In the Interest of: L.A. Appeal of: P.A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: L.D.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.A., FATHER :
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: No. 778 WDA 2023
Appeal from the Order Entered June 8, 2023
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000147-2022
IN THE INTEREST OF: D.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.A., FATHER :
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: No. 779 WDA 2023
Appeal from the Order Entered June 8, 2023
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000146-2022
BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: December 29, 2023
P.A. (“Father”) appeals from the orders entered on June 8, 2023, which
terminated involuntarily his parental rights to his twin children L.D.A. and
D.A., born in March 2013.1 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The children’s mother, L.A. (“Mother”), passed away in 2022.
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The orphans’ court provided a succinct history of these matters:
The Allegheny County Office of Children, Youth and Families
(“CYF”) became involved with Father, Mother, and the children in
April of 2020 due to ongoing substance abuse concerns affecting
both parents’ ability to appropriately care for their special needs
children. [The] children are both on the autism spectrum and
require various specialized services as well as constant
supervision. In July 2020, parents were both charged with
endangering the welfare of children (“EWOC”) following an
incident where [then-seven-year-old] L.D.A. pushed out a window
in the home and was later found wandering alone in the street
[wearing only a diaper]. By August of 2020, CYF’s concerns
regarding parents’ sobriety had increased[ a]fter a drug screen on
August 12, 2020, Father tested positive for cocaine and opiates,
as well as his prescribed methadone. At that time, Father was
participating in methadone treatment at Tadiso. Following the
positive test, Father participated in a drug and alcohol evaluation
and entered intensive outpatient treatment through Pyramid
[Healthcare].
On September 17, 2020, CYF received a report from police
that parents and [the] children were found sleeping in their car
and Father appeared to be intoxicated. At the time of the incident,
both parents had active warrants for failing to appear for their
hearings regarding the EWOC charges. The police accordingly
took them into custody. CYF obtained an emergency custody
authorization (“ECA”) and placed [the] children with Maternal
Grandmother. Following a shelter hearing, the court permitted
Mother to remain in Maternal Grandmother’s home to facilitate the
routine and stability needed by the children.
Orphans’ Court Opinion, 8/2/23, at 2-4 (cleaned up).
The twins were adjudicated dependent on October 7, 2020. Father and
Mother were ordered to continue with drug and alcohol treatment, comply with
drug screens, attend supervised visits, and obtain stable housing. Meanwhile,
in September 2020, the children were relocated to the pre-adoptive home of
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T.S. and P.S. (“Foster Parents”), where they remained at the time of the
termination hearings.
On October 18, 2022, CYF filed petitions to terminate Father’s parental
rights as to both children pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and
(b). The court held a hearing on the petitions on March 10, 2023, and June
2, 2023.2 CYF presented testimony from two of the agency’s caseworkers, as
well as Terry O’Hara, Ph.D., who testified as an expert in child psychology and
the individual who conducted evaluations of the children both with Father and
Foster Parents.
Father called Nacia Gibbs, who began supervising his visits with the
children in January 2023. Additionally, he presented three witnesses from
Jade Wellness. Collectively, their testimony revealed that while Father initially
began substance abuse treatment in May 2022, it was interrupted by periods
of incarceration, and began anew in November 2022. Since that time, he has
been consistent and compliant with his treatment, despite still using alcohol,
and has been seeking housing with their assistance. Father’s mother, K.A.
(“Paternal Grandmother”), has participated in most of Father’s visits with the
children since January 2023, and she testified regarding her observations
during those visits. Finally, Father testified on his own behalf regarding his
progress and desire to reunify with L.D.A. and D.A.
____________________________________________
2 KidsVoice served as both legal counsel and guardian ad litem (“GAL”) for
L.D.A. and D.A. Due in part to their autism diagnoses, it was determined that
no conflict existed between their legal and best interests.
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As summarized by the orphans’ court, the cumulative evidence
presented at the hearings demonstrated that Father had “failed to address the
needs identified in the court’s orders and continued to struggle with sobriety,
housing instability, and repeated incarceration.” Orphans’ Court Opinion,
8/2/23, at 6. During the period of the children’s dependency, Father “was
often homeless or residing with friends.” Id. at 7 (cleaned up). Father
received in-home services to assist with housing from May 2020 until March
2022, when the services closed for lack of progress. By January 2022, he had
ceased any contact with CYF. It was subsequently determined that he was
incarcerated from February 24 to March 11, 2022, and from June 25, 2022,
to November 18, 2022. He spent some of that time in the inpatient substance
abuse treatment program at the Renewal Center.
Regarding Father’s drug and alcohol concerns, at the time of the
adjudication he was engaged in methadone treatment at Tadiso, an opioid
treatment facility, and intensive outpatient treatment at Pyramid Healthcare.
However, he was discharged from Pyramid approximately one month later
because of inconsistent attendance and a relapse. On multiple occasions, CYF
referred Father for a drug and alcohol evaluation at yet another treatment
facility, POWER, which ultimately recommended additional outpatient
treatment. While he did not engage in treatment through CYF’s services,
Father averred that he enrolled in treatment at Jade Wellness in May 2022.
CYF was unable to confirm either his participation or completion of that
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program at that time. As for the random drug screens, his attendance was
inconsistent, and he continued to consume alcohol.
After the termination petitions were filed in October 2022 and Father
was released from incarceration in November 2022, he re-engaged in drug
and alcohol treatment at Jade Wellness and consistently attended his drug
screens. Father also moved into a homeless shelter, where he remained at
the time of the hearing. He maintained that he had actively been seeking
housing with the assistance of Jade Wellness since January 2023, but had not
yet secured an apartment.
During the same, roughly two-year period from dependency to the filing
of the termination petition, L.D.A. and D.A. flourished in their pre-adoptive
placement with Foster Parents. Dr. O’Hara observed that Foster Parents
displayed positive parenting skills commensurate with the special needs of the
children. The children, in turn, displayed indicators of a secure attachment to
Foster Parents. During this period, Foster Parents have provided for the safety
and stability of the children, have met their needs, and are to whom the
children look for reassurance and comfort. At the time of their placement at
seven years old, both children were non-verbal and not toilet-trained. Since
that time, they have attained sufficient speech to express themselves,
successfully learned to use the toilet, and have developed basic life skills, such
as eating with utensils and dressing themselves.
Contrarily, given Father’s struggles with substance abuse and unstable
housing, Dr. O’Hara determined that “it would be very difficult [for Father] to
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be able to prioritize the needs of a child.” Id. at 10 (quoting N.T. Hearing,
3/10/23, at 152). Furthermore, it was observed that at the time of Dr.
O’Hara’s evaluation in December 2022, Father had only attended one visit with
the children in the preceding year. Considering the dearth of contact during
that year, Father’s inability to provide the requisite care for the children, and
the countervailing stability provided by Foster Parents, Dr. O’Hara opined that
severing Father’s parental rights would have limited detrimental impact upon
the children. Nonetheless, the doctor believed that if Father addressed his
substance abuse, his presence in the children’s lives could be a positive
influence. See N.T., 3/10/13, at 162. Finally, the GAL argued to the court
that although the children were unable to formulate a preference due to their
limited speech and development, it was in their legal and best interest to
terminate Father’s parental rights so that they could be adopted into a safe,
permanent home. See N.T. 6/2/23, at 145.
Based on the foregoing, the orphans’ court found that CYF had met its
burden of establishing statutory grounds for termination under §§ 2511(a)(8)
and (b), as to both L.D.A. and D.A., and therefore granted CYF’s petitions to
terminate. Father timely appealed and this Court consolidated the matters
sua sponte. Father and the orphans’ court have complied with Pa.R.A.P. 1925.
Father presents the following issues for our consideration:
I. Whether the [orphans’] court abused its discretion by erring
as a matter of law and/or making a decision that was
manifestly unreasonable in granting the petition to
involuntary[il]y terminate Father’s parental rights pursuant
to 23 Pa.C.S. § 2511(a)(8).
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II. Whether the [orphans’] court abused its discretion by erring
as a matter of law and/or making a decision that was
manifestly unreasonable in concluding that CYF met its
burden of proving by clear and convincing evidence that
termination of Father’s parental rights would best serve the
needs and welfare of the child pursuant to 23 Pa.C.S.
§ 2511(b).
III. Whether CYF’s failure to meet its burden under 23 Pa.C.S.
§ 2511(a)(8) rendered the trial court’s finding pursuant to
23 Pa.C.S. § 2511(b) an abuse of discretion and/or error as
a matter of law.
Father’s brief at 4 (cleaned up).
In sum, Father assails the conclusion of the orphans’ court that CYF
sustained its burden as to § 2511(a)(8) and (b). We consider such a claim
mindful of the following legal principles.
In cases concerning the involuntary termination of parental rights,
appellate review is limited to a determination of whether the
decree of the termination court is supported by competent
evidence. This standard of review corresponds to the standard
employed in dependency cases, and requires appellate courts to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record, but it does not
require the appellate court to accept the lower court’s inferences
or conclusions of law. That is, if the factual findings are supported,
we must determine whether the trial court made an error of law
or abused its discretion. An abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion; we reverse for an abuse of discretion only
upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill will. Thus, absent an abuse of discretion, an
error of law, or insufficient evidentiary support for the trial court’s
decision, the decree must stand. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings. However,
we must employ a broad, comprehensive review of the record in
order to determine whether the trial court’s decision is supported
by competent evidence.
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In re Adoption of C.M., 255 A.3d 343, 358–59 (Pa. 2021) (cleaned up). It
is the trial court’s role to assess credibility and resolve any conflicts in the
evidence, and in doing so it “is free to believe all, part, or none of the evidence
presented[.]” In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004)
(citation omitted). Thus, “if competent evidence supports the trial court’s
findings, we will affirm even if the record could also support the opposite
result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003)
(citation omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act and requires a bifurcated analysis of the grounds for termination followed
by the needs and welfare of the child.
Our case law has made clear that under [§] 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 party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds
for termination delineated in [§] 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 [§] 2511(b): determination of the needs
and welfare of the child under the standard of best interests of the
child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We have
defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
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conviction, without hesitance, of the truth of the precise facts in issue.” In re
C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (cleaned up).
As noted, Father asserts that CYF failed to establish by clear and
convincing evidence the statutory grounds for termination pursuant to 23
Pa.C.S. § 2511(a)(8) and (b). These subsections provide as follows:
(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:
....
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
....
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511.
To prove § 2511(a)(8), the moving party must establish three elements:
“(1) that the child has been removed from the care of the parent for at least
twelve months; (2) that the conditions which led to the removal or placement
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of the child still exist; and (3) that termination of parental rights would best
serve the needs and welfare of the child.” Int. of M.E., 283 A.3d 820, 832
(Pa.Super. 2022) (citation omitted). This subsection is unique in that it “does
not require the court to evaluate a parent’s willingness or ability to remedy
the conditions that led to the placement of the children.” Id. (citation
omitted). Instead, “the relevant inquiry regarding the second prong of
§ 2511(a)(8) is whether the conditions that led to removal have been
remedied and thus whether reunification of parent and child is imminent at
the time of the hearing.” Id. (cleaned up).
Critically, § 2511(b) prohibits the orphans’ court from considering, as
part of its § 2511(a)(8) analysis, those efforts first initiated by a parent after
being notified of the filing of a termination petition. Id.; 23 Pa.C.S. § 2511(b).
While this Court has recognized that rule may appear harsh because it does
not permit the court to consider a parent’s recent progress,
by allowing for termination when the conditions that led to
removal of a child continue to exist after a year, the statute
implicitly recognizes that a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court cannot and will not
subordinate indefinitely a child’s need for permanence and
stability to a parent's claims of progress and hope for the future.
Indeed, we work under statutory and case law that contemplates
only a short period of time, to wit eighteen months, in which to
complete the process of either reunification or adoption for a child
who has been placed in foster care.
Int. of M.E., supra at 832 (cleaned up). Finally, although § 2511(a) focuses
generally on the parent’s behavior, the third element of § 2511(a)(8) centers
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on the child’s needs, thereby encompassing the needs and welfare analysis
typically reserved until the court’s analysis of § 2511(b).
Father concedes that sufficient time elapsed pursuant to § 2511(a)(8),
but nonetheless contests that the conditions leading to removal continued to
exist. See Father’s brief at 11. He points to his evidence that he had begun
treatment at Jade Wellness in mid-2022, and that he had made significant
progress on his treatment goals. Id. at 12-13. Father highlights his testimony
that he was gainfully employed and actively seeking housing. Id. at 16.
Finally, he maintains that his efforts at compliance were not first initiated after
the filing of the termination petitions. Id. at 17.
Upon review, we agree with the orphans’ court’s assessment that CYF
had satisfied its burden of establishing statutory support for termination under
§ 2511(a)(8). Specifically, the court found that the first element was satisfied
because twenty-five months had elapsed from the time of removal to the filing
of the termination petitions. See Orphans’ Court Opinion, 8/2/23, at 13-14.
The court observed that throughout the children’s dependency, Father’s
compliance and progress at permanency review hearings had, at best, been
minimal. Id. at 14. Regarding Father’s recent, more significant progress, the
court determined that it began after the filing of the termination petitions:
Though Father participated sporadically in various drug and
alcohol treatment programs over the life of the case, he did not
successfully comply with a program until after his release from
incarceration and his reengagement with Jade Wellness in
November 2022. While Father recently has attended treatment,
has a good prognosis, and has had clean drug screens, none of
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this progress occurred until after CYF filed the termination
petition[s]. At no time prior to the filing of the petition[s] was
Father able to demonstrate a significant period of sobriety or that
he had located stable housing. Indeed, even at the time of the
termination hearing Father resided in a homeless shelter with no
ability to accommodate [the] children.
Id. at 15 (cleaned up). Therefore, we discern no abuse of discretion on the
part of the orphans’ court in finding that the conditions leading to placement
continued to exist.
Similarly, we conclude that the orphans’ court did not abuse its
discretion in determining that termination best served the needs and welfare
of L.D.A. and D.A. pursuant to § 2511(a)(8). The children have been in foster
care for approximately three years. At the time of the hearing, Father was
unable to care for the children, such that reunification was not imminently
feasible. As we will explain in more detail in our analysis of § 2511(b), the
orphans’ court was within its discretion to prioritize the needs of L.D.A. and
D.A. for stability, structure, and permanence over continuing their relationship
with Father. Therefore, we hold that the orphan’s court did not abuse its
discretion in finding statutory support for termination of Father’s parental
rights as to L.D.A. and D.A. pursuant to § 2511(a)(8).
Turning to § 2511(b), we again set forth the guiding principles.
[C]ourts should consider the matter from the child’s perspective,
placing her developmental, physical, and emotional needs and
welfare above concerns for the parent.
Accordingly, the determination of the child’s particular
developmental, physical, and emotional needs and welfare must
be made on a case-by-case basis. We have observed the law
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regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests
and the needs and welfare of the particular children involved.
Thus, the court must determine each child’s specific needs.
Moreover, the child’s emotional needs and welfare include
intangibles such as love, comfort, security, and stability. As
further guidance, we have identified factors, i.e., specific needs
and aspects of the child’s welfare, that trial courts must always
consider. The court must consider whether the children are in a
pre-adoptive home and whether they have a bond with their foster
parents. And, if the child has any bond with the biological parent,
the court must conduct an analysis of that bond, which is not
always an easy task.
Int. of K.T., 296 A.3d 1085, 1105–06 (Pa. 2023) (cleaned up).
This Court has emphasized that “the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.” In re
Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010) (cleaned up). In
weighing the bond considerations pursuant to § 2511(b), “courts must keep
the ticking clock of childhood ever in mind.” In re T.S.M., 71 A.3d 251, 269
(Pa. 2013). “Children are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When courts
fail . . . the result, all too often, is catastrophically maladjusted children.” Id.A court cannot “toll the well-being and permanency” of a child indefinitely in
the hope that a parent “will summon the ability to handle the responsibilities
of parenting.” In re C.L.G., 956 A.2d 999, 1007 (Pa.Super. 2008) (en banc)
(citation omitted).
Father argues that the evidence established he had a bond with the
children that the court deemed beneficial, and there was insufficient evidence
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of the effect that termination would have on the children. See Father’s brief
at 18-19, 28. We agree with Father that the court determined there to be a
bond between the children and Father. However, the evidence also clearly
established that Father was not, and would not soon be, in a position to care
for the children at the time of the termination hearings. Despite the bond
Father established since re-engaging in visits in December 2022, the court
determined that it was in the best interests of L.D.A. and D.A. to terminate
Father’s parental rights. In essence, Father is asking us to reweigh the factors
in such a way as to prioritize his bond with the children over the other factors
that the orphans’ court deemed more important. This we cannot do.
It is up to the orphans’ court to consider the totality of the
circumstances when performing a needs and welfare analysis.
Nothing in our case law dictates that the bond between a child and
parent must predominate over all other needs and welfare
considerations. Instead, after ascertaining the nature and status
of the bond and effect on the child of severing it, the orphans’
court must weigh any pain from breaking the bond against other
considerations as to what result serves the child’s needs and
welfare.
Int. of M.E., supra at 839 (cleaned up). We have held that it is “within the
discretion of the orphans’ court to prioritize the safety and security” of children
“over their bonds with their parents,” and that this Court will not disturb such
an assessment when the court’s “factual findings are supported by the record.”
Id. (cleaned up).
Here, the orphans’ court determined that termination best served the
needs and welfare of L.D.A. and D.A. because the bonds between the children
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and Father were not necessary, they would “not suffer extreme emotional
consequences from termination of Father’s parental rights[,]” and termination
would instead provide them with much needed stability and permanency.
Orphans’ Court Opinion, 8/2/23, at 17-18. The court summarized its findings
as follows:
[The] children have been in Foster Parents’ care for almost
three years. During that time, Father’s presence in [the]
children’s lives has been inconsistent. The evidence presented at
the hearing persuaded the court that, despite his absence, Father
and children do share a bond. However, [the] children’s ability to
thrive and progress in Foster Parents’ care without Father’s
consistent presence demonstrates that this bond, though
potentially beneficial, is not necessary.
Given the length of time [the] children have been in care,
their extensive needs, Father’s lack of progress toward his goals,
and failure to remain a consistent presence in [the] children’s
lives, the court justifiably concluded that the children’s need for
safety, permanency, and stability outweighs the possible benefit
to them of maintaining their relationship with Father and, further,
that termination of his parental rights served the children’s needs
and welfare.
Id. at 20 (cleaned up).
Since the court determined that termination was proper because Father
would not imminently be able to resume parental duties of the children, it
changed the children’s goal from reunification to adoption. In doing so, the
court nonetheless recognized that Father’s visits were beneficial to the
children and urged the parties to engage in mediation so that Father could
continue the visits following adoption by Foster Parents. See N.T., 6/2/23, at
153-55. In other words, the court determined that although the visits were
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beneficial to children and should continue, if possible, termination was
nonetheless in their best interests.
Upon review, the certified record supports the orphans’ court’s
conclusions. During the first year of placement, Father went through cycles
of complying with visitation but then losing contact with CYF for varying
periods of time before re-engaging again. During the second year of
placement, Father did not have any visits with the children, in part due to his
incarceration. It was not until after he was released, and after the termination
petitions were filed, that his attendance at visits became consistent. The court
acknowledged that some of Father’s inconsistent visitation history was outside
of his control, but nonetheless found that it “inevitably affected the quality of
the children’s relationship with him.” Orphans’ Court Opinion, 8/2/23, at 18
(cleaned up).
At the same time, the evidence bore out the court’s determination that
the children have bonded with Foster Parents, whom they refer to as mom
and dad, and that Foster Parents have demonstrated the ability to attend to
their considerable special needs. Dr. O’Hara testified that the children’s
behavior with Foster Parents indicated their feelings of security around them.
Additionally, the CYF caseworker observed that Foster Parents and the foster
siblings provide a positive family environment for L.D.A. and D.A., and that it
was apparent that the children felt safe and protected in their care. Contrarily,
Father neither demonstrated at the time of his evaluation with Dr. O’Hara nor
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at the termination hearings the ability to provide the stability and structure
necessary to address the children’s special needs and allow them to thrive.
In sum, the facts as found by the orphans’ court are supported by clear
and convincing evidence and its conclusions are free from legal error. See In
re Adoption of C.M., supra at 359. We find no abuse of discretion, and
affirm the orders terminating Father’s parental rights as to L.D.A. and D.A.
Orders affirmed.
12/29/2023
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