In the Int. of: J.A.B.H., Appeal of: D.H. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.A.B.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.H., FATHER :
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: No. 2684 EDA 2019
Appeal from the Order Entered August 27, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000870-2018
IN THE INTEREST OF: J.A.B.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.H., FATHER :
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: No. 2685 EDA 2019
Appeal from the Order Entered August 27, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000486-2019
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 06, 2020
D.H. (“Father”) appeals from the order terminating his parental rights
to J.A.B.H. (“Child”) and the order changing Child’s goal to adoption. We
conclude the trial court did not err or abuse its discretion when it terminated
Father’s parental rights. We affirm.
Child was born in March 2018. At birth, Child tested positive for opioids,
marijuana, and Percocet, and suffered from withdrawal symptoms. The
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Philadelphia Department of Humans Services (“DHS”) obtained a protective
order in April 2018, and the court adjudicated Child dependent. In July 2018,
Child was placed with foster parents, with whom she remains today. N.T.,
8/27/19, at 46.
In July 2019, DHS filed a petition for goal change to adoption and a
petition to terminate Father’s parental rights. The court held a hearing in
August 2019, at which Community Umbrella Agency (“CUA”) caseworker
Sabrina Bell testified that CUA invited Father to the single case plan meetings,
but Father did not participate. N.T., 8/27/19, at 47. She testified that Father’s
objectives included to obtain safe and suitable housing; maintain involvement
with Child; engage in ARC for housing, employment, and parenting services;
comply with drug and alcohol services; have random drug screens; and attend
supervised visits. Id. at 50.
As for the random drug screens, Father tested positive on July 22, 2019
for PCP and cannabis, tested positive on August 8, 2019 for PCP, and did not
appear on August 1, 2019 for an assessment. Id. at 51. Father has not
provided an address to DHS for a home assessment, and DHS was unaware
of Father’s new address until the day of the hearing. Id. at 52. Father has not
engaged in mental health services, has not engaged in ARC services, and has
not attended visits with Child. Id. at 53. Bell testified that Father has had no
compliance with his objectives. Id.
Bell further testified that Child does not know who Father is, and there
would not be any irreparable harm or detrimental impact to Child if the court
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terminated Father’s rights. Id. at 54-55. Bell pointed out that Child had been
in care since 2018 and Father had never visited with Child. Id. at 55.
Bell testified that Father works at Rite Aid, and Father told her that he
did not attend the visits because of work. Id. at 59. She stated that they did
not try to work around his schedule because “[Father] was trying to get his
money together for the house he was trying to get in order to get the girls”
and he “was trying to work as much as possible.” Id. at 60. The CUA also did
not offer any parenting classes, other than those offered at ARC, that would
work with Father’s schedule.
Bell testified Child was doing “phenomenal” in the home of the foster
parents. Id. at 56. Foster parents treat Child as if she is their own. Child gets
upset when foster father steps out of sight. Id. Bell noted that the foster
parents “talk long term” with Child and that “they want to see her [d]o good
in life.” Id. She stated that the foster parents “express their feelings toward
[Child],” and they really care about her. Id. at 57. Bell testified it would do
irreparable harm to Child if she was removed from foster parents. Id.
Father testified that he worked at Rite Aid, but had been offered a job
at Coca Cola. Id. at 62. He also was in the process of getting a new house.
Id. He testified that he could not attend visits with Child on the days offered
because of work, and he was waiting for CUA to change the days. Id. at 63.
The CUA did not offer parenting classes outside of ARC, and he enrolled in a
drug and alcohol program that met on Mondays and Tuesdays. Id. He had
enrolled in the program the week before the hearing. Id. at 68.
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The trial court changed Child’s permanency goal to adoption. The trial
court also found that termination of Father’s parental rights was proper under
23 Pa.C.S.A. § 2511(a)(1) and (2), as well as under Section 2511(b).
Regarding Section 2511(a)(1), the court found Father evidenced a settled
purpose to relinquish parental claim and refused or failed to perform parental
duties, noting Father did not have any visits with Child since she entered care
over a year before the hearing. The court stated that it “did not find it credible
that in the course of a whole year you could not work out with CUA a day to
visit.” Id. at 75. Child was approximately a year and a half old at the time of
the termination hearing. The court noted that it had held permanency review
hearings every three months, and Father could have raised any issue with
visitation at the hearings. Id.
The Court further found termination proper under Section 2511(b). It
concluded it was in Child’s best interest to terminate Father’s parental rights.
Id. at 76. The court found that “given the fact that Father, by his own
admission, has not had any visits with his child in the year and half that she
has been in care, there is no reason for this court to believe that there is any
sort of bond.” Id. at 77. It stated that Child does not know Father and “[t]he
only parents that [Child] actually knows are the foster parents that she’s
currently with, with whom she’s been with for over a year.” It. It noted that
Child had become “very bonded to [foster parents].” Id.
Father filed timely Notices of Appeal. He raises the following issues:
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1. Did the Trial judge rule in error that the Philadelphia City
Solicitor’s Office met its burden of proof that Father's
parental rights to his child be terminated.
2. Did the trial judge rule in error that the termination of
Father’s parental rights would best serve the needs and
welfare of the children.
3. Did the Trial judge rule in error that the Philadelphia City
Solicitor’s Office met its burden of proof that the goal be
changed to adoption.
4. Did the judge rule in error that it was in the child’s best
interest to change the goal to adoption.
Father’s Br. at 3.
Father’s first two issues challenge the termination of Father’s parental
rights to Child. When we review termination of parental rights cases, we
“accept the findings of fact and credibility determinations of the trial court if
they are supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013)
(quoting In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)). “If the factual
findings have support in the record, we then determine if the trial court
committed an error of law or abuse of discretion.” In re Adoption of K.C.,
199 A.3d 470, 473 (Pa.Super. 2018). We may find an abuse of discretion “only
upon demonstration of manifest unreasonableness, partiality, prejudice, bias,
or ill-will.” In re Adoption of S.P., 47 A.3d at 826.
Our Supreme Court has explained the reasons for applying an abuse of
discretion standard of review in termination of parental rights cases:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
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where the facts could support an opposite result, as is often
the case in dependency and termination cases, an appellate
court must resist the urge to second guess the trial court
and impose its own credibility determinations and
judgment; instead we must defer to the trial judges so long
as the factual findings are supported by the record and the
court’s legal conclusions are not the result of an error of law
or an abuse of discretion.
Id. at 826-27 (citations omitted).
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means
evidence “that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. (quoting In re Z.S.W., 946 A.2d 726, 728-29
(Pa.Super. 2008)).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Section 2511
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
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.
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.
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Id. (citations omitted).
Where the trial court has terminated parental rights pursuant to multiple
subsections of Section 2511(a), we need only agree with the trial court’s
decision as to one subsection, as well as to its analysis under Section 2511(b).
In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Here, we will
address only the court’s decision to terminate pursuant to Section 2511(a)(1).
That subsection provides that a parent’s rights to a child may be terminated
if:
[t]he 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.
23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to
subsection (a)(1) . . . , the court shall not consider any efforts by the parent
to remedy the conditions described therein which are first initiated subsequent
to the giving of notice of the filing of the petition.” 23 Pa.C.S.A. § 2511(b).
Subsection 2511(a)(1) requires the moving party to prove by clear and
convincing evidence that the subject parent engaged in “conduct, sustained
for at least the six months prior to the filing of the termination petition, which
reveals a settled intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties.” In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008). The parental obligation is a “positive duty which requires
affirmative performance” and “cannot be met by a merely passive interest in
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the development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super.
2003) (quoting In re Burns, 379 A.2d 535, 540 (Pa. 1977)). Indeed,
[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path
of maintaining the parent-child relationship. 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 physical and
emotional needs.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
Here, the trial court concluded that Father evinced a settled purpose to
relinquish his parental claim to Child and refused or failed to perform parental
duties. It noted Father did not attend any visits with Child and Father had not
claimed at prior review hearings that the visits failed to happen because the
CUA would not schedule them when he was not working.
The record supports the trial court’s findings, and its conclusion that
termination was proper under Section 2511(a)(1) was not an abuse of
discretion. Father failed to complete any of his permanency goals, and never
once visited with Child since her placement.
We next address whether the trial court erred in finding termination
would best meet Child’s developmental, physical and emotional needs and
welfare under Section 2511(b).
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Under Section 2511(b), the court must consider “the developmental,
physical and emotional needs and welfare of the child” to determine if
termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.
§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the
child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This
Court has explained that “[i]ntangibles such as love, comfort, security, and
stability are involved in the inquiry into [the] needs and welfare of the child.”
In re C.M.S., 884 A.2d at 1287. The trial court “must also discern the nature
and status of the parent-child bond, with utmost attention to the effect on the
child of permanently severing that bond.” Id.
The trial court found that termination would best meet Child’s
“developmental, physical and emotional needs and welfare.” See 23 Pa.C.S.A.
§ 2511(b). It found there was no bond between Child and Father, reasoning
that Father had no visits with Child and Child did not know Father. It noted
that Child was “very bonded” with foster parents, who were “[t]he only
parents that [Child] actually knows.” N.T., 8/27/19, at 77.
The record supports the trial court’s findings and its finding that
termination was proper under Section 2511(b) was not an abuse of discretion
or error of law.
Father’s last two issues challenge the order changing Child’s
permanency goal to adoption. We review such an order for an abuse of
discretion. In re N.C., 909 A.2d 818, 822 (Pa.Super. 2006). When
determining whether to change the goal, the trial court must focus on the child
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and determine the goal with reference to the child's best interests, not those
of the parents. In re N.C., 908 A.2d at 823. “Safety, permanency, and well-
being of the child must take precedence over all other considerations.” Id.
(emphasis deleted); see also In re A.K., 906 A.2d 596, 599 (Pa.Super. 2006)
(finding statutory factors “clearly place the trial court's focus on the best
interests of the child”) (quoting In re C.V., 882 A.2d 481, 484 (Pa.Super.
2005)).
Here, the trial court changed Child’s goal to adoption, finding that the
disposition was “best suited to the protection and physical, mental and moral
welfare of the child.” Permanency Review Order, filed Aug. 27, 2019, at 1-2.
The record supports the court’s findings and it did not abuse its discretion in
changing the goal to adoption. Child did not know Father, and Child was
thriving with foster parents.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2020
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