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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.F., A/K/A C.F., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.F., FATHER : No. 674 WDA 2016
Appeal from the Order Entered April 15, 2016,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-0000075-2015
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 14, 2016
D.F. (“Father”) appeals from the order dated April 6, 2016, and
entered April 15, 2016,1 in the Court of Common Pleas of Allegheny County,
Orphans’ Court Division, granting the petition of the Allegheny County Office
of Children, Youth and Families (“CYF”) and involuntarily terminating his
parental rights to his dependent, male child, C.F. (“Child”), born in March of
2013, pursuant to the Adoption Act, 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8),
and (b).2 After review, we affirm.
1
While the order was dated April 6, 2016, notice pursuant to Pa.R.C.P. 236
was not provided until April 15, 2016. See Frazier v. City of
Philadelphia, 735 A.2d 113, 115 (Pa. 1999) (holding that “an order is not
appealable until it is entered on the docket with the required notation that
appropriate notice has been given”).
2
In the same order, the trial court terminated the parental rights of Child’s
mother, J.B. (“Mother”), also pursuant to Sections 2511(a)(2), (5), (8), and
(b). Mother has filed an appeal at Superior Court Docket No. 609 WDA
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The trial court summarized the relevant procedural and factual history
as follows:
The family came to the attention of CYF on the
day of the child’s birth – [in] March [of] 2013 – when
Mother and the infant tested positive for cocaine and
methadone. CYF did not remove the child at that
time. The child remained with Mother until they
were discharged on April 1, 2013. Father was at the
hospital when the child was born. He was listed as
the Father on the birth certificate and acknowledged
paternity at a later time. CYF installed in-home
services in weeks after Mother’s discharge. CYF
offered similar services to Father, but soon after the
birth, Father was incarcerated. Only a couple weeks
later, on April 18, 2013, CYF removed the child after
allegations of further drug use. Following a shelter
hearing, the child was returned to Mother’s care so
long as she resided with her step-sister. The child
remained in Mother’s care until June 6, 2013, when
he was removed following another Emergency
Custody Authorization. Mother had tested positive
for cocaine, opiates, and benzodiazepines; the
caseworker had witnessed Mother “manipulate” –
i.e., tamper – with the urine screen. On June 12,
2013, the child was adjudicated dependent, and
ultimately never returned to either parent’s care.
The child has been placed in the foster home of C.D.
and R.M. R.M. is Mother’s step[-]sister.
CYF established a Family Service Plan (“FSP”)
to aid in reunification of the parents with their child.
FSPs are comprised of goals. The goals are designed
to address and resolve the conditions that led to the
child’s removal from parental care. . . .
....
Meanwhile, Father was largely non-compliant
with his goals. Of course, this is in large part due to
his repeated incarceration. He was incarcerated
soon after the child’s birth in March 2013. He was
released in February 2014, but was incarcerated
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again from June 2014 until October 2015; his second
release came nearly seven months after the TPR
petition was filed. Father purportedly took some
parenting classes while incarcerated and participated
in a program during the brief window he was
released. He did not address his drug and alcohol
goal until his latest release in October 2015, after
the TPR was filed. And his visits were only
semi-consistent at best. Father has visited with the
child, by the Court’s count, perhaps as few as
17 times over the entirety of the child’s three[-]year
life. He was entitled to one visit per month while
incarcerated at the Allegheny County Jail. Upon his
release, he could visit with the child four times per
month. Yet there were months at a time where
Father did not visit with the child. During the life of
this case, Father has either failed to comply with the
court-ordered FSP goals, or he has been
incarcerated. . . .
Trial court opinion, 6/10/16 at 1-3 (citations to record omitted).
On April 5, 2015, CYF filed a petition to terminate parental rights.
Thereafter, the trial court conducted a hearing on April 6, 2016. At the
hearing, CYF presented the testimony of CYF caseworker, Darlene Lewis, and
Family Resources prevention services specialist (also referred to as a
parenting specialist), Mary Safrin. Father additionally testified on his own
behalf. Counsel further stipulated to the submission of the psychological
evaluations of Neil Rosenblum, Ph.D., clinical psychologist.3 (Notes of
testimony, 4/6/16 at 130-132.) While Mother was present, she did not
3
Dr. Rosenblum’s evaluations, which included individual evaluations of
Mother and foster parents and interactional evaluations of Child with Mother
and foster parents, were marked as Exhibit CYF 5. Father failed to appear
for his scheduled evaluations. (See Exhibit CYF 5, Psychological Evaluation,
Dates of Evaluation: 11/24/15, 12/4/15.)
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testify and was absent from the courtroom for a lengthy portion of the
hearing.
By order dated April 6, 2016, and entered April 15, 2016, the trial
court involuntarily terminated Mother’s and Father’s parental rights to Child.
On May 10, 2016,4 Father, through appointed counsel, filed a timely 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).
On appeal, Father raises the following issues for our review:
1. Did the Trial Court commit fatal and reversible
error in finding that [CYF] met [sic] their
burden of proof and proved by clear and
convincing evidence that CYF provided
reasonable efforts to Father, D.F. to reunify
Father with his child, C.F.?
2. Did the Trial Court commit fatal and reversible
error in allowing testimony from the
caseworker regarding father’s understanding of
his goals in being reunified with his child C.F.?
3. Did the Trial Court commit fatal and reversible
error in finding that [CYF] met their burden of
proof and proved by clear and convincing
evidence that terminating the parental rights of
D.F. will best meet the needs and welfare of
C.F., pursuant to 23 Pa.C.S.A. [§ 2511(b)]?
Father’s brief at 1.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
4
While Father’ notice of appeal is stamped as filed May 11, 2016, it is
docketed May 10, 2016.
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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.”
In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “If the factual findings are supported,
appellate courts review to determine if the trial court
made an error of law or abused its discretion.” Id.
“[A] decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or
ill-will.” Id. The trial court’s decision, however,
should not be reversed merely because the record
would support a different result. Id. at 827. We
have previously emphasized our deference to trial
courts that often have first-hand observations of the
parties spanning multiple hearings. See In re
R.J.T., 9 A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “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 evidence.”
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
competent evidence supports the trial court’s findings, we will affirm even if
the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis of the grounds for termination followed by the needs and welfare of
the child.
Our case law has made clear that under
Section 2511, the court must engage in a bifurcated
process prior to terminating parental rights. Initially,
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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
have defined clear and convincing evidence as that which 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 of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), and (8), as well as (b). We
have long held that, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d 380,
384 (Pa.Super. 2004) (en banc). As Father does not raise a challenge to a
finding of grounds for termination under Section 2511(a) in his statement of
questions involved section of his brief, we find the issue is waived. Krebs v.
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United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa.Super. 2006) (stating that, a failure to preserve issues by raising them
both in the concise statement of errors complained of on appeal and
statement of questions involved portion of the brief on appeal results in a
waiver of those issues). We, therefore, analyze the court’s termination
pursuant to Section 2511(b) only, which provides as follows:
(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.A. §§ 2511(b).
With regard to Section 2511(b), the Pennsylvania Supreme Court has
stated as follows:
[I]f the grounds for termination under subsection (a)
are met, a court “shall give primary consideration to
the developmental, physical and emotional needs
and welfare of the child.” 23 Pa.C.S. § 2511(b). The
emotional needs and welfare of the child have been
properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M.,
53 A.3d 781, 791 (Pa.Super. 2012). In In re E.M.,
620 A.2d [481, 485 (Pa. 1993)], this Court held that
the determination of the child’s “needs and welfare”
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requires consideration of the emotional bonds
between the parent and child. The “utmost
attention” should be paid to discerning the effect on
the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791. However, as discussed
below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., 71 A.3d at 267. “[I]n 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) (citations omitted).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010), citing
In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super. 2008) (internal citations
omitted).
Instantly, in examining Section 2511(b) and finding sufficient grounds
for termination, the trial court concluded:
According to Dr. Neil Rosenblum’s
psychological evaluation, the child is thriving with his
pre-adoptive foster parents C.D. and C.D.’s mother
R.M. He calls C.D. “Mom” and R.M. “Mimi.” The
child enjoys attention from R.M.’s paramour who he
calls “poppy” as well as R.M.’s younger children. The
child’s speech and attention span [have] improved
while in the foster parent’s care. Dr. Rosenblum
found that the foster parents are strongly attached
to the child, who is the center of attention in the
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home. He has lived with the family essentially his
entire life. Critically, Dr. Rosenblum found that
“removing C.F. from his present family environment
would be not only highly disruptive to his
developmental progress and attachment, but would
be traumatic and likely cause severe emotional
distress for this child.”
Meanwhile, Father outwardly refused to attend
his scheduled evaluation appointments, even though
it was clear he was aware of the dates and even
though he had visited the child in the morning of one
of the scheduled sessions. Dr. Rosenblum could not
speculate as to the interaction between Father and
child. However, it is obvious to this Court that
Father – who has had even less contact than Mother
– could not have such an impact on the child’s life
that it would cause this Court to disagree with
Dr. Rosenblum’s ultimate conclusion. Because the
child is placed with kin, it is this Court’s hope that
positive, healthy contact will remain between the
child and his biological parents. But it is crystal clear
that termination serves the child’s best needs and
welfare. The Court feels strongly that the child’s
pre-adoptive foster parents are the best judges of
whether future contact is in the child’s best interests.
Trial court opinion, 6/10/16 at 8 (citations to record omitted).
Father, however, argues that, despite his incarceration, he has made
efforts at completion of his goals, including drug and alcohol treatment and
visitation with Child. (Father’s brief at 13.) Likewise, Father emphasizes his
bond with Child and ability to provide for Child. (Id. at 13.) Father asserts:
Although [Father] was incarcerated for
seven (7) months, he worked on his goals.
Specifically he attended a drug and alcohol
treatment center in Pyramid, in Wilkinsburg, PA; he
has been free from all substances for several years
and has not tested positive from any random drug
screens; and most importantly maintained contact
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with his son. [Father] . . . visited with his child at
least once monthly when [Father] was incarcerated
and two (2) times per month when he was released
from incarceration. Testimony from persons who
supervised the visits on a regular basis stated
[Father] was very appropriate during the visits.
When asked what Father did while visiting his son,
[Father] replied we: read books, crawl under the
table and play peek-a-boo, played with toys and
gave him all of his attention during the visits “and
whatever toys he wants to play with or whatever he
likes to do, that’s what I will do.” [Father] believes
he has a real bond with his son and is capable of
providing him with safe and appropriate housing,
meeting his physical and emotional needs. Father
stated visits with his son are important to him.
[Father] is currently employed and capable of
providing a home for his son with his parents.
Unfortunately, the caseworker stated she did not
have time to investigate the home or further explore
the concerns Father expressed “could” be a barrier.
Id. (citations to record omitted).
This court finds that Father’s argument regarding Section 2511(b)
lacks merit. Upon review, as the trial court’s factual findings are supported
by the record, and the court’s legal conclusions are not the result of error of
law or abuse of discretion, we affirm the trial court’s order with regard to
Subsection (b). In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Next, we turn to whether reasonable efforts were made at reunification
of Father and Child. Father argues that CYF failed to conduct Family
Findings “to assure [Child] maintained contact with his family of origin while
Father was incarcerated” and “failed to investigate a home where [Child]
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could have resided with his Father once Father had been released from
incarceration.” (Father’s brief at 10.)
We note that the Pennsylvania Supreme Court has held that
Section 2511 does not require reasonable efforts as it relates to termination
of parental rights. In re D.C.D., 105 A.3d 662, 673-674 (Pa. 2014).
[W]hile reasonable efforts should be considered and
indeed, in the appropriate case, a trial court could
insist upon their provision, we hold that nothing in
the language or the purpose of Section 6351(f)(9)
forbids the granting of a petition to terminate
parental rights, under Section 2511, as a
consequence of the agency’s failure to provide
reasonable efforts to a parent.
Id. at 675. Thus, we also find this claim to be without merit.
Lastly, we review Father’s claim of error in allowing the testimony of
the CYF caseworker regarding his understanding of his goals in being
reunified with Child. Specifically, the CYF caseworker was asked, “Did you
have any doubt whether [Father] or [Mother] understood what CYF was
expecting from them?” to which Father objected as speculative. (Notes of
testimony, 4/6/16 at 22.) Father argues that the trial court incorrectly
overruled his objection to the caseworker’s testimony that she believed he
understood his goal requirements as speculative. (Father’s brief at 11.) The
trial court, however, explained that the question was not calling for
speculation, as it was seeking the caseworker’s thoughts. Further, the court
reasoned, “Father did not testify that he was confused by CYF’s requests, or
that he did not know how to contact his caseworker, or any other hallmark
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of misunderstanding. . . . His argument was never that he misunderstood
what he was asked to do.” (Trial court opinion, 6/10/16 at 6.) With this, we
agree.
The decision of whether to admit or exclude evidence is committed to
the sound discretion of the trial court. Buchhalter v. Buchhalter, 959
A.2d 1260, 1263 (Pa.Super. 2008). See also Schuenemann v. Dreemz,
LLC, 34 A.3d 94, 100-101 (Pa.Super. 2011); Jacobs v. Chatwani, 922
A.2d 950 (Pa.Super. 2007). This court may only reverse upon a finding of a
clear abuse of discretion. Id.
Here, as we agree with the trial court, we find that the trial court did
not abuse its discretion by admitting the testimony of the caseworker into
evidence. Hence, this claim fails, as well.
Based on the foregoing analysis, we affirm the order of the trial court
terminating Father’s parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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