In the Int. of: H.E.F., Appeal of: C.F. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.E.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.F., FATHER :
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: No. 2343 EDA 2020
Appeal from the Order Entered December 1, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-AP-0000873-2019
IN THE INTEREST OF: H.E.F., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.F., FATHER :
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: No. 2344 EDA 2020
Appeal from the Order Entered December 1, 2020
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-DP-0003005-2017
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 10, 2021
Following an evidentiary hearing, the Court of Common Pleas of
Philadelphia County entered an order involuntarily terminating the parental
rights of C.F. (“Father”) to H.E.F. (“Child”). The trial court also simultaneously
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* Retired Senior Judge assigned to the Superior Court.
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entered an order changing Child’s permanency goal to adoption.1 Father
separately appealed both orders, arguing that he “substantially completed”
the objectives of his single case plan and the trial court therefore erred by
terminating his parental rights and changing Child’s permanency goal to
adoption. As we conclude that there was no error on the part of the trial court,
we affirm.
At Child’s birth on November 5, 2017, Child tested positive for multiple
substances, including heroin. Father contested paternity. The Philadelphia
Department of Human Services (“DHS”) obtained an order of protective
custody and placed Child in the care of her maternal aunt. Child remains in
the care of the aunt (“kinship aunt”).
At the scheduled adjudicatory hearing on November 21, 2017, the court
deferred the adjudication pending the results of the paternity test. Father
appeared at the hearing and the court referred Father to the Clinical Evaluation
Unit (“CEU”) for a drug screening, and he tested positive for marijuana. The
paternity test results subsequently confirmed Father was the biological father
of Child.
The court held an adjudicatory hearing on January 4, 2018, and
adjudicated Child dependent. The court once again referred Father to CEU for
a drug screening, a dual diagnosis (substance abuse and mental health)
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1 Child’s biological mother voluntarily relinquished her parental rights to Child,
and that relinquishment is not part of this appeal.
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assessment and monitoring, and three random drug screens. The court also
set objectives for Father to obtain appropriate housing and employment. 2
Father was granted weekly supervised visits with Child. Father tested positive
for marijuana on January 4, 2018, and then for opiates on March 19, 2018.
The Court held permanency review hearings on April 4, 2018, June 27,
2018, and September 27, 2018. Father attended those hearings and was
referred to the CEU for drug screens. The CEU reported that Father tested
positive for opiates on April 4, 2018, refused a drug screen on June 27, 2018,
and tested positive for opiates on September 27, 2018. The June 27, 2018,
permanency review order directed Father to attend parenting classes, and the
September 27, 2018, permanency review order documented that Father had
completed those parenting classes.
The trial court held another permanency review hearing on December
18, 2018. At this hearing, the CEU report reflected that Father was engaged
in a dual diagnosis program and had received negative results for his drug
screenings on October 15, 2018, November 7, 2018, and December 3, 2018.
The court referred Father to Family School, an intensive parenting program.
However, a subsequent CEU report indicated that Father had once again
tested positive for marijuana on May 9, 2019.
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2 The record is not clear as to exactly when the housing and employment
objectives were included in Father’s single case plan, but none of the parties
dispute that Father was given these objectives.
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On November 29, 2019, DHS filed both a petition to involuntarily
terminate Father’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1),
(a)(2), (a)(5) and (a)(8) and (b) as well as a petition to change Child’s
permanency goal to adoption. Father tested positive for benzodiazepines and
marijuana on December 16, 2019. After multiple continuances, the goal
change and termination hearing was scheduled for December 1, 2020.
The Community Umbrella Agency (“CUA”) case manager supervisor,
Shari Henderson, testified at the hearing. She testified that Child came into
DHS’s care because of drug concerns with both biological parents. See N.T.
Hearing, 12/1/20, at 13. She stated that CUA had established multiple single
case plan objectives for Father, which included participating in substance
abuse and mental health treatment and parenting classes, obtaining
appropriate housing and employment, and attending visits. See id. at 14-15.
She confirmed that Father was aware of these objectives. See id. at 15.
Henderson testified that Father had struggled with his drug addiction
and had not been able to maintain his sobriety. See id. at 15-16, 31. She
explained that although Father was reportedly attending a drug and alcohol
treatment program at the time, CUA had not been able to obtain any updates
on his progress. See id. at 22-23. According to Henderson, Father had not
been successful in completing a drug and alcohol program at the time of the
hearing. See id. at 16. She stated that he had also not successfully completed
his mental health treatment objectives and that she had “never [been] given
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anything about any mental health treatment [Father] received.” Id. at 34, 37.
She also testified that Father did not have appropriate housing, was not
employed, and had been “no-shows” to all but one of his CEU random drug
tests. See id. at 20, 21, 36-37, 44-45.
Henderson also acknowledged that Father had completed parenting
classes and Family School. See id. at 34, 45. She stated that Father regularly
attended his weekly supervised visits with Child, and those visits, for the most
part, were “fine.” Id. at 21. However, she reported that on a visit with Child
on September 25, 2020, the CUA outcome specialist who was supervising the
visit had to stop the visit and have the kinship aunt pick Child up early because
Father was acting erratically and appeared to be under the influence of drugs.
See id. at 18-19. Father fell asleep and could not be woken for over two hours,
when the police were finally called to remove Father from the building. See
id. at 19.
Henderson also explained that Child saw the visits with Father as more
of a playdate, see id. at 32, and that Child looked to her kinship aunt and
uncle for all of her needs. See id. at 30, 33. According to Henderson, Child
was “thriving just beautifully in [her kinship] home,” where she is “a very
important part of the family.” Id. at 28, 30. Henderson testified that Child
calls her kinship aunt and uncle “mommy” and “daddy” and that their home
is the only home Child has ever known. See id. at 14, 30-31. Henderson
opined that it was in Child’s best interests to have her permanency goal
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changed to adoption because “she’s in the best possible environment she can
be right now.” Id. at 31.
Father testified at the hearing as well. He testified that he had entered
rehab and “detox” at the Behavioral Wellness Center at Girard, see id. at 50,
56, and that he was currently enrolled in a substance abuse and mental health
treatment program. See id. at 49-50, 52, 57. According to Father, he had
“been in [the program for] over a month.” Id. at 50. Father stated that,
contrary to Henderson’s assertions, he did have appropriate housing as he
lived in his grandmother’s row home. See id. at 51. Father conceded that
Child’s maternal aunt “takes care of [Child] wonderfully” but he felt that he
was ready to parent Child. Id. at 53-54.
Following the testimony, the trial court made the following statements:
This Court has heard testimony that [Child] has been placed for
approximately 36 months, her entire life, and with the same foster
parents.
The testimony is credible that [F]ather has failed to comply with
his single case plan objectives, and he has not made progress to
alleviate the need for placement.
The credible testimony reflects that [Child] is thriving in the home
of the foster parents, and has bonded with them. It is this court’s
finding that it is in her best interest to be freed for adoption.
Inasmuch as [F]ather has made some progress, it appears that
he did not become serious until after the filing of the termination
petition. It has been shown that this repeated incapacity and
failure to provide essential parental care - it’s clear that he’s not
really interested in parenting [Child].
The testimony was that [Father] visits regularly, but it’s nothing
more than a play date, and that [Child] is ready to go home with
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the foster parents, with whom she’s bonding, and looks to for
comfort, her care, and day-to-day meeting of her needs.
The parental rights of [Father] are terminated, therefore.
Id. at 73-74.
That same day, the court issued an order involuntarily terminating
Father’s parental rights pursuant to Sections 2511(a)(1), (a)(2), (a)(5) and
(a)(8) and Section 2511 (b) as well as an order changing the permanency goal
for Child to adoption. Father filed a timely notice of appeal in each matter, and
this Court consolidated the matters sua sponte. Father raises three issues in
his brief:
A. Whether [DHS] failed to prove by [clear] and convincing
evidence that [F]ather’s parental rights should have been
terminated pursuant to 23 Pa. C.A. § 2511(a)(1), (2), (5) and (8)
since he had substantially completed his single case plan
objectives as required to have [Child] returned to him?
B. Whether [t]here was a strong emotional and parental bond
between [Father] and [Child] which would have had a negative
effect on [Child] if the parental bond was permanently severed?
C. Whether [DHS] failed to prove by [clear] and convincing
evidence that the permanency goal should be changed to adoption
where [Father] had substantially completed his single case plan
objectives as required to have [Child] returned to him?
Appellant’s Consolidated Brief at 5.
We begin by addressing Father’s first two claims, which challenge the
trial court’s order terminating his parental rights. When this Court reviews
such an order, we must accept the findings of fact and credibility
determinations of the trial court as long as the record supports them. See In
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the Interest of D.R.-W., 227 A.3d 905, 911 (Pa. Super. 2020). If the
findings of fact are supported by the record, this Court may only reverse the
order if the trial court made an error of law or abused its discretion. See id.We may not reverse merely because the record could support an alternate
result. See id. Instead, we give great deference to the trial court because trial
courts often have the opportunity to observe the parties first-hand over the
course of multiple hearings. See In re Adoption of K.M.G., 219 A.3d 662,
670 (Pa. Super. 2019). Further, the trial court, as the fact-finder, is free to
believe all, part or none of the evidence presented and is likewise free to
resolve any conflicts in the evidence. See id.Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. Under Section 2511, a trial court must
engage in a bifurcated process prior to terminating parental rights. See In re
L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the trial court must find
that the party seeking termination has proven by clear and convincing
evidence that the parent’s conduct satisfies any one of the eleven statutory
grounds set forth for termination under Section 2511 (a). See id.; 23 Pa.
C.S.A. § 2511 (a)(1-11). If the trial court finds that one of those subsections
has been satisfied, it must then, pursuant to Section 2511(b), make a
determination of the needs and the welfare of the child under the best
interests of the child standard. See In re L.M., 923 A.2d at 511; 23 Pa.C.S.A.
§ 2511(b).
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Here, regarding the first prong of the analysis, the trial court found that
DHS had proven by clear and convincing evidence that Father’s conduct met
the grounds for termination of his parental rights under Sections 2511 (a)(1),
(a)(2), (a)(5) and (a)(8). Father does not challenge the subsections
individually, but rather makes the broad assertion that the trial court erred by
terminating his parental rights under all four subsections given that he had,
according to Father, substantially completed his objectives for reunification.
This Court has made clear that it only needs to agree with the trial court that
DHS met its burden as to any one subsection in order to affirm the termination
of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc). Here, we conclude that the trial court correctly determined that
DHS met its burden pursuant to Section 2511 (a)(1), which provides that
parental rights may involuntarily be terminated on the grounds that:
The parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.
23 Pa. C.S.A. § 2511(a)(1).
In defining what constitutes parental duties, this Court has stated that:
Parental duty is best understood in relation to the needs of a child.
A child needs love, protection, guidance and support. These
needs, physical and emotional, cannot be met by a merely passive
interest in the development of the child. ... [Rather,] the parental
obligation is a positive duty which requires affirmative
performance … A parent must utilize all available resources to
preserve the parental relationship, and must exercise reasonable
firmness in resisting obstacles. … Parental rights are not preserved
by waiting for a more suitable or convenient time to perform one’s
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parental responsibilities while others provide the child with [their
needs].
In re Z.P., 994 A.2d 1108, 1118-1119 (Pa. Super. 2010) (citation omitted)
When a petition is filed under Subsection (a)(1), the court must not
consider any efforts by the parent to remedy the conditions described in the
petition that the parent first initiated after being given notice of the filing of
the petition. See 23 Pa.C.S.A. § 2511(b).
We agree with DHS that the trial court here properly concluded that
Father failed to perform parental duties for at least a six-month period prior
to the filing of the termination petition. As DHS cogently explained:
Here, the record is clear that Father neglected his parental
duties by failing to make meaningful progress with his SCP
objectives. ...
First, Father did not meet his primary objective of achieving
sobriety. Importantly, Child came into care due to parental
substance abuse concerns. To help him work on his addiction, the
trial court repeatedly referred Father to the CEU for dual diagnosis
assessments and drug screens. Despite this, Father refused to
comply when asked by CUA to submit [to] random drug screens
and did not sign releases of information for CUA or the CEU to
monitor his treatment on an ongoing basis.
The record reflects that Father continued to abuse drugs.
The CEU reported that Father tested positive for opiates on April
4, 2018; refused a drug screen on June 27, 2018; and tested
positive for opiates on September 27, 2018. … Father further
tested positive for cannabis on May 9, 2018 and positive for
benzodiazepine[s] and cannabis on December 16, 2019.
Furthermore, at the September 25, 2020 supervised visit,
Father appeared ‘under the influence of a narcotic or drug.’ While
Father denied being high, he acted [erratically] in front of Child.
… [He] fell asleep and could not be roused … for hours. Ultimately,
CUA had to contact the police to remove him from the building.
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Father claimed that he completed a ‘detox’ and ‘rehab’
program after the September 25, 2020 visit, at Girard on October
5, 2020. However, CUA could not verify this despite multiple
attempts to contact Girard. Additionally, while Father testified at
the [termination of parental rights/goal change] hearing that he
was enrolled in substance abuse and mental health treatment …,
Father admitted that he had only attended for one month,
meaning that he did not engage in treatment until well after the
filing of the [ ] petitions on November 29, 2019.
[ ] Henderson also testified that Father failed to address his
mental health objective … and that Father did not have
appropriate housing for reunification.
Finally, Father did not maintain legally significant contact
with Child. By the [termination of parental rights/goal change]
hearing, Father failed to progress past supervised visitation to
help develop his relationship with Child. While Father regularly
attended his weekly visits, [ ] Henderson characterized them as
‘little play date[s].’
DHS Brief at 15-17 (citations to record omitted).
Despite this record, Father argues that the trial court improperly
terminated his parental rights because he “substantially completed” his
objectives by participating in a parenting class, finishing Family School and
regularly attending the supervised visits with Child. The trial court, however,
was aware that Father had made these partial steps in his single case plan
objectives but the court still reached the overall conclusion that the “testimony
is credible that Father has failed to comply with his single case plan objectives,
and he has not made progress to alleviate the need for placement.” N.T. at
74.
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The record clearly supports this conclusion, as Henderson testified that
Father had failed to successfully complete a drug and alcohol or mental health
treatment program by the time of the termination and goal change hearing.
And while Father points out in his brief that he was currently enrolled in a
treatment program at the time of the hearing, that enrollment took place well
after DHS filed the petition to terminate Father’s parental rights. As the trial
court stated, “it appears that [Father] did not become serious [about making
progress on his single case plan objectives] until after the filing of the
termination petition.” Id. at 74. This, of course, is too late to preserve Father’s
parental rights under the express provisions of the Adoption Act. See 23
Pa.C.S.A. § 2511(b). As such, we find that Father has simply failed to
demonstrate that the trial court erred or abused its discretion by finding that
there was clear and convincing evidence that his parental rights should be
terminated pursuant to Section 2511(a)(1).
Because we find that the trial court properly terminated Father’s rights
under Section 2511(a)(1), we must next review the trial court’s determination
pursuant to Section 2511(b) that termination was in the best interests of
Child. Father does little to challenge this determination. He asserts that
because he had visited Child weekly for thirty-six months and Henderson
reported that the visits “went well,” DHS had failed to meet its burden of
demonstrating that termination would be in the best interests of Child. We
disagree.
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Here, Henderson testified that Child did not see Father as a parent, but
more as a playmate. See N.T. Hearing, 12/2/20, at 32-33. While Father is
correct that he regularly attended his two-hour, supervised visits with Child
each week and Henderson characterized those visits as going well, Henderson
also testified that Child comes to the visits to “play with [Father], and then,
when [the kinship aunt] shows up, she’s done with the playing. …[N]ow she’s
ready to go home [with her kinship aunt].” Id. at 32.
As for the kinship aunt’s home, the trial court credited Henderson’s
testimony that Child was thriving there. She had a strong bond with the
kinship family, called her aunt and uncle “mommy” and “daddy” and had
become an integral part of the family. The trial court noted that the testimony
established that it was Child’s kinship parents - and not Father - who Child
looked to for her care, her comfort, and her needs.
Based on all of the above, we simply do not agree with Father’s bald
assertion that there is insufficient support in the record for the trial court’s
determination that it was in the best interests of Child to have Father’s
parental rights terminated.
We note that while Father does assert in his question presented for
review that “there was a strong emotional and parental bond between [Father]
and [Child],” Appellant’s Consolidated Brief at 5, 14, this Court has held that
the mere existence of a parent’s emotional bond to his child does not preclude
the termination of his parental rights. See In re N.A.M., 33 A.3d 95, 103 (Pa.
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Super. 2011). Rather, in evaluating the needs and welfare of the child, the
trial court can also look to the safety needs of the child and the love, comfort,
security and stability the child has with her foster parents. See id. As noted
above, the trial court did so here, and concluded that under the circumstances
of this case, termination of Father’s parental rights was in the best interests
of Child. Father has not shown, nor do we find, that the trial court erred or
abused its discretion in reaching this conclusion.
In his third issue, Father asserts that the trial court erred by changing
Child’s permanency goal to adoption. Again, we do not agree.
In considering a petition for goal change, a court shall consider: 1) the
continuing necessity for and appropriateness of the placement; 2) the extent
of compliance with the single case plan objectives; 3) the extent of progress
made towards alleviating the circumstances which necessitated the original
placement; 4) the appropriateness and feasibility of the current placement
goal for the child; and 5) a likely date by which the goal of the child might be
achieved. See In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008); see also 42
Pa.C.S.A. § 6351(f). The court must focus on the child and it is the “safety,
permanency, and well-being of the child [that] must take precedence over all
considerations.” In re S.B., 943 A.2d at 978 (citation omitted).
Once a child welfare agency’s reasonable efforts to reunify a child with
their parent fail, the agency must redirect its efforts towards placing the child
in an adoptive home. See In re N.C., 909 A.2d 818, 823 (Pa. Super 2006).
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To convince a court to change a child’s goal to adoption, the agency must
demonstrate that doing so would be in the best interests of the child. See In
re R.I.S., 36 A.3d 567, 573 (Pa. 2011).
Here, Child has been in foster care for over three years. At the
permanency review hearings, the trial court found that DHS had made
reasonable efforts to reunify Father with Child. Despite these efforts, however,
the trial court determined that Father had “not made progress to alleviate the
need for placement.” See N.T. Hearing, at 74.
Moreover, the trial court specifically found that it was in the best
interests of Child to be freed for adoption. To that end, Henderson testified
that a goal change to adoption was in Child’s best interests because she is “in
a safe environment now. Her mother and father have struggled for years with
maintaining sobriety. [Child] is safe, she’s secure, and she’s in the best
possible environment she can be right now.” Id. at 31.
We find no abuse of discretion in the trial court’s order changing Child’s
permanency goal from reunification to adoption. See In re A.K., 936 A.2d
528, 532-533 (Pa. Super. 2007) (stating that the appellate court must employ
an abuse of discretion standard of review when reviewing a trial court’s order
changing a dependent child’s placement goal to adoption). Accordingly, we
affirm both the trial court’s order terminating Father’s parental rights to Child
as well as its order changing Child’s permanency goal to adoption.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2021
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