps APPLA [Another Planned
Permanent Living Arrangement] would have been more
appropriate[?])
Father’s brief at 3.3
We review cases involving the termination of parental rights according
to the following standards.
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
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3 As Father failed to present any argument or citation to relevant legal
authority specific to his contention that the juvenile court erred in changing
H.B.M.’s goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S. § 6351, that
claim is abandoned. See, e.g., Thomas v. Thomas, __ A.3d __, 2018 PA
Super 224, *6 (appellant must support each issue raised by discussion and
analysis of pertinent authority; failure to do so hampers this Court’s review
and risks waiver). Accordingly, we do not address the merits of the juvenile
court’s goal change order.
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unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our 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) (internal citations and quotations
omitted).
To affirm the trial court, we need only agree with any one of the
subsections of 2511(a), as well as § 2511(b). See In re B.L.W., 843 A.2d
380, 384 (Pa.Super. 2004) (en banc). Here, we will focus our analysis on
§ 2511(b), as Father stipulated that DHS had proven grounds for termination
under § 2511(a)(1), (2), (5), and (8). Termination requires a bifurcated
analysis:
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).
The relevant section of 23 Pa.C.S. § 2511 provides that:
(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
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control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(b).
As Father conceded to the grounds for termination under § 2511(a), we
must consider whether H.B.M.’s developmental, physical, and emotional
needs and welfare will be met by termination pursuant to § 2511(b). See In
re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). “In this context, the court
must take into account whether a bond exists between child and parent, and
whether termination would destroy an existing, necessary and beneficial
relationship.” Id. The court is not required to use expert testimony, and
social workers and caseworkers may offer evaluations as well. Id. Ultimately,
the concern is the needs and welfare of the child. Id. Where there is no
evidence of a bond between the parent and child, it is reasonable to infer that
no bond exists. In re: K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008).
We have noted that
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
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Z.P., supra at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa.Super.
2000)). However, love between a parent and child is not the sole determining
factor, and love alone is not enough. In re J.L.C., 837 A.2d 1247, 1249
(Pa.Super. 2003).
Although raised as three separate issues in his statement of questions
presented, Father combined all of his arguments regarding § 2511(b) into a
single section in his brief. Accordingly, we will address the three claims
collectively. Father first argues that the evidence was insufficient to establish
that it was in H.B.M.’s best interests for his parental rights to be terminated.
Specifically, he contends that DHS failed to establish either an absence of a
parental bond, or that the extant bond was harmful to H.B.M. Father
continues that he demonstrated a sincere and genuine desire to maintain a
parent-child bond with H.B.M., but that the juvenile court curtailed the extent
of his visitation and restricted his opportunities to perform parental duties.
Finally, Father argues that the evidence does not sustain the conclusion that
his continued contact with H.B.M. harmed her development, or interfered with
her ongoing routine and programs. In this vein, Father argues that the trial
court overlooked what he characterizes as his daughter’s diminished
“adoptability” in considering whether to terminate his parental rights. Father’s
brief at 9-10. None of these arguments is availing.
In explaining its needs and welfare analysis pursuant to § 2511(b), the
trial court observed:
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Now, all the evidence I’ve heard say that these two parents do not
have the capacity to have a parental relationship; both cognitively
and emotionally, they’re not capable of forming a parental bond
because of their limitations. And more importantly, [H.B.M.] is
not capable of appreciating what’s known as a parental bond.
There are suggestions that [H.B.M.] recognizes these two people
as her parents [but] the clear and convincing evidence says
otherwise. [H.B.M.] does not recognize them as parental
authority—parental figures.
[H.B.M.] has severe limitations, as we’ve seen through the video
and through the testimony—that [she] never recognized, nor does
[she] recognize [Mother and Father] as [her] parents, and that’s
because of the cognitive limitations of [H.B.M.].
Trial Court Opinion, 8/13/18, at 31-32. Thereafter, the trial court concluded
that the certified record did not support Father’s suggestion that a parental
relationship existed between him and H.B.M. simply because she recognizes
his presence during visitations, and it reasoned that terminating parental
rights would not harm H.B.M. in the absence of a parent-child bond. Id. at
32. As explained, infra, we do not discern an abuse of discretion in the trial
court’s statement of rationale.
As previously noted, our case law permits social workers to testify about
their observations of the parent-child bond, and it recognizes that, where
there is no evidence of a bond between a parent and child, it is reasonable to
infer that no bond exists. See Z.P., supra at 1121; K.Z.S., supra at 763.
Instantly, two caseworkers stated that they did not observe a meaningful
parent-child bond, and the certified record does not otherwise sustain a finding
that a bond existed between H.B.M. and Father. One DHS social worker, Ms.
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Bronson-Williford, testified that, while H.B.M. recognizes Father’s presence, it
is not clear whether she knows that he is her parent. Similarly, Ms. McLean,
H.B.M.’s program specialist, testified that Father’s interactions with the child
were not always beneficial. She specifically recounted how Father repeatedly
interfered with H.B.M.’s daily routines in the residential facility, including
impeding H.B.M.’s nighttime routine by refusing to leave at the end of the
allotted time. This component of the relationship caused the child distress.
For example, following her visitations with Father, H.B.M. engaged in
maladaptive behavior, including self-harm. As the trial court found the
foregoing testimony credible and persuasive, it was reasonable for it to
conclude that no beneficial bond existed between H.B.M. and Father that
would be harmful to sever.
Additionally, as it relates to Father’s assertion that the trial court
interfered with the parent-child relationship by reducing the total duration of
the visitations to twelve hours per week, the certified record confirms that the
reduction was necessary to address the effect of Father’s behavior upon his
daughter’s wellbeing. If not for Father’s persistent interference with service
providers and his thinly-veiled attempt to parlay his daughter’s residential
care into a form of supplemental housing for himself, the trial court would not
have been compelled to reduce his visitations. Hence, we reject Father’s
insinuation that, but for the revised visitation schedule, he would have formed
a healthy bond with his daughter.
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Similarly, we are not persuaded by Father’s argument that the trial court
abused its discretion in failing to attribute greater weight to what Father
characterized as H.B.M.’s small probability of adoption. In support of this
contention, Father highlights that DHS sought to terminate parental rights
even though it did not anticipate placing the child for adoption in the
immediate future. Based upon testimony that DHS had not referred H.B.M.’s
case to its adoption unit, he opines that it is unlikely that the fifteen-year-old
will ever be adopted due to her age and medical needs. However,
notwithstanding Father’s pessimistic speculation, whether or not H.B.M. is
likely to be adopted is not the determinative factor in deciding whether the
termination of parental rights would best serve her developmental, physical,
and emotional needs and welfare.
To be clear, the case law that Father cites in support of his position, In
re Adoption of B.J.R., 579 A.2d 906 (Pa.Super. 1990), actually belies his
assertion that the fears of diminished “adoptability” take precedence over the
statutory grounds for the termination of parental rights. The B.J.R. Court
stated, “Although the record offers no indication that CYS has found a
prospective adoptive family for [the child], this fact does not serve to bar the
involuntary termination of parental rights where such termination is otherwise
warranted[.]” Id. at 915. Hence, notwithstanding Father’s protestations to
the contrary, the Adoption Act simply did not require DHS to anticipate an
immediate adoption in order to pursue the termination of parental rights. In
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fact, the law specifically exempts agencies from that requirement. Subsection
2512(b) states, “an agency . . . shall not be required to aver that an adoption
is presently contemplated nor that a person with a present intention to adopt
exists.” 23 Pa.C.S. § 2512(b). Accordingly, Father’s assertion fails.
For all of the foregoing reasons, we do not disturb the court’s finding
that clear and convincing evidence supported terminating Father’s parental
rights to H.M.B. with pursuant to § 2511(a) and (b).
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/18
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