In the Interest of: D.H., Appeal of: T.H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.H., FATHER :
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: No. 431 WDA 2022
Appeal from the Order Entered March 17, 2022
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000130-2021
IN THE INTEREST OF: M.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.H., FATHER :
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: No. 432 WDA 2022
Appeal from the Order Entered March 17, 2022
In the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-AP-0000131-2021
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: October 7, 2022
T.H. (“Father”) appeals from the orders granting the petitions filed by
the Allegheny County Office of Children, Youth and Families (“CYS”), and
involuntarily terminating his parental rights to two of his minor children, D.H.,
a male born in January 2018, and M.H., a female born in September 2019,
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* Retired Senior Judge assigned to the Superior Court.
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(collectively “the Children”), pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8),
and (b).1 Father contends that CYS did not prove by clear and convincing
evidence his incapacity to parent the Children, and termination was not in the
Children’s best interests. We affirm.
Father has nine children with four different mothers, including three
children with Mother.2 Notably, none of Father’s other children are in his care,
and he has never been the primary caregiver or lived with any of his children
beyond the age of four. Furthermore, Father has been arrested more than 20
times for various charges, including possessing firearms and delivering drugs.
Relevant herein, Mother and Father resided together with D.H. In July
2019, following an argument, Mother and Father departed the home and left
D.H., who was 1½ years old, alone. Father later called the police to inform
them that D.H. was alone in their home. The police took D.H. to the hospital,
after which an emergency custody authorization was obtained. Subsequently,
D.H. was placed in his current kinship pre-adoptive home with his maternal
great-aunt and great-uncle. CYS then filed a dependency petition as to D.H.
At the hearing, Father acknowledged that he had problems with intimate
partner violence, for which he had pending criminal charges, used marijuana
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1 The trial court also terminated the parental rights of the Children’s mother,
J.E.B. (“Mother”), and she has not appealed the termination of her rights.
2 Mother and Father’s third child, who is not part of this appeal, is currently
in the care of a welfare agency in South Carolina.
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and opiates, and drank alcohol heavily three times per week. Mother
confirmed the presence of violence in their relationship. The trial court
adjudicated D.H. dependent, and further ordered Father to engage in family
teaming, undergo a drug and alcohol evaluation, attend domestic violence
classes, resolve his criminal charges, and participate in supervised visits with
D.H.
In September 2019, M.H. was born to Mother and Father. CYS obtained
an emergency custody authorization due to her parents’ ongoing issues.
During the subsequent shelter hearing, the court noted that Father was in
prison. Thereafter, CYS filed a dependency petition, and the trial court
adjudicated M.H. dependent and placed her in a kinship foster home that is
pre-adoptive.
Father was released from prison on November 22, 2019. The trial court
ordered Father to allow CYS to assess his home; engage in domestic violence
services; engage in drug and alcohol treatment; provide drug screens; and
attend supervised visits at the CYS office. Further, CYS convened family plan
meetings, to establish goals for Father to reunify with the Children.
Father initially participated in substance abuse treatment, but his
participation ceased in 2020, after he obtained a medical marijuana card.
Nevertheless, Father continued to use both medical and illicit marijuana daily.
Further, although Father completed a domestic violence intervention program,
CYS maintained concerns of partner violence and Mother’s and Father’s
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volatile relationship. Father also completed a parenting program, but CYS
noted that Father did not show parenting capacity at his supervised visits
despite his programming and continued to display anger-management
problems. Notably, Father only participated in supervised visits and never
proceeded to unsupervised visits.
As a result, on July 21, 2021, CYS filed a petition to involuntarily
terminate the parental rights of Mother and Father. The trial court heard
testimony from, inter alia, a psychologist, Dr. Eric Bernstein; CYS caseworker,
Angela Tyner; and Father. After the hearing, the court terminated Father’s
parental rights, finding that CYS proved by clear and convincing evidence that
grounds for termination existed pursuant to Section 2511(a)(2), (5), and (8),
and that terminating Father’s parental rights served the needs and welfare of
the Children pursuant to Section 2511(b).3 Father timely appealed and filed
Pa.R.A.P. 1925(b) concise statements.4
On appeal, Father raises the following questions for our review:
1. 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.[A.] § 2511(a)(2), (5),
and (8)?
2. 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
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3The trial court also entered separate orders changing the goal to adoption.
However, Father does not raise any issues related to these orders.
4 This Court, acting sua sponte, consolidated these appeals for review.
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rights would best serve the needs and welfare of the children
pursuant to 23 Pa.C.S.[A.] § 2511(b)?
Father’s Brief at 8.
We review an appeal from the termination of parental rights with
significant deference to the trial court’s verdict:
In an appeal from an order terminating parental rights, our scope
of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon CYS to prove by
clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. See In re D.A.T., 91 A.3d 197, 203
(Pa. Super. 2014). “Clear and convincing evidence is that which is so clear,
direct, weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.”
Interest of A.M., 256 A.3d 1263, 1270 (Pa. Super. 2021) (citation and
quotation marks omitted). Further, 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. See In re D.A.T., 91
A.3d at 203. “If competent evidence supports the trial court’s findings, we will
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affirm even if the record could also support the opposite result.” In re M.M.,
106 A.3d 114, 117 (Pa. Super. 2014) (citation omitted).
Satisfaction of any one subsection of section 2511(a), along with
consideration of section 2511(b), is sufficient for the involuntary termination
of parental rights. See Interest of S.S., 252 A.3d 681, 686 (Pa. Super.
2021). In this case, we will review the trial court’s decision to terminate
Father’s parental rights based upon sections 2511(a)(2) and (b), which state
the following:
(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.
***
(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), (b).
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To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(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 S.P., 47 A.3d 817, 827 (Pa.
2012). “The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; those grounds may also include acts of
refusal as well as incapacity to perform parental duties.” In re K.Z.S., 946
A.2d 753, 758 (Pa. Super. 2008) (citation omitted).
Father contends that the trial court erred in granting the petition to
involuntarily terminate his parental rights under Section 2511(a)(2). See
Father’s Brief at 17. Father argues that CYS failed to establish that he will not
and cannot remedy the conditions that caused the Children to be without
parental care. See id. at 19. Father asserts that the trial court improperly
focused on his marijuana use, parenting capabilities, history of domestic
violence, and criminal history, and did not properly consider that he did not
have any recent incidents of domestic violence or criminal convictions. See
id. at 19-20.
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In turn, Father highlights that he has housing and two jobs. See id. at
20. Additionally, Father claims that the trial court’s reliance on the fact he has
never raised a child without assistance or past the age of four inappropriately
created a presumption of incapacity. See id. at 21. Father further contends
that the use of marijuana cannot alone support a finding that he was unable
to care for the Children, and CYS was required to establish a nexus between
his marijuana usage and incapacity to care for the Children. See id. at 21-22.
Moreover, Father notes that he could not obtain treatment for his marijuana
use after he received his medical marijuana card. See id. at 21.
The trial court acknowledged Father’s progress in turning his life around,
but nevertheless found that there was no evidence Father was improving his
capabilities to be a proper parent to his children:
In the present case, it is true that Father is doing better than he
ever has in the past in terms of remaining free of criminal
difficulties and that Father is functioning in terms of maintaining
work and housing. However, that does not mean he has come
close to demonstrating parenting capacity. … [T]here is no
concrete evidence to bear out Father’s ability to create a nurturing
and safe life for these two young children. Father’s parenting
program taught him better ways to interact at visits, and yet he
was not affectionate and remained curt and even abrasive with
them without any apparent awareness of his demeanor; in fact,
he testified he is a good father. He attended some [intimate
partner violence] programing and then proceeded to slash
someone’s tires in anger. Father does not show understanding of
his need for [intimate partner violence] improvement because he
generally blames his violence on others, in this case on Mother for
her use of illegal substances. Father testified to undergoing drug
and alcohol counseling in jail and as part of another program and
then claimed he learned that the use of alcohol diminishes his
control of his temper. However, whether he has stopped using
alcohol is not clear, but he clearly abuses marijuana, which is his
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method of controlling his moods and emotions and his means of
relaxation. Father views marijuana use as a minor matter, but
testimony indicated that he, even with his parental rights at sake,
he would not comply with this goal by staying within the confines
of medical usage.
Moreover, Father has never parented children on his own, and he
has no meaningful support system even if he could demonstrate
parenting capacity, which he has not. In short, Father made
progress, but it was slow and gradual. His progress offered no
meaningful basis to conclude he could reach reasonable parenting
capacity at any point in the future, much less within any
reasonable period of time (beyond the reasonable time which he
was already given). Because the evidence showed that Father was
not able to demonstrate parenting capacity and was not able to
remedy this condition over the course of 30 months, this Court
found that termination of his right was justified under [Section 23
Pa.C.S.A. § 2511(a)(2)].
Trial Court Opinion, 5/27/22, at 16-17; see also N.T., 3/16/22, at 292-96.
The record supports the trial court’s conclusion that termination of
Father’s parental rights is appropriate pursuant to subsection 2511(a)(2).
Although Father did make progress during the case, including resolving his
goals to avoid committing crimes and maintaining housing, he is unable to
establish his parenting capacity for the Children. To that end, Father continued
to use both legal and illicit marijuana daily to manage his behavior. See N.T.,
3/16/22, at 31, 33-35, 58-59, 62, 103, 123-26, 158, 167, 204, 206-07. Dr.
Bernstein recommended treatment due to Father’s dependence on marijuana,
but Father never properly engaged in treatment. See id. at 51, 59-61; see
also id. at 125-26, 168, 205-06. Furthermore, while Father completed an
anger-management program, he continued to have violent interactions with
Mother and blamed Mother for his behavior; Father minimized the domestic
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violence; and CYS was concerned about the relationship between Mother and
Father. See id. at 25-26, 39, 57, 63-64, 103, 116-17, 131-32, 134, 155-57,
173-74. Likewise, Father completed a parenting program, but did not
demonstrate skills to permit unsupervised visits. See id. at 94-95, 129-30,
137. Additionally, Father does not show physical affection with the Children.
See id. at 46-48.
In light of the foregoing, the trial court did not err in finding that Father
is incapable of caring for the Children, and that he cannot or will not remedy
his parental incapacity. Indeed, “a child’s life cannot be held in abeyance while
a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006). Therefore, we affirm the portion of the trial court’s orders terminating
Father’s parental rights pursuant to Section 2511(a)(2). See In re Z.P., 994
A.2d 1108, 1124-26 (Pa. Super. 2010) (finding that although father had
moderately complied with the permanency plan, his overall parenting history
revealed he had no genuine capacity to perform his parental responsibilities,
and therefore the evidence was sufficient to terminate his rights under Section
2511(a)(2)).
Having determined termination is appropriate pursuant to Section
2511(a)(2), we next review whether the requirements of Section 2511(b) are
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satisfied. See In re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc).
Under section 2511(b), the trial court inquires whether the termination of
parental rights would best serve the developmental, physical, and emotional
needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286 (Pa.
Super. 2005). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” Id. at 1287(citation omitted). The court must also discern the nature and status of the
parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond. See Interest of L.W., 267 A.3d 517, 523
(Pa. Super. 2021); see also In re Z.P., 994 A.2d at 1121 (stating that “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.”). “[C]ourts considering termination must also consider whether
the children are in a pre-adoptive home and whether they have a bond with
their foster parents.” In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (citation
omitted). In conducting a bonding analysis, the court is not required to use
expert testimony, but may rely on the testimony of social workers and
caseworkers. See Interest of L.W., 267 A.3d at 523. Finally, although the
focus in terminating parental rights under section 2511(a) is on the parent, it
is on the child under section 2511(b). See In re C.L.G., 956 A.2d at 1008.
Father contends the trial court erred in finding CYS presented clear and
convincing evidence that involuntary termination of his parental rights would
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best meet the developmental, physical, and emotional needs and welfare of
the Children. See Father’s Brief at 22, 23. Father argues that Dr. Bernstein’s
observations regarding his behavior toward the Children, including shaming
the Children for calling their foster mother “mom,” did not happen and the
trial court should not have relied on these statements. See id. at 23-24.
Father concludes that the Children love him and deserve to have the benefits
of their relationships with him preserved. See id. at 24.
Here, credible evidence established that the Children are in kinship pre-
adoptive homes and have primarily been raised by these foster families, they
view their foster parents as their parents, and their needs are met in their
foster homes. See N.T., 3/16/22, at 52-53, 83-86, 90-91; see also Bernstein
Report, 2/15-22/22 at 2 (“Both sets of foster parents presented as stable,
healthy adult figures committed to the welfare of the respective children in
their care.”). Further, the Children are well-bonded with their foster parents.
See N.T., 3/16/22, at 137-38; see also id. at 44, 138-39 (stating that the
Children refer to their foster parents as mommy and daddy). Moreover, the
Children showed stable and healthy bonds with these families, whereas Dr.
Bernstein and CYS Caseworker Tyner found any bond to Father to be quite
limited and that terminating Father’s rights would best serve the Children’s
needs and welfare. See id. at 47-48, 50, 51-52, 129-30. Importantly, Dr.
Bernstein and Tyner also testified that the Children would not suffer severe or
long-lasting adverse consequences from terminating Father’s parental rights.
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See id. at 51-52, 139; see also Bernstein Report, 2/15-22/22, at 6 (stating
that terminating Father’s parental rights “will not likely deleteriously impact
the children, beyond the short term, and more than likely, will be compensated
for by the consistent show of support and care offered by the foster parents.”).
Dr. Bernstein further highlighted that removing the Children from their current
homes would place “them in a vulnerable position and potentially at risk for
psychological trauma.” Bernstein Report, 2/15-22/22, at 5.
The trial court determined that termination of Father’s parental rights
best served the Children’s needs and welfare, explaining that the credible
evidence established that Father had only a limited bond with the Children,
and that the Children are in loving and stable pre-adoptive homes where their
needs are being met, and that the Children deserve to be able to rely on this
stability. See Trial Court Opinion, 5/27/22, at 17. As the record supports the
trial court’s conclusion that involuntary termination of Father’s parental rights
best serves the needs and welfare of the Children, we affirm the trial court’s
termination of Father’s parental rights pursuant to Section 2511(b).
For the foregoing reasons, we affirm the trial court’s orders terminating
Father’s parental rights.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2022
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