J-S39015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R-J.C.K. A/K/A R.J.K., L.K., IN THE SUPERIOR COURT OF
MINORS PENNSYLVANIA
APPEAL OF: R.K.
No. 132 WDA 2017
Appeal from the Order Entered December 19, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s):
CP-02-AP-032-2015
CP-02-AP-033-2015
BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2017
R.K. (Father) appeals from the order entered on December 19, 2016,
that granted the petition filed by Allegheny County Children, Youth and
Families (CYF) to involuntarily terminate his parental rights to R-J.C.K. and
L.K. We affirm.
In its opinion, the trial court set forth the history of this case, as
follows:
R[-]J.C.K. was born in November, 2010 to R.R.H. (“Mother”).
L.K. was born in October, 2011 to Mother. The birth certificates
of both children list R.K. as the Father. The children came to the
attention of CYF in 2012 and CYF opened an investigation
following reports of domestic violence between Mother and
Father, reports that siblings of R[-]J.C.K. and L.K. had suffered
physical injuries requiring hospitalization while in parental care,
and reports that the interior of the parental home was in such
disorderly condition as to present a safety risk. Subsequently,
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*
Retired Senior Judge assigned to the Superior Court.
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on February 15, 2013, following Mother’s reports of domestic
violence and ensuing petition for protection from abuse (“PFA”)
against Father, together with Mother[’s] having incurred
separate criminal charges, CYF removed the children from the
care of their parents and in May, 2016, when R[-]J.C.K. was just
over two years old, and L.K. just over one year old[,] CYF placed
the children in foster care with a maternal great aunt and uncle,
where they continue to reside. [CYF] filed dependency petitions
on March 3, 2013, and on March 6, 2013, this [c]ourt
adjudicated the children dependent.
i. First Petition for Termination of Father’s Parental Rights
On February 4, 2015, CYF filed petitions for termination of
the parental rights of Mother and Father. This [c]ourt conducted
a hearing thereon on April 10, 2015. By order dated May 12,
2015, this [c]ourt granted CYF’s petition to terminate Mother’s
parental rights. However, that same day, this [c]ourt entered an
order denying CYF’s petition to terminate Father’s parental
rights, concluding that CYF had failed to demonstrate by clear
and convincing evidence that grounds for termination of Father’s
rights existed.
On June 6, 2015, R[-]J.[C.]K. and L.K., through their
guardian ad litem [(GAL)], filed notices of appeal with the
Pennsylvania Superior Court from this [c]ourt’s order denying
CYF’s petition to terminate Father’s parental rights. On June 22,
2015, Mother filed a separate notice of appeal from this [c]ourt’s
order granting CYF’s petition to terminate her parental rights.
On December 22, 2015[,] … the Pennsylvania Superior Court
affirmed this [c]ourt’s order denying CYF’s petitions to terminate
Father’s parental rights. Additionally, on December 30, 2015[,]
… the Pennsylvania Superior Court affirmed this [c]ourt’s order
terminating Mother’s parental rights.
ii. Second Petition for Termination of Father’s Parental Rights
On June 13, 2016, CYF filed a second petition for
termination of Father’s parental rights. This [c]ourt conducted a
hearing thereon on December 16, 2016. That same day, this
[c]ourt entered orders terminating Father’s parental rights to R[-
]J.C.K. and L.K. Father filed a notice of appeal on January 9,
2017. On January 24, 2017, R[-]J.C.K. and L.K., through their
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[GAL], filed an application to quash, which the Superior Court
denied without prejudice by order dated February 16, 2017.[1]
Trial Court Opinion (TCO), 3/12/17, at 2-4.
Following the rendition of the history of this case quoted above, the
trial court discussed the applicable law and the testimony and
documentation presented at the hearing that formed the basis for its
conclusion that Father had failed to take the steps necessary to accomplish
reunification, i.e., that CYF had proven that Father’s parental rights should
be terminated pursuant to 23 Pa.C.S. § 2511(a)(2), (5) and (8).
Specifically, the court provided an extensive discussion of Dr. Neil
Rosenblum’s testimony of his interactional evaluation of the children, their
foster parents and of Father. TCO at 7-11. The court also discussed the
testimony of Sharon Martin, a caseworker for CYF, who corroborated Dr.
Rosenblum’s testimony, and indicated that during the almost four years that
the children were in the care of the foster parents, Father “failed to
demonstrate a commitment to providing consistency and stability or an
ability to provide long-term parental care and supervision to the children.”
Id. at 12 (citing N.T., 12/16/16, at 44-71). Ms. Martin also indicated that
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1
This Court’s order, dated February 16, 2017, that denied the GAL’s motion
to quash, allowed for the quashal issue to be either raised in a party’s brief
or by filing a new application that would be directed to this merits panel.
Nothing has been received in accordance with the February 16, 2017 order.
Moreover, a review of the record reveals that Father’s appeal was timely
filed in that the trial court’s order was entered on December 19, 2016, and
the appeal was filed on January 19, 2017. See Pa.R.A.P. 903(a).
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“CYF has no record that Father pursued his family service plan goals which
included that he obtain appropriate housing, receive mental health
treatment, obtain employment, receive parenting services, and create a
stable environment within which the children would be able to reside.” Id.
(citing N.T. at 46).
The court also discussed the testimony of Jessica Clark, director of the
care center, who supervised the visits between Father and the children.
Furthermore, the trial court provided information gleaned at two
permanency review hearings, held on October 28, 2015, and October 17,
2016. The court noted in the year between the two permanency review
hearings, “Father failed to take any significant steps towards attaining the
security and stability necessary for the children to be placed in his care.”
Id. at 14. The court also found that since denying the first termination
petition, “CYF has presented credible evidence and testimony, that, since
then, Father’s actions (or lack thereof) have hampered efforts at
reunification, and strained the already tenuous bond that children had with
Father, as evidenced by Father[’s] speaking negatively of the foster parents
to the children in a manner that threatened the children’s sense of safety
and stability and negatively impacted their wellbeing.” Id. Furthermore, in
its conclusion, the court stated:
Based on the foregoing evidence and testimony, this [c]ourt
concludes that CYF proved by clear and convincing evidence that
termination of Father’s parental rights best served the needs and
welfare of the children pursuant to § 2511(b). Although a bond
exists between Father and the children and Father exhibited an
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interest in parenting the children, in reliance on the evidence
discussed herein, this [c]ourt found that Father’s ongoing
parental deficiencies demonstrated an inability or unwillingness
to provide for the children’s essential parental care, control or
subsistence. Moreover, the children lack a parental bond with
Father, and rely on their foster parents for their needs.
Accordingly, this [c]ourt concludes that children’s welfare and
needs would be best served by termination of Father’s parental
rights, and respectfully requests that its December 16, 2016
order be affirmed.
Id. at 15.
On appeal, Father raises the following issues for our review:
I. The trial court erred in finding that [CYF] had proved grounds
for termination under Pa.C.S.[] [§] 2511(a)(2), (5) and (8)[.]
II. The trial court erred in finding that [CYF] had proved by clear
and convincing evidence that the condition which led to the
removal of the child[ren] had not or could not be remedied
within a reasonable period of time.
III. The trial court erred in finding that [CYF] had proved by
clear and convincing evidence that termination of the [Father’s]
parental rights would best serve the developmental, physical and
emotional needs and welfare of the child[ren] as required by
Pa.C.S.[] [§] 2511(b).
Father’s brief at 6.
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
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record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we 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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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). If 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).
We are guided further by the following: Termination of parental rights
is governed by Section 2511 of the Adoption Act, which requires a bifurcated
analysis.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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
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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) (citing 23 Pa.C.S. § 2511,
other citations omitted). 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. R.N.J., 985 A.2d at 276.
With regard to Section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
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. Id. 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. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
The trial court here terminated Father’s parental rights pursuant to
section 2511(a)(2), (5), (8) and (b). In order to affirm, 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). Father’s brief provides argument regarding all three subsections of
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section (a). We have chosen to address and analyze the court’s decision to
terminate Father’s parental rights under section 2511(a)(2) and (b), which
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:
...
(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 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).
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;
(2) such incapacity, abuse, neglect, or refusal caused the child to be without
essential parental care, control, or subsistence necessary for his physical or
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mental well-being; and (3) the causes of the incapacity, abuse, neglect, or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under section 2511(a)(2), 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).
The thrust of Father’s argument, relating to section 2511(a)(2), is that
“he has substantially remedied the conditions which led to his children being
removed.” Father’s brief at 15. Specifically, Father contends that the family
service plan goals, which centered on housing, domestic violence, parenting,
and maintaining contact with the children were met. He claims that he no
longer has a substance abuse problem, that he has obtained employment
and housing and that he has addressed parenting and domestic violence
issues. Father also relies on the caseworker’s testimony that he has
maintained contact with her, has consistently visited with the children, and
has acted appropriately during the visits. He further claims that the children
have enjoyed the visits and have not exhibited any fear of him. Father also
relies on Dr. Rosenblum’s testimony that Father had exhibited perseverance
in pursuing the relationship with the children despite obstacles. Despite
these assertions, Father does acknowledge that he never provided
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documentation with regard to employment, housing and his claim that he
had addressed parenting and domestic violence issues.
The GAL, in her brief, counters Father’s claims by asserting that he has
not complied with the goals set for him in order for his reunification with the
children. The GAL notes the lack of documentation as to his housing
arrangement, indicating that he has lived with relatives throughout the
pendency of this case. The GAL also claims that Dr. Rosenblum’s report
identified various mental health issues and the fact that Father “has not
engaged in mental health treatment as he believes it is a waste of time.”
GAL’s brief at 13 (citing N.T. at 20-21). The GAL further contends that
Father has not attended domestic violence counseling, despite the fact that
he was removed from the family residence by police and incarcerated.
The trial court’s opinion, which addresses all three of Father’s issues
together, sheds light on some of Father’s claims, namely, those that concern
Father’s interaction with the children at the supervised visitations. With
regard to R-J.C.K., the court stated that
Dr. Rosenblum testified that during the evaluations, R[-]J.C.K.
“referred to [his foster parents] as mom and dad” and indicated
that “R[-]J.C.L. didn’t really relate to [Father] as his dad[.]”
N.T., 12/16/16, at 10. Rather, R[-]J.C.K. viewed Father as
“someone he visits” and with whom he had only a “casual
relationship, not a strong attachment,” although R[-]J.C.K. did
indicate that he enjoyed visiting Father “because he gets candy
and can play around and do what he wants.” N.T., 12/16/16, at
10, 12.
Dr. Rosenblum further testified that he received reports
from foster parents that after R[-]J.C.K.’s visits with Father, R[-
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]J.C.K. experienced “nightmares and sleep difficulties …
sometimes wetting his bed in response to visits.” More
specifically, according to Dr. Rosenblum, foster parents and R[-
]J.C.K.’s therapist reported to him that following visits with
Father, R[-]J.C.K. “struggled with a lot of trauma-related
symptoms … nightmare, sleep difficulties, fear of the dark and
closets and bugs, and having a lot of crying spells and difficulties
at the time of his visit[.]” N.T., 12/16/16[,] at 11. Dr.
Rosenblum indicated that he believed that various factors
contributed to R[-]J.C.K.’s behaviors, but testified that R[-]J.C.K.
“is definitely struggling with many symptoms consistent with
PTSD.” N.T., 12/16/16, at 14.
TCO at 7.
The court also discussed some of Dr. Rosenblum’s testimony that
related to L.K.’s relationship with foster parents and with Father. Specifically
the court stated that Dr. Rosenblum testified
that [L.K.] had “a very strong attachment to her aunt and uncle
[foster parents] whom she referred to as her mom and dad.”
N.T., 12/16/16, at 15. In contrast, with respect to Father whom
she referred to as her “other dad”, she stated, “I cry. I don’t
want to go to the visits” and indicated resistance to spending
time with him, although she had difficulty articulating her
reasons. Id. She did state, however, that she enjoyed visiting
Father because she “enjoys the candy and the games,” and Dr.
Rosenblum testified that L.K. “seemed to paint a mixed picture
of [Father] saying he’s nice but he’s also bad” although she did
assert “clearly … that she does not want to go” to visits with
Father.
Id. at 8.
The court then explained that since the time that it had denied CYF’s
first petition to terminate Father’s parental rights, CYF presented evidence
that
Father’s actions (or lack thereof) have hampered efforts at
reunification, and strained the already tenuous bond that
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children had with Father, as evidence by Father[’s] speaking
negatively of the foster parents to the children in a manner that
threatened the children’s sense of safety and stability and
negatively impacting their wellbeing. [] Moreover, despite
having the opportunity to give priority to the task of creating a
stable and secure environment for the children to reside with
him, Father has neglected to do so. This [c]ourt cannot wait
indefinitely for Father to make progress towards being able to
parent.
TCO at 14.
Accordingly, the court concluded that CYF carried its burden of proving
that grounds for the termination of Father’s parental rights existed and that
conditions for removal of the children could not be remedied in a reasonable
amount of time. The court also concluded that the termination best served
the needs and welfare of the children. We agree and note that our review
reveals that the record supports the court’s findings and conclusions. Father
has failed to take advantage of the opportunities provided to him and has
failed to convince this Court otherwise. Thus, we conclude that he is not
entitled to any relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
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