In the Int. of: A.E.R.L., Appeal of: D.E.L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.E.R.L, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.E.L., FATHER : No. 54 MDA 2022
Appeal from the Order Entered December 14, 2021
In the Court of Common Pleas of Franklin County
Juvenile Division at No(s): 28-Adopt-2020,
CP-28-DP-0000074-2018
IN RE: ADOPTION OF: A.E.R.L, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.E.L., FATHER : No. 55 MDA 2022
Appeal from the Order Entered December 14, 2021
In the Court of Common Pleas of Franklin County
Orphans’ Court at No(s): 28-Adopt-2020
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED JULY 29, 2022
Appellant, D.E.L. (“Father”) appeals from the orders entered in the
Franklin County Court of Common Pleas, Orphans’ Court, which granted the
petition of Franklin County Children and Youth Services (“CYS”) for involuntary
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* Former Justice specially assigned to the Superior Court.
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termination of Father’s parental rights to his minor child, A.E.R.L. (“Child”),
and changed the permanency goal to adoption. We affirm.
The Orphans’ Court set forth the relevant facts and procedural history
of this case as follows:
[Child] is a Caucasian female child who is three (3) years
old, having been born [in] 2018 in Chambersburg, Franklin
County, Pennsylvania.
* * *
The natural mother of [Child] is [D.N.L.] [(“Mother”)]…
The natural father of [Child.] is [D.E.L.]…
[Mother] and [Father] [(collectively “Parents”)] have been
married since May 5, 2019.
On October 1, 2018, [CYS] received a referral from hospital
staff that [Mother] had given birth to [Child]. This reporting
source expressed concern regarding [Parents’] ability to
provide basic care such as diapering, swaddling, and
nursing.
On October 1, 2018, [CYS] assessed [Mother’s] ability to
care for a newborn child. [CYS] observed [Mother]
unsuccessfully feed [Child]. [Mother] was unable to change
a diaper, pick up [Child], unwrap her from a blanket, or care
for her without assistance.
On October 1, 2018, upon [Child’s] discharge from the
hospital, the [c]ourt issued an Order for Emergency
Protective Custody, granting temporary legal and physical
custody to [CYS] and placing [Child] in foster care…
On October 4, 2018, [CYS] referred [Parents] to Alternative
Behavioral Consultants (hereinafter “ABC”) for a joint
parental fitness assessment. [CYS] also referred [Parents]
to ABC for Guided Visitation, an intensive form of visitation
in which a case worker supervises and provides prompts to
ensure safety and appropriate communication between
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parents and children.
On October 15, 2018, the [c]ourt adjudicated [Child] a
dependent child, placing her in the legal and physical
custody of [CYS] and maintaining her in foster care.
As a result of [Child’s] adjudication of dependency,
[Parents] were ordered to complete the above-mentioned
parental fitness assessment and follow recommendations,
obtain/maintain housing and financial stability sufficient to
meet the child’s needs, and participate in frequent and
consistent visitation with the child to build/maintain the
parent/child relationship.
[Parents] participated in the parental fitness assessment
through ABC. ABC provided a written report dated October
23, 2018, with the results and recommendations arising
from the assessment.
[Parents’] parental fitness assessment identified parenting
deficits in basic parenting skills necessary to parent an
infant. As a result, [Parents] were recommended for and
accordingly ordered to complete additional services….
As a result of the parental fitness assessment, [Parents]
were also recommended to participate in parenting skills
training services.
Initially, [Parents] were recommended to participate
together in the Training for Improved Parenting Skills
Program (hereinafter “TIPS”) to gain parenting knowledge
while continuing Guided Visitation to see if basic knowledge
could be retained and transferred into practical skills.
[Parents] began participating in Guided Visitation through
ABC on or about October 10, 2018. While [Parents]
continued participating in Guided Visitation, ABC
[implemented] the TIPS education program from November
2018 through December 27, 2018.
At the conclusion of the TIPS program, and with agreement
of all parties, ABC recommended [Parents] to transition to
the intensive, hands-on SKILLS parenting education
program.
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SKILLS began on February 25, 2019 and consisted of 90
sessions, totaling approximately 376 hours of intensive,
hands-on parenting support provided by ABC.
Although [Parents] attended each of 90 SKILLS sessions,
they were unable to successfully complete the program
objectives.
[Parents] continued to struggle with identifying [Child’s]
needs and safety concerns increased with [Child’s] stages of
development. Both parents struggled with retaining and
transferring basic skills to each new developmental stage,
including the ability to properly feed and dress [Child].
After the completion of SKILLS, ABC recommended that
SKILLS be discontinued due to [Parents’] need for
continuous, intensive daily assistance to care for [Child] and
assure her safety throughout her various ages and stages
of development.
Following their discharge from SKILLS, [Parents] requested
that [CYS] offer parenting skills training services through
Central Pennsylvania Family Support Services (hereinafter
“Central PA”).
[Parents] participated in Guided Visitation through ABC
following the cessation of SKILLS in August 2019 until
Central PA began services on January 6, 2020.
Central PA provided services from January 6. 2020 through
approximately February 6, 2020, and declined to offer
further services due to [Parents’] resistance to instruction
and prompting, lack of progress, and need for full-time
resources to assist them in providing care to [Child].
On August 7, 2020, [CYS] filed a Petition for Involuntary
Termination of Parental Rights against [Parents].
The [c]ourt held a hearing on the above-mentioned
[p]etition on September 22, 2020. At the conclusion of the
hearing, the [c]ourt denied the Petition finding the evidence
insufficient to support termination of [Parents’] rights.
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From February 2020 through April 5, 2021, [Parents]
participated in basic supervised visitation through the
Children’s Aid Society.
On or around October 2020, [CYS] referred [Parents] to
Bruce Kelly, MA, CCJP, CCDP, Diplomate, PA Licensed
Psychologist, for an assessment to measure their cognitive
abilities and parental abilities.
Mr. Kelly recommended [Parents] do another round of
SKILLS through ABC, [Mother] continue with individual
counseling, and [Parents] begin couples’ counseling.
Per Mr. Kelly’s recommendation, [CYS] referred [Parents] to
ABC for SKILLS again on March 25, 2021. Jess Hundley,
Parent Educator and Parent Reunification Specialist, worked
with [Parents] in SKILLS from approximately April 2, 2021
through July 6, 2021.
SKILLS sessions occurred twice a week for a minimum of
three (3) hours in duration. Mr. Hundley worked directly
with both parents for a total of 152.25 hours during the 90-
day SKILLS authorization period.
[Parents] demonstrated dedication to the SKILLS program
and communicated with their parent educator; both made
individual progress in their lives such as obtaining stable
housing and maintaining employment. However, [Parents]
experienced limitations that prevented them from meeting
their goals within the SKILLS program.
[Parents] lacked understanding of safety concerns, how to
maintain existing routine, and how to problem solve the
number of issues that present daily with a toddler; Mr.
Hundley consequently did not recommend reunification with
[Child].
At the conclusion of the SKILLS program, ABC
recommended [Parents] return to Guided Visitation, as in
home reunification services were not able to improve
parental strengths warranting additional SKILLS
authorizations.
(Orphans’ Court Opinion, filed 12/14/21, at 1-6) (internal citations, footnotes
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and numbering omitted).
On September 13, 2021, CYS filed the instant petition for involuntary
termination of parents’ parental rights to Child. The court held a termination
hearing on November 8, 2021. On December 14, 2021, the court granted
CYS’ petition and changed the goal to adoption. On December 29, 2021,
Father timely filed notices of appeal and a contemporaneous concise
statement of errors complained of on appeal,1 pursuant to Pa.R.A.P.
1925(a)(2)(i).2
Father raises the following issues for our review:
Does the [c]ourt’s decision to terminate Father’s parental
rights constitute an abuse of discretion when Father has a
strong bond with the child, has been consistent in visitation
with the child, has cooperated with all required services and
requests, and when Father has shown his ability to learn
parenting skills but is unable to learn parenting skills at the
arbitrary pace and timeline set by the statute?
Is termination of Father’s parental rights in the child’s best
interest?
Is the change of the goal to adoption appropriate when there
are other options that would provide permanency for the
child but would be less permanent than adoption, allowing
for future reunification?
(Father’s Brief at 11).
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1 Father filed separate notices of appeal at the underlying dependency and
termination dockets, which this Court consolidate sua sponte.
2 Mother filed a separate notice of appeal challenging only the termination
order, docketed at 56 MDA 2022.
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In his first two issues combined, Father argues that termination was
improper under 23 Pa.C.S. § 2511(a)(2), (5), (8) and (b). Father
acknowledges that his disabilities limit his ability to learn parenting skills but
avers that he has demonstrated he is capable of learning the skills required to
take care of Child. Father asserts that he requires more time and services
than the average parent to develop adequate parenting skills, and that it is
unfair to penalize him for not making changes within the “arbitrary timelines”
set by the statute. Father maintains that Child would benefit from allowing
Father to further develop parenting skills, so that Father and Child can be
reunified. Further, Father contends he has a strong bond with Child and
termination of his parental rights would be harmful to Child. Father concludes
that the court abused its discretion in finding that termination is appropriate,
and we should vacate the order terminating Father’s parental rights. We
disagree.
Appellate review of termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
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decision, the decree must stand. … 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 B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by the finder of fact. The burden of proof is
on the party seeking termination to establish by clear
and convincing evidence the existence of grounds for
doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
CYS filed a petition for the involuntary termination of Father’s parental
rights to Child on the following grounds:
§ 2511. Grounds for involuntary termination
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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:
* * *
(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.
* * *
(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
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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). “Parental rights may be
involuntarily terminated where any one subsection of Section 2511(a) is
satisfied, along with consideration of the subsection 2511(b) provisions.” In
re Z.P., supra at 1117.
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… 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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations 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 A.L.D.,
797 A.2d 326, 337 (Pa.Super. 2002). “Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” Id. at 340. Under Section 2511(a)(2), “the petitioner for
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involuntary termination must prove (1) repeated and continued incapacity,
abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal
caused the child to be without essential parental care, control or subsistence;
and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super.
1998).
“Termination of parental rights under Section 2511(a)(5) requires that:
(1) the child has been removed from parental care for at least six months; (2)
the conditions which led to removal and placement of the child continue to
exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” In re Z.P., supra at 1118.
Regarding the six-month period prior to filing the termination petition:
[T]he trial court must consider the whole history of a given
case and not 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) (internal citations omitted).
“[T]o terminate parental rights under Section 2511(a)(8), the following
factors must be demonstrated: (1) [t]he child has been removed from
parental care for 12 months or more from the date of removal; (2) the
conditions which led to the removal or placement of the child continue to exist;
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and (3) termination of parental rights would best serve the needs and welfare
of the child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super.
2003). “Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In re
A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period has
been established, the court must next determine whether the conditions that
led to the child’s removal continue to exist, despite the reasonable, good faith
efforts of CYS supplied over a realistic amount of time. Id. Termination under
Section 2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of CYS services. In re Adoption of T.B.B., 835
A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P., supra.
Under Section 2511(b), the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond, paying
close attention to the effect on the child of permanently severing the bond.”
Id. Significantly:
In this context, the court must take into account whether a
bond exists between child and parent, and whether
termination would destroy an existing, necessary and
beneficial relationship.
When conducting a bonding analysis, the court is not
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required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have his… rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). “[A] parent’s basic constitutional right to the
custody and rearing of his… child is converted, upon the failure to fulfill his…
parental duties, to the child’s right to have proper parenting and fulfillment of
[the child’s] potential in a permanent, healthy, safe environment.” Id. at 856.
Instantly, the Orphans’ Court found:
Although [Parents] have been cooperative and compliant
with [CYS] and generally have participated in their court-
ordered services to the best of their ability, they have been
unable to successfully demonstrate the ability to learn,
retain and transfer safe parenting knowledge and skills,
resulting in their inability to meet [Child]’s basic needs and
assume a primary caregiving role.
Despite maintaining safe, stable housing; consistency in
income; visitation with [Child]; and participating in the
parental fitness assessment; [Parents] have been unable to
remedy their parenting deficiencies adequately to meet a
standard of minimally adequate parenting and remain
unable to safely and appropriately parent [Child].
(Orphans’ Court Opinion at 7-8).
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The record supports the court’s findings. Jess Hundley, a certified
expert in social work with respect to parenting education and individuals with
intellectual delays, expressed numerous concerns about Father’s ability to
parent independently without the support of social services. Specifically, Mr.
Hundley observed Father and Mother had difficulties recognizing safety
concerns and problem-solving when facing new issues. Mr. Hudley
acknowledged that through training both parents were able to cultivate some
skills necessary for parenting. Nevertheless, he opined that “by the time
[Father and Mother] really got to the meat of the issue, the child is in a
different stage of development.” (N.T. Hearing Transcript, 11/8/22, at 35).
Additionally, Lindsay Gardner, a visitation coordinator who moderated
the guided visits between Child and [Parents], also expressed doubts about
Father’s parenting abilities. Ms. Gardner testified that she was not
comfortable leaving Child unsupervised with Parents because she observed
safety concerns during visits, Parents had trouble enforcing appropriate
boundaries with Child, and neither parent typically initiated play with Child.
Our review of the record demonstrates that Father consistently
struggled to adequately perform parental duties and recognize safety
concerns. Although there is evidence that Father improved some of his
parenting skills after over 500 hours of parental training, this progress did not
elevate his skills to the level of minimally adequate parenting. Allowing Father
to independently parent Child would deprive her of adequate parental care.
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On this record, we do not find error in the court’s determination that Father is
unable to provide essential parental care to Child and cannot remedy the
conditions that caused Child’s placement. See In Interest of Lilley, supra.Therefore, we agree with the court that termination was proper under Section
2511(a)(2). See In re A.L.D., supra.Further, Child had been removed from Father’s care for over three
years. During that time, CYS arranged for Father to undergo approximately
500 hours of parenting services. Although Father had reasonable assistance
from CYS to remedy the conditions that necessitated Child’s removal, he has
been unable to do so in a reasonable amount of time. Thus, we discern no
error in the court’s determination that termination was proper under Sections
2511(a)(5) and (a)(8). See In re B., N.M., supra; In re A.R., supra.Regarding Section 2511(b), the court acknowledged evidence of a bond
between Child and Parents. Nevertheless, the court found the long-term
benefits to Child of being in a stable home where all her needs are met
outweighed the temporary emotional loss for Child. The court found that
Father’s love and desire for a relationship with Child is greater than Child’s
love and desire for a relationship with Father. Child does not turn to Father
or Mother for comfort or nurturing, and instead views Father and Mother as
people with whom she can just play games and have fun. While Child
reciprocates affection that Parents initiate, she seems to respond to Father
and Mother in the same way that she responds to caseworkers. By contrast,
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the record demonstrates that Child’s primary bond is with her foster parents.
Moreover, the COVID-19 pandemic prevented Father and Mother from
visiting Child in-person. During this time, Parents and Child engaged in virtual
visits, and Child did not suffer any detriment due to the lack of in-person
contact with Parents. The record supports the court’s findings that termination
is in Child’s best interests under Section 2511(b). See In re Adoption of
C.D.R., 111 A.3d 1212 (Pa.Super. 2015) (affirming termination decision
where court acknowledged that Mother and Child were bonded, but reasoned
that termination would not be detrimental to Child and would serve Child’s
best interest and allow Child to find permanency with another family); In re
N.A.M., 33 A.3d 95 (Pa.Super. 2011) (explaining mere existence of emotional
bond does not preclude termination of parental rights). As the record supports
the court’s conclusions under Section 2511(a)(2), (5), (8) and (b), we see no
reason to disturb its decision to terminate Father’s parental rights. See In re
Z.P., supra.In his third issue, Father argues the court erred when it changed the
goal from reunification to adoption. Father claims there are other permanency
goals which would have given Child some permanency without precluding
future reunification, such as placement with a legal custodian or willing
relative. Father concludes there was insufficient evidence to support a goal
change to adoption, and this Court must vacate the order. We disagree.
Here, our determination that the trial court properly terminated Father’s
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parental rights effectively renders moot Father’s challenge to the goal change
to adoption. See In re Adoption of A.H., 247 A.3d 439, 446 (Pa.Super.
2021), appeal denied, ___ Pa. ___, 258 A.3d 1144 (2021) (stating: “[T]he
effect of our decision to affirm the … termination decree necessarily renders
moot the dependency court’s decision to change Child’s goal to adoption”);
Interest of D.R.-W., 227 A.3d 905, 917 (Pa.Super. 2020) (finding challenge
to change in permanency goal from reunification to adoption is moot when
reviewing court finds termination of parental rights to be proper). Accordingly,
Father is not entitled to relief on any of his claims on appeal, and we affirm
the orders changing the goal to adoption and involuntarily terminating Father’s
parental rights to Child.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2022
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