J-A34039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.H.-W. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.S., JR.
No. 1294 MDA 2015
Appeal from the Decree June 22, 2015
In the Court of Common Pleas of Lycoming County
Orphans’ Court at No(s): 6466
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 15, 2016
Appellant J.S., Jr. (“Father”) appeals from the decree entered in the
Lycoming County Court of Common Pleas, which terminated his parental
rights to D.H.-W. (born February 4, 2014) (“Child”).1 We affirm.
The trial court set forth the relevant facts of this appeal as follows:
The court entered an order [for] emergency protective
custody on February 6, 2014. The allegations which led to
emergency protective custody centered around Mother’s
past agency involvement, including the termination of
parental rights of four of her children, Mother’s criminal
sentencing order prohibiting her from caring for children,
and the fact that the alleged biological father,[2] [Father],
____________________________________________
1
The decree also terminated the parental rights of S.H. (“Mother”), who did
not appeal.
(Footnote Continued Next Page)
J-A34039-15
was under the supervision of the Adult Probation Office. A
shelter care hearing was held February 7, 2014. At the
time of the shelter care hearing, the court ordered [Father]
to undergo a paternity test to determine if he was [Child’s]
natural father. All parties waived the 10 day requirement
of the dependency hearing.
The Child was adjudicated dependent on March 10, 2014.
At the time of the hearing, it was confirmed that [Father]
was [Child’s] biological father. Mother and Father were
living together at the time of the dependency hearing. Due
to Mother’s prior history of abuse and neglect, which led to
the termination of parental rights as to four of her
children, the court determined [Child] to be without proper
parental care or control in Mother’s care. The court was
concerned that [Child] would be without proper parental
care and control in Father’s home. Specifically, the court
was concerned about Father meeting [Child’s] basic needs
but felt those issues could resolve through coaching and
learning parenting skills. The court found that Father did
not have the protective capacity to protect Child from
Mother. Father candidly admitted to this fact. The court
was concerned with both parents[’] anger issues and
inability to control their frustration. Father was strongly
urged to cooperate with the Agency. The court found
aggravated circumstances as to Mother. [Child] remained
placed in the kinship home.
A permanency review hearing was held on April 1, 2014.
At that time, the court reaffirmed dependency of [Child],
and [Child] remained in kinship care. The court found that
during this review period, Mother became incarcerated for
assaulting Father. Mother’s visits were suspended. The
court found Mother would be a grave threat to [C]hild if
visitation were to continue. Father made moderate
progress towards alleviating the circumstance[s] which led
to placement. Father was consistent in his visits and
_______________________
(Footnote Continued)
2
When Child was born, Mother was married to W.H., not Father. A
subsequent paternity action revealed Father was the biological father of
Child.
-2-
J-A34039-15
growing more comfortable with caring for his child. The
Agency reported Father was cooperative and that they had
seen considerable improvement. Father was ordered to
work with Outreach Services to help with his financial and
parenting responsibilities.
A permanency review hearing was held on July 14, 2014.
Dependency of [Child] was reaffirmed, and [Child]
remained in kinship care. Mother remained incarcerated.
The court found Father made minimal progress toward
alleviating the circumstances [that] necessitated
placement. Father did attend almost all of his visits and
provided appropriate and necessary items. Father
continued to struggle with learning parenting skills and
was making slow progress. The court directed the Agency
to work closely with Expectations for Women
[(“Expectations”)], the provider of Father’s parenting
classes. The court was concerned with Father’s reluctance
to take Agency advice.
A permanency review hearing was held on October 6,
2014. Dependency of [Child] was reaffirmed, and [Child]
remained in kinship care. Mother continued to be
incarcerated. Father continued in his same residence as
the time of the initial proceedings, despite the financial
difficulties of his sole income being that of Social Security
Disability. The court found Father made significant gains
during this review period. Father was working with the
Agency Outreach Worker and [Expectations]. The court
found Father was unable to care for Child on his own,
especially as [Child’s] needs change. The Agency intended
to increase Father’s visitation and expand visits into his
home, but the visits were to remain observed.
A permanency review hearing was held on January 7,
2015. Dependency of [Child] was reaffirmed, and [Child]
remained in kinship care. Mother remained incarcerated.
The court found that Father was minimally compliant in his
effort to alleviate the circumstance[s] [that] led to
placement in that he remained unable to provide
appropriate care for Child. The court directed an evaluation
to assess Father’s readiness to assume responsibility for
[Child]. The court notes that the issue was Father’s
inability to care for [Child].
-3-
J-A34039-15
On March 24, 2015, the Agency filed a petition to
involuntarily terminate the parental rights of both Mother
and Father in regard to [Child]….
A permanency review hearing was held on April 8, 2015.
Dependency of [Child] was reaffirmed, and [Child]
remained in kinship care. Mother remained incarcerated.
Father continued to attend visits on a regular basis,
attended counseling, and took his prescribed medicine.
Father also resumed attending parenting classes at
Expectations. The court was unable to determine whether
Father had made any progress in his ability to care for
[Child] on his own.
Visitation Coordinator, Harvey Edwards, has been
observing Father’s visits with [Child] since February 11,
2014. The visits occur three days per week and last four
hours each visit. Prior to Mother’s incarceration, Mother
participated in supervised visitation. In the period of
January 2015, until May 2015, Father attended 46 of 52
scheduled visits. Mr. Edwards observed that when visits
began last year, Father just watched [Child]. Mr. Edwards
had to encourage Father to interact with Child. Mr.
Edwards reported that Father still struggles to this date.
Mr. Edwards continuously monitors Father because, at
times, Father gets angry. Father gets irritated when Child
does not listen to him. Father speaks in a harsh and
elevated tone to Child. Mr. Edwards testified to a lack of
progress in Father’s ability to parent. He testified that
Father cannot do things independently. Mr. Edwards
described one specific occasion when Father failed to
address [Child’s] unhappiness at a restaurant. Despite Mr.
Edwards’ prompts, Father continued eating, and Mr.
Edwards was forced to pick up [Child] and address his
needs. In a separate incident, Father did not notice [Child]
was ill and had a fever. Mr. Edwards felt [Child] was warm
and intervened. [Child] is always happy to be returned to
his kinship care providers at the end of the visits with
Father.
Crystal Minnier is the ongoing caseworker in this matter.
Ms. Minnier was involved in the cases regarding Mother’s
other children. Ms. Minnier testified that Mother has had no
-4-
J-A34039-15
contact with Child since she became incarcerated. Mother
has written letters to Ms. Minnier regarding Child. Ms.
Minnier testified that Father has maintained the same
residence since prior to the Agency’s involvement. Father
and Mother began parenting classes with Expectations
prior to Agency involvement. Ms. Minnier encouraged
Father to seek services for [the] intellectually disabled.
Father was not interested as he had those services in high
school and did not see a need. Father does not wish to
seek employment. Ms. Minnier believes Father has
exhausted any resource available to him. Father is
currently in individual counseling for anger management
and [is] medication compliant (pursuant to the terms of
the Adult Probation Office). Despite diligent search efforts,
family resources for Father have not been located.
Ms. Minnier has not seen progress in Father’s ability to
care for [Child]. Father continues to have the inappropriate
expectation that his very young son knows what he is
saying. Father’s frustration and anger continues, and
Agency staff is always present to intervene. For example,
Father expects Child to remain still when told and believes
[Child] is deliberately disobeying him. Ms. Minnier believes
Father loves his son. However, Ms. Minnier does not
believe Father will ever be able to develop the skills
necessary to care for [C]hild on a full[-]time basis. Ms.
Minnier described that, despite over a year of regular
visits, she remains concerned [Child] will be harmed in
Father’s care.
In [Child’s] resource home, he resides with two of his
siblings. Mother’s rights had previously been terminated to
the two siblings.
Bruce Anderson is a licensed psychologist who evaluated
Father and testified at the time of the hearing. Mr.
Anderson reported that Father has an intellectual limitation
and low I.Q. Father is concrete in his thinking and able to
comply with a simple instruction. Mr. Anderson found that
Father is unable to comprehend [Child’s] developmental
changes. Mr. Anderson found that Father would not be
able to care for Child on his own. He also found that Child
would not be safe with Father full time. Further, Mr.
Anderson testified that Father would never get to the point
-5-
J-A34039-15
where he could provide full time care. Mr. Anderson found
that while Father is strongly bonded to Child, Child is
strongly bonded to the resource parents.
Judith Jones testified as Child’s court[-]appointed special
advocate. Ms. Jones was present for at least ten visits with
Child and Father and observed at those visits that Child
lures Father into interacting with him, rather than Father
engaging the interaction.
Both [r]esource parents testified to their relationship with
Child and willingness to assume role of parent.
Loretta Clark, Father’s adult probation officer, confirmed
that Father was on probation as a result of a sentence for
two counts of aggravated assault. Father meets with the
probation office every other month and has been
compliant. Father is likely to remain on probation until
2017. Ms. Clark testified that the adult probation office’s
conditions that Father attend counseling and remain on
medication were to address his anger issues.
Father’s attorney offered no evidence at the time of the
hearing. Father did not testify.
Mother testified that she expects to be released in the
summer of 2015 as she has already surpassed her
minimum sentence date. Mother has completed a violence
prevention program. Mother does not wish for her rights to
be terminated. Mother was not sure if the term of her
sentence which required her not to care for children would
remain a restriction after her release.
Trial Court Opinion, filed June 22, 2015, at 2-8 (some capitalization
omitted).
-6-
J-A34039-15
On June 22, 2015, the trial court issued a decree that involuntarily
terminated the parental rights of Mother and Father. On July 17, 2015,
Father timely filed a notice of appeal.3
Father raises the following question for our review:
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
SUFFICIENT TO SUPPORT THE COURT’S TERMINATION OF
[FATHER’S] PARENTAL RIGHTS UNDER 23 PA.C.S.[] §
2511(A)(5) AND (8) ON THE BASIS THAT “THE
CONDITIONS WHICH LED TO THE ORIGINAL REMOVAL OF
THE CHILD STILL CONTINUE TO EXIST TO DATE” WHERE
AT NO POINT IN [CHILD’S] LIFE HAD [FATHER] BEEN
GIVEN THE OPPORTUNITY TO TAKE ON FULL
RESPONSIBILITY FOR [CHILD] AND EVIDENCE OF
[FATHER’S] INCAPACITY OR INABILITY TO PROPERLY
CARE FOR [CHILD] WAS PURELY SPECULATIVE IN
NATURE?
Father’s Brief at 7.
Father argues that, because he was never given an opportunity to care
for Child on his own, the evidence presented at trial was insufficient to
establish that Father continued to fail to provide for Child pursuant to 23
Pa.C.S. § 2511(a)(5) and (8). We disagree.
Our scope of review in an appeal terminating parental rights is
comprehensive:
[W]e consider all the evidence presented as well as the
trial court’s factual findings and legal conclusions.
____________________________________________
3
On July 23, 2015, the trial court ordered Father to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), because he
had not filed one with his appeal pursuant to Pa.R.A.P. 1925(a)(2). Father
complied with the court’s request on July 28, 2015.
-7-
J-A34039-15
However, our standard of review is narrow: we will reverse
the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial
judge’s decision is entitled to the same deference as a jury
verdict.
In re L.M., 923 A.2d 505, 511 (Pa.Super.2007) (citations omitted).
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing
court even though the record could support an opposite
result.
We are bound by the findings of the trial court which have
adequate support in the record so long as the findings do
not evidence capricious disregard for competent and
credible evidence. The trial court is free to believe all,
part, or none of the evidence presented, and is likewise
free to make all credibility determinations and resolve
conflicts in the evidence. Though we are not bound by the
trial court’s inferences and deductions, we may reject its
conclusions only if they involve errors of law or are clearly
unreasonable in light of the trial court’s sustainable
findings.
In re M.G., 855 A.2d 68, 73-74 (Pa.Super.2004) (citations omitted).
“In a proceeding to involuntarily terminate parental rights, the burden
of proof is upon the party seeking termination to establish by clear and
convincing evidence the existence of grounds for doing so. The 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.” In
re T.F., 847 A.2d 738, 742 (Pa.Super.2004) (internal quotations and citation
omitted).
-8-
J-A34039-15
Here, the trial court found grounds for termination based on
Subsections (a)(5) and (8) in addition to Subsection (b) of 23 Pa.C.S. §
2511, which governs requests to terminate a natural parent’s parental
rights, and provides, in pertinent part:
§ 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:
* * *
(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) 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
-9-
J-A34039-15
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.
In order to affirm the termination of parental rights, this Court need
only agree with any one subsection of 23 Pa.C.S. § 2511(a), in addition to §
2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super.2004) (en banc),
appeal denied, 863 A.2d 1141 (Pa.2004).
Here, the court properly first looked to 23 Pa.C.S. § 2511(a) for the
basis of involuntary termination and found that grounds for termination
existed under subsections (5) and (8). Specifically, the trial court found that
Child had been removed from his parents for 16 months. The court found
that the conditions that led to the removal from Father, namely Father’s
intellectual difficulties, continued to exist. The court found that, although
Father had improved his parenting skills, he was unable to adjust his
parenting to the changing developmental needs of Child and that terminating
his and Mother’s rights would best serve the needs and welfare of Child.4
____________________________________________
4
The trial court also noted that, although Father made a compelling
argument that he had not been given an opportunity to take full
(Footnote Continued Next Page)
- 10 -
J-A34039-15
The trial court then considered other factors pursuant to 23 Pa.C.S. §
2511(b) and found Child was strongly bonded with his resource family, with
whom he had resided since birth, and that the termination of both Mother
and Father’s parental rights would not destroy an existing, necessary and
beneficial relationship.
The hearing court’s findings are supported by competent evidence of
record. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2016
_______________________
(Footnote Continued)
responsibility for Child, his argument failed to negate the requirements of
the statute.
- 11 -
In Re: D.H.-W. Appeal of: J.S., Jr.
Combined Opinion