In Re: I.M.B., Appeal of: I.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.M.B., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: I.B., FATHER : No. 232 WDA 2022
Appeal from the Order Entered February 15, 2022
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000188-2021
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: SEPTEMBER 2, 2022
Appellant, I.B. (“Father”), appeals from the order entered in the
Allegheny County Court of Common Pleas, Orphans’ Court, which granted the
petition of Children, Youth and Families (“CYF”) for involuntary termination of
Father’s parental rights to his minor child, I.M.B. (“Child”). We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
[Child] was born [in January 2020] to [M]other and
[Father], who signed an acknowledgement of paternity….
Mother had involvement with CYF dating back to 2014, and
[M]other had her rights involuntarily terminated to three
older children. …[O]ne-day after his birth, CYF obtained an
emergency custody authorization for [Child]. Upon release
from the hospital…, [Child] was placed into foster care.
Father was permitted to visit the child once each week,
supervised. [Child] was adjudicated dependent on January
29, 2020, at which time [F]ather stipulated that his current
goals were to comply with anger management, comply with
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drug and alcohol treatment, and resolve his criminal
matters. Father also stipulated that he was not in
compliance with these goals at that time, as the agency was
already open on another child between [F]ather and
[Mother] when [Child] was born.
At the adjudication hearing, the findings of fact indicated
that [F]ather had not yet attended or completed a batterers’
intervention program (“BIP”) or anger management
program, that he had not completed a [Pennsylvania
Organization for Women in Early Recovery (“POWER”)] drug
and alcohol assessment, that he had attended only two (2)
of a possible twenty-nine (29) visits with his older child, who
was already dependent and in out of home placement at the
time, and that [F]ather was currently staying with friends.
The court ordered [F]ather to attend coached visitation,
participate in anger management programming, and resolve
his criminal issues.
At the permanency review hearing in May 2020, the court
made findings that [F]ather did not participate in the
proceeding despite being notified by phone and mail. The
court also made findings that [F]ather did not complete his
POWER assessment, that he had a bench warrant for failure
to comply with his criminal court obligations, and that he
was not consistently visiting [Child]. At the review hearing
in September 2020, the court again made findings that
[F]ather had not made any progress towards his goals. With
particular attention to [F]ather’s visitation goal, [the] court
found that “he has been offered coached visitation multiple
times but has been discharged and unable to visit
consistently. He has not visited consistently throughout the
history of the case. He had continued to not attend with
any consistency and when he attended, he needs prompting
about feeding and diaper changes. He was contacted by
[the foster care agency] on June 17 to schedule in person
visits, he did not respond but contacted his caseworker [on]
July 29 [regarding] visits which were set up and he has not
attended consistently.” The court also noted that he did not
complete a drug and alcohol evaluation, had unresolved
criminal charges, and was residing with his father.
By December [2020], this court found that [F]ather still had
not addressed his goals. At the permanency review hearing
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on December 15, 2020, [F]ather was again ordered to
address the goals related to anger management
programming, drug and alcohol evaluation and treatment,
resolving his criminal matters, and visitation with his child.
The court ordered a reduction in [F]ather’s supervised visits
to once weekly in person and once weekly virtual, with
twenty-four hours confirmation, on March 17, 2021. At that
time, [F]ather continued to have unresolved criminal
charges and was residing with his mother.
On June 16, 2021, the court again ordered [F]ather to follow
up with a POWER evaluation and follow any
recommendations, including participation at Mon Yough
[Community Services], to continue random urine screens,
and participate in visitation once a week virtually and once
a week in person and supervised, which could be in
[F]ather’s home if he had housing that was appropriate for
CYF to inspect.
On September 17, 2021, CYF filed a petition to involuntarily
terminate [F]ather’s parental rights with respect to [Child]
pursuant to 23 Pa.C.S. §§ 2511(a)(2), (5), (8), and (b). The
court reduced [F]ather’s visits to once weekly, supervised,
at the foster care agency office on November 9, 2021.
Dr. Patricia Pepe, the court appointed evaluator, conducted
an individual assessment of [F]ather, an interactional
evaluation of [F]ather and [Child], and an interactional
evaluation of the foster mother and [Child] on November 9,
2021. At the time of the termination proceedings, [Child]
was two years old and had resided in the care of his foster
home since he was two days old. At no time during the
pendency of this case did [F]ather have [Child] returned to
his care. Furthermore, [F]ather’s visits with [Child], which
were inconsistent, remained supervised throughout the two
years the child was in care.
(Orphan’s Court Opinion, 3/28/22, at 2-6) (internal citations and footnotes
omitted).
The court held termination hearings on January 31, 2022 and February
10, 2022. Following the hearings, the court granted CYF’s petition and
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terminated Father’s parental rights to Child. On February 23, 2022, Father
timely filed a notice of appeal and a contemporaneous concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
Father raises the following issues for our review:
Did the trial court abuse its discretion and/or err as a matter
of law in granting the petition to involuntarily terminate
Father’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(2), (5), and (8)?
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
[Child] pursuant to 23 Pa.C.S. § 2511(b)?
(Father’s Brief at 6).
In his issues combined, Father argues that CYF did not present clear and
convincing evidence that he was unable or unwilling to render parental care.
Father avers that he complied with the court’s orders to seek out anger-
management therapy and achieve sobriety. He insists “that CYF’s inability to
verify Father’s compliance did not mean that said compliance did not occur.”
(Id. at 20). He emphasizes that CYF did not present evidence that Father still
smoked marijuana, or that smoking marijuana impacted his ability to care for
Child. Father also contends that CYF did not present “evidence of any
incidents of intimate partner violence for over one year.” (Id.) Father
highlights that he secured appropriate housing, stable employment, and has
never presented safety concerns when caring for Child. Father further asserts
that Child loves Father and is benefitted by Father’s affection. Father
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concludes the trial court erred in finding that CYF met the burden of proof for
termination and that this Court must reverse the order terminating his
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
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
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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)).
CYF filed a petition for the involuntary termination of Father’s parental
rights to Child on the following grounds:
§ 2511. Grounds for involuntary termination
(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
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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)(1), (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
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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 Z.P.,
supra at 1117. “Parents are required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities.” Id. at 1117-
18. Under Section 2511(a)(2), “the petitioner for 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:
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[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;
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 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.
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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
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). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
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child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert [himself] to take and maintain
a place of importance in the child’s life.
Parental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of …his ability, even in difficult circumstances. A
parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with …his physical and
emotional needs.
In re B., N.M., supra at 855 (internal citations omitted). “[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 court found that CYF provided clear and convincing
evidence to establish grounds for termination pursuant to Section 2511(a)(2),
(5) and (8). The court acknowledged that Father was able to accomplish some
of his goals during the pendency of this case. Specifically, the court noted
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that Father secured housing, became employed, refrained from marijuana use
and did not have any outstanding criminal matters for a period of four to five
months prior to the termination hearing. Nevertheless, the court found:
[F]ather’s affirmative steps to try and remedy the conditions
that led to the removal were much too little, much too late.
Father had the better part of two years, while his young son
was in foster care, to remedy the issues that led to the
removal. The evidence presented supported the fact that
the child had been in care for two years and Father either
could not or would not remedy the conditions within that
time frame.
(Orphans’ Court Opinion, 3/29/22, at 15).
The record supports the court’s findings. Erika Allegrucci, the foster
care caseworker, testified that Father consistently failed to visit with Child.
Out of 89 scheduled, in-person visits, Father only attended 19. An additional
144 virtual visits were scheduled, but Father only attended 54. In response
to Father’s failure to maintain regular visitation, the court decreased the
number of visits he was entitled to from three times a week to one visit per
week. During the visits that Father attended, Ms. Allegrucci noted Father
regularly fell asleep. Additionally, Father failed to attend any of Child’s
medical appointments, and failed to participate in coached visitation with Child
despite multiple CYF referrals.
Further, Aaron Kasden, the CYF caseworker assigned to this matter,
testified that Father did not substantially or timely, comply with his court-
ordered goals. The court ordered Father to seek mental health treatment to
address anger management and intimate partner violence. At the time of the
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termination hearing, CYF had received no record of Father seeking or
completing any programs to accomplish this goal. The court also ordered
Father to become sober. In that pursuit, the court directed Father to complete
a POWER assessment, follow the assessment recommendations, and
participate in random urine screenings. CYF made four referrals to POWER on
Father’s behalf, but Father did not meet with POWER until July 2021. Even
after Father met with POWER, there is no record of Father participating in
POWER’s recommended treatment or working with his POWER-appointed
mentor.
Additionally, Mr. Kasden noted that Father did not secure suitable
housing until over a year after Child was born despite being offered in-home
services, housing referrals and rental assistance from CYF to help find
appropriate housing. Only after CYF filed the instant termination petition did
Father obtain his current housing, which CYF assessed as appropriate on
January 18, 2022.
Although Father asserts that his failure to appear for treatment and
scheduled visitation was due to difficulty securing transportation, we note that
CYF provided Father bus tickets for this purpose. Additionally, Father did not
attend 90 virtual visits where transportation was not an issue. Father also
insists that he has not smoked since November 2021, and addressed his anger
management needs independent of CYF services. However, Father failed to
provide any documentation of his alleged completion of these goals.
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Additionally, Father’s random urine screens indicate continued substance use.
Father also failed to provide updated contact information to CYF. As such,
despite Father’s recent efforts in working towards some of his court-ordered
goals, the court was within its discretion to conclude that Father failed to make
adequate progress in a reasonable time frame and is unable or unwilling to
remedy the conditions that necessitated Child’s removal in the near future.
See In Interest of Lilley, supra. Accordingly, we see no error in the court’s
determination that termination was proper under Section 2511(a)(2). See In
re Z.P., supra.Further, Child has not been in Father’s care since his birth in January of
2020, which is well beyond the six and twelve month thresholds set forth in
Sections 2511(a)(5) and (8), respectively. During that time period, Father
failed to attend scheduled visitation consistently and never progressed to
unsupervised visitation. Additionally, Father’s visitation was reduced by the
court throughout the pendency of this case due to his failure to attend
scheduled visits. Ms. Allegrucci testified that she regularly reached out to
Father to facilitate visitation and inquire about any issues, but Father often
failed to confirm visits or answer phone calls. Further, despite CYF issuing
Father numerous referrals to services that would aid him in meeting his court
ordered goals, Father made minimal or no progress on these goals until
recently. Therefore, 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.,
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N.M., supra; In re A.R., supra.With respect to Section 2511(b), the record supports the court’s finding
that there is no parent-child bond between Father and Child. After conducting
an interactional evaluation of Father and Child, Dr. Pepe concluded that Child
had no attachment with Father. Dr. Pepe noted that Child cried when he was
separated from his foster mother at the start of the evaluation with Father
and was largely unresponsive to Father throughout. Regarding her
interactional evaluation of Child and foster mother, Dr. Pepe noted that Child
called his foster mother “mommy” and seemed happy and engaged during the
evaluation. Dr. Pepe testified that Child’s primary attachment was to his foster
mother, and that it would be “psychologically devastating” to remove Child
from her care. (See N.T. Termination Hearing, 2/10/22, at 10-11). Ms.
Allegrucci confirmed that Child turns to his foster family “when he is hurting
or sick, when he would like comfort or if maybe another person comes into
the room that he’s not aware of.” (N.T. Termination Hearing, 1/31/22, at 69-
70). Therefore, we discern no error in the court’s determination that
termination is in Child’s best interest under Section 2511(b). See In re C.P.,
supra; In re Z.P., supra. Accordingly, we affirm the order terminating
Father’s parental rights to Child.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2022
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