Adoption of I.R.B., Appeal of: J.R.B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF I.R.B. : PENNSYLVANIA
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APPEAL OF: J.R.B., FATHER :
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: No. 1460 WDA 2021
Appeal from the Decree Entered October 15, 2021
in the Court of Common Pleas of Erie County
Orphans’ Court at No(s): 65A in Adoption, 2021
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF T.J.B. : PENNSYLVANIA
:
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APPEAL OF: J.R.B., FATHER :
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: No. 1461 WDA 2021
Appeal from the Decree Entered October 15, 2021
in the Court of Common Pleas of Erie County
Orphans’ Court at No(s): 65 in Adoption, 2021
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J. : FILED: MAY 17, 2022
J.R.B. (“Father”) appeals nunc pro tunc from the decrees entered on
October 15, 2021, which involuntarily terminated his parental rights to his
minor daughters, T.J.B., born in August 2017, and I.R.B., born in May 2019
(collectively, “Children”). After review, we affirm the decrees.
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We begin with an overview of the facts and procedural history. After
receiving a referral with concerns about drug use, domestic violence, and
substandard housing, Erie County Office of Children and Youth (“OCY”) opened
a case in August 2020, and began providing services to Father and Children’s
mother, S.B. (“Mother”). On October 15, 2020, Father took T.J.B. to the
emergency room, where medical staff discovered that T.J.B. had three spiral
fractures to her right tibia, a dislocated heel, and suspicious foot and ankle
injuries. See N.T., 10/13/21, at Exhibit 5. Medical staff determined that the
injuries were indicative of child abuse, and police began investigating the
Children’s mother, S.B. (“Mother”), as the alleged perpetrator.1 See id.
Several weeks later, OCY learned that Father, who had been caring for
Children, returned them to Mother’s care because he had a warrant out for his
arrest and did not believe Mother abused T.J.B. See id. On November 3, 2020,
OCY obtained an emergency custody authorization to remove Children. After
searching for Children, OCY located Children back with Father. When OCY
attempted to remove Children pursuant to the emergency custody
authorization, Father took one child from the arms of a caseworker and
absconded with her. See id. Father’s mother ultimately returned the child to
OCY, and OCY placed Children in foster care. See id.
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1 Ultimately, the incident was indicated for child abuse with an unknown
perpetrator under the Child Protective Services Law, 23 Pa.C.S.A. §§ 6301-
6388. T.J.B. has repeatedly alleged that Mother caused her injuries. See N.T.,
10/13/21, at Exhibit 7.
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OCY then filed a petition to adjudicate Children dependent. See id. at
Exhibit 4. Father stipulated to most of the allegations in the petition, and the
juvenile court determined the agency proved the remainder. See id. at Exhibit
5, 6. In addition to Father’s actions in returning Children to Mother and
absconding during Children’s removal, the court found that Father had
“significant mental health issues as he admittedly defecated on [Mother’s] bed
on November 9, 2020[,] and threaten[ed] suicide when confronted with issues
regarding [Children].” Id. at Exhibit 4; see also id. at Exhibit 5, 6. It also
found Father had “significant anger management issues” based upon Father’s
aggressiveness and explosiveness towards OCY caseworkers. Id. at Exhibit 4;
see also id. at Exhibit 5, 6. Additionally, Father was violent towards Mother
in the presence of Children. See id. at Exhibit 4-6. Finally, Father did not have
stable housing; initially refused to provide a urinalysis screen; and had a
history of criminal convictions and current pending charges. See id. Based
upon these areas of concern, on November 23, 2020, the court adjudicated
Children dependent pursuant to 42 Pa.C.S.A. § 6302(1) of the Juvenile Act.
At the time of the adjudication and disposition of Children, the court
permitted Father to visit with Children under supervision once per week and
ordered Father to comply with specific goals. See id. at Exhibit 5, 6. Those
goals included participating in a mental health assessment and following all
recommendations; participating in urinalysis; obtaining a successful discharge
from programs addressing parenting, anger management, and domestic
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violence; maintaining employment; obtaining and maintaining stable housing
with working utilities; attending all medical appointments for Children; and
meeting with OCY’s caseworker at least once a month at Father’s home. See
id.
Father initially declined visits with Children but changed his mind and
began having telephonic visits2 in January 2021. See N.T., 10/13/21, at 7. He
made some initial moderate progress, but his mental health and anger
management deteriorated. On March 23, 2021, the juvenile court suspended
visits due to Father’s inappropriate comments to Children and Children’s
negative behaviors, which lasted for days following the calls. See id. Per the
order of the juvenile court, visits could resume when Father engaged in mental
health and parenting services and demonstrated an ability to control his
emotional outbursts and an ability to understand the impact of his negative
comments to Children. See N.T., 10/13/21, at Exhibit 3. However, this did not
occur, and the juvenile court changed Children’s permanency goal to adoption
at the May 21, 2021 permanency review hearing. See Exhibit 5, 6.
On June 7, 2021, OCY filed a petition seeking to terminate Father’s
parental rights. OCY sought termination under 23 Pa.C.S.A. § 2511(a)(1),
(a)(2), (a)(5), and (b). The orphans’ court appointed Steven George, Esquire,
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2 The visits occurred via telephone due to Covid-19 restrictions.
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to represent Children.3 It also appointed Steven Srnka, Esquire, to represent
Father.
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3 Our Supreme Court has instructed this Court to verify sua sponte that the
orphans’ court appointed counsel to represent Children pursuant to 23
Pa.C.S.A. § 2313(a), and if counsel served in a dual role, that the orphans’
court determined before appointment that there was no conflict between
Children’s best and legal interests. See In re Adoption of K.M.G., 240 A.3d
1218 (Pa. 2020). If a child is “too young to be able to express a preference as
to the outcome of the proceedings,” there is no conflict between a child’s legal
and best interests, and a child’s subsection 2313(a) right to counsel is satisfied
by an attorney-GAL who represents the attorney-GAL’s view of the child’s best
interests. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018). Because
children possess a spectrum of capabilities and are in a variety of
circumstances, our Supreme Court has recognized that ascertainment of a
child’s ability to express a preference is child specific. See In re P.G.F., 247
A.3d 955, 966 (Pa. 2021).
In the instant case, the court appointed Attorney George, who was Children’s
guardian ad litem (“GAL”) in their dependency case, as “legal counsel” in the
termination matter. See Orders, 6/9/21, at 1. Attorney George’s comments
during oral argument indicate that he ultimately decided to represent Children
in a dual role in the termination proceedings. See N.T., 10/13/21, at 59-60
(indicating Children were unable to direct his representation or provide a
meaningful preference due to their young ages of two and four years old and
advocating for his view that grant of the petition was in their best interest).
See N.T., 10/13/21, at 59-60. Attorney George has not participated in this
appeal.
We remind the orphans’ court that pursuant to K.M.G., the orphans’ court
“must determine whether counsel can represent the dual interests before
appointing an individual to serve as GAL/Counsel for a child.” K.M.G., 240
A.3d at 1236 (emphasis added). Nevertheless, given the judge’s familiarity
with Children’s capabilities from presiding over their dependency cases and
the judge’s implicit ratification of Attorney George’s conflict determination,
see N.T., 10/13/21, at 60, we will not elevate form over substance. See In
re T.S., 192 A.3d at 1090 n.19 (holding where children received conflict-free
representation, the Court would not deem a lack of formal appointment as a
deprivation of child’s right to counsel); c.f. Interest of A.J.R.O., 270 A.3d
563, 570–71 (Pa. Super. 2022) (vacating decree and remanding because
(Footnote Continued Next Page)
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The orphans’ court conducted a hearing on the petition on October 13,
2021. The Agency called Father and its caseworker, Daniel Grochulski, as
witnesses. It also introduced various exhibits, including orders related to
Children’s dependency matters, without objection. At the conclusion of
testimony, the orphans’ court announced its decision to grant OCY’s petition
pursuant to subsection 2511(a)(1), (a)(2), (a)(5), and (b). On October 15,
2021, the orphans’ court entered the decree involuntarily terminating the
parental rights of Father.4
After receiving permission to file an appeal nunc pro tunc,5 Father filed
a notice of appeal and a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The orphans’ court issued a Pa.R.A.P. 1925(a)
opinion addressing Father’s claims.
Father sets forth two issues for our consideration.
1. Whether the orphans’ court committed an error of law and/or
abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing evidence
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (5)?
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certified record did not indicate whether orphans’ court made the requisite
determination that six-year-old child’s legal and best interests did not
conflict).
4 Mother voluntarily relinquished her parental rights at the outset of the
October 13, 2021 hearing, and the court entered a decree terminating her
parental rights. Mother neither appealed nor participated in Father’s appeal.
5 On November 17, 2021, Father’s counsel filed an application to reinstate
appellate rights nunc pro tunc. The orphans’ court granted the application,
and Father filed his notice of appeal within the deadline set by the order.
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2. Whether the orphans’ court committed an error of law and/or
abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing evidence
pursuant to 23 Pa.C.S.A. § 2511(b)?
Father’s Brief at 4 (unnecessary capitalization omitted).
“In cases concerning the involuntary termination of parental rights,
appellate review is limited to a determination of whether the decree of the
termination court is supported by competent evidence.” In re Adoption of
C.M., 255 A.3d 343, 358 (Pa. 2021). When applying this standard, we must
accept the trial court’s findings of fact and credibility determinations if they
are supported by the record. Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa.
2021). “Where the trial court’s factual findings are supported by the evidence,
an appellate court may not disturb the trial court’s ruling unless it has
discerned an error of law or abuse of discretion.” In re Adoption of L.A.K.,
265 A.3d 580, 591 (Pa. 2021) (citation omitted).
“[A]n abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion” or “the facts could support
an opposite result.” In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012)
(citations omitted). Instead, we may reverse for an abuse of discretion “only
upon demonstration of manifest unreasonableness, partiality, prejudice, bias,
or ill-will.” Id. at 826. This standard of review reflects the deference we pay
to trial courts, who often observe the parties first-hand across multiple
hearings. Interest of S.K.L.R., 256 A.3d at 1123-24.
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In considering a petition to terminate parental rights, the orphans’ court
must balance the parent’s fundamental “right to make decisions concerning
the care, custody, and control” of his or her child with the “child’s essential
needs for a parent’s care, protection, and support.” In re Adoption of C.M.,
255 A.3d at 358 (citation omitted). Termination of parental rights has
“significant and permanent consequences for both the parent and child.” In
re Adoption of L.A.K., 265 A.3d at 591. As such, the law of this
Commonwealth requires the moving party to establish the statutory grounds
by clear and convincing evidence, which is 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
Adoption of C.M., 255 A.3d at 358 (citation and internal quotation marks
omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act. Subsection (a) sets forth eleven enumerated grounds describing
parental conduct warranting involuntary termination. See 23 Pa.C.S.A.
§ 2511(a)(1)-(11). In evaluating whether the petitioner proved grounds under
subsection 2511(a), the orphans’ court must focus on the parent’s conduct
and avoid using a “balancing or best interest approach.” Interest of L.W.,
267 A.3d 517, 524 n.6 (Pa. Super. 2021). If the orphans’ court determines
the petitioner established grounds for termination under subsection 2511(a)
by clear and convincing evidence, the court then must assess the petition
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under subsection 2511(b), which focuses on the child’s needs and welfare. In
re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
In the instant case, the orphans’ court relied upon subsections
2511(a)(2) and (b),6 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
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6 The orphans’ court also terminated Father’s parental rights pursuant to
subsections 2511(a)(1) and (a)(5). We need only agree with its decision as to
any one subsection of subsection 2511(a) and subsection (b) in order to affirm
the termination of parental rights. In re Adoption of K.M.G., 219 A.3d 662,
672 (Pa. Super. 2019) (en banc). Father did not set forth any argument in his
brief regarding subsection 2511(a)(1), thereby waiving any such challenge to
the decree on this basis. See In re: M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.
Super. 2017) (holding appellant waives claim where appellate brief fails to
provide any discussion of a claim with citation to relevant authority). While we
could affirm the entry of grounds purely based on Father’s waived challenge
to subsection 2511(a)(1), we instead address his argument under subsection
2511(a)(2) and affirm for the reasons we set forth in our analysis. Based on
our affirmance pursuant to subsection 2511(a)(2), we do not address his
argument concerning subsection 2511(a)(5).
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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 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).
In his first issue, Father argues OCY failed to present clear and
convincing evidence that he could not remedy or refused to remedy the issues
that caused Children to be without parental care and control. See Father’s
Brief at 12. In Father’s view, “he was attempting compliance with his court-
ordered treatment plan[,] and he was attempting to alleviate the concerns
that brought [Children] into care.” Id. Father points to his completion of
parenting classes, attendance at Corry Counseling, employment at various
times, and acquisition of housing at one point. See id. He acknowledges that
his progress “experienced setbacks” when he lost his residence due to a
condemnation that was beyond his control and when he became incarcerated,
but he insists he remains committed to wanting to reunify with Children. Id.
To prove the existence of grounds pursuant to subsection 2511(a)(2) by
clear and convincing evidence,
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.
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Interest of D.R.-W., 227 A.3d 905, 912-13 (Pa. Super. 2020) (citation
omitted).
Subsection (a)(2) “emphasizes the child’s present and future need for
essential parental care, control or subsistence necessary for his physical or
mental well-being,” especially “where disruption of the family has already
occurred and there is no reasonable prospect for reuniting it.” In re Z.P., 994
A.2d 1108, 1117 (Pa. Super. 2010). “Parents are required to make diligent
efforts toward the reasonably prompt assumption of full parental duties.” In
re Adoption of A.H., 247 A.3d 439, 443 (Pa. Super. 2021). Grounds for
termination under subsection 2511(a)(2) include more than affirmative
misconduct and acts of refusal; it also includes parental incapacity. Id. Thus,
sincere efforts to perform parental duties may be insufficient to remedy an
incapacity. In re Z.P., 994 A.2d at 1117.
Here, the orphans’ court acknowledged that Father did make some
attempts at regaining custody of Children and stabilizing his life. He obtained
appropriate housing, became employed, and completed parenting classes.
Trial Court Opinion, 2/4/22, at 13. However, Father did not maintain this initial
progress: he quit his job, lost his housing, and became incarcerated. Id. The
court found what really caused Father’s downfall was his failure to engage in
mental health and anger management treatment. See id. at 12-13. Father
struggled with regulating his emotions, which then had a domino effect on all
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other aspects of his life, including cooperating with OCY, engaging in services,
and parenting Children. See id. at 5-6.
There is ample support in the record for the trial court’s assessment. At
the hearing, Father acknowledged he was supposed to submit to urine
screens,7 but he stated it was hard because he lost his license and gave his
car away. See N.T., 10/13/21, at 21-22. Father did not think he needed help
with drugs and alcohol, although he then backtracked and conceded he needs
help with alcohol “sometimes” and he wants to drink when he gets “upset.”
See id. To that end, Father acknowledged he was supposed to go to a
counseling center to address his interrelated problems of mental health,
domestic violence, and anger management. See id. at 21-23. He started to
see a counselor who could address all three areas, but Father “quit going.”
Id. at 21. In Father’s words, “I was told I wasn’t doing what I was doing so I
figured why go when I’m being told I’m not doing anything[.]” Id. at 21; see
also id. at 24.
It is unfortunate that Father did not pursue such treatment, as his
mental health and significant anger clearly impeded his ability to reunify with
Children. From the beginning of Children’s dependency, Father was hostile
towards OCY. While there is no doubt that removal of one’s children is an
upsetting event, Father’s reactions have been extreme and interfered with
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7 Father had many no-shows for urine screens and several positive screens
for marijuana. See N.T., 10/13/21, at Exhibit 10.
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OCY’s efforts to engage with him. See N.T., 10/13/21, at 57; see also id. at
Exhibit 7. For example, following the court’s adjudication and disposition of
Children, caseworker Grochulski delivered the court-ordered treatment plan
to Father at his home. Father swore at Grochulski, “clenched his fist,” and told
him “to get the fuck out of there.” N.T., 10/13/21, at 43.
In December 2020, Grochulski called Father to tell him Children were in
respite care, and Father responded with threats, stating, “I’m gonna fuck you
up. [Grochulski], I’m gonna fuck you up for taking my girls. I’m gonna tell the
judge I’m gonna fuck you up. You’re the third one on my list I’m gonna fuck
up.” Id. at Exhibit 7; see also id. at 45. Father followed up with a text
message with further threats. See id. at Exhibit 7. He also threatened other
caseworkers and Grochulski’s supervisor, and in April 2021, he twice posted
threats on social media. See id.
Father’s threatening behavior has resulted in OCY’s reporting Father’s
threats to police three times. See id. Despite Grochulski’s concerns for his
own personal safety, he continued to attempt to engage Father. See id. at
47. However, Father’s mental health continued to deteriorate. See id. at 44-
46, 57. For example, Father purchased new bedroom furniture for Children,
but on April 20, 2021, he texted Grochulski that he was going to burn the beds
in his backyard. See id. at Exhibit 7; see also id. at 27-28.
Father’s erratic behavior spilled over to his interactions with Children.
For example, he told Children during a visit that he got a new apartment and
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bedroom suites for them, but during a visit a week later, he told them he was
going to let their foster parents keep them and he would say a final goodbye
to them. Id. at Exhibit 7. It also apparently affected his interactions with
others, including his non-dependent son. The mother of that child filed a
petition pursuant to the Protection from Abuse (“PFA”) Act, 23 Pa.C.S.A.
§§ 6101-6122. In October 2021, following a PFA hearing, an Erie County judge
entered a three-year PFA order against Father protecting his son and his son’s
mother. See N.T., 10/13/21, at 17-19.
On June 10, 2021, about three weeks after the juvenile court changed
Children’s permanency goal to adoption, Father was arrested and jailed on
various charges. See id. at Exhibit 8; see also id. at 14-17. He was released
on bond in early August 2021, and “[t]hirty-something hours” later, he was
jailed on another set of charges. Id. at 16. At the time of the hearing to
terminate his parental rights, Father remained incarcerated at Erie County Jail
with both sets of charges still pending.8 By his own admission, Father has not
addressed his anger because he is “always in the hole or . . . in max,” where
the prison will not allow him to engage in programs. Id. at 30. At the time of
the hearing, he was out of solitary confinement, but was “locked down 23 out
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8 The first set of charges included the misdemeanor crime of terroristic threats.
The second set of charges included the felony crimes of criminal trespass and
intimidation of a witness, and the misdemeanor crime of terroristic threats.
See id. at Exhibit 8. The alleged victims on the second set of charges was the
mother of Father’s son and a person Father contends is Mother’s ex-finance.
See id. at 16-17.
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of 24 hours” in the “max.” Id. at 37. Nevertheless, when his attorney asked
him if he would investigate participating in services when he gets out of
maximum security, Father responded, “Not in the jail, no.” Id. at 37.
Father’s testimony solidified the depths of his problems and
demonstrated his lack of progress. Father admitted that during Children’s
dependency hearings, he “wasn’t really listening.” N.T., 10/13/21, at 24. As
he testified, “All I was thinking about was my girls like being gone. I wasn’t
paying attention to anything you guys had to say.” Id. He continued, “And
then whenever I would get letters, I would just rip it up and throw it in the
toilet.” Id.; see also id. at 23 (repeating that when he got something from
OCY, he “would just rip it up or burn it”) Id. at 25. Father admitted he knew
OCY wanted him to follow the court order, but he “didn’t think that was
important.” Id. at 28.
Prior to going to jail, in lieu of complying with the court-ordered
treatment to address his anger, Father instead “just stayed home and walked
[his] dog,” and “smoked weed to keep [him] calm.” Id. at 31. This strategy
was not successful. When OCY’s attorney asked Father what he had done since
OCY removed Children almost a year prior, Father responded,
Everything what I thought you were supposed to do to take care
of your kids, not by going and taking a drug test because you’re
being told you’re doing this, I went and got a two-bedroom
apartment. I went and got them their beds. I did everything. We
painted their whole freak – the whole apartment, you know what
I mean. Took out – everything that was in the food pantry, I took
it out and turned it into like a little doll house and then all of a
sudden, I looked in the ceiling part of the kitchen and I saw black
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and then I seen like that falling through that was all mold between
up in the ceiling and landlord would not fix it, would not fix it. So
I’m like, all right, I’m done paying rent until you fix it. And then
that started bothering me and then I got shot out, I just lost my
mind.
Id. at 26. By “shot out,” Father explained that he “was just getting angry and
I don’t know, I couldn’t control my body, how I felt.” Id. at 27. Father
estimated this was in the spring of 2021. Id. He also admitted that it even
impacted his ability to work, stating that he “just had a hard time working”
and had to quit a job because Mother’s sister worked there and “all [he] could
see was [his] kids or [Mother].” Id. at 35.
Father acknowledged he was not able to parent Children while he was
in jail. By his assessment, he needed one to two months after he was
eventually released to work and save up money for an apartment before he
was ready to parent. See id. at 32. Father admitted he had mental health
issues and needed anger management. See id. at 32 (“I do lose it, yeah.”);
see also id. at 34. But Father denied that his anger had an impact on his
ability to parent Children, particularly now that Mother relinquished her
parental rights to Children, and he knew T.J.B. would no longer get abused.
See id. at 33-34. He seemed to think his anger problem would disappear,
stating, “I don’t think I should have to complete anger management and all
that stuff just for my girls. I was doing good until all this start happening.”
Id. at 34. Despite his earlier admission that he knew he needed to undergo
treatment for his anger, later in the hearing Father insisted all he should have
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to do to regain custody was to “[w]ork and get stuff for [his] kids,” because
“that’s what a parent does, you buy stuff for your kids, you take care of them.”
Id. at 36.
All of this evidence is sufficient to support the orphans’ court’s
conclusion that Father has been and will be unable to parent Children due to
his interrelated issues of mental health, inability to control his anger, and
propensity to engage in intimate partner violence. OCY proved Father was
unable to control his emotional and behavioral state. This incapacity along
with his refusal to obtain treatment means the orphans’ court was well within
its discretion to conclude OCY established grounds to terminate Father’s
parental rights under subsection 2511(a)(2).
In his second issue, Father contends there was insufficient evidence
proving that termination of his parental rights served the needs and welfare
of Children. See Father’s Brief at 14-15. His argument is brief; he argues
Children have high levels of needs and his consistent participation in Children’s
medical appointments when he was able, combined with his act of bringing
T.J.B. to the emergency room at the outset of the case, demonstrated his
willingness and ability to meet Children’s needs. See id.
As noted previously, subsection 2511(b) requires the orphans’ court to
“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 “intangibles
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such as love, comfort, security, and stability.” T.S.M., 71 A.3d at 267 (citation
and internal quotation marks omitted). Our Supreme Court has made clear
that subsection 2511(b) requires the orphans’ court to consider the nature
and status of bond between a parent and child. In re E.M., 620 A.2d 481,
484-85 (Pa. 1993). Parental rights may be terminated notwithstanding the
existence of a parent-child bond. Id. Courts must examine the effect upon a
child of severing the bond, particularly whether termination of parental rights
will destroy a “necessary and beneficial” relationship and cause a child to
suffer “extreme emotional consequences.” Id.“While a parent’s emotional bond with his or her child is a major aspect
of the [s]ubsection 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.” In re M.M., 106 A.3d 114, 118 (Pa. Super. 2014).
“In 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.” Id. (brackets omitted). In determining needs and welfare, the court
may properly consider the effect of the parent’s conduct upon the child and
consider “whether a parent is capable of providing for a child’s safety and
security or whether such needs can be better met by terminating a parent’s
parental rights.” Interest of L.W., 267 A.3d at 524 (citation omitted).
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Furthermore, our Supreme Court has stated, “[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.” In re T.S.M., 71 A.3d at 268 (citation omitted). The Court directed
that, in weighing the bond considerations pursuant to subsection 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 an obligation to see to their healthy development quickly. When
courts fail . . . the result, all too often, is catastrophically maladjusted
children.” Id.
The orphans’ court found Children’s needs were best served by
terminating Father’s parental rights and pursuing adoption with their foster
parents. As the orphans’ court reasoned, Children “have difficulty forming an
attachment to anyone, let alone [Father], who was unable to care for them
when they were in his custody.” Trial Court Opinion, 1/4/22, at 13-14.
Terminating Father’s parental rights will enable Children to obtain permanency
with their foster parents, who have demonstrated an ability to meet Children’s
needs. See id.
The record supports the trial court’s findings and conclusions. Both
Children suffered from significant behavioral issues and were diagnosed with
reactive attachment disorder. See N.T., 10/13/21, at 51; see also id. at
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Exhibit 11. As the caseworker explained, this meant neither child had a secure
and healthy emotional bond with a primary caregiver. Id. at 51.
They both also exhibited aggressive behavior. I.R.B., who was two years
old, was working with early intervention and family-based mental health
services in her foster home and at daycare. Id. at 49-50, 52. The caseworker
testified it is unusual for a child that young to be involved with mental health
services, but her behavior has been “out of control” and beyond typical difficult
toddler behavior. See id. at 49-50. She is defiant at daycare and exhibited
aggressive behaviors, such as hitting, throwing toys at other children, spitting,
kicking, and biting. See id. at 49.
Like her sister, four-year-old T.R.B. has had various mental health
services working with her in her foster home and at daycare. Id. at 52. At
daycare, T.R.B. was hitting, spitting, and using profanity towards staff. Id.
One time she mimicked stabbing a teacher; on other occasions, her
classmates had to leave the room due to her behavior. Id. at 52. She requires
“constant redirection” and has exhibited tantrums lasting for an hour. Id. at
53. Fortunately, her tantrums have decreased, and she has shown some
improvement. Id.
Although Children’s behaviors are challenging, their foster parents have
engaged with services and are committed to meeting their needs. See id. at
50, 53. Children are placed in the same pre-adoptive foster home. Id. Despite
Children’s difficulties in attaching to caregivers, they look to their foster
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parents to meet their needs and for comfort, and their foster parents respond
with love and affection. See id. at 54. In caseworker Grochulski’s opinion,
terminating Father’s rights will not be detrimental to Children and in fact will
benefit them insomuch as they can obtain security with their foster parents.
Id. at 55.
We discern no abuse of discretion in the conclusion of the orphans’ court
that termination served Children’s needs and welfare. Both Children were
young when OCY removed them from Father’s care.
T.R.B. experienced significant trauma and physical abuse. Although
Father did bring her to the hospital and may have attended some medical
appointments,9 he subsequently took no steps to protect T.R.B. from Mother,
and did not address his own issues so he could reunify with Children and help
T.R.B. process her trauma. Instead, his erratic comments to Children and his
unstable behavior led to suspension of his visits.
At the time of the hearing in October 2021, he had not had contact with
Children in six months. Meanwhile, Children began to experience security and
stability with their foster parents, who have responded to the effects of
Children’s trauma with love and support. Given the evidence establishing the
lack of a secure bond with Father and Children’s need to for stability and
____________________________________________
9Father asserts this twice in his brief but provides no citation to the record in
support.
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security, the trial court was well within its discretion to conclude that
termination served Children’s needs and welfare. See Interest of L.W., 267
A.3d at 524.
Having found that the orphans’ court did not err or abuse its discretion
in terminating Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(2) and
(b), we affirm the decrees.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2022
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