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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF E.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.M., FATHER : No. 2018 MDA 2018
Appeal from the Decree Entered December 3, 2018,
in the Court of Common Pleas of Cumberland County
Orphans’ Court Division at Nos. 74 Adoptions 2016,
CP-21-DP-0000034-2014
IN THE INTEREST OF E.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.M., FATHER : No. 54 MDA 2019
Appeal from the Order Entered December 6, 2018,
in the Court of Common Pleas of Cumberland County
Juvenile Division at No. CP-21-DP-0000034-2014
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2019
T.M. (“Father”) appeals from the December 3, 2018 decree entered in
the Court of Common Pleas of Cumberland County, Orphans’ Court Division,
involuntarily terminating his parental rights to his dependent child, E.L.,
female child, born in May of 2008 (“Child”), pursuant to the Adoption Act,
J. S33037/19
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b).1 After careful review, we
affirm.
The trial court set forth the following:
Mother[2] had ceded primary physical custody of
[Child] to Father as far back as 2012. Over the years,
[Cumberland County Children and Youth Services (the
“Agency”)] received several referrals regarding
Father’s heroin use.[Footnote 2] On February 6,
2014, the Agency became formally involved because
of Father’s incarceration. He had left [Child] in the
care of paternal grandmother. Unfortunately, paternal
grandmother was unable to care for [Child] due to her
own health issues. [C]hild was declared dependent.
She was placed in the legal and physical custody of
the Agency which placed her in the foster home of
paternal grandfather. She continued to reside with
paternal grandfather until early 2015 when she was
transferred to the informal kinship home of her
maternal grandparents. She stayed in that home
1 The record reflects that Father filed a timely notice of appeal of the decree
terminating his parental rights to Child at No. 74 Adoptions 2016 which this
court docketed at No. 2018 MDA 2018. Father then filed a timely notice of
appeal of the order changing the goal to adoption at CP-21-DP-0000034-2014
which this court docketed at No. 54 MDA 2019. By order entered February 2,
2019, this court consolidated the appeals sua sponte pursuant to
Pa.R.A.P. 513. (Per curiam order, 2/8/19.) In his brief to this court,
however, Father does not challenge the goal-change order.
We also note that the trial court appointed separate legal counsel to represent
Child’s legal interest, as well as a guardian ad litem to represent Child’s best
interest. See In re Adoption of L.B.M., 161 A.3d 172, 179-180 (Pa. 2017)
(plurality) (requiring the appointment of separate legal counsel, in addition to
a guardian ad litem, in contested involuntary termination proceedings); see
also In re D.L.B., 166 A.3d 322, 329 (Pa.Super. 2017) (concluding that
“separate representation would be required only if the child’s best interests
and legal interests were somehow in conflict.”)
2 The record reflects that the trial court granted the biological mother’s petition
for voluntary termination or relinquishment of parental rights to Child on
December 13, 2018.
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from February 26, 2015, until March 30, 2015, when
she was placed in Mother’s care. On May 28, 2015,
she was taken from Mother’s care and placed back in
the home of her maternal grandparents. She
remained in the home of her maternal grandparents
for nearly two (2) years until she was reunified with
Father on February 26, 2017.
[Footnote 2] Father conceded that he has
been battling heroin addiction for many
years.
On January 8, 2018, the Agency received a referral
that Father had left [Child] at the home of maternal
grandparents on December 24, 2017. Father told the
maternal grandparents that he and [C]hild were
homeless. He was also in the throes of a relapse of his
heroin addiction. He never did return for [C]hild.
On February 15, 2018, we held a shelter care hearing
for [Child]. She was again placed in the kinship home
of her maternal grandparents. She was re-adjudicated
dependent on March 19, 2018. Despite being given
notice of the adjudicatory hearing, Father did not
attend. The Agency lost contact with Father until June
of 2018. Father reached out to the Agency through
his counselor at an inpatient drug treatment program.
The Agency provided the family service and
permanency plans to Father. His counselor confirmed
that they were received and reviewed.
On July 2, 2018, through his counselor, Father
requested visitation with [Child]. The Agency referred
him to ABC.[Footnote 7] ABC attempted to arrange
visitation but was unsuccessful due to Father’s lack of
follow-through. On August 24, 2018, the Agency filed
a Petition to Terminate Father’s Parental Rights. At
that point, Father had neither seen nor contacted his
daughter since December 24, 2017. We held an
evidentiary hearing on November 20, 2018.
[Footnote 7] ABC is a local provider that
assists the Agency with a multitude of
parenting services.
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Trial court opinion, 3/11/19 at 1 to 2 (footnotes containing citations to notes
of testimony omitted).
The record reflects that following entry of the termination decree, Father
filed a timely notice of appeal, together with a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The trial court
then filed its Rule 1925(a)(2)(ii) opinion.
Father raises the following issues for our review:
[1.] Does the record support the [trial] court’s
finding by clear and convincing evidence that
Father’s progress was ‘minimal’ and the
conditions and causes of the incapacity, abuse,
neglect or refusal cannot or will not be remedied
by the Father under [Section] 2511[(a)](2)?
[2.] Does the record support the [trial] court’s
finding by clear and convincing evidence that
the conditions which led to the removal or
placement of [C]hild continue to exist and that
Father cannot or will not remedy those
conditions within a reasonable period of time
under [Section] 2511[(a)](5)?
[3.] Does the record support the [trial] court’s
finding that severing the bond between Father
and the minor child would not have any
detrimental effect on [C]hild where [C]hild
asked to see Father, greeted him with a loving
embrace and where no bonding study was
ordered or considered?
[4.] Did the court error [sic] as a matter of law
and/or abuse its discretion in terminating
Father’s parental rights on the basis that Father
was not fully compliant with the parenting plan
while he was receiving in patient [sic] medical
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care for mental health and addiction disorders
under [Section] 2511(b)?
[5.] Did the court error [sic] as a matter of law
and/or abuse its discretion in suggesting to [the
Agency] that they should amend the Petition to
add subsection (1) to the Petition during
Father’s closing argument and without affording
an opportunity to respond or re-open evidence
thereby denying Father his Due Process rights?
Father’s brief at 4.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “If
the factual findings are supported, appellate courts
review to determine if the trial court made an error of
law or abused its discretion.” Id. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe
all, part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f competent
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evidence supports the trial court’s findings, we will affirm even if the record
could also support the opposite result.” In re Adoption of T.B.B., 835 A.2d
387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated analysis
of the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511,
the court must engage in a bifurcated process prior to
terminating parental rights. 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). 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).
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In this case, the trial court terminated Father’s parental rights pursuant
to Sections 2511(a)(1),3 (2), and (5), as well as (b). We have long held that,
in order to affirm a termination of parental rights, we need only agree with
the trial court as to any one subsection of Section 2511(a), as well as
Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the termination decree 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
3 We note that in his fifth issue on appeal, Father contends that the trial court
abused its discretion when, during the termination hearing, it permitted the
Agency to amend the termination petition to include Section 2511(a)(1) as a
ground for termination. (Father’s brief at 28-30.) The record reflects that
when the Agency made the oral motion to amend, Father failed to place an
objection on the record. (Notes of testimony, 11/30/18 at 140.)
Consequently, Father waives this claim on appeal. See Pa.R.A.P. 302 (stating
that “[i]ssues not raised in the lower court are waived and cannot be raise for
the first time on appeal”).
We further note that even if Father did not waive this issue on appeal for
failure to raise it with the trial court, we need only agree with the trial court
as to any one subsection of Section 2511(a), as well as Section 2511(b), to
affirm an order terminating parental rights. In re B.L.W., 843 A.2d at 384.
Because we determined that the trial court properly terminated Father’s
parental rights pursuant to Section 2511(a)(2), Father’s argument with
respect to Section 2511(a)(1) would be moot.
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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.A. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 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 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
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grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015),
quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability of services,
may properly be rejected as untimely or disingenuous.” In re A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
Here, in terminating Father’s parental rights, the trial court emphasized
that:
[t]he main basis for the termination of Father’s
parental rights was his lengthy history of heroin
addiction. The record shows that his duties to [Child]
took a back seat to his drug use. His drug use
prevented reunification during [Child’s] current and
previous time in placement. It caused Father and
[Child] to become homeless in December, 2018. It
caused Father to leave [Child] in the care of others.
His drug use, historically, has caused instability and
unrest for the majority of [C]hild’s life. His demons
have delayed her permanency. And, sadly, at the time
of the termination hearing, he still had not
demonstrated any real progress on addressing his
drug addiction outside of a controlled environment.
Not only had he failed to follow through on outpatient
counseling, he was slow to begin the drug testing
program requested by the Agency. Once he began, he
missed numerous drug tests and call-ins within the
first 15 days.
Furthermore, he failed to keep in contact with [Child].
He had not had any contact or communication with
her for almost a year. While he had made an attempt
to contact the Agency to set up visits, he did not follow
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through. His participation in an inpatient drug
treatment program may partially explain his failure to
follow through with visitation, but it does not provide
an excuse for his total lack of communication with his
child.
[Child] was without essential parental care for almost
four-and-one-half years at the time of the hearing.
Father’s addiction is the source of his repeated and
continued parental incapacity, and his current
situation was a foreseeable consequence of his
inability to lead a life free from illegal drugs. He has
been in and out of [Child’s] life during his times of
incarceration, rehab and homelessness, all stemming
from his drug addiction. He may be attempting to
battle his addiction at the moment but he still has a
long way to go in his recovery. His inability to follow
through with his drug testing (and outpatient
counseling) demonstrates this problem. Thus, we
found that Father’s drug-related issues continued to
impact [Chlid] and precluded him from providing
essential parental care, control or subsistence
necessary for her physical and mental well-being.
Whether Father’s failure to provide parental care is the
result of true incapacity or is simply his refusal,
differentiating is not important; the result is the
same—[Child] is without essential parental care.
Taking into consideration the already lengthy history
here, this problem was not likely to be remedied in
time to align with the needs and welfare of [Child].
She needs and deserves stability and permanency,
which Father was unable or unwilling to provide at the
time of the hearing. A child’s permanency cannot be
put off indefinitely in the hope that a parent might one
day be able to carry out his duties.
Trial court opinion, 3/11/19 at 5-7 (citation omitted).
Here, in his brief to this court, Father rehashes the termination hearing
testimony in an attempt to persuade this court to reach a different result. We
are, however, required to accept the trial court’s findings of fact and credibility
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determinations when supported by the record. In re T.S.M., 71 A.3d at 267.
Here, our review of the record compels the conclusion that it supports the trial
court’s factual findings and that the trial court did not abuse its discretion in
terminating Father’s parental rights under Section 2511(a)(2). The record
demonstrates that the conditions that existed upon removal establish
repeated and continued incapacity, abuse, neglect, or refusal of Father that
caused Child to be without essential parental care, control, or subsistence
necessary for his physical or mental well-being. The record also supports the
trial court’s conclusion that Father continued to lack capacity to parent Child.
We now turn to whether termination was proper under Section 2511(b).
As to that section, our supreme court has stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs and
welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53
A.3d 781, 791 (Pa.Super. 2012). In In re E.M., 620
A.2d [481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare”
requires consideration of the emotional bonds
between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M.,
53 A.3d at 791. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
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exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation 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 at 1121 (internal citations omitted).
Moreover,
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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[c]ommon sense dictates that
courts considering termination must also consider whether the children are in
a pre-adoptive home and whether they have a bond with their foster parents.”
T.S.M., 71 A.3d at 268. The court directed that, in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,
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“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail, the result, all
too often, is catastrophically maladjusted children.” Id.
In determining that termination of Father’s parental rights favored
Child’s needs and welfare, the trial court:
found little to no evidence that severing the ties
between Father and [Child] would have any
detrimental effect on [C]hild. She even expressed
concern to her therapist about possibly returning to
his care. Prior to her testimony in chambers, she had
consistently told her therapist that she did not want
to live or visit with her Father. Furthermore, we were
satisfied that if there would be any adverse effect, it
could be easily overcome by the love and support of
[Child’s] maternal grandparents. She is thriving in the
foster home of her maternal grandparents. They love
her and want to adopt her.[Footnote 13] Her life with
Father had been hard and unpredictable. With her
maternal grandparents, she has love, stability, and
permanency. Consequently, we were satisfied that
the needs and welfare of [Child] would be best served
by terminating Father’s parental rights and allowing
her to be adopted.
[Footnote 13] Both maternal and paternal
grandparents want to adopt [Child].
Mother consented to the termination of
her rights with her parents being her
preference for the adoption. [Child] also
prefers her maternal grandparents as
evidenced by her choice to not honor her
paternal grandparents’ request for
visitation and to not request any such
visitation herself.
Trial court opinion, 3/11/19 at 7 (footnotes containing citations to notes of
testimony omitted).
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In his brief, Father rehashes select portions of the record in an effort to
persuade this court to reach a different result. The record, however, supports
the trial court’s factual findings, and its legal conclusion that termination of
Father’s parental rights is in Child’s best interest was not the result of an error
of law or an abuse of discretion.
Based upon our thorough review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under Sections 2511(a)(2) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/11/2019
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