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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: TERMINATION OF PARENTAL : IN THE SUPERIOR COURT OF
RIGHTS OF S.D. AND W.F. AS TO : PENNSYLVANIA
THE MINOR CHILD A.W.F. :
:
:
:
:
APPEAL OF: W.F., FATHER OF THE :
MINOR CHILD : No. 1880 WDA 2017
Appeal from the Decree November 2, 2017
In the Court of Common Pleas of Elk County
Orphans’ Court at No: No. 3 of 2016
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 2, 2018
W.F. (“Father”) appeals from the decree entered November 2, 2017, in
the Court of Common Pleas of Elk County, which terminated involuntarily his
parental rights to his minor son, A.W.F. (“Child”), born in July 2011.1 After
careful review, we affirm.
The record reveals that Elk County Children and Youth Services (“CYS”)
became involved with this family in 2014, after it received reports alleging
deplorable living conditions in Father’s home. N.T., 7/7/16, at 7. The reports
further alleged that drug use was occurring in the home and “that threats were
being made” against Child’s older sister, J.E.D. Id. CYS obtained custody of
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* Retired Senior Judge assigned to the Superior Court.
1 The decree also terminated the parental rights of S.D., Child’s mother. S.D.
filed an appeal at Superior Court docket number 1879 WDA 2017. We address
her appeal in a separate memorandum.
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Child pursuant to an emergency order dated September 4, 2014. The trial
court adjudicated Child dependent by order dated September 10, 2014.
On January 8, 2016, CYS filed a petition to terminate Father’s parental
right to Child involuntarily. The trial court conducted a termination hearing
on July 7, 2016, November 10, 2016, and February 1, 2017.2, 3 Following the
hearing, on November 2, 2017, the court entered a decree terminating
Father’s parental rights. Father timely filed a notice of appeal on November
28, 2017, along with a concise statement of errors complained of on appeal.
Father now presents the following questions for our review:
I. Whether the trial court erred as a matter of law or abused its
discretion by involuntarily terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(1)?
II. Whether the trial court erred as a matter of law or abused its
discretion by involuntarily terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(2)?
III. Whether the trial court erred as a matter of law or abused its
discretion by involuntarily terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(5)?
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2The hearing actually began on March 31, 2016, but Father was not present
or represented by counsel that day, and the testimony focused on Child’s older
half-brother, C.J.D., who is not Father’s child.
3 The trial court appointed Thomas G.G. Coppolo, Esquire, to represent Child
during the termination proceedings. Our review of the record indicates that
Attorney Coppolo provided adequate representation of Child’s legal interests
during the hearing. However, we note with disapproval that Attorney Coppolo
failed to file a brief advocating for Child’s legal interests on appeal. See In
re Adoption of T.M.L.M., 184 A.3d 585, 590 (Pa. Super. 2018) (explaining
that counsel’s duty to represent a child continues on appeal).
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IV. Whether the trial court erred as a matter of law or abused its
discretion by involuntarily terminating [Father’s] parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(8)?
V. Whether the trial court erred as a matter of law or abused its
discretion by finding that terminating [Father’s] parental rights
would best serve the child’s needs and welfare pursuant to 23
Pa.C.S.A. § 2511(b)?
Father’s Brief at 5 (unnecessary capitalization and trial court answers
omitted).
We review a decree terminating parental rights involuntarily in
accordance with the following standard:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S.A. § 2511, governs
involuntary termination of parental rights. It requires a bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
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the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Father’s parental rights pursuant
to Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the
court as to any one subsection of Section 2511(a), as well as Section 2511(b),
in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s
decision to terminate under Section 2511(a)(8) and (b), which provides as
follows:
(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:
***
(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
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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)(8) and (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(8):
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8), the following factors must be demonstrated: (1) The
child has been removed from parental care for 12 months or more
from the date of removal; (2) the conditions which led to the
removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
Termination under Section 2511(a)(8) does not require consideration of a
parent’s willingness or ability to remedy the conditions that led to the removal
of his or her child. In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super.
2006).
In its opinion accompanying the termination decree, the trial court found
that Child has remained in foster care for longer than twelve months, and that
the conditions leading to Child’s removal continue to exist. Trial Court
Opinion, 11/2/17, at 10, 15, 17. The court reasoned that Father failed to
comply with services in a timely manner, failed to obtain suitable housing, and
failed to maintain a healthy relationship with Child. Id. at 13-15. The court
further found that terminating Father’s parental rights would best serve Child’s
needs and welfare. Id. at 16. The court reasoned that there is no evidence
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that Father and Child share a necessary and beneficial bond, and that Child
will not suffer irreparable harm. Id. The court concluded that Child’s
relationship with Father is, at best, “a primary or basic parental bond . . . that
is not secure.” Id.
Father contends that the trial court erred by finding that CYS presented
sufficient evidence to terminate his parental rights. Father’s Brief at 33.
Father maintains that the court removed Child from his care due primarily to
poor housing conditions, and that he remedied those conditions by obtaining
a suitable home. Id. at 34. Father insists that CYS visited his home only
twice, that the home was inadequate during only one of those visits, and that
he was performing work on the home at that time. Id. at 27-29. Father also
insists that his delay in finding a suitable home resulted from his financial
circumstances, and from his inability to find someone willing to rent to him.
Id. at 29-30.
Our review of the record supports the trial court’s findings. As discussed
above, the trial court removed Child from Father’s care in September 2014.
By the time the court terminated Father’s parental rights in November 2017,
Child had been removed from Father’s care for over three years, well beyond
the twelve months required by Section 2511(a)(8).
In addition, the record is replete with evidence supporting the trial
court’s finding with respect to the second requirement of Section 2511(a)(8),
that the conditions which led to the removal of Child continue to exist. During
the termination hearing, CYS presented the testimony of caseworker, Carrie
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Shutters. Ms. Shutters testified that the court ordered Father to comply with
several goals. N.T., 7/7/16, at 13-15. Father’s goals included completing
parent/child interactive therapy, completing an anger management program,
completing a drug and alcohol assessment and following all recommendations,
completing a mental health assessment and following all recommendations,
participating in services to help teach cleaning and organizational techniques,
completing age-appropriate parenting education classes and demonstrating
appropriate parenting skills, and obtaining and maintaining safe and stable
housing. Id. at 15.
Concerning Father’s compliance with these goals, Ms. Shutters testified
that Father completed parent/child interactive therapy sometime in 2015. Id.
at 14. Father also completed an anger management program, but he did not
begin the program until March 16, 2016, and did not finish it until May 5,
2016. Id. at 15. Ms. Shutters reported that Father’s anger management
program did not appear to be successful. Id. She recalled, “I made a phone
call to him, and he was upset with me. He yelled, screamed at me and swore
at me and then hung up the phone.” Id.
Ms. Shutters further testified that Father did not complete a drug and
alcohol assessment until March 29, 2016. Id. at 13. After completing the
assessment, Father failed to sign the release necessary for Ms. Shutters to
contact his doctor and confirm that he “was prescribed the medications which
he states he was.” Id. Father completed a mental health intake “after March”
2016, but did not complete the assessment. Id. Father did not participate in
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services to help teach cleaning and organizational techniques, and began but
did not complete parenting classes.4 Id. at 14, 24. Relatedly, Ms. Shutters
testified that CYS cancelled eleven of Father’s forty-nine possible visits with
Child, because he did not call to confirm or failed to appear. Id. at 20. Father
arrived late at fifteen of the visits, and ended one visit early. Id.
Concerning Father’s housing, Ms. Shutters testified that Father moved
twice after Child entered foster care. Id. at 10-11. Father moved into his
current home in approximately December 2015. Id. at 11. Ms. Shutters
reported that she made eleven attempts to visit Father’s home between
December 2015 and March 2016 before he allowed her to see it. Id. at 12.
She explained,
I would call and ask if I could come. I would ask them, when they
were at visits, if I could come see the house, and I was told
repeatedly that I could not come; it was not ready yet. And then
they told me on several days that I could come see it the next
day, and then they would cancel and say that they weren’t going
to be home.
Id. at 12-13.
When Ms. Shutters finally succeeded in conducting a visit at Father’s
home, it appeared to meet “all the standards.” Id. at 12. However, when
Ms. Shutters returned and conducted a surprise visit in May 2016, she
discovered that the home was now dirty and unsafe. Id. at 12, 16. She
recalled, “[t]he pathways were not clear. There was -- were piles of paint
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4 Father testified later, on November 10, 2016, that he did complete parenting
classes. N.T., 11/10/16, at 44.
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chips lying around. . . . there were shoes in the middle. There were boxes.
There were just household items scattered around. The kitchen, there were
dirty items on the counter.” Id. at 26.
Thus, it is clear that the conditions leading to Child’s removal from
Father’s care remain unresolved. Each of Father’s court-ordered goals related
in some way to addressing the concerns and circumstances resulting in Child’s
removal. However, Father did not complete the majority of those goals, and
did not even begin working toward many of them until after CYS filed its
petition to terminate his parental rights. The Adoption Act prohibits trial courts
from considering efforts first initiated by a parent after receiving notice of the
filing of a termination petition. See 23 Pa.C.S.A. § 2511(b) (“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.”). In addition, we reject Father’s claim that his failure to obtain
suitable housing more quickly was due to his financial circumstances, or due
to his difficulty finding someone who would rent to him. The record indicates
that Father had housing throughout Child’s dependency. It appears that
Father’s problem was not finding housing, but keeping the housing that he
had in a safe and sanitary condition.
Finally, the record supports the trial court’s findings with respect to the
third requirement of Section 2511(a)(8), that terminating Father’s parental
rights would best serve Child’s needs and welfare. On November 10, 2016,
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CYS presented the testimony of psychologist, Allen H. Ryen, Ph.D. Dr. Ryen
testified that he conducted a bonding assessment of Father and Child, and
authored a report detailing his findings. N.T., 11/10/16, at 6-9. During his
assessment, Dr. Ryen did not observe any evidence that Father and Child
share a primary or secure bond. Id. at 10. He opined that terminating
Father’s parental rights would not be harmful to Child, but that he would
anticipate “closure and security emanating from that sort of a decision.” Id.
at 25.
In his report, Dr. Ryen wrote that he conducted an interview of Child,
followed by an observation of Child and Father interacting during a visit. Dr.
Ryen’s Report, 5/28/16, at 4-7. During the interview, Child referred to Father
by his first name, rather than “Dad” or “Daddy.” Id. at 5. Child criticized
Father at length, describing the poor living conditions of his previous home,
and recounting that Father was “‘the worst. . . . [he] locked us in the bedroom
for no reason. . . . we were always scared.’” Id. at 4. Child insisted that
Father is “‘bad,’” and that it would be “‘really bad’” if he had to live with him
again. Id.
During the interactional portion of the assessment, Child showed little
interest in Father. Dr. Ryen wrote that Child approached Father to show him
a toy truck, “regressing significantly . . . and becoming much more active than
previously observed.” Id. at 5. Child became increasingly agitated and out
of control, while Father did nothing to address his behavior. Id. at 6. When
the assessment was over, Child “left hastily, without any farewell greetings or
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backwards glances, and . . . appeared more than anxious to leave the office.”
Id. at 7.
Thus, Child does not share a necessary or beneficial bond with Father.
As Dr. Ryen’s report demonstrates, Child is hostile toward Father and does
not want to return to his care. Child does not even refer to Father as his
father, instead calling him by his first name. Combined with Father’s failure
to remedy the conditions leading to Child’s placement in foster care, it is clear
that terminating Father’s parental rights would best serve Child’s needs and
welfare. We conclude that CYS met its burden of proof with respect to all
three requirements of Section 2511(a)(8), and that the court did not abuse
its discretion.
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(b). The
requisite analysis is as follows:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
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with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted).5
As we stated above, the trial court concluded that terminating Father’s
parental rights would best serve Child’s needs and welfare. Trial Court
Opinion, 11/2/17, at 16. The court reasoned that there is no evidence of a
necessary and beneficial bond between Father and Child, and that Child will
not suffer irreparable harm. Id.
Father challenges Dr. Ryen’s opinion that Child does not share a primary
or secure bond with him. Father’s Brief at 36-40. Father maintains that
Child’s behavior during the bonding assessment “was influenced by the
negative attitudes and opinions of both [Child’s] older sister as well as the
maternal uncle and his paramour, who were the foster parents at the time of
the assessment.” Id. at 37. Father suggests that other evidence presented
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5 Section 2511(a)(8) and (b) both require trial courts to consider the needs
and welfare of the child. However, the needs and welfare analysis required
by Section 2511(a)(8) is distinct from the needs and welfare analysis required
by Section 2511(b), and must be addressed separately. See In re C.L.G.,
956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (“[W]hile both Section
2511(a)(8) and Section 2511(b) direct us to evaluate the ‘needs and welfare
of the child,’ . . . they are distinct in that we must address Section 2511(a)
before reaching Section 2511(b).”).
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during the termination hearing rebuts the court’s finding that no bond exists.
Id. at 39-40.
We conclude that Father is not entitled to relief. Even accepting for the
sake of argument that Child’s older sister or former foster parents played some
role in his negative view of Father, that does not excuse Father’s failure to
cultivate a meaningful relationship with Child during his lengthy dependency,
nor does it excuse Father’s failure to remedy the conditions resulting in Child’s
placement in foster care. Contrary to Father’s argument, the record is clear
that Child does not have a necessary or beneficial bond with him, and that
Child is in need of permanency and stability that he cannot provide. It was
well within the court’s discretion to conclude that Child’s needs and welfare
would best be served by severing his relationship with Father.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by terminating Father’s parental rights to Child involuntarily.
Therefore, we affirm the court’s November 2, 2017 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2018
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In Re: Termination of Parental Rights of S.D.
Combined Opinion