J-S79018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.R.N.L., JR., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.L., FATHER :
:
:
:
: No. 2333 EDA 2017
Appeal from the Order Entered July 14, 2017
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000945-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 04, 2018
D.L. (“Father”) appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, terminating his parental rights to his minor child,
D.R.N.L, Jr. (“Child”) (born 9/14), pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2)
and (b). After our review, we affirm.1
The trial court summarized the facts and procedural history as follows:
On September 18, 2014, the Department of Human Services
(“DHS”) received a General Protective Services (“GPS”) report
alleged that Child’s mother (“Mother”) tested positive for
marijuana at Child’s birth. The GPS report stated that mother
admitted that she ate three “weed brownies” for nausea and lack
of appetite and that she received limited prenatal care. Thereafter,
DHS determined that Father and Mother did not co[habitate] and
that Father resided with his roommate in a supervised
independent living apartment through Valley Youth House. On
September 19, 2014, DHS inspected Father’s apartment and
determined that the apartment had operable utilities and
____________________________________________
1Mother’s parental rights were previously terminated. See N.T. Termination
Hearing, 7/14/17, at 55-56. She is not a party to this appeal.
J-S79018-17
appropriate sleeping arrangements but that there were rodent
droppings on the kitchen counter and the kitchen sink was clogged
and filled with dirty dishes. Additionally, DHS was unable to
approve Father’s apartment because Father’s roommate was
determined to be the perpetrator in a Child Protective Services
(“CPS”) report for the sexual abuse of a three year old child. . . .
On September 20, 2017, DHS determined that the home where
Mother intended to stay with Child was not appropriate due to
limited space. On September 22, 2014, Child was discharged
from the hospital to DHS’ care. DHS obtained an Order for
Protective Custody (“OPC”) to ensure Child’s safety and place him
in foster care through Asociacion Puertoriquenos en Marcha
(“APM”). At the shelter care hearing held on September 24, 2014,
the OPC was lifted and the temporary commitment to the DHS
was ordered to stand. At the adjudicatory hearing on October 3,
2014, before the Honorable Jonathan Irvine, the [c]ourt
discharged the temporary commitment and adjudicated the Child
dependent and referred Father and Mother to the Achieving
Reunification Center (“ARC”) program. DHS held routine Family
Service Plan (“FSP”) meetings for Father and Mother throughout
this case. The FSP objectives for the parents were for them to[:]
(1) maintain sobriety and to successfully complete drug and
alcohol treatment; (2) to provide consistent negative random drug
screens; (3) to successfully complete mental health treatment;
(4) to successfully complete a parenting program; (5) to obtain
housing and (6) to visit the Child. On December 15, 2015, Father
tested positive for benzodiazepine at very high levels at Family
Court. On March 15, 2016, Father tested positive for
benzodiazepine at Family Court. On May 24, 2016, Father tested
positive for benzodiazepine and marijuana at Family Court. Father
was scheduled for an intake appointment at Net-West on June 6,
2016. Father did not attend. Father was never able to secure
housing.
Trial Court Opinion, 9/6/17, at 2-4.
On October 11, 2016, DHS filed a petition to involuntarily terminate
Father’s parental rights to Child. The court held a hearing on July 14, 2017
and heard testimony from several witnesses, including Bill Henning, DHS
-2-
J-S79018-17
social worker and case manager, Maureen Pie’, Guardian ad litem (“GAL”),2
Andre Briggs, CUA case manager, and Father.
At the hearing, it was established that Child had been in placement with,
maternal cousin and her husband, a pre-adoptive home in Atlanta, Georgia,
for 33 months; all of Child’s physical, emotional and developmental needs
were being met by the foster parents. N.T. Termination Hearing, 7/14/17, at
21, 50-52. Additionally, DHS established that Father failed to meet his FSP
objectives; drugs and alcohol have been a concern for 33 months and Father
failed to establish that he has successfully completed the required drug and
alcohol and mental health treatment. Id. at 15-17, 52. Father completed
only one of five drug and alcohol screens, and admitted to prior relapses. Id.
at 15-16, 28, 46. Further, Father was unable to provide verification as to the
condition of his housing and could provide no proof of adequate housing. Id.
at 17.
The court also heard from the GAL, who testified that “it’s just taking
too long for dad to get it together.” Id. at 54. The GAL did note that Father
and Child have a good relationship when they are together, however Child “is
three years old, and he needs a permanent home immediately.” Id. She
also stated that she was “heartened” by the fact that Child’s “current caregiver
is open and willing to allow [Father] to continue to visit.” Id.
____________________________________________
2 We note the GAL did not file a brief in this matter.
-3-
J-S79018-17
Father testified that he was currently working as a home health
caregiver for his grandmother. Id. at 38. He stated that he had been
prescribed Xanax, which explained his positive test for benzodiazepines. Id.
at 38-39. However, Father was unable to produce documentation indicating
that he was attending or had completed mental health treatment and/or drug
and alcohol treatment. Id. at 39-40. Father also testified to his version of
the events that led to his arrest following an assault on Mother that left her
with two black eyes, stating that it was in fact his ex-girlfriend that had
punched Mother, but that Mother said he did it. Id. at 44.
At the conclusion of the hearing, the court noted on the record that Child
had been in placement since birth, for over two and one-half years, that it did
not find Father’s testimony credible, and that Father has failed, despite being
given every chance, “to rectify the situation and meet his goals.” Id. at 55-
56. The court also noted that Father failed to establish that he had secured
adequate housing, finances or child care arrangements. Id. at 57. The court,
-4-
J-S79018-17
therefore, terminated Father’s parental rights under sections 2511(a)(1),3
(a)(2)4 and (b).5
On appeal, Father raises the following issues:
1. Whether the trial court committed reversible error, when it
involuntarily terminated Father’s parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act, 23 Pa.C.S.A. §§
2511(a)(1) and (2)?
2. Whether the trial court erred because the evidence was
overwhelming and undisputed that Father demonstrated a
genuine interest and sincere, persistent, and unrelenting
effort to maintain a parent-child relationship with Child?
3. Whether the trial court committed reversible error when it
involuntarily terminated Father’s parental rights without
giving primary consideration to the effect that the
termination would have on the developmental, physical and
emotional needs of Child as required by the Adoption Act,
23 Pa.C.S. § 2511(b).
Appellant’s Brief, at 8.
____________________________________________
3 “The parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a settled
purpose of relinquishing parental claim to a child or has refused or failed to
perform parental duties.” 23 Pa.C.S. § 2511(a)(1).
4 “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.” 23 Pa.C.S. § 2511(a)(2).
5 “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.” 23
Pa.C.S. § 2511(b)
-5-
J-S79018-17
In cases involving termination of parental rights, our standard of review
is limited to determining “whether the order of the trial court is supported by
competent evidence, and whether the trial court gave adequate consideration
to the effect of such a decree on the welfare of the child.” In re Z.P., 994
A.2d 1108, 1115 (Pa. Super. 2010) (quoting In re I.J., 972 A.2d 5, 8 (Pa.
Super. 2009)).
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
stand. . . . We must employ a broad, comprehensive review of
the record in order to determine whether the trial court’s decision
is supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc).
Furthermore, we note that the trial court, as the finder of fact, is
the sole determiner of the credibility of witnesses and all conflicts
in testimony are to be resolved by [the] finder of fact. The burden
of proof is on the party seeking termination to establish by clear
and convincing evidence the existence of grounds for doing so.
The standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of
the truth of the precise facts in issue. We may uphold a
termination decision if any proper basis exists for the result
reached. If the court’s findings are supported by competent
evidence, we must affirm the court’s decision, even if the record
could support an opposite result.
In re Z.P., supra at 1115-16 (internal quotations and citations omitted). If
the court finds grounds for termination under the statute have been
established by clear and convincing evidence, 23 Pa.C.S. § 2511(a), the court
must then consider the developmental, physical and emotional needs and
welfare of the child and determine whether severing the parent-child
-6-
J-S79018-17
relationship is in the child’s best interests. See 23 Pa.C.S. § 2511(b). See
also In re: Adoption of T.B.B., 835 A.2d 387 (Pa. Super. 2003).
Parental rights may be involuntarily terminated where any one
subsection of section 2511(a) is satisfied, along with consideration of the
provisions in subsection 2511(b). In re Z.P., supra at 1117. Initially, the
focus is on the parent’s conduct. In re L.M., 923 A.2d 505, 511 (Pa. Super.
2007). The party seeking termination has the burden of proving 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.” Id. (internal citations omitted).
Further, the statute “outlines certain irreducible minimum requirements of
care that parents must provide for their children, and a parent who cannot or
will not meet the requirements within a reasonable time following intervention
by the state, may properly be considered unfit and have his parental rights
terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001).
After our review of the record, we conclude that there is clear and
convincing evidence to support the court’s determination that Father has failed
to perform parental duties for 33 months, that he is incapable of parenting
Child, that Child had been left without proper parental care and control for 33
months, and that Father cannot, or will not, remedy his parental incapacity.
-7-
J-S79018-17
23 Pa.C.S. § 2511(a)(1). Further, DHS presented clear and convincing
evidence that Father has failed to demonstrate sufficient progress in
remedying the circumstances which led to Child’s placement, nor is there any
indication that he could remedy such circumstances in the foreseeable future,
even with continued services in place. The evidence shows that Father was
unwilling to actively and meaningfully participate in the services offered by
DHS. 23 Pa.C.S. § 2511(a)(2). We discern no abuse of discretion. In re
Adoption of S.P., 47 A.3d at 826-27.
Next, we consider whether the court abused its discretion by terminating
Father’s parental rights pursuant to section 2511(b). See In re Adoption of
C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). This Court has
stated that the focus in terminating parental rights under section 2511(a) is
on the parent, but under section 2511(b), our focus is on the child. Id. at
1008. In reviewing the evidence in support of termination under section
2511(b), our Supreme Court has stated:
[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” 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.
-8-
J-S79018-17
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013). Our Supreme Court has
explained that “the mere existence of a bond or attachment of a child to a
parent will not necessarily result in the denial of a termination petition.” Id.
at 267. “Common sense dictates that courts considering termination
must also consider whether the children are in a pre-adoptive home
and whether they have a bond with their foster parents.” Id. at 268
(emphasis added). Moreover, in weighing the bond considerations pursuant
to section 2511(b), “courts must keep the ticking clock of childhood ever in
mind. Children are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When courts fail . . .
the result, all too often, is catastrophically maladjusted children.” Id. at 269.
Here, there was evidence of a developing bond between Father and
Child. However, with respect to Child’s placement, Henning, the social worker
and case manager, testified that foster mother has a “loving, nurturing,
maternal bond” with Child, and she provides Child with love, safety, security
and support. N.T. 7/14/17, at 6-7. Additionally, Child’s foster parents, who
are a pre-adoptive resource, have cared for Child all of his life and they provide
Child with all of his medical, physical and developmental needs. Id. Henning
also testified that he saw no harm to Child as a result of termination of Father’s
parental rights, noting that at the time of the hearing, Father had not seen
Child for two months. Id. at 22. See In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010) (in conducting bonding analysis, court is not required to use
expert testimony, but may rely on testimony of social workers and
-9-
J-S79018-17
caseworkers). As we stated in Z.P., a child’s life “simply cannot be put on
hold in the hope that [Father] will summon the ability to handle the
responsibilities of parenting.” Id. at 1125 (citation omitted). 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 supports the court’s finding that termination
would not cause Child irreparable harm and that termination was in Child’s
best interests. We agree with the trial court’s determination that permanency
will best serve the developmental, physical and emotional needs and welfare
of Child, and that it is in Child’s best interest to terminate Father’s parental
rights. 23 Pa.C.S. § 2511(b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2018
- 10 -