In the Int. of: A.D.S., Appeal of: J.S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.D.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.S., FATHER :
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: No. 274 EDA 2021
Appeal from the Order Entered January 4, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000851-2019
IN THE INTEREST OF: A.D.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.S., FATHER :
:
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: No. 275 EDA 2021
Appeal from the Order Entered January 4, 2021
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000993-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 20, 2021
J.S. (“Father”) appeals from the order terminating his parental rights to
A.D.S. (“Child”) and changing Child’s permanency goal to adoption. We
conclude the trial court did not abuse its discretion in terminating Father’s
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* Former Justice specially assigned to the Superior Court.
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parental rights, and that Father abandoned his challenge to the change of
Child’s permanency goal. We therefore affirm.
Child was born in March 2017. He tested positive for opiates at birth
and, upon his release from the hospital in April 2017, the Philadelphia
Department of Human Services (“DHS”) obtained an order of protective
custody and placed Child in foster care. In June 2017, Child was adjudicated
dependent. In November 2019, DHS filed a petition to terminate Father’s
parental rights and a petition to change Child’s permanency goal to adoption.
The court held a hearing in January 2021.
The Community Umbrella Agency (“CUA”) case worker, Iesha Shaw,
testified. She was the case manager since November 2020 and reviewed the
case file. N.T., 1/4/21, at 11. Father’s single case plan objectives were to
submit to three random drug screens, attend supervised visits with Child, and
attend Child’s medical appointments. Id. at 21. Child did not have medical
appointments while Shaw was the caseworker, and the court was not
scheduling random drug screens due to the COVID-19 pandemic. Id. at 32-
33, 37.
Shaw testified that Father’s visits are supervised,1 and Father does not
have suitable housing for Child. Id. at 24. She testified that a permanency
worker conducted a home assessment in September 2020, and the home was
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1 Shaw testified that she did not believe he ever had unsupervised visits with
Child. Id. at 24. However, Father did have unsupervised visits in 2018. The
visits returned to supervised because Father allowed Mother to visit with Child,
which was prohibited by the court order allowing unsupervised visits.
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deemed not appropriate for reunification because a family member who
resided at the home had an open case with DHS and therefore the family
member would not have been cleared. Id. at 24-25. No further assessment
was conducted because Father did not report any change in housing since that
time. Id. at 25.
Shaw testified that Child has been in a pre-adoptive foster home since
September 2018. Id. at 26. She testified that Child does not share a bond
with Father. Id. at 27. She stated that Child recognizes Father as an adult in
his life, but does not look to him as a caregiver, to meet his daily, medical or
emotional needs, or to provide safety and stability. Id. at 27-28. In contrast,
Child has a close relationship to his foster mother, who he looks to for care
and comfort, who meets his daily, medical, and emotional needs, and who
provides safety and stability. Id. at 28-29. Shaw testified Child would not
suffer irreparable harm if Father’s parental rights were terminated and she
believes it would be in Child’s best interest to terminate Father’s parental
rights. Id. at 29-30.
On cross-examination, Shaw acknowledged that Father attended all
visits with Child. Id. at 33. She testified that she saw Father on November 9,
2020, and attempted to contact him by telephone on three occasions, but only
left a message on one occasion. Id. at 37-39.
Roya Paller also testified. At the request of Child’s legal counsel, she
conducted a visit to the home of the resource parent in 2019 and a
supplemental visit in September 2020. Id. at 54-55. Paller spoke with Child
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and determined he was very attached to his foster mother. Id. at 55. Paller
believed there would be irreparable harm if Child was removed from his foster
mother’s care, as she believed Child had a mother-child bond with his foster
mother. Id. at 56. On cross-examination, Paller testified that she did not
observe Child with Father. Id. at 59.
Father testified that other than at the start of the pandemic, he
consistently attended visits with Child. Id. at 62-63. He further testified that
in May 2018, the court ordered that he was to have unsupervised visits with
Child for eight hours on Saturdays. Id. at 63. The visits reverted to supervised
because he allowed Mother to have contact with Child, which was prohibited
by court order. Id. at 71. He is employed at Warren Express. Id. at 64. Father
attended all medical visits that were offered to him and completed parenting
classes and drug treatment. Id. at 64-66. He has lived at his current location
since March 2020, id. at 67, and believed that the DHS involvement with his
niece, who he lived with, had been cleared. Id. at 68. He testified that Child
“loves seeing [him]” and is excited to see him at visits. Id. Father testified
that he had not tried to contact Shaw after meeting her in November 2020.
Id. at 74.
In its closing argument, DHS conceded that Father was employed and
that he completed the drug and alcohol objective but argued Father has not
taken enough steps over the nearly four years that Child has been in care to
put himself in a position to parent Child. Id. at 75.
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The trial court terminated Father’s parental rights to Child, finding
termination proper under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), and §
2511(b). Id. at 84. The court found Father has not been fully compliant with
the single case plan objectives and did not make sufficient progress to
alleviate the need for placement. Id. It found that Father visits Child, but that
the visits currently are supervised visits, and his home has not been cleared
for reunification. Id. It further found that Child’s developmental, physical, and
emotional needs are being met by his foster mother and that he will not suffer
irreparable harm if Father’s parental rights are terminated. Id. The court also
changed Child’s permanency goal to adoption.
Father filed notices of appeal from both orders. He raises the following
issues on appeal:
1. Whether the Trial Court erred by terminating the parental
rights of Appellant, Father, under 23 Pa.C.S.A. § 2511
subsections (a)(1), (a)(2), (a)(5) and (a)(8)?
2. Whether the Trial Court erred by finding, under 23
Pa.C.S.A. § 2511(b), that termination of Appellant’s
parental rights best serves the Child’s developmental,
physical and emotional needs and welfare?
Father’s Br. at 4.
“A party seeking termination of parental rights bears the burden of
establishing grounds for termination ‘by clear and convincing evidence.’” In
re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018) (quoting In re
Z.S.W., 946 A.2d 726, 728 (Pa.Super. 2008)). “Clear and convincing evidence
is evidence ‘that is so clear, direct, weighty, and convincing as to enable the
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trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.’” Id. (quoting In re Z.S.W., 946 A.2d at 728-729).
“We accept the findings of fact and credibility determinations of the trial court
if the record supports them.” Id. “If the factual findings have support in the
record, we then determine if the trial court committed an error of law or abuse
of discretion.” Id.Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under
Section 2511(a), “the focus is on the conduct of the parent,” and 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).” Id. If “the court determines that the parent’s conduct
warrants termination of his or her parental rights,” under Section 2511(a), it
must then “engage in the second part of the analysis pursuant to Section
2511(b)” to determine whether “the needs and welfare of the child under the
standard of best interests of the child.” Id.Father first argues the court erred in finding termination proper under
Section 2511(a). The court terminated Father’s rights under multiple
subsections of Section 2511(a); we will address only subsection (a)(2). We
need only agree with the court’s determination of any one subsection of
Section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc). Section 2511(a)(2) requires the moving party to produce clear and
convincing evidence of three elements: (1) the parent’s repeated and
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continued incapacity, abuse, neglect or refusal to discharge parental duties;
“(2) such incapacity, abuse, neglect or refusal has caused the child to be
without essential parental care, control or subsistence necessary for his
physical or mental well-being; and (3) the causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied.” In re Adoption of M.E.P.,
825 A.2d 1266, 1272 (Pa.Super. 2003); see also 23 Pa.C.S.A. § 2511(a)(2).
Father argues the court erred in terminating his parental rights under
Section 2511(a)(2). He argues the case worker testified that his single case
plan objectives were to submit to random drug screens, visit with Child, and
attend Child’s medical appointments. He maintains that, during the time she
was case manager, Father was not called for random drug screens, the court
was not offering them, there were no medical appointments for Child, and
Father consistently visited with Child. He adds that he successfully completed
drug treatment and a parenting class. He further claims the case worker did
not assess his home and that his home was appropriate for reunification.
The trial court did not err in finding termination proper under Section
2511(a)(2). Although Father completed some of his single case plan
objectives, and consistently visited with Child, other evidence supported the
conclusion that the reasons that Father has been unable to parent Child will
not resolve. At the time of the filing of the petition and the hearing, Father’s
visits with Child continued to be supervised. Further, a home assessment in
September 2020 determined Father’s home was not appropriate for
reunification, and Father never told DHS of any change in his housing. Child
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had been in care for almost four years, and it was not an abuse of discretion
for the court to find that DHS established, by clear and convincing evidence,
that Father had a continued incapacity, abuse, neglect, or refusal to discharge
parental duties, that the incapacity caused Child to be without parental care,
control, or subsistence, and that the cause for the incapacity cannot or will
not be remedied.
Father next claims the court erred in finding termination proper under
Section 2511(b). The focus under Section 2511(b) is not on the parent, but
on the child. In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa.Super. 2006).
Section 2511(b) requires the trial court to determine “whether termination of
parental rights would best serve the developmental, physical and emotional
needs and welfare of the child[.]” In re C.M.S., 884 A.2d 1284, 1286-1287
(Pa.Super. 2005). This inquiry involves assessment of “[i]ntangibles such as
love, comfort, security, and stability[.]” Id. at 1287. The court must also
examine the parent-child bond, “with utmost attention to the effect on the
child of permanently severing that bond.” Id.However, the “mere existence of an emotional bond does not preclude
the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.
2011). Rather, the trial court must consider whether severing the bond “would
destroy an existing, necessary and beneficial relationship.” Id. (citation and
internal quotation marks omitted). The court must also examine any pre-
adoptive home and any bond between the child and the foster parents. In re
T.S.M., 71 A.3d 251, 268 (Pa. 2013).
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Father argues that he has been consistent in attending visits with Child.
He points out that, although the case worker testified that Child would not be
irreparably harmed if Father’s rights were terminated, she saw Child interact
with Father for only five to ten minutes. Further, he notes that Paller, who
testified that Child had a bond with his foster mother, did not observe Child
with Father. Father argues that he attended visits with Child, including
unsupervised eight-hour visits, Child loved to see Father at the visits, and he
was ready to take care of Child.
The trial court did not err or abuse its discretion in finding termination
would best serve Child’s physical, developmental, and emotional needs and
welfare. Shaw and Paller testified that Child had a parent-child bond with his
foster mother, whom he looked to for love and support. Further, the case
worker testified that she did not believe Child looked to Father for support or
to care for his daily, medical, and emotional needs.
Father filed a Notice of Appeal from the order changing Child’s
permanency goal to adoption and a Rule 1925(b) statement purporting to
challenge the goal change.2 However, Father did not include a challenge to
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2 The Rule 1925(b) statement for the appeal of the order changing the goal to
adoption raised the following issues:
1. The evidence was insufficient for the Court to find, by
clear and convincing evidence, to change the goal to
adoption under 2511(a).
(Footnote Continued Next Page)
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the order in his statement of questions involved or any argument in his
appellate brief regarding the goal change order. He has therefore abandoned
the claim on appeal.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2021
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2. The evidence was insufficient for the Court to find, by
clear and convincing evidence, that changing the goal to
adoption best serves the Child’s physical and emotional
needs and welfare under 2511(b).
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b)
at ¶¶ 1-2. As discussed above Section 2511 addressed the termination of
parental rights, not a permanency goal change.
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