In the Interest of: L.K. & E.K., Appeal of: D.K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.K. AND E.K., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
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APPEAL OF: D.K., FATHER :
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: No. 322 MDA 2019
Appeal from the Decrees Dated January 10, 2019
In the Court of Common Pleas of Northumberland County Orphans' Court
at No(s): Adoptee 49-2017,
Adoptee 50-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED MAY 21, 2020
D.K., Father, appeals from the decrees dated January 10, 2019,1
granting the petitions filed by the Northumberland County Children and Youth
Services (“CYS” or the “Agency”) to involuntarily terminate his parental rights
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* Retired Senior Judge assigned to the Superior Court.
1There is no notation on the docket that notice was given and that the decrees
were entered for purposes of Pa.R.C.P. 236(b). See Frazier v. City of
Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999) (holding that “an
order is not appealable until it is entered on the docket with the required
notation that appropriate notice has been given”); see also Pa.R.A.P. 108(a)
(entry of an order is designated as “the day on which the clerk makes the
notation in the docket that notice of entry of the order has been given as
required by Pa.R.C.P. 236(b)”). Thus, the decrees were not entered, the
appeal period was not triggered, and the appeal is timely.
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to his minor daughters, L.K., a/k/a L.T.K., born in December of 2014, and
E.K., a/k/a E.A.K., born in July of 2010 (collectively “the Children”),2 pursuant
to the Adoption Act, 23 Pa.C.S. § 2511(1), (2), (5), (8), and (b).3 In addition,
Father’s counsel, Attorney Marc Lieberman (“Counsel”), has filed with this
Court a motion for leave to withdraw as counsel and amended brief pursuant
to Anders v. California, 386 U.S. 738, 744 (1967). We grant Counsel’s
motion to withdraw and affirm the decrees.
On September 21, 2017, CYS filed petitions to involuntarily terminate
the parental rights of Father and Mother to the Children. On May 14, 2018,
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2 On October 24, 2018, the Children’s appointed legal interests counsel,
Attorney Matthew Slivinski, filed a Position Of The Minor Child regarding L.K.,
stating she was three years old and not competent to express a well-reasoned
preference, so no position could be given as to her wishes. On that same
date, Attorney Slivinski filed a Position Of The Minor Child regarding E.K.,
stating she was eight years old and competent to express a well-reasoned
preference in favor of the termination of her parents’ parental rights and
adoption by her current resource family, with whom she wants to live forever,
and calls “Mom” and “Dad.”
3 We note that Father failed to file separate notices of appeal for the
termination decrees regarding each of the Children. See Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (holding that appeal must be quashed
where single notice of appeal filed from two separate docket numbers). We
will not quash this appeal, however, because on February 22, 2019, this Court,
in In re: M.P., 204 A.3d 976, 980-981 and n.2 (Pa. Super. 2019), explained
that Walker applies in civil and family cases, as well as criminal cases, and
the instant notice of appeal was filed on February 15, 2019, prior to the
clarification in the M.P. decision.
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the trial court appointed Attorney Slivinski to represent the legal interests of
the Children and their older female sibling, K.K., a/k/a K.J.K., 4 who is not a
party to this appeal.
On September 21, 2018,5 the trial court held an evidentiary hearing on
the involuntary termination petitions and entered an order that permitted
Attorney Michael O’Donnell to serve as substitute counsel for the Children on
that date only, retaining Attorney Slivinski as legal interests counsel for the
Children. At the hearing, CYS presented the testimony of the Children’s
maternal grandmother, L.S. (“Maternal Grandmother”). N.T., 9/21/18, at 5.
CYS then presented the testimony of Father, who was incarcerated at SCI–
Forest, as if on cross-examination. Id. at 16. Next, CYS offered the testimony
of Danielle Miccio, a CYS caseworker assigned to the Children’s case. Id. at
32-33. CYS also presented the testimony of Sherry Moroz, an expert in
forensic interviewing of children and child abuse. Id. at 47. Finally, CYS
offered Mother’s testimony. Id. at 60. Father did not call any witnesses. On
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4 Our prior Memorandum remanding the matter, filed on January 16, 2020, at
page 2, had a typographical error stating that the Children’s older sibling was
L.J.K. However, the older sibling is K.J.K., a/k/a K.K., who was born in
approximately 2000. N.T., 9/21/18, at 63.
5Our Memorandum remanding the appeal filed on January 16, 2020, at page
2, contained a typographical error stating that the evidentiary hearing was
held on September 17, 2018, but it was held on September 21, 2018.
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January 10, 2019, the trial court terminated Father’s parental rights to each
of the Children in separate final decrees.6
On February 15, 2019, Father filed a single Notice of Appeal Nunc Pro
Tunc from the decrees terminating his parental rights to the Children, along
with a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). Father also filed an affidavit of his counsel
as to his request for appeal nunc pro tunc. In an order filed on May 2, 2019,
the trial court denied Father’s petition to appeal nunc pro tunc, but, as noted
supra, the appeal period was not triggered due to the lack of a docket entry
in compliance with Pa.R.C.P. 236.
On July 3, 2019, Counsel filed a motion to withdraw, along with a
Turner/Finley Letter Brief.7 On July 17, 2019, this Court entered an order
directing Counsel to properly file a motion to withdraw and brief in accordance
with Anders and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
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6 Also on January 10, 2019, the trial court issued an order regarding Mother,
bearing both docket numbers for the cases regarding E.K. and L.K., continuing
the hearing previously scheduled for September 21, 2018, to occur on January
18, 2019. However, on January 11, 2019, CYS filed petitions to confirm
Mother’s consents to adoption, along with Mother’s voluntary relinquishments
of her parental rights and consents to adoption. The trial court scheduled a
hearing on Mother’s petition for voluntary relinquishment to be held on
January 24, 2019, and CYS filed a notice of the hearing. Following the January
24, 2019 hearing, the trial court entered separate final decrees terminating
Mother’s parental rights on her voluntary relinquishment for each of the
Children.
7 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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On July 24, 2019, Counsel filed the Anders brief, and on July 25, 2019,
Counsel filed his motion to withdraw.
On July 29, 2019, we remanded this matter, retaining jurisdiction, for
the completion of the certified record, in accordance with Commonwealth v.
Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (stating “Counsel cannot fulfill
the mandates of Anders unless he has reviewed the entire record.”). On
August 1, 2019, Father, acting pro se, filed a “Response to Petition to
Withdraw from Representation.” Subsequently, on August 15, 2019, we again
remanded the matter and retained jurisdiction, directing the trial court to
make the notes of testimony part of the record and ensure that a copy was
transmitted to Father. The order further provided that thereafter, Counsel
would have seven days in which to file an amended motion to withdraw and
an Anders brief. On September 12, 2019, the trial court filed a supplemental
record with our Court.
On September 12, 2019, Counsel filed an amended motion to withdraw
and an amended Anders brief. On October 8, 2019, Father, acting pro se,
filed his “Appellant’s Response to Counsel’s Motion to Withdraw and
Accompanying Anders Brief,” alleging that Counsel provided ineffective
assistance both at trial and on appeal and asserting that the trial court judge
should have recused himself or been removed from the case. As there was
no trial court opinion before this Court, we remanded the case to the trial
court for the preparation of a Pa.R.A.P. 1925(a) opinion. On February 27,
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2020, the trial court filed its opinion in the trial court and on March 5, 2020,
forwarded its opinion to this Court. This appeal is now ripe for our disposition.
Before we address the merits of Father’s appeal, we must address
Counsel’s motion to withdraw. In In re V.E., 611 A.2d 1267, 1274-1275 (Pa.
Super. 1992), this Court extended the Anders principles to appeals involving
the termination of parental rights.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record . . ., counsel
has determined the appeal would be frivolous;
(2) file a brief referring to anything that might arguably support
the appeal. . .; and
(3) furnish a copy of the brief to defendant and advise him of his
right to retain new counsel, proceed pro se, or raise any additional
points he deems worthy of the court’s attention.
In re S.M.B., 856 A.2d 1235, 1237 (Pa. Super. 2004) (citation omitted).
“When considering an Anders brief, this Court may not review the merits of
the underlying issues until we address counsel’s request to withdraw.” Id.In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
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(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. “After an appellate court receives an Anders
brief and is satisfied that counsel has complied with the aforementioned
requirements, the Court then must undertake an independent examination of
the record to determine whether the appeal is wholly frivolous.” S.M.B., 856
A.2d at 1237.
With respect to the third requirement of Anders, that counsel inform
the defendant of his rights in light of counsel’s withdrawal, this Court has held
that counsel must “attach to their petition to withdraw a copy of the letter
sent to their client advising him or her of their rights.” Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Counsel has complied with each of the requirements of Anders.
Counsel indicates that he conscientiously examined the record and determined
that Father’s appeal has no meritorious issues, and the appeal is wholly
frivolous. Further, Counsel’s amended Anders brief comports with the
requirements set forth by our Supreme Court in Santiago. Finally, we
observe that Counsel attached to his motion to withdraw a copy of a letter
from Counsel to Father, in compliance with Millisock. Thus, we will proceed
with our review of the merits of Father’s appeal.
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In the amended Anders brief, Counsel presents the following issues:
I. Whether the lower court erred in terminating the parental rights
of [Father] ..., when the petitioners did not prove by clear and
convincing evidence the grounds for termination?
II. Whether an application to withdraw as counsel should be
granted where counsel has investigated the possible grounds for
appeal and finds the appeal frivolous?
III. Whether an application to withdraw as counsel should be
granted where counsel has reviewed the termination of parental
rights trial transcript and finds the appeal frivolous?
Amended Anders Brief at 3 (renumbered for disposition).
We first address whether the trial court properly terminated Father’s
parental rights. Amended Anders Brief at 16-24. Father asserts that CYS did
not establish grounds for termination by clear and convincing evidence.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following well-established standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
1179, 1190 (2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; [In re:] R.I.S., 36 A.3d
[567,] 572 [(Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion. Id.;
see also Samuel Bassett v. Kia Motors America, Inc., ___ Pa.
___, 34 A.3d 1, 51 (2011); Christianson v. Ely, 575 Pa. 647,
838 A.2d 630, 634 (2003). Instead, a decision may be reversed
for an abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.-8-
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As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike 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. R.J.T., 9 A.3d at 1190.
Therefore, even 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. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d
1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “The standard of clear and convincing evidence
is defined as testimony 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.’” Id. (quoting In re J.L.C., 837 A.2d 1247,
1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of Section 2511(a). In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will address
Section 2511(a)(1), (2), and (b), which provides as follows:
§ 2511. Grounds for involuntary termination
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(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:
(1) The 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.
(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.
***
(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. § 2511(a)(1), (2), and (b).
With respect to Subsection 2511(a)(1), our Supreme Court has held as
follows:
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect of termination
of parental rights on the child pursuant to Section 2511(b).
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In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has stated:
The trial court must consider the whole history of a given case and
not mechanically apply the six-month statutory provision. The
court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination
of his or her parental rights, to determine if the evidence, in light
of the totality of the circumstances, clearly warrants the
involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations omitted).
To satisfy the requirements of Subsection 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal 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). The grounds for termination of parental rights under
Subsection 2511(a)(2), 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).
Our Supreme Court has addressed the termination of parental rights of
incarcerated parents under Subsection 2511(a)(2), stating:
Incarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination
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exist under § 2511(a)(2) where the repeated and continued
incapacity of a parent due to incarceration has caused the
child to be without essential parental care, control or
subsistence and [ ] the causes of the incapacity cannot or will
not be remedied.
Adoption of S.P., 47 A.3d at 828.
In Adoption of S.P., our Supreme Court reiterated the standard with
which a parent must comply in order to avoid a finding that he abandoned his
child.
Applying [In re Adoption of McCray, 331 A.2d 652, 655
Pa. (1975),] the provision for termination of parental rights based
upon abandonment, now codified as § 2511(a)(1), we noted that
a parent “has an affirmative duty to love, protect and support his
child and to make an effort to maintain communication and
association with that child.” Id. at 655.
***
Where the parent does not exercise reasonable firmness in
declining to yield to obstacles, his other rights may be forfeited.
Adoption of S.P., 47 A.3d at 828 (quoting In re: Adoption of McCray, 331
A.2d at 655)) (footnotes and internal quotation marks omitted). Also, in
Adoption of S.P., our Supreme Court revisited its decision in R.I.S., and
stated:
[W]e now definitively hold that incarceration, while not a litmus
test for termination, can be determinative of the question of
whether a parent is incapable of providing “essential parental
care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether “the
conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent,” sufficient to provide
grounds for termination pursuant to 23 Pa.C.S. § 2511(a)(2).
See e.g. Adoption of J.J., 515 A.2d at 891 (“A parent who is
incapable of performing parental duties is just as parentally unfit
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as one who refuses to perform the duties.”); [In re:] E.A.P., 944
A.2d [79,] 85 [(Pa. Super. 2008)] (holding termination under §
2511(a)(2) supported by mother’s repeated incarcerations and
failure to be present for child, which caused child to be without
essential care and subsistence for most of her life and which
cannot be remedied despite mother’s compliance with various
prison programs). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether termination is
in the best interests of the child, considering the developmental,
physical, and emotional needs and welfare of the child pursuant
to § 2511(b). In this regard, trial courts must carefully review the
individual circumstances for every child to determine, inter alia,
how a parent’s incarceration will factor into an assessment of the
child’s best interest.
Adoption of S.P., 47 A.3d at 830–831. Thus, the Supreme Court definitively
ruled in Adoption of S.P. that the trial court may examine the effect of a
parent’s incarceration in ruling on a termination petition.
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but it is on the child pursuant to Section
2511(b). 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 “intangibles
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.
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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
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 likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent .... Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his] mental and emotional health
than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See K.Z.S., 946 A.2d at 763 (affirming involuntary termination
of parental rights, despite existence of some bond, where placement with
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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).
In its Rule 1925(a) opinion, the trial court stated the following with
regard to its determination to terminate Father’s parental rights to the
Children:
The testimony and unchallenged evidence offered at trial
supports the conclusion that … Father sexually molested his own
children and that he is serving a period of incarceration in a State
Correctional Facility as a result thereof[.] (N.T. 09/21/18, Entire
Document). The Agency caseworkers testified that the [C]hildren
were originally placed out of … Father’s home on August 3, 2016,
and[,] at the time of the Termination of Parental Rights hearing,
they had been in foster care for twenty-five (25) months[,] and
that both parents, including … Father, were incarcerated on the
charges subsequently brought against them, resulting from the
sexual abuse allegations for abusing their own children. (N.T.
09/21/18 P. 37)[.] Nothing was offered to support a conclusion
that Father had done anything to work toward a return of any of
the children. (N.T. 09/21/18 Entire Document).
Further, while Father had an opportunity to testify on his
own behalf and/or call witnesses on his own behalf, he did not.
(N.T. 09/21/18, P. 16-32). In addition, the witnesses on behalf
of the Agency offered extensive testimony to support the
conclusion by the [trial court] that Father had sexually molested
his minor children, to include E.K.
Specifically, the Agency Caseworker testified that the initial
reports of sexual abuse by Father against his minor children
[were] initially “indicated” but subsequently, “founded”, and that
Father was currently incarcerated as a result of the charges
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brought against him due to the sexual abuse of his own children.
(N.T. 09/21/18), P. 34-35, 37). In addition, Sherry Moroz, an
expert witness in the area of child abuse and [after] conducting
forensic interviews of children, testified she had interviewed E.K.,
as well as her older sister, K.K., and that[,] based on these
interviews, her observations and her experience, she found them
to be credible and that[,] to a reasonable degree of scientific and
professional certainty, Father had molested both E.K. and her
older sister, K.K. (N.T. 09-21-18, P. 43-48, 55-56).
In addition, the natural [m]other of the minor children,
[Mother], testified against … Father, waiving her spousal privilege,
and admitted that she personally observed Father having sexual
intercourse with their daughter, K.K., a minor, when she was
approximately twelve (12) or thirteen (13), that Father had locked
[Mother] in an adjacent bedroom while he had sex with his oldest
daughter[, D.K.F.,] and [Mother] could hear them having sex, that
Father verbally admitted to [Mother] that he had raped his oldest
daughter [D.K.F.,] and that he had “done stuff”, meaning sexual
stuff, to their daughter, E.K.” [sic] (N.T. 09/21/18, P. 61-63, 65-
66). Finally, Mother testified that there was an understanding
between her and Father that[,] when he would summon their
minor children to him, is [sic] was because he wanted to have sex
with them. (N.T. 09/21/18, P. 74).
“It is a well-established rule in civil proceedings that a
party’s failure to testify can support an inference that whatever
testimony he would have given would have been unfavorable to
him.” See Beers v. Muth, 395 Pa. 624, 151 A.2d 465 (1959).
“Our case law indicates that the inference to be drawn from a
party’s failure to testify served to corroborate the evidence
produced by the opposing party.” See Dommes v. Zuroski, 350
Pa. 206, 209, 38 A.2d 73, 75 (1944).
As such, the reasonable conclusion [the trial court] reached,
[sic] was that Father was invoking the 5th Amendment [of the
United States Constitution] and refused to answer the questions
posed, including “did you rape or sexually molest your own
children?” … because the truthful testimony he would have given
would have been unfavorable to him.
For all the foregoing reasons, [the trial court] did not abuse
its discretion, commit an error of law, or lack competent evidence
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to support its finding that the Agency met its burden of proof
regarding the first prong of the test. . . .
Once the Agency met its burden of proof under the first
prong of the test, [the trial court] then had to consider the second
prong of the test - a determination of the needs and welfare of
the [C]hildren under the standard of best interests of the child.
The [trial court] made a clear finding that termination of Father’s
parental rights was in the best interest of the [C]hildren. The
Agency[’s] burden of proof under this prong of the test was
supported by the same facts cited above as supporting the first
prong of the test ... .
Trial Court Opinion, 2/27/20, at 2-4 (unpaginated).
Likewise, after a careful review of the record, we conclude that ample
evidence was presented to support the termination of Father’s parental rights
to the Children. With regard to Subsection 2511(a)(1), we find that there was
competent, clear and convincing evidence to support the trial court’s
conclusion that the Children had been removed from Father’s care and custody
for more than six months at the time that CYS filed the termination petitions
in September of 2017. Father failed to perform his parental duties in that he
had sexually abused several of his children and was serving a criminal
sentence of imprisonment for his crimes. At the time of the termination
hearing, there was no evidence that Father had any contact with the Children
during the twenty-five months they had been removed from his care. Father
refused to offer an explanation for his conduct.
Regarding Subsection 2511(a)(2), we find that there was competent
evidence to support the trial court’s conclusion that Father engaged in a
repeated and continued incapacity, abuse, neglect, or refusal to parent the
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Children, in that he sexually abused several of his own children. Father’s
incapacity, abuse, neglect, or refusal caused the Children to be without
essential parental care, control, or subsistence necessary for their physical or
mental well-being. There is nothing in the record to support a conclusion that
Father had done anything to work toward a return to any of the children.
Thus, the causes of Father’s incapacity, abuse, neglect or refusal cannot or
will not be remedied by Father. Adoption of S.P., 47 A.3d at 826-827.
Regarding Section 2511(b), we find competent evidence to support the
trial court’s conclusion that any bond between the Children and Father is a
harmful bond, and that termination of Father’s parental rights serves the
Children’s needs and welfare and is in their best interests. After a careful
review of the record in this matter, we find the record supports the trial court’s
factual findings, and the court’s conclusions are not the result of an error of
law or an abuse of discretion. Adoption of S.P., 47 A.3d at 826-827; T.S.M.,
71 A.3d at 267.
Before we consider the final two issues presented in the amended
Anders brief pertaining to whether Counsel should be permitted to withdraw,
we will address the various allegations of error presented by Father in his pro
se filing. As previously stated, Father filed a response to Counsel’s motion to
withdraw and Anders brief. In his pro se document, Father alleges that
Counsel was ineffective in his representation.
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In In re: J.T., 983 A.2d 771, 774 (Pa. Super. 2009), this Court stated,
“The right to counsel . . . is the right to effective assistance of counsel.” Where
a party raises ineffective assistance of counsel in a termination of parental
rights case, “we then 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
(internal quotation marks omitted). “Mere assertion of ineffectiveness of
counsel is not the basis of a remand or rehearing, and despite a finding of
ineffectiveness on one or more aspects of the case, if the result would unlikely
have been different despite a more perfect stewardship, the decree must
stand.” In the Interest of K.D., 871 A.2d 823, 828 (Pa. Super. 2005)
(quoting In re Adoption of T.M.F., 573 A.2d 1035, 1044 (Pa. Super. 1990)
(en banc)).
Moreover, in assessing Father’s ineffectiveness claims, we are cognizant
of Father’s burden to show that Counsel’s action or inaction was not based on
a reasonable trial strategy. See Commonwealth v. Basemore, 744 A.2d
717, 735 (Pa. 2000) (“Where counsel has made a strategic decision after a
thorough investigation of law and facts, it is virtually unchallengeable.”); see
also Commonwealth v. Williams, 131 A.3d 440, 454 (Pa. 2016) (stating
that success on a claim of ineffective assistance of counsel requires the
claimant to prove that counsel’s action or inaction was not based upon a
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reasonable trial strategy). Accordingly, our review of Father’s ineffective
assistance of counsel claim is inextricably linked to our determination of
whether the trial court decrees are supported by the record.
Father argues that Counsel’s ineffectiveness prevented Father from
attending the continued termination hearing where Mother’s voluntary
terminations were accepted by the trial court. Response to Motion to
Withdraw, 10/10/19, at 2-3. However, any physical absence of Father at the
time of Mother’s entry of her voluntary termination pleas did not have a causal
effect on the involuntary termination of Father’s parental rights. The entry of
the decrees on January 24, 2019, terminating Mother’s parental rights, would
not have changed the outcome of Father’s own termination case, as the
decrees terminating his parental rights were entered on January 10, 2019.
These ineffectiveness allegations were not the cause of the decrees of
termination of Father’s parental rights. J.T., 983 A.2d at 775. Accordingly,
this claim fails.
Father also challenges Counsel’s alleged failure to object to the trial
court’s admission of Ms. Moroz’s testimony regarding whether she found the
several children credible in their forensic interviews.8 Response to Motion to
Withdraw, 10/10/19, at 3. To the contrary, the notes of testimony reflect that
____________________________________________
8 This Court has held that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal. In re C.P., 901 A.2d 516, 522
(Pa. Super. 2006); Pa.R.A.P. 302.
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Counsel raised numerous objections to Ms. Moroz’s testimony concerning the
Children’s forensic interviews and to the trial court’s admission of Ms. Moroz’s
impressions of their interviews and hearsay statements. N.T., 9/21/18, at 36-
53. Counsel’s participation with regard to the questioning of Ms. Moroz was
not the cause of the decrees of termination of Father’s parental rights. J.T.,
983 A.2d at 775. Therefore, Father’s allegation fails.
Father also challenges Counsel’s failure to object to the trial court’s
admission of Mother’s testimony. Response to Motion to Withdraw, 10/10/19,
at 3. Father asserts that Counsel’s cross-examination of Mother was limited
to an attempt to establish that, from her plea deal, Mother derived a benefit
with regard to her sentence. To the contrary, the notes of testimony reflect
that Counsel vigorously objected to the admission of Mother’s testimony as
barred by the spousal privilege. Counsel continued to object on that basis
even after the trial court overruled Counsel’s objection on the basis of 23
Pa.C.S. § 6381(c).9 N.T., 9/21/18, at 57-61. Counsel’s cross-examination of
Mother, which was directed at establishing that she received a lesser sentence
of incarceration in exchange for her pleas of nolo contendere, was a matter of
legal strategy. Hence, this challenge to Counsel’s assistance lacks merit.
____________________________________________
923 Pa.C.S. § 6381(c) states that “a privilege of confidential communication
between husband and wife … shall not constitute grounds for excluding
evidence at any proceeding regarding child abuse or the cause of child abuse.”
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Father further contends that Counsel failed to object to hearsay
testimony of Ms. Moroz and Mother. Response to Motion to Withdraw,
10/10/19, at 3. However, the notes of testimony reflect that Counsel raised
numerous objections to Ms. Moroz’s testimony concerning the Children’s
forensic interviews and to the trial court’s admission of Ms. Moroz’s testimony
based on hearsay statements of the interviewed children of Father. N.T.,
9/21/18, at 36-53. Counsel also made objections to Mother’s testimony on
the basis that CYS was asking leading questions, and that Mother’s responses
included hearsay statements of Father’s children. Id. at 61-67. Accordingly,
the record belies Father’s allegations.
Moreover, our Rules of Evidence define hearsay as a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
Pa.R.E. 801(c).
We have stated:
As a general rule, hearsay is inadmissible, because such evidence
lacks guarantees of trustworthiness fundamental to our system of
jurisprudence. The rule against admitting hearsay evidence stems
from its presumed unreliability, because the declarant cannot be
challenged regarding the accuracy of the statement. Notably, it
is elemental that, [a]n out of court statement which is not offered
for its truth, but to explain the witness’ course of conduct is not
hearsay.
In re K.A.T., 69 A.3d 691, 702 (Pa. Super. 2013) (citations and quotations
marks omitted).
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Although the trial court did consider the alleged statements of the
several children that were repeated by Ms. Moroz and Mother, there was ample
evidence showing that Father had entered pleas of nolo contendere and was
serving a term of incarceration in a number of criminal matters relating to his
sexual abuse of his children. Thus, Counsel’s alleged ineffectiveness did not
deprive Father of a fundamentally fair hearing. Father failed to establish that
Counsel’s alleged ineffectiveness was the cause of the decrees of termination
of his parental rights. J.T., 983 A.2d at 775. Rather, Father’s parental rights
were terminated not because of Counsel’s ineffectiveness, but because of
Father’s own actions and inactions regarding appropriately parenting the
Children. Hence, Father’s claim fails.
In addition, Father claims that Counsel failed to object to CYS’s
presentation of him as a witness as if on cross-examination, especially when
Father’s PCRA matters were pending in his criminal case. Response to Motion
to Withdraw, 10/10/19, at 3. Counsel’s advice to Father to plead the Fifth
Amendment when questioned by CYS was a strategic legal decision and did
not cause the entry of the involuntary termination decrees against Father.
Basemore, supra; Williams, supra. Thus, Counsel’s failure to object to
CYS calling Father as if on cross-examination was not ineffective assistance of
counsel. J.T., 983 A.2d at 775.
Additionally, Father complains that Counsel failed to call D.K.F. or K.K.,
his two older daughters, to testify at the termination hearing to establish that
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the allegations against Father were fallacious and were originated by Maternal
Grandmother. Response to Motion to Withdraw, 10/10/19, at 3-4. Father
alleges that Counsel instructed him that the trial court would not allow him to
present D.K.F. and K.K. Father also alleges that, early in the proceedings,
D.K.F. was present and interviewed in chambers, ex parte and off-the-record.
Father asserts that the trial court stated that D.K.F.’s testimony would be a
problem; that the judge would not allow D.K.F. to testify; and that the
termination hearing was continued to a later date. Father complains that
Counsel never challenged the trial court’s determination regarding D.K.F.’s
testimony. Again, these ineffectiveness allegations were not the cause of the
decrees of terminating Father’s parental rights. In re J.T., 983 A.2d at 775.
Counsel was aware of the overwhelming evidence against Father. Therefore,
he made a tactical decision not to present D.K.F. and K.K. as witnesses in light
of the fact that Father had entered nolo contendere pleas in criminal court.
Basemore, supra; Williams, supra.
Moreover, Father asserts that Counsel was ineffective for failing to
cross-examine Maternal Grandmother. Response to Motion to Withdraw,
10/10/19, at 4. Maternal Grandmother was very consistent in her testimony
regarding her basis for reporting the sexual abuse that initiated these
proceedings. N.T., 9/21/18, at 5-11. Again, Counsel made a strategic
decision not to cross-examine Maternal Grandmother. Basemore, supra;
Williams, supra. Hence, Father’s allegation fails.
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Father also asserts that the trial court’s alleged delay in disposing of his
petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546, in his criminal case changed the outcome in this matter.
Response to Motion to Withdraw, 10/10/19, at 4. Father also contends that
the trial court was biased against him because the same judge also presided
over the criminal cases involving Father. Id. Father acknowledges that
Counsel requested the trial court judge to recuse himself, but Father
complains that the recusal request was made off-the-record, and that the trial
court’s explanation was very brief.
Regarding bias of the trial court judge, we have stated that the
standards for recusal are well established. It is the burden of the party
requesting recusal to produce evidence establishing bias, prejudice, or
unfairness which raises a substantial doubt as to the jurist’s ability to preside
impartially. This Court has explained:
In considering a recusal request, the jurist must first
make a conscientious determination of his or her ability to
access the case in an impartial manner, free of personal
bias or interest in the outcome. The jurist must then
consider whether his or her continued involvement in the
case creates an appearance of impropriety and/or would
tend to undermine public confidence in the judiciary. This
is a personal and unreviewable decision that only the jurist
can make. Where a jurist rules that he or she can hear
and dispose of a case fairly and without prejudice, that
decision will not be overruled on appeal but for an abuse
of discretion. In reviewing a denial of a disqualification
motion, we recognize that our judges are honorable, fair
and competent.
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Arnold v. Arnold, 847 A.2d 674, 680-681 (Pa. Super. 2004) (citations,
ellipses, and quotation marks omitted).
Father admits that he does not have any particular instance of trial judge
bias to support the claim. Response to Motion to Withdraw, 10/10/19, at 4-
5. Father nevertheless contends that the judge should have recused himself
and should be removed from this case because of the judge’s appearance of
bias when considered by any person who has knowledge of the complete case.
Id. at 4 (citing Liteky v. United States, 510 U.S. 540, 548 (1994)).10
According to Father, the trial judge’s bias and prejudice against Father was so
great that it prevented him from impartially presiding over the case,
mandating his recusal and removal from presiding over any further
proceedings in this matter.
We find no merit to Father’s assertion that the trial judge acted with
bias against Father. Adverse rulings alone do not establish the requisite bias
warranting the recusal of a trial court judge for bias, especially where the
rulings are legally proper. In re S.H., 879 A.2d 802, 808 (Pa. Super. 2005);
see also Arnold, 847 A.2d at 681 (stating that “[a]dverse rulings alone do
not establish the requisite bias warranting recusal, especially where the
rulings are legally proper”). Here, the trial court’s rulings were legally proper.
Moreover, we find that the trial court judge properly exercised his discretion
____________________________________________
10Father cites the concurring opinion by Justice Scalia. Liteky, 510 U.S. at
564.
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in presiding over both Father’s criminal proceedings, in which he entered his
pleas of nolo contendere, and Father’s termination proceedings. In
conclusion, we discern no merit to any of Father’s pro se allegations of
ineffective assistance of counsel.
Finally, we have independently examined the record in order to
determine whether the appeal is wholly frivolous. In re S.M.B., 856 A.2d at
1237. Having concluded that there are no meritorious issues, we grant
Counsel permission to withdraw, and we affirm the decrees terminating
Father’s parental rights to the Children pursuant to Sections 2511(a)(1), (2)
and (b) of the Adoption Act.
Motion to withdraw as counsel granted. Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2020
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