In Re: W.P.J.K., Appeal of: J.K., Father ( 2020 )

J-S65026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.P.J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.K., FATHER :
:
:
:
:
: No. 1026 MDA 2019
Appeal from the Decree Entered, May 30, 2019,
in the Court of Common Pleas of Berks County,
Orphans' Court at No(s): 86417.
IN RE: E.J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.W.K., FATHER :
:
:
:
:
: No. 1027 MDA 2019
Appeal from the Decree Entered, May 30, 2019,
in the Court of Common Pleas of Berks County,
Orphans' Court at No(s): 86416.
IN RE: K.J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.K., FATHER :
:
:
:
:
: No. 1028 MDA 2019
Appeal from the Decree Entered May 30, 2019
J-S65026-19
in the Court of Common Pleas of Berks County,
Orphans' Court at No(s): 86415.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 06, 2020
J.W.K. (Father) appeals from the decrees entered by the Berks County
Orphans’ Court, which involuntarily terminated his parental rights to three of
his children (four-year-daughter K.J.K, two-year-daughter E.J.K., and one-
year-son W.P.J.K.) pursuant to the Adoption Act. 1 See 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8) and (b). Upon review, we affirm.
The orphans’ court summarized the factual and procedural history of
this matter as follows:
[Father] and [Mother] (collectively “Parents”) are the
natural parents of K.J.K. (born October [] 2014), E.J.K.
(born January [] 2017) and W.P.[J.]K. (born January []
2018) (collectively “the Children”). Mother and Father were
not married when the Children were born. Mother has three
additional children who do not reside with her and Father
has two additional children that do not reside with him.
Berks County Children and Youth Services (“BCCYS”) first
engaged Parents and Children (“the Family”) in 2013,
though services were discontinued when Parents moved into
Montgomery County. In November of 2015, upon referral
from BCCYS and the Family moving into Montgomery
County, Montgomery County Children and Youth Services
(“MCCYS”) became involved in funding services and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1The orphans’ court also terminated the parental rights of J.L.C. (Mother).
She filed a separate appeal, which is also before this panel.
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supervision of the case due to ongoing mental health,
domestic violence and housing stability issues.
In 2017, upon referral from MCCYS indicating that the
Family had moved back into Berks County, BCCYS was re-
engaged with the Family in order to address ongoing issues
with both Mother and Father. After several months within
which several incidents and continuing issues prompted
safety plans from BCCYS, but the safety plans were
repeatedly broken. On October 12, 2017, BCCYS filed an
emergency petition for custody of K.J.K. and E.J.K. that was
granted by the court. BCCYS then filed a dependency
petition for K.J.K. and E.J.K., and upon a hearing before this
court, legal custody was transferred to BCCYS for placement
purposes. The primary established goal was return of K.J.K.
and E.J.K. to the most appropriate parent with a concurrent
goal of adoption.
Mother gave birth to W.[P.]J.K. [i]n January [] 2018. After
no reported prenatal care and both Mother and W.[P.]J.K.
tested positive for methamphetamines, BCCYS filed a
petition on March 13, 2018 seeking dependency of
W.[P.]J.K. The court ordered that W.[P.]J.K. would remain
with Parents as he was still hospitalized, but also ordered
that foster parents were allowed to visit W.[P.]J.K. due to
Parents’ inconsistent visits. Upon his discharge from the
hospital, BCCYS filed for emergency custody of W.[P.]J.K.
and after a hearing, legal custody was transferred to BCCYS
on March 28, 2018.
[***]
On October 31, 2018, [BCCYS] filed a petition for the
involuntary termination of the parental rights of both Mother
and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
and (8). The petition cited the same following factual
support for grounds for termination:
a. Failure of Mother and Father to obtain and maintain a
legal/stable source of income;
b. Failure of Mother and Father to obtain and maintain
stable and appropriate housing;
c. Inability of Mother and Father to appropriately parent
the Children;
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d. Failure of Mother and Father to show progress with
parenting skills;
e. Failure of Mother and Father to remediate substance
abuse issues;
f. Concerns remaining regarding Mother’s and Father’s
mental health; and
g. Concerns remaining regarding issues of domestic
violence.
A hearing on the petition was held on May 13, 2019 and
continued for a second day on May 23, 2019.
[***]
Upon conclusion of the hearing, the court took the matter
under advisement. Thereafter, [the court] filed separate
orders dated May 30, 2019 terminating the parental rights
of both Mother and Father as to K.J.K., E.J.K., and
W.[P.]J.K.
Trial Court Opinion, 8/15/19, at 1-16 (citations to the record omitted).
Father filed this timely appeal, wherein he presents two interconnected
issues for our review:
1. Whether the orphans’ court erred in involuntarily
terminating Father’s parental rights between K.J.K.
and him, where there was a strong emotional and
parental bond between him and K.J.K., which would
have had a negative effect on the child if the parental
bond was permanently severed?
2. Whether the orphans’ court erred in involuntarily
terminating Father’s parental rights to W.P.J.K. and
E.J.K., where there was a strong emotional and
parental bond between Father and K.J.K., which would
have a negative effect on the younger children if the
bond was permanently severed and it would be
detrimental to sever the ties between the three
children who are extremely bonded as siblings?
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Father’s Brief at 5. (Edited for clarity.)
Initially, we note Father’s second issue depends on the success of his
first. Father all but concedes he does not have a strong parental bond with
the younger children (E.J.K. and W.P.J.K.). But, he argues, the younger
children’s sibling bond with the eldest child (K.J.K.) is so essential that if his
rights to K.J.K. should not be terminated, neither should his rights to the E.J.K.
and W.P.J.K.
We begin with our well-settled 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 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 Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In
re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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 Section 2511(a). Only
if the court determines that the parent's conduct warrants
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termination of his or her parental rights does the court
engage in the second part of the analysis pursuant
to Section 2511(b): determination of the needs and welfare
of the child under the standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The petitioner must prove by clear and convincing evidence that the
asserted statutory grounds for seeking the termination of parental rights are
valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
When terminating parental rights under section 2511(a), this court has
stated that the focus is on the parent; but under section 2511(b), the focus in
on the child. 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 as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 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. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
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evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances...where 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 (Pa. Super. 2008).
A parent’s abuse and neglect are also a relevant part of this analysis.
See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). 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 mother would be contrary to child’s best
interests). “[A] parent’s basic constitutional right to the custody and rearing
of ... her child is converted, upon the failure to fulfill ... her 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
847, 856 (Pa. Super. 2004) (internal citations omitted).
Instantly, Father limits his appeal to the second prong of the termination
analysis, section 2511(b). Thus, we accept the orphans’ court determination
that termination was warranted under section 2511(a)(1), (2), (5) and (8),
and we narrow our focus on section 2511(b). Regarding section 2511(b),
Father argues that he regularly visited K.J.K. during the dependency case, and
that during those visits, he demonstrated appropriate parenting by completing
such tasks as feeding and diaper changing. He highlights the testimony of a
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MCCYS caseworker who opined that Father cared for Children and did a good
job with them. Similarly, Father directs us to the testimony of another service
provider, who stated that K.J.K. is attached to Father. Finally, Father argues
that since he ended his relationship with Mother, he has placed himself in a
position where he could care for the Children full-time. See Father’s Brief at
11-12.
Regarding the section 2511(b) analysis, we observe that the orphans’
court made extensive findings to support its ultimate determination that
termination of Father’s rights was warranted:
Dr. Richard Small, who was qualified as an expert in the field
of psychology, testified that he performed forensic
valuations of both Father and Mother. Dr. Small’s
evaluation of Father performed in March of 2018 and Father
presented as exhibiting self-centered and anti-social
behavior. Dr. Small noted that Father’s relationship with
Mother included verbal and physical violence, including a
PFA, and that the relationship between the two was difficult.
Father admitted no issues and indicated that any problems
were the fault of other people without accepting any
responsibility of his own.
In relation to Father’s prospect of change, Dr. Small opined
that he sees Father’s prospect of change as “not very good,”
due to Father’s personality disorder and because Father
maintains that he has done nothing wrong and viewing
himself as superior to others. Initially, Father refused to
admit any drug use, but then slowly provided further details
on his drug use. When Dr. Small asked how Father could
maintain clean urine samples, Father indicated that he knew
how to game the system. Further, Father demonstrated no
view of problematic drug use other than perhaps the legal
consequences arising therefrom.
[***]
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Dr. Small opined that he had great concern regarding the
combustible relationship between Father and Mother and
the negative effect on the needs of the Children. Dr. Small
further indicated that it is common to observe intermittent
periods of engagement with individuals in which it appears
that the individuals are cooperating and recognizing issues,
but then the progress falls apart. When it came to the
Children, Dr. Small noted that Father spoke about the
Children with affection, while Mother was much more
focused on herself without much mention of the Children.
However, Dr. Small concluded that he had strong doubts as
to whether Father or Mother could provide a consistent safe,
nurturing and stable environment for the Children.
[***]
After issues with Parents arriving late for visitation
appointments, BCCYS implemented and the court later
ordered, the Parents arrive one hour prior to the visitation
appointments. As was noted, both Parents missed or
cancelled appointments throughout. When Father
requested separate visitation times, visitation was reduced
from twice a week for two hours with both Parents to once
a week for two hours with Mother and the same with Father.
[The permanency and adoption supervisor with BCCYS]
noted that K.J.K. demonstrated no negative effects resulting
from the reduction in visitation time. K.J.K. does not ask
for Parents while at the home of foster parents between
visitation periods and there is no indication of effect or
statements from K.J.K. when Parents have cancelled or
failed to show up for visitation appointments.
[***]
[The permanency and adoption supervisor with BCCYS]
indicated that she saw no detriment to the Children in
terminating parental rights. W.[P.]J.K. has been in the care
of the foster parents since shortly after his birth and is
primary attached to the foster parents. E.J.K. has formed a
secure attachment to the foster parents, seeking and
receiving comfort, support and fulfillment of her needs.
K.J.K. has expressed that she didn’t want to go back to the
foster home or daycare following some visits, but she is
easily redirected and is responsive to the comfort. K.J.K.
refers to foster parents as mom and dad.
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[The permanency and adoption supervisor with BCCYS]
explained that BCCYS is seeking termination of parental
rights due to the age and vulnerability of the Children, the
length of time within which Parents have been afforded the
opportunity to engage in services, the span of the case
across two counties and the lack of progress and
consistency from Parents. The needs of the Children for
stability in living arrangements and in environment and the
need for consistent and stable caregiving demonstrate that
termination of parental rights is in the best interests of the
Children.
[Legal Counsel for the Children] testified that he had the
opportunity to meet with foster parents and with the
Children. Legal Counsel observed the foster parents to [be]
engaging, caring and attentive to the needs of the Children
and indicated that the foster parents share an attachment
with the Children. Since E.J.K. and W.[P.]J.K. were too
young to engage in dialogue with Legal Counsel, he had a
conversation with K.J.K. K.J.K. told Legal Counsel that she
loves the foster parents, but indicated to Legal Counsel that
she wanted to live with “old mommy and daddy,” meaning
Parents.
[The GAL for the Children] testified that in reviewing the
reports, it is reported that K.J.K., though crying when she
needed to leave visits with Parents, also cried when she was
dropped off by the foster mom. K.J.K. loves both Parents
and foster parents. K.J.K. did not indicate to the GAL a
preference of where she wanted to live. The GAL observed
a strong bond between K.J.K. and the foster parents and
noted the stability that foster parents offer in relation to the
lack of stability K.J.K. had experienced with Parents. The
GAL also expressed the importance of keeping K.J.K. with
her siblings. The GAL concluded that it is in the best
interests of the Children to terminate the parental rights of
both Mother and Father, indicating that the bond with the
foster parents is healthier and much more critical than that
with Parents.
T.C.O. at 8-16 (citations to the record omitted).
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These findings, which are supported by the record, reveal that Father’s
arguments are without merit. Father claims he maintained and formed
parental bonds through visitation. The record reveals that his visitation was
not consistent. Even if it were, the record also shows that visitation alone did
not nurture a parental bond worth preserving. By not appealing the first prong
of the termination analysis, Father concedes that he was unable to parent the
Children. What he fails to realize is that because he could not parent the
Children, they began to form primary attachments to their primary caregivers,
the foster parents. In other words, even the most consistent visitation would
not necessarily prevent the Children from becoming bonded to foster parents.
We certainly recognize an atypical facet of this case, namely, that the
four-year-old K.J.K. had somewhat conflicting interests. In terms of her legal
interests, i.e., her preferred outcome,2 she expressed a desire to return to her
biological parents’ care. But on the other hand, K.J.K.’s best interests
mandated that she remain safe and secure with the foster parents. On this
point, we note that K.J.K.’s preference to return to Father was not exactly
unequivocal. She demonstrated distress when she left the care of whichever
parent (foster or biological) she was with. She referred to both sets as “mom
and dad.” She indicated that she had love for both sets, as well. Had there
____________________________________________
2 In In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) a fractured
Pennsylvania Supreme Court interpreted 23 Pa.C.S.A. § 2313(a) to mean that
a child involved in a contested termination hearing must be afforded counsel
to represent her “legal interests,” or preferred outcome of the litigation. We
note that K.J.K. was represented by separate legal counsel in this case.
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been evidence that K.J.K.’s success in the foster parents’ home would be
jeopardized by her strong desire to return to Father’s care, then the conflict
between her “best interests” and her “legal interests” would be more
concerning. But because the record clearly indicates that K.J.K. was also
strongly bonded to the foster parents, the record supports the orphans’ court
determination that K.J.K.’s legal interests (to live with Father) did not
outweigh her best interests (to remain with the foster parents).
K.J.K.’s legal interests aside, Father argues that it was in K.J.K.’s best
interests to deny the termination, because she had a “strong bond” with
Father. Father’s Brief at 12. Whether K.J.K. did, in fact, share a strong bond
with Father is debatable, but even if their bond was strong, it was not the type
worth preserving.
To explain:
When examining the effect upon a child of severing a bond,
courts must examine whether termination of parental rights
will destroy a “necessary and beneficial relationship,”
thereby causing the child to suffer “extreme emotional
consequences.” (Citation omitted). In the case of an
unhealthy bond, “attention must be paid to the pain that
inevitably results from breaking a child’s bond to a biological
parent, even if that bond is unhealthy, and we must weigh
that injury against the damage that bond may cause if left
intact. In re T.S.M., [supra] 71 A.3d 251, 267 (Pa. 2013).
In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018).
We also note that courts may consider the totality of the circumstances
when performing the needs and welfare analysis under section 2511(b).
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J.N.M., 177 A.3d at 946 (citing In re Coast 561 A.2d 762, 771 (Pa. Super.
1989) (en banc)).
Instantly, Father has evinced an inability to parent. Even if the orphans’
court was inclined to deny the termination petition, Father would not even be
in a position to enjoy unsupervised visitation, much less reunification with
K.J.K. K.J.K.’s instability would persist, which, in turn, would result in
detrimental consequences. Thus, the bond K.J.K. shares with Father is clearly
an unhealthy one. The only remaining question is whether K.J.K. would suffer
an injury if this unhealthy bond was severed.
The record supports the orphans’ court determination that K.J.K. would
not. Although she was upset after leaving her visits with Father, she was
easily redirected and responsive to the foster parents’ comfort. K.J.K. did not
ask about Father either between visits or when those visits were cancelled for
Father’s failure to show up. She experienced no negative consequences with
her visits with Father were reduced. Importantly, K.J.K. also has a bond with
foster parents, one that is much more stable and secure.
Because we conclude that termination of Father’s rights to K.J.K. was
warranted, we need not discuss Father’s second issue, the hypothetical effect
that splitting up the siblings would have on their respective best interests.
However, we note that “the goal of preserving the family unit cannot be
elevated above all other factors when considering the best interests of the
children, but must be weighed in conjunction with other factors.” In re K.D.,
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144 A.3d 145, 153 (Pa. Super. 2016) (citing In re Adoption of G.R.L., 26
A.3d 1124, 1127 (Pa. Super. 2011).
In sum, the record supports the thorough and extensive findings made
by the orphans’ court. Thus, we conclude that the orphans’ court did not
commit an abuse of discretion when it granted the termination petition filed
by BCCYS.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2020
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