In the Interest of: S.S.W., Appeal of R.W., Father

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.S.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: R.W., FATHER :
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: No. 85 WDA 2022
Appeal from the Order Entered December 13, 2021
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): CP-02-AP-0000084-2021
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: September 12, 2022
Appellant, R.W. (“Father”), appeals from the order entered December
13, 2021, which involuntarily terminated his parental rights to his minor
daughter, S.S.W., born in July of 2013.1 After careful review, we affirm.
The trial court set forth the relevant factual history of this matter, as
follows:
[S.S.W.] was born [in] July [of] 2013 to [F]ather and mother.2
The family had a history with Allegheny County [Office of Children,
Youth and Families (“CYF”)], and at the time prior to removal, CYF
was involved with the family due to issues of neglect and truancy.
On June 11, 2019, CYF obtained an order for emergency
protective custody for [S.S.W]. Mother left [S.S.W.], and her
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1 The docket indicates that the trial court’s order was filed on December 10,
2021. However, the docket also shows that the order was not served on the
parties until December 13, 2021. Thus, we consider the order as entered on
December 13, 2021. See Pa.R.A.P. 108(b) (“The date of entry of an order in
a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day
on which the clerk makes the notation in the docket that notice of entry of the
order has been given as required by Pa.R.Civ.P. 236(b).”).
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biological half-siblings, home alone. As a result, criminal charges
(endangering the welfare of a child) were filed against mother and
the children were removed. At the shelter hearing on June 13,
2019, CYF was ordered to place [S.S.W.] with relatives, as
[F]ather could not be immediately located.
2 Mother has several other children but S.S.W. is her only
child with [F]ather. The one-day evidentiary hearing was
for CYF’s involuntary termination petitions as to mother, the
fathers of some of [S.S.W.’s] half[-]siblings, unknown
fathers, and [S.S.W.’s] biological [F]ather…. The court
entered orders terminating the parental rights of all
involved. Father … is the only parent that appeals.
[S.S.W.] was adjudicated dependent on July 17, 2019, and the
court made the following findings of fact:
[]CYF has received numerous referrals for the family[,]
dating back to 2011. The referrals have been for housing
concerns, little food in the home, use of physical discipline,
truancy[,] and a lack of supervision…[.] The agency has
had an open case since January 2019[,] due to concerns of
bed bugs, truancy[,] and lack of supervision…[.] [Father]
and mother are married. He is the father of S.S.W. He
signed an [acknowledgment of paternity]…. He has not
seen [S.S.W.] since she was 18 months old[;] per mother[,]
it was more like when she was 7 or 8 months old. He has a
significant criminal history[,] including drugs, assaults[,]
and firearms. He has served time. Mother testified to
significant [intimate partner violence (“IPV”)] between him
and her. He denies this. His paramour testified that there
is no IPV. Frankly, this court thought that Father and his
paramour lacked credibility. Father has a medical marijuana
card. He and his paramour live in Sojourner House5
housing…[.] Father’s paramour has a CYF history but [it is]
unclear what it is. She admits to a lengthy drug and alcohol
history but has been in recovery for several years. They
have several kids living in their home. Father says he tried
to see [S.S.W.]; mother denies this. He stays home with
the kids while his paramour works.
5 Sojourner House is a residential recovery service and
program to mothers and their children in the
Pittsburgh area. They have a program for permanent
housing and supportive services for people in
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recovery, where children can reside with their
parents. Father’s paramour was in this program and
he resided with her there.
The court ordered CYF to investigate the [IPV] allegations made
by mother, with respect to [F]ather, and to investigate [F]ather’s
paramour. The court ordered visitation between [S.S.W.] and
[F]ather, three times a week[,] supervised, in his home with
permission to move to liberal, unsupervised visits upon agreement
of the parties and as [S.S.W.] felt comfortable.
Shortly after the adjudication, the kinship foster home where
[S.S.W.] had been placed was no longer a viable arrangement.
CYF moved [S.S.W.], along with a biological half-sibling, into a
non-relative foster home, which was ratified by court order on July
21, 2019. The following month, the court assumed jurisdiction for
the two outstanding truancy citations that had been filed before
the magistrate with respect to [S.S.W]. On August 29, 2019,
[S.S.W.] was placed in [F]ather’s care.
At the first permanency review hearing, on October 17, 2019, this
court made the following findings:
Father continues to live with his fiancé and children. The
family recently completed family focus. Father’s fiancé
refused to screen today. He was positive for
[tetrahydrocannabinol (“THC”),] and he has a medical
marijuana card. []CYF recently received a report of
inappropriate discipline in the home[,] specifically that a belt
was being used. Father made some concerning comments
about []CYF just coming and taking [S.S.W.] as he was
done…[.] [S.S.W.] remains with [F]ather. She is repeating
Kindergarten. She is doing well but the school indicated that
she could benefit from student assistance programming.
The school reports the paperwork was sent home [but
F]ather said he never got it.
The court ordered, inter alia, that [F]ather should complete the
outstanding school paperwork with respect to [S.S.W.], refrain
from physical discipline in the home, [F]ather’s paramour should
undergo drug screens, and CYF should assist the family with
resources for winter clothing. The order further stated, “This court
is also concerned for the stability of [S.S.W.] if there are more
concerning reports the agency is to bring (sic) to the court’s
attention.” The court scheduled the next permanency review
hearing for January 15, 2020.
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On December 17, 2019, CYF obtained an order for emergency
protective custody, and a shelter hearing occurred on December
20, 2019. CYF took protective custody of [S.S.W.] after [F]ather
had been arrested and incarcerated[] as a result of an incident of
domestic violence between him and his paramour. At the shelter
hearing, [F]ather remained incarcerated[,] and [S.S.W.’s] mother
was unavailable as a placement due to her continued, unresolved
issues. Accordingly, the shelter order indicated that [S.S.W.]
should remain in care with permission to place with a relative.6
6 Relative placement was not identified and so
[S.S.W.] remains in the care of the Auberle foster
home, where her biological half-sister, was also
placed. This pre-adoptive foster home has been her
placement for the last two years.
After [S.S.W.’s] removal from [F]ather’s care, this court held
regular permanency review hearings (1/15/20, 1/29/20,
10/21/20, 12/10/20, 2/6/21, 4/21/21, 6/21/21, and 8/19/21). At
each and every hearing, the court made specific findings about
[F]ather’s circumstances and progress[,] and made specific orders
about what [F]ather needed to do in order to remedy the
conditions that led to removal. Throughout the pendency of the
case, Father did not complete a domestic violence or batterers
intervention program (“BIP”), did not regularly and consistently
visit with [S.S.W.], did not participate in a therapeutic visitation
program, and did not attend[] or participate in meetings or
appointments for [S.S.W]. In every single court order, except
one, this [c]ourt found that [F]ather was … in minimal compliance
with the family service plan and had made minimal progress [in]
remedying the conditions that led to removal.
CYF filed an involuntary petition to terminate [F]ather’s parental
rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8)[,] and
(b)[,] on or about May 4, 2021. At the time of the termination of
parental rights proceedings, [S.S.W.] was eight years and five
months old[,] and had been out of [F]ather’s care for the last
twenty-four months.
Trial Court Opinion (“TCO”), 2/15/22, at 2-6 (internal citations, brackets, and
some footnotes omitted).
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On December 13, 2021, following a hearing, the trial court entered an
order terminating Father’s parental rights pursuant to Section 2511(a)(2), (5),
and (8), and (b).2 On January 12, 2022, Father filed a timely notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i). Thereafter, the trial court issued its Rule 1925(a)
opinion.
Father raises two issues for our review:
1. Did the trial court abuse its discretion and/or err as a matter of
law in granting the petition to involuntarily terminate Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8)?
2. Did the trial court abuse its discretion and/or err as a matter of
law in concluding that CYF met its burden of proving by clear and
convincing evidence that termination of Father’s parental rights
would best serve the needs and welfare of [S.S.W.] pursuant to
23 Pa.C.S. § 2511(b)?
Father’s Brief at 8.3
Before delving into Father’s arguments, we acknowledge that:
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
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2 The trial court explained that, due to a scrivener’s error, its December 13,
2021 order mistakenly indicates that termination was also granted under
Section 2511(a)(1). See TCO at 9. The trial court subsequently amended the
order to correct this error on February 9, 2022.
3We note that S.S.W. has also filed an appellate brief in this matter, in which
she opposes the termination of Father’s parental rights.
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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 Adoption of C.D.R., 111 A.3d 1212, 1215 (Pa. Super. 2015) (citation
omitted).
In addition, we observe that:
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.[] §§ 2101–2938, 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 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.
C.D.R., 111 A.3d at 1215 (citation omitted).
In the case sub judice, the trial court terminated Father’s parental rights
pursuant to Section 2511(a)(2), (5), (8), and (b). We need to only agree with
the trial court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm its decision. See id. (citations omitted). Here, we
evaluate the trial court’s decision to terminate under Section 2511(a)(5) and
(b), which provide as follows:
(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:
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***
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an agency
for a period of at least six months, the conditions which led
to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within
a reasonable period of time, the services or assistance
reasonably available to the parent are not likely to remedy
the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of
the 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. § 2511(a)(5), (b).
First, in terminating Father’s parental rights under Section 2511(a)(5),
the trial court explained:
[S.S.W.] was first removed from her mother’s care one month shy
of her sixth birthday. At the time of this first removal, mother had
left [S.S.W.] and her biological siblings home alone, resulting in
criminal charges, specifically endangering the welfare of children.
Father could not be reached for placement and so [S.S.W.] was
placed in a kinship foster home. Mother alleged that [F]ather had
not been involved with [S.S.W.] since she was seven or eight
months old; [F]ather contended that his last contact with [S.S.W.]
was when she was approximately eighteen months old. In either
situation, when this case came to the court’s attention, [F]ather
had not been involved or parented [S.S.W.] for the bulk of her
life.
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[S.S.W.] was placed into [F]ather’s care shortly after her
dependent adjudication but there were immediate concerns
regarding [F]ather’s care. Four months later, CYF took emergency
protective custody because [F]ather had been arrested and
incarcerated for an incident of domestic violence with this
paramour. This arrest was a violation of his probation[] related
to prior criminal matters, and rendered [F]ather incarcerated for
a period of time.
Father’s identified goals included completing a [BIP], to work with
a family support partner through the CYF Dad’s program[,] to visit
and maintain his relationship with [S.S.W.], and to attend
meetings and appointments related to [S.S.W].
Father had a goal to address domestic violence concerns by
completing a [BIP]. There had been a final protection from abuse
order entered between mother and [F]ather in February 2015, and
in December 2019, [F]ather was involved in an incident where he
was subsequently charged with strangulation of his paramour.
CYF referred [F]ather to the Women’s Center and Shelter
[(“WCS”)] several times. The caseworker testified that [F]ather
“did not think that he had a problem with beating women or anger
or violence.” Father started the [WCS’s] Domestic Violence 101
class, which the caseworker described as “an educational seminar
about healthy relationships.” However, [F]ather discontinued
attendance when he was informed this would not satisfy the
requirement of attending [BIP]. Per caseworker testimony,
[F]ather attended four of ten WCS sessions over a two-month
period. Father never provided any proof that he completed a [BIP]
during the pendency of the case or at the time of the termination
proceeding. The CYF caseworker testified that the agency had
continued concerns about [F]ather’s violence, specifically
concerns of inappropriate physical discipline, as [S.S.W.]
presented with bruises and reported being beaten by [F]ather
after briefly being in his care. Additionally, the caseworker
testified that they received recent information that led them to
believe that domestic violence continued to be a relevant and
current issue for [F]ather.
Father had a goal to work with a family support partner (“FSP”)
through the CYF Dad’s Program. The CYF caseworker testified
that [F]ather said he did not want to meet with this service.
Father did not complete this goal[,] nor did he provide any
evidence or testimony of completing a similar goal throughout the
pendency of the case or at the time of the termination hearing.
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Father had a goal to visit with [S.S.W.] and maintain a relationship
with [S.S.W]. Father did not regularly or consistently avail himself
for visits with [S.S.W.], which is clearly ascertained upon a review
of CYF Exhibit 3 – Visit Logs. Father’s reasons for not attending
visits were varied, and documented, within the visitation log.
Father failed to confirm visits; [F]ather did not show up for virtual
visits; [F]ather alleged he did not have transportation or childcare
for other children; [F]ather showed up late; [F]ather left early;
and [F]ather alleged to have back pain. The CYF caseworker
testified that [F]ather was referred to the [Three Rivers Adoption
Council’s (“TRAC”)] therapeutic visitation program three separate
times[.]7 … The caseworker testified that [F]ather appeared to
show interest in participating but never followed through with any
of the referrals, and later indicated to CYF that he did not think he
needed this service. At the time of the termination proceeding,
[F]ather’s visitation had not expanded beyond supervised
visitation. The CYF caseworker testified that [F]ather failed to
show demonstrated interest or consistency in visitation.
7 TRAC[’s] therapeutic visitation program, also known as
their TSV (therapeutic supervised visitation) program,
allows for family visitation in a safe and nurturing
environment, where parents can receive feedback and
coaching to facilitate reunification and strengthen parenting
skills.
Father had [a] goal to attend and participate in any meetings or
appointments for [S.S.W]. The CYF caseworker testified that
[F]ather was made aware of doctor appointments ahead of time
and did not participate or engage in meetings or appointments.
In fact, the overall lack of involvement and progress by either
mother or [F]ather gave rise for the court to appoint [S.S.W.’s]
foster mother as educational and medical decision[-]maker in
October 2020.
This court, and CYF via their family service plans, provided a
roadmap for [F]ather to address the issues that led to [S.S.W.’s]
removal from his care — of primary concern, issues regarding
physical violence in the home. These concerns, which existed at
the time of removal, had not been remedied at the time of the
termination proceeding, at which point [S.S.W.] had been in care
[for] twenty-four consecutive months. Moreover, there was a lack
of any credible evidence or testimony that [F]ather could, or
would, be able to remedy the conditions with[in] the foreseeable
future.
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TCO at 9-13 (internal citations omitted).
Father challenges the trial court’s reasoning, arguing that “there was
not clear and convincing evidence that Father failed to remedy the conditions
that placed S.S.W. into care. S.S.W. had been placed in Father’s care and
was removed because Father was incarcerated. But for the incarceration, CYF
expected S.S.W. to remain in Father’s care.” Father’s Brief at 15. Father
emphasizes that he “was deemed appropriate for placement before his
incarceration and there was no evidence establishing a nexus between the
incident that led to Father’s incarceration in 2019 and Father’s inability to care
for S.S.W.” Id. at 19. In addition, he says that “[t]estimony from CYF was
unclear as to why Father needed BIP or IPV services to successfully parent
S.S.W.[,]” as “there was no evidence that S.S.W. was a victim of abuse, that
S.S.W. witnessed any domestic violence involving Father, or that S.S.W. was
in any way psychologically affected by the domestic violence that concerned
CYF.” Id. at 15-16.
No relief is due. The trial court noted that S.S.W. was removed from
Father’s care due to issues regarding physical violence in the home. See TCO
at 13. It determined that Father had not remedied these conditions, noting
that a CYF caseworker testified that she continued to have concerns about
Father’s violence, and that CYF had received information leading it to believe
that domestic violence remains an issue for Father. See id. at 11, 13.
Additionally, the trial court noted that CYF had concerns pertaining to Father’s
inappropriate physical disciplining of S.S.W., as she presented with bruises
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and reported being beaten by Father while in his care. Id. at 11. The trial
court also observed that Father never provided any proof that he completed
a BIP. Id. Furthermore, we agree with the trial court that there was no
credible evidence or testimony that Father could, or would, be able to remedy
his issues with physical violence within a reasonable period of time, given his
lack of consistent effort thus far. Id. at 13. Accordingly, we reject Father’s
argument, as the record supports the trial court’s decision with respect to
Section 2511(a)(5).
Second, we consider whether termination was appropriate under
Section 2511(b). This Court has explained:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. 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 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.
C.D.R., 111 A.3d at 1219 (cleaned up).
Here, with respect to Section 2511(b), the trial court opined:
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Father was scheduled to have an individual evaluation and
interactional evaluation with [S.S.W.] on July 22, 2021, with Dr.
Patricia Pepe. Father failed to attend both the individual and
interactional evaluation. In deciding whether termination would
best serve [S.S.W.’s] needs and welfare, the court reviewed the
findings of fact[] within the court orders, the information within
the visitation logs, the interactional evaluation conducted by the
court[-]appointed evaluator, and the testimony of [F]ather, which
this court found to be largely lacking in credibility.
Father’s testimony blamed others and deflected any responsibility
he had to address his goals, provide documentation of compliance,
[and] attend and participate in visitation. The evidence suggested
[that] there was a lack [of] consistent interest and investment in
reunifying with his daughter. Father minimized concerns
regarding domestic violence or his need to attend a [BIP]. In the
two months leading up to the termination of parental rights
proceeding, [F]ather failed to attend a single visit with his
daughter. Father’s overall involvement and visitation throughout
the case was so sporadic that the court appointed [S.S.W.’s]
foster parent to serve as educational and medical decision[-]
maker in order to address [S.S.W.’s] special education needs. To
be fair, it was the court’s opinion that [F]ather demonstrated the
most honesty in his testimony when answering a question posed
by his counsel — what did he believe was in [S.S.W.’s] best
interest — to which [F]ather stated, “I believe the best for her
welfare is for her to -- for her to be with a family member and
assist them.”
Dr. Patricia Pepe, the court[-]appointed evaluator, conducted an
interactional evaluation between [S.S.W.] and her foster mother.8
Father was scheduled to have an individual evaluation and
interactional evaluation with [S.S.W.] but failed to attend. In the
interactional evaluation, Dr. Pepe noted that [S.S.W.] refers to the
foster mother as “mommy” and was exhibiting “positive
functioning.” Dr. Pepe noted that [S.S.W.] had been in care for a
long time, with an “unstable and unknown future[,”] and found
that this foster parent had accepted [S.S.W.] into a home
environment that met her needs and gave her an opportunity to
excel. Dr. Pepe recommended that [S.S.W.] remain in her current
home on a permanent basis through adoption.
8 The interactional evaluation between [S.S.W.] and her
foster mother also included [S.S.W.’s] older, half-biological
sibling, who is placed in the same home.
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[S.S.W.] lived with her mother until her removal right before her
sixth birthday. She spent only a few months in [F]ather’s care
during which time she alleged physical discipline and had bruising.
Ultimately, she was removed from [F]ather’s care due to violence
in the home for which he was arrested. Not only did [F]ather fail
to provide an explanation for the lack of progress on his goals,
[F]ather did not overcome the evidence that overwhelmingly
supported the conclusion that [S.S.W.’s] need for stability and
permanency far outweighed any potentially negative impact that
could occur as a result of terminating [F]ather’s rights.
TCO at 13-15 (internal citations omitted).
Father argues that “[t]he record does not include sufficient evidence to
support a determination that termination of Father’s parental rights best
serves the needs and welfare of S.S.W.” Father’s Brief at 21. Specifically, he
complains that the record does not include any expert opinion supporting such
a conclusion, and that “the only witness to testify as an expert admitted that
she was unaware that S.S.W. had been placed with [F]ather in 2019.” Id.
Father says that, “[w]ithout observing Father with S.S.W., the psychologist
could not assess the attachment between S.S.W. and Father. As a result, she
could not advise the court how termination of Father’s parental rights would
affect S.S.W.” Id. In addition, Father emphasizes that S.S.W. opposes the
termination of his parental rights and wants to be reunified with him. Id. He
notes that S.S.W. calls him “Dad” and always asks to visit with him and her
paternal half-siblings. Id. at 21-22.
No relief is due on this basis either. First, with respect to the lack of
expert opinion in the record regarding the attachment between S.S.W. and
Father, the trial court noted that Dr. Pepe was supposed to evaluate Father,
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but Father failed to attend the scheduled evaluation. TCO at 15. Second,
regarding S.S.W.’s wish to be reunified with Father, the bond between a
parent and child is “only one of many factors to be considered by the court
when determining what is in the best interest of the child.” C.D.R., 111 A.3d
at 1219 (citation omitted). Further, the record supports the trial court’s
determination that termination will best serve the needs and welfare of S.S.W.
As CYF aptly points out,
any attachment S.S.W. feels toward Father is primarily felt in one
direction. Father has failed to comply with court[-]ordered and
agency[-]established goals designed to address and alleviate
concerns of continued IPV; failed to participate in S.S.W.’s life in
a parenting role by attending meetings or appointments; and
failed to establish and maintain a relationship with her through
consistent visitation, including not visiting at all in the two months
leading up to the [termination of parental rights hearing].
CYF’s Brief at 41-42 (citation omitted). We agree.
Accordingly, because we conclude that the trial court did not err or
abuse its discretion by involuntarily terminating Father’s parental rights
pursuant to Section 2511(a)(5) and (b), we affirm the trial court’s order.
Father is not entitled to relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2022
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