In the Int. of: Z.R., Appeal of: A.R., Sr. ( 2020 )

J-A16017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.R., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: A.R., SR., FATHER : No. 40 MDA 2020
Appeal from the Decree Entered December 10, 2019
In the Court of Common Pleas of Columbia County
Orphans’ Court at No: 2019-OC-225-RT
IN THE INTEREST OF: Z.R., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: A.R., SR., FATHER : No. 41 MDA 2020
Appeal from the Decree Entered December 10, 2019
In the Court of Common Pleas of Columbia County
Orphans’ Court at No: 2019-OC-226-RT
IN RE: Z.R., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: A.R., SR., FATHER : No. 42 MDA 2020
Appeal from the Decree Entered December 10, 2019
In the Court of Common Pleas of Columbia County
Orphans’ Court at No: 2019-OC-227-RT
J-A16017-20
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED AUGUST 03, 2020
A.R., Sr. (“Father”), appeals from the decrees entered on December 10,
2019, which terminated involuntarily his parental rights to his children, Z.R.
1, a male born in October 2014; Z.R. 2, a female born in June 2016; and Z.R.
3, a male born in August 2017 (collectively, “the Children”).1 After careful
review, we affirm in part, vacate in part, and remand for further proceedings
consistent with this memorandum.
The record reveals that Columbia County Children and Youth Services
(“CYS”) became involved with Father in approximately 2013, due to concerns
regarding his two children from a prior relationship.2 N.T., 12/9/19, at 139-
40. CYS became involved with Father, Mother, and Z.R. 1 the following year.
According to the family’s Service Plan, CYS received reports in December 2014
that Father and Mother were living in poor home conditions, and that there
were issues regarding their parenting of Z.R. 1. Exhibit CYS-1 (3/2/15 Service
Plan for Z.R. 1) at B-1. It appears that CYS did not file a dependency petition
at that time and that Z.R. 1 remained in the home. Subsequently, in February
2018, CYS implemented a safety plan with the family, due to Mother’s alleged
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1The decrees also terminated involuntarily the parental rights of the Children’s
mother, A.R. (“Mother”). Mother appealed the termination of her rights at
Superior Court docket numbers 47, 48, and 49 MDA 2020. We address her
appeal in a separate memorandum.
2 Father testified that his two older children are currently in the custody of
their mother and that he is in the process of seeking partial physical custody.
N.T., 12/9/19, at 139, 150.
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substance abuse and erratic behaviors. Exhibit CYS-2 (4/30/18 Permanency
Plan for Z.R. 3) at A-1. CYS filed dependency petitions in March 2018, alleging
that both Father and Mother were engaging in substance abuse. Id. On April
9, 2018, CYS received a report that Father overdosed in the family’s home.
Id. Father claimed that it was not he but one of Mother’s relatives who had
overdosed. Id. However, when CYS conducted a drug screen of Father, he
tested positive for both amphetamines and methamphetamines. Id. at A-2.
CYS requested and received emergency protective custody of the Children that
same day. Id. The juvenile court conducted a shelter care hearing on April
13, 2018, and adjudicated the Children dependent on April 27, 2018. Id. at
E-1.
As detailed below, Father failed to address his substance abuse history
and lacked stable housing throughout the Children’s dependency. On October
1, 2019, CYS filed petitions to terminate Father’s parental rights involuntarily.
The orphans’ court held a hearing on December 9, 2019, at the conclusion of
which it announced that it would terminate Father’s rights. The court entered
decrees memorializing this decision the following day. Father timely filed
notices of appeal on January 3, 2020, along with concise statements of errors
complained of on appeal.
Father now raises the following claims for our review:
1. Did the [orphans’] court commit[] an error of law and abuse of
discretion when it terminated the parental rights of [F]ather . . .
to [the C]hildren?
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2. Did the [orphans’] court commit[] an error of law and abuse of
discretion when it determined that [CYS] presented clear and
convincing evidence in support of terminating the parental rights
of [Father]?
3. Did the [orphans’] court commit[] an error of law and abuse of
discretion when it determined that the conditions that [led] to the
removal of the [C]hildren continue to exist and termination of
parental rights would best serve the needs and welfare of the
[C]hildren, where Father was working on completing the
objectives for reunification?
4. Did the [orphans’] court commit[] an error of law and abuse of
discretion in determining the best interest of the [C]hildren would
be served by terminating the parental rights of Father?
Father’s Brief at 7-8 (suggested answers omitted).
Father’s claims are interrelated, so we will address them together. Our
standard of review is as follows:
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).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis:
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. . . . 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the orphans’ court terminated Father’s parental
rights pursuant to Section 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of Section 2511(a), in addition
to Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we
analyze the court’s decision to terminate pursuant to Section 2511(a)(2) and
(b), which provides as follows:
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(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.
***
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(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
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(a)(2), (b).
We first consider whether the orphans’ court abused its discretion by
terminating Father’s rights pursuant to Section 2511(a)(2). Our analysis is as
follows:
. . . . In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
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Father contends on appeal that CYS failed to present sufficient evidence
in support of its petition to terminate his parental rights involuntarily. Father
argues that he made efforts toward achieving reunification with the Children
by maintaining employment and stable housing, obtaining mental health and
substance abuse evaluations, attending mental health and substance abuse
treatment, completing parenting classes, and attending visits. Father’s Brief
at 14-20. He also complains that CYS did not do enough to help him achieve
reunification, emphasizing that the caseworker never visited the home where
he currently resides, never inquired as to whether he obtained a mental health
evaluation, and knew little if anything about his progress in parenting classes.
Id. at 14-17.
The orphans’ court explained its decision to terminate Father’s parental
rights pursuant to Section 2511(a) as follows:
This is the type of case that is sadly becoming more and
more common. It involves parents in the throes of addiction who
are trying to become stable and clean from drugs and be re-
established in the community. Mother and Father both appear to
be decent people. Without the scourge of drugs, they would have
been fine parents. Both of these parents have made efforts to
comply with the Family Service Plan and to be in a position to
support, nurture, and provide proper security for these children.
However, their efforts have been wholly inadequate.
***
Father has commendably been making efforts to address his
drug issues. Remarkably, foster care began when he overdosed
on drugs but survived. He has visited the [C]hildren and has been
employed and is addressing his drug issues. But . . . his efforts
have been to take care of himself (which is what he should be
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doing and needs to do) and to visit the [C]hildren. In the
meantime the [C]hildren need stability. Father has two other
children for whom he is seeking partial custody. Father has many
obligations which he is admirably attempting to handle. However,
there is no reasonable probability that he can provide adequate
parenting and stability and nurture to these three children in the
foreseeable future.
Orphans’ Court Opinion, 2/25/20, at 8-9.
Our review of the certified record supports the decision of the orphans’
court. Most significantly, CYS caseworker Brittany Hacker testified regarding
Father’s failure to address his history of substance abuse. Ms. Hacker reported
that Father attended an intake appointment for substance abuse treatment in
July 2018 and received a recommendation for intensive outpatient treatment.
N.T., 12/9/19, at 36. Father subsequently failed to attend intensive outpatient
treatment appointments consistently, if at all. Id. at 36-39. He rescheduled
appointments, failed to attend, and then rescheduled again. Id. at 36-37. In
September 2018, Father reported that he had attended an intake appointment
for medication-assisted treatment due to a recent relapse and that he received
a prescription for Suboxone. Id. at 37. However, by October 2018, he was
no longer attending medication-assisted treatment. Id. Father claimed that
he was simply too busy to attend treatment because of working and starting
school. Id. at 37-38. He also claimed that he was still rescheduling intensive
outpatient treatment appointments but, to Ms. Hacker’s knowledge, he never
attended any of them. Id. at 38-39. Father seemingly made no further efforts
to obtain treatment until completing a self-reported assessment in September
2019, which indicated that he met the criteria for outpatient treatment. Id.
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at 40. Father maintained that he scheduled an intake appointment to obtain
outpatient treatment, but Ms. Hacker was unable to confirm that he actually
attended, possibly because he failed to sign a release. Id. at 40-41.
Father’s own testimony confirmed that his history of substance abuse
remained unaddressed. Regarding his medication-assisted treatment, Father
explained that he stopped taking the Suboxone prescription because it was
making him sick. Id. at 144. Strikingly, Father admitted that the reason the
Suboxone was making him sick was that he was attempting to use both it and
illegal drugs at the same time. Id. at 151. He acknowledged that he “didn’t
really start or do any type of drug treatment” until July 2019, and that he was
under the influence of substances as recently as September 2019. Id. at 151-
52. Father recalled that he attended a court hearing that month and that “my
parole officer knew I was high when I came into the [c]ourthouse.” 3 Id. at
152. He testified that he was only now addressing his substance abuse history
by attending Alcoholics Anonymous meetings and scheduling substance abuse
counseling. Id. at 143-44. Father claimed that he would be attending his
first counseling appointment the day after the termination hearing, noting that
it was mandatory for his parole. Id. at 143, 148.
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3 CYS presented Father’s criminal docket sheets, which indicated that he pled
guilty to drug possession in July 2019 and had a pending drug paraphernalia
charge. N.T., 12/9/19, at 50-51; Exhibits CYS-13 and 14. Father testified
that he also pled guilty to the paraphernalia charge and that he had no pending
charges, although he remained on parole. N.T., 12/9/19, at 147-48.
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In addition, the record demonstrates that Father lacked stable housing
throughout the Children’s dependency. Ms. Hacker testified that Father and
Mother were evicted from their initial housing in April or May 2018, and that
they began living in a hotel and in their car. Id. at 32-33. They then lived
with family members in June or July 2018. Id. at 33. Father and Mother
apparently ended their relationship, and Father reported in October 2018 that
he was living with his employer. Id. at 34, 46. However, Father and Mother
were back together and moving into a trailer by January 2019. Id. at 34. Ms.
Hacker explained that Mother was incarcerated the following month, but that
Father remained at the trailer until June 2019, when he indicated that he was
living with his uncle. Id. at 28, 47. By July 2019, Father was living with his
mother. Id. Ms. Hacker discovered in September 2019 that Father had been
incarcerated. Id. Father reported in November 2019 that he was released
from incarceration and was again living with his mother.4 Id. at 48.
In light of this evidence, it is clear that Father is incapable of parenting
the Children, and that he cannot or will not remedy his parental incapacity.
The Children entered foster care in April 2018. By the time of the termination
hearing in December 2019, they had remained in foster care for over a year
and a half. During the Children’s placement, Father made little if any progress
toward addressing his history of substance abuse, obtaining stable housing,
and otherwise placing himself in the position to provide them with appropriate
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4Father testified that he was also incarcerated for two weeks in July 2019.
N.T., 12/9/19, at 137-38.
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parental care. Most significantly, Father continued to abuse substances as
recently as September 2019, only three months prior to the hearing. The
Children’s lives cannot remain on hold indefinitely when Father has shown
almost no prospect of improvement. See In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006) (“[A] child's life cannot be held in abeyance while
a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent's claims of progress and hope
for the future.”). Therefore, we affirm the decision of the orphans’ court to
terminate Father’s parental rights pursuant to Section 2511(a)(2).5
We next consider Father’s fourth issue, in which he contends that the
orphans’ court committed an error of law or abuse of discretion by terminating
his parental rights to the Children pursuant to Section 2511(b). The requisite
analysis is as follows:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the [S]ection 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.
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5Regarding Father’s argument that CYS did not do enough to help him achieve
reunification, our Supreme Court has held that reasonable reunification efforts
are not a prerequisite for the termination of parental rights pursuant to Section
2511(a)(2). See In re D.C.D., 105 A.3d 662 (Pa. 2014).
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[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted).
Father contends that CYS presented insufficient evidence regarding the
Children’s needs and welfare. Father asserts that he maintained a relationship
with the Children by attending visits, that he acted appropriately during visits,
and that there was no testimony that the Children exhibited any behavioral
problems after visits. Father’s Brief at 16, 19, 20-21. He emphasizes Ms.
Hacker’s testimony that that the Children share a bond with both him and the
foster family, and complains that CYS failed to present testimony, expert or
otherwise, regarding the impact that terminating his rights would have on the
Children. Id.
The orphans’ court explained its decision to terminate Father’s parental
rights pursuant to Section 2511(b) as follows:
These children are at a tipping point in their lives. The major
consideration in this case is their best interest. This court is
unwilling to gamble that miraculously these parents will be in a
position to provide a home and adequate support and nurture for
these children in the foreseeable future. To uproot them from a
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stable environment in their formative years is an unwise gamble
with precious lives. To postpone a decision while the parents have
no plans to establish a nurturing, supportive home for the
[C]hildren is equally unwise. After almost two years of placement
and five years of concerns and supervision by [CYS], the odds of
a stable home for these children with Mother and Father are slim.
***
. . . . Not only have Father and Mother failed to perform parental
duties for the [C]hildren since April 9, 2018, there is no indication
that they will be able to do so in the near future. It is not in the
best interest of the [C]hildren to deny them permanency, stability,
comfort, and hope. These children are now thriving and need
continued stability and permanency.
Orphans’ Court Opinion, 2/25/20, at 9-12.6
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6 The orphans’ court conducted an in camera interview of Z.R. 1 during the
termination hearing. Z.R. 1 stated that he wanted to stay at his foster home.
N.T., 12/9/19, at 21-23. However, the court found that Z.R. 1 “certainly didn’t
have the maturity to reasonably articulate what he wanted to do or not do and
reasons for it and all that sort of thing. He just seems to be kind of content
with life, from what I could see.” Id. at 25. The court agreed with the opinion
of the Children’s guardian ad litem, who asserted that Z.R. 1 and his siblings
were unable to offer their positions on the termination of Father’s rights. Id.
at 3-4, 25. At the conclusion of the hearing, the court stated the following
regarding the interview:
In the meantime, we talk about poor [Z.R. 1] back there,
and he’s a nice young man who couldn’t express his opinion about
a whole lot of things except I got this out of him . . . that he was
happy and comfortable where he was. I mean, he didn’t say
anything negative about his parents or anything, but he was
happy and comfortable where he was. . . .
And I suspect the other children are probably similar but
maybe not on his level, but they all have great possibilities of
having a happy life ahead of them, a productive life ahead of
them, and they’re doing pretty well and cared for [sic] right now.
I hate to be the one that rolls the dice and say[s], well, let’s put
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While it was appropriate for the orphans’ court to consider the Children’s
need for stability and permanency, and while the record supports the court’s
findings in this regard, we are constrained to conclude that the court’s analysis
was incomplete. As explained above, a court may not terminate parental
rights pursuant to Section 2511(b) without considering whether an emotional
bond exists between the relevant parent and child, and what harm, if any, will
befall the child if the court severs that bond. See C.D.R., 111 A.3d at 1219;
see also In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018),
appeal denied, 183 A.3d 979 (Pa. 2018) (quoting In re E.M., 620 A.2d 481,
484-85 (Pa. 1993)) (“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 a child to suffer
‘extreme emotional consequences.’”).
In the matter at bar, CYS presented a dearth of evidence addressing the
Children’s relationship with Father. As Father argues in his brief, Ms. Hacker
testified that the Children share a bond with both him and their foster parents.
N.T., 12/9/19, at 60-62, 80. Regarding the Children’s bond with Father, she
explained, “Father’s typically appropriate with the [C]hildren. He would bring
them lunch, play with them. . . . They would hug him and say dad or ask him
for help, but they also will play independently sometimes. So sometimes they
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them on hold for awhile [sic] and then do more damage ‘cause
there’s been damage done already . . . .
Id. at 166.
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would just be off doing their own thing.” Id. at 80. Ms. Hacker did not opine
that the Children’s bond with Father was not a necessary and beneficial bond,
that severing that bond would not harm the Children, or anything similar.
Moreover, the orphans’ court failed to address the Children’s bond with
Father before deciding to terminate his parental rights. The court’s opinion
makes no mention of the bond or of the effect that severing it would have on
the Children. Because this was legal error, we must vacate the portion of the
court’s decrees terminating Father’s rights as to Section 2511(b) and remand
for further proceedings. See E.M., 620 A.2d at 485 (remanding “for a
reevaluation of the needs and welfare of the children, taking into account
whatever bonds may currently exist between the children and appellant, as
well as other factors having bearing upon whether termination is proper.”);
see also In re Adoption of A.C.H., 803 A.2d 224, 230 (Pa. Super. 2002)
(remanding “to give the parties an opportunity to present further testimony
regarding the emotional bonds between mother and daughter, and the effect
a termination of parental rights would have on A.C.H.”).
Based on the foregoing analysis, we affirm the portion of the December
10, 2019 decrees terminating Father’s parental rights to the Children pursuant
to Section 2511(a) but vacate the portion of the decrees terminating pursuant
to Section 2511(b) and remand. On remand, the orphans’ court must conduct
an additional hearing as soon as possible, in order to receive and consider
evidence regarding the Children’s bond with Father, after which it must enter
new decrees granting or denying termination pursuant to Section 2511(b).
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Decrees affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2020
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