Adoption of: V.B.M., Appeal of: R.M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: V.B.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.M., FATHER :
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:
:
:
: No. 373 WDA 2022
Appeal from the Order Entered March 11, 2022
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): No. 113 of 2021
IN RE: ADOPTION OF: V.Z.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.M., FATHER :
:
:
:
:
: No. 374 WDA 2022
Appeal from the Order Entered March 11, 2022
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): o. 114 of 2021
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 5, 2022
R.M. (“Father”) appeals from the March 11, 2022 Order that
involuntarily terminated his parental rights to twins V.B.M. and V.Z.M.
(collectively, “Children”), born in May 2013. Upon careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
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Father and D.M.S. (“Mother”) are the biological parents of Children.1
The parents have a history of drug use and domestic violence, and the
Westmoreland County Children’s Bureau (“the Agency”) has received and
investigated numerous reports regarding the family since 2014. Most
recently, on January 25, 2019, the Agency received a report that the
Greensburg Police Department attempted to serve arrest warrants on Mother
and Father for allegations of drug trafficking in their shared home and found
then-5-year-old Children alone in the home, which was in deplorable condition
with very little food. It was unclear how long Children had been in the home
unattended. Father was eventually located, arrested, and incarcerated and,
on the same day, the Agency obtained emergency custody of Children.
On February 4, 2019, the trial court adjudicated Children dependent.
Father remained incarcerated. At the hearing, the court took judicial notice
of Father’s various pending criminal charges, including various drug offenses
and six counts of Endangering the Welfare of Children stemming from a 2018
home raid where Greensburg police found several bags of methamphetamines
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1The court terminated Mother’s parental rights to Children on November 10,
2021. She is not a party to this appeal.
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and marijuana.2 The court also took judicial notice of Strangulation and other
related charges stemming from a domestic dispute with Mother.3
The trial court ordered Father to participate in a drug and alcohol
evaluation, comply with random drug screens, undergo a mental
health/psychiatric evaluation, participate in a parenting assessment,
participate in domestic abuse counseling, obtain suitable housing, secure and
maintain employment, comply with terms of probation, and participate in
available counseling services while incarcerated. The trial court also ordered
Father to comply with all recommendations of the above-mentioned
evaluations and assessments as well as provide the Agency with written
documentation of completion of the services.
On July 15, 2020, Father pleaded guilty to the above-mentioned charges
at two separate dockets and the court sentenced him to six to twenty-three
months’ incarceration on the drug and child endangerment charges, and two
years of probation and no abusive contact with Mother on the domestic
violence charges. During this time, Father was also indicted on federal drug
charges.
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2 The Commonwealth charged Father with Possession with the Intent to
Deliver, Possession of a Controlled Substance, Possession of Marijuana, six
counts of Endangering the Welfare of Children, and three counts of Tamper
With/Fabricate Physical Evidence at Docket No. 637-2019.
3The Commonwealth charged Father with Strangulation, Simple Assault, and
Harassment at Docket No. 640-2019.
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The trial court continued to hold permanency review hearings and
repeatedly ordered Father to comply with the above-mentioned services. On
March 19, 2021, Father was released from incarceration. Shortly thereafter,
Father relapsed on methamphetamines. On July 12, 2021, the court held a
permanency review hearing and found that Father was minimally compliant
with the permanency plan and had made minimal progress toward
reunification with Children.
On August 21, 2021, the Agency filed petitions to involuntarily terminate
Father’s parental rights to Children. On January 27, 2022, approximately
three years after Children came into the care and custody of the Agency, the
trial court held a hearing on the petitions. The trial court appointed Children’s
guardian ad litem (GAL) to serve as Children’s legal counsel and, at the
beginning of the termination hearing, the court found that the dual role did
not pose a conflict.
The trial court heard testimony from Amanda Davis, Agency
caseworker; Derek Carothers, staff member of ARCpoint Labs; Neil
Rosenblum, Ph.D.; Kelsey Huffman, probation officer; Eamon Galvin, co-
director of Moving Forward 15601, LLC (“Moving Forward”); Barbara
Desmond, social worker for Moving Forward; Michelle Dornin, co-director of
Moving Forward; and Father.
Ms. Davis testified in accordance with the above-mentioned events.
Additionally, Ms. Davis informed the court that Children have been in care for
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37 months and Father has failed to complete drug and alcohol counseling,
engage in mental health treatment, obtain appropriate housing, participate in
domestic abuse counseling, participate in anger management, comply with
probation, and sign any necessary releases of information. Ms. Davis
explained that Father has not demonstrated the capacity to resume custody
of Children because his drug use and incarceration “severely impacted” his
ability to provide for the proper supervision of Children. N.T. Hearing,
1/27/22, at 168. Ms. Davis stated that Father was currently incapable of
meeting Children’s needs.
Ms. Davis further testified that Children have been in a pre-adoptive
foster home for 15 months, are doing very well, and are bonded with their
foster mother. Ms. Davis stated that Children have a strong relationship with
their foster mother and explained, “[t]hey are openly expressive to their
feelings and enjoy being in the presence of their foster mother. . . . They have
displayed affection by hugging and verbal cues such as [‘you are my family’]
and [‘I love you.’] [F]oster mother is always available to [C]hildren and
assures that they are safe, both verbally and physically.” Id. at 173. Ms.
Davis testified that Children are doing well in school, friendships, and
activities.
Ms. Davis testified that Father participates in supervised visits with
Children and Father is very engaged and acts appropriately. Ms. Davis
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observed, however, “the bond seems to be less of a parent-child relationship
and more of a friendly nature.” Id. at 155.
Finally, Ms. Davis testified that terminating Father’s parental rights was
in Children’s best interest and would not have an adverse effect on Children.
Ms. Davis explained that both Children refer to Father by his first name, have
voiced concerns about their own safety if returned to Father’s care due to his
drug use, and have expressed fear of not having food or access to school if
they are returned.
Mr. Carothers testified that since July 2021, Father had missed 24 out
of 26 requested drug screens even though lab staff left notes on Father’s door
22 times to encourage Father to comply with testing.
Dr. Rosenblum testified that he conducted an initial mental health
evaluation of Father on May 21, 2021, where Father admitted to extensive
drug use as well as selling drugs, and presented as remorseful and motivated
to turn his life around. Dr. Rosenblum explained that Father failed to disclose
that the court had ordered him to have a mental health evaluation and that
he had recently relapsed on methamphetamines. At the time, Dr. Rosenblum
recommended that the Agency give Father additional time to complete his
treatment goals.
Dr. Rosenblum conducted a second evaluation on September 22, 2021.
He testified that Father behaved much differently during the second evaluation
and was increasingly angry, antagonistic, confrontational, rude, and “highly
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inappropriate[,]” which caused Dr. Rosenblum to end the evaluation early.
Id. at 36.
Dr. Rosenblum concluded that Father had made no progress in
addressing his treatment goals and, in fact, had taken several steps backward
in addressing his diagnoses.4 Dr. Rosenblum testified that, despite Father’s
awareness of his problems, he had a very limited ability to control his emotions
and follow through with his treatment goals, and he displayed anger and a
lack of stability which clearly calls into question Father’s “ability to function in
a stable manner as a custodial parent.” Id. at 41.
Dr. Rosenblum informed the court that it was his “strong opinion” that
adoption was in Children’s best interest, stating that even though Father
displayed some intuitive parenting skills and genuinely loves his children,
there is no “viable potential for reunification.” Id. at 41-42, 45. Dr.
Rosenblum further opined that Children would experience “some sense of loss”
if Father’s rights were terminated but that “the advantages would far outweigh
the disadvantages of dealing with losing that relationship.” Id. at 45. He
explained that Children are “finally getting the help educationally,
therapeutically, recreationally [and] finally having an opportunity to develop
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4 Dr. Rosenblum diagnosed Father with a history of stimulant use disorder,
cannabis use disorder, unspecified trauma-and-stress-related disorder,
unspecified depressive disorder, adult antisocial disorders, and antisocial
personality traits. Dr. Rosenblum also diagnosed Father with secondary
diagnoses of a history of relationship distress in both partner and child
relationships.
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their personalities, their interests, their identities in this [foster] home, and
this is what they need in order to move forward[.]” Id. at 46. Finally, he
testified that Children have “taken root” in the foster home and would
experience a major setback if they were removed. Id. at 45-46.
Ms. Huffman, a probation officer with Westmoreland County Adult
Probation, stated that Father is non-compliant with the terms of his parole and
probation, including drug and alcohol evaluation and testing, and non-
compliant with reporting to her office. She informed the court that her office
recently filed parole and probation revocation petitions, which are awaiting
court dates, and confirmed that it is possible that Father might be re-
incarcerated due to his non-compliance.
Mr. Galvin informed the court that Father was discharged from domestic
violence and anger management therapy sessions for non-compliance. Mr.
Galvin explained that Father only attended 4 out of 15 sessions that were
offered to him.
Ms. Desmond testified she supervised therapeutic telephone visits
between Father and Children from January 2021 until March 2021, when
Father was released from prison. She explained that since Father’s release,
he been offered 3-hour supervised therapeutic visits twice per month, and he
has attended 6 out of the 10 visits. Ms. Desmond stated that Children are
excited to see Father when he attends visits, and that Father is excellent when
he interacts with Children. Ms. Desmond testified that the only thing Father
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could improve during visitation was to attend more consistently because
Children are very distressed when he does not attend. Ms. Dornin also
testified regarding supervised visits between Father and Children. She
supervised visits since the beginning of the case, including telephone and
virtual visits while Father was incarcerated, and observed that Father was
appropriate, affectionate, and nurturing to Children during the visits.
Father testified and informed the court that he was 30 days sober.
Father admitted that he relapsed soon after he was released from
incarceration but stated that he recently completed intensive drug and alcohol
rehabilitation and was currently participating in intensive outpatient therapy
three times a week. Father also testified that he completed anger
management and parenting classes while incarcerated, and that he
participated in a mental health evaluation the day before the hearing. Father
explained that he refused to sign releases for the Agency in the past because
he did not trust the Agency, but that he would be willing to sign releases now.
Despite the fact that Father opposed termination of his parental rights,
he acknowledged that Children were “traumatized” by his past behavior and
that it was in their best interest to stay in foster care. Id. at 70. Father
stated multiple times that he was not mentally ready to assume custody of
Children. Id. at 70, 197. However, Father, explained, he is now ready to do
whatever he needs to do to reunify with Children in the future.
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After hearing all the evidence, the trial court concluded that it was in
Children’s best interest to terminate Father’s parental rights. Children’s GAL
agreed with this disposition.
Father timely appealed and filed a contemporaneous Pa.R.A.P. 1925(b)
statement. The trial court relied on its February 16, 2022 Opinion in lieu of a
Rule 1925(a) opinion.
Father raises the following issues for our review:
1. Was clear and convincing evidence presented to show that
termination was warranted pursuant to 23 Pa.C.S.[] Sections
2511(a)(2), 2511(a)(5), 2511(a)(8) and 2511(b)?
2. Did the trial court err in granting the termination of Father’s parental
rights despite the lack of clear and convincing evidence that the
causes of Father’s incapacity, abuse, neglect, or refusal cannot or will
not be remedied by Father?
3. Did the trial court err in granting the termination of Father’s parental
rights by failing to give primary consideration to the developmental,
physical and emotional needs and welfare of the child?
Father’s Br. at 4.
A.
In addressing Father’s issues, we are mindful of our well settled
standard of review. When we review a trial court’s decision to grant or deny
a petition to involuntarily terminate parental rights, we must accept the
findings of fact and credibility determinations of the trial court if the record
supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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. (citation omitted). “Absent
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an abuse of discretion, an error of law, or insufficient evidentiary support for
the trial court’s decision, the decree must stand.” In re R.N.J., 985 A.2d 273,
276 (Pa. Super. 2009) (citation omitted). We may not reverse merely because
the record could support a different result. T.S.M., 71 A.3d at 267. We give
great deference to the trial courts “that often have first-hand observations of
the parties spanning multiple hearings.” Id. Moreover, “[t]he trial court is
free to believe all, part, or none of the evidence presented, and is likewise
free to make all credibility determinations and resolve conflicts in the
evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation
omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). If the court determines that the parent’s
conduct warrants termination of his or her parental rights, the court then
engages 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.” Id. (citation omitted). Notably, we need only agree
with the court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination of parental rights. In re K.Z.S.,
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946 A.2d 753, 758 (Pa. Super. 2008). We concentrate our analysis on
subsection 2511(a)(2).
B.
In his first two issues, Father avers, inter alia, that the trial court abused
its discretion when it terminated his parental rights pursuant to Section
2511(a)(2). Father argues that the trial court failed to consider that he
participated in many services and exhibited positive parenting skills during
visitation with Children, which demonstrates that his “admitted battle with
addiction” does not “impact his parenting during the visits with Children.” Id.
at 8-9. Our review of the record belies Father’s claims.
Section 2511(a)(2) provides for termination of parental rights where the
petitioner demonstrates by clear and convincing evidence that “[t]he 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.” 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P., 47 A.3d 817,
827 (Pa. 2012). The grounds for termination of parental rights under Section
2511(a)(2) due to parental incapacity are not limited to affirmative
misconduct; those grounds may also 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). “Parents are required to make diligent efforts
toward the reasonably prompt assumption of full parental duties.” In re
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C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019). Notably, a “parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous.” In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010).
Moreover, a parent’s repeated pattern of criminal activity coupled with a
failure to comply with court-ordered goals may satisfy the requisites of
incapacity, abuse, neglect or refusal. In re Adoption of W.J.R., 952 A.2d
680, 687 (Pa. Super. 2008).
Finally, sincere efforts to perform parental duties may still be insufficient
to remedy an incapacity. Z.P., 994 A.2d at 1117. This is because subsection
(a)(2) “emphasizes the child’s present and future need for essential parental
care, control or subsistence necessary for his physical or mental well-being,”
especially “where disruption of the family has already occurred and there is
no reasonable prospect for reuniting it.” Id. (citation omitted).
Father’s claims that he participated in services and that his illegal drug
use does not impact his parenting are both disingenuous. The trial court
emphasized that Children have been in placement for three years and credited
Father’s admission that he is not able to care for Children at this time.
Moreover, the trial court discredited Father’s uncorroborated testimony that
he has participated in services. The trial court opined:
[] Children have been in Agency custody for approximately three
years and have been in their current foster home for over a year.
Father has been minimally compliant with court-ordered services
and has made minimal progress towards alleviating the
circumstances which initially led to [] Children’s placement.
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Although Father recently participated in a rehabilitation program,
he stated that he is not ready to have Children placed back into
his care. Father has had minimal involvement with the Agency
since he refuses to sign releases of information regarding services.
The Agency has not been able to verify Father’s participation in
any court-ordered services. . . . Father has been incarcerated six
times during [] Children’s lifetime. He has an unstable past and
has been inconsistent with services throughout [] Children’s
placement. It is unlikely that Father will be able to remedy his
repeated and continuous incapacity in the near future, as three
years have passed, and Father has failed to participate in the
majority of court-ordered services.
Trial Ct. Op., 2/16/22, at 14-15 (unpaginated).
Our review of the record supports the trial court’s findings, and we
decline to reweigh the evidence or usurp the trial court’s credibility
determinations. The Agency presented clear and convincing evidence that
Father’s refusal to participate in services and maintain his sobriety has
rendered him incapable of providing essential parental care to Children.
Accordingly, we find no abuse of discretion.
C.
In his final issue, Father challenges the trial court’s conclusion that
terminating his parental rights was in Children’s best interest pursuant to
Section 2511(b). Father argues that the trial court failed to take Father and
Children’s relationship into consideration and avers that the record is devoid
of evidence that terminating Father’s parental rights would serve Children’s
welfare or needs. Father’s Br. at 10. We disagree.
The trial court did consider the relationship between Father and
Children. The court acknowledged that Father loves Children, visits go well,
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and Children are generally excited to see Father when he appears.
Nevertheless, the trial court credited Ms. Davis’s testimony that Father and
Children have more of a friendly bond than a parent-child bond, Children are
thriving in their current foster home, and termination of parental rights would
be in their best interest. The trial court further credited Dr. Rosenblum’s
“strong” opinion that termination of Father’s parental rights was in Children’s
best interest, the advantages outweighed the disadvantages, and Children
would be adversely affected if they were removed from their current foster
home. The trial court opined:
Father clearly loves his Children and recognizes the trauma his
past actions have caused them. While we appreciate Father taking
responsibility for his past actions, [] Children are currently thriving
and making developmental progress in their placement. []
Children have become rooted in their foster family and removing
them from this family would cause them further stress as they
have developed stability in their current home. For these reasons,
this [c]ourt is convinced that termination of Father’s parental
rights would best serve the needs and welfare of [Children].
Trial Ct. Op. at 20. The record supports the trial court’s findings, and we
decline to reweigh the evidence. Accordingly, we discern no abuse of
discretion.
D.
In conclusion, our review of the record supports the trial court’s findings.
We discern no error of law or abuse of discretion with respect to the trial
court’s conclusion that the Agency presented clear and convincing evidence to
terminate Father’s parental rights pursuant to Section 2511(a) and (b).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2022
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