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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.R.W., FATHER :
:
:
:
: No. 2024 EDA 2017
Appeal from the Decree Entered May 25, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000098-2017
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 28, 2018
J.R.W. (Father) appeals from the decree involuntarily terminating his
parental rights to his minor daughter, S.M.W. (Child), pursuant to 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act.1 After careful review,
we affirm.
Child was born in December 2015. At the time of the birth, both Mother
and Child tested positive for marijuana and cocaine. The Philadelphia
Department of Human Services (DHS) subsequently filed an application for an
order of protective custody (OPC) for Child, averring that Mother had a history
of substance abuse and mental health issues and was non-compliant with
treatment; and that Father had a lengthy substance abuse and criminal
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1The parental rights of T.E.B. (Mother) were also terminated at this time. She
separately appealed, and the termination was affirmed. See In the Interest
of S.M.W., 181 A.3d 436 (Pa. Super. 2017) (unpublished memorandum).
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* Retired Senior Judge assigned to the Superior Court.
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history. The trial court granted the application and Child was placed in foster
care, where she has remained since.
Following a shelter care hearing, the trial court lifted the OPC and
ordered Child’s temporary commitment to stand. Parents were granted
supervised visitation at DHS. In January 2016, Child was adjudicated
dependent and fully committed to DHS. Father was referred to the Clinical
Evaluation Unit (CEU) for drug screens, dual assessment, and three random
drug screens. The Community Umbrella Agency (CUA) held a single case plan
(SCP) meeting. The objectives identified for Father were to comply with court
ordered random drug screens and with the recommendations of the CEU dual
assessment.
Periodic permanency reviews showed that Father was either moderately
or minimally compliant with his objectives. In April, July, August, September,
and November 2016, Father returned positive drug screens. Although Father
reported that he was attending substance abuse treatment at the Wedge
Medical Center – North, the center indicated Father had never attended his
intake appointment and was discharged from the program in April 2016.
In January 2017, DHS filed petitions seeking to involuntarily terminate
the parental rights of Mother and Father and change Child’s goal to adoption.
At that time, Child had been in pre-adoptive foster care for the entirety of her
life, over seventeen months.
In May 2017, the court convened a hearing. DHS presented the
testimony of Gaylen Brunson, the Wordsworth CUA case manager. See N.T.,
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5/25/17, at 2. Additionally, DHS’ exhibits 1-11, including its statement of
facts in support of its petition to involuntarily terminate Father’s parental
rights, were entered into the record without objection. See Decree, 5/25/17,
at 2. Father was represented by counsel and testified on his own behalf. See
N.T., 5/25/17, at 26-30. He introduced an appointment slip for JFK Behavioral
Health to show that he had been attending a dual diagnosis program for
mental health and drug and alcohol treatment, although the caseworker stated
he was unaware that Father was attending treatment. Id. at 22, 26-27.
Child was represented by Deborah Fegan, Esquire, as Child’s counsel,
and Angelina Dagher, Esquire, as guardian ad litem (GAL). Id. at 1, 31. Both
counsel and GAL agreed it was in Child’s legal interests and best interests for
Father’s rights to be terminated and Child to be adopted. Id. at 31.
Following the conclusion of DHS’ case in chief, the court granted the
petition pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and
terminated Father’s parental rights. The court also entered an order changing
Child’s permanency goal to adoption.
Father contemporaneously filed a timely notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).2
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2 Father pro se timely filed a notice of appeal and concise statement of errors
complained of on appeal on June 23, 2017. In September 2017, we remanded
the matter to determine whether counsel had abandoned Father and whether
further action was necessary to protect his appellate rights. Following remand
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On appeal, Father raises the following issues for our review:
1. Did the trial court err in terminating [Father’s] parental rights
under [23 Pa.C.S.A. § 2511(a)?]
2. Did the trial court err in finding that termination of parental
rights best served the child’s developmental, physical and
emotional needs under [23 Pa.C.S.A. § 2511(b)]?
3. Did the trial court err in changing the child’s goal to adoption?
See Father’s Brief at vi (unnecessary capitalization, proposed answers, and
answers below omitted).
We review cases involving the termination of parental rights according
to the following standards:
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.
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and counsel’s failure to file a docketing statement as ordered, we vacated
counsel’s appointment and directed the trial court to determine whether
Father was entitled to new court-appointed counsel. New counsel was
appointed and ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal by December 1, 2017. New counsel filed her
statement in the lower court on December 1, 2017, and in this Court on
December 11, 2017. Accordingly, we remanded to determine whether Father
had been abandoned by counsel. On May 30, 2018, the trial court responded
that counsel had not abandoned Father, and that counsel would be filing an
appellate brief that week.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations
omitted).
Here, the court terminated Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Termination requires a
bifurcated analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). To
affirm, we need only agree with any one of the subsections of 2511(a), as well
as subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc). In this case, we focus our analysis on Sections (a)(2) and (b).
The relevant sections of 23 Pa.C.S. § 2511 provide:
(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.
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***
(b) Other considerations.--The court in terminating the rights of a
parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward
the reasonably prompt assumption of full parental duties. Id.
Father argues that the court erred in terminating his rights under
Section 2511(a)(2) because he was participating in mental health treatment
and drug and alcohol treatment, and was visiting consistently with Child.
Father’s Brief at 3-4. He contends there was no evidence introduced which
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would establish that the conditions causing the original placement were not
remedied. Id. at 4.
This is, at best, a disingenuous representation of the evidence
introduced at the hearing. Although Father regularly visited with Child, the
evidence introduced at the hearing established that Father was not compliant
with his SCP objectives. Specifically, he was not attending outpatient drug
and alcohol treatment and regularly tested positive for various controlled
substances including marijuana, cocaine, and PCP throughout the pendency
of this case, and as recently as two months prior to the termination hearing.
See DHS Exhibit 7-9. Although Father introduced an appointment slip in an
attempt to show that he was attending treatment, the caseworker was
unaware of Father’s attendance, and Father was discharged from the program
in April 2016. See TCO at 5-6; Father’s Exhibit 1. The trial court credited this
evidence and we afford great deference to such findings. See T.S.M., 71 A.3d
at 267.
Accordingly, we conclude that the trial court properly found by
competent, clear, and convincing evidence that Father’s parental rights could
be terminated pursuant to Section 2511(a)(2), based on the finding that
Father evinced a continued incapacity – his drug abuse – that resulted in Child
being without essential parental care, the cause of which “cannot or will not
be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
Next, we must consider whether Child’s needs and welfare will be met
by termination pursuant to Section 2511(b). See Z.P., 994 A.2d at 1121. “In
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this context, the court must take into account whether a bond exists between
child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. The court is not required to use
expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Where there is no evidence of a bond between the parent and
child, it is reasonable to infer that no bond exists. In re: K.Z.S., 946 A.2d
753, 763 (Pa. Super. 2008).
We have noted:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)).
Father testified that he visits regularly and has a bond with Child. See
N.T., 5/25/17, at 29-30. However, the case manager testified that although
Father is consistent with his visits, caseworkers have to encourage Father and
Child to bond. Id. at 19. Instead of playing with Child, Father focuses on his
cell phone. Id. Father was referred to parenting classes, but did not attend.
Id. at 21. The caseworker opined that it would be in Child’s best interests for
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Father’s parental rights to be terminated and Child’s goal changed to adoption,
and that Child would not suffer irreparable harm as a result of the termination.
Id. at 19-20. The court credited the caseworker’s testimony over that of
Father. Id. at 32. On this record, indicating that there was no bond between
Father and Child, who had been in care for her entire life, clear and convincing
evidence supports the trial court’s termination of Father’s parental rights with
respect to 2511(b), where adoption would best serve Child’s needs and
welfare. See Z.P., 994 A.2d at 1126-27.
Finally, Father contends that the court erred in changing Child’s
permanency goal to adoption. Father’s Brief at 6-7. Father reiterates his prior
arguments – that from the time Child came into care, Father visited
consistently with her, and that Father was in both mental health and drug and
alcohol treatment. Id. at 7. Father claims it is in Child’s best interest to be
with her father rather than strangers. Id.
The appeal from the goal change determination is not properly before
us. Father appealed solely from the termination docket, CP-51-AP-0000098-
2017; he did not appeal from the goal change order entered on the
dependency docket. See Notice of Appeal, 5/25/17, at 1-19; see also
Permanency Review Order, 5/25/17, at 1-2; see also Decree of Involuntary
Termination of Parental Rights, 5/25/17, at 1-2. Accordingly, we lack
jurisdiction to consider that merits of this issue. See Pa.R.A.P. 902 (providing
manner of taking appeal); Pa.R.A.P. 903 (providing thirty days to file a notice
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of appeal); see, generally, In re Adoption of W.R., 823 A.2d 1013, 1015-
16 (Pa. Super. 2003).
For all of the above reasons, we affirm the termination of Father’s
parental rights to Child.
Decree affirmed.
Judge Platt joins the memorandum.
Judge Dubow did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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