In the Interest of: H.M.M., Appeal of: R.M., Jr. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: R.M., JR., FATHER :
:
:
:
: No. 1553 MDA 2018
Appeal from the Decree Entered August 17, 2018
In the Court of Common Pleas of Centre County Orphans' Court at No(s):
4306
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 13, 2019
R.M., Jr. (Father) appeals from the decree involuntarily terminating his
parental rights to his minor child, H.M.M. (born March 2017) (Child), pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b) of the Adoption Act. 1 After
careful review, we affirm.
We adopt and summarize the trial court’s recitation of the facts, which
is supported by the record. See Trial Court Opinion, 10/16/18, at 2-9. We
note, briefly, by way of background, the following. Centre County Children
and Youth Services (“CYS”) has been involved with the family since 2010,
when Mother became pregnant with R.M., the couple’s first child. CYS
caseworkers attempted to engage parents in preventative services, due to the
fact that Father was a registered sex offender with convictions for sexual
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1That same day, the court terminated the parental rights of L.M. (Mother).
Mother has not appealed the termination of her parental rights.
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* Retired Senior Judge assigned to the Superior Court.
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assault, aggravated indecent assault, two counts of indecent assault, and two
counts of corruption of minors. While parents participated briefly with in-
home parenting services, they eventually refused further assistance.
Following R.M.’s birth in July 2010, she was immediately taken into
emergency custody by CYS caseworkers. In addition to Father’s convictions,
there were concerns regarding Mother’s physical and cognitive disabilities, and
her failure to acknowledge the potential risk to R.M. posed by Father. Despite
the entry of an aggravated circumstances order against Father, because
Father lived with Mother, he was allowed to participate in reunification services
along with Mother.
At that time, the services consisted of parenting education sessions and
individual and family sessions. Mother was not able to prepare bottles or
change diapers without direction from another adult, and required assistance
handling R.M. and understanding her needs. Mother was unable to retain this
information even when it was carefully explained to her. With regard to
Father, caseworkers had significant concerns regarding his mental health and
stability, his failure to appropriately manage his seizure disorder, and his
failure to take prescription medications to treat his anger and mood disorders.
Reunification services were provided for approximately twelve months,
but, after parents’ failure to make significant progress, services were
discontinued and a petition to involuntarily terminate Father’s and Mother’s
parental rights with respect to R.M. was filed. Rather than having their rights
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involuntarily terminated, Mother and Father voluntarily relinquished their
parental rights to R.M., who was later adopted by her foster family.
In September 2015, CYS caseworkers learned that Mother was pregnant
with a second child. Ongoing assessments by caseworkers revealed that little
had changed regarding parents’ situation. Parents were living with the child’s
maternal grandparents (“Maternal Grandparents”), but based upon
caseworkers’ assessments of the interactions between parents and Maternal
Grandparents, there were no adults in the home who could ensure the safety
of a child.
S.A.M., born in March 2016, was immediately taken into emergency
custody by CYS caseworkers. S.A.M. was placed into kinship foster care in
the same home as her older sister, R.M. Following the filing of a dependency
petition, S.A.M. was adjudicated dependent, and her placement goal identified
as adoption. That same day, an aggravated circumstances order was entered
against Father due to his prior convictions for sexual offenses against minors,
status as a sexually violent predator, and related registration and reporting
requirements. Reunification services were not provided to Father, although
he and Mother were allowed supervised visitation with S.A.M.
Both parents struggled, during visitation with S.A.M., to provide for her
needs and accomplish basic child care tasks, including changing her diaper
and clothes, recognizing her needs, and feeding her. Additionally, in October
2016, Father advised CYS caseworkers that he had stopped treating with his
sex offender counselor at Project Point of Light, and would begin seeing a new
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counselor. However, he refused to sign a release to allow CYS to gain more
information regarding his treatment.
While S.A.M.’s case was still pending, CYS caseworkers received a
referral that Mother was pregnant with a third child. However, both Mother
and Father repeatedly denied that Mother was pregnant. Parents canceled a
March 2017 visitation with S.A.M., claiming that Mother was scheduled to have
a tubal ligation at Hershey Medical Center. However, Hershey Medical Center
then informed CYS caseworkers that Mother had given birth to Child through
a scheduled Cesarean section. Shortly after Child’s birth, CYS caseworkers
took her into emergency custody, and she was placed in kinship foster care
with her biological sisters.
On March 21, 2017, CYS filed a petition to terminate Mother’s and
Father’s parental rights with regard to S.A.M. The petition was eventually
granted, following a hearing, on January 17, 2018.2 With regard to Child, she
was adjudicated dependent in March 2017, and her permanency goal was
established as adoption. An aggravated circumstances order was once more
entered against Father. Parents were offered bi-weekly visits for one hour,
separate from visits with S.A.M., but parents chose to visit both children at
the same time.
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2Both Mother and Father appealed the termination of their parental rights,
and this Court affirmed the termination decrees. See In re S.A.M., 195 A.3d
1026 (Pa. Super. 2018) (unpublished memorandum).
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In March 2018, CYS filed petitions to terminate Mother’s and Father’s
parental rights to Child. The court convened a hearing on the petitions on
August 14, 2018. Father, represented by counsel, testified on his own behalf.
Child was represented by Parviz Ansari, Esquire, as legal counsel.3
Elena Taylor, CYS caseworker, testified that, since Child’s placement,
Father’s sex offender counseling attendance has remained inconsistent. As
noted above, for some time he refused to sign necessary release forms.
Following Child’s birth, Father did sign a release, but then ceased treating with
that counselor. The counselor informed caseworkers that he had seen Father
on seven occasions, but had not received any information from Father’s
previous counselor. Subsequently, Father informed caseworkers he had
returned to Project Point of Light, but once more refused to sign a release.
Additionally, Father was not managing his seizure disorder, and continued to
suffer from seizures. Father refused to release information to caseworkers
regarding his medical treatment or whether he had received a clearance from
his doctor that he was able to safely hold Child.
Visitations with Child continued to show the same issues that Father had
had in visitation with R.M. and S.A.M., namely, that he was not able to
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3 Attorney Ansari had been appointed as both legal counsel and guardian ad
litem for Child. See N.T., 8/14/18, at 5. He represented to the court that,
given the young age of the child, there was no conflict between Child’s legal
and best interests. Id.; see also In re T.S., 192 A.3d 1080 (Pa. Super.
2018) (noting that where there is no conflict between child’s best and legal
interests, a guardian ad litem may serve dual roles and still satisfy the child’s
statutory right to counsel in involuntary termination proceedings).
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understand when Child was hungry, tired, or needed a diaper change.
Further, due to his seizure disorder, Father could not hold Child. Parents had
not stabilized their living situation; between June 2017 and August 2018, they
lived in a shelter in Tyrone, Pennsylvania; in Altoona, Pennsylvania with
maternal grandparents; and planned to move to Osceola Mills, Pennsylvania,
in the early fall.
Ms. Taylor further testified that Child is doing well in her foster home, is
on track developmentally at the time of the hearing, and is walking and
talking. Child is strongly bonded with her foster mother, and looks to foster
mother for support instead of her biological parents. Child refers to foster
mother as “mama” or “mom.” Additionally, Child is placed with her two
biological siblings and is bonded with them as well. Ms. Taylor believed that
the termination of Father’s parental rights would allow Child the opportunity
for permanency, would not have a detrimental impact on Child, and was in
Child’s best interests.
Father testified that he denied Mother’s pregnancy because he did not
believe it himself. Father claimed he was reluctant to sign releases of
information for CYS because he had previously had his identity stolen and had
“gotten weird letters in the mail.” Father claimed he was attending counseling,
and asserted that his lapses in attendance were due to his inability to receive
medical rides. Father denied that he and Mother were incapable of caring for
Child, although he admitted he had never spent any time alone with Child.
Father also contended that his sister should be considered as an adoptive
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resource, though she had never been presented as a resource prior to the
termination hearing.
At the conclusion of testimony, the orphans’ court terminated Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (a)(5), (a)(8), and (b).
Father timely appealed and filed a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Father raises the following issues for our review:
1. Did the trial court incorrectly find clear and convincing evidence
existed to terminate Father’s parental rights pursuant to 23
Pa.C.S.A. [§] 2511(a)(2), (5), and (8) where no assessment[] was
conducted, but instead the Agency merely relied on the lack of
progress Father made in a prior case years before?
2. Did the trial court incorrectly determine that sufficient evidence
was presented to terminate Father’s parental rights?4
See Father’s Brief at 2 (unnecessary capitalization and suggested answers
omitted).
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4 Father’s statement of errors complained of on appeal phrases this issue, “The
[trial court] erred in terminating Father’s parental rights where insufficient
evidence was presented to meet the requirements of the grounds submitted.”
See Pa.R.A.P. 1925(b), 9/14/18, at 1. As Father does not state clearly that
he is challenging the court’s Section 2511(b) findings, he risks waiver of this
issue. See Krebs v. United Ref. Co. of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (stating that a failure to preserve issues by raising them
both in the concise statement of errors complained of on appeal and statement
of questions involved portion of the brief on appeal results in a waiver of those
issues); see also In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super.
2013) (declining to address subsection 2511(b) where the appellant did not
make an argument concerning that subsection). However, as discussed
supra, even if not waived, this argument is without merit.
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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
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).
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). As CYS
argues that it proved by clear and convincing evidence that grounds for
termination existed under 23 Pa.C.S.A. § 2511(a)(2), we focus our analysis
on subsection (a)(2) and (b).
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The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
(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 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.
To satisfy the requirements of Section § 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
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parental incapacity that cannot be remedied. 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. Id.Here, Father argues that the orphans’ court erred in granting the petition
and terminating his parental rights because CYS did not prove the presence
of the conditions leading to termination at the time the petition was filed, but
relied on evidence from years earlier. See Father’s Brief at 6-7. Father argues
that, despite the entry of an aggravated circumstances order against him, he
was entitled to reunification services because he was provided such services
during the pendency of R.M.’s dependency. Id. at 7. Father argues that,
because CYS failed to offer reunification services, the agency was not in a
position to adequately determine the abilities or deficiencies of Father relative
to Child. Id. at 8.
Father raised this same issue in his appeal from the termination of his
parental rights to S.A.M. In that case, a prior panel of this court observed
that:
Father claims that the finding that termination was proper under
Section 2511(a) was based on information from Father’s
involvement with CYS with a prior child and that CYS failed to
present evidence that he has current inability to parent Child. We
disagree.
Here, the trial court found aggravated circumstances as to Father
based on his convictions. Aggravated Circumstances Order, filed
March 17, 2016; see 42 Pa.C.S.A. § 6302 (defining aggravated
circumstances). The trial court further found that CYS need not
engage in reasonable efforts to reunify Father and Child. See
Aggravated Circumstances Order.
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The trial court noted that the “record is replete with testimony
that most all of the concerning circumstances and conditions
existing when services were provided for R.M. continued to exist
on the birth of S.A.M. and thereafter.” TCO at 13. The trial court
reasoned that termination was proper, in part, because Father
refused to cooperate with CYS by not providing information
regarding his psychological and medical treatment, “despite many
concerns about his mental and physical conditions and how those
conditions impact his ability to parent.” Id. at 12. The trial court
further noted that Father failed to show “progress with respect to
the limitations on his ability to meet the basic needs of an infant
or young child despite the services provided to him during
supervised visits.” Id. at 12-13.
The trial court’s factual findings are supported by the record, and
the findings support the trial court’s conclusion that Father had a
continued incapacity that caused Child to be without parental care,
control or subsistence, and that the cause of the incapacity could
not be remedied. The trial court did not abuse its discretion in
finding grounds for termination of parental rights existed under
Section 2511(a)(2).
In re S.A.M., 195 A.3d 1026, at *4-5 (Pa. Super. 2018) (unpublished
memorandum).
In the instant case, the situation remains almost exactly the same as it
did in January 2018 when Father’s rights to S.A.M. were terminated, and in
August 2018, when the termination decree was affirmed. Father has
continued to refuse to cooperate with CYS, has not shown that he is treating
his psychological and medical conditions, and has not progressed with respect
to the limitations on his ability to meet the basic needs of an infant. Due to
the aggravated circumstances order, CYS was not required to provide
reunification services to him, despite the fact that they were offered with
respect to Father’s oldest child. See also In re D.C.D., 105 A.3d 662, 672
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(Pa. 2014) (noting that reasonable reunification efforts are unnecessary to
support termination of parental rights pursuant to Section 2511(a)(2) and
(b)).
Accordingly, we discern no error in the orphans’ court’s finding that
competent, clear, and convincing evidence supported the termination of
Father’s parental rights pursuant to Section 2511(a)(2), based upon his
continued incapacity – his status as a registered sex offender, his inability to
meet the basic needs of an infant, and his failure to provide proof he is treating
his psychological and medical conditions – that resulted in Child being without
essential parental care, the cause of which “cannot or will not be remedied.”
See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
Next, we must consider whether Child’s needs and welfare will be met
by termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “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 a child. Id.We have stated:
[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 the relationships is
also important to a child, for whom severance of close parental
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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.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Additionally, the court may emphasize the safety
needs of a child. See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
Where there is no evidence of a bond between the parent and child, it is
reasonable to infer that no bond exists. Id. “[A] parent’s basic constitutional
right to the custody and rearing of . . . her child is converted, upon the failure
to fulfill . . . her parental duties, to the child’s right to have proper parenting
and fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal
citations omitted).
Here, Father argues that the court erred in terminating his parental
rights because there was insufficient evidence that termination best suited the
needs and welfare of Child. See Father’s Brief at 8-9. Father contends that
the evidence established a bond between Child and Father, and that no
bonding analysis was conducted. Id. Father seems to imply that the court
did not consider the parent/child bond in rendering its decision. Id. at 9.
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Initially, we note that Father’s characterization of the evidence and the
court’s analysis is inaccurate. In the instant case, the court observed that:
In addition to assistance from [CYS], the foster mother has
facilitated contact and visits between [Child] and Mother and
Father. Nevertheless, there is no evidence of a reciprocal bond
between Father and [Child]. Thus, the [c]ourt determined that
the termination of Father’s parental rights would not destroy an
existing relationship necessary and beneficial for the child.
See Trial Court Opinion, 10/16/18, at 14-15. The record supports this
conclusion. Child has been in care since her birth; she knows Father only
through supervised visitation in tandem with her sister, S.A.M., biweekly for
one hour at a time. During these visits, Father is unable to physically hold or
care for Child. Child does not look to Father for her needs during visits, but
to her foster mother. She does not refer to Father as “dad” or any other
specific name. Ms. Taylor testified that Child does not know Father as her
father at this time. Father denied this, and testified that Child does call him
“daddy” because S.A.M. calls him “daddy.” Regardless, there is no other
evidence of record to support the contention that any kind of bond exists
between Father and Child. See K.Z.S., 946 A.2d at 763 (where there is no
evidence of a bond, it is reasonable to assume no bond exists).
In contrast, the orphans’ court observed
[Child] is developing well in her foster home and was on track
developmentally at the time of the August, 2018 hearing. She
was walking and beginning to talk at that time. [Child] has a very
good relationship with her foster mother. [Child] calls her foster
mother “Mama” or “Mom” and looks to her for guidance and when
she needs something. [Child’s] foster mother has facilitated
supervised visits with Mother and Father. During the visits, when
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[Child] was distressed or needed comfort, she went to her foster
mother support instead of Father (or Mother). [Child’s] foster
mother has provided for her physical and emotional needs since
her discharge from the hospital just after her birth. [Child] is
bonded with her full biological siblings, with whom she has lived
since being released from the hospital following her birth. [Child]
has also bonded with the other two children in her foster mother’s
home. [Child’s] foster home is the only home she has ever known.
See Trial Court Opinion, 10/16/18, at 9-10 (citations to the record omitted).
Accordingly, the court concluded that it was in Child’s best interests to remain
in her foster home, where she could achieve stability, permanency, and where
her physical and emotional needs were met.
We discern no abuse of discretion in that conclusion. Accordingly, clear
and convincing evidence supports the orphans’ court’s termination of Father’s
parental rights under Sections 2511(a)(2) as well as the Section 2511(b)
findings that there was no bond between Father and Child, and that adoption
would best serve Child’s needs and welfare. See Z.P., 994 A.2d at 1126-27;
K.Z.S., 946 A.2d at 763.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/13/2019
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