Adoption of: R.J., aka, R.R.M., Appeal of: C.J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: R.J., AKA, : IN THE SUPERIOR COURT OF
R.R.M., A MINOR CHILD : PENNSYLVANIA
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APPEAL OF: C.J., FATHER :
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: No. 291 WDA 2021
Appeal from the Order Entered February 3, 2021
In the Court of Common Pleas of Washington County Orphans’ Court at
No(s): 63-20-0146
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 19, 2021
C.J. (“Father”) appeals from the Order granting the Petition filed by
Washington County Children and Youth Services (“CYS” or “the Agency”), and
terminating his parental rights to R.J., a/k/a R.R.M. (a female born in March
2018) (“Child”), pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (b).1 We affirm.
On June 5, 2018, following a shelter hearing, Child was placed in kinship
care with her maternal grandmother (“Grandmother”), based upon a lack of
care and supervision. On September 4, 2018, the trial court adjudicated Child
dependent. At the time of the adjudication of dependence, Father was on
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1 By Order dated November 19, 2020, biological mother’s parental rights were
terminated involuntarily. Mother is not a party to the instant appeal.
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state parole.2 Father’s state parole required him to engage in sex offender
treatment. That treatment required Father to participate in a polygraph test
and an Abel assessment.3 Further, Father was prohibited from having contact
with children.
On September 26, 2018, the trial court granted CYS’s Motion for
Aggravated Circumstances against Father, based upon a prior termination of
his parental rights as to another child. However, the trial court did not relieve
CYS of its obligation to reunify Child with Father. Father was ordered to
engage in reunification services, including a drug and alcohol evaluation, and
directed to comply with all recommendations. Father further was directed to
complete random drug and alcohol screenings, complete sex offender
treatment through an appropriate provider, meet with CYS at least once every
30 days, make available certain records requested by CYS, and complete
parenting education.
At a July 17, 2019, hearing, the trial court found that Father was
unsuccessfully discharged from parenting classes with Project Star, a
parenting education provider, because of a May 17, 2019, positive test result
for alcohol.
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2Father has a criminal history that includes convictions for drug offenses and
corruption of minors.
3 The Abel Assessment for Sexual Interest is an assessment used to measure
a person’s sexual interests toward various stimuli, including children.
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On July 17, 2019, Father informed the trial court that he could not
complete the polygraph test and Abel assessment required by FAACT, Inc.
(“FAACT”), a sex offender treatment program, because of financial
constraints. In response, the trial court informed Father that it would consider
any motion for financial assistance filed by Father. However, Father did not
file a motion requesting financial assistance for the polygraph test and Abel
assessment. At a review hearing on January 8, 2020, the trial court
determined that Father was in prison at State Correctional Institution-Fayette
based upon a failure to comply with the conditions of his parole.4
Throughout Child’s dependency, Child remained in the care of
Grandmother. In the six months preceding the filing of the termination
Petition, Grandmother provided all care for Child. On February 4, 2020, the
Agency filed its Petition to involuntarily terminate the parental rights of Father.
The trial court conducted a hearing on CYS’s termination Petition on
December 18, 2020, and December 19, 2020.5 On February 3, 2021, the trial
court entered a Decree granting CYS’s Petition, and terminating Father’s
parental rights to Child. Decree, 2/3/21. Thereafter, Father filed the instant
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4 As part of his parole, Father was required to participate in a relapse
prevention program. However, Father failed to attend the program.
5 Child, who was almost three years old at the time of the hearing, was
represented by Guardian Ad Litem Megan Patrick, Esquire.
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timely Notice of Appeal and a contemporaneous Pa.R.A.P. 1925(a)(2)(i) and
(b) Concise Statement of Matters complained of on appeal.
Father presents the following claims for our review:
1. Whether the [t]rial court abused its discretion and/or
committed an error of law in terminating [Father’s] parental
rights[?]
2. Whether there was clear and convincing evidence that [Father]
relinquished [his] parental claim or refused or failed to perform
parental duties for at least six months prior to the filing of the
[P]etition[?]
3. Whether there was clear and convincing evidence that [Child]
is without essential parental care, control[,] or subsistence
necessary for the physical or mental well-being of [Child,] and the
conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by [Father?]
4. Whether the [t]rial [c]ourt abused its discretion and/or
committed an error of law in terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(b)[?]
Father’s Brief at 3 (footnotes omitted).
In reviewing an appeal from a decree terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to accept
the findings of fact and credibility determinations of the trial court
if they are supported by the record. In re: R.J.T., [] 9 A.3d 1179,
1190 (Pa. 2010). 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.; R.I.S., [36 A.3d 567, 572 (Pa. 2011)
(plurality opinion)]. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Id.; see also Samuel
Bassett v. Kia Motors America, Inc., [], 34 A.3d 1, 51 (Pa.
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2011); Christianson v. Ely, [], 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite result,
as is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the trial court
and impose its own credibility determinations and judgment;
instead[,] we must defer to the trial judges so long as the factual
findings are supported by the record and the court’s legal
conclusions are not the result of an error of law or an abuse of
discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066
(Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
We will address Father’s first three claims together, as he does so in his
appellate brief. Father claims that the trial court improperly terminated his
parental rights to Child because it did not consider the Agency’s lack of
assistance “to relieve the impossibility of performance of the barrier [to]
reunification[.]” Father’s Brief at 5. Father identifies these barriers as the
completion of the Abel assessment and the polygraph test. Id. Father directs
our attention to testimony that he had visited consistently with Child and cared
for Child prior to the suspension of his visits by the dependency court. Id.Father asserts that he sent cards and gifts to Child, including while he was in
prison. Id. According to Father, a card from him to Child was returned, for
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the first time, on or about the time that the Agency filed its termination
Petition. Id.Father contends that he has made diligent efforts toward assuming his
parental duties. Id. at 6. Father argues that he has satisfied the
dependency Order’s requirements for drug and alcohol evaluations and
random drug screens. Id. Further, Father testified that he met with CYS, as
required by the dependency Order, until he was incarcerated. Id. According
to Father, he was prevented from moving into the observation phase with
Child because of his inability to complete the Abel assessment and the
polygraph test. Id.
Father contends that the trial court should have dismissed the
termination Petition because it was “impossible” for him to complete the Abel
assessment and the polygraph test. Id. at 7. According to Father, he paid a
total of $800 for the Abel assessment and polygraph test, but a balance
remained due. Id. Father contends that “it was impossible for [him] to
complete the Abel assessment and polygraph, even if the balance was paid[,]
because it was impossible to be available in [prison] due to [Department of
Corrections] regulations.” Id. According to Father, the trial court improperly
granted termination, where the Agency failed to assist with Father’s financial
barrier to reunification. Id. Father also claims that the evidence is not clear
and convincing as to his incapacity and inability to rectify the issues that led
to Child’s dependency. Id.
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Father claims that this is a case of first impression. Id. at 8. According
to Father, “there is no case law in Pennsylvania that provides guidance as to
incapacity by impossibility of performance in termination of parental rights[.]”
Id. Father directs our attention to case law in other jurisdictions regarding
the impossibility of performance in termination cases. Id.
The burden is upon the petitioner to prove, by clear and convincing
evidence, that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “The
standard of clear and convincing evidence is defined as testimony 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.” Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a), along
with consideration of section 2511(b).6 See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). We will address sections 2511(a)(1) and (b),
which provide as follows:
§ 2511. Grounds for involuntary termination
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6 Although Father does not specifically address section 2511(b) in the
argument section of his brief, we will nonetheless address it infra. See In re
C.L.G., 956 A.2d 999, 1010 (Pa. Super. 2008) (addressing section 2511(b)
although parent did not challenge the trial court’s analysis under that section).
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(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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
***
(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)(1), (b).
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows:
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of termination
of parental rights on the child pursuant to Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998). Further,
the trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination
of his or her parental rights, to determine if the evidence, in light
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of the totality of the circumstances, clearly warrants the
involuntary termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
As our Supreme Court has explained,
a parent “has an affirmative duty to love, protect and support his
child and to make an effort to maintain communication and
association with that child.” [In re: Adoption of McCray, 331
A.2d 652, 655 (Pa. 1975)]
* * *
Where the parent does not exercise reasonable firmness in
declining to yield to obstacles, his other rights may be forfeited.
Adoption of S.P., 47 A.3d at 828 (footnotes and internal quotation marks
omitted).
At the termination hearing, the Agency presented the testimony of Scott
Bomberger (“Agent Bomberger”), a reentry parole agent at Greene State
Correctional Institution. N.T., 12/18/20, at 16. Agent Bomberger testified
that, while he was a field sex offender agent, Father was under Agent
Bomberger’s supervision for approximately two months. Id. at 16, 28. Upon
his parole, Father was sent to Agent Bomberger’s unit because of Father’s
conviction of corruption of minors, in a sexually related incident. Id. at 17-
18.
Agent Bomberger testified that, as a condition of parole, Father was
required to “get evaluated for sex offender treatment, and if … [Father] was
given treatment, and he must complete the treatment.” Id. at 18. In
addition, the standard conditions of parole prohibited Father from having
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contact with anyone under the age of 18, “or he’s not permitted to have any
kind of communication with anybody[,] or live with anybody … who is the
guardian of somebody that’s under the age of 18.” Id.
Agent Bomberger testified that Father was to complete sex offender
treatment at FAACT. Id. at 19. However, Father did not complete his
treatment. Id. “He was supposed to be paying on a polygraph for tests,
which is part of his treatment, [] which wasn’t being done.” Id. Further,
Agent Bomberger testified that Father had absconded and, as a result, Father
“missed meetings, and so, through that, he was unsuccessfully discharged
from the [s]ex [o]ffender [t]reatment [p]rogram.” Id. Agent Bomberger
clarified that Father had absconded in October 2019. Id. As a result, a
warrant was issued for Father’s arrest. Id. at 22. Agent Bomberger was
unaware that, during this time period, Father was having supervised contact
with Child through CYS. Id. at 33.
Lucille Shea (“Ms. Shea”), a case manager at FAACT, testified regarding
Father’s therapy. Id. at 41. Ms. Shea testified that FAACT is “a sex offender
specific outpatient treatment provider.” Id. For a “period of time,” Father
attended 1.5-hour sessions, twice a month, with Ms. Shea. Id. According to
Ms. Shea, Father engaged in these services for one year. Id. at 47, 49. Ms.
Shea testified,
[Father] was compliant with attendance and participation. At
times [he] was superficial, but for the most part, he participated.
There were two treatment recommendations we had for [Father]
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that he did not complete[,] which were a maintenance monitoring
polygraph and an A[bel] assessment.
Id. at 42. Ultimately, Father did not complete the FAACT Program. Id. at 43.
As Ms. Shea explained,
[t]he ultimate goal would be for [Father] to get to a point where
he had completed a relapse prevention plan and completing those
two assessments. [Father] and I weren’t able to ever get to a
point where we started the relapse prevention plan. There was
an outline for it that we used. We had not gotten to that point
again[,] because we were waiting for those assessment results.
Id. at 48. Father was discharged from the program on October 16, 2019,
because of his incarceration resulting from his parole violation. Id. at 43.
Orissa Bey (“Ms. Bey”), the CYS caseworker assigned to Child, also
testified at the hearing. Ms. Bey testified that the case was transferred to her
in October 2018. Id. at 60. Ms. Bey testified that Child was adjudicated
dependent and has lived at Grandmother’s home since September 4, 2018.
Id. at 61. Ms. Bey indicated that it is considered a pre-adoptive home. Id.
at 61-62.
Ms. Bey explained that, in the dependency proceedings, Father was
ordered to complete drug and alcohol evaluations with an appropriate
provider, complete random drug and alcohol testing at the discretion of the
Agency, complete sex-offender treatment, complete parenting education
through an appropriate provider, follow all recommendations, and meet with
the Agency at least once every 30 days. Id. at 62. According to Ms. Shea,
Father completed his drug and alcohol evaluation in 2018. Id. However,
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Father only sporadically complied with random drug and alcohol tests, and has
“never been consistent with following through with his recommendation of
being drug tested.” Id. at 62-63. Ms. Bey indicated that the Agency also was
concerned about Father’s alcohol use. Id. at 65.
Ms. Bey testified that in December 2018, as a result of his return to
prison, Father was unsuccessfully discharged from the supervised parenting
program. Id. at 66. Ms. Bey explained the bases for Father’s discharge as
follows:
So[,] the information that the Agency obtained was due to
[Father’s] parole conditioning, due to the FAACT Program, due to
not completing the A[bel], and the polygraph test. Due to those
requirements not being completed that [Father] was not allowed
to be around any minor children under the age of 18, including his
own.
Id. at 68.
In October 2019, Ms. Bey became aware that Father had absconded
from his parole. Id. at 71. Although Ms. Bey went to Father’s home, she was
unable to make contact with him. Id. Father had not given Ms. Bey updated
contact information, i.e., an address or phone number where he could be
reached during this time. Id. On December 30, 2019, the Agency was notified
of Father’s incarceration at Fayette State Correctional Institution. Id. Since
his incarceration, Ms. Bey has spoken with Father by phone on four occasions.
Id. at 72. Ms. Bey testified that Father is presently incarcerated on driving
under the influence (“DUI”) charges. Id. Father’s last contact with Child was
“around December 23rd of 2019, just before Christmas.” Id. at 73. In March
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2020, Father sent Child a birthday card. Id. at 73, 90. Father sent Child early
Christmas presents in November 2020. Id. at 73.
Ms. Bey testified that, prior to Father’s return to prison, he was
permitted to attend some of Child’s medical appointments and was able to
contact a placement provider for updates on Child. Id. Since his return to
prison, Father has provided no financial support for Child, and has not
provided for Child’s daily care. Id. at 74. Rather, Grandmother provides all
care for Child. Id. Child has been in placement for two years, as of the date
of the hearing.7 Id. Ms. Bey confirmed that Father has never successfully
completed a parenting program or a sex offender treatment program. Id. at
95.
Ms. Bey testified that Child “is very healthy, very active. She attends
SmartKids school day care. She is comfortable in the home. She is thriving
very well.” Id. at 74. Child looks to Grandmother for her daily needs and is
up to date with her medical needs. Id. at 75.
Ms. Bey testified that in the twelve months prior to the filing of the
termination Petition, Father has not remedied the circumstances which led to
Child’s dependency. Id. at 77. According to Ms. Bey, Father tested positive
for alcohol on May 17, 2019. Id. at 86. Further, the trial court made a finding
of aggravated circumstances on September 26, 2020, based upon the prior
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7Grandmother additionally cares for half-siblings of Child. N.T., 12/18/20, at
74.
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termination of Father’s parental rights to another child. Id. at 77. Ms. Bey
testified that the Agency offered every available service to help Father
alleviate the circumstances that necessitated the original placement. Id. Of
particular note, Ms. Bey testified as follows:
The last permanency review hearing that was right around March
of 2019, or going into 2020, the [trial court] also ordered for us
to be able to help assist [Father] to be able to pay for his A[bel]
tests and his polygraph test with the expectation of him also
sitting down and going over his financial budgeting and, you know,
to see what we could help pay for--… help him pay for the
payments and everything so that he could take the A[bel] test and
the polygraph test. At which time, [Father] did not meet with me
on that. He did not take advantage of that. And at which time, it
was also explained to me about how much he was in debt and that
he had attorney fees and expenses as well.
Id. at 78. Although the trial court’s July 17, 2019, Order granted Father
permission to file a motion for financial assistance to help him pay for the Abel
assessment and polygraph test, Father filed no such motion. Id.
Father testified at the hearing that, from around August 2018 through
September 2018, his paternal aunt, Reverend Sharon Jackson-Quarels,
(“Aunt”), supervised his visits with Child. Id. at 104. To facilitate the visits,
Aunt drove Child from Washington, Pennsylvania, to Aunt’s home in Castle
Shannon, Pennsylvania. Id. at 105. Father would visit Child at Aunt’s home
weekly, from 8:00 a.m. to 4:00 p.m. Id. After the visit, Aunt would return
Child to Washington, Pennsylvania. Id. After Aunt was involved in an
accident, and could no longer provide transportation for Child, Father had
supervised visits with Child, twice a week, in his home. Id. at 106. However,
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when Aunt no longer would supervise the visits, CYS indicated it would explore
other options. Id. at 108.
CYS proposed that Father visit with Child at Blueprints visitation house
(“Blueprints”) in Washington, Pennsylvania, and that Blueprints would provide
transportation for Child. Id. Father, testified that he continued with these
visits twice a week, from 9:00 a.m. to 2:00 p.m. Id. at 109. Father claimed
that he attended all but two of the scheduled visits. Id. at 110. Father visited
with Child until an April 2019 court hearing. Id. at 110-11. Father testified
that, upon seeing Father at the hearing, Child reached out for him. Id. at
111.
Father testified that in 2019, he attended Child’s birthday party, and
that he bought her shoes and an outfit for Easter. Id. at 112. However,
Father’s parole officer told Father that he could no longer have contact with
Child. Id. Father testified regarding a financial arrangement that allowed
him to pay one-half of the costs of his required treatment, and save the other
one-half to pay for the Abel assessment and polygraph test. Id. at 114.
Father asserted that he did not understand the trial court’s “terminology,”
when the trial court informed him that he could file a motion for financial
assistance for the Abel assessment and the polygraph test. Id. Father
testified that he has made payments every week for the Abel assessment and
the polygraph test. N.T., 12/19/20, at 8-9. Id. at 14. However, Father claims
that he does not have funds to pay the balance due for the Abel Assessment
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and the polygraph test. Id. Father stated that he cannot complete those
assessments, as they are not provided by the Department of Corrections. Id.
at 15.
Father testified that he attended the parenting program. N.T.,
12/18/20, at 115. Father stated that
Melanie[,] from Project STAR[,] went over some parenting
techniques. She basically sat back and watched me interact with
[Child]. And she took notes, and if she seen anything that I
needed help with, she would give input or give a different way of
doing things like that, which really never went—we never really
crossed that path because she said I was good with [Child] and
[Child] was responsive….
Id. at 116. During the parenting classes, Father testified that he learned
[d]ifferent positions to hold [Child] during different situations, if
she was tired, if she was hungry, feeding. The best way how to
teach her how to walk[,] the best way how—when she was sick
and she was crying the best way to try to soothe her and get her
to feel better.
Id. at 117.
Father testified that, upon his release in 2017, he completed a sex
offender program and a sex offender “booster.” Id. at 119. Since his
reincarceration in October 2019, Father testified that he has completed an
outpatient drug and alcohol program, and became certified for highway
“flagging.” Father stated that he has maintained a residence for when he is
released from prison, and that it is appropriate for Child. Id. at 123.
Father testified that he spoke with Ms. Bey in the middle of January
2019, to inform her about his moving to a new residence. N.T., 12/19/20, at
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8-9. However, after informing Ms. Bey that he had signed the lease, she did
not inspect his new residence. Id. at 9. Father stated that Ms. Bey missed
one appointment, and, when she did show up, it was without notifying Father.
Id. According to Father, he was at work and spoke with Ms. Bey by means of
a camera at the residence. Id. Father also testified that he has employment
available upon his release from prison. Id. at 10. According to Father, he
would see the Parole Board in September 2021. Id. at 12. On his own, Father
signed up for Narcotics Anonymous and Alcoholics Anonymous (“NA/AA”). Id.
Father also is enrolled in custodial maintenance training. Id. at 13.
Father testified that he was informed that Child loves him and the bond
between them is satisfactory. Id. at 15-16. Father believes that it would be
more harmful to Child to terminate his parental rights. Id. at 16. Father
further testified as follows:
I had made mistakes on parole, and I am paying for it now. And
I have taken the measure[s] I need to stop the alcohol. I have
since August of last year, … I have attended NA/AA meetings while
I was home. I did meetings at SPHS [Behavioral Health]
McKeesport. I [] did on my own, not court appointed, but on my
own, I have completed a highway safety DUI class in McKeesport
at the Bonder (phonetic) building. I have … a sponsor for my
recovery for alcoholism. I have also taken the steps prior to my
incarceration to seek further treatment for [Alcohol and Other
Drugs from] AA, and my sponsor took me to meetings in
Washington and Allegheny County.
Id. at 19-20.
On cross-examination, Father admitted that he signed the conditions for
his parole, prior to his release in April 2017. Id. at 23. In August 2018, at
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the time of Child’s adjudication, Father admitted to being aware of the
condition of his parole prohibiting contact with children. Id. at 24.
Nevertheless, Father admitted that he still visited Child. Id. Father
acknowledged that he did not advise Ms. Bey of the condition of his parole
regarding children. Id. Father recognized that he did not complete the
requirements of the FAACT Program prior to October 2019. Id. at 25. Father
testified that, even if he had completed the program, he would not have been
permitted unsupervised visits with Child. Id. at 26. Father conceded that he
had completed the sex offender “booster” prior to his release in April 2017.
Id. at 27. However, Father has not successfully completed anything since
April 2017. Id. at 27-28.
During cross-examination, Father stated that he was not a caretaker for
Child prior to Child’s dependency adjudication. Id. at 31. Father further
acknowledged that he could not provide care for Child for six months following
the termination hearing. Id. at 31-32.
Finally, Father presented the testimony of Aunt, who had supervised
visitation with Child for a period of time in 2019. Id. at 47. At the time of
her involvement, Child was under a year old. Id. at 49. According to Aunt,
during visits with Father, Child would smile and recognize Father. Id. at 50.
On cross-examination, Aunt testified that Father had not told her about the
conditions of his parole. Id. at 53.
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The trial court concluded that the Agency established, by clear and
convincing evidence, that termination is warranted pursuant to section
2511(a)(1). Trial Court Opinion, 3/16/21, at 11. The trial court found that,
[w]hile Father initially started with moderate compliance,
beginning in July of 2019, his conduct and compliance declined.
Father was discharged for non-compliance from [the] parenting
[program], was found to be positive for alcohol, failed to complete
sex offender treatment and received new charges for [DUI].
Additionally, Father remains on supervision for the sex[-]related
offense of Corruption of Minors and remains prohibited from being
around children, including his own children. This restriction
cannot be re-evaluated by his parole [a]gent until[] Father
completes the requirements of his sex offender treatment.
Although incarcerated during many points of the
dependency case, [c]ourt[-]ordered services contemplated
actions that Father could take while incarcerated. … Here,
testimony established, whether in and/or out of incarceration and
despite offerings of assistance, financial and otherwise, Father
failed to use and/or request the available resources, failed to
restrict obstacles to his completion[,] and allowed for his
continued inability and incapacity to provide essential care for []
Child.
Trial Court Opinion, 3/16/21, at 11.
Upon review, the trial court’s determination that the Agency satisfied
the requirements of section 2511(a)(1) is supported by competent, clear and
convincing evidence in the record, and its legal conclusion is sound.
Accordingly, we cannot grant Father relief on this claim. See Adoption of
S.P., 47 A.3d at 828; In re Adoption of Charles E.D.M., 708 A.2d at 92.
Next, we address the termination of Father’s parental rights to Child
pursuant to section 2511(b). This Court has stated that the focus in
terminating parental rights under section 2511(a) is on the parent, but it is
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on the child pursuant to section 2511(b). See In re Adoption of C.L.G., 956
A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the evidence in
support of termination under section 2511(b), our Supreme Court has stated
the following:
[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., [620 A.2d 481, 485
(Pa. 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.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).
“Additionally, section 2511(b) does not require a formal bonding evaluation.”
Id. Further,
concluding [that] a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent.… Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
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development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary
termination of parental rights, despite existence of some bond, where
placement with father would be contrary to child’s best interests). “[A]
parent’s basic constitutional right to the custody and rearing of his … child is
converted, upon the failure to fulfill his … 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 at 856(internal citations omitted).
This Court has explained that a parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights. In
re Z.P., 994 A.2d at 1121. “[W]e will not toll the well-being and permanency
of [a child] indefinitely.” In re Adoption of C.L.G., 956 A.2d at 1007 (citing
In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008) (stating that 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.”)).
At the hearing, Ms. Bey testified that Child
is very bonded in her home. She’s very comfortable going to
[Grandmother] whenever she needs anything. She is also very
comfortable going to her siblings, her older siblings. She just fits
right in at home. It would be, you know, very devastating to see
her leave the home because that’s all she knows.
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N.T., 12/18/20, at 75. Child has not asked Ms. Bey about Father. Id. Ms.
Bey explained that,
[i]n the beginning, [Father] was … very cooperative. And, you
know, for over two years there has just been no type of progress
at all. And I think that … it’s not fair for a child to wait any longer
to continue on thriving in her life for a parent who’s been, you
know, not there for her for two years….
Id. at 80.
In its Opinion, the trial court found as follows:
[Child] has been in placement for well over 27 months. The
kinship foster family includes [Child’s] half-siblings and the home
is pre-adoptive. Father has never lived with [] Child, has never
provided regular care for [] Child[,] and is unable to identify a
time in the near future when he would be able to assume such
responsibility. While Father presented a witness to testify to his
limited interactions with [] Child, said interactions were fleeting
and very early in [] Child’s life. Testimony from Father and [Ms.
Shea] indicates that Child has not seen Father since 2019, at the
latest. In fact, [Ms. Shea] believes [that] Child may not even
recognize Father at this time. In essence, there is no evidence of
a parental bond between [] Child and Father….
Trial Court Opinion, 3/16/21, at 12-13. As set forth above, the clear and
convincing evidence of record supports the trial court’s determination that
termination would be in Child’s best interests.
In summary, there is clear and convincing evidence from which the trial
court, considering Child’s needs and welfare, could have properly determined
that Father failed to perform his parental duties to Child during the six-month
period preceding the filing of the Petition; Father’s explanation for his conduct
was unconvincing; there was no bond between Child and Father because his
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own actions placed obstacles to the development of such a bond; and the
termination of Father’s parental rights was in Child’s best interest. We will
not disturb the trial court’s Order. In re Adoption of S.P., 47 A.3d at 826-
27; In re: T.S.M., 71 A.3d at 267. Accordingly, we affirm the Order
terminating Father’s parental rights to Child pursuant to 23 Pa.C.S.A.
§ 2511(a)(1) and (b).
Order affirmed.
Judge Olson joins the memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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