In the Interest of: Z.B.B., a Minor

J-S53001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z. B .B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B. B., FATHER
No. 680 EDA 2017
Appeal from the Order Entered January 20, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s):
CP-51-AP-0001292-2016
CP-51-DP-0002242-2014
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 11, 2017
B.B. (“Father”) appeals from the January 20, 2017 order that granted
the petition filed by the Philadelphia Department of Human Services (DHS)
to involuntarily terminate his parental rights to Z.B.B. (“Child”) (born in June
of 2007) and change the goal for Child to adoption. We affirm.
In its opinion, the trial court set forth the factual and procedural
history of this case, as follows:
On May 5, 2010, Child’s family became known to the
Department of Human Services (“DHS”) when the Honorable
Holly Ford granted [M.S.] (“Aunt”), maternal aunt of Child, sole
legal custody of Child’s sibling. On July 16, 2014, the Honorable
Holly Ford granted sole legal custody of Child to Aunt. Child’s
parents D.S. (“Mother”) and Father were not involved with the
care of Child at that time. Their whereabouts were unknown to
DHS at that time. On October 3, 2014, the Honorable Jonathan
Irvine adjudicated Child dependent and physical custody was
granted to caretaker Aunt. On February 19, 2015, DHS obtained
an Order for Protective Custody (“OPC”) for Child as a result of
inappropriate discipline by caretaker Aunt. Mother and Father
were not viable resources as each parent was minimally involved
with the needs of Child. Thereafter, Child was sent to a foster
home.
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Child is autistic and receives services from Therapeutic
Staff Support (“TSS”) and the Community Organization for
Mental Health and Rehabilitation (“COMHAR”). A permanency
review hearing was held on June 14, 2016, before the Honorable
Jonathan Irvine and Father was ordered to go to the Achieving
Reunification Center (“ARC”) for anger management and
parenting classes. On September 1, 2016, a permanency review
hearing was held before this Court and Father was ordered again
to go to ARC for anger management and parenting classes.
Throughout the history of this case, [the Community
Umbrella Agency (“CUA”)] recommended Single Case Plan
(“SCP”) objectives for Father. Father’s final SCP objectives were
(1) to learn and understand Child’s autism; (2) to participate in
supervised visits; (3) to complete anger management and
parenting counseling; (4) to demonstrate appropriate parenting
skills and (5) to meet the Child’s mental health and behavioral
needs. Before meeting these objectives, Father was the alleged
perpetrator of child abuse arising from an incident at the
Father’s home during an unsupervised visit. According to
testimony, he was accused of chok[ing] the Child.
On or about December 28, 2016, DHS filed the underlying
Petition to Terminate Father’s Parental Rights to Child. On
January 19, 2017, this Court terminated Father’s parental rights
to Child pursuant to 23 Pa.C.S.[] § 2511(a)(1)(2)(5) and (8).
The Court also ruled the termination of the Father’s parental
rights was in the best interest of the Child pursuant to 23
Pa.C.S.[] § 2511(b). The Court ruled that the Child’s goal be
changed to adoption. Thereafter, Father filed a Notice of Appeal
on February 21, 2017.
Trial Court Opinion (TCO), 4/6/17, at 2-4 (citations to the record omitted).
Following its rendition of the facts and procedural history, quoted
above, the trial court discussed the basis for its decision to involuntarily
terminate Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8) and (b). Specifically, the court noted “Father’s ongoing
unwillingness to provide care or control for [] Child; to perform any parental
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duties and a failure to remedy the conditions that brought the Child into
care.” Id. at 4. The court also discussed the CUA representative’s
testimony, which it found credible, stating:
At the hearing, the CUA Representative testified that
throughout his life, Child had never lived with Father. The CUA
Representative also testified that Child had autism which
required extensive treatment and required intensive parental
involvement. The CUA Representative testified that Father knew
his SCP objectives. Father’s SCP objectives were to obtain
appropriate housing[,] to comply with all visitation with Child,
and to attend Child’s medical appointments. The CUA
Representative testified that over time additional SCP objectives
were included, which were parenting classes and anger
management classes. The CUA Representative testified that
parenting classes and anger management classes were included
as SCP objectives because Father inappropriately disciplined the
Child by choking the Child and slamming the Child on a bed in
May 2016. The CUA Representative testified that Father had not
completed anger management classes. The CUA Representative
testified that Father could not visit the Child from May to October
2016 because Father did not provide CUA with a work schedule.
Testimony indicated that Father had not met Child’s
medical needs due to Father not attending medical
appointments. The CUA Representative testified that the Child’s
pre-adoptive foster parents were able to meet Child’s needs.
The CUA Representative further testified that it would be in
Child’s best interest to be adopted. The CUA Representative
further testified that termination of Father’s parental rights
would not harm Child and that termination of Father’s parental
rights would be in the Child’s best interest
Id. at 5-6 (citations to the record omitted). Thus, the court found that DHS
had carried its burden of proof and that the termination would best serve
Child’s needs and welfare.
On appeal, Father raises the following issues for our review:
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1. Did the trial court abuse its discretion by granting [DHS’]
Petition to Change the Goal to Adoption pursuant to the Juvenile
Act[,] 42 Pa.C.S.[] § 6301[,] because it did not view the …
“totality of the circumstances?”
2. Did the trial court abuse its discretion by finding that DHS
proved by clear and convincing evidence that Father failed to
rehabilitate himself pursuant to 23 Pa.C.S.[] [§]
2511(a)(1)(2)(5)(8)?
3. Did the trial court abuse its discretion by finding that DHS
proved by clear and convincing evidence that it was in the best
interests of [Child] to be adopted pursuant to 23 Pa.C.S.[] [§]
2511(b)?
Father’s brief at 4.1
We initially address Father’s second and third issues, which involve the
termination of his parental rights to Child. We review such an order
terminating parental rights in accordance with the following standard:
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. We must employ a broad, comprehensive
review of the record in order to determine whether the trial
court’s decision is supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
____________________________________________
1 In its opinion, the trial court did not address the change of goal to
adoption.
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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.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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). If 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).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. The party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in Section 2511(a).
Only if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511,
other citations omitted). The burden is upon the petitioner to prove by clear
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and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no
bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
In this case, as noted above, the trial court terminated Father’s
parental rights pursuant to sections 2511(a)(1), (2), (5), (8) and (b). We
need only agree with the trial 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). Although Father’s second issue
discusses all the subsections that the court determined were applicable, i.e.,
subsections (a)(1), (2), (5) and (8), we choose to analyze the court’s
decision to terminate under section 2511(a)(1) and (b), which provide:
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(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:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing
of the petition either has evidenced a settled purpose
of relinquishing parental claim to a child or has
refused or failed to perform parental duties.
***
(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. § 2511(a)(1), (b).
In In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), this Court provided
direction relating to what considerations need to be addressed when
reviewing a trial court’s decision to terminate parental rights under various
subsections of 2511(a). Specifically, relating to subsection (a)(1), the Z.P.
Court stated:
A court may terminate parental rights under Section 2511(a)(1)
where the parent demonstrates a settled purpose to relinquish
parental claim to a child or fails to perform parental duties for at
least the six months prior to the filing of the termination petition.
In re C.S., [761 A.2d 1197 (Pa. Super. 2000)]. The court
should consider the entire background of the case and not
simply:
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mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all
explanations offered by the parent facing termination
of his … parental rights, to determine if the evidence,
in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004), appeal
denied, 582 Pa. 718, 872 A.2d 1200 (2005) (citing In re D.J.S.,
737 A.2d 283 (Pa. Super. 1999)).
In re Z.P., 994 A.2d at 1117 (emphasis in original).
Father’s argument relating to section 2511(a)(1) centers on his
assertion that the evidence did not support a finding that he had “exhibited a
‘settled purpose’ to abandon his [C]hild[]” or that he “failed to take
affirmative action to rectify the problems that brought the [C]hild into care.”
Father’s brief at 17. Specifically, Father contends that he visited with Child,
took “advantage of the limited services that were offered to him by CUA[,]”
that he appeared at all hearings, except for two, had completed a parenting
class, “complied with all the unsupervised visits[,]” and “attended two
therapeutic sessions with Child.” Id. at 16. Father also asserts that he
attended “anger management classes that were available to him prior to
ARC closing his case.” Id.
DHS counters Father’s arguments by noting that Father did not
participate in the case until the June 15, 2015 permanency hearing, around
the time Child was eight years old. Father’s visitation with Child at the
outset was supervised, but after December of 2015, the visits became
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unsupervised. However, in June of 2016, Father’s initial goals were modified
to include anger management counseling and parenting classes as a result of
Father’s inappropriate discipline of Child. Following that incident, the
unsupervised visitation was changed to supervised, but then all visitation
was suspended until Child’s therapist recommended reinstatement. In fact,
after that time Father had no contact with Child or the CUA representative.
Moreover, because Father waited almost six months, until shortly before the
termination petition was filed in December of 2016, to begin the anger
management counseling, he was unable to complete that goal due to his
own failure to enroll in the program. Father also did not take part in Child’s
therapeutic services (only attending two sessions) or make any effort to
understand Child’s autism or to participate in any training regarding Child’s
condition. Additionally, Father acknowledged that he lacked the ability to
care for and meet Child’s daily needs. DHS also points out that Father was
aware of his SCP objectives and was informed that he needed to complete
his objectives to avoid termination and facilitate reunification.
Thus, based on its findings and credibility determinations, the court
concluded that Father refused or failed to perform his parental duties for a
period of at least six months prior to the filing of the petition to terminate
his parental rights. After our thorough review, we determine that the record
supports the trial court’s conclusion and it did not abuse its discretion in so
holding. Therefore, Father is not entitled to relief.
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We next turn to Father’s issue in which he claims that insufficient
evidence established that termination would best serve Child’s needs and
welfare pursuant to 23 Pa.C.S. § 2511(b). Specifically, Father claims that
DHS failed to prove that “no bond [existed] between Father and Child and
that no irreparable harm would result from permanently servering the
relationship.” Father’s brief at 20. Surprisingly, Father cites testimony from
Mr. Jacques, the CUA case worker, who indicated that a bond existed
between Child and his current caregivers, that Child would be harmed if
removed from current caregivers, who understood how to meet Child’s
special needs, and that Child showed no signs of harm during the seven
month separation from Father after the May 2016 incident.
To counter this testimony, Father contends that because the court
restricted contact between him and Child, the best interest analysis was
affected and essentially promoted the bond with the foster parents.
However, Father has failed to point to evidence in the record that would
support a finding of a bond between Father and Child in light of the fact that
he was not present for much of Child’s life and that he did not put forth the
necessary effort to become involved, when given the opportunity. This is
especially so in light of Child’s autism and mental health issues. Again, we
conclude that the trial court did not abuse its discretion in that no evidence
supported a finding that severing any possible ties between Father and Child
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will have a negative effect on Child or that Child will suffer irreparable harm.
Father is not entitled to relief.
We now turn to Father’s initial issue relating to his assertion that the
court abused its discretion in changing the placement goal to adoption when
it failed to view the totality of the circumstances of the case. To address the
goal change issue raised in this matter, we are guided by the following:
In cases involving a court’s order changing the placement
goal … to adoption, our standard of review is abuse of discretion.
In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006). To hold that
the trial court abused its discretion, we must determine its
judgment was “manifestly unreasonable,” that the court
disregarded the law, or that its action was “a result of partiality,
prejudice, bias or ill will.” Id. (quoting In re G.P.-R., 851 A.2d
967, 973 (Pa. Super. 2004)). While this Court is bound by the
facts determined in the trial court, we are not tied to the court’s
inferences, deductions and conclusions; we have a “responsibility
to ensure that the record represents a comprehensive inquiry
and that the hearing judge has applied the appropriate legal
principles to that record.” In re A.K., 906 A.2d 596, 599 (Pa.
Super. 2006). Therefore, our scope of review is broad. Id.
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008). Additionally, this Court
has provided further considerations that apply in goal change situations,
stating:
Because the focus is on the child’s best interests, a goal change
to adoption might be appropriate, even when a parent
substantially complies with a reunification plan. In re N.C.,
supra 826-27 [(Pa. Super. 2006)]. Where a parent’s “skills,
including [his or] her judgment with regard to the emotional
well-being of her children, remain problematic[,]” a goal change
to adoption might be appropriate, regardless of the parent’s
compliance with a permanency plan. Id. at 825. The agency is
not required to offer services indefinitely, where a parent is
unable to properly apply the instruction provided. In re A.L.D.,
797 A.2d 326, 340 (Pa. Super. 2002). See also In re S.B.,
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supra at 981 (giving priority to child’s safety and stability,
despite parent’s substantial compliance with permanency plan);
In re A.P., 728 A.2d 375, 379 (Pa. Super. 1999), appeal denied,
560 Pa. 693, 743 A.2d 912 (1999) (holding where, despite
willingness, parent cannot meet “irreducible minimum parental
responsibilities, the needs of the child must prevail over the
rights of the parent”). Thus, even where the parent makes
earnest efforts, 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).
In re R.M.G., 997 A.2d 339, 347 (Pa. Super. 2010).
Relating to the goal change issue, Father argues that the court should
have denied DHS’s request for a goal change because there was a “lack of
appropriate services offered to Father and because the services that were
offered were offered too late (11/16/16) for him to complete, i.e., two
month[s] prior to the termination of parental rights trial (1/19/17).”
Father’s brief at 12. Father also contends that at the outset he was only
assigned three goals and that the other two goals were only added in June of
2016. Furthermore, Father asserts that the CUA representative
acknowledged “that Father had complied with ‘some’ of the family plan goals
that were assigned in the beginning of the case.” Id. Additionally, the CUA
representative testified that because Child’s therapist did not approve
reinstatement of Father’s visits with Child after the abuse incident, visits
could not be rescheduled. With regard to the two added goals, i.e., anger
management and mental health, Father suggests that the fault lay with ARC
for failure to schedule the anger management sessions in a timely manner,
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thus, limiting his attendance to only two sessions before his parental rights
were terminated. Father also claims that he could not attend the ARC
mental health program because at the time he did not have insurance.
Lastly, Father asserts that in light of Child’s autism and mental health issues,
which were a barrier to reunification, it was the CUA’s failure to provide the
proper referral to programs that would have aided Father in his
understanding of Child’s condition and that, as a result, the abuse incident
would never have occurred.
In response, DHS points out that Father’s arguments alleging a lack of
reasonable efforts have been waived because during the proceedings before
the trial court Father never contested the court’s findings that DHS had
made reasonable efforts. DHS also asserts that Father’s Rule 1925(b)
Statement of Errors Complained of on Appeal does not contain a claim of a
lack of reasonable efforts on the part of DHS. Moreover, DHS further claims
that Father has not identified where in the record this issue was preserved
for appellate review. However, despite DHS’s waiver arguments, it
addresses Father’s goal change arguments, contending that they are
meritless. Specifically, DHS identifies the fact that although Father was
directed to participate in Child’s medical and mental health appointments, he
only attended two sessions. Therefore, DHS claims that due to this failure,
Father was ineligible to receive training to aid in addressing Child’s needs.
In other words, it was not DHS’s failure to provide services, but rather it was
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Father’s choice not to take advantage of the services offered, a choice which
he cannot blame on others. DHS also identifies Father’s failure to follow up
on a referral for an anger management program, which was made an
objective in June of 2016. Rather, he waited to enroll and again blames
others for only being able to attend two sessions, one in December of 2016
and the other in January of 2017, shortly before the court ordered the
termination of his parental rights. In concluding its position on the goal
change to adoption issue, DHS states:
The evidence established that [Father] failed to comply
with the permanency plan to attain reunification with [Child] and
lacked the capacity to ensure [Child’s] safety, stability and well-
being. [Child’s] significant mental health, educational, and
behavioral needs require a caregiver who is knowledgeable
about autism and an active participant in all of [Child’s] services.
[Father] did not display an understanding or appreciation for
[Child’s] behavioral and mental health needs. This was evident
by [Father’s] non-compliance with the court’s order to attend all
of [Child’s] treatment services, which were expansive, including
weekly therapy through Elwyn, one-on-one in home services,
psychiatric services, autism support services and trauma therapy
through Hall Mercer.
DHS’s brief at 22 (citations to the record omitted).
Having reviewed the extensive record in this case, we conclude that
the court’s change of goal to adoption was not an abuse of discretion, nor
manifestly unreasonable. The facts discussed by the parties and the trial
court in connection with the termination determination support the goal
change to adoption.
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Accordingly, we affirm the trial court’s order terminating Father’s
parental rights to Child and changing the goal for Child to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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