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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF B.C.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: L.C.B., NATURAL :
FATHER :
:
:
: No. 1387 WDA 2017
Appeal from the Order Entered August 18, 2017
In the Court of Common Pleas of Westmoreland County
Orphans' Court at No(s): 37 of 2017
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 06, 2018
L.C.B. (“Father”), a registered sex offender, appeals from the orphans’
court’s order entered on August 18, 2017, which granted the petition filed by
the Westmoreland County Children’s Bureau (“WCCB”) to involuntarily
terminate his parental rights to his son, B.C.B. (“Child”), born in February
2016, pursuant to 23 Pa.C.S.A. § 2511(a)(5), (8), (11) and (b) of the Adoption
Act, 23 Pa.C.S.A. §§ 2101-2938.1 We affirm.
The orphans’ court summarized the relevant factual and procedural
history of this case as follows.
...
____________________________________________
1 By separate order, the orphans’ court involuntarily terminated the parental
rights of D.S. (“Mother”). Mother has not appealed the order terminating her
parental rights, nor is she a party to this appeal.
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6. The Child was removed from Mother and Father’s custody on
February 4, 2016, while the Child was still in the hospital following
birth.
7. From the Child’s birth in February 2016, until Father’s
incarceration in August 2016,[2] Father attended 37 out of 47
offered supervised visits, which were joint visits with Mother
supervised by Amber Gordon of Project Star [ ]. [Ms. Gordon] also
provided hands-on parenting and child development instruction to
Mother and Father during visits.
8. As early as March 2016, when the Child was approximately one
month[] old, the Child began crying on a regular basis during visits
with Mother and Father. Mother and Father were unable to
appropriately address and respond to the Child’s distress by
meeting the Child’s needs or otherwise comforting the Child and,
as a result, the Child’s cries escalated to the point that the Child
would choke on his own mucus. The Child’s choking was life
threatening and because Mother and Father failed to remedy the
Child’s distress, [Ms. Gordon] had to intervene to remove mucus
from the Child’s airways and then comfort the Child so he would
stop crying. During a visit in April 2016, [Ms. Gordon] was able to
calm and relax the Child after one of his fits of distress, however,
the Child “instantly became upset” when returned to Father.
9. From March until his incarceration in August 2016, Father
demonstrated little to no progress in his ability to independently
identify and appropriately address and remedy the Child’s fits of
distress, which continued during visits on a regular basis. Father
demonstrated no ability to comfort or soothe the Child out of his
distress and he often lost his temper and became angry at the
Child in response to the Child’s continued crying.
____________________________________________
2 Father was incarcerated in August 2016 relating to an incident where Father
exposed himself to his eleven-year-old female neighbor and masturbated in
front of her.
On January 31, 2017, Father pled guilty to corruption of minors and indecent
exposure. See WCCB, Exhibit 2. Father was sentenced to eleven and one half
to twenty-three months in prison, as well as five years of probation to be
served consecutively. Father must register as a Tier I Megan’s Law offender
and is to “have no unsupervised contact with minors and no direct or indirect
contact with the victim.” N.T., 8/10/17, at 42.
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10. [Ms. Gordon] testified that she was able to calm the Child
down from his distress by talking and singing to the Child and by
cuddling him. Both [Ms. Gordon] and the WCCB Caseworker, Emily
Surace [ ], testified that they, and other members of each of their
respective offices, were able to soothe and calm the Child when
he was distressed. They further testified that the Child’s severe
adverse reaction to Mother and Father did not occur with anyone
else they observed the Child with, whether that individual were
known to the Child or a stranger.
11. Mother and Father never progressed beyond bottle-feeding
the Child during supervised visits to practice spoon-feeding the
Child, because the Child cried so much in Mother and Father’s care
during visits that feeding posed a significant choking risk to the
Child.
...
13. Father has had no contact with the Child since his
incarceration in August 2016, as Father has been placed in
protective custody in the prison upon his request.
Orphans’ Court Opinion, 10/17/2017, at 4-5.
On March 28, 2017, WCCB filed a petition to terminate Father’s parental
rights to Child.3 On August 10, 2017, the orphans’ court held a hearing on the
petition. WCCB presented the testimony of Dr. Carol Patterson, a licensed
psychologist who performed a parenting intellect and interaction assessment
on Father; Dawna Miletics, Father’s probation officer; Amber Gordon, the visit
supervisor with Project Star; and Emily Surace, the WCCB caseworker
assigned to Father’s case. Father did not present any evidence or testimony
____________________________________________
3 At the hearing, Child was represented by guardian ad litem, Emily Trisoline,
Esquire, and by legal counsel, Ashley Lovelace, Esquire. Ms. Trisoline and Ms.
Lovelace filed separate letters joining the WCCB’s brief in support of
termination.
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at the hearing. Following the hearing, the orphans’ court granted WCCB’s
petition and entered an order terminating Father’s parental rights. Father filed
a timely notice of appeal and concise statement of errors complained of
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
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 and quotation marks
omitted).
Termination of parental rights is governed by § 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).
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Here, the orphans’ court terminated Father’s parental rights pursuant to
§ 2511(a)(5), (8), (11), and (b). We “need only agree with [the orphans’
court’s] decision as to any one subsection in order to affirm the termination
of parental rights.” In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(citation omitted). Father, a registered sex offender, correctly concedes WCCB
presented clear and convincing evidence that his parental rights should be
terminated pursuant to subsection (a)(11).4 See Father’s Brief, at 14
(“Regarding [subsection] (a)(11), it does appear that the current statutory
scheme provides that Megan’s Law Registration results in a per se ground for
termination.”)
Thus, we need only consider whether the orphans’ court abused its
discretion by terminating Father’s parental rights pursuant to § 2511(b), which
provides as follows:
(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,
____________________________________________
4 (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:
...
(11) The parent is required to register as a sexual offender under
42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual
offenders) or to register with a sexual offender registry in another
jurisdiction or foreign country.
23 Pa.C.S.A. § 2511(a)(11).
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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 notice of the filing
of the petition.
23 Pa.C.S.A. § 2511(b).
The requisite analysis is as follows.
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 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 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.
[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 relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations
and quotation marks and citations omitted; brackets in original).
Regarding subsection (b), Father asserts that after his incarceration, he
was “immediately and illegally deprived of any further visitation with the
Child.” Father’s Brief, at 12. Father, however, does not support his assertion
that he was “immediately and illegally” deprived of visits with any evidence,
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legal argument, or citation to relevant legal authority. He simply says it.
Therefore, Father has waived this issue. See, e.g., In re W.H., 25 A.3d 330,
339 n.3 (Pa. Super. 2001) (stating issues are waived if appellate brief fails to
provide meaningful discussion with citation to relevant authority). See also
Pa.R.A.P. 2119(b).
Even if we had not found Father’s issue waived, we would have
concluded that his claim is without merit. The record does not support his bald
assertion that the orphans’ court abused its discretion in terminating his
parental rights because the disruption in visits—due to his incarceration for
exposing himself and masturbating in front of a child—halted the progress
Father had begun to make with regard to his parenting skills.
Our review of the record reveals that Father did not file any motions or
seek court-intervention to secure visitation with Child. Father did not attempt
to make contact with Child, such as sending him cards, letters or gifts, and
never contacted WCCB to set up visits with Child. Thus, had we reached the
merits of this issue, we would have rejected Father’s assertion that, upon his
incarceration, he was deprived of visits with his son.
The orphans’ court concluded that terminating Father’s parental rights
would best serve Child’s needs and welfare and explained as follows.
Throughout their visits with the Child, Mother and Father
consistently demonstrated an inability to provide care to the Child
to avoid the life-threatening escalation of the Child’s fits of
distress. The Child’s fits were most acute and severe in Father’s
care, however, even after Father’s incarceration, the Child’s fits
lessened in severity but nevertheless continued throughout
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Mother’s sole visits. The evidence and testimony at [t]rial clearly
and convincingly showed that not merely does the Child have no
bond with Mother or Father, but further, the Child is actually
uniquely traumatized by contact with Mother and Father. And this
trauma has not been observed in any of the Child’s contact with
anyone else, friend or stranger.
[Ms. Gordon] credibly testified that Father displayed nothing
during visits that would indicate that he will be able to parent the
Child. Father has demonstrated absolutely no ability to care for
the Child, or to interact appropriately with the Child. While no
medical testimony or evidence was presented that could explain
the Child’s fits, it is nonetheless clear that the Child’s severe
distress is caused by Mother and Father’s presence, and that the
fits are so severe in Father’s presence that they are life-
threatening. The evidence and testimony presented at [t]rial
clearly showed that Mother and Father have been unable to
respond appropriately to their child’s seemingly innate reaction to
them, despite the persistent efforts of service providers to
establish a bond between the Child and his parents.
Orphans’ Court Opinion, 10/17/2017, at 8-9 (emphasis added).
“Common 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.” In re T.S.M. 71 A.3d at 268 (citation
omitted). The Court directed that, in weighing the bond considerations
pursuant to subsection (b), “courts must keep the ticking clock of childhood
ever in mind[,]” as “[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.,
at 269.
There is no evidence that a bond exists between Father and Child.
Therefore, it was reasonable for the orphans’ court to infer that none exists.
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See In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008). Ms. Gordon’s
testimony demonstrates that Child is in a pre-adoptive home, and that he
views Foster Parents as his parents. See N.T., 8/10/2017, at 90-91. She
explained that Child jumps into the arms of either Foster Mom or Foster Dad,
and that Child is very happy and content in their care. See id., at 93.
At the time of the termination hearing, Child had been in placement for
over eighteen months and had resided with Foster Parents since shortly after
his birth. Foster Parents are able to meet the developmental, physical and
emotional needs of Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2018
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