In the Interest of: J.C.B., A Minor ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.C.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: W.D.B., FATHER :
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:
:
: No. 2708 EDA 2018
Appeal from the Decree Entered August 17, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): 51-FN-002329-2016,
CP-51-AP-0000096-2018
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED APRIL 1, 2019
W.D.B. (Father) appeals from the decree involuntarily terminating his
parental rights to his minor child, J.C.B. (born May 2008) (Child), pursuant to
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act.1
The trial court’s statement of facts and procedural history is supported
by the record. See Trial Court Opinion, 10/24/18, at 1-3 (internal citation to
the record omitted); see also Petition for Involuntary Termination of Parental
Rights, 6/28/18, Exhibit A.2
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1 K.B. (Mother) voluntarily relinquished her parental rights to Child, and the
court terminated her rights by decree on August 17, 2018. Mother has not
appealed.
2 Father stipulated to the admission and contents of the statement of facts at
the involuntary termination hearing. See N.T., 8/17/18, at 13-14, 20.
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On September 23, 2016, Philadelphia Department of Human Services
(DHS) social workers received a substantiated General Protective Services
(GPS) report regarding the family. The report alleged that Mother and Father
were not providing Child with adequate food, nutrition, medical, and dental
care. The report also alleged that the home was infested with fleas and Child
suffered from flea bites over his entire body; Mother had been diagnosed with
anxiety, Father had been diagnosed with schizophrenia, and neither parent
was receiving mental health treatment; and both parents were smoking
marijuana.
On October 1, 2016, social workers attempted a home visit. Mother
refused to allow anyone into the home. DHS received a court order to allow
entry to the home. Prior to accessing the home, social workers learned that
on November 10, 2016, Child’s aunt, P.B. (Maternal Aunt) had entered the
home and found it in a deplorable condition with trash, cat feces, and clutter
throughout the home, and no bed for Child. Following Maternal Aunt’s
confrontation with Father, the Philadelphia Police Department was contacted,
arrived at the home, and deemed it unsafe for Child. Child was placed in the
care of Maternal Aunt.
On November 11, 2016, DHS social workers conducted a home visit.
Although Father had attempted to clean the home, it was still trash-filled and
did not have a bed for Child. Father admitted to being diagnosed with
schizophrenia, for which he was not receiving treatment; Mother was
hospitalized, diagnosed with anxiety and agoraphobia, and hoarded
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possessions in the home. DHS implemented in-home services. During a
follow up visit on November 22, 2016, Community Umbrella Agency (CUA)
social workers observed cockroaches crawling throughout the home, stray
cats in the home, clutter strewn throughout the home, and still no bed for
Child. CUA social workers learned that Father had a history of arrests for
behavioral misconduct, and that stay-away orders had been issued against
Father regarding his youngest child, who lived in New Jersey with Father’s
wife, and there was domestic violence between Mother and Father. On
December 6, 2016, DHS and CUA attempted to hold a case plan meeting.
However, Father became agitated that Child had not been returned to his care,
and left the meeting.
On February 6, 2017, Child was adjudicated dependent. On February
28, 2017, CUA held a Single Case Plan (SCP) meeting and the objectives
identified for Father were to: (1) ensure that the home is cleaned and vermin
free; (2) participate in mental health therapy and comply with therapy
recommendations; and (3) participate in family functional therapy.
A permanency review hearing was held in March 2017; Child was to
remain as committed and visitation was to be at Child’s discretion. Father
was to complete a parenting capacity evaluation (PCE). On April 3, 2017, Dr.
Dana P. Reinhold, Ph.D., conducted a psychological exam of Father and made
the following recommendations that: (1) Father receive individual
psychotherapy; (2) comply with the recommendations of psychiatric
treatment; and (3) receive a court-ordered PCE. On December 5, 2017, CUA
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revised the SCP. The new objectives identified for Father were to: (1)
participate in mental health treatment; (2) submit to a Behavioral Health
System (BHS) assessment; (3) follow the recommendations of the BHS
assessment; and (4) participate in a PCE.3 As of December 2017, Father had
not attended mental health treatment or completed a PCE.
On June 28, 2018, DHS filed a petition to terminate Father’s parental
rights. The court held a hearing on the petition on August 17, 2018.4
Vicki Paulino, CUA case manager, testified that she has been the case
manager for approximately a year and, in that time, SCP objectives were
conveyed to Father. See N.T., 8/17/18, at 6-11. Following a court-ordered
psychological evaluation, the SCP objectives were that Father attend
psychotherapy, complete a psychiatric evaluation with medication, and
complete a parenting capacity evaluation. Id. at 11-12. However, Father
informed Ms. Paulino that he did not need therapy. Id. at 12. Father did not
participate in a psychiatric evaluation or complete a parenting capacity
evaluation. Id. He has never been fully compliant with his objectives. Id. at
15.
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3 At some time prior to this meeting, Father had posted on the internet a
“prayer” seeking divine guidance and approval to murder various persons
involved in the case, including DHS workers, judges, court officers, counsel,
and Maternal Aunt. Stay-away orders were issued and the posting was
entered into evidence at the termination hearing.
4 Child was represented by Megan Helfrich, Esquire, as guardian ad litem and
by Craig Sokolow, Esquire, as legal counsel. Accordingly, the requirement
that child have legal counsel at a contested termination hearing was met. See
In re L.B.M., 161 A.3d 172 (Pa. 2017).
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Child resides with Maternal Aunt, and at the time of the hearing, had
been in care for eighteen months. Id. at 6. Child’s needs are met by his
Maternal Aunt, and he wishes to be adopted by her. Id. at 7, 14-16. Since
August 2017, Child has not seen Father; visits were ordered at Child’s
discretion and Child did not wish to visit. Id. at 16-17. Child informed Ms.
Paulino that he is afraid to visit with Father, as Father used to hit him, and did
not feed him. Id. at 17. Ms. Paulino testified that Child does not have a
healthy bond with Father; that he does not view Father as a parental figure;
that Child would not be irreparably harmed by the termination of Father’s
parental rights; and that Child would be harmed by removal from Maternal
Aunt’s home. Id. at 17-18. Child has a very positive bond with Maternal Aunt
and consistently tells Ms. Paulino he wishes to be adopted by Maternal Aunt.
Id. at 18. Father has not attempted to contact Child since the case began.
Id. at 19.
Father did not testify. During the termination hearing, Father left the
courtroom during Ms. Paulino’s testimony. Id. at 13. Father’s counsel
conveyed that Father did not wish to participate in the hearing for religious
and constitutional reasons, and that Father did not recognize the legitimacy
of the court. Id. at 13. After being advised of the consequences of his actions,
Father chose to leave. Id. at 13. Counsel stipulated that the CUA social
worker would testify consistently with DHS’s statement of facts as submitted
in the termination petition, and that Erica Williams, Psy.D., a psychologist who
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had prepared a parenting capacity evaluation of Father in August 2018, would
testify consistent with her report. Id. at 13-14, 20.
At the conclusion of testimony, the trial court terminated Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (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).5
On appeal, Father raises the following issues:
A. Whether the trial court committed reversible error when it
involuntarily terminated [F]ather’s parental rights where such
determination was not supported by clear and convincing evidence
under the Adoption Act[,] 23 Pa.C.S.A. § 2511(a)(1), (a)(2),
(a)(5), and (a)(8)?
B. Whether the trial court committed reversible error when it
involuntarily terminated Father’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental[,] physical[,] and emotional needs of
the child as required by the Adoption Act[,] 23 Pa.C.S.A. §
2511(b)?
C. Whether the trial court erred and abused its discretion when it
changed the goal to adoption because the goal of adoption was
not in the best interest of the child?
See Father’s Brief at 3-4 (answers and unnecessary capitalization omitted).
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5 Father filed his notice of appeal and Pa.R.A.P. 1925(b) statement of errors
complained of on appeal pro se. On November 16, 2018, this Court remanded
the matter to the trial court to determine whether counsel had abandoned
Father. On December 3, 2018, the trial court determined that counsel had
abandoned Father, and appointed new counsel, who filed an amended
statement of errors complained of on appeal on December 14, 2018. This
statement of errors raised two issues challenging the trial court’s findings
under Section 2511(a), and challenging the trial court’s Section 2511(b)
determinations. See Pa.R.A.P. 1925(b), 12/14/18, at 1.
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Initially, we must determine whether Father has preserved all of his
issues for our review. Where an appellant does not preserve his issue by
raising it in his concise statement of errors complained of on appeal, that issue
is waived on appeal. See Krebs v. United Refining Co. of Pennsylvania,
893 A.2d 776, 797 (Pa. Super. 2006). In his brief, Father purports to
challenge both the termination of his parental rights and the permanency goal
change. See Father’s Brief at 3-4. However, Father did not preserve his
challenge to the goal change in his statement of errors complained of on
appeal. Accordingly, he has waived this issue for purposes of appeal. Krebs,
893 A.2d at 797.6
We review cases involving the termination of parental rights according
to the following:
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
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6 We additionally note that our Court has reiterated that Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (filed June 1, 2018), requiring the quashal
of appeals due to the failure to file separate notices of appeal or separate
dockets, will be applied prospectively and uniformly by this Court. See Matter
of M.P., --- A.3d ---, 2019 Pa. Super. 55 (Pa. Super. 2019). In involuntary
termination cases where a parent wishes to challenge both the termination
and the goal change, and where separate dockets exist for the adoption and
dependency matters, the proper procedure is to file a separate notice of appeal
from each docket. Id. at * 2. Father, whose notice of appeal was filed in
September 2018, filed a notice of appeal solely from the termination docket.
However, because Father initially filed pro se, and because Father first
challenged the goal change in his brief, we decline to quash pursuant to
Walker and M.P. Nevertheless, we reiterate that proper appellate procedure
should be followed. Id. at * 2.
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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).
Instantly, we focus our analysis on subsection (a)(2) and (b). 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
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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
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.
Father argues that there was not clear and convincing evidence to
support the termination of his parental rights under 23 Pa.C.S.A. § 2511(a)(2)
because he attempted to comply with his objectives by attending an SCP
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meeting and a court-ordered psychological evaluation.7 See Father’s Brief at
6-7. Father claims that DHS failed to prove that he could not remedy the
conditions that led to Child’s removal from Father’s care. Id.
Father’s argument is belied by the record. The evidence introduced at
the August 17, 2018 hearing showed that, as of the date of termination, Father
had not seen Child since August 2017, and was not amenable to completing
his objectives. Father’s mental health was the major contributing factor
leading to his inability to parent Child, and the record indicated that Father
refused to attend therapy or consider medication. Indeed, the notes of
testimony from the termination hearing indicate that Father refuses to
recognize the authority of the court and refuses to cooperate with
recommendations. Although Father did complete one psychological
evaluation, the record reflects that from the inception of this case, he has
never been fully compliant with his objectives and remains noncompliant due
to his failure to complete a psychiatric evaluation, parenting capacity
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7 Father also argues, citing notes of testimony from a February 1, 2017,
hearing, that he “has demonstrated his commitment to maintain [sic] close to
his children because he had a good relationship with his children.” See
Father’s Brief at 7. The February 1, 2017, transcript is not included in the
certified record and Father has not sought to supplement the record, although
the responsibility for ensuring that the transmitted record is complete rests
solely upon an appellant. See Pa.R.A.P. 1921 (delineating contents of record
on appeal); Pa.R.A.P. 1931 (noting appellant’s responsibility to ensure a
complete record on appeal); see also Commonwealth v. Preston, 904 A.2d
1, 7-8 (Pa. Super. 2006) (an appellate court may only consider facts in the
certified record, and it is not the court’s responsibility to obtain transcripts).
Accordingly, we will not consider any argument related to evidence introduced
at the February 1, 2017 hearing.
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evaluation, and attend mental health treatment of any sort prior to the filing
of the petition to terminate his parental rights. Additionally, and as noted
above, Father has not attempted to contact Child since the beginning of the
case.
Consistent with the foregoing, we discern no error in the trial 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 Father’s continued incapacity – namely, his refusal to obtain treatment
for his mental health issues – 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 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’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). 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).
Father argues that the trial court failed to properly consider his bond
with Child, and that DHS did not present any evidence that addressed Child’s
bond with Father. See Father’s Brief at 8. In support, Father references his
efforts to comply with the court’s orders by attending a psychological
evaluation and single case plan meeting to “make himself a better parent.”
Id. at 9-10.
Father’s argument is not supported by the record. Contrary to Father’s
assertions, DHS presented evidence to show that no beneficial relationship
existed between Father and Child. Specifically, the CUA case manager, Ms.
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Paulino, testified that there is no healthy bond between Father and Child.
Child does not want to visit with Father because Child is afraid of him due to
Father’s past physical abuse and neglect. Ms. Paulino opined that Child would
not be harmed by the termination of Father’s parental rights. She further
testified that Child has a positive bond with Maternal Aunt, has consistently
relayed that he wishes to be adopted by Maternal Aunt, and would be harmed
by removal from Maternal Aunt’s care. We discern no abuse of discretion in
the trial court’s conclusion that Child’s needs and welfare are best served by
termination.
In sum, clear and convincing evidence supports the trial 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 beneficial bond between Father
and Child, such 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: 4/1/19
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