In the Interest of: J.W., a minor, Appeal of: J.W.

J-S43045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.W. :
:
: No. 389 WDA 2017
Appeal from the Order February 9, 2017
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-0000203-2016
BEFORE: STABILE, SOLANO, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 30, 2017
Appellant, Ja.W. (“Father”), appeals from the February 9, 2017 order
entered in the Allegheny County Court of Common Pleas involuntarily
terminating his parental rights to his son, J.W. (“Child”), born in June of
2016, pursuant to 23 Pa.C.S. § 2511(a)(2) and (b). For the reasons that
follow, we affirm.1
In its Pa.R.A.P. 1925(a), the trial court set forth the following facts and
procedural history relevant to Father’s appeal:
[Child] entered the care of the Allegheny County Office of
Children, Youth and Families (hereinafter “CYF”) in June
2016, when the agency obtained an Emergency Custody
Authorization (“ECA”) one week after [Child’s] birth.
[Child] was hospitalized for 15 days after his birth because
he experienced severe withdrawal symptoms due to
*
Former Justice specially assigned to the Superior Court.
1
On the same date, the trial court also terminated the parental rights of
B.A. (“Mother”). She has not appealed that decision.
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[Mother’s] methadone abuse during the pregnancy.
Meanwhile, supervised visits were set up at the hospital for
the parents to visit the newborn, but neither attended.
There is some disagreement as to whether Father tried to
visit [Child]. [The trial court] found him to be credible
when he testified that he thought he was not allowed to
visit [Child] once the ECA was issued. Still, [the trial
court] also heard testimony that the parents apparently
provided the hospital with incorrect contact information.
[Child] was adjudicated dependent on June 28, 2016 and
placed in the home of his pre-adoptive foster parents.
[Child] has never spent a day in either parents[’] care.
CYF created for the family a Family Service Plan
(“FSP”). The FSP functions as a roadmap, complete with
“goals” to aid the parents in their efforts to reunify with
their child. The parents did not participate in the planning
of the FSP. The goals included were the same for both
parents: to continue with drug and alcohol counseling and
participate in drug screenings; to visit [Child]; to attend
domestic violence counseling; to contact a specified
service provider to pursue stable housing; [to] sign
medical releases and maintain contact with CYF; [and to]
participate in a mental health evaluation. Father’s
compliance in this case was nonexistent for the first
several months of [Child’s] life. Noncompliance led the
[trial court] to make an “aggravated circumstances”
finding on August 22, 2016, thereby alleviating CYF from
making reasonable efforts toward reunification.
Trial Ct. Op., 4/6/17, at 2-3 (record citations omitted). On September 30,
2016, the trial court held a permanency review hearing. The trial court
again found that Father was noncompliant with regard to the permanency
plan and determined that “no progress” had been made by Father in
alleviating the circumstances that brought Child into CYF care. CYF Exhibit
1.
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On November 9, 2016, CYF filed a petition to involuntarily terminate
Father’s parental rights to Child. On February 8, 2017, the trial court held a
hearing and took testimony on the petition. At the time of the termination
hearing, Father remained noncompliant with his FSP goals. Regarding his
drug and alcohol use, Father admitted on multiple occasions to his CYF
caseworker that he had used marijuana. Father also informed the
caseworker that he would test positive for marijuana at a random drug
screen requested on August 22, 2016. N.T., 2/8/17, at 115-16. Father
failed to appear for six out of the ten drug screenings and did not appear for
a drug screening until December of 2016. The only information CYF had
regarding Father’s compliance with this goal was Father’s self-report that he
was participating in methadone maintenance treatment. Id. at 64-65, 114,
117.
Father also demonstrated noncompliance with his FSP goals relating to
domestic violence and mental health. Father’s CYF caseworker testified that
the agency had no information that Father had attended domestic violence
counseling and was noncompliant in attending meetings with CYF to address
those concerns. Id. at 55, 59. Father testified that he attended a once-
weekly, two-hour domestic violence program, however Father was unable to
verify his attendance at this program.
Regarding his mental health, Terry O’Hara, Ph.D., a licensed
psychologist, testified that Father reported that he had been diagnosed with
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“major mental illness, including schizophrenia and major depressive
disorder.” Id. at 145. Dr. O’Hara testified that he was limited in making an
accurate diagnosis and treatment recommendation due to Father’s initial
failure to sign medical releases, but noted that Father did follow up with
Western Psychiatric Institute and Clinic after his evaluation to address his
mental health. Finally, in terms of housing, Father resides with his mother,
Child’s paternal grandmother. Father continues to lack independent housing
and acknowledged that he cannot afford housing because he has not worked
since 2010. Id. at 151.
On appeal, Father raises the following issues for our review and
determination:
I. Whether the trial court erred as a matter of law and/or
abused its discretion in finding CYF proved by clear and
convincing evidence that [F]ather, J.W.[,] has a continued
incapacity that cannot be remedied?
II. Whether the trial court erred in finding that terminating
the parental rights of [F]ather, J.W.[,] best meets the
needs and welfare of [Child]?
Father’s Brief at 1.
We review an order terminating a parent’s rights for an abuse of
discretion or error of law. In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). We must accept the credibility determinations and factual findings of
the trial court that are supported by the record. Id. This Court may not
reverse a termination order simply because we would have reached a
different result based on the same facts. Id.-4-
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Under section 2511 of the Adoption Act, the trial court must engage in
a bifurcated process. First, the trial court must examine the parent’s
conduct under section 2511(a). In re Adoption of R.J.S., 901 A.2d 502,
508 (Pa. Super. 2006). The burden of proof is on the petitioner to establish
by clear and convincing evidence the existence of grounds for termination
under section 2511(a). In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super.
2003). If the trial court finds termination is warranted under section
2511(a), it must then turn to section 2511(b), and determine if termination
of the parent’s rights serves the children’s needs and welfare. In re I.E.P.,
87 A.3d 340, 344 (Pa. Super. 2014).
First, Father challenges the termination of his rights under section
2511(a)(2). Section 2511(a)(2) provides:
(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). This Court has previously addressed termination
under this provision, stating,
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Parental rights may be terminated under Section
2511(a)(2) if three conditions are met: (1) repeated and
continued incapacity, abuse, neglect or refusal must be
shown; (2) such incapacity, abuse, neglect or refusal must
be shown to have caused the child to be without essential
parental care, control or subsistence; and (3) it must be
shown that the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. In re Geiger, 459
Pa. 636, 331 A.2d 172, 174 (1975).
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008).
Father contends that he “did not have a deliberate intent or refusal to
remedy the conditions which caused his son to come into care.” Father’s
Brief at 4. He asserts that he has been attending therapy at Three Rivers
Adoption Council (“TRAC”), where he is learning effective ways to
communicate and how to improve his timeliness and relationships with
others. Id. at 5. Further, Father argues that the testimony presented
suggests that he is able to address Child’s physical and emotional needs.
Notably, Father urges that he is “able to appropriately feed his son, change
him and cuddle appropriately with him. No safety issues were identified
when Father visited his son.” Id. No relief is due.
“‘The 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) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)).
Furthermore,
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the language in subsection (a)(2) should not be read to compel
courts to ignore a child’s need for a stable home and strong,
continuous parental ties, which the policy of restraint in state
intervention is intended to protect. This is particularly so “where
disruption of the family has already occurred and there is no
reasonable prospect for reuniting it . . .”
In re E.A.P., 944 A.2d at 82 (citing In re William L., 383 A.2d 1228, 1240
(Pa. 1978)). As we have stated many times, “‘[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 I.J., 972 A.2d 5, 9 (Pa. Super.
2009) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super.
2003)).
Parental rights are not preserved by waiting for a more
suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs. . . .
This 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. . . . [A] parent desiring to retain parental
rights must exert himself to take and maintain a
place of importance in his child’s life.
In re E.A.P., 944 A.2d at 83 (citations and quotation marks omitted).
The certified record reveals that Father has caused Child to be without
essential parental care and Father will not remedy the conditions that caused
the incapacity within a reasonable time. Child was placed into care by CYF
because Child was born addicted to methadone. N.T. at 37. CYF
immediately noted its concern regarding Father’s drug and alcohol use,
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stability, housing and criminal activity. Id. at 38-40. These problems
rendered Father incapable of parenting Child at the time of his removal.
Father continued in his drug use throughout the life of this case, only making
efforts to achieve sobriety a few weeks before the scheduled termination
hearing. Id. at 127. Father has made no efforts to secure stable and
independent housing, leaving him in no better position to parent Child than
at the time of Child’s removal. Id. at 152.
Moreover, Dr. O’Hara stated,
[Father] has been diagnosed with major mental illness and
I have no way to verify how he’s participating with
treatment, his level of stability with treatment and his
history as well which influences these diagnoses. He also
presents with a history of opioid addiction as well. I don’t
have evidence that he has sufficiently addressed this.
Id. at 166. Of great concern, Dr. O’Hara testified that Father was unable to
articulate or identify the circumstances that led to Child’s removal, he
externalized responsibility for all issues relating to Child, and he lacked an
independent understanding of what was necessary for him to remedy the
conditions that led to Child’s removal. Id. at 151-54. Finally, although
Father would like this Court to believe that he has made substantial progress
towards his goals, the trial court noted that Father arrived late to the
termination hearing, and that this is further evidence that Father continues
to be noncompliant with his FSP goals. Trial Ct. Op. at 7.
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Therefore, we discern no abuse of discretion or error of law in the trial
court’s determination that termination was warranted under section
2511(a)(2).
We now turn to subsection (b), which 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). Under section 2511(b), we inquire whether
termination of parental rights would best serve the developmental, physical
and emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284,
1286-87 (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 mere finding of a parent-child
bond does not preclude termination of parental rights. Rather, the trial
court must examine the status of the bond to determine whether its
termination “would destroy an existing, necessary and beneficial
relationship.” In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa. Super.
2003). “[A] court may properly terminate parental bonds which exist in
form but not in substance when preservation of the parental bond would
consign a child to an indefinite, unhappy, and unstable future devoid of the
irreducible minimum parental care to which that child is entitled.” In re
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J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (emphasis in original). Expert
testimony is not required for the trial court to determine if there is a positive
bond between a parent and his child. In re K.K.R.-S., 958 A.2d 529, 533
(Pa. Super. 2008).
Father asserts that because he has consistently visited and engaged in
age appropriate behavior and interactions with Child, there is necessarily a
bond between them. Father’s Brief at 6-7. Father contends that the trial
court failed to consider the attachment between Father and Child when
determining if terminating the parental rights of Father to Child served the
needs and welfare of Child. Id. at 7. We disagree.
In assessing the bond between Father and Child, the trial court found
that although Father has had positive interactions with the child, “ultimately
Father does not possess the ability to be responsible for the child’s needs
and welfare. The child[’s] greatest need is security and stability. Father
cannot provide those things.” Trial Ct. Op. at 8. The trial court thus
concluded that because Father has not provided Child with a home, met his
needs, provided him with much needed stability, or “address[ed] the
pertinent issues that influenced the removal,” Child’s needs and welfare
were best met by terminating Father’s parental rights to Child. Id.
The record supports the trial court’s decision in this regard. Dr.
O’Hara testified that he was limited in his evaluation due to the lack of
collateral information he received and Father’s defensiveness. Specifically,
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Dr. O’Hara noted his concern relating to Father’s tendency to externalize
responsibility and his unwillingness to remedy the conditions that led to
Child’s removal. N.T. at 155-56. Dr. O’Hara testified that he has “found this
historically to be very problematic” and a significant factor when evaluating
a person’s ability to parent a child. Id. at 154-55.
Moreover, from Dr. O’Hara’s observations, “the child exhibited ‘several
elements of security for the foster parents.’” Trial Ct. Op. at 7. According to
Dr. O’Hara, Child’s foster parents
presented with stability. They did not have mental health
issues, substance abuse, criminal activity and domestic
violence history. [Dr. O’Hara] also observed them to show
very positive parenting skills. They were affectionate and
attentive. They praised [Child], they were verbally
engaging, they encouraged language, they were calm and
relaxed. [Foster mother] showed good eye contact while
feeding [Child].
N.T. at 143. Dr. O’Hara opined that Child “responded very positively to his
foster parents.” Id.
Accordingly, we find no error or abuse of discretion in the trial court’s
determination that Child’s developmental, emotional and physical needs and
welfare are best met by terminating Father’s parental rights. We therefore
affirm the trial court’s conclusion that the requirements of section 2511(b)
were met.
Lastly, in its Rule 1925(a) opinion, the trial court sua sponte brought
this Court’s attention to our Supreme Court’s recent decision in In re
Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), in which the Court held that
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trial courts must appoint counsel to represent the legal interests of any child
involved in a contested termination proceeding pursuant to 23 Pa.C.S. §
2313(a).2
The Court explained that a child’s legal interests are distinct from his
or her best interests, in that a child’s legal interests are synonymous with
the child’s preferred outcome, while a child’s best interests must be
determined by the court. Importantly, the Justices disagreed on whether
the role of counsel may be filled by a child’s dependency guardian ad litem
(“GAL”). In the Court’s lead opinion, Justice Wecht, joined by Justices
Donohue and Dougherty, opined that a child’s legal interests cannot be
represented by his or her dependency GAL. However, the Court’s remaining
four Justices disagreed with that portion of the lead opinion, and opined in a
2
Section 2313(a) provides as follows.
(a) Child.―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).
Here, this Court granted CYF’s and the guardian ad litem’s applications to file
supplemental briefs addressing L.B.M. We have received the supplemental
briefs as well as Father’s responsive brief.
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series of concurring and dissenting opinions that a child’s dependency GAL
may serve as his or her counsel, so long as the GAL’s dual role does not
create a conflict of interest. See id. at 183-93.
Shortly following our Supreme Court’s decision in L.B.M., this Court
decided In re D.L.B., __ A.3d __, 2017 WL 2590893 (Pa. Super. June 15,
2017). Similar to the case sub judice, the appellant in D.L.B. argued that
section 2313(a) required the appointment of separate counsel for a child in a
contested termination proceeding. Id. at *5. The appellant argued that the
trial court’s failure to appoint separate counsel was structural error, which
required this Court to remand the matter for the appointment of separate
counsel pursuant to L.B.M.. Id.
In rejecting the appellant’s claim, this Court stated:
As a point of information, Justice Wecht’s opinion in
L.B.M[.] states that the trial court is required to
appoint a separate, independent attorney to
represent a child’s legal interests even when the
child’s GAL, who is appointed to represent the child’s
best interests, is an attorney. Justice Wecht would
hold that the interests are distinct and require
separate representation. While Justice Wecht, joined
by Justices Donohue and Dougherty, sought to so
hold, four members of the court, Chief Justice Saylor
and Justices Baer, Todd, and Mundy disagreed in
different concurring and dissenting opinions with that
part of the lead opinion’s holding. Specifically, while
the other justices agreed that the appointment of
counsel for the child is required in all [termination of
parental rights] cases and that the failure to do so by
the trial court is a structural error, they did not join
that part of Justice Wecht’s opinion which sought to
hold that the GAL may never serve as counsel for the
child. Rather, such separate representation
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would be required only if the child’s best
interests and legal interests were somehow in
conflict.
Id. (emphasis added).
The trial court here expressed concern that because it did not appoint
Child counsel, a reversal and remand may be appropriate. The trial court
notes that a non-attorney GAL was appointed for the purposes of
dependency.3 However, Child’s GAL at the termination hearing was an
attorney, Jennifer McGarrity, Esq. Moreover, Child was placed in CYF’s care
shortly after birth and was approximately eight months old at the
termination hearing. Our further review of the record does not reveal any
conflict between Child’s legal interests and best interests as would require a
remand. In short, Child is the type of child the dissenting and concurring
justices in L.B.M. envisioned as too young or too cognitively incapacitated to
express his wishes. See In re D.L.B., 2017 WL 2590893, at *5.
Order affirmed.
3
Father did not address L.B.M. in his brief. This Court granted the GAL’s
application to file a supplemental brief addressing L.B.M., and provided
Father with fourteen days from the service of the GAL’s supplemental brief
to file a responsive brief. Father has not filed a responsive brief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2017
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