J-S59029-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN RE: ADOPTION OF: C.L., C.L., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
:
:
:
APPEAL OF: D.L., BIRTH FATHER : No. 727 WDA 2015
Appeal from the Judgment entered April 15, 2015,
Court of Common Pleas, Washington County,
Orphans’ Court at No(s): 63-OC-2013-1517
and 63-OC-2013-1516
IN RE: ADOPTION OF: C.L., C.L., : IN THE SUPERIOR COURT OF
MINOR CHILDREN : PENNSYLVANIA
:
:
:
APPEAL OF: D.L., BIRTH FATHER : No. 728 WDA 2015
Appeal from the Order April 15, 2015,
Court of Common Pleas, Washington County,
Orphans’ Court at No(s): 63-OC-2013-1516
and 63-OC-2013-1517
BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 24, 2015
Appellant, D.L. (“Father”), appeals from the order of the trial court
terminating his parental rights to his two children, C.L. (born June 12, 2010)
and Ch.L. (born September 14, 2011) (together, the “Children”). For the
reasons that follow, we affirm the trial court’s order granting the petition to
terminate parental rights filed by the Washington County Children and Youth
Services Agency (“CYS”).
*Former Justice specially assigned to the Superior Court.
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In its written opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, the trial court set forth the following facts
relevant to Father’s appeal:
The Father is [] from Lakeland, Florida. The Father
testified that he moved to Washington County in
2009. (T.T. 11/5/14, P. 63) However, Dr. Lee
reported in his evaluation of the Father that he
reviewed records from an inpatient hospitalization of
Father in Washington Hospital in 2003. (Exhibit 1, P.
3) The Mother and Father are not married. (T.T.
11/5/14, P. 27) The Father is married but separated
from wife Christina. Christina and Father have a
daughter Nina, born May 2012. Nina is in the
custody of mother Christina and the Father has
supervised visitation. The Father has a criminal
conviction from Florida in 2008; the Father pled
guilty to “Unlawful Sexual Activity with Certain
Minors”. Due to this conviction, Father is required to
report as a Megan’s Law offender under a Tier I
offense, the lowest category pursuant to Florida law.
(Exhibit 5) The Father receives social security
disability (SSI). (T.T. 8/6/14, P. 125; 11/5/14, P.
21)
CYS first became involved with the family on
September 14, 2011, at the birth of Ch.L. The
hospital staff reported concerns to CYS that Mother
lacked any identification and that Father was very
controlling of Mother, answering questions for her.
(T.T. 8/6/14, P. 95) At the time, the Mother, Father,
the two children and the Father’s wife were all living
together. (T.T. 11/5/14, P. 29) In early 2012, after
an argument between Mother and Father’s wife
Christina, the Mother and [Children] moved to a
women’s shelter in Allegheny County. (T.T.
11/13/14, P. 30-32) After a few months, they left
and returned to the home of the Father. In October
of 2012, CYS located the family and went to the
residence. CYS found that the home was in a
deplorable and filthy condition and was inadequate
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for the seven adults and two children living there.
(T.T. 8/6/14, P. 99) The Children were removed by
emergency shelter order and placed in foster care on
October 16, 2012, where they have remained. (T.T.
8/6/14, P. 100)
The Children were adjudicated dependent on
December 3, 2012. The allegations of dependency
were deplorable living conditions, the Father’s status
as a Megan’s Law offender and his serious mental
health issues and the lack of verifiable identity of
Mother. (Exhibit 6; Dep. Pet. P. 5 of 5) Over the
course of the dependency case, the parents have
been ordered to obtain and maintain appropriate
housing, to complete a parenting educational
training and to obtain a mental health evaluation and
follow through with any treatment. The Father was
also ordered to complete an anger management
course and obtain a sexual offender assessment and
follow through with any recommended treatment.
(Exhibit 6; T.T. 8/6/14, P. 101)
The parents have moved at least four times in the
last two years. They lived in a trailer in Canton
Township, then moved to Washington, then to West
Alexander and in January of 2014 to Eighty-Four,
Pennsylvania, where they have remained. (T.T.
8/6/14, P. 118) Their current housing was found
with the assistance of CYS and is appropriate,
although some issues of cleanliness have arisen.
(T.T. 8/6/14, P. 170) The parents completed the
parenting program through Justice Works. (T.T.
8/6/14, P. 105) …
The Father completed anger management in
February 2014. (T.T. 8/6/14, P. 175) During the
course of treatment for anger management, he
continued to have outbursts of anger; on November
25, 2013 he verbalized that he wanted to kill the
CYS caseworker. (Id.) The Father had a sexual
offender’s assessment in December 2012 and was
found to be at a moderate risk for recidivism.
(Exhibit 3) He did not begin treatment for sexual
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offenders until June 2014; the treatment consists of
weekly group counseling sessions and twice monthly
individual sessions. (T.T. 11/5/14, P. 83, 86)
Treatment is expected to take two years. (T.T.
11/5/14, P. 87)
The Father’s mental health issues date back to his
teenage years. He had a voluntary psychiatric
hospital admission in 2003. He was diagnosed as
bipolar and was prescribed Lithium, Clozaril,
Depakote and Zyprexa and recommended continued
treatment. The Father obtained a psychiatric
evaluation by Dr. Stephen Lee of Washington
Communities Human Services, Inc. Dr. Lee
diagnosed the Father with bipolar disorder (Axis I).
(Exhibit 1) He recommended (urgently) medication
management and individual therapy. He found that
Father did not present suicidality, but homicidality
was present. (Exhibit 1) In the psychological
evaluation by Dr. Rosenblum in 2014, the Father was
diagnosed with bipolar disorder with psychotic
features (Axis I), impulse control disorder NOS (Axis
I), and mixed personality disorder with narcissistic,
antisocial and borderline features (Axis II). (Exhibit
2) His IQ was found to be 99. The Father began
mental health counseling in May of 2014. (T.T.
8/6/14, P. 187)
Throughout the history of the case, the Father has
relayed grandiose and incredible statements to the
many social workers and other professionals involved
with this family and to this Court in juvenile
dependency proceedings. The Father has reported
having a genius IQ, having completed graduate
school at Brigham Young University, serving in the
military and being injured in Iraq, and building a
large home in Marianna, Pennsylvania, all of which
are not true.
The parents have weekly supervised visitation for
five hours. (T.T. 8/6/14, P. 123) Even though the
Children were not dirty, the Father insisted on
bathing them during each visit, stating the Children
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got dirty and that they enjoy bath time. (T.T.
11/13/14, P. 72; 11/5/14, P. 56) The Father
accused the case aide of inappropriate leering at his
daughter during the bath time. (T.T. 11/5/14, P. 57)
Dr. Rosenblum conducted an interactional evaluation
with the parents and the Children and the foster
parents and the Children. He supported the
termination of the parents’ rights. (T.T. 8/6/14, P.
44) The CYS caseworker testified that, in her
opinion, the Children would not suffer any
detrimental effects if the parents’ rights were
terminated. (T.T. 8/6/14, P. 129-30) The Guardian
Ad Litem also supported the termination of the
parents’ rights. (T.T. 11/13/14, P. 69)
Trial Court Opinion, 6/12/2015, at 2-5.
CYS filed a petition to terminate Father’s parental rights on December
24, 2013. The trial court conducted evidentiary hearings on August 6, 2014,
November 5, 2014, November 5, 2014, and November 13, 2014. On April
15, 2015, the trial court issued an order granting CYS’s petition and
terminating Father’s parental rights. On appeal, Father contends that the
trial court erred because the evidence presented by CYS was “insufficient to
sustain” the trial court’s decision to terminate his parental rights.
We review the appeal from the termination of parental rights in
accordance with the following standard.
[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
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by the record. If the factual findings are supported,
appellate courts review to determine if the trial court
made an error of law or abused its discretion. As
has been often 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 [the Pennsylvania Supreme Court] discussed in
[In re: R.J.T., 9 A.3d 1179 (Pa. 2010)], there are
clear reasons for applying an abuse of discretion
standard of review in these cases. [The Supreme
Court] 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 internal
citations omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
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[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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
When deciding a case falling under section 2511, the trial court must
engage in a bifurcated process. In re B.C., 36 A.3d 601, 606 (Pa. Super.
2012). In that analysis,
[t]he initial 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 at least one of the nine statutory grounds in
section 2511(a). If the trial court determines that
the parent’s conduct warrants termination under
section 2511(a), then it must engage in an analysis
of the best interests of the child under section
2511(b), taking into primary consideration the
developmental, physical, and emotional needs of the
child.
Id.
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, the trial court terminated Father’s parental rights under section
2511(a)(1), (2), (5), (8) and (b). We will analyze the trial court’s decision
to terminate Father’s parental rights under section 2511(a)(8) and (b).
These sections provide:
§ 2511. Grounds for involuntary termination
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(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.A. § 2511(a)-(b).
Termination of parental rights under Section 2511(a)(8) requires CYS
to demonstrate the following factors: (1) the child has been removed from
parental care, (2) 12 months or more have lapsed from the date of removal;
(3) the conditions which led to the removal or placement of the child
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continue to exist; and (4) termination of parental rights would best serve the
needs and welfare of the child. In re K.M., 2012 160, 53 A.3d 781, 789
(Pa. Super. 2012) (quoting In Re Adoption of M.E.P., 825 A.2d 1266,
1275–1276 (Pa. Super. 2003)).
The first two elements in this analysis are established, as CYS
removed the Children from Father’s care in October 2012, and they have
resided in foster care since that date. N.T., 8/6/2014, at 99. With respect
to the third element, the certified record on appeal supports the trial court’s
decision. The reasons for the removal of the Children from Father’s care
included, inter alia, Father’s need for anger management and mental health
treatment. Id. at 101-02. While it is true that Father completed anger
management counseling in November 2013, the trial court questioned its
effectiveness, pointing out that Father threatened the life of a caseworker.
Trial Court Opinion, 6/12/2015, at 3. The record supports this finding, as
there was testimony that just three days prior to completing his anger
management counseling, Father indicated to John Bert of Justice Works that
he was “going to put a hole in [the CYS caseworker’s] head.” N.T.,
8/6/2014, at 111.
Regarding his mental health issues, Father delayed beginning his
treatment for more than a year after the Children had been removed from
his care, and not until after the petition to terminate his parental rights had
been filed. Id. at 115. More importantly, Father’s mental health issues are
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both severe and, with respect to at least one significant diagnosis
(personality disorder), not amenable to treatment. The trial court found as
follows:
He was diagnosed with an Axis II disorder; the Axis
II diagnosis of personality disorder is not responsive
to treatment and is ingrained and lifelong. That is,
Father’s serious mental health disorder is not easily
treatable to behavior modification. The Father is not
only bipolar, he “displays prominent antisocial
personality characteristics and evidence of an
impulse control disorder. He has very few inhibitions
and tends to be reckless, impulsive and exercises
poor judgment in his interactions with others.” (Dr.
Rosenblum’s Report, Exhibit 2). He is
“tempermental, reckless and evidencing an
extremely unstable personal adjustment and
lifestyle.” (Exhibit 2). His ability to benefit from
treatment is very limited. The Father’s treatment as
a sexual offender is only in its beginning stages and
can take upward of two years to complete.
Additionally, untreated mental issues pose a barrier
to successful treatment for sexual offenders. Since
Father had also just begun mental health treatment,
any cognizable progress was yet to be seen.
Trial Court Opinion, 6/12/2015, at 8-9. Based upon our review of the
certified record on appeal, including the testimony and reports of Dr.
Stephen Lee and Dr. Neil Rosenblum, the trial court has correctly
summarized the evidence regarding Father’s current mental health issues
that CYS presented at the evidentiary hearings.
On appeal, Father disagrees with the trial court’s findings. He argues
that CYS’s contentions “can be boiled down to a fear that Father will at some
time behave erratically and harm his children.” Father’s Brief at 11. Father
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contends that this “conjecture” is belied by his actions, including the absence
of any evidence of recent anger outbursts demonstrating ongoing anger
management issues. Id. at 13.
Unfortunately, the Father’s arguments amount to an attack on the
credibility of the opinions of CYS’s mental health experts. As is clear from its
Rule 1925(a) opinion, however, the trial court found their testimony
regarding the state of Father’s mental health to be credible. Trial Court
Opinion, 6/12/2015, at 8-9. This Court is bound by the trial court’s
determinations in this regard, as “[t]he trial court is free to make all
credibility determinations, and may believe all, part, or none of the evidence
presented.” In the Interests of J.F.M., 71 A.3d 989, 992 (Pa. Super.
2013). Moreover, the courts of this Commonwealth have long held that 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 M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003) (citing In Re:
J.T. and R.T., 817 A.2d 505, 509 (Pa. Super. 2003)). As a result, we must
conclude that the trial court’s decision that Father’s serious mental issues
and the concomitant need for treatment, which were conditions that lead to
the removal of the Children, continue to exist and likely will continue to
persist well into the future. CYS thus presented clear and convincing
evidence to establish the third element under section 2511(a)(8).
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The fourth element under section 2511(a)(8) requires CYS to show
that termination of Father’s parental rights would best serve the needs and
welfare of the Children. Under Section 2511(a), the focus is on the parent,
whereas the focus in Section 2511(b) is on the child. In re Z.S.W., 946
A.2d 726, 732 (Pa. Super. 2008). The “best interests of the child” analysis
under Section 2511(a)(8) therefore accounts for the needs of the child in
addition to the behavior of the parent. In re C.L.G., 956 A.2d 956 A.2d
999, 1008-09 (Pa. Super. 2008) (en banc); In re I.J., 972 A.2d 5, 12 (Pa.
Super 2009). This analysis requires consideration of “[i]ntangibles such as
love, comfort, security, and stability.” In re C.P., 901 A.2d 516, 520 (Pa.
Super. 2006). To this end, this Court has indicated that the trial court “must
also discern the nature and status of the parent-child bond, paying close
attention to the effect on the child of permanently severing the bond.”
C.L.G., 956 A.2d at 1009. The continuity of relationships is important
because severing close parental ties is often extremely painful. In re
Adoption of K.J., 936 A.2d 1128, 1134 (Pa. Super. ).
Azure Hixenbaugh, the CYS caseworker, testified that based upon her
observations, there was no bond between the Children and their parents
(including Father) that was of benefit to the Children. N.T., 8/6/2014, at
130. Dr. Rosenblum testified that while he believed that the parents loved
the Children, he saw no similar loving relationship between the Children and
their parents. Id. at 46-47. Instead, Dr. Rosenblum described the Children
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as “comfortable” with their parents, with the older child (C.L.) exhibiting
more of an attachment than Ch.L. Id. at 46. Both Ms. Hixenbaugh and Dr.
Rosenblum agreed that severing the relationship between the Children and
Father would not result in any detrimental effect to the Children. Id. at 47-
48, 130. According to Dr. Rosenblum, the Children have adapted to life with
their pre-adoptive foster parents, from whom they derive all of their
“nurturing, direction and emotional support,” and that as a result
termination was not “something that would cause the children any significant
adjustment concerns.” Id. at 47-48. Both Ms. Hixenbaugh and Dr.
Rosenblum also agreed that the Children have strong bonds with their pre-
adoptive foster parents and that termination of parental rights and adoption
were in the Children’s best interests. Id. at 44, 130; see In re T.S.M., 71
A.3d 251, 268 (Pa. 2013) (“Common sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.”).
Turning to section 2511(b), on appeal Father does not challenge the
trial court’s factual findings or legal determination under this provision. For
the reasons set forth hereinabove, including the testimony of Ms.
Hixenbaugh and Dr. Rosenblum, no basis exists in the certified record to
conclude that the trial court erred in this respect.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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In Re: Adoption of C.L., minor, Appeal of: D.L.
Combined Opinion