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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.W.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.B., FATHER :
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:
:
: No. 445 EDA 2019
Appeal from the Decree Entered, January 11, 2019,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-AP-0000479-2018.
IN THE INTEREST OF: P.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: W.B., FATHER :
:
:
:
:
: No. 447 EDA 2019
Appeal from the Order Entered, January 11, 2019,
in the Court of Common Pleas of Philadelphia County,
Family Court at No(s): CP-51-DP-0000535-2016.
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 13, 2019
W.B. (Father) appeals the decree granting the petition filed by the
Philadelphia Department of Human Services (DHS) that involuntarily
terminated his parental rights to 4-year-old P.W.B. (Child) pursuant to the
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* Retired Senior Judge assigned to the Superior Court.
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Adoption Act.1 See 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). After
review, we affirm.
We glean the relevant history from the trial court opinion filed pursuant
to Pa.R.A.P. 1925(a):
DHS originally became involved with this family on February
28, 2016, after DHS received a General Protective Services
(GPS) report which alleged that police officers responded to
a complaint regarding a domestic dispute at the home of
Mother and Father; Father claimed that Mother locked him
and Child out of the home and that Mother was under the
influence of a substance and that Mother was not taking her
prescribed medication; Child and Father had no resources
for the night because Mother refused to open the door to
the home for Child and Father; police were able to obtain a
telephone number from Father for Paternal Grandfather;
Child and Father were transported to Paternal Grandfather’s
home. This report was determined to be valid.
On March 2, 2016, DHS visited the home of Paternal
Grandfather, where he and Child were present. Paternal
Grandfather indicated he had taken Father to Friends
Hospital and that Father was being treated for his substance
abuse issues. Paternal Grandfather indicated that this was
not the first time he had to care for Child because Father
and Mother were unable to care for him. Father had
previously been unable to care for Child while he was in
treatment. On that same day, DHS obtained an Order of
Protective Custody (OPC) for Child.
On March 4, 2016, a shelter care hearing was held for Child.
Father was not present for this hearing. The trial court lifted
the OPC, ordered that the temporary commitment to DHS
was to stand, and ordered Father to attended supervised
visits with Child at the agency.
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1The trial court also terminated the rights of C.P. (Mother); that appeal is part
of a separate matter that is also before this panel.
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On March 14, 2016, Child was adjudicated dependent and
fully committed to DHS.
Trial Court Opinion (T.C.O.), 4/22/19, at 1-2 (footnotes and citations to the
record omitted).
Over the course of the next 34 months, Father struggled to maintain his
sobriety for any meaningful length of time. He was inconsistent with his
reunification goals. Father never completed treatment programs for his drug
addiction or his mental health. His visitation with Child was irregular. In June
2018, DHS filed a petition to involuntarily terminate Father’s parental rights.
After a hearing on January 11, 2019, the court granted the petition and
terminated Father’s rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),
(8), and (b).2 Father filed this timely appeal. He presents three issues for our
review, which we reorder for ease of disposition:
1. Whether the trial court committed reversible error
when it allowed inadmissible hearsay evidence
because [the court] did not properly apply the
business record exception. In addition, the business
records were not admitted into the record thereby
making the testimony as to the contents inadmissible?
2. Whether the trial court committed reversible error
when it involuntarily terminated Father’s parental
rights where such determination was not supported by
clear and convincing evidence under Adoption Act. 23
Pa.C.S.A. § 2511(a)(1), (a)(2)?
3. Whether the trial court committed reversible error
when it involuntarily terminated Father’s parental
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2 Child’s interests were properly represented pursuant to 23 Pa.C.S.A. §
2313(a).
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rights without giving primary consideration to the
effect that the termination would have on the
developmental, physical and emotional needs of Child
as required by Adoption Act. 23 Pa.C.S.A. § 2511(b)?
Father’s Brief at *4 (not paginated).
We begin our discussion with Father’s contention that the court erred by
improperly admitting hearsay under the business records exception. The
decision of whether to admit or exclude evidence is within the sound discretion
of the trial court. In re A.J.R.-H., 118 A.3d 1157, 1166-1167 (Pa. 2018)
(citations omitted). A reviewing court will not disturb these rulings absent an
abuse of discretion. Id., 118 A.3d at 1167 (citation omitted). Discretion is
abused if, inter alia, the lower court overrides or misapplies the law. Id.
(citation omitted).
In re A.J.R.-H concerned a case where a trial court admitted, all at
once, 167 exhibits offered by a Children and Youth Services (CYS) agency in
a termination of parental rights hearing. There, the local CYS engaged in a
common practice of proffering for admission all of its exhibits at the starts of
hearings under the auspices of the business records exception. Our Supreme
Court took issue. Critically, the error was not the en masse admission of
exhibits, per se. Rather, the trial court erred because the admission did not
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meet the criteria of the business records exception.3 See generally In re
A.J.R.-H., 118 A.3d at 1167-1170.
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3 “Hearsay” is “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
Under the Pennsylvania Rules of Evidence, hearsay evidence is incompetent
and inadmissible unless it meets an exception set forth in the Rules or one
prescribed by this Court or statute. Pa.R.E. 802. One such exception to the
prohibition against hearsay, at issue in this case, is commonly known as the
business records exception, which permits the admission of:
A record (which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6). See also 42 Pa.C.S. § 6108(b) (“A record of an act, condition
or event shall, insofar as relevant, be competent evidence if the custodian or
other qualified witness testifies to its identity and the mode of its preparation,
and if it was made in the regular course of business at or near the time of the
act, condition or event, and if, in the opinion of the tribunal, the sources of
information, method and time of preparation were such as to justify its
admission.”).
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Returning to the case at bar, we never arrive at Father’s claim that court
ran afoul of the business records exception, because Father did not preserve
the issue for our review. “Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Father made no objection when DHS proffered its exhibits for admission.
Father made no objection when the testifying witnesses referenced the
exhibits or the information therein. The only objection to which Father directs
us occurred during an exchange with the DHS caseworker. See N.T., 1/11/19,
at 23-28. The issue there was whether Father overdosed while Child was in
his care. Insofar as we can discern, the confusion involves the timeframe of
the overdose and whether Child was in Father’s physical possession at the
time. That objection was ultimately sustained by the court. Meanwhile, the
fact that Father had experienced relapses had already made its way into the
record without objection.
On appeal, Father seeks to bootstrap the evidentiary ruling about the
overdose to his argument that Father’s demonstrated history of drug abuse
was wrongly admitted at trial. The problem, however, is Father only objected
to one narrow issue during the testimony; he did not object when DHS
proffered – and the court admitted – DHS’s exhibits. The rules cannot be
clearer. Father cannot raise the matter for the first time on appeal, and thus
his first appellete issue is waived.
We turn now to Father’s second issue, which concerns the initial prong
of the section 2511 analysis. Here, too, Father faces waiver. Termination of
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parental rights is governed by Section 2511 of the Adoption Act, 23 §§ 2101-
2938, 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 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).
Regarding the first prong of the termination analysis under section
2511(a), the trial court terminated Father’s rights pursuant to subsections
2511(a)(1), (2), (5), (8). In his concise statement, Father only appealed
subsection 2511(a)(2). In the Questions Involved section of his brief, Father
partially corrects his mistake and raises subsections 2511(a)(1) and (2). In
the body of his argument section, Father manages to reference all four
grounds upon which the court terminated: 2511(a)(1), (2), (5), and (8). We
conclude that Father waived his challenge to the court’s decision under
subsections 2511(a)(1), (5), and (8). “Issues not included in the [concise
statement of errors complained of on appeal] and/or not raised in accordance
with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii).
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Even if we declined to find waiver of Father’s claims under subsections
2511(a)(1), (5) and (8), we would still conclude the trial court did not abuse
its discretion in terminating Father’s rights under 23 Pa.C.S.A. § 2511(a)(2),
the only ground which Father properly preserved.
Regarding subsection 2511(a)(2), we have explained:
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.
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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (citations,
internal quotation marks, and indentation omitted).
The trial court made the following findings:
Throughout the time that Child has been in the custody of
DHS, Father’s SCP objectives were to attend the CEU for
drug screens, comply with recommendations of his drug and
alcohol program, maintain stable housing, make himself
available for necessary home visits and appointments,
attend visitation with Child, and complete a [parenting
capacity evaluation]. Father was aware of his objectives.
[…]
Father admitted that he has been inconsistent with regularly
attending drug treatment. […] Father refuses to follow the
orders of the trial court to provide random screens or even
attended the CEU. When Father did complete a drug screen
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in May 2018, Father’s creatinine was diluted.[4] […] CUA has
been unable to verify if Father’s home is stable and
appropriate. CUA has attempted to schedule a home
assessment at Father’s home, but Father has not made the
home available. […] [] Father completed Family School with
Child after attending from July 2017 to April 2018, but the
visits reverted back to supervised at the agency due to
Father’s inconsistent attendance and previous drug relapse.
Father has not provided a reasonable explanation from the
inconsistent attendance. […] At the time of the [parental
capacity evaluation], Father presented with the capacity to
provide safety and permanency to Child, as long as he
complied with the recommendations. Throughout the life of
the case, Father has been unable to successfully complete
all of his objectives, especially maintain a consistent period
of sobriety.
T.C.O., at 10-12 (citations to the record omitted).
The record reveals that Father has demonstrated a continued incapacity,
which has caused the Child to be without his parental care, and which he is
unable to remedy. Upon our review, we opine that the trial court’s
determinations were supported by the record, and thus the court did not abuse
its discretion. Therefore, even if Father did not waive part of his challenge,
we would conclude, nevertheless, that the first prong of the termination
analysis has been satisfied.
Next, we consider Father’s third and final issue, whether termination
was proper under section 2511(b).
We review these claims mindful of our well-settled standard or review:
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4 The trial court noted that creatinine is a by-product produced by human
kidneys that enables the trial court to ascertain whether the individual is
“washing” his or her urine by drinking substances before drug testing to dilute
and mask any drugs in their urine. See T.C.O., at n.7.
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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 quotations marks
omitted).
With regard to section 2511(b), our Supreme Court has stated as
follows:
[I]f the grounds for termination under section (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. § 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.... [T]his 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 T.S.M., 71 A.3d at 267 (internal case citations omitted).
While a parent's emotional bond with his or her child is a major aspect
of the section 2511(b) best-interest analysis, it is nonetheless only one of
many factors to be considered by the trial court when determining what is in
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the best interest of the child. In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014)
(citing In re K.K.R.–S., 958 A.2d 529, 535–536 (Pa. Super. 2008). The mere
existence of an emotional bond does not preclude the termination of parental
rights. Id., 93 A.3d at 897-898; see also In re T.D., 949 A.2d 910 (Pa.
Super. 2008) (trial court's decision to terminate parents' parental rights was
affirmed where court balanced strong emotional bond against parents' inability
to serve needs of child). Rather, the trial court must examine the status of
the bond to determine whether its termination “would destroy an existing,
necessary and beneficial relationship.” Id. at 898 (citation omitted). Beyond
the presence of the bond, 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.
See In re Adoption of C.D.R., 111 A.3d at 1219.
Father argues that he shares a bond with Child. He points to the fact
that Child refers to him as “dad.” Father maintains he has attempted to
maintain a relationship, as evidenced by his taking snacks and games to the
visits with Child. Father also argues he should not be penalized because he
was denied benefits.
The court acknowledged the presence of a bond, but the question is
whether that bond is worth preserving. Here, Father’s drug abuse and
irregular visits with Child had caused the visitations to be scaled back to
supervised. Although Father appeared appropriate with Child, and had spent
enjoyable time with Child, this cannot be conflated with providing necessary
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security and stability. While Child refers to Father as “dad”, Child also referred
to the foster parent as “mommy”, the other child in the foster home as his
brother, and, the foster family as his real family.
Section 2511(b) does not construe “needs and welfare” in financial
terms. “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.” 23
Pa.C.S.A. § 2511(b). Thus, the disparate income between Father and the
foster parent is irrelevant. What is relevant, and indeed essential to this
portion of the analysis, is the fact that Father’s lack of progress has caused
Child to without parental care for the better part of three years – the vast
majority of Child’s short life.
We observe that a parent’s constitutional right to the custody and child
rearing of his child is converted, upon the failure to fulfill his parental duties,
to the child’s right to have proper parenting and fulfillment of his potential in
a permanent, healthy, safe environment. See In re Z.P., 994 A.2d 1108,
1120 (Pa. Super. 2010) (citation omitted). Following that trajectory, our
Supreme Court has determined that children, who, like Child, are old enough
to verbalize a preferred outcome, should have a voice in this discussion. See
In re T.S., 192 A.3d 1080, 1092 (Pa. 2018); see also In re Adoption of
L.B.M., 161 A.3d 172 (Pa. 2017). Here, Child has been without parental care
for years and is in need of permanency. Child has also expressed a desire to
remain with the foster family. The court was within its discretion to conclude
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that Child would not suffer irreparable harm if the bond between Father and
Child was severed.
Regarding the second prong of the termination analysis, the trial court
concluded that DHS provided clear and convincing evidence that termination
would best serve Child’s needs and welfare. We conclude that this
determination was not an abuse of discretion.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/19
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