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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.J.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.C., NATURAL FATHER :
:
:
:
:
: No. 802 MDA 2021
Appeal from the Order Entered May 19, 2021
In the Court of Common Pleas of Huntingdon County Orphans' Court at
No(s): CP-31-OC-1-2021
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 29, 2021
R.C. (Father) appeals from the order entered on May 19, 2021, in the
Huntingdon County Court of Common Pleas involuntarily terminating his
parental rights to his son, N.J.C. (Child), born in August of 2014. Father now
argues there was insufficient evidence to establish termination under 23
Pa.C.S. § 2511(a)(8) and (b). After careful review, we affirm.
Child’s mother died when he was approximately one and one-half years
old. See N.T., 3/5/21, at 32. Father indicated that in 2018, when his son
was attending pre-school, “he became concerned about [Child]’s extremely
aggressive behaviors[,]” and so he and his paramour “embarked on a course
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* Retired Senior Judge assigned to the Superior Court.
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of conduct to find out what was going on with” Child. Orphans’ Ct. Op.,
8/18/21, at 1.
Huntingdon County Children and Youth Services (CYS) first became
involved with this family on May 29, 2019, when it received a report that
Father gave Child, who was four years old at the time, more than his
prescribed dose of Clonidine, which, as best we can discern, was necessary to
help Child sleep. See Orphans’ Ct. Op. at 3. According to the report, Father
had admitted Child to Southwood Psychiatric Hospital on May 8, 2019, based
on his belief that Child suffered from mental illness and displayed severe
physical aggression. See id. at 1-2. After one week, Child was released from
Southwood with prescriptions for Clonidine, Melatonin, and Prozac. See id.,
at 2.
On May 16, 2019, after Child’s discharge from Southwood, CenClear
Services, a program designed for children who are at risk of out-of-home
placement, began providing services to Child. See Orphans’ Ct. Op. at 2.
CenClear provided mental health therapy, case management, medication
management and collaboration with other providers for Child until December
19, 2019. See id.
Sara Stazewski, an employee of CenClear, testified that she had
concerns because Father admitted to giving Child more Clonidine than Child
was prescribed, and she observed a handprint on Child’s face that was caused
by Father striking Child. See Orphans’ Ct. Op. at 2-3. Father’s paramour
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informed Stazewski that Father struck Child across his face because Child
vomited in the car and Father believed Child did it purposefully. See id. at 3;
see also N.T., 3/5/21, at 65-67. Further, Stazewski learned that Father was
restraining Child in a car seat and locking him in his bedroom. See Orphans’
Ct. Op. at 3. Stazewski was also concerned that Child weighed only 28 pounds
at the age of four. See id.
CenClear installed a monitoring system and placed cameras inside
Father’s home to record incidents of Child’s alleged aggression that Father
reported. See Orphans’ Ct. Op. at 3. Stazewski never observed Child acting
with aggressive behavior on the recorded footage. See id.
In June 2019, CenClear referred Child to Dr. Kristen Hennessy, a
licensed psychologist. See Orphans’ Ct. Op. at 4. Dr. Hennessy had six
sessions with Child between June 27 and September 2, 2019. See id. Father
then removed Child from her care after Child informed Dr. Hennessy that
Father had beaten him with a belt, and Dr. Hennessy reported Father for child
abuse. Id.
The record reveals that CYS opened a case for this family on July 15,
2019. See Orphans’ Ct. Op. at 3-4. Father was advised that CYS opened a
case for continued services for the family and assigned Raystown
Developmental Services (RDS) as the service provider. See id. Eric Ondrejik,
a caseworker for CYS, testified that CYS had concerns regarding Child’s
aggressive behavior, Child not sleeping nor eating, Child’s past traumas,
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Father’s relationship with Child, unstable housing, Father’s parenting skills,
and his cooperation with services. See id. at 4-5; see also N.T., 3/5/21, at
92-93.
On October 8, 2019, the orphans’ court removed Child from Father’s
care. See Orphans’ Ct. Op. at 5. “The factual bases for placement of [Child]
were the behavioral and mental health issues of the child, and the fact that
[Father] admitted to striking the child.” Id. Child was placed in foster care.
Child remained in the same foster home through the date of the termination
hearing.
On October 18, 2019, the court adjudicated Child dependent. Initially,
Child’s permanency goal was reunification, and Father’s objectives included:
attend individual counseling; visitation with Child; anger management; and
participate in a parenting program. See N.T., 3/5/21, at 95-97. Pursuant to
Child’s permanency plan, he resumed treatment with Dr. Hennessy on October
29, 2019. See Orphans’ Ct. Op. at 4.
Dr. Hennessy testified that Father reported Child was “psychotic” and
suggested the child was “demonically possessed.” Orphans’ Ct. Op. at 5. He
alleged his son, a 27-pound four-year-old “consistently” attacked the family.
Id. Father told the doctor that “he had no choice but to restrain [Child] in a
car seat for [a] lengthy period of time due to the child’s severe aggression.”
Id. Father also reported that Child “did not sleep, eat[,] and was not fully
toilet trained.” Id.
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After her initial sessions with Child, Dr. Hennessy expressed concern
about how fearful Child appeared to be of Father and that Child exhibited
symptoms of Post-Traumatic Stress Disorder (PTSD). See N.T., 3/5/21, at 7-
8. Dr. Hennessy described that when she first began treatment with Child, if
he “made a mistake, he would start to shake. He would anticipate that he
would be hit or hurt.” Id. Dr. Hennessy testified that Child interpreted the
Covid-19 pandemic to be something created by Father so that he could not
see Child and that Father could hurt Child via Covid-19. See id. at 12.
Additionally, Child informed Dr. Hennessy that Father beat him with a belt.
See Orphans’ Ct. Op. at 6.
In January of 2020, Dr. Hennessy recommended that Child’s visits with
Father be suspended. See Orphans’ Ct. Op. at 7. Dr. Hennessy recommended
that, for visitation to resume, Father should take responsibility for his role in
what happened to Child and apologize for “using inappropriate physical
discipline.” N.T., 3/5/21, at 15; see also Orphans’ Ct. Op., at 8. Dr.
Hennessy described two unsuccessful attempts by Father to apologize, via
email, to his son for having hit him in his face. See id. Notably, the doctor’s
“conclusion about the two emails was that they were not significant steps
towards [Father] taking responsibility for his actions.” See id. at 9. At the
time of the March 5, 2021, termination hearing, visitation between Father and
Child had never resumed. See N.T., 3/5/21, at 14.
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On January 7, 2021, CYS filed a petition to involuntarily terminate the
parental rights of Father pursuant to 23 Pa.C.S. § 2511(a)(5), (8) and (b).
On March 5, 2021, the orphans’ court held a hearing. The legal and best
interests of Child, then six and one-half years old, were represented by Andrea
Lehman, Esquire, as guardian ad litem (GAL).1 CYS presented the testimony
of Dr. Hennessy, Ms. Stazewski, Mr. Ondrejik, as well as Piper Tanner and
Danielle Morgan, caseworkers at RDS. Father testified on his own behalf; at
this time, he was residing in the state of New York. Father also presented the
testimony of Heather Fisher, a caseworker at Family Preservation and
Reunification.
By order dated May 18, 2021, and entered the following day, the
orphans’ court involuntarily terminated Father’s parental rights pursuant to 23
Pa.C.S. § 2511(a)(8) and (b). The court set forth its findings of fact and
conclusions of law in an opinion accompanying the order.
On June 14, 2021, Father timely filed a notice of appeal from the order,
along with a concise statement of errors complained of on appeal pursuant to
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1 The court determined that Child’s legal and best interests did not conflict.
See In re K.M.G., 240 A.3d 1218, 1238 (Pa. 2020) (affirming In re K.M.G.,
219 A.3d 662 (Pa. Super. 2019) (en banc); appellate courts should engage in
sua sponte review to determine if an orphans’ court has appointed counsel to
represent the child’s legal interests in a contested termination proceeding, in
compliance with 23 Pa.C.S. § 2313(a), and, where a GAL/counsel was
appointed to represent both the child’s legal and best interests, whether the
orphans’ court determined that those interests did not conflict.).
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Pa.R.A.P. 1925(a)(2)(i) and (b). On August 18, 2021, in lieu of a Rule 1925(a)
opinion, the orphans’ court referred this Court to its opinion accompanying the
subject order.
On appeal, Father presents the following issue for our review:
Did the court below abuse its discretion in terminating the parental
rights of the Father, given the efforts that the Father made at
correcting the circumstances that led to the Child’s placement, the
relationship between the Father and the Child, and the Father’s
support system?
Father’s Brief at 2.2
We note the relevant standard of review:
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 quotation marks
omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It requires a bifurcated analysis:
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2The GAL filed a brief in support of the involuntary termination order. See
Brief for Appellee Andrea L. Lehman, Counsel for Child, 9/8/2021, at 6-20.
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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
need only agree with the court as to any one subsection of 2511(a), in addition
to subsection 2511(b), to affirm. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
Here, the relevant statutory provisions 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:
* * *
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
* * *
(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
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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(a)(8), (b).
This Court has explained, “Section 2511(a)(8) sets a 12-month time
frame for a parent to remedy the conditions that led to the children’s removal
by the court.” In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the
12-month period has been established, the court must next determine
whether the conditions that led to the child’s removal continue to exist, despite
the reasonable good faith efforts of the child welfare agency supplied over a
realistic time period. Id. The “relevant inquiry in this regard is whether the
conditions that led to removal have been remedied and thus whether
reunification of parent and child is imminent at the time of the hearing.” In
re I.J., 972 A.2d 5, 11 (Pa. Super. 2009). Termination under Section
2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of the agency’s services. See In re Adoption
of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003).
Finally, the court must consider whether termination of parental rights
would best serve the needs and welfare of the child. See In re Adoption of
M.E.P., 825 A.2d at1275-76. The “needs and welfare” analysis is relevant to
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both Sections 2511(a)(8) and (b). In In re Adoption of C.L.G., 956 A.2d
999 (Pa. Super. 2008) (en banc), this Court stated:
[W]hile both Section 2511(a)(8) and Section 2511(b) direct us to
evaluate the “needs and welfare of the child,” we are required to
resolve the analysis relative to Section 2511(a)(8), prior to
addressing the “needs and welfare” of [the child], as proscribed
by Section 2511(b); as such, they are distinct in that we must
address Section 2511(a) before reaching Section 2511(b).
Id. at 1009 (citations omitted).
With respect to Section 2511(b), we have explained, “[i]ntangibles such
as love, comfort, security, and stability are involved in the inquiry into the
needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287 (Pa.
Super. 2005) (citation omitted). Further, the orphans’ court “must also
discern the nature and status of the parent-child bond, with utmost attention
to the effect on the child of permanently severing that bond.” Id. (citation
omitted). However, “[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 753, 762-63
(Pa. Super. 2008) (citation omitted).
In his sole issue on appeal, Father argues that CYS failed to prove by clear
and convincing evidence that the conditions which led to Child’s removal
continue to exist pursuant to Section 2511(a)(8). See Father’s Brief at 10-
12. Father asserts that “contrary to the assertion that [he] would not remedy
the conditions requiring placement, [he] demonstrated at length that he
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wanted to help” Child, “even at potential risk to himself.” Id. at 11.
Specifically, Father emphasizes that he took Child to multiple service providers
to address Child’s behavioral and mental health issues. See id. Additionally,
Father contends that his paramour “assisted him in navigating these
providers.” Id. at 12.
Father also argues that CYS failed to meet its burden of proof with respect
to Section 2511(b). See Father’s Brief at 12-14. Father asserts that the
record demonstrates his “dedication to and great love for” Child, and he and
Child shared a bond. Id. at 13.
In finding that the conditions which led to Child’s placement continue to
exist under Section 2511(a)(8), the orphans’ court credited the testimony of
Dr. Hennessy and Mr. Ondrejik, as follows:
[T]he testimony principally of Dr. Kristen Hennessy, but also Mr.
Erik Ondrejik, the CYS caseworker, was unequivocal that the
conditions that led to placement continue to exist. Other than
attendance at an anger management class[,] the record supports
the conclusion that [Father] took no steps to reunify with his son
despite the fact that the clinician provided him a roadmap to
accomplish reunification. There has been no contact between
[F]ather and son since January[] 2020, and [the] reality is that
[Child] is today as terrified of his father as he was when he was
declared dependent.
Orphans’ Ct. Op. at 12-13.
We conclude the record supports the trial court’s finding insofar as Mr.
Ondrejik testified that Father, although he completed an anger management
program, he has not participated in recommended anger management
counseling. See Orphans’ Ct. Op. at 9. Further, Ondrejik testified that Father
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did not complete his requisite individual counseling or a parenting program.
See N.T., 3/5/21, at 96-97, 108, 184, 186.
The orphans’ court credited the testimony of Dr. Hennessy who
repeatedly expressed significant concerns about Child. See Orphans’ Ct. Op.
at 12. Dr. Hennessy recommended that Child’s visits with Father be
suspended because Child asked her “to tell the judge to keep daddy away
from him. He said make sure the judge knows that daddy kept hitting me and
hitting me.” N.T., 3/5/21, at 13. At the time of the termination hearing,
visitation between Father and Child had never resumed because Father did
not address Child’s ongoing concerns in the required letters of apology, which
included
being hit multiple times a day, being strapped in car seats for
hours at a time, having his dad drag him around in the car seat,
hit him in the eye, grab him by the head and twist. All sorts of
incidents of abuse that the child describes as ongoing, frequent,
repeated.
Id. at 24.
Dr. Hennessy indicated that Father denied he abused Child, and
testified:
I said my understanding was that you struck the child in the face
while he was vomiting. [Father] said oh that. And I said yes that.
And he gave me a series of explanations as to why he had done
that. At one point he said why does no one care about what he
did to us. I had to explain [Child] is a four-year-old child and the
[c]ourt’s concern is the safety of a four-year-old child; not what a
27-pound four-year-old is doing to an adult.
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Id. at 15-16. The foregoing testimonial evidence supports the court’s findings
that the conditions which led to Child’s placement continue to exist.
Indeed, Father failed to attend individual counseling, anger
management counseling, and a parenting program. Further, Father has not
visited with Child since February 2020 and visits were thereafter suspended.
Father’s visits never resumed because he never took responsibility for his
actions. See N.T., 3/5/21, at 14. Therefore, Father’s claim regarding Section
2511(a)(8) fails. As such, we discern no abuse of discretion by the court
terminating Father’s parental rights in this case where Child has been in
placement in excess of the twelve-month statutory minimum, the conditions
which led to his placement continue to exist, and termination will best serve
his needs and welfare.
Turning to Section 2511(b), the court found that “there is no bond
between [F]ather and [Child], and, in the opinion of Dr. Hennessy the
opportunity to restore a relationship has been lost. She expressed the opinion
that this little boy needs the permanency that adoption can provide.”
Orphans’ Ct. Op. at 13.
Contrary to Father’s assertion, Dr. Hennessy testified:
[Child] does not have a healthy bond with his father. He is
afraid of his father. And when he has verbalized [a] desire to have
contact with [F]ather, it was not for his benefit. It was to make
Covid go away so that other people wouldn’t have to get hurt.
N.T., 3/5/21, at 27. Dr. Hennessy opined that Child’s PTSD symptoms are far
less significant than they were when she first met him, but that
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[Child] does continue to express and verbalize fear of his father.
So for example, when he has had visitation with members
of the family at Raystown Developmental Services, he has
verbalized [F]ather will find him and get him. He has been
reassured when he is frightened. He wants to know that daddy
can’t get him and isn’t allowed to get him. He also verbalizes that
when he thinks about his time with daddy, his belly hurts because
he remembers the things that daddy did.
Id. at 26. With respect to Father’s progress, Dr. Hennessy believed that
Father did not make changes that “would allow safe, healthy contact for the
child to resume contact; particularly given the child’s ongoing fear of the
father and [F]ather’s ongoing denial of the issue that make the child fearful
and increase his clinical symptoms.” Id. at 52.
Dr. Hennessy concluded that Child has made progress and explained
that while in the care of his foster mother, Child’s “behavior at home and
school is age appropriate. He is a happy kid who likes to learn to read. He
likes to show off his counting skills. He likes to show off his new academic
achievements. He likes spending time with other kids. He likes to play.” N.T.,
3/5/21, at 25-26. Dr. Hennessy further noted Child has not exhibited
“physical aggression. He sleeps. He eats. He has gained weight. The school
reports that he is functioning well[.] Id. at 7. Dr. Hennessy opined that the
severe issues that were described by Father are not seen in other
environments and opined that Child suffers from PTSD. See id. at 7-8. With
respect to Child’s progress, Dr. Hennessy testified that Child “now verbalizes
that it was wrong that dad hurt him and that it wasn’t his fault that dad hurt
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him; that grown[-]ups should make kids listen but they should not hurt them.”
Id. at 10.
The orphans’ court also credited Dr. Hennessy’s testimony, wherein she
averred, “We are looking at a child who needs permanency; a father who has
not shown any signs of change; and a child who is terrified of his father but is
otherwise thriving.” N.T., 3/5/21, at 54. Conversely, Child is “doing very
well” in his foster mother’s care despite some “moments where he is afraid of
his father finding and hurting him.” Id. at 25, 26. As such, we conclude that
the foregoing testimony of Dr. Hennessy supports the court’s findings. We
discern no abuse of discretion by the court in concluding that terminating
Father’s parental rights serves Child’s developmental, physical, and emotional
needs and welfare pursuant to 23 Pa.C.S. § 2511(b). Accordingly, we affirm
the order pursuant to 23 Pa.C.S. § 2511(a)(8) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2021
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