In the Interest of: Z.E.W.-Z. a Minor

J-S89002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.E.W.-C., A IN THE SUPERIOR COURT OF
MINOR, PENNSYLVANIA
Appellee
APPEAL OF: S.T.C., FATHER
No. 1768 EDA 2016
Appeal from the Order Entered May 11, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000737-2015, CP-51-DP-0001344-2012
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 21, 2016
S.T.C. (“Father”) appeals from the order entered on May 11, 2016,
terminating his parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b) to his daughter, Z.E.W.-C. (“Child”), born in August of 2011.1
We affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The trial court also terminated the parental rights of Child’s mother, L.W.
(“Mother”) on May 11, 2016. Mother filed separate appeals, assigned
Superior Court Docket Numbers 1842 and 1843 EDA 2016, relating to the
termination of her rights to Child and a sibling, D.A.S.W., who has a
different father. This Court consolidated Mother’s appeals sua sponte on
July 13, 2016. Mother’s parental rights are addressed in her separate
appeals; this case relates only to Father.
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The trial court set forth the factual and procedural background of this
case as follows:
On July 12, 2012, [Department of Human Services (“DHS”)]
received a General Protective Service (GPS) report alleging that
[Mother] sold her food stamps instead of buying food for the
children. The family home was in deplorable condition. The
home was infested with mice and roaches. Additionally, [Child’s]
siblings were truant from school. [Father] also resided in the
home and smoked marijuana. The report was substantiated.
[Mother] did not cooperate with DHS from July 13, 2012 to July
20, 2012.
On August 3, 2012, [Mother] failed to appear at a Motion to
Compel Hearing before the Honorable Jonathan Q. Irvine.
Pursuant to a hearing, Judge Irvine granted the Motion to
Compel Cooperation.
On August 10, 2012, Judge Irvine ordered DHS to hire a private
investigator to assist with DHS’s investigation.
On August 24, 2012, the private investigator located the family
at a different address.
On October 31, 2012, DHS implemented In-Home Protective
Services (IHPS) in the home.
DHS and IHPS determined that the condition of the home was
inappropriate. The home was overcrowded and needed to be
cleaned. Furthermore, [Child] looked unkempt. Moreover, DHS
learned that [Child] was not current with medical, dental and
vision appointments or immunizations.
DHS was denied access to the family home from December 27,
2012 thru January, 2013. [Father] also resided in the family
home.
On February 7, 2013, an adjudicatory hearing was held before
the Honorable Jonathan Q. Irvine. Judge Irvine adjudicated
[Child] dependent and committed her to the care and custody of
DHS. [Child] was placed in foster care.
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The matter was listed on a regular basis before Judges of the
Philadelphia Court of Common Pleas-Family Court Division-
Juvenile Branch pursuant to section 6351 of the Juvenile Act, 42
Pa.C.S.A. §6351, and evaluated for the purpose of determining
or reviewing the permanency plan of [Child].
In subsequent hearings, the DRO’s reflect the [c]ourt’s review
and disposition as a result of evidence presented, addressing,
and primarily with, the goal of finalizing the permanency plan.
On April 5, 2016 and May 11, 2016, a Termination of Parental
Rights hearing for [Father] was held in this matter.
On May 11, 2016, [t]he [c]ourt found by clear and convincing
evidence that [Father’s] parental rights of [Child] should be
terminated pursuant to the Pennsylvania Juvenile Act.
Furthermore, the [c]ourt held that it was in the best interest of
[Child] that the goal be changed to adoption.
Trial Court Opinion, 6/28/16, at unnumbered 1–2. Father filed a timely
notice of appeal; both Father and the trial court complied with Pa.R.A.P.
1925.
Father raises the following issues on appeal:
1. Did the Department of Human Services (DHS) present
clear and convincing evidence to support the trial court’s
decree terminating [F]ather’s parental rights under 23
Pa.C.S. § 2511(a)(1)(2)(5)(8) establishing that [F]ather
failed to remedy the parenting deficiencies that caused
[C]hild to be placed in foster care?
2. Did the trial court abuse its discretion by determining that
it would be in [C]hild’s best interest to be adopted
pursuant to 23 Pa.C.S. §2511(b)?
Father’s Brief at 3.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
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[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; In re
R.I.S., 614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel-Bassett v. Kia
Motors America, Inc., 613 Pa. 371, 455, 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634
(Pa. 2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
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rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that the “standard of clear and convincing evidence is
defined as testimony that is so ‘clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts in issue.’” Id. (quoting In re J.L.C., 837 A.2d
1247, 1251 (Pa. Super. 2003)). Moreover, this Court may affirm the trial
court’s decision regarding the termination of parental rights with regard to
any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc).
The trial court terminated Father’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Order, 5/11/16. We will focus
on section 2511(a)(2) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights of
a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The
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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). This Court has explained that the focus in
terminating parental rights under section 2511(a) is on the parent, but
under section 2511(b), the focus is on the child. In re Adoption of C.L.G.,
956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental 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). The grounds for termination of parental
rights under section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). This Court has
stated that a parent is required to make diligent efforts toward the
reasonably prompt assumption of full parental responsibilities. Id. A
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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. Id. at 340.
Father asserts that he did not fail to act nor was he incapable of
performing parental duties. Father’s Brief at 12. He avers that he
completed all of the goals identified by DHS with the exception of obtaining
affordable housing; in this regard, he complains that DHS “has done nothing
to assist him with housing.” Id. Father suggests that he satisfied that goal
by moving to Virginia “because he knew he could get housing there.” Id. at
13.
Our review of the record does not support Father’s claims. The trial
court noted the following in explaining Father’s noncompliance with his
Family Service Plan (“FSP”) goals:
In the instant case, [Father] did not complete all of his FSP
goals. The original DHS social worker testified that [Father’s]
FSP objectives were: 1) report to the Clinical Evaluation Unit
(CEU) for an evaluation, recommendations and random drug
screens, 2) complete drug and alcohol treatment, 3) obtain
appropriate housing, 4) maintain visits with [Child] and 5)
complete parenting classes (N.T., 4-5-16, p. 44). [Father] did
not comply with the CEU objective. [Father] testified that he did
not complete any drug screens in 2015 or in 2016. (N.T., 5-11-
16, p. 21). Furthermore, [Father] did not complete drug and
alcohol treatment (N.T., 4-5-16, p. 43). Moreover, [Father] did
not obtain appropriate housing (N.T., 4-5-16, p. 81). Lastly,
[Father] did not consistently visit with the child. [Father] did not
have ANY visits with the child from August 2015 until December,
2015. (N.T., 4-5-16, pgs. 80).
* * *
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In the instant case, the testimony established that the
original and current DHS social workers explained to [Father]
that he must comply with his FSP objectives for reunification to
occur with his child. (N.T., 4 -5 -16, pgs. 39 and 78). [Father]
did not comply with all of his FSP objectives. [Father] did not
comply with his CEU objective. Furthermore, he did not
complete drug and alcohol treatment. [Father] has been
referred to the CEU for an evaluation and random drug screens
at numerous hearings, however, he failed to comply. (DHS
Exhibit 2, 4/5/16), (N.T., 3/27/16, p. 55), (DHS Exhibit 1,
4/5/16, N.T., 6/20/16, p. 27). Moreover, [Father] did not
inquire about [Child’s] medical or educational needs. (N.T.,
4/5/16, p. 82). Lastly, [Father] did not have appropriate
housing. [Mother and Father] reside in the same residence.
However, [Mother’s] parenting capacity evaluation indicated that
she is unable to provide a safe environment for [Child]. (N.T.,
4/5/16, p. 67, 5/11/16, p 24).
Trial Court Opinion, 6/28/16, at unnumbered 3–4.
We agree with the trial court that there is competent evidence in the
record supporting its findings and credibility determinations. Father has not
performed parental duties, has made insufficient efforts to foster a
relationship with Child, has not resolved the conditions necessitating Child’s
placement, and lacks the ability, in his association with Mother, to provide
Child the safety necessary for her well-being. We conclude that the trial
court did not abuse its discretion in finding that Father’s parental rights
should be terminated under 23 Pa.C.S. § 2511(a)(2). Adoption of S.P., 47
A.3d at 826–827.
Next, we review the termination of Father’s parental rights pursuant to
23 Pa.C.S. § 2511(b). 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,
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physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “intangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted).
A parent’s abuse and neglect are likewise a relevant part of this
analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . .
Nor are we of the opinion that the biological connection between
[the parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent,
to establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
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In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations
and quotation marks omitted). Thus, the court may emphasize the safety
needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa. Super.
2008) (affirming the involuntary termination of the mother’s parental rights,
despite the existence of some bond, where placement with the mother would
be contrary to the child’s best interests, and any bond with the mother
would be fairly attenuated when the child was separated from her, almost
constantly, for four years).
In fact, our Supreme Court has observed that the mere existence of a
bond or attachment of a child to a parent will not necessarily result in the
denial of a termination petition, and that “[e]ven the most abused of
children will often harbor some positive emotion towards the abusive
parent.” T.S.M., 71 A.3d at 267 (quoting K.K.R.-S., 958 A.2d at 535). The
Supreme Court instructed, “[T]he continued attachment to the natural
parents, despite serious parental rejection through abuse and neglect, and
failure to correct parenting and behavior disorders which are harming the
children cannot be misconstrued as bonding.” T.S.M., 71 A.3d at 267
(citation omitted).
We have explained that a parent’s own feelings of love and affection
for a child, alone, do not prevent termination of parental rights. Z.P., 994
A.2d at 1121. Further, this Court has stated: “[A] parent’s basic
constitutional right to the custody and rearing of . . . her child is converted,
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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 well settled that “we will not toll the
well-being and permanency of [a child] indefinitely.” Adoption of C.L.G.,
956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)
(noting that a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of
parenting.”)).
Father asserts, without reference to the record, that “[t]his is not a
case where DHS is claiming that there is no parent-child bond . . . .”
Father’s Brief at 17. That indeed was the position of DHS. Stacy Ann
Barrett, the current case manager for Child, testified that even though
Father did not visit Child, she suffered no irreparable or significant harm.
N.T., 4/5/16, at 80. Child never asked about Father. Id. at 81. Child was
merely one year old when removed from her parents’ custody and placed in
her current foster home. Id. at 83. Her foster mother, who provides the
primary parental bond for Child, wishes to adopt her. Id. Foster mother
provides Child with love, safety, stability, and support and meets Child’s
educational and medical needs. Id. at 83–84. During cross-examination by
the Child Advocate, Jennifer Mullin, Ms. Barrett stated that Child is “very
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attention seeking and she’s constantly close with the foster parent during
the visit.” Id. at 89–90.
In concluding that Child’s primary bond is with her foster mother and
that adoption is in Child’s best interests, the trial court stated as follows:
Pursuant to Section 2511 (b), the trial court must take in
account whether a natural parental bond exists between child
and parent, and whether termination would destroy an existing,
necessary and beneficial relationship. In Re C.S., 761 A.2d
1197, 1202 (Pa. Super. 2000).
In the instant matter, [Child] resides in the pre-adoptive
foster home along with her sibling. [Child] shares her primary
parental bond with the foster parent. (N.T., 4-5-1[6], p. 83).
The foster parent provides [Child] with love safety and support.
She meets [Child’s] medical needs. (N.T., 4-5-16, pgs. 83 and
84). The foster mother enrolled [Child] in painting class. (N.T.,
4-5-16, p. 88). Moreover, [Child] did not ask for [Father] during
the five month period when he did not visit with [Child]. (N.T.
4/5/16, p. 80). Furthermore, [Child] would not suffer
permanent/irreparable harm if the parental rights of [Father]
were terminated. Lastly, it would be in the best interest of
[Child] if she were freed for adoption. (N.T., 4-5-16, p. 84).
Trial Court Opinion, 6/28/16, at unnumbered 5.
After careful review, we find the record supports the trial court’s
factual findings, and the court’s conclusions are not the result of an error of
law or an abuse of discretion. Adoption of S.P., 47 A.3d at 826-827.
Accordingly, it was proper for the trial court to conclude that no bond exists
such that Child would suffer harm if Father’s parental rights were
terminated. This Court finds no abuse of discretion in the trial court’s
termination of Father’s parental rights to Child pursuant to section 2511(b).
Because the trial court’s factual findings are supported by the record, and its
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legal conclusions are not the result of an error of law or an abuse of
discretion, we affirm the trial court’s order involuntarily terminating Father’s
parental rights under section 23 Pa.C.S. § 2511(a)(2) and (b) and changing
the goal to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2016
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