J. A29013/15 & J. A29014/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.-J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.-J.K., A MINOR, : No. 942 WDA 2015
:
Appellant :
Appeal from the Order Entered May 12, 2015,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-0000032-2015
IN RE: L.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.K., : No. 944 WDA 2015
:
Appellant :
Appeal from the Order Entered May 12, 2015,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-0000033-2015
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2015
R.-J.K., a male child, and L.K., a female child, through their guardian
ad litem (“GAL”), appeal from the orders in the Court of Common Pleas of
Allegheny County denying the petitions for the involuntary termination of the
J. A29013/15 & J. A29014/15
parental rights of R.K. (“Father”), filed by the Allegheny County Office of
Children, Youth and Families (“CYF”). Upon careful review, we affirm.1
Father and Mother are the natural parents of R.-J.K., born in
November of 2010, and L.K., born in October of 2011 (collectively, “the
Children”). Mother has an older son, E.H., the Children’s half-brother, born
in December of 2007, who is not a subject of the instant appeals.
On February 4, 2015, CYF filed petitions for the involuntary
termination of the parental rights of Father and Mother pursuant to
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). A hearing on the petitions
occurred on April 10, 2015, during which CYF presented the testimony of its
caseworker, Sharon Martin, and Neil Rosenblum, Ph.D., who performed
psychological evaluations of Father, Mother, R.-J.K., and L.K. Father
testified on his own behalf, and he presented the testimony of
David Richardson, the program director at the Center for Family Excellence.
In addition, Mother testified on her own behalf.
In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court
explained that it found the testimony of the CYF caseworker, Ms. Martin, “to
be confusing, lacked an understanding of the necessary chronological order
in delivering pertinent information and didn’t have a working knowledge of
dates that were crucial to the understanding of this case for this [c]ourt’s
1
In separate orders, the orphans’ court granted CYF’s petitions for the
involuntary termination of the parental rights of R.H. (“Mother”). Mother
filed notices of appeal, the disposition of which is by separate memorandum.
-2-
J. A29013/15 & J. A29014/15
satisfaction.” (Trial court opinion, 7/10/15 at 4.) In addition, the court
explained that it “multiple times [] had to ask its own questions as to dates
and goals satisfied as it related to potential setbacks that were crucial to an
understanding[,] and often the [c]ourt was left with equivocal answers
shading clarity.” (Id.)
With this background in mind, the orphans’ court set forth the factual
history of this case, which the testimonial evidence supports. We summarize
as follows. CYF first became involved with this family as a result of
allegations by Mother that Father hit Mother’s son, E.H., in the ear, causing
it to bleed. (Id. at 4.) Father admitted to hitting E.H. (Id.) Nevertheless,
CYF allowed E.H. to remain in the home with Mother and Father, and “[n]o
further abuse of E.H. was ever alleged.” (Id.)
Thereafter, on November 29, 2011, Father was charged with a crime
involving domestic violence against Mother, and he pleaded guilty to
harassment and disorderly conduct on June 12, 2012. (Id.) Father received
a sentence of one year of probation, and he was ordered to attend anger
management classes and to have no violent contact with Mother. (Id.)
Father successfully completed his probation.
On February 12, 2013, Mother resided with a new paramour, with
whom she left the Children when she reported to the Allegheny County jail. 2
2
Mother testified on cross-examination by counsel for CYF that she was
incarcerated for “[a] speeding ticket that turned into a warrant.” (Notes of
testimony, 4/10/15 at 135.)
-3-
J. A29013/15 & J. A29014/15
(Id. at 5.) Mother’s paramour subsequently placed the Children with their
maternal grandmother. (Id.) Mother was released from jail eight days
later, on February 20, 2013, and she told CYF that she was not ready to
resume care of the Children. (Id.) On March 6, 2013, the Children were
adjudicated dependent, and they were placed in kinship foster care with
their maternal aunt.3 (Id.)
CYF established the following Family Service Plan (“FSP”) goals for
Father: to gain and maintain sobriety; to stabilize mental health; to
eliminate verbal and physical family abuse; to obtain and maintain
appropriate housing; to participate in a parenting program; to maintain
appropriate employment; and to maintain contact and cooperation with CYF.
(Notes of testimony, 4/10/15 at 25.) In addition, CYF arranged three-hour
weekly supervised visits between Father and the Children. (Id. at 36.)
By orders dated May 12, 2015, the orphans’ court denied CYF’s
petition for the involuntary termination of Father’s parental rights to the
Children. The orphans’ court accompanied the subject orders with
19 findings of fact. On June 17, 2015, the GAL filed notices of appeal and
concise statements of errors complained of on appeal pursuant to
3
E.H. was adjudicated dependent on August 10, 2012, but he was not
removed from parental custody until March 6, 2013, at which time he was
also placed in kinship care with the maternal aunt. (Trial court opinion,
7/10/15 at 4-5.)
-4-
J. A29013/15 & J. A29014/15
Pa.R.A.P. 1925(a)(2)(i) and (b).4 The orphans’ court filed its Rule 1925(a)
opinion on July 10, 2015.
On appeal, the GAL presents the following issues for our review:
I. Whether the [orphans’] court abused its
discretion and/or erred as a matter of law in
denying the petition to involuntarily terminate
[] Father’s parental rights pursuant to
23 Pa.C.S.[A.] § 2511(a)(8) after the statutory
grounds for termination were proven by clear
and convincing evidence?
II. Whether the [orphans’] court abused its
discretion and/or erred as a matter of law in
concluding that the involuntary termination of
Father’s parental rights would not best meet
the developmental, physical, and emotional
needs and welfare of the Children pursuant to
23 Pa.C.S.[A.] § 2511(b)?
GAL’s brief at 7.5
4
A notice of appeal must be filed within 30 days after entry of the order
from which the appeal is taken. See Pa.R.A.P. 903(a). Rule 108(b)
provides that the date of entry of an order is “the day on which the clerk
makes the notation in the docket that notice of entry of the order has been
given as required by Pa.R.C.P. 236(b)”. Pa.R.A.P. 108(b). In this case,
there is no date of entry on the certified docket of the subject orders. As
such, the appeal period has not been triggered, and, therefore, the GAL’s
appeals are timely. See In re L.M., 923 A.2d 505 (Pa.Super. 2007)
(declining to quash appeal as untimely where the docket does not show that
notice of entry of involuntary termination of parental rights order was
given).
5
CYF filed a brief on appeal, which it designated as an “appellee brief.”
However, like the GAL, CYF argues in its brief that the orphans’ court erred
in failing to terminate Father’s parental rights pursuant to
Section 2511(a)(8) and (b).
-5-
J. A29013/15 & J. A29014/15
We consider the GAL’s issues mindful of our well-settled 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., 608 Pa. 9, 9 A.3d
1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if
the trial court made an error of law or abused its
discretion. Id.; R.I.S., [614 Pa. 275, 284,] 36 A.3d
567, 572 (Pa. 2011) (plurality opinion)]. As has
been often stated, an abuse of discretion does not
result merely because the reviewing court might
have reached a different conclusion. Id.; see also
Samuel Bassett v. Kia Motors America, Inc., 613
Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, [575 Pa. 647, 654-655], 838
A.2d 630, 634 (Pa. 2003). Instead, a decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
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.
R.J.T., [608 Pa. at 28-30], 9 A.3d at 1190.
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
-6-
J. A29013/15 & J. A29014/15
the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re
Adoption of Atencio, [539 Pa. 161, 165,] 650 A.2d
1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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 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): 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).
Instantly, CYF petitioned for the involuntary termination of Father’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b),
which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in
regard to a child may be terminated after a
petition filed on any of the following grounds:
-7-
J. A29013/15 & J. A29014/15
(1) The parent by conduct continuing
for a period of at least six months
immediately preceding the filing of
the petition either has evidenced a
settled purpose of relinquishing
parental claim to a child or has
refused or failed to perform
parental duties.
(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.
....
(5) The child has been removed from
the care of the parent by the court
or under a voluntary agreement
with an agency for a period of at
least six months, the conditions
which led to the removal or
placement of the child continue to
exist, the parent cannot or will not
remedy those conditions within a
reasonable period of time, the
services or assistance reasonably
available to the parent are not
likely to remedy the conditions
which led to the removal or
placement of the child within a
reasonable period of time and
termination of the parental rights
would best serve the needs and
welfare of the child.
....
-8-
J. A29013/15 & J. A29014/15
(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)(1),(2), (5), (8), (b).
On appeal, the GAL argues that the orphans’ court abused its
discretion or committed an error of law in denying CYF’s petitions pursuant
to Section 2511(a)(8) and (b). To terminate parental rights pursuant to
Section 2511(a)(8), the following factors must be demonstrated: (1) the
child has been removed from parental care for 12 months or more from the
date of removal; (2) the conditions which led to the removal or placement of
the child continue to exist; and (3) termination of parental rights would best
-9-
J. A29013/15 & J. A29014/15
serve the needs and welfare of the child. In re Adoption of M.E.P., 825
A.2d 1266, 1275-1276 (Pa.Super. 2003); 23 Pa.C.S.A. § 2511(a)(8).
“Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.”
In re A.R., 837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period
has been established, the court must next determine whether the conditions
that led to the child’s removal continue to exist, despite the reasonable good
faith efforts of CYS supplied over a realistic time period. Id. Termination
under Section 2511(a)(8) does not require the court to evaluate a parent’s
current willingness or ability to remedy the conditions that initially caused
placement or the availability or efficacy of CYS services. In re Adoption of
T.B.B., 835 A.2d 387, 396 (Pa.Super. 2003); In re Adoption of M.E.P.,
supra.
With respect to Section 2511(b), this court has described the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination
of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists.
- 10 -
J. A29013/15 & J. A29014/15
In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).
Regarding the “needs and welfare” analysis pertinent to
Sections 2511(a)(8) and (b), we have observed:
[I]nitially, the focus in terminating parental rights is
on the parent, under Section 2511(a), whereas the
focus in Section 2511(b) is on the child. However,
Section 2511(a)(8) explicitly requires an evaluation
of the “needs and welfare of the child” prior to
proceeding to Section 2511(b), which focuses on the
“developmental, physical and emotional needs and
welfare of the child.” Thus, the analysis under
Section 2511(a)(8) accounts for the needs of the
child in addition to the behavior of the parent.
Moreover, only if a court determines that the
parent’s conduct warrants termination of his or her
parental rights, pursuant to Section 2511(a), does a
court “engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child.” Accordingly, while both
Section 2511(a)(8) and Section 2511(b) direct us to
evaluate the “needs and welfare of the child,” we are
required to resolve the analysis relative to
Section 2511(a)(8), prior to addressing the “needs
and welfare” of [the child], as proscribed by
Section 2511(b); as such, they are distinct in that
we must address Section 2511(a) before reaching
Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.Super. 2008) (en banc)
(citations omitted).
With respect to the first issue in this appeal, the GAL asserts that the
Children have been removed from their parents since February 14, 2013, or
- 11 -
J. A29013/15 & J. A29014/15
for 25 months, far in excess of the 12-month statutory minimum.
Therefore, the GAL argues that the first factor of Section 2511(a)(8) is
satisfied. Likewise, CYF argues that the first factor is satisfied as the
Children have been removed for more than 12 months.
With respect to the second factor, whether the conditions that led to
the Children’s removal continue to exist, the GAL asserts that Father
“continues to display frustration, irritability[,] and impatience with the
Children.” (GAL’s brief at 17.) Further, the GAL, as does CYF, argues that
the orphans’ court erred in failing to terminate Father’s parental rights
because he “had ‘substantially’ completed his FSP [goals]. . . .” (Id. at
17-18.)
In essence, the GAL and CYF disagree with the orphans’ court’s factual
finding that accompanied the subject orders, as follows, in pertinent part:
[Father] has substantially completed his Family
Service Plan. [Father]’s primary problem was
alleged to have been domestic issues. [Father] was
convicted of Harassment and sentenced to 1 year of
probation to have commenced June 12, 2012. As a
result of his conviction, [Father] was ordered into
anger management as part of his sentence. No
other issues related to domestic violence or parental
issues have concerned this court. On April 1, 2013,
[Father] participated in individual psychotherapy
through Mercy Behavioral Health on a weekly basis.
As of November 4, 2013, his therapist reported he
had “no symptoms of mental health and didn’t
require further treatment.” That therapist reported
that [Father] continued to be involved in treatment
because he felt he gained insight into relationship
issues into the dynamics involving his children and
their mother. In July of 2014, [Father] became a
- 12 -
J. A29013/15 & J. A29014/15
client of Pittsburgh Community Services Inc. His
goal was to get training and a job. [Father] has
provided evidence of employment and has a
management position. [Father] is a client of Center
For Family Excellence and the [c]oordinator,
David Richardson[,] testified to the eagerness and
commitment of [Father]. [Father] has provided
evidence of his attempt to get housing with the
Housing of the City of Pittsburgh. He is in a
“catch 22” because he is unable to get assistance
with housing for . . . the children without having the
children returned to him.
Order, 5/12/15 at Finding of Fact #16. Significantly, in its Rule 1925(a)
opinion, the orphans’ court clarified that it found Father had “satisfied his
goals[,] and that he was ready to parent [the Children].” (Trial court
opinion, 7/10/15 at 7-8.)
With respect to the third factor, the needs and welfare of the Children,
the GAL asserts that the orphans’ court abused its discretion in finding the
existence of a strong bond between the Children and Father and in failing to
follow the recommendation of Dr. Rosenblum that the goal for the Children
be adoption. In addition, CYF argues that the Children’s kinship foster
parents can best serve their needs and welfare.
Upon careful review, we conclude that the orphans’ court did not err as
a matter of law because Section 2511(a)(8), along with Section 2511(a)(5),
is “predicated on removal of the child from the care of the parent. . . .”
In re C.S., 761 A.2d 1197, 1200 n.5 (Pa.Super. 2000) (en banc). In
In re C.S., this court held that Section 2511(a)(5) and (8) did not provide a
basis for terminating the father’s parental rights when he was incarcerated
- 13 -
J. A29013/15 & J. A29014/15
at the time of the child’s removal from the mother’s care. Likewise, in
In re Z.P., 994 A.2d 1108 (Pa.Super. 2010), this court, in accordance with
In re C.S., supra, concluded that Section 2511(a)(5) and (8) did not
provide a basis for terminating the father’s parental rights when he was
incarcerated at the time of the child’s placement.
In this case, the CYF caseworker, Ms. Martin, testified that the
Children were living with Mother and her new paramour, but not Father, at
the time of their removal. (Notes of testimony, 4/10/15 at 11-13.)
Therefore, the Children were not removed from Father’s care. Based on the
foregoing case law, we conclude that Section 2511(a)(8) is inapplicable in
this matter.6 7
As such, the GAL’s first issue on appeal fails.8 It follows that
6
We recognize that the orphans’ court denied the petitions for the
involuntary termination of Father’s parental rights under Section 2511(a)(8)
on a different basis; namely, that he has satisfied the conditions that led to
the Children’s placement, and that he is ready to parent the Children.
However, this court is “not bound by the orphans’ court’s rationale, and may
affirm its ruling on any basis.” See Brickman Group Ltd. v. CGU Ins. Co.,
865 A.2d 918, 928 (Pa.Super. 2004); see also Ario v. Ingram Micro,
Inc., 965 A.2d 1194, 1200 (Pa. 2009) (same).
7
For the same reason, Section 2511(a)(5) is inapplicable in this case.
8
Because the GAL does not challenge the subject orders with respect to
Section 2511(a)(1) or (2), we need not review the orders under those
subsections. Nevertheless, we have carefully reviewed the testimonial
evidence in this case and the rationale of the orphans’ court set forth in its
Rule 1925(a) opinion. We discern no abuse of discretion by the court. See
In re Adoption of S.P., supra (explaining that, “even where the facts
could support an opposite result . . . 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
- 14 -
J. A29013/15 & J. A29014/15
we need not consider the GAL’s second issue regarding Section 2511(b).
See In re L.M., supra (explaining that, “[o]nly 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)”). Accordingly, we affirm the orders denying CYF’s petitions
for the involuntary termination of Father’s parental rights.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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”).
- 15 -