In the Interest of: Z.V.G., a Minor

J-A05037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.V.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.G., FATHER :
:
:
:
: No. 2578 EDA 2017
Appeal from the Order Entered July 18, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000329-2017,
CP-51-DP-0000686-2015
IN THE INTEREST OF: G.L.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.G., FATHER :
:
:
:
: No. 2580 EDA 2017
Appeal from the Order Entered July 18, 2017
in the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000330-2017,
CP-51-DP-0000687-2015
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 02, 2018
Appellant, D.G. (“Father”), files these consolidated appeals from the
orders entered on July 18, 2017, in the Philadelphia County Court of Common
Pleas, granting the petition of the Department of Human Services (“DHS”) and
involuntarily terminating his parental rights to his minor, dependent children,
Z.V.G., a female born in April of 2011, and G.L.G., a male born in October of
____________________________________
* Former Justice specially assigned to the Superior Court.
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2012 (collectively, the “Children”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)(1), (2), and (b).1 Father further appeals from the orders entered
July 18, 2017 changing the Children’s permanency goals to adoption pursuant
to the Juvenile Act, 42 Pa.C.S.A. § 6351.2 In addition, on December 3, 2017,
counsel for Father filed an Anders3 brief, averring the within appeal is
frivolous, as well as a petition to withdraw. After review, we grant counsel’s
petition to withdraw and affirm the trial court’s termination orders.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
On March 17, 2015, the Department of Human Services
(DHS) received a Child Protective Services (CPS) Report alleging
that [G.L.G.] went to school with a fist-shaped bruise on his left
cheek, temple, and forehead area; that Mother[]’s, paramour,
A.C., had hit the [c]hild; that [Z.V.G.] had suffered a four-inch
untreated cut on the palm of her right hand when A.C.[] kicked
her down the steps; that both of these injuries occurred over the
weekend of March 14-15, 2015; that it was unknown if Mother
was present at the time of the incidents; that there were 6-7
previous injuries that were documented for G.L.G.; that on
November 19, 2014. G.L.G.[] had an unexplained bruise on his
____________________________________________
1 By separate orders entered October 3, 2017, the trial court voluntarily
terminated the parental rights of the Children’s mother, V.C. (“Mother”).
Mother has not filed an appeal and is not a party to the instant appeal.
2 Our review of the record reveals that no goal change took place until October
3, 2017. Critically, the court did not indicate at the conclusion of the
termination/goal change hearing that it would be changing the Children’s goal,
and the court’s July 18, 2017 permanency review orders maintained the
Children’s goal as return to parent or guardian. Accordingly, we address only
the termination of Father’s parental rights.
3 Anders v. California, 386 U.S. 738 (1967).
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face and Mother stated that the [c]hild had hit himself in the face
with a nunchuck; that on February 9, 2015, G.L.G.[] had a green,
purple and red bruise on his face and Mother stated that it was
the result of the [c]hild falling over the weekend; that on February
13, 2015, G.L.G.[] had a bruise on his left eye and head, and
Mother stated it had occurred when [G.L.G.] and his sister were
fighting with each other; that on February 19, 2015, G.L.G.[] had
scratches on his face; and that on February 20, 2015, G.L.G.[]
had diaper rash. The [r]eport further alleged that A.C.[] appeared
intoxicated one day when he visited the Children’s daycare: that
A.C.[] suffered from substance use; and [] Mother was employed.
A.C.[] is the [f]ather of Mother’s other [c]hild, S.C. The [r]eport
was determined as valid. (Exhibit “A” Statement of Facts,
attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 3/15/2017, ¶ “a”).
On March 17, 2015, DHS contacted Mother and she denied
the allegations of the CPS Report. (Exhibit “A” Statement of Facts,
attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 3/15/2017, ¶ “b”).
On March 18, 2015, DHS visited Mother’s three [c]hildren at
their daycare. DHS learned that Z.V.G. and G.L.G.[] began
attending the daycare on October 22, 2014, and the other [c]hild,
S.C., began attending on February 13, 2015; that there were eight
incidents of injuries in the past regarding G.L.G.[,] and one
incident regarding Z.V.G.; that A.C.[] arrived at the daycare
intoxicated on several occasions to retrieve the Children, most
recently on 3/13/2015; that Mother arrived moments later, and
that A.C.[] yelled at Mother and Mother hurried away from the
daycare with her [c]hildren; that G.L.G.[] was observed to run
away from A.C.[] in fear; and that S.C.[] had a rash on both of
her cheeks but Mother did not provide the daycare with any
medication. (Exhibit “A” Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed
3/15/2017, ¶ “c”).
On March 18, 2015, DHS spoke to Z.V.G.[] and she stated
that A.C.[] had recently pushed her down the steps and had
burned her hand on the stove in the past. She stated that both
incidents happened in Mother’s presence. The [c]hild also stated
that A.C.[] had punched G.L.G.[] in the face and hit S.C. when
she did not stop crying. The [c]hild stated that she was fearful of
A.C. DHS observed that G.L.G.[] had a fading bruise on the left
side of his face and 5-6 scratches on the right side of his face.
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(Exhibit “A” Statement of Facts, attached to DHS Petition for
Involuntary Termination of Parental Rights, filed 3/15/2017, ¶
“d”).
DHS had also received allegations of domestic violence
between Mother and A.C., and that Mother also hit Z.V.G. and
G.L.G. (Exhibit “A” Statement of Facts, attached to DHS Petition
for Involuntary Termination of Parental Rights, filed 3/15/2017,
“e”).
On March 18, 2015, DHS contacted Z.V.G. and G.L.G.’s
Father, D.W.G., Jr., by telephone. Father indicated that he
worked at night and that he would be moving in two weeks to
reside with his paramour, who could care for the Children while he
worked. Father stated that he was in New Jersey at the time of
the call and that he was unable to retrieve the Children. Father
admitted that he had seen the gash on Z.V.G.’s right hand on
3/15/2015 and that G.L.G.[] had not had any marks on his face
when he saw him that day. Father further stated that Mother told
him that Z.V.G.[] had exaggerated about the incident. (Exhibit
“A” Statement of Facts, attached to DHS Petition for Involuntary
Termination of Parental Rights, filed 3/15/2017, ¶ “f”).
On March 18, 2015, DHS met with Mother, who initially
denied that A.C.[] was abusive to the Children, but subsequently
stated that she would tell A.C.[] not to hit her [c]hildren anymore.
Mother admitted that there was domestic violence between herself
and A.C., who resided with Mother. Mother identified the
Children’s [m]aternal [g]randmother, V.C., as a possible
caregiver. (Exhibit “A” Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed
3/15/2017, ¶ “g”).
On March 18, 2015, DHS obtained an Order of Protective
Custody (OPC) for the Children, and they were placed in the care
of V.C., Maternal Grandmother. The Children were also taken to
St. Christopher’s Hospital to be evaluated. It was determined
S.C.[] had a bad cold and was prescribed medication; that
G.L.G.[] had old marks on both sides of his back, and that Z.V.G.[]
had swelling above her left eye. (Exhibit “A” Statement of Facts,
attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 3/15/2017, ¶ “h”).
On March 18, 2015, Community Umbrella Agency (CUA),
Turning Points for Children (TP4C), implemented in-home services
for this family. (Exhibit “A” Statement of Facts, attached to DHS
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Petition for Involuntary Termination of Parental Rights, filed
3/15/2017, ¶ “i”).
A Shelter Care Hearing was held on March 20, 2015, for both
[c]hildren, before Juvenile Court Hearing Officer, William T. Rice.
The [c]ourt issued an Order lifting the OPC, and the legal custody
of the Children was transferred to DHS. Placement of the Children
to remain in [f]oster [c]are. DHS to do home evaluation on the
parent’s home [sic]. Mother is to have supervised line[-]of[-]sight
visits with the Children, and Father, D.W.G., Jr., is to have weekly
supervised visits with his [c]hildren. Children are safe as of
3/18/2015. (Shelter Care Orders, 3/20/2015).
On March 24, 2015. DHS received a CPS Report which
alleged that A.C.[] had sexually abused Z.V.G.[] on multiple
occasions; that A.C.[] may have threatened to kill the [c]hild if
she disclosed the sexual abuse; that blood had been observed in
both the [c]hildren’s beds; that Mother was aware of the blood in
her [c]hildren’s beds and had stated that the blood had come from
the Children’s nose bleeds; however, it was noted that the amount
of blood was significant. The [r]eport also alleged that A.C.[] was
physically abusive towards the Children; that DHS had removed
the Children from Mother’s care; that the Children were presently
residing with their [m]aternal [g]randmother; that it was
suspected that A.C.[] continued to live in Mother’s home;
however, Mother denied that A.C.[] lived with her; that A.C.[]
used drugs; that domestic violence existed between Mother and
A.C.; and that the domestic violence had been witnessed by the
Children. The [r]eport further alleged that Mother was employed;
that Mother worked long hours and often left the Children in the
care of A.C.; that it was apparent that Mother loved her [c]hildren;
however, that Mother was in denial regarding the abuse
committed by A.C.[] towards her [c]hildren. The [r]eport was
determined as valid. (Exhibit “A” Statement of Facts, attached to
DHS Petition for Involuntary Termination of Parental Rights, filed
3/15/2017, ¶ “l”).
A hearing was held on April 9, 2015, and [a]djudication was
deferred on both [c]hildren. Children reside with Maternal
Grandmother in [k]inship [c]are. Father resides [in] Levittown,
PA, 19057, and is referred to CEU [Clinical Evaluation Unit] for
substance assessment to include alcohol-forthwith screen and
monitoring. DHS to conduct a forthwith home assessment of
Father’s home, and all occupants over the age of 14 years.
Temporary [c]ommitment [s]tands. Mother’s visits are to remain
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line-of-sight supervised visits. Both [c]hildren were safe as of
3/21/2015. (Continuance Orders, 4/09/2015).
Adjudicatory Hearings were held for both [c]hildren on April
23, 2015, before the Honorable Allan L. Tereshko. Legal Custody
of the Children remains with DHS, and placement of the Children
remains in [k]inship [c]are. Both [c]hildren [a]djudicated
[d]ependent. Mother to continue line-of-sight visits supervised at
the Agency. Father may have unsupervised visits in the
community, which may be further modified by agreement of the
parties. Father is not to take Children to visit Mother. CUA to
follow up with all residents in Father’s home forthwith. Children[]
safe as of 4/15/2015. (Orders of Adjudication and Disposition-
Child Dependent, 4/23/2015).
On June 18, 2015, CUA-TP4C held a Single Case Plan (SCP)
Meeting. The parental objectives for Father were to: 1) attend
ARC program; 2) participate in parenting classes; and 3) call to
confirm his visits with Z.V.G. and G.L.G. Father participated in
the SCP Meeting. (Exhibit “A” Statement of Facts, attached to
DHS Petition for Involuntary Termination of Parental Rights, filed
3/15/2017, ¶ “o”).
...
On December 29, 2015, CUA-TP4C held a revised SCP
Meeting. The parental objectives established for Father were to:
1) maintain his relationship with his [c]hildren; 2) explore regular
unsupervised visits with his [c]hildren; and 3) obtain a copy of his
discharge plan from NOVA. Mother and Father participated in the
SCP Meeting. (Exhibit “A” Statement of Facts, attached to DHS
Petition for Involuntary Termination of Parental Rights, filed
3/15/2017, ¶ “v”).
...
On July 29, 2016, DHS received a CPS Report which alleged
that A.C.[] had sexually abused the three [c]hildren on an on-
going basis; that S.C.[] had been parroting G.L.G., and was
stating that “dad hit me[,”] and that A.C.[] was awaiting trial for
sexual and physical abuse of the Children. The [r]eport alleged
that S.C.[] is currently one-year–old [sic] and is starting to
verbalize words; that Z.V.G.[] had disclosed the sexual abuse to
the Children’s [m]aternal [g]randmother and [m]aternal [a]unt;
and that the Children resided with their [m]aternal
[g]randmother. The [r]eport also alleged that the Children had
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been in the care of Mother and A.C.[] when the incidents of sexual
and physical abuse occurred; that there had been [r]eports of
domestic abuse between Mother and A.C., which were
documented via Protection from Abuse (PFA) orders in Domestic
Relations Court; and that Mother received mental health therapy.
The [r]eport further alleged that Z.V.G.[] and G.L.G.[] received
weekly trauma-focused therapy due to the sexual and physical
abuse; that S.C.[] also accompanied her siblings to their therapy
sessions; that the Children’s [m]aternal [g]randmother had
completed the necessary training through the Children’s Foster
Care Agency; and that the Children’s [m]aternal [g]randmother
had professional staff in and out of her home on a bi-weekly basis
to address all of the Children’s needs. It was alleged that Mother
remained in denial regarding the seriousness of her [c]hildren’s
sexual and physical abuse; and that Mother lacked an
understanding as to her [c]hildren’s behavior and trauma, as well
as her role in the abuse suffered by her [c]hildren. The [r]eport
was determined as valid. (Exhibit “A” Statement of Facts,
attached to DHS Petition for Involuntary Termination of Parental
Rights, filed 3/15/2017, ¶ “bb”).
...
On November 30, 2016, Father underwent a Parenting
Capacity Evaluation (PCE) at Forensic Mental Health Services, LLC.
Recommendations for Father included: 1) enroll in individual
therapy to develop an understanding of how to anticipate and plan
for his [c]hildren’s needs; 2) participate in caregiver sessions as
requested and begin to develop an understanding of the impact of
the trauma his [c]hildren experienced; and 3) re-evaluation be
conducted if Father demonstrates consistent attendance in the
aforementioned treatment and caregiver sessions for at least six
months. (Exhibit “A” Statement of Facts, attached to DHS Petition
for Involuntary Termination of Parental Rights, filed 3/15/2017, ¶
“ff”).
Trial Court Opinion (“T.C.O.”), 10/20/17, at 2-13.
The trial court held permanency review hearings in this matter on July
2, 2015, September 2, 2015, November 16, 2015, February 18, 2016, April
12, 2016, May 16, 2016, July 12, 2016, August 9, 2016, September 14, 2016,
and December 1, 2016. See Dependency dockets. Throughout these reviews,
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the trial court maintained the Children’s commitment and placement, and
permanency goal. Id.
DHS filed petitions to terminate parental rights and to change the
Children’s permanency goal on March 15, 2017. The trial court held a
combined termination/goal change hearing on July 18, 2017. At the hearing,
DHS presented the testimony of the following: Michael Flanagan, Community
Umbrella Agency (“CUA”) case manager, Turning Points for Children; Feebee
Southerland, Children’s Crisis Treatment Center (“CCTC”) trauma therapist,
who was treating Z.V.G.; Angel Winand, CCTC trauma therapist, who was
treating G.L.G.; and Dr. Erica Williams, licensed psychologist, who conducted
a parenting capacity evaluation of Father.4 DHS also presented Exhibits 1
through 12, which were marked and admitted without objection. Notes of
Testimony, 7/18/17, at 8-11. Additionally, Father testified on his own behalf.
Both a court-appointed guardian ad litem and child advocate participated in
the proceedings. By orders entered July 18, 2017, the trial court involuntarily
terminated the parental rights of Father pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), and (b).5
____________________________________________
4Dr. Williams was stipulated as an expert. N.T. at 66. She authored a report,
dated November 30, 2016, with Lauren Rosenthal, M.S., marked and admitted
as Exhibit 11.
5 These orders memorialized the decision placed by the court on the record at
the conclusion of the hearing. N.T. at 95-97.
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On August 7, 2017, Father, through appointed counsel, filed notices of
appeal, along with concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua
sponte on October 12, 2017. Counsel filed an Anders brief, as well as a
petition to withdraw, on December 3, 2017.6
On appeal, counsel’s Anders brief raises the following issue for our
review:
Whether there was a legal basis for terminating Father’s parental
rights pursuant to 23 Pa.C.S.A. [§] 2511(a)(1), (2), (5), (8), and
(b) [and] to change [the Children’s permanency] goal from
reunification to adoption[?]
Anders Brief at 6 (unnecessary capitalization omitted).7
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, “When faced with a purported Anders brief, this Court may not
review the merits of the underlying issues without first passing on the request
____________________________________________
6 The Guardian ad litem filed a letter of no response to Counsel’s Anders brief
indicating a belief that Father’s appeal is without merit. See Letter of No
Response, 12/27/17. The Child Advocate did not submit a brief or letter.
7 We observe that, in his Anders brief, Counsel stated the issues on appeal
somewhat differently from the Rule 1925(b) Statement filed with the notice
of appeal. We, nevertheless, find that Counsel has preserved challenges to
the trial court’s termination of his parental rights pursuant to Sections
2511(a)(1), (2), and (b). While Counsel additionally references subsections
(a)(5) and (a)(8), the trial court did not terminate Father’s parental rights
pursuant to these subsections.
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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 an order involuntarily
terminating parental rights may therefore petition this Court for leave to
withdraw representation and submit an Anders brief. In re S.M.B., A.M.B.,
& G.G.B., 856 A.2d 1235, 1237 (Pa.Super. 2004).
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). We further review counsel’s Anders brief for compliance with the
requirements set forth in Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (2009):
[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
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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.
Counsel has satisfied the first requirement of Anders by filing a petition
to withdraw, wherein he asserts that he has made a conscientious review of
the record and determined the appeal would be frivolous.8 Likewise, counsel
has satisfied the second requirement by filing an Anders brief that complies
with the requirements set forth in Santiago, supra. With respect to the third
requirement, counsel has attached to the petition to withdraw a copy of the
letter sent to Father advising him of his rights, and enclosing a copy of the
Anders brief. Hence, we conclude that counsel has complied with the
procedural Anders requirements. We, therefore, turn to the issue presented
in the Anders brief to make an independent judgment as to whether the
appeal is, in fact, wholly frivolous. Commonwealth v. Bynum-Hamilton,
135 A.3d 179 (Pa.Super. 2016).
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
____________________________________________
8 Although Counsel does not directly state in his petition that, after making a
conscientious examination of the record, he has determined that the appeal is
frivolous, counsel does indicate he is filing an Anders brief and references
Santiago, supra. Further, in the Anders brief, which counsel forwarded to
Father, along with the petition, counsel asserts that he has made a
conscientious examination of the record and determined the appeal is
frivolous. Anders Brief at 9, 17. We, therefore, find this requirement
satisfied.
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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. & J.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
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
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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), 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 court’s termination orders 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:
...
(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.
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...
(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
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
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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 the case at bar, in finding grounds for termination pursuant to Section
2511(a)(2), as well as Section 2511(a)(1), the trial court reasoned as follows:
This [c]ourt heard credible evidence regarding Father’s
failure to perform parental duties, and inability to remedy the
conditions which led to the Children’s removal and placement.
Case manager, Michael Flanagan, CUA Case Manager for Turning
Points for Children testified the Children were not placed with their
Father at the beginning because he told the DHS investigator that
he was in New Jersey helping someone move at the time and could
not take his [c]hildren. He stated the SCP objectives for Father
were to attend mental health therapy, attend parenting classes,
attend regular visits with the Children, and finally to comply with
the recommendations from the PCE. He stated[,] although the
Children were not living with Father at the time of removal,
[Father] needed to attend mental health therapy because of the
abuse his [c]hildren had suffered and their need for therapy. Early
reports stated that Father was aware of the physical abuse, but
he did not report it or take his [c]hildren out of Mother’s care at
the time. Mr. Flanagan engaged in conversations with Father and
[Father] admitted that he had seen evidence of physical abuse,
and stated he did not want A.C. to care for his [c]hildren.
However, he never took steps to ensure that A.C. was not in a
caregiving capacity.
Mr. Flanagan also provided credible testimony that Father
did attend mental health therapy, first at NOVA, where he did not
attend consistently, and then at Behavioral Counseling Services,
which he began on March 23, 2017. Father was also referred to
Family School for parenting classes. Father attended as ordered.
Regarding visitation, Mr. Flanagan testified Father began with
supervised visits[,] which were later changed to unsupervised.
However, the visits were returned to supervised after an incident
where Z.V.G.[] told the therapist that[,] during a visit with Father
at Burger King, people were there who she did not know and an
unknown female escorted her to the bathroom. Since then, visits
have been supervised and Father has attended consistently.
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Finally, he testified Father attended a Parenting Capacity
Evaluation, and participated in caregiver sessions with the
Children. However, he does not believe Father understands the
specifics of the abuse and what his role is as a protective
caregiver.
Dr. Erica Williams testified as an [e]xpert and provided
credible, persuasive testimony regarding Father. She conducted
a Parenting Capacity Evaluation on Father in November of 2016,
and conducted a [c]linical [i]nterview. She testified that based on
the information presented to her regarding providing safety and
her [i]nterview with him, Father was not able to affect his
[c]hildren’s safety. He had limited knowledge or[,] if he did have
knowledge, he did not follow through. And then[,] there were
multiple areas that without coaching he simply didn’t understand.
It is her understanding that these things continue to be an issue
even beyond being coached. So even with that immediate help,
Father is not able to do these things, and is not able to provide
that daily safety or that larger safety or even to the intent [sic] to
care for the Children.
Further, she noted that Father reports having other
[c]hildren in his care as well, and another [c]hild who was
kidnapped by the [m]other and he has not investigated or been
motivated to find out where his [c]hild is. So, although Father
speaks about sometime providing care for Z.V.G.[] and G.L.G.[,]
he cannot provide a cohesive understanding of what that entails.
There is an inconsistent understanding of who is in his care, or
what adults are present. So[,] it is that larger pattern of transient
people, transient responsibilities and the safety of the Children
being impacted because of it.
Finally, Dr. Williams opined that[,] although Father attended
caregiver sessions and meetings[,] and despite the intervention,
despite time, despite explanation and the variety of
recommendations to help him get to a place where he is able to
understand it and work towards the Children’s safety, there is no
progression by Father. She stated that[,] despite the thirteen
sessions for Father, there is truly no progression. She stated that
Father presents without being able to provide safety and
permanency for his [c]hildren.
Father, on the other hand, provided testimony that was not
persuasive and found to be incredible by this [c]ourt. Therefore,
this [c]ourt reasoned the evidence is clear and convincing that[,]
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although Father may have appeared to have accomplished some
of the goals set forth, none of it has resulted in any enhanced
stability to recognize what his [c]hildren have been subjected to,
and what their needs are. This [c]ourt is not persuaded that
Father can or will remedy the conditions which brought the
Children into [c]ourt supervision. Nor is the [c]ourt persuaded
that Father will be able to fulfill his parental responsibilities in the
future. Based on the evidence presented, this [c]ourt found clear
and convincing evidence to terminate Father’s parental rights
pursuant to 23 Pa.C.S.A. [§] 2511(a)(1) and (2).
T.C.O. at 24-27.
A review of the record supports the trial court’s finding of grounds for
termination under Section 2511(a)(2). The record reveals that, despite
completion of some his SCP objectives, Father failed to take responsibility for
and appreciate the reasons the Children came into care and his role related
thereto and lacked a protective capacity. As we discern no abuse of discretion
or error of law, we do not disturb the court’s findings.
CUA case manager, Michael Flanagan, testified that the Children came
into care due to “alleged sexual and physical abuse.”9 N.T. at 15, 17. Mr.
Flanagan expressed that Father was not able to understand the Children’s
abuse. He stated, “I don’t believe he understands like the specifics of it and
what his role was in it. In the abuse itself really as a protective caregiver
[sic].” Id. at 32.
Mr. Flanagan also expressed concerns related to stability. He noted
that, since his involvement in the case, Father has had four different fiancées
and two different homes, and his plan is for whoever his fiancée is at the time
____________________________________________
9 Mr. Flanagan further confirmed that such allegations were later founded and
resulted in criminal charges. N.T. at 17-18.
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to be the Children’s caregiver. Id. at 33. Mr. Flanagan stated, “The caregiver
would need to be stable and they would need to understand the past abuse
and the therapy that they’re going through now because these are vulnerable
kids.” Id. at 33-34.
Related to the Children’s abuse, Z.V.G.’s trauma therapist, Feebee
Southerland, reported that Father “acknowledge[d] that [Z.V.G.] was hurt,”
but “does not seem to have an appreciation of the extent to which [the
Children] were victimized, more traumatized.” Id. at 53. In discussing the
caregiver therapy sessions,10 she further stated, “[Father] did not present a
full understanding to the extent in which his children were abused, sexually
abused and physically abused.” Id. at 60. Father never admitted during
sessions that he was aware of the Children’s abuse, or recognized that he
could have done things differently. Id. at 53, 61.
Additionally, when we would talk to [Father] about where
he was when this happened, when DHS called, when they were
being removed from mom, you know, [Father] stated that he was
in New Jersey and was unable to get here. And that was
something that never changed. And not once was [Father] able
to provide a, you know, “In retrospect I would have done this
differently,” type of response. It was – it stayed along the line of,
“That’s what happened. There was nothing I could have done
differently.”
Id. at 60-61.
____________________________________________
10 Ms. Southerland explained the goal of these sessions is “[f]or parents to
acknowledge, to be able to fully acknowledge and appreciate the extent of
their child’s experiences.” N.T. at 51. Father participated in thirteen caregiver
sessions. Id. at 52.
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Moreover, Dr. Williams offered an opinion that Father is unable to
provide for the Children’s safety and permanency. Id. at 75. She confirmed
that Father is “not able to accomplish the skills he would need in order to
provide safety and permanency to his children.” Id. at 79. Similar to Mr.
Flanagan and Ms. Southerland, Dr. Williams also noted Father’s lack of
understanding related to the Children’s abuse and his role. Id. at 70. Again,
she references that Father was not able to recognize that he could have done
things differently. Id. In addition, Dr. Williams stated, “[Father]’s
presentation was somewhat disconnected. He was able to identify an
awareness to some extent of keeping the children safe, but when he could
identify an awareness he could not provide execution of the skills necessary.
And in other areas he simply did not have an awareness.” Id. at 70. She
further explained:
[Father] wasn’t able to affect their safety. He had limited
knowledge or if he did have knowledge, he did not follow through.
And then there were multiple areas that without coaching he
simply didn’t understand.
And, my understanding is these things continue to be an
issue even beyond being coached. So even with that immediate
help, which a parent not involved in DHS caring for the children
fulltime does not have somebody checking behind them making
sure that they’re meeting the daily needs of the children. That
[Father] is not able to do these things. And not to be able to
provide that daily safety or even to have an intent to care for the
children when brought into their care.
And then, additionally, he has other children he spoke about
obtaining full custody of, he was not able to explain why the
mother lost custody or why he was granted full custody. And he
also did not have that child with him because the mother had
absconded with the child and kidnapped her. And his response to
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that he believed she was in Washington. There was not, “My child
who I’ve been granted full custody of is now with a woman who
lost custody of her and perhaps I should pursue that. Perhaps I
should look for this child and ensure their safety.”
So there’s just this consistent pattern of a disconnect
between what a child needs to safe and his role in actually
affecting that safety.
Id. at 72-73. Dr. Williams likewise noted a pattern of transience with Father,
which influenced the Children’s safety. Id. at 74. Significantly, despite
intervention and recommendations to assist Father, Dr. Williams recognized a
lack of progress. Id. at 75.
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). 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.
Moreover, Father cannot or will not remedy this situation. See id. 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). In re B.L.W., 843 A.2d
at 384.
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We next determine whether termination was proper under Section
2511(b). Our 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.[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.
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 evaluating a parental bond, “[T]he 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).
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
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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 stated as follows:
Father alleges the [t]rial [c]ourt erred in terminating
Father’s parental rights because DHS did not meet its burden by
clear and convincing evidence of showing the best interest of the
[c]hild would be served by terminating Father’s rights. This
[c]ourt disagrees.
The [c]ase [m]anager, Michael Flanagan, presented credible
and convincing testimony regarding the lack of a parental bond
between the Father and the Children, and opined it would be in
the best interest of the Children to terminate Father’s parental
rights. He provided testimony of a loving bond that exists
between the Children and their [m]aternal [g]randmother, who
look to her for safety, care, and for all their needs.
...
T.C.O. at 27.
Upon review, we again discern no abuse of discretion. The record
supports the trial court’s finding that the Children’s developmental, physical
and emotional needs and welfare favor termination of Father’s parental rights
pursuant to Section 2511(b). There was sufficient evidence to allow the trial
court to make a determination of the Children’s needs and welfare, and as to
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the lack of a bond between Father and the Children such that, if severed,
would not have a detrimental impact on them.
We first reiterate the safety and permanency concerns addressed above
and Father’s inability to adequately provide for the Children’s safety and
stability. We further note that CUA case manager, Michael Flanagan testified
that Z.V.G. does not feel safe alone with Father. N.T. at 42-43. This was
confirmed by Z.V.G.’s trauma therapist, Feebee Southerland. Id. at 53-54.
Moreover, Mr. Flanagan testified that he does not believe a parent-child
bond exists between Father and the Children. N.T. at 34. When asked to
explain, he stated, “I don’t believe they look to him for safety. And, again,
for their needs. I think that they get along well during visits and I think they
do look forward to seeing him, but I don’t see that parent bond.” Id.
Describing the relationship more like that of an uncle, Mr. Flanagan further
indicated, “In my opinion it’s more like that of an uncle is the bond. He has
fun with them, but I don’t see it beyond that. And I don’t think they look to
him for anything beyond that.” Id. at 39. As such, Mr. Flanagan opined that
the Children would not experience irreparable harm if Father’s parental rights
were terminated. Id. at 34.
Instead, noting that the Children have been in kinship care with their
maternal grandmother, to whom they look for their needs and with whom they
are “thriving,” since being placed in March of 2015, Mr. Flanagan asserted that
it is in the Children’s best interests to be adopted. Id. at 14, 23, 35-37. Mr.
Flanagan expressed, “I think for their therapeutic needs to be met as well as
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all the special needs that they do have and permanency for them they need
to be with their grandmother. And their overall safety.” Id. at 37. Ms.
Southerland, likewise confirmed a strong bond between the maternal
grandmother and Z.V.G., and that Z.V.G. feels safest with the maternal
grandmother. Id. at 54-56. G.L.G.’s trauma therapist, April Winand, also
confirmed a strong bond between G.L.G. and the maternal grandmother and
that the maternal grandmother meets the traits of an appropriate caregiver.
Id. at 64. Notably, Mr. Flanagan additionally suggested a negative impact
upon the Children if they were separated from their half-sibling, S.C., who has
also been placed with the maternal grandmother. Id. at 37.
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, alone, will not preclude termination of parental rights. In re Z.P.,
994 A.2d at 1121. At the time of the hearing, the Children had already been
in care almost two and a half years, and are entitled permanency and stability.
As we 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 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
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her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa.Super. 2004) (citation omitted).
Based on the foregoing analysis of the trial court’s termination of
Father’s parental rights, we agree with counsel for Father that the within
appeal is wholly frivolous. As such, we affirm the orders of the trial court, and
grant counsel’s petition to withdraw.
Orders affirmed. Petition to withdraw granted.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2018
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