In Re: S.W., Appeal of: J.W.

J-S55045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.W., NATURAL FATHER :
:
:
:
:
: No. 1043 WDA 2019
Appeal from the Order Entered July 3, 2019
In the Court of Common Pleas of Bedford County Orphans' Court at
No(s): No. 9 AD 2017
IN RE: J.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.W., NATURAL FATHER :
:
:
:
:
: No. 1044 WDA 2019
Appeal from the Order Entered July 3, 2019
In the Court of Common Pleas of Bedford County Orphans' Court at
No(s): No. 10 AD 2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 22, 2019
Appellant, J.W. (Father), appeals from the orders entered July 3, 2019,
in the Court of Common Pleas of Bedford County, that granted the petitions
of Bedford County Children and Youth Services (BCCYS), and involuntarily
terminated his parental rights to his sons, J.W., Jr., (born October 2013) and
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* Retired Senior Judge assigned to the Superior Court.
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S.W. (born August 2012) (collectively, Children), pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act.1 After careful review,
we affirm.
This Court previously summarized the procedural and factual history of
this matter as follows:
The family became known to BCCYS in March 2015 due to issues
of substance abuse, and remained active with BCCYS throughout
2015 and into 2016 due to continued issues of substance abuse,
unstable housing, domestic violence, and parenting skills. Order
of Adjudication and Disposition – Child Dependent, 3/24/16,
Findings of Fact. The [c]hildren[2] were removed from parental
care by emergency order dated and entered March 17, 2016.
Order for Emergency Protective Custody, 3/17/16. Subsequent to
shelter care orders dated March 18, 2016, and filed March 22,
2016, maintaining their commitment, the [c]hildren were
adjudicated dependent by order dated March 24, 2016, and filed
March 29, 2016. Shelter Care Order, 3/22/16; Order of
Adjudication and Disposition – Child Dependent, 3/24/16.
Specifically, in adjudicating the [c]hildren dependent, the court
noted as follows in its Findings of Fact:
On March 17, 2015, BCCYS received a report
regarding drug use/abuse by the [children’s] parents
[] and other household members [].
[BCCYS] began an intake assessment of the family
and since March, 2015, the children moved from place
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1 The court previously terminated the parental rights of Children’s mother,
L.C. (Mother). Mother did not appeal the termination of her parental rights
and has not participated in this appeal.
2 Mother’s and Father’s parental rights to Children’s siblings, C.J.W. and
D.E.W., were involuntarily terminated previously. Father is the natural father
of C.J.W. and the adoptive father of D.E.W. N.T., 1/2/18, at 46. As discussed
in more detail below, this Court affirmed the orders involuntarily terminating
Father’s parental rights to C.J.W. and D.E.W., but vacated the orders
involuntarily terminating Father’s parental rights to Children.
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to place staying with various family members and one
parent or the other as the parents split up and got
back together.
On November 18, 2015, [BCCYS] made a referral for
Family Guidance through Independent Family
Services. The family has not been actively
participating in the services.
The children have not had a stable home environment
and several of the caregivers that the parents have
left the children with are known drug users and/or
individuals who have lost custody of their own children
due to various reasons known to the agency.
The mother has entered drug treatment on multiple
occasions, but has not completed any program
successfully.
Law enforcement has been called to the residence
several times for various issues and multiple reports
from multiple sources have reported drug and alcohol
concerns, domestic violence concerns, and lack of
parenting skills of the parents.
In September 2015, assault charges were filed on the
father for an incident involving the mother.
On January 8, 2016, [BCCYS] received a report that
one of the minor children witnessed the mother giving
herself a shot in the foot and elbow.
On February 24, 2016, the mother [] admitted to
caseworker, Joy Bowser[,] that she had been snorting
heroin. [BCCYS] requested that the mother enter a
treatment program. Then, on February 26, 2016, the
mother reported that she was attempting to set up an
appointment with Twin Lakes.
On March 3, 2016, [BCCYS] made a home visit and
spoke with the father []who reported that he was
going to pick up the mother on March 4, 2016 from
Pyramid in Altoona as she had entered treatment
there approximately one week prior. Within a week
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of the mother[] returning from treatment, law
enforcement was at the residence again as a result of
an altercation between the parents. No charges were
filed against either parent, but the father left the
residence and went to State College with two (2) of
the children.
On March 15, 2016, the caseworker attempted a
home visit and there was no answer. The mother
texted the caseworker stating that she had an
appointment set up with Twin Lakes.
On March 16, 2016, it was reported that the mother
was using heroin on March 15, 2016 and was vomiting
when the CYS worker visited and no one answered the
door. The mother dropped the children off with known
drug users and went to the hospital for treatment for
being sick the night before.
Order of Adjudication and Disposition – Child Dependent, 3/24/16,
Findings of Fact.
Permanency review hearings were held on August 23, 2016,
February 7, 2017, and July 20, 2017. Throughout these reviews,
the trial court maintained the [c]hildren’s commitment, and
permanency goal. Father’s progress toward remedying the
circumstances causing the children to be placed was consistently
noted as minimal. See Permanency Review Orders, 8/23/16;
Permanency Review Orders, 2/7/17; Permanency Review Orders,
7/20/17. Notably, Father’s visitation remained supervised and
then was suspended due to continued substance abuse issues and
domestic violence. Notes of Testimony (“N.T.”), 11/15/17, at 6-
8, 13-17, 33-35, 53, 57; see also Exhibit 12, 5/14/18.
BCCYS filed petitions for goal change and to terminate Mother’s
and Father’s parental rights on July 11, 2017. The court held
combined termination/goal change hearings on January 2, 2018
and May 14, 2018. In support of its petitions, BCCYS presented
the testimony of: Terry O’Hara, Ph.D., licensed psychologist, who
conducted individual evaluations with regard to Mother and Father
and interactional evaluations of the children with Mother and
Father and with their respective resource parents; Dennis
Williamson, Family Counseling and Training Associates, who
conducted anger management sessions with Father; Cheryl Ward,
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licensed professional counselor, Cornerstone Community
Services, who provided individual and group counseling services
to Father through Bedford County Mental Health/Mental
Retardation Agency; Deborah Kissel, program director and
master’s level clinician, Independent Family Services (“IFS”);
Jessica Thomas, drug and alcohol counselor, Twin Lakes; and
Natasha Crissey, caseworker, BCCYS. BCCYS additionally
presented Exhibits 1 and 2 on January 2, 2018, and Exhibits 1
through 12 on May 14, 2018, which were admitted without
objection. N.T., 5/14/18, at 78-81. Mother and Father were
present and represented by counsel. Father testified on his own
behalf. The [c]hildren were represented by a guardian ad litem,
Carol Ann Rose, Esquire, who had been involved throughout the
dependency proceedings. Further, pursuant to order dated
October 10, 2017, the two older children, C.J.W. and D.E.W., were
also appointed separate legal counsel, Gerald M. Nelson, Esquire,
to represent their legal interests. Both Attorney Rose and
Attorney Nelson participated in the relevant hearings with regard
to termination and goal change.
In re J.C.W., No. 868 WDA 2018, unpublished memorandum at 5-9 (Pa.
Super. filed Dec. 12, 2018) (footnotes omitted).
This Court summarized the pertinent testimony presented at the
hearings as follows:3
. . . Natasha Crissey, BCCYS caseworker, testified that [Children
were removed from Father’s care by order of court; have been out
of Father’s care for more than twelve months; and] the
circumstances that resulted in the removal of the children
continued to exist. [N.T., 5/14/18,] at 68. Specifically, the record
reveals that Father failed to complete anger management
counseling. As testified by Dennis Williamson, who provided
anger management sessions to Father, Father “dropped out” of
his continued therapy that was scheduled to occur every two
weeks after only three sessions. N.T., 1/2/18, at 57-58; see also
Exhibit 2, 1/2/18. Additionally, Father was inconsistent in his
attendance of individual mental health counseling, resulting in
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3 Although the discussion related to Children’s siblings, it is equally applicable
to Children.
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closure of his case. N.T., 5/14/18, at 10. Moreover, as indicated
by Deborah Kissel, program director of IFS, Father’s participation
with the program was not consistent, but was “cyclical.” Id. at
19-20. Thus, Ms. Kissel concluded that Father “failed to alleviate
or address the concerns that initiated the services.” Id. at 20.
While recognizing some progress as to housing, she expressed
issues as to parenting as observed in supervised visitation, anger
management, and mental health treatment. Id. at 24-26.
. . . At the time of the conclusion of the relevant hearings, C.J.W.
and D.E.W.[, as well as Children,] had been in care for over two
years. Id. at 62. During this time, Father’s visitation remained
supervised until suspended in October 2017 and has remained
suspended. Id. at 61, 73-74; see also Exhibit 12, 5/14/18; see
also Order, 10/10/17. Further, and significantly, Dr. Terry O’Hara
opined that Father was not in a position to adequately provide for
the children’s needs and welfare. Dr. O’Hara stated:
Q. And then, Doctor, with regard to [Father], do you
believe that based on your evaluations and
information that was provided to you that [Father] is
in a position at the present time to adequately care
for the children’s needs and welfare?
A. No, I do not have sufficient evidence of that.
Q. And can you summarize for the [c]ourt the reasons
for that particular opinion?
A. Yes. And I should say that this applies to [Mother],
as well. I think [Mother] and [Father] both very much
care for the children and care deeply about the
children as well. I think that[’]s true for both of them.
But with regard to [Father], he takes no responsibility
for his circumstances and that’s problematic as given
his concerns which I’ll outline. I don’t have evidence
that he’s willing to make substantive changes and
really address a lot of the long[-]standing concerns
which include mental health issues, substance abuse,
significant alcohol abuse, and there are also anger
management issues. So, there’s evidence from the
collateral source, which I referenced earlier, Bedford
Somerset Developmental and Behavioral Health
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Services[,] that [Father] has been diagnosed with
major mental illness which includes major depressive
disorder. Major depressive disorder refers to several
periods where a person is really unable to function
because of such a high level of depression. And so,
diagnostically speaking the depression is so significant
that it truncates one to (unintelligible) function and
that would – that potentially could effect [sic]
parenting, as well.
At the time of my evaluation of [Father] he lived in a
two[-]bedroom residence. He acknowledged three
incidents of domestic violence in his nine-year
relationship with [Mother], although there’s been
significant allegations that the incidents were much
more intensive and frequent. He also acknowledged
that he lacked stability when the children were first
placed. He acknowledged living with [Mother] in a
“drug house” for a time. He also acknowledged simple
assault as a juvenile. And then he has a variety of
criminal activity as an adult including fleeing an officer
in 2015, two contempt convictions in 2014, pleading
no contest to simple assault in 2015, harassment in
2012, and retail theft in 2016. These are concerning
issues that starting with as [a] juvenile[,] there’s
evidence of criminal activity for [Father], in
conjunction with violating conditions of a PFA and the
contempt convictions as well. So, under supervision
there’s evidence that he’s done poorly as well.
He acknowledged continuous [sic] in returning to the
relationship with [Mother], although from his report,
he states that she’s an addict and that she fabricates
allegations against him. There’s evidence of alcohol
abuse with regard to [Father] from his disclosures to
Bedford[,] for example. He’s on probation at this
point and his IQ score was actually in the borderline
area as well, so there is evidence of some intellectual
deficits for [Father].
And then in conjunction with these main concerns, I
don’t have any evidence that [Father] has sufficiently
or appropriately addressed his anger management
issues and his domestic violence, nor his mental
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health issues and his alcoholic abuse history. So,
there would be concerns from my perspective if the
children would be at risk for exposure [to] domestic
violence, expos[ure] to anger management issues,
exposure to substance abuse and criminal activity, if
they were to be returned to their father’s care this
time.
During the interactional evaluation involving the
children and [Father], [Father] had a lot of difficulty
controlling [C.J.W.]’s behavior. He lacks parental
authority. He used (unintelligible) in an attempt to try
to gain compliance from [C.J.W.] He lost his temper
frequently, was very easily frustrated. There were a
lot of parenting deficits noted with regard to [Father],
as well. So, as a result of these factors I don’t have
evidence that [Father] is in a position to appropriately
care for the children’s needs and welfare.
N.T., 1/2/18, at 19-22. Consistent with Dr. O’Hara’s testimony,
Ms. Crissey indicated that termination would favor the [c]hildren’s
needs and welfare. N.T., 5/14/18, at 69.
***
Notably, while Dr. O’Hara recognized that Father loved the
[c]hildren and suggested that the [c]hildren would experience
harm as a result of the termination of parental rights, Dr. O’Hara
expressed that any harm to the [c]hildren would be outweighed
by permanency. N.T., 1/2/18, at 22-24. Dr. O’Hara testified as
follows:
Q. Dr. O’Hara, you previous[ly] stated that both
parents do love their children. In your opinion, if the
parents[’] parental rights were [terminated], do you
believe that there would be significant detriment to
the children as a result of the termination of their
parental rights?
A. I think that there would be some detriment for the
children. I think the children did show positive, both
with [Mother] and with [Father,] but the foundational
issue from my perspective is the lack of stability that
[Father] shows and [Mother] shows at this time. Also,
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there’s good reason suggesting that if a child is in a
secure and stable household where a child’s needs are
being met and there’s warmth and a supportive
presence towards a child, this mediates [sic] against
a potential detriment to the child. So, I think in the
case of [S.J.W.] and [J.C.W., Jr.], there’s good
evidence from my perspective that the potential loss
of the relationship would be mediated [sic] by the
great level of care that they receive from [foster
mother]. I would say the same about [C.J.W.] as well
with regard to his paternal caregivers. And I think
there is some evidence that [D.E.W.] has a connection
with [foster mother]. I really hope that [foster
mother] makes an improvement with regard to how
she interacts with [D.E.W.] because I think [D.E.W.]
has a lot of needs for affection and that sort of thing,
which is a struggle for [foster mother] in my opinion.
But overall[,] I think there’s a benefit the children
would receive in a situation of stability and care would
outweigh any potential detriment in the termination of
parental rights for [Father] and [Mother].
Id.
In re J.C.W., No. 868 WDA 2018, unpublished memorandum at 21-24, 28-
29 (Pa. Super. filed Dec. 12, 2018) (footnotes omitted).
By orders dated May 14, 2018, the court involuntarily terminated
Father’s parental rights to Children, as well as D.E.W. and C.J.W., pursuant to
23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Father filed timely appeals of
the May 14, 2018 orders. In a December 12, 2018 memorandum decision,
this Court vacated the orders of May 14, 2018 with respect to Children, while
affirming the orders with respect to D.E.W. and C.J.W.
With regard to Children, this Court raised sua sponte the issue of
whether Attorney Rose, Children’s guardian ad litem, adequately represented
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their interests in the termination proceeding. Concluding that the record did
not reveal any evidence that Attorney Rose had attempted to ascertain
Children’s preferred outcomes regarding the potential termination of Father’s
parental rights or advise the orphans’ court of Children’s preferences, we
remanded for the orphans’ court to appoint separate legal-interests counsel
for Children and for counsel to interview Children, determine their preferred
outcomes, and then communicate this information to the orphans’ court. In
re J.C.W., No. 868 WDA 2018, unpublished memorandum at 12-16 (Pa.
Super. filed Dec. 12, 2018). We instructed, “[if Children’s] preferred outcome
is consistent with the result of the prior termination/goal change proceedings,
the court shall re-enter its May 14, 2018 orders as to Father. If the preferred
outcome is in conflict with the prior proceedings, the court shall conduct a new
termination/goal change hearing as to Father only to provide J.C.W., Jr., and
S.J.W.’s legal counsel an opportunity to advocate on behalf of their legal
interests.” Id. at 16.
Upon remand, the orphans’ court entered an order dated March 27,
2019, appointing Attorney Gerald M. Nelson as legal counsel for both children.
Subsequently, by order dated April 26, 2019, the court appointed Attorney
Scott A. Walker as legal counsel for S.W.4 The court conducted brief hearings
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4Father does not raise any claim on appeal with respect to the representation
of Children by their legal counsel, and we conclude that the orphans’ court
appropriately appointed legal counsel pursuant to 23 Pa.C.S. § 2313(a). See
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on March 27, 2019, and May 24, 2019, with respect to the appointment of
counsel for Children. At the hearing on May 24, 2019, Attorney Walker
represented that he interviewed S.W., who was “very adamant that he’s very
happy where he’s at. And he doesn’t want to return to either of his parents
but he would like to have contact if possible with his biological parents.” N.T.,
5/24/19, at 3-4. The court scheduled a further hearing due to the court’s and
counsel’s uncertainty about whether Children needed to testify regarding their
preferred outcomes, and the best manner for Children’s preferred outcomes
to be placed on-the-record. Id. at 4-11. Accordingly, the orphans’ court
conducted a remand hearing on July 1, 2019.
At the start of the hearing, the court confirmed with both Attorney
Nelson and Attorney Walker that they did not wish to call any additional
witnesses. N.T., 7/1/19, at 5. Attorney Nelson, on behalf of J.W., Jr., reported
that when he previously met with J.W., Jr., the child was easily distracted and
unfocused. Id. J.W., Jr., stated that he was content where he was living, but
did express a desire to be with Father. Id. Attorney Nelson also met with
J.W., Jr., on the day of the hearing, and J.W., Jr., again expressed that he is
comfortable where he currently lives, feels well taken care of and loved, and
wants to remain there with his brother S.W. Id. at 6. J.W., Jr., expressed a
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In re: Adoption of K.M.G., 2019 PA Super 281 (en banc) (filed September
13, 2019) (holding that this Court has authority only to raise sua sponte the
issue of whether the orphans’ court appointed any counsel for the child, and
not the authority to delve into the quality of the representation).
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desire to continue to have contact with Father. Id. Attorney Nelson opined
that, because J.W., Jr.’s, caregiver is Father’s aunt, contact would likely
continue. Id.Attorney Walker stated that S.W. views his foster mother as his mother,
and looks to her for his day-to-day needs. Id. at 7. S.W. loves his foster
mother and looks to her for guidance and stability, and he wants to stay in
her home. Id. However, S.W. expressed that he wants to remain in contact
with Father as they talk frequently by telephone and he sees Father
occasionally. Id. Attorney Walker observed that S.W. is bonded with Father,
but wants to stay with his foster mother. Id. Attorney Walker believed, but
could not guarantee, that the foster mother would permit continuing contact
with Father. Id. at 7-8.
After Children’s attorneys presented Children’s preferred outcomes,
which the attorneys represented were consistent with the prior termination
orders, the court instructed Father’s attorney to discuss the potential for a
post-adoption visitation agreement; however, Father refused to enter such an
agreement.5 Id. at 6-7, 9. Instead, Father continued to oppose the
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5 Although not specifically identified, we presume that the discussion related
to Act 101, which provides “an option for adoptive parents and birth relatives
to enter into a voluntary agreement for ongoing communication or contact[.]”
See 23 Pa.C.S. § 2731.
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termination of his parental rights. Accordingly, Father’s counsel called Father
to testify regarding his continuing relationship with Children.
Father testified that he kept in contact with Children through phone
calls, and saw them at family gatherings, as Children are cared for by his aunt.
Id. at 11. Father asserted that he calls Children approximately once a week.
Id. at 12. Although the foster mother allows Father to have contact with
Children any time he wants, his contact was limited by his work schedule. Id.
at 11-12. Father acknowledged that he did not maintain frequent physical
contact with Children because he works in construction and travels throughout
the region. Id. at 13-15.
Father testified that he continued to live in a trailer that was suitable
and large enough for Children. Id. at 15-16. Father further testified that his
life was stable and that he would quit his job if he could get Children back.
Id. at 21-22. Father denied he currently received drug and alcohol or mental
health treatment. Id. at 16. Father contended that he did not have a drug
problem.6 Id. However, he acknowledged that he had a pending DUI, which
he asserted was “not applicable in this case.” Id. at 17.
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6 Dr. O’Hara opined that Father had an alcohol use disorder, testifying that, in
April 2016, Father self-reported that he drank 12 or more rum and Coke’s two
to three times per week, and there were periods where Father was intoxicated
every day. N.T., 1/2/18, at 26-27. Further, Father reported to Dr. O’Hara
that he drank ten beers once or twice a month. Id. at 27-28.
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Father testified that Children’s foster mother did a good job parenting
Children, but asserted that Children still had a good relationship with him and
still love him. Id. at 14-15. Father claimed that he wanted Children to return
to his care, but also testified that he did not want to take their “mother figure,”
their foster mother, away. Id. at 17. Father summarized his position as
follows:
I’m happy with the whole mother figure and the way everything
is going. I do not want to take that away from the kids, you know.
And especially, [S.W.] fall into [sic] a big factor of that. I don’t
want to take them away from her. She’s doing such a good job.
And you know, between the help of the family and all, but I’m not
signing my rights over either and still want to be able to get them.
Id. at 19.
Father acknowledged that he could not care for Children during the
week, proposing that he would care for them on weekends and take vacations
with them. Id. at 20. Father testified that he hoped Children would maintain
“the same relationship with [the foster mother,]” but Father still wanted to be
able to fulfill his parental responsibilities. Id. at 21.
At the conclusion of the hearing, the orphans’ court placed its findings
of fact and conclusions of law on-the-record. Initially, the court incorporated
it previous findings. Id. at 26. The court concluded that BCCYS met its burden
of proof pursuant to 23 Pa.C.S. § 2511(a)(8), observing that Children were
removed from Father’s care for a period exceeding 12 months, and that the
reasons for the removal persisted. Id. The court credited testimony that,
although Father had stable housing, he did not complete anger management
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and was inconsistent in attending mental health counseling. Id. at 26-27.
Further, the court observed that Father continued to have issues regarding
supervised visits, anger management, and his mental health. Id. at 27.
With respect to 23 Pa.C.S. § 2511(b), the court noted that Children have
a bond with Father, want to have contact with him, and that there would be
some detriment to Children if Father’s parental rights were terminated. Id.
However, the court noted that this detriment would be mitigated by Children’s
attachment to their foster mother. Id. at 28. Further, the court observed
that Children’s bond with Father is but one factor to be considered, and
concluded, “[t]here is a bond with the children, but I don’t think it’s sufficient
in this case, given the deficiency in your situation[,] to overcome that.” Id.
Further, the court observed, the “mere fact of the existence of the bond
wouldn’t overcome the need for a stable and permanent home for these
children.” Id. at 29.
Accordingly, on July 3, 2019, the orphans’ court entered orders
involuntarily terminating Father’s parental rights to Children pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).7 On July 9, 2019, Father timely
filed notices of appeal and concise statements of errors complained of on
appeal. On July 30, 2019, the orphans’ court issued an order of court
indicating that it intended to rely on its findings of fact and conclusions of law
entered on-the-record, and the court did not issue a separate opinion.
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7The orders also changed Children’s permanent placement goals to adoption.
Father has not appealed with respect to the goal changes.
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On appeal, Father raises the following issue for our review.
1. Whether the trial court erred/abused its discretion by determining
that termination of [Father’s] parental rights would best serve the
developmental, physical, and emotional needs and welfare of the
child[ren] under 23 Pa.C.S.A. § 2511(b), as the sum of the
evidence showed the child[ren have] a strong, beneficial
relationship with [Father] and wished to have contact with [their]
father?
Father’s brief at 5.
We review Father’s claim in accordance with the following standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It 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
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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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
While the orphans’ court here found that BCCYS met its burden of proof
under 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8), as well as (b), Father only
challenges the orphans’ court’s conclusions with respect to Section 2511(b),8
which provides as follows:
§ 2511. Grounds for involuntary termination
***
(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.
***
____________________________________________
8 Father waived any challenge to 23 Pa.C.S. § 2511(a) and the subsections
thereof by failing to challenge that section in his Rule 1925(b) statement or in
his brief. See Krebs v. United Refining Company of Pennsylvania, 893
A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that
are not raised in both his or her concise statement of errors complained of on
appeal and the statement of questions involved in his or her brief on appeal).
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23 Pa.C.S. § 2511(b).
With respect to Section 2511(b), we consider whether termination of
parental rights will best serve Children’s developmental, physical, and
emotional needs and welfare. See In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). “In this context, the court must take into account whether a
bond exists between child and parent, and whether termination would destroy
an existing, necessary and beneficial relationship.” Id. “[A] parent’s basic
constitutional right to the custody and rearing of . . . her 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 847, 856 (Pa. Super.
2004) (internal citations omitted).
It is sufficient for the orphans’ court to rely on the opinions of social
workers and caseworkers when evaluating the impact that termination of
parental rights will have on a child. In re Z.P., supra at 1121. The orphans’
court may consider intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent. See In re N.A.M., 33
A.3d 95, 103 (Pa. Super. 2011). Ultimately, the concern is the needs and
welfare of a child. In re Z.P., supra at 1121.
In support of his contention that the court erred in its analysis of Section
2511(b), Father argues that Dr. O’Hara testified that it was evident that Father
cared deeply for Children. Father’s brief at 12. Further, Father contends that
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he testified that he wants to have Children return home and to care for
Children with the support of his family and friends. Id. Moreover, Father
asserts that his other children still call him regularly and want to maintain a
relationship with him. Id. Father contends that he now has housing,
employment, and appropriate mental health treatment. Id. Additionally,
Father observes that Children want continued contact with Father and that
J.W., Jr., wants to live with Father. Id. at 13. Although Father acknowledges
that continued contact with Children is likely, he notes that there is no
guarantee of future contact and no recourse if contact is not permitted. Id.
at 14. Father argues Children have a bond with him and that permanently
severing the bond risks emotional harm to Children. Id. Accordingly, Father
requests that the orders terminating his parental rights be reversed to “allow
him to continue to work towards obtaining custody of his children.” Id.
Our review of the record supports the orphans’ court’s conclusion that,
despite the bond between Children and Father, termination of Father’s
parental rights is necessary to provide Children stability and permanency. At
the time of the termination hearing in July 2019, Children had been in care
for more than three years. As expressed by Dr. O’Hara, Children needed
stability and appropriate care, and the benefits of providing stability and care
would outweigh any potential detriment from terminating Father’s parental
rights. Moreover, even at the time of the July 1, 2019 termination hearing,
Father had not addressed his instability, and proposed that he care for
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Children on weekends. In Father’s place, Children have been cared for by
their aunt, who provides Children with the stability and care that they need.
As we have stated, 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.” Id. at 1125. Rather, “a parent’s basic constitutional right to the
custody and rearing of his child is converted, upon the failure to fulfill his or
her parental duties, to the child’s right to have proper parenting and fulfillment
of his or her potential in a permanent, healthy, safe environment.” In re B.,
N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted). Based upon
our review of the record, we do not observe any error or law or abuse of
discretion with regard to the orphans’ court’s decision to involuntarily
terminate Father’s parental rights to Children. Accordingly, we affirm the
orphans’ court’s orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2019
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