In Re: Termination of Parental Rights to J.L.H.

J-A26008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: TERMINATION OF PARENTAL : IN THE SUPERIOR COURT OF
RIGHTS TO J.L.H., A MINOR : PENNSYLVANIA
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APPEAL OF: T.R.H., FATHER :
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: No. 1008 EDA 2021
Appeal from the Decree Entered April 20, 2021
In the Court of Common Pleas of Lehigh County Orphans’ Court at No(s):
A2020-0075
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 4, 2022
T.R.H. (“Father”) appeals from the decree entered on April 20, 2021,
that terminated his parental rights to his daughter, J.L.H. We affirm.
The orphans’ court summarized the relevant procedural history as
follows:
J.L.H. was born in Lehigh County on February . . . 2018, to
[Father] and J.C.C. (“Mother”).[1] [The Lehigh County Office of
Children and Youth Services (“CYS”)] sought and obtained an
Order for Emergency Protective Custody of J.L.H. when she was
three days old as a result of the [a]gency’s ongoing involvement
with Mother regarding four of her other children and the fact that
Father and Mother were presenting as a couple at that time. J.L.H.
was briefly placed into foster care until she was adjudicated
dependent following a hearing held March 8, 2018. Shortly after
the adjudication hearing, she was moved to the care of a kinship
resource, her maternal aunt, R.C. [who is an adoptive resource].
J.L.H. has been in the continuous care of her aunt since that time.
J.L.H. is presently three years old.
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1 Mother relinquished her parental rights voluntarily pursuant to 23 Pa.C.S.
§ 2501.
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Trial Court Opinion, 4/20/21, at 1-2 (footnotes and citations to record
omitted).
The initial permanency goal was reunification. CYS developed several
goals for Father and the juvenile court ordered services in order for Father to
achieve those goals. However, Father failed to comply with most of the court-
ordered services over the course of the dependency proceedings, largely
because he was incarcerated for all but seven months of that three-year
period. For the majority of his time outside of prison, Father was under the
supervision of a drug treatment facility, halfway house, or recovery home. As
of the date of the termination hearing, Father had been re-incarcerated for a
series of robberies, and his earliest possible release date is April 2022. His
maximum sentence expires in 2026.
On September 30, 2020, CYS filed a petition to terminate Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).
Michael E. Moyer, Esquire, the guardian ad litem appointed during the
dependency proceeding, acted as legal counsel for then-three-year-old J.L.H.2
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2 Attorney Moyer visited his client’s pre-adoptive kinship home and advocated
in favor of terminating Father’s parental rights because it served the child’s
best interests. See N.T., 3/1/21, 110. He filed a brief with this Court in
support of the orphans’ court’s decision to terminate parental rights and
expressly adopted “the arguments and reasoning advanced by Appellee,
Lehigh County Office of Children & Youth Services.” See Child’s brief,
unnumbered at 2. Since J.L.H. was only thirty-seven months old during the
evidentiary hearing, there could be no conflict between her best interests and
(Footnote Continued Next Page)
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During the ensuing hearing via videoconference, CYS called Father to testify
as if on cross-examination and presented the testimony of the three
caseworkers who were assigned to the family during the course of the
agency’s involvement in the matter.
We summarize the caseworkers’ testimony about Father’s court-ordered
goals and services as follows. Amanda Scheitrum was assigned the case for
approximately eight months between February 8, and October 29, 2018. See
N.T., 4/1/21 at 45. She testified that Father’s goals included continuing
mental health treatment, obtaining, and maintaining stable housing and “legal
income,” cooperating with CYS and reunification services, and attending
supervised visitation with J.L.H. Id. at 46. He was also instructed to satisfy
the terms of his criminal sentencing, attend drug and alcohol counseling, and
submit urine screens once he his released from prison. Id. at 46-47. Ms.
Scheitrum indicated that Father was noncompliant with the court-ordered
goals and services during the time that she was assigned to the family. Id.
at 47-49. She noted that Father’s progress was impeded by his periodic
arrests during March and July 2018, and his August of 2018 admission into
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her legal interest. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (no
conflict between child’s best interests and legal interest if child cannot
communicate preference due to the child’s young age).
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the Keenan House, an addiction treatment center that serves referrals from
the criminal justice system.3 Id. at 49-50.
Next, Cody Groller testified that he was assigned to the family between
October 2018 and August 2019. Id. at 60. He recounted that Father’s
services had been closed out at that time due to his noncompliance and
residence at the Keenan House and a halfway house. Id. at 63, 65. By April
2019, Father had progressed to less restrictive housing. Id. at 67. Father
was maintaining weekly supervised visitation and addressing his substance
abuse and unemployment through a criminal probation program. Id. 66-67,
73-74. Mr. Groller identified Father’s court-ordered goals during that period
as addressing substance abuse, satisfying the terms of probation, maintaining
employment, obtaining housing, and continuing to participate in supervised
visitation. Id. at 68. In addition, Mr. Groller informed Father of the
benchmarks that he would have to attain in order to reunify with J.L.H. Id.
at 71. Father indicated an intent to achieve those targets but failed to do so
by the time that Mr. Groller stopped working with the family. Id. at 71.
Finally, Jessica Vinson testified that she is the current caseworker,
having been assigned to the family in August 2019. Id. at 79. She noted
that Father was responsible for the court-ordered reunification services
____________________________________________
3See Keenan House Handbook, https://www.cor.pa.gov/community-
reentry/Documents/Handbooks/Region%202/Keenan%20House%20Handbo
ok.pdf
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outlined by the other caseworks. Id. at 80-81. In addition, he was to continue
supervised visitation with his daughter and maintain employment that he had
obtained in Breinigsville, Pennsylvania. However, soon after Ms. Vinson
inherited the case from Mr. Groller, Father left the recovery house prior to his
discharge and terminated contact with CYS until October 2019. Id. at 81-83.
While away from the recovery house, Father relapsed on crack cocaine and
overdosed on prescription medication. Id. at 81-83, 93-94, 95. In addition,
he participated in a crime spree that resulted in thirteen criminal charges,
including three counts of robbery to which he pled guilty. Id. at 83, 96-97;
Exhibit P-5 at 92-94. The only reunification service that Father is able to
engage while incarcerated is visitation, which is performed via telephone and
videoconference. Id. at 30, 83.
In addition to the forgoing testimony, the agency introduced two
exhibits that are identified in the certified record as “P-1 Certified Dependency
Juvenile Court Order,” and “P-5 Certified Criminal Docket and Sentencing
Sheets (for Father).” N.T., 4/1/21, at 3. Of relevance to Father’s argument
on appeal, CYS’s pre-marked Exhibit P-2 was submitted to the orphans’ court
and opposing counsel along with all the other potential exhibits in preparation
for the remote hearing, but it was never introduced during the hearing or
admitted into evidence.
On April 20, 2021, the orphans’ court entered the above-referenced
decree terminating Father’s parental rights pursuant to § 2511(a)(1), (2), (5),
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(8), and (b). The court’s contemporaneously-filed memorandum outlined the
basis of its decision. In summarizing the procedural history of the dependency
proceedings, the trial court cited CYS Exhibit P-2 to shape Father’s court-
ordered services. Specifically, the court stated,
Father was ordered to continue his mental health treatment and
follow through with recommendations; obtain and maintain
appropriate housing and legal income; obtain a drug and alcohol
evaluation and follow through with all recommendations; provide
urinalysis to demonstrate sobriety; resolve all criminal issues; and
cooperate with reunification services and follow through with all
recommendations.
Orphans’ Court Opinion, 4/20/21, at 2. Thereafter, without any further
references to Exhibit P-2, the orphans’ court cogently explained the merits of
its decision to terminate Father’s parental rights.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). With leave of
this Court, Father amended his Rule 1925 statement to include a challenge to
the orphans’ court’s citation to Exhibit P-2. We directed the orphans’ court to
address this issue in a supplemental Rule 1925(a) opinion. On July 17, 2021,
the orphans’ court filed a laconic supplemental statement explaining that,
contrary to Father’s contention, “the court’s reference to P2 was inadvertent
and inconsequential” because it relied upon the witnesses’ properly-admitted
testimony to outline the court-ordered services and determine Father’s failure
to comply. Supplemental Rule 1925(a) Statement, 7/16/21, at 2.
Father presents the following questions for our review:
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1. Did the trial court commit an error of law by relying upon
evidence neither proffered nor admitted at trial?
2. Did the trial court err and abuse its discretion in finding that
the [a]gency provided clear and convincing evidence that
statutory grounds for termination existed under 23 Pa. C.S.
§ 2511(a)?
3. Did the trial court abuse its discretion in finding that the
[a]gency provided clear and evidence that termination served the
needs and welfare of the minor child under 23 Pa.C.S. § 2511(b)?
Father’s brief at 4.
Our standard of review requires us to accept the orphans’ court’s
findings of fact and credibility determinations that are supported by the
certified record. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). If the record
supports the court’s findings, we must determine whether the court committed
an error of law or abused its discretion. Id. An abuse of discretion does not
occur merely because the record could support a different result. Id. We
may find an abuse of discretion “‘only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.’” Id. (quoting In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012)).
Father’s argument concerning the orphans’ court’s reference to Exhibit
P-2 in the trial court opinion has two facets. First, he asserts that the mere
fact that the orphans’ court cited a non-record exhibit “create[d] the potential
that the trial court's opinion was impacted by that evidence.” Father’s brief
at 19. Second, he contends that the orphans’ court's citation to non-record
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evidence cannot be deemed a harmless error. Id. at 24. We address the two
components seriatim.
Father first contends that the trial court opinion was necessarily
impacted by the reference to Exhibit P-2. We disagree. Pursuant to Pa.R.A.P.
1925(a), the trial court opinion is intended to provide a brief statement for
the reasons for the order on appeal. As the written articulation of the court’s
rationale, the opinion is not substantive evidence and to the extent that the
factual findings that the court actively relied upon were drawn from properly
admitted evidence of record, the impact of an errant citation in a trial court is
of no moment. Instantly, the orphans’ court cited Exhibit P-2 in its opinion to
support the straightforward, uncontested proposition that Father had to
comply with an array of court-ordered goals and services. Three witnesses
testified during the hearing about Father’s court ordered goals, including the
requirement to maintain supervised visitation, and discussed Father’s erratic
compliance. Thus, contrary to the crux of Father’s assertions, it is clear from
the context of the orphans’ court’s reference to Exhibit P-2 that the court did
not invoke the exhibit as substantive evidence that weighed in the outcome
of the case.
Moreover, assuming, arguendo, that the orphans’ court’s citation to
Exhibit P-2 constituted consideration of evidence de hors the record, Father
cannot establish prejudice under the facts of this case. Father seeks to be
excused from this requirement by claiming that the existing record is
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insufficient to determine whether the reference was, in fact, inconsequential.
Father’s brief at 24. Father’s reasoning is as follows: because the trial court
omitted the visitation requirement when citing Exhibit P-2, there is no way to
determine the gaps in the orphans’ court’s knowledge. Thus, he posits that,
without a review of the exhibit, we are constrained to reverse the termination
decree because it is tainted by the trial court’s reference. He surmises:
Without the benefit of Exhibit P2 as part of the record, this Court
is . . . unable to determine whether the trial court’s citing to that
[e]xhibit impacted the outcome. Nor can this Court determine the
extent to which the trial court reviewed Exhibit P2, or its contents.
This Court therefore cannot determine whether Father was
prejudiced by the trial court’s viewing thereof.
Id. 24.
Father’s position is contradicted by the well-ensconced principle that, as
the appellant, he was obligated “to ensure that the certified record is complete
for purposes of review.” Commonwealth v. Rosado, 150 A.3d 425, 432 (Pa.
2016) (citation omitted). Indeed, it “is unequivocal that the responsibility
rests upon the appellant to ensure that the record certified on appeal is
complete in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty.”) Commonwealth v. Bongiorno, 905
A.2d 998, 1000 (Pa.Super. 2006) (en banc). Father could have, but neglected
to, seek to supplement the record pursuant to Pa.R.A.P. 1926(b), which
provides that a material omission from the record may be corrected by
stipulation or court order. Thus, insofar as Father was obliged to ensure that
the certified record was sufficient for our appellate review, we reject his
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assertion that the termination decree must be reversed because Exhibit P-2 is
not included in the certified record.
Equally unpersuasive is Father’s reliance upon In re S.S., 252 A.3d 681,
689 (Pa.Super. 2021), for the proposition that our inability to review the
missing exhibit warrants reversal. The In re S.S. Court confronted a situation
where an orphans’ court relied upon the merits of an expert report admitted
at a prior dependency hearing to make a factual determination against a
different expert in a termination of parental rights case involving the same
family. In reversing the termination of parental rights, we explicitly
determined that it was “clear that the [dependency] report impacted the
[orphans’] court’s decision.” To the extent that we mentioned that the
dependency report was not part of the certification record, we observed that
we had no way of confirming whether the merits of the dependency report
supported the orphans’ court decision. That confirmation necessarily involves
a substantive determination of the merits that is not required in the case at
bar. Thus, contrary to Father’s assertion, the In re S.S. Court did not
conclude that the certified record was insufficient to determine whether the
missing evidence had an impact on the trial court’s decision.
Next, we address Father’s assertion that the court’s citation to Exhibit
P-2 was inherently prejudicial. He contends that, pursuant to our High Court’s
holding in In re A.J.R.-H., 188 A.3d 1157, 1175 (Pa. 2018), “the fact that
there may have been sufficient evidence presented at the hearing to support
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termination is not, alone, a basis for finding harmless error.” Instead, as
phrased by the Supreme Court, “the standard for finding harmlessness in a
termination case requires [an appellate court] to conclude that the evidentiary
error could not have had any impact upon the [orphans’] court’s decision.”
Id. Father posits that, since this Court cannot countenance the orphans’
court’s reference to Exhibit P-2 unless it is clear that the error could not have
had any impact upon the trial court’s decision, the harmless error doctrine is
inapplicable. That is, referencing the visitation goal’s omission from Exhibit
P-2, Father argues that “the trial court’s citation to non-record evidence
creates a factual dispute as to whether its opinion was in some way influenced
by that evidence.” Father’s brief at 27. As this contention simply misstates
the significance of the trial court’s reference, we reject it for the following
reasons.
The crux of this argument is that, since he cannot identify anything that
suggests the reference impacted the orphans’ court’s determination, we are
equally precluded from finding that the error could not have had any impact
upon the trial court’s decision. That is not what In re A.J.R.-H., requires. In
In re A.J.R.-H., the Supreme Court rejected the orphans’ court’s rote
admission of a collection of exhibits under the business records exception,
without proper foundation. As it relates to whether the evidentiary error was
harmless in light of the concurrent testimony that CYS adduced at the
evidentiary hearing, the High Court stressed, “the standard for finding
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harmlessness in a termination case requires us to conclude that the
evidentiary error could not have had any impact upon the orphans’ court’s
decision.” In re A.J.R.-H., supra at 1175. It further explained that, while
couched as harmless error, this Court’s practice of affirming a trial court
decision on any basis supported by the certified record is, in reality, an
application of the “right for any reason” doctrine. Id. at 1176. Importantly,
the Court observed that this doctrine is inappropriate where an unresolved
dispute of fact exists. Phrased differently, the right for any reason doctrine
“may not be used to affirm a decision when the appellate court must weigh
evidence and engage in fact finding or make credibility determinations to
reach a legal conclusion.” In re A.J.R.-H., supra at 1176.
As noted, supra, there is no dispute of fact regarding Father’s court-
ordered goals. Three witnesses set forth Father’s goals and his failure to
comply with any goal with regularity except attending visitations with his
daughter. Critically, Father does not dispute this aspect of the witnesses’
testimony. Notably, unlike the testimony surrounding the exhibit that was the
point of contention in In re A.J.R.-H., the independent testimony that CYS
presented to establish the court-ordered goals was not drawn from improper
evidence.
Further discussion of the High Court’s analysis is warranted. In finding
that the trial court’s error was not harmless, the In re A.J.R.-H. Court noted
the witness relied upon the improperly admitted exhibit “[t]hroughout her
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testimony . . . to provide answers to questions posed to her regarding the
history of CYS’s involvement with the family and the parties’ compliance with
the court ordered services.” Id. at 1173. However, in contrast to the
supporting testimony in In re A.J.R.-H., which was drawn from the
improperly admitted exhibit, the three caseworkers’ in-court testimony
regarding Father’s goals in the case sub judice was independent from Exhibit
P-2 insofar as it was based entirely upon first-hand knowledge of Father’s
involvement with the agency. In fact, the only reference in the certified record
to any witness gleaning information from a document was Ms. Scheitrum’s
reference to Exhibit P-5, a properly-admitted exhibit relating to Father’s
extensive criminal history. See N.T., 3/1/21, at 57. Accordingly, the
properly-admitted testimony was sufficient to cure the orphans’ court’s
inadvertent reference to Exhibit P-2. In short, there is no question of fact that
requires this Court to weigh evidence, engage in fact finding, or render a
credibility determination to conclude that the reference was harmless. See
In re A.J.R.-H., supra at 1176. Accordingly, notwithstanding Father’s
repeated protestations, In re A.J.R.-H., does not mandate reversal in this
case.
Having found that Father’s first issue fails, we address the merits of the
orphans’ court’s decision to terminate Father’s parental rights. Pennsylvania’s
Adoption Act governs involuntary termination of parental rights proceedings.
See 23 Pa.C.S. § 2101-2938. It requires a bifurcated analysis, in which the
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trial court focuses first on the parent’s conduct pursuant to § 2511(a). In re
L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citing In re R.J.S., 901 A.2d 502,
508 (Pa.Super. 2006)). If the court determines that the party seeking
termination has established statutory grounds pursuant to § 2511(a), it must
then turn its attention to § 2511(b), which focuses on the child’s needs and
welfare. Id. A key aspect of the court’s needs and welfare analysis is
discerning whether the child has an emotional bond with his or her parent and
what effect severing that bond may have on the child. Id. The party seeking
termination bears the burden of proof under both § 2511(a) and (b) by clear
and convincing evidence. In re C.P., supra at 520 (citing In re B.L.L., 787
A.2d 1007 (Pa.Super. 2001)).
The trial court terminated Father’s parental rights pursuant to
§ 2511(a)(1), (2), (5), (8), and (b). We need only agree with the court as to
any one subsection of § 2511(a), in addition to § 2511(b), to affirm. In re
B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc). Instantly, we find
that the certified record supports the orphans’ court’s decision to terminate
parental rights pursuant to § 2511(a)(2) 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:
....
(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-
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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(a)(2), and (b).
With regard to the termination of parental rights pursuant to
§ 2511(a)(2), we have indicated the following:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). Significantly, “[t]he grounds for termination 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 re Adoption of C.D.R.,
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111 A.3d 1212, 1216 (Pa.Super. 2015) (quoting In re A.L.D., 797 A.2d 326,
337 (Pa.Super. 2002)). Furthermore, “[p]arents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. . . . [A] parent’s vow to cooperate, after a long period of
uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous.” In re A.L.D., supra at
340 (internal quotation marks and citations omitted).
In Adoption of S.P., supra, our Supreme Court addressed the
application of § 2511(a)(2) to incarcerated parents and concluded:
[I]ncarceration is a factor, and indeed can be a determinative
factor, in a court’s conclusion that grounds for termination exist
under § 2511(a)(2) where the repeated and continued incapacity
of a parent due to incarceration has caused the child to be without
essential parental care, control or subsistence and that the causes
of the incapacity cannot or will not be remedied.
Id. at 828.
Instantly, the certified record reveals a repeated and continued parental
incapacity based upon Father’s enduring criminal conduct and incarceration
over the previous three years, and that incapacity has caused J.L.H. to be
without essential parental care. Hence, the only question currently before us
is the propriety of the orphans’ court’s determination that Father cannot or
will not remedy the cause of the incapacity.
In finding that CYS established the statutory grounds to terminate
Father’s parental rights pursuant to § 2511(a)(2), the orphans’ court reasoned
that Father’s continued incapacity due to his criminal conduct and extensive
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incarceration has caused J.L.H. to be without necessary parental care and that
Father cannot remedy the causes of the incapacity. The orphans’ court
explained,
In the present case, Father has been incarcerated for the majority
of J.L.H.'s life. Father’s own choices led to his repeated
incarceration. Three years after her adjudication, Father is still
unable to resume parental duties. His repeated incarcerations
created a repeated and continuing incapacity pursuant to
§2511(a)(2) by which he has caused the child to be without
essential parental care, control, or subsistence necessary for her
physical and mental well-being for the past three years. Father's
plan to make parole in April 2022 is speculative; he could remain
in prison until 2026. Even if he were to make parole in April 2022,
the one-year delay in permanency is unreasonable for a very
young child like J.L.H. who has already been without parental care
for over three years. In addition, upon release Father would not
immediately be in a position to resume parental rights. He would
need to complete the court ordered services and prove himself
ready to appropriately discharge his parental duties. He is simply
unable to remedy his incapacity within a reasonable period of
time.
Further, Father has a lengthy criminal history and
repeatedly violated the conditions of his parole. His ability to
remain within the bounds of the law and free from incarceration
is highly uncertain, notwithstanding his stated intentions to make
better choices in the future so he can be present for his daughter.
The fact that he committed numerous crimes after his daughter
was born is of particular concern, as the effect of those crimes was
to cause him to be unable to be present for J.L.H. Statutory
grounds for termination were clearly and convincingly met
pursuant to § 2511(a)(2).
Trial Court Opinion, 4/20/21, at 5-6 (citations and footnotes omitted). In an
accompanying footnote, the trial court summarized, inter alia, Father’s serial
probation and parole violations, history of substance abuse, and continuing
criminal conduct that led to his most recent incarceration. Id. at 6 n.5 (citing
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Exhibit P-5). Ultimately, the orphans’ court observed, “Father's extensive
criminal history lends little comfort to his ability to conform to the
requirements of the law once he is finally released from prison.” Id.
Father argues that the orphans’ court erred in terminating his parental
rights pursuant to 2511(a)(2) because it “based its decision almost entirely
on the length remaining on Father's sentence.” Father’s brief at 40. He
continues that, “[o]utside of the length of his sentence, the facts supporting
the trial court's decision were not supported by clear and convincing evidence
of record.” Id. Essentially, Father complains that the orphans’ court did not
consider any factor other than his potential release date in determining that
Father’s incapacity is unlikely to be remedied soon. Id. at 42.
We first observe that Father’s incarceration is clearly relevant. See In
re Adoption of S.P., supra at 829 (explaining that, once incarceration
causes a parental incapacity, “[t]he question, then, becomes whether the
parent can remedy the incapacity, which depends to a significant degree on
the length of the parent’s sentence”). Second, the orphans’ court’s express
statement of rationale belies Father’s assertion that its decision rested solely
on the expected length of his incarceration. The orphans’ court specifically
identified Father’s extensive criminal history, including multiple violations of
probation and parole and examples of recidivism after J.L.H.’s birth, substance
abuse, and his post-release obstacles as bases to find that Father cannot
remedy the parental incapacity. See Trial Court Opinion, 4/20/21, at 5-6. All
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of the foregoing considerations, which are supported by clear and convincing
evidence in the certified record, relate to Father’s choices and the effect of
those choices on J.L.H. rather than the fact of his incarceration or anticipated
release date. See e.g., Exhibit P-5, Certified Criminal Docket and Sentencing
Sheets.
In sum, the record substantiates the orphans’ court’s conclusion that
Father demonstrated a repeated and continued incapacity to parent that has
caused J.L.H. to be without essential parental control or subsistence necessary
for her physical and mental well-being. See In re Adoption of M.E.P., supra
at 1272. While Father maintained contact with his daughter, such was
insufficient to constitute the parental control J.L.H. requires, and the
unfortunate history of this case demonstrates Father either cannot or will not
remedy this situation. As we discern no abuse of discretion or error of law in
the orphans’ court’s decision to terminate Father’s parental right pursuant to
the statutory grounds outlined in § 2511(a)(2), we do not disturb it.
Having determined that the record supports the orphans’ court’s
analysis under 2511(a), we next determine whether termination was proper
under § 2511(b). As explained above, § 2511(b) focuses on the needs and
welfare of the child, which includes an analysis of any emotional bond that
J.L.H. may have with Father and the effect severing that bond. L.M., supra
at 511. The key questions when conducting this analysis are whether the
bond is necessary and beneficial and whether severance of the bond will cause
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the child extreme emotional consequences. In re Adoption of J.N.M., 177
A.3d 937, 944 (Pa.Super. 2018). It is important to recognize that the
existence of a bond, while significant, is only one of many factors courts should
consider when addressing § 2511(b). In re Adoption of C.D.R., supra at
1219. Other factors include “the safety needs of the child, and . . . the
intangibles, such as the love, comfort, security, and stability the child might
have with the foster parent.” Id.
Father argues that the orphans’ court’s needs and welfare analysis was
faulty because the orphans’ court ignored the bond that Father shared with
J.L.H. in finding that parental rights could be terminated without detrimental
effect. Noting the agency’s burden of proof and the orphans’ court
acknowledgment that a “positive bond” exists between Father and J.L.H.,
Father contends that CYS failed to present evidence to establish that the
potential harm to J.L.H. could be mitigated. Id. at 66-67. Hence, he
concludes that the orphans’ court erred in finding that terminating his parental
rights served J.L.H.’s best interest. We disagree.
First, contrary to Father’s assertion that the trial court found a positive
parent-child bond in this case, the record bears out merely that the court
acknowledged, “[s]ome evidence . . . that the child has a positive bond with
Father in that she calls him ‘Daddy,’ asks where he is, and is happy when he
calls.” Trial Court Opinion, 4/20/21, at 7. The acknowledgment that J.L.H. is
aware of Father and appreciates his attention is not tantamount to a
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meaningful emotional bond that cannot be severed without detrimental effect.
The certified record establishes that Father has an ancillary, as opposed to
primary, relationship with his daughter, having failed to perform parental
duties during the child’s lifetime.
Furthermore, as discussed supra, the fundamental question is whether
the bond is necessary and beneficial. In re Adoption of J.N.M., supra at
944. Instantly, the orphans’ court determined that the relationship that J.L.H.
shared with Father was not the essential bond that the court was required to
protect. In actuality, the indispensable parent-child bond was between J.L.H.
and her maternal aunt, R.C., who has fulfilled the parental role for nearly all
of the child’s life.
The orphans’ court explained:
Even though the child does appear to have a positive bond
with Father, her primary bond is with [maternal aunt, R.C.], not
with Father. [R.C.] is the only caregiver J.L.H. has ever known.
By all accounts, [R.C.] is a loving; appropriate caregiver who
meets all of J.L.H.’s needs. J.L.H.’s needs and welfare are
being served in her present situation, living with the only
parental figure she has ever known. Father’s desire to have
a relationship with J.L.H. is not enough to prevent termination of
his parental rights. The child’s strong, positive bond with
[R.C.] is the bond that is worth preserving.
Trial Court Opinion, 4/20/21, at 7 (internal citations omitted, emphases
added).
While J.L.H. shares some bond with Father, the facts of this case militate
against the conclusion that the bond is necessary or that J.L.H. will suffer
extreme emotional consequences due to the severance of the bond. See,
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e.g., Matter of Adoption of M.A.B., 166 A.3d 434, 449 (Pa.Super. 2017)
(explaining, “a child develops a meaningful bond with a caretaker when the
caretaker provides stability, safety, and security regularly and consistently to
the child over an extended period of time”). Hence, severing the parent-child
bond is not adverse to J.L.H.s best interests.
To the extent that Father complains that CYS did not present expert
testimony or a formal bonding assessment, neither of these is required to
determine the significance of the parent-child bond or the effect of severing
it. In re D.L.B., 166 A.3d 322, 328 (Pa.Super. 2017). Similarly, “the
existence of some bond” between a parent and a child “does not necessarily
defeat termination of . . . parental rights.” In re K.Z.S., 946 A.2d 753, 764
(Pa.Super. 2008). The pertinent question is whether the parent-child bond
“is the one worth saving or whether it could be sacrificed without irreparable
harm to” the child. Id. Here, the orphans’ court noted Father’s relationship
with J.L.H. and properly considered clear and convincing evidence that J.L.H.
was thriving in the care of her adoptive resource. See In re Adoption of
C.D.R., supra at 1219 (relevant factors include “the safety needs of the child,
and . . . the intangibles, such as the love, comfort, security, and stability the
child might have with the foster parent”). We discern no error.
Ultimately, the record confirms that, after three years as a dependent
child, J.L.H. requires the permanence and stability which Father has
demonstrated he cannot or will not provide. Terminating Father’s parental
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rights will permit J.L.H. to pursue permanence with R.C., the adoptive kinship
resource. Although J.L.H. shares a familiar relationship with Father, it was
within the trial court’s discretion to weigh that companionship against other
factors such as J.L.H.’s success with R.C., who encouraged Father’s bond with
J.L.H. and indicated a willingness to maintain contact with Father, and
conclude that the benefits of termination were more significant. The certified
record sustains the orphans’ court’s determination. See e.g., N.T., 4/1/21 at
87-88 (Ms. Vinson indicating that J.L.H. is thriving with R.C., who has been
the primary parental figure for what amounts to the child’s entire life). Thus,
we discern no basis to disturb the court’s conclusion that termination will best
serve J.L.H.’s developmental, physical, and emotional needs and welfare
pursuant to § 2511(b).
For all of the foregoing reasons, we find neither legal error nor an abuse
of discretion in the orphans’ court’s decision to terminate Father’s parental
rights to J.L.H.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2022
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