In the Int. of: S.T.S., Appeal of: K.D. ( 2023 )

J-S43017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.
65.37
IN THE INTEREST OF: S.T.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2274 EDA 2022
Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001217-2019
IN THE INTEREST OF: S.T.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2275 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000580-2021
IN THE INTEREST OF: I.D., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: K.D., FATHER :
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: No. 2276 EDA 2022
Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001218-2019
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IN THE INTEREST OF: I.I.A.-M.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2277 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000581-2021
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2278 EDA 2022
Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001219-2019
IN THE INTEREST OF: A.B.A.-M.D., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2279 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000585-2021
IN THE INTEREST OF: A.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001221-2019
IN THE INTEREST OF: A.I.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2281 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000582-2021
IN THE INTEREST OF: A.-R.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2282 EDA 2022
Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001222-2019
IN THE INTEREST OF: A.-R.I.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2283 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000583-2021
IN THE INTEREST OF: M.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2284 EDA 2022
Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001220-2019
IN THE INTEREST OF: M.B.A.I.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2285 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000586-2021
IN THE INTEREST OF: A.-R.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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Appeal from the Order Entered August 11, 2022
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In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001223-2019
IN THE INTEREST OF: A.-R.I.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2287 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000584-2021
IN THE INTEREST OF: S.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2288 EDA 2022
Appeal from the Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0001432-2019
IN THE INTEREST OF: S.B.A.I.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.D., FATHER :
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: No. 2289 EDA 2022
Appeal from the Decree Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000587-2021
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BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 17, 2023
In this matter, K.D. (Father) appeals the decrees entered by the
Philadelphia County Court of Common Pleas, which involuntarily terminated
his rights to his eight Children, pursuant to the Adoption Act. See 23 Pa.C.S.A.
§ 2511(a)(2), (5), (8) and (b).1 In addition to the termination decrees, Father
also appeals the orders which changed the goal of the dependency
proceedings from reunification to adoption. Lastly, Father also argues that his
counsel was ineffective and that the trial court was biased. After review, we
affirm the termination decrees and dismiss the goal-change appeals as moot.2
The relevant procedural and factual history is as follows. The family
came to the attention of DHS in Summer 2019, when Mother’s 14-year-old
daughter, T.R. alleged abuse by both Mother and Father. Father is the
____________________________________________
1 The subject Children are:
• S.T.S, daughter, age 14
• I.D, son, age 10
• Ab. D., son, age 8
• A.-R.D. 1 son, age 7
• A.-R.D. 2., son, age 6
• Aa.D., daughter, age 5
• M.D., son, age 3
• S.D., daughter, age 2
It appears Father is not the biological father of S.T.S., but because Father’s
signed the acknowledgement of paternity, DHS proceeded with termination.
DHS also terminated the rights of the unknown biological father.
2 Mother had also appealed. Her case is separately listed before this panel.
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stepfather of T.R.; T.R. is not the subject of these appeals.3 T.R. alleged that
Mother beat her and forced her to sleep outside. She also alleged that Father
inappropriately touched her on her buttocks and breasts, made her stay in the
bathroom while he showered, exposed himself to her, and on one occasion,
licked the back of her ear.
These disclosures caused DHS to investigate the wellbeing of Father’s
seven other Children, who are the subject of this case.4 The Agency
interviewed the Children in the home. At that time, none of the Children
disclosed abuse, but the caseworker believed that the Children were afraid to
speak up and had tried to convey to the caseworker that Father could overhear
to their conversation. Father had chosen the room for the caseworker’s
interview, and he could be seen visible pacing outside on the porch.
On July 25, 2019, DHS obtained orders for protective custody for the
Children. After the shelter care hearing, the Children were temporarily
committed to DHS custody. A subsequent disclosure revealed that one of the
Children was beaten by Mother at Father’s direction, and that she was made
to sleep outside as punishment. The Child also alleged that she was forced to
____________________________________________
3T.R.’s biological father was unknown. The trial court previously changed the
goal of T.R.’s dependency proceedings from reunification to another planned
permanent living arrangement (APPLA), i.e., permanent long-term foster care
until the age of majority. Father appealed that decision, and we affirmed.
See Interest of T.R., 283 A.3d 377 (Table), 2022 WL 2813796 (Pa. Super.
2022) (non-precedential decision).
4 The youngest subject Child, S.D., was not yet born.
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do chores in her underwear to ensure that she did not have any food on her
person.
In September 2019, the Children were adjudicated dependent. The
court learned that Mother had given birth to S.D., and that the birth was
hidden from the agency. The facts that gave rise to the adjudications of the
older Children were a predicate for the removal and eventual adjudication of
S.D. The juvenile court instituted a single case plan, comprising of certain
goals to aid Father with reunification. The goals included: to attend supervised
visitation with the Children; to complete programs to address parenting,
domestic violence and anger management; to submit to evaluations for his
psychosexual behavior and parenting capacity; to obtain employment; and to
obtain housing.
Meanwhile, investigations into the parents’ alleged abuse continued.
The Children subsequently participated in a forensic interview with
Philadelphia Children’s Alliance, where the Children were referred for
evaluations by Dr. Michelle Dominguez, M.D., a child abuse pediatrician at St.
Christopher’s Hospital for Children. During their evaluations, the Children
made additional disclosures. They claimed, among other allegations, that
Father would punch them and whip them with extension cords; that their
refrigerator was chained shut so they could not get food; that Father forced
them to eat the ants that were in their cereal; and that they were sometimes
forced to stay in the basement, which was often dark and flooded. Dr.
Dominguez physically examined the Children and noted the presence of
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bruising consistent with inflicted trauma. Father defended some of his actions,
maintaining that he merely disciplined the Children in accordance with his
Islamic faith. He denied other allegations, which he said were fabricated by
the Children because they were rebelling against his religion.
In August 2021, the parents were arrested. Father’s arrest resulted in
a no-contact order, which suspended visits with the children. Father also
failed to comply with the single case plan. Although he completed the anger
management and parenting programs, these objectives remained on the case
plan because Father continued to display anger during the visits and when
speaking to the Children.
DHS eventually petitioned to change the goal of the dependency
proceedings from reunification to adoption and to terminate Father’s rights.
The court held the termination hearing over several days on March 14, March
28, and June 2, 2022. On August 11, 2022, the court articulated its findings
on the record and entered decrees terminating Father’s rights to each
respective Child. Father timely filed appeals. In his consolidated Brief, Father
presents the following issues for our review:
1. Whether the trial court committed reversible error,
when it involuntarily terminated Father’s parental
rights where such determinations were not supported
by clear and convincing evidence under the Adoption
Act, 23 Pa.C.S.A. § 2511(a)(2), (a)(5), and (a)(8)?
2. Whether the trial court committed reversible error
when it involuntarily terminated Father’s parental
rights without giving primary consideration to the
effect that the termination would have on the
developmental, physical and emotional needs of the
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child[ren] as required by the Adoption Act, 23
Pa.C.S.A. § 2511(b)?
3. Whether the trial court abused its discretion in
granting a goal change to adoption, where the goal
change from reunification to adoption was not
supported by clear and convincing evidence?
4. Whether Father’s case was irreparably harmed by
counsel’s representation, which fell below ordinary
attorney representation?
5. Whether Father’s case was irreparably harmed by
judicial bias?
Father’s Brief at 8.
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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Our Supreme Court has repeatedly stated that in termination cases,
deference to the trial court is particularly crucial. In re Adoption of L.A.K.,
265 A.3d 580, 597 (Pa. 2021); see also Interest of S.K.L.R., 265 A.3d 1108,
1124 (Pa. 2021) (“When a trial court makes a ‘close call’ in a fact-intensive
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case involving…the termination of parental rights, the appellate court should
review the record for an abuse of discretion and for whether evidence supports
that trial court’s conclusions; the appellate could should not search the record
for contrary conclusions or substitute its judgment for that of the trial court.”).
The abuse-of-discretion standard in termination cases “is a highly deferential
standard and, to the extent that record supports the court’s decision, we must
affirm even though evidence exists that would also support a contrary
determination.” In re P.Z., 113 A.3d 840, 849 (Pa. Super. 2015) (citation
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in 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[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence that 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) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).
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Critically, we may uphold a termination decision if any proper basis
exists for the result reached. C.S., 761 A.2d at 1201. We need only agree
with the orphans’ court as to any one subsection of Section 2511(a), as well
as Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
Therefore, we review the trial court’s termination of Father’s rights
under Section 2511(a)(2), which provides:
(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:
[…]
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
23 Pa.C.S.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citation omitted).
Parents are required to make diligent efforts toward the reasonably prompt
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assumption of full parental duties. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010).
We note that the grounds for termination are not limited to affirmative
misconduct like abuse but concern parental incapacity that cannot be
remedied. See id. This case, however, explicitly concerns abuse. The trial
court set forth its Section 2511(a)(2) findings on the record:
[T]he testimony of Dr. Dominguez, which I found credible,
was that these children, not only were they subject to
continued and repeated abuse, whether by denying food or
being hit in the head with 2-by-4s, being hit with extension
cords, being made to get into showers that were hot, and
then with cords that were run under cold water, being hit
with those cords, Dr. Dominguez went a step further from
saying that that’s abuse. In fact, she indicated that that
meets the definition of child torture. And while she testified,
and, again, credibly, that neither [Ab.D, A-R.D. 1 or A.-R.D.
2.] disclosed any abuse, the physical findings on those
children’s bodies were consistent with the physical findings
on the bodies of [T.R., S.T.S., and I.D.], all of whom disclose
physical abuse in the manner in which they were abused.
And so the fact she also determine that based on photos
review from [Ab.D.] and well as her physical examination of
[I.D., T.S., and A.-R. D. 1, and A.-R.D. 2,] that the markings
on [A.-R.D.1, A.-R.D. 2, and Ab.-D.’s] body were consistent
with he physical abuse that was disclosed as to [T.R., S.T.S.,
and I.D.] in their PCA interviews. […]
In addition to what the children disclosed in their PCA
interview and to their CUA case manager, because Ms.
McNeill also testified that [I.D., T.R., and S.T.S.] disclosed
abuse, found in the transcripts that were entered into
evidence that were part of this court’s prior hearings,
[S.T.S., I.D., and T.R.] testified in camera as to the abuse
that they suffered. And this court found them credible when
they testified in camera. All counsel was present for those
hearings, except for TPR counsel, as she was appointed after
those hearings.
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And so the testimony has been consistent each time these
Children have disclosed as to what they were subjected to
in [Father’s] and [Mother’s] home. And I have to say, I
started out as a social worker working with families in the
system. I worked for nine years as a solicitor for DHS. And
I’ve been on the bench. This is my fifth year. I have never
ever heard a doctor testify that what children suffered was
torture. I’m speechless.
And so this court is going to find that while there was no
testimony as to the younger children, the testimony of Dr.
Dominguez as an expert that the fact that sexual abuse was
found as to [T.R], and physical abuse as to the other
Children, all of the Children in Mother and Father’s care
would be at risk. And so I am terminating for all the Children
under [Section] 2511(a)(2). Specifically, [T.R., I.D., S.T.S.,
A.-R.D. 1, A.-R.D. 2, and Ab.D.] suffered actual abuse at
the hands of their parents consistent with the markings on
their bodies.
N.T., 91-94.
On appeal, Father notes that termination under Section 2511(a)(2) was
erroneous, because past incapacity, alone, in not sufficient to terminate a
parent’s rights. See Father’s Brief at 26 (citing In re Adoption of A.N.D.,
510 A.3d 31 (Pa. Super. 1986)). Father maintains that DHS only put forth
evidence of past behaviors and thus could not establish that termination was
warranted. Father also argues that because only the older Children disclosed
abuse, and the court improperly concluded that Father abused the younger
Children.
These arguments merit no relief. It has long been established that the
use of prognostic evidence applies to both dependency cases, as well as
termination cases. See In re E.B., 83 A.3d 426, 433 (Pa. Super. 2013); see
also In re Angry, 522 A.2d 73, 74-75 (Pa. Super. 1987). The court may
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consider a parent’s previous actions, toward an older sibling, when assessing
the risk that the parent poses toward the younger child. The notion that a
court is barred from such considerations “ignores the possibility that if the
‘experiment’ proves unsuccessful, the consequences to the child could be
seriously detrimental or even fatal.” Angry, 522 A.2d at 74-75 (quoting
Matter of DeSavage, 360 A.2d 237, 241-42 (Pa. Super 1976)).
Although not every Child made a disclosure, the court agreed with Dr.
Dominguez’s expert opinion that all the Children would be at risk of abuse.
Moreover, some of the younger Children, who did not disclose abuse, evinced
the same bruising as that older Children who verbalized an allegation.
Although Father may have complied with some aspects of his single case plan
objectives, he has made no progress toward alleviating the causes of the
Children’s dependency. Thus, the court did not abuse its discretion when it
concluded that Father’s repeated abuse caused the Children to go without
parental care, and that such abuse cannot or will not be remedied. The trial
court did not err when it determined that DHS met its burden under Section
2511(a)(2).
Having discerned no error or abuse of discretion as to the first prong of
the bifurcated termination analysis, we next address second prong under
Section 2511(b), which comprises of Father’s second appellate issue.
The section provides:
(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
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of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(b).
This Court has explained further:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that 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. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also K.Z.S.,
946 A.2d at 764 (holding there was no bond worth preserving where the child
had been in foster care for most of the child’s life, which caused the resulting
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bond to be too attenuated). Moreover, the court is not required to use expert
testimony to resolve the bond analysis. In re Z.P., 994 A.2d 1108, 1121
(citing In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super. 2008)).
“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.” T.S.M., 71 A.3d at 268. Finally, we
emphasize that “[w]hile a parent’s emotional bond with her and/or her child
is a major aspect of the Section 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the court when
determining what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
Instantly, the caseworker testified that there was no bond worth
preserving between Father and each of the respective Children. Though some
Children had desired to have contact with Mother, none requested to see
Father. I.D. was fearful of Father. S.T.S. did not consider Father to be her
biological parent. Moreover, the Children also demonstrated positive
behaviors after the parental visits were suspended. The court also noted that
the two youngest Children have spent more of their life in foster care than
they did with Father. See generally N.T. 102-115
On appeal, Father argues that DHS failed to prove that bonds do not
exist between the Children and Father. See Father’s Brief at 30. Father
argues that there was competing testimony as to the bonds, and that the trial
court failed to fully consider the needs and welfare of the Children when it
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decided to side with the testimony of DHS rather than the testimony of the
parents.
We find Father’s arguments unpersuasive. We reiterate that when there
no evidence of a bond between a parent and child, it is reasonable to infer
that no bond exists. K.Z.S., 946 A.2d at 762-63. Furthermore, the mere
existence of “competing testimony” does not mean the trial court’s ultimate
determination was somehow deficient. A trial court must necessarily resolve
the competing evidence and testimony when rendering its factual findings and
legal conclusions. Lastly, Father also misunderstands the role of this Court.
As noted above, we do not search the record for contrary conclusions or
substitute our judgment for that of the trial court. See S.K.L.R., 265 A.3d at
1124. Rather, we must affirm even if evidence exists that would also support
a contrary determination. See P.Z., 113 A.3d at 849. With this standard in
mind, and upon our review, we discern no abuse of discretion or error of law.
Having concluded that the trial court properly terminated Father’s rights
as to each Child, we turn our focus to Father’s third appellate issue. Here,
Father claims the trial court erred when it changed the goals of the
dependency cases from reunification to adoption. Because we have already
concluded that termination was warranted, we dismiss these challenges as
moot. See Interest of D.R.W., 227 A.3d 905, 917 (Pa. Super. 2020) (“An
issue before a court is moot if in ruling upon the issue the court cannot enter
an order that has any legal force or effect.”).
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Next, we consider Father’s fourth appellate issue, where he claims
ineffective assistance of counsel. Father claims his counsel was ineffective
because counsel failed to object to certain leading questions. See Father’s
Brief at 33. Father also claims that his counsel failed to argue that Father’s
disciplinary methods were informed by his Islamic faith. Id.Our Supreme Court has recognized that an indigent parent has a
constitutional right to counsel in a termination case. In re J.T., 983 A.2d 771,
774 (Pa. Super. 2009) (citing In re Adoption of R.I., 312 A.2d 601 (Pa.
1973). “The right to counsel in parental termination cases is the right to
effective assistance of counsel even though the case is civil in nature.” J.T.,
983 A.2d at 774-75 (citing In re Adoption of T.M.F., 573 A.2d 1035 (Pa.
Super. 1990) (en banc) (further citation omitted)). “We [] review the record
as a whole to determine whether or not the parties received a ‘fundamentally
fair’ hearing; a finding that counsel was ineffective is made only if the parent
demonstrates that counsel’s ineffectiveness was ‘the cause of the decree of
termination.” Id. at 775 (citations omitted).
Upon review, we do not find that counsel was ineffective. Neither
counsel’s failure to object to certain questions, nor his supposed failure to
contextualize Father’s religious beliefs was a cause for the entry of the
termination decrees. Quite plainly, the driving cause of the termination of
Father’s rights was his “torture” of the Children, his failure to address such
harm, and the subsequent effects of that harm on the Children. Father’s
fourth appellate issue is without merit.
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Finally, in his fifth appellate issue, Father claims the trial court
demonstrated bias. He alleges that the court only paid “lip service” to the fact
that the family was Muslim. See Father’s Brief at 35. Father maintains that
their “religious practices around discipline included using corrective teaching
and learning the Quran, the main Muslim scripture.” Id. Father claims the
court did not inquire into the cultural values of the family. Id.
We review challenges to a court's partiality for an abuse of discretion.
See Commonwealth v. McCauley, 199 A.3d 947, 950 (Pa. Super. 2018).
Both our Supreme Court as well as the Supreme Court of the United States
have addressed how a judge's partiality cuts directly to an individual's right to
due process:
It is axiomatic that a fair tribunal is a basic requirement of
due process. See U.S. Const. Amend. XIV. The United
States Supreme Court has recognized that a litigant's due
process rights are violated when the circumstances of a
judicial decision give rise to an unacceptable risk of
actual bias. Williams v. Pennsylvania, -- U.S. --, 136
S.Ct. 1899, 1908 (2016). Moreover, the appearance
of bias or prejudice can be as damaging to public confidence
in the administration of justice as the actual presence
of bias or prejudice. Commonwealth v. Goodman, 311
A.2d 651, 654 (Pa. 1973).
However, simply because a judge rules against a defendant
does not establish any bias on the part of the judge against
that defendant. Commonwealth v. Travaglia, 661 A.2d
352, 367 (Pa. 1995).
Interest of D.J.B., 230 A.3d 379, 385 (Pa. Super. 2020) (quoting McCauley,
199 A.3d at 950-51).
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We note several problems with Father’s challenge. First, Father did not
seek recusal during the hearing. A party seeking recusal or disqualification
based on judicial bias or impartiality is required to raise the objection at the
earliest possible moment, or the party will suffer the consequences of being
time barred. Jordan v. Pennsylvania State University, 276 A.3d 751, 762
(PA. Super. 2022) (citations omitted); see also Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”). Second, if Father means to argue that the court’s bias was not
evinced until its ultimate decision, he has failed to demonstrate how. Father’s
brief does not Father cite to any specific instance where the court evinced
bias, nor does Father cite to any pertinent legal authorities beyond the Judicial
Code of Conduct. It is well-established that the failure to develop an argument
with citation to, and analysis of, pertinent authority results in waiver of that
issue on appeal. See Pa.R.A.P. 2119. For these reasons, we find the issue is
waived.
In sum, we conclude that the trial court did not error or abuse its
discretion when it determined DHS met its burden to terminate Father’s rights
under Section 2511(a)(2) and (b). Given this conclusion, we dismiss Father’s
goal change challenges as moot. We further conclude that Father’s counsel
was not ineffective, and we conclude that Father waived his claim that the trial
court evinced bias.
Termination decrees affirmed. Goal change orders affirmed.
Judge Nichols joins the memorandum.
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Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2023
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