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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: X.F.K.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.A.M., NATURAL :
FATHER : No. 457 MDA 2018
Appeal from the Order Entered February 6, 2018
in the Court of Common Pleas of Franklin County Juvenile Division
at No(s): CP-28-DP-0000002-2016
IN RE: ADOPTION OF: X.F.K.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.A.M., FATHER : No. 458 MDA 2018
Appeal from the Decree Entered February 6, 2018
in the Court of Common Pleas of Franklin County Orphans’ Court
at No(s): 54 ADOPT 2017
BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 05, 2018
M.A.M. (Father) appeals from the decree entered February 6, 2018, in
the Court of Common Pleas of Franklin County, which terminated
involuntarily his parental rights to his minor son, X.F.K.M. (Child), born in
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* Retired Senior Judge assigned to the Superior Court.
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July 2011.1 Father also appeals from the order entered that same day,
which changed Child’s permanent placement goal to adoption. We affirm.
Franklin County Children and Youth Services (CYS) became involved
with this family in 2013, due to allegations of illegal substance abuse by
Mother and poor conditions in her home. CYS received its most recent
referral in December 2015. Mother failed multiple drug tests, and CYS
developed a safety plan pursuant to which she would have only supervised
contact with Child. However, the neighbors who agreed to supervise Mother
withdrew from the plan after less than a month. Meanwhile, CYS received a
report that Child was the victim of sexual abuse by his paternal
grandfather.2 Mother and Father exercised joint custody, and Child resided
in a home with paternal grandparents and Father during Father’s custody
periods. Thus, Child’s safety could not be assured in either parent’s care.
Accordingly, CYS obtained emergency protective custody of Child on
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1 The trial court entered a separate decree terminating voluntarily the
parental rights of Child’s mother, T.M. (Mother). Mother did not appeal the
termination of her parental rights.
2 Cumberland County Children and Youth Services conducted an
investigation and deemed the report unfounded. The report alleged initially
that Child was the victim of sexual abuse by his maternal step-grandfather.
Child then made statements suggesting that his paternal grandfather and
Father had abused him. By the time of the termination and goal change
hearing, there was no longer any concern that Father had abused Child and
the focus was solely on the paternal grandfather.
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February 4, 2016, and the juvenile court3 adjudicated him dependent by
order entered February 23, 2016.
On October 10, 2017, CYS filed a petition to terminate Father’s
parental rights involuntarily. The trial court conducted a combined
termination and goal change hearing on February 6, 2018.4 Following the
hearing, the court entered a decree terminating Father’s parental rights, as
well as an order changing Child’s permanent placement goal to adoption.
Father timely filed notices of appeal on March 7, 2018, along with concise
statements of errors complained of on appeal.
Father now raises the following claims for our review.
[I.] The [juvenile] court abused its discretion in changing the
permanency goal to adoption where [Father] had completed all
of the services requested by [CYS] for reunification.
[II.] The [orphans’] court abused its discretion in terminating the
parental rights of Father where he had completed all of the
services requested by [CYS] for reunification.
Father’s Brief at 5.
We begin by reviewing the decree terminating Father’s parental rights
involuntarily. We do so mindful of the following standard of review.
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3 The Honorable Carol L. Van Horn presided over Child’s initial dependency
proceedings. The Honorable Angela R. Krom presided over the termination
and goal change proceedings.
4 The trial court appointed legal counsel to represent Child in compliance
with 23 Pa.C.S. § 2313(a) and In re Adoption of L.B.M., 161 A.3d 172
(Pa. 2017). Child also had the benefit of a guardian ad litem.
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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. § 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 [subs]ection 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 [subs]ection
2511(b): determination of the needs and welfare of the child[.]
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 subsections 2511(a)(2), (5), (8), and (b). We need only agree
with the court as to any one subsection of 2511(a) as well as subsection
2511(b) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
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2004) (en banc). Here, we analyze the court’s decision to terminate
pursuant to subsections 2511(a)(2) and (b), which provide 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:
***
(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(a)(2), (b).
We address first whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to subsection 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 2511(a)(2), the following three elements must be met: (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
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causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
In its opinion, the trial court concluded that CYS presented clear and
convincing evidence in support of its petition to terminate Father’s parental
rights pursuant to subsection 2511(a)(2). Trial Court Opinion, 4/10/2018, at
18-20. The court found that Father disbelieves Child’s allegations of sexual
abuse against Child’s paternal grandfather and has failed to address those
allegations throughout Child’s twenty-four months in foster care. Id.
Specifically, the court stressed that Father continues to live in a home
adjacent to the home of Child’s paternal grandfather. Id.
Father argues that he complied with everything the trial court ordered
him to do. Father’s Brief at 9-14. While Father concedes that he continues
to live adjacent to Child’s paternal grandfather, he insists that the court
never ordered him to move as a condition of reunification. Id. at 9, 15-16.
Father emphasizes that Cumberland County Children and Youth Services
deemed the report of sexual abuse against the paternal grandfather
unfounded and that no criminal charges resulted. Id. at 14.
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After a careful review of the record, we discern no abuse of discretion
by the trial court. Child has reported since February 2016 that his paternal
grandfather had sexually abused him. When Child came into foster care at
age four, he was not developmentally on track with his age. Casework
supervisor, Nicole Weller, described Child as an aggressive child who
growled and made animal noises at people. He had delayed speech, was not
potty trained, and had accidents during the night. Child engaged in
sexualized play by opening the legs of dolls and telling people to look there.
Child cried and refused to go into the bathroom to use the toilet or shower.
He also cried whenever other children in the home were told to get a
shower. Ms. Weller testified that these behaviors were consistent with a
child who has been sexually abused. Based upon these behaviors and
Child’s allegations, CYS arranged for Child to undergo therapy. N.T.,
2/6/2018, at 68-73.
Child has attended therapy with Scott Keller, a licensed clinical social
worker, since May 2016, to help him cope with the alleged abuse. Child also
disclosed sexual abuse by his paternal grandfather to Mr. Keller. Mr. Keller
testified that Child expresses fear of his paternal grandfather, and opined
that any contact between Child and his paternal grandfather would be
contrary to his best interest.5 N.T., 2/6/2018, at 32, 58.
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5According to Mr. Keller, Child made statements suggesting that Father may
have been aware of the abuse. N.T., 2/6/2018, at 32. He explained, “I
(Footnote Continued Next Page)
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Despite these concerns, Father continues to reside in a home adjacent
to where Child’s paternal grandfather lives6 and denies that Child
experienced abuse.7 Ms. Weller testified that both homes share the same
driveway and are approximately fifty yards apart.8 Id. at 83. Ms. Weller
recalled that Father exercised visits with Child at his home from June 2016
until September 2017. Id. at 104. During at least one such visit, Child
observed his paternal grandfather standing outside. Id. at 85-86. When
Child returned to his foster home, he began to display regressive behaviors
such as wetting his bed. Id. at 86.
While Father now argues that the trial court never ordered him to
move as a condition of reunification, our review of the record belies this
claim. Since the beginning of this case, the orders in Child’s dependency
record have directed Father to obtain stable housing with a “safe and
healthy living environment, free from any safety or health hazards.”
(Footnote Continued) _______________________
asked [Child] at one point where his father was when [he] was being hurt,
and he stated he was there watching.” Id. at 32-33.
6Father initially shared a home with Child’s paternal grandparents, but later
moved into a trailer located on their property.
7 At first, Father insisted that the paternal grandfather could not have
sexually abused Child because they were never alone together. N.T.,
2/6/2018, at 121-22. However, on cross-examination, Father admitted that
“[t]here is a possibility” that Child and the paternal grandfather were alone
together. Id. at 140.
8Father estimated that the distance is actually twenty-five to thirty yards.
N.T., 2/6/2018, at 148-49.
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Dependency Order, 2/23/2016. It is apparent that a home within twenty-
five to fifty yards of an alleged sexual abuser, whose presence traumatizes
Child, is not a “safe and healthy living environment.”
Moreover, Father conceded during the termination hearing that he
knew he had to find a new home. Father testified that the “only thing that I
was asked to do that I was unable to do was to change my residence.” N.T.,
2/6/2018, at 119-20. While Father blamed his inability to find a new home
on financial difficulties, it is clear that this circumstance was not beyond his
control. See 23 Pa.C.S. § 2511(b) (“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.”). Father admitted that he focused his
efforts on trying to buy a new home, but did not make a serious effort to
rent a new home. N.T., 2/6/2018, at 131. In addition, Father admitted that
his financial difficulties were partly of his own making, because he lost his
job due to an act of workplace violence. Id. at 132. Ms. Weller explained
that Father threw a trashcan at a coworker in May 2017 despite his prior
anger management counseling.9 Id. at 90-91, 106-07.
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9 We observe that the record raises serious concerns regarding other aspects
of Father’s conduct. Ms. Weller testified that a woman obtained a final
protection from abuse order against Father in approximately June 2017
following a hearing. Id. at 96. The woman alleged that Father drugged and
then sexually assaulted her. Id.
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We agree with the trial court that the real issue is about more than the
physical location of Father’s housing, but Father’s failure to recognize and
attend to Child’s emotional needs. At the conclusion of the hearing, the trial
court emphasized that a home is not just a physical space, but also a feeling
of “safety and security where [Child] can feel that [Father] will take every
action necessary to keep him safe and secure from anyone who would cause
him harm[.] … This is a situation where [Child] says his grandfather acted
inappropriately, he is afraid to be there[,] and [Father is] not paying
attention.” Id. at 175-76. The record supports the trial court’s conclusion.
Ms. Weller testified that despite Father’s promises to move from the
residence or to have paternal grandfather move from the residence,10 his
long-term intention was to return to the residence, suggesting to CYS that
he did not understand the risk to Child of being in proximity to his paternal
grandfather. N.T., 2/6/2018, at 87-88. In fact, during his testimony Father
reiterated his belief that Child’s paternal grandfather did not abuse Child.
Id. at 123, 141-42. He stated that he would keep Child separate from
Child’s paternal grandfather to “do what the agency told [him to do] to get
[Child] back,” but planned to resume supervised contact once Child was
returned. Id. at 124.
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10 Paternal grandfather’s relocation never panned out because he could not
leave the area due to the terms of his probation.
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Based on this evidence, the record supports the trial court’s finding
that Father is incapable of parenting Child, and that he cannot or will not
remedy his parental incapacity pursuant to subsection 2511(a)(2). By the
time of the hearing in this matter, Child had spent twenty-four months in
foster care, and Father remained in no position to provide for his physical
and emotional needs. As this Court has emphasized, “a child’s life cannot be
held in abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. 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).
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to subsection 2511(b). Father
waived any challenge to this subsection by failing to include it in his
statement of questions involved and concise statement of errors complained
of on appeal. See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017)
(“Further, it is well-settled that issues not included in an appellant’s
statement of questions involved and concise statement of errors complained
of on appeal are waived.”). In both places, Father included only a single
claim relating to his challenge to the termination of his parental rights,
asserting that he “completed all of the services requested by [CYS] for
reunification.” Concise Statement, 3/7/2018; Father’s Brief at 5. In
addition, while Father’s brief includes a discussion of Child’s needs and
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welfare in the context of subsections 2511(a)(5) and (8), it makes no
mention of subsection 2511(b). See In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010))
(“‘[W]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.’”).
Even if Father had preserved a claim challenging subsection 2511(b),
he would not be entitled to relief.
S[ubs]ection 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, [subs]ection 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 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.
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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).
In this case, while the trial court found that Child shares a bond with
Father, it concluded that this bond is not healthy and does not warrant
preservation of Father’s parental rights. Trial Court Opinion, 4/10/2018, at
23. The court reasoned that Child also has a bond with his pre-adoptive
foster parents, and with his half-brother11 who resides in the same foster
home, and that the love, comfort, security, and stability Child will receive by
remaining in his foster home will outweigh any detriment in severing the
relationship that he has with Father. Id. The court also repeated its
concern that Father will not address Child’s basic needs of housing and
protection. Id. at 22-23.
As part of his claim challenging subsections 2511(a)(5) and (8), Father
argues that he and Child share a bond, and that Child will suffer a detriment
if the trial court severs that bond. Father’s Brief at 17. Father directs our
attention to the testimony of Ms. Weller and Mr. Keller, as well as a bonding
assessment performed by psychologist, Kasey Shienvold, Psy.D. Id. Father
notes that Child told Mr. Keller “pretty consistently” that he wants to return
to Father’s care. Id.
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11 Child’s half-brother is Mother’s child from a different relationship.
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We again discern no abuse of discretion by the trial court. As Father
argues, it was undisputed during the termination hearing that he and Child
share a bond. Mr. Keller testified that Child was happy to see Father during
family therapy sessions and referred to him as “dad.” N.T., 2/6/2018, at 33-
34, 50. When Mr. Keller asked Child where he would want to live, “he has
pretty consistently answered that he would want to live with [F]ather.”12 Id.
at 56. Child stated that he likes visiting Father and that he would be sad if
he did not get to see him again. Id. at 40-41. Mr. Keller opined that Child
would likely suffer a detriment if his relationship with Father ended. Id. at
41.
Nonetheless, Mr. Keller believes that Child has the necessary supports
in place, including his relationship with his pre-adoptive foster parents and
his ongoing therapy, to help him overcome any detriment. Id. at 41-42.
Child displays an attachment to his foster parents and refers to them as
“mom and dad.” Id. at 39-40. Ms. Weller testified that Child also has an
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12 Child provided a different position to his legal counsel. Child’s legal
counsel, Barbara Townsend, Esquire, reported that she met with Child three
times. N.T., 2/6/2018, at 155-57. During the first meeting, Child “did not
seem … to be particularly interested in getting to know me or why I was
there.” Id. at 156. During the second meeting, Child became
uncomfortable and “all he could do when I addressed him was to growl, and
I was very disturbed by that.” Id. Finally, during Attorney Townsend’s third
meeting with Child, he stated that he “would like to return to his dad’s
home, in so many words, but that there were problems there, and it wasn’t
possible.” Id. at 156-57.
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attachment to his half-brother, who resides in the same foster home.13 Id.
at 98-99. She added that Child refers to his half-brother as his best friend
and that they love each other very much. Id. at 99. Ms. Weller testified
that Child is doing well in his foster home and that his performance in school
is improving. Id. at 99-100. After experiencing the security of the foster
home and working through issues at therapy, Child’s expressions of fear and
obsession regarding the bathroom has subsided. Id. at 110.
Accordingly, while Child shares a bond with Father, the record
supports the trial court’s conclusion that the safety, security, and other
emotional benefits Child will receive by remaining in his foster home,
including his relationship with his pre-adoptive foster parents and his half-
brother, outweigh any detriment in severing his bond with Father. See In
re Adoption of J.N.M., 177 A.3d 937, 946 (Pa. Super. 2018) (holding court
was within its discretion by prioritizing children’s safety and security needs
over their relationship with their mother). Moreover, despite the bond he
shares with Father and some feelings of sadness Child may experience if the
relationship is severed, there is no indication in the record that such sadness
would rise to the level of “extreme emotional consequences.” Id. (citing In
re E.M., 620 A.2d 481, 485 (Pa. 1993)). Therefore, it is clear that
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13 Mother and the father of the half-brother voluntarily relinquished their
parental rights to the half-brother.
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terminating Father’s parental rights would best serve Child’s needs and
welfare pursuant to subsection 2511(b).
Next, we turn our attention to the order changing Child’s permanent
placement goal from reunification to adoption. Our standard of review is as
follows.
[T]he standard of review in dependency cases requires an
appellate court to accept the 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. Accordingly, we
review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).
The Juvenile Act, 42 Pa.C.S. §§ 6301–6375, governs goal change
proceedings. This Court has summarized the requisite analysis as follows.
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act,
when considering a petition for a goal change for a dependent
child, the juvenile court is to consider, inter alia: (1) the
continuing necessity for and appropriateness of the placement;
(2) the extent of compliance with the family service plan; (3) the
extent of progress made towards alleviating the circumstances
which necessitated the original placement; (4) the
appropriateness and feasibility of the current placement goal for
the child; (5) a likely date by which the goal for the child might
be achieved; (6) the child’s safety; and (7) whether the child has
been in placement for at least fifteen of the last twenty-two
months. The best interests of the child, and not the interests of
the parent, must guide the trial court. As this Court has held, a
child’s life simply cannot be put on hold in the hope that the
parent will summon the ability to handle the responsibilities of
parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and
quotation marks omitted).
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Here, while Father included a challenge to the trial court’s goal change
order in his statement of questions involved and concise statement, he
waived that claim by failing to develop it in the argument section of his brief.
See W.H., 25 A.3d at 339 n.3. Even if Father had developed this claim, it
would be moot. See In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An
issue before a court is moot if in ruling upon the issue the court cannot enter
an order that has any legal force or effect.”). In light of our decision
affirming the decree terminating Father’s parental rights, affirming or
reversing the goal change order would have no legal force or effect.
Finally, even assuming arguendo that Father preserved his challenge
to the goal change order for our review, and that it is not moot, the trial
court did not abuse its discretion. For the reasons already discussed, it is
clear that changing Child’s permanent placement goal to adoption is in his
best interests, because Father remains incapable of providing appropriate
care for Child and adoption will provide Child with a permanent and stable
home after 24 months in foster care.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by terminating Father’s parental rights to Child involuntarily,
and that Father waived his challenge to the court’s goal change order.
Therefore, we affirm the court’s February 6, 2018 decree and order.
Decree affirmed. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/05/2018
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