In the Interest of: L.W., Appeal of: L.W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.




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*   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.
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       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



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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.


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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



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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.


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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


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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.


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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




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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).

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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)


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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).




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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.

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      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-

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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.

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           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

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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).


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      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).


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2021




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