J-A22029-18 & J-A22030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER :
:
:
:
: No. 3718 EDA 2017
Appeal from the Order October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000948-2017,
CP-51-DP-0001428-2016
IN THE INTEREST OF: S.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER :
:
:
:
: No. 3722 EDA 2017
Appeal from the Order October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000949-2017,
CP-51-DP-0001513-2016
IN THE INTEREST OF: J.W.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER :
:
:
:
: No. 3723 EDA 2017
Appeal from the Order October 12, 2017
J-A22029-18 & J-A22030-18
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000950-2017,
CP-51-DP-0001514-2016
IN THE INTEREST OF: M.J.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.W., FATHER :
:
:
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: No. 3724 EDA 2017
Appeal from the Order October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000951-2017,
CP-51-DP-0001515-2016
IN THE INTEREST OF: R.Z.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.W., FATHER :
:
:
:
: No. 3726 EDA 2017
Appeal from the Order October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000952-2017,
CP-51-DP-0000180-2017
IN THE INTEREST OF: A.J.W., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: T.J.A., MOTHER :
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: No. 3765 EDA 2017
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J-A22029-18 & J-A22030-18
Appeal from the Decree October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000948-2017,
CP-51-DP-0001428-2016
IN THE INTEREST OF: S.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.J.A., MOTHER :
:
:
:
: No. 3767 EDA 2017
Appeal from the Decree October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000949-2017,
CP-51-DP-0001513-2016
IN THE INTEREST OF: J.W.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.J.A., MOTHER :
:
:
:
: No. 3769 EDA 2017
Appeal from the Decree October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000950-2017,
CP-51-DP-0001514-2016
IN THE INTEREST OF: M.J.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.J.A., MOTHER :
:
:
:
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: No. 3772 EDA 2017
Appeal from the Decree October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000951-2017,
CP-51-DP-0001515-2016
IN THE INTEREST OF: R.Z.W., A : IN THE SUPERIOR COURT OF
CHILD : PENNSYLVANIA
:
:
APPEAL OF: T.J.A., MOTHER :
:
:
:
: No. 3773 EDA 2017
Appeal from the Decree October 12, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000952-2017,
CP-51-DP-0000180-2017
BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 18, 2018
A.W. (Father) and T.J.A. (Mother) (collectively, Parents)1 appeal from
the decrees and orders granting the petitions of the Philadelphia Department
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 We address Parents’ appeals together. We note that Mother and Father
initially filed a joint brief, which this Court struck on a motion filed by DHS.
Mother and Father then filed separate briefs, although those briefs are
essentially identical.
On June 14, 2018, DHS renewed its request to strike Father’s brief due to
Father’s brief primarily discussing Mother claims, as well as Father’s inclusion
of purportedly waived matters. The guardian ad litem joined DHS’ request on
June 18, 2018. On June 29, 2018, this Court deferred a ruling on the motion
to strike.
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of Human Services (DHS) and involuntarily terminating their parental rights
to their sons, S.M.W., born in October of 2007, A.J.W., born in August of 2009,
J.W.W., born in December of 2010, M.J.W., born in January of 2013, and
R.Z.W., born in January of 2017 (collectively, the Children), pursuant to the
Adoption Act, 23 Pa.C.S. §§ 2101–2938, and changing the Children’s
permanency goals to adoption pursuant to the Juvenile Act, 42 Pa.C.S. § 6351.
We affirm.
We have previously summarized the factual and procedural history of
this matter as follows:
On July 9, 2016[,] DHS received a Child Protective Services (CPS)
report alleging that [A.J.W.] was hospitalized at the Children’s
Hospital of Philadelphia (CHOP) and was diagnosed with a rare
form of epilepsy named, “Refractory Epilepsy.” The family was
visiting an unidentified person in Lehigh County when [A.J.W.] had
a seizure and was transported to a hospital in Lehigh County and
[then] transferred to CHOP. Mother refused medical treatment
for [A.J.W.] because she believed the anti-seizure medication
prescribed to [A.J.W.] was increasing his seizures. Mother
attempted to remove [A.J.W.] from CHOP. CHOP staff would not
allow Mother to remove [A.J.W.] as it would have endangered
[A.J.W.]’s life not to receive the prescribed medication. The report
stated [A.J.W.] resided in the state of Delaware. The report stated
the family had an open case in Lehigh County Children and Youth
Services (CYS).
On July 10, 2016, D[H]S received a supplemental report alleging
that [A.J.W.] was having increased seizure activity. CYS
previously had physical custody of [A.J.W.] and returned physical
custody to Mother on July 5, 2016[,] to make medical decisions
for [A.J.W.] Mother continued to refuse treatment on the evening
____________________________________________
Because the defects in Mother’s and Father’s briefs do not impede meaningful
appellate review, we deny the motion to strike Father’s brief and the request
to quash Mother’s appeal.
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of July 9, 2016[,] as [A.J.W.] suffered increased seizures. The
report further stated that if Mother continued to refuse medical
care for [A.J.W.], he would suffer either neurological damages or
sudden death. The report stated between the evening of July 9,
2016[,] and the morning of July 10, 2016, [A.J.W.] experienced
at least 42 seizures. As a result of the 42 seizures, [A.J.W.]’s
medical status had deteriorated. [A.J.W.] was moved to the
Pediatric Intensive Care Unit (PIC) and was intubated.
On July 10, 2016, DHS obtained an Order of Protective Custody
(OPC) for [A.J.W.] Approximately one week later, DHS filed a
dependency petition, and a hearing was held on July 19, 2016. At
the hearing, the court discovered that [A.J.W.] had three other
siblings who were in need of medical treatment. Specifically, it
was noted that [A.J.W.]’s siblings had extensive dental issues. At
the conclusion of the hearing, the juvenile court adjudicated
[A.J.W.] dependent pursuant to 42 Pa.C.S. § 6302(1) and ordered
that DHS investigate the condition of [A.J.W.]’s siblings.
DHS immediately obtained protective custody of S.[M.]W.,
J.[W.]W., and M.[J.]W., who were born October 2007, December
2010, and January 2013 respectively. DHS filed a dependency
petition on July 29, 2016, and following a hearing, the juvenile
court adjudicated S.[M.]W., J.[W.]W., and M.[J.]W. dependent.
In Interest of A.W., 187 A.3d 247, 248-49 (Pa. Super. 2018) (citations and
footnotes omitted).
Subsequently, Mother gave birth to R.Z.W. in January of 2017. DHS
obtained an OPC immediately after his birth. The court adjudicated R.Z.W.
dependent on February 2, 2017.
On September 27, 2017, DHS filed petitions to involuntarily terminate
Mother’s and Father’s parental rights to the Children and change the Children’s
permanency goals to adoption. On October 12, 2017, the trial court conducted
a hearing on DHS’ petitions. The Children were all represented by a guardian
ad litem, Patrice Lagenbach, Esq., and legal counsel, Nghi Duong Vo, Esq., at
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the hearing. DHS presented the testimony of forensic psychologist William
Russell, Ph.D.; Lakesha Akines, DHS case manager; and Camie Turner, foster
care supervisor at the Village. Mother, who was represented by Lindsay M.
Palmer, Esq., presented the testimony of Barbara Bradford, a visitation
supervisor at the Village. Father was represented by Craig B. Sokolow, Esq.2
Neither Mother nor Father testified at the hearing.
By decrees and orders entered October 12, 2017, the trial court
involuntarily terminated Mother’s and Father’s parental rights to the Children,
and changed the Children’s permanency goals to adoption. On November 13,
2017, Mother and Father filed timely notices of appeal,3 as well as concise
statements of errors complained of on appeal.
On appeal, both Mother and Father raise the following issues:
1. Whether the [t]rial [c]ourt erred when it found that the
Department of Human Services[,] by clear and convincing
evidence[,] had met its burden to terminate Appellant’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), § 2511(a)(2),
____________________________________________
2 Father’s counsel attempted to present the testimony of a clinical
psychologist, John Marcello Gentry, Ph.D., who performed a parenting
capacity evaluation on Mother and Father. During the examination to qualify
Dr. Gentry, the trial court determined that the doctor did not have the
expertise to testify as to his parental capacity evaluation. Mother and Father
have not challenged the trial court’s determination that Dr. Gentry could not
testify regarding his evaluation.
3Because the thirtieth day after the entry of the trial court’s orders fell on a
Saturday, the November 13, 2017 filings were timely. See 1 Pa.C.S. § 1908.
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§ 2511(a)(5), and § 2511(a)(8) and change[d] the goal to
adoption?[4]
2. Whether the trial court erred when it found that the termination
[of] parental rights was in the Child[ren]’s best interests and
would not cause irreparable harm and that the Department of
Human Services had met its burden pursuant to 23 Pa.C.S.A.
§ 2511(b)?
3. Whether the trial court erred by failing to adhere to the In Re
L.B.M.[5] decision by appointing a child advocate with insufficient
notice?
4. Whether the trial court erred in violating parents’ due process
rights by exhibiting bias and misapplying the rules of evidence?
Mother’s Brief at 3; Father’s Brief at 3.
Parents first contend that the trial court erred in its evaluation of Section
2511(a). Parents assert that “[o]ther states have found that mere marijuana
use, without evidence that it is harmful to the present and future ability to
care for the child, is not a sufficient basis for termination of parental rights.”
Mother’s Brief at 16; Father’s Brief at 14. Mother also argues that she
completed her goals and that the Children could have been reunited with her.
____________________________________________
4 While both Mother and Father’s questions involved on appeal suggest that
the trial court erred in changing the Children’s permanency goals to adoption,
neither party includes any meaningful argument regarding the goal change in
the argument portion of their brief. Therefore, we conclude this claim is
waived. See Pa.R.A.P. 2119(b); Giant Food Stores, LLC v. THF Silver
Spring Development, L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (“The
Rules of Appellate Procedure state unequivocally that each question an
appellant raises is to be supported by discussion and analysis of pertinent
authority. Failure to do so constitutes waiver of the claim.”) (citations
omitted).
5 In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality).
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Mother’s Brief at 16; Father’s Brief at 15. Parents conclude, “[h]ad the trial
court appropriately evaluated the parents’ compliance with case goals, the
[C]hildren would have been reunified with them. Accordingly, Parents suggest
that “it was an abuse of discretion for the trial court to find that grounds
existed to terminate the[ir] parental rights under [Section] 2511(a).”
Mother’s Brief at 17; Father’s Brief at 15.
We review these claims mindful of our well-settled 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) (brackets, internal quotation
marks, and citations omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which 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
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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). 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), as well
as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc).
We have defined clear and convincing evidence as that which 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.”
In re C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter
of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998)).
In this case, the trial court involuntarily terminated Parents’ parental
rights to S.M.W., A.J.W., J.W.W., and M.J.W. pursuant to Section 2511(a)(1),
(2), (5), (8), and (b). The court involuntarily terminated Parents’ parental
rights to R.Z.W. pursuant to Section 2511(a)(1), (2), (5), and (b). Here, we
will focus our analysis on Section 2511(a)(2), see B.L.W., 843 A.2d at 384,
which provides 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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(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. § 2511(a)(2).
Our Supreme Court set forth our 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 S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).
This Court has noted that “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
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for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006).
Instantly, in terminating Parents’ rights pursuant to Section 2511(a)(2),
the trial court noted that both Mother and Father missed drug screens and
had drug screens rejected. Trial Ct. Op., 3/20/18, at 7-8. Further, Parents
failed to sign consents needed for future services and evaluations for the
Children. Id. at 8. The court also noted that when the Children were removed
from Parents’ care, none of the children were enrolled in school, nor were
there any records of any type of home schooling. Id. At visits, Parents were
uninterested in the Children’s schoolwork and there were six incidents that
required staff or security to de-escalate Father’s responses to staff. Id.
Parents did not progress to unsupervised visits. Id. at 9. Additionally, the
court credited the expert testimony of Dr. Russell that Mother exhibited a
pattern of neglect coupled with poor judgment. Id.
Our review of the record reveals that both Mother and Father had
identical FSP goals. The goals consisted of undergoing mental health and drug
and alcohol treatment; obtaining housing; signing consents for treatment and
services; maintaining employment and providing documentation; attending
medical and dental appointments; following through with parental capacity
evaluations; and visitation. N.T., 10/12/17, at 195. DHS witnesses
acknowledged that Parents completed or progressed with some of their FSP
goals. Id. at 212-18.
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With respect to drug and alcohol treatment, Mother completed a course
of drug and alcohol therapy at the Wedge in April 2017. Id. at 213. Father
also attended drug and alcohol treatment at the Wedge, but DHS received no
documentation showing he successfully completed the program. Id. at 191.
However, Parents were inconsistent with respect to appearing for
random drug screens. Between June 2017 and October 2017, DHS requested
five random drug screens. Id. at 183. Parents both appeared for drug screens
on June 29, 2017, but left without taking a drug screen. Id. at 184, 190-91.
On October 3, 2017, Parents were requested to provide drug screens, but both
indicated they could not come in that day. Id. at 184, 190.
Mother had a drug screen rejected on August 18, 2017. Id. at 184.
Further, Mother tested positive for cocaine in June of 2017. Id. at 182.
Mother claimed she must have eaten something and would reconnect with
drug and alcohol treatment. Id. at 183. Father had a sample rejected for
being too “thick” on September 12, 2017, and due to the creatine level of the
samples on June 9 and 21, 2017. Id. at 190-91. Based on the foregoing, Ms.
Akines, the DHS case manager, testified that Parents were not in compliance
with the FSP goal of completing drug and alcohol treatment and maintaining
sobriety. Id. at 194.
With regard to housing, Mother and Father resided together in a one-
bedroom apartment at the time of the hearing. Id. at 214-15. Parents
installed two sets of bunk beds in the bedroom for Children. Id.
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With respect to Mother in particular, Dr. Russell opined that there were
significant issues that the Children faced that Mother could not adequately
address. Id. at 88. Specifically, Dr. Russell observed that the Children’s
dental and medical needs were not cared for, and that Mother places her own
wants above the Children’s needs.6 Id. at 89-90. Dr. Russell concluded that
Mother could not provide safety and permanency for the Children. Id. at 87.
Dr. Russell suggested that Mother showed “a pattern of systemic neglect” of
Children’s needs and continued to show poor judgment.7 Id. at 93.
Dr. Russell further noted Mother claimed to homeschool the Children but
had no plan or program, and felt that the Children being happy was more
important than their education. Id. at 90-91. Rather than homeschooling,
Mother was “unschooling,” allowing the Children to learn in any manner that
they could, without any teaching or instruction. Id. at 94.
____________________________________________
6 We reiterate that A.J.W. suffers from refractory epilepsy which requires
medication and a special diet. Additionally, it was discovered that S.M.W. and
J.W.W. both suffered from significant tooth decay. The trial court noted that
Father attempted to treat A.J.W.’s seizures with marijuana oil and that “Father
admitted to administering marijuana oil to S.M.W., J.W.W. and M.J.W. to keep
them calm.” Trial Ct. Op., 3/20/18, at 3.
7 Mother also posted a “go fund me video.” The video is not included in the
certified record. However, the spoken portion of the video is included in the
transcript from the February 2, 2017 adjudicatory hearing regarding R.Z.W.
It consists of Mother detailing the history of her case and requesting funds to
obtain private counsel. The transcript of the video reveals Mother claimed
that A.J.W. was “medically kidnapped,” and that the Children were placed in
care because she tried to sign her son out of the hospital against medical
advice. N.T., 2/2/17, at 11-13.
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As to Children’s continuing educational needs, Children entered school
once in foster care and showed significant speech, learning and cognitive
delays. Id. at 91. Parents failed to support the Children’s education while
Children were in foster care. For example, S.M.W. did not attend school until
he was in the second grade, and attended only after he was placed in foster
care. Id. at 197. Initially, he was doing both second grade and kindergarten
work to catch up. Id. Although he could not read when he started school, he
progressed to being on target for his grade. Id. at 198. Ms. Akines testified
he has excelled in reading and math and is very excited to read and talk about
his day. Id. at 197.
DHS recommended that Parents discuss the Children’s education
experiences with them during the visit. However, Parents did not want to do
homework with S.M.W. during visits, asserting that it interfered with their
visit. Id. at 196, 199-200. Further, S.M.W. would appear for visits ready to
read a story. Id. at 279. When Father showed a lack of interest, S.M.W.
responded by shutting down and stopped asking to do his school work. Id.
When S.M.W. sought to discuss his schooling with his parents, Father told
S.M.W. that “real learning starts when you forget everything you learned.”
Id. at 199. Parents’ attitude towards school was particularly concerning
because the Children were not enrolled in school at all when they came into
care. Id. at 200.
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With respect to visitation, Parents’ visitation was always supervised. Id.
at 172. Initially, visits were held at the foster care agency, the Village. At
visits, the supervisor needed to redirect Father because he swung one child
around by their ankles. Id. at 178. Father eventually stopped, but told the
supervisor, “[t]hese are my kids. I’m going to do what I want to do with
them. This is how I play with them.” Id. at 282. The supervisor was
concerned that a child would get hurt during the visits as Father became rough
with the Children and Mother could not get him to stop. Id. at 281, 295. All
of the visitation supervisors expressed concerns about Parents’ ability to
redirect their behavior during visits. Id. at 180.
Throughout the Children’s time in foster care, Ms. Akines noted
approximately six incidents where multiple agency, facility staff, or security
were required to de-escalate a situation with Parents. Id. at 193. At a visit
less than six months prior to the termination hearing, Father became upset
because, during an intake, a therapist did not speak to him immediately. Id.
at 173. He requested to speak to the supervisor and director, who became
involved and attempted to calm him down. Id. at 174-75. As a result of
Father’s actions, the Village reported they would not offer further supervised
visits. Id. at 175. Instead, they recommended therapeutic visits. Id. Ms.
Turner, a visitation supervisor, believed that the therapeutic visits would
alleviate the issues associated with the excessive roughness at the visits, but
she believed security would still need to be available. Id. at 293-94.
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Accordingly, instead of progressing to unsupervised visitation, Parents
regressed to therapeutic visits. Id. at 195-96.
In sum, the record supports the trial court’s conclusion that Parents are
incapable of parenting the Children and that they cannot or will not remedy
their parental incapacity under Section 2511(a)(2). Parents failed to comply
with their goals. They continued to evade drug screens. They have shown an
indifference to Children’s education. More troublingly, Parents could not safely
visit with their children even in a supervised setting. It is apparent that neither
Mother nor Father will remedy this situation at any point in the foreseeable
future. Accordingly, we discern no abuse of discretion in the trial court’s
conclusion, see R.J.S., 901 A.2d at 513, and Parents’ arguments—namely,
that their use of marijuana did not warrant termination of their parental rights
and that they complied with several aspects of their FSP’s—do not warrant
relief.
Next, Parents argue the trial court erred in terminating their parental
rights pursuant to subsection 2511(b) because the Children have a bond with
Parents and want to remain in their care. Mother’s Brief at 19, Father’s Brief
at 18. Parents assert that Children have a strong bond with Parents and there
would be irreparable harm to the Children if the parental bond was severed.
Mother’s Brief at 19, Father’s Brief at 18. Parents fault the trial court for
concluding that there would be no irreparable harm to the Children if their
bond with Parents was severed. Additionally, Parents claim that the trial court
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improperly concluded the bond with Parents was unhealthy. Mother’s Brief at
20, Father’s Brief at 19.
Section 2511(b) states:
(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(b).
It is well settled that:
[S]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, 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
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
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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) (internal
quotation marks and citations omitted).
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) (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
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008) (citation omitted).
This Court has noted that
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 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.
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In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal quotation
marks and citations omitted).
Thus, the court may emphasize the safety needs of the child. See
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).
In concluding that involuntarily terminating Parents’ parental rights
would best serve the Children’s needs and welfare, the trial court observed
that Parents had a bond with the Children. Trial Ct. Op., 3/20/18, at 11.
Further, the court noted the gains the Children made in foster care, as well as
the fact that the Children are currently in the same pre-adoptive home. Id.
at 11-12. The court concluded termination of Parents’ parental rights met the
Children’s needs and welfare and that there would be no irreparable or
detrimental harm to the Children to terminate Parents’ parental rights. Id. at
12.
The record supports the trial court’s conclusion. Ms. Aikens testified
that when asked, the Children expressed that they want to go home with
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Parents. N.T., 10/12/17, at 244. Ms. Akines observed a bond between the
Children and Parents. Id. at 244-45. Children also call Parents Mom and Dad
and call foster mother “Ms. [R.]” Id. at 244.
However, Ms. Akines also believed it would be harmful for the Children
to be removed from the foster parent. Id. at 222. Ms. Akines opined the
Children have a bond with the foster parent and noted they speak highly of
her. Id. Ms. Akines observed positive interactions between the Children and
the foster parent, who is able to control their behavior, attend to their needs,
and give them one-on-one attention. Id. at 222-23. Ms. Akines believed the
Children view the foster parent as their primary caregiver. Id. at 224. Ms.
Akines recounted that the foster parent was instructed not to pick up the
Children from the visitor room because the Children run to the foster parent,
which results in Mother being upset. Id. at 222. Ms. Akines also noted the
Children have a bond with each other and are placed in the same foster home.
Id. at 223-24. Ms. Akines opined it would not harm the Children beyond
repair if Parents’ rights were terminated. Id. at 225-26.
Ms. Turner, the visitation supervisor, testified the Children were equally
bonded to Parents and the foster parent. Id. at 292. Ms. Turner believed the
Children enjoyed visits with Parents, but she could tell the foster parent met
their emotional needs. Id.
Following our review, we conclude that the trial court appropriately
considered the bond between the Children and Parents, as well as the bond
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between the Children and their foster parent. The court properly considered
the facts that brought the Children into foster care in determining that the
bond between Parents and the Children were unhealthy, as well as the impact
that terminating Parents’ rights would have on the welfare of the Children.
Because the record and law supports the trial court’s conclusion that
terminating Parents’ rights meets the Children’s needs and welfare, we affirm
its conclusion that termination of Parents’ parental rights is appropriate
pursuant to Section 2511(b). See K.K.R.-S., 958 A.2d at 535; See K.Z.S.,
946 A.2d at 763.
In their third issue, Parents assert the trial court erred in failing to
appoint legal counsel for the Children in advance of the termination hearing.
They acknowledge the court appointed legal counsel for the Children, but
assert that counsel’s appointment, shortly before the hearing, was improper.
Mother’s Brief at 20-21, Father’s Brief at 19-20. Parents describe the
appointment as the “equivalent to merely checking off a box . . . .” Mother’s
Brief at 20, Father’s Brief at 19. Further, they fault counsel for the Children,
claiming he failed to take the time to understand the complexity of the case
and failed to “effectively advocate for his clients and lacked candor with the
trial court when he advised that he was ready to proceed.” Mother’s Brief at
21, Father’s Brief at 20. They similarly fault the trial court for failing to
continue the hearing based on the appointment of counsel shortly before the
hearing. Mother’s Brief at 21, Father’s Brief at 20.
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As to the appointment of counsel to represent a child in involuntary
termination proceedings, 23 Pa.C.S. § 2313(a) provides:
§ 2313. Representation.
(a) Child.--The court shall appoint counsel to represent the child
in an involuntary termination proceeding when the proceeding is
being contested by one or both of the parents. The court may
appoint counsel or a guardian ad litem to represent any child who
has not reached the age of 18 years and is subject to any other
proceeding under this part whenever it is in the best interests of
the child. No attorney or law firm shall represent both the child
and the adopting parent or parents.
23 Pa.C.S. § 2313(a).
In L.B.M., our Supreme Court addressed “whether 23 Pa.C.S. §
2313(a), which mandates the appointment of counsel for children involved in
contested involuntary termination of parental rights (“TPR”) proceedings, is
satisfied by the appointment of a guardian ad litem (“GAL”) provided that the
GAL is an attorney.” L.B.M., 161 A.3d at 174. The L.B.M. Court did not
overrule this Court’s holding in In re K.M., 53 A.3d 781 (Pa. Super. 2012),
that a GAL who is an attorney may act as legal counsel pursuant to section
2313(a) as long as the dual roles do not create a conflict between the child’s
legal and best interests. The Court defined a child’s legal interests as being
“synonymous with the child’s preferred outcome,” and a “child’s best
interests” as “what is best for the child’s care, protection, safety, and
wholesome physical and mental development regardless of whether the child
agrees.” Id. at 174 & n.2
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Subsequently, in In re T.S., 192 A.3d 1080 (Pa. 2018), the Supreme
Court held that the issue of whether a child’s statutory right to counsel was
denied is an alleged error that is non-waivable. T.S., 192 A.3d at 1087. In
T.S., our Supreme Court held that the trial court did not err in allowing the
children’s GAL to act as their sole representative during the termination
proceeding because, at two and three years old, they were incapable of
expressing their preferred outcome. Id. at 1092. The Court explained:
if the preferred outcome of the child is incapable of ascertainment
because the child is very young and pre-verbal, there can be no
conflict between the child’s legal interests and his or her best
interests; as such, the mandate of Section 2313(a) of the
Adoption Act that counsel be appointed “to represent the child,”
23 Pa.C.S. § 2313(a), is satisfied where the court has appointed
an attorney-[GAL] who represents the child’s best interests during
such proceedings.
Id. at 1092-93.
In a series of recent cases, this Court has vacated and remanded
termination cases where it is apparent that appointed counsel for the children
failed to speak with the children to determine their preferred outcome. See
In re T.M.L.M., 184 A.3d 585 (Pa. Super. 2018) (vacating and remanding for
further proceedings when six-year-old child’s preference was equivocal and
the attorney neglected to interview the child to determine whether legal and
best interests were in conflict); In re Adoption of D.M.C., 192 A.3d 1207
(Pa. Super. 2018) (vacating and remanding for further proceedings where the
children’s legal counsel had a limited conversation over the telephone with a
child who was almost thirteen years old, but the child’s preferred outcome was
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not clear from the record, and counsel had no conversation to ascertain the
younger, four-year-old child’s preferred outcome); In re Adoption of
M.D.Q., 192 A.3d 1201 (Pa. Super. 2018) (vacating and remanding where
this Court was unable to ascertain from the record whether the appointed
counsel represented the subject children’s legal interests and ascertained their
preferred outcomes, but appeared to have speculated as to their preferred
outcomes, and this Court could not determine the children’s legal interests
from the record, either).
Notwithstanding Parents’ argument, the Children’s legal counsel,
Attorney Vo, represented the Children appropriately. It is apparent that
counsel met with Children, determined their preferred outcomes, and
expressed the Children’s preferred outcome to the Court. Specifically, counsel
argued regarding the Children’s preferred outcomes as follows:
MR. VO: Yes. I saw the children together, not individually. And
during the interview, first, Ms. Akines brought them in. And then
foster mom came in. They don’t seem to be intimidated or
(unintelligible) presence of those adults. So, that’s my -- so, my
conclusion is they wish free -- they’re free to express their wish.
[R.Z.W.] cannot talk yet. So, I -- I don’t know. I didn’t ask h[im]
any question. Now, I asked them they know why they’re here.
They didn’t seem to know why they’re here. I asked whether they
know what term -- termination of parental rights is. They don’t
seem to understand.
I asked them, do they know why DHS -- no. I asked them DH --
I told them DHS -- they are in this situation because DHS believed
the bio parents couldn’t take care of them. [S.M.W.] agreed with
DHS a little. [S.M.W.] -- [S.M.W.] -- [S.M.W.] agreed with DHS.
(Unintelligible) okay. [S.M.W.]
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Now, they all say they are comfortable staying with [the foster
mother, Ms. R.] But they call her Ms. R[.], and they call [m]om
and [d]ad -- their bio parents [“]Mom and Dad.[”] And I told them
after today they may not be able to see their bio parents again,
so they all say they -- they are sad if they could not do that. They
all say that, okay.
Now, I told them, if they have to -- if they have to do one of the
two things, either go back home to their bio parents or stay here
with Ms. R[.], [J.W.W.] was the most emphatic he wants to go
home. [S.M.W.], he hesitated a little. He took like three or five
seconds to say he wanted to go home.
[M.J.W.] at first say he doesn’t know. That’s the first round. And
then on the first round of asking, [A.J.W.] also say he wanted to
go home with Mom and Dad. So, then, I wait for a while and then,
you know, I asked them a second round so that -- to make sure
that I don’t influence them or anything like that.
So, they still say the same thing. [J.W.W.], [S.M.W.], and
[A.J.W.] say they all want to go home. [M.J.W.] this time say he
want to stay with [Ms. R.] But he mumbled. We had to ask him
really what he -- now, what he say he want to do, stay with R[.]
That’s my report. Now, my -- so, [M.J.W.], I leave it to Ms.
Langenbach argument. I’m not going to argue on behalf of
[M.J.W.] because that’s his best interest, so I’m not to touch on
that.
[R.Z.W.], I’m -- you know, I have no position because I cannot
talk -- I couldn’t talk to him. But the other three I have -- I have
to advance their legal interest. And I have to say that they have
right of freedom of association. So, if they want to be with their
parents, that’s their right. That’s their legal right. They also have
the right to (unintelligible) the -- the -- their legal needs are there
for their bio parents. And they also -- and also, if they don’t make
it, they may lose any kind of right to inheritance that they may
have if -- that they may if they weren’t terminated. That’s all I
have.
N.T., 10/12/17, at 363-66.
Here, counsel’s representation of the Children complied with the
requirements of Section 2313. Accordingly, we conclude the trial court did
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not err when it appointed counsel for the Children shortly before the hearing,
or when it did not continue the hearing based on the timing of the
appointment.
In their fourth issue, Mother and Father assert the “[t]rial court erred in
violating parents’ due process rights by exhibiting bias and misapplying the
rules of evidence.” Mother’s Brief at 22, Father’s Brief at 20. After citing
general case law regarding the due process clause, recusal, judicial bias,
requests for continuance, sequestration, hearsay as being inadmissible, and
the effect of court orders, Parents include the following argument:
It was clear from the inception of this case that Judge Younge
overreached in maintaining control of this case. The case should
have been dismissed for lack of jurisdiction when A.J.W. received
the medical attention he needed. Rather, the court took mother
into custody to coerce the father into bringing the other children
physically into the jurisdiction of her court. All children were
removed from the parents’ care. At the immunization hearing,
Judge Younge acted with contempt toward the parents’ attorneys,
and allowed her law clerk to preside over the remainder of the
hearing. When the matter was submitted for interlocutory appeal,
Judge Younge should have been minimally involved in the
dependency case. Instead, when mother gave birth to another
child, she removed that child from mother’s care. Once the “go
fund me” video was released,[8] and played in open court, Judge
Younge should have recused herself. Rather, she retained
____________________________________________
8 See supra note 7. After reviewing the video at the February 2, 2017,
hearing, Mother stated that the trial judge was in a “horrific mood” and was
yelling, and Mother referred to her case as a debacle and a sham. Id. at 14.
Neither Mother nor Father requested recusal at the February 2, 2017 hearing.
Rather, Parents agreed to take the video down. Id. at 20-21.
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jurisdiction over the matter and allowed the city solicitor to swiftly
move toward termination.
It does not seem accidental that Judge Younge failed to appoint a
child advocate until last minute. Her rulings throughout the case
and TPR hearing demonstrated her lack of objectivity. It was
evident that the Judge had made up her mind prior to the
termination hearing. Seemed as though the Judge had made up
her mind prior to the termination hearing. Given that the
youngest child had been in care for less than 9 months at the TPR
hearing, the matter could easily have been listed as a status of
goal change. However, as early as June 8, 2017, the Judge
planned for an all-day termination hearing.
The Judge’s denial of the request for continuance was
unreasonable, biased, and ill-willed. This is also true of her
evidentiary rulings, continually in favor of the city and against
parents. Her failure to implement her own discovery order, honor
rules of evidence, give appropriate weight to all parties’ testimony,
or sequester witnesses all demonstrate her violation of parents’
due process rights.
Accordingly, the trial court erred in denying parents their due
process rights and continually exhibiting bias toward them.
Mother’s Brief at 24-25, Father’s Brief at 23-24.9
“A question regarding whether a due process violation occurred is a
question of law for which the standard of review is de novo and the scope of
review is plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa.
Super. 2017) (citation omitted). “Due process requires that the litigants
receive notice of the issues before the court and an opportunity to present
their case in relation to those issues.” Brooks–Gall v. Gall, 840 A.2d 993,
____________________________________________
9We observe that Parents stated this issue somewhat differently in their Rule
1925(b) statements. We, nevertheless, find that Parents preserved their
challenges regarding this issue.
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997 (Pa. Super. 2003) (citation omitted) (recognizing that dependency
proceedings implicate due process concerns). “It is well settled that
procedural due process requires, at its core, adequate notice, opportunity to
be heard, and the chance to defend oneself before a fair and impartial tribunal
having jurisdiction over the case.” S.T. v. R.W., 192 A.3d 1155, 1161 (Pa.
Super. 2018) (internal quotation marks and citations omitted). “The right of
a litigant to in-court presentation of evidence is essential to due process; in
almost every setting where important decisions turn on questions of fact, due
process requires an opportunity to confront and cross-examine adverse
witnesses.” M.O. v. F.W., 42 A.3d 1068, 1072 (Pa. Super. 2012) (citations
omitted).
Here, Parents make vague assertions of bias without specifically
identifying how the trial court erred. With respect to the court’s denial of a
continuance to allow counsel for the Children more time to prepare, the denial
was appropriate as counsel adequately represented the Children’s interests.
Additionally, while Parents fault the court for “favoring” DHS over the parents,
the record confirms that the court appropriately considered the facts before it
and reached a decision consistent with the evidence presented.
For the foregoing reasons, we affirm the decrees and orders of the trial
court involuntarily terminating Mother’s and Father’s parental rights to the
Children, and changing the Children’s permanency goals to adoption.
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Decrees and orders affirmed. Motion to strike denied. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/18
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