Adoption of A.N.S., minors, Appeal of: T.S.

J. S31042/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.N.S., AND : IN THE SUPERIOR COURT OF
T.S., JR., MINORS : PENNSYLVANIA
:
APPEAL OF: T.S., SR., NATURAL : No. 218 WDA 2017
FATHER :
Appeal from the Order, December 28, 2016,
in the Court of Common Pleas of Cambria County
Orphans’ Court Division at Nos. 2016-205 IVT,
2016-206 IVT
BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 26, 2017
Appellant, T.S., Sr. (“Father”), appeals from the order of
December 28, 2016, terminating his parental rights to the children, A.N.S.
and T.S., Jr. (“the Children”). After careful review, we affirm.
The trial court, following three evidentiary hearings, made the
following findings:
1. On March 9, 2016, Cambria County
Children and Youth Services (“CYS”) filed petitions to
terminate the parental rights of [K.D., “Mother”],
age 23, [], and [Father], age 32, [], to their
respective children. [Mother] is the biological
mother of [J.D.D.], [] age 3, []; [A.N.S.], [] age 2,
[]; and [T.S., Jr.], [] now 11 months old []. [Father]
is the biological father of [A.N.S.] and [T.S., Jr.].
The biological father of [J.D.D.] is unknown. The
grounds alleged are 23 Pa.C.S.[A.] Section 2511(a)
Subsections (1), (2), (5), and (8).
2. Counsel was appointed for the parents and
children, and after continuance requests granted by
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the Court evidentiary hearings were held on June 22,
2016; September 20, 2016; and September 29,
2016. After transcripts of the hearings were
prepared and reviewed by counsel, all counsel
submitted memoranda of their respective positions.
3. In July 2014, [Mother] and [Father] moved
to Johnstown, Cambria County, Pennsylvania from
Onondaga County, New York where [Mother] was
involved with the New York Department of Social
Services as a result of issues resulting in a neglect
petition being filed involving [J.D.D.] and then newly
born [A.N.S.].
4. Both [Mother] and [Father] were referred
to Dennis M. Kashurba, a licensed psychologist.
[Mother] was evaluated by Mr. Kashurba who issued
a report dated August 20, 2014 (Petitioner Exhibit
11). The purpose of the evaluation was to gather
information pertinent to ascertaining what type of
services would be appropriate to ensure the best
interests of [Mother]’s two children. [Mother] had a
history of anger management and impulse control
problems. Mr. Kashurba in his report stated in part:
“Her judgment in the session
appeared to be good once she would
pause and think about the answer she
had impulsively given to a question. Her
level of insight appeared to be at an
early adolescent level of development
and rather consistent with the obtained
estimate of intellectual functioning as
noted below.”
In his diagnostic impression, Mr. Kashurba
wrote:
“Axis I Impulse Control Disorder,
NOS Relational Problem NOS
Anxiety Disorder NOS ADHD,
Combined Type Disruptive
Behavior Disorder, NOS, by
history Mathematics Disorder
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Bipolar Disorder, NOS, by
history
Axis II Borderline Intellectual
Functioning Histrionic
Personality Disorder with
Paranoid Traits and
Obsessive Compulsive
Features”
In Mr. Kashurba’s summary of the various
tests administered to [Mother], he stated:
“All of her performances fell within
a relatively consistent band between the
normal late 10-year level of development
and the normal early 12-year level of
development.”
5. In Mr. Kashurba’s conclusion he stated:
“The total information available at
the present time suggests that [Mother]
has below average overall intellectual
ability and academic skills. She also
appears to have long-standing mental
health issues which may adversely affect
her ability to harness her intellectual
skills in terms of learning and
independently implementing appropriate
parenting techniques with her children.
Thus, it does appear that there will be
the ongoing need for comprehensive,
multimodal mental health services as
well as a variety of social services that
can typically be facilitated through CYS.
[Mother] claims that she plans to
become enrolled in parenting classes at
some time in the future whenever an
opening exists for a six-week class.
However, her mental health and
cognitive issues clearly indicate that her
need for services is well beyond the
scope of typical parent training classes.
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Additionally, the mental health issues of
her paramour ([Father]) suggests that
there will be an ongoing need for an
external agent of control (CYS)...”
6. On September 24, 2014, Mr. Kashurba
penned a report based upon his evaluation of
[Father]. The purpose of that evaluation was to
gather information pertinent to determining the
probability of [Father] developing the ability to
parent his children by himself or with the assistance
of his paramour, [Mother]. In the clinical interview
portion of his report, Mr. Kashurba states:
“[Father] presented on time for his
scheduled appointment. Initially, his
affect was calm and composed.
However, later when he was informed of
ongoing CYS concerns that were
inconsistent with his perspective of the
home and family situation, he became
somewhat irate. He then proceeded to
engage in denial and minimize the
circumstances documented by the CYS
caseworker, CYS social worker, and the
IFS [(“Independent Family Services”)]
home management person. [Father]
actually appeared to possess grossly
normal intellectual potential. He
admitted that he has been hearing
‘voices’ for the past eight years’ time.
These voices were described as ‘Bob’
who supposedly is ‘a mean son of a bitch
and what I would be like if I was bad.’
The other voice, Tom, was described as
‘my good side.’ Supposedly Tom tells
[Father] not to listen to Bob. In addition
to hearing these voices, [Father]
admitted that he sometimes sees them.
Bob was described as being ‘tall and
built’ and being blond with blue eyes.
Tom, on the other hand, was described
as having dark hair and hazel eyes and
being slim.”
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Further, Mr. Kashurba notes:
“[Father] clearly had a
preoccupation with the overvalued idea
regarding the status of the dogs in his
life...[.] It was reasonably obvious that
[Father] viewed the dogs at least as
equals to the children in terms of status
within the family and perhaps higher in
status.”
In Mr. Kashurba’s summary he notes:
“[Father]’s performance on
academic testing today found him to
meet with frustration in basic reading
skills at a beginning 4th grade level of
difficulty. This performance placed him
within the mildly mentally deficient range
and only at the 1st percentile for his
chronological age group.”
Mr. Kashurba concludes:
“The total information available at
the present time suggests that [Father]
would have adequate intellectual
potential to learn appropriate parenting
strategies if his mental health issues
could be ameliorated. In his current
‘off meds’ condition, there is little
likelihood that he will be able to
ameliorate his mental health difficulties,
which are chronic and severe, to a
degree that he will be able to harness his
low average intellectual potential to learn
and independently implement
appropriate parenting strategies for the
children. His overvalued idea regarding
the status of the dogs (supposed service
animals) suggests that these animals will
continue to be a higher priority to
[Father] than the children in the
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household. Unfortunately, it would be
this examiner’s opinion that the
supposed service animals have actually
adversely affected [Father]’s ability to
function in society.”
7. As a result of a permanency review hearing
held on April 20, 2015, the Juvenile Court found that
the parents had only been minimally compliant with
the permanency plan and that there had been
minimal progress toward alleviating the
circumstances necessitating the original placement.
8. Among the Juvenile Judge’s orders, both
parents were to enroll, participate, attend, and
successfully complete parenting skill classes; comply
with the agency social worker in addressing their
mental health issues; no pets were permitted in the
residence; and all pets were to be removed prior to
any consideration of the children’s return home to
either parent’s residence. [Father] was to have a
psychiatric evaluation, which the Court notes he
successfully completed on January 13, 2016
(Respondent Exhibit 2).
9. Another permanency review hearing was
held on September 21, 201[5]. Again the Juvenile
Court found only minimal compliance with the
permanency plan and only minimal progress toward
eliminating the circumstances necessitating the
original placement. Supervised visits were to
continue, and both [Mother] and [Father] were
ordered to submit to random drug screens.
10. [Father] was again evaluated by
Mr. Kashurba resulting in reports of November 5 and
November 12, 2015. Mr. Kashurba noted in his
report:
“It would be this examiner’s
impression that the prognosis for
significant improvement in the parenting
domain would not be substantially
improved and in all likelihood would not
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make positive contribution to the
children. Thus, this examiner has no
choice but to concur with the opinion of
the CYS and home management staff
that permanency through adoption would
be in the children’s best interests.”
11. The results of the January 27, 2016
permanency review hearing are significant in that
the parties again had made only minimal compliance
with the permanency plan, but the Court further
found that the children had been in placement for 15
of the last 22 months, neither parent was a
placement option for the children, and that the
parents had refused to allow the agency to inspect
and photograph any residence since October of that
year. In addition, even with attending mental health
services both parents continued [to] display
significant mental health instability. Both parents
have cognitive limitations that are not likely to
change in a reasonable period of time. The children
need a permanent, consistent environment, and the
goal was changed to adoption.
12. This Court further reviewed in detail
Petitioner’s Exhibit 13, which were court summaries
given to the Juvenile Court in October 2014, April
2015, September 2015, and January 2016.
In the April 13, 2015 court summary it was
noted that the home was found to be in a deplorable
condition, including but not limited to garbage, food,
clothes, dog feces and dog urine on the[] floor and
furniture. Due to the ongoing nature of the house
and the parents’ aggressive conversation with the
social worker, all social worker visits were moved to
the [CYS] Office.
In the September 21, 2015 report, it was
noted that the parents now lived separately from
each other. [Mother] still required constant
redirection to focus on the skills that she was being
taught. The social worker continued to observe
positive progress in her ability to control her
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impulses and aggressive outbursts however. The
social [worker] noted that neither parent appeared
to be able to multitask and supervise and interact
with both children at the same time. When the
social worker addressed making good decisions,
[Father] and [Mother] became very angry and
defensive and verbalized their belief they are fine
because they do not have their children so they are
doing nothing wrong. The parents were not open[]
to changing their lifestyle to demonstrate stability for
their children to return home.
In the final report to the Court dated
January 22, 2016, the social worker noted:
“This social worker continues to
have numerous concerns regarding
[Mother]’s ability to provide for her
children’s basic needs, safety, and
well-being due to her parenting deficit,
cognitive limitations, and mental health.
[Mother] has demonstrated that she is
unable to adequately parent her children
during a two-hour visitation, as well as
maintain a stable lifestyle. It is this
social worker’s opinion [that] due to
[Mother]’s cognitive limitations, her
resistance to participate in parenting
instruction, and her mental health it is
not likely she can remedy these concerns
in a timely manner.
Regarding [Father], he has shown
consistency when parenting one child;
however, he is resistant to social work
services. This social worker has serious
concerns regarding his mental health
stability and his need for changing his
daily functioning. It is this social
worker’s opinion that [because of]
[Father]’s mental health, cognitive
limitations, and unwillingness to change
his daily functioning [] it is also unlikely
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he could alleviate the concerns in a
timely manner.”
13. This Court is well aware that the
termination of parental rights is one of the most
serious and severe steps a court can take. As to
[Father], this Court admits to struggling between
separating the concept of “reasonable doubt” versus
a civil case, clear and convincing evidence. This
Court has examined the individual circumstances of
this case and considered all explanations and
accomplishments as to the [F]ather and the lack of
explanations as to the [M]other on the issues before
the Court.
14. Addressing the best interests of the
children, the Court may rely on the testimony of the
caseworkers and/or social workers. In the report
(Petitioner Exhibit 10), the caseworker and
caseworker supervisor note that:
“[Father] and [Mother] have the
barrier of their mental health and
cognitive limitations that prevent them
from making the necessary significant
changes to provide for their children’s
safety and well-being in a reasonable
period of time. In addition, they lie,
attempt to manipulate, and refuse to
take responsibility for their actions.
[Father] and [Mother] do love the
children. There is no bond between both
parents and [T.S., Jr.] as they have only
seen him three times since his placement
from the hospital on January 15, 2016.
[Mother] has demonstrated minimal
bonding with [A.N.S.] and [J.D.D.] and
with that it was not a true parent-child
bond with either due to her mental
health and cognitive limitations. For the
brief period of time [Father] visited with
[A.N.S.] alone a parent-child bond was
present. Once the visits resumed
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together again both parents paid less
attention and time with [A.N.S.]. The
most significant bond was the bond
between [J.D.D.] and [Father] though
[Father] is not [J.D.D.]’s biological
father.
[J.D.D.] and [A.N.S.] have a
genuine bond with their foster family and
[T.S., Jr.] is bonding with his foster
family which demonstrates that they will
be able to build a healthy bond with an
adoptive family.”
....
16. This Court has found that there does not
presently exist a strong bond between [Mother] and
her three children. In terminating the parental rights
of [Mother], this Court has found that this will best
meet the developmental, physical, and emotional
needs and welfare of the children.
17. In regard to [Father], the Court has found
that any bond that exists is minimal. Further, that in
terminating the rights of [Father] to his two children,
this Court has found that this will best meet the
developmental, physical, and emotional needs and
welfare of those children.
Order, 12/28/16 at 1-11.
By order entered December 28, 2016, the trial court terminated the
parental rights of both Mother and Father. The trial court determined that
CYS established a basis for termination under 23 Pa.C.S.A. § 2511(a)(1),
(2), (5), & (8). (Id. at 11-12.) The trial court also found that termination
best met the developmental, physical, and emotional needs and welfare of
the Children under Section 2511(b). (Id. at 10-11.) This timely appeal
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followed. In response to Father’s Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, the trial court relied on its Opinion and
Order of December 28, 2016. (Order, 2/14/17 at 1.)
Father has raised the following issues for this court’s review on appeal:
1. Whether the trial court properly considered the
efforts made by Father to alleviate the
conditions which led to the agency’s filing a
Petition to terminate his parental rights[?]
2. Whether the Petitioner below had met its
burden of terminating Father’s parental rights
by clear and convincing evidence[?]
3. Whether the trial court erred in relying upon
the testimony of an expert when said expert
was relying upon inaccurate information[?]
Father’s brief at 1-2.
When considering appeals such as the one presently
before us, we are guided by the following:
When reviewing an appeal from a decree
terminating parental rights, we are
limited to determining whether the
decision of the trial court is supported by
competent evidence. Absent an abuse of
discretion, an error of law, or insufficient
evidentiary support for the trial court’s
decision, the decree must stand. Where
a trial court has granted a petition to
involuntarily terminate parental rights,
this Court must accord the hearing
judge’s decision the same deference that
we would give to a jury verdict.
In re: Involuntary Termination of C.W.S.M. and
K.A.L.M., 839 A.2d 410, 414 (Pa.Super. 2003). We
are also aware that:
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In a proceeding to involuntarily
terminate parental rights, the burden of
proof is upon the party seeking
termination to establish by “clear and
convincing” evidence the existence of
grounds for doing so. The standard of
“clear and convincing” evidence is
defined as testimony that is so clear,
direct, weighty, and convincing as to
enable the trier of fact to come to a clear
conviction, without hesitance, of the
truth of the precise facts in issue.
In re A.L.D., 797 A.2d 326, 336 (Pa.Super. 2002)
(quoting In re Adoption of Atencio, 539 Pa. 161,
650 A.2d 1064, 1066 (1994)).
In re C.L.G., 956 A.2d 999, 1003-1104 (Pa.Super. 2008) (en banc).
Moreover, an abuse of discretion occurs “when the
course pursued represents not merely an error of
judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or
where the record shows that the action is a result of
partiality, prejudice, bias or ill will.” Id. Generally,
[o]ur case law has made clear that under
Section 2511, the court must engage in a
bifurcated process prior to terminating
parental rights. In re D.W., 856 A.2d
1231, 1234 (Pa.Super. 2004). 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). In re
B.L.L., 787 A.2d 1007, 1013-14
(Pa.Super. 2001). Only after
determining that the parent’s conduct
warrants termination of his or her
parental rights must the court engage in
the second part of the analysis:
determination of the needs and welfare
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of the child under the standard of best
interests of the child. C.M.S., supra,
[884 A.2d 1284, 1286-87 (Pa.Super.
2005)]; A.C.H., supra, [803 A.2d 224,
229 (Pa.Super. 2002)]; B.L.L., supra.
Although a needs and welfare analysis is
mandated by the statute, it is distinct
from and not relevant to a determination
of whether the parent’s conduct justifies
termination of parental rights under the
statute. One major aspect of the needs
and welfare analysis concerns the nature
and status of the emotional bond
between parent and child.
In re Adoption of R.J.S., 901 A.2d 502, 508
(Pa.Super. 2006).
Id. at 1004 (brackets in original).
We need only agree with the orphans’ court as to
any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm. In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc),
appeal denied, 581 Pa. 668, 863 A.2d 1141
(2004). Here, we analyze the court’s decision to
terminate under Section 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
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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).
In re Adoption of C.D.R., 111 A.3d 1212, 1215-1216 (Pa.Super. 2015).
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
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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 A.L.D., 797 A.2d
326, 337 (Pa.Super. 2002) (citations omitted).
Id. at 1216.
The record indicates that Father failed to comply with the court’s
directives. For example, Father refused to get rid of the Pitbull dogs, which
was a condition of having the Children returned. At one time, there were as
many as 10 dogs in the residence, including 7 puppies. (Notes of testimony,
6/22/16 at 37.) The residence was covered in dog feces and smelled of
ammonia due to the presence of dog urine. (Id. at 169.) The Pitbull dogs
were aggressive, overly protective, and malnourished, leading to a fear that
they would attack the Children. (Notes of testimony, 9/20/16 at 131, 152-
153.) Mr. Lonnie Maldet, a CYS caseworker, testified that Mother and Father
asked for money for dog food and baby formula. (Id. at 131.) He was
concerned that a hungry Pitbull dog could turn on one of the Children. (Id.)
Sabrina Uebel, another CYS caseworker, testified that there was one cup of
dog food for three large Pitbulls, including one that was pregnant. (Id. at
152.) The baby slept on the floor with the hungry Pitbulls. (Id.) Ms. Uebel
testified that the dogs were large and aggressive and had to be put in the
room upstairs during CYS visits. (Id. at 152-153.)
Father could not afford to feed the dogs and lacked the motivation to
obtain free food from the pet food pantry. (Id. at 152.) The upstairs
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nursery had been damaged by the dogs. (Id. at 31.) It was clear that
Father put the needs of the dogs above those of the Children. (Id. at 15,
124, 156; 6/22/16 at 136-137, 178.) Ashley Shaffer, a licensed social
worker employed by CYS, testified regarding Father’s relationship with his
dogs:
My concern with the dogs was it was court ordered
from the beginning that the children would not be
considered to go home without the removal of the
dogs or any animals [from] that home. Your feelings
of the dogs had been more than the feelings of your
children. You had expressed to me that the dogs
give you love. They make you want to be a better
person and that you love them very much and you
did that for your mental health. At one point you
had stated to me that you could not get rid of your
dogs because you were afraid they would feel
abandon [sic] and you could not let your dogs feel
that way. However, at no point did you ever say
that about your children in foster care.
Notes of testimony, 6/22/16 at 197-198.
Mr. Kashurba concluded that Father “clearly had a preoccupation with
the overvalued idea regarding the status of the dogs in his life.”
(Psychological Evaluation, 9/24/14 at 4.) “It was reasonably obvious that
[Father] viewed the dogs at least as equals to the children in terms of status
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within the family and perhaps higher in status.” (Id. at 4-5.) Father never
did remove the dogs despite the court’s explicit directions.1
Father had numerous financial issues that were never remedied. While
he made efforts at budgeting, he continued to do things to cause his own
financial instability such as losing subsidized housing by failing to notify the
landlord that Mother was living with him. (Notes of testimony, 9/20/16 at
14.) Ms. Shaffer testified that, “[W]e discussed it on a weekly basis that all
they had to do was contact the Johnstown Housing Authority and put
[Mother] on the Section 8 lease. Despite being told that weekly, they never
followed through and he in fact lost his Section 8 housing.” (Notes of
testimony, 6/22/16 at 187.) Father failed to pay his bills on time each
month. (Notes of testimony, 9/20/16 at 14.) When the heating bill was not
paid, the family would all sleep together on the living room floor. (Notes of
testimony, 9/20/16 at 33, 94-95, 152.) Mother and Father relied on Father’s
social security disability income to pay the bills; however, the family was
financially unstable. (Notes of testimony, 9/29/16 at 13.) Father received
$775 per month and his monthly expenses were approximately $750. (Id.
at 13-15.) Father did claim he received approximately $200-250 cash per
week doing work under the table. (Id. at 23, 28.) However, Mother and
1
According to Father, the Pitbulls were “service animals.” Father presented
a letter dated May 1, 2013, from Thomas Maltese, M.D., a psychiatrist,
stating that the dogs were therapeutic. (Notes of testimony, 6/22/16 at
142-143.) According to Dr. Maltese’s letter, the dogs helped ground Father
in reality and relieve stress. (Id. at 143.)
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Father often could not afford diapers for the Children. (Notes of testimony,
9/20/16 at 156.) Despite their financial pressures, there was testimony that
Father would purchase crab legs for himself. (Id.)
The condition of the family’s residence was described as deplorable
and unsanitary. The house was littered with garbage and dog waste. (Notes
of testimony, 6/22/16 at 169.) There was clutter and dried vomit
throughout the house. (Id. at 21-22, 33.) Ms. Shaffer testified that the
smell made her physically ill. (Id. at 169.) The kitchen was covered in
trash, empty beer bottles, and dirty dishes. (Notes of testimony, 9/20/16 at
33.) Ms. Gustkey-Patterson testified that the house smelled like dogs. (Id.
at 100.) There was trash and cockroaches in and around the home. (Id.)
Sometimes she was afraid to enter the property. (Id. at 99-100.) In
addition, the residence was not child-proofed and was unsafe, with knives
lying around within reach of the Children. (Id. at 31, 101, 142.) Mr. Maldet
testified that there were pocket knives, hunting knives, and kitchen knives
strewn about, as well as cigarette butts and lighters. (Id. at 136, 142.)
There was evidence of drug and alcohol abuse at the home. (Id. at 87-90;
notes of testimony, 6/22/16 at 194-195.) Father never complied with the
court’s directive to maintain a consistently safe and clean home.
There was also testimony that Father was unable to appropriately care
for the Children. Father was unable to multi-task and effectively parent the
children together. (Notes of testimony, 6/22/16 at 39.) Father appeared to
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be overwhelmed during the supervised visitations and could only focus on
one child at a time. (Id. at 170.) Father was often unprepared for visits
and would leave the brief visits to smoke cigarettes. (Id. at 39, 171.) He
would ignore suggestions from the CYS caseworkers. (Id. at 40-41.) Father
disregarded safety concerns. (Id.) Father was often defensive and
combative when given suggestions or advice. (Id. at 173.) During one of
the supervised visits, A.N.S. was gagging and choking on a large piece of hot
dog. (Id. at 41.) When instructed that the pieces were too large for A.N.S.,
Father simply ignored the caseworker and continued to eat his own hot dog
while the caseworker attended to A.N.S. (Id.) In addition, neither parent
made any effort to change the Children’s diapers. (Psychological Evaluation,
9/24/14 at 2.) When prompted by the caseworker to change one of the
Children’s dirty diapers, Father and Mother argued over who was going to do
it. (Id.) When they did change the Children’s diapers, they would not
dispose of the dirty diapers properly. (Notes of testimony, 9/20/16 at 144.)
Furthermore, Father failed to cooperate fully with IFS and his mental
health providers and follow through with recommendations from the
psychological evaluations. Father denied access to his home to caseworkers
on numerous occasions. (Notes of testimony, 6/22/16 at 34-36, 60.)
Father was discharged from the Alternative Community Resource Program
(“ACRP”). Father’s attendance was inconsistent, and he was ultimately
discharged for failure to comply with the attendance policy. (Notes of
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testimony, 9/20/16 at 80-82.) As a result, Father’s outpatient therapist at
ACRP, Alyssa Gusmerotti, testified that she was barely able to “scratch the
surface” of working with Father. (Id. at 82.)
Father argues that he successfully completed the Nulton Diagnostic
and Treatment Center’s Adult Partial Hospitalization Program on January 13,
2016. (Father’s brief at 6.) Father argues that he attended all of the
sessions, and his psychiatrist testified that he was very cooperative. (Id.,
citing notes of testimony, 9/20/16 at 117-118.) CYS did not dispute that
Father finished the program. (CYS’s brief at 15.) However, Father conceded
that the program essentially taught him the same skills he had already
acquired in prior treatment and that he did not get much out of it. (Notes of
testimony, 9/20/16 at 184, 204; 9/29/16 at 10.) Father testified that it was
basically the same as a program he attended in New York. (Notes of
testimony, 9/29/16 at 10.) In addition, there was testimony that Father’s
attitude during the program was that of resistance and that his progress was
not significant. (Notes of testimony, 6/22/16 at 42, 164.) Ms. Shaffer
testified,
Throughout the time [Father] was in partial, and I
would ask him what he was learning, his response
would always be, I haven’t learned anything. There
were issues where during group [Father] was making
inappropriate comments about drugs and alcohol.
There was a man who had been sober for over
20 years and is re-learning coping skills and [Father]
told him to go have a beer.
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Id. at 176-177. Stephen Bower from Nulton testified that Father
successfully completed the program but that he could not remember
whether or not they had any problems with Father during group therapy
sessions. (Notes of testimony, 9/20/16 at 64-66.)
Father was ordered to attend the program in October 2014 by the
juvenile court judge. (Case record summary, CYS’s brief, Appendix 1 at 3-4;
notes of testimony, 6/22/16 at 38.) By his own admission, Father did not
enroll in the program until August 2015, when he finally decided it was
necessary to “kiss butt” to try to get the Children back. (Notes of testimony,
9/20/16 at 199-201.) In the meantime, while Father delayed, A.N.S. and
T.S., Jr., were growing up in foster care.
Father also contends that the reports and recommendations of
Mr. Kashurba, upon which the trial court relied, were based upon incorrect
information. (Father’s brief at 9.) According to Father, Mr. Kashurba based
his recommendations upon an erroneous report by Ms. Shaffer that Father
was not compliant with the program and was close to being removed from
the program. (Id. at 8-9.) In fact, Father argues that he successfully
completed the program.
Any such conflicts in the evidence were for the trial court to resolve.
The trial court heard the testimony that Father completed the program.
Furthermore, as CYS points out, Mr. Kashurba did not rely solely on
Ms. Shaffer’s report that Father was not meeting the requirements of the
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program. (CYS’s brief at 16.) In fact, Mr. Kashurba’s September 24, 2014
report was authored 10 months before Father even started the program.
(Id.) In addition, Mr. Kashurba reviewed numerous documents and reports
from multiple sources and also conducted his own interviews with Father,
including observing him interact with the Children. (Id.; notes of testimony,
6/22/16 at 110, 113-120.) Mr. Kashurba’s conclusion that Father was
unlikely to make any significant improvements in parenting skills or make
any positive contribution to the Children was based on a multitude of
factors, including personal observations, not just Ms. Shaffer’s report.
Finally, Father argues that the main reason the Children were removed
from the home was because of poor housekeeping and financial problems.
According to Father, he made an effort to implement a workable monthly
budget and also to improve the condition of the residence. (Father’s brief at
10.)
There was testimony that Father attempted to establish a workable
budget. (Notes of testimony, 9/20/16 at 16.) However, the record also
reflects that Father had continuing financial issues. One of the juvenile
court’s requirements was that Father pay rent, utilities, and other bills on
time. (Notes of testimony, 6/22/16 at 28.) Ms. Kathy Scaife from IFS
testified that while Father made an effort, the utility bills were not
consistently paid on time. (Notes of testimony, 9/20/16 at 13-15.) There
was testimony that Mother and Father shut off the heat in the winter to save
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money. (Notes of testimony, 6/22/16 at 191-192.) Some of Father’s
financial problems were the result of mismanagement, e.g., trying to feed
10 dogs and purchasing $30 in crab legs for his own consumption while the
Children went without diapers. (Notes of testimony, 9/20/16 at 156.) If
Father had complied with the court’s order to get rid of the dogs, it would
have freed up some money to take care of the Children’s needs.
Regarding the deplorable conditions, while they would show some
measurable improvement over short periods of time, they would always
return to the status quo. (Notes of testimony, 9/20/16 at 16.) Ms. Scaife
testified that some months the house looked okay and then other months it
was terrible. (Id.) The conditions were not consistently acceptable. (Id. at
17-18.) Ms. Scaife described clothing, papers, empty food containers, and
food wrappers spread throughout the home. (Id. at 30-31.) She testified
that the clutter was a tripping hazard for the Children. (Id.) According to
Ms. Shaffer, in April 2015 she had to move visits off-site due to poor
housekeeping. (Notes of testimony, 6/22/16 at 169.) She described dog
feces and garbage strewn about the floor, as well as the odor of urine and
marijuana smoke. (Id.) This testimony was corroborated by CYS
caseworker Barbara Brzana who described a house full of fecal matter, dried
vomit, clutter, and garbage. (Id. at 33.) On each of three occasions she
visited the home from January 2015 to March 2015, the conditions were the
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same. (Id.; notes of testimony, 9/29/16 at 36.) Any inconsistences in the
accounts of the witnesses were for the trial court to reconcile.
In addition, as stated above, Father refused caseworkers entry into the
residence on numerous occasions. (Notes of testimony, 6/22/16 at 60.) So,
there is no way of knowing what the house looked like on those occasions
when caseworkers were denied entry. Moreover, it is clear that the trial
court’s order was not based solely on the parties’ finances or the condition of
the home. As set forth at length supra, the Children were in physical and
psychological danger. They were living in filth. Besides the Pitbulls and
knives lying around, there was testimony of ongoing drug use and domestic
violence. (Notes of testimony, 6/22/16 at 44, 194-195.) It was readily
apparent to the trial court that despite 15 months of intensive services,
Father was unable or unwilling to remedy the conditions which led to the
Children’s placement, and they would continue to be at risk if returned to his
care. Our review of the record supports the trial court’s conclusion that
Father is incapable of parenting the Children, and that his parental
incapacity has left the Children without essential parental care or control.
Additionally, it was reasonable for the court to determine that Father will
not, or cannot, remedy this incapacity.
Next, we consider whether termination was proper
under Section 2511(b).[2] Section 2511(b) “focuses
2
“Although [Father] does not challenge the trial court’s analysis of
Section 2511(b), we proceed to address this issue nonetheless.” In re
C.L.G., 956 A.2d at 1010.
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on whether termination of parental rights would best
serve the developmental, physical, and emotional
needs and welfare of the child.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa.Super. 2010). 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. In re
K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008).
“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.”
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011)
(citing K.K.R.-S., 958 A.2d at 533-36).
[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.
Id. (quoting In re A.S., 11 A.3d 473, 483
(Pa.Super. 2010)); see also In re T.D., 949 A.2d
910, 920-23 (Pa.Super. 2008), appeal denied, 601
Pa. 684, 970 A.2d 1148 (2009) (affirming the
termination of parental rights where “obvious
emotional ties exist between T.D. and Parents, but
Parents are either unwilling or unable to satisfy the
irreducible minimum requirements of parenthood,”
and where preserving the Parents’ rights would
prevent T.D. from being adopted and attaining
permanency).
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In re Adoption of C.D.R., 111 A.3d at 1219.
Here, T.S., Jr., was placed directly from the hospital after birth and
had spent his entire life in the foster care system. A.N.S. was only 2½
months old when she was removed from Father’s care. There was no
meaningful bond between Father and the Children. (Notes of testimony,
6/22/16 at 180-181.) Father rarely showed A.N.S. any attention. (Id. at
44-45, 174-175.) In fact, Father focused mainly on J.D.D., who is not his
biological child. (Id. at 44.) The trial court found that the Children are
successfully bonding with their foster family, indicating that they will be able
to build a healthy bond with an adoptive family. (Order, 12/28/16 at 10
¶14.)
The evidence supports the trial court’s determination that it would be
in the Children’s best interest if Father’s parental rights were terminated.
Clearly, it would not be in the Children’s best interest for their lives to
remain on hold indefinitely in hopes that Father will one day fulfill his
obligations and be able to act as their parent. See In re Adoption of
C.D.R., 111 A.3d at 1220, quoting M.E.P., 825 A.2d at 1276 (“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.” (citations omitted)).
Father is not entitled to relief.
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Accordingly, because we conclude that the trial court did not abuse its
discretion by involuntarily terminating Father’s parental rights pursuant to
Section 2511(a)(2) and (b), we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
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