In Re: M.E.W., a Minor

J-S21031-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.E.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.R.W., FATHER :
:
:
:
:
: No. 407 MDA 2022
Appeal from the Decree Entered February 2, 2022
In the Court of Common Pleas of Wyoming County Civil Division at
No(s): 2021-00015
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 19, 2022
D.R.W. (Father) appeals from the February 2, 2022 decree entered in
the Court of Common Pleas of Wyoming County (orphans’ court) granting the
petition filed by Wyoming County Children and Youth Services (CYS) to
involuntarily terminate his paternal rights to Child (d.o.b. December 2010)
pursuant to the Adoption Act, 23 Pa.C.S. § 2511 (a)(1), (2), (5), (8) and (b).
Father claims that CYS failed to provide clear and convincing evidence to
support the termination and that the orphans’ court opinions fail to provide a
rationale capable of review. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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I.
On August 5, 2021, CYS filed a petition for involuntary termination of
the parental rights (TPR) to Child and the court held a TPR hearing on January
31, 2022.1 Crystal Miller, CYS Caseworker; Michael Cowley, Esquire, Child’s
guardian ad litem (GAL); Father; and his wife, J.W., testified.2 The following
testimony was produced.
Father and Child’s natural mother (Mother) were not married when Child
was born in 2010. Before the dependency case commenced, Father lost
custody of Child and an order suspended him from making any contact with
her. Hence, if he did interact with her, it was in violation of the orphans’
court’s order. The dependency action commenced when Child was removed
from Mother’s care and adjudicated dependent on October 8, 2019. She was
placed in a foster family with her sister where she has remained. J.W. testified
____________________________________________
1 The court held a TPR hearing on November 9, 2021, that was continued until
January 31, 2022, because of the court’s schedule. On December 1, 2021,
the court involuntarily terminated the parental rights of natural mother
(Mother) and Father to Child. It vacated the order as to Father on December
2, 2021. Mother did not appeal the termination of her parental rights and is
not a party in this appeal.
2 Father mentions that Child, eleven-years-old at the time of the TPR hearing,
did not testify. (See Father’s Brief, at 16). However, he does not argue that
this was error or a ground for overturning the court’s order. In any event, it
was within the court’s discretion whether Child testified. See K.L.C.-S v.
D.W.S., 245 A.3d 1071, 2020 WL 7353815, unpublished memorandum, at *6
(Pa. Super. filed Dec. 15, 2020) (“It is clear that the trial court has discretion
whether or not to have minor children testify at custody hearings.”) (brackets
omitted) (citing Pa.R.C.P. 1915.11(b), (c)).
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that she and Father had a strong relationship with Child and her siblings prior
to her 2019 adjudication of dependency. On the occasions that Father would
pick Child up from school, she appeared calmer at the home he shared with
his wife and stepson than when she was at Mother’s home. Father and J.W.,
his wife of twenty years, testified that Father actively played with Child, tried
to teach her right from wrong, oversaw her homework, spent time doing
activities with her outdoors and watched her favorite movie with her. (See
N.T. TPR Hearing, 1/31/22, at 9-10, 32, 44, 48-50, 82-83, 85-86).
Father did not request visitation with Child in 2019. The November 2019
Family Service Plan (FSP) for Father included goals that he obtain appropriate
housing, become gainfully employed by December 2020, submit to mental
health and drug and alcohol evaluations, and maintain consistent visitation
with Child. Letters sent by CYS to Father’s last known address were returned
undeliverable. Father was not present at the initial permanency review
hearing on February 11, 2020. He attended the next permanency review
hearing on July 14, 2020, and requested visitation with Child, which the court
granted. (See id. at 13-16, 32-33, 49).
On July 17, 2020, Father attended a meeting with Ms. Miller at the CYS
office and he reviewed, discussed and signed the FSP with CYS Caseworker
Crystal Miller. Pursuant to the goals established by the FSP, Father again was
to immediately seek a drug and alcohol (D&A) evaluation, secure a mental
health evaluation, obtain gainful employment and maintain consistent
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visitation with Child. Despite having agreed with these goals, Father advised
Ms. Miller that he did not need either a D&A evaluation or mental health
treatment. However, when asked to provide a drug screen pursuant to the
court’s standing order, he refused the test and stated he “would fail for Vicodin
and shit.” He had no excuse for why he had made no contact with CYS for
the preceding approximately eight months after Child had been adjudicated
dependent other than that he felt that the court system had not treated him
fairly in an unrelated custody matter involving Child’s natural mother. (Id. at
17); (see id. at 14-18).
Father had seven supervised visits with Child after July 2020 until his
final visit with her on October 27, 2020. Ms. Miller testified that Father acted
appropriately and Child did not object to them. (See id. at 27, 34, 36).
On November 1, 2020, Father was arrested and incarcerated for four
days for the domestic abuse of J.W., which had occurred in the presence of
his minor stepson, who called 911. Father explained the domestic abuse
incident was the result of him not wanting J.W. to leave the home that day to
acquire illegal drugs. J.W. corroborated this and accused Father of drinking
alcohol that day. The court suspended Father’s visitation with Child upon his
arrest, but Father did not contact CYS to reinstate visitation when he was
released on November 5, 2020, despite being present at the December 23,
2020 permanency review hearing. Therefore, he had not seen Child since
October 27, 2020, more than fifteen months prior to the TPR hearing. Despite
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this and his failure to send Child any cards, letters or gifts for the
approximately three birthdays and Christmases that had passed while she was
in placement, he and J.W. testified that he had a strong relationship with Child
prior to the involvement of CYS in 2019. He conceded that there was a court
order in place suspending his contact with Child when he saw her in 2019 prior
to the dependency action’s commencement. (See id. at 21, 27, 48-50, 65-
66, 77, 81, 83, 90).
Ms. Miller testified that Father failed to reach out to contact her at any
time inquiring about Child’s well-being and welfare. Even though Ms. Miller
told him that Child was to undergo surgery for polyps related to a possible
diagnosis of cystic fibrosis, he failed to make himself available to be with her
at the time of the surgery. In fact, he blocked Ms. Miller’s cell phone number
so that she was unable to contact him further to tell him the surgery’s
outcome. (See id. at 25-26).
Reunification with either parent remained the primary goal for Child
pursuant to the FSP until the orphans’ court approved a goal change to
adoption after a December 23, 2020 permanency review hearing. Father
appeared at the hearing and still had not started either a D&A program or
obtained a mental health evaluation. Father finally appeared for his first D&A
evaluation on January 27, 2021, and admitted he had no excuse for the six-
month delay. Had he begun participating in D&A or mental health evaluations
immediately as he had been ordered to do, he would have had sixty-one
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sessions as of the date of the TPR hearing. Instead, he had attended only five
D&A sessions (the evaluation and four treatment sessions) from the time he
finally got his evaluation on January 27, 2021, until they stopped altogether
on June 9, 2021. Thirteen of his fifteen drug screens were negative. In June
2021, Father failed a drug screen, testing positive for THC, which he attributed
to ingesting a gummy bear he had purchased at a local gas station, an
explanation Ms. Miller found implausible. At the time of the TPR hearing, he
was residing at the Wyoming County Correctional Facility for failing a
probation test for alcohol. Father never attempted to schedule the mental
health evaluation ordered in the FSP. (See id. at 19, 21-24, 34, 41, 43, 47,
73).
Father also failed to obtain employment to financially provide for Child
and he has no income. He claimed that he had not been employed since 2019
because he could not afford to go back and forth for the limited amount he
was earning. His wife J.W.’s social security disability was the only income
available for his household. J.W. maintained that she and Father had the
ability to financially care for Child despite his failure to obtain employment and
his lack of other income. Although Father justified his inability to find
employment or attend mental health treatment as being caused by a lack of
available transportation, he also admitted that J.W. had a reliable vehicle
available for him to use for those purposes. (See id. at 16, 62, 69-71, 87).
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Father testified that Child and her half-sister have an “uncanny bond”
with one another. He admitted that he does not have a strong bond with Child
but believes they “can get [it] back.” Father agreed that it was “going on
three years since [he] last had any involvement” with Child. He stated that
he should have been allowed visitation with Child after his abuse incident with
J.W. because “[p]eople get arrested all the time [and] get their visits back.”
(Id. at 49, 65-66, 68, 75).
Ms. Miller maintained that Child is very bonded with her half-sister with
whom she has resided in the foster care home since November 15, 2019.
Child does not want to be separated from her sister or to live with Father,
whom she refers to as mean. Ms. Miller testified that, “the girls are a lifeline
to each other” and that “separating them would … be detrimental to both of
the girls.” Child is very bonded to the pre-adoptive family, considers the other
children in the home her siblings, and calls the parents “mom” and “dad.” She
wants to stay where she is placed because she feels safe there and wants to
be with her sister. She does not ask about Father and had no adverse reaction
when her visits with him were suspended. Child is happy and doing well in
school, which is an improvement from her educational history prior to her
placement. Ms. Miller testified that there is no “residual bond” between Child
and Father and that it would be in Child’s best interests to have Father’s
parental rights terminated. (Id. at 11, 31); (see id. at 10, 20-21, 28-31).
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Mr. Cowley, Child’s GAL, stressed that Child staying in her foster home
would provide her with needed stability. Child fears being removed from her
foster home where she feels safe and has a “clear bond with [her] proposed
adoptive parents.” While he acknowledged that Father loves Child, he did not
believe he was capable of taking the actions necessary to be a parent. He
believed that it would be in Child’s best interests to involuntarily terminate
Father’s parental rights. (Id. at 107); (see id. at 105-09).
On February 2, 2022, the orphans’ court issued an order containing
detailed findings of fact and conclusions of law and concluded that there was
sufficient evidence to involuntarily terminate Father’s parental rights based on
23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). (See Order, 2/22/22, at 1-5).
Father timely appealed and filed a concise statement of errors complained of
on appeal.3 See Pa.R.A.P. 1925(a)(2)(i). On April 2, 2022, the orphans’ court
filed a supplemental opinion in which it concluded that the evidence
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3 We review the orphans’ court’s order for an abuse of discretion. See In re
G.M.S., 193 A.3d 395, 399 (Pa. Super. 2018) (citation omitted). Moreover,
“[w]e give great deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.” In re Interest of
D.F., 165 A.3d 960, 966 (Pa. Super. 2017). “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 S.H., 879 A.2d
802, 805 (Pa. Super. 2005). “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 A.S., 11 A.3d
473, 477 (Pa. Super. 2010). “If competent evidence supports the trial court’s
findings, we will affirm even if the record could also support the opposite
result.” Id.-8-
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established that there was no bond between Father and Child and that
termination of parental rights would best serve Child’s best interests. (See
Opinion, 4/02/22, at 1-4).
II.
A.
The orphans’ court terminated Father’s parental rights pursuant to
Section 2511(a)(1),(2), (5), (8) and (b) of the Adoption Act, which provide:
(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.
(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 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.
* * *
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(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. § 2511(a)(1), (2), (5), (8) and (b).
It is well-settled that “[w]e need only agree with [the trial court’s]
decision as to any one subsection of Section 2511(a) and subsection (b) in
order to affirm the termination of parental rights.” Int. of K.M.W., 238 A.3d
465, 473 (Pa. Super. 2000) (citation omitted). For the following reasons, we
conclude that the orphans’ court correctly determined that CYS met its burden
of proof under subsections 2511(a)(2) and (b).
B.
Father’s argument regarding subsection 2511(a) does not dispute the
testimony offered by CYS, but instead maintains that the evidence was
insufficient, and that the orphans’ court failed to explain its rationale for its
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conclusion that termination of parental rights was in Child’s best interests in
light of his testimony.4 (See id. at 19, 21-29). We disagree.
We first address the court’s termination of Father’s parental rights
pursuant to Section 2511(a)(2). See Int. of K.M.W., supra at 473.
In a termination proceeding, the moving party must produce clear and
convincing evidence with respect to the following elements to terminate
parental rights pursuant to Section 2511(a)(2): (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or
refusal 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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.
2003).
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4 Father’s argument that the orphans’ court failed to explain its reasoning
appears to be an attempt to have this Court re-weigh the evidence. (See
Father’s Brief, at 19, 21-22, 27-29) (the court “does not explain why it
disregards the meaningful and compelling evidence of [] Father and carefully
consider the entire record.”). While the orphans’ court decisions are not
lengthy, when read in tandem, they detail the evidence on which the court
relied, that Father met the factors for termination and lead to its conclusion
that there is no bond between Father and Child and that termination would be
in Child’s best interests. In fact, the April 2, 2022 opinion expressly refers to
Father’s testimony and why the testimony of Ms. Miller belied his version of
events. (See Orphans’ Court Opinion, 4/02/22, at 3). The orphans’ court
decisions provide the testimony on which it relied in reaching its decision, and
that the evidence established the factors necessary for termination. (See
Orphans’ Court Order, 2/02/22, at 1-5); (Orphans’ Court Opinion, 4/02/22, at
1-4).
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Pursuant to Section 2511(a)(2), parents are “required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” In re J.R.E., 218 A.3d 920, 925 (Pa. Super. 2019) (citation
omitted). “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.” See id. (citation omitted).
“The grounds for termination of parental rights under Section 2511(a)(2) 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 S.C., 247 A.3d 1097, 1104
(Pa. Super. 2021) (citation omitted). “It is incumbent upon a parent when
separated from his child to maintain communication and association with the
child. This requires an affirmative demonstration of parental devotion,
imposing upon the parent the duty to exert himself, to take and maintain a
place of importance in the child’s life.” In re T.D., 949 A.2d 910, 919 (Pa.
Super. 2008), appeal denied, 970 A.2d 1148 (Pa. 2009) (citation omitted).
“The parent wishing to reestablish his parental responsibilities bears the
burden of proof on this question.” Id. (citation omitted).
Instantly, contrary to his assertion otherwise, the court was aware of
Father’s testimony that he had a strong relationship with Child prior to the
involvement of CYS in 2019. (See Trial Ct. Op., 4/02/22, at 3). However, it
observed that nearly three years had passed since then and that in the
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meantime, he has never contacted CYS to inquire about Child’s general
welfare, he blocked Ms. Miller’s ability to call him, has not sent Child cards,
letters or gifts or seen her for over a year since October 27, 2020. (See id.);
(N.T. TPR Hearing, at 25-27, 65-66). It found that:
[Father’s] conduct … indicates a settled intent on his part to
relinquish his parental claim to [] Child and/or a refusal or failure
to perform his parental duties pursuant to 23 Pa.C.S.
§ 2511(a)(2). … [His] documented lack of compliance with []
Child’s Permanency Plan and lack of progress indicates [] Father’s
refusal to remedy the circumstances which necessitated the
original placement.
(Orphan’s Ct. Op., 2/22/22, at 3).
Further:
The evidence of record[] reflects that Father has failed to
perform his parental duties for well over twelve (12) months. The
evidence further reflects that Father has failed to meet the needs
of the Minor Child. There is no evidence that there is any sort of
bond or relationship between Father and the Minor Child. Father
has not seen Minor Child in well over a year. Father was provided
with a family service plan and failed to meet any of the goals.
Father has put forth minimal to no effort as it pertains to Minor
Child. The best interests of the Minor Child will best be served by
terminating Father’s parental rights.
(Orphans’ Court Opinion, 4/02/22, at 4). The record supports the orphans’
court’s conclusion.
It is undisputed that Child, eleven-years-old at the time of the TPR
hearing, had been in foster placement for approximately twenty-seven months
and had not seen Father in over a year. CYS presented clear and convincing
evidence that the conditions that led to Child’s placement continued to exist.
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Despite Father’s testimony that he had a good relationship with Child
prior to the involvement of CYS in 2019, he conceded that prior to the
commencement of the dependency matter, there was a court order in place
suspending his contact with Child (See N.T. TPR Hearing, at 66). After she
was placed on October 8, 2019, Father did not contact CYS to request
visitation with Child or for any other purpose until the July 14, 2020
permanency review hearing. (See N.T. Hearing, 12-14). In fact, Ms. Miller
testified he has never contacted her to inquire about Child’s general welfare,
declined to attend Child’s surgery and blocked Ms. Miller’s cell phone number
so that she could not contact him. (See id. at 25-26, 65-66). Father has
never sent cards, letters or gifts to Child for the three birthdays and
Christmases that have passed while she was in foster care. (See id. at 27).
When his visitation was suspended temporarily upon his November 1, 2020
arrest, he failed to contact CYS to have the custody reinstated when he was
released on bail four days later November 5, 2020, or to request its
reinstatement when he appeared at the December 23, 2020 permanency
review hearing. (Id. at 21). Hence, at the time of the TPR hearing, he had
not seen Child for fifteen months. (See id. at 27).
Crucially, he failed to comply with his FSP goals. He failed to get a
mental health evaluation or obtain employment, resulting in no income and
financial insecurity. (See id. at 16, 24, 43, 62, 69, 71). The only income
available for his household was J.W.’s social security. (See id. at 71). Despite
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claiming he had no transportation to meet these goals, he admitted that J.W.
had a vehicle that would be available for him to use since she was not working.
(See id. at 71).
At his meeting with Ms. Miller on July 17, 2020, he said he did not need
a D&A evaluation or a mental health evaluation despite also stating that if he
were drug tested at that time, he would be positive for “Vicodin and shit.”
(See id. at 17-18). He had no excuse for why he failed to obtain the D&A
evaluation until six months later on January 27, 2021. (See id. at 73). He
was inconsistent with his D&A counseling, attending only six D&A sessions
from the time he finally got his evaluation and when they stopped on June 9,
2021. (See id. at 19, 21-24, 41, 43). He failed the June 2021 drug screen,
testing positive for THC and claimed that it was due to ingesting a gummy
bear from a local gas station, an excuse that Ms. Miller found implausible.
(See id. at 22).
It was within the orphans’ court’s province to weigh this testimony
against that of Father, to believe all, some or none of it, and to resolve any
conflicts in the evidence. In re A.S., supra at 477. Based on the foregoing,
CYS provided clear and convincing evidence that due to his continued
incapacity, Father is unable to provide Child with the essential care necessary
for her physical and mental well-being. The orphans’ court did not abuse its
discretion in finding that CYS presented sufficiently clear and convincing
evidence to support termination based on Section 2511(a)(2).
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C.
Having determined that the court properly found that termination of
Father’s parental rights was appropriate under subsection 2511(a)(2), we now
consider whether termination is in Child’s best interests pursuant to
subsection 2511(b) or whether, as Father argues, the orphans’ court decision
“places at risk the strong bond and attachment between [him] and [Child].”
(Father’s Brief, at 26).
With respect to Section 2511(b), our analysis focuses on the
effect that terminating the parental bond will have on the child.
In particular, we review whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. It is well settled that intangibles
such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.
One major aspect of the “needs and welfare” analysis
concerns the nature and status of the emotional bond that the
child has with the parent, with close attention paid to the effect
on the child of permanently severing any such bond. The fact that
a child has a bond with a parent does not preclude the termination
of parental rights. Rather, the trial court must examine the depth
of the bond to determine whether the bond is so meaningful to
the child that its termination would destroy an existing, necessary,
and beneficial relationship. Notably, where there is no evidence
of a bond between the parent and child, it is reasonable to infer
that no bond exists.
It is sufficient for the trial court to rely on the opinions of
social workers and caseworkers when evaluating the impact that
termination of parental rights will have on a child. The trial court
may consider intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.
Int. of K.M.W., supra at 475 (case citations and most quotation marks
omitted).
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Ms. Miller testified that Child is extremely comfortable in her foster home
where she has lived with her sister for twenty-seven months, since November
15, 2019. (See N.T. TPR Hearing, at 10). Child has a “clear bond” with her
pre-adoptive family, considers the other children in the home to be her
siblings, and calls her foster parents, who are adoptive resources, mom and
dad. (See id. at 28). She testified that Child and her sister “are a lifeline to
each other” and that separating them would be detrimental to them. (Id. at
11). Child wants to stay where she is placed because she feels safe there.
(See id. at 31). Child does not want to live with Father, whom she refers to
as “mean” or to be separated from her sister. (See id. at 20, 31). She does
not ask about Father and had no reaction when his visits were suspended.
(See id. at 21, 30). Child is happy and doing very well in school, a major
improvement from her educational history prior to her placement. (See id.
at 29-30). Ms. Miller testified that there is no bond between Child and Father
and that it would be in Child’s best interests to have Father’s parental rights
terminated. (See id. at 31). Father admitted he does not have a strong bond
with Child but that they “can get [it] back.” (Id. at 75).
The GAL stressed Child’s need for stability that the foster home would
provide. (See id. at 105-09). Child is afraid she will be removed from her
foster home where she feels safe and has a “clear bond with [her] proposed
adoptive parents.” (Id. at 107). Although he acknowledged that Father loves
Child, he did not believe Father could do what was necessary to be a parent
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to Child. (See id. at 108-09). He agreed that it would be in Child’s best
interests to involuntarily terminate Father’s parental rights. (See id. at 109).
The above record supports the orphans’ court’s finding that the
termination of Father’s parental rights would best serve Child’s interests
pursuant to Section 2511(b) and we find no abuse of discretion in its decision
to terminate Father’s parental rights to Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/19/2022
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