In Re: D.C. Appeal of: M.C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.B.-L.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.B.C., FATHER :
:
:
:
:
: No. 278 WDA 2021
Appeal from the Order Entered January 25, 2021
In the Court of Common Pleas of Clearfield County
Orphans’ Court at No(s): 3569-2020
IN RE: A.B.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: M.B.C., FATHER :
:
:
:
:
: No. 279 WDA 2021
Appeal from the Orders Entered January 25, 2021
In the Court of Common Pleas of Clearfield County
Orphans’ Court at No(s): 3568-2020
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: July 30, 2021
M.B.C., (Father), appeals from the orders involuntarily terminating his
parental rights to his daughter, A.B.C., born November 2004, and his son,
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* Retired Senior Judge assigned to the Superior Court.
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D.B.-L.C., born September 2009 (collectively, the Children).1 Upon careful
review, we affirm.
On September 22, 2020, the orphans’ court terminated the parental
rights of K.T. (Mother), who did not appeal. Mother had executed a voluntary
placement agreement with Clearfield County Children, Youth, and Family
Services (CYF) on April 25, 2017. N.T., 11/5/20, at 50. The court adjudicated
the Children dependent on May 23, 2017, and their permanency goal at that
time was reunification.
At the time of the Children’s placement — and for reasons not specified
in the record — Father had supervised visits with the Children through the
Safe Haven program. Id. at 57-58. The visits occurred weekly, and Father
was permitted to telephone the Children on Mondays, Wednesdays, and
Saturdays. Id. at 58-59. The CYF caseworker, Ms. Vicklund, testified that
until and including August 12, 2017, Father consistently attended supervised
visits, which went “very well.” Id. at 58-59. Father was also consistent in
telephoning the Children. Id. at 59. However, with the exception of the four-
month period from April to August 2017, Father has been incarcerated during
the Children’s dependency.
On August 15, 2017, Father was sentenced in Cumberland County to
serve four to eight years in prison, followed by 24 months of probation, as the
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1 This Court consolidated the appeals sua sponte. Order, 4/12/21.
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result of Father pleading guilty to statutory sexual assault, 18 Pa.C.S.A.
§ 3122.1(b). Id. at 79, 100; Orphans’ Court Opinion, 1/25/21, at 2, n.2.
Father’s last supervised visit with the Children occurred on August 12, 2017.
Id. at 59. While in prison, Father’s permanency objectives included
completing programs. N.T., 11/5/20, at 54. Upon release, Father was to
submit to a mental health evaluation and successfully complete
recommendations, and obtain and maintain a home free of safety hazards.
Id. at 54.
The court continued to hold regular permanency review hearings, and
beginning in March 2018, Father telephoned the Children from prison without
incident. Id. at 60, 65. On August 6, 2018, the court changed the Children’s
permanency goal from reunification to adoption. Father subsequently
acknowledged having an inappropriate conversation with the Children in
October of 2019, which caused the Children to not want further
communication.2 Id. at 64. Following a permanency review hearing in May
2020, the court suspended Father’s telephone calls. Id. at 81-82, 102.
On May 12, 2020, CYF filed petitions for the involuntary termination of
Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8),
and (b). The hearing occurred on November 5, 2020, during which a guardian
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2 Father testimony was that he told A.B.C., “I just don’t want you to end up
going down that road, you know, stealing and dressing skimpy to have a boy
notice you.” N.T., 11/5/20, at 154.
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ad litem (GAL) represented the Children’s best interests, and separate counsel
represented the Children’s legal interests.
CYF presented the testimony of Allen Ryen, Ph.D., a licensed
psychologist and expert in child psychology, and Crystal Vicklund, the CYF
caseworker. Father, then incarcerated at State Correctional Institution (SCI)
Huntingdon, appeared in person to testify. Father also presented testimony
from Mark Grimme, his former corrections counselor.
By orders dated and entered January 25, 2021, the orphans’ court
involuntarily terminated Father’s parental rights pursuant to the four statutory
subsections alleged in the petitions. On February 23, 2021, Father timely filed
notices of appeal and concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father presents the following issues:
1. Did the [orphans’ court] err as a matter of law in terminating
[Father]’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(1) without the support of competent evidence[?]
2. Did the [orphans’ court] err as a matter of law in terminating
[Father]’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(2) without the support of competent evidence[?]
3. Did the [orphans’ court] err as a matter of law in terminating
[Father]’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(5) without the support of competent evidence[?]
4. Did the [orphans’ court] err as a matter of law in terminating
[Father]’s parental rights pursuant to 23 Pa.C.S.
§ 2511(a)(8) without the support of competent evidence[?]
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5. Did the [orphans’ court] err as a matter of law in terminating
[Father]’s parental rights pursuant to 23 Pa.C.S. § 2511(b)
without the support of competent evidence[?]
Father’s Brief at 4-5.3
We review termination rulings for an abuse of discretion. Our Supreme
Court has explained:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination is governed by Section 2511 of the Adoption Act, which
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
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3 The Children’s legal counsel filed an appellate brief in support of the
termination orders and referenced the Children’s preference for termination.
Brief of Children at 5. The GAL did not file a brief, although the orphans’ court
stated the GAL joined legal counsel’s request for termination and “believes it
is in the Children’s best interests[.]” Orphans’ Court Opinion, 1/25/21, at 11.
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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).
Instantly, we conclude that the certified record supports termination
pursuant to Section 2511(a)(8) and (b), which provide:
(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.
...
(b) Other considerations.―The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(8), (b); see also In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc) (stating we need only agree with the trial court
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as to any one subsection of Section 2511(a), as well as Section 2511(b), to
affirm).4
This Court has explained, “Section 2511(a)(8) sets a 12-month time
frame for a parent to remedy the conditions that led to the children’s removal
by the court.” In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). 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 child welfare agency supplied over a
realistic time period. Id. The “relevant inquiry in this regard is whether the
conditions that led to removal have been remedied and thus whether
reunification of parent and child is imminent at the time of the hearing.” In
re I.J., 972 A.2d 5, 11 (Pa. Super. 2009). 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 the agency’s services. In Re Adoption of
M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003).
This Court has explained:
[T]he application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the problems
that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while the parent is unable to
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4 Accordingly, we do not consider Father’s first, second, and third issues
concerning Section 2511(a)(1), (2), and (5).
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perform the actions necessary to assume parenting
responsibilities. This Court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re J.F.M., 71 A.3d 989, 997 (Pa. Super. 2013) (quoting I.J., 972 A.2d
at 11-12).
Finally, the court must consider whether termination of parental rights
would best serve the needs and welfare of the child. In re Adoption of
M.E.P., supra at 1275-1276. The “needs and welfare” analysis is relevant to
both Sections 2511(a)(8) and (b). In In re Adoption of C.L.G., 956 A.2d
999 (Pa. Super. 2008) (en banc), this Court stated,
while both Section 2511(a)(8) and Section 2511(b) direct us to
evaluate the “needs and welfare of the child,” we are required to
resolve the analysis relative to Section 2511(a)(8), prior to
addressing the “needs and welfare” of [the child], as proscribed
by Section 2511(b); as such, they are distinct in that we must
address Section 2511(a) before reaching Section 2511(b).
Id. at 1009 (citations omitted).
With respect to Section 2511(b), we have explained, “[i]ntangibles such
as love, comfort, security, and stability are involved in the inquiry into the
needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citation omitted). The trial court “must also discern the nature
and status of the parent-child bond, with utmost attention to the effect on the
child of permanently severing that bond.” Id. (citation omitted). “In cases
where there is no evidence of any bond between the parent and child, it is
reasonable to infer that no bond exists. The extent of any bond analysis,
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therefore, necessarily depends on the circumstances of the particular case.”
In re K.Z.S., 946 A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).
Father argues the orphans’ court abused its discretion in concluding his
conduct warranted termination under Section 2511(a)(8). Father emphasizes
that he attempted to telephone the Children “non-stop from December 2019
through May of 2020,” and only one call was answered. Father’s Brief at 12.
It is undisputed that Father made numerous telephone calls to the Children
from prison. See N.T., 11/5/20, at 95 (Ms. Vicklund testified Father “was very
good at trying to communicate with [the C]hildren.”). However, the Children,
who were ages 10 and 15 in May of 2020, refused to speak to him. See id.
at 95 (Ms. Vicklund testifying the Children told her multiple times that they
did not want to speak to Father).
Father also emphasizes that CYF “admits” he “conducted all visits
appropriately.” Appellant’s Brief at 14. While this fact is not disputed, Father
was incarcerated four months after the Children’s placement in April 2017,
and never progressed to unsupervised visits. Father asserts he is “likely” to
“be released on parole in August 2021, even recognizing [he] may not
immediately have the means to remove the children from foster care, it is
important to acknowledge the mere possibility.” Id. at 24. Father testified
that he expects to be released from prison on his minimum sentencing date,
August 20, 2021. See N.T., 11/5/20, at 104, 107, 115-116 (Mr. Grimme
testified Father was “not a problem” in prison, and “on target” to complete the
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required programs in his “correctional plan” by his minimum release date.).
Nonetheless, Ms. Vicklund testified that CYF sought termination of Father’s
parental rights because of the length of time the Children had been in care,
which was then more than three and a half years. Id. at 93. In addition, the
orphans’ court opined that even if Father is released on his minimum date,
the court would not place the Children in his custody at that time. Orphans’
Court Opinion, 1/25/21, at 9. Thus, the Children had been removed from
Father’s care far in excess of the 12-months set forth in Section 2511(a)(8),
and conditions that led to their placement continued to exist.
With respect to the needs and welfare element of Section 2511(a)(8),
Father argues that termination may not establish permanency for the
Children. Appellant’s Brief at 24-25. Father references A.B.C.’s removal from
the foster home where she resided with her brother and placement in a
different foster home. Father claims that even without communication with
him for many months, A.B.C. had not progressed toward permanency.
Ms. Vicklund testified that A.B.C. was placed in a new foster home on
July 8, 2020 for reasons related to her mental health. N.T., 11/5/20, at 67,
69. A.B.C. has been diagnosed with Attention Deficit Hyperactive Disorder
(ADHD)-combined type; Oppositional Defiant Disorder (ODD); Reactive
Attachment Disorder (RAD); Unspecified Anxiety Disorder; Unspecified
Trauma and Stress-Related Disorder; suspected sexual abuse; educational
problems; and peer-relationship problems. Id. at 74-75. Ms. Vicklund
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testified ABC “responds very well” to her new foster family. Id. at 72. Ms.
Vicklund continued, “She has adjusted very well. It seems, with them being
a younger family, she is more able to connect with [them].” Id. Moreover,
the placement is a “pre-adoptive home,” and A.B.C. wants to be adopted. Id.
at 67, 76.
With regard to D.B.-L.C., Ms. Vicklund testified he has been diagnosed
with “ADHD-predominantly hyper, active impulsive type; autism spectrum
with intellectual impairment, with an IQ of 43; other [un]specified tick; history
of sexual abuse; Unspecified Trauma Disorder.” Id. at 75. He has lived in
the same foster home since April 2017, and it is a pre-adoptive placement.
Id. at 66-67. Like his older sister, D.B.-L.C. desires adoption. Id. at 76.
Dr. Ryen met with the Children once in 2017, and once in 2019, to
perform bonding assessments with Mother and determine “the impact of
maternal contact on the[ir] behavior and adjustment.” Id. at 14. He testified,
“Both children were pretty strong in their expression of this desire to be
adopted.” Id. at 22.
In 2017, Dr. Ryen thought that A.B.C., then 12-years-old, “was a very
anxious, constricted child.” Id. at 18. He found in 2019 that “she made a lot
of progress in her adjustment.” Id. at 21-22.
With respect to D.B.-L.C., who was eight years old in 2017, Dr. Ryen
found him to be “extremely withdrawn, extremely immature. I think I used
the word infantile in describing [him]. I knew that he had been diagnosed
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prior to my contact with Pervasive Developmental Disorder. I didn’t disagree
with that.” Id. at 19. He further stated D.B.-L.C.:
was almost nonverbal. It was very difficult if I got him to interact
with me at all. I had to revert to some rather silly innovations,
which got his attention. . . . And from there, he was able to talk
to me a little bit. Speech was fluent, but speech was limited.
Id. at 19-20.
In 2019, Dr. Ryen found:
[D.B.-L.C.] had made an awful lot of progress developmentally.
[S]ocially, I thought he was adjusting better than he had been
early on. I still had concerns with development, . . . with his social
skills, his social awareness.
I thought that the Pervasive Developmental Disorder diagnosis
probably still fit pretty well but that evidence . . . had been
weakened by the progress that he had made.
Id. at 22-23.
Dr. Ryen concluded:
I believe the [C]hildren should be adopted, so they can continue
their progress toward adult life and develop those skills and so
forth that they need to be successful in adult life.
I don’t think it’s fair to them to continue to postpone permanency
until [F]ather [is] available and until [F]ather can provide evidence
to the agency that he could be a stable, positive influence in their
lives.
Id. at 33.
Based on the record evidence, the court did not abuse its discretion in
terminating Father’s parental rights pursuant to Section 2511(a)(8). Dr.
Ryen’s testimony belies Father’s argument that termination may not best
serve the Children’s needs and welfare. Indeed, the Children have made much
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progress with their mental health while in foster care, and they both indicated
a desire to be adopted.
Father’s fifth and final issue concerns Section 2511(b), i.e., the
developmental, physical, and emotional needs and welfare of the Children,
and he incorporates his argument under Section 2511(a)(8). Father asserts:
[S]imply terminating his rights does not provide the [C]hildren
with any further ability to obtain permanency. [Father] contends
that permanently severing the bond between him and [C]hildren
would be detrimental to the [C]hildren’s well-being. The only
testimony regarding the bond between [Father] and [C]hildren
stems from assessments conducted by Dr. Ryen that did not focus
on the [C]hildren’s relationship with [Father].
Father’s Brief at 27.
Although Dr. Ryen did not perform a bonding assessment specific to
Children and Father, the orphans’ court was not required by statute or
precedent to order a formal bonding evaluation. In re K.K.R.-S., 958 A.2d
529, 533 (Pa. Super. 2008). Further, this Court has explained:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
Super. 2008) (trial court’s decision to terminate parents’ parental
rights was affirmed where court balanced strong emotional bond
against parents’ inability to serve needs of child). Rather, the
orphans’ court must examine the status of the bond to determine
whether its termination “would destroy an existing, necessary and
beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
397 (Pa. Super. 2003). As we explained in In re A.S., 11 A.3d
473, 483 (Pa. Super. 2010),
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[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and should
also consider the intangibles, such as the love, comfort,
security, and stability the child might have with the foster
parent. Additionally, this Court stated that the trial court
should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
In analyzing the Children’s needs and welfare under Section 2511(b),
the orphans’ court explained:
In Dr. Ryen’s expert opinion, even if the bond between Father and
the Children was positive and strong prior to Father’s
incarceration, Father’s absence has significantly weakened any
bond that may have existed. He opined severing a weakened
bond would be less harmful to the Children than keeping the
Children in a legal limbo to see if Father is able to be a permanent
caretaker for the Children. [N.T., 11/5/20, at 29-30].
Testimony provided showed both Children have received
significant care in regards to their mental health, and both
Children have drastically improved since receiving the treatment
and structure found in their foster homes. Father himself agreed
that the foster homes are the best place the Children have been
since at least 2015 when they last resided with him. [N.T.,
11/5/20, at 138-139, 144]. Furthermore, Father acknowledged
that he did not want to remove the Children from the foster homes
as it was in their best interest to remain living with the families.
[Id. at 144].
If this [c]ourt does not terminate Father’s rights, the Children will
have been in care for nearly five years before Father could be
considered as a placement option. This places the Children in “a
state of proverbial limbo in anticipation of a scenario that is
speculative at best.” In re C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008). The Children have advanced needs to ensure their
mental health is taken care of; additionally, both Children have
created bonds with their foster families and are thriving in their
foster homes. . . . The Children deserve finality and stability.
Nearly four years have passed since the Children have been in the
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custody of CY[F]. . . . This [c]ourt can find no reason that
prolonging adoption would benefit the Children.
Orphans’ Court Opinion, 1/25/21, at 10-11.
Upon review, we discern no abuse of discretion. Accordingly, we affirm
the orders involuntarily terminating Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(8) and (b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2021
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