J-S40016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.C.L., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.J.L., FATHER :
:
:
:
: No. 3556 EDA 2016
Appeal from the Decree October 14, 2016
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000424-2016
BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED JUNE 30, 2017
C.J.L., (“Father”) challenges the final decree involuntarily terminating
his parental rights to his son, L.C.L. (“Child”) pursuant to the Adoption Act,
23 Pa.C.S. § 2511(a) and (b). We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Father and A.B. (“Mother”) are the natural parents of Child. Mother
had been involved with the Department of Human Services (“the Agency”)
since 2012, when Child Protective Services reported that Child’s half-sisters,
E.H. and C.H., had been abused while in the custody of Mother and Father.
The girls’ biological father was incarcerated at the time. Both sisters were
placed in foster care.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S40016-17
On July 22, 2013, Mother pled guilty to charges arising from the abuse
of her daughters and she served eighteen months in prison. Child was born
in January 2015, but Mother neglected to inform the Agency of Child’s birth.
Rather, the Agency only became aware of Child’s existence as a result of a
routine visit involving E.H. and C.H. The Agency obtained an order of
protective custody on April 17, 2015, and, the trial court ordered temporary
commitment of Child to the Agency. The court granted Mother and Father
supervised weekly visits.
On May 7, 2015, the court adjudicated Child dependent, and made a
finding of aggravated circumstances against Mother based on her criminal
convictions. On September 11, 2015, Mother voluntarily relinquished her
parental rights to E.H. and C.H.1
On May 12, 2016, the Agency filed a petition to terminate both
Father’s and Mother’s parental rights (“TPR petition) pursuant to 23 Pa.C.S.
§ 2511(a)(1),(2),(5), (8), and (b). At the same time, in the dependency
action, the Agency requested a change in the permanency goal from
reunification to adoption.
The trial court held its first hearing on June 24, 2016. Because
Mother’s counsel was unavailable, the court heard testimony only with
____________________________________________
1
We affirmed the termination of the girls’ biological father’s rights in an
unpublished memorandum filed on August 2, 2016. See In the Interest of
E.C.H., No. 476 EDA 2016.
-2-
J-S40016-17
regard to Father. The Agency presented the testimony of Dr. Erica Williams,
who performed a parenting capacity evaluation of Father, and the testimony
of the Agency’s caseworker. In addition, the trial court heard testimony
from a caseworker who observed visits between Father and Child in the
kinship care foster home. Father testified on his own behalf. At the
conclusion of the hearing, the court deferred ruling on the TPR petition until
hearing the testimony regarding Mother.
Newly-appointed counsel appeared on Mother’s behalf at an
evidentiary hearing held on October 14, 2016. The Agency once again
presented testimony from Dr. Williams and its caseworker. Mother testified
on her own behalf and presented the testimony of W.R, the kinship foster
parent. After hearing argument from counsel, the court entered its decree
terminating both Father and Mother’s parental rights pursuant to 23 Pa.C.S.
§§ 2511(a)(2), (5), (8), and (b).2 The trial court also entered an order
changing the permanency goal from reunification to adoption. Father filed
this timely appeal.3
ISSUES ON APPEAL
____________________________________________
2
Although the decree also lists subsection (a)(1), it is clear from our review
of the record that the trial court did not terminate Father’s parental rights on
this basis.
3
We affirmed the termination of Mother’s parental rights in an unpublished
memorandum filed on May 19, 2017. See In the Interest of L.C.L., No.
3516 EDA 2016.
-3-
J-S40016-17
Father raises the following issues on appeal:
1. Did the Trial Court err in terminating [Father’s] parental
rights under 23 Pa.C.S.A. Section 2511(a)(2), 2511(a)(5),
and 2511(a)(8)?
2. Did the Trial Court err in finding that termination of [Father’s]
parental rights best served [Child’s] developmental, physical
and emotional needs under 23 Pa.C.S.A. Section 2511(b)?
3. Did the Trial Court err in changing [Child’s] goal to adoption?
Father’s Brief at vi. Because evidence regarding the permanency plan goal
change and TPR petitions substantially overlap, and the legal standards to be
applied are the same, we will first address Father’s termination issue. See
In the Interest of R.J.T., 9 A.3d 1179, 1191 n.14 (noting that courts
should combine hearings on these two petitions since the evidence
substantially overlaps and allows for faster permanency for the child).
LEGAL ANALYSIS
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.” In re Adoption of
S.P., 47 A.3d 817, 826 (Pa. 2012). “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. We may reverse a decision based on an abuse
of discretion only upon demonstration of “manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. We may not reverse, however,
merely because the record would support a different result.” Id. at 827.
-4-
J-S40016-17
We give great 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). The Orphans’ Court is free to believe all, part, or
none of the evidence presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. In re M.G., 855 A.2d
68, 73-74 (Pa. Super. 2004). In addition, in order to affirm the termination
of parental rights, this Court need only agree with any one subsection under
Section 2511(a). See In re B.L.W. 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc).
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). We
have explained that “[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. (citations omitted).
TERMINATION PURSUANT TO SECTION 2511(a)(2)
Under Section 2511(a)(2), “the petitioner for involuntary termination
must prove (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) [that] such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) [that] the
causes of the incapacity, abuse, neglect or refusal cannot or will not be
-5-
J-S40016-17
remedied.” In re A.S., 11 A.3d 472, 479 (Pa. Super. 2010) (citation
omitted).
This Court has defined “parental duties” in general as the obligation to
affirmatively and consistently provide safety, security and stability for the
child:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A
child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely
passive interest in the development of the child. Thus, this
Court has held that the parental obligation is a positive duty
which requires affirmative performance. This affirmative duty …
requires continuing interest in the child and a genuine effort to
maintain communication and association with the child. Because
a child needs more than a benefactor, parental duty requires
that a parent exert himself to take and maintain a place of
importance in the child’s life.
In re B., N.M., 856 A.2d 847. 855 (Pa. Super. 2004) (citations and
paragraph breaks omitted). “Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, his parental rights may be
forfeited.” A.S., 11 A.3d at 481 (citation omitted).
And most importantly, “parental rights are not preserved by waiting
for a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with her physical and
emotional needs.” In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004)
(citations omitted).
-6-
J-S40016-17
In the instant case, the trial court properly concluded that the Agency
presented clear and convincing evidence to establish all three elements of
Section 2511(a)(2). It reasoned:
Child has been in [the Agency’s] care since he was three months
old. Father’s remaining objectives in this case were to address
the abuse of [E.H. and C.H.] and build his capacity to safely
parent Child. Father has always maintained that no child abuse
occurred. He waited for Mother to be released from prison
following her guilty plea for child abuse, then had Child with her.
Father has proudly maintained that he was a caregiver for [E.H.
and C.H.], who were not related to him. He was their caregiver
when they were abused, but is unable to see how the case of
[E.H. and C.H.] impacts his ability to safely parent [] Child.
Father testified that Mother was tricked into confessing, and that
no child abuse occurred. While he has changed therapists in
accord with the recommendations of the [parenting capacity
evaluation], he has not provided any documentation from the
ten months of treatment with his new therapist. Father is
unable to demonstrate that he is acknowledging the child abuse
and his own role in caring for [E.H. and C.H.] Because Father is
not able to acknowledge or prevent future child abuse, he does
not present the capacity to parent. Father visits Child five times
a week, but Child would not suffer any irreparable harm if
Father’s rights were terminated. For the life of this case, Father
has denied that [E.H. and C.H.] were abused. He maintained
this denial when he testified at trial. Child needs permanency,
which Father cannot provide. Father’s consistent denial has
demonstrated that he is unwilling to remedy the causes of his
incapacity to parent in order to provide Child with essential
parental care, control or subsistence necessary for his physical
and mental well-being. Termination under [Section 2511(a)(2)]
was proper.
Trial Court Opinion, 12/21/16, at 4-5 (citations to notes of testimony
omitted).
Father argues that the trial court erred in terminating his parental
rights and changing the goal to adoption because he “had been present in
-7-
J-S40016-17
[Child’s] life from birth.” Father’s Brief at 2. He further asserts that he has
appropriate housing, and that he has “always been ready, willing and able to
care for [Child].” According to Father:
It is clear that this 18 month old child is bonded with
[him], and that [he] can keep [Child] safe and meet all his
needs. Despite the fact that a parenting capacity evaluation
done in December of 2015 theorized that [Father] would not be
able to keep [Child] safe because he did not believe that
[Mother] had abused the older two children, in reality [he] had
kept [Child] safe for over five months while in his care. This is
and of itself, proved the theory of the parenting capacity
evaluation wrong.
Id. at 3. Finally, Father refers to the caseworker’s testimony that he would
have left Child with him under Agency supervision but the caseworker’s
“chain of command did not agree.” Id.
Our review of the record supports the trial court’s conclusion that
Father is incapable of parenting due to his consistent denial regarding the
physical abuse suffered by E.H. and C.H. while they were in his care. It was
for the trial court, as a matter of credibility, to determine the weight to be
given the expert’s testimony, as well as that of the caseworker and Father.
In re M.G., supra. Moreover, our review of the record reveals that, while
the caseworker initially felt that Father could safely parent Child, his opinion
changed once he read the parenting capacity evaluation. See N.T., 6/24/16,
at 49. Therefore, the record supports that trial court’s conclusion that the
Agency has proven by clear and convincing evidence that termination of
Father’s parental rights to Child is justified pursuant to Section 2511(a)(2) of
-8-
J-S40016-17
the Adoption Act, and we need not consider the other bases for termination
under this section. See B.L.W., supra.
TERMINATION PURSUANT TO SECTION 2511(b)
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the effect that terminating the
parental bond will have on the child. Section 2511(b) “focuses on whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of the child.” In re: Adoption of J.M.,
991 A.2d 321, 324 (Pa. Super. 2010).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
the orphans’ court must also discern the nature and status of the parent-
child bond, with utmost attention to the effect on the child of permanently
severing that bond. Id.
In cases where there is no evidence of a bond between a parent and a
child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d
753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case. Id. at 763.
Moreover:
We have emphasized that while a parent’s emotional bond with
his or her child is major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
considered by the trial court when determining what is in the
best interest of the child. The mere existence of an emotional
-9-
J-S40016-17
bond does not preclude the termination of parental rights.
Rather, the trial court must examine the status of the bond to
determine whether its determination would destroy an existing,
necessary, and beneficial relationship.
In re A.D., 93 A.3d 888, 897-98 (Pa. Super. 2014) (citations and quotation
marks omitted). Finally, “[i]n addition to a bond examination, the court may
equally emphasize the safety needs of the child under subsection (b),
particularly in cases involving physical or sexual abuse, severe child neglect
or abandonment, or children with special needs.” Id. at 898 (quoting In re
A.S., 11 A.3d 473, 483 (Pa. Super. 2010)).
In the instant case, the trial court determined that the evidence
presented at the TPR hearing established that termination of Father’s
parental rights would not irreparably harm Child. It reasoned:
Father has visited Child consistently over the life of this
case. Child has a relationship with Father, but [he] rarely visits
Child separately from Mother. Child would not suffer any
irreparable harm if Father’s rights were terminated, since Child is
so young. It is in Child’s best interests to terminate Father’s
parental rights so [Child] may be adopted. Although Child has a
relationship with Father, termination of Father’s rights would not
destroy a necessary and beneficial relationship since Father is
not able to safely parent Child. Child is less than two years old,
and has been in [Agency] custody for sixteen months, the vast
majority of his life. Any remaining bond with Father is
attenuated. [The Agency’s] witnesses were unwavering and
credible. Consequently, the court did not abuse its discretion
when it found that it was clearly and convincingly established
that termination of Father’s parental rights would not destroy an
existing beneficial relationship.
Trial Court Opinion, 12/21/16, at 8.
Father cites to his own testimony and that from the social worker to
assert that he enjoys a strong bond with Child and, although a caseworker
- 10 -
J-S40016-17
testified that no irreparable harm would be caused to Child given his young
age, “common sense tells us otherwise.” Father’s Brief at 9. According to
Father, termination of his parental rights “could not be in the best interest of
[Child] as it would terminate the only source of love, comfort, security and
stability that [Child] has ever known.” Father’s Brief at 10.
Once again, as a matter of credibility, the trial court did not find
Father’s testimony persuasive. Indeed, as noted above, the trial court
expressly credited the testimony presented by the Agency. We cannot
disturb these determinations. See In re M.G., supra. Moreover, the
Agency presented evidence that Child is safe in kinship care where all of his
needs are met. See N.T., 6/24/16 at 60. Thus, we conclude that the trial
court did not abuse its discretion in concluding that the Agency presented
clear and convincing evidence that termination of Father’s parental rights is
in the best interests of Child.
GOAL CHANGE
Finally, given the above, we conclude that the trial court did not err in
changing the children’s permanency goal to adoption. See R.J.T., 9 A.3d at
1183-84 (noting that when considering a goal change motion the court looks
to the best interests of the child rather than those of the child’s parents; the
Agency must establish that its requested goal change option is best suited to
the child’s safety, protection, and physical, mental, and emotional welfare).
As noted by the trial court, “Child cannot wait any longer for Father to place
himself in a position to parent safely,” and instead “needs permanency in a
- 11 -
J-S40016-17
home that would provide him safety and security for his physical and
emotional well-being.” Trial Court Opinion, 12/21/16, at 9.
CONCLUSION
In sum, our review of the record supports the trial court’s conclusion
that the Agency met its statutory burden of proving by clear and convincing
evidence that Father’s parental rights should be terminated pursuant to 23
Pa.C.S. §§ 2511(a)(2) and 2511(b).
Decree affirmed.
Judge Dubow did not participate in the consideration or decision of this
appeal.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2017
- 12 -
In the Interest of: L.C.L., a Minor
Combined Opinion