In Re: A.J.B., A Minor, Appeal of: K.B.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.B., NATURAL FATHER : No. 1387 WDA 2016
Appeal from the Order Entered August 19, 2016,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-0000071-2016
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 15, 2017
K.B. (“Father”) appeals from the order entered August 19, 2016, in the
Court of Common Pleas of Allegheny County, Orphans’ Court Division,
granting the petition of the Allegheny County Office of Children, Youth and
Families (“OCYF”) and involuntarily terminating his parental rights to his
minor, dependent daughter, A.J.B. (the “Child”), born in December of 2014,
pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).1,2
After review, we affirm.
1
By the same order, the trial court also involuntarily terminated the parental
rights of Child’s mother, S.J.S. a/k/a S.J.L. a/k/a S.L. (“Mother”), also
pursuant to Section 2511(a)(2), (5), (8), and (b), as well as Child’s legal
father, Mother’s former husband, S.L. (“Legal Father”), pursuant to
Section 2511(a)(3) and (b). Counsel for Legal Father sent a letter in
response to OCYF’s termination petition, advising that Legal Father waived
any potential rights to Child and would not oppose the petition and/or
appear for hearing. (See Exhibit CYF 1.) Neither Mother nor Legal Father
have appealed, nor are they parties to this appeal.
2
We note that the guardian ad litem filed a brief in support of the
termination of Father’s parental rights.
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The trial court summarized the relevant procedural and factual history,
in part, as follows:
Child first came to the attention of OCYF after Mother
tested positive for opiates at the time of Child’s birth.
The Child tested positive for morphine and codeine.
The Child came into care via an Emergency Custody
Authorization on December 29, 2014. Father had
pending criminal charges at the time of the Child’s
release. The Child was placed with Paternal
Grandparents on that date.
A Shelter Hearing was held on January 2,
2015, where the Child was ordered to remain with
Paternal Grandparents and Father was given
supervised visits three times per week. On March 4,
2015, the Child was adjudicated dependent pursuant
to 42 Pa.C.S. § 6302 Dependent Child (1). Father
was incarcerated at the time and agreed to the fact
that he was not ready, willing, and able to care for
the Child. Father[] was given one visit per week at
the OCYF office. Father was ordered to have a Drug
and Alcohol evaluation and comply with
recommendations, submit to random drug screens,
attend Domestic Violence classes, enroll in Anger
Management treatment, and complete Parenting
classes.
....
At the dependency adjudication on March 4,
2015, Father was given visitation once a week at the
OCYF office. Father’s visits were then increased on
September 2, 2015, to two times per week. . . .
Father was consistent in his visitation prior to
incarceration on October 23, 2015. On May 25,
2016, this Court permitted Father to have contact
visits with the Child in jail once per month. Father
had a visit with the Child on July 21, 2016.
Father has an extensive criminal record in both
Allegheny County and Washington County. On
January 7, 2016, Father was sentenced for DUI,
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Burglary, Aggravated Assault, Unlawful Restraint,
Terroristic Threats, Reckless Endangerment, Criminal
Mischief, and Conspiracy. On March 2, 2016, Father
pled guilty to Manufacture, Delivery, or Possession
with Intent to Manufacture or Deliver, and
Conspiracy. Charges for Intentional Possession of a
Controlled Substance, Use or Possession of Drug
Paraphernalia, and Resisting Arrest were
nolle prossed. Father’s minimum date of release is
October 2019. Father’s maximum date of release is
October 2023. He is presently incarcerated at SCI
Mercer.
Trial court opinion, 11/14/16 at 2-4 (footnotes omitted; citations to record
omitted).
The trial court held regular permanency review hearings in this matter.
Throughout these reviews, the trial court maintained Child’s commitment
and placement, and permanency goal.
On April 15, 2016, OCYF filed petitions to involuntarily terminate
parental rights. Thereafter, the trial court conducted a hearing on
August 19, 2016. In support of its petitions, OCYF presented the testimony
of OCYF caseworker, Patrick Houy. Further, counsel stipulated to the
admission of the reports of Eric Bernstein, PsyD.,3 and Terry O’Hara, Ph.D.,4
psychologists who conducted individual and interactional evaluations of
Mother, Father, and Child, and an interactional evaluation of
3
Dr. Bernstein’s report subsequent to evaluations on April 2, 2016 and
April 7, 2016, was marked and admitted as Exhibit CYF 7.
4
Dr. O’Hara’s report subsequent to evaluation on May 2, 2016, was marked
and admitted as Exhibit CYF 8.
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Paternal Grandparents and Child, respectively. (Notes of testimony, 8/19/16
at 62-63.) Father presented the testimony of Arsenal Family and Children’s
Center parent mentor, Margaret McGroarty.5 Father additionally testified on
his own behalf. Mother, although not present, was represented by counsel.
By order entered August 19, 2016, the trial court involuntarily
terminated Father’s parental rights to Child.6 On September 16, 2016,
Father, through appointed counsel, filed a timely notice of appeal. Father,
however, did not file a concise statement of errors complained of on appeal
with his notice of appeal, as required by Pa.R.A.P. 1925(a)(2)(i) and (b). 7
By order dated September 27, 2016, this court directed Father to file and
serve a statement of errors complained of on appeal, no later than
October 6, 2016. On October 12, 2016, this court dismissed Father’s appeal
sua sponte, due to noncompliance. Thereafter, pursuant to application, on
October 24, 2016, this court reinstated Father’s appeal. Father, through
5
Upon review of Ms. McGroarty’s Individual Parent-Child Mentoring Report,
it is believed that her name is incorrectly referred to in the notes of
testimony as Martha. (See Father’s Exhibit A.)
6
The trial court announced its decision, memorialized by subsequent order,
on the record at the conclusion of the hearing on April 19, 2016.
7
In children’s fast track matters, such as this matter, a concise statement of
errors complained of on appeal is required to be submitted with the notice of
appeal. Pa.R.A.P. 1925(a)(2)(i).
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appointed counsel, filed a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) on the same date. 8
On appeal, Father raises the following issue for our review:
Whether the Trial Court abused its discretion and/or
err[ed] as a matter of law by determining that
termination of Father’s parental rights would meet
the needs and welfare of the child under
Section 2511 (b), in spite of witness testimony to the
contrary showing a strong bond between father and
daughter[?]
Father’s brief at 7.
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., 47 A.3d 817, 826 (Pa.
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
8
As Father ultimately filed a statement on the same date as the
reinstatement of his appeal, only approximately one month after Father was
originally ordered by this court to file a statement, we do not penalize him.
See In re K.T.E.L., 983 A.2d 745 (Pa.Super. 2009) (failure to file a
Rule 1925(b) statement concurrently with a children’s fast track appeal is
considered a defective notice of appeal, to be disposed of on a case-by-case
basis, and will not be dismissed since failure to file the statement is a
violation of a procedural rule); cf. Mudge v. Mudge, 6 A.3d 1031
(Pa.Super. 2011), and J.M.R. v. J.M., 1 A.3d 902 (Pa.Super. 2010) (failure
to file a Rule 1925(b) statement, when ordered by Superior Court, will result
in a waiver of all issues on appeal).
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not be reversed merely because the record would
support a different result. Id. 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., 9
A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 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 guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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 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
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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, 708 A.2d 88, 91 (Pa. 1998).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), and (8), as well as (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). In re B.L.W., 843 A.2d 380,
384 (Pa.Super. 2004) (en banc). Here, Father does not challenge the trial
court’s finding of grounds for termination under Section 2511(a). We,
therefore, analyze the court’s termination pursuant to Section 2511(b) only,
which provides as follows:
(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
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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(b).
With regard to Section 2511(b), the Pennsylvania Supreme Court has
stated as follows:
[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. § 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.,
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. However, as discussed
below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “[I]n cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis necessarily
depends on the circumstances of the particular case.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (citations omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
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well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010), citing
In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008) (internal citations
omitted).
Moreover,
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. . . .
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015), quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (quotation marks and
citations omitted).
Instantly, in examining Section 2511(b) and determining whether
termination of Father’s parental rights serves Child’s needs and welfare, the
trial court reasoned as follows:
Here, this Court judiciously evaluated the bond
between Father and Child and determined that there
was no indication that an emotional bond exists to
the extent that the termination of parental rights of
Father would cause Child to suffer extreme
emotional consequences. In reaching this
conclusion, this Court weighed the totality of the
circumstances and relied upon the testimony of
Mr. Houy, and expert reports of Dr. Eric Bernstein,
Psy.D., (hereinafter, “Dr. Bernstein”), psychologist
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for Allegheny Forensic Associates, and Dr. Terry
O’Hara, Ph.D., (hereinafter “Dr. O’Hara[”]),
psychologist for Allegheny Forensic Associates.
Trial court opinion, 11/14/16 at 6 (citation omitted).
This Court was within its discretion when it
determined that severing the Child’s bond with
Father would not cause extreme emotional
consequences. Any detriment that the child would
have suffered from termination has already occurred
because of Father’s incarceration and absence from
her life. Paternal Grandparents provide the Child
with much needed stability and permanence.
Therefore, considering the [totality of the
circumstances], this Court concludes that the
developmental, physical, and emotional needs and
welfare of the Child would be best served by
terminating Father’s parental rights.
Id. at 8-9.
Father, however, argues that the trial court abused its discretion in
determining termination of his parental rights satisfied Child’s needs and
welfare pursuant to Section 2511(b), despite evidence of a “strong bond”
between him and Child. (Father’s brief at 11.) Father avers that he
consistently attended visits with Child, which were positive. Further, he
attempted to maintain contact with Child after his incarceration. (Id. at 12.)
Likewise, Father successfully completed Arsenal Family and Children’s Center
parenting program. (Id.) Therefore, Father posits, “The only way to ensure
continued contact between the child and [her f]ather is to allow Father to
maintain his parental rights. . . . [T]he possibility of future contact between
Father and [Child], which contact best serves the child’s needs and welfare,
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is in jeopardy unless Father’s parental rights are reinstated.” (Id. at 14.)
We disagree.
Upon review, the record supports the trial court’s finding that Child’s
needs and welfare favor termination of Father’s parental rights.
Significantly, at the time of the hearing, Child had been out of parental care
for a total of 20 months. (Notes of testimony, 8/19/16, at 51.) Although
Father had visitation, it remained supervised. (Id. at 44.) Further, Father
only had one visit with Child since October 2015 due to Father’s
incarceration. (Id. at 45-46, 55-56, 60-62.)
Moreover, while Dr. Bernstein, who conducted an individual evaluation
of Father and interactional evaluation of Father and Child, noted that Father
interacted well with Child, he expressed concern. (Exhibit OCYF 7 at 5, 8-9.)
As observed, Father “approached his daughter with animation and affection.
He gave her attention and support as he held her.” (Id. at 5.) In fact,
Dr. Bernstein indicated a “gentleness” about Father as it related to Child.
(Id. at 8.) Nonetheless, as described by Dr. Bernstein, “[Father] spoke
coarsely and with brimming anger. He appeared to be quite reactive and
impulsive to the extent that if and when challenged by his perception he
would likely react with physical confrontation and threatening behavior. He
appears to be particularly sensitive to any perceived judgment or hostility.”
(Id.) Therefore, Dr. Bernstein further summarized his impressions of Father
and their potential affect and impact as follows:
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[Father] presented as an intense, easily angered,
and reactive adult who is susceptible to
confrontation. To the extent that he distrusts
others, feels isolated and alienated by others and
constantly judged by others, he is likely to continue
struggling with the intense anger and discovering
himself in positions of difficulties with the law. . . . If
he is to be incarcerated, his access to his daughter
would be compromised and thus his daughter would
be without his potential to positively influence her in
her life. I also have concerns about the way in which
[Father] communicates to the extent that as much
as he presented sensitively in interaction with his
daughter, I am unsure as to how he would ultimately
influence her with the free use of profanity laden
with intense anger. . . .
Id. at 9.
Dr. Bernstein diagnosed Father with Cannabis Dependence; Mood
Disorder NOS; and Personality Disorder, “Provisional” with Antisocial
Paranoid Features. (Id. at 8.) He recommended domestic violence classes
to “increase awareness of the importance of communication” and how to
“role model . . . by effectively problem solving without the flirting with
violence,” as well as therapy focusing on communication and anger
management. (Id. at 9.)
Furthermore, Child is in a pre-adoptive home with Paternal
Grandparents with whom she has formed a positive, strong, and supportive
relationship. (Notes of testimony, 8/19/16 at 53-54.) As testified by OCYF
caseworker Patrick Houy, “[Child]’s doing very well in the home. . . . She
has a good, strong bond with the grandparents. She looks to them for
attention, has a good relationship with them, and she’s just overall doing
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very well.” (Id. at 53.) He further stated that, “she turns to them for
attention when needed, for comfort if she slips and falls and stuff like that,
and she just responds very well to them, and you can tell she has a good
nurturing relationship with them.” (Id.) As assessed by Mr. Houy, Child is
“happy.” (Id. at 54.)
Likewise, Dr. O’Hara, who performed an interactional evaluation of
Paternal Grandparents and Child, highlighted Paternal Grandparents’ positive
parenting skills, as well as a bond between Paternal Grandparents and Child.
(Exhibit OCYF 8 at 5-7.) Specifically, as it relates to parenting skills,
Dr. O’Hara noted, “[Paternal Grandparents] exhibited several positive
parenting skills, as they were calm and relaxed with [Child], praised her, and
interacted well with her. [Paternal Grandmother] appropriately supervised
[Child], was playful and interactive with her, redirected her well, and
distracted her appropriately.” (Id. at 6.) In addition, and of importance,
Dr. O’Hara observed a bond between Paternal Grandparents and Child.
This examiner noted [Child] to exhibit several
components of a secure attachment with [Paternal
Grandparents]. For example, she utilized [Paternal
Grandmother] as a secure base, where she
“checked in” with [Paternal Grandmother], especially
during the first part of the evaluation. Further, she
spontaneously and frequently directed herself to
[Paternal Grandparents], was euthymic throughout
the evaluation, often smiled, and showed curiosity
and autonomy.
Id.
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Referencing Paternal Grandparents’ stability, as well as positive
parenting skills, Dr. O’Hara recognized, “[Child]’s progress thus far is, at
least in part, a reflection of [Paternal Grandparents’] care of her.” (Id. at
7.) While acknowledging Paternal Grandparents’ age, he indicated a lack of
evidence that “[Paternal Grandparents] are not able to reasonably care for
[Child]’s needs and welfare at this time and/or in the near future.” (Id.) As
a result, Dr. O’Hara opined that Paternal Grandparents outweighed any
possible detriment caused by the termination of parental rights. (Id. at 7.)
Thus, we conclude that the trial court did not abuse its discretion in
finding termination of Father’s parental rights serves Child’s needs and
welfare pursuant to Section 2511(b).
Accordingly, based on the foregoing analysis of the trial court’s
termination of Father’s parental rights, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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