In The Int. of: A.W., Appeal of: T.B.

J-S46002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.B., FATHER :
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: No. 3674 EDA 2018
Appeal from the Order Entered November 15, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002529-2016
IN THE INTEREST OF: S.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: T.B., FATHER :
:
:
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: No. 3676 EDA 2018
Appeal from the Order Entered November 15, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0002530-2016
IN THE INTEREST OF: A.I.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.B., FATHER :
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: No. 3678 EDA 2018
Appeal from the Decree Entered November 15, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000682-2018
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IN THE INTEREST OF: S.A.A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.B., FATHER :
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: No. 3679 EDA 2018
Appeal from the Decree Entered November 15, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000683-2018
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 06, 2019
T.B. (“Father”) appeals from the decrees entered November 15, 2018,
that granted the petitions of the Philadelphia Department of Human Services
(“DHS”), and involuntarily terminated his parental rights to his sons, A.I.W.
(born June 2012), and S.A.A.B. (born May 2013) (collectively, “Children”).1
Father also appeals the orders entered the same day that changed Children’s
permanent placement goals to adoption. After careful review, we affirm.
The trial court set forth the factual and procedural history of this matter
as follows:
On November 15, 2016, the [c]hildren became known to the
Department of Human Services (“DHS”) when DHS received a
General Protective Services (“GPS”) report alleging that there was
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* Retired Senior Judge assigned to the Superior Court.
1 The court also involuntarily terminated the parental rights of S.W.
(“Mother”), the mother of A.I.W. and S.A.A.B. Mother appealed the decrees
terminating her parental rights, and we address her appeal in a separate
memorandum.
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no food in the parental home; that the home was heated with
electric space heaters; that the home had no hot water; and that
Mother and Children were residing in a shelter. The report also
alleged that Father was currently hospitalized recovering from a
bullet wound and that there was [a] history of domestic violence
between Mother and Father. On November 15, 2016, DHS visited
the home and found [c]hildren A[.]W[.] and S[.]B[.] with Mother.
DHS observed that the home was infested with bed bugs; the
stove [was] greasy; and the basement smelled of raw sewage.
Child A[.]W[.] and [c]hild S[.]B[.] lacked proper dental care and
had a foul o[dor]. As a result of the home visit, DHS obtained an
Order for Protective Custody (“OPC”) for the [c]hildren. On
November 30, 2016, following a hearing, the [c]hildren were
adjudicated dependent.
On March 9, 2017, a Single Case Plan (“SCP”) was created. The
parental objectives for Mother were to receive mental health
treatment and enroll in job counseling. The parental objectives of
Father were to enroll in parenting classes and mental health
treatment. On February 18, 2018, a revised SCP was created. The
parental objectives for Mother were to visit the [c]hildren bi-
weekly separate from Father; (2) Mother was to attend anger
management classes; (3) Mother was to attend mental health
treatment; (4) Mother would make the house suitable for the
[c]hildren; and (5) Mother would seek employment and
appropriate housing. The parental objectives for Father were (1)
to visit the [c]hildren bi-weekly; (2) to attend anger management
counseling; (3) to receive weekly mental health treatment and (4)
to make the house suitable for the [c]hildren.
Trial Court Opinion, 5/8/19, at 2-3 (citations to the record omitted).
On August 21, 2018, DHS filed petitions to involuntarily terminate the
parental rights of Mother and Father and to change Children’s permanent
placement goals to adoption. The court conducted hearings on the petitions
on September 14, 2018 and November 15, 2018.2
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2 Children were represented by Attorney James Martin as legal counsel and
Attorney Daniel Kurland as guardian ad litem.
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DHS presented the testimony of Jasmine Mitchell, the Community
Umbrella Agency (“CUA”) case manager for Turning Points for Children; Majita
Mohammad, a life skills and visitation coach; and Sakina Shaddiq, a visitation
coach. Father testified on his own behalf. On November 15, 2018, the court
entered decrees involuntarily terminating Father’s parental rights to Children,
and orders changing Children’s permanent placement goals to adoption. On
December 17, 2018, Father timely filed notices of appeal and concise
statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).3 This Court, acting sua sponte, consolidated Father’s
appeals.
On appeal, Father raises the following issues for our review:
1. Whether the trial court’s decision to involuntarily terminate
T.B.’s parental rights to his children A.W. and S.B., was not
supported by clear and convincing evidence warranting such
determination?
2. Whether the trial court’s decision to change A.W.’s and
S.B.’s permanency goal from reunification with the parent to
adoption was not supported by clear and convincing evidence
demonstrating that such decision would best protect the children’s
needs and welfare and be in the child[ren]’s best interests?
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3 Generally, a party must file his or her notice of appeal within thirty days after
entry of the order. See Pa.R.A.P. 903(a) (“Except as otherwise prescribed by
this rule, the notice of appeal . . . shall be filed within 30 days after the entry
of the order from which the appeal is taken.”). Thirty days after November 15,
2018, was Saturday, December 15, 2018. Thus, Father timely filed his notice
of appeal on Monday, December 17, 2018. See 1 Pa.C.S.A. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
. . . such day shall be omitted from the computation.”).
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Father’s brief at 5.
We review these claims mindful of our well-settled standard of review:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. § 2101-2938, which requires a bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Father’s parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), as well as (b). This Court may
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affirm the trial court’s decision regarding the termination of parental rights
with regard 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 will focus our analysis on Section 2511(a)(2) and (b), which
provides 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 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).
Our Supreme Court set forth our inquiry under Section 2511(a)(2) as
follows:
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As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
This Court has addressed incapacity sufficient for termination
under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based upon
parental incapacity. The legislature, however, in enacting the
1970 Adoption Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit as one who
refuses to perform the duties.
In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).
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. See 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) are not limited to affirmative misconduct; to the contrary,
those grounds may include acts of refusal as well as incapacity to perform
parental duties. See In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
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This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. See id. 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. See id. at 340.
Father asserts the trial court erred in terminating his parental rights
pursuant to Section 2511(a)(2) because the evidence “presented at trial did
not establish any substantial parental objective plan that [F]ather failed to
meet to prohibit reunification.” See Father’s brief at 17. Father contends that
he parented Children and has been in their lives since birth. See id. at 20.
Father asserts DHS provided minimal assistance with housing, and that his
housing was appropriate. See id. Further, Father argues that he obtained
employment and was pursuing a Social Security Disability claim. See id.
Accordingly, Father contends that the conditions that led to Children’s
placement have been substantially remedied. See id. at 21.
The trial court terminated Father’s parental rights pursuant to Section
2511(a)(2), reasoning that Father failed to timely obtain appropriate housing,
complete mental health treatment, or attend parenting classes. See Trial
Court Opinion, 5/8/19, at 5-6. Further, the court observed that Father failed
to appear for drug tests. See id. at 6. The court found DHS’s witnesses to be
credible and Father’s testimony to be neither compelling nor credible. See id.
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at 7. Accordingly, the court determined that DHS met its burden of proof with
respect to Section 2511(a)(2).
The record supports the trial court’s conclusion. Jasmine Mitchell, the
CUA caseworker, testified that the family initially came to DHS’s attention due
to allegations involving the family home having a broken water heater, a lack
of food and supervision, and poor hygiene. See N.T., 9/14/18, at 18. Children
were adjudicated dependent November 30, 2016, and have been in placement
since that time. See id. Father’s SCP objectives were to attend mental health
therapy; appear for drug screens; obtain appropriate housing and
employment; complete a fatherhood program; attend a parenting program at
the Achieving Reunification Center (“ARC”); and obtain a parenting capacity
evaluation (“PCE”). See id. at 30-32, 34-37, 52-53. Shortly before the
termination hearing, Father was able to make his housing appropriate. See
id. at 23, 34-36, 67-68. Further, Father was consistent with his mental health
therapy after April 2017. See id. at 30-31. Overall, Father’s compliance with
the SCP was moderate. See id. at 57.
However, Mitchell testified that Father attended the first portion of the
PCE after failing to attend four appointments between October 2017 and March
2018. See id. at 31-32, 69-70. Father failed to appear for drug testing that
would allow for the completion of the PCE. See id. at 31-32. Moreover, Father
failed to complete the fatherhood program and the ARC program. See id. at
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36-37, 55. Although Father asserted he worked, he claimed his work was
under the table and did not provide documentation. See id. at 55-56.
Additionally, Father did not visit Children from November 2016 until
February 2017 because he could not be contacted. See id. at 23-24. Once
Father began visits, they were always supervised, in large part because of his
lack of impulse control. See id. at 57.
Majita Mohammad testified regarding Father’s visits with Children,
noting that, from August 2017 through February 2018, Mother and Father
were offered approximately twenty-five visits and attended four. See id. at
102-03. After February 2018, Father’s attendance became more consistent.
See id. at 108.
Father testified that he was compliant with his objectives, and that, to
the extent he failed to achieve objectives, it was because DHS failed to contact
him. See id. at 140-44. Father asserted that he never missed a visit, and that
the visits went well. See id. at 150; N.T., 11/15/18, at 5-6.
Father contended that he earned money by performing light
maintenance work for his family, and that he had applied for Social Security
Disability. See N.T., 9/14/18, at 147-50. Father testified that he applied for
disability as a result of unknown assailants shooting Father on three separate
occasions. See N.T., 9/14/18, at 131-35; N.T., 11/15/18, at 11-12, 15. Father
asserted that he lives in a four-bedroom house, and that his housing is
appropriate. See N.T., 11/15/18, at 11. However, he acknowledged that he
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was still attending anger management, never started the fatherhood program,
and did not attend any ARC programs. See id. at 15, 17, 19-20. Father
testified that he was never asked to complete a parenting class. See id.
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
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).
Here, the court credited the testimony of DHS’s witnesses, and 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.
Moreover, Father cannot or will not remedy this situation. As noted above, 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) before assessing the
determination under Section 2511(b), and we, therefore, need not address
any further subsections of Section 2511(a). In re B.L.W., 843 A.2d at 384.
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). The
requisite analysis is as follows.
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Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[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. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quotation
marks and citations omitted).
Father argues that DHS presented insufficient evidence that termination
of his parental rights was in Children’s best interests, and further argues that
DHS failed to present evidence regarding the negative effects that terminating
his parental rights would have on Children. See Father’s brief at 23.
Accordingly, Father contends that terminating his parental rights would sever
a necessary and beneficial bond. See id. at 24.
The trial court found that termination of Father’s parental rights was in
the best interests of Children pursuant to Section 2511(b). See Trial Court
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Opinion, 5/8/19, at 4. The court emphasized Children’s need for stability and
continuity. See N.T., 11/15/18, at 33-34.
The record supports the trial court’s conclusion. Mohammad testified
that, during visits, Children and Father greeted each other by hugging and
kissing, and Father was engaged with Children. See N.T., 9/14/18, at 104.
However, Children did not tell Father they miss him. See id. Similarly,
Mohammad observed that Children were excited to see Father but do not cry
when he leaves and do not suggest they want to leave with Father. See id. at
121-22. Moreover, counsel for Children indicated that Children are happy
living with their paternal grandmother, and did not indicate they wanted to
return to Father. See N.T., 11/15/18, at 27.
In contrast, Father testified that he raised Children since birth, Children
refer to him as “dad,” and Children want to return home. See N.T., 11/15/18,
at 12-14. Father further testified that he wants to be reunited with Children
and shares a bond with them. See id.
The credited testimony supports the trial court’s decision that it would
best serve the needs and welfare of Children to involuntarily terminate
Father’s parental rights pursuant to Section 2511(b). Preserving Father’s
parental rights would serve only to deny Children the permanence and stability
to which they are entitled. See In re Adoption of C.D.R., 111 A.3d at 1220
(“Clearly, it would not be in [the child’s] best interest for his life to remain on
hold indefinitely in hopes that [Father] will one day be able to act as his
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parent.”). Accordingly, the trial court did not err in terminating Father’s
parental rights to Children pursuant to Section 2511(b).
In his final issue, Father argues the trial court erred in changing
Children’s permanent placement goals to adoption because the court failed to
give primary consideration to the physical and emotional needs and welfare
of Children. See Father’s brief at 17, 25. Father also argues that he
substantially remedied the conditions that led to Children’s placement and
maintains a bond with Children. See id. at 21-22.
The Juvenile Act governs proceedings to change a child’s permanent
placement goal. See 42 Pa.C.S.A. §§ 6301-6375. Trial courts must apply the
following analysis:
Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child’s safety; and (7) whether the child has been in placement
for at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent, must
guide the trial court. As this Court has held, a child’s life simply
cannot be put on hold in the hope that the parent will summon
the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted). We review the court’s ruling to ensure it is supported by
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evidence of record and to determine if it constitutes an abuse of the court’s
discretion. See In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
Although the trial court did not specifically address this issue in its
opinion, our review of the record supports the trial court’s orders changing
Children’s permanent placement goals to adoption. At the time of the
proceedings, Children had been in foster care for nearly two years. Father
failed to demonstrate an ability to parent Children during their time in care.
Accordingly, it is clear that Father will not be in a position to provide Children
with a safe and permanent home at any point in the foreseeable future.
Therefore, we discern no abuse of discretion by the court in changing
Children’s permanent placement goals from reunification to adoption.
Accordingly, we affirm the decrees involuntarily terminating Father’s
parental rights, and the orders changing Children’s permanent placement
goals to adoption.
Decrees affirmed; Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/19
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