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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.W.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.F.C. :
:
:
: No. 125 WDA 2016
Appeal from the Order Entered December 18, 2015
in the Court of Common Pleas of Bedford County
Orphans’ Court at No: 23 Adoption 2012
BEFORE: BOWES, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 11, 2016
T.F.C. (“Father”) appeals from the December 18, 2015 order that
involuntarily terminated his parental rights to his son, G.W.C., born in July of
2009 (“Child”). Upon careful review, we affirm.
We summarize the procedural posture of this case as follows. On
October 15, 2012, the Bedford County Children and Youth Services (“CYS”)
filed a petition for the involuntary termination of Father’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). By order dated
May 23, 2014, following a protracted evidentiary hearing, the orphans’ court
denied the petition. On appeals filed by CYS and the Guardian ad litem
(“GAL”), this Court reversed the order, in part, and remanded the case to
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the trial court.1 See In re G.C., ___ A.3d ____, 2015 Pa. Super. Unpub.
LEXIS 1169 (filed April 29, 2015). Specifically, this Court concluded that the
trial court abused its discretion in failing to terminate Father’s parental rights
pursuant to Section 2511(a)(2).2 We remanded the matter “for the trial
court’s application of the appropriate standard in its section 2511(b) bond
analysis.” Id. We stated that, “On remand, the trial court may take
additional evidence, if necessary, to comply with this directive.” Id.
Following that disposition, on September 24, 2015, the trial court held
oral argument with respect to Father’s request for a new bonding study and
the petition for adoption filed by Child’s foster parents, both of which the
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1
In addition, the May 23, 2014 order involuntarily terminated the parental
rights of C.C. (“Mother”), which this Court affirmed. See In re G.C., ___
A.3d ___, 2015 Pa. Super. Unpub. LEXIS 1169 (filed April 29, 2015).
2
Section 2511(a)(2) provides 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.
...
23 Pa.C.S.A. § 2511(a)(2).
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court denied. See N.T., 9/24/15, at 15, 18-22. By order dated December
18, 2015, without taking additional evidence, the trial court involuntarily
terminated Father’s parental rights. Father timely filed a notice of appeal
and a concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i) and (b).
On appeal, Father presents the following issues for our review:
[1.] Whether or not the [t]rial [c]ourt erred or abused its
discretion when it determined that CYS established a legal basis
for terminating the parental rights of the natural father when
there was no evidence presented to the [t]rial [c]ourt that
sufficiently demonstrated that the Father could not parent the
Child[?]
[2.] Whether the [t]rial [c]ourt properly considered the impact
of the termination of [F]ather’s rights in accordance with
[Section] 2511(b) on [C]hild’s emotional well-being, especially in
light of the [t]rial [c]ourt’s acknowledgment that the bond
between [F]ather and [C]hild was not “negative and unhealthy”
and that the [t]rial [c]ourt could not “say that the child will not
be damaged by terminating the relationship” with [F]ather?
[3.] Whether or not the [t]rial [c]ourt erred or abused its
discretion when it declined to order another bonding study
because the failure to do so did not provide the [t]rial [c]ourt
with an updated perspective on the impact of [F]ather’s
extensive use of his visitation rights on the bond between
[F]ather and [C]hild and the impact of terminating that bond on
[C]hild?
Father’s brief at 5.
We consider Father’s issues 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
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by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. 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
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). The
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted statutory grounds for seeking the termination of parental rights
are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
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In this case, based on our disposition in In re G.C., supra, we review
the involuntary termination decree with respect to Section 2511(b) only,
which provides:
(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(b).
This Court has explained as follows.
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.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910
(Pa. Super. 2008) (trial court’s decision to terminate parents’
parental rights was affirmed where court balanced strong
emotional bond against parents’ inability to serve needs of
child). Rather, the orphans’ court must examine the status of
the bond to determine whether its termination “would destroy an
existing, necessary and beneficial relationship.” In re Adoption
of T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). As we
explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
[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
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relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
In addition, in considering the affection a child may have for his or her
natural parents, we have explained as follows.
[C]oncluding a child has a beneficial bond with a parent
simply because the child harbors affection for the parent is
not only dangerous, it is logically unsound. If a child’s
feelings were the dispositive factor in the bonding analysis,
the analysis would be reduced to an exercise in semantics
as it is the rare child who, after being subject to neglect
and abuse, is able to sift through the emotional wreckage
and completely disavow a parent. . . . Nor are we of the
opinion that the biological connection between [the parent]
and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a
parent, to establish a de facto beneficial bond exists. The
psychological aspect of parenthood is more important in
terms of the development of the child and its mental and
emotional health than the coincidence of biological or
natural parenthood.
In re K.K.R.-S., 958 A.2d at 535 (internal citations and quotation marks
omitted).
Moreover, our Supreme Court confirmed that, “the mere existence of a
bond or attachment of a child to a parent will not necessarily result in the
denial of a termination petition.” In re T.S.M., supra. The Court further
stated that, “[c]ommon sense dictates that courts considering termination
must also consider whether the children are in a pre-adoptive home and
whether they have a bond with their foster parents.” Id. at 268. Moreover,
the Court directed that, in weighing the bond considerations pursuant to
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Section 2511(b), “courts must keep the ticking clock of childhood ever in
mind.” Id. at 269. The T.S.M. Court observed that, “[c]hildren are young
for a scant number of years, and we have an obligation to see to their
healthy development quickly. When courts fail . . . the result, all too often,
is catastrophically maladjusted children.” Id.
Instantly, in our prior disposition, we explained that the trial court
denied the involuntary termination of Father’s parental rights based, in part,
on a “positive bond existing between Father and [Child][,]” inter alia. See
In re G.C., ___ A.3d at ____. However, we observed the trial court’s
findings with respect to Dennis Kashurba, a psychologist who performed a
psychological bonding study in September 17, 2012, with an addendum in
March 19, 2013, and whom the court qualified as an expert in child
behavior, as follows.
[Mr. Kashurba] found that [Child] does have an emotional bond
with his biological parents[,] but his bond . . . is at least as
strong with the foster parents and probably a stronger bond as
he has resided with the foster parents for approximately one-half
of his life. Further, greater stability exists with the foster
parents. The addendum report of March 19, 2013[,] was based
on reports by the [CYS] case supervisor. A review of these
documents indicated a behavioral regression on [Child’s] part
....
In re G.C., ___ A.3d at ____. As such, pursuant to In re T.S.M., supra,
we concluded in our prior disposition as follows.
[The trial court] failed to consider and weigh the positive bond it
found between Child and the foster parents, and the stability and
care provided by the foster parents. The trial court’s reliance
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upon Father’s bond with Child, alone, failed to meet the
requirements of section 2511(b).
In re G.C., ___ A.3d at ____.
Turning to Father’s first issue on appeal, he asserts that he is able to
care for Child, and that he has a positive bond with Child. The crux of his
argument is that his conduct does not warrant termination pursuant to
Section 2511(a)(2). Based on our prior disposition, wherein we concluded
that the trial court abused its discretion in failing to involuntarily terminate
his parental rights under Section 2511(a)(2), we do not address Father’s
first issue. See In re G.C., supra.
In his second issue, Father argues that the trial court abused its
discretion in terminating his parental rights pursuant to Section 2511(b).
Father implies that the court failed to consider that a positive bond exists
between him and Child, and the impact on Child of terminating that bond.
We disagree.
The testimonial evidence overwhelmingly demonstrates that
terminating Father’s parental rights will serve the developmental, physical
and emotional needs and welfare of Child pursuant to Section 2511(b).
Indeed, the record supports the trial court’s findings with respect to the
testimony of Mr. Kashurba, supra. In fact, he testified that Child’s “primary
parent/child bond appears to be . . . with the foster parents.” N.T., 8/7/13,
at 105. Mr. Kashurba went on to testify, “that separating the relationship
between [Child] and the foster family with whom he’s resided for more than
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half of his life and where he’s received stability would be much more
detrimental to him than severing the bond with the biological parents.” Id.
at 107. He further explained on cross-examination by the GAL:
There’s going to be a severing of a bond regardless of the
outcome of the [c]ourt. It’s [sic] been my opinion that the
primary emotional bond between child and parents is with the
foster parents who at the time of my evaluation were interested
in adopting him. And I noted on page three of my opinion, the
on-going uncertainty regarding [his] permanency appears to
place him at-risk of serious mental injury in the form of chronic
agitation[.] [The] continuation of [Child’s] uncertainty[]
[regarding permanency] increases the likelihood that it will
seriously interfere with his ability to accomplish age appropriate
developmental and social tasks and increase the potential for the
development of . . . anxiety and/or depression.
Id. at 120. Significantly, Mr. Kashurba testified that, “I do not believe that
severing the bond between the child and his biological parents would have
an adverse effect on the child. On the contrary, I believe the more speedily
that that could have been accomplished, the better off [Child] would have
been.” Id. at 94.
In addition, Peggy Nadenichek, a licensed clinical psychologist,
performed a bonding assessment in this case on May 29, 2013. Her
testimony was consistent with that of Mr. Kashurba. On cross-examination
by the GAL, she testified as follows.
Q. [D]o you think it’s a healthy bond between Child [and his
biological parents]?
A. It’s not a strong bond. . . . There’s a bond there. It’s not a
strong bond as the bond is with the foster parents. . . .
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N.T., 10/8/13, at 78. Further, she testified that, “the longer that [Child] . . .
doesn’t know who his parents are and what’s going on, that’s going to be
damaging for him.” Id. at 77.
The opinions of Mr. Kashurba and Ms. Nadenichek are supported by
the testimony of Kay Fair, the clinical supervisor and outpatient therapist at
the Alternative Community Resource Program, who became Child’s therapist
in January of 2013, up through and including the time of the termination
hearing. Ms. Fair testified that she was treating Child for “problems that he
has related to visitation with his biological parents.” N.T., 5/15/13, at 7. On
the third day of the termination hearing, August 7, 2013, she testified with
respect to her treatment of Child since the second day of the termination
hearing, May 15, 2013. She testified that her appointments with Child occur
on the same day that he visits with his biological parents. N.T., 8/7/13, at
26.
Ms. Fair testified that, since the last hearing in May of 2013, Child has
become “more angry. He’s indicated on several occasions that he’s wanted
the therapy sessions to be done and the visit to be over so he can go home
to his real parents.” Id. at 27. Moreover, Ms. Fair testified that Child refers
to his foster parents as his real parents, and that he is suffering due to his
lack of permanency, as follows.
Q. [C]an you bring us up to date as to the therapy that you are
providing to him . . . ?
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A. Since the May hearing, I’ve been seeing him pretty much
each week whenever he’s had visitation scheduled with his
parents. . . .[3] During the course of that therapy, [Child] has
increased his anger level. He has indicated almost on every
appointment that he’s come in that he’s wanted to return home
and would ask where home is. . . . He has utilized play therapy
and has taken objects like the playhouse down and has [taken]
out . . . all [of] the furniture, all of the people out of the house,
turned it upside down and has said, “I guess I’ll just have to live
by myself. I’ll have to live alone.”
He has begged me to call his foster father and his foster mother
for them to come and pick him up and take him home. One time
. . . when he asked me to do that, I said I didn’t have his foster
parents[’] phone number[,] and he said that maybe Lindsay, the
person who brought him to the visit[,] had the number[.]
[Child] ask[ed] that I go out to the waiting room with him and
we walked out to the waiting room. . . . [Lindsay] wasn’t in the
waiting room and [Child] fell to the floor, put his hands on his
head and buried his face on the floor and just cried.
When he got up he tried to run out of the waiting room and said
he wanted to go to his real mom and dad, [foster mother] and
[foster father]. . . .
Id. at 24-26; see also id. at 41 (Ms. Fair testified that Child “has repeatedly
called his real family the foster family whenever I’ve met with him”).
Ms. Fair testified that, “the prolonged confusion for [Child] about
where is [his] permanent home is very confusing to him and detrimental to
him.” Id. at 28. Indeed, she testified that Child is diagnosed with
generalized anxiety disorder due to “his anxiety about leaving his home that
he feels safe in with the foster parents.” Id. at 33. As such, Ms. Fair agreed
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3
The record reveals that, since January of 2013, Child has been visiting with
his biological parents once per week. N.T., 10/8/13, at 29.
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on cross-examination that granting Child a permanent home would help his
anxiety and anger issues. Id. at 35. However, she testified that, in her
opinion, Child’s permanent home should not be with his biological parents.
Ms. Fair explained that, “I don’t believe that it would emotionally have
[Child] feel safe and secure if he were placed back with his biological parents
since he has identified his foster parents as those who do provide him safety
and security.” Id. at 36-37. Ms. Fair described Child’s anxiety with respect
to visits with his biological parents as follows on cross-examination by
Father’s counsel:
Q. And he never expressed to you . . . that he is afraid or less
secure with [Father] or [Mother] for that matter, has he?
A. Yes, he has expressed anxiety. There’s a lock on my door.
He had locked that door on different occasions and said he did
not want to go for a visit [with his biological parents]. He’s done
that on July 18, he’s done that . . . on May 23, he’s done that on
April 25, he’s repeatedly closed the door and not wanted to go
on April 4. He’s tried to hold the door shut so that the worker
couldn’t open the door to take him for the visit. And [Child]
voiced on April 4 not feeling safe either with the biological
mother or father and only feeling safe at [the foster parents’]
house.
Id. at 43.
In addition, Bobbi Howsare, Child’s CYS caseworker since 2010,
testified that Child will not be harmed by terminating Father’s and Mother’s
parental rights. She testified as follows.
[Child] foresees his home and his security, his bond, his
placement with his foster parents, as his home. It seems to
[Child] that he has people that he visits and he does know that
their mom and dad but he doesn’t refer to them as mom and
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dad anymore. He’s stressed by coming to see them. I see more
and more stress in him[,] and I feel that he would be more
secure with a consistency of just having his family . . . rather
than not knowing where he’s going to be or what he’s doing.
N.T., 5/31/13, at 159. Similarly, Natasha Crissey, the family support
specialist from the Alternative Community Resource Program, has been
involved with this family since 2011, and she supervises Child’s visits with
his biological parents. Ms. Crissey described Child’s bond with Father like
that with an uncle, rather than like that with a parent. N.T., 10/8/13, at 36.
The foregoing testimonial evidence overwhelmingly demonstrates that
Child’s lack of permanency is having a detrimental effect on his emotional
well-being. Child is currently seven years old. He has resided with his foster
parents since August of 2012, when he was three years old, and they desire
to adopt him. Based on the record evidence, which we have considered in
light of our well-established case law, we conclude that Child’s permanency
is long overdue. As such, we discern no abuse of discretion by the trial court
in terminating Father’s parental rights pursuant to Section 2511(b). Father’s
second issue fails. See In re B., N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (stating that, “a parent’s basic constitutional right to the custody and
rearing of his 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”).
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It follows that we reject Father’s third and final issue, wherein he
argues that the court abused its discretion in not ordering another bonding
study between him and Child. Following our prior disposition, Father
requested an updated bonding study, and the trial court held an oral
argument on the request on September 24, 2015. See N.T., 9/24/15, at 8.
Counsel for CYS responded on the record in open court that our prior
disposition did not require the trial court to take additional evidence, and
that additional evidence would only be necessary if the bonding evaluations
were incomplete. Id. at 12. Further, counsel for CYS argued that the
purpose for this Court’s remand was for the trial court to consider “the other
factors . . . presented [by] the testimony” in addition to the undisputed
“positive bond” between Child and Father. Id. at 14. In essence, counsel
for CYS argued that the bonding evaluations presented during the
termination hearing were sufficient for the trial court to perform a proper
Section 2511(b) analysis. Id. at 12. The trial court agreed and denied
Father’s request on the record in open court. Id. at 15, 18.
Upon careful review, we discern no abuse of discretion by the trial
court in rejecting Father’s request for an updated bonding evaluation.
Indeed, the testimony of Mr. Kashurba and Ms. Nadenichek, the
psychologists who performed separate bonding assessments, was sufficient
for the trial court to comply with this Court’s directive “to consider and weigh
the positive bond it found between the Child and the foster parents, and the
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stability and care provided by the foster parents.” In re G.C., ____ A.3d at
____. Moreover, in In re K.K.R.-S., supra, this Court held that the trial
court is not required by statute or precedent to order a formal bonding
evaluation be performed by an expert. Id. at 533. As such, we conclude
that the testimony of Child’s counselor, Ms. Fair, and his CYS caseworker,
Ms. Howsare, was sufficient for the trial court to properly consider and weigh
the bond between Child and his foster parents. Father’s third issue fails.
Accordingly, we affirm the order involuntarily terminating Father’s parental
rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2016
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