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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.W.J., III, M.N.J., MINORS IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.W.J., FATHER
No. 1780 WDA 2015
Appeal from the Order October 15, 2015
in the Court of Common Pleas of Allegheny County Family Court
at No(s): CP-02-AP-0000054-2015
CP-02-AP-0000055-2015
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 15, 2016
J.W.J. (“Father”) appeals from the orders entered on October 14,
2015, granting the petitions filed by the Allegheny County Children, Youth
and Families (“CYF”) to involuntarily terminate his parental rights to his
dependent, minor, male children, J.W.J., III, born in October of 2011, and
M.N.J., born in November of 2013 (collectively, the “Children”), pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).1 We affirm.
On March 10, 2015, CYF filed the involuntary termination petitions at
issue. On October 14, 2015, the trial court held a hearing. CYF first
*
Former Justice specially assigned to the Superior Court.
1
In the same orders entered on October 15, 2015, the trial court
involuntarily terminated the parental rights of H.M.M., the natural mother of
the Children (“Mother”). Mother was absent from the termination hearing,
but was represented by counsel, and the court proceeded with the hearing in
her absence. Trial Ct. Op., 12/18/15, at 1 n.1. Mother has not filed an
appeal of her own and is not a party to this appeal.
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presented Terry O’Hara, Ph.D.,2 as a stipulated expert in the area of
psychology. N.T., 10/14/15, at 9. CYF then presented the testimony of
Terese Tuminello, a CYF caseworker assigned to the case since January of
2014. Id. at 65. Father, who was incarcerated, was present in the
courtroom, and testified on his own behalf. He also presented the
testimony, via telephone, of A.P., his fiancée, with whom he resides when he
is not incarcerated. Id. at 221, 232.
Based on the testimony of Ms. Tuminello, the trial court made the
following findings of fact:
The family had been involved with CYF prior to the
births of J.J. and M.J. [N.T., 10/14/15, at 67.] These
children are two of Mother’s seven children; they have four
older siblings. Id., at 66. Mother has no children in her
care. Id. When CYF first became involved, Mother was
grappling with alcohol, while Father was in the Allegheny
County Jail. Id., at 68. But at that time, in-home services
were working with Mother, and the case was closed in
October of 2010. Id.
As time progressed, Mother continued to struggle with
her sobriety. CYF obtained Emergency Custody
Authorizations (“ECAs”) to remove the subject children.
J.J. was removed on January 7, 2013. Id., at 74. But he
was temporarily returned to Mother in October 2013. In
January 2014, an incident took place where Mother was
arrested for DUI while she was driving with her three small
children, including the newborn baby M.J. None of the
children were [sic] properly restrained in car seats. CYF
obtained ECAs for the children and J.J. was adjudicated
dependent on January 28, 2014. M.J. was adjudicated
2
The notes of testimony erroneously refer to Dr. Terry O’Hara as Dr. Tony
O’Hara.
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[dependent] three months later on March 24, 2014. Id.
Mother stipulated to her current alcohol abuse, need for
domestic violence treatment, and her significant history
with the agency. Id., at 75.
Trial Ct. Op. at 1-2.
Dr. O’Hara conducted an interactional evaluation of Children with their
maternal uncle, T.L., who is their kinship foster parent, on September 22,
2015, and produced a report concerning that evaluation. Id. at 11. CYF’s
counsel questioned Dr. O’Hara about his observations and recommendations
after his interactional observation of Children with T.L. Id. at 15. Father’s
counsel objected, asserting that CYF had to present its case as to Section
2511(a) before questioning Dr. O’Hara about matters that were relevant to
Section 2511(b). Id. at 15-16. The trial court overruled the objection, and
denied any request for bifurcation of the presentation of testimony and
evidence. Id. at 17. The trial court judge stated that she could
appropriately address the evidence. Id. T.L.’s partner, Ms. M., was unable
to attend the evaluation. Id. at 25.
Mother failed to appear at the evaluations scheduled to occur with Dr.
O’Hara on September 28, 2015. Id. at 11, 14. Father failed to appear for
an interactional evaluation between Father and Children scheduled for
September 30, 2015, and for an individual evaluation scheduled with Dr.
O’Hara for that same date. Id. at 11, 14-15. Father did not notify Dr.
O’Hara about re-scheduling the evaluations. Id. at 14. Dr. O’Hara has
never seen Father. Id. at 15.
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Dr. O’Hara testified about information he received from Ms. O’Neill
from the Baer Foundation, who visited T.L. and Ms. M. interacting as a family
with Children multiple times. Id. at 18. Father’s counsel objected on the
basis of hearsay. Id. The trial court permitted Father’s counsel to conduct
voir dire examination concerning the collateral information Dr. O’Hara relied
upon in forming his opinion. Id. at 22-23. Dr. O’Hara explained that he
relied upon information from CYF, his own observations of Children with T.L.,
and research regarding attachment. Id. at 23. Dr. O’Hara stated that the
failure of Father and Mother to appear at the evaluations limited him in
forming his opinions and recommendations. Id. Father’s counsel then
withdrew her objection. Id.
Ms. O’Neill related to Dr. O’Hara that T.L. is “wonderful” and really
loves and cares for Children, and that T.L.’s home is the only home Children
have known. Id. at 24. Ms. O’Neill related that Ms. M. assisted in Children’s
lives, and “seems to really love and care for the kids.” Id. Dr. O’Hara
observed that T.L. (1) shows stability, (2) denies substance abuse, mental
health concerns, domestic violence, and criminal activity, and (3) denies that
Ms. M. has any of these issues. Id. T.L. also reportedly has stability in his
housing and employment. Id. T.L. and his mother, S.M., Children’s
maternal grandmother, both allegedly have a strong family, and Children are
able spend time with their sister, Z. Id.
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Dr. O’Hara observed that T.L. exhibited several positive parenting
skills with Children in the interactional evaluation. Id. at 25. Specifically,
T.L. interacted well with Children, read to M.N.J., consistently spoke to
Children, praised them, gained their compliance, and showed affection. Id.
at 25-26. J.W.J., III, was asleep for most of the evaluation, and appeared to
be tired when awakened. Id. at 26. Dr. O’Hara observed that J.W.J., III,
responded positively to T.L.’s directions, but slowly, as he was sleepy. Id.
M.N.J. was spontaneous and frequent in his interactions with T.L., and he
exhibited autonomy and curiosity. Id. M.N.J. made a variety of
vocalizations, and was calm and relaxed with T.L. Id. Dr. O’Hara assessed
T.L. as showing several positive parenting skills and exhibiting stability, and
Children exhibited their attachment to him. Id. Dr. O’Hara believed that
J.W.J., III, was tired because of the long drive, and that the evaluation
occurred during his naptime. Id. at 27.
Dr. O’Hara opined that the benefits of keeping Children with T.L. for
adoption outweighed any detriment from terminating the parental rights of
Father. Id. at 27. Dr. O’Hara made this recommendation without
conducting any evaluation of Father, as Father had not appeared for his
evaluations. Id. at 27. Dr. O’Hara based his recommendations on
information he received from CYF and his own research regarding Father’s
extensive criminal history, which he recounted for the court. Id. at 27-29.
Father’s counsel stipulated that Dr. O’Hara relied on the record regarding
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Father’s criminal history, and that there was no need for Dr. O’Hara to
testify as to the complete criminal history. Id. at 29.
Dr. O’Hara was concerned that in 2008, Father had engaged in
fighting, which was a risk factor for future aggressive behaviors. Id. at 30.
Dr. O’Hara explained that Father’s failure to appear for the evaluations made
it difficult for him to make a recommendation as to whether Father is able to
appropriately care for the needs and welfare of Children. Id. at 31. Dr.
O’Hara was concerned that Father had been convicted of numerous assaults,
pled guilty to multiple terroristic threat charges, and had significant
convictions related to drug activity. Id. Based on Father’s criminal history,
Dr. O’Hara opined that prior to unsupervised visitation with Children, Father
would have to make significant progress with regard to anger management
and substance abuse counseling. Id. at 32. In preparing his report, Dr.
O’Hara considered information from CYF that Father had not visited Children
for some time. Id. Dr. O’Hara made his recommendation with a reasonable
degree of scientific certainty. Id.
On cross-examination by Father’s counsel, Dr. O’Hara stated that he
did not know that Children would not be attending the September 30, 2015
interactional evaluation. Id. at 32-33. Dr. O’Hara was not provided any
information that Mother made false reports against Father that resulted in
arrests but with some charges dismissed. Id. at 37-39. Dr. O’Hara did not
know the reason why Father absconded from a halfway house in 2013. Id.
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at 39. Dr. O’Hara stated that a person involved with drugs could be
rehabilitated, but would need to commit to participating in services over a
period of time. Id. at 40. Additionally, Dr. O’Hara would need to consider
the coping skills of the individual, his employment status, any history of
domestic violence, and any probation violations. Id. He stated that in his
experience, parenting and domestic violence programs are of limited use and
effectiveness. Id. at 42.
In response to cross-examination by Mother’s counsel, Dr. O’Hara
testified that his recommendation was based on the collateral information,
but he had no evidence that either parent was in a position to appropriately
care for Children’s needs and welfare. Id. at 46. In contrast, he had
evidence that Children were exhibiting “secure components of secured
passions” with their kinship foster parents and were in a stable placement,
and that their kinship foster parents were exhibiting several positive
parenting skills. Id.
On further examination by counsel for Children, Dr. O’Hara testified
concerning the impact of the removal from Mother on Children. Id. at 51.
On re-cross-examination by Father’s counsel, Dr. O’Hara stated that he did
not have any information that Father was informally visiting with Children or
that Father provided gifts for Children. Id. at 58-59. Dr. O’Hara clarified for
the court that he understood from CYF that there had been no visits between
Children and their biological parents, but he was unaware of any informal
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visitation between Father and Children. Id. at 59. On re-cross-examination
by Mother’s counsel, Dr. O’Hara testified that he did not have any concerns
about the development of the Children. Id. at 60. In response to further
questions by counsel for the Children, Dr. O’Hara testified that if a child has
a secure attachment with a caregiver or a parental figure, the issues the
child has with another caregiver, parent, or parental figure may be
mitigated. Id. at 62. Dr. O’Hara stated that had he known about informal
visitation between Father and Children, his opinion would not change. Id.
On additional re-direct by counsel for CYF, Dr. O’Hara testified that it would
have been beneficial for Father to attend his individual evaluation, as he
would have gathered more data upon which to base his opinion and
recommendations. Id. at 63.
Father testified that after his release on November 1, 2012, from the
Allegheny County Jail to a halfway house, Renewal Center, he absconded
and went on the run beginning January 26, 2013, and ending on March 11,
2013. N.T. at 163-67. Father claimed that he left Renewal Center because
he believed that Children were in danger from Mother’s drunkenness and
inappropriate people in Mother’s home. Id. at 163-65. Father claimed that
while on the run, he saw Children twice at their maternal grandmother’s
home, and that he made certain they had appropriate clothing for the
season and brought them food. Id. at 165-66. Father was re-incarcerated
on March 11, 2013, until September 11, 2013. Id. He was released to
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Gateway Braddock to complete the requirements he failed to fulfill at
Renewal Center because he had absconded. Id. at 167-69. Father testified
that he completed a 45-day violence prevention class at Renewal Center, but
did not have the certificate of completion, as he absconded from Gateway
Braddock. Id. at 169-70.
Regarding his contact with CYF, Father testified that he had contact
with CYF when he was in Renewal Center in 2012. Id. at 171. After Father
absconded from Renewal Center and was re-incarcerated at SCI-Pine Grove,
he next had contact with CYF in August of 2013. Id. He received a letter in
July or August of 2013 informing him that a counselor could be present, via
video, for a court conference. Id. Father stated that he was not
transported to court for the conference and did not participate via video. Id.
Father testified that he next heard from CYF in February, March, and April of
2015. Id. at 172.
Father stated that he was released from prison on September 11,
2013, and then was in Gateway Braddock for approximately one month. Id.
at 171-72. Father explained that Mother contacted the police, and accused
him of punching her in the face at a bus stop. Id. at 172-73. Father then
failed to report to Gateway Braddock, was placed on the absconders list in
October of 2013, and was on the run for the entire year of 2014, until he
was arrested on January 8, 2015. Id. at 172-73. Father claimed that while
on the run during 2014, he informally visited Children at the home of their
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maternal grandmother, and would purchase clothing, food, toys, and holiday
items for them. Id. at 173-74. Father explained that he was taken into
custody in January of 2015 while he was doing construction work “under the
table.” Id. at 175.
Father testified that he was unaware of his Family Service Plan (“FSP”)
goals until a conference held in March of 2015. Id. Father stated that he
received paperwork from Ms. Tuminello from March 2015 until April 2015.
Id. at 175-76. Father had admitted into evidence, as Father’s Exhibit 1,
photographs of his home. Id. at 176.
Father shares his home with his fiancée, A.P., and her two children.
Id. at 177. When the trial court ordered Father to refrain from domestic
violence, Father engaged in a cognitive behavior therapy class as a
requirement of his parole from prison. Id. Father claimed that he informed
Ms. Tuminello that he had a drug and alcohol evaluation at Renewal Center,
and that she responded that she would need to verify that information with
Father’s parole officer. Id. at 178-79. Father testified that in July of 2015,
he told Ms. Tuminello that he was willing to do parenting classes, but asked
if she could set up an evening time, so that he could work. Id. at 179-80.
Father stated that he did not receive a response from Ms. Tuminello, and
that the only notices that he received from Ms. Tuminello in the mail related
to past proceedings. Id. at 180.
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The trial court ordered Father to visit with Children twice monthly. Id.
Father’s first visit, in August of 2015, was set up for Lexington Center, which
has no security. Id. at 181. Father’s second visit was scheduled to occur at
a McDonald’s restaurant, but Father claims he was told the visit would occur
at an incorrect restaurant. Id. Father’s visits through September were
delayed by his incarceration on charges that he assaulted Mother on August
18, 2015. Id. at 182-83. Mother failed to appear in court to testify and
support the charges. Id. at 183. Father testified that Mother has brought
more than seventy charges against him, and that she never comes to court.
Id. Father stated that he did not want Children to visit him in jail because
he does not want them to see him incarcerated. Id.
Father explained that he did not attend the interactional evaluation
with Children and Dr. O’Hara because Ms. Tuminello told him that Children
had not been transported there. Id. at 184-85. Father claimed that he sat
outside of Dr. O’Hara’s office. Id. Father denied any drug or alcohol issues.
Id. at 185. Father also testified that his FSP objectives included staying out
of trouble, but that he finds it difficult to comply when Mother makes false
reports to police about him. Id. at 185-86. Father stated that he has been
incarcerated for criminal conspiracy, selling drugs, possessing drugs with the
intent to deliver and manufacturing, and receiving stolen property for a
handgun police found in a residence when they did a drug raid. Id. at 186.
Father testified that the remainder of his incarcerations were because Mother
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made false reports about him to police and because he left the halfway
house to care for Children. Id. Father stated that he maintained contact
with CYF, as required by his FSP objectives, but it was a “hassle” because
Ms. Tuminello is always on vacation. Id. at 186-87.
Father testified that he is employed, and works until 4:30 p.m. Id. at
187. Father stated that his last visit was on September 26, 2015, and that
he had requested additional visits. Id. at 188-89. Father stated that he had
played games with Children and brought them snacks when he visited them
at Lexington Center. Id. at 190-91. The second visit occurred at a
McDonald’s restaurant. Id. at 192. Father testified that Children know him
as their father, and that they love him. Id. Father explained that he will
complete his probation and parole term on April 2, 2016, and that he has
not been in any criminal trouble since his drug charges, aside from false
reports filed by Mother. Id. at 193-200. He stated that he no longer sells
drugs. Id. at 194.
On cross-examination by counsel for CYF, and also by counsel for the
Children, Father testified that he believed that his parental rights were
already terminated prior to 2015. Id. at 203, 218. He stated that Mother
continuously harassed him by calling his telephone multiple times. Id. at
206-07. Father explained that he does not “believe in” attending criminal
court proceedings with a public defender, so he had to work. Id. at 201. He
stated that he did not attend permanency review hearings because he knew
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he would be arrested on a warrant if he entered the courthouse. Id. at 208.
On cross-examination by counsel for Children, Father stated that while he
was on the run in 2014, he would see Children “once or twice” a month. Id.
at 211-21. Father blamed Ms. Tuminello and CYF for not setting up
domestic violence and parenting classes for him to attend around his work
schedule. Id. at 215-216. Father stated that he made efforts to contact
CYF between his release from prison on June 25, 2015, and his re-
incarceration in September of 2015. Id. at 216-17. Father also testified
that he gave Children bicycles and that A.P. delivered them. Id. at 222.
On October 15, 2015, the trial court entered its orders terminating
Father’s parental rights to Children pursuant to Section 2511(a)(2), (5), (8),
and (b) of the Adoption Act. On November 12, 2015, Father timely filed
notices of appeal along with concise statements of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On November 23, 2015,
this Court, acting sua sponte, dismissed the appeal at Docket No. 1781 WDA
2015 as duplicative.
In his brief on appeal, Father raises four questions for this Court’s
review, as follows:
I. Whether the Trial Court erred and/or abused its
discretion in finding that the Office of Children, Youth and
Families met their burden of proof and proved by clear and
convincing evidence that the parental rights of J.W.J.
should be terminated pursuant to 23 Pa.C.S.A. §
2511(a)(2), (5), (8)?
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II. Whether the Trial Court erred and/or abused its
discretion in finding that the Office of Children, Youth and
Families met their burden of proof and proved by clear and
convincing evidence that the parental rights of J.W.J.
should be terminated pursuant to 23 Pa.C.S.A. § 2511(b)?
III. Whether the Trial Court committed fatal and reversible
error and/or abused its discretion by allowing evidence
over the objection of Father’s [c]ounsel by Dr. Terry
O’Hara to testify to matters of which he had no basis and
were based on speculation?
IV. Whether the Trial Court committed fatal and reversible
error and/or abused its discretion in overruling the
objection of Father’s [c]ounsel regarding testimony from
Dr. Terry O’Hara regarding needs and welfare of the
children prior to an establishment that grounds to
involuntarily terminate Father’s parental rights under 23
Pa.C.S.A. 2511 §§ [sic] (a)(2), (5), (8) were proved by
clear and convincing evidence?
Father’s Brief at 1.
With regard to Section 2511(a)(2), Father contends that CYF failed to
prove by clear and convincing evidence that he did not have the capacity to
or could not remedy the conditions that led to the removal of Children.
Father’s Brief at 8, 23. Father states that Children were removed from
Mother, who was their primary caretaker, and that he was incarcerated
during most of CYF's involvement with the family. Id. Father asserts that
his repeated incarceration was the barrier to his caring for Children. Id. at
8. He states that Mother caused many of his prior incarcerations because he
was protecting Children and that Mother had issues with mental health and
alcohol. Id. at 3, 8-9, 23. Father contends that he testified credibly that
Mother often called the police fabricating events to have him arrested, and
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that she harassed him. Id. at 9, 23. Thus, Father contends that he is
ready, willing, and able to care for Children.
In reviewing an appeal from an order terminating parental rights, we
adhere to 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 by
the record. In re: R.J.T., 608 Pa. 9, 26-27, 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 the court’s legal conclusions
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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 S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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:
[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)).
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). The trial court terminated Father’s parental rights under Section
2511(a)(2), (5), (8), and (b). We will focus on Section 2511(a)(2) and (b),
which provides 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:
* * *
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to
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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 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.
This Court has explained that the focus in terminating parental rights
under Section 2511(a) is on the parent, but under Section 2511(b), the
focus is on the child. In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008)
(en banc).
Our Supreme Court set forth our inquiry under Section 2511(a)(2) as
follows:
[Section] 2511(a)(2) provides [the] statutory ground[] for
termination of parental rights where it is demonstrated by
clear and convincing evidence that “[t]he 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.” . . .
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[The Supreme Court] has addressed incapacity sufficient
for termination under § 2511(a)(2):
A decision to terminate parental rights, never to be
made lightly or without a sense of compassion for
the parent, can seldom be more difficult than when
termination is based upon parental incapacity. The
legislature, however, in enacting the 1970 Adoption
Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit
as one who refuses to perform the duties.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986),
quoting In re: William L., 383 A.2d 1228, 1239 (Pa.
1978).
In re S.P., 47 A.3d at 827.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002). A parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous. Id.
In In re S.P., our Supreme Court instructed:
incarceration is a factor, and indeed can be a
determinative factor, in a court’s conclusion that grounds
for termination exist under § 2511(a)(2) where the
repeated and continued incapacity of a parent due to
incarceration has caused the child to be without essential
parental care, control or subsistence and [] the causes of
the incapacity cannot or will not be remedied.
In re S.P., 47 A.3d at 828.
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After re-visiting its decision in In re R.I.S., 36 A.3d 567 (Pa. 2011),
regarding incarcerated parents, the Supreme Court stated:
we now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the
question of whether a parent is incapable of providing
“essential parental care, control or subsistence” and the
length of the remaining confinement can be considered as
highly relevant to whether “the conditions and causes of
the incapacity, abuse, neglect or refusal cannot or will not
be remedied by the parent,” sufficient to provide grounds
for termination pursuant to 23 [Pa.C.S.] § 2511(a)(2).
[See In re E.A.P., 944 A.2d 79, 85 (Pa. Super. 2008)]
(holding termination under § 2511(a)(2) supported by
mother’s repeated incarcerations and failure to be present
for child, which caused child to be without essential care
and subsistence for most of her life and which cannot be
remedied despite mother’s compliance with various prison
programs). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether
termination is in the best interests of the child, considering
the developmental, physical, and emotional needs and
welfare of the child pursuant to § 2511(b). In this regard,
trial courts must carefully review the individual
circumstances for every child to determine, inter alia, how
a parent’s incarceration will factor into an assessment of
the child’s best interest.
In re S.P., 47 A.3d at 830-31 (some citations omitted).
The trial court made the following findings of fact regarding Father’s
ability to care for Children:
. . . Father has been unable to care for the [C]hildren,
due to his various incarcerations. His criminal history is
quite extensive. In 2007 he pled guilty to harassment and
disorderly conduct. In 2008 he pled guilty to a felony
criminal conspiracy, and manufacture, delivery, possession
with intent to manufacture or delivery [sic], possession
with intent to manufacture or deliver. In 2011, Father was
found guilty of terroristic threats and simple assault and
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resisting arrest. See CYF Exhibit D. See also [N.T.] at
28-29.
He was incarcerated when J.J. was initially adjudicated
dependent. Father was incarcerated between March and
May 2013 and then again from July to August 2013. Id.,
at 107. During the whole of 2014, Father was either
incarcerated or had absconded, whereabouts unknown,
from a half-way house. Id., at 105; 173. He was
incarcerated again from January to June 2015, and then as
recently as September 2015, a month before the TPR
hearing, at which he was present. Id. at 107. There was
little, if any[,] contact, [sic] between the [C]hildren and
their [f]ather. In fact, Father allegedly insisted that the
[C]hildren not visit him while he was incarcerated. Id. at
149.
Family Service Plans (“FSPs’) are created by CYF for
parents in order to facilitate the reunification between
parent and child. CYF utilizes goals to measure progress
with the FSP. See CYF Exhibit E. Although CYF created
FSP goals for Father in 2010 and in 2013, Father argues
that he was not made aware of these goals until he met
with CYF upon his release in July of 2015, before he was
incarcerated again in September 2015. Id., at 122.
Trial Ct. Op. at 2-3.
The trial court addressed Father’s argument regarding Section
2511(a)(2) as follows.
To begin with, the [C]hildren – nearly four and two
years old at the time of the TPR hearing – have never been
in Father’s care. Father was largely incarcerated or on
[the] run from probation and CYF during the vast majority
of this case. He did not attend permanency review
hearings because he knew he would be picked up on a
warrant if he entered the court house. [N.T., 10/14/15,]
at 208. Father claims that he informally visited the
[C]hildren at their maternal grandmother’s home; and
when he did, he parented the [C]hildren by clothing and
feeding them. See [N.T.], at 166-167. This testimony is
not particularly credible, nor [sic] even persuasive. He
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only visited them twice between January and March 2013.
Id. At most, even if this [c]ourt was to believe Father, he
only visited the [C]hildren “once or twice a month” during
all of 2014. None of these informal visits are [sic]
verifiable.
Father claims that his criminal history is behind him, but
the facts show anything but. He testified that his days of
selling drugs are over. Id., at 194. He argues that any
violence he perpetrated against Mother was falsely
reported, merely Mother’s ploy of getting him in trouble.
After an incident where he allegedly punched Mother at a
bus stop, Father did not turn himself in upon learning that
police would be going to his place of work to arrest him.
Father testified that he “doesn’t believe in” going to court
proceedings for a criminal matter with a public defender.
Id., at 201. Instead, he went on [the] run from the police
so he could work to retain funds to hire a private counsel.
Id.
His primary argument is that CYF did not adequately
help him reunify with the [C]hildren. He said that he did
not have contact with CYF until August 2013. Id., at 171.
At trial, Father seemingly argued that CYF could not prove
its burden, because the agency could not locate him, and
because they could not locate him while he was on [the]
run from his incarceration, they could not give him his his
[sic] Family Service Plan [(“FSP”)]. And because they
could not give him an FSP, he cannot be held responsible
for its non-compliance. But this logic would require the
flawed belief that Father need not be held accountable for
caring for his children if he cannot be found. See [i]d., at
111-114. In actuality, Father had already thought his
rights were terminated. Id., at 203; [sic] 218. Similarly,
because Father chose not to attend Dr. O’Hara’s
psychological evaluation, the expert doctor must be
prevented from “speculating” about Father’s parenting
skills.4
Insofar as the FSP goals are concerned, Father claims
that evidence of his completion of domestic violence
programs was destroyed when he went on [the] run. Id.,
at 170. He also claims that he did not comply with the FSP
goals because he first needed a job. Id., at 179. He also
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blamed CYF for not communicating with him. See, e.g.,
[N.T., 10/14/15], at 215. He stated that the CYF
caseworker was always on vacation. Id., at 187. He said
that calling CYF’s office was a “hassle.” Id. The [trial
court] notes that CYF served Father with the TPR petitions
on March 20, 2015. At least as § 2511(a)(8) is concerned,
[the trial court] cannot 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 petitions.” 23 Pa.C.S.A. § 2511(b). Any and all effort
Father made at all in this case occurred during the short
time between his most recent incarcerations: June to
September 2015. See [N.T., 10/14/15], at 216.
The record is clear that the conditions that led to the
removal of the [C]hildren from their [f]ather’s care have
remained present and unaddressed. Meanwhile, the
[C]hildren have been without parental care during their
entire lives. For the aforementioned reasons, CYF met its
burden and established grounds for termination under §
2511(a)(2); [sic] (5); [sic] and (8).
_______________________________________________
4
Father claims that he actually showed up to Dr. O’Hara’s
office, but left because he did not think his kids were
coming. Id., at 184-185.
Trial Ct. Op. at 5-7 (footnote in original).
We find that the competent evidence in the record supports the trial
court’s credibility and weight determinations regarding Section 2511(a)(2).
Id. Thus, we conclude that the trial court did not abuse its discretion in
terminating Father’s parental rights under Section 2511(a)(2). In re S.P.,
47 A.3d at 826-27.
Next, we review the termination of Father’s parental rights under
Section 2511(b). Our Supreme Court recently stated as follows:
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[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S. § 2511(b). The emotional needs
and welfare of the child have been properly interpreted to
include “[i]ntangibles such as love, comfort, security, and
stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super.
2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
this Court held that the determination of the child’s “needs
and welfare” requires consideration of the emotional bonds
between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53
A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Father claims that he visited with Children, purchased clothes and
bicycles for them, and kept current on matters concerning them. Father
weaves his third and fourth issues into his argument concerning Section
2511(b). Father contends that the trial court improperly allowed Dr. O’Hara
to testify out of order, over his counsel’s objection. Finally, Father argues
that the trial court permitted Dr. O’Hara to speculate in his opinion as to
Father, since Dr. O’Hara did not perform a psychological evaluation of Father
and observe Father in an interactional evaluation with the Children.
The trial court addressed Father’s argument regarding Section 2511(b)
as follows:
Father argues that [the trial court] erred when it found
that termination of his rights would meet the needs and
welfare of the [C]hildren. This contention is noted in
paragraph two of his concise statement. But it is prudent
to first discuss Father’s [fourth issue].
a. Order of testimony
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Father alleges [the trial court] erred when it heard Dr.
O’Hara’s testimony regarding the needs and welfare
element prior to first hearing testimony regarding whether
the grounds have been established. At the trial, [the trial
court] took Dr. O’Hara’s testimony out of order for
purposes of judicial economy. He was only available in the
morning, at the beginning of the trial. It is common for
[the trial court] to accommodate both lawyers’ schedules
and their witnesses[’], upon good cause shown. Counsel
for Father objected to this manner of procedure. [N.T.,
10/14/15, at 15-18]. Opposing counsel noted that “needs
and welfare” consideration is due under § 2511[(a)](5)
and (8). Id. The [trial court] is keenly aware of the TPR’s
two-step legal analysis and is able to segregate its
responsibilities accordingly. Father’s contention is
meritless.
b. § 2511(b) and speculation
Returning focus now to the substance, [the trial court]
found that terminating the [f]ather’s parental rights served
the needs and welfare of the [Children]. The [C]hildren
reside in the home of their pre-adoptive foster parents[,]
T.L. and his wife[,] L.M. See [N.T., 10/14/15], at 102.
T.L. is the [C]hildren’s biological [maternal] uncle. Dr.
O’Hara conducted an [interactional] between the
[C]hildren and their foster parents. See CYF Exhibit A,
Psychological Evaluation Report, dated September 30,
2015. The foster father demonstrated positive parenting
skills. Id. He stated that he loves the [C]hildren as his
own. Id. He also reported to Dr. O’Hara that the
[C]hildren are happy, and that they have no concerning
problems, through [sic] they were cranky during the
evaluation. Id. The foster parents have two other
children. Id. Dr. O’Hara ultimately opined that the
benefits of the adoption, including a sense of safety,
security, and stability, outweigh any possible detriment
associated with the termination of Father’s rights. Id. Dr.
O’Hara’s recommendation is made with a reasonable
degree of psychological certainty. Id.
Father argues that Dr. O’Hara’s testimony was pure
speculation because he never met with Father. This
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contention is noted in Father’s [third issue]. Recall that
Father allegedly went to Dr. O’Hara’s office on the day of
the evaluation, but chose to leave after allegedly learning
that the [C]hildren would not be there. Dr. O’Hara stated
that he was able to form his expert opinion based on
collateral information. This includes, among other things,
Father’s criminal history. It can be argued that Father
conceded Dr. O’Hara’s use of his criminal history as a
criterion when Father stipulated to said criminal record
during Dr. O’Hara’s testimony. See [N.T., 10/14/15], at
29. Dr. O’Hara also based his opinion on the fact that
Father was not visiting the [C]hildren, as reported to him
by CYF. He was not aware that Father was having alleged
informal visits. Id., at 58. Critically, however, Dr. O’Hara
testified that his opinion would not change even if he knew
Father had informal visits. Id., at 62.
Father has never provided for the [C]hildren any of
their developmental, emotional, or physical needs. Dr.
O’Hara’s [sic] testified that he did not have sufficient
evidence that Father is in any position to appropriately
care for the [C]hildren’s needs and welfare. Id. at 46. He
further testified that he does see evidence that the
[C]hildren are exhibiting secure components of secured
passions with their kinship foster parents and they are in
placements that are stable. Id. The [trial court] agrees.
Termination would clearly meet the [C]hildren’s needs and
welfare.
D. CONCLUSION
After a careful review of all the evidence set forth
above, [the trial court] concluded that CYF had carried the
burden of proving by clear and convincing evidence that
Father’s rights should be terminated and that the child’s
best interests would be served thereby. CYF firmly
established the grounds for termination and that
termination best serves the [C]hildren’s needs and welfare.
Furthermore, the [trial court] did not error [sic] by
proceeding with Dr. O’Hara’s testimony, nor was this
testimony speculative in nature. . . .
Trial Ct. Op. at 7-10.
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We have stated that it is appropriate to consider a child’s bond with his
or her foster parents. See In re T.S.M., 71 A.3d at 268. This Court will not
prolong instability for children when it is clear that their biological parents
are unable to provide for their basic needs in the near future. See id. at
270. As we stated in In re Z.P., 994 A.2d 1108 (Pa. Super. 2010), a child’s
life “simply cannot be put on hold in the hope that [a parent] will summon
the ability to handle the responsibilities of parenting.” Id. at 1125. Rather,
“a parent’s basic constitutional right to the custody and rearing of his or her
child is converted, upon the failure to fulfill his or her parental duties, to the
child’s right to have proper parenting and fulfillment of his or her potential in
a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847,
856 (Pa. Super. 2004).
We find that the competent evidence in the record supports the trial
court’s credibility and weight determinations. As the trial court’s 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, we affirm the trial
court’s decision with regard to subsection (b). In re S.P., 47 A.3d at 826-
27. Further, we find that for the reasons expressed by the trial court, the
court did not err in allowing Dr. O’Hara to testify out of order and by
accepting his testimony without (1) an interactional evaluation between
Father and the Children and (2) an individual evaluation of Father.
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Accordingly, we affirm the trial court’s orders involuntarily terminating
Father’s parental rights.
Orders affirmed.
President Judge Gantman joins the memorandum
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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