In the Int. of T.R.G., Appeal of: M.G. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
T.R.G. A/K/A T.G., A MINOR : PENNSYLVANIA
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APPEAL OF M.G., FATHER : No. 308 EDA 2018
Appeal from the Decree Entered October 25, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000982-2017
CP-51-DP-0002025-2015
FID: 51-FN-001680-2015
BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2018
M.G. (Father) appeals nunc pro tunc from the decree entered October
25, 2017 granting the petition of Philadelphia Department of Human Services,
Children and Youth Division (DHS) to terminate involuntarily Father’s parental
rights to his minor child, T.R.G., a/k/a T.G. (Child), born in December 2006.
Father’s notice of appeal also challenges the order changing Child’s
permanency goal to adoption. We affirm.
The relevant procedural history and facts may be summarized as
follows. Child’s biological parents are Father and V.H. (Mother).1 On July 9,
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1 On October 25, 2017, the family court terminated involuntarily Mother’s
parental rights to Child. Mother appealed, and this Court affirmed.
* Retired Justice specially assigned to the Superior Court.
**Retired Senior Judge assigned to the Superior Court.
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2015, DHS opened services for this family after receiving a general protective
services (GPS) report from St. Christopher’s Hospital for S.D.S., Child’s
maternal half-sibling.2 The next day, DHS visited Mother’s home and
discovered it had a strong odor of urine, was infested with flies, did not have
a working refrigerator or stove, and had a kitchen floor with structural
deficiencies and a possibility of collapse. There was also a high level of lead
in the home. DHS returned four days later and talked to Mother about keeping
a clean and sanitary home and obtaining medical care for S.D.S. Social
workers returned several times over the next week, but were refused entry
each time. On July 21, 2015, a social worker returned with police and
removed Child and S.D.S. (collectively, Children) due to deplorable home
conditions and inadequate healthcare. Child was wearing only underwear, and
after being told to get dressed, he returned wearing soiled clothing that
smelled of urine. DHS requested Child’s asthma inhaler, but Mother was
unable to produce it. DHS obtained protective custody orders for Children
that same day. During this time, Father was incarcerated. N.T., 10/25/2017,
at 79.
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2 S.D.S. is not part of this appeal.
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After an initial placement in foster care through NorthEast Treatment
Center (NET), Child was placed in kinship foster care with his paternal
grandmother, M.G. (Grandmother), in September 2015.3
Based on the foregoing, Child was adjudicated dependent in September
2015. Following Child’s adjudication of dependency, the family court held
several permanency review hearings. Father was released from prison
sometime in 2016.4 However, at a permanency review hearing in January
2017, the family court found Father’s visitation with Child inadequate, ordered
all of Father’s visits suspended until Father appeared in family court, and
ordered DHS to attempt to locate him. DHS later found Father living at a local
rescue mission. Throughout the dependency proceedings, Father was ordered
to have visits with Child at Grandmother’s home.
According to DHS, Father was suspected of abusing illegal drugs, was
transient, failed to secure safe and appropriate housing, failed to demonstrate
financial ability to care for Child, failed to maintain consistent and meaningful
visitation or contact with Child, and failed to develop any parent-child
relationship with Child. Petition for Involuntary Termination of Parental
Rights, 10/5/2017, at Exh. A, ¶¶ z, hh, kk.
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3 S.D.S. was placed elsewhere.
4 N.T., 10/25/2017, at 79.
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On October 5, 2017, DHS filed a petition to terminate involuntarily the
parental rights to Child of both Father and Mother and to change the
placement goal to adoption. A hearing was held on October 25, 2017. Child
was represented at the hearing by a guardian ad litem and legal counsel.5
Relevant to this appeal, the family court heard testimony from Quaemia
Sanders, CUA case manager, Father, and Grandmother.
At the time of the hearing, Child had been in foster care for 27 months
and had been living with Grandmother for nearly all of that time. According
to Sanders, Father’s objectives were to comply with NET and recommended
services. N.T., 10/25/2017, at 23. Following his release from prison, Father
was living at a local drug and alcohol recovery program. Id. at 24. Sanders
testified that Father did not have appropriate housing, was not gainfully
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5 We note our displeasure with counsel for Child’s failure to file a brief in this
Court or otherwise advocate for Child’s interests on appeal. Counsel’s duty to
represent a child does not end at the conclusion of the termination of parental
rights hearing. In re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super.
2018); see also In re M.T., 607 A.2d 271, 276 (Pa. Super. 1992) (observing
that child’s counsel abdicated his legal responsibilities to his client because
counsel, inter alia, failed to file a brief, indicate that he joined another party’s
brief, or otherwise notify this Court of his client’s position). Despite the
foregoing, because this deficiency does not substantially impede our review of
the issues Father has presented herein, we will address the merits. See
Jacobs v. Jacobs, 884 A.2d 301, 305 (Pa. Super. 2005).
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employed,6 had not provided meaningful financial support for Child,7 and had
not been consistent in his visits with Child. Id. at 24-26, 49-50. Further,
Grandmother contacted Sanders in August 2017 to request that supervised
visits between Child and Father occur at a location other than her home,
because Grandmother had obtained a restraining order against Father. Id. at
26-27. When Sanders informed Father of this visitation change, he declined
to continue any visits with Child. Id. Instead, he said he would rather wait
to see Child “once he is on his own.” Id.
Sanders testified that she sees Child monthly at Grandmother’s home,
but has never observed any visits between Child and Father. Id. at 26-27,
47-48. Child does not ask about Father and expressed to Sanders that he
wants to continue living with Grandmother. Id. at 27-28. Sanders testified
that Child and Grandmother have a “wonderful bond” and he looks to her for
all his needs. Id. at 48-49. She stated Child is safe and happy in
Grandmother’s home. Id. at 29. Grandmother’s home is supportive and
Sanders testified that there is “nothing but positive interaction” between Child
and Grandmother. Id. at 22. Grandmother has attended to all of Child’s
medical and educational needs, including special education services. Id. at
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6 Father sold water on the street in Grandmother’s neighborhood. N.T.,
10/25/2017, at 25, 40.
7Grandmother testified that Father gave Child a phone a few days before the
hearing and “bought food stamps” a couple times. N.T., 10/25/2017, at 57.
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30-31. Since living with Grandmother, Child is no longer having tantrums at
school, is no longer on medication relating to his behavior, and has the benefit
of an individualized education plan for special education services at school.
Id. at 30, 32-33. Father has not attended any of Child’s school-related
meetings or activities. Id. at 28. Sanders opined that Child would not suffer
irreparable harm if parental rights were terminated, and believes termination
is in Child’s best interests. Id. at 28-29.
Additionally, Grandmother confirmed at the hearing that Child has lived
with her for nearly two years, that she has been his primary caregiver, and
that she seeks to adopt him. Id. at 52. She stated she has seen a significant
improvement in Child during his time with her. Id. at 58. Grandmother
expressed concern over Child’s behavior when Father appears at her home
because Child (and another grandchild) run upstairs to hide when Father
appears. Id. at 53-54, 62-63. She also expressed concern over Father’s
behavior, which resembles bipolar disorder with his mood swings and fits of
anger, and she believes he may be on drugs. Id. at 55-56, 59.
Next, Father testified against his counsel’s advice. See id. at 76. Father
confirmed he had been incarcerated for terroristic threats, assault, and arson.
Id. at 80. He provided evidence that he had completed recently a drug and
alcohol treatment program, which was a condition of his probation. Id. at 81-
82, Father Exh. 1. Father stated he had just received a settlement for social
security income and would be able to attain housing, but he acknowledged he
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remained without housing as of the hearing date. Id. at 83-84. He stated he
receives mental health treatment and takes daily medications relating to his
mental health. Id. at 47, 88-89. Notably, the family court did not find Father
to be credible. Id. at 94 (stating at the conclusion of the hearing that “…
[Father] presents to [the family court] as someone who has no credibility
whatsoever”); see also Trial Court Opinion (TCO), 3/14/2018, at 21-22.
At the conclusion of the hearing that day, the family court entered a
decree terminating Father’s parental rights pursuant to subsections
2511(a)(1), (2) and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938. On
January 16, 2018,8 Father filed a notice of appeal along with a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
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8 While no party has challenged the timeliness of this appeal, we may raise
sua sponte the issue since it goes to our jurisdiction to entertain an appeal.
In re Adoption of W.R., 823 A.2d 1013, 1015 (Pa. Super. 2003). Father
had 30 days, or until November 24, 2017, to file a notice of appeal with this
Court. However, ten days before the expiration of the appeal period, Father’s
counsel was granted permission to withdraw and the family court did not
appoint new counsel for Father until December 11, 2017. From November 14,
2017 until December 11, 2017, Father was without counsel. Father was never
given notice by the court that it had granted his counsel permission to
withdraw; as such, Father could not timely file pro se a notice of appeal or
retain new counsel to file same. Thereafter, Father, through counsel, filed a
petition for reinstatement of appeal nunc pro tunc, which the family court
granted. Based on the foregoing, we find it was within the family court’s
discretion to grant Father nunc pro tunc relief because of a breakdown in the
court operations of the family court. W.R., 823 A.2d at 1015 (holding “a trial
court may grant an appeal nunc pro tunc when a delay in filing an appeal is
caused by … some breakdown in the court’s operation through a default of its
officers”) (citation omitted).
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1925(a)(2)(i) after the family court permitted Father to file an appeal nunc
pro tunc.9 The family court filed its opinion on March 14, 2018.
Father raises the following issues on appeal:
1. Did [DHS] sustain the burden that Father’s rights should be
terminated where there was evidence that Father had
completed and/or had been actively completing [his]
permanency goals?
2. Was there sufficient evidence presented to establish that it was
in the best interest of [Child] to terminate Father’s parental
rights?
Father’s Brief at 4 (unnumbered).
We consider Father’s issues mindful of our standard of review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
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9 Father filed one notice of appeal to challenge both the October 25, 2017
termination decree and the October 25, 2017 permanency review order, and
included the docket numbers for both Child’s dependency and adoption
matters. The correct procedure in this circumstance is to file separate notices
of appeal for each docket. See Pa.R.A.P. 341, Note (“Where … one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). Our Supreme
Court has held that the failure to file separate notices of appeal from an order
resolving issues on more than one docket “requires the appellate court to
quash the appeal.” Commonwealth v. Walker, ___ A.3d ___, 2018 WL
2448643 at *6 (Pa. filed June 1, 2018). However, this holding applies only
“in future cases.” Id. Thus, because Father filed his notice of appeal prior to
the filing of our Supreme Court’s decision in Walker, we do not quash his
appeal.
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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) (citations and quotation marks
omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act, which 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 [subs]ection 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 [subs]ection 2511(b): determination of
the needs and welfare of the child under the standard of best
interests of the child….
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the family court terminated Father’s parental rights
pursuant to subsections 2511(a)(1), (2) and (b). We need only agree with
the court as to any one subsection of 2511(a) in order to affirm. In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we analyze the family
court’s decision to terminate under subsection 2511(a)(2), which provides 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:
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(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.
23 Pa.C.S. § 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 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
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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Father contends that he was achieving his single case plan goals and
working toward reunification with Child, and that his only obstacle was lack of
housing. Father’s Brief at 10 (unnumbered). However, the family court
concluded there is “clear and convincing evidence that Father failed and
refused to perform parental duties, failed to address the conditions which
brought [Child] into placement, and lacks the capacity to adequately provide
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care and control and a stable environment necessary for this eleven year old
Child.” TCO, 3/14/2018, at 16-17. The family court further found that “Father
cannot provide a permanent, healthy, safe environment for [Child], and
Father’s lack of action demonstrates his inability to care for [Child] now or in
the future.” Id. at 18-19.
The family court’s conclusions are supported by the record, and we
discern no error or abuse of discretion. The record confirms that Father has
neglected to parent Child, and that Father cannot or will not remedy the
conditions and causes of such neglect in the foreseeable future. There is no
evidence that Father has, at any point during Child’s life, had custody of him
or provided support, nor is there evidence he will be able to act as Child’s
parent within a reasonable time. Father is transient, lacks safe and
appropriate housing, is not gainfully employed, has not consistently visited
with Child, rejected opportunities to visit with Child when it was not convenient
to him, and does not attend Child’s school or counseling meetings. We have
repeatedly made clear that “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). Accordingly, we conclude there is no merit to Father’s argument that
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the family court erred when it terminated involuntarily Father’s parental rights
under subsection 2511(a)(2).
Having concluded the statutory grounds for termination under
subsection 2511(a) were met, we turn our analysis to subsection 2511(b). As
our Supreme Court has explained, “[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’ [as
outlined in 23 Pa.C.S. § 2511(b)].” T.S.M., 71 A.3d at 267. That subsection
provides as follows.
(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. § 2511(b).
We have explained the analysis under subsection 2511(b) as follows.
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term ‘bond’ is not defined in the Adoption
Act. Case law, however, provides that analysis of the emotional
bond, if any, between parent and child is a factor to be considered
as part of our analysis. 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
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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. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
On appeal, Father argues that the family court should not have
terminated his rights pursuant to subsection 2511(b) because there is
“insufficient evidence to establish that it was in the best interests of [Child] to
be adopted.” Father’s Brief at 12 (unnumbered). According to Father, the
family court “was never presented with enough information to determine
whether there was a bond between [Child and Father].” Id.
In assessing whether termination best meets Child’s needs and welfare,
the family court relied on “the credible testimony of [Sanders and
Grandmother], who provided tangible and intangible dimensions of the needs
and welfare of [Child].” TCO, 3/14/2018, at 19. The family court also relied
on Sanders’s testimony that Child would not suffer irreparable harm and her
testimony that it would be in Child’s best interest if both parents’ rights were
terminated. Id. at 20. Specifically, the family court noted the testimony of
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Sanders and Grandmother that Child feels safe with Grandmother, is happy
with her, never asks for Father, has lived with Grandmother for two years,
and that Grandmother has attended all of Child’s school meetings and
counseling sessions. Id. After also noting Child’s bond with Grandmother,
the family court concluded termination best served the needs and welfare of
Child. Id.
The record supports the family court’s determination and we find no
error or abuse of discretion. The unrefuted testimony shows Child is bonded
to Grandmother and is thriving in her home. Further, Child articulated his
preference that he wants to stay with Grandmother. He is safe and happy
with her, has been in a stable family environment with her for two years, and
looks to her for his safety, security, and all of his needs. Removal of Child
from Grandmother’s home would destroy the continuity in his life and almost
certainly undo what he has been able to achieve while living with her, including
marked improvement in behavior and school, receipt of special education
services, and lack of a need for medication.
Moreover,
this Court has held that “the [family] court is not required by
statute or precedent to order a formal bonding evaluation be
performed by an expert.” In re K.K.R.–S., 958 A.2d 529, 533
(Pa. Super. 2008). While it may be “wise” to conduct a “bonding
evaluation” where there is evidence of a bond, in other cases
“direct observation of the interaction between the parent and the
child is not necessary and may even be detrimental to the child.”
In re K.Z.S., 946 A.2d 753, 762–63 (Pa. Super. 2008).
Furthermore, the [family] court is free to rely upon the
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assessments of social workers and caseworkers. In re M.A.B.,
166 A.3d 434, 444 (Pa. Super. 2017).
In re Adoption of J.N.M., 177 A.3d 937, 944–45 (Pa. Super. 2018); see
also K.Z.S., 946 A.2d at 762-63 (“In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists.”).
Sanders testified Child never asks about Father. Whatever relationship
Child may have with Father is attenuated, particularly given Child’s behavior
of running upstairs to hide from Father when he appears at Grandmother’s
home. There is absolutely no evidence to suggest Child is bonded to Father,
such that terminating Father’s parental rights will sever an existing,
necessary, and beneficial relationship or that it will result in irreparable harm
to Child. Sanders opined that Child would not suffer irreparable harm if
parental rights were terminated, and believes termination is in Child’s best
interests. As such, the bond between Child and Grandmother is the primary
bond to protect. See K.Z.S., 946 A.2d at 764. Thus, we find the family court
correctly determined that termination of Father’s parental rights best serves
the needs and welfare of Child under subsection 2511(b).
Because evidence of record supports the family court’s decision to
terminate Father’s parental rights, we have no reason to disturb it.
Accordingly, we affirm the decree terminating Father’s parental rights and the
permanency review order changing Child’s permanency goal to adoption.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/18
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