In the Interest of: R.R.D., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.R.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
APPEAL OF R.D., FATHER :
:
:
:
:
: No. 171 EDA 2018
Appeal from the Order Entered November 8, 2017
in the Court of Common Pleas of Bucks County Orphans' Court at No(s):
2017-9070
IN THE INTEREST OF: J.K.L.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
APPEAL OF R.D., FATHER :
:
:
:
:
: No. 173 EDA 2018
Appeal from the Order Dated October 30, 2017
in the Court of Common Pleas of Bucks County Orphans' Court at No(s):
2017-9069
BEFORE: PANELLA, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 28, 2018
Appellant, R.D. (“Father”), files these consolidated appeals from the
decrees dated October 30, 2017, and entered on November 8, 2017,1 in the
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* Former Justice specially assigned to the Superior Court.
1 The subject decrees were dated October 30, 2017. However, as to R.R.D.,
the clerk did not provide notice pursuant to Pa.R.C.P. 236(b) until November
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Bucks County Court of Common Pleas, granting the petitions of the Bucks
County Children and Youth Social Services Agency (“BCCYSSA”) and
involuntarily terminating his parental rights to his minor, dependent children,
a daughter, J.K.L.D., born in June 2014, and a son, R.R.D., born in May 2011
(collectively, the “Children”), pursuant to the Adoption Act, 23 Pa.C.S.A. §
2511(a)(2), (5), (8), and (b).2 In addition, on March 22, 2018, counsel for
Father (“Counsel”) filed with this Court a Petition for Leave to Withdraw as
Counsel and a brief pursuant to Anders v. California, 386 U.S. 738 (1967)
averring the within appeal is frivolous. After review, we grant Counsel’s
petition to withdraw and affirm the trial court’s decrees.
The trial court summarized the relevant procedural and factual history
as follows:
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8, 2017. Moreover, as to J.K.L.D., there is no notation on the docket that
notice was given and that the order was entered for purposes of Pa.R.C.P.
236(b). Our appellate rules designate the date of entry of an order as “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.C.P. 236(b).” Pa.R.A.P.
108(b). Further, our Supreme Court has held that “an order is not appealable
until it is entered on the docket with the required notation that appropriate
notice has been given.” Frazier v. City of Philadelphia, 557 Pa. 618, 621,
735 A.2d 113, 115 (1999). While we consider both matters on the merits, we
caution the Bucks County Prothonotary’s Office to comply with the rules
governing the entry of orders.
2 By separate decrees entered the same date, the trial court involuntarily
terminated the parental rights of the Children’s mother, J.M. a/k/a J.A.M.
(“Mother”). Mother has not filed an appeal and is not a party to the instant
appeal.
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J.D., presently three and one-half (3 1/2) years of age, was born
[in June 2014] and R.R.D., now six and one-half (6 1/2) years old,
was born [in May 2011]. R.R.D. was in the care of [BCCYSSA] for
a short period of time during 2012. Despite R.R.D. having been
returned to Mother after that time, both [c]hildren came into the
care of [BCCYSSA] on December 21, 2015.[3]
Father testified that he was incarcerated when the Children
came into the care of [BCCYSSA] in 2015. Father has been
incarcerated for all but five (5) months since the Children came
into care. While incarcerated, Father has been reported for
multiple misconducts. At least two (2) of the misconducts
involved Father’s possession of contraband in the correctional
facility. The most recent misconduct, in May 2017, resulted from
Father testing positive for suboxone. . . . .
Trial Court Opinion (”T.C.O.”), 1/24/18, at 1-2 (citations to record omitted).
BCCYSSA filed petitions to terminate Mother’s and Father’s parental
rights on June 16, 2017.4 The trial court held a hearing on October 25, 2017,
and Mother and Father, who were both incarcerated, were present and
represented by counsel. In support of the petitions to terminate, BCCYSSA
presented the testimony of Jeneen Overberger, a BCCYSSA caseworker, as
well as Mother and Father. BCCYSSA further offered Exhibits 1 through 4,
which were admitted without objection. N.T. Hearing, 10/25/17, at 4. Mother
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3The Children came into care because Foster Mother, with whom the Children
had already been residing pursuant to voluntary placement, could not access
medical care for the Children. Notes of Testimony (“N.T.”), 10/25/17, at 57-
58. Thereafter, the Children were adjudicated dependent on March 30, 2016.
Id. at 5. As to Father, the Children’s goal was changed from reunification to
adoption on March 21, 2017. Id. at 37.
4BCCYSSA sought termination of Mother’s parental rights pursuant to Section
2511(a)(1), (2), (5), and (8), and termination of Father’s parental rights
pursuant to Section 2511(a)(2), (5), and (8). Id. at 3.
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and Father each testified on their own behalf.5 In addition, the Children were
represented by a guardian ad litem during this proceeding who participated in
the questioning.6
By decrees dated October 30, 2017, and entered November 8, 2017,
the trial court involuntarily terminated the parental rights of Father to the
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5 Mother additionally offered an exhibit, M-1, which was marked but never
entered. N.T. at 77.
6 The guardian ad litem (“GAL”), Lisa Ann Horne, Esquire, argued in favor of
termination of Father’s parental rights at the hearing. Id. at 106-07. During
the hearing, Attorney Horne represented the Children’s legal interests and
best interests. Pursuant to order dated and entered August 4, 2017, the court
appointed Attorney Horne to represent both sets of interests after she filed a
motion averring that no conflict existed.
This Court has recently held that we will address sua sponte the failure of an
orphans’ court to appoint counsel pursuant to 23 Pa.C.S.A. 2313(a). See In
re K.J.H., 180 A.3d 411, 414 (Pa.Super. 2018). Our Supreme Court, in In
re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017) (plurality), held
that Section 2313(a) requires that counsel be appointed to represent the legal
interests of any child involved in a contested involuntary termination
proceeding. The Court defined a child’s legal interest as synonymous with his
or her preferred outcome. With respect to this Court’s holding in In re K.M.,
53 A.3d 781 (Pa.Super. 2012), that a GAL who is an attorney may act as
counsel pursuant to Section 2313(a) so long as the dual roles do not create a
conflict between the child’s best interest and legal interest, the L.B.M. Court
did not overrule it.
Here, Attorney Horne averred there was no conflict, and the court thereafter
considered and determined that no conflict existed; therefore, we do not
remand this matter. Cf. In re T.M.L.M., 2018 Pa. Super. 87 (filed April 13,
2018) (remand for further proceedings when six-year-old child’s preference
was equivocal and the attorney neglected to interview the child to determine
whether legal and best interests were in conflict).
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Children.7 On November 28, 2017, Father, through appointed counsel, filed
notices of appeal. Counsel filed a Statement of Intent to File Anders Brief in
Lieu of Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.
1925(c)(4) and In re J.T., 983 A.2d 771 (Pa.Super. 2009). This Court
consolidated Father’s appeals sua sponte on February 5, 2018.
When counsel files an Anders brief, this Court may not review the
merits of the appeal without first addressing counsel’s request to withdraw.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super. 2013); see
also Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005)
(stating, “[w]hen faced with a purported Anders brief, this Court may not
review the merits of the underlying issues without first passing on the request
to withdraw.”) (citation omitted). In In re V.E. & J.E., 611 A.2d 1267
(Pa.Super. 1992), this Court extended the Anders principles to appeals
involving the termination of parental rights. Id. at 1275. Counsel appointed
to represent an indigent parent on appeal from a decree involuntarily
terminating parental rights may therefore petition this Court for leave to
withdraw representation and submit an Anders brief. In re S.M.B., 856 A.2d
1235, 1237 (Pa.Super. 2004).
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7The decrees do not specify the subsections under which the court terminated
Father’s parental rights. However, we observe that in its opinion the trial
court finds that BCCYSSA established grounds for termination pursuant to
Subsections 2511(a)(1), (2), (5), and (8), and that termination serves the
Children’s best interests pursuant to Subsection 2511(b). T.C.O. at 3, 7-10.
The court incorrectly states that BCCYSSA pursued termination of Father’s
parental rights under Section 2511(a)(1). Id. at 3.
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In Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009),
our Supreme Court explained, “the major thrust of Anders . . . is to assure
that counsel undertakes a careful assessment of any available claim that an
indigent appellant might have.” Id. at 174, 978 A.2d at 358. The Court stated
that this “is achieved by requiring counsel to conduct an exhaustive
examination of the record and by also placing the responsibility on the
reviewing court to make an independent determination of the merits of the
appeal.” Id.
To withdraw, pursuant to Commonwealth v. Millisock, 873 A.2d 748
(Pa.Super. 2005) and its progeny, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super.
2009)); see also Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super.
2014). Counsel must “attach to their petition to withdraw a copy of the letter
sent to their client advising him or her of their rights.” Millisock, 873 A.2d
at 752.
This Court further reviews Counsel’s Anders brief for compliance with
the requirements set forth in Santiago, supra.
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[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, counsel must: (1)
provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
602 Pa. at 178-79, 978 A.2d at 361. “Once counsel has satisfied the above
requirements, it is then this Court’s duty to conduct its own review of the trial
court’s proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d
287, 291 (Pa.Super. 2007) (en banc) (quoting Commonwealth v. Wright,
846 A.2d 730, 736 (Pa.Super. 2004)).
Counsel filed a petition to withdraw, wherein she asserts that she has
made a conscientious review of the record and determined the appeal would
be frivolous. Likewise, Counsel submitted a brief that complies with the
requirements of Anders as set forth in Santiago, supra. Counsel attached
to the petition to withdraw a copy of the letter she sent to Father advising him
of his rights and enclosed a copy of the Anders brief therewith. Hence, we
conclude that Counsel has complied with the procedural Anders requirements
and proceed to a review of the merits.
Counsel’s Anders brief raises the following issue for our review:
Did the trial court commit an error of law by involuntarily
terminating Father’s parental rights under 23 Pa.C.S.[A. §]
2511(a)(1) when [BCCYSSA] had not petitioned for termination
based on that section of the Adoption Act?
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Anders brief at 5.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion.” Id. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at [325-26, 47 A.3d at] 827. We have previously emphasized our
deference to trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re R.J.T., [608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is
free to believe all, part, or none of the evidence presented, and is likewise
free to make all credibility determinations and resolve conflicts in the
evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation
omitted). “[I]f competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, and requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
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rights. 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter of
Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998)).
In the case sub judice, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). We have long
held that in order to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a), as well
as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the trial court’s termination decrees pursuant to
subsections 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:
...
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(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
...
(b) Other considerations.--The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(2), and (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
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). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
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grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015)
(quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002)). “Parents 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., 797 A.2d at 340 (internal quotation marks and citations omitted).
In In re Adoption of S.P., 616 Pa. 309, 47 A.3d 817 (2012), our
Supreme Court, in addressing Section 2511(a)(2), held that:
incarceration 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 328-29, 47 A.3d at 828; see also In re D.C.D., 629 Pa. 325, 346-47,
105 A.3d 662, 675 (2014) (holding that incarceration prior to child’s birth and
until child was at least seven years old rendered family reunification an
unrealistic goal and, therefore, trial court was within its discretion when it
terminated father’s parental rights notwithstanding the agency’s failure to
follow court’s initial directive that reunification efforts be made). The Court in
S.P. further stated,
[W]e now definitively hold that incarceration, while not a litmus
test for termination, can be determinative of the question of
whether a parent is incapable of providing “essential parental
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care, control or subsistence” and the length of the remaining
confinement can be considered as highly relevant to whether “the
conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent,” sufficient to provide
grounds for termination pursuant to 23 Pa.C.S.[A.] § 2511(a)(2).
See e.g. Adoption of J.J., [511 Pa. 590, 605,] 515 A.2d [883,
891 (1986)] (“[A] parent who is incapable of performing parental
duties is just as parentally unfit as one who refuses to perform the
duties.”); [In re] E.A.P., 944 A.2d [79, 85 (Pa.Super.
2008)](holding termination under § 2511(a)(2) was supported by
mother’s repeated incarcerations and failure to be present for
child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied
despite mother’s compliance with various prison programs).
In re Adoption of S.P., 616 Pa. at 331-32, 47 A.3d at 830 (footnote
omitted).
In the case at bar, in finding grounds for termination pursuant to Section
2511(a)(2), the trial court reasoned, “[t]he Children have lacked proper
parental care and control necessary for their well-being per §2511(a)(2). We
found further that Father has not, cannot, and will not remedy those conditions
within a reasonable time period, as he has no realistic plan for housing or
employment, or for addressing the significant need to treat his substance
abuse issues.” T.C.O. at 7. In so stating, the court found as follows:
A. Father has Failed to Meet [BCCYSSA]’s Permanency
Placement Plan (PPP) Objectives
Presently, Father is serving back-time regarding a
previously-imposed sentence. Father testified that he has been
incarcerated for all but 5 months since the Children came into the
care of [BCCYSSA]. As a result of a probation/parole violation
which Father testified was due to his failure to pay restitution, on
June 7, 2017, following a parole hearing, our colleague Judge
Trauger imposed a sentence encompassing the remainder of back
time, with no eligibility for parole. Father signed a stipulation with
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regard to serving his back time. Father stated that he did not wish
to be paroled before his maximum date because his housing
options had been limited when he was on parole, and though he
would be interested in living with his father, the Bucks County
Adult Probation and Parole department disallowed that as an
option.
Father admitted that [BCCYSSA]’s Permanency Placement
Plan included the directive that he become and stay drug-free, a
goal which, unfortunately, he has been unable to achieve. While
incarcerated Father has been reported for several misconducts.
The initial misconduct occurred the first day he was incarcerated,
December 14, 2016, followed by misconducts on December 17,
2016, January 23, 2017 and May 12, 2017. Upon his first
misconduct, Father was immediately placed in the Restricted
Housing Unit (“RHU”) for sixty (60) days. The two (2) December
2016 misconducts were related to the possession of contraband.
Five (5) months after his incarceration, in May 2017, Father
received a misconduct as a result of a positive urine sample, and
received forty (40) additional days in the RHU.
Father’s testimony included his statement that he has not
received any treatment for substance abuse. He testified further
that he has not participated in drug and alcohol classes, decision-
making classes, or anger management classes during his
incarceration. Father claimed that a medical evaluation performed
a few months prior to the evidentiary hearing indicated that he
did not need such treatment. Father did admit that he cannot
presently provide suitable housing for the Children, and that he
lacks present means to provide support for them. He has not had
a visit with his Children for more than a year, having last seen
them in the fall of 2016.
At the hearing on October 25, 2017, we also listened to the
testimony of Jeneen Overberger, a caseworker for [BCCYSSA]
who has been involved in this case since March 2017. Ms.
Overberger testified that Father had failed to take any actions
toward achieving the objectives of the PPP. Despite Father’s claim
that he received a mental health evaluation, [BCCYSSA] was
never so informed.
B. Father is Incapable of Providing Adequate Housing
and Support for the Children
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During October through December 2016, before he returned
to prison, Father was living in a recovery house and worked daily
in a warehouse. He was responsible for weekly rent for which,
when necessary, his father would assist in paying. Father testified
that he is not presently capable of providing proper housing or
support for the Children.
Ms. Overberger testified that since the Children came into
care two (2) years ago, Father has never been in a position to
provide for them.
Father faults [BCCYSSA] for limiting his visits with the
Children. While [BCCYSSA] dictates the visitation schedule, and
need not afford visitation once the Dependency Court has changed
the goal to adoption, as occurred here, we do not condone a
perceived lack of reasonable effort by [BCCYSSA] to effectuate
visitation. Ms. Overberger noted that she had informed Father
that [BCCYSSA] did not feel it was appropriate for the Children to
visit Father during the periods when he was in the RHU. Ms.
Overberger also testified that R.R.D. was traumatized after a visit
at the prison, and [BCCYSSA] was concerned that future visits at
the prison would have a further traumatic effect on the [c]hild.
Ms. Overberger’s testimony included the observation that Father
had rarely visited with his [c]hildren when he was not
incarcerated.
T.C.O. at 5-7 (citations to record and footnotes omitted).
A review of the record supports the trial court’s finding of grounds for
termination under Section 2511(a)(2) as it reveals Father failed to alleviate
the Agency’s concerns regarding his ability and capacity to care for the
Children. Importantly, Father failed to comply with his Permanency Placement
Plan (“PPP”) goals aimed at reunification with the Children. As we discern no
abuse of discretion or error of law, we do not disturb the court’s findings.
Notably, Ms. Overberger confirmed that neither parent had been in a
position to have custody of the Children at any time since the latter were
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placed in care. N.T. at 37. Moreover, she indicated that neither parent was
in such a position at the time of the hearing. Id. at 38. Indeed, Father
acknowledged that he has been incarcerated all but five months since the
Children have been in care, and as a result, he has been unable to care for
the Children. Id. at 18. He further admitted that despite his incarceration,
there were reunification objectives established as part of his PPP. Id. at 19.
Ms. Overberger testified that Father has failed to complete the objectives of
his plan. Id. at 36.
Father admitted that although he was to achieve and maintain sobriety,
he received several misconducts while incarcerated as a result of the presence
of controlled substances or unprescribed medications in his system, most
recently in May 2017.8 Id. at 19-20. Father further stated he had not
undergone substance abuse treatment and had no appropriate housing or
means of support for the Children. Id. at 21. He testified that he did have a
mental health evaluation a few months prior to the time of the hearing;
however, he was unsure if the evaluation was provided to BCCYSSA. Id. at
21. Critically, Ms. Overberger indicated that she was unaware that Father had
an evaluation and had not been told that one was completed and available.
Id. at 36-37.
As this Court has stated, “a child’s life cannot be held in abeyance while
a parent attempts to attain the maturity necessary to assume parenting
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8 At that time, Father tested positive for suboxone. N.T. at 20.
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responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa.Super.
2006). Moreover, Father cannot or will not remedy this situation. Hence, the
record substantiates the conclusion that Father’s repeated and continued
incapacity, abuse, neglect, or refusal has caused Children to be without
essential parental control or subsistence necessary for their physical and
mental well-being. See In re Adoption of M.E.P., 825 A.2d at 1272.
As noted above, in order to affirm a termination of parental rights, this
Court need only agree with the trial court as to any one subsection of Section
2511(a) before assessing its determination under Section 2511(b). Therefore,
we need not address any further subsections of Section 2511(a), In re
B.L.W., 843 A.2d at 384, and proceed to determine whether termination was
proper under Section 2511(b). In this regard, our Supreme Court has stated:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the
child have been properly interpreted to include “[i]ntangibles such
as love, comfort, security, and stability.” In re K.M., 53 A.3d
781, 791 (Pa.Super. 2012). In In re E.M. [a/k/a E.W.C. &
L.M. a/k/a L.C., Jr.], [533 Pa. 115, 123, 620 A.2d 481, 485
(1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional bonds
between the parent and child. The “utmost attention” should be
paid to discerning the effect on the child of permanently severing
the parental bond. In re K.M., 53 A.3d at 791. However, as
discussed below, evaluation of a child’s bonds is not always an
easy task.
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In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946 A.2d
753, 762-63 (Pa.Super. 2008) (citation omitted).
“When conducting a bonding analysis, the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
[w]hile 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.
[I]n 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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
In the case sub judice, in determining that termination of Father’s
parental rights favors the Children’s needs and welfare under Section 2511(b)
of the Adoption Act, the trial court reasoned:
As [BCCYSSA] clearly and convincingly established the
criteria set forth by 23 Pa.C.S.[A. §] 2511(a)(1), (2), (5), and (8)
for termination, we next examined, pursuant to §2511(b),
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whether the termination of Father’s parental rights served the best
interests of the Children, considering their developmental,
physical, and emotional needs and welfare. We found that it did
so.
The Children, per a voluntary placement, have resided with
their foster mother since August, 2015. The foster mother also
has an adult daughter who lives in her home with the Children.
Ms. Overberger testified that both adults are involved with the
Children, meeting their needs, and providing appropriate and
necessary guidance and affection. There are no special medical,
emotional or developmental needs or concerns for either child,
other than speech therapy for R.R.D. The foster mother is an
adoptive resource for the Children, and [BCCYSSA] supports their
adoption by her, assuming she passes all of the requisite
background checks. We found the record clearly and convincingly
established the existence of a substantial bond between the
Children and the foster mother.
When considering what situation would best serve a child’s
needs and welfare, the trial court must examine the status of the
natural parental bond and whether terminating the natural
parent’s rights would destroy something in existence that is
necessary and beneficial to the child(ren).
When conducting a bonding analysis, the court is not
required to use expert testimony. . . .Social workers
and caseworkers can offer evaluations as well. . .
Additionally, Section 2511(b) does not require a
formal bonding evaluation. . . “Above all else . . .
adequate consideration must be given to the needs
and welfare of the child.”. . . A parent’s own feelings
of love and affection for a child, alone, do not prevent
termination of parental rights. . .
Before granting a petition to terminate parental rights,
it is imperative that a trial court carefully consider the
intangible dimension of the needs and welfare of a
child-the love, comfort, security, and closeness-
entailed in a parent-child relationship, as well as the
tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close
parental ties is usually extremely painful. The trial
court, in considering what situation would best serve
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the child[ren]’s needs and welfare, must examine the
status of the natural parental bond to consider
whether terminating the natural parents’ rights would
destroy something in existence that is necessary and
beneficial.
[In re Z.P.], 994 A.2d 1108, 1121 (internal citations omitted).
We found termination was warranted here. The record
contains clear and convincing evidence that Father has not made
reasonable or responsible strides toward adequately parenting the
Children. The evidence suggests that Father has thus far failed to
address his mental health and substance abuse issues.
Additionally, Father has neither the present ability nor a
reasonable future plan to provide adequate housing and support
for himself or the Children.
While this [c]ourt does not doubt that Father loves his
[c]hildren, the record is devoid of testimony or evidence of a
necessary and beneficial relationship between Father and the
Children, the existence of which, should Father’s rights be
terminated, would result in a negative effect on the Children. In
sum, the record contains clear and convincing evidence that
Father has been and continues to be, incapable of adequately
parenting the Children.
“The court cannot and will not subordinate indefinitely a
child's need for permanence and stability to a parent's claims of
progress and hope for the future.” [In re Adoption of R.J.S.],
901 A.2d 502, 513 (Pa.Super. 2006). When Father’s repeated
failure to remedy his parental incapacity is balanced against the
Childrens’ needs for permanence and stability, this [c]ourt has
concluded that it would not be in the Childrens’ best interests for
their lives to remain on hold indefinitely, in hopes that Father will
one day be able to act responsibly as their parent. Regrettably,
then, Father is not entitled to relief. [See In re Adoption of
C.D.R.], supra. at 1220.
T.C.O. at 8-10 (citations to record omitted).
Upon review, we again discern no abuse of discretion. The record
supports the trial court’s finding that the Children’s developmental, physical
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and emotional needs and welfare favor termination of Father’s parental rights
pursuant to Section 2511(b).
As indicated above, Ms. Overberger testified that neither parent had
been in a position to have custody of the Children since the Children had been
placed in care and, significantly, neither parent was in such a position at the
time of the hearing. N.T. at 37-38. Father was incarcerated all but five
months since the Children have been in care, and he last saw them prior to
his incarceration in November of 2016.9 Id. at 18, 23.
Moreover, and more importantly, the Children have resided in their
current placement since August 2015, prior to entry of the shelter care order.
Id. at 38, 59. Foster Mother, who has requested to be an adoptive parent
and her adult daughter have a positive, affectionate relationship with the
Children. Id. at 39-40. Ms. Overberger observed, the Children “seek
guidance from both adults in the home. They seek their needs to be met by
both adults. And they, you know, are bonded and affectionate with both adults
in the home.” Id. at 39; 59. As such, Ms. Overberger opined that termination
of parental rights best serves the needs and welfare of the children. Id. at
40.
____________________________________________
9 Ms. Overberger explained the Agency and the Agency’s solicitor jointly
decided that Father would not be permitted visitation. The factors they
considered in reaching this decision were the fact that the Children’s goal had
been changed to adoption, BCCYSSA had petitioned for, and a hearing was
scheduled with regard to, termination of parental rights, Father had not seen
the Children on a regular basis, and R.R.D. had had a prior traumatic
experience with prison visitation. N.T. at 55.
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Thus, as confirmed by the record, termination of Father’s parental rights
serves the Children’s developmental, physical and emotional needs and
welfare and was proper pursuant to Section 2511(b). While Father may
profess to love the Children, a parent’s own feelings of love and affection for
a child will not alone preclude termination of parental rights. In re Z.P., 994
A.2d at 1121. At the time of the hearing, the Children had been in care almost
two years and resided with Foster Mother for over two years. They are entitled
to permanency and stability, for 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 or her 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), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005).
Based on the foregoing analysis of the trial court’s termination of
Father’s parental rights, we agree with Counsel that the within appeal is wholly
frivolous. Further, our independent review of the record does not reveal any
additional, “non-frivolous issues that counsel, intentionally or not, missed or
misstated.” Commonwealth v. Yorgey, 2018 WL 2346441, at *12
(Pa.Super. May 24, 2018). As such, we grant Counsel’s petition to withdraw
and affirm the decrees of the trial court.
Petition to withdraw granted. Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
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