J-S16021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.L.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.S.K., FATHER :
:
:
:
: No. 1155 MDA 2021
Appeal from the Decree Entered August 12, 2021,
in the Court of Common Pleas of Adams County,
Orphans' Court at No(s): RT-14-2020.
IN THE INT. OF: A.J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.S.K., FATHER :
:
:
:
:
: No. 1156 MDA 2021
Appeal from the Decree Entered August 12, 2021,
in the Court of Common Pleas of Adams County,
Orphans' Court at No(s): RT-15-2020.
IN THE INTEREST OF: W.A.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.S.K., FATHER :
:
:
:
: No. 1157 MDA 2021
J-S16021-22
Appeal from the Decree Entered August 12, 2021,
in the Court of Common Pleas of Adams County,
Orphans' Court at No(s): RT-4-2021 A.
IN THE INTEREST OF: W.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.K., FATHER :
:
:
:
: No. 1199 MDA 2021
Appeal from the Order Entered August 11, 2021,
in the Court of Common Pleas of Adams County,
Juvenile Division at No(s): CP-01-DP-0000040-2019,
IN THE INTEREST OF: A.J.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.K., FATHER :
:
:
:
: No. 1200 MDA 2021
Appeal from the Order Entered August 11, 2021
In the Court of Common Pleas of Adams County Juvenile Division at
No(s): CP-01-DP-0000056-2018
IN THE INTEREST OF: P.L.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.K., FATHER :
:
:
:
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J-S16021-22
: No. 1201 MDA 2021
Appeal from the Order Entered August 11, 2021
In the Court of Common Pleas of Adams County Juvenile Division at
No(s): CP-01-DP-0000057-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 17, 2022
In these consolidated matters, A.K (Father) appeals the orphans’ court
decision to terminate his rights to his three children – 4-year-old daughter,
A.J.K; 3-year-old, son P.L.K.; and 2-year-old, son W.A.K.– pursuant to the
Adoption Act. See 23 Pa.C.S.A. § 2511(a)(5), (8) and (b).1, 2 Father also
appeals the decision to change the goal of the dependency proceedings from
reunification to adoption, pursuant to the Juvenile Act. See 42 Pa.C.S.A. §
6351(f). After careful review, we affirm.
The orphans’ court opinion, filed pursuant to Pa.R.A.P. 1925(a),
provides the relevant factual and procedural history:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Our review of the record indicates that the Adams County Children and Youth
Agency (“Agency”) also petitioned for termination under Section 2511(a)(1)
and (a)(2). The orphans’ court decrees granting termination did not specify
under which grounds it granted the Agency’s respective petitions. However,
in its Pa.R.A.P. 1925(a) opinion, the court clarified that it terminated under
Section 2511(a)(5) and (a)(8).
2 We also note that the court terminated the rights of H.Y. (Mother). She
similarly appeals the court’s termination and goal-change orders. Those
appeals are separately listed before this panel. See 319, 320, 321 MDA 2022;
See also 1196, 1197, 1198 MDA 2021.
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From the beginning of this litigation, the [parents’] mental
health issues were identified as the root cause for the
Children’s removal from their home. Initial removal for two
of the three Children occurred on November 19, 2018. [FN2]
FN 2: At the time, the third child, W.A.K., was not yet
born. [3]
At the time, the [parents’] mental health issues and
parenting limitations resulted in nutritional issues for the
Children, their failure to thrive, and safety risks. Although
the Adams County Children and Youth Agency (“Agency”)
made effort[s] through voluntary services for approximately
two months to avoid an adjudication of dependency, the
same proved unsuccessful due to the [parents’] indifference
to developing necessary skills for the Children’s
development. [(A.J.K. and P.L.K. were adjudicated
dependent on November 29, 2018.)] At the initial
disposition hearing following adjudication, both [parents’]
were clearly aware that the goals in working towards
reunification required participation in a parenting skills
program, undergoing mental health evaluations and
complying with recommended treatment, adequately
addressing the Children’s medical needs, and obtaining
stable housing. Early in the litigation, the Appellants’
relationship to each other, including a history of domestic
violence, poor interpersonal communication, and hostility,
all fueled by their respective mental health issues, was
recognized as an impediment to successful reunification
with the Children.
Shortly following the dispositional hearing, during an
overnight unsupervised visit with the [parents], P.L.K.
suffered bruising and fractures of his extremities, which a
medical expert opined were the result of physical abuse.
Over approximately the next 12 months, Mother was
attending individual counseling; however, both [parents]
were unsuccessfully discharged from the Nurturing Parent
Program. Nonetheless, the Agency continued to work with
the family towards reunification, and the [parents] once
again began [] visits. Following such a visit on December
8, 2019, it was observed that P.L.K. had bruising on both
____________________________________________
3 W.A.K. was born in August 2019.
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ears and a nondisplaced fracture of the left first metatarsal
of his foot. Once again, medical experts opined that the
injuries were indicative of physical abuse. Unsupervised
visits with the Children were suspended as the Agency
continued to work with the [parents] towards the originally
identified reunification objectives. Citing a lack of progress
on the part of the [parents] towards achieving the
reunification objectives, on September 28, 2020, the
Agency filed petitions to terminate the [parents’] parental
rights.
Throughout the 22-month period from initial placement to
the filing of the termination petitions, neither parent
successfully completed parenting classes; in fact, both were
unsuccessfully discharged on at least one occasion.
Although at the time of the filing of the termination
petitions, both [parents] were attending parenting classes,
the provider opined that Mother was only going through the
motions and not substantively embracing the information
and that Father was openly hostile to the providers. Indeed,
subsequent to [the] filing of the petitions, both [parents]
were unsuccessfully discharged for a second time.
Although Mother was attending mental health counseling, it
had little impact on her behavior. For instance, in 2020,
police were called to the [parents’] residence on at least nine
different occasions for domestic violence. The [parents] had
separated on at least two separate occasions, and a
protection from abuse order was obtained by Mother against
Father. Mother reported to Agency staff that she was “at
her breaking point” and was harboring thoughts of self-
harm. Additionally, the [parents] faced two separate sets
of criminal charges for endangering the welfare of children
related to the two independent unexplained occasions of
bodily injury to P.L.K. Although outpatient therapy for co-
parenting was provided to the [parents], they were
discharged due to their inability to meaningfully
communicate as the therapist described a “high relationship
conflict and individualism” in their approach to their
relationship. Their lack of substantive grasp of the
treatment aimed at addressing the reasons for the
Children’s original placement stalled successful
reunification. Moreover, the [parents’] inability and/or lack
of interest to address the pending criminal charges and,
more importantly, bail conditions that limited their visits
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with the Children impeded efforts at increasing the [parents’
parental bond] with their Children. The end result of the
[parents’] failure to prioritize their treatment needs and
subsequent reunification with the Children resulted in A.J.K.
being in care for approximately 27 of 44 months of her life;
P.L.J. being in care for approximately 27 of 33 months of his
life; and W.A.K. being in care for approximately 20 of 24
months of his life, significantly impacting the Children’s
ability to bond with either Mother or Father.
Trial Court Opinion (T.C.O.), 10/12/2021 at 2-4 (footnote added).
The orphans’ court subsequently granted the Agency’s petitions under
23 Pa.C.S.A. § 2511(a)(5), (8) and (b). The court also changed the goal of
the dependency proceedings from reunification to adoption. Father appealed
both the termination decree and the goal change order. He presents the
following two issues, which we have re-ordered for ease of disposition:
1. Did the [orphans’] court abuse its discretion or
commit an error of law in holding that [the Agency]
proved by clear and convincing evidence that the
issues leading to the removal or placement of the
[Children] continued to exist, and that [Father] cannot
or will not remedy the conditions that led to placement
pursuant to 23 Pa.C.S.A. § 2511(a)(5) and (a)(8)?
2. Did the [dependency] court abuse its discretion or
commit an error of law in determining that [the
Agency] made reasonable efforts to effectuate the
permanency goal of reunification with [Father] and
that the permanency goal should be changed to
adoption?
Father’s Brief at 4.
We begin our well-settled 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
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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).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in section 2511(a). Only
if the court determines that the parent's conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to section
2511(b): determination of the needs and welfare of the
child[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Clear and convincing evidence is evidence 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of
Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). We add that we
may uphold a termination decision if any proper basis exists for the result
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reached. In re C.S., 761 A.2d at 1201. Importantly, we need only agree with
the orphans’ court as to any one subsection of Section 2511(a), as well as
Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc).
We observe that Father does not challenge termination under Section
2511(b), thereby conceding that termination was established under the
second prong of the bifurcated analysis. Thus, we limit our focus to Section
2511(a). We address Section 2511(a)(8), which provides:
(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.
23 Pa.C.S.A. § 2511(a)(8).
To terminate parental rights under Section 2511(a)(8), the petitioner
must prove: (1) the child has been removed from parental care for 12 months
or more from the date of the removal; (2) the conditions which led to the
removal or placement of the child continue to exist; and (3) termination of
parental rights would best serve the needs and welfare of the child. In re
K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation omitted). Termination
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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 the
placement or the availability or efficacy of the services provided by the local
children and youth agency. K.Z.S., 946 A.2d at 759 (citation omitted).
In his first appellate issue, Father only challenges one aspect of the
court’s Section 2511(a)(8) analysis – namely, whether the conditions that led
to the Children’s removal continued to exist. In his Brief, Father acknowledges
that the conditions that led to removal included concerns about his parenting:
the improper feeding of the Children; their missed medical appointments; and
P.K.’s failure to thrive. See Father’s Brief at 22. Father conceded that
additional concerns arose during the dependency proceedings – issues such
as domestic violence and mental health. Id. at 23.
Still, Father argues that all these conditions have either been resolved,
or to the extent that they still exist, the conditions are excusable. For
instance, he cites his involvement in a parenting program to show that he
remedied the parenting concerns. Father also argues that his work schedule
prevented him from participating in many of the Children’s medical
appointments. Id. As for the domestic violence issue, Father claims that the
concern was “due to the age and maturity of the parents (age 20 years old)
which was exacerbated by the stress of [the Agency’s] involvement and the
placement of their Children.” Id. at 23-24. Finally, he contends that he was
never afforded an opportunity to demonstrate his ability to co-parent as his
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in-person contact was suspended, due to the dependency court orders and
the bail conditions from his criminal charges. See generally id. at 23-24.
By contrast, the Agency argues that A.K. and P.K. were initially
adjudicated dependent due to concerns for the mental health of both parents
and the effect that these concerns had on the Children’s safety. The Agency
contends that it implemented various services to address these issues, all of
which was unsuccessful. See Agency’s Brief at 12-13.
Finally, we observe the rationale of the orphans’ court:
Unquestionably, the [parents’] failure to take advantage of
the Agency-provided mental health services significantly
frustrated the Agency’s repeated efforts to move towards
reunification. Mental health issues not only hampered the
[parents’] ability to provide adequate parental care but also,
equally importantly, created significant physical safety risks
for the Children if they returned to the [parents’] care. One
need look no further than the two separate allegations of
physical abuse to P.L.K. as well as an overwhelming history
of domestic violence between the [parents] to conclude
[that the parents’] home was an environment saturated by
hostility. Consequently, the [parents’] mental health issues,
if left untreated, would lead to violent consequences for the
Children because these issues were the generator of the
hostility the Children experienced. Indeed, caseworkers
testified to their concern over the safety risks of returning
the Children to such an environment.
[…]
Neither [parent] has successfully completed parenting skills
or substantively grasps the skills intended to be taught by
such classes. Outpatient therapy for co-parenting has
proven equally unsuccessful due to [Father’s] inability to
restrain [his] hostile impulses, frustrating meaningful
communication and cooperation. Additionally, Father has
refused to participate in mental health counseling[.] At the
July 30, 2020 permanency reviewing hearing, […] the
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Agency verbally expressed its intention to move towards
termination[.] […] Incredibly, even after notice of the
Agency’s intent, police were called to the [parents’]
residence on three separate occasions for domestic violence
in the month following such notice. The record is replete
with objective evidence that the conditions that led to
removal and placement of the Children continued to exist.
T.C.O. at 4-5, 6; see also id. at 11.4
After review, we are not persuaded by Father’s argument that he was
prevented from demonstrating his ability to parent. After all, the unsupervised
visitations were suspended due to Father’s conduct. Moreover, Father has not
addressed the conditions which led to the Children’s placement, as evinced by
his failure to participate or complete the programs designed to alleviate those
concerns. Nor are we persuaded that some of the conditions were excusable.
The Children’s lack of medical attention cannot be attributed to Father’s busy
work schedule. Domestic violence issues cannot be attributed to Father’s age
or immaturity. Ultimately, we conclude the court did not abuse its discretion
when it determined that the conditions which led to the Children’s removal
continued to exist.
Because Father challenges no other element of the Section 2511(a)(8)
analysis, nor the second prong of the termination analysis under Section
2511(b), Father’s appeal may end here. Father’s next appellate issue –
whether the Agency failed to provide reasonable services and whether the
____________________________________________
4To address the question of whether the causes of the Children’s removal still
exist, the orphans’ court adopted that portion of its discussion under Section
2511(a)(5) which also may be applied under Section 2511(a)(8).
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dependency court erred when it changed the goal from reunification to
adoption – has no bearing on whether the termination was proper. But as a
matter of prudence, we briefly discuss these claims.
While agencies must provide reasonable efforts to enable parents to
work toward reunification with their dependent children, the remedy for an
agency’s failure to provide services is not to punish the child by denying
termination; instead, the remedy is to conclude on the record that the agency
has failed to make reasonable efforts, which imposes a financial penalty on
the agency. See In re D.C.D., 105 A.3d 662, 675-76 (Pa. 2014).5 It affords
no relief to the parents.
Even if we reached the merits of this question, we would agree with the
court’s conclusion that the Agency did, in fact, make reasonable efforts. The
record plainly shows that the Agency offered numerous services to assist
Father with achieving reunification. That Father did not achieve reunification
through these services does not mean that the Agency failed to make
reasonable efforts.
____________________________________________
5 We note that courts must consider the reasonable services available to the
parent under Section 2511(a)(5) (providing for consideration of whether “the
services or assistance reasonably available to the parent are not likely to
remedy the conditions which led to the removal or placement of the child
within a reasonable period of time”). D.C.D., 105 A.3d at 672-73. However,
Section 2511(a)(8) does not include such a consideration. See K.Z.S., 946
A.2d at 759. As we may affirm under any valid ground, and we affirm under
Section 2511(a)(8), we need not evaluate the Agency’s services under Section
2511(a)(5) as part of our review of Father’s termination appeal.
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Lastly, we address Father’s allegation that the dependency court erred
when it changed the goal of the dependency proceedings from reunification to
adoption. We begin by observing that this issue is moot in light of our decision
to affirm the termination decrees. See Interest of D.R.-W., 227 A.3d 905,
917 (Pa. Super. 2020) (citing In re D.A., 801 A.2d 614, 616 (Pa. Super.
2002) (“An issue before a court is moot if in ruling upon the issue the court
cannot enter an order that has any legal force or effect.”)).
Even accepting, for the sake of argument, that Father’s claim is not
moot, we would conclude he is not entitled to relief. We review goal-change
orders pursuant to an abuse-of-discretion standard of review. D.R.-W., 227
A.3d at 917 (citing In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010)). As such, we
must accept the court’s findings of fact and credibility determinations if the
record supports them, but we need not accept the court’s inferences or
conclusions of law. Id.
The Juvenile Act governs proceedings to change a child’s permanent
placement goal. 42 Pa.C.S. §§ 6301-6375. Dependency courts must apply the
following analysis:
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent
child, the court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the
extent of compliance with the family service plan; (3)
the extent of progress made towards alleviating the
circumstances which necessitated the original placement;
(4) the appropriateness and feasibility of the current
placement goal for the children; (5) a likely date by which
the goal for the child might be achieved; (6) the child's
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safety; and (7) whether the child has been in placement for
at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent,
must guide the court. As this Court has held, a child's life
simply cannot be put on hold in the hope that the parent will
summon the ability to handle the responsibilities of
parenting.
In re A.B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011) (citations and
quotation marks omitted).
Our discussion above indicates the Children have been in placement for
the requisite timeframe, and it is clear that Father cannot remedy those
conditions at any point in the foreseeable future. Meanwhile, the Children are
in a pre-adoptive foster home; the placement is appropriate and remains
necessary. Changing the Children’s placement goals to adoption would be in
their best interests.
Based on the foregoing, we conclude: the orphans’ court did not commit
an error of law or abuse its discretion when it terminated Father’s rights under
Section 2511(a)(8); the Agency made reasonable efforts; and even if Father’s
goal-change challenge were not moot, we would conclude the court’s order
was proper.
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Decrees and orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2022
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