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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.J.L.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: R.L.M. :
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:
:
: No. 7 MDA 2018
Appeal from the Decree November 30, 2017
In the Court of Common Pleas of York County Orphans' Court at No(s):
2017-0144
IN THE INTEREST OF: A.J.L.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: R.L.M. :
:
:
:
: No. 16 MDA 2018
Appeal from the Order November 30, 2017
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-DP-0000004-2016
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 25, 2018
R.L.M. (“Father”) appeals from the decree and order entered November
30, 2017, granting the petitions filed by the York County Children, Youth and
Families Agency (“CYF” or the “Agency”) to involuntarily terminate his parental
rights to his minor male child, A.J.L.G. (“Child” or “minor child”) (born in
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January of 2009),1 pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511, and to
change Child’s permanency goal to adoption, with a concurrent goal of
placement with a legal custodian (non-relative), pursuant to the Juvenile Act,
42 Pa.C.S. § 6351. We affirm.
On August 22, 2017, the Agency filed petitions for the involuntary
termination of Father’s and Mother’s parental rights to Child. On August 28,
2017, the trial court appointed Attorney Kelly McNaney as Child’s legal
counsel, and re-appointed Attorney Daniel Worley as Child’s guardian ad litem.
See In re: Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (initially filed on
March 28, 2017). In the same order, the trial court re-appointed Attorney
Scott Beaverson to represent Father, and re-appointed Attorney Charles
Hobbs to represent Mother.
On November 13, 2017, the trial court held a hearing on the petitions,
at which Father was present and represented by counsel, as was Mother. Both
the legal counsel and the GAL appointed for Child were also present.
The trial court set forth the factual background and procedural history
of this appeal as follows.
The entire dependency record for [Child], docketed at CP-67-DP-
004-2016, was incorporated into the hearing record. The
stipulation of counsel was filed on November 13, 2017 and was
signed by counsel for the Agency, the guardian ad litem, counsel
for Mother, counsel for Father, and counsel for [Child]. The
stipulation of counsel was incorporated into the hearing record for
the minor child, along with Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
____________________________________________
1Child’s mother, G.L.G. (“Mother”), has not appealed the termination of her
parental rights and is not a party to these proceedings.
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and 11 for the Agency. Based upon the testimony and evidence
presented at the hearing, as well as the history of this case, the
petition to change court ordered goal and the petition for
involuntary termination of Mother’s and Father’s parental rights
are GRANTED as to [Child].
FINDINGS OF FACT
1. The minor child was born [in January of] 2009.
2. The natural mother of the minor child is [Mother], whose
current address is [in] York, Pennsylvania[.]
3. The father of the minor child is [Father], whose current address
is [the same York, Pennsylvania residence as Mother.]
4. A Certification of Acknowledgement of Paternity for the minor
child was filed on August 29, 2017, and indicates that there is
not a claim or Acknowledgement of Paternity on file for the
minor child.
5. In an order entered by the Honorable Joseph C. Adams,
President Judge, Court of Common Pleas, dated February 14,
2017, [Father] was determined to be the biological father of
the minor child.
6. A petition for involuntary termination of parental rights and a
petition to change court ordered goal were filed on August 22,
2017 by the Agency.
7. [The family’s involvement with the Agency commenced when
a]n Application for emergency protective custody was filed by
the Agency on January 7, 2016. [The application alleged that
the Agency received a referral due to concerns about Mother’s
mental health as well as allegations of sexual abuse of Child by
Mother.]
8. In an order for emergency protective custody dated January 7,
2016, sufficient evidence was [found] that continuation or
return of the minor child to the home of Mother was not in the
best interest of the minor child. Legal and physical custody of
the minor child was awarded to the Agency. The minor child
was to be placed in foster care.
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9. In a shelter care order dated January 19, 2016, sufficient
evidence was presented to prove that continuation or return of
the minor child to the home of Mother was not in the best
interest of the minor child. Legal and physical custody of the
minor child was awarded to the Agency. The minor child was
to remain in foster care.
10. A dependency petition was filed by the Agency on January 21,
2016
11. On March 1, 2016, the minor child was adjudicated dependent.
Legal and physical custody were awarded to the Agency. The
minor child was to remain with the emergency caregiver. The
goal initially established was return to a parent or guardian.
12. The minor child has remained dependent since March 1, 2016
and the minor child has not been returned to the care and
custody of Mother and Father since January 7, 2016.
13. Family Service Plans were prepared and dated as follows:
a. Initial Family Service Plan dated January 28, 2016.
b. Revised Family Service Plan dated July 22, 2016.
c. Revised Family Service Plan dated February 21, 2017.
d. Revised Family Service Plan dated August 1, 2017.
14. In a permanency review order[s dated August 22, 2016,
February 21, 2017, and July 25, 2017 the trial court] made
certain findings and conclusions, including, but not limited
to:
a. There had been minimal compliance with the
permanency plan by the Mother and no compliance with
the permanency plan by Father.
b. Reasonable efforts had been made by the Agency to
finalize the permanency plan.
c. Mother had made minimal progress toward alleviating
the circumstances which necessitated the original
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placement and Father had made no progress towards
alleviating the circumstances which necessitated the
original placement.
d. Legal and physical custody of the minor child were
confirmed with the Agency.
e. There continued to be a need for placement of the minor
child outside the care and custody of the Mother and
Father.
15. [F]ather participated in a Psycho Sexual Evaluation performed
by Tracy Holmes on August 17, 2017.
16. [M]other participated in a Parenting Capacity Assessment
prepared by Dr. Jonathan M. Gransee dated January 12,
2017.
17. A Pressley Ridge Family Engagement Services Team opened
with the family on November 1, 2016, and closed
unsuccessfully on March 29, 2017.
18. A Catholic Charities Family Therapist opened for services with
the [] family on March 31, 2016, and closed unsuccessfully
on August 17, 2016.
19. A Catholic Charities Family Advocate began working with the
[] family on April 5, 2016, and closed unsuccessfully on
September 8, 2016.
20. In an Outpatient Psychiatric Treatment Plan dated December
21, 2016, prepared by Dr. Valentine Krecko and Lisa
MacKillop, the minor child was diagnosed with unspecified
adjustment disorder, unspecified communication disorder,
and child neglect, confirmed, initial encounter. []
21. The minor child attends school in a life skills classroom
through the Dallastown Area School District.
22. The minor child currently participates in speech therapy both
in and out of the school environment.
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25. The minor child is limited in his ability to meet his basic needs
as well as his ability to effectively interact with other adults
and minor children.
26. There had been no drug and alcohol issues raised as it relates
to either Mother or Father.
27. Neither Mother nor Father are [sic] currently on probation or
parole.
28. Both Mother and Father currently receive disability.
29. A pre-adoptive resource has been identified for the minor
child.
Trial Court Opinion, 11/30/17, at 1-7 (emphasis in original).
On November 30, 2017, the trial court entered the decree granting the
petition to involuntarily terminate Father’s parental rights to Child pursuant to
the Adoption Act, 23 Pa.C.S. § 2511, and the order changing Child’s
permanency goal to adoption, with a concurrent goal of placement with a legal
custodian (non-relative), pursuant to the Juvenile Act, 42 Pa.C.S. § 6351.
On December 29, 2017, Father timely filed a notice of appeal, along with
a concise statement of errors complained of on appeal. In his brief, Father
raises the following issues:
I. Did the trial court commit reversible error in involuntarily
terminating the parental rights of the natural father?
II. Did the trial court commit reversible error in changing the goal
of a juvenile dependency proceeding from family reunification to
adoption?
Father’s Brief at 5.
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Initially, we discuss the sufficiency of the evidence to support the goal
change, as the trial court initially discussed the goal change issue in its
opinion. Our standard of review in a dependency case follows:
“The standard of review in dependency cases requires an appellate
court to accept findings of fact and credibility determinations of
the trial court if they are supported by the record, but does not
require the appellate court to accept the lower court’s inferences
or conclusions of law.” In re R.J.T., 9 A.3d 1179, 1190 (Pa.
2010). We review for abuse of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
Regarding the disposition of a dependent child, section 6351(e), (f),
(f.1), and (g) of the Juvenile Act provide the trial court with the criteria for its
permanency plan. Pursuant to those subsections of the Juvenile Act, the trial
court is to determine the disposition that is best suited to the safety,
protection and physical, mental and moral welfare of the child.
When considering a petition for goal change for a dependent child, the
trial court considers:
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007), citing 42 Pa.C.S. § 6351(f).
Additionally, section 6351(f.1) requires the trial court to make a
determination regarding the child’s placement goal:
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(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
***
(2) If and when the child will be placed for adoption, and
the county agency will file for termination of parental rights
in cases where return to the child’s parent, guardian or
custodian is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
42 Pa.C.S. § 6351(f.1).
On the issue of a placement goal change, this Court has stated:
When a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on what
the parent wants or which goals the parent has achieved. See In
re Sweeney, 574 A.2d 690, 691 (Pa. Super. 1990) (noting that
“[o]nce a child is adjudicated dependent . . . the issues of custody
and continuation of foster care are determined by the child’s best
interests”). Moreover, although preserving the unity of the family
is a purpose of [the Juvenile Act], another purpose is to “provide
for the care, protection, safety, and wholesome mental and
physical development of children coming within the provisions of
this chapter.” 42 Pa.C.S. § 6301(b)(1.1). Indeed, “[t]he
relationship of parent and child is a status and not a property right,
and one in which the state has an interest to protect the best
interest of the child.” In re E.F.V., 461 A.2d 1263, 1267 (Pa.
Super. 1983) (citation omitted).
In re K.C., 903 A.2d 12, 14-15 (Pa. Super. 2006).
The trial court stated the following with regard to goal change:
I. Petition for Change of Goal
Before the Court can change the goal for a child in a juvenile
dependency action, the Agency must prove by clear and
convincing evidence that the change of goal would be in the child’s
best interest. In re Interest of M.B., 674 A.2d 702 (Pa. Super.
1996). In making a disposition, the [trial court] should consider
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what is best suited to the protection and physical, mental, and
moral welfare of the child. 42 Pa.C.S.A §6351; In re Davis, 465
A.2d 614, 619 (Pa. 1983). In rendering a disposition “best suited
to the protection and physical, mental, and moral welfare of the
child,” the hearing court must take into account “any and all
factors which bear upon the child’s welfare and which can aid the
court’s necessarily imprecise prediction about that child’s future
well-being.” In re Davis, 465 A.2d 614, 620 (Pa. 1983).
The purpose of the Juvenile Act is to preserve family unity and to
provide for the care, protection, safety and wholesome mental and
physical development of the child. 42 Pa.C.S.A. 6301(a)(1)-(1.1).
The Juvenile Act was not intended to place children in a more
perfect home; instead, the Act gives a court the authority to
“intervene to ensure that parents meet certain legislatively
determined irreducible minimum standards in executing their
parental rights.” In re J.W., 578 A.2d 952, 958 (Pa. Super.
1990).
When a child is placed in foster care, the parents have an
affirmative duty to make the changes in their lives that would
allow them to become appropriate parents. In re Diaz, 669 A.2d
372, 377 (Pa. Super. 1995). A family service plan is created to
help give the parents some guidelines as to the various areas that
need to be improved. In the Interest of M.B., 565 A.2d 804,
806 (Pa. Super. 1989), [appeal denied], 589 A.2d 692 (Pa. 1990).
By assessing the parents’ compliance and success with this family
service plan, the [c]ourt can determine if the parents have fulfilled
their affirmative duty. In re J.S.W., 651 A.2d 167, 170 (Pa.
Super. 1994).
Under [s]ection 6351 of the Adoption Act, the Agency has the
burden to show a goal change would serve the child’s best
interests and the “safety, permanency, and well-being of the child
must take precedence over all other considerations.” In re D.P.,
972 A.2d 1221, 1227 (Pa. Super. 2009), [appeal denied], 973
A.2d 1007 (Pa. 2009). Thus, even where the parent makes
earnest efforts, the “court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.” In re
Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
In the present matter, the Agency has proven by clear and
convincing evidence that it is in the minor child’s best interest to
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change the goal to placement for adoption. The minor child has
been in placement for approximately [22] months and adjudicated
dependent for approximately [20] months. The minor child needs
a permanent, safe and stable environment.
Since the adjudication of dependency, Mother has made minimal
progress towards alleviating the circumstances which necessitated
the minor child’s placement. Mother made no progress related to
her parenting skills with the Catholic Charities team and the team
closed out unsuccessfully. Mother has made attempts for
visitation with the minor child since the adjudication of
dependency; however, Mother has never progressed to
unsupervised visits with the minor child due to her mental health
issues.
Mother received a Parenting Capacity Assessment by Dr. Jonathan
Gransee on January 12, 2017 to assess her mental health and to
determine her capacity to parent the minor child. Mother was
given IQ testing and was determined to have learning issues. Her
IQ score of 58 qualifies her for a diagnosis of Intellectual
Disability, Mild. The psychologist was informed by Mother’s
caseworker that Mother does not have any interactions with the
minor child during their visits; rather, Mother and the minor child
do not talk and Mother “just kinda stares off.” Dr. Gransee stated
in the Parenting Capacity Assessment that, “. . . at this point, it
appears she [Mother] does not possess sufficient capacity to
parent her child.”
Additionally, Mother’s Pressley Ridge in-home family therapist
testified that she has concerns related to Mother’s mental health
issues. She testified that safety issues could arise if Mother and
minor child were left alone unsupervised. The family therapist did
testify that the bond between Mother and minor child appears
strong and that termination would negatively impact the minor
child similar to how termination of any extended family member
would negatively impact a child. The issue remains that the minor
child has been adjudicated dependent for approximately [20]
months and Mother has yet to progress to unsupervised visits.
Since the adjudication of dependency, Father has made minimal
progress towards alleviating the circumstances which necessitated
the minor child’s placement. Pressley Ridge opened services with
Father on March 29, 2017 and remained open until November 13,
2017. Despite receiving services for approximately seven []
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months, Father was never able to progress to unsupervised visits
with the minor child. Father had requested to increase supervised
visits with the minor child from one to two times a week; however,
Pressley Ridge remained concerned about Father’s ability to
provide a safe environment for the minor child. The Pressley
Ridge in-home family therapist testified that, although all of
Father’s actions and boundaries with the minor child have been
appropriate during their visits, she never felt comfortable leaving
the minor child alone with Father.
Furthermore, Father received a Psycho-Sexual Assessment which
the [trial court] finds seriously concerning as it relates to Father’s
views of appropriate sexual conduct. When asked to rate the
statement[,] “A lot of times, sexual assaults on children are not
planned. . . they just happen,” Father said he agreed with that
statement. When asked to rate the statement “Most women are
sluts and get what they deserve. . . ,” Father said he strongly
agreed with that statement. When asked to rate the statement
“If a young child stares at my genitals it means the child likes
what she sees and is enjoying watching my genitals. . .,” Father
neither agreed nor disagreed with that statement. Father had
previously stated that Maternal Grandmother was “fine” with
Father having sex with his step-daughter, Maternal
Grandmother’s [d]aughter and mother of the minor child subject
to this matter. Father also indicated to the [Agency] Caseworker
about one [] week prior to the [h]earing on the Agency’s [p]etition
that he did not understand why it is inappropriate for him to have
had sex with his step-daughter, adult or not. Father also
acknowledged his inability to control his sexual urges as it relates
to Mother and stated that he spends a good majority of his time
at the house in his room alone to control his urges. This testimony
raises questions of appropriate sexual boundaries between
Mother, Father and Maternal Grandmother, who all live in the
same household.
The [trial court found] that Father lied about how many times he
had sexual encounters with Mother. Father originally stated he []
never had sex with Mother. After paternity was established,
Father stated he only had sex with Mother one [] time. During
Father’s Psycho-Sexual Assessment, he stated [] he had sex with
Mother four [] times. The [trial court found] that Father lacks
credibility due to his inability to tell the truth regarding his sexual
contact with Mother.
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Furthermore, Father minimized his responsibility regarding his
sexual contact with his step-daughter, Mother of the minor child.
Although it is not legally incest, Father raised step-daughter since
she was four [] years old. The [trial court voiced] concerns about
Father’s ability to safely protect the minor child given the history
Father has with his step-daughter, Mother of the minor child.
Testimony established that the minor child and Father have a bond
and the minor child enjoys being with Father; however, testimony
emphasized the fact that the minor child believes Father is his
step-grandfather and remains unaware of the fact that Father is
his biological father. The bond between minor child and Father is
not a parental bond but rather a family relative kind of bond.
Overall, Mother and Father [] made minimal progress towards
alleviating the circumstances which caused the minor child to be
placed and have not assumed any major parental duties for minor
child. The [trial court] remain[ed] extremely concerned about the
lack of appropriate boundaries between Father, Mother and
Maternal Grandmother. As such, the [trial court found] that the
minor child’s best interest demand[ed] that the goal be changed
from reunification with a parent to placement for adoption.
***
CONCLUSIONS OF LAW
1. The current placement of [Child] continues to be necessary and
appropriate. 42 Pa.C.S. §6351(f)(1).
2. Mother and Father have not been able to meet the goals set
forth in the family service plans. 42 Pa.C.S. §6351(f)(2).
3. The circumstances which necessitated [Child’s] original
placement have not been alleviated. 42 Pa.C.S. §6351(f)(3).
4. The current goal for [Child] of reunification with a parent is no
longer feasible and appropriate because Mother and Father have
failed to meet the irreducible minimum requirements necessary to
parent the child. 42 Pa.C.S. §6351(f)(4).
5. [Child’s] best interests demand that the current goal of
reunification with a parent be changed to placement for adoption.
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Trial Court Opinion, 11/30/17, at 7-13, 20-21 (emphasis in original)
Here, competent evidence in the record supports the trial court’s change
of permanency goal for Child to adoption as best suited to the safety,
protection and physical, mental and moral welfare of the child. See 42 Pa.C.S.
§ 6351.
Next, we review the sufficiency of the evidence to support the
termination of Father’s parental rights. 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
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
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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, 826-27 (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). 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 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).
Although the trial court focused its discussion on section 2511(a)(1),
(2), (5), (8), and (b), we will discuss only sections 2511(a)(1), (2), and (b).
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). Section
2511(a)(1) and (2) provide, in relevant part, 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:
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(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
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 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:
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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).
Our Supreme Court described the requisite inquiry under section
2511(a)(2) as follows.
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
This Court has addressed incapacity sufficient for termination
under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based upon
parental incapacity. The legislature, however, in enacting the
1970 Adoption Act, concluded that a parent who is incapable
of performing parental duties is just as parentally unfit as one
who refuses to perform the duties.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986), quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
In re Adoption of S.P., 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A
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parent’s vow to cooperate, after a long period of uncooperativeness regarding
the necessity or availability of services, may properly be rejected as untimely
or disingenuous. Id. at 340.
This Court has stated 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 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.
§ 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)],
[our Supreme] 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. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). 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
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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 and 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 at 763 (affirming involuntary
termination of parental rights, despite existence of some bond, where
placement with mother would be contrary to child’s best interests). “[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).
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The trial court explained its decision to terminate parental rights as
follows:
II. Petition for Involuntary Termination of Parental Rights
The Agency argues that Mother’s and Father’s parental rights to
the minor child should be terminated pursuant to 23 Pa.C.S.
§ 2511(a)(1) [and (2)] of the Adoption Act. The Agency has the
burden of establishing by clear and convincing evidence that
statutory grounds exist to justify the involuntary termination of
parental rights. In re Child M., 681 A.2d 793, 797 (Pa. Super.
1996). The clear and convincing standard means that the
evidence presented by the Agency is so “clear, direct, weighty,
and convincing” that one can “come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.” Matter of
Sylvester, 555 A.2d 1202, 1202-1204 (Pa. 1989). The Agency
must also present evidence proving that the termination of
parental rights will serve the child’s best interests. In the Matter
of Adoption of Charles E.D.M. [ ], 708 A.2d 88, 92-93 (Pa.
1998). To determine whether termination is within the best
interest of the child, the court must examine the possible effect
the termination would have on the child’s needs and general
welfare. In re Adoption of Godzak, 719 A.2d 365, 368 (Pa.
Super. 1998).
THE AGENCY HAS PROVEN BY CLEAR AND CONVINCING
EVIDENCE THAT PARENTAL RIGHTS TO THE MINOR CHILD
MUST BE TERMINATED PURSUANT TO 23 Pa.C.S.
§2511(a)(1)
To terminate parental rights under 23 Pa.C.S. §2511(a)(1) of the
Adoption Act, the Agency must establish, by clear and convincing
evidence, that the parent has either demonstrated a settled
purpose of relinquishing parental claim to a child or has failed to
perform parental duties. In the Matter of Adoption of Charles
E.D.M. [ ], 708 A.2d at 91. Once one (1) of the two (2) factors
has been proven, the Court must examine the following three []
factors: (1) parent’s explanation for the conduct; (2)
post-abandonment contact between parent and child; and (3)
effect of termination on child. Id.
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The Agency has proven by clear and convincing evidence that
Mother and Father have failed to perform any significant parental
duties for the minor child. The minor child has been dependent
for approximately [20] months. Testimony established that
Mother made no progress regarding her parenting skills during the
time minor child has been dependent and failed to successfully
complete services with Catholic Charities.
Testimony [also] established that[,] although supervised visits
between Mother and minor child occurred, there is a continuing
safety concern regarding Mother’s mental health issues and her
ability to properly parent the child. As such, the Agency testified
that the minor child does not have a parental bond with Mother
but rather an extended family member type of bond. Further,
Mother failed to progress to unsupervised visits with the minor
child since the child was taken into care in March 2016.
In the [20] months that minor child has been adjudicated
dependent, Father has never progressed to unsupervised visits.
There is a continuing concern regarding Father’s ability to
understand appropriate sexual boundaries given his history with
his stepdaughter and untruthfulness surrounding his history with
her. The Pressley Ridge in-home family therapist testified that
she never felt comfortable leaving the minor child alone with
Father and did not feel comfortable progressing to unsupervised
visits at the time of the [h]earing on the Agency’s Petition for
termination of parental rights.
Before entering foster care, the minor child showed significant
dental neglect. Mother and Father neglected taking minor child to
the appropriate dental appointments for many years and, as a
result, the minor child suffered significant pain over a two (2) year
period. Additionally, the minor child was not properly
potty-trained and could not appropriately feed himself with
utensils when he came under the care of the Agency when he was
six (6) years old. Since residing with foster parents, the minor
child has learned how to care for his hygiene independently and
has had his dental issues managed.
Academically, the minor child has shown improvement under the
foster parents’ care. The minor child receives instructional
support in a neurological support classroom within the Dallastown
Area School District. He also receives speech services both in and
out of the school. When the minor child came into the foster
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parents’ care, he displayed a [k]indergarten/beginning [f]irst
[g]rade level when he started [s]econd [g]rade. Currently under
the foster parents’ care, his instructional support educator
testified that he has shown significant improvement and now
displays a mid-[f]irst [g]rade level in reading, a [f]irst [g]rade
level in math, and a beginning [f]irst [g]rade level in writing. His
teacher testified that neither Mother nor Father were involved in
the updating of the child’s IEP in February 2017. Mother has never
attended any of minor child’s school activities and has never
contacted the school regarding the minor child’s IEP. Father, on
the prompting of the caseworker, contacted the school one [] time
[] to request information related to the minor child’s IEP plan.
Overall, the [trial court] finds that the termination of Mother’s and
Father’s parental rights will provide a benefit to the minor child in
that the child will achieve stability and permanency in a loving and
safe home. Therefore, for all the reasons stated above, the
Agency has proven by clear and convincing evidence that
termination of parental rights to the minor child is justified
pursuant to Section 2511(a)(1) of the Adoption Act.
THE AGENCY HAS PROVEN BY CLEAR AND CONVINCING
EVIDENCE THAT PARENTAL RIGHTS TO THE MINOR CHILD
MUST BE TERMINATED PURSUANT TO 23 Pa.C.S.
§ 2511(a)(2)[.]
The Agency has also proven by clear and convincing evidence that
the parental rights to the minor child should be terminated
pursuant to 23 Pa.C.S. § 2511(a)(2) [] of the Adoption Act. The
mandates of these sections are as follows:
(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.
The [trial court found] that the conditions which led the minor
child to placement outside the care and custody of Mother and
Father continue to exist. The minor child has been in placement
for approximately [20] months and is well-bonded to the foster
family. The minor child has a bond with Mother but it is not a
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parent-child bond; rather, the minor child sees Mother as an
extended family member. While the minor child has a bond with
Father, minor child believes Father is actually his step-grandfather
and does not look to Father as a parent nor does he address Father
as “Dad.”
The [trial court] remains concerned with Mother’s and Father’s
ability to parent and care for the minor child. Testimony
established that Mother currently does not have employment nor
does she have any previous working experience. Mother has
received disability since the time she was [18] years old due to
her mental health diagnoses. Father also receives disability and
does not work. Mother and Father currently reside in the same
house, along with Father’s wife who is also the mother of minor
child’s [m]other. The [trial court was] troubled by the
inappropriate boundaries between these three [] adults.
Overall, Mother and Father have failed to remediate the conditions
which led to the minor child’s placement and have failed to provide
parental duties on behalf of the minor child. Mother and Father
have been unable to progress to unsupervised visits with the
minor child since the adjudication of dependency approximately
[20] months ago. In consideration of this testimony, the [trial
court found] that the Agency clearly and convincingly established
that termination of parental rights is justified pursuant to [s]ection
2511(a)(2)[] of the Adoption Act.
IN CONSIDERATION OF §2511(b), TERMINATION OF
PARENTAL RIGHTS WOULD BEST SERVE THE NEEDS AND
WELFARE OF THE MINOR CHILD
Having established the statutory grounds for the involuntary
termination of the parental rights of Mother and Father, the [trial
court’s] final consideration is whether termination of parental
rights will best serve the developmental, physical and emotional
needs and welfare of the child. 23 Pa.C.S. §2511(b).
[T]he Court must carefully consider the tangible
dimension, as well as the intangible dimension - the love,
comfort, security, and closeness - entailed in a parent –
child relationship. (citations omitted). The court must
consider whether a bond exists between the child and
[parents], and whether termination would destroy an
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existing beneficial relationship. In re: B.N.M., 856 A.2d
847 (Pa. Super. 2004).
The [trial court] thoroughly evaluated the minor child’s
relationships in this matter. [It found] that the minor child has a
bond with Mother but it is not of a parent-child nature. The [trial
court further found] that the minor child has a bond with Father;
however, the minor child believes Father is his step-grandfather,
not his biological father. The [trial court found] that the minor
child has a much stronger parental bond with the foster family and
that the minor child looks to the foster parents for comfort. It is
the foster family who provides for the minor child’s daily needs
and acts as the minor child’s parental figures. Testimony
established that the minor child calls the foster parents “mom”
and “dad.” At this point, the [trial court therefore concluded] that
the termination of Mother’s and Father’s parental rights will not
have a significantly negative impact on the minor child.
The [trial court] also finds that the bond between the minor child
and foster family is strong and healthy. Testimony established
that the child is thriving and improving both health-wise and
academically in the foster family’s care. Before entering foster
care, the minor child showed significant dental neglect. Mother
and Father neglected taking minor child to the appropriate dental
appointments for many years and, as a result, the minor child
suffered significant pain over a two[-]year period. Additionally,
the minor child was not properly potty-trained and could not
appropriately feed himself with utensils when he came under the
care of the Agency when he was six [] years old. Since residing
with foster parents, the minor child has learned how to care for
his hygiene independently and has had his dental issues managed.
Academically, the minor child has shown improvement under the
foster parents’ care. The minor child receives instructional
support in a neurological support classroom within the Dallastown
Area School District. He also receives speech services both in and
out of the school. When the minor child came into the foster
parents’ care, he displayed a [k]indergarten/beginning [f]irst
[g]rade level when he started [s]econd [g]rade. Currently under
the foster parents’ care, his instructional support educator
testified that he has shown significant improvement and now
displays a mid-[f]irst [g]rade level in reading, a [f]irst [g]rade
level in math, and a beginning [f]irst [g]rade level in writing. His
teacher testified that neither Mother nor Father were involved in
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the updating of [C]hild’s IEP in February 2017. Mother has never
attended any of minor child’s school activities and has never
contacted the school regarding the minor child’s IEP. Father, on
the prompting of the caseworker, contacted the school one [] time
[] to request information related to the minor child’s IEP plan.
Conversely, foster parents attend every conference that is
scheduled for the minor child and are in constant communication
with the minor child's teacher. The foster parents appear to be
engaged and advancing the minor child’s interests.
The bond that the minor child has with the foster family can
provide safety, security and permanency for the child.
Termination of parental rights will best meet the needs of the
minor child and permit the child to achieve the stability that he
deserves.
***
CONCLUSIONS OF LAW
***
[] Mother and Father have failed to perform parental duties for a
period well in excess of six (6) months. 23 Pa.C.S. §2511(a)(1).
[In addition, t]he Agency has established by clear and convincing
evidence that the inability and refusal of Mother and Father has
caused the child to be without parental care, control or
subsistence necessary for [his] physical or mental well-being and
the conditions cannot be remedied by Mother and Father. 23
Pa.C.S. §2511(a)(2).
***
SUMMARY
In conclusion, the [trial court determined] that the termination of
Mother’s and Father’s parental rights is clearly in the best interests
of the minor child to promote his welfare and allow him to achieve
permanency. The [trial court] therefore execut[ed] a [d]ecree
terminating Mother’s and Father’s parental rights with respect to
[Child,] and an [o]rder directing that the current goal of
reunification with parent or guardian for [Child be] changed to
placement for adoption. Said [o]rder also establishes the
concurrent goal for [Child] to be placed with a legal custodian
(non-relative).
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Trial Court Opinion, 11/30/17 at 13-22 (emphasis in original).
Regarding section 2511(a)(1), the competent evidence in the record
supports the trial court’s finding that Father failed to perform parental duties.
Moreover, the trial court rejected Father’s explanation for his conduct toward
Child, considered the post-abandonment contact between Father and Child,
and also considered the effect of terminating Father’s parental rights on Child
under section 2511(b). See In re Adoption of Charles E.D.M., 708 A.2d at
92. With respect to section 2511(a)(2), the record also supports the trial
court’s conclusion that Father’s repeated and continued incapacity, abuse,
neglect or refusal caused Child to be without essential parental care, control
or subsistence necessary for his physical or mental well-being, and that the
conditions and causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by Father. Thus, we find no abuse of discretion or error
of law on the part of the trial court. See In re Adoption of S.P., 47 A.3d at
826-27. Because we find no abuse of the trial court’s discretion, we affirm
the court’s decree and order.
Decree and order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/25/18
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