In the Int. of: K.D.A., Appeal of: A.A.

J-S23001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.D.A, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.A., FATHER :
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: No. 446 EDA 2020
Appeal from the Order Entered January 27, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000396-2019
IN THE INTEREST OF: K.K.A, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.A., FATHER :
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: No. 447 EDA 2020
Appeal from the Order Entered January 27, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000397-2019
IN THE INTEREST OF: K.A, A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.A., FATHER :
:
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: No. 448 EDA 2020
Appeal from the Order Entered January 27, 2020
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000398-2019
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
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MEMORANDUM BY NICHOLS, J.: FILED JULY 22, 2020
A.A. (Father) appeals from the orders involuntarily terminating his
parental rights to K.D.A., born in August 2010, K.K.A., born in July 2011, and
K.A., born in April 2015 (collectively, Children), under 23 Pa.C.S. § 2511(a)(2)
and (b).1 We affirm.
We summarize the procedural history of this matter from the record.
On February 15, 2017, DHS received a child protective services (CPS) report
alleging Mother’s and Father’s medical neglect of Children’s sibling (Sibling).2
At that time, Mother was living with a relative, and Father was in prison for
charges of robbery and related offenses in Philadelphia.3 During the
investigation into the CPS report, Children came to DHS’s attention because
their medical checkups were not up to date.
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1The trial court also terminated the parental rights of K.B. (Mother). Mother
has not appealed.
2The trial court found aggravated circumstances in the case involving Sibling
and adjudicated Sibling dependent on May 1, 2017. The trial court terminated
Parents’ rights to Sibling on March 27, 2019. N.T., 1/27/20, at 18.
In addition to Children and Sibling, Mother gave birth to another child in May
2018. Father was not the biological father of the fifth child, and that child is
not subject to this appeal.
3 Father pled guilty to the Philadelphia charges, and in October 2017, the trial
court sentenced him to two-and-one-half to five years’ imprisonment and
three years’ probation in one case and two-and-one-half to five years’
imprisonment in another case. See DHS Ex. 1. We refer to Father’s
Philadelphia criminal cases as the Philadelphia convictions in this
memorandum.
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DHS took Sibling into protective custody the same day it received the
CPS report. Children remained in Mother’s care with Mother’s relatives
providing supervision. As part of Sibling’s case, the trial court ordered
referrals for Father to (1) the Achieving Reunification Center (ARC) for
parenting, housing, and employment issues, (2) Menergy for anger
management issues, and (3) the Clinical Evaluation Unit (CEU) for drug
screens, as well as substance abuse and mental health issues.
On April 11, 2017, DHS filed dependency petitions regarding Children.4
On April 27, 2017, the trial court adjudicated Children dependent. Children
remained with Mother on the condition that Mother remain in her relative’s
home. The trial court maintained its referrals of Father to ARC, Menergy, and
CEU, although Father remained incarcerated on the Philadelphia convictions.
See Orders, 4/11/17 & 10/18/17.
Following a March 7, 2018 meeting to revise the single case plan (SCP),
Father’s goals were to (1) cooperate with services, (2) make himself available
and participate in a community umbrella agency (CUA) case management
services, (3) complete and follow recommendations of a CEU evaluation, and
(4) submit three court-ordered random drug screens. In April 2018, Father
failed to participate in a CUA meeting despite being invited to do so.
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4K.A. was approximately two years old when DHS removed her from Mother’s
care.
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Following Mother’s arrest for retail theft and endangering the welfare of
children,5 the trial court committed Children to DHS’s custody on May 24,
2018. On November 19, 2018, the trial court permitted Father to have
monthly supervised visits with K.D.A. and K.K.A. in prison, or supervised visits
at a CUA if he was released from prison. On March 6, 2019, Father was
released from prison for the Philadelphia convictions. At a March 7, 2019
hearing, the trial court ordered that Father have supervised visits with
Children and undergo a paternity test with respect to K.A.
On May 30, 2019, DHS filed petitions seeking the involuntary
termination of Father’s rights to Children under 23 Pa.C.S. § 2511(a)(1), (2),
(5), (8), and (b). At the next permanency review hearing held on June 6,
2019, the trial court granted Father weekly supervised visits and referred
Father to CEU for assessments and drug screens. The trial court appointed a
child advocate attorney as legal counsel for K.D.A. and K.K.A.6 Father’s drug
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5 DHS alleged that Mother and a companion left Children in a running car while
they committed the thefts.
6 The guardian ad litem (GAL) from the dependency proceedings continued to
represent Children’s best interests after DHS filed the petitions to terminate
Father’s parental rights. The records and dockets do not contain orders
appointing legal counsel for K.D.A. and K.K.A. However, based on the
notations of the individuals who appeared at continuance hearings, it appears
that the trial court appointed legal counsel at some time between June 6, 2019
and September 25, 2019. The trial court later noted that it did not appoint
legal counsel for K.A. because K.A. “didn’t really understand the process and
couldn’t make an informed decision.” N.T. at 59.
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tests in June 2019 and October 2019 were positive for opiates. In November
2019, Father was incarcerated on felony-two retail theft charges in Blair
County.7
The trial court held a hearing on the petitions to terminate on January
27, 2020. Father’s counsel appeared at the hearing, and Father participated
by telephone from Blair County prison. Father stipulated to the statement of
facts in DHS’s petitions to terminate Father’s parental rights. The trial court
also admitted into evidence a report of Father’s convictions.
Thereafter, DHS presented the testimony of Tiana Dixon, a CUA
caseworker, regarding the history of the case, Father’s incarcerations, and
Father’s contacts with Children. Ms. Dixon noted that Father’s compliance
with the SCP was minimal throughout the case, even when Father was not
incarcerated. Father submitted two drug screens that were positive for
opiates. Ms. Dixon testified that the bond among Father and Children was
more like a sibling bond than a parent-child bond. She opined that termination
would be in the best interests of Children and that severing their relationship
with Father would not result in irreparable harm to Children.
Father testified on his own behalf. Father acknowledged failing the drug
tests, but asserted that he was in an accident and was going to therapy.
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7 Counsel for DHS asserted that Father was arrested in November 2019.
Father did not dispute that assertion, and in his appellate briefs, he has
repeated the November 2019 date when referring to the date of his
incarceration for the Blair County charges.
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Father indicated that he had a prescription for opiates. He testified that he
took the prescription “to the courthouse, and they had it.” N.T., 1/27/20, at
32. Later, when he was required to show a copy to “Tiana,” apparently
referring to the CUA caseworker, he “never got a chance to.” Id. Father
admitted he did not complete a drug treatment program and did not take
anger management or domestic violence classes. Father noted he was
employed following his release from prison in March 2019 until his arrest in
November 2019.
Father testified that during his incarceration on the Blair County
charges, he was unable to contact Children by telephone, either through his
sister or through the prison counselor. Id. at 35. Father indicated that his
earliest release date was “maybe in about two months” referring to a court
date at which the criminal case against him was “supposed to be getting
thrown out.” Id. at 31. Father anticipated living in an apartment upon his
release that his sister would help locate. Father further testified that his sister
was holding $15,000, which he obtained from a settlement related to his civil
case regarding his accident. Id. at 33.
Father testified that he visited Children every Tuesday and that he had
a “very good bond with them.” Id. at 34-35. He stated that he was present
with Mother for a dental surgery and helped comfort Children.
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K.D.A. and K.K.A.’s legal counsel then presented expert testimony from
Roya Paller,8 a forensic social worker. Ms. Paller testified that K.D.A. and
K.K.A. preferred adoption. Ms. Paller noted that when she informed K.D.A.
and K.K.A. that adoption would mean that they might not get to see Mother
or Father until they were older, they replied, “That’s fine.” Id. at 42.
At the conclusion of the hearing regarding Father, the trial court granted
DHS’s petitions to terminate Father’s parental rights based on Section
2511(a)(2) and (b) and set forth its findings and conclusions of law on the
record. Id. at 52-56. That same day, the trial court entered the order
terminating Father’s parental rights to Children.
Father timely appealed and complied with Pa.R.A.P. 1925(a)(2)(i) and
(b).9 The trial court filed opinions referring to and summarizing its statements
at the January 27, 2020 hearing.
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8Although the transcript of the termination hearing spelled Ms. Paller’s last
name as “Pollard,” it appears that the correct spelling is “Paller,” See Ex. CA1,
and we will use the latter spelling throughout this memorandum.
9 Father filed separate notices of appeals at each trial court docket
corresponding to Children. Father’s errors complained of in the Rule 1925(b)
statements attached to each appeal were identical. In his Rule 1925(b)
statements, Father challenged the trial court’s ruling under 23 Pa.C.S. §
2511(a)(2) asserting that he “substantially met his [family service plan] goals
and thereby remedied his situation” and that DHS did not provide reasonable
effort to reunite him with Children. See, e.g., Father’s Rule 1925(b)
Statement, CP-51-AP-0000396-2019, at ¶ 1. Father also challenged the trial
court’s ruling under 23 Pa.C.S. § 2511(b) asserting that “DHS failed to provide
clear and convincing evidence that involuntary terminat[ion] of his parental
rights best served the needs and welfare of [Children].” See, e.g., id. at ¶ 2.
As discussed further in this memorandum, Father did not object to the
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Father presents the following issues for review:
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Father] pursuant to 23 Pa.[C.S.
§] 2511 (a)(2) where [Father] presented evidence that he has
remedied his situation by meeting his goals of consistent visitation
with his children, Parenting classes, attending medical
appointments, maintaining employment and remaining drug free
and he has the present capacity to care for [Children] in his home
with the help of his sister.
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [Father] pursuant to 23 Pa.[C.S.
§] 2511(b) [were] NOT MET. NEITHER THE CHILD ADVOCATE
ATTORNEY NOR THE GUARDIAN AD LITEM EVER MET WITH
ANY OF THE THREE CHILDREN, WHO WERE 9 YEARS OLD, 8
YEARS OLD AND 4 YEARS OLD, TO DETERMINE THEIR
DESIRED OUTCOMES. Additionally, evidence was presented
that established that [Father] and [Children] had a close bond.
DHS undermined [Father] in his relationship with [Children] by
not permitting visits with [Father] once he was incarcerated. The
best interests of the children should be to incorporate [Father]
back into the lives of [Children].
Father’s Briefs at 7 (emphasis in original). DHS, the GAL, and legal counsel
for K.D.A. and K.K.A. have submitted briefs supporting the order to
termination Father’s parental rights.
Father first contends that he “substantially completed all his [family
service plan] goals and additional requirements of the [trial c]ourt. . . . [He]
has done and continues to perform all that was ever asked of him.” Father’s
Brief at 14. Father notes:
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adequacy of legal counsel’s representation of K.D.A. and K.K.A., or the trial
court’s decision not to appoint legal counsel for K.A. in the trial court.
Moreover, Father did not preserve issues related to legal counsel for Children
in his Rule 1925(b) statements.
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Father’s objectives for the life of the case were to have a CEU
evaluation and follow recommendations and to take random drug
screens. Father was also to take parenting classes, attend a
domestic violence program, attend supervised visits and to obtain
appropriate housing. Father had several drug screens where he
tested positive for opiates, for which [Father] indicated he had a
prescription for, due being in an accident. Father completed a
parenting class while incarcerated. Prior to his incarceration
[Father] provided the social worker with pay stubs to verify his
employment.
Father visited consistently with [Children] prior to his
incarceration in November of 2019. Father had requested an
[individualized education plan] for one child and attended all
[Children’s] dental and medical appointments prior to his
incarceration. Father sent photographs to his children while
incarcerated. The social worker for the city[, Ms. Dixon] testified
inconsistently regarding the dates of [Father’s] period of
incarceration.
Additionally, Father testified that he may be released from prison
in two months and would be getting an apartment using the
settlement funds he got from his accident.
Throughout the case [Father] attended supervised visits at various
locations and was always present. Since [Father] was
incarcerated in November of 2019, he was never provided with
any visitation with his children.
Id. at 8-9. In sum, Father asserts that the trial court erred in terminating his
parental rights under Section 2511(a)(2). Id. at 15.
DHS contends that the trial court’s properly terminated Father’s parental
rights under Section 2511(a)(2).10 DHS’s Brief at 23. DHS asserts that the
trial court properly considered Father’s incarceration when concluding that
Father was absent from Children’s lives. Id. at 20. DHS further notes that
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10 The GAL also filed a brief in support of terminating Father’s parental rights
to Children. GAL’s Brief at 8-9.
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the trial court was entitled to rely on Father’s repeated incarcerations when
concluding that Father was incapable of parenting Children. Id.
Additionally, DHS notes that the trial court properly found that there
was no guarantee that Father would be released from prison within two
months of the hearing. Id. DHS emphasizes that Father failed to make
meaningful progress with his SCP, failed to address substance abuse issues,
did not address his anger management and domestic violence issues, and did
not address housing or employment to support Children. Id. at 21-22. DHS
notes that Father made only minimal progress with parenting and visitation,
had limited contact with Children during his incarcerations, and argues that
he did not develop a parental relationship with Children. Id. In sum, DHS
asserts:
Clearly, Father was not in a position to be a full-time parent for
Children. The record reflects that Father’s repeated incarceration
with no clear release date and failure to meaningfully achieve his
SCP objectives left Children without a dedicated parent. As such,
termination under § 2511(a)(2) was proper and should be
affirmed.
Id. at 23.
In reviewing an appeal from an order terminating parental rights, we
apply the following standard of review:
[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. [In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010)]. If the factual findings are supported, appellate
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courts review to determine if the trial court made an error of law
or abused its discretion. As has been often 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.
As we discussed in R.J.T., there 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 Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
The burden is on the petitioner “to prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[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).
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
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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
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b) . . . .
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Initially, we review the trial court’s ruling under Section 2511(a)(2)
which provides:
§ 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 condition 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).
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted).
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Further, “[t]he grounds for termination 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 Adoption of C.D.R., 111 A.3d 1212, 1216
(Pa. Super. 2015) (citation omitted). “Parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” In re A.L.D., 797 A.2d 326, 340 (Pa. Super. 2002) (citations
and quotation marks omitted).
Instantly, the trial court stated:
[W]ith respect to [Section 2511(a)(2)11], I am going to terminate
involuntarily [Father’s] parental rights. The testimony is 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 or her 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.
The testimony of CUA -- which, again, I’ve already indicated I
found credible -- is that, for at least the first year and a half,
almost two years that [Children] were court-involved and then in
placement, [Father] was absent because he was incarcerated.
CUA did testify that once [Father] was released in March of 2019,
he did make attempts to be actively involved in [Children’s]
li[ves]. He was visiting consistently. CUA testified he completed
a parenting class, even though [Father] indicated he didn’t
complete a parenting class. But CUA indicated that there’s
documentation in there, [Father], he did complete a parenting
class.
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11 The trial court specifically rejected Sections 2511(a)(5) and (8) as grounds
to terminate Father’s parental rights. See N.T. at 52.
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Father indicated that the opiates that were in his system were due
to medication, however, there’s no documentation to substantiate
that claim. And in fact, there were two positive screens for
opiates, given about four months apart, which leads me to believe
that there wasn’t any documentation actually provided to CEU,
otherwise, they would not have noted [Father] as positive for
opiates. They would have indicated that he actually had a
prescription for the opiates.
That being said, DHS -- let me make sure I have the right exhibit
-- 1 is [Father’s] court summary, and it indicates that [Father] is
in and out of prison, and that, in and of itself, especially given the
length of time [Children] have been in care, [Father] has been in
prison more than he’s been out of prison. And as such, he’s been
unable to parent [Children].
Quite frankly, his incarceration has left [Children] -- and I’ll read
[Section 2511(a)(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 or her 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.
Father has been in prison more than he’s been out of prison. And
that incapacity or refusal, however you choose to look at it, has
caused [Children] to be without the essential parental care,
control, or subsistence necessary for each of their physical, mental
well-being. Father indicates that he’ll be out in two months, but
there’s no guarantee. He’s still in pretrial status, or trial status.
And I am not convinced, given that he was, in fact, released from
prison in March of 2019 by his own admission and by CUA’s
testimony, and within six months, re-incarcerated. So, this Court
has no reason to believe that [Father] can or will remedy the
causes of his incapacity that has caused [Children] to be without
proper parental care and control.
Id. at 52-54.
Following our review, we find no abuse of discretion or error of law in
the trial court’s ruling that DHS established grounds for terminating Father’s
parental rights under Section 2511(a)(2). The record established that Father
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partially complied with the SCP by completing a parenting class while
incarcerated for his Philadelphia convictions. See N.T. at 22. When out of
prison, Father did visit once per week with Children, attended one medical
appointment, and obtained employment. See id. at 23, 25-26, 34, 35.
Nevertheless, Father’s compliance was minimal. See id. at 26. Father
did not enroll in a drug and alcohol program or address his anger management
issues. See id. at 21-22, 32. Father also failed two drug screens. See id.
at 20-21. Although Father testified that he had a prescription for opiates to
explain his positive drug screens, see id. at 32, the trial court was entitled to
reject Father’s generalized and unsubstantiated assertions. See S.P., 47 A.3d
at 826-27. Father did not progress beyond a weekly supervised visit with
Children, and with the exception of one medical appointment, he did not
consistently attend Children’s medical appointments. Id. at 26, 30.
Moreover, as emphasized by the trial court, Father’s repeated incarcerations
also evidenced his inability to provide meaningful, stable parental care to
Children. Indeed, following his most recent incarceration for the Blair County
charges, Father had only minimal contact with Children, sending pictures to
Children once and participating in one individualized education program (IEP)
matter. Id. at 25, 35. Accordingly, the record contains no indication that
Father made diligent efforts toward a reasonably prompt assumption of full
parental responsibilities. See A.L.D., 797 A.2d at 340.
In sum, having reviewed the parties’ arguments and the record, we find
no basis to disturb the trial court’s findings of fact, which were supported by
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the record. Moreover, we discern no error in the trial court’s legal conclusions
that Father’s repeated and continued incapacity to parent caused Children to
be without essential parental care and that Father could not or would not
remedy the incapacity. See C.D.R., 111 A.3d at 1216; M.E.P., 825 A.2d at
1272. As this Court has stated, “[a] child’s life simply cannot be put on hold
in the hope that the parent will summon the ability to handle the
responsibilities of parenting.” In re Adoption of R.J.S., 901 A.2d 502, 507
(Pa. Super. 2006) (citation and footnote omitted). Accordingly, we affirm the
trial court’s ruling to terminate Father’s parental rights under Section
2511(a)(2). See S.P., 47 A.3d at 826-27.
Father’s next claim involves two arguments. First, Father contends that
the trial court erred in terminating his parental rights under Section 2511(b).
Father’s Brief at 16. Second, Father argues that Children did not have
adequate representation of their legal interests. Id. We address these
arguments separately.
First, as to the existence of a bond with Children, Father notes that he
visited regularly with Children following his release from prison for the
Philadelphia convictions. Id. He emphasizes that he was present for
Children’s oral surgery and that he participated in an IEP. Id. He adds that
he did not have opportunities to visit Children when in prison for the Blair
County offenses. Father asserts there was a parental bond with Children and
Children “looked to [Father to fulfill] their emotional, medical, and educational
need.” Id. at 16-17.
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DHS responds that the trial court properly terminated Father’s parental
rights under Section 2511(b) “because the record reflected that Children did
not share parent-child bonds with him.”12 DHS’s Brief at 26. DHS notes that
the record supported the trial court’s finding that termination best suited
Children’s needs and welfare. Id. Specifically, DHS states that Father did not
progress past supervised vitiations on a weekly basis, and that Ms. Dixon
testified that Father and Children had more a sibling-type bond than a parent-
child bond. Id. According to DHS, Ms. Dixon testified that when Father began
regular visits with Children after his release from prison on the Philadelphia
convictions, Children had to warm back up to him over time because of the
lack of contact with Father, and they did not complain or act out when their
visits with Father ended. Id. at 26-27. Additionally, DHS notes that Ms. Paller
opined that there was no bond between Father and K.D.A. and K.K.A, because
they told her that they did not “really see him.” Id. at 27.
Section 2511(b) states:
(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.
23 Pa.C.S. § 2511(b).
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12 The GAL also argued that the trial court properly terminated Father’s
parental rights under Section 2511(b).
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This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the
child. See In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008). In reviewing
the evidence in support of termination under Section 2511(b), our Supreme
Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In In re E.M., 620 A.2d [481,
485 (Pa. 1993)], this Court held that the determination of the
child’s “needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of permanently
severing the parental bond.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations omitted).
When evaluating a parental bond, “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., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations
omitted). Further, “in cases where there is no evidence of a bond between a
parent and child, it is reasonable to infer that no bond exists.” In re Adoption
of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (citation omitted).
Instantly, the trial court considered Section 2511(b) as follows:
[L]et me be clear, in addition, [Father’s] testimony is that he has
a good relationship with [Children] and that he’s maintained a
place of importance, but the testimony of Ms. [Paller], which I find
credible, is that at least [K.D.A.] and [K.K.A.] don’t have the same
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impression of [Father], and that, in fact, their impression -- even
though he was visiting consistently from March until seemingly
November -- is, we don’t see him very often. That, in and of itself,
for a 9-year–old and an 8-year-old, is very telling. And so, with
respect to [Section 2511(a)(2)], the testimony of Ms. [Paller] is
very critical and seems to indicate that [K.D.A. and K.K.A.] don’t
have the same -- an attachment to [Father] that would be that of
a father/daughter attachment. In fact, as to [K.D.A. and K.K.A.],
they specifically told Ms. [Paller] that they would be fine if they
never got to see [Father] again.
With respect to [K.A.], she’s only four, so there was not the same
assessment given to her. But CUA testified that the relationship
of [Father] with [Children] is not that of a father/child, that
[Children] don’t really have a negative reaction when [Father]
doesn’t make himself available for visits, and that they seem to
be fine. So, based on that, this Court is going to find that there
is no parent/child bond between [F]ather and [Children] and, as
such, there would not be any detrimental impact if his rights were
terminated involuntarily as to [Children].
Id. at 52-56.
Following our review, we conclude that the record supported the trial
court’s findings of fact and conclusions of law. We acknowledge, as did the
trial court, that Father testified that there was a meaningful parent-child bond
with Children. However, there was ample evidence supporting the trial court’s
determinations that no positive parent-child bond existed and that the
termination of Father’s parental rights would not harm Children’s
developmental, physical, and emotional needs and welfare. See N.T. at 22-
24, 40-42. Therefore, we affirm the trial court’s rulings as to Section 2511(b).
See S.P., 47 A.3d at 826-27.
Second, as to Children’s right to counsel, Father asserts:
[In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017)],
requires that an attorney for the child be appointed to represent
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a child’s legal interests. This requirement requires an attorney
and not a social worker. If the court had meant that
testimony from a social worker would suffice for this
requirement of a child advocate attorney, then the GAL
could have performed this role and hired a social worker.
A child advocate attorney is required, at the very least, to meet
with his or her client. This requirement has not been met in this
case.
Father’s Brief at 15-16 (emphasis in original). Father further relies on this
Court’s decision in In the Interest of D.N.G., ___ A.3d ___, 2020 Pa. Super.
62, 2020 WL 1226501 (Pa. Super. filed Mar. 13, 2020), to argue that legal
counsel for K.D.A. and K.K.A did not honor Children’s right to adequate
representation. Id. at 16.
DHS asserts that that legal counsel “in the instant matter properly
fulfilled her duties.” DHS’s Brief at 29. According to DHS, “K.D.A.’s and
K.K.A.’s positions were clear,” and legal counsel advocated consistently with
their wishes” and “actively participated” throughout the hearing.” Id. at 31.
DHS asserts that “Father’s reliance on D.N.G. is misguided” because D.N.G.
involved a case where the child expressed an interest in reunifying with a
parent. Id.
Legal counsel has also filed a brief responding to Father’s assertion that
her representation of K.D.A. and K.K.A. was inadequate. Legal counsel notes
that she obtained an expert who determined that K.D.A. and K.K.A’s interests
were aligned with adoption. Legal Counsel’s Brief at 7. Legal counsel asserts
that she “discharged her duty to protect [K.D.A. and K.K.A’s] legal interest by
“not only offering testimony of an expert witness, a forensic social worker, but
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also by zealously advocating for [K.D.A. and K.K.A’s] interest.” Id. Legal
counsel also states that Father’s reliance on D.N.G. is “flawed.” Id.
The GAL has also submitted a brief. In relevant part, the GAL contends
that “K.A. was four-years old at the time of the [termination] hearing and at
the time that counsel visited her, [K.A.] was unable to verbalize where she
wanted to live or understand the meaning of adoption.” GAL’s Brief at 12.
The GAL notes that “K.A. had one attorney representing her desires and
interests.” Id.
Section 2313(a) of the Adoption Act states:
The court shall appoint counsel to represent the child in an
involuntary termination proceeding when the proceeding is being
contested by one or both of the parents. The court may appoint
counsel or a guardian ad litem to represent any child who has not
reached the age of 18 years and is subject to any other proceeding
under this part whenever it is in the best interests of the child. No
attorney or law firm shall represent both the child and the
adopting parent or parents.
23 Pa.C.S. § 2313(a).
In L.B.M., our Supreme Court considered “whether 23 Pa.C.S. §
2313(a), which mandates the appointment of counsel for children involved in
contested involuntary termination of parental rights . . . proceedings, is
satisfied by the appointment of a [GAL] provided that the GAL is an attorney.”
L.B.M., 161 A.3d at 174. In L.B.M.,
a majority of the Court agreed on several points: (a) in the
context of contested termination-of-parental-rights . . .
proceedings, the first sentence of Section 2313(a) requires
that the common pleas court appoint an attorney to
represent the child’s legal interests, i.e., the child’s
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preferred outcome; (b) where there is a conflict between the
child’s legal interests and his best interests, [a GAL], who
advocates for the child’s best interests, cannot
simultaneously represent the child’s legal interests; and (c)
in such a circumstance, the failure to appoint a separate
attorney to represent the child’s legal interests constitutes
structural error, meaning it is not subject to a harmless-
error analysis.
In re T.S., 192 A.3d 1080, 1082 (Pa. 2018) (footnotes omitted).
In T.S., our Supreme Court held that the trial court did not err in
allowing the children's GAL to act as their counsel during the termination
proceeding because, at two and three years old, the children were incapable
of expressing their preferred outcome. Id. at 1089, 1092. The Court
explained that Section 2313(a) was satisfied by the representation of the
children by the GAL because “if the preferred outcome of [the children is]
incapable of ascertainment because [they are] very young and pre-verbal,
[then] there can be no conflict between the [children’s] legal interests and his
or her best interests.” Id. at 1092-93. The Court further reaffirmed that
“where there is no conflict between a child’s legal and best interests, [a GAL]
representing the child’s best interests can also represent the child’s legal
interests.” Id. at 1092.
In In re Adoption of K.M.G., 219 A.3d 662 (Pa. Super. 2019) (en
banc), appeal granted in part, 221 A.3d 649 (Pa. 2019), this Court considered
“the procedural issue of whether Superior Court must sua sponte review every
termination case to make an independent determination of whether a GAL has
a conflict.” K.M.G., 219 A.3d at 667. The K.M.G. Court held that the Superior
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Court “only has the authority to raise sua sponte the issue of whether the
lower court appointed any counsel for the child, and not the authority to delve
into the quality of the representation.” Id. at 667-68.
In so holding, the K.M.G. Court overruled In re Adoption of T.M.L.M.,
184 A.3d 585, 587 (Pa. Super. 2018), and reasoned as follows:
A three-judge panel of this Court, in T.M.L.M., held that Superior
Court must sua sponte make an independent determination of
whether a GAL has a conflict in every involuntary termination
case. In that case, the orphans’ court stated on the record that
the appointment of the GAL for the involuntary termination
hearing complied with L.B.M. and, thus, Section 2313(a). No
party on appeal contested this finding of the orphans’ court. Yet,
the panel in T.M.L.M. sua sponte reviewed the record, found that
the GAL may have a conflict, reversed the order terminating the
mother’s parental rights, and remanded the case for further
proceedings.
* * *
It is well established that an appellate court may not raise an issue
sua sponte, except when the issue addresses the subject-matter
jurisdiction of the court.
There are, however, a few discrete, limited non-jurisdictional
issues that the Supreme Court has authorized the lower courts to
raise sua sponte, such as waiver as a result of various briefing
defects.
* * *
Similarly, when the orphans’ court fails to appoint any counsel for
a child in an involuntary termination hearing, Superior Court may
raise this issue sua sponte.
* * *
The Supreme Court disfavors the intermediate appellate court’s
consideration of issues sua sponte because it is more important to
respect orderly judicial decision-making, afford counsel the
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opportunity to brief and argue issues, permit the court to benefit
from counsel’s advocacy, and uphold issue preservation rules.
Although our Supreme Court has authorized the appellate courts
to raise sua sponte the issues above, it has not authorized the
Superior Court to raise sua sponte the issue of whether a GAL
representing a child in an involuntary termination hearing has a
conflict in such representation. In fact, the most recent
Pennsylvania Supreme Court cases addressing the child’s
statutory right to legal counsel, as opposed to a GAL, in an
involuntary termination hearing pursuant to 23 Pa.C.S. § 2313(a)
do not involve situations in which the Superior Court raised the
issue sua sponte.
In L.B.M., the parents raised the issue of a conflict with the
orphans' court and appealed the issue to Superior Court.
Similarly, in T.S., the parents raised the issue of a conflict in
Superior Court. In both cases, because the parents raised the
conflict issue before either the orphans’ court or Superior Court,
there was no reason for the Supreme Court to address whether
Superior Court can raise the conflict issue sua sponte. Thus, at
this point, the Supreme Court has not authorized Superior Court
to raise the conflict issue sua sponte.
* * *
Applying the current precedent to these facts, Superior Court has
no authority to raise sua sponte the issue of whether a GAL has a
conflict. Rather, as stated previously, this Court only has the
authority to raise sua sponte the trial court’s failure to appoint any
counsel for the Child. In this case, the orphans’ court did appoint
counsel, the GAL, and we have no authority to delve into the
quality of the GAL’s representation. The Supreme Court has not
authorized us to do so.
K.M.G., 219 A.3d at 668-69 (citations omitted).
In light of the foregoing, we are constrained to conclude that in the
present case, this Court cannot consider whether there was a conflict of
interest in the GAL’s representation of K.A. There is no indication that Father
objected to the trial court’s decision not to appoint separate legal counsel for
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K.A. See N.T. at 59. Furthermore, similar to K.M.G., Father has not
developed any argument that the GAL had a conflict when representing K.A.
See Father’s Brief at 15-16. Therefore, K.M.G. precludes this Court from
addressing the GAL’s representation of K.A. on our own accord where Father
has not done so himself.13 See K.M.G., 219 A.3d at 668-69.
With respect to Father’s remaining claims as to legal counsel’s
representation of K.K.A. and K.D.A., Father has argued in his brief that legal
counsel’s representation violated Section 2313(a) in light of L.B.M. Therefore,
we will address Father’s arguments that legal counsel’s representation was
inadequate, even though Father did not preserve this issue in the trial court.
See T.S., 192 A.3d at 1092; D.N.G., 2020 WL 1226501 at *4.
In D.N.G., the trial court appointed legal counsel for a child in a
contested involuntary termination of parental rights proceeding, while the GAL
continued to represent the child’s best interests. D.N.G., 2020 WL 1226501
at *2. At the termination hearing, legal counsel in that case informed the trial
court that the child opposed adoption and wanted to return to his mother. Id.
____________________________________________
13 We note that our Supreme Court granted allowance of appeal, in part, in
K.M.G. to consider whether this Court erred in concluding it had no authority
to review whether a child’s legal interest was represented as required by
Section 2313 and L.B.M. See K.M.G., 221 A.3d at 649. However, this Court’s
en banc decision in K.M.G. remains binding until it is overruled. See Marks
v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have
long held that as long as the decision has not been overturned by our Supreme
Court, a decision by our Court remains binding precedent”).
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However, legal counsel did not present any evidence or examine witnesses to
support the child’s stated preferences.14 Id. On appeal from the order
terminating her parental rights to the child, the mother, for the first time on
appeal, asserted that legal counsel “neglected to represent” the child’s stated
preferences against adoption and for a return to his mother. Id.
The D.N.G. Court agreed with the mother, noting:
[B]ased upon our review of the record, we conclude that [legal
counsel’s] representation did not satisfy the mandate of §
2313(a), because he neglected to advocate for his client’s legal
interest. Under the circumstances of this case, where the [GAL]
argued against termination and recommended a thorough bond
analysis, and where an eleven-year-old stated unequivocally that
he desired to return to his mother, it is not possible for legal
counsel to zealously represent his client’s legal interest merely by
engaging in one discussion with the child on the eve of trial and
then summarizing that conversation for the family court. Rather
than simply reporting a preference to the family court, it was
[legal counsel’s] obligation to engage in client-directed advocacy
on behalf of [the child] with regard to the child’s preferred
outcome. Therefore, we hold that [the child] was deprived of his
statutory right to counsel to advance his legal interest, a
deprivation that continues in this appeal.
Id. at *5.
Instantly, legal counsel for K.D.A. and K.K.A. took steps to ascertain and
present evidence regarding K.D.A. and K.K.A.’s legal interests in adoption by
retaining an expert. See N.T. at 4. Although legal counsel did not expressly
____________________________________________
14 Additionally, in D.N.G., Mother requested that the child be placed in
permanent legal custody instead of adoption, and the GAL advocated against
termination and requested a comprehensive bonding assessment. D.N.G.,
2020 WL 1226501 at *2.
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state that she personally met with K.D.A. and K.K.A., legal counsel explained
she retained an expert to confirm K.D.A. and K.K.A.’s preferences for adoption
and against reunification and to present evidence of K.D.A. and K.K.A.’s
preferences without requiring legal counsel to testify.15 See id. Because
K.D.A. and K.K.A. expressed their desires to be adopted and not to reunify
with their parent, any failure to advocate in favor of reunification was not the
kind of structural error described in L.B.M. and T.S. See T.S., 192 A.3d at
1092. Similarly, because legal counsel advocated in favor of K.D.A. and
K.K.A’s stated interests in adoption at the termination hearing, Father’s
reliance on D.N.G. to argue that legal counsel’s representation was deficient
merits no relief. See D.N.G., 2020 WL 1226501 at *5.
Order affirmed.
____________________________________________
15 We note that this Court has held that the rules against hearsay did not
preclude legal counsel from informing the court of a child’s position regarding
the termination of parental rights. In re B.J.Z., 207 A.3d 914, 920 (Pa.
Super. 2019). We add, however, that at least one Pennsylvania Supreme
Court Justice, in a different case, has expressed a willingness to review a
similar question in a dissent to an order denying allowance of appeal. See
Interest of J.C.F., 199 A.3d 859 (Pa. 2018) (per curiam order) (Wecht, J.
dissenting).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2020
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