In the Int. of: W.L, Appeal of: B.L., Father

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: W.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.L., FATHER :
:
:
:
:
: No. 433 MDA 2020
Appeal from the Decree Entered January 21, 2020
In the Court of Common Pleas of Mifflin County
Orphans' Court at No(s): 19 of 2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 15, 2020
B.L. (“Father”) appeals from the decree entered January 21, 2020, that
granted the petition of Mifflin County Children and Youth Services (“CYS”)
seeking involuntarily termination of his parental rights to his son, W.L. (born
September 2017) (“Child” or “the Child”), pursuant to 23 Pa.C.S.A. §
2511(a)(2), (5), (8), and (b).1 After careful review, we affirm.
The orphans’ court ably set forth the factual and procedural history of
this matter, which we adopt in this Memorandum. See Orphans’ Court
Opinion, 1/21/20, at 1-9. In relevant part, the family was involved with CYS
prior to Child’s birth. N.T., 12/9/19, at 3. When Child came into care, he had
1 The orphans’ court also terminated the parental rights of Child’s mother, R.L
(“Mother”), in the same decree. Testimony established that Mother had
several in-patient psychiatric placements after Child was born. See N.T.,
12/9/19, at 4. When Mother was in contact with CYS, she repeatedly asserted
that the best placement for Child was with his foster parents. See id., at 6.
Mother did not file an appeal, nor has she participated in this appeal.
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medical needs. Child had corrective penile surgery in May of 2018 and had
tubes put in his ears in January of 2019. See id. at 14. Father was incapable
of providing appropriate care for Child after the surgery, despite intensive
involvement from service providers. See id. CYS maintains concerns that
Father cannot learn to meet the daily safety needs of Child. See id. at 15.
On September 4, 2019, CYS filed a petition to involuntarily terminate
the parental rights of Father to Child. On December 9, 2019, the orphans’
court conducted an evidentiary hearing on the petitions.2 CYS presented the
testimony of Rylen Bargo, a placement caseworker and supervisor for CYS,
Felicia Hackenberry, a counselor for Family Intervention Crisis Services
2 Child was only two years old at the time of the adjudicatory/dispositional
hearing on December 9, 2019, and was too young to express a preferred
outcome. The orphans’ court appointed Brian R. Baker, Esquire, as legal
interests counsel and Stuart A. Cilo, Esquire, guardian ad litem (GAL) for Child.
See In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017) (plurality),
in which our Supreme Court held that 23 Pa.C.S. § 2313(a) requires that
counsel be appointed to represent the legal interests of any child involved in
a contested involuntary termination proceeding. The Court defined a child’s
legal interest as synonymous with his or her preferred outcome. See also In
re T.S., 648 Pa. 236, 192 A.3d 1080 (2018) (filed August 22, 2018), in which
the Supreme Court held that that the trial court did not err in allowing the
children’s GAL to act as their sole representative during the termination
proceeding because, at two and three years old, they were incapable of
expressing their preferred outcome. We do not comment on the quality of the
legal counsel’s representation of the Children in this matter. See In re:
Adoption of K.M.G., 219 A.3d 662, 669 (Pa.Super. 2019) (en banc) (filed
September 13, 2019) (limited appeal granted, December 9, 2019) (holding
that this Court has authority only to raise sua sponte the issue of whether the
trial court appointed any counsel for the child, and not the authority to delve
into the quality of the representation).
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(“FICS”), and David G. Ray, a licensed psychologist. Father testified on his
own behalf.
On January 21, 2020, the orphans’ court entered the decree
involuntarily terminating Father’s parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), (5), (8) and (b). Father timely filed notices of appeal and concise
statements of errors complained of on appeal.
On appeal, Father contends that the orphans’ court improperly
terminated his parental rights to Child pursuant to section 2511(a)(2), (5),
and (8). More specifically, Father argues that CYS improperly barred Father
from any unsupervised contact with Child based on false allegations that he
had sexually abused Child. Father also complains that the orphans’ court
improperly relied on Father’s chronic physical conditions without evidence that
such physical conditions permanently prevent Father from satisfactorily
parenting Child. Finally, Father contends that the orphans’ court erred when
it determined that termination of his parental rights was in the best interests
of Child, because he and Child share a positive bond that will harm Child’s
emotional well-being if severed.
Our standard of review of termination cases is deferential:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. As has been often
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stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
... [T]here are clear reasons for applying an abuse of discretion
standard of review in these cases. We observed that, unlike trial
courts, appellate courts are not equipped to make the fact-specific
determinations on a cold record, where the trial judges are
observing the parties during the relevant hearing and often
presiding over numerous other hearings regarding the child and
parents. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion.
In re I.E.P., 87 A.3d 340, 343–44 (Pa. Super. 2014) (citations omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “[t]he standard of clear and convincing
evidence is defined as testimony that 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.’” Id. (citation omitted).
“Satisfaction of the requirements in only one subsection of Section 2511(a),
along with consideration of the provisions in Section 2511(b), is sufficient for
termination.” Z.S.W., 946 A.2d 726, 729 (Pa. Super. 2008) (brackets
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omitted, emphasis in original). Here, we will review whether termination was
proper under section 2511(a)(2) and (b).
Section 2511 of the Adoption Act provides, in relevant part, as follows:
§ 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.
23 Pa.C.S. § 2511(a)(2).
Under section 2511(a)(2), the moving party must produce clear and
convincing evidence that: (1) the parent’s conduct demonstrates repeated and
continued incapacity, abuse, neglect or refusal to assume parental
responsibility for the child; (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 parent will not
remedy the causes of the incapacity, abuse, neglect or refusal. See In re
Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds
for termination of parental rights under section 2511(a)(2) are not limited to
affirmative misconduct; to the contrary, those grounds may include acts of
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refusal as well as incapacity to perform parental duties. See In re A.L.D. 797
A.2d 326, 337 (Pa. Super. 2002).
In the present case, the orphans’ court determined that CYS established,
by clear and convincing evidence, the grounds for termination of Father’s
parental rights. The orphans’ court explained its reasoning for termination
under § 2511(a)(2):
. . . . [Child] was adjudicated dependent on December 7, 2017
and placed in the legal and physical custody of [CYS]. [CYS]
developed four Child Permanency Plans to reunite [Child] with
Father. FICS provided Father with parent education, counseling
sessions, visitation, lifestyle checks[,] and transportation. Father
did not take advantage of the services offered by FICS. While
Father was consistent in his attendance with service[-]providers
prior to June of 2019, Father would not consistently implement or
correctly perform what he learned in his visits with [Child].
Furthermore, Father struggled to complete the specific tasks FICS
asked him to do during each visit with [Child]. Testimony
provided Father greeted [Child] at the beginning of a visit only 18
percent of the time. While Father did change [Child’s] diaper
during 89 percent of his visits, he required staff assistance to do
this. Father took the initiative to feed [Child] on 47 percent of
visits, but had to be prompted by staff on several occasions.
Father burped [Child] sixty-two percent of the time and made
facial expressions 4.5 percent of the time. Father engaged [Child]
with tummy time 20 percent of the time and tended to his post-
surgery needs only 13 percent of the time. Lastly, Father
refrained from playing on his phone only 66 percent of the time.
In refusing to take advantage of the numerous services offered to
him, Father failed to meet the objectives of [CYS]. Father has a
lack of insight into his inabilities and believes he has done
everything he can to have [Child] returned to his custody. Father
cannot understand why [Child] has not yet been returned to his
care and believes Mother is in cahoots with [CYS] to have his
[rights] terminated. Due to his lack of insight and his failure to
utilize service tools, Father was never able to remedy his
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behaviors and provide [Child] with an environment that will meet
the child’s emotional, mental, physical and developmental needs.
Based on the testimony given above, Father cannot meet [Child’s]
mental, emotional or physical needs. Father does not have a place
for [Child] to stay, if the child would be returned to him and home
conditions are still an issue. Furthermore, Father has failed to
address his own medical needs and is not able to properly
maintain and monitor prescribed medications. After more than
two years of services, [CYS] and FICS both testified Father is not
capable of providing for [Child’s] physical, developmental and
emotional needs.
At Permanency Review Hearings held April 23, 2018, September
10, 2018, February 11, 2019, and July 15, 2019, the [orphans’
court] found Father was minimally compliant with the permanency
plan and had only made minimal progress towards alleviating the
circumstances which necessitated original placement. At [the]
termination hearing held December 9, 2019, [CYS] had the same
concerns for Father’s parental capacity that they had at the time
of filing for dependency. As a result, there exists a continued
inability to parent [Child]. This has caused [Child] to be without
essential parental care, control or subsistence necessary for his
physical and mental well-being. Furthermore, due to the
extended duration of this case, the [orphans’ court] finds Father’s
incapacity cannot remedied in a timely manner. For these reasons
the [orphans’ court] finds by clear and convincing evidence
grounds for termination of Father’s parental rights pursuant to §
2511(a)(2).
Orphans’ Court Opinion, 1/21/20, at 11-13.
In summary, the orphans’ court determined that Father made
insufficient progress towards meeting his FSP objectives. The orphans’ court
credited the testimony of Rylen Bargo, a placement caseworker and supervisor
for CYS. Bargo testified that CYS “has ongoing concerns with Father’s ability
to retain information needed to meet the daily safety needs [of Child].” N.T.,
12/9/19, at 15. Bargo explained further:
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This includes the proper use of [and] installation of a car seat, to
date still being an issue. Observation and use of safe and clean
foods and dishes. Appropriate supervision of [Child], ability to
monitor his anger and frustration levels, and to follow doctor and
staff direction. He’s actually -- [Father] has actually some
regression in skills since FICS has stopped prompting unless
there’s a direct safety need, safety threat to [Child].
He’s unable or unwilling to follow [Child’s] established schedules
and is unable to relate this causing [Child] to be upset and fussy
during visits which in turn causes elevated anger and frustration.
Id.
Bargo expressed concern about Father’s medical issues and that he was
unable to properly maintain his health conditions and monitor his medications.
See id. at 16-17. She also explained that Father failed to meet his objective
of cooperating with CYS and other service providers. See id. at 20-21. At the
time of the termination hearing, Father refused to provide CYS with his current
address, so CYS was unable to complete a home assessment. See id. at 18.
Additionally, she testified that Father was not honest about financial issues
and the number of members of people living in the household. See id. at 20.
Bargo stated that Father had an indication for physical and sexual abuse
through CYS and was referred to Project Point of Light. See id. at 38. CYS
followed Project Point of Light recommendation that Father have no
unsupervised contact with Child. See id. at 37. Project Point of Light felt this
was necessary due Father’s lack of progression with the case. See id. Bargo
testified that CYS had the same concerns at the termination hearing that
existed when they filed the petition for dependency. See id. at 21.
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The parenting counselor from FICS, Hackenberry, described Father’s
participation in services as “very scattered throughout the entirety of this
case”, and clarified:
So there were times where he was very defensive and didn’t want
to take feedback, but then there were also times where he would
stop and calm down and listen. And at least appear to be trying
to get it. But he was also inconsistent [in] that one time he could
do it, the next time he didn’t do it. So I’m not sure if it was an
[inability] or unwillingness.
Id. at 49-50.
Hackenberry expressed concern about the lifestyle checks FICS
performed on Father, and testified that Father’s home repeatedly presented
safety concerns:
. . . [T]here were anywhere from 4 piles to over 23 piles of dog
feces on the floor at any given time. There was scattered garbage.
There was concern of a gun and bullets unsecured in a dresser
drawer that [Child] could or could not have access to had he been
in the home. The refrigerator, at times the refrigerator was turned
on. At other times[,] it was not and there was still food in it. Then
the smell and different things that would come with that. There
were many different times that there were different tools laying
out. Laid out on the floor. There was an axe, an axe head on the
floor, diabetes supplies, [and] medications on the floor and/or
within reach of [Child].
Id. at 72. Hackenberry emphasized that Father has not made progress in any
of his objectives set forth in the FSP and opined that Father cannot meet
Child’s physical, emotional or developmental needs. Id. at 70 and 77.
The orphans’ court credited the testimony of Bargo and Hackenberry.
See Orphans’ Court Opinion, 1/21/20, at 6-7. The competent, clear and
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convincing evidence in the record supports the orphans’ court’s credibility and
weight determinations, and its conclusion that Father’s repeated and
continued incapacity, abuse, neglect, or refusal has caused Child to be without
essential parental control or subsistence necessary for his physical and mental
well-being. See In re Adoption of M.E.P., 825 A.2d at 1272. Based upon
our review of the record, we conclude that the orphans’ court did not err or
abuse its discretion in terminating Father’s parental rights to Child pursuant
to Section 2511(a)(2).
Next, we must consider whether Child’s needs and welfare will be met
by termination under Section 2511(b). In re Z.P., 994 A2d 1108, 1121 (Pa.
Super 2010). “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.” Id. Ultimately, the
concern is the needs and welfare of a child. Id. This Court has cautioned
against a simplistic consideration of the child’s needs:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
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Id. at 1121 (citation omitted). The court may equally emphasize the safety
needs of the child and may consider intangibles, such as the love, comfort,
security, and stability the child might have with the foster parent. See In re
N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Additionally, the court may
emphasize the safety needs of a child. See In re K.Z.S., 946 A.2d 753, 763
(Pa. Super. 2008). “[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.” In re
B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted). A parent’s
abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and internal
quotation marks omitted).
Father contends that CYS did not present clear and convincing evidence
that termination of Father’s parental rights was in the best interests of Child.
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More specifically, Father argues that the orphans’ court erred when it credited
the testimony of the licensed psychologist, Ray, that Child would not be
adversely affected if Father’s parental rights were terminated.
The orphans’ court concluded that terminating Father’s parental rights
serves Child’s developmental, physical, and emotional needs and welfare:
Upon filing for dependency, [Child] was underweight and in need
of penile surgery. The child also needed tubes placed in his ears.
Foster parents tended to all of [Child’s] medical needs and [Child]
is now meeting all of his childhood milestones and checks. [Child]
also has a healthy secure attachment to his foster parents. [Child]
calls foster mother and father “Mommy and Poppa” and goes to
his foster parents for all of his needs. Mr. Ray testified he
observed [Child] enthusiastically interacting in the foster home
and engaging others in play.
These interactions are vastly different from Mr. Ray’s observations
between [Child] and Father. Mr. Ray noted he did not observe
any close interactions between Father and [Child]. Mr. Ray
testified the child appeared subdued during visits and Father
would sit in one place and would snap his fingers or pick up a toy
and hit it across the floor, but did not interact with [Child]. Mr.
Ray also noted that Father did not closely watch [Child] to ensure
he did not try to mess with the tubes in his ears. Mr. Ray testified
Father would leave the child unattended and FICS would be left to
intervene for the child’s safety. The excessive intervention by
FICS was surprising to Mr. Ray as Father had already had 14-15
months of supervision and instruction.
Based on his observations of visits and psychological evaluation,
Mr. Ray testified there would be very little to no psychological
damage to [Child] if Father’s rights were terminated. By way of
example, Mr. Ray noted [Child] did not have any negative
behavioral issues after Father stopped attending visits with [Child]
in June of 2019. Mr. Ray noted [Child] has spent ninety (90)
percent of his life in the care of foster parents. [Child] only spent
77 days in the primary care of Father. Mr. Ray believes [Child]
would be psychologically damaged if he would be removed the
care of his foster parents.
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In light of the above, the [orphans’ court] finds it is in the [Child’s]
best interest to be placed with a family that can adequately
provide for his emotional, mental and physical needs. Testimony
provided [Child] is doing well in his current foster placement
home. Foster parents have reported to the Agency] that they are
an adoptive resource for [Child] and wish to make him part of
their family. If the [orphans’ court] were to maintain Mother and
Father’s parental rights, [Child’s] developmental, educational and
emotional foundation would be threatened, as he would be
deprived of a permanent, healthy, safe, and secure parent/child
relationship with his foster parents.
Orphans’ Court Opinion, 1/21/20, at 16-17.
The competent, clear and convincing evidence in the record supports
the orphans’ court’s conclusion that it would best serve the needs and welfare
of Child to involuntarily terminate Father’s parental rights pursuant to Section
2511(b). Ray attended visits between Father and Child and observed “very
little interaction” and that Child “didn’t seem really comfortable around his
dad.” N.T., 12/9/19, at 120 and 122. Notably, Mr. Ray opined that Father
“cannot provide an environment that assures [Child’s] health, safety,
welfare[,] nor is he meeting [Child’s] emotional, and physical needs.” Id. at
124. Conversely, Ray described that foster parents “are meeting his needs.
The child is healthy there. He’s secure. He’s loved. He’s played with. He’s
interacted. He’s given structure, and warmth, and nurturing.” Id. at 122.
Ray pointed out that Child has been in the care of foster parents for over two
years and concluded that the psychological benefits of proceeding with the
termination of Father’s parental rights “and severing the bond far outweigh
any disturbance that it would create.” Id. at 125.
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The credited testimony of Ray supports the orphans’ court’s conclusion
that it would best serve the needs and welfare of Child to terminate Father’s
parental rights pursuant to Section 2511(b). Preserving Father’s parental
rights would serve only to deny Child the permanence and stability to which
he is entitled. See In re Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa.
Super. 2015) (“Clearly, it would not be in [the child’s] best interest for his life
to remain on hold indefinitely in hopes that [Father] will one day be able to
act as his parent”).
Accordingly, the trial court did not err or abuse its discretion in
terminating Father’s parental rights to Child pursuant to Section 2511(b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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