J-S17001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: V.M.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.C., FATHER :
:
:
:
: No. 3155 EDA 2016
Appeal from the Decree and Order Entered September 12, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000726-2016,
CP-51-DP-0000106-2015
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 20, 2017
K.C. (“Father”) appeals from the decree, entered on September 12,
2016, terminating his parental rights to his female child, V.M.C. (born in
August 2014) (“Child”).1,2 We affirm.
The trial court made the following factual findings:
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1
Although Father also appeals from the order changing Child’s permanency
goal to adoption, he does not challenge that order in his statement of
questions involved or argument section of his brief. As such, Father waived
any challenge to that order. See Pa.R.A.P. 2116(a) and 2119(a).
Accordingly, we affirm the order changing Child’s permanency goal to
adoption.
2
A.P., Child’s mother (“Mother”), also appealed the September 21, 2016
decree and order. Mother’s appeal is addressed at Nos. 3243 EDA 2016 and
3244 EDA 2016
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The family in this case became known to the Philadelphia County
Department of Human Services (“DHS”) on January 9, 2015,
when DHS received a General Protective Services report that
Father and A.P. (“Mother”) used crack cocaine while caring for
Child. On January 13, 2015, DHS visited Mother and Father in
the home of M.P. (“Grandmother”), Child’s maternal
grandmother. DHS implemented a safety plan whereby Child
would remain in the home in Grandmother’s care, and Mother
and Father would move out. Upon further investigation, DHS
discovered that Grandmother was not an appropriate caregiver.
DHS obtained an order for protective custody and removed
Child, placing her in a foster home. On January 25, 2015, Child
was adjudicated dependent and fully committed to DHS custody.
The case was then transferred to a community umbrella agency
(“CUA”) which developed a single case plan (“SCP”) with
objectives for Father. Over the course of 2015 and 2016, Father
repeatedly tested positive for cocaine at the Clinical Evaluation
Unit (“CEU”) and was never compliant with his SCP
objectives. . . .
The goal change and termination [hearing] was held on
September 12, 2016. The CUA case manager testified that
Father’s objectives since the start of this case were to attend
CEU for dual diagnosis assessment and random drug screens,
and attend parenting classes at the Achieving Reunification
Center (“ARC”). The CUA case manager had discussed Father’s
objectives, which also included housing, with him in February
2015.
Father began drug and alcohol treatment soon after, but as of
the date of the [hearing], Father had not successfully completed
treatment. This was because Father’s attendance was
inconsistent and he repeatedly tested positive for drugs. The
CUA case manager updated Father monthly on his objectives.
Father signed releases for his drug and alcohol treatment and
mental health treatment in December 2015. Father was
discharged from drug and alcohol treatment twice, and had to be
re-enrolled. Father tested positive for drugs on July 20, 2016,
showed traces of cocaine and benzodiazepines on other screens,
has tested positive for cocaine, and refused to submit to a
random drug screen on the most recent occasion.
CUA provided Father money to enable him to remain in an
appropriate house, but Father was evicted[.] Father’s only
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income is [Supplemental Social Security Income]. Father
enrolled in mental health treatment at Greater Philadelphia
Health Action (“GPHA”), but is unable to provide CUA or ARC
with documents about his treatment there. In June 2016,
Father’s SCP objectives were expanded to include producing his
GPHA mental health records. Father has signed releases, but
still has not produced the[ records].
Father never progressed to unsupervised visits, and the CUA
case manager rated him minimally compliant. Father attends
monthly supervised visits, and has missed only one. While
Father is appropriate with Child, Child has no trouble leaving
Father when visits end. Child is happy to see his foster parents
when visits end. It would be in Child’s best interest to be
adopted. Child is willing to move on from Father and would
suffer no irreparable harm if his parental rights were terminated.
Child is bonded with her foster parents and calls them “mom”
and “dad”. Father has a relationship with Child, but there would
be no irreparable harm to Child if parental rights were
terminated.
Father testified that he has attended all court hearings because
he wants Child back. Father testified that he is attending GPHA
weekly, but he had previously been discharged. Father testified
that he had a negative drug screen from GPHA for July 20, 2016,
when he tested positive at CEU. Father was unable to explain a
July 16, 2016, positive drug screen from GPHA, or his rejected
random screen at CEU. Father testified that his therapist at
GPHA refused to give him the required treatment records.
Father was discharged from GPHA several times for non-
attendance, and testified that he had no excuse for his
behavior. . . . The trial court [] found that Father was not
credible.
Trial Court Opinion, 11/15/16, at 1-3 (internal citations, footnote, and
certain capitalization omitted; paragraph breaks added).
The procedural history of this case is as follows. On August 12, 2016,
DHS filed a petition to involuntarily terminate Father’s parental rights with
respect to Child. On September 12, 2016, the trial court held an evidentiary
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hearing on the termination petition. Mother and Father were present and
represented by counsel. A child advocate was present and represented
Child. At the conclusion of the hearing, the trial court entered a decree
terminating Father’s parental rights to Child and an order changing her
permanency goal to adoption. This timely appeal followed.3
Father presents five issues for our review:
1. Whether the trial court erred and/or abused its discretion by
terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
§] 2511(a)(1) where [F]ather presented evidence that he
substantially met his [] goals and tried to perform his parental
duties[?]
2. Whether the trial court erred and/or abused its discretion by
terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
§] 2511(a)(2) where [F]ather presented evidence that he has
remedied his situation by taking parenting [classes, receiving]
drug treatment[,] and receiving mental health treatment[?]
3. Whether the trial court erred and/or abused its discretion by
terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
§] 2511(a)(5) where evidence was provided to establish that
[C]hild was removed from the care of [F]ather and [M]other, and
that [F]ather is now capable of caring for [C]hild[?]
4. Whether the trial court erred and/or abused its discretion by
terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
§] 2511(a)(8) where evidence was presented to show that
[F]ather is now capable of caring for [C]hild since he has
completed parenting [classes] and is receiving [drug, alcohol,
and mental health treatment?]
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3
Father filed a concise statement of errors complained of on appeal
(“concise statement”) contemporaneously with his notice of appeal. See
Pa.R.A.P. 1925(a)(2)(i) and (b). On November 15, 2016, the trial court
issued its Rule 1925(a) opinion. All of Father’s issues were included in his
concise statement.
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5. Whether the trial court erred and/or abused its discretion by
terminating [Father’s parental rights pursuant to 23 Pa.C.S.A.
§] 2511(b) where evidence was presented that established
[C]hild had a strong parental bond with [F]ather and had lived
with [F]ather for the first months of her life[?]
Father’s Brief at 7.
We consider all of Father’s issues together as they challenge the
sufficiency of the evidence to terminate his parental rights. We
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
In re C.M.C., 140 A.3d 699, 704 (Pa. Super. 2016) (citations omitted).
“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 K.H.B., 107 A.3d 175, 178 (Pa. Super. 2014) (citation
omitted).
Father argues that the trial court erred in terminating his parental
rights under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). 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). In re
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Adoption of C.J.P., 114 A.3d 1046, 1050 (Pa. Super. 2015) (citation
omitted). We focus our attention on subsection 2511(a)(2). Section 2511
provides, in relevant part:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(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
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.
As this Court has explained:
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
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subsistence necessary for [her] physical or mental well-being;
and (3) the causes of the incapacity, abuse, neglect[,] or refusal
cannot or will not be remedied. 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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (internal
quotation marks and citation omitted).
Father asserts that he remedied the conditions that caused the
placement of Child and he is now able to care for Child. Father avers that he
has substantially completed his goals of attending parenting classes and
engaging in drug, alcohol, and mental health treatment. This argument fails
because Father has not successfully completed drug and alcohol treatment.
Moreover, Father refuses to turn over his mental health records to show that
he is progressing in his mental health treatment.
Father also claims that he can provide a safe home for Child and that
he has the present capacity to care for her. This argument is also without
merit. As noted above, Father continues to use cocaine and
benzodiazepines. Moreover, Father refused to take certain drug tests,
indicating that he is likely using other drugs. Father was also evicted from
his residence because of his failure to pay rent despite CUA providing Father
with rent assistance. Thus, Father cannot, or will not, provide a safe home
for himself and Child.
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Father is correct “that past incapacity alone is not a sufficient basis for
finding present incapacity or refusal.” In re Adoption of A.N.D., 520 A.2d
31, 35 (Pa. Super. 1986), appeal denied, 533 A.2d 710 & 533 A.2d 713 (Pa.
1987). In this case, as in A.N.D., the trial court “combined past evidence of
incapacity with a finding of current incapacity and refusal.” Id. This is
permissible because a parent’s past actions can inform the trial court as to
the parent’s progress and likely future performance. See Matter of
Adoption of G.T.M., 483 A.2d 1355, 1359 & n.4 (Pa. 1984).
After considering the totality of the circumstances, the trial court
determined that DHS proved by clear and convincing evidence that Father
caused Child to be without essential parental care necessary for her well-
being. Moreover, the trial court determined that DHS proved by clear and
convincing evidence that Father cannot or will not remedy his incapacity
which led to Child being without essential parental care. For the reasons set
forth above, we ascertain no abuse of discretion in this determination.
Having determined that DHS satisfied subsection 2511(a)(2), we next
consider section 2511(b)’s requirements. The focus in terminating parental
rights under section 2511(a) is on the parent, but the focus under section
2511(b) in on the child. In re P.Z., 113 A.3d 840, 850 (Pa. Super. 2015)
(citation omitted).
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
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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 []section 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.
C.D.R., 111 A.3d at 1219 (internal quotation marks and citations omitted).
Father argues that there is a bond with Child because she lived with
him for the first months of her life. This argument, however, indicates why
there is no bond between Child and Father. Child was so young at the time
she lived with Father that she was unable to form a meaningful bond with
Father. Father also argues that he continued visiting Child in order to
maintain his bond with her. As noted above, none of Father’s visits were
unsupervised. Child calls her foster parents “mom” and “dad” and has no
problem separating from Father at the conclusion of the visits. Instead,
Child is happy to reunite with her foster parents. Therefore, we ascertain no
abuse of discretion in the trial court’s determination that there was no
meaningful bond between Father and Child.
Furthermore, “[t]he psychological aspect of parenthood is more
important in terms of the development of the child and [his or her] mental
and emotional health than the coincidence of biological or natural
parenthood.” In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008)
(citation omitted). Thus, the trial court may emphasize the safety needs of
the child when evaluating section 2511(b). See In re K.Z.S., 946 A.2d 753,
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763-764 (Pa. Super. 2008). As noted above, Father is a drug addict who
continues to use cocaine and other drugs despite knowing that he is subject
to drug testing. He is unable to maintain consistent housing, even with the
financial support of outside agencies. Therefore, terminating Father’s
parental rights is best for Child’s safety.
After considering the relevant factors, the trial court determined that
DHS proved by clear and convincing evidence that terminating Father’s
parental rights was in Child’s best interest. We ascertain no abuse of
discretion or error of law in this determination. As DHS satisfied section
2511(a)(2) and (b), we affirm the decree terminating Father’s parental
rights as to Child.
Decree and order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2017
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