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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: T.L.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.C., FATHER :
:
:
:
:
: No. 1356 MDA 2019
Appeal from the Order Entered July 18, 2019
In the Court of Common Pleas of Columbia County Juvenile Division at
No(s): 2018-OC-0000213-RT
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 08, 2020
Appellant, T.C. (“Father”), appeals from the July 18, 2019 Order entered
in the Columbia County Court of Common Pleas that involuntarily terminated
his parental rights to T.L.C. (“Child”). Upon careful review, we affirm.
The lower court has provided this Court with a well-written, thorough,
and comprehensive Opinion, which sets forth the relevant factual and
procedural history of this case, and we adopt its detailed recitation for
purposes of this appeal. See Trial Ct. Op., filed 7/18/19, at 1-9. In sum,
Father and C.L.C. (“Mother”) are the biological parents to Child, who was born
in June 2015. Mother, who is an indicated perpetrator of abuse related to the
death of another child, gave birth to Child in a toilet causing Columbia County
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Children and Youth Services (“CYS”) to obtain emergency custody of Child and
place Child in foster care, where Child remains.1
On August 27, 2015, Father agreed to adjudicate Child dependent and
Child remained in placement. The trial court made findings that Father had
an indicated report of child abuse against another child2, CYS suspected that
Father used drugs, and Father had a labile affect3. The trial court ordered
Father to participate in a psychiatric evaluation and follow any treatment
recommendations; participate in a drug and alcohol evaluation and follow any
treatment recommendations; complete parenting classes, sign releases, and
cooperate with CYS.
CYS created Family Service Plan (“FSP”) objectives for Father, which
remained the same throughout the case, including: (1) address mental
health; (2) provide stable housing; (3) maintain bond with Child; (4) meet
Child’s basic needs; and (5) cease any criminal activity. Father was aware of
these FSP objectives, as CYS discussed them with Father on multiple
occasions.
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1 Mother voluntarily terminated her parental rights to Child.
2Father shot his daughter with a paint gun in the face multiple times, causing
bleeding and severe pain.
3 Labile affect, or pseudobulbar affect, involves frequent, involuntary and
uncontrollable outbursts of crying or laughing that are exaggerated or not
connected to an individual’s emotional state. See
https://psychology.wikia.org/wiki/Labile_affect; https://www.mayoclinic.org/
diseases-conditions/pseudobulbar-affect/symptoms-causes/syc-20353737.
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On July 22, 2016, after a permanency review hearing, the court made
findings that Father was not participating in counseling and was minimally
compliant with his FSP objectives. Additionally, the court made a specific
finding that Father posted an article on his Facebook page entitled “University
Academics Say Pedophilia is ‘Natural, and Normal for Males to be AROUSED
by Children.’” and Father “now states that he did it by mistake.” Order,
7/22/16.
On November 16, 2018, more than three years after Child was
adjudicated dependent, CYS filed a Petition to Involuntarily Terminate Father’s
Parental Rights (“TPR Petition”). On February 15, 2019, CYS filed an Amended
TPR Petition and on March 27, 2019, and May 28, 2019, the trial court held
hearings. The trial court heard testimony from Jacqueline Saladay, Ph.D.,
expert in clinical psychology; Kerri Shaylor, CYS caseworker; Laura Hess, CYS
caseworker; and Father.
In sum, the trial court heard testimony that Father had made minimal
progress toward achieving his FSP goals; Father failed to maintain stable
housing, comply with mental health treatment including counseling, maintain
stable employment, submit to and pass all requested drug tests, and
consistently attend visitation with Child. The trial court also heard testimony
that termination of Father’s parental rights was in Child’s best interest.
Dr. Saladay testified that she evaluated Father on February 5, 2017,
diagnosed Father with mixed personality disorder, and recommended Father
engage in a year of mental health counseling. N.T. TPR Hearing, 3/27/19, at
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11-12. Ms. Shaylor testified that Father informed CYS on multiple occasions
that he did not need mental health counseling, failed to provide CYS a list of
counselors covered by his insurance, and failed to engage in any counseling.
Id. at 99-100, 104.
Ms. Shaylor informed the court that in 2018 and 2019, Father refused
to submit to six drug screens and on August 10, 2018, he tested positive for
methamphetamines. Id. at 66-68, 71-73, 76-78.
Ms. Shaylor testified that, despite the court ordering a home evaluation,
Father refused to allow CYS to evaluate his home. N.T. TPR Hearing 5/28/19,
at 9-10. On March 27, 2019, accompanied by the Sheriff’s office, Ms. Shaylor
went to Father’s last known address and discovered it to be condemned. Id.
at 9-15. Ms. Shaylor explained that she asked Father for an updated address,
and he responded that it was “none of my business.” Id. at 19.
Ms. Shaylor informed the court that Father missed approximately 23 of
the weekly, supervised visitation with Child from 2016 through 2019. N.T.
TPR Hearing, 3/27/19, at 128-58.
Finally, Ms. Shaylor testified that Child has special needs and has been
diagnosed with a STAG One Gene Mutation, which causes speech and
developmental delays; childhood Apraxia, a phonological disorder causing
speech delays; and hysperkinesis, which is involuntary stiffening and
tightening of his body. Id. at 159. Child also has gastroenterological issues,
requiring a special diet at times. Id. at 160.
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Ms. Shaylor explained that Child resides in a pre-adoptive foster home
where his physical, social, emotional, and special medical needs are being
met; Child has resided in the home since birth. Id. at 158-62, 164. Child
calls the foster parents “Mommy” and “Daddy” and “acts like siblings” with a
younger child in the home. Id. at 162. Child receives early intervention
services in the home for speech and occupational therapy. Id. at 163.
Additionally, foster parents take Child to three speech therapy appointments
every week and ensure that Child attends all of his medical appointments. Id.
Ms. Shaylor stated that Father has never attended one of Child’s medical or
therapy appointments. Id. at 161. Ms. Shaylor testified that CYS believes a
goal change to adoption and termination of Father’s parental rights is Child’s
best interest. Id. at 164-65.
Dr. Saladay testified that Child was “completely bonded” with the foster
parents and it was difficult for Child to leave them, even for 20 minutes. Id.
at 22, 25. Dr. Saladay stated that the foster parents were meeting Child’s
emotional needs and described “an atmosphere of just complete joy with the
way they helped him plan and solve problems and learn things, a very good
emotional support and emotional connection.” Id. at 21.
In turn, Dr. Saladay observed that “[t]here was bonding” between
Father and Child “but it wasn’t as strong as it was with the foster parents.”
Id. at 24. Dr. Saladay explained that the “bond” between Father and Child
“was more like a good babysitter or good friends of the family, uncle, cousin.”
Id. at 24. When asked if she had an opinion about Father’s ability to parent
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Child, she responded, “[m]y opinion was that I didn’t see him as a full-time
parent.” Id. at 24-35. Dr. Saladay recommended that it would be “really
good” if the foster parents adopted Child, and proposed an open adoption with
a visitation schedule. Id. at 25.
Father testified that he did not currently have an address because his
home was condemned, and that his landlord was putting him up in a hotel.
N.T. TPR Hearing, 5/28/19, at 43-44. Father stated that he previously had
suitable housing, lived in multiple addresses at one time, and cooperated with
CYS to inform them about the different addresses. Id. at 60-63. Father
explained that he had weekly supervised visitation with Child and admitted
that he missed some scheduled visits because of car problems, sickness, and
traveling to Colorado to donate a kidney to a girl who needed a kidney. Id.
at 46. Father informed the court that he had two jobs and paid child support
for Child. Id. at 48. Father denied physically abusing his daughter. Id. at
59. Father testified that he tried to engage in mental health counseling, and
that CYS provided assistance, but that he was unsuccessful finding a local
therapist through his insurance. Id. at 60, 80-83. Father acknowledged that
he had “a couple” of positive drug tests, but explained to the court that, upon
retest, the results were negative. Id. at 50-51. When counsel asked Father
to describe his feelings for Child, he responded, “Well he is my son. I wouldn’t
still be fighting for him if I didn’t care about him.” Id. at 46.
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At the conclusion of the hearings, on July 18, 2019, the trial court
entered an Order terminating Father’s parental rights and changing Child’s
permanency goal to adoption.
Father timely appealed. Both Father and the trial court complied with
Pa.R.A.P. 1925.
Father raises the following issues for our review:
I. Whether the [l]ower [c]ourt erred in terminating Father’s
parental rights because the record does not establish by
clear and convincing evidence that Father, for any period of
time, evidence a settled purpose of relinquishing his
parental rights, or failed to perform his parental duties as
required by [23 Pa.C.S. § 2511(a)(1)]?
II. Whether the [l]ower [c]ourt erred in terminating Father’s
parental rights because the record does not establish by
clear and convincing evidence that the conditions that led to
the removal or placement of [C]hild were the result of any
conduct on behalf of the Father and the record reflects that
Father could not have remedied the conditions, that he did
not create, within a reasonable period of time as required
by [23 Pa.C.S. § 2511(a)(5)?
III. Whether the [l]ower [c]ourt erred in terminating Father’s
parental rights because the record does not establish by
clear and convincing evidence that finding that the
termination of Father’s parental rights is in the best interests
of [C]hild, as required by [23 Pa.C.S. § 2511(a)(8)] and (b)?
Father’s Br. at 3.
When we review a trial court’s decision to grant or deny a petition to
involuntarily terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported,
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appellate courts review to determine if the trial court made an error of law or
abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for the trial court’s decision,
the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation omitted). We may not reverse merely because the record could
support a different result. In re T.S.M., 71 A.3d at 267. We give great
deference to the trial courts “that often have first-hand observations of the
parties spanning multiple hearings.” Id. Moreover, “[t]he 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).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). If the court determines that the parent’s
conduct warrants termination of his or her parental rights, the court then
engages 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.” Id. (citation omitted). Notably, while the trial court
here found that CYS met its burden of proof under 23 Pa.C.S. § 2511(a)(1),
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(5), (8), and (b), we need only agree with its decision as to any one subsection
of Section 2511(a), as well as Section 2511(b), in order to affirm the
termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
Father first avers that the trial court abused its discretion when it
terminated his parental rights pursuant to Section 2511(a)(1). Father’s Br. at
11. Father argues that there was no evidence to support the contention that
Father refused or failed to perform parental duties. Id. at 12. Moreover,
Father contends, without citation to the record, that even though he never
had custody of Child, he was “conscientious with regard to visitation, paid child
support, and developed a comfortable, loving relationship with [C]hild.” Id.
Upon review, we find no abuse of discretion.
Section 2511(a)(1) provides that the trial court may terminate parental
rights if the Petitioner establishes that “the parent by conduct continuing for
a period of at least six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.” 23 Pa.C.S. §
2511(a)(1). The focus of involuntary termination proceedings is on the
conduct of the parent and whether that conduct justifies a termination of
parental rights. In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
Although the statute focuses on an analysis of the six months immediately
preceding the filing of the petition, “the court must consider the whole history
of a given case and not mechanically apply the six-month statutory provision.”
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In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008) (citation omitted). Rather,
“[t]he court must examine the individual circumstances of each case and
consider all explanations offered by the parent facing termination of his
parental rights, to determine if the evidence, in light of the totality of the
circumstances, clearly warrants the involuntary termination.” Id. (citations
omitted).
This Court has repeatedly defined “parental duties” in general as the
affirmative obligation to provide consistently for the physical and emotional
needs of a child:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this Court has held that the parental obligation
is a positive duty which requires affirmative performance.
This affirmative duty . . . requires continuing interest in the
child and a genuine effort to maintain communication and
association with the child. Because a child needs more than
a benefactor, parental duty requires that a parent exert
himself to take and maintain a place of importance in the
child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations and internal
paragraph breaks omitted).
Moreover, “[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every problem, in order to
maintain the parent-child relationship to the best of his or her ability, even in
difficult circumstances.” Id. (citation omitted). “A parent must utilize all
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available resources to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path of maintaining
the parent-child relationship.” Id. (citation omitted). And most importantly,
“[p]arental rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while others provide
the child with his or her physical and emotional needs.” Id. (citation omitted).
Our review of the record supports the trial court’s determination that
CYS met its burden under 23 Pa.C.S. § 2511(a)(1) because Father has failed
to perform parental duties for Child’s entire life, including the six months
preceding the filing of the TPR petition. Father’s lack of compliance with his
FSP objectives over the past four years has prevented him from moving past
weekly-supervised visitation with Child. While Father testified to multiple
reasons why he could not achieve his FSP objectives, the trial court made a
finding that Father’s testimony, as a whole, was not credible. Trial Ct. Op.,
filed 7/18/19, at 8. Moreover, although Father argues that he conscientiously
attended visitation with Child and paid child support, the trial court placed
greater weight on Father’s noncompliance with drug, alcohol, and mental
health counseling. The trial court opined:
It is found that, in failing to make material progress toward his
goals as established by CYS as found above, in continuing his drug
use, in failing to establish stable housing, in failing to concretely
proceed with his mental health treatment while being able to do
so, in failing to establish ongoing, consistent, substantial
employment, and in failing to consistently “be there” for Child
rather than chronically missing his visitation appointments, Father
failed to perform parental duties over the course of Child’s entire
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life, including the six (6) months prior to the filing of the original
Petition. Father has not significantly provided for Child’s
emotional needs, and, as was stated on the record, his
relationship is as it would be with any friend or periodic
acquaintance of Child. Father has not demonstrated a genuine
effort to maintain association and communication with Child.
It is found that CYS has proven grounds for involuntary
termination of Father’s parental rights under [Section] 2511(a)(1)
Id. at 12. Our review of the records supports the trial court’s findings. We
decline to reweigh the evidence or usurp the lower court’s credibility
determinations. See In re T.S.M., 71 A.3d at 267; In re M.G., 855 A.2d at
73-74. Accordingly, we find no abuse of discretion. Moreover, because we
agree with the trial court’s decision as to subsection (1) of Section 2511(a),
we decline to address subsections (5) and (8) raised in Appellant’s remaining
issues. See In re B.L.W., 843 A.2d at 384.
Appellant next avers that the trial court erred in in terminating Father’s
parental rights pursuant to Section 2511(b). Father’s Br. at 3. Father argues
that CYS failed to present clear and convincing evidence that termination of
parental rights would be in Child’s best interest. Id. at 15. Father contends
that despite the limited contact between Father and Child, the record
establishes that Father and Child have a bond and severing that bond would
be detrimental to Child. Id. at 16. We disagree.
With respect to Section 2511(b), our analysis shifts focus from parental
actions in fulfilling parental duties to the effect that terminating the parental
bond will have on the child. Section 2511(b) “focuses on whether termination
of parental rights would best serve the developmental, physical, and
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emotional needs and welfare of the child.” In re Adoption of J.M., 991 A.2d
321, 324 (Pa. Super. 2010). It is well settled that “[i]ntangibles such as love,
comfort, security, and stability are involved in the inquiry into needs and
welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005)
(citation omitted). This Court has emphasized that although 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 trial court when determining what is in the best interest
of the child.” In re A.D., 93 A.3d 888, 897 (Pa. Super. 2014) (citation
omitted). Finally, “[i]n cases where there is no evidence of any bond between
the parent and child, it is reasonable to infer that no bond 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 at 762–63.
Father argues that severing the existing bond between himself and Child
would be detrimental to Child, but the record belies that claim. The trial court
heard testimony that the bond between Father and Child was not a parent-
child bond, but rather the kind of bond between “a good babysitter or good
friends of the family, uncle, cousin.” N.T. TPR Hearing, 3/27/19, at 24. Dr.
Saladay testified that Child does not like to leave the foster parents for even
20 minutes, but the record is devoid of evidence indicating that Child
experiences distress when he leaves Father. Id. at 22, 25. Also, the trial
court heard testimony that Child experiences “complete joy” in his current
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foster home, the only home he has ever known, and that the foster parents
meet his physical, social, emotional, and special medical needs on a daily
basis. Id. at 32, 158-62, 164. The trial court made findings that Child has
never lived with Father, Father has failed to comply with his FSP objectives to
progress past weekly-supervised visitation and step into the role of a parent,
and that termination of parental rights was in Child’s best interest. The trial
court opined:
Child has been in placement since birth, a period of more than
four (4) years at this writing. He has developed a great
relationship with [f]oster [p]arents and they have bonded. Father
has never quite stepped up to the duties of being a father[.] At
best he has superficially and sporadically gone through the
motions. Foster [p]arents are willing to give Child a life, and are
waiting in the wings to become adoptive parents. Terminating
Father’s parental rights, and paving the way for adoption are in
Child’s best interest, needs, and welfare.
***
Father’s unstable housing and employment are within his control,
but he is so oppositional and argumentative that he will not settle
into one home or job. If Father would have sustained and
persevered in his efforts in employment and housing, in abstaining
from his drug use, and in religiously placing a first priority on
attending visitation with Child, a different result may have
occurred. Nonetheless, this all was within Father’s control, and
he has failed.
As such, it is found that [CYS] has proved the elements required
by [Section 2511(b)] by clear and convincing evidence.
Trial Ct. Op., filed 7/18/19, at 16-17. The record supports the trial court’s
findings and, thus, we find no abuse of discretion.
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In conclusion, the trial court did not abuse its discretion when it found
that CYS presented clear and convincing evidence to terminated Father’s
parental rights and change Child’s permanency goal to adoption.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/08/2020
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