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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.L.K., FATHER :
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:
:
: No. 3536 EDA 2017
Appeal from the Order October 4, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000913-2017
BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 11, 2018
D.L.K. (“Father”) appeals from the order terminating his parental rights
to A.J.K. (“Child”). Because we conclude that the trial court did not abuse its
discretion in terminating Father’s parental rights, we affirm.
Child, born October 2010, has two siblings, Z.L.K., born June 2001, and
C.K.1 On March 9, 2015, the Department of Human Services (“DHS”) received
a general protective services report alleging that Z.L.K. was truant, that the
school had attempted to contact her parents, that she was two school grades
below her grade level, and that there were concerns regarding the condition
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* Former Justice specially assigned to the Superior Court.
1 C.K. was “about 20 years old” in 2015. N.T., 10/4/17, at 13.
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of the home.2 N.T., 10/4/17, at 10-11. DHS made approximately four
attempts to visit the home, and, although DHS observed people inside the
home on at least one occasion, no one responded. Id. at 11.
Father and S.K. (“Mother”) continued to refuse DHS access to the home
until April 27, 2015, after DHS received police assistance and obtained a
break-down order from the trial court. Id. at 11-12. Once inside the home,
DHS discovered that the home was in deplorable condition. There was “trash
from the door all the way to the top of the top floor,” id. at 12, including
empty soda bottles, pizza boxes, broken toys, and dog waste, id. at 12-13.
The home had a “stench of dog, dog urine, feces, old food, [and] garbage.”
Id. at 19-20. The bathtub was filled with trash. Id. at 21. The children’s beds
did not have bedsheets, the refrigerator had no food, and the stove did not
work. Id. at 12-13. Further, the home’s garage contained car parts from floor
to ceiling. Id. at 12.
DHS met with Z.L.K. and Child, both of whom were not well kept. Id. at
14, 20.3 Z.L.K. informed DHS that she had not had her hair done in a year or
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2 DHS had also received allegations that Z.L.K. was truant on January 13,
2012, and November 14, 2013. DHS was unable to contact the parents to
investigate the allegations.
3 DHS may have been able to speak with Z.L.K. and Child prior to April 28,
2015. See Trial Court Opinion, filed Jan. 24, 2018, at 4-5 (stating that on April
14, 2015, Father answered door and, although he did not allow DHS to enter
the home, DHS did speak with Children); Petition for Involuntary Termination
of Parental Rights, at Ex. A, Statement of Facts, filed 9/18/2017, at ¶ h
(same). The facts as outlined in this memorandum are from the testimony at
the hearing on the Petition for Involuntary Termination of Parental Rights.
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two and did not know the last time she had taken a bath. Id. at 20-21. DHS
noted that Child had bruising on different parts of his body. Id. at 14. Further,
Child had not received well-child visits or immunizations for the past two-to-
three years. Id. at 19.
DHS obtained an Order for Protective Custody. The trial court
adjudicated Child dependent on May 19, 2015. Shortly after being removed
from the home, Child was placed with S.T. (“Foster Mother”).
The trial court held numerous permanency review hearings following
Child’s placement. Father’s goals varied, but included: cleaning the home of
debris and other items that posed a safety threat to Child, visiting with Child,
applying for medical coverage, and attending individual therapy.
On September 18, 2017, DHS filed a Petition for Involuntary
Termination of Parental Rights to Child.4 The trial court conducted a hearing.5
At the hearing, George Siti, a DHS worker, outlined the case’s history prior to
adjudication. N.T., 10/4/17, at 9-26. In addition, Dr. Erica Williams,
Psychologist and Director of Forensic Services, testified. She had conducted a
parenting capacity evaluation and an addendum parenting capacity evaluation
for Father. Id. at 27. Following a March 15, 2016 parenting capacity
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4 DHS also filed a petition to terminate Mother’s parental rights to Child, and
the trial court terminated Mother’s parental rights to Child on the same day it
terminated Father’s rights. Mother filed a Notice of Appeal, which is docketed
at 3534 EDA 2017.
5 For a complete factual history of this case and an extensive summary of the
evidence presented at the hearing, please see the Trial Court Opinion, filed
Jan. 24, 2010, at 1-33.
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evaluation, Dr. Williams opined that Father did not present with the capacity
to provide safety and permanency to Child. Id. at 46. She noted his non-
responsiveness to Z.L.K.’s truancy, his refusal to allow DHS in the home, his
projection of his issues onto others, and the conditions of the home. Id. at
46-47. Following a January 2017 parenting capacity evaluation, Dr. Williams
again opined that Father did not have the capacity to provide safety or
permanency for Child, noting that the same concerns from March 2016
continued to exist. Id. at 49. She noted that although Father was complying
with his objective to attend therapy, the compliance was “not translating into
[Father] addressing the issues of concern.” Id. at 54. She noted that in
therapy Father needed to focus on “understanding the role [he] played in the
children’s removal, taking accountability and ownership for [his] parenting
and the neglect that occurred and helping [him] work towards developing a
plan that that wouldn’t occur again.” Id. at 67.6
Dr. Williams also conducted a bonding evaluation. Id. at 27. She noted
that Child hid behind Foster Mother when he saw Father and that Child stated
he did not want to live with Father. Id. at 51-52. She observed that Child
engaged with Father and allowed Father to tickle him, but that Child was
unresponsive when Father requested that he pick up the toys. Id. at 52-53.
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6 At the time of the evaluations, Dr. Williams had requested, but had not
received from NHS Human Services (“NHS”), Father’s mental health records.
N.T., 10/4/17 at 69-70.
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Dr. Williams opined that Child would not suffer irreparable harm if the trial
court terminated Father’s parental rights. Id. at 53.
Reginald Nelson, the case manager at Catholic Community Services, a
Community Umbrella Agency, also testified. He stated that there were issues
in the current home, including that DHS observed drug paraphernalia in the
home and that it had concerns regarding the individuals living in the current
home. Id. at 75-76. Mr. Nelson stated he observed no issues with hoarding,
but did observe issues of cluttering. Id. at 77. He stated that the last of the
home improvements—installation of the fire alarm and fixing a light—had been
completed. Id. Mr. Nelson stated that Child struggles during the visits with
Father and he has no difficulty leaving at the end of a visit. Id. at 82-83. He
further testified that Child has a positive relationship with Foster Mother. Id.
at 85. He stated that terminating Father’s parental rights would be in Child’s
best interest, id. at 105, and that Child is secure, is in a safe environment,
and has a strong bond with his foster family. Id. at 85. Mr. Nelson noted that
Father does not call him to inquire about Child’s well-being. Id. at 86. He
further noted that Child made allegations that, before being removed from
Father and Mother’s home, he had been locked in the trunk of Mother’s car
and locked in his room. Id.
Dr. Beverly Ingles, a psychologist, also testified. She sees Child in
therapy on a bi-weekly basis. Id. at 108. Dr. Ingles stated that Child is very
responsive to Foster Mother, and is very well bonded with her. Id. at 114. She
has observed that Child’s visits with his parents are very difficult for Child.
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Child has nightmares after the visits and states he does not like his parents
because they are bad. Id. at 114-15. She further testified that Child refers to
Father and Mother by their first names and refers to his foster parents as mom
and dad. Id. at 115. She opined that it would be harmful and have
“devastating effects” to remove Child from the foster home. Id. at 117.
Foster Mother testified that when Child arrived he was “sad, frightened
and confused.” Id. at 122. She said Child was clingy, had nightmares, and
asked her to stay by his bed at night. Id. She stated that Child is much better
now, that her relationship with Child is excellent, and that he goes to her and
her husband with his fears and anxieties. Id. at 124.
Father next testified. He stated Child enjoyed the visits with Father,
where they played games and had fun. Id. at 127-28. He noted Child became
cooler with him during visits at the Agency. Id. at 129. He stated he repaired
the lighting fixtures and fire alarm in the house in which he and Mother are
residing. Id. at 130. He obtained a certificate of completion from Project
Positive Parenting and attends therapy at NHS. Id. at 133, 136. Father
testified that he had rectified the hoarding issues and obtained medical
insurance. Id. at 145. Father also claimed the therapy enabled “[him] to
accept the ownership of the—of things that I’ve done as far as not ensuring
that my children went to school consistent as far as—my daughter especially.
Or ensuring that they saw doctors consistently.” Id. at 144. He said he
“owned” those facts, but could not “do anything about them right now because
I don’t actually have the children.” Id.
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On October 4, 2017, the trial court terminated Father’s parental rights,
finding DHS presented clear and convincing evidence for termination of
Father’s parental rights under Sections 2511(a)(1), (2), (5), and (8) of the
Adoption Act, and that termination would be in Child’s best interest under
Section 2511(b). 23 Pa.C.S.A. § 2511(a)( 1), (2), (5), (8), (b). Father filed a
timely notice of appeal.
On appeal, Father raises the following issues:
1. Did the Department of Human Services (DHS) sustain the
burden that Father’s rights should be terminated when there
was evidence that Father had completed and/or had been
actively completing [his] permanency goals?
2. Was there was sufficient evidence presented to establish
that it was in the best interest of the child to terminate
Father’s parental rights?
Father’s Br. at 4 (trial court answers omitted).
Father maintains the trial court erred in terminating his parental rights
because he had made progress toward completing his goals, his visits with
Child were appropriate, and Child was happy to see Father. He further argues
DHS did not present sufficient evidence to support a conclusion that
termination of parental rights would be in Child’s best interest.
When reviewing orders terminating parental rights, we must “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting
In re Adoption of S.P., 47 A.3d 817, 826 (Pa.2012)). Where “the factual
findings are supported,” we review the decision “to determine if the trial court
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made an error of law or abused its discretion.” Id. We defer “to trial courts
that often have first-hand observations of the parties spanning multiple
hearings,” id., and will reverse a decision “for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will,” id. (quoting In re Adoption of S.P., 47 A.3d at 826). We will not
reverse the trial court “merely because the record would support a different
result.” Id. (quoting In re Adoption of S.P., 47 A.3d at 827).
The Pennsylvania Supreme Court has explained the reason for applying
an abuse of discretion to termination decisions:
[U]nlike 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).
To affirm the termination of parental rights, this Court need only agree
with the trial court’s determination as to any one subsection of section
2511(a), along with section 2511(b). In re B.L.W., 843 A.2d 380, 384
(Pa.Super. 2004) (en banc). Here, we conclude that the trial court properly
terminated Father’s parental rights pursuant to sections 2511(a)(2) and (b).
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We will first review the trial court’s conclusion that termination was
proper under Section 2511(a)(2), which provides:
(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:
...
(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.
23 Pa.C.S.A. § 2511(a)(2).
To terminate parental rights pursuant to Section 2511(a)(2), the moving
party must produce clear and convincing evidence of the following: “(1)
repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has 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). Further, we note that “[p]arental rights
are not preserved by waiting for a more suitable or convenient time to perform
one’s parental responsibilities while others provide the child with his or her
physical and emotional needs.” See In re B., N.M., 856 A.2d 847, 855
(Pa.Super. 2004).
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Here, in terminating Father’s parental rights, the trial court noted that
when DHS removed Child from the home, the home was uninhabitable due to
the “collection of junk and trash,” the children were unkempt, Z.L.K. had not
been attending school, and the children had not received medical care. N.T.,
10/4/2018, at 184. It further found that 30 months later, Father had not put
himself “in a position to understand [his] Children[, a]nd once understanding
them then be able to care for them.” Id. at 185. The court stated it did not
believe Father “benefitted one measure from all of the attendance at parenting
classes.” Id. at 186. Further, the court noted it did not have records or
testimony from Father’s therapist, and “[took] with a grain of salt everything
[Father] says about how well he’s adjusted.” Id.
The trial court further referenced the objectivity of the case workers and
supervisor, noting they saw “things completely different than the parents
[saw] things.” Id. It noted the current home became appropriate only within
the preceeding few weeks and that the family “moved into another building
rather than address the mess that they had created” in the prior house. Id.
at 186-87. The court found parents did not take any concrete steps to put
themselves in a position to parent Child. Id. at 187. The trial court further
stated that “[f]rom the beginning when the Child was placed he became a
different child.” Id. The court did not believe that parents were capable of
recognizing the issues. Id. It referenced the experts’ opinions that the therapy
and education have not improved Father’s status as a parent, and noted that
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Father was “unconnected to the reality and that’s a safety factor for this Child
going forward.” Id. at 189-90. The trial court concluded:
While they present this image that they’ve done everything
they could it’s meaningless because all they did was attend
sessions, have not demonstrated that they’ve benefitted
from any of this education. [They h]ave not demonstrated
that they understand these Children or are able to now
parent these children and keep them safe and provide for
their wellbeing going forward.
I think the record is clear and convincing that they’re not
able to parent [Child].
Id. at 188.
We conclude that the trial court’s factual findings are supported by the
record and it did not abuse its discretion in terminating Father’s parental rights
under Section 2511(a)(2). The conditions that existed upon removal establish
“repeated and continued incapacity, abuse, neglect or refusal” that caused
Child “to be without essential parental care, control or subsistence necessary
for his physical or mental well-being.” Further, the record supports the court’s
conclusion that Father continued to lack the capacity to parent Child.
We next address the trial court’s conclusion that termination would best
serve Child’s developmental, physical and emotional needs and welfare under
Section 2511(b). Section 2511(b) provides:
(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.
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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(b).
The focus in terminating parental rights under section 2511(b) is not on
the parent, but on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008
(Pa.Super. 2008) (en banc). Pursuant to section 2511(b), the trial court must
determine “whether termination of parental rights would best serve the
developmental, physical and emotional needs and welfare of the child.” See
In re C.M.S., 884 A.2d 1284, 1286 (Pa.Super. 2005). This Court has
explained that “[i]ntangibles such as love, comfort, security, and stability are
involved in the inquiry into [the] needs and welfare of the child.” Id. at 1287.
The trial court “must also discern the nature and status of the parent-child
bond, with utmost attention to the effect on the child of permanently severing
that bond.” Id.
The trial court noted Mr. Nelson’s testimony that Child did not ask for
Father, referred to his parents by their first names, referred to his foster
parents as mom and dad, and seeks his foster parents for safety, comfort and
to meet his daily needs. Trial Court Opinion, filed Jan. 24, 2018, at 40. It
further noted that Dr. Ingles testified Child is well bonded to Foster Mother
and that Child did not want to visit his parents. Id. It also referenced the
bonding evaluation, which concluded Child would not suffer irreparable harm
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if the trial court terminated Father’s parental rights. Id. The trial court
concluded that termination would best serve the Child’s needs and welfare
and Child would not suffer irreparable harm if Father’s parental rights were
terminated. Id. at 40-41. We conclude that the record supports this
determination and the trial court did not abuse its discretion in terminating
Father’s parental rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/18
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