J-S77045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.S.B., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.E.B., FATHER No. 2387 EDA 2014
Appeal from the Decree entered July 18, 2014,
in the Court of Common Pleas of Philadelphia County, Family
Court, at No(s): CP-51-AP-0000473-2013
BEFORE: STABILE, JENKINS, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 16, 2015
J.E.B. (Father) appeals from the decree entered July 18, 2014, in the
Court of Common Pleas of Philadelphia County, which terminated
involuntarily his parental rights to his minor son, A.S.B. (Child), born in
March of 2012.1 We affirm.
The trial court summarized the relevant factual and procedural history
of this matter as follows.
On March 7, 2012, the Department of Human Services [(DHS)]
received a General Protective Services (GPS) report alleging that
[M]other moved to Philadelphia to avoid DYFS attempts to place
the child. … Mother admitted using Thorazine, Ativan and
Vicodin during her pregnancy. Mother has a history of bipolar
disorder, anxiety and drug abuse. Additionally, [M]other had a
history of hospitalizations for mental health issues. The report
was substantiated.
* Retired Senior Judge specially assigned to the Superior Court.
1
The trial court entered a separate decree that same day, in which it
terminated involuntarily the parental rights of Child’s mother, C.J.B.
(Mother). Mother is not a party to this appeal.
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On March 9, 2012, [F]ather was released from Belmont Center
for Comprehensive Treatment. [F]ather was diagnosed with
depression and suffered from suicidal ideations.
[Child] was discharged from the Hospital of the University of
Pennsylvania (HUP) on March 12, 2012. [DHS] obtained an
Order of Protective Custody (OPC) for [Child] and placed the
child in a foster home through Children’s Services, Inc.
On March 14, 2012, a shelter care hearing was held. [C]hild was
temporarily committed to DHS. Mother and [F]ather were
granted supervised visits at the agency.
On March 22, 2012, DHS learned that [F]ather had a medical
appointment for medication management and out-patient
therapy through Horizon House, Inc[.] for mental health
treatment.
DHS held a Family Service Plan meeting on April 9, 2012. The
parental objectives were the following: (1) the parents will
participate in a mental health evaluation; (2) the parents will
comply with all treatment recommendations including therapy
and medication prescribed; (3) the parents will sign
authorization forms to permit the Children and Youth Division
(CYD) to obtain copies of evaluations and progress reports; (4)
the parents will occupy and locate suitable housing with operable
utilities; (5) the parents will maintain regular visits with the
child; (6) the parents will not use physical violence or threats to
resolve family conflicts; (7) the parents will participate in an
evaluation for drug and alcohol abuse; (8) the parents [will]
maintain a drug free status and complete 5 successful drug
screens. Father did not participate in the meeting. Mother
refused to sign the FSP.
On May 23, 2012, an adjudicatory hearing was held. [Child] was
committed to DHS and adjudicated dependent.
On September 26, 2012, a permanency review hearing was held.
Father missed 3 visits since he was released from prison.
[F]ather was referred to the Clinical Evaluation Unit (CEU) for a
forthwith drug screen and assessment.
Trial Court Opinion, 9/12/2014, at 1-2 (unnumbered).
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On August 23, 2013, DHS filed a petition to terminate Father’s
parental rights to Child involuntarily. A termination hearing was held on July
18, 2014. Following the hearing, the trial court entered its decree
terminating Father’s rights. Father timely filed a notice of appeal, along with
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
Father now raises the following claims for our review.
1. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
C.S.A. sections 2511(a)(1) where [F]ather presented evidence
that he tried to perform his parental duties. Additionally,
[F]ather visited [Child] throughout [the] time he was in foster
care[?]
2. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
C.S.A. sections 2511(a)(2) where [F]ather presented evidence
that he has remedied his situation by completing anger
management, receiving mental health treatment and has
housing. Additionally, [F]ather is employed full time[?]
3. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
C.S.A. sections 2511(a)(5) where evidence was provided to
establish that the child was removed from the care of the
[M]other. Additionally, [F]ather visited with [Child] and
maintained contact with him over the last several months[?]
4. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
C.S.A. sections 2511(a)(8) where evidence was presented to
show that [F]ather is capable of caring for his child after
successfully completing mental health treatment. Additionally,
[F]ather visited with [Child] and maintained contact with him
over the last several months[?]
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5. Whether the trial court erred and/or abused its discretion by
terminating the parental rights of [F]ather, [] pursuant to 23 Pa.
C.S.A. sections 2511(b) where evidence was presented to
establish that [C]hild had a close bond with [F]ather[?]
Father’s Brief at 7.
We consider Father’s claims mindful of the following.
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).
Our courts apply a two-part analysis in reviewing a decree terminating
parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super.
2007),
[i]nitially, 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
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paid to the effect on the child of permanently severing any such
bond.
Id. at 511 (citations omitted).
Here, the trial court terminated Father’s rights pursuant to 23 Pa.C.S.
§ 2511(a)(1), (2), (5), (8), and (b). “This court may affirm the trial court's
decision regarding the termination of parental rights with regard to any one
subsection of Section 2511(a).” In re J.F.M., 71 A.3d 989, 992 (Pa. Super.
2013) (citing In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc),
appeal denied, 863 A.2d 1141 (Pa. 2004)). For the purposes of our analysis,
we focus on subsection 2511(a)(2). The statute provides, in relevant part,
as follows.2
(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:
***
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parent has caused the child to be without essential
parental care, control or subsistence necessary for his physical
or mental well-being and the conditions and causes of the
2
We note that the trial court concluded incorrectly that Father’s parental
rights could be terminated under subsections 2511(a)(5) and (a)(8). Both
of these subsections require that the subject child have “been removed from
the care of the parent by the court or under a voluntary agreement with an
agency” in order to be applicable. 23 Pa.C.S. § 2511(a)(5), (8). Because
Child was never in Father’s care, his parental rights cannot be terminated
under these Sections. See In re C.S., 761 A.2d 1197, 1200 (Pa. Super.
2000) (en banc) (concluding that termination was inappropriate under
subsectionsections 2511(a)(5) and (8) “because the record reflects that C.S.
was never in Appellant’s care and, therefore, could not have been removed
from his care.”); In re Z.P., 994 A.2d 1108, 1123 n.2 (Pa. Super. 2010)
(same).
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incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent.
***
(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 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)(2), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to subsection 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.A
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted)). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
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Instantly, the trial court concluded that Father’s parental rights should
be terminated because, inter alia, Father failed to complete mental health
treatment, anger management treatment, or domestic violence training, and
because Father attended visits with Child only 50% of the time. Trial Court
Opinion, 9/12/2014, at 3-4 (unnumbered). Father disputes the trial court’s
findings, arguing that he completed anger management and mental health
treatment, and that he visited with Child “as consistently as he could.”
Father’s Brief at 15-17. Father also contends that DHS failed to make
reasonable efforts to reunify him with Child, and that he was not aware of
his FSP goals. Id. at 16-18. Father emphasizes that he is employed and
has appropriate housing for Child. Id. at 15-17.
After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion by terminating Father’s parental
rights involuntarily pursuant to subsection 2511(a)(2). During the
termination hearing, DHS worker, Tracey Campbell, explained that Father is
employed and resides with his biological mother. N.T., 7/18/2014, at 17.
Ms. Campbell testified that she never received any documentation indicating
that Father had completed or was completing mental health treatment or
domestic violence training. Id. at 17-18. Similarly, while Father informed
Ms. Campbell that he had completed anger management treatment, Ms.
Campbell testified that Father did not provide her with a certificate
confirming his story. Id. at 18. Agency worker, Brenda Calhoun, explained
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that Father attends visits with Child about twice per month, which amounts
to half of the offered visits. Id. at 33, 38-39.
Accordingly, the record supports the trial court’s finding that, at the
time of the termination hearing, Father had failed for over two years to
complete the FSP objectives necessary to obtain custody of Child. Father’s
actions, or lack thereof, show that he is presently incapable of being a
parent. Father’s incapacity has left Child without parental care and control,
and it was reasonable for the trial court to conclude that Father cannot, or
will not, remedy this incapacity.
While Father contends that he was unaware of his FSP objectives, this
argument does not entitle him to relief. Admittedly, Ms. Campbell stated on
cross-examination that there had been a total of only three FSP meetings in
this case: on April 9, 2012; March 23, 2013; and in October of 2013, after
the petition to terminate Father’s parental rights had already been filed. Id.
at 26-27. She conceded that she did not know if Father had been invited to
any of the FSP meetings. Id. at 27-29. She also stated that she did not
know if Father had attended the two earlier FSP meetings. Id. at 29. Ms.
Campbell did state that she believed that Father was aware of his FSP goals
because she “had plenty of time to talk out in the hallway” with Father
during a continuance hearing. Id. at 28. This hearing took place during
February of 2014, also well after the filing of the petition to terminate
Father’s parental rights. Id.
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However, during Father’s testimony, his counsel asked him what he
had done to achieve his FSP objectives. Id. at 43. Father did not express
confusion as to what his objectives were or how to complete them, nor did
he complain that he had only recently identified his objectives. Instead,
Father claimed that he had successfully completed an anger management
class “last year,” but that he did not have a certificate with him at the time.
Id. He stated that he had e-mailed a copy of the certificate to his former
DHS worker. Id. Father also admitted that he knew that obtaining mental
health treatment was one of his objectives. Id. He claimed that he had
been attending therapy, but that he was discharged because it conflicted
with his work schedule, and because the therapist felt that treatment was no
longer needed. Id. at 44. The trial court was free to reject Father’s claims
as incredible, and to infer from this testimony that Father was aware of his
FSP objectives throughout the case.
Finally, we note that the issue of whether DHS provided Father with
reasonable reunification efforts is not determinative in this matter. Our
Supreme Court has expressly rejected the contention that reasonable efforts
are necessary to support a termination decree under Section 2511(a)(2).
See In re D.C.D., 2014 WL 7089267 (Pa. filed December 15, 2014). In
D.C.D., the Court analyzed the language of subsection 2511(a)(2), as well
as Section 6351 of the Juvenile Act, 42 Pa.C.S. § 6351. The Court reasoned
that, while “reasonable efforts may be relevant to a court’s consideration of
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both the grounds for termination and the best interests of the child,” neither
of these provisions, when read together or individually, requires reasonable
efforts. Id. at *8-9 (citation omitted). The Court also concluded that
reasonable efforts were not required to protect a parent’s constitutional right
to the care, custody, and control of his or her child. Id. at 10-11. No relief
is due.
We next consider whether the trial court abused its discretion by
terminating Father’s parental rights under Section 2511(b).
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial 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. However, in cases where there is no evidence of a bond
between a parent and child, it is reasonable to infer that no bond
exists. Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010) (some
citations omitted).
Here, the trial court concluded that Child would not suffer irreparable
harm if Father’s parental rights were terminated, and that termination would
be in Child’s best interest. Trial Court Opinion, 9/12/2014, at 5
(unnumbered pages). The court reasoned that Child has never resided with
Father, and that Child “has not had an opportunity to bond with [F]ather due
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to [F]ather’s lack of visitation.” Id. at 4-5. The court noted that Child is
bonded with his foster family. Id. Father argues that he is bonded with
Child and does well during visits, and that termination of his parental rights
could have a detrimental effect on Child. Father’s Brief at 18-19.
We again conclude that the trial court did not abuse its discretion. Ms.
Campbell testified that DHS obtained protective custody of Child several
days after his birth, while Child was still in the hospital. N.T., 7/18/2014, at
8-11. At the time of the termination hearing, Child had been in the same
preadoptive foster home for a year and approximately nine months. Id. at
10-11. Ms. Campbell stated that she had observed Child in his current
foster home, and that Child “has a really close bond” with his foster mother
and calls her “mom.” Id. at 20. Ms. Campbell opined that Child would not
be irreparably harmed if Father’s parental rights were terminated, and that it
would be beneficial for Child to find permanency in his current environment
where he appears to feel very comfortable. Id. at 22-23.
Similarly, Ms. Calhoun testified that she had observed Child with his
foster family on three occasions. Id. at 32-33. She noted that Child is
“very engaged” with his foster mother and her son, and “[i]t’s like he’s part
of the family there. They treat him like he’s just another brother.” Id. at
33. She testified that Child starts his visits with Father “very reserved, and
kind of withdrawn.” Id. at 35, 40. It takes Child about 15 to 20 minutes to
“warm up and get more interactive.” Id. Ms. Calhoun stated that Father is
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appropriate during visits and tries to engage with Child. Id. at 40. Father
testified that he had been missing visits with Child, but claimed that the
visits were missed because of “stomach bugs being in the home,” and
because of emergencies at work. Id. at 45. He stated that he always
notifies the agency when he is going to miss a visit. Id.
Thus, the record confirms that there was no evidence presented during
the termination hearing to indicate that Father and Child have a bond, other
than the fact that Father has visited with Child twice per month. Instead,
the testimony revealed that Child is bonded with his foster family, with
whom he has lived for the majority of his life. It was reasonable for the
court to determine that it would be in Child’s best interest for Father’s
parental rights to be terminated, and that Child would not suffer irreparable
harm.
Accordingly, because we conclude that the trial court did not abuse its
discretion by terminating Father’s parental rights involuntarily pursuant to
subsections 2511(a)(2) and (b), we affirm the decree of the trial court.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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In Re: A.S.B., a Minor Appeal of: J.E.B., Father
Combined Opinion