In the Int. of: J.J.A.,Jr., Appeal of: J.A. ( 2022 )


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  • J-A16010-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN THE INTEREST OF: J.J.A., JR., A    :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
    :
    :
    APPEAL OF: J.A., FATHER               :
    :
    :
    :
    :   No. 238 EDA 2022
    Appeal from the Decree Entered December 15, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-AP-0000294-2019
    IN THE INTEREST OF: A.G.A., A         :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
    :
    :
    APPEAL OF: J.A., FATHER               :
    :
    :
    :
    :   No. 239 EDA 2022
    Appeal from the Decree Entered December 15, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-AP-0000295-2019
    IN THE INTEREST OF: S.R.A., A         :   IN THE SUPERIOR COURT OF
    MINOR                                 :        PENNSYLVANIA
    :
    :
    APPEAL OF: J.A., FATHER               :
    :
    :
    :
    :   No. 240 EDA 2022
    Appeal from the Decree Entered December 15, 2021
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
    No(s): CP-51-AP-0000486-2021
    J-A16010-22
    BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
    MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 6, 2022
    J.A. (“Father”) appeals from the decrees terminating his parental rights
    to his three children. Father argues the court erred in concluding the
    Department of Human Services (“DHS”) presented clear and convincing
    evidence to support termination because Father was substantially compliant
    with his case objectives and always demonstrated a desire to maintain his
    parental status. We affirm.
    Father had three children with S.P. (“Mother”): J.J.A., Jr. (“J.A.”) (born
    2015), A.G.A. (“A.A.”) (born 2017), and S.R.A. (“S.A.”) (born 2020). DHS
    became involved with the family in August 2017, prior to S.A.’s birth, after
    learning that J.A. and A.A. were living in a home infested with cockroaches
    and that A.A. required intensive medical care, including a gastronomy tube.
    DHS was also informed that Father and Mother were “intellectually delayed”
    and unable to properly care for the children. Trial Court Opinion, filed 3/17/22,
    at 2-3.
    DHS engaged Family Empowerment Services to assist the family.
    However, DHS subsequently received several General Protective Services
    (“GPS”) reports about the family. The reports detailed that Father and Mother
    were failing to provide adequate medical care for the children and refusing an
    in-home nurse for A.A. The reports further stated that the home and children
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
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    were dirty and unkempt; and Father and Mother had “unidentified disabilities
    or delays.” Id. at 3-4. DHS investigated further and found the parents unable
    “to grasp the severity of [A.A.]’s condition” and observed that J.A. was
    developmentally delayed. Dependency Petition, 11/15/17, ¶ 5, at l., m. DHS
    reported,
    [A.A.] was hospitalized due to complications from a G-tube and
    ear infection. [A.A.] has a genetic disease called 22Q11 and
    cardiac issues. She has a g-tube that is not kept clean and the
    parents are not feeding correctly causing the child to lose weight.
    There was a nurse coming to the home but [M]other “fired” her
    and refuses services. . . . DHS visited the home and found it to be
    inappropriate for a medical[ly] needy infant. The home is
    overcrowded, numerous animals in the home and feces from the
    animals throughout the home. There [are] only two beds and one
    is covered with dirty laundry. It was also learned that [J.A.], age
    2 is autistic. He was receiving services through Child Link but
    [M]other also stopped allowing Child Link to continue working with
    [J.A.].
    Order for Protective Custody, 11/18/17, at 3 (unpaginated). At one point,
    A.A.’s heart medication ran out and the parents did not refill the prescription
    because they thought A.A. no longer needed it. Trial Ct. Op. at 6.
    DHS obtained an Order of Protective Custody for J.A. and A.A. in
    November 2017. Following a shelter care hearing, DHS placed J.A. in kinship
    care with his maternal great-aunt (“Maternal Aunt”). A.A. was transferred
    from the hospital to a medical facility and later to a pediatric specialty group
    home.
    The court held an adjudicatory hearing and adjudicated the children
    dependent. The court referred the parents to the Behavioral Health System
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    (“BHS”) for a psychological evaluation and IQ testing and to the Achieving
    Reunification Center (“ARC”). The court ordered DHS to create a Single Case
    Plan (“SCP”) and to refer the parents for parenting capacity evaluations
    (“PCEs”) and Family School. DHS was also to refer J.A. for early intervention
    services. The court ordered the parents to have supervised visits with the
    children. See Order of Adjudication and Disposition, 11/17/17.
    In March 2018, an initial Single Case Plan (“SCP”) was created. Father’s
    objectives included:
    •   obtain appropriate housing;
    •   attend ARC and adhere to all recommended services;
    •   participate in the PCE;
    •   attend all medical appointments for the children;
    •   attend scheduled visits with Children; and
    •   sign all necessary releases.
    Trial Ct. Op. at 9.
    The SCP was later revised to include: compliance with Intellectual
    Disability Services (“IDS”) and develop and implement a family budgeting
    plan. Id. at 11-12. The court held periodic permanency review hearings to
    monitor the parties’ progress.
    In June 2020, Mother gave birth to S.A. prematurely. Upon S.A.’s
    discharge from the NICU, DHS obtained an order of protective custody and
    placed S.A. with Maternal Aunt. The court adjudicated S.A. dependent in
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    September 2020 and ordered that the parents have liberal visits with the
    children while supervised by Maternal Aunt.
    The court revised the SCP in March 2021, adding that Father and Mother
    were to participate in a domestic violence assessment. Trial Ct. Op. at 18.
    DHS placed A.A., whose leg had been surgically amputated and was
    wheelchair-bound, with Maternal Aunt that July. N.T., 12/15/21, at 65.
    The following month, DHS filed petitions to change the permanency
    goals for the children to adoption and for involuntary termination of Father’s
    and Mother’s parental rights to the children under Sections 2511(a)(1), (2),
    (5), and (8).1 See 23 Pa.C.S.A. § 2511.
    At a hearing on the termination and goal-change petitions, in December
    2021, the court heard expert testimony from Dr. Erica Williams, a psychologist
    at Forensic Mental Health Services who had completed the PCE of Father in
    July 2018. Trial Ct. Op. at 22. At that time, Dr. Williams had “determined to a
    reasonable degree of professional psychological certainty that Father did not
    present with the capacity to provide safety and permanency for his Children.”
    Id.
    Dr. Williams found Father “presented with noticeable cognitive
    limitations” and lacked an ability “to meet the basic needs with housing,
    finances, understanding the basic care of the Children, [or meet] their medical
    ____________________________________________
    1 DHS had filed an initial set of petitions for J.A. and A.A. in April 2019 which
    the court had held in abeyance. See Permanency Review Order, J.A., 1/21/20,
    at 2; Continuance Order, J.A., 6/11/19, at 1.
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    needs[.]” Id. at 22, 24. Dr. Williams also said that Father failed to “understand
    the reason the Children came into care,” believing the situation would resolve
    if DHS provided the family with a home. Id. at 22. Father told Dr. Williams
    that all missed medical appointments “were the problem of [Mother],” and
    blamed A.A.’s needs on the nursing staff. Id. Dr. Williams also observed that
    A.A. has complex needs, requiring a parent have the ability to read and write
    independently. Id. at 23.
    Dr. Williams recommended Father engage in therapy to help him
    understand what the issues were, to take responsibility for them, and to
    understand what barriers his cognitive limitation might present and to create
    safeguards against them. Id. Dr. Williams testified that if Father was not able
    to care for the children with the support of Family School, she would be
    concerned that Father would be unable to transition to unsupervised care. Id.
    She stated that Father might not progress without consistently engaging in
    therapy, and that even if he did, this would not guarantee Father had gained
    the capacity to parent safely. Id. at 23, 24. Dr. Williams also noted that Father
    had been inconsistent with visiting the children at the time of the PCE, and
    cautioned that if his inconsistency had continued, “it would affirm that there’s
    that limitation of being able to make and keep appointments for himself, never
    mind his Children.” Id. at 24.
    The court also heard the testimony of Tiyonna Pelzer, the case manager
    with the Community Umbrella Agency (“CUA”) from September 2020 through
    August 2021. She testified that Father had completed parenting classes but
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    did not want to attend Family School “because they had bumble bees and he
    was allergic to them.” Id. at 25. Pelzer testified that Father was also
    inconsistent in participating in his mental health treatment, and when she
    asked him why he had stopped attending treatment, Father responded that
    the therapist had stopped calling him. Id. at 25-26.      Father also failed to
    engage with IDS “due to insurance issues.” Id. at 26. Furthermore, Father
    never provided Pelzer with proof of his income from his alleged construction
    job. Father also never provided documentation to prove the family had a right
    to reside in Father’s parents’ home, and never developed a financial plan. Id.;
    N.T. at 73.
    Pelzer further testified that Father never came to understand why the
    children came into care and his role in it, and still blames a nurse for the
    children’s removal. Trial Ct. Op. at 26. Pelzer stated that domestic violence
    was an ongoing issue at the time she left the case, but Father had refused to
    attend domestic violence counseling. Id.; N.T. at 74.
    Pelzer testified that Father was also inconsistent in attending A.A.’s
    medical appointments and in visiting the children. Trial Ct. Op. at 25. Early in
    the case, Pelzer observed the supervised visits at the agency, where Father
    “was not hands-on with the Children and instead would just watch Mother play
    with them.” Id. Pelzer also observed Father yell at J.A. until he sat in the
    corner with his head down. Id. at 27. During visits with Father, J.A. would ask
    if he could go home when the visit was over, or ask for his Maternal Aunt or
    grandmother. N.T. at 78. When Father visited A.A., she “almost [tried] to jump
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    out of her wheelchair” when she saw him. Id. S.A. would just “yell and
    scream” when handed to Father. Id. at 79. Father would also leave visits early
    and would skip visits, claiming he had to work. Trial Ct. Op. at 26. When
    visitation transitioned to Maternal Aunt’s house, Pelzer would provide
    transportation passes, but Father only attended one visit. Id.; N.T. at 76.
    Pelzer stated that she believes Father is not capable of meeting the
    children’s needs and that the children do not share a parental bond with
    Father. Trial Ct. Op. at 26, 27. In contrast, with Maternal Aunt, “all their needs
    are being met and they are safe.” Id. at 27. According to Pelzer, “[a]ll three
    [c]hildren are bonded to the Maternal Aunt and look to her for love, protection,
    and support.” Id. Pelzer believes the children would not suffer irreparable
    harm if Father’s parental rights were terminated and that it would be in the
    children’s best interests to be adopted by Maternal Aunt. Id.
    DHS also presented the testimony of Danielle Enguero, the CUA case
    manager as of October 2021. Enguero testified that she could not confirm
    Father’s mental health treatment because Father never showed up to his
    appointment to sign releases. Id. Father has not provided her with any
    documentation regarding his housing, has not engaged in domestic violence
    counseling, and has not attended any medical appoints for the children since
    she began supervising the case, including when A.A. was hospitalized in
    November 2021. Id.; N.T. at 98. Father has continued to be inconsistent in
    visiting the children. Trial Ct. Op. at 27.
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    Enguero testified that all three children now live with Maternal Aunt and
    that they “are very well adjusted in the Maternal Aunt’s home and are
    thriving.” Id. at 28. J.A., who is autistic, attends first grade, and A.A., who
    has an in-home nurse five days a week, has enrolled at the same school. Id.;
    N.T. at 102. S.A. has no special medical or developmental needs. Trial Ct. Op.
    at 28.
    The court-appointed child advocate for the two older children also
    addressed the court. She stated that J.A. is 6 years old and A.A. is 4 years
    old, and they both have special needs. Id. After visiting the children twice,
    the child advocate “could tell they were loved and well taken care of and they
    both wanted to stay with Maternal Aunt.” Id. at 30. Father did not testify.
    The court granted the petitions, having found DHS provided clear and
    convincing evidence of the statutory requirements for termination pursuant to
    Sections 2511(a)(1), (2), (5), (8), and (b) and that adoption is in the best
    interest of the children.
    Father appealed from the decrees terminating his parental rights.2 He
    presents his issue as follows: “Did the Trial Court err in terminating [Father]’s
    parental rights under 23 Pa.C.S.A. Sec. 2511(a)(1), (a)(2), (a)(5), (a)(8), &
    Sec. 2511(b)?” Father’s Br. at 4.
    ____________________________________________
    2 Mother appealed from the orders terminating her parental rights, as well as
    from the orders changing the permanency goals to adoption. Her appeals are
    docketed at Nos. 231, 232, 234, 235, 236, and 237 EDA 2022.
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    Father first argues that the court erred in finding clear and convincing
    evidence warranting termination under Section 2511(a). Father argues that
    termination was not proper under Subsection 2511(a)(1) because he “always
    demonstrated a serious intent, willingness, and capacity to care for his
    children” and never “a settled purpose to relinquish [his] parental claim.” Id.
    at 11. He argues that Pelzer testified that Father was involved in the children’s
    care and attended some medical appointments for A.A. Father also argues
    termination was not warranted under Subsection 2511(a)(2), because Father
    found appropriate housing with his mother, who had inherited property from
    her parents. Father further contends none of the evidence established that the
    conditions causing the original placement could not be remedied.
    As for Subsection 2511(a)(5), Father claims termination is not
    warranted because Father did not decide to terminate the relationship for any
    six-month period, as he participated in a PCE, some mental health therapy,
    completed parenting classes, and obtained appropriate housing. Father also
    visited with his children to the extent that his work obligations would allow.
    Finally, Father argues the evidence does not support termination under
    Subsection 2511(a)(8), because Father obtained suitable housing, completed
    the PCE, attended therapy, parenting classes, and some medical appointments
    and visits with the children, and only missed others due to his employment.
    Father next argues that termination would not serve the children’s needs
    and welfare under Section 2511(b). He states that “although [he] did not fully
    complete his goals, given his intellectual delays his attempts to continue his
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    therapy sessions together with his completion of parenting [classes]
    demonstrated his sincere effort to bond with and express his love for his
    children. Given the opportunity[,] the children could have established a
    stronger bond with Father.” Id. at 16.
    We review the termination of parental rights for an error of law or abuse
    of discretion. In re Adoption of K.C., 
    199 A.3d 470
    , 473 (Pa.Super. 2018).
    So long as the record supports them, we will accept the factual findings and
    credibility determinations of the trial court. 
    Id.
    The party seeking involuntary termination of parental rights must
    establish, by clear and convincing evidence, that termination is warranted
    under Sections 2511(a) and (b). See 23 Pa.C.S.A. §§ 2511(a), (b); In re
    Z.S.W., 
    946 A.2d 726
    , 728 (Pa.Super. 2008). The statutory grounds for
    termination listed under Section 2511(a) focus on the conduct of the parent.
    23 Pa.C.S.A. § 2511(a); In re Adoption of R.J.S., 
    901 A.2d 502
    , 508
    (Pa.Super. 2006).
    Subsection 2511(a)(8) permits termination when:
    The child has been removed from the care of the parent by the
    court or under a voluntary agreement with an agency, 12 months
    or more have elapsed from the date of removal or placement, the
    conditions which led to the removal or placement of the child
    continue to exist and termination of parental rights would best
    serve the needs and welfare of the child.
    23 Pa.C.S.A. § 2511(a)(8).
    Under this subsection, a parent’s willingness or ability to remedy the
    conditions that initially caused the placement, and the efficacy of reunification
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    services, do not factor into the analysis. In re Adoption of R.J.S., 
    901 A.2d 502
    , 511 (Pa.Super. 2006); In re Adoption of M.E.P., 
    825 A.2d 1266
    , 1276
    (Pa.Super. 2003). This is because, after 12 months of placement, “[a] child’s
    life simply cannot be put on hold in the hope that the parent will summon the
    ability to handle the responsibilities of parenting.” 
    Id.
     (quoting In Re: J.T.
    and R.T., 
    817 A.2d 505
    , 509 (Pa.Super. 2003)). Even if the parental
    incapacity is inherent and faultless, “the law is clear that parents who are
    incapable of performing parental duties are no less unfit than parents who
    refuse to perform them.” See In re: N.C., 
    763 A.2d 913
    , 918 (Pa.Super.
    2000).
    If the court determines that grounds for termination have been
    established under Section 2511(a), the court must then determine whether
    termination of parental rights is in the child’s best interest under Section
    2511(b). That provision states, “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.” 23 Pa.C.S.A. § 2511(b). A major component
    of this 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).
    The court credited the testimony of Dr. Williams, who had evaluated
    Father’s capacity for parenting in 2018, as well as that of Pelzer and Enguero,
    the two caseworkers providing reunification services to Father. See Trial Ct.
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    Op. at 22, 25; N.T. at 143-44. The court also relied on its “own history with
    this case, having adjudicated and presided over many review hearings.” N.T.
    at 144-45.
    The court observed that the older children have been in placement for
    over four years and Father still lacked the capacity to safely parent them.
    Regarding the progress made by the parents, the court opined,
    [W]hat I heard today was that the parents have not changed their
    status regarding their ability to parent these children. They may
    have attended some classes. They may have . . . completed some
    classes and gotten attendance, but -- and it’s a phrase that the
    doctor used: compliance is not competence. . . . And it’s important
    because the same status exists now. While the parents have
    partially complied with the requirements, they complied with the
    requirements when they feel like it.
    ***
    The other issues involved are the parents’ inability to understand
    the needs of these children, understand the ability to—they do not
    have the ability to understand communications which may attend
    all of the treatment and care for the children. . . . They would need
    someone to read those documents and interpret them for them in
    order for them to understand the needs of the children. And the
    needs of these children are not simple needs.
    ***
    [T]he parents have not progressed one bit in their understanding
    of the case, of their understanding of the needs of the children,
    [and] have not progressed in their ability to parent, [which] is the
    key issue here.
    When you have children with needs like this, the children’s needs
    are escalated, and the parents have to have the ability to meet
    that escalation. The parents haven’t changed their ability to meet
    the needs of these children since the children were taken into care.
    They’ve not demonstrated any additional ability to parent these
    children.
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    Id. at 139, 140, 144-45.
    The court also considered the children’s needs and welfare, and Father’s
    bonds with the children. It credited the testimony that A.A. does not want to
    reunite with Father, that S.A. has never been in Father’s care, and that neither
    have a parental relationship with Father. Id. at 141, 144. The court found that
    while J.A. recognizes his parents, the testimony established that Father and
    J.A. do not share a parental bond. Id. at 144. The court also relied on the
    testimony that the children are receiving care and security from Maternal
    Aunt, and there would be no irreparable harm if Father’s rights were
    terminated. Id. The court concluded,
    [M]y test is not whether you’re going to be sad because I’m going
    to terminate your parental rights. It’s whether terminating the
    parental rights is in the best interest of the children and are we
    going to be able to provide a better future for these children when
    they’re in someone else’s care? And the answer for me is a
    resounding yes for all three children, supported by evidence which
    is clear, convincing, and essentially uncontradicted.
    Id. at 145.
    The record supports the trial court’s conclusion that DHS presented clear
    and convincing evidence supporting involuntary termination of Father’s
    parental rights under Subsections (a)(8) and (b). See 23 Pa.C.S.A. §
    2511(a)(8), (b). It is uncontradicted that all three children have been removed
    from Father’s care for a period exceeding 12 months.
    In addition, the conditions leading to the removal of the children persist.
    The children were removed due to medical neglect coupled with their parents’
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    inability to recognize their children’s issues or maintain a safe and stable
    home. As Father acknowledges, he did not complete all of the objectives
    designed to help him remedy these conditions. While he may have engaged
    in some mental health treatment and completed a parenting course and PCE,
    Father did not complete his course of mental health treatment, nor did he
    complete Family School or adhere to the requirements that he maintain
    scheduled visits with his children, create a financial plan for his family, or
    engage with IDS. Significantly, Father never engaged in domestic violence
    counseling, despite the ongoing concerns regarding violence in the home. Dr.
    Williams opined that Father’s cognitive ability might prevent him from ever
    developing the capacity to safely parent, and the testimony of Pelzer and
    Enguero reflected that Father had not progressed in his understanding of his
    critical role and responsibilities as a parent.
    Finally, the evidence supports that termination best suits the needs and
    welfare of the children—relevant here under both subsection 2511(a)(8) and
    (b). The children have no parental bond with Father and are thriving with
    Maternal Aunt, who is willing to adopt them.
    For the foregoing reasons, we affirm the decrees terminating Father’s
    parental rights to the children. As we affirm termination under Subsection
    (a)(8), we need not determine whether grounds for termination were
    established under the other subsections. In re B.L.W., 
    843 A.2d 380
    , 384
    (Pa.Super. 2004) (en banc).
    Decrees affirmed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/6/2022
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Document Info

Docket Number: 238 EDA 2022

Judges: McLaughlin, J.

Filed Date: 9/6/2022

Precedential Status: Precedential

Modified Date: 9/6/2022