In the Int. of: I.M.H., a minor, Appeal of: A.H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: I.M.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.H., FATHER
No. 1992 EDA 2014
Appeal from the Decree June 10, 2014
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000251-2014
FID: 51-FN-274859-2009
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 10, 2015
Appellant, A.H. (Father), appeals from the June 10, 2014 decree
involuntarily terminating his parental rights to his daughter, I.M.H., born
June 2010.1 After careful review, we affirm.
We summarize the relevant factual and procedural history of this case
as follows. The Philadelphia Department of Human Services, Children and
Youth Division (DHS), became involved with this family in September 2012,
upon receipt of a report alleging that I.M.H. sustained head injuries while in
the care of a friend of Mother. N.T., 6/10/14, at 7-10. On September 25,
2012, I.M.H. was placed in the custody of DHS. Trial Court Opinion,
1
By decree dated July 17, 2014, the trial court voluntarily terminated the
parental rights of I.M.H.’s mother, C.M.S. (Mother). Mother did not file a
notice of appeal.
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8/13/14, at 2.2 It is undisputed that, at the time of her placement, I.M.H.
was residing in the care of Mother and not Father.
On October 9, 2012, I.M.H. was adjudicated dependent. At the time of
her adjudication, Father was residing in a one-bedroom apartment with his
paramour, and he was attending an outpatient substance abuse treatment
program at North East Treatment Center (NET). Id.
The record reveals that Father has a long history of drug-related
crimes. N.T., 6/10/14, at DHS Exhibit 9. In October 2012, shortly after
I.M.H.’s placement, Father was again arrested for a drug-related crime, to
which he pleaded guilty, and was sentenced to a minimum sentence of
eleven months’ incarceration and three years’ probation. Id.
DHS established the following family service plan (FSP) goals for
Father: to participate in programs through the Achieving Reunification
Center (ARC), including, but not limited to, employment assistance; to
participate in parenting classes; to obtain a General Educational
Development Test; to obtain appropriate housing; to participate in
outpatient drug and alcohol treatment at NET; and to participate in
supervised visits with I.M.H. N.T., 6/10/14, at 11, 16, 21. In addition,
Father was directed to undergo a drug screen at the Clinical Evaluation Unit
(CEU) and to participate in all recommendations. Id. at 12.
2
The trial court’s opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) is unpaginated. Therefore, we have assigned each page
a corresponding page number for ease of reference.
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On May 27, 2014, DHS filed a petition for the involuntary termination
of Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b). A hearing was held on June 10, 2014, during which DHS
presented the testimony of its caseworker, Tracy Duckery, and the Catholic
Social Services worker, Rolanda Johnson. Father testified on his own behalf.
On June 10, 2014, the trial court involuntarily terminated Father’s
parental rights pursuant to Section 2511(a)(1), (2), (5), (8), and (b). On
July 7, 2014, Father filed a timely notice of appeal and a concise statement
of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2)(i). On August 13, 2014, the trial court filed its Rule
1925(a) opinion.
On appeal, Father raises one issue for our review
1. Did the trial court err in determining it was in the
best interest of the child to terminate [F]ather’s
parental rights?
Father’s Brief at 5.
We review a termination order according to the following standard of
review.
[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., 9 A.3d 1179, 1190 (Pa.
2010). If the factual findings are supported,
appellate courts review to determine if the trial court
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made an error of law or abused its discretion. Id.;
R.I.S., 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., 34 A.3d 1, 51 ([Pa.] 2011); Christianson v.
Ely, 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., [supra]. 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, 650 A.2d
1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012) (parallel citations
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Our case law has made clear that under Section
2511, the court must engage in a bifurcated process
prior to terminating parental rights. Initially, the
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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), citing
23 Pa.C.S.A. § 2511. The burden is on the petitioner to prove by clear and
convincing evidence that the asserted statutory grounds for seeking the
termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009).
Instantly, we conclude the orphans’ court properly terminated Father’s
parental rights pursuant to 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
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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), (b); see also In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc) (stating that this Court need only agree with
any one subsection of Section 2511(a), in addition to Section 2511(b), in
order to affirm the termination of parental rights), appeal denied, 863 A.2d
1141 (Pa. 2004).3
3
Sections 2511(a)(5) and (8) do not provide a basis for the termination of
Father’s parental rights because I.M.H. was not removed from Father’s care.
See In re C.S., 761 A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (stating
that termination under subsections (5) and (8) is not appropriate where the
child was not in the appellant’s care, and therefore could not have been
removed from the appellant’s care); In re Z.P., 994 A.2d 1108, 1118 (Pa.
Super. 2010) (holding that “a court may terminate parental rights under
subsection (a)(2), even where the parent has never had physical custody of
the child[]”).
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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) (citation omitted). “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).
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows.
Subsection 2511(b) focuses on whether termination
of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa.Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists.
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In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Father argues that the record evidence does not support
the decree terminating his parental rights because he has met his FSP goals
with respect to housing, drug and alcohol treatment, parenting classes, and,
“up until the last several months, was visiting his daughter regularly.”
Father’s Brief at 12. Upon review, we discern no abuse of discretion.
Although Tracy Duckery, the DHS caseworker, testified that Father
completed his FSP goal regarding parenting classes, the record reveals that
Father last saw I.M.H. in December 2013, which was approximately five
months before DHS filed the petition for involuntary termination. N.T.,
6/10/14, at 21. Rolanda Johnson, the social worker at Catholic Social
Services who supervised Father’s visits, testified that Father had participated
in visits with I.M.H. twice per week throughout the history of this case. Id.
at 45. Johnson testified that, prior to December 2013, Father’s attendance
“was pretty good then. He was coming[.]” Id. Further, Johnson testified
that the visits between Father and I.M.H. went well. Id. at 46. When
questioned on cross-examination by the Child Advocate as to why he cannot
visit I.M.H. anymore, Father responded, “There aint [sic] no reason.” Id. at
60. However, Father testified he has another child who is three years old
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whom he continues to see. Id. at 61. Father’s testimony continued as
follows.
[CHILD ADVOCATE]: Why would you see that child
and not see [I.M.H.]?
A. I don’t have to go through too much BS. I could
just go see him.
Id.
With respect to the FSP drug and alcohol treatment goals, Duckery
testified that the CEU issued a report of noncompliance in January 2013
because Father had a positive drug screen. Id. at 34. The CEU issued a
second report of noncompliance in April 2013, for failure to attend. Id. at
32. Duckery testified that Father’s probation requires him to obtain drug
treatment through NET, but that Father has failed to sign a consent form
permitting NET to provide information, so she does not know if he is
currently compliant. Id. at 37-38. Father testified he participates in drug
and alcohol treatment at NET once per week. Id. at 53.
With respect to the housing goal, Father testified he has lived in two
separate residences in the last two or three years. Id. at 64. Father
testified he currently resides in a two-bedroom apartment. Id. Duckery
testified she requested to look at his new apartment, but Father told her
“that at this point it wasn’t necessary.” Id. at 20. Upon inquiry by the Child
Advocate, Father implied he did not let Duckery visit because, “I don’t plan
on being there for too long.” Id. at 64.
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Duckery also testified that Father failed to comply with his FSP goal
involving job training and employment through ARC because Father “said he
wished to look [for a job] on his own.” Id. at 16-17. Father testified he is
unemployed, but he is looking for work. Id. at 52-53.
The foregoing testimonial evidence demonstrates that Father’s
repeated and continued neglect or refusal to satisfy his FSP goals has caused
I.M.H. to be without essential parental care, control or subsistence necessary
for her physical or mental well-being. Further, the causes of Father’s
neglect or refusal to satisfy his FSP goals cannot or will not be remedied.
Indeed, at the time of the termination hearing, I.M.H. was nearly four years
old and had been in placement for more than 20 months. Father was on
probation at the time of the termination hearing for a drug-related crime
committed after I.M.H.’s placement. Father had not participated in
supervised visits with I.M.H. for six months, had unstable housing, was
noncompliant with drug treatment at the CEU, did not accept employment
assistance through ARC, and he remained unemployed. We conclude that
this evidence adequately supports termination pursuant to Section
2511(a)(2).
With respect to Section 2511(b), Father argues he shares a bond with
I.M.H. In the alternative, Father asserts there was insufficient evidence with
respect to whether a bond exists between him and I.M.H. We disagree.
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Our Supreme Court confirmed 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.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). The
Court further stated that, “[c]ommon sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” Id. at 268
(citation omitted). Moreover, the Court directed that, in weighing the bond
considerations pursuant to section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The Court observed that,
“[c]hildren are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When courts fail …
the result, all too often, is catastrophically maladjusted children.” Id.
In this case, the testimonial evidence demonstrates that, although a
bond on some level had started to develop between Father and I.M.H. during
supervised visits, Father and I.M.H. do not share a parent-child bond. N.T.,
6/10/14, at 26-27, 42, 48. Rather, a parent-child bond exists between the
foster mother and I.M.H., with whom she has resided since placement. Id.
at 26, 47-48. In fact, Johnson testified that it would harm I.M.H. if she was
removed from her foster mother. Id. at 47. In contrast, Johnson and
Duckey both testified that there would be no harm to I.M.H. if Father’s
parental rights were terminated. Id. at 27, 48. Further, to the extent
Father asserts that DHS did not satisfy its burden of proof because there was
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no bonding evaluation performed, it is well-settled that “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, 1115-1116 (Pa. Super.
2010) (internal citations omitted). As such, Father’s issue fails with respect
to Section 2511(b).
Based on the foregoing, we conclude the trial court did not abuse its
discretion when it involuntarily terminated Father’s parental rights pursuant
to Section 2511(a)(2) and (b). See S.P., supra. Accordingly, we affirm the
trial court’s June 10, 2014 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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