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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.N.W., A/K/A N.W., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: S.W., BIRTH FATHER
No. 950 WDA 2016
Appeal from the Order Entered June 3, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-0000028-2016
IN RE: S.L.W., A/K/A S.J., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: S.W., BIRTH FATHER
No. 951 WDA 2016
Appeal from the Order Entered June 3, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): CP-02-AP-0000029-2016
IN RE: Z.T.W., A/K/A T.W., A/K/A IN THE SUPERIOR COURT OF
T.Z.W., A MINOR, PENNSYLVANIA
Appellee
APPEAL OF: S.W., BIRTH FATHER
J-S83028-16
No. 952 WDA 2016
Appeal from the Order Entered June 3, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-0000033-2016
IN RE: N.J.W., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: S.W., BIRTH FATHER
No. 953 WDA 2016
Appeal from the Order Entered June 3, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-0000027-2016
IN RE: S.L.W., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: S.W., BIRTH FATHER
No. 969 WDA 2016
Appeal from the Order Entered June 3, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-0000026-2016
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BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 1, 2016
S.W. (“Father”) appeals from the orders entered on June 3, 2016,
granting the petitions of the Allegheny County Office of Children, Youth and
Families (“CYF”) for involuntary termination of his parental rights to his five
children:1 Sr.W., born June of 2006; Nr.W., born September of 2009; Nh.W,
born July of 2010; Zr.W., born October of 2011; and Sh.W., born February
of 2013 (collectively, the “Children”), pursuant to the Adoption Act, 23
Pa.C.S. § 2511(a)(1),2 (2), (5), (8), and (b).3 We affirm.
The trial court accurately and aptly set forth the factual background
and procedural history of this case, as follows:
Although involved with the Allegheny County Office of
Children Youth and Families (“CYF”) for some time prior, the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
We acknowledge that the abbreviations of the children’s names in the
captions differ from the abbreviations utilized throughout this Memorandum.
For consistency, we chose to utilize the abbreviations used by the trial court.
2
The trial court orders reflect the termination of Father’s parental rights
under section 2511(a)(1), but the trial court opinion does not recite
termination under that subsection. See Trial Court Opinion, 8/4/16, at 1-2;
cf. N.T., 6/1/16, at 79.
3
On June 3, 2016, the trial court also terminated the rights of A.R.L.J.,
a/k/a A.R.J., the Children’s biological mother (“Mother”). Mother did not file
an appeal, and she is not a party to the instant appeal. Moreover, on that
same date, the trial court also terminated the parental rights of any
unknown father with regard to Nh.W., Zr.W., and Sh.W. See N.T., 6/1/16,
at 79. No unknown father has appealed or is a party to the instant appeal.
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family’s case became court-active in September 2013 when the
children—then aged 7 years old to 23 months[4]—were removed
after reports that they were left unsupervised. At the time,
Father was briefly incarcerated but was released soon after the
shelter hearing. See Exhibit 3, Shelter Care Order of Court,
dated September 30, 2013. After his release, Father apparently
left the family, though it was never particularly clear how much
he lived with them in the first place. See Exhibit 2, page 2. The
children were adjudicated dependent on November 4, 2013. See
Transcript of Testimony (“T.T.”), dated June 1, 2016, at 7-10;
31; see also Exhibits 3–7 (the children’s respective certified
records). They were placed with the maternal grandmother
[“Grandmother”]—their pre-adoptive foster mother—where they
have remained since. CYF created a Family Service Plan (“FSP”)
to assist the parents’ reunification with the child[ren]. See
Exhibit 8. FSPs consist of goals, which are designed to track the
parents’ progress. The parents’ goals were the same: to obtain
safe and appropriate housing; to get a drug and alcohol
evaluation and follow recommendations; to stay in contact with
the agency and cooperate with services; to address any mental
health issues via an evaluation; to visit the children. See T.T., at
17; 11. Father made no progress. In September 2014, the
Court granted CYF’s petition to proceed on an “Aggravated
Circumstances” basis due to Father’s lack of contact with his
children. Id., at 31. Since the children’s removal twelve months
prior, he had visited twice. See Exhibit 2, Aggravated
Circumstances Order of Court, dated September 8, 2014. An
“Aggravated Circumstances” finding is warranted when the
children are in the custody of a county agency (in this instance,
CYF) and when Father’s identity and whereabouts are known,
but has failed to maintain substantial and continuing contact
with the children for at least six months. See 42 Pa.C.S.A. §
6302. Upon the [c]ourt’s finding of “Aggravated Circumstances,”
CYF was relieved of providing reasonable efforts to reunify the
children with Father. Id.; see also, Exhibits 3-7, Aggravated
Circumstances Orders, dated September 8, 2014. Father’s
noncompliance and noncontact continued. See generally
Permanency Review Orders, Exhibits 3–7. CYF filed its petition
____________________________________________
4
The youngest child, Sh.W., actually was only seven months old in
September of 2013. N.T., 6/1/16, at 6.
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to terminate Father’s rights on February 22, 2016. Father
appeals.
Trial Court Opinion, 8/4/16, at 1–2.
On July 5, 2016, Father timely filed a notice of appeal 5 along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925 (a)(2)(i) and (b). This Court, sua sponte, consolidated the appeals on
July 11, 2016.
Father raises the following single issue on appeal:
I. Did the trial court abuse its discretion and/or err as a
matter of law in concluding that Allegheny County
Children, Youth and Families met its burden of proving that
termination of Birth Father’s parental rights would meet
the needs and welfare of the Children pursuant to 23
Pa.C.S. § 2511(b) by clear and convincing evidence when
such determination is not supported by the record?
Father’s Brief at 13.6
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
____________________________________________
5
We note that Father’s appeal was due to be filed no later than July 3,
2016, which was a Sunday. The following day, Monday, July 4, 2016, was a
federal holiday, and the courts were closed. July 5, 2016, was the first date
that the court was open for business after the Independence Day holiday.
See 1 Pa.C.S. § 1908 (when the last day of appeal period falls on Saturday,
Sunday, or any day made a legal holiday, such day is omitted from the
computation).
6
This is the sole issue raised in Father’s Pa.R.A.P. 1925(b) statements, as
well.
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petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). 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.; In re
R.I.S., 614 Pa. 275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As
has been often stated, an abuse of discretion does not result
merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel-Bassett v. Kia
Motors America, Inc., 613 Pa. 371, 455, 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, 575 Pa. 647, 838 A.2d 630, 634
(Pa. 2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).
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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
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have explained that the “standard of clear and convincing evidence is
defined as 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. (quoting In re J.L.C., 837 A.2d
1247, 1251 (Pa. Super. 2003)). “It is well established that a court must
examine the individual circumstances of each and every case and consider
all explanations offered by the parent to determine if the evidence in light of
the totality of the circumstances clearly warrants termination.” In re
Adoption of G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (citing In re
Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003)). Moreover, this
Court has stated that the focus in terminating parental rights under section
2511(a) is on the parent, but under section 2511(b), it is on the child. In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super 2008) (en banc).
Initially we note that Father has waived any challenge to the
sufficiency of the evidence to support termination under section 2511(a) by
his failure to include such a challenge in both his concise statements of
errors complained of on appeal and the statement of questions involved in
his brief on appeal. In re G.D., 61 A.3d 1031, 1036 n.3 (Pa. Super. 2013)
(citing Krebs v. United Refining Company of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are
not raised in both his concise statement of errors complained of on appeal
and the statement of questions involved in his brief on appeal)). Indeed,
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Father concedes that CYF satisfied its burden of proof with regard to 23
Pa.C.S. § 2511(a)(2). See Father’s Brief at 20. Rather, he challenges the
trial court’s order only as to section 2511(b), asserting that the evidence
was insufficient to support the termination of his parental rights under that
section of the Adoption Act. Thus, we focus upon 23 Pa.C.S. § 2511 (b),
which provides as follows:
§ 2511. Grounds for involuntary termination
***
(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 (b). Father argues that there was insufficient evidence to
support a finding that the termination of his parental rights best serves the
Children’s needs and welfare and that there was no relationship between the
Children and him that would cause the Children to suffer irreparable harm if
his rights were terminated. Father’s Brief at 20–23.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court has explained as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
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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” 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.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
In assessing whether termination of Father’s parental rights served the
needs and welfare of the Children, the trial court noted as follows:
After consideration of testimony and evidence, the [c]ourt finds
that CYF met its burden. Father has likely never provided any
substantial parental care for these children. His visitations were
so infrequent that CYF was relieved from providing reunification
efforts. And so it was not surprising to learn from the CYF
caseworker that the [C]hildren do not ask about their Father.
The [C]hildren have been in the home of the maternal
grandmother for nearly three years. For the three youngest
children, the maternal grandmother is essentially the only
caregiver they have ever known.
In her psychological evaluation report, psychologist Dr.
Patricia Pepe noted that Father has not had any contact with the
[C]hildren. Dr. Pepe reported that the [C]hildren are general[ly]
doing very well and exhibiting positive functioning. Four-year-
old Zr.W. had been having developmental and speech delays,
but after assistance from service providers[,] he is now verbally
expressive. Sr.W. is in the second grade and was acting out
some at school. The grandmother suspected that these
outbursts were related to another student’s racist behavior, for
the child exhibited positive functioning at football and at church.
The [c]ourt notes that the child has made considerable progress
considering that he was seven when he came into the
grandmother’s care and had never been in school. Nr.[W.]
received an award for his high marks at school; Nh.[W.] also
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does well at school, though there is some difficulty focusing. All
of the [C]hildren are in good health.
Dr. Pepe reported that the grandmother was the center of
the [C]hildren’s attention, and that the grandmother was able to
be aware of all of the [C]hildren at the same time. Dr. Pepe
reported that the siblings exhibited positive interaction with one
another and there was a general harmonious tone to the family’s
functioning. The [C]hildren remained positive and behaved,
even though there were five of them, four of [whom] were very
young. Dr. Pepe reported that she was amazed that the
[C]hildren could share with minimal problems. Critically, all five
of the [C]hildren “consistently exhibited multiple bonding
behaviors suggestive of a positive and primary attachment to
their grandmother, whom each child identified as ‘mom.’” Dr.
Pepe concluded that all of the [C]hildren seemed happy, that the
grandmother presents as a “very positive permanent placement
resource.” The [c]ourt notes that Dr. Pepe could not conduct an
interactional evaluation with Sr.W., because the family arrived
one hour late to the appointment. The interactional between Dr.
Pepe and Father was cancelled.
Given Father’s continual lack of contact throughout the
duration of this case and throughout the duration of these
children’s lives, the [c]ourt is constrained to opine that Father
does not know these [C]hildren and that these [C]hildren largely
do not know their Father. He has never provided for them. He
has never cared for them. He has never raised them, or sent
them to the doctor’s office, or sent them to school, or sent them
gifts. There is no bond between them.
Trial Court Opinion, 8/4/16, at 4–5 (internal citations omitted).
We find guidance in In re K.Z.S., 946 A.2d 753 (Pa. Super. 2008).
Therein, this Court explained that in cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. Id. at 763. “The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” Id. We instructed
that the court should also consider the intangibles, such as the love,
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comfort, security, and stability the child might have with the foster parent.
Additionally, we stated that the court should consider the importance of
continuity of relationships and whether any existing parent-child bond may
be severed without detrimental effects on the child. Id.
We further observed in K.Z.S. that where the subject child had been
constantly and consistently separated from his parent for four years, any
relationship between the two had to be “fairly attenuated,” such that even if
a bond existed, it did not defeat the termination of the mother’s parental
rights. In re K.Z.S., 946 A.2d at 764. Based on the strong relationship that
the child had with his foster mother, the child’s young age, and his very
limited contact with his mother, this Court found competent evidence to
support the orphans’ court’s termination of the mother’s parental rights. Id.
The same is true in this case. A parent’s own feelings of love and
affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). A child’s life “simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” Id. at 1125. Rather, “a parent’s
basic constitutional right to the custody and rearing of his child is converted,
upon the failure to fulfill his or her parental duties, to the child’s right to
have proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super.
2004). The record reflects that the trial court appropriately considered the
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Children’s needs and welfare and conducted a bond-effect analysis in
deciding whether to terminate Father’s parental rights.
After careful review, we conclude the record supports the trial court’s
factual findings, and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. Adoption of S.P., 47 A.3d at 826–
827. The Children’s primary attachment is with Grandmother. They have
resided with Grandmother, who plans to adopt them, since September 27,
2013. N.T., 6/1/16, at 24, 40. CYF caseworker, Sherri Ihrig, testified that
Grandmother “provides for [the Children’s] needs, food, [and] shelter . . . .
She is the one who takes them to the doctor and the dentist, deals with the
school.” Id. at 35. Ms. Ihrig further testified that the Children “look to
[Grandmother] as their parent.” Id. Moreover, the Children last saw Father
in April of 2014. Id. at 21. They do not ask about him. Id. at 39. The
youngest two children, who were two years old and fourteen months old in
April, 2014, were too young even to remember Father. N.T., 6/1/16, at 6.
Accordingly, it was proper for the trial court to determine that no bond
exists such that the Children would suffer permanent emotional harm if
Father’s parental rights were terminated. In re K.Z.S., 946 A.2d 753, 764
(Pa. Super. 2008) (stating that any bond with the parent would be fairly
attenuated when the child was separated from the parent, almost
constantly, for four years). It is well-settled that “we will not toll the well-
being and permanency of [a child] indefinitely.” Adoption of C.L.G., 956
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A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)
(noting that a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of
parenting.”)). We, therefore, affirm the orders terminating Father’s parental
rights.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2016
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