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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.G.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.S., FATHER
No. 3636 EDA 2016
Appeal from the Order Dated October 28, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000598-2016
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED JUNE 27, 2017
L.S. (“Father”) appeals from the October 28, 2016 order that
involuntarily terminated his parental rights to his minor daughter, C.G.W.
(“Child”). Upon careful review, we affirm.
On April 7, 2015, the Department of Human Services [(“DHS”)]
received a Child Protective Services Report (“CPS”) alleging that
Child was being sexually abused by . . . the Child’s mother
(“Mother”) and paramour. Father had never lived with Mother
and Child and there were no allegations that Father was
responsible for any abuse. Father’s only contact with Child was
that he was named as the Child’s father on Child’s birth
certificate. Father had a history of severe mental illness and had
lived since 2005 at an assisted living center. On April 7, 2015,
DHS obtained an Order of Protective Custody (“OPC”) for Child
and Child was placed in foster care through the Juvenile Justice
Center (“JJC”). On May 8, 2015, Child was adjudicated
dependent by the Honorable Jonathan Irvine. On October 25,
2015, [the Community Umbrella Agency (“CUA”), Turning Points
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*
Retired Senior Judge assigned to the Superior Court.
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for Children (“TPFC”),] held a revised Single Case Plan (“SCP”)
[meeting,] and Father’s objective was that he make his
whereabouts known to CUA. On May 16, 2016, CUA held a
revised SCP meeting and Father’s goals remained unchanged.
On June 7, 2016, Father attended a permanency review hearing
during which Child was ordered to remain [dependent]. Since
the inception of the matter Father failed to cooperate with
CUA/DHS as to notification of his whereabouts. On May 12,
2016, Mother signed an agreement to voluntarily relinquish her
rights to [the] Child. On September 22, 2016, DHS filed the
underlying Petition to Terminate Father’s Parental Rights to [the]
Child.
Trial Ct. Op., 2/15/17, at 2.
“On October 28, 2016, the [trial c]ourt held a hearing on the Petition
to Terminate the Parental Rights . . . Father was present at the hearing and
represented by counsel.” Trial Ct. Op. at 1. During the hearing, DHS
presented testimony that Father had not completed domestic violence
counseling and mental health treatment. N.T., 10/28/16, at 14. Father had
also failed to provide DHS or the CUA with proof of his residence.
“After a full hearing on the merits, the [trial c]ourt found clear and
convincing evidence to involuntarily terminate the parental rights of
Father[.]” Trial Ct. Op. at 1. The decree of involuntary termination of
parental rights, at 2, also allowed “[t]he adoption of the [Child to] continue
without further notice to or consent of [Father]” and authorized DHS “to give
consent to the adoption of [the Child].”
On November 28, 2016, Father, pro se, filed a notice of appeal, even
though he was still represented by counsel. Father did not file and serve a
concise statement of errors complained of on appeal with the notice of
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appeal. See Pa.R.A.P. 1925(a)(2)(i). On December 5, 2016, this Court
ordered Father to file a statement of errors by December 15, 2016. On
December 14, 2016, Father’s counsel sent a letter to this Court, stating that
she had been having difficulty contacting and communicating with Father,
due to his mental health issues and illiteracy; she requested leniency as to
deadlines. On December 20, 2016, this Court remanded this action to the
trial court for thirty days to determine whether Father remained represented
by counsel and whether any additional action was required to protect
Father’s appellate rights.
On January 19, 2016, Father’s same counsel filed the following
statement of errors:
The [trial c]ourt erred in rejecting the Findings of Fact and
Conclusions of Law proposed by [Father] after the hearing in
these proceedings. [DHS] did not meet their burden by clear
and convincing evidence that [Father]’s rights should be
terminated[. Father] was compliant with the objectives stated in
court orders and began visiting [the Child] as soon as he was
able.
In addition, the [trial c]ourt erred in finding that [DHS] exercised
reasonable efforts to provide notice to [Father] and include him
in [the Child]’s case plan. [Father] has resided at [the
Community Organization for Mental Health and Retardation
(“COMHAR”)] since 2003. Neither the facility nor [Father]’s
worker were contacted in attempt to reach him.
Father’s brief raises the following issues for our review:
1. Whether the [t]rial [c]ourt erred by terminating the
parental rights of [Father] under 23 Pa.C.S.A. § 2511(a)(1)[.]
2. Whether the [t]rial [c]ourt erred by terminating the
parental rights of [Father] under 23 Pa.C.S.A. § 2511(a)(2)[.]
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3. Whether the [t]rial [c]ourt erred by finding, under 23
Pa.C.S.A. §2511(b), that termination of [Father]’s parental rights
best serves the [C]hild’s developmental, physical and emotional
needs and welfare[.]
4. Whether DHS failed to use reasonable efforts to reunite
the [C]hild with [F]ather.
Father’s Brief at 4.
Preliminarily, we note that Father did not include any challenge to
DHS’s reunification efforts in his statement of errors complained of on
appeal. An issue that is not included in a Rule 1925(b) statement cannot be
raised for the first time on an appeal to this Court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”), 1925(b); Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005) (“Any issues not raised in a Pa.R.A.P.1925(b) statement
will be deemed waived”). Hence, we may not address his fourth issue.1
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1
The claim in Father’s statement of errors that “the [trial c]ourt erred in
finding that [DHS] exercised reasonable efforts to provide notice to [Father]
and include him in [the Child]’s case plan” was not included among the
issues in his brief to this Court. See Father’s Brief at 4. Even if we construe
that complaint to overlap with (and therefore prevent waiver of) the
reunification issue set forth in Father’s brief, Father still would not be
entitled to relief. CUA contacted Father in August 2015 and informed him
that the Child was in foster care. N.T., 10/28/16, at 24-25. However,
Father did not request any visitation with the Child. Id. at 25. In May
2016, CUA sent Father a letter explaining that his parental rights may be
terminated. Id. at 26. “[P]rior to that time, [Father] confirmed that he had
been receiving correspondence.” Id. at 26. Only after receiving the notice
about the potential termination of his parental rights did Father ask CUA for
contact with the Child. Id. Father presented no evidence contradicting this
history. Thus, Father is not entitled to relief on his claim that reasonable
(Footnote Continued Next Page)
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We consider Father’s remaining issues in light 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, brackets, and
quotation marks omitted).
We summarize all of Father’s arguments together. Father contends
that the evidence was insufficient for subsections (a)(1), (a)(2), and (b).
Father’s Brief at 12. Father argues that he “did not neglect, abuse, or reject
his child, and there is insufficient evidence to show that he lacked the
capacity to parent” the Child. Id. at 14. He refers to testimony that he was
“moderately compliant” with the goals set forth by DHS and there was no
court order obligating him to comply with those goals. Id. at 13. Father
asserts he met with the Child at least “75% of the time” and should not be
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(Footnote Continued)
efforts were not made to contact and include him. Father’s challenge to
DHS’s reunification efforts fails because reasonable efforts at reunification
are not required to support the grant of a petition for termination of parental
rights. In re D.C.D., 105 A.3d 662, 673-74 (Pa. 2014) (citing 42 Pa.C.S. §
6351(f)); In re J.J.L., 150 A.3d 475, 482-83 (Pa. Super. 2016).
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faulted for not completing his parenting classes. Id. at 13-14. Father also
asserts that the trial court “erred by finding, under 23 Pa.C.S.A. § 2511(b),
that termination of [his] parental rights best serves the development of the
[C]hild’s physical and emotional needs and welfare.” Id. at 14. Specifically,
he maintains that he was given insufficient time to form a parental bond
with the Child, and thus his rights were prematurely terminated. Id.
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 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 on the petitioner seeking termination to prove by clear and
convincing evidence that the asserted statutory grounds for seeking the
termination of parental rights are met. In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009). We will affirm if we agree with the trial court’s decision
as to any one subsection of 23 Pa.C.S. § 2511(a), and its decision as to
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Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa. Super.) (en banc),
appeal denied, 863 A.2d 1141 (Pa. 2004); see In re N.A.M., 33 A.3d 95,
100 (Pa. Super. 2011).
Here, we affirm the trial court’s decision to terminate Father’s parental
rights under subsections 2511(a)(2) and (b), which provide:
(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.
23 Pa.C.S. § 2511(a)(2), (b).2
After careful review of the record, the parties’ briefs, and the trial
court’s decision, we affirm on the basis of the trial court opinion by the
Honorable Vincent Furlong. See Trial Ct. Op. at 3-6 (holding that: (1) the
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2
Father also challenges the sufficiency of evidence with respect to
termination under Section 2511(a)(1). Because we affirm the trial court’s
decision under subsection (a)(2), we need not address his other subsection
(a) arguments. See B.L.W., 843 A.2d at 384.
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record demonstrates Father’s ongoing unwillingness to provide care or
control for the Child or to perform any parental duties and his failure to
remedy the conditions that brought the Child into care; (2) Father’s
unwillingness to cooperate with social services as to mental health and other
counselling, as well as his housing in an assisted living program for people
with mental illness, demonstrated Father’s inability, due to his lifelong
mental illness, to remedy the conditions that led to the Child being
adjudicated dependent on May 8, 2015; and (3) the testimony of the DHS
witness was credible that there was no bond between the Child and Father,
so terminating Father’s parental rights would not cause the Child irreparable
harm). Because we discern no abuse of discretion or error of law, we affirm
the order below. See T.S.M., 71 A.3d at 267. The parties are instructed to
include the attached trial court decision in any filings referencing this Court’s
decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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Circulated 06/19/2017 03:24 PM