In the Int. of: C.R., Appeal of: A.C.-R. ( 2022 )

J-A11022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.C.-R., FATHER :
:
:
:
: No. 1994 EDA 2021
Appeal from the Order Entered September 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000695-2016
IN THE INTEREST OF: C.A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.C.-R., FATHER :
:
:
:
: No. 1995 EDA 2021
Appeal from the Decree Entered September 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000474-2019
IN THE INTEREST OF: T.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.C.-R., FATHER :
:
:
:
:
: No. 1996 EDA 2021
Appeal from the Order Entered September 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000696-2016
J-A11022-22
IN THE INTEREST OF: T.A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.C.-R., FATHER :
:
:
:
: No. 1997 EDA 2021
Appeal from the Decree Entered September 1, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000473-2019
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 8, 2022
A.C.-R. (“Father”) appeals from the September 1, 2021 decrees that
terminated involuntarily his parental rights to his children: T.R., born in June
2010, and C.R., born in November 2012;1 as well as the orders entered the
same date that changed each child’s permanent placement goal to adoption.2
We affirm.3
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1 The captions use two different conventions for each child’s initials. Within
this memorandum, we use only the first and last initial for each child.
2The trial court entered separate decrees terminating the rights of the mother
of T.R. and C.R. (“Mother”). Mother has filed appeals in this Court as to these
two children at 1988 EDA 2021, 1989 EDA 2021, 1990 EDA 2021, and 1991
EDA 2021, as well as several appeals regarding children unrelated to Father.
3 Since Father’s brief has abandoned any argument in support of the appeals
from the goal change orders, we affirm those orders without further
discussion. See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2
(Pa.Super. 2002) (citation omitted) (“[A]n issue identified on appeal but not
developed in the appellant’s brief is abandoned and, therefore, waived.”).
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Mother and Father have a long history with the Philadelphia Department
of Human Services (“DHS”). Of immediate relevance, in 2016 DHS removed
T.R. and C.R. from the care of Father and Mother and adjudicated them
dependent after receiving a general protective services (“GPS”) report
regarding concerns with inadequate hygiene and food, as well as Mother’s
substance use. In August 2017, T.R. and C.R. were reunified with Father on
the condition that Mother not have unsupervised contact with them. However,
during a visit to Mother’s home in May 2018, DHS found Father, T.R., and C.R.
living there. DHS again took custody of T.R. and C.R. and they were re-
adjudicated dependent and placed into care.4 Since 2018, Father’s main
objectives were visitation, housing, employment, and attending his parenting
capacity evaluation (“PCE”). N.T., 7/11/19, at 192. Additionally, he was to
complete a drug and alcohol program and submit to random drug testing.
On June 26, 2019, DHS filed petitions to terminate the parental rights
of Father as to T.R. and C.R. pursuant to 23 Pa.C.S. § 2311(a)(1), (2), (5),
and (8). DHS also sought to change each child’s permanency goal to adoption.
The trial court held hearings on these petitions on July 11, 2019, January 17,
2020, January 19, 2021, March 15, 2021, and August 10, 2021.5 With respect
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4 T.R. and C.R. have resided in the same pre-adoptive foster home together
since they re-entered care in 2018.
5 In addition to the goal change and termination hearings for T.R. and C.R.,
the trial court simultaneously held goal change and termination hearings for
older half-siblings A.S. and J.S., as well as a permanency review hearing for
(Footnote Continued Next Page)
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to Father’s petitions, DHS presented the testimony of K.J., foster father to
T.R. and C.R.; Joanna Pecora and Samir Ismail,6 the case managers from the
Community Umbrella Agency (“CUA”) assigned to the family; Dr. William
Russell, who performed Father’s PCE in 2017, as well as a 2019 addendum;
and Deanna Compton, the visitation coach. Father testified on his own behalf,
as did Mother.
After taking the matters under advisement, the trial court issued
decrees terminating Father’s parental rights as to T.R. and C.R. pursuant to
§ 2511(a)(1), (2), (5), (8), and (b), as well as separate orders changing each
child’s permanency goal to adoption. Father filed timely notices of appeal and
concise statements pursuant to Pa.R.A.P. 1925(a)(2). The trial court filed a
single responsive Rule 1925(a) opinion. This Court consolidated the appeals
sua sponte. Father presents the following issues for our consideration:
1. Whether the trial court erred or abused discretion when
terminating Father’s rights under 23 Pa.C.S.A. § 2511(a)(2), (5),
(8) absent clear and convincing evidence, and changing the
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older half-sibling, K.W., none of whom are parties to this appeal. Father is
not the biological father of A.S, J.S., or K.W. At the hearings, Emily
Blumenstein, Esquire, represented T.R. and C.R. as guardian ad litem (“GAL”)
and Michael Graves, Esquire, represented them as legal counsel. While
Attorney Graves sought to have his appointment vacated within thirty-one
days following the termination of Father’s parental rights, see N.T., 9/1/21, at
13-14, the docket does not include an order vacating his appointment and he
still appears as legal counsel of record. We note with displeasure that Attorney
Graves did not file a brief with this Court on behalf of the children but the
Defender Association of Philadelphia did.
6The record alternately spells Mr. Ismail’s name as “Ishmael.” See, e.g.,
N.T., 11/5/20; N.T., 8/10/21; N.T., 9/1/21. We use “Ismail” herein.
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children’s goal to adoption against their best interests contrary to
23 Pa.C.S.A. § 2511(b).
2. Whether the trial court erred or abused discretion by relying on
prior knowledge of the case and facts not in evidence to support
the involuntary termination of Father’s parental rights.
3. Whether the trial court erred or abused discretion by relying on
an outdated [PCE] regarding Father, to support the involuntary
termination of his parental rights.
4. Whether the trial court erred or abused discretion by relying on
an outdated [PCE] regarding Mother, to support the involuntary
termination of Father’s parental rights.
5. Whether the trial court erred or abused discretion by failing to
ensure that [C.R.] was afforded his right to counsel as his counsel
failed to sufficiently inquire about the child’s desire to maintain
any ongoing legal relationship with Father or ensure that the child
understood the termination of Father’s parental role.
Father’s brief at 5.7
We begin with our standard of review for matters involving
involuntary termination of parental rights:
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
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7 Father has waived his fourth and fifth issues by failing to develop any
argument in support thereof within his brief. See Heggins, supra. With
respect to C.R.’s legal representation, we observe that, insofar as we may
review this issue sua sponte, the trial court complied with the requirements of
In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), by appointing separate
legal counsel. Id. at 1235 (holding “appellate courts should engage in sua
sponte review to determine if orphans’ courts have appointed counsel to
represent the legal interests of children in contested termination proceedings,
in compliance with [23 Pa.C.S. §] 2313(a)”).
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of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized [the appellate court’s] 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) (cleaned up). “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 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).
Termination of parental rights is governed by § 2511 of the Adoption
Act 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 [§] 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 [§] 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 [§] 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).
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Father argues that DHS failed to establish by clear and convincing
evidence the statutory grounds for termination of his parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Father’s brief at 10-16.
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) (cleaned up).
Termination is proper when the moving party proves grounds for
termination under any subsection of § 2511(a), as well as § 2511(b). T.B.B.,
supra at 395. To affirm, we need only agree with the trial court as to any
one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W., 843
A.2d 380, 384 (Pa.Super. 2004) (en banc).
Here, we focus our analysis on § 2511(a)(1) 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:
(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
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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.
Our Supreme Court set forth the proper inquiry under § 2511(a)(1) 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) (citation
omitted). As it relates to timing, this Court further explained,
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
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).
Critically, though, the court is prohibited from considering any efforts made
by a parent to remedy conditions after the filing of the termination petition.
23 Pa.C.S. § 2511(b).
The trial court found that Father “had not meaningfully engaged in [his]
affirmative duties as [a] parent” based on his failure to maintain appropriate
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housing or complete a drug and alcohol counseling program in an appropriate
time frame. Trial Court Opinion, 1/18/22, at 6-7. Father disagrees, arguing
that for almost a year before T.R. and C.R. were removed from his care, Father
provided clothing, food, and a home to the children, as well as helping Mother
rent a larger house to accommodate T.R., C.R., and Mother’s other children
for any future reunification. Father’s brief at 11-12. According to Father,
these actions evidenced his “affirmative duty to love, protect and support” his
children, and weighed against a finding of abandonment. Id. at 12.
Although Father focuses on the period before T.R. and C.R. were
removed from his care, the relevant six-month period was the six months
preceding the filing of the petition to terminate Father’s parental rights, i.e.,
from December 26, 2018 to June 26, 2019. During that period, Ms. Pecora
visited the home of Father and Mother approximately twelve times. She
testified that sometimes the home was acceptable and sometimes it was not.8
Of specific concern to Ms. Pecora were the following: insufficient space for
five children in two bedrooms when Mother was also pregnant, cigarette butts
and ash on the floor, bugs on the walls, trash and food left around, a bad
smell in at least one room, a full litter box, and animal urine and feces on the
floor. N.T., 7/11/19, at 117-20, 179-80. Father’s reliance on remediation of
these conditions after the petitions were filed is of no moment given
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8 While Father asserts that Ms. Pecora only found the house unacceptable on
four or five occasions, see Father’s brief at 14-15, she never provided such a
number. Rather, the testimony cited by Father referred to how many times
Ms. Pecora observed the puppy. N.T., 7/11/19, at 219.
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§ 2511(b)’s prohibition against considering remedies begun after the filing of
a petition in analyzing § 2511(a)(1).
As to Father’s failure to complete a drug and alcohol program, Father
alleges that he did not need treatment. See Father’s brief at 14. However,
the drug and alcohol program and random drug tests were required based
upon Father smelling of alcohol both when T.R. and C.R. were removed from
Father’s home and at their adjudicatory hearing. N.T., 7/11/19, at 192-94.
Despite receiving transportation passes to attend the court-ordered drug
screens, Father was non-compliant as of the July 11, 2019 hearing. Id. at
144-45, 148. Additionally, Father had not completed intensive outpatient
treatment as recommended by the clinical evaluation unit (“CEU”) in 2018.
Id. at 145-46.
As of the July 11, 2019 hearing, Father attended all his supervised visits
during that period. N.T., 7/11/19, at 149. However, Father had not asked to
attend either child’s medical, dental, or vision appointments and had not
attended any school appointments. Id. at 151-52. Additionally, Father had
not inquired about T.R.’s therapy sessions. Id. at 152. Ms. Pecora expressed
the following concerns about the children being reunified with Father at that
hearing: housing, upkeep of medical appointments, and Father’s work
schedule and being able to ensure the children attend medical and therapy
appointments, as well as school. Id. at 154.
Father assails the trial court’s reliance on a stale PCE from 2017 and
avers the court ignored Dr. Russell’s testimony about the 2019 PCE
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addendum. See Father’s brief at 19. However, Dr. Russell testified as to both
the 2017 PCE and the 2019 PCE addendum, in which he recommended that
Father follow all CEU recommendations and court-ordered drug screens. N.T.,
1/17/20, at 34. With respect to the 2017 PCE, even if it was stale, Dr. Russell
testified that as of the 2017 PCE, Father was compliant with his then-current
objectives and had independent housing and employment. Id. at 12. When
he conducted the addendum in the summer of 2019, however, Dr. Russell
determined that the issue with Father’s parenting capacity centered on his
inability to maintain a separate life from Mother or to put the children’s needs
and safety first. Id. at 13. In the 2019 addendum, Dr. Russell opined that
Father was unable to provide safety to his children and that he should obtain
and maintain housing independent from Mother and comply with drug screens.
Id. at 14-15, 21. As of the January 17, 2020 hearing, Dr. Russell expressed
those same concerns. Id. at 15-16.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In this
vein, “[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.” Id. at 340 (citation omitted). As it relates
to § 2511(a)(1), “[a] parent is required to exert a sincere and genuine effort
to maintain a parent-child relationship; the parent must use all available
resources to preserve the parental relationship and must exercise ‘reasonable
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firmness’ in resisting obstacles placed in the path of maintaining the parent-
child relationship.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)
(citation omitted). “This court has repeatedly recognized that parental rights
are not preserved by waiting for a more suitable or convenient time to perform
one’s parental responsibilities while others provide the child with his or her
immediate physical and emotional needs.” Id. (cleaned up).
Instantly, Father failed to assume parental duties for T.R. and C.R. for
at least six months prior to the filing of the termination petition. Aside from
visitation, he failed to comply with his objectives. Accordingly, the trial court
did not err in terminating his parental rights as to T.R. and C.R. pursuant to §
2511(a)(1).
Finally, we consider whether the trial court committed an error of law or
abuse of discretion pursuant to § 2511(b). As explained above, § 2511(b)
focuses on the needs and welfare of the child, which includes an analysis of
any emotional bond that the children may have with Father and the effect of
severing that bond. L.M., supra at 511. The key questions when conducting
this analysis are whether the bond is necessary and beneficial and whether
severance of the bond will cause the child extreme emotional
consequences. In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa.Super.
2018) (quoting In re E.M., 620 A.2d 481, 484–85 (Pa. 1993)). It is important
to recognize that the existence of a bond, while significant, is only one of many
factors courts should consider when addressing § 2511(b). In re Adoption
of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting In re N.A.M., 33
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A.3d 95, 103 (Pa.Super. 2011)). Other factors include “the safety needs of
the child, and . . . the intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.” Id.Father argues that T.R. and C.R. “repeatedly expressed their desire to
go back to mom and dad” but the foster parent was “waging some sort of
psychological warfare to convince the [c]hildren to stay with him.” Father’s
brief at 16-17. For example, Father asserted that the foster parent
“complained about trivial things[,]” like C.R. “peeing in the shower” and
“pissing in inappropriate places in the house hinting that the boy took that
habit from” Father. Id. at 17. Father also assailed the “alienating tactic” of
rescheduling many of the visits T.R. and C.R. had with Father and Mother. Id.
According to Father, “[t]hese maneuvers . . . served to wear down the
[c]hildren psychologically into submission to the idea of adoption.” Id. at 18.
As a general matter, Pennsylvania does not require the orphans’ court
to enlist a formal bonding evaluation or base its needs and welfare analysis
upon expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2011).
“Common sense dictates that courts considering termination must also
consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” In re T.S.M., supra, at 268. In
weighing the bond considerations pursuant to § 2511(b), “courts must keep
the ticking clock of childhood ever in mind.” Id. at 269. “Children are young
for a scant number of years, and we have an obligation to see to their healthy
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development quickly. When courts fail . . . the result, all too often, is
catastrophically maladjusted children.” Id. A court cannot “toll the well-being
and permanency” of a child indefinitely in the hope that a parent “will summon
the ability to handle the responsibilities of parenting.” In re C.L.G., 956 A.2d
999, 1007 (Pa.Super. 2008) (en banc) (citation omitted).
In relation to § 2511(b), the trial court cited Ms. Pecora’s belief that
termination was in the best interests of the children and that termination
would not cause irreparable harm. Trial Court Opinion, 1/18/22, at 7. Based
on its review of the record, the trial court found a bond existed between the
children and K.J. Id. This assessment is supported by the certified record.
When the children reentered care in 2018, T.R. had fourteen cavities and C.R.
had four. N.T., 7/11/19, at 143. Father claims he was aware of dental issues
when the children returned to his care in 2017 but he was unable to take the
children to the dentist while they were in his care. N.T., 8/10/21, at 79-82.
C.R. urinates in the shower, in trash cans, in bed, and on the floor, explaining
that he had seen Father do the same. N.T., 7/11/19, at 64.9 Since being in
K.J.’s care, T.R and C.R. have improved their personal hygiene and excelled
in school. Id. at 64, 71. However, T.R. and C.R. act out and revert to poor
hygiene habits surrounding parental visits. Id. at 61-64.
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9 While Father argues that this testimony is of little concern because C.R.
would have been around three years old at the time, the record bears out that
C.R. was at least five years old.
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Father has not attended school meetings or medical appointments. Id.
at 69-70. Instead, K.J. takes care of the boys’ physical, emotional, and
educational needs. Id. at 85-86. Ms. Pecora testified that T.R. and C.R. have
a healthy bond with K.J. and “would be better off . . . educationally, housing-
wise, stability-wise and care-wise” with him. Id. at 172, 174. She noted that
T.R. and C.R. look to K.J. for their daily needs, not Father. Id. at 207. Ms.
Pecora further testified that termination would not result in irreparable harm
to T.R. or C.R. N.T., 3/15/21, at 14, 27-28. Moreover, contrary to Father’s
arguments, the court considered K.J.’s rescheduling of some visitations
because of other planned events or because the children allegedly did not
want to attend the visits. Rather than ignoring this evidence, the court
admonished, “[h]e shouldn’t have done that.” N.T., 7/11/19, at 81.
Nevertheless, insofar as the periodic inconvenience to Father associated with
the rescheduled visits did not amount to alienation or coercion, Father’s
contention is unpersuasive.
The certified record demonstrates that T.R. and C.R. are best served by
terminating the parental rights of Father in anticipation of adoption by K.J.
Stated plainly, the children have thrived since entering care and the resource
parent has provided a stable, loving environment that provides structure and
satisfies each child’s developmental, physical, and emotional needs and
welfare. Moreover, the record bears out that each child has formed a healthy
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bond with their resource parent. As such, the record supports the assessment
of the trial court that termination is in the best interests of T.R. and C.R.
Accordingly, we affirm the decrees terminating Father’s parental rights
and the orders changing the permanency goals for T.R. and C.R. to adoption.
Decrees affirmed. Orders affirmed.
Judge McLaughlin joins this Memorandum.
Judge Stabile files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2022
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