In the Interest of: S.-A.V.C., Minor ( 2017 )

J-S50033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.-A.V.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.D., FATHER :
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: No. 514 EDA 2017
Appeal from the Order Entered January 9, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001219-2016
IN THE INTEREST OF: L.S.A.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: E.D., FATHER :
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: No. 515 EDA 2017
Appeal from the Order Entered January 9, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0001220-2016
IN THE INTEREST OF: S.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.D., FATHER :
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: No. 516 EDA 2017
Appeal from the Order Entered January 19, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001295-2012
J-S50033-17
IN THE INTEREST OF: L.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: E.D., FATHER :
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: No. 518 EDA 2017
Appeal from the Order Entered January 19, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-DP-0001912-2014
BEFORE: PANELLA, MOULTON, and RANSOM, JJ.
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 27, 2017
E.D. (“Father”) appeals from the decrees dated and entered on
January 9, 2017, granting the petitions filed by the Philadelphia Department
of Human Services (“DHS” or the “Agency”), and involuntarily terminating
his parental rights to his female children, S.C. a/k/a S.-A.V.C. (born in June
of 2011), and L.C., a/k/a L.S.A.C. (born in January of 2014) (collectively,
the “Children”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8), and (b), and the orders changing the Children’s permanency goal to
adoption pursuant to 42 Pa.C.S.A. § 6351, dated and entered on January 19,
2017.1 Father’s counsel, Gary S. Server (“Counsel”), has filed with this
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1
In separate decrees entered on January 9, 2017, the trial court terminated
the parental rights of any unknown father of the Children. Moreover, in
separate decrees entered on January 19, 2017, the trial court also
terminated the parental rights of the Children’s mother, V.C., (“Mother”).
Mother has filed separate appeals at Docket Nos. 596, 603, and 605 EDA
(Footnote Continued Next Page)
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Court a motion for leave to withdraw as counsel and a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967). We affirm, and grant
Counsel’s motion.
In its opinion entered on March 24, 2017, the trial court set forth the
factual background of this appeal, as follows.
. . . Prior to the birth of the Children, on October 23, 2010,
the Children’s family became known to the Department of
Human Services (“DHS”) through a Child Protective Services
(“CPS”) report alleging Father caused the death of the Children’s
sibling, “S.” An autopsy of [S.] revealed evidence of pre-existing
trauma and injuries. On October 25, 2010, DHS learned that the
City of Philadelphia Police Department’s Homicide Unit had
begun investigating [S.’s] death. On October 25, 2010, DHS
met with V.C. (“Mother”) and E.D. (“Father”) in their home and
interviewed them separately. Mother stated that she was at
work when [S.] died. Father stated that [S.] was in the shower
where she went into shock. DHS determined that Father’s
account was not credible.
On October 26, 2010, the Medical Examiner’s Office
informed DHS that [S.’s] death was deemed a homicide and the
cause of death was multiple blunt impact injuries.3 On October
26, 2010, DHS obtained an Order for Protective Custody (“OPC”)
for [Ny.] and [Sy.], the biological children of Mother but not
Father. [Ny.] and [Sy.] were in the care of Mother and Father
when [S.] died.
On June [ ], 2011, Mother gave birth to S.C., the
biological daughter of Father. On July 31, 2012, the Honorable
Jonathan Irvine adjudicated SC dependent and issued a criminal
stay away order against Father and also ruled that aggravated
_______________________
(Footnote Continued)
2017, which we address in a separate Memorandum. No unknown father
has filed an appeal, nor is any such individual a party to the present appeal.
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circumstances existed as to Mother and Father and that no
efforts were to be made to reunify SC with Father[.] Thereafter,
Father was found guilty on drug felong [sic] related offenses4.
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2
Father was not the biological father of [S.] but the Children had
the same biological mother[,] V.C. (“Mother”).
3
On October 26, 2010, DHS also learned that [S.] suffered from
cardiac arrest.
[Footnotes continued on next page.]
On January [ ], 2014, LC was born.5 On June 21, 2014,
DHS made an unannounced visit to Mother’s home and found
Father at the home in violation of the stay away order. At the
adjudicatory hearing on March 12, 2015, LC was adjudicated
dependent by the Honorable Jonathan Irvine and Father was
ordered to stay away from LC.
On June 29, 2015, CUA held a Single Case Plan (“SCP”)
meeting. The objectives identified for Father were (1) to keep
contact with CUA; (2) to comply with a Parental Care Evaluation
(“PCE”); (3) [to] comply with the stay away order and (4) [to]
comply with Skype [v]isits.
On July 31, 2016, Dr. William Russell, Ph.D., conducted a
PCE for Father. Dr. Russell recommended (1) Father obtain and
maintain consistent employment; (2) Father obtain housing; (3)
Father participate in counseling to determine how he contributed
to [S.’s] death; (4) Father complete SCP plan recommendations;
and (5) [v]isitation should not be increased until there was
progress with employment, housing, and counseling. The report
also cited that Father’s conduct with [S.] indicated a lack of
ability to anticipate and react to situtations [sic] that are
potentially dangerous to children.
On November 17, 2016, DHS received as [sic] (“GPS”)
report alleging that Mother was unable to protect the Children
and their siblings. Specifically, Father and Mother were still in a
relationship despite of a Protection from Abuse Order (“PFA”);
and that Father had been incarcerated for the offense of
Endangering the Welfare of a Child for two years on August 23,
2012[.]
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4
Father plead guilty to Intent to Manufacture/Delivery/
Possession of a Controlled Substance pursuant to 35 [P.S.] §
780-113 on October 23. [sic] 2012.
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5
A paternity test determined that Father was the biological
parent of LC.
Trial Court Opinion (Father), 3/24/17, at 1-5 (footnotes in original) (citations
omitted).
On December 9, 2016, DHS filed petitions to terminate Mother and
Father’s parental rights to the Children and to change the Children’s
permanency goal to adoption. On January 9, 2017, the trial court held a
hearing on the termination/goal change petitions. At the hearing, counsel
for DHS, Mother and her counsel, Father and his counsel, and the Child
Advocate, were present. DHS presented the testimony of Tieshima Brown, a
case manager and social worker at the Community Umbrella Agency
(“CUA”), Turning Points for Children; Courtney Ransom, a program analyst
for DHS; Dr. Erica Williams, Psy.D., a psychologist who is the Director of
Forensic Mental Health Services; Dr. William Russell, Ph.D., a forensic
psychologist who works at Forensic Mental Health Services, who evaluated
both Mother and Father; and Darren Hughes, a Truancy Intake Worker at
DHS.
Both Mother and Father testified on their own behalf. Counsel for the
parties, including child advocate, stipulated that the maternal grandfather,
who was present, would testify that he attends all of Mother’s unsupervised
visits with the Children, and that Father had never been present at an
unsupervised visit between Mother and the Children. Id. at 163. At the
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conclusion of the hearing the trial court terminated Father’s parental rights
as to S.C. and L.C. and held Mother’s case under advisement.
On January 9, 2017, the trial court entered its decrees terminating
Father’s parental rights to the Children pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8), and (b), and orders changing their permanency
goal to adoption pursuant to 42 Pa.C.S.A. § 6351. On January 12, 2016,
DHS filed a motion to reopen the termination/goal change hearing to
supplement the record. The trial court issued a rule to show cause on
January 13, 2017. Subsequently, on January 19, 2017, the trial court
granted the motion to reopen the termination/goal change hearing to
supplement the record with evidence that Father had been near Mother and
two of her children, Aa. and Au., who are not subjects of this appeal.
On January 19, 2017, the trial court held a second day of hearing on
the termination/goal change petitions as pertained to the termination of
Mother’s parental rights and the request for a goal change, which the trial
court had held in abeyance. At the hearing on January 19, 2017, counsel for
DHS, Mother and her counsel, and Child Advocate were present. However,
Mother did not testify. Father was not present, nor was his counsel. Ms.
Brown testified with regard to Father’s contact with the Children and the
other children of Mother, Aa. and Au., despite the stay away orders. N.T.,
1/19/17, at 8. DHS also had an exhibit admitted that demonstrated that
Father was having contact with the Children with Mother’s knowledge and
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assistance. Id. at 8-16; DHS Ex. 1. At the conclusion of the hearing, based
on the evidence at the hearing on January 9, 2017 and the testimony and
additional evidence at the hearing on January 19, 2017, the trial court found
that Mother had allowed Father to have access to her children, and ordered
her parental rights to the Children terminated. Id. at 16-17. The trial court
again entered orders changing the permanency review goal for the Children
to adoption on January 19, 2017. See Trial Court Opinion (Father),
3/24/17, at 1.
On February 1, 2017, Father filed the notices of appeal from the
decrees entered on January 9, 2017 terminating his parental rights to the
Children, and the permanency review orders entered on January 19, 2017,
changing the permanency goal for the Children to adoption, along with
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).2 This Court, acting sua sponte, consolidated Father’s
appeals on March 22, 2017. On May 15, 2017, Counsel filed a motion for
leave to withdraw as counsel for Father and an Anders brief.
In his Anders brief, Father raises two issues challenging the
sufficiency of the evidence to support the termination of his parental rights
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2
Father’s trial counsel, Attorney Janice M. Sulman, filed the notices of
appeal and concise statements on behalf of Father. Subsequently, the trial
court permitted Attorney Sulman to withdraw as counsel, and appointed
Counsel to represent Father.
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to Child. See Anders Brief; Father’s Concise Statement at 1. Those issues
are as follows:
THE GLOBAL QUESTION
WHETHER THERE IS ANYTHING IN THE RECORD THAT MIGHT
ARGUABLY SUPPORT THE APPEAL THAT OBVIATES A
CONCLUSION THAT THE APPEAL IS FRIVOLOUS[?]
SPECIFIC AREAS OF INQUIRY
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY TERMINATING FATHER’S
PARENTAL RIGHTS WHERE THE DEPARTMENT OF HUMAN
SERVICES DID NOT PROVE BY CLEAR AND CONVINCING
EVIDENCE THAT FATHER HAD NOT RELIEVED THE
CIRCUMSTANCES WHICH BROUGHT THE CHILD INTO CARE OR
COULD NOT RELIEVE THEM WITHIN A REASONABLE AMOUNT OF
TIME.
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY TERMINATING FATHER’S
PARENTAL RIGHTS WHERE THERE IS NO CLEAR AND
CONVINCING EVIDENCE THAT FATHER HAS EVIDENCED A
SETTLED PURPOSE OF RELINQUISHING PARENTAL CLAIM TO
THE CHILD OR HAS REFUSED OR FAILED TO PERFORM
PARENTAL DUTIES[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY TERMINATING FATHER’S
PARENTAL RIGHTS AS THERE WAS INSUFFICIENT EVIDENCE
PRESENTED TO BREAK THE BOND THE CHILD SHARED WITH
FATHER WHERE THERE WAS NO CLEAR AND CONVINCING
EVIDENCE THAT THE CHILD WOULD NOT BE HARMED BY THE
TERMINATION[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION WHEN IT TERMINATED FATHER’S
PARENTAL RIGHTS AND CHANGED THE CHILD’S GOAL TO
ADOPTION AS SUBSTANTIAL, SUFFICIENT AND CREDIBLE
EVIDENCE WAS PRESENTED AT THE TIME OF TRIAL WHICH
WOULD HAVE SUBSTANTIATED DENYING THE PETITION FOR
GOAL CHANGE[?]
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Anders Brief, at 6-7.
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw representation, he or she 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, but which does not resemble a “no-merit” letter or
amicus curiae brief; 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).
In In re V.E., 611 A.2d 1267, 1274-75 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. “When considering an Anders brief, this Court may not
review the merits of the underlying issues until we address counsel’s request
to withdraw.” In re S.M.B., 856 A.2d at 1237.
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;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
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(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.” In re
S.M.B., 856 A.2d at 1237.
With respect to the third requirement of Anders, that counsel inform
the defendant of his or her 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).
Here, in his motion for leave to withdraw, Counsel has complied with
each of the requirements of Anders. Counsel indicates that he
conscientiously examined the record and determined that an appeal would
be frivolous. Further, counsel’s Anders brief comports with the
requirements set forth by the Supreme Court of Pennsylvania in Santiago.
Finally, attached to his motion for leave to withdraw is a copy of his letter to
Father, dated May 13, 2017. In compliance with Millisock, the letter
advised Father of his right to proceed pro se or retain alternate counsel, and
stated counsel’s intention to seek permission to withdraw. Accordingly,
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Counsel has complied with the procedural requirements for withdrawing from
representation, and we will proceed with our own independent review.3
In reviewing an appeal from an order terminating parental rights, we
adhere to the following 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 (Pa. 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.; R.I.S.,
[614 Pa. 275, 284,] 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., 613 Pa. 371[, 455], 34 A.3d 1,
51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655],
838 A.2d 630, 634 (Pa. 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.
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
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3
This Court has stated, “[o]nce counsel has satisfied the above
requirements [for a motion to withdraw and Anders brief], it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (en banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736
(Pa. Super. 2004)). See Commonwealth v. Flowers, 113 A.3d 1246,
1250 (Pa. Super. 2015) (following Goodwin). Thus, we address whether
DHS established the grounds for termination.
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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., [608 Pa. at
28-30], 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, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (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:
[t]he 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)).
In the Anders brief, Counsel contends, on behalf of Father, that the
trial court abused its discretion or erred as a matter of law in concluding that
DHS presented clear and convincing evidence that was sufficient to support
the involuntary termination of his parental rights under section 2511(a)(1),
(2), (5), (8), and (b), and the goal change to adoption.
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
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2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Section 2511(a)(2) and (b) provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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.
***
(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.
The Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
for termination of parental rights where it is demonstrated by
clear and convincing evidence that “[t]he 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
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the conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.” . . .
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent,
can seldom be more difficult than when termination is
based upon parental incapacity. The legislature,
however, in enacting the 1970 Adoption Act, concluded
that a parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to
perform the duties.
In re Adoption of J.J., [511 Pa. 599, 605,] 515 A.2d 883, 891
(Pa. 1986) (quoting In re: William L., [477 Pa. 322, 345,] 383
A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
This Court has long recognized that a parent is required to make
diligent efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness
regarding the necessity or availability of services, may properly be rejected
as untimely or disingenuous. Id. at 340.
The trial court addressed Father’s sufficiency issue as follows.
SC was adjudicated dependent on July 31, 2012. LC was
adjudicated dependent on March 12 2015. The record
demonstrated Father’s ongoing unwillingness to provide care or
control for the Children: his inability or refusal to perform any
parental duties and his failure to remedy the conditions that
brought the Children into care. These facts provided the [c]ourt
clear and convincing evidence that termination of Father’s
parental rights would be in the best interest of the Children
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warranting the termination of Father’s parental rights by the
[c]ourt pursuant to 23 Pa.C.S.A. §§2511(a). . .(2) . . . and (b).
The SCP objectives identified for Father were (1) to keep
contact with CUA; (2) to comply with a Parental Care Evaluation
(“PCE”); (3) comply with the stay away order and (4) comply
with Skype Visits. (Statement of Facts: Petition to Terminate
the Parental Rights Paragraph YY). The [f]ather’s PCE
recommendations were that[:] (1) Father obtain and maintain
consistent employment; (2) Father obtain housing; (3) Father
participate in counseling to determine how he contributed to
[S.’s] death; (4) Father complete his SCP plan
recommendations; (5) [v]isitation would not be increased until
progress with employment, housing, and counseling.
At the termination hearing on January 9, 2017, the CUA
Representative [Ms. Brown] testified that Father had not met his
SCP objectives nor [sic] the PCE recommendations. The CUA
Representative testified that Father did not attempt to visit the
Children via Skype on a regular basis. The only times he did
complete visits by Skype were achieved when the CUA
Representative contacted Father directly. When Father did
speak to the Children via Skype the conversations did not
exceed three minutes. (N.T. January 9, 2017 pages 90-92).
The CUA Representative testified that Father had not completed
therapy and Father made no effort to send letters to the
Children. (N.T. January 9, 2017 Page 94). The CUA
Representative testified that Father rarely contacted the CUA
Representative. (N.T. January 9, 2017 Page 95). Consequently,
the CUA Representative was also able to testify that Father was
not in a position to provide for his [c]hildren because he had not
reached his SCP goals. . . . [Id.]
At the termination hearing, Dr. Russell testified that the
findings from the PCE showed Father minimized his role in the
death of [S.] and that Father needed housing and stable
employment, and therapy. Dr. Russell also testified that
Father[,] by not taking part in therapy[,] indicated a lack of
interest in becoming a full[-]time parent. (N.T. Testimony
January 9, 2017 Page 68-73). Father’s own testimony
demonstrated that he was convicted and incarcerated for the
death of [S.] but that he refused to take full responsibility for the
underlying cause of [S.’s] death[.] (N.T. January 9, 2017 Pages
140-49). The testimony of Mother demonstrated that Father and
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Mother jointly violated the Stay Away Order (N.T. January 9,
2017 Page 160) with impunity.
The testimony of the CUA Representative and Dr. Russell
was deemed to be credible and accorded great weight. Based
upon this testimony as well as the documents in evidence, this
[c]ourt found clear and convincing evidence to terminate
Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a). . .
(2). . . [,] as Father had failed to remedy the conditions that
brought the Children into care.
Trial Court Opinion (Father), 3/24/17, at 6-9 (footnotes omitted).
After a careful review of the record, we find that termination of
Father’s parental rights to the Children was warranted pursuant to section
2511(a)(2), as Father clearly lacks parental capacity, and the evidence
showed that he will be unable to remedy that situation within a reasonable
period of time, if ever. As there is competent evidence in the record that
supports the trial court’s findings and credibility determinations, we would
find no abuse of the trial court’s discretion in terminating Father’s parental
rights to the Children under section 2511(a)(2). In re Adoption of S.P.,
616 Pa. 309, 325-26, 47 A.3d 817, 826-27.
Next, 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 recently stated as
follows:
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[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[533 Pa. 115, 121, 620 A.2d 481, 485 (Pa. 1993)], this Court
held that the determination of the child’s “needs and welfare”
requires consideration of the emotional bonds between the
parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
With regard to section 2511(b), the trial court stated the following:
The CUA Representative [Ms. Brown] also testified that it would
be in the best interest of the Children for Father’s parental rights
to be terminated. (N.T. January 9, 2017 Page 96). The CUA
Representative testified that the termination of Father’s parental
rights would not harm the Children and the [f]ather had violated
the stay away orders in reference to the Children. [Id.]
***
The [c]ourt . . . concluded that the termination of the Father’s
parental rights would be in the best interest of the Children
pursuant to 23 Pa.C.S.A. § 2511(b)[,] and that the termination
of Father’s parental right would not cause permanent harm to
the Children.
***
CONCLUSION
This [c]ourt, after careful review of the findings of fact and the
testimony presented during the Termination Hearing on January
9, 2017, found clear and convincing evidence to terminate
Father’s parental rights pursuant to 23 Pa.C.S. [§] 2511(a). . .
(2) . . . . This court further found pursuant to 23 Pa.C.S. [§]
2511(b) that termination of the [f]ather’s parental rights would
not have a detrimental effect on the Children and would be in
the Children’s best interest. For the foregoing reasons, this
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[c]ourt respectfully requests that the January 9, 2017 Order
terminating Father’s parental rights to the Children be
AFFIRMED.
Trial Court Opinion (Father), 3/24/17, at 8-10.
After a careful review of the record, we find that termination of
Father’s parental rights to the Children was warranted pursuant to section
2511(b). Ms. Brown testified that she believed that the termination of
Father’s parental rights was in the best interest of the Children, and that the
Children would not be harmed if Father’s rights were terminated. N.T.,
1/9/17, at 95-96. She further testified that Father does not call and ask
how the Children are doing, if they are up-to-date on their medical needs,
and whether they are receiving any specialized services, although he could
call Ms. Brown if he so desired. Id. at 96. Ms. Brown also testified that it is
an objective of the 90-day plan for Father to comply with the stay-away
orders with regard to the Children. Id. The trial court found Ms. Brown’s
testimony credible. Counsel for DHS asked the trial court to take judicial
notice of the December 2015 court order that provided that Father attended
only four of twelve Skype visits with the Children. Id. at 108. S.C. was
adjudicated dependent when she was thirteen months old and removed from
Mother’s care, and Father was ordered to stay away from her. L.C. was
adjudicated dependent when she was approximately fourteen months old,
and Father was ordered to stay away from her. In light of the fact that
Father did not have much interaction with the Children after their removal,
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the trial court could have reasonably concluded that there is no bond
between Father and them.
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:
concluding 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 or her] 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
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of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa. Super. 2008)
(affirming the involuntary termination of the mother’s parental rights,
despite the existence of some bond, where placement with the mother would
be contrary to the child’s best interests, and any bond with the mother
would be fairly attenuated when the child was separated from her, almost
constantly, for four years). “[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). It is well-settled that “we will not toll the well-
being and permanency of [a child] indefinitely.” In re Adoption of C.L.G.,
956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)
(noting that a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of
parenting.”)).
As there is competent evidence in the record that supports the trial
court’s findings and credibility determinations, we would find no abuse of the
trial court’s discretion in terminating Father’s parental rights to the Children
under section 2511(b). In re Adoption of S.P., 616 Pa. 309, 325-26, 47
A.3d 817, 826-27. We, therefore, affirm the termination decrees.
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Next, we address whether there was sufficient evidence in the record
to support the change in the Children’s permanency goal to adoption. The
Pennsylvania Supreme Court recently set forth our standard of review in a
dependency case as follows.
“The standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law.” In re R.J.T.,
608 Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for
abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 641 Pa. 343, 360, 111 A.3d 1164,
1174 (2015).
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provides the trial court with the criteria for
its permanency plan for the subject child. Pursuant to those subsections of
the Juvenile Act, the trial court is to determine the disposition that is best
suited to the safety, protection and physical, mental and moral welfare of
the child.
When considering a petition for goal change for a dependent child, the
trial court considers:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made
towards alleviating the circumstances which necessitated
the original placement; the appropriateness and feasibility
of the current placement goal for the child; and, a likely
date by which the goal for the child might be achieved.
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In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S. §
6351(f)).
Additionally, Section 6351(f.1) requires the trial court to make a
determination regarding the child’s placement goal:
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall
determine one of the following:
* * *
(2) If and when the child will be placed for adoption,
and the county agency will file for termination of
parental rights in cases where return to the child’s
parent, guardian or custodian is not best suited to the
safety, protection and physical, mental and moral
welfare of the child.
42 Pa.C.S. § 6351(f.1).
On the issue of a placement goal change, this Court has stated:
When a child is adjudicated dependent, the child’s
proper placement turns on what is in the child’s best
interest, not on what the parent wants or which goals the
parent has achieved. See In re Sweeney, 393 Pa. Super.
437, 574 A.2d 690, 691 (1990) (noting that “[o]nce a child
is adjudicated dependent . . . the issues of custody and
continuation of foster care are determined by the child’s
best interests”). Moreover, although preserving the unity
of the family is a purpose of [the Juvenile Act], another
purpose is to “provide for the care, protection, safety, and
wholesome mental and physical development of children
coming within the provisions of this chapter.” 42 Pa.C.S.
§ 6301(b)(1.1). Indeed, “[t]he relationship of parent and
child is a status and not a property right, and one in which
the state has an interest to protect the best interest of the
child.” In re E.F.V., 315 Pa. Super. 246, 461 A.2d 1263,
1267 (1983) (citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
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We find that there was sufficient evidence in the record to support the
change of the Children’s permanency goal to adoption. We, therefore, affirm
the goal change orders.
Moreover, as we agree with Counsel that Father’s appeal is frivolous,
and we cannot find any meritorious issues in the record, we grant counsel’s
motion for leave to withdraw.
Decrees and orders affirmed. Counsel’s motion for leave to withdraw
granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
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