J. S18044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: P.C. NATURAL FATHER : No. 1890 WDA 2017
Appeal from the Order Dated November 21, 2017,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-0000037-2017
BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2018
P.C. (“Father”) appeals from the November 21, 2017 order granting
the petition of the Allegheny County Office of Children, Youth and Families
(“CYF”) to involuntarily terminate the parental rights of Father and
A.C. (“Mother”)1 to minor child, E.C. (“Child”), pursuant to 23 Pa.C.S.A.
§§ 2511(a)(5), (8), and (b). After careful review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
[CYF] has been involved with the family in question
since November 2013 when Child’s elder but still
minor sibling, L.C. (“Sibling”) was born and tested
positive for cocaine. In a separate but relevant
action, on April 12, 2016[,] CYF filed a petition for
the termination of Father’s parental rights to Sibling.
On September 23, 2016, following a hearing on the
petition, the Court entered an order terminating the
parental rights of Father to Sibling. Father made a
1 Mother has not appealed from the order terminating her parental rights to
E.C. and is not a party to this appeal.
J. S18044/18
timely appeal and the Pennsylvania Superior Court
affirmed this court’s Order. See In re L.C., 160
A.3d 271 ([Pa.Super.] 2017).
Child was born [in November] 2015 addicted to
methadone and opiates for which Mother was not
prescribed. Child subsequently was hospitalized in a
newborn intensive care unit (“NICU”) for four (4)
weeks to undergo withdrawal treatment. On
December 31, 2015, CYF was granted an emergency
custody authorization for Child and he has been
removed from [Father’s and Mother’s] care since.
On January 12, 2016, KidsVoice was appointed
[g]uardian ad litem (“GAL”) for Child for
dependency proceedings. Child was adjudicated
dependent on March 15, 2016 and CYF was given
supervision with permission to place the Child. The
initial placement goal for Child was to return him to
his parents with a concurrent goal of adoption.
Since Child was adjudicated dependent, multiple
Permanency Review Hearings were held. The Court
consistently found that Father was not making
progress toward his family plan goals and was never
more than minimally compliant. On October 3, 2016
following a Permanency Review Hearing the Court
found that Father had been minimally compliant with
the permanency plan and had made no progress
toward alleviating the circumstances [that]
necessitated the original placement. Despite these
findings, the Court’s primary placement goal
continued to be reunification of Child with Parents
with a concurrent goal of adoption.
On January 27, 2017[,] the Court found that
aggravated circumstances existed against Father
when the Court terminated his parental rights to
Sibling on September 23, 2016. Further efforts were
not ordered to preserve the family and reunify Child
with Parents. CYF then filed a Petition for
Termination of Parental Rights on March 15, 2017.
CYF averred that they delivered true and correct
copies of the Petition and Notice of Hearing on
-2-
J. S18044/18
March 23, 2017 at 5:27 p.m. Father denied that
CYF’s [] service ever occurred, averring that Mother
was given his copies of the Petition and Notice of
Hearing. Father accepted Personal Service at the
Termination of Parental Rights hearing dated May
12, 2017.
Following yet another Permanency Review Hearing,
on May 12, 2017[,] the Court found that Father
continued to show no progress toward alleviating his
circumstances which created the original placement.
The Court ordered that the new permanent
placement goal be Adoption. On July 28, 2017[,] the
Court ordered that KidsVoice be appointed [as] legal
counsel for Child for all adoption proceedings,
including the termination of parental rights hearing.
Trial court opinion, 1/18/18 at 1-3 (internal quotation marks and some
citations omitted).
On August 18, 2017, the trial court scheduled a termination hearing
that was ultimately continued until November 17, 2017. At the
November 17, 2017 hearing, the trial court heard testimony from the
following individuals: Father; Mother; CYF caseworker Amber Saunders;
Dr. Neil Rosenblum, a court-appointed clinical psychologist who evaluated,
inter alia, Father and Child; and Allison Hamilton, a caseworker from
A Second Chance foster care agency. Following the hearing, the trial court
entered orders on November 21, 2017 involuntarily terminating Father’s and
Mother’s parental rights to Child, pursuant to Sections 2511(a)(5), (8), and
(b). On December 19, 2017, Father filed a timely notice of appeal to this
court. That same day, Father filed a concise statement of errors complained
-3-
J. S18044/18
of on appeal, in accordance with Pa.R.A.P. 1925(b). On January 18, 2018,
the trial court filed its Rule 1925(a) opinion.
Father raises the following issues for our review:
1. Did the trial court abuse its discretion and/or
err as a matter of law in appointing KidsVoice
as counsel for the Child when an apparent
conflict between the legal interests of the Child
and the interest of KidsVoice in representing
the best interests of the Child in the underlying
dependency proceedings was raised by
[Father]?
2. Did the trial court abuse its discretion and/or
err as a matter of law in concluding that
termination of [Father’s] parental rights would
serve the needs and welfare of the Child
pursuant to 23 Pa.C.S.[A.] §2511(b)?
Father’s brief at 6.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.
-4-
J. S18044/18
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and internal quotation
marks omitted). “The trial 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) (citation omitted). “[I]f competent evidence supports the
trial court’s findings, we will affirm even if the record could also support the
opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super.
2003) (citation omitted).
Father first argues that the trial court abused its discretion and/or
erred as a matter of law in appointing KidsVoice as legal counsel for Child in
these contested termination proceedings when KidsVoice was already
serving as GAL for the Child in the underlying dependency proceedings.
(Father’s brief at 15.) Father maintains that an inherent conflict between
Child’s legal and best interests precludes a GAL in dependency proceedings
from serving as Child’s legal counsel in contested, termination proceedings.
(Id. at 18-23.) We disagree.
Our supreme court recently held in a plurality decision in
In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), that 23 Pa.C.S.A.
§ 2313(a) requires a trial court to appoint counsel for a child in contested
involuntary termination of parental rights proceedings and the failure to do
so can never be harmless. In re Adoption of L.B.M., 161 A.3d at 180,
183. This decision was originally filed on March 28, 2017, but was corrected
-5-
J. S18044/18
and replaced on May 23, 2017. Authoring Justice Wecht, joined by
Justices Donohue and Dougherty, sought to hold that a trial court is required
to appoint separate, independent counsel to represent a child’s legal
interests even when the GAL is an attorney. However, Chief Justice Saylor,
and Justices Baer, Todd, and Mundy, disagreed in different concurring and
dissenting opinions with that part of the lead opinion’s holding. Specifically,
while the majority of the justices agreed that the appointment of counsel for
the child is required in all involuntary termination proceedings and that the
failure to do so by the trial court is structural error, they did not join that
part of Justice Wecht’s opinion which sought to hold that the GAL may never
serve as counsel for the child. Rather, such separate representation would
be required only if Child’s best interests and legal interests were in conflict.
See In re D.L.B., 166 A.3d 322, 329 (Pa.Super. 2017) (interpreting the
supreme court’s decision in In re Adoption of L.B.M. to require separate
representation “only if the child’s best interests and legal interests were
somehow in conflict”).
Here, no such conflict exists. Our review of the record reveals that
Child’s best interests and legal interests were unquestionably well
represented by KidsVoice and never in conflict. Father has failed to
demonstrate how Child’s best interests and legal interests were not
represented by KidsVoice and has also failed to identify a conflict between
those interests. Rather, Father invites us to reverse our opinion in In re
-6-
J. S18044/18
D.L.B., which we decline to do. Accordingly, we discern no abuse of
discretion and/or legal error on the part of the trial court in appointing
KidsVoice, the dependency GAL, to serve as Child’s legal counsel in the
contested termination proceedings.
Father next argues that “the trial court abused its discretion and/or
erred as a matter of law in concluding that termination of [] Father’s
parental rights would serve the needs and welfare of the Child pursuant to
[Section] 2511(b).” (Father’s brief at 24.)
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. 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.
-7-
J. S18044/18
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined “clear and convincing evidence” as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (citation and
quotation marks omitted).
In this case, the trial court terminated Father’s parental rights
pursuant to Sections 2511(a)(5), (8), and (b), which provide 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:
....
(5) The child has been removed from
the care of the parent by the court
or under a voluntary agreement
with an agency for a period of at
least six months, the conditions
which led to the removal or
placement of the child continue to
exist, the parent cannot or will not
remedy those conditions within a
reasonable period of time, the
services or assistance reasonably
available to the parent are not
likely to remedy the conditions
which led to the removal or
placement of the child within a
reasonable period of time and
termination of the parental rights
would best serve the needs and
welfare of the child.
-8-
J. S18044/18
....
(8) The child has been removed from
the care of the parent by the court
or under a voluntary agreement
with an agency, 12 months or
more have elapsed from the date
of removal or placement, the
conditions which led to the removal
or placement of the child continue
to exist and termination of parental
rights would best serve the needs
and welfare of the child.
....
(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(a)(5), (8), and (b). We need only agree with the trial
court as to any one subsection of Section 2511(a), in addition to
Section 2511(b), to affirm an order terminating parental rights. In re M.M.,
106 A.3d 114, 117 (Pa.Super. 2014).
Although not specifically challenged by Father, we begin our analysis
of the trial court’s decision to terminate his parental rights by addressing
-9-
J. S18044/18
Section 2511(a)(8). To meet the requirements of Section 2511(a)(8), CYF
must satisfy the following three-part test: “(1) that the child has been
removed from the care of the parent for at least twelve (12) months;
(2) that the conditions which had led to the removal or placement of the
child still exist; and (3) that termination of parental rights would best serve
the needs and welfare of the child.” In re C.L.G., 956 A.2d 999, 1005
(Pa.Super. 2008) (citation and internal quotation marks omitted).
Upon review, we find that there was clear and convincing evidence to
support the trial court’s termination of Father’s parental rights to Child,
pursuant to Section 2511(a)(8). The record establishes that Child was born
addicted to both methadone and opiates and has resided in his pre-adoptive
foster home since December 31, 2015, following completion of a four-week
treatment program in the NICU immediately following his birth. (Notes of
testimony, 11/17/17 at 8-9, 29.) At the time of the November 17, 2017
termination hearing, Child had been removed from Father’s care for over
23 months, nearly his entire life. (Id.) Furthermore, as it relates to the
continued existence of the conditions that predicated Child’s removal, the
record demonstrates that Father remains unable to provide essential
parental care. The testimony of CYF caseworker Saunders demonstrates
Father’s repeated failure to remedy his substance abuse issues or regularly
visit Child. The trial court summarized Saunders’ testimony, in pertinent
part, as follows:
- 10 -
J. S18044/18
Aside from securing allegedly stable and appropriate
housing more than a year after the initial
dependency proceedings for Child, Saunders testified
that Father otherwise failed CYF’s goals and never
went above minimal compliance. . . .
....
Father failed to meet his drug and alcohol goals. Of
the sixty-nine (69) total urine analysis screenings
that Father was called for, he attended only
twenty (20) and missed forty-nine (49). Of the
twenty (20) attended drug screens, fifteen (15) of
them were attended between the March 10, 2017
psychological evaluation and November 17, 2017.
CYF requested Father to attend hair follicle test,
which would have shown Father’s drug history for
the previous three (3) months. Father did not
comply.
....
Regarding Father’s different drug and alcohol
treatment programs, Saunders testified . . . . Father
began Suboxone treatment in November 2015 at
Recovery Solutions. Father then continued
Suboxone treatment at Freedom Healthcare in
October 2016. Saunders further testified that Father
was discharged from inpatient drug treatment at
Freedom Healthcare in November of 2016 due to a
drug relapse. Father reported to CYF that he had
re-engaged another inpatient drug treatment
program in January 2017 at Magnolia Networks, but
CYF never received confirmation of it.
Father failed to [comply with] scheduled visitations
in accord with his family plan goals. Supervised
visits were scheduled by CYF for Father and
supervised by the foster care organization, A Second
Chance. Father initially was allowed supervised visits
with Child three (3) times a week, but by March
2016 due to Father’s nonattendance the visits were
reduced to twice weekly. By the time of the June 28,
- 11 -
J. S18044/18
2016 hearing Father had only attended eight (8) out
of twenty-five (25) scheduled visits. Following the
June 28, 2016 hearing Father’s visits were reduced
to once per week. Saunders testified that of the
total one-hundred and eighteen (118) scheduled
visits, Father attended sixty-five (65) of them and
missed fifty-three (53). Saunders further testified
that despite transportation and scheduling issues
that caused Child to occasionally miss visits at no
fault of Father’s, the fifty-three missed visits [] were
in reference specifically to times that Father failed to
attend when Child was present. The visits were
occasionally scheduled at Saunders’ office but were
eventually held in another office. CYF was notified
by Father that his work schedule conflicted with
visitations. In response CYF promptly arranged for
evening visits from 5:30 p.m. to 7:00 p.m. to
accommodate for Father's work schedule.
Trial court opinion, 1/18/18 at 5-7 (citations and footnote omitted).
Next, we consider whether termination would best serve the needs and
welfare of Child, as required under the third prong of Section 2511(a)(8),
and whether it was ultimately proper under Section 2511(b). With regard to
Section 2511(b), our supreme court has 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.[A.] § 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. . . .
[T]his 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. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
- 12 -
J. S18044/18
In re T.S.M., 71 A.3d at 267 (internal case citations omitted).
In concluding that the termination of Father’s parental rights best
served the needs and welfare of Child, the trial court concluded that the
testimony of Dr. Rosenblum clearly established that no substantial emotional
bond existed between Father and Child. The trial court stated as follows:
Based on the combination of Dr. Rosenblum’s
observations and CYF’s testimony regarding Father’s
nonattendance of visitations, the Court determined
that Child had developed a significant emotional
bond with the foster parents and not with Mother or
Father. . . .
....
This finding was partly based upon Dr. Rosenblum’s
testimony that Child recognized Father as a familiar
and safe face but not a primary caregiver.
Dr. Rosenblum further testified that Child’s bond with
Father was not so necessary or sufficient that it
would result in emotional harm to Child. The Court
also carefully considered Dr. Rosenblum’s testimony
that if Father was continuing his historic pattern of
drug screen and visitation nonattendance (as CYF
testified to) then it would be evident that [Father
was] not demonstrating a capability to care for Child.
....
. . . . CYF’s testimony of Father not attending
visitations was highly significant in the Court’s
bonding analysis. CYF testified that Father failed to
attend nearly half of all scheduled visitations.
Father’s historic nonattendance at visits with Child
was yet another signal to the Court that Father was
not making efforts to maintain a close relationship
with Child. While Father alleged that virtually all
missed visits were not his fault, and while he blamed
CYF and A Second Chance for missed visitations, the
- 13 -
J. S18044/18
Court however did not find his testimony to be
credible or his arguments to be proven. The Court,
therefore, determined that Child’s recognition of
Father could be classified as a lesser type of bond,
and not a crucial emotional bond worth saving out of
fear of irreparable harm to Child.
The simple reality is that Father has not been
present in Child’s life enough for a relationship worth
saving to have formed. Accordingly, the Court found
that Child did not have a significant bond with Father
such that Child would be inflicted with emotional pain
if parental rights were terminated.
Trial court opinion, 1/18/18 at 16-17 (citations and internal quotation marks
omitted). The record supports these conclusions by clear and convincing
evidence.
This court has continually recognized that “in cases where there is no
evidence of a bond between a parent and child,” as is the case here, “it is
reasonable to infer that no bond exists.” In re Adoption of J.M., 991 A.2d
321, 324 (Pa.Super. 2010) (citations omitted). In reaching this conclusion,
we emphasize that “[a] child’s life, happiness and vitality simply cannot be
put on hold until the parent finds it convenient to perform parental duties.”
In the Matter of the Adoption of A.M.B., 812 A.2d 659, 675 (Pa.Super.
2002). Our standard of review requires us to accept the trial court’s findings
of fact and credibility determinations where, as here, they are supported by
the record. See In re T.S.M., 71 A.3d at 267. Accordingly, we decline to
reweigh the evidence and reassess witness credibility, as Father repeatedly
asserts that we should do.
- 14 -
J. S18044/18
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Father’s parental rights to Child
pursuant to Section 2511(a)(8) and (b). Accordingly, we affirm the
November 21, 2017 order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2018
- 15 -