In Re: W.A., a minor, Appeal of: J.P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: W.A., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: J.P., FATHER : No. 67 WDA 2018
Appeal from the Decree December 8, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No: CP-02-AP-0000186-2016
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER*, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 11, 2018
J.P. (“Father”) appeals from the decree entered December 8, 2017, in
the Court of Common Pleas of Allegheny County, which terminated
involuntarily his parental rights to his minor son, W.A. (“Child”), born in
December 2006.1 After careful review, we affirm.
The Allegheny County Office of Children, Youth and Families (“CYF”) has
a lengthy history of involvement with this family dating back to September
2011. N.T., 12/8/17, at 57. CYF received its most recent referral on
November 28, 2014, which alleged housing issues, medical neglect, and poor
parenting skills on the part of Mother. Id. at 60-61. CYF conducted an
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* Retired Senior Judge assigned to the Superior Court.
1 The trial court also terminated the parental rights of W.A.’s mother, L.A.
(“Mother”). Mother appealed the termination of her parental rights at Superior
Court docket number 48 WDA 2018. We address her appeal in a separate
memorandum.
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investigation, which revealed that Mother was intellectually limited and
appeared to be hoarding food. Id. at 61. In addition, Child’s younger half-
brother, J.A.A., had been hospitalized several times for reactive airway
disease, and Mother was failing to administer his medication properly. Id. at
61, 112. CYF referred Mother for in-home services. Id. at 62.
CYF obtained an emergency custody authorization for Child on June 26,
2015, after an incident during which J.A.A. “fell down and cut his lip open and
chipped his tooth.” Id. at 63. CYF directed Mother to take J.A.A. to the
hospital, but she failed to do so. Id. CYF was also concerned that Mother’s
home was cluttered and dirty, and that she was failing to provide adequate
supervision for Child and ensure his safety. Id. at 63-64.
Meanwhile, CYF made contact with Father. Id. at 65. Father was living
separately from Mother with Child’s paternal grandmother. Id. However, CYF
concluded that Father would not be an appropriate caregiver. Id. Father’s
home had several safety issues, and a CYF parenting assessment revealed
“that he would not be able to parent unless he had somebody within earshot
of him.” Id. Child was adjudicated dependent on August 15, 2015. Id. at
66.
On October 20, 2016, CYF filed a petition to terminate Father’s parental
rights to Child involuntarily. The trial court conducted a hearing on December
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8, 2017, after which it entered a decree terminating Father’s parental rights.2
Father timely filed a notice of appeal on January 5, 2018, along with a concise
statement of errors complained of on appeal.
Father now raises the following question for our review: “Did the trial
court abuse its discretion and/or err as a matter of law in concluding that CYF
met its burden of proving by clear and convincing evidence that termination
of [Father’s] parental rights would best serve the needs and welfare of the
Child pursuant to 23 Pa.C.S.[A.] §[]2511(b)?” Father’s Brief at 4.
We review Father’s issue mindful of our well-settled standard of review:
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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2 In a single sentence at the conclusion of his brief, Father alleges that the
trial court erred by failing to appoint legal counsel for Child. To the contrary,
Child had legal counsel during the termination hearing, and his counsel
continues to represent him on appeal.
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis:
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) (citations omitted).
In this case, the trial court terminated Father’s parental rights pursuant
to Section 2511(a)(2), (5), (8), and (b), which provides 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.
***
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
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conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
***
(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), (5), (8), and (b).
In his brief on appeal, Father concedes that CYF presented clear and
convincing evidence that his parental rights should be terminated pursuant to
Section 2511(a). Father’s Brief at 9 (“CYF, the petitioner, did clearly and
convincingly establish threshold grounds for termination pursuant to
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23 Pa.C.S.[A.] §[]2511(a)(2).”). Moreover, Father failed to include Section
2511(a) in his concise statement and in his statement of questions involved.
See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (holding that
the appellant waived Section 2511(a) by failing to develop it in her brief, and
that she waived Section 2511(b) by failing to include it in her concise
statements and statement of questions involved). Therefore, we need only
consider whether the trial court abused its discretion by terminating Father’s
parental rights pursuant to Section 2511(b).3 The requisite analysis is as
follows:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. 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. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
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3 We remind the trial court that Section 2511(a)(5) and (8) does not provide
an appropriate basis to terminate Father’s parental rights, because Child was
not removed from Father’s care as the statute requires. See In re C.S., 761
A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (“Termination under subsection
2511(a)(5) was not appropriate here because the record reflects that C.S. was
never in Appellant’s care and, therefore, could not have been removed from
his care.”).
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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.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted)).
Here, Father argues that the trial court abused its discretion by
concluding that termination of his parental rights would best serve Child’s
needs and welfare. Father’s Brief at 7-14. Father alleges that the court
conducted an improper Section 2511(b) analysis, by focusing on his failings
as a parent, and on the quality of Child’s foster parents, rather than the effect
that terminating his parental rights would have on Child. Id. at 7, 12-14.
In its opinion, the trial court found there is no possibility that Father will
ever be able to care for Child, due to his significant intellectual limitations and
inability to live independently, among other things. Trial Court Opinion,
2/6/18, at 10-11. The court further found that Child has “a ‘relationship’ of
sorts with . . . Father,” but that this relationship is not so substantial that
severing it would subject Child to a negative psychological impact. Id. at 11.
The court reasoned that Child has been in care for more than two and a half
years, and that Father has had only sporadic contact with him during that
time. Id. at 9. In addition, Child is benefiting from the care of his pre-
adoptive foster parents, who can provide him with the loving and stable
environment he needs. Id. at 11-12.
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After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion. During the termination hearing,
CYF presented the testimony of psychologist, Neil Rosenblum, Ph.D. Dr.
Rosenblum testified that he conducted a series of psychological evaluations
involving Father, Child, and Child’s foster parents between August 2016 and
November 2017. N.T., 12/8/17, at 8-9, 18, 21, 23. Based on these
evaluations, Dr. Rosenblum opined that Father lacks the capacity to parent
Child. Id. at 24. He emphasized Father’s “very definite limitations in his own
personal functioning and continued dependency on other people to provide
him with support and help in taking care of himself.” Id. Father exhibits a
long-standing history of intellectual limitations. Id. at 23. Moreover, Father
has no employment history and he has never been able to live independently.
Id. at 24.
Concerning Child’s relationship with Father, Dr. Rosenblum testified that
Child has a “familiarity” with Father, “more like a peer-to-peer relationship,”
but not a parent/child bond. Id. at 23. He continued, “[I]t’s a peripheral
relationship. In my opinion, [Child] can take it or leave it. It’s not been
something that’s consistent in his life.” Id. Dr. Rosenblum did not believe
that severing Child’s relationship with Father would cause him severe trauma.
Id. at 25-27. He described Father’s interactions with Child as follows:
. . . . I mean, [Child] knows his dad. They seem to have some
physical similarities and things in common with one another in
terms of their looks and appearance.
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Father was also, you know, someone who was pretty flat,
lacking in enthusiasm, very passive in his interaction with [Child].
When guided into certain activities by me during the
session, he was able to follow through and play some games with
[Child], but he seemed to know very little about his school, about
his special education needs, about his therapy.
I got the impression that [F]ather comes and spends time
with [Child], but, again, had very limited -- had definite limitations
in his parenting capacity and his ability to really understand or
respond effectively to [Child] and his developmental issues.
Id. at 21-22.4
Dr. Rosenblum also praised Child’s foster parents. Id. at 10-11, 18-20,
25. He testified that the foster parents “are very observant, very responsible
and very attentive to [Child’s] needs. . . . [T]here’s no question that his
current foster home placement has been extremely beneficial to [Child] and
has helped him to improve his ability to function and respond to different
portions of the environment more effectively.” Id. at 10-11. Dr. Rosenblum
recommended that adoption by the foster parents would be consistent with
Child’s needs and welfare. Id. at 25.
Thus, the record supports the trial court’s findings pursuant to Section
2511(b). Father’s intellectual limitations and inability to live independently
render him incapable of parenting Child. Moreover, while Child has a
relationship with Father, this relationship is merely peripheral and is not a
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4 The record indicates that Father missed many of his visits with Child. CYF
caseworker, Vickie Naccarato, testified that Father attended only twenty-six
out of fifty-three scheduled visits. N.T., 12/8/17, at 101.
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necessary and beneficial parent/child bond. Child is now in a pre-adoptive
foster home, which has been extremely beneficial for him. Child’s foster
parents are supportive of his needs, and can provide him a safe and stable
environment.
While Father contends that the trial court should not have focused on
his parental incapacity and the quality of Child’s foster parents when
conducting its Section 2511(b) analysis, this argument is specious. As we
stated above, Child’s relationship with Father was only one of many factors
for the court to consider. C.D.R., 111 A.3d at 1219. The court was free to
consider any other factors relevant to Child’s needs and welfare, including
Father’s inability to provide appropriate care, and the love, comfort, security,
and stability that Child will receive in his foster home. Id. at 1219-20.
Based on the foregoing, we affirm the trial court’s December 8, 2017
decree terminating Father’s parental rights to Child involuntarily.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2018
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