J-A29039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: L.W., FATHER :
:
:
:
: No. 771 WDA 2021
Appeal from the Order Entered June 4, 2021
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): CP-02-AP-0000099-2019
BEFORE: BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: NOVEMBER 22, 2021
L.W. (Father) appeals from the order entered in the Court of Common
Pleas of Allegheny County (orphans’ court) involuntary terminating his
parental rights to L.W. (d.o.b. September 2011) (Child) and changing her
permanency goal to adoption. He challenges the court’s finding that
termination would best serve the developmental, physical and emotional
needs of Child pursuant to 23 Pa.C.S. § 2511(b).1 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Mother has appealed the June 4, 2021 termination of her parental rights to
L.W. and her two siblings at docket numbers 770 WDA 2021, 772 WDA 2021
and 774 WDA 2021. She is not the subject of this appeal.
J-A29039-21
We take the following factual background and procedural history from
our independent review of the certified record and the trial court’s August 11,
2021 opinion.2
I.
Allegheny County Office of Children, Youth & Families (CYF) became
involved with the family in 2012 and continued to receive General Protective
Services (GPS) referrals raising multiple child welfare issues. On March 14,
2018, maternal grandmother filed a private dependency petition for Child and
her sister. On April 23, 2018, after Child’s mother was incarcerated for
violating the terms of her probation, CYF filed a dependency petition for Child.
Father was also incarcerated at the time, making him unable to care for Child.
On April 25, 2018, the court placed Child in kinship care with maternal
grandmother, where she has remained since then. On May 23, 2018, Child
was adjudicated dependent.3 At the time of adjudication, the court found that
____________________________________________
2 Father’s “Case History” section is nearly a verbatim copy of the “Background”
set forth in the orphans’ court’s August 11, 2021 opinion, simply with the
footnotes removed and an amendment that the evidence did not establish
that terminating Father’s parental rights served Child’s needs and welfare.
(See Father’s Brief, at 6-10); (Orphans’ Court Opinion, 8/11/21, at 2-7). We
merely note this because it is curious since the recitation contains language
that is completely antithetical to Father’s interests and supports the orphans’
court’s decision.
3 The dependency petition also included Child’s two siblings. The court
adjudicated all three children dependent, and they have remained in maternal
grandmother’s care with Child.
-2-
J-A29039-21
Father had never had Child continuously in his care and that, to achieve
reunification, Father needed to maintain a relationship with Child and
demonstrate appropriate parenting skills. His specific reunification goals were
to resolve his criminal issues, attend a drug and alcohol assessment and follow
any resulting recommendations, submit to urine screens, document services
and participate in case planning activities and attend visits with Child. While
both incarcerated and in the community, CYF provided and/or Father had
access to these services.
On July 2, 2020, CYF filed the subject petition for the involuntary
termination of parental rights.4 At the hearings on the petition, CYF presented
the testimony of CYF Caseworker Lisa Ketter, court-appointed expert
evaluator Dr. Patricia Pepe, Allegheny County lab technician Daniel Zoldos,
Parole Officer Ryan Niznik and maternal grandmother. Father testified on his
own behalf.
At the time of the hearings in this matter, Father was detained at
Allegheny County Jail (ACJ) on three sets of criminal charges in other counties
and two technical violations of probation in Allegheny County, including one
for possession of narcotics. Father had been incarcerated off and on for a
____________________________________________
4 On May 28, 2019, CYF filed a first petition to voluntarily terminate Father’s
parental rights that was denied by the court on October 1, 2019. The court
found that although there were grounds to terminate, the evidence did not
establish that termination would serve Child’s needs and welfare.
-3-
J-A29039-21
total of approximately six years since 2013, when Child was approximately
one-and-a-half-years-old, until the time of the hearing, when Child was
approximately nine-and-a-half years old. Father was released from ACJ in
March 2020 because of an attempt to decrease the jail population during the
Covid-19 pandemic, but new charges were filed against him and he was again
detained in August 2020.
Testimony established that Father failed to meet his court-ordered
goals. He did not document his work with services while incarcerated or either
his participation or completion of drug and alcohol treatment while out of jail.
He completed only one out of 15 urine screens and admitted his positive
screen for THC and opiates. He neither maintained contact with CYF nor
participated in case planning activities. He continued to engage in criminal
behavior and supervision while on probation was unsatisfactory.
CYF had parenting concerns about Father because of his criminal history,
substance abuse and because he had never had continuous care of Child and
little contact with her. Maternal grandmother also had concerns about his
demeanor and inappropriate statements during the limited contact he had with
her, Child and her siblings.
Although Father was initially permitted supervised visits with Child at
maternal grandmother’s home, the court moved them to CYF in September
2018 and again on July 27, 2020, because of maternal grandmother’s safety
concerns. Father had no visits at CYF before he was incarcerated in December
-4-
J-A29039-21
2018 or while he was out of jail between March and August 2020. During his
incarceration between December 2018 and March 2020, he had several visits
with Child in ACJ but Child “experienced a great deal of trauma based on those
visits,” becoming “extremely upset, screaming, yelling and climbing the walls.
(N.T. Hearing, 5/21/21, at 25-26). The court found that these behaviors were
likely caused by Father’s statements to Child during the visits. Maternal
grandmother testified that once, when Father was out of jail, he came to her
house to bring Child a hairbrush. He came a second time, but “things didn’t
work out well” because he made inappropriate statements and maternal
grandmother had to ask him to leave. Father has had no visits with Child
since his August 2020 return to jail. Maternal grandmother testified that there
had been five phone calls either from or that included Father, but that Child
often did not want to talk to him.
Ms. Ketter observed positive bonded interactions between Child and her
siblings and maternal grandmother. She testified that they are loving and
affectionate with each other. Child is doing very well in maternal
grandmother’s care and seeks her out for comfort. Ms. Ketter testified that
maternal grandmother is very supportive and attentive to Child, ensuring that
her educational, developmental and therapeutic needs are met.
Dr. Pepe’s observations and testimony were consistent with Ms.
Ketter’s. Dr. Pepe conducted two interactional evaluations with Child, her
sister and maternal grandmother on August 22, 2019, and in September 2020.
-5-
J-A29039-21
When Father was out of jail in 2020, he was scheduled for an evaluation with
Child, but he failed to attend because he was incarcerated before the
appointment. Hence, Dr. Pepe was unable to form an expert opinion about
the bond between Father and Child. Father claimed that he was not notified
about the evaluation, which Ms. Ketter testified would have been provided by
Dr. Pepe’s office, not CYF.
Dr. Pepe observed that Child had made significant progress since her
April 2018 placement with maternal grandmother. She was relaxed and
comfortable with maternal grandmother and exhibited multiple bonding
behaviors toward her. Child stated that maternal grandmother had taken the
best care of her and ensured she was safe and fed. Child exhibited a primary
bond with her maternal grandmother, and she asked maternal grandmother
to adopt her during the September 2020 evaluation. Despite Father’s
testimony that he and Child had a bond, with Child telling him that she loved
him, Child did not discuss or mention Father at any time during the
evaluations, even when they were discussing whom Child saw as her future
caregiver. Dr. Pepe testified that this reflected Child’s lack of connection with
Father.
Maternal grandmother was very comforting, concerned and empathetic
toward Child and consistently expressed that she wanted to care for her and
her siblings permanently. Dr. Pepe opined that removing Child from maternal
-6-
J-A29039-21
grandmother’s home, where she was happy, felt safe and with whom she had
a primary attachment, would be very difficult for her.
Finding that terminating Father’s parental rights best served Child’s
needs and welfare pursuant to 23 Pa.C.S. § 2511(b), the orphans’ court issued
an order terminating Father’s parental rights to Child pursuant to 23 Pa.C.S.
§ 2511(a)(2). Father timely appealed and filed a contemporaneous statement
of errors complained of on appeal. See Pa.R.A.P 1925(a)(2)(i), (b).
Father raises one issue for our review: “Whether the trial court erred
and/or abused its discretion as a matter of law in concluding that the
necessary burden of proof was met, and that the developmental, physical, and
emotional needs and welfare of the Child would be served by termination of
parental rights pursuant to 23 Pa.C.S. § 2511(b).”5 (Father’s Brief, at 11).
____________________________________________
5 Our standard of review of this matter is well-settled:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a trial
court has granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision the
same deference that we would give to a jury verdict. We must
employ a broad, comprehensive review of the record in order to
determine whether the trial court’s decision is supported by
competent evidence.
In re M.M., 106 A.3d 114, 117 (Pa. Super. 2014) (citation omitted). “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
(Footnote Continued Next Page)
-7-
J-A29039-21
He argues that the court erred in relying on Dr. Pepe’s expert testimony to
establish that termination meets Child’s needs and welfare because Dr. Pepe
did not conduct an interactional evaluation of Father and Child and Father was
never notified of any appointment for him to be able to do so. (See id. at
16).6
II.
A.
“In termination cases, the burden is upon the petitioner to prove by
clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid.” In re M.M., supra at 117 (citation
omitted). Clear and convincing evidence is “testimony that 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.” Id.
(citation and internal quotation marks omitted).
____________________________________________
evidence. If competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” Id. (citations
omitted).
6 Father’s argument section contains no pertinent legal citation or discussion
thereof pursuant to Rule 2119(a)-(b). (See Father’s Brief, at 12-15); see
Pa.R.A.P. 2119(a)-(b). He observes that the “standards required for
termination of parental rights are set forth in 23 Pa.C.S. §[]2511[,]” but then
merely recites his version of the testimony without any pertinent legal
argument. (Father’s Brief, at 12). This is wholly inadequate for our review.
Moreover, as explained above, to the extent we can discern an argument, it
does not merit relief.
-8-
J-A29039-21
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It requires a bifurcated analysis “in
which [the court] initially focuses on the conduct of the parent under Section
2511(a). If the trial court determines that the parent’s conduct warrants
termination under Section 2511(a), it must then engage in an analysis of the
best interests of the child under Section 2511(b).” In re M.M., supra at 117
(citations omitted).
In this appeal, Father only challenges the orphans’ court’s conclusion
with respect to Section 2511(b), which provides:
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).
When considering Section 2511(b), “courts must examine whether
termination of parental rights will destroy a necessary and beneficial
relationship, thereby causing a child to suffer extreme emotional
consequences.” In re J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018), allocatur
denied, 183 A.3d 979 (Pa. 2018) (citation and internal quotation marks
omitted). The mere existence of an emotional bond does not necessarily
preclude termination of parental rights. See In re T.D., 949 A.2d 910, 922-
-9-
J-A29039-21
23 (Pa. Super. 2008), appeal denied, 970 A.2d 1148 (Pa. 2009) (balancing
strong emotional bond between parent and child against parent’s inability to
serve child’s needs and affirming termination of parental rights). “[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 M.M., supra at 118 (citation omitted). “[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), appeal denied, 872 A.2d 1200 (Pa. 2005) (internal citations omitted).
It is sufficient for the orphans’ court to rely on the opinions of social workers
and caseworkers when evaluating the impact that termination of parental
rights will have on a child. See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010).
B.
The orphans’ court explains:
At the time of the hearing, Child had been in placement for
three years. During that period, Father’s visitation and
communication with Child has been extremely limited, in part due
to Father’s repeated and lengthy incarceration, and in part due to
Father’s failure to pursue visitation at times he was not
incarcerated. When visits have occurred, they have affected Child
negatively, and Child currently declines to speak to Father on the
phone when he calls.
- 10 -
J-A29039-21
Meanwhile, Child has made progress and done well in
maternal grandmother’s care, without any ongoing contact with
Father. Indeed, whatever the status of any bond Child shares with
Father, it was not important enough to Child for her to mention
Father at all in either of her two evaluations with Dr. Pepe.
Given the above evidence, the court properly inferred that
Child’s bond with Father, if it exists at all, is neither necessary nor
beneficial. The court properly concluded that severing this bond
will not be detrimental to Father.
Given Father’s failure to maintain frequent, reliable, and
positive contact with Child, Father’s lack of progress toward his
service plan goals, and Child’s length of time in placement, the
court justifiably concluded that Child’s need for safety,
permanency, and stability outweighs the possible benefit to her of
maintaining any relationship she may have with Father.
(Orphans’ Ct. Op., at 8-10). We discern no abuse of discretion.
Father argues that he was not provided with notice of the interactional
evaluation with Dr. Pepe and that, because no evaluation was performed, Dr.
Pepe was unable to form an opinion as to the bond between him and Child,
rendering the evidence insufficient. (See Father’s Brief, at 16). At the time
the appointment was scheduled, Father could not attend because he was
incarcerated on the appointed date due to his own recidivist criminal activity.
(See N.T. Hearing, 4/08/21, at 52, 66, 105). While there is a dispute as to
whether he received notice when that evaluation was to be performed, it is
well-settled that, “[i]n analyzing the parent-child bond, the orphans’ court is
not required by statute or precedent to order a formal bonding evaluation be
performed by an expert.” In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super.
2008). Even assuming that Father was not provided with notice of the
- 11 -
J-A29039-21
evaluation as he claims, because having a formal evaluation was not required,
this allegation is not persuasive. See id. Accordingly, we agree with the trial
court’s observation that “[g]iven the facts of this matter, [it] was justified in
reaching its conclusion without such an evaluation.” (Orphans’ Ct. Op., at 9
n.30) (citing)).
Further, the court’s decision is supported by the record. Child has lived
with maternal grandmother for over three years and “has little to no contact
with [Father].” (N.T. Hearing, 5/21/21, at 19); (see N.T. Hearing, 4/08/21,
at 172, 176, 181). Child did not mention Father in either of her evaluation
appointments, even when she was asked about her future caregiver. (See
N.T. Hearing, 4/08/21, at 63, 70-71). Dr. Pepe testified that this spoke to
Child’s lack of connection with Father. (See id. at 71).
Although Father testified that he and Child share a bond, Ms. Keller
advised that while out of jail, when visits at maternal grandmother’s home
had to be changed to CYF because of Father’s demeanor and inappropriate
statements, he failed to attend any visits with Child. (See N.T. Hearing,
5/21/21, at 20, 22-23, 25, 27-28, 104-05). At the two visits with Father in
jail in 2019, Child “experienced a great deal of trauma,” becoming “extremely
upset,” screaming, yelling and climbing the walls. (Id. at 26). Since returning
to jail in August 2020, Father has had no further visits with Child and the few
times he has telephoned, Child has not wanted to speak with him. (See id.
at 106-07).
- 12 -
J-A29039-21
Dr. Pepe testified that Child has made significant progress since her
placement with maternal grandmother in April 2018. (See N.T. Hearing,
4/08/21, at 53). Child was relaxed, comfortable and exhibited multiple
bonding behaviors towards maternal grandmother, reporting that living with
maternal grandmother is good because she takes the best care of her and
ensures she is fed and safe. (See id. at 54, 60, 61). Maternal grandmother
ensures that Child’s educational, medical and therapeutic needs are met.
(See N.T. Hearing, 5/21/21, at 50-52). She cares for Child and her two
siblings, and they are loving and affectionate toward each other. Child looks
to maternal grandmother for comfort. (See id.). Child exhibited a primary
bond with maternal grandmother and asked her to adopt her during the
September 2020 evaluation. (See N.T. Hearing, 4/08/21, at 60). Maternal
grandmother was comforting to Child, concerned for her and consistently
stated she wanted to care for her permanently. (See id. at 54, 61). She is
an adoptive resource that would provide stability and is an “appropriate
permanent placement for the Children.” (Id. at 54). Removing Child from
maternal grandmother’s care would be very difficult for her. (See id. at 63).
Based on the foregoing, the court’s findings are supported by evidence
presented at the hearings. Furthermore, we defer to the court’s credibility
determinations and discern no abuse of discretion in its findings. Accordingly,
we conclude that the court did not abuse its discretion in terminating Father’s
parental rights to the Child pursuant to Section 2511(b).
- 13 -
J-A29039-21
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2021
- 14 -