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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.A.B., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.D.B., FATHER :
:
:
:
: No. 99 EDA 2017
Appeal from the Order Entered December 21, 2016
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): CP-51-AP-0001007-2016,
CP-51-DP-0000997-2013
BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: Filed July 3, 2017
A.D.B. (“Father”) appeals from the decree entered on December 21,
2016, granting the petition filed by the Philadelphia Department of Human
Services (“DHS” or the “Agency”), to involuntarily terminate his parental
rights to his male child, A.D.B., Jr., born in April of 2013, (“Child”), with N.T.
(“Mother”),1 pursuant to the Adoption Act, 23 Pa.C.S. § 2511, and the order
entered December 21, 2016, granting DHS’s petition to change the
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1
On December 21, 2016, the trial court entered the decree that granted the
petition to voluntarily terminate Mother’s parental rights to Child and confirm
her consent to his adoption. N.T., 12/21/16, at 80. Mother has not filed an
appeal from the termination of her parental rights, nor is she a party to the
instant appeal.
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permanency goal for Child to adoption pursuant to the Juvenile Act, 42
Pa.C.S. § 6351.2 We affirm.
On October 26, 2016, DHS filed the petitions for the involuntary
termination of Father’s parental rights and goal change to adoption. The
trial court fully set forth the factual and procedural background of this
appeal, which we adopt herein. See Trial Court Opinion, 1/17/17, at 1-4.
At the evidentiary hearing on December 21, 2016, DHS presented the
testimony of psychologist Erica Williams, Psy.D., as an agreed expert on
conducting parenting capacity evaluations, and Ta’Neesha Coker, the
Community Umbrella Agency (“CUA”) caseworker from Wordsworth. The
Child Advocate, Attorney Aaron Mixon, also questioned Dr. Williams and Ms.
Coker, as did Father’s counsel. Father then testified on his own behalf. On
December 21, 2016, the trial court granted the petitions for involuntary
termination of the parental rights of Father to Child pursuant section
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, and to change the
goal to adoption pursuant to section 6351 of the Juvenile Act.
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2
While dated May 5, 2016, the termination decree was not docketed and
entered for purposes of Pa.R.C.P. 236(b) until May 31, 2016, as the trial
court did not provide Father notice pursuant to Pa.R.C.P. 236 until that date.
See Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999)
(holding that “an order is not appealable until it is entered on the docket
with the required notation that appropriate notice has been given”).
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On December 28, 2016, Father timely filed a notice of appeal from the
termination decree and goal change order, along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
In his brief on appeal, Father raises two issues, as follows:
[Whether] [t]he trial court erred and/or abused its discretion by
entering an order on December 21, 2016, involuntarily
terminating the parental rights of Father, A.D.B. More
specifically, the trial court abused its discretion as substantial,
sufficient and credible evidence was presented at the time of
trial, which would have substantiated denying the petition for
goal change termination. [Whether DHS] has failed to meet its
burden for termination by clear and convincing evidence under
23 Pa.C.S.A. sections 2511(a)(1), (2), (5) and (8)[?]
[Whether] [t]he trial court erred and/or abused its discretion by
terminating the parental rights of Father, A.D.B.[,] pursuant to
23 Pa.C.S.A. [§] 2511(b) where DHS failed to prove by clear and
convincing evidence that involuntarily terminating his parental
rights best served the emotional and needs and welfare of
[C]hild[?]
Father’s Brief at 9.3
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
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3
We will deem any challenge to the change in the permanency goal for Child
waived by Father’s failure to preserve the challenge in his concise statement
and statement of questions involved portion of his brief. See Krebs v.
United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both his concise statement of errors complained of on appeal and the
statement of questions involved in his brief on appeal).
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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., 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., 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., 34 A.3d 1, 51
(Pa. 2011); Christianson v. Ely, 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., 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 are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (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
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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). We will focus on section 2511(a)(1), (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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(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
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
With respect to subsection 2511(a)(1), our Supreme Court has held as
follows.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights, the
court must engage in three lines of inquiry: (1) the parent’s
explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) consideration of the
effect of termination of parental rights on the child pursuant to
Section 2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).
Further, this Court has stated:
the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re B.,N.M., 856 A.2d 847, 854-855 (Pa. Super. 2004) (citations
omitted).
Father challenges the sufficiency of the evidence to support
termination, alleging that he never demonstrated a settled purpose of
relinquishing his rights to Child, and any failure to perform his parental
duties was due to court-imposed restrictions. See Father’s Brief at 23-24.
The trial court stated as follows:
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Petitions were filed against Father on October 26, 2106. During
the six-month period prior to the filing of the petitions, Fathers’
SCP [Single Case Plan] objectives were to complete drug and
alcohol treatment, anger management, domestic violence
[courses], engage in individual therapy, obtain employment and
appropriate housing and visit with Child. (N.T. 12/21/16, pgs.
26-27). Father successfully completed drug and alcohol
treatment, but during the six-month period, he told CUA that he
would begin using drugs again, since he was not being tested.
(N.T. 12/21/16, pg. 13). Father completed anger management
classes in prison, before Child was born. (N.T. 12/21/16, pgs.
46-48). After Child came into care, he was referred to Menergy
for anger management and domestic violence counselling, but
missed a number of appointments and was unsuccessfully
discharged. (N.T. 12/21/16, pgs. 16, 28, 55-57). Father denied
that he was ever involved in domestic violence. (N.T. 12/21/16,
pg. 12). Father is not applying the skills he learned in his
classes: his anger is still uncontrolled, and he has threatened or
harassed staff at visitation locations and the office of Dr.
Williams. (N.T., 12/21/16, pgs. 9, 11, 28, 42-44, 60). Father is
diagnosed with schizophrenia and PTSD [Post Traumatic Stress
Disorder]. (N.T. 12/21/16, pg. 11). During the six-month
period, Father was not involved in individual therapy and was
not taking medications for his diagnoses. (N.T. 12/21/16, pgs.
9, 14-15, 32, 53, 64-65). Father completed parenting classes,
but is not applying the skills he learned in the classes. (N.T.
12/21/16, pg. 30). Father’s employment is inconsistent, and
[he] does not earn much money. (N.T. 12/21/16, pgs. 51-52).
Father’s current housing is, by his own testimony, full of
dangerous black mold, and is not appropriate. (N.T. 12/21/16,
pgs. 9-10, 31, 50-51). Father can no longer visit with Child
because he has been banned from all [A]gency locations where
supervised visits can be arranged due to safety concerns. He
was banned from a number of locations because he threatened
staff members, and visits were changed to take place at Family
Court. Father then stole a cell phone from another parent during
a visit and was banned from Family Court as well. (N.T.
12/21/16, pgs. 29, 39-40, 42-44, 58, 60-63). Until Father
engages in appropriate treatment for his mental health issues
and brings his aggression under control, he will not present with
the capacity to parent. (N.T. 12/21/16, pg. 19). During the six-
month period[,] Father failed or refused to complete his
objectives and place himself in a position to parent. In fact,
Father’s compliance decreased over the six-month period as he
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stopped attending mental health treatment or taking
medication[,] and was thrown out of the Menergy program and
numerous visitation locations. Because the trial court found, by
clear and convincing evidence, that Father’s conduct constituted
a refusal to perform parental duties, termination under this
section was proper.
Trial Court Opinion, 1/17/17, at 5-6.
We find the trial court’s conclusion that Father has refused to perform
parental duties with regard to Child, and its termination of his parental rights
under section 2511(a)(1), supported by competent evidence in the record.
In re Adoption of S.P., 47 A.3d at 826-827.
Next, to satisfy the requirements of section 2511(a)(2), the moving
party must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under section 2511(a)(2), 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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002).
Father asserts that the trial court erred in terminating his parental
rights where the psychological expert, Erica Williams, testified that she had
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never observed Father interact with Child. Father’s Brief at 29. Father
argues that Dr. Williams was concerned primarily with his anger issues, and
that she acknowledged that Father’s completion of programs in anger
management, parenting, and healthy relationships were strengths upon
which he could build in the future. Id. Father also alleges that Ms. Coker
testified that Father never behaved aggressively toward Child, and that he
acted appropriately during his visit with Child. Id. Ms. Coker testified that
DHS’s concern was Father’s aggressive behavior toward DHS staff. Id.
Father complains that Ms. Coker testified that she had concerns about his
ability to parent Child, but she observed only one visit, in early 2016,
between Child and him. Id. Father urges that the trial court should have
afforded more weight to his testimony that, during visits, he plays with
Child, sings songs, and brings toys and snacks for Child. Id.
The trial court found as follows:
Dr. Williams testified that Father’s successful completion of
programs twelve years ago proves that Father can indeed
stabilize his issues and make progress, but that the longer he
waits the less likely stabilization becomes. Until Father engages
in appropriate treatment for his mental health issues and brings
his aggression under control, he will not present with the
capacity to parent. (N.T. 12/21/16, pgs. 17-19). Child needs
permanency, which Father cannot provide. Father’s compliance
with his objectives has steadily decreased over the life of this
case. He is now using drugs, not taking his medications, and is
not engaged in domestic violence counselling, anger
management or individual therapy. Father’s decreasing
compliance with his objectives 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.
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Trial Court Opinion, 1/17/17, at 7-8.
We find the trial court’s conclusion that Father has a parental
incapacity that he cannot or will not remedy, and its termination of his
parental rights under section 2511(a)(2), supported by competent evidence
in the record. In re Adoption of S.P., 47 A.3d at 826-827.
Finally, Father challenges the trial court’s conclusion regarding section
2511(b). We have explained that the focus in terminating parental rights
under section 2511(a) is on the parent, but it is on the child pursuant to
section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008) (en banc). In reviewing the evidence in support of termination
under section 2511(b), our Supreme Court recently stated as follows:
[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).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal citations
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omitted). “Additionally, Section 2511(b) does not require a formal bonding
evaluation.” Id. Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
direct observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946
A.2d 753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this
analysis:
concluding 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 [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) (internal citations
and quotation marks omitted). Thus, the court may emphasize the safety
needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa. Super.
2008) (affirming the involuntary termination of the mother’s parental rights,
despite the existence of some bond, where placement with the mother would
be contrary to the child’s best interests, and any bond with the mother
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would be fairly attenuated when the child was separated from her, almost
constantly, for four years).
In his brief, Father argues as follows:
Father has made efforts to maintain a bond with Child by
participating and maintaining visitation with Child. The
uncontradicted testimony was that Child recognized [Father] as
his [f]ather. Father testified with passion and emotion regarding
his love and commitment to being a [f]ather for Child. During
visits[,] Father plays and sings with Child and brings him toys
and snacks. Father never acts in an aggressive or inappropriate
manner with Child. Father does not believe that DHS has met
their burden in showing by clear and convincing evidence that
severing Father’s parental rights would best serve the
developmental, physical and emotional needs of Child.
Father’s Brief at 31.
Regarding section 2511(b), the trial court found as follows:
Father is appropriate with Child during visits, but he often
harasses or threatens staff while in Child’s presence. This
negatively impacts Child. (N.T. 12/21/16, pgs. 39-40, 42-44).
For safety reasons, he has been banned from every visitation
location, first for threatening staff, then for stealing from other
parents during a visit. (N.T. 12/21/16, pgs. 28-29, 42, 58, 60-
63). As a result of his own actions, Father has not had visits
with Child in some time, and is unable to control his harassing
behavior in order to maintain a relationship with Child. Father
testified that he has never threatened anyone, and has never
become angry at Child. (N.T. 12/21/16, pgs. 60, 69-70). This
testimony is not credible. Father has never been a full-time
parent to Child or taken him to necessary medical appointments.
Child would not suffer any irreparable harm if Father’s rights
were terminated, and does not have a healthy and positive
relationship with Father. Child has been placed with [C.H., his
paternal cousin, (“Cousin”)] for forty-two months, since Child
was a month old. Cousin meets all of his everyday needs, and is
the only caregiver he has ever known. Father has never
parented Child or taken him to a medical appointment. Child is
so strongly bonded to Cousin that he would suffer irreparable
harm if removed from Cousin’s care. (N.T. 12/21/16, pgs. 36-
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39). DHS’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, 1/17/17, at 12-13.
Our Supreme Court has observed 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, and that “[e]ven the most abused of children will often
harbor some positive emotion towards the abusive parent.” See In re:
T.S.M., 71 A.3d at 267 quoting In re K.K.R.-S., 958 A.2d at 535. The
Supreme Court has instructed, “[t]he continued attachment to the natural
parents, despite serious parental rejection through abuse and neglect, and
failure to correct parenting and behavior disorders which are harming the
children cannot be misconstrued as bonding.” In re: T.S.M., 71 A.3d at 267
quoting In re Involuntary Termination of C.W.S.M., 839 A.2d 410, 418
(Pa. Super. 2003) (Tamilia, J. dissenting).
We have explained that a parent’s own feelings of love and affection
for a child, alone, do not prevent termination of parental rights. In re Z.P.,
994 A.2d at 1121. Further, this Court has stated: “[A] parent’s basic
constitutional right to the custody and rearing of . . . her child is converted,
upon the failure to fulfill . . . her parental duties, to the child’s right to have
proper parenting and fulfillment of [the child’s] potential in a permanent,
healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (internal citations omitted). It is well-settled that “we will not toll the
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well-being and permanency of [a child] indefinitely.” In re Adoption of
C.L.G., 956 A.2d at 1007 citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting that 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.”).
After a careful review of the record in this matter, we find the record
supports the trial court’s factual findings, and the court’s conclusions are not
the result of an error of law or an abuse of discretion. In re Adoption of
S.P., 47 A.3d at 826-27. Accordingly, it was proper for the trial court to find
no bond exists such that Child would suffer permanent emotional harm if
Father’s parental rights were terminated. This Court finds no abuse of
discretion in the trial court’s termination of Father’s parental rights to Child
pursuant to section 2511(b).
Accordingly, having concluded that the trial court did not err or abuse
its discretion in terminating Father’s parental rights pursuant to section
2511(a)(1), (2), and (b), and that Father waived challenges to the goal
change to adoption, we affirm the termination decree and goal change
order.4
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4
Recently, in In Re Adoption of L.B.M., 156 A.3d 1159 (Pa. 2017), our
Supreme Court held that 23 Pa.C.S.A. § 2313(a) requires the trial court to
appoint counsel for a child in a termination of parental rights case and that
(Footnote Continued Next Page)
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Decree and order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/2017
_______________________
(Footnote Continued)
the failure to do so constitutes structural error, which can never be harmless
in nature.
In part II-B of the lead opinion, Justice Wecht held that a trial court must
appoint counsel to represent a child’s legal interests even when the child’s
guardian ad litem, who is appointed to represent the child’s best interests, is
an attorney. Justice Wecht reasoned that a child’s “legal interests” and
“best interests” are distinct and require separate representation. Four
members of the Court, however, disagreed with this interpretation of
§ 2313(a). They instead opined in concurring and dissenting opinions that
separate representation would be required only if a child’s best interests and
legal interests conflicted.
In this case, Father did not raise any concerns before the trial court that
implicated the need for independent legal counsel for Child, nor did he assert
any claim that the child advocate (a licensed attorney) did not appropriately
represent Child’s legal and best interests. Child, who was approximately
three years old at all times relevant to this case, lacked capacity to articulate
any preference regarding his placement or his bond with Father and our
review confirms that Child’s legal and best interests were appropriately
represented and not in conflict. We therefore see no reason to remand this
matter for appointment of counsel pursuant to § 2313(a).
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