Adoption of: I.C., Appeal of: T.C. ( 2021 )

J-A18012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: I.C., A/K/A : IN THE SUPERIOR COURT OF
I.M.C., A MINOR CHILD : PENNSYLVANIA
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APPEAL OF: T.C., FATHER :
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:
:
: No. 331 WDA 2021
Appeal from the Order Entered February 5, 2021
In the Court of Common Pleas of Washington County Orphans' Court at
No(s): 63-20-0643
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: September 20, 2021
Father, T.C., appeals the trial court order, dated February 4, 2021, and
entered on February 5, 2021, that granted the petition filed by the Washington
County Children and Youth Social Services Agency (“WCCYS” or the “Agency”)
and involuntarily terminated his parental rights to his minor, male child, I.C.,
a/k/a I.M.C., (“Child”) (born in April 2019), pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a)(2), (5), and (b).1 We affirm.
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1 In a separate order dated February 4, 2021, and entered on February 5,
2021, the trial court also involuntarily terminated the parental rights of Child’s
mother, S.W. (“Mother”), pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and
(b). Further, on February 5, 2021, the trial court set forth its reasoning for
terminating the parental rights of Father and Mother. The trial court noted
that Mother failed to appear at the hearing, and she did not present any
evidence. Order of Court, 2/5/21, at 1. Father appeared at the hearing. Id.
He presented testimony and argument to counter the Agency’s petition, but
the trial court found in favor of the Agency. Id. Mother has not filed an appeal
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In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court set forth the
factual background and procedural history of this appeal as follows:
[Child] was born [in April 2019], to [Mother] and [Father].
At the time of [Child’s] birth, [Mother] and [Father] were
described as having an “on again, off again relationship.”
On June 20, 2019, [Mother] reported ongoing domestic
violence concerns indicating that, “[Father] came to her residence
and choked her and has threatened to kill her and the family that
resides in the home.” Shelter Care Application of [the Agency],
filed June 25, 2019. According to the same petition, “[Mother]
requested that the children be picked up by the foster parents on
June 22, 2019, due to [Father] continuing to make threats.” Id.
Resultant of said allegations, on June 24, 2019, the Honorable
Michael J. Lucas entered an Emergency Shelter Order. A hearing
followed and on June 27, 2019, the Shelter Order was confirmed
before Juvenile Hearing Officer Gina Ziady.
The Shelter Order, adopted by the Honorable Michael Lucas,
specifically describes allegations of domestic violence and concern
for the [Child], in addition to two (2) other children. In addition,
the Shelter Order discusses a temporary Protection from Abuse
Order (hereinafter “PFA”) that was obtained by [Mother] and
against [Father]. See Shelter Order of July 3, 2019. Importantly,
the Shelter Order notes:
[Mother’s] question to the caseworker regarding whether
WCCYS would remove [Child] from her care if she obtained
a PFA against [Father] indicates to the court [Mother] was
cognizant of the court’s concern regarding contact with
[Father] due to domestic violence. [Mother] admitted to
being [choked] by [Father] in April 2019[,] which was
either immediately prior to or after the birth of [Child] on
April [], 2019. After being [choked], [Mother] allowed
[Father] access to [Ms. A.’s] home1 on at least three other
occasions to visit with [Child] after the choking incident.
____________________________________________
from the order terminating her parental rights to Child, nor has she filed a
brief in Father’s appeal.
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See Shelter Care Order. The Order continues by noting:
Although [Mother] obtained a temporary PFA against
[Father] to protect her and [Child], [Mother] is currently
not in mental health treatment, [or] domestic violence
counseling, and has not resumed medication management.
[Mother] testified she will follow through with obtaining a
final PFA against [Father,] which she has failed to do in the
past. At this time, [Mother] has not demonstrated to the
court she possesses the insight or skills needed to ensure
[Child’s] safety on an ongoing basis.
See Shelter Care Order. [Father] was present at the Shelter
Hearing and was ordered to: participate in paternity testing,
complete domestic violence offender counseling, maintain safe
and stable housing, participate in anger management counseling,
and complete a mental health assessment. Id. Father was not
granted visitation due to the outstanding PFA Order.
___________________________________________________
1 Location where [Mother] was residing with [Child] and her other
minor children, with which she had an open Agency case. A
[c]ourt order prevented [Mother] from allowing physical contact
between her other two (2) children and [Father].
Trial Court Opinion, 4/5/21, at 4-6 (footnote in original).
The trial court set forth the factual and procedural background of the
dependency proceedings that gave rise to this appeal as follows.
Following the Shelter proceedings, on July 2 and 3, 2019,
the Agency filed a Dependency Petition for which a hearing was
conducted. By Order dated July 22, 2019, [Child] was adjudicated
a dependent child and the recommendations from the Shelter
Order for [Father] were incorporated. All parties agreed to the
adjudication and the [trial court] ordered [Mother’s] address be
withheld from all court and agency documents due to “domestic
violence concerns.”
A permanency review hearing was held on November 1,
2019, wherein [Father] was found to have had moderate progress
with the permanency plan and [minimal] progress towards
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alleviating the circumstances necessitating placement. [Father]
was granted supervised visitation with [Child] and was again
ordered to: complete domestic violence offender counseling,
maintain safe and stable housing, participate in anger
management and complete an individual psychological evaluation.
The Order notes that, “despite [Mother’s] prior assurances to the
court that she would obtain a final PFA against [Father], [Mother]
did not appear for the final PFA hearing.” The Order noted that,
[Father] “is not engaged in parenting education, mental
health treatment, anger management counseling, or
domestic violence offender counseling.” On a positive
note, the Order detailed that “[Father] exercises regular
supervised visitation with [Child]. He is engaged in
visitation coaching and is receptive to redirection. [Father]
resides out-of-state. He reports having difficulty accessing
services due to health insurance issues. All parties agreed
parenting education and anger management counseling
will be provided to [Father] by JusticeWorks YouthCare
prior to and after visitation with [Child].[”]
November 1, 2019 Permanency Review Order.
Trial Court Opinion, 4/5/21, at 6-7 (emphasis in original).
The trial court set forth the factual and procedural background of the
additional permanency review hearings in the dependency proceedings as
follows.
On March 10, 2020, a permanency review hearing was held
wherein [Father] was found to have minimal compliance with the
permanency plan. It was noted that [F]ather enrolled in Batterer’s
Intervention, but had not completed this or other services during
the review period. The Order also reflects that “Father has been
in Mississippi since December 2019 taking care of his ailing father,
who has since passed away. Father remains in Mississippi to
handle [his] deceased father’s settlement of estate. Father
contacted the [A]gency requesting that his services and visitation
be suspended during this time.” March 10, 2020 Permanency
Review Order. The Order incorporated past mandates that
[Father] complete domestic violence offender counseling,
maintain safe and stable housing, participate in anger
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management and complete [an] individual, psychological
evaluation. Id.
Trial Court Opinion, 4/5/21, at 7 (emphasis in original).
On June 16, 2020, the Agency filed a petition to involuntarily terminate
Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (b).
The trial court set forth the factual and procedural background of the
dependency proceedings and the additional permanency review hearings as
follows.
The next permanency review hearing was on July 21, 2020,
wherein [Father] was found to be minimally compliant with the
permanency plan. The Order specifically notes that Father only
obtained appointments, mandated by the [c]ourt’s prior Orders,
the day prior to the review hearing. The Order reflects that
[F]ather failed to visit with [Child] during the review period and
failed to take advantage of video visitation. In response, [Father]
indicated that he “didn’t receive calls” from JusticeWorks, despite
testimony to the contrary from an Agency representative. In
addition, Father said he “believed visits could not happen due to
COVID 19 restrictions” and was unaware that video visitation was
possible. The Order notes that [Father] also missed a visit that
was scheduled immediately prior to the review hearing. Father’s
required services remained the same as previously [o]rdered.
July 21, 2020 Permanency Review Order.
On August 31, 2020, [Father] motioned the [c]ourt for
increased visitation with [Child]. The request was denied, without
prejudice, requiring [Father to] complete the previously[-]
ordered interactional evaluation.
A permanency review hearing was held on October 10,
2020, wherein Father was found to have minimal compliance with
the permanency plan and no progress in alleviating the
circumstances which necessitated the original placement. At this
time, [Child] was out of [Father’s] care in excess of [15] months[,]
and the Agency [had] filed a petition for termination of parental
rights. The Order of October 10 details:
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Although Father has begun and completed one court
ordered service, the Agency remains concerned with his
progress in the present matter. Of significance, the Agency
is concerned with Father’s inconsistent visits, continued
need for re-direction during visits, and delay in Father’s
commencement and completion of court ordered services.
The [c]ourt has notable concern that in the beginning and
participating with services and in his evaluation with Dr.
[Terry] O’Hara, [F]ather described his activity as “jumping
through hoops” and fails to recognize the need and/or
importance of the service. Father’s physical residence has
changed significantly throughout the history of the case.
Notably, [F]ather was out of state for several months at
the beginning of 2020, attending to his sick father and[,]
following his [father’s] passing, attending to activities
involved with the same. Father now resides in West
Virginia, which has been confirmed as of . . . November 6,
2020.2 Father attended 11 visits of the 16 offered.
Blueprints, who supervises visits, remains concerned with
[F]ather requiring regular re-direction, and direction to
feed [Child]. [Child] has been in foster care for 17 months.
His foster father reports that he is doing well and he was
observed on TEAMS screen appearing comfortable and
happy. When sensitive discussion was anticipated, foster
father was asked to have [Child] leave the room. . . . . .
Father was offered TPR [termination of parental rights]
counseling but declined. The original date of the TPR was
continued due to Dr. O’Hara recommending time to provide
Father with an opportunity to complete services and
interact with [Child] in light of the time Father spent caring
for his own father. However, Dr. O’Hara noted specific
concerns with Father’s lack of time with his son and his
son’s need for consistency; allegations of domestic
violence against [F]ather; and Father’s ‘less than serious’
attitude about services.’
October 10, 2020 Permanency Review Order.
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2 It was later determined that the only confirmation of address
was through Father’s self-reporting. Later efforts to locate Father
at stated address proved fruitless and Father failed and refused to
provide the address of the location where he was residing.
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Trial Court Opinion, 4/5/21, at 7-9 (footnote in original).
The trial court continued to set forth the factual and procedural
background of the dependency proceedings and the additional permanency
review hearings as follows.
On December 23, 2020, [Father] again motioned the [c]ourt
for expanded visitation. In support of his request, Father argued
that he: “completed anger management, started parenting
education, continued to participate in domestic violence
counseling, and continued to participate in visitation.” Having no
verifiable address for [Father], said request was denied.
The final permanency review before hearing on the TPR
petition was held on January 19, 2021. During this hearing,
[Father] was found to be in substantial compliance with the
permanency plan with no progress toward alleviating the
circumstances which necessitated the original placement.
Testimony was provided at the hearing that [Father] completed
his [c]ourt[-]ordered services and did “much better” with his
interactional evaluation with his son than previously. Although
Dr. O’Hara, who completed the evaluation, preliminarily stated
that [Father] was “no risk of harm or violence,” after examination
regarding known problems with [Mother’s] veracity, Dr. O’Hara
agreed he had concerns with the information provided by [Father],
which formed the bases of his ultimate opinion.3
Testimony of [Father’s] [B]atterer’s [I]ntervention
[C]ounselor, Katherine [“Kate”] Bozar, indicated that [Father] did
not immediately attend therapy and engaged in a series of self-
imposed stops and starts throughout his treatment. [Father]
ultimately completed [b]atterer’s intervention on January 13,
2021. Bozar described [Father] as “extremely guarded.” The
[trial court] recognized the same noting, “The [c]ourt was able to
observe [Father’s] guarded behavior first[-]hand in his response
and/or lack thereof to questions [during] his testimony. [Father]
was directed to respond to several questions, directly refused to
respond to many others and provided overall elusive responses to
questioning[,] [i.e.,] Where do you work .... “My job”; Where do
you live .... “I don't know right now.”
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As a result of the testimony elicited at the January 2021
hearing, the [c]ourt ordered the following:
Within 72 hours, [Father] shall provide the Agency with the
address where he is presently residing and execute
releases necessary for the Agency to obtain verifiable
information regarding his present employment. The
Agency shall further investigate the home [Father] lists as
his permanent address, [ ], Shubuta, Mississippi, 39360,
to verify [Father’s] ownership of said property and to
determine, at least preliminarily, if such address provides
potential as safe, suitable and adequate housing for
[Child.]
Permanency Review Order of January 19, 2021. Father was also
granted extended time for his next supervised visit with [Child].
___________________________________________________
3 Dr. O’Hara acknowledged that he was unaware if [Father] was
working or where [Father] was currently living. [Dr.] O’Hara was
also unaware if visit coaching was still needed (as testified to by
provider) or if [Father] had a criminal record documented outside
of the Commonwealth of Pennsylvania.
Trial Court Opinion, 4/5/21, at 9-10 (footnote in original).
The trial court continued to set forth the factual and procedural
background of the dependency proceedings and the additional permanency
review hearings as follows.
On January 26, 2021, the Agency filed a Status Report
regarding the additional [c]ourt requests. See Attachment "A"
Status Report at DP 69-19, attached hereto and made a part
herein. Of particular significance[,] the status report, which went
unchallenged, noted the following:
[Father] had a three[-]hour long visitation on January
22, 2021, at the Agency. [Father’s] visitation was
supervised by Caseworker Eisengart. [Father] arrived five
minutes late for visitation with [Child]. [Father] brought
items with him for the visitation which included: a bag of
diapers, wipes, juice, snacks, and lunch for [Child].
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Initially, Caseworker Eisengart had to tell [F]ather to take
[Child’s] coat off at the beginning of their visit. [Father]
played with [Child] and checked his diaper without
prompting. [Father] did put [Child’s] diaper on backwards
but realized it was on backwards, and switched the diaper
around. [Father] also fed [Child] lunch without being
prompted to do so.
Following [Father’s] visitation on January 22, 2021,
the Agency caseworker who was supervising the visit had
[Father] sign releases to [Company 1] as well as the
Laborers Union 1149.4
During the visitation, [Father] did not provide the
caseworker an address for where he is residing.
The Agency spoke with staff at the [Laborers] Union
1149 on January 25, 2021. Staff reported that according
to their records, [Father] has been active with the union
since May 18, 2018. [Father] was employed with a
[different] company, [Company 2], from June 4, 2018 until
July 13, 2018. [Father] was then employed with another
company from July 18, 2018 until December 3, 2018
through a company called [Company 3]. Staff reported
that [Father] was employed at [Company 1] from July 22,
2019 until November 15, 2019. [Father] has been on the
unemployed list since July 22, 2019.
The Agency reached out [to Company 2] on January
25, 2021. They reported that [Father] has not worked for
their company since December 2019. Staff were unable to
say if [Father] was terminated or quit[;] however, [they]
indicated he was no longer employed with their company.
At the last hearing, [Father] reported that his
residence is [], Shubuta, MS 39360. According to the
property information, the property shows as vacant. The
home is currently owned by Mr. [J.C.,] but it shows it was
redeemed by [Father] on February 14, 2020.
Status Report of January 26, 2021.5
_____________________________________________________________________________
4 Location that [Father] indicated he worked at prior hearing.
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5 [Father] later informed the [c]ourt that a trailer is located on the
property.
Trial Court Opinion, 4/5/21, at 10-11 (footnotes in original).
On January 28, 2021, the trial court held an evidentiary hearing on the
termination petition.2 At the hearing, the Agency presented the testimony of
Agency caseworker, Deanna Bevan; and Father’s Batterer’s Intervention
Counselor, Kate Vozar. N.T., 1/28/21, at 9, 66-68. Father testified on his
own behalf, and presented the testimony of Dr. Terry O’Hara, Ph.D., who
testified as an expert in child psychology. Id. at 89, 104-105. The trial court
made the following findings of fact from the testimony of Ms. Deanna Bevan.
During the TPR hearing, Agency caseworker, Deanna
Bevan[,] provided testimony regarding the history of placement,
compliance and progress in the Dependency Court case. Ms.
Bevan testified that, at the initial time of removal, [Father’s]
whereabouts were not immediately known and a temporary
protection from abuse was in place that precluded contact
between [Father] and [Child]. Specific to the mandated services
for Father, [Ms.] Bevan testified that Father completed domestic
violence counseling in January of 2021, completed anger
management in November of 2020, and engaged in individual and
interactional evaluations. [Ms.] Bevan testified that Father had
provided no proof of safe and stable housing and remained in
parenting counseling, having not completed services with
JusticeWorks Youthcare (JWYC). Further testimony established
that, although Father had completed domestic violence
counseling, concerns lingered due to Father failing to be fully
engaged in his treatment. Further, [Ms.] Bevan testified that
despite his active involvement with JWYC, Father continues to
require direction with very basic care of [Child].
____________________________________________
2 Attorney Erin W. Dickerson represented Child as his legal interest
counsel/guardian ad litem at the hearing. On May 28, 2021, Attorney
Dickerson filed a brief on behalf of Child in this appeal.
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[Ms.] Bevan was specifically questioned about Father’s
compliance regarding providing information about his present
address and employment. [Ms.] Bevan stated that Father failed
to provide a valid address, citing mail returns, an inability to locate
addresses provided, and property searches providing inconsistent
data to that provided by [Father]. Citing Father’s January 19,
2021 testimony, [Ms.] Bevan said she was unable to confirm
Father’s housing and/or employment. In fact, [Ms.] Bevan
testified she was unable to verify any employment for Father after
November of 2019, a specific contradiction from the information
[Father] provided the Agency and the Court.
[Ms.] Bevan testified that Father’s visits were suspended
when [] Child was first adjudicated, due to the PFA. Father was
then granted supervised visits, but he first stopped attending and
then requested a hold on visits as of March 10, 2020.6 Father did
not resume visits until July[] 2020 and had no contact during the
time span of January 5, 2020 through July 16, 2020, with the
exception of a video sent to [Child] for his birthday. Father has
never obtained unsupervised visits and [Child] remains in an
undisclosed foster home, where he has resided since his removal
in June [] 2019.
Caseworker Bevan testified that [Child] is extremely bonded
to his foster parents and calls them mom and dad. There is one
other child in the foster home[,] and [] Child has a sibling
relationship. [Child’s] daily needs, developmental needs, and
medical needs are met by the foster parents. In contrast, [Child]
has never been returned to the care of the biological parents.
Furthermore, to this date, Father has been unable to establish safe
and stable housing, has not completed parenting counseling and
education, and has not been upfront with his providers. Ms. Bevan
testified that [Father] was not truthful with the Agency[,] and
cited his misinformation regarding his housing and employment.
In summary, [Ms.] Bevan testified that she believes it is in
the best interest of [Child] to have the TPR granted and for his
adoption by the foster family. In support of her position, [Ms.]
Bevan listed: [Child] has been in care 19 months; he has
consistency with the foster family and has bonded; concerns
remain about [Father’s] truthfulness about his employment and
residence, including his failure to even tell the Agency with whom
he resides; Father’s continued requirement of supervised
visitation and parenting counseling; and Father’s failure to
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acknowledge that he cannot put parenting on hold for a seven[-
]month period.7
[Ms.] Bevan testified that[,] after [Child] visits with Father,
[] Child doesn’t cry or appear impacted by the separation. Father
has never attended a doctor’s visit for [] Child and hasn’t
requested attendance and cannot meet the essential needs of
[Child].
___________________________________________________
6 The time frame [Father] indicated that he was attending to his
ailing [f]ather out of state.
7 [Ms.] Bevan was asked whether Father made attempts to reach
her or [Child] during the seven[-]month period. [Ms.] Bevan
testified that Father never contacted her[,] and she would reach
out to communicate with Father and would hear no response.
[Ms.] Bevan further testified that Father never requested services
in Mississippi, including telehealth and/or video visitation.
Trial Court Opinion, 4/5/21, at 12-14 (footnote in original).
The trial court made the following findings of fact from the testimony of
Ms. Kate Vozar.
The next witness at the TPR hearing was [Father’s]
Batterer’s Intervention Counselor, Kate Vozar. Ms. Vozar testified
that she initially received a referral for services for Father in
November [] 2019. [Father] was a no show for his first intake on
December 18[, 2019,] and ultimately had intake on December 23,
2019. [Ms.] Vozar testified that Father did not attend regularly
and then was absent for a period of [seven] months, specifically
noting that in March [] 2020 services switched to on-line due to
the pandemic and [Father] still failed to attend.8 [Ms.] Vozar
testified that Father re-started services two months prior to the
TPR hearing and had no absences in the last referral period.
[Ms.] Vozar described [Father] as “very guarded” and noted
that[,] while he did well “academically,” he did not report any
issues. [Ms.] Vozar found this remarkable saying, even if they
deny the actions, generally they will acknowledge things they can
do better. [Father] denied and said he was just engaged in the
services for CYS. [Ms.] Vozar felt that [Father] was just going
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through the motions without processing any of the information
provided in the curriculum. [Father] was also guarded with [Ms.]
Vozar regarding his living arrangements telling her, “I live with
friends.”
___________________________________________________
8 On cross[-]examination, [Ms.] Vozar stated that in
communication with [Father,] he informed her he was having log
in problems, but he never reached out to [Ms.] Vozar with
assistance in rectifying such issues.
Trial Court Opinion, 4/5/21, at 14 (footnote in original).
The trial court made the following findings of fact from the testimony of
Father.
Next, [Father] provided testimony on his own behalf.
[Father] testified that he didn’t visit [Child] at the beginning of the
case because paternity was not established. [Father]
acknowledged that he began domestic violence counseling in
December [] 2019, but “flew out” and got home on December 28,
2019. [Father] indicated that he found his father on the floor and
stayed and cared for his father until his [father’s] passing on
February 2, 2020. [Father] testified that, following his father’s
passing, he had a number of responsibilities, including:
administering his father’[s] estate, his father’s burial, payment of
his [father’s] past debt, and direction of “who got what share of
his estate.” He testified that this process took approximately
three months, but then there was a travel ban due to COVID-19.
[Father] testified that he started services upon his return to
Pennsylvania. In contrast to the Agency testimony, Father
testified that he continued contact with [WC]CYS during his
absence and was told that visitation was shut down. [Father]
testified, “every so often, I called[,] and me and my mother sent
a video on April 16, 2020.” [Father] testified that[,] since June []
2019, he has been engaged with services, except when he had a
conflict with his work schedule. [Father] testified that he works
around [40] hours a week, Monday through Friday, but noted that
it was difficult working in 2020 due to the pandemic, so he had to
resort to “side work.”9 Father testified that the Union was lying to
the Agency when they reported that he had not been employed
since 2019. [Father] testified that [Ms.] Vozar was lying about
informing him of telehealth and alternate services. [Father]
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suggested the caseworker was untruthful testifying about video
visits, testifying that[,] when he requested phone conversations
with his son, he was told he could just send a video.
Regarding his residence, [Father] testified that he has a
home [] in Shabuta, Mississippi. When asked if such property was
vacant, [Father] indicated that there was a trailer on the property.
Finally, [Father] testified that he loves his child and wishes to be
reunified with him.
___________________________________________________
9 [Father] declined to say what side work [he performed] and for
whom. When pushed on cross-examination, Father said he did a
“side roofing job.” When further pressed, Father[,] for the first
time of record[,] indicated he did side roofing with close relatives
during the summertime, specifically a [Mr. L.T.] with [Company
3,] a complete contradiction to the testimony [he] provided to the
[c]ourt during the final permanency review hearing.
Trial Court Opinion, 4/5/21, at 15-16 (footnote in original).
The trial court made the following findings of fact from the testimony of
Dr. Terry O’Hara.
Being called as a witness for Father, Dr. Terry O’Hara
testified as a Child Psychology Expert. Dr. O’Hara testified that
he conducted an evaluation of [Father] and [Child]. [Dr.] O’Hara
noted that he saw several positive indicators, including Father’s
involvement with JWYC, anger management, visit counseling, and
[B]atterer’s [I]ntervention counseling. [Dr.] O’Hara testified that
the information provided to him was by [Father]. [Dr.] O’Hara
testified that [Father] denied a lack of independent housing.
Dr. O’Hara testified that [Father] did well during the
interactional evaluation and showed several positive parenting
skills, an improvement from his first evaluation with Father. [Dr.]
O’Hara noted that he had no information regarding negative
parenting from visitation and further noted his concerns over the
validity of the allegations of domestic violence.10 [Dr.] O’Hara
opined that, given [Father’s] progress, visitation with [Child]
should increase[,] and further noted that[,] if [Father] displays
positive parenting skills, it would increase his bond with [Child].
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When questioned by [Father’s] attorney regarding a bond,
[Dr.] O’Hara testified that he thinks there is a bond and noted that
[Father] clearly cares for his son and “shows great parenting
skills.”11 As an aside, [Dr.] O’Hara noted that children with a
biological family tend to do better.
On cross[-]examination, Dr. O’Hara acknowledged the
lengthy time [Child] had been in placement and without
permanency. Dr. O’Hara testified that he felt there were
extenuating circumstances in the present case that contributed to
the lack of contact. [Dr.] O’Hara testified that, “given his
(Father’s) gains, he should be given more time to demonstrate
minimally adequate parenting.” Dr. O’Hara was also cross-
examined regarding the inconsistent and misleading housing and
employment information provided by [Father] to the Agency. In
review, Dr. O’Hara noted that the information was inconsistent
with the information provided to him by [Father] and caused
concern over [Father’s] overall veracity. Specifically, Dr. O’Hara
said, “if Father is untruthful about this, it makes me wonder what
other things is he prevaricating [about,] and calls into [question
the] credibility [of] all aspects of the evaluation.” Dr. O’Hara
further testified that[,] despite Father’s excuses for his
seven[-]month absence, such excuses are not a reason to avoid
parenting, admitting [Father] could have been more vigilant about
his son. Further, [Dr.] O’Hara acknowledged that testimony from
Chris Yeardie indicating that Father continues to need visit
counseling was “concerning,” but noted that he “needs more
context.”
__________________________________________________
10 When cross-examined about this thought[,] Dr. O’Hara
acknowledged his limited information.
11 This statement was later clarified by Dr. O’Hara[,] noting that
his observation was that of Father’s bond to [C]hild and not Child’s
bond to Father. [Dr.] O’Hara felt Child would have increased
bonding with additional visitation time.
Trial Court Opinion, 4/5/21, at 16-17 (footnotes in original).
On February 5, 2021, the trial court entered the order terminating
Father’s parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and
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(b). On March 8, 2021, Father timely filed a notice of appeal, along with a
concise statement of errors complained of pursuant to Pa.R.A.P. 1925(a)(2)(i)
and (b).3
In his brief on appeal, Father raises two issues:
1. Did the trial court err in terminating Father’s parental rights as
evidence presented did not meet the burden of clear and
convincing evidence under 23 Pa.C.S. § (a)(2) [and] (5)[,] and 23
Pa.C.S. § 2511(b)?
2. Did the trial court err in denying Father’s motion to dismiss the
TPR [petition] after the Agency closed its case[-]in[-]chief without
presenting clear and convincing evidence to terminate parental
rights under 23 Pa.C.S. § (a)(2) [and] (5)[,] and 23 Pa.C.S.
§ 2511(b)?
Father’s Brief, at 8.
In his brief, Father summarizes his argument as follows:
The trial court erred as a matter of law in granting the
Agency’s petition to terminate parental rights under [23 Pa.C.S.]
§ 2511(a)(2) [and] (5)[,] and 23 Pa.C.S. § 2511(b). The evidence
was insufficient to sustain the burden of clear and convincing
evidence. The Agency was completely lacking in meeting its
burden[,] as Father has completed all court[-]ordered services
except parenting. Father has always maintained he wished to
reunify with his son. Additionally, after dealing with his [f]ather’s
death and administration of his [father’s] estate[,] which was
out[-]of[-]state, Father continued court[-]ordered services and
completed nearly all of them. The COVID-19 pandemic also had
an impact on Father’s visits and services. The out[-]of[-]state
travel ban implemented by nearly every state affected his ability
to visit and engage in services. Washington County also
suspended in[-]person visits for a period that began in March
2020[,] and [the suspension was] lifted around June 2020. The
Agency cited no relevant concerns regarding parental incapacity
or a relinquishment of a parental claim. The most relevant
____________________________________________
3 See 1 Pa.C.S. § 1908 (regarding computation of time).
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testimony came from expert[, Dr.] Terry O’Hara[,] who testified
that Father exhibits several positive parenting indicators and no
safety concerns with his parenting. He also testified that [C]hild
has a beneficial relationship worth saving with [him,] and there is
a clear bond between them. The Agency failed to produce
evidence that [C]hild would suffer irreparable harm, and [it] could
only state that [C]hild was in care for 19 months. The evidence
does not support the concerns stated by the Agency regarding
Father’s lack of progress with services. To the contrary, the
Agency’s own witness, Kate Vozar, indicated progress in domestic
violence counseling and completion of that service. Dr. O’Hara
noted that there was a significant improvement in the relationship
between Father and [C]hild between evaluations[,] and
commended Father for his progress. Since there is a lack of clear
and convincing evidence regarding the Agency’s petition under
section 2511, the trial court erred in granting the Agency’s petition
to terminate parental rights as to Father.
Father’s Brief, at 23-24.
In reviewing the trial court order granting a petition to terminate
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.- 17 -
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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
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);
see also In re S.K.L.R., 2021 Pa. LEXIS 3388, 2021 WL 3624786 (filed
August 17, 2021) (reiterating the standard of review set forth in R.J.T. and
S.P.).
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).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a). See
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In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will
address section 2511(a)(2) and (b), which provides 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.
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence necessary for his physical or mental
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well-being; and (3) the causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d
1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights
under section 2511(a)(2), due to parental incapacity that cannot be remedied,
are not limited to affirmative misconduct; to the contrary those grounds may
include acts of refusal as well as incapacity to perform parental duties. In
Matter of Adoption of C.A.W., 683 A.2d 911 (Pa. Super. 1996) citing In re
E.M., 533 Pa. 115, 120, 620 A.2d 481, 484, (1993); In re William L., 477
Pa. 322, 345, 383 A.2d 1228, 1239 (1978).
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 has stated as follows.
[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).
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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
of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary
termination of parental rights, despite existence of some bond, where
placement with mother would be contrary to child’s best interests). “[A]
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parent’s basic constitutional right to the custody and rearing of . . . [his] 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 at 856
(internal citations omitted).
This Court has explained that a parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights. In
re Z.P., 994 A.2d at 1121; In re L.M., 923 A.2d 505, 512 (Pa. Super. 2007)
(same). We have stated 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.’” In re Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010); In re
Adoption of C.L.G., 956 A.2d at 1007 (same) citing In re Z.S.W., 946 A.2d
726, 732 (Pa. Super. 2008).
In its Pa.R.A.P. 1925(a) opinion, the trial court provided the following
analysis of Father’s issues regarding section 2511(a)(2) and (b):
SPECIFIC FINDINGS SUPPORTING DECISION:
[Notwithstanding] his late participation in services, [Father]
has yet to achieve a majority of the goals set forth for him by the
Dependency Court. [Father] has not completed parenting
counseling, has not obtained and maintained safe and stable
housing, has not shown commitment, concern, or engagement
with the services directed by the [trial court], and has failed to
provide candid and accurate information to service providers, the
Agency, and[,] most importantly this [c]ourt. [Father] refused,
after a multitude of requests, to provide the Agency or this [c]ourt
with his valid address, a verifiable location where he was staying,
with whom he was staying, or any solid information related to his
present living arrangements. Additionally, [Father] has provided
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misleading and/or false information to the Agency and this [c]ourt
relative to his employment and employment status. Further,
although, in recent months[,] [Father] has taken some affirmative
steps to maintain a relationship with his [c]hild and participate
with services, he has voiced his disengagement indicating that he
was only “going through the motions” or “jumping through
hoops.” This attitude is reflected through his participation in
parenting education, wherein he participates but fails to
progress[,] requiring continual coaching with items as basic as
feeding and/or changing [ ] Child. [Father] has never achieved
unsupervised visitation with [ ] [C]hild and[,] in 19 months, has
not completed a [c]ourt-ordered parenting program. This [c]ourt
is well[-]aware that “a parent who cannot or will not meet the
irreducible minimum requirements set by the Juvenile Act within
a reasonable time following state intervention may properly be
considered ‘unfit,’ and may properly have parental rights
terminated.” In re: J.W., A.W., V.W., and J.W., 578 A. 2d 952,
958, [sic] (Pa. Super. 1990). Moreover, failure of a parent to
remedy the conditions within a reasonable period of time provides
clear and convincing evidence that termination of parental rights
of the parent(s) should occur. In re: Adoption of B.J.R., 297
Pa. Super. 11, 15, 17, 579 A. 2d 906, 909, 913 (1990) [ ]; In re:
Adoption of M.A.R., 405 Pa. Super. 131, 191 A. 2d 1133 (1991).
This [c]ourt recognizes that [Father] had life circumstances
that required him to care for his ailing father out[-]of[-] state and
then attend to his father’s estate. This [c]ourt further recognizes
that restrictions were put in place as a result of the COVID 19
pandemic. But with that recognition, this [c]ourt also
acknowledges that, as a result of pandemic restrictions, many
services for which [Father] was mandated [to participate and
complete] were available on-line and virtually, including visitation.
Despite such offerings, [Father] failed and/or refused to take
advantage [of the services]. And life difficulties cannot justify
[Father’s] lackadaisical response to services when he finally
engaged. Finally, and most concerning to this [c]ourt, [Father]
has provided misleading, partial and completely untruthful
information to his service providers, to the Agency, and to this
[c]ourt. Paraphrasing Dr. O’Hara, if he is not telling the truth
about this, it makes you wonder with what else is he being
dishonest [about,] and calls into question any conclusions [ ]
reached based on information provided by [Father].
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[Father] has never provided parental care for [ ] Child and
has never attended – nor has he asked to attend – any of [ ]
[C]hild’s medical appointments or developmental evaluations.
Notably, Father put parenting “on hold” for an extensive period of
time, making no alternate arrangements for services, video visits
or provisions for his [c]hild. “Parental rights are not preserved by
waiting for a more suitable or convenient time to perform one’s
parental responsibilities while others provide the child with his or
her physical and emotional needs.” In Re: E.A.P.[,] 944 A. 2d
79 (Pa. Super. 2008). A parent is required to make concerted,
diligent efforts towards the reasonable prompt assumption of full
parental responsibilities. A parent’s vow to cooperate, and
nothing more, after a long period of uncooperativeness regarding
the necessity of and/or availability of services, may properly be
rejected as untimely and disingenuous. In re: A.L.D., 797 A. 2d
326 (Pa. Super. 2002). “A parent does not perform his or her
parental duties by displaying a merely passive interest in the
development of the child.” In re J.T.M.[,] 193 A.3d 403 (Pa.
Super. 2018).
Trial Court Opinion, 4/5/21, at 17-19.
With regard to section 2511(b), the trial court stated:
Finally, this [c]ourt must take into account whether a bond
exists between the child and the parent; and if terminating the
parental rights would destroy any existing, necessary and
beneficial relationship or bond. [] 23 Pa.C.S. § 2511(b) is the
second step in the analysis of considering termination of parental
rights. As such, § 2511(b) requires “the court in terminating the
rights of a parent [to] give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” Section 2511(a) requires a focus on the parent when
terminating parental rights, but § 2511(b) requires a focus on the
child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). Section 2511(b) has been interpreted as a “best
interests” and “bond” analysis.
To support its position under Section (b), the Agency asserts
that, termination of parental rights best meets the needs and
welfare of [ ] Child and termination of Father’s rights will have no
detrimental effect on the [m]inor child. Based on the testimony
elicited at the hearing and a review of the relevant dependency
case history, this [c]ourt agrees with this assertion. In the present
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matter, [ ] Child has been in placement for well over 19 months.
[ ] Child has been in his kinship foster home since he was two (2)
months old, nearly his entire life. Father has never lived with [ ]
Child and has never provided regular care for [ ] Child. Father
still requires prompting in providing basic care of [ ] Child,
necessitating supervised visitation. For the majority of [ ] Child’s
life, his foster parents have served the role of care givers and
nurturers.
Here, [ ] [F]ather’s own expert conceded during the hearing
that the bond that [ ] [C]hild has with [ ] [F]ather is an attenuated
bond. “The [c]ourt should consider the “importance of continuity
of relationships to the child, because severing close parental ties
is usually extremely painful . . . the court must consider whether
a natural parental bond exists between child and parent and
whether termination would destroy an existing, necessary and
beneficial relationship.” In the Interest of K.Z.S.[,] 946 A. 2d
753 (Pa. Super. 2008). While this [c]ourt has no doubt that Father
loves his [c]hild[,] this knowledge alone in insufficient to satisfy
the requirements of § 2511(b). The [c]ourt believes that [ ] Child
will benefit from a consistent and permanent resolution to his
living situation and such benefit outweighs any limited bond that
may exist with Father. Termination of the father’s parental rights
in the instant case best serves the developmental, physical and
emotional needs of [ ] Child.
Accordingly, the opinion of this [c]ourt is the Agency has
established through clear and convincing evidence, under
§ 2511(a) and (b), that termination of parental rights is in the
best interests of [ ] Child, the Petition for Involuntary Termination
was GRANTED, and such decision, respectfully, should not be
disturbed on appeal.
Trial Court Opinion, 4/5/21, at 19-21.
In each of his three issues arguing that the trial court failed to consider
the entire record, Father seeks for this Court to substitute our discretion for
that of the trial court. We cannot do so. See In re S.K.L.R., supra, citing
R.J.T., supra, in which our Supreme Court has instructed that we are not to
substitute our discretion for that of the trial court. After a careful review, we
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find that the trial court’s determination that the Agency satisfied the
requirements of section 2511(a)(2) and (b) is supported by competent, clear
and convincing evidence in the entire record, which the trial court reviewed.
In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27; In re: T.S.M.,
620 Pa. at 628-629, 71 A.3d at 267. As we perceive no error of law or abuse
of the trial court’s discretion, we find Father’s issues lack merit, and we adopt
the discussion set forth in the trial court opinion.
Finally, in his brief on appeal, Father asserts that the trial court erred in
refusing to deny the Agency’s termination petition, as his counsel requested
at the close of the evidence at the hearing. See Father’s Brief, at 34-35; N.T.,
1/28/21, at 155-156. Father does not set forth any argument in support of
this issue with citations to case law. Thus, he waived the issue. Nevertheless,
we would find that it lacks merit, as we have concluded that there is sufficient
evidence to support the trial court’s termination of Father’s parental rights
under section 2511(a)(2) and (b). As such, the trial court did not abuse its
discretion in refusing to deny the petition. Accordingly, we affirm the trial
court order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 9/20/2021
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