In Re: H.H.-N.C., Minor Child ( 2018 )

J-S29034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: H.H.-N.C., : IN THE SUPERIOR COURT OF
MINOR CHILD : PENNSYLVANIA
:
:
APPEAL OF: D.J.W., FATHER :
:
:
:
: No. 188 EDA 2018
Appeal from the Order Entered December 6, 2017
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): 2017-A-0127
IN RE: ADOPTION OF R.A.H.W., : IN THE SUPERIOR COURT OF
MINOR CHILD : PENNSYLVANIA
:
:
APPEAL OF: D.J.W., FATHER :
:
:
:
: No. 189 EDA 2018
Appeal from the Order Entered December 6, 2017
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): 2017-A-0128
IN RE: ADOPTION OF: A.J.R.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.J.W., FATHER :
:
:
:
:
: No. 190 EDA 2018
Appeal from the Order Entered December 6, 2017
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): 2017-A-0129
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29034-18
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 29, 2018
Appellant, D.J.W. (“Father”), files this appeal from the orders dated
December 1, 2017, and entered December 6, 2017,1 in the Montgomery
County Court of Common Pleas, granting the petition of the Montgomery
County Office of Children and Youth (“OCY” or the “Agency”) and involuntarily
terminating his parental rights to his minor, dependent sons, H.H.-N.C., born
in January 2009, R.A.H.W., born in April 2016, and A.J.R.W., born in March
2014 (collectively, the “Children”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)(1), (2), (8), and (b).2 After review, we affirm the trial court’s
orders.
The record reveals the following relevant facts and procedural history:
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1 The subject orders were dated December 1, 2017. However, the clerk did
not provide notice pursuant to Pa.R.C.P. 236(b) until December 6, 2017. Our
appellate rules designate the date of entry of an order as “the day on which
the clerk makes the notation in the docket that notice of entry of the order
has been given as required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b). Further,
our Supreme Court has held that “an order is not appealable until it is entered
on the docket with the required notation that appropriate notice has been
given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113,
115 (1999).
2 By separate order entered the same date, the trial court involuntarily
terminated the parental rights of the Children’s mother, E.A.W. a/k/a E.A.C.-
W. a/k/a E.A.W.-C. (“Mother”). Mother has not filed an appeal, and she is not
a party to the instant appeal.
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This family originally became known to OCY on September 3, 2015, as
a result of a referral for the Children’s older sister for ungovernable services.3
H.H.-N.C. and A.J.R.W. were adjudicated dependent and taken into OCY
custody on February 23, 2016, due to issues of housing, lack of supervision,
and unemployment. In addition, Mother was pregnant and going to a
methadone clinic. H.H.-N.C. and A.J.R.W. were returned to Mother on April
26, 2016, subsequent to the birth of R.A.H.W.
Thereafter, on May 6, 2016, Father found the Children home alone.
Father took the Children to a family member and contacted OCY on May 9,
2016. H.H.-N.C. and A.J.R.W. were taken again into custody on May 9, 2016.
R.A.H.W. was taken into custody two days later, on May 11, 2016, when
located by the police.4 N.T., 11/17/17, at 104-06. At the time, H.H.-N.C. and
A.J.R.W. were not up-to-date medically, and there were truancy issues with
regard to H.H.-N.C. Id. at 135-36. Critically, as related by an OCY
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3 OCY defines an ungovernable child as “an adolescent between the ages of
10 and 18 who has committed a specific act or acts of habitual disobedience
of the reasonable and lawful commands of his/her parent, guardian or
custodian,” such as: curfew violations, drug/alcohol involvement, running
away, gang involvement, verbal abuse, and sexual promiscuity.
https://www.montcopa.org/2885/Adolescent_Ungovernable-Services.
4 After Father dropped the Children off, Mother came and took R.A.H.W., and
their whereabouts were unknown. N.T., 11/17/17, at 104-06. R.A.H.W. was
adjudicated dependent thereafter on May 24, 2016. Order of Adjudication and
Disposition-Child Dependent, 5/24/16.
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caseworker, Jeanette Vazquez, Father was not considered a resource and
acknowledged that he was unable and not in a position to care for the Children
at the time. Id. at 150, 152-53.
OCY filed petitions to terminate Father’s parental rights on July 28,
2017. The trial court held hearings on November 17, 2017, and December 1,
2017.5 In support thereof, OCY presented the testimony of Robert Gaskill,
OCY family reunification specialist; Samuel Paul, Montgomery County Adult
Probation Officer; Naomi Watson, JusticeWorks YouthCare family research
specialist; J.S.M., foster father; Nicole Hirschman, Salvation Army Children
Services foster care caseworker; Jeanette Vazquez, OCY caseworker; and
Cathy Milliman, OCY adoption caseworker. OCY further offered Exhibits 1
through 17, which were admitted without objection. N.T., 11/17/17, at 108-
10, 116, 127-28, 171-72. Father was present and represented by counsel,
but did not testify on his own behalf or present any evidence.6 In addition,
during this proceeding, the Children were represented by counsel, who
participated in the questioning.7
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5 The December 1, 2017, listing was for the court to place its decision on the
record. N.T., 12/1/17, at 3.
6 OCY additionally filed petitions to involuntarily terminate Mother’s parental
rights. Mother was not present at the hearings, but she was represented by
counsel.
7Counsel for the Children, Arona Gur, Esquire, argued in favor of termination
of Father’s parental rights at the close of the hearing. N.T., 11/17/17, at 178-
79. Upon review, as best we can discern, it appears that Ms. Gur was
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By orders dated December 1, 2017, and entered December 6, 2017, the
trial court involuntarily terminated the parental rights of Father to the Children
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (8), and (b).8 On December 29,
2017, Father, through appointed counsel, filed notices of appeal, as well as a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b), which this Court consolidated sua sponte on February
5, 2017. The trial court issued a Rule 1925(a) Opinion on January 23, 2018,
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appointed to represent the Children as counsel. It is unclear if she was also
serving and/or served as Guardian ad litem (“GAL”).
This Court has recently held that we will address sua sponte the failure of an
orphans’ court to appoint counsel pursuant to 23 Pa.C.S.A. § 2313(a). See
In re K.J.H., 2018 PA Super 37 *2 (Pa.Super. filed February 20, 2018). Our
Supreme Court, in In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172(2017) (plurality), held that Section 2313(a) requires that counsel be
appointed to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The court defined a child’s legal interest
as synonymous with his or her preferred outcome. With respect to this Court’s
holding in In re K.M., 53 A.3d 781 (Pa.Super. 2012), that a GAL who is an
attorney may act as counsel pursuant to Section 2313(a) so long as the dual
roles do not create a conflict between the child’s best interest and legal
interest, the L.B.M. Court did not overrule it.
Our review of the record reveals that there is no conflict between the
Children’s legal and best interests. We observe that, at the time of the
hearing, the two younger children were only one and a half and three years
old. The oldest child, while eight years old, expressed excitement at the idea
of being adopted. Therefore, we do not remand this matter. Cf. In re
T.M.L.M., 2018 PA Super 87 (filed April 13, 2018) (remand for further
proceedings when six-year-old child’s preference was equivocal and the
attorney neglected to interview the child to determine whether legal and best
interests were in conflict).
8These orders memorialized the decision placed by the court on the record.
N.T., 12/1/17, at 21.
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noting that the rationale for the orders was contained in the Notes of
Testimony, the relevant pages of which were attached.
On appeal, Father raises the following issue for our review:
1. Did the trial court abuse its discretion by finding there was
competent[] evidence to terminate Birth Father’s rights?
Father’s Brief at 7.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.at [325-26, 47 A.3d at] 827. We have previously emphasized our
deference to trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re R.J.T., [608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”
In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
“[I]f competent evidence supports the trial court’s findings, we will affirm even
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if the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quotation omitted).
In the case sub judice, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (8), and (b). We have long held
that, in order to affirm a termination of parental rights, we need only agree
with the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
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banc). Here, we analyze the court’s termination orders pursuant to
subsections 2511(a)(2) and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
...
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
...
(b) Other considerations.--The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the 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), and (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
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causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
(quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002)). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability of services,
may properly be rejected as untimely or disingenuous.” In re A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
In In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817 (2012), our
Supreme Court, in addressing Section 2511(a)(2), concluded the following:
[I]ncarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination exist
under § 2511(a)(2) where the repeated and continued incapacity
of a parent due to incarceration has caused the child to be without
essential parental care, control or subsistence and that the causes
of the incapacity cannot or will not be remedied.
Id. at 328-29, 47 A.3d at 828. See In re D.C.D., 629 Pa. 325, 346-47, 105
A.3d 662, 675 (2014) (holding that incarceration prior to the child’s birth and
until the child was at least age seven renders family reunification an unrealistic
goal and the court was within its discretion to terminate parental rights
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“notwithstanding the agency’s failure” to follow court’s initial directive that
reunification efforts be made). The Court in S.P. further stated:
[W]e now definitively hold that incarceration, while not a litmus
test for termination, can be determinative of the question of
whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether “the
conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent,” sufficient to provide
grounds for termination pursuant to 23 Pa.C.S.[A.] § 2511(a)(2).
See e.g. Adoption of J.J., [511 Pa. 590, 605,] 515 A.2d [883,
891 (1986)] (“[A] parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to perform the
duties.”); [In re] E.A.P., 944 A.2d [79, 85 (Pa.Super.
2008)](holding termination under § 2511(a)(2) was supported by
mother’s repeated incarcerations and failure to be present for
child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied
despite mother’s compliance with various prison programs).
In re Adoption of S.P., 616 Pa. at 331-32, 47 A.3d at 830 (footnote
omitted).
In the case at bar, the trial court indicated as follows with regard to
Father:
I will now address my findings related to birth father. The
children at issue here were placed in OCY care in May of 2016 due
to birth father’s report that the boys were left home alone. Since
that time, birth father has not made himself available as a
resource to care for his sons. In response to specific concerns
regarding birth father’s stable, adequate housing, birth father
refused to credibly tell the OCY caseworker where he lived or
worked. Birth father never completed his family service plan
goals. In addition to lacking housing, he provided no proof of
employment and missed [c]ourt hearings.
OCY assigned birth father a JusticeWorks family
reunification specialist on June 21, 2016. Because birth father
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was uncooperative, the case was closed on August 31, 2016, due
to no contact. Birth father also failed to respond to birth mother’s
specialist’s attempts to contact him. Birth father’s contact with
his OCY case worker was inconsistent.
Although incarcerated for 30 days in March of 2016, birth
father attended eight of 31 supervised visits made available to
him from March 1st, 2016[,] to October 10, 2017. And those
numbers come from OCY Exhibit 17. Supervised visits were
biweekly. During his initial visits in Pottstown, birth father’s
behavior was appropriate. Visits were then moved to Allentown
near the foster family. At these visits, birth father would openly
complain about the foster parents in front of the boys. His
attention to his children at the visits was inconsistent. Birth
father’s last visit with his sons was in July 2017 at a court hearing.
His last visit outside of a courtroom setting occurred in June of
2017. Birth father never followed up on offers for more visits with
his sons.
When the boys were initially placed with the foster parents,
between March and April 2017, birth father made four brief
unscheduled phone calls to his sons. His inappropriate discussions
with the oldest son, [H.H.-N.C.], resulted in behavioral problems
that only subsided when the calls stopped. Due to the behavior
problems, the foster parents requested scheduled phone calls.
After this request, birth father called his sons twice over the
course of a month, then discontinued the calls.
Against the advice of caregiver agency officials and medical
personnel, birth father refused to grant authority for two of his
sons to have surgery essential for their development. Birth father
failed to investigate the need for this surgery on his own. Only in
the presence of the [c]ourt and his counsel did birth father
concede. In accordance with OCY Exhibit Number 10, between
the time period of May 8, 2017[,] and August 15, 2017, birth
father complied with only one of the five OCY random requests for
urine samples. That one sample, the first requested, provided
negative results.
Because he is on probation for two drug-related criminal
convictions, birth father was also subject to requests for urine by
the Adult Probation Department. On October 10, 2017, birth
father tested positive for numerous drugs, including cocaine and
amphetamines. Nearly one week later, birth father tested positive
for THC and oxycontin. Birth father was incarcerated for violating
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the terms of his probation on October 16, 2017, and he currently
remains in County Prison.
Each child has special needs. Birth father consistently
disparaged foster parents for failing to address his sons’ needs,
yet, he is not available to care for the boys, and he failed to
cooperate with OCY in addressing the needs of his children.
The oldest child, [H.H.-N.C.], feels loyalty to birth father and
misses birth mother. The younger children do not have a
significant connection to birth parents. The boys are comfortable
and affectionate with their foster parents and their children,
calling the foster parents “mom” and “dad.”
N.T., 12/1/17, at 10-14.
Further, in finding grounds for termination pursuant to Section
2511(a)(2), the trial court reasoned as follows:
I will now discuss related factors to my findings, including
incarceration, drug use, incapacity and parent mental disability
and incapacity. The Supreme Court of Pennsylvania has held that
it is not a violation of Constitutional Rights for an individual’s
parental rights to be terminated due to the parents’ mental
disabilities or handicaps that prevent the parents from being able
to provide proper care for the child. That is from the 1978 case,
[In re: William L.], cited at 383 [A.2d] 1228. As the Supreme
Court explained in reaching its decision, a decision to terminate
parental rights [sic] never to be made lightly or without a sense
of compassion for a parent can seldom be more difficult than when
termination is based upon parental incapacity. The legislature,
however, in enacting the Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as parentally
unfit as one who refuses to perform. Again, that was cited from
the aforementioned case, [In Re: William L.], specifically at page
1239.
The Pennsylvania Supreme Court has also held that a
mental impairment or disability doesn’t require OCY to meet
additional burdens or hold OCY to a higher standard in order to
justify [the] [c]ourt’s termination of a parent’s rights to her child.
That is from the 1986 case, [In Re: Adoption of J.J.], cited at
515 Atlantic 2d, 883.
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There is a duty placed on the parents to work with OCY and
receive services in order to learn the necessary parenting skills.
That sentiment comes expressly from the aforementioned case of,
[In Re: J.J.], but also from the case, [In Re: the Adoption of
M.E.P.], cited at 825 [A.2d] 1266, a 2003 Pennsylvania Superior
Court case.
These two cases emphasize that a parent who is under OCY
supervision has an affirmative duty to do something in support of
their ability to parent. That act of doing something includes
cooperating and working with the services provided by OCY. My
findings indicate the birth parents failed to cooperate with OCY or
use the resources provided. Despite a parent’s wishes and desires
to preserve a parental bond or role in the cases where the parent
is incapable of providing even basic necessities and will continue
to suffer such parental incapacity, the focus of the [c]ourt must
not be on the parent’s wishes and desires, but the child’s need for
safety, security, permanency and well-being. The child’s safety is
this [c]ourt’s paramount concern.
I will now address the issue of parental drug use.
This [c]ourt heard credible evidence of drug use by both
parents. A review of OCY exhibits shows both parents failed to
participate in random urinalysis testing. This evidence was
supplemented with credible testimony regarding the birth parents’
refusal to respond to requests for testing. Given the lack of
evidence regarding the birth parents’ attempts at sobriety or
rehabilitation and the length of time that the children have been
in foster care, OCY has demonstrated that the conditions that led
to the removal of the children from the home cannot or will not be
remedied within a reasonable time.
I will next address incarceration. The Pennsylvania
Supreme Court has on several occasions considered the relevance
of incarceration of a parent for termination of parental rights
under Sections 2511 (a)(1) and (a)(2) of the Adoption Act.
In its plurality decision of, [In Re: R.I.S.], cited at 36 [A.3d]
574, the Pennsylvania Supreme Court stated that the
incarceration of a parent standing alone cannot constitute proper
grounds for terminating that parent’s rights to his child. But in
the concurring opinion the Court made clear that incarceration can
be a factor in a trial court’s decision to terminate parental rights.
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Thereafter, in the case, [In Re: Adoption of S.P.], indexed
at 47 [A.3d] 828, the Pennsylvania Supreme Court held “that
incarceration, while not a litmus test for termination, can be
determinative of the question of whether a parent is incapable of
providing essential parental care, control or subsistence.”
N.T., 12/1/17, at 14-17.
Father, however, argues that the Children resided with Mother. 9 He
maintains that he visited with the Children and that his home was assessed
as “very clean, very orderly, very organized” and without safety concerns.
Father’s Brief at 10. We disagree.
A review of the record supports the trial court’s finding of grounds for
termination under Section 2511(a)(2). The record reveals that Father failed
to comply with his Family Service Plan (“FSP”) goals aimed at reunification
with the Children. He further failed to alleviate any of the concerns related to
his ability and capacity to care for and parent the Children. As we discern no
abuse of discretion or error of law, we do not disturb the trial court’s findings.
OCY caseworker, Jeanette Vazquez, recounted Father’s FSP objectives
as: to cooperate with OCY, provide employment verification, provide proof of
appropriate housing, and maintain constant visitation and contact with his
children. N.T., 11/17/17, at 119-20. Ms. Vazquez testified that Father did
not successfully complete these objectives. Id. at 120. She described
Father’s compliance as “minimal.” Id. at 124. She likewise indicated a lack
of improvement and that his overall progress toward reunification was
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9 In the summary of argument section of his brief, Father suggests that, as
the Children were not residing with him, he was not the cause for their removal
and commitment and/or placement. Father’s Brief at 9.
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“minim[al].” Id. at 126, 150-51. When asked about Father’s attitude
throughout the case, Ms. Vazquez responded, “We have been able to
communicate. We can have a civil conversation, but there is a lot of placing
blame on me and the [A]gency for everything that is going on. Father has
not taken responsibility whenever I try to address things, any issues that
arise.” Id. at 124. Ms. Vazquez reported that Father had not maintained
consistent contact with OCY; had not presented proof of employment; missed
court hearings; and was not compliant with requests for drug screens. Id. at
124-27. As a result of Father’s failure to comply with drug screens, Ms.
Vazquez was unable to speak to Father’s sobriety. Id. at 128.
Further, Father’s visitation with the Children never progressed to
unsupervised and was characterized by Ms. Vazquez as not consistent. Id. at
127-28. While he last saw the Children in court on July 24, 2017, his last visit
outside of court was on June 13, 2017. Id. at 89-90, 151. Notably, Father’s
attentiveness during these visits was explained by Nicole Hirschman, Salvation
Army Children Services foster care caseworker, who supervised visitation
between Father and the Children from March to June 2017, as “off and on.”
Id. at 87. Further, Ms. Hirschman testified, “I can tell he loves and cares for
them. However, the visits appear to me to be sessions to complain to me
about the foster parents or how the children look.” Id. Additionally, Ms.
Vazquez did not have proof of adequate housing. Ms. Vazquez testified that
she was never able to assess the initial address provided by Father. Id. at
120. While the next address was found to be an appropriate residence, Ms.
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Vazquez stated that Father advised that he was no longer living there and
provided no updated address. Id. at 122.
Father further failed to comply with services aimed at reunification and
assistance toward his objectives. Father failed to cooperate with the OCY
family research specialist,10 as well as the JusticeWorks YouthCare family
research specialist.11 Id. at 10, 12, 37, 39.
Lastly, at the time of the hearing, Father was incarcerated for violating
his probation stemming from charges related to possession with intent to
deliver.12 Id. at 21-22, 122-23. Father’s probation officer, Samuel Paul,
testified that his compliance with his probation was “mediocre” due to
inconsistent reporting and concerns about the accuracy of Father’s address,
as well as positive urinalysis. Id. at 17-20. Significantly, Father had a positive
urinalysis in January 2017, and two positive urinalyses in October 2017, the
last on October 16, 2017, resulting in his detainer.13 Id. at 19, 22. As a result
of the positive urinalysis, Father’s probation was changed to additionally
____________________________________________
10 Robert Gaskill testified that Father was “not cooperative with any of [his]
efforts to engage with him.” N.T., 11/17/17, at 10.
11 Naomi Watson characterized Father’s cooperation with her as not
consistent. Id. at 39.
12Father was additionally incarcerated for a period of thirty days in March
2016. Id. at 153.
13 Father tested positive for methamphetamine, benzodiazepine, cocaine,
THC, and oxycodone on October 10, 2017, and THC and oxycodone on October
16, 2017. Id. at 19, 22.
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require a drug and alcohol evaluation and compliance with recommended
treatment, which he had not completed. Id. at 20.
As this Court has stated, “a child’s life cannot be held in abeyance while
a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super.
2006). Hence, the record substantiates the conclusion that Father’s repeated
and continued incapacity, abuse, neglect, or refusal has caused the Children
to be without essential parental control or subsistence necessary for their
physical and mental well-being. See In re Adoption of M.E.P., 825 A.2d at
1272. Moreover, Father cannot or will not remedy this situation. See id. As
noted above, in order to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a) before
assessing the determination under Section 2511(b), and we, therefore, need
not address any further subsections of Section 2511(a). In re B.L.W., 843
A.2d at 384.
We next determine whether termination was proper under Section
2511(b). Our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
child have been properly interpreted to include “[i]ntangibles such
as love, comfort, security, and stability.” In re K.M., 53 A.3d
781, 791 (Pa.Super. 2012). In In re E.M. [a/k/a E.W.C. & L.M.
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a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485 (1993)],
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791. However, as
discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946 A.2d
753, 762-63 (Pa.Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent[.]
In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
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In the case sub judice, in determining that termination of Father’s
parental rights favors the Children’s needs and welfare under Section 2511(b)
of the Adoption Act, the trial court stated as follows:
In the case before me, credible testimony clearly observes
that there is no significant bond between the two youngest boys
and birth parents. I understand the limited attachment that the
eight-year-old, [H.H.-N.C.], has for his parents, but must weigh
this attachment with my findings that the birth parents are
incapable of having any reasonable prospects for reuniting the
family. Given the emotional harm this child would incur by having
the unreasonable hope of reunification, I find that he, along with
his two younger brothers, will not be irreparably harmed by the
termination of his birth parents’ parental rights.
Therefore, I find from the evidence and testimony that
termination of the birth parents’ rights best serves the needs and
welfare of each child, and that termination of the parental rights
of birth parents will not irreparably harm the children.
N.T., 12/1/17, at 20-21.
Upon review, the record supports the trial court’s finding that the
Children’s developmental, physical, and emotional needs and welfare favor
termination of Father’s parental rights pursuant to Section 2511(b). There
was sufficient evidence to allow the trial court to make a determination of the
Children’s needs and welfare, as well as to the existence or lack of existence
of a bond between Father and the Children such that, if severed, it would not
have a detrimental impact on them.
Father has not seen the Children since court in July 2017. N.T.,
11/17/17, at 89-90, 151. When asked about the connection between Father
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and the Children, Nicole Hirschman, Salvation Army Children Services foster
care caseworker, testified as follows:
I would say mainly I could testify as to [H.H.-N.C.], being the
oldest, that he does love his dad and he feels some loyalty for
him. The younger two it was difficult to see what type of
connection they had with him because they wanted to play with
the toys or watch a movie, or have a snack. They were more
concerned with other things.
Id. at 91. It was further noted that R.A.H.W. would have difficulty and not
want to leave Foster Mother’s side and cry at the start of visitations. Id. at
88. In addition, the Children would leave at the end of visitations to return to
Foster Parents without issue and do not ask about Father. Id. at 134.
Additionally, Father initiated only four telephone calls in March and April
2017 in which he spoke with H.H.-N.C.14 Id. at 60-61. Foster Father reported
no calls since April. Id. Foster Father reported behavior following the calls
where H.H.-N.C. would be “very angry and very resistant to any kind of
leadership from -- any parenting from us as foster parents.” Id. at 61. He
noted such behaviors “greatly subsided” after telephone calls from Father
ceased. Id. Similarly, Ms. Vazquez, while acknowledging a lack of consistent
telephone calls, noted no cards, letters, or gifts from Father to the Children.
Id. at 130.
____________________________________________
14Foster Father indicated that Father spoke primarily with H.H.-N.C. because
R.A.H.W. “does not communicate yet and [A.J.R.W.] is very, very difficult to
understand on the phone, especially back in March and April when these phone
calls happened.” Id. at 60-61.
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Likewise, the evidence reveals that Father was not supportive of
recommended tongue-tie surgery for R.A.H.W. and A.J.R.W, which they were
ultimately able to get as a result of a court order and has proven to be
beneficial for them. Id. at 66-68, 131-33, 155-57.
Moreover, the Children have been placed together in their current pre-
adoptive home since February 2017 and are doing well and their needs are
being met. Id. at 133-34, 139. Ms. Hirschman, OCY caseworker, Jeanette
Vazquez, and OCY adoption caseworker, Cathy Milliman, all offered testimony
as to the positive interaction and bond between the Children and their foster
family. Id. at 91, 133, 139. Significantly, Ms. Vazquez testified that the
Children call Foster Parents “Mom and Dad,” id. at 134, and characterized the
relationship as a “happy relationship,” id. at 139. Both Ms. Hirschman and
Ms. Milliman described the interactions as affectionate. Id. at 91. Ms.
Hirschman expressed that the Children “are all extremely affectionate with
[Foster Parents] as well as their children, their biological children. And it
appears that the connection is very positive every time I go to the home.” Id.
Similarly, Ms. Milliman stated:
The children – my observation is that they are very comfortable
in the home. They are not hesitant about approaching either of
the parents or the older kids in the family. They are affectionate.
The two little ones especially turn to the adults, you know, when
something goes wrong, like what you would expect from a typical
child who is being cared for.
They were pretty engaged -- both parents were there both times
and they were pretty engaged with the kids as are their older kids.
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Id. at 162-63. Notably, in describing the difference in H.H.-N.C.’s behavior
during visitation with Father as opposed to at home with foster family, Ms.
Hirschman observed, “He seems during family visitation to be very quiet
whereas in the foster home he is more apt to answer questions when I pull
him aside to talk to him, play with his brothers, be more animated, and like I
said, very affectionate with everybody.” Id. at 91-92.
Foster Father further testified extensively as to his and his wife’s
involvement with the Children, including medically, educationally, and
developmentally, and the progress the Children have made since being placed
in the home. Id. at 51-59. As such, Ms. Vazquez expressed that it is OCY’s
recommendation that parental rights be terminated and that it is in the best
interest of children to be adopted. Id. at 134, 140.
Thus, as confirmed by the record, termination of Father’s parental rights
serves the Children’s developmental, physical, and emotional needs and
welfare, and it was proper pursuant to Section 2511(b). While Father may
profess to love the Children, a parent’s own feelings of love and affection for
a child, alone, will not preclude termination of parental rights. In re Z.P.,
994 A.2d at 1121. As we stated, a child’s life “simply cannot be put on hold
in the hope that [a parent] will summon the ability to handle the
responsibilities of parenting.” Id. at 1125. Rather, “a parent’s basic
constitutional right to the custody and rearing of his child is converted, upon
the failure to fulfill his or her parental duties, to the child’s right to have proper
parenting and fulfillment of his or her potential in a permanent, healthy, safe
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environment.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (citation
omitted).
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(2) and (b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/18
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