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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: E.H., III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.N. : No. 826 MDA 2017
Appeal from the Decree April 12, 2017
in the Court of Common Pleas of Franklin County Orphans' Court
at No(s): 9-Adopt-2017
BEFORE: STABILE, MOULTON, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 20, 2017
M.N. (Father) appeals from the decree entered April 12, 2017, in the
Court of Common Pleas of Franklin County, which terminated involuntarily
his parental rights to his minor son, E.H., III (Child), born in February 2016.1
We affirm.
We summarize the relevant factual and procedural history of this
matter as follows. Child was removed from Mother’s care on March 4, 2016,
pursuant to an order for emergency protective custody. N.T., 4/11/2017, at
28-30; Petitioner’s Exhibit 1 (Order for Emergency Protective Custody) at 2.
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* Retired Senior Judge assigned to the Superior Court.
1 Child’s mother, D.L. (Mother), executed a consent to adoption form on
April 10, 2017. N.T., 4/11/2017, at 27. The record does not reveal whether
the orphans’ court ultimately confirmed Mother’s consent and terminated her
parental rights.
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Child was removed due to concerns regarding Mother’s mental health, as
well as her lack of support, housing, and parenting skills. N.T., 4/11/2017,
at 29. Child was adjudicated dependent by order dated April 18, 2016.
Petitioner’s Exhibit 4 (Master’s Recommendation for Adjudication and
Disposition – Child Dependent). Franklin County Children and Youth Service
(“CYS”) initially believed Child’s father to be E.H., II. See, e.g., Petitioner’s
Exhibit 2 (Dependency Petition) at 3, 6. However, Father was established as
the biological father of Child via paternity testing on April 29, 2016.
Petitioner’s Exhibit 11 (DNA Test Report).
On March 13, 2017, CYS filed a petition to terminate involuntarily
Father’s parental rights to Child. The orphans’ court conducted a
termination hearing on April 11, 2017. Following the hearing, on April 12,
2017, the court entered a decree terminating Father’s parental rights.
Father timely filed a notice of appeal on May 11, 2017, along with a concise
statement of errors complained of on appeal.
Father now raises the following issues for our review.
1. Was there clear and convincing evidence presented at trial to
establish that Father had evidenced a settled purpose of
relinquishing parental claim to [Child] or that he refused or failed
to perform parental duties for six months immediately prior to
the filing of the petition?
2. Was there clear and convincing evidence to show that there
was a repeated and continued incapacity, abuse, neglect or
refusal of Father that has caused [Child] to be without essential
care, control or subsistence necessary for his physical or mental
well-being and the conditions and causes of the incapacity,
abuse or neglect or refusal cannot or will not be remedied by
Father[?]
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3. Was there clear and convincing evidence to determine that
[Child] will not be harmed by the severing of the bond with
Father?
Father’s Brief at 19 (unnecessary capitalization, orphans’ court answers, and
suggested answers omitted).
We consider Father’s issues mindful of 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 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, 23 Pa.C.S. §§ 2101-2938, 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 [subs]ection 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 [subs]ection
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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).
In this case, the orphans’ court terminated Father’s parental rights
pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need only
agree with the court as to any one subsection of Section 2511(a), as well as
subsection 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). Here, we analyze the court’s decision to
terminate under subsections 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
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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 orphans’ 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.
§ 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).
Instantly, the orphans’ court found that Father is incapable of
parenting Child, and that Father cannot, or will not, remedy his parental
incapacity. Orphans’ Court Opinion, 6/9/2017, at 20-22. In so doing, the
court determined that Father remains unable to meet Child’s basic needs.
Id. Specifically, the court found that Father was discharged from a parenting
program due to his lack of progress and that Father’s home remains unsafe
for Child. Id. at 21-22. The court rejected Father’s claim that he had been
searching for a new home unsuccessfully for at least five months. Id.
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Father argues that his only income comes from Social Security, which
renders his lack of appropriate housing beyond his control. Father’s Brief at
29; see 23 Pa.C.S. § 2511(b) (providing that a parent’s rights may not be
terminated “solely on the basis of environmental factors such as inadequate
housing, … if found to be beyond the control of the parent”). Father argues
that he attempted to prepare his home for Child, but that his landlord
refused to make repairs, and refused to pay for an exterminator to ensure
that the home is free of bedbugs. Father’s Brief at 25-26. Father further
argues that he was limited in his ability to participate in parenting instruction
because his housing situation prevented him from having visits anywhere
but in a public setting. Id.
Our review of the record supports the findings of the orphans’ court.
During the termination hearing, CYS presented the testimony of Alternative
Behavior Consultants (ABC) program director, Emily Bakner. Ms. Bakner
testified that Father participated in a parenting program through ABC from
August 5, 2016 until October 21, 2016. N.T., 4/11/2017, at 5. Ms. Bakner
explained that Father was discharged from the program due to his lack of
progress, and opined that Father would not be capable of making sufficient
progress in order to meet Child’s needs in the future. Id. at 6-9. Ms.
Bakner testified that Father often ignored or “laughed off” the directions
provided to him by his parent educator. Id. at 23. While she admitted that
Father sometimes complied with these directions, she testified that he “was
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very inconsistent.” Id. Ms. Bakner described Father’s parenting deficits as
follows.
[Father] was able to verbalize different safety concerns.
Like if the parent educator would leave the room, [Father] could
verbalize that he needed to place [Child] in a safe place, such as
a bassinet or a Pack-N-Play, or in a particular area on the floor.
However, [Father] needed multiple prompts in order to perform
this. He would leave [Child] on a changing table to retrieve a
toy. [Father] could verbalize that he knew he wasn’t to leave
[Child] on that changing table, but multiple times throughout the
skills sessions, he would do so. So these are just a few of the
safety concerns.
***
He had a real hard time with structure and routine. He
was not able to pick up on [Child’s] cues [and] determin[e] what
his needs were, such as being hungry or just needing comfort.
[Father], more or less, went on a time line. If [Child] needs to
eat every two hours, at exactly two hours, [Father] was going to
feed him, whether [Child] was showing those signs or not. And
as [Child] grew, of course, his needs changed, as far as the
amount [and type of need], and the time line, and being able to
pick up on [Child’s] cues. And without prompts, [Father] was
unable to do so.
***
The progress that [Father] did show, … was his ability to
verbalize. Some of the one-on-one sessions that he had with
the parent educator, he did retain some of the knowledge. He
just wasn’t able to demonstrate what he had learned. He did
learn how to make a bottle, and that was good, and he did show
the ability to change a diaper.
Id. at 7-8.
Ms. Bakner further testified that Father lacks life skills. Id. at 13. Ms.
Bakner explained that Father had difficulty maintaining a healthy lifestyle for
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himself, and had no motivation to improve. Id. Father exhibited poor
hygiene and appeared “very disheveled” during his visits with Child. Id. at
18. Father also reported that he often “would stay up until 3:00, 4:00, 5:00
in the morning playing video games…. This was something that he was not
willing to give up.” Id.
CYS also presented the testimony of caseworker, Caitlin Smith.
Concerning Father’s home, Ms. Smith testified that she made at least twelve
attempts to visit the home during Child’s dependency, but that “[n]obody
would answer the door. There [were] times where [she] could hear
somebody in the home. [She] wasn’t aware if they could hear [her]
knocking or they just didn’t want to open the door.” Id. at 34-35. Ms.
Smith even scheduled approximately two visits with Father in advance, but
Father failed to keep the appointments. Id. at 35. Ms. Smith finally gained
access to Father’s home in March 2017, when she served Father with notice
of the termination hearing. Id. at 33, 36. Ms. Smith found Father’s home
to be cluttered. Id. at 37. She explained, among other things, that Father
had a rabbit, a cat, and two dogs, and that there were various items lying on
the floor, including pots, pans, and cleaning utensils. Id. at 57-58. In
addition, Father acknowledged having bedbugs and cockroaches in the
home, and “that he [was] having trouble with an exterminator. The
exterminator that the landlord had come out was unable to treat the home
because of the amount of clutter and debris in the home.” Id. at 35.
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Thus, the record confirms that Father is incapable of parenting Child,
and that Father cannot, or will not, remedy his parental incapacity. When
presented with the opportunity to learn appropriate parenting skills, Father
rejected much of the instruction offered to him, and made little progress.
Moreover, Father exhibited an unwillingness to adjust his lifestyle in order to
provide for Child’s needs. As this Court has stated, “a child’s life cannot be
held in abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006).
In addition, Father lacks appropriate housing. Father failed to resolve
his pest issue, and Father’s home remains unsafe. During the termination
hearing, Father acknowledged that his landlord sent an exterminator to his
home twice, but that the exterminator refused to treat the home because it
was too cluttered. N.T., 4/11/2017, at 63-64. After the second failed
attempt, the landlord refused to pay for further exterminators. Id. at 64.
Father further acknowledged that his home is in need of repairs and would
be dangerous for Child. Id. at 65, 77. While Father claimed that he had
been searching for a new home since the previous year, the court rejected
this testimony as incredible. Id. at 77. Thus, Father’s lack of appropriate
housing was not beyond his control. For all of the forgoing reasons, we
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conclude that the court did not abuse its discretion by terminating Father’s
parental rights pursuant to subsection 2511(a)(2).
We next consider whether the orphans’ court abused its discretion by
terminating Father’s parental rights pursuant to subsection 2511(b). We
have discussed our analysis under subsection 2511(b) as follows.
[Subs]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [subs]ection 2511(b) does not explicitly require a
bonding analysis and the term bond is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a parent’s
emotional bond with his or her child is a major aspect of the
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Here, the orphans’ court concluded that terminating Father’s parental
rights would best serve Child’s needs and welfare, so that Child may
continue to benefit from the permanency, security, and stability provided by
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his foster parents. Orphans’ Court Opinion, 6/9/2017, at 28-29. The court
found that Child’s relationship with Father is “minimal, even superficial, at
best,” that Child does not share a parent/child bond with Father, and that
Child instead is bonded with his foster parents. Id. at 29. The court further
found that Child will suffer no lasting effects if Father’s parental rights are
terminated. Id.
Father argues that the orphans’ court cannot terminate his parental
rights simply because Child’s foster family is “better” than his biological
family. Father’s Brief at 26-27. Father further argues that Child is bonded
to him and will be harmed if his parental rights are terminated. Id. at 27.
Father contends that, since Child is too young to understand the concept of
adoption, providing Father with more time to achieve reunification will not
harm Child, but will actually help him by giving him every opportunity to be
reunified with his biological family. Id. at 27-28.
We again discern no abuse of discretion. Ms. Bakner testified that
Child did not appear to recognize Father as a parental figure. N.T.,
4/11/2017, at 12. During their visits together, Child would look to Father’s
parenting instructor, rather than Father, for comfort. Id. at 12. Ms. Smith
further testified that Father made little effort to bond with Child. Id. at 24.
She explained,
We were trying to ensure that bond by giving [Father]
prompts and guidance in how to hold, how to get on the floor
and play, how to engage, how to interact, and [Father] was very
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stand[-]offish. Most times, he wanted to sit on the couch and
watch [Child] play. He did say, “I love you, son” but it was very
disconnected.
Id. In contrast, Ms. Bakner testified that Child is bonded with his foster
mother. Id. at 12. Child’s demeanor with his foster mother is much
different than his demeanor with Father; while Child is “very withdrawn”
during his visits with Father, Child reaches for his foster mother, is active,
playful, and communicates verbally. Id. at 25.
Thus, the record supports the finding of the orphans’ court that Child’s
needs and welfare will best be served by terminating Father’s parental
rights. Contrary to Father’s argument on appeal, it is clear that the court did
not terminate his parental rights merely because it believed that Child’s
foster family is “better.” Father is incapable of caring for Child and will not
be capable at any point in the foreseeable future. Moreover, Child has never
lived with Father, and appears to have no parental connection to him. Child
is bonded with his foster mother, and terminating Father’s parental rights
will allow Child to achieve permanence and stability. It was well within the
court’s discretion to conclude that Child’s life should not be put on hold any
longer when reunification with Father is not a realistic option, and when
Child will not suffer any emotional distress if his relationship with Father is
ended.
Based on the foregoing, we conclude that the orphans’ court did not
abuse its discretion by terminating Father’s parental rights to Child
involuntarily. Therefore, we affirm the court’s April 12, 2017 decree.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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In Re: Adoption of: E.H., III Appeal of: M.N.
Combined Opinion