In the Matter of: B.P.E., Jr., Appeal of: B.P.E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: B.P.E., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.P.E., FATHER :
:
:
:
:
: No. 520 WDA 2021
Appeal from the Decree Entered March 25, 2021
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 85 in Adoption 2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED: SEPTEMBER 23, 2021
B.P.E. (“Father”) appeals from the decree terminating his parental rights
to B.P.E., Jr. (“Child”).1 While Father initially stipulated that Child was
dependent, he claims the orphans’ court erred in concluding that he had not
made sufficient progress in addressing the circumstances that caused Child to
be dependent. As we conclude the record supports the court’s conclusions, we
affirm.
We apply a deferential standard of review in appeals from orders
terminating parental rights:
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
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1 Child’s natural mother voluntarily relinquished her parental rights and is not
a party to this appeal.
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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 the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, “[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
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of fact to come to a clear conviction, without hesitance, of the truth of the
precise facts in issue.” Id. (citation and internal quotation marks omitted).
Here, the court terminated Father’s parental rights pursuant to Section
2511(a)(2), (5), (8), and (b). We need only agree with the court as to any
one subsection of Section 2511(a), as well as Section 2511(b), to affirm. See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We conclude
the court’s decision is justified pursuant to Section 2511(a)(8) and (b).
We begin with Section 2511(a)(8). Section 2511 of the Adoption Act
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:
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
23 Pa.C.S.A. § 2511(a)(8).
Under Section 2511(a)(8), the moving party must produce clear and
convincing evidence that: “(1) [t]he child has been removed from parental
care for 12 months or more from the date of removal; (2) the conditions which
led to the removal or placement of the child continue to exist; and (3)
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termination of parental rights would best serve the needs and welfare of the
child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa. Super.
2003). In addition, we have explained the following:
Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the [child’s] removal by the
court. Once the 12-month period has been established, the court
must next determine whether the conditions that led to the child’s
removal continue to exist, despite the reasonable good faith
efforts of the Agency supplied over a realistic time period.
Termination under Section 2511(a)(8) does not require the court
to evaluate a parent’s current willingness or ability to remedy the
conditions that initially caused placement or the availability or
efficacy of Agency services.
In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010) (citations and quotation
marks omitted).
We are also mindful that this Court has stated that a parent is required
“to make diligent efforts toward the reasonably prompt assumption of full
parental responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002)
(citation and quotation marks omitted). 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. See id.Father does not challenge that 12 months had passed between the initial
adjudication of dependency and Erie County Office of Children and Youth’s
(“OCY”) filing of the petition to terminate his parental rights. His appellate
arguments focus on whether OCY established that he had failed to remedy the
conditions that led to Child’s removal from his custody.
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While it is apparent Father believes that OCY’s involvement in his family
is unjustified, we note Father stipulated that Child was dependent due to
among other things, Child’s fears that Father and paternal grandfather would
abusively punish him. Father also stipulated to his criminal history, Father’s
prior and concurrent involvement with the OCY for another child, and his
aggressive behavior at a therapeutic family session at a local hospital. As a
result, the court found Child dependent and directed Father to participate in
mental health treatment, anger management counseling, family counseling, a
psychiatric evaluation, and to sign all necessary releases for these programs.
See N.T., 5/18/2021, at 7.
Almost immediately, Father actively resisted complying with these
directives. See id., at 8. On several occasions, Father was verbally aggressive
with OCY staff. Less than a month after the dispositional order was entered,
Father was removed from a meeting with OCY staff by sheriff’s deputies. See
id. After this incident, Father’s compliance with family counseling and
reunification services was limited. See id., at 9. He also initially refused to
sign releases that were necessary for OCY to evaluate the case. See id.
As time went on, Father’s compliance with the court-ordered services
ranged from non-compliant to minimal. See id., at 25-7. However, what
remained constant was Father’s hostility towards OCY and the entire
dependency court system. Father continuously asserted he had done nothing
wrong and believed he was the victim of a conspiracy. He often behaved in a
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manner the court described as “overt belligerence.” See Orphans’ Court
Opinion, 3/25/2021, at 3.
Most alarmingly, multiple participants in this proceeding reported that
Father had threatened or physically menaced them. The OCY case manager
testified that Father had been charged with stalking her and another
caseworker – those charges were still pending at the time of the termination
hearing. See N.T., 5/18/2021, at 24-5. Additionally, one of Father’s court-
appointed attorneys withdrew from representation after disclosing threats
Father had made against several dependency court participants. See Petition
for a Pre-Trial Conference, 2/23/2021; see also Order, 2/24/2021.
Approximately a year after the initial dependency adjudication, OCY
petitioned the court to change the permanency goal to adoption. At the
hearing, Father was once again so belligerent that sheriff’s deputies removed
him from the courtroom. See N.T., 5/18/2021, at 26.
At the time of the termination hearing, Father testified that the “mental
health services don’t help, [they] just confirm[] what I already know through
religion.” See id., at 53-4. He claimed that OCY actively coached Child to state
he did not wish to return to Father’s custody. See id., at 55-58. Father also
alleged that Child revealed, out of court, that he wished to be reunited with
Father. See id., at 55.
In contrast, Child, who was approximately 14 years old at the time of
the hearing, testified that he did not wish to return to Father’s custody.
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Moreover, he stated that while he no longer fears Father, he views Father’s
influence as detrimental to his own development. See id., at 14; 16; 20.
OCY’s case manager opined that Father had made no meaningful
progress on addressing his anger management or abusive tendencies. See
id., at 26-7. He had failed to substantially comply with the court-ordered
services. He was therefore no closer to reunifying with Child than he was at
the time of the initial dependency adjudication.
In his appellate brief, Father contends that the record cannot support
termination under Section 2511(a)(8) because “Child’s fear of his relationship
with Father had subsided and … unrefuted doubt has been cast upon the
Child’s preference as set forth in Father’s testimony.” Appellant’s Brief, at 19.
Initially, we note the orphans’ court did not credit Father’s assertion of Child’s
out-of-court admissions. And this alone is sufficient to refute Father’s
argument under our standard of review.
But even if the court had credited Father’s testimony, the termination
of Father’s rights under Section 2511(a)(8) would still be justified pursuant to
the court’s other findings. Father had made no progress on addressing his
anger management issues or his abusive behavior towards Child. In fact,
Father consistently asserted his belief that OCY’s involvement in his family
was unjustified. See N.T., 5/18/2021, at 53. Under these circumstances, we
can find no error or abuse of discretion in the court’s conclusion that OCY had
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established by clear and convincing evidence that termination was appropriate
under Section 2511(a)(8).
We therefore turn to Father’s argument that OCY failed to establish that
termination was justified under Section 2511(b). Pursuant to Section 2511(b),
the court is required to examine whether termination of parental rights would
best serve the developmental, physical, and emotional needs and welfare of
Child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005).
“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” Id., at 1287 (citation omitted).
Our Supreme Court has stated the following:
[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. . . . 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations and quotation
marks omitted).
In a termination of parental rights case, the trial court is required to
consider “whatever bonds may exist between the children and [the natural
parent], as well as the emotional effect that termination will have upon the
children.” In re Adoption of A.C.H., 803 A.2d 224, 229 (Pa. Super. 2002)
(citation omitted). In conducting a bond analysis, the court is not required to
use expert testimony. See In re Z.P., 994 A.2d at 1121.
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“The extent of any bond analysis, therefore, necessarily depends on the
circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 763 (Pa.
Super. 2008). The panel in In re K.Z.S. emphasized that, in addition to a
bond examination, the court can equally emphasize the safety needs of the
child and should consider the intangibles, such as the “love, comfort, security,
and stability,” the child might have with the foster parent. Id., at 760 (citation
omitted).
Father asserts that while Child’s testimony
was clear in his preference, [Father] maintains that this testimony
was coached or manufactured or was not otherwise accurate. He
points to the fact that he heard and subsequently took part in a
conversation with [Child] just prior to the [termination of parental
rights hearing] in which [Child] informed both him and [Father’s]
other daughter that he had been told to say that [Child] did not
want to come back to his Father. … This testimony was not directly
refuted in the record.
Appellant’s Brief, at 19-20. Once again, we note the orphans’ court did not
find Father’s testimony on Child’s out-of-court statement credible. On this
alone, we would be justified in denying Father any appellate relief as the
court’s credibility findings are generally binding upon us.
But once again, even if the court had credited Father’s testimony that
Child desires to return to Father, the court’s other findings would have been
sufficient to support its conclusion that termination was appropriate under
Section 2511(b). Even if Child desired to be reunited with Father, Child’s other
testimony, as well as testimony from OCY staff, revealed that Child’s
developmental and emotional needs were best served by terminating Father’s
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parental rights. Both members of OCY testified to dramatic improvements in
Child’s behavior and development after he was removed from Father’s
custody. See N.T., 5/18/2021, at 11-2; 37-8. Further, Child observed that his
prior behavioral issues were a direct result of Father’s abusive behavior. See
id., at 19-21. Paired with the independent observations of Father’s anger
management issues and Father’s inability to address such issues, this
testimony constituted a sufficient basis for the orphans’ court to conclude that
Child would not suffer adverse effects from severing whatever bond remains
with Father.
As Father’s only challenge under Section 2511(b) is contrary to the
court’s credibility findings, we conclude he is due no relief. Since we have
found no error or abuse of discretion in the court’s analysis of Section
2511(a)(8) and (b), we affirm the decree terminating Father’s parental rights
to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2021
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