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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: INVOLUNTARY TERMINATION : IN THE SUPERIOR COURT OF
OF PARENTAL RIGHTS TO N.D.B., A : PENNSYLVANIA
MINOR :
:
:
:
:
APPEAL OF: A.A.B., NATURAL :
FATHER : No. 37 MDA 2016
Appeal from the Decree December 9, 2015,
in the Court of Common Pleas of Centre County
Orphans’ Court at No: 2015-4027 A
BEFORE: MUNDY, STABILE, FITZGERALD*, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 11, 2016
A.A.B. (“Father”) appeals from the decree entered December 9, 2015,
in the Court of Common Pleas of Centre County, which involuntarily
terminated his parental rights to his minor son, N.D.B. (“Child”), born in
September of 2012.1 We affirm.
The orphans’ court summarized the factual and procedural history of
this matter as follows.
[Centre County Children and Youth Services (“CYS”)] has
been involved with Mother and Father for several years in
relation to their other children. [Child] is Mother’s sixth child,
and CYS has been involved with her since 2006. Mother’s
____________________________________________
* Former Justice specially assigned to the Superior Court.
1
The parental rights of Child’s mother, K.S.P. (“Mother”), were involuntarily
terminated by the same decree. Mother has not filed a brief in connection
with the instant appeal, nor has she filed her own separate appeal.
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parental rights to her first four children were involuntarily
terminated, and her parental rights to her fifth child were
voluntarily terminated. Mother indicated to counsel she wished
to voluntarily terminate her rights to [Child], but failed to appear
in court to do so at either of the two hearings for this matter.
[Child] is Father’s third child. CYS has been involved with
Father intermittently since 1997. Father’s first child is in the
care and custody of the paternal grandparents, and he has not
had significant periods of custody of his second child. Father has
a history of substance abuse, mental health problems,
incarceration, and financial and housing instability. From April
22, 1994, through December 3, 2013, Father had fifteen
separate periods of incarceration, including time for an arrest for
driving under the influence [(“DUI”)] in 2012, and an arrest for
driving with a suspended license in 2013. During the same
timeframe, Father spent 753 days in prison and owes $8,439.00
in fines and costs for eleven cases in the Centre County Office of
Probation and Parole.
CYS began involvement again upon learning Mother was
pregnant with [Child]. CYS was concerned with Mother[’s] and
Father’s mental and emotional health, home conditions, financial
troubles, parenting skills, and their relationship problems.
Mother and Father failed to cooperate with CYS prior to [Child’s]
birth. . . .
Orphans’ Court Opinion, 12/9/15, at 1-2.
CYS obtained an order for emergency protective custody of Child on
the day Child was born. Petitioner’s Exhibit 2 (Order for Emergency
Protective Custody). Child was adjudicated dependent on September 19,
2012. Petitioner’s Exhibit 5 (Order of Adjudication and Disposition). On
October 14, 2013, Child’s permanency goal was changed to adoption. 2
____________________________________________
2
While Child’s permanency goal was changed to adoption in October of
2013, the record reveals that reunification services were ended months
earlier, on May 15, 2013. See N.T., 5/14/15, at 75-76.
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Father appealed from the goal change order, which was affirmed by a panel
of this Court on December 19, 2014. See In the Interest of: N.D.B., 116
A.3d 693 (Pa. Super. 2014) (unpublished memorandum).
On February 13, 2015, CYS filed a petition to involuntarily terminate
Father’s parental rights to Child. A termination hearing was held on May 14,
2015, and June 26, 2015, during which the orphans’ court heard the
testimony of CYS caseworker, Rebecca McKinley-Walsh; Family Intervention
Crisis Services (“FICS”) reunification program director, Molly Funk; former
CYS caseworker, Lindsay Schreffler; CYS caseworker, Tammi Eddy; and
Father. Following the hearing, on December 9, 2015, the orphans’ court
entered its decree terminating Father’s parental rights. Father timely filed a
notice of appeal on January 6, 2016, along with a concise statement of
errors complained of on appeal.
Father now raises the following issues for our review.
I. Did the [orphans’ c]ourt err in involuntarily terminating
Father’s parental rights where CYS did not prove by clear and
convincing evidence all of the elements required to effectuate an
involuntary termination pursuant to 23 Pa.C.S.A. Sec.
2511(a)(2)?
II. Did the [orphans’ c]ourt err in involuntarily terminating
Father’s parental rights where CYS did not prove by clear and
convincing evidence all of the elements required to effectuate an
involuntary termination pursuant to 23 Pa.C.S.A. Sec.
2511(a)(5)?
III. Did the [orphans’ c]ourt err in involuntarily terminating
Father’s parental rights where CYS did not prove by clear and
convincing evidence all of the elements required to effectuate an
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involuntary termination pursuant to 23 Pa.C.S.A. Sec.
2511(a)(8)?
IV. Did the [orphans’ c]ourt err in involuntarily Father’s parental
rights where CYS did not prove by clear and convincing evidence
all of the elements required to effectuate an involuntarily
termination pursuant to 23 Pa.C.S.A. Sec. 2511(b)?
Father’s Brief at 4.
We consider Father’s claims mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
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. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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
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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).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to Sections 2511(a)(2), (5), (8), and (b). We need only agree with
the court as to any one subsection of Section 2511(a), as well as Section
2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we
analyze the court’s decision to terminate under Sections 2511(a)(2) and (b),
which 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:
***
(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.
***
(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
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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)(2), (b).
We first address whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted)). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
Instantly, the orphans’ court found that Father’s repeated and
continued incapacity, abuse, neglect, or refusal has caused Child to be
without essential parental care, control, or subsistence necessary for his
physical or mental well-being, and that the conditions and causes of Father’s
incapacity, abuse, neglect, or refusal cannot, or will not, be remedied.
Orphans’ Court Opinion, 12/9/15, at 5-6. The court reasoned that Father
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has a history of criminal activity, homelessness, drug and alcohol use,
deficient parenting skills, failure to cooperate with CYS, and overall
instability. Id. at 5. The court concluded that Father continues to struggle
with these same problems. Id. at 5-6.
Father argues that he has remedied the issues which resulted in
Child’s placement in foster care. Father’s Brief at 13-20. In the alternative,
Father contends that he has made sufficient progress such that he will be
able to remedy those issues within a reasonable period of time. Id. at 19.
Father insists that he parented Child appropriately during his visits, that he
has obtained stable housing, and that he has attended counseling in order to
address his other issues. Id. at 17-19.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by involuntarily terminating
Father’s parental rights to Child. During the termination hearing, FICS
reunification program director, Molly Funk, testified that FICS opened its
case with respect to Father on October 11, 2012. N.T., 5/14/15, at 49.
FICS prepared a Family Reunification Services Agreement, pursuant to which
Father was required to secure and maintain stable housing, manage his
money carefully, show that he can care for Child, and take care of himself by
cooperating with services, among other things. Id. at 51-52.
With respect to Father’s housing, Ms. Funk testified that Father was
residing with Mother at his parents’ home at the time FICS began providing
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services. Id. at 52. Father’s parents informed FICS that Father would only
remain at their home temporarily, and FICS instructed Father that he would
need to obtain his own residence in order to demonstrate that he could live a
stable lifestyle. Id. at 52-53. Father did not obtain his own housing until
January of 2013. Id. at 53, 103. Moreover, by March of 2013, Father was
again spending extended periods of time living with his parents. Id. at 63,
103.
Concerning visitation, Ms. Funk explained that Father attended his
visits with Child consistently. Id. at 54, 64, 78, 80. However, Father was
resistant to accepting feedback from FICS service providers with respect to
appropriate parenting techniques, such as how to prepare a bottle. Id. at
56-57, 81, 94. Father showed “minimal progress” in terms of his ability to
care for Child. Id. at 64. Father demonstrated that he was able to meet
Child’s needs, but only with prompting by FICS staff. Id. at 66, 86, 108,
143.
With respect to services, Ms. Funk testified that Father attended
Catholic Social Services, where it was expected that he would receive anger
management counseling. Id. at 59. During that time, Father’s counselor at
Catholic Social Services reported to FICS that Father was not willing to work
on anger management, because he did not see it as a problem. Id. at 59,
97. In March of 2013, Father indicated that he would no longer be attending
Catholic Social Services, and that he would instead be attending anger
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management and drug and alcohol counseling at Quest. Id. at 59. Father’s
only explanation for leaving Catholic Social Services was that “he began to
work on some personal issues, and he was no longer comfortable in
attending there so he was looking for counselling elsewhere.” Id. Father
also attended drug and alcohol services at Clear Concepts, but Father’s
counselor reported that Father did not want to work on drug and alcohol
issues, so they would work on parenting instead. Id. at 61. Ms. Funk noted
that Father was dismissive of his anger management and drug and alcohol
issues, and “stated to our agency on many occasions that everybody has
anger, and everybody uses drugs.” Id. at 59-60, 107. Ms. Funk also
described a conversation she had with Father during which he discussed his
prior DUI charge. Id. at 137. Father received this charge for driving after
“using marijuana and snort[ing] Vicodin[.]” Id. Father refused to accept
responsibility for the incident, “saying the police were lying, and he didn’t
know that driving while using marijuana was considered a DUI.” Id.
Finally, Ms. Funk testified that Father appeared to have an
inappropriate relationship with Mother. Id. at 68-69. During visits, Father
would instruct Mother that she was not allowed to do things without his
permission. Id. at 82. Father also told Mother that she was “stupid” on
multiple occasions. Id. at 56, 122. Mother reported to FICS that she was
fearful of Father, and that Father would yell and curse at her. Id. at 68-69.
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CYS caseworker, Tammi Eddy, testified that she was assigned to this
case in September of 2013, and “officially took it over” on October 1, 2013.
N.T., 6/26/15, at 55. With respect to Father’s parental capacity, Ms. Eddy
testified that she does not believe that Father is capable of raising Child. Id.
at 97. Ms. Eddy acknowledged that Father is able to parent Child in the
context of a two-hour supervised visit, but she expressed concern with
respect to Father’s ability to maintain Child’s safety without supervision. Id.
at 102. Ms. Eddy confirmed that Father “presents as verbally aggressive
and hostile” and that he is resistant to accepting suggestions from service
providers. Id. at 72-73, 94-95. Ms. Eddy explained that Father had a
particularly poor relationship with a previous service aide. Id. at 62-63. In
April of 2014, the service aid asked to be removed from supervising and
transporting Father to visits. Id. at 70. The service aide refused to work
with Father without someone else being present, and reported that Father
was “very threatening to her.” Id. at 70-71.
Concerning Father’s relationship with Mother, Ms. Eddy testified that
that Father and Mother married on September 11, 2013. Id. at 65. Father
and Mother separated and reunited several times, until Father filed for
divorce on March 31, 2015. Id. at 65, 70, 75-76, 88. On May 4, 2015, Ms.
Eddy received a phone call from Mother, who indicated that she left Father,
and that she filed for a Protection From Abuse (“PFA”) order against him.
Id. at 90. Mother alleged that, throughout her relationship with Father, he
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would scream at her, attack her, and state that it was his right to do so
because he owned her. Id. Mother also described an incident during which
she engaged in a “scuffle” with Father. Id. at 91. When Mother attempted
to leave the home, Father shut the door on her hand. Id. Mother finally
was able to flee to a neighbor’s house and, for the remainder of the day,
Father “canvassed the neighborhood” trying to find her. Id. Ms. Eddy
explained that Father filed for a PFA against Mother on May 6, 2015. Id.
Mother’s PFA against Father was dismissed, because Mother failed to appear
at the hearing. Id. at 133. Father did appear at his PFA hearing, and an
order was entered on his behalf against Mother. Id. at 133-34.
Accordingly, the record supports the conclusion of the orphans’ court
that Father is incapable of parenting Child, and that Father cannot, or will
not, remedy his parental incapacity. When provided with the opportunity to
participate in reunification services, Father was resistant to accepting
suggestions from service providers, and he refused to address his drug and
alcohol and anger management issues. Tellingly, Father testified during the
termination hearing that he has not attended counseling since his most
recent incarceration, and that he does not believe that counseling is
necessary.3 N.T., 6/26/15, at 175, 177, 226. In addition, Father has
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3
Our review of the record indicates that Father’s most recent incarceration
resulted from his arrest for driving with a suspended license in October of
(Footnote Continued Next Page)
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engaged in an unstable and possibly abusive relationship with Mother, which
further supports the court’s determination that Father is incapable of
parenting Child in a safe and appropriate manner.
We next consider whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
_______________________
(Footnote Continued)
2013. See N.T., 6/26/15, at 63-64. Father was incarcerated until
December of 2013. Id.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Here, the orphans’ court found that Child has little, if any, bond with
Father. Orphans’ Court Opinion, 12/9/15, at 9. The court noted that Child
has spent his entire life in foster care, and regards his foster parents as his
parents. Id. The court concluded that Father remains incapable of
parenting Child, and that it would best serve the needs and welfare of Child
to terminate Father’s parental rights. Id.
Father argues that CYS failed to present clear and convincing evidence
that terminating his parental rights would serve the needs and welfare of
Child. Father’s Brief at 20-21. Father contends that he and Child are
bonded. Id. at 20. Father further emphasizes that CYS failed to obtain a
bonding evaluation, and that CYS did not provide expert testimony in
support of its position that terminating Father’s parental rights would not
have a detrimental impact on Child. Id.
We again conclude that Father is not entitled to relief. Ms. Eddy
testified that Child is comfortable with Father during visits, but that he is
more attached to his foster parents, and views his foster parents as his
parents. N.T., 6/26/15, at 79, 100-01. Child calls Father “daddy, but when
the door to the visit room is open, he runs to the [foster parents].” Id. at
79-80. Thus, the record confirms that Father and Child do not share a
parent/child bond, and that Child’s parent/child bond is with his foster
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parents. While Father is correct that CYS did not present a bonding
evaluation or other expert testimony during the termination hearing, it is
well-settled that a court in a termination proceeding “is not required by
statute or precedent to order a formal bonding evaluation be performed by
an expert.” In re K.K.R.-S., 958 A.2d 529, 534 (Pa. Super. 2008) (citation
omitted). It is clear that Child’s needs and welfare will best be served by
terminating Father’s parental rights.
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by involuntarily terminating Father’s parental rights to
Child, we affirm the decree of the orphans’ court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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