J-A18029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF C.G., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.G., NATURAL FATHER : : : : : : No. 345 WDA 2020
Appeal from the Decree Entered February 10, 2020 In the Court of Common Pleas of Butler County Orphans' Court at No(s): O.A. No. 66 of 2019S
IN RE: ADOPTION OF: C.G., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.G., NATURAL FATHER : : : : : No. 346 WDA 2020
Appeal from the Order Entered February 7, 2020 In the Court of Common Pleas of Butler County Civil Division at No(s): D.P. No. 39 of 2018
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 8, 2020
In this consolidated appeal, Appellant, A.G. (“Father”), appeals from the
February 7, 2020 Order that changed Child’s permanency goal to Adoption
and the February 10, 2020 Decree that terminated his parental rights to C.G.
(“Child”) after Butler County Children and Youth Services (“Agency”) indicated
Father as a perpetrator of child abuse against Child and Father failed to J-A18029-20
alleviate the ongoing safety threat by progressing to unsupervised visitation.
Upon careful review, we affirm.
PROCEDURAL AND FACTUAL HISTORY
The Honorable Kelley T.D. Streib has provided a thorough and accurate
factual and procedural history, which we adopt for purposes of this appeal.
See Findings of Fact, Opinion, and Order of Court, filed 2/10/20, at 1-24.1 In
sum, Father and B.G. (“Mother”)2 are parents to Child, who was born in
February 2018. Father and Mother never lived together; Father lives with his
parents (collectively, “Paternal Grandparents”), and Mother lives with her
mother (“Maternal Grandmother”). Father, who does not have any other
children, learned of Child’s birth when Child was two weeks old and began
visiting with Child at Mother’s house during the day. Mother taught Father
how to change Child’s diaper and give Child a bottle. She also showed Father
how to “bicycle” Child’s legs to help Child have a bowel movement. Mother
and Father discussed moving to a custody schedule where Father cared for
____________________________________________
1The Findings of Fact, Opinion, and Order of Court is time-stamped February 7, 2020, but appears on the docket on February 10, 2020. For the remainder of this Memorandum, we will refer to all filings by the date the filing appears on the docket. 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”).
2The trial court also terminated Mother’s parental rights to Child, and she is not a party in this appeal.
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Child every other weekend, and over the next two months, Father progressed
to three overnight “visits” with Child.
On Friday, April 27, 2018, in the evening, Father went to Mother and
Maternal Grandmother’s house to visit Child. Maternal Grandmother agreed
to watch Child while Father and Mother drove to the store to get prune juice
for two-month-old Child, who was allegedly experiencing constipation. During
the errand, Father and Mother got into a car accident.3 While Father took
Mother to the hospital, Paternal Grandparents took over caring for Child at
their house. Father arrived home early Saturday morning, after dropping
Mother off at her home, and went directly to sleep.
Around 10:00 AM, Paternal Grandmother woke up Father to care for
Child. Father repeatedly tried to contact Mother to return Child but could not
get in touch with her. Father did not have enough supplies for Child so late
in the afternoon he asked A.L.S. (“Paternal Aunt”), who also lived in the home,
to watch Child for approximately one hour while he went to the store to buy
diapers. On Saturday evening, Father was alone in the house with Child after
Paternal Grandparents and Paternal Aunt went out. They returned after
Father and Child had gone to sleep for the night.
Early on Sunday morning, Father changed Child’s clothes for the first
time and noticed bruising on Child’s abdomen. Father asked Paternal Aunt,
3 Child, who was home with Maternal Grandmother, was not in the car at the time of the accident.
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who is a nurse,4 to look at Child’s abdomen. She did not recommend that
Father take Child to the hospital; rather, she told Father to “watch” the
bruising and call Mother. Around noon, Father took Child to a family gathering
where he asked Paternal Grandmother to look at the bruising. Paternal
Grandmother was not overly concerned.
Father finally got in touch with Mother late on Sunday afternoon. He
returned Child to Mother’s care, and informed Mother about the bruising.
Several hours later, Mother expressed concern and Father drove Mother and
Child to the hospital, where hospital staff admitted Child after diagnosing him
with numerous non-accidental injuries.5
On May 1, 2018, the Agency obtained emergency custody of Child and
placed Child in foster care. Ultimately, upon investigation, the Agency ruled
out Mother and other family members and indicated Father as the perpetrator
of abuse against Child. The Agency based its decision on interviews with
Mother, Father, and family members, the timeline and Child’s injuries, Father’s
4 Paternal Aunt is not a nurse who specializes in pediatrics.
5 Specifically, hospital staff treated Child for large bruises to his chest and abdomen; petechiae, or broken blood vessels, on his left shoulder; subconjunctival hemorrhages, or broken blood vessels, in both eyes; a small abrasion to his forehead; seven bilateral rib fractures; a metaphyseal corner fracture in his proximal left fibula, or lower leg close to the knee; an irregularity on his proximal right fibula concerning for corner fracture; and an acute sublingual frenulum injury, or tear under his tongue.
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inconsistent statements, Father’s failure to seek immediate medical attention
for Child, and Father’s polygraph test results.6 Father initiated an appeal of
this decision, but did not follow through with the appeal process.
On June 27, 2018, the trial court adjudicated Child dependent by
agreement of the parties. Over the next twelve months, the trial court held a
dispositional review hearing, a status conference, and multiple permanency
review hearings. Father remained engaged in services, maintained
employment, maintained housing, completed anger management,
participated in a father mentor program, completed a parenting capacity
evaluation, and participated consistently in supervised or monitored7 visitation
with Child twice a week and one Saturday per month. Nevertheless,
throughout the pendency of the case, a safety threat remained because Father
was the indicated perpetrator of child abuse against Child. Significantly,
Father failed to progress to, or seek, visitation that was not supervised by
either the Agency or his family.
On July 23, 2019, when Child was seventeen months old, the Agency
filed a Petition for Involuntary Termination of Parental Rights (“TPR Petition”)
and subsequently filed a Motion for Goal Change.
6 Mother, Father, and other family members who were alone with Child submitted to polygraph testing concerning Child’s injuries. Father is the only person who did not pass the polygraph test.
7 Family members supervise the monitored visitation and a caseworker checks in once an hour.
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The trial court held hearings on the Motion for Goal Change and TPR
Petition on November 5, 2019, December 2, 2019, and January 7, 2020.
During the hearings, multiple witnesses testified regarding the events leading
up to Child’s hospitalization, Child’s injuries, and the services provided to
Father after Child’s placement. See Findings of Fact, Opinion, and Order of
Court, filed 2/10/20, at 7-11. Specifically, the trial court heard testimony
from Jennifer Clarke, M.D.; Eric Bernstein, Psy.D; Tanya Montgomery, Agency
caseworker; Kaitlyn McIntyre, Agency caseworker; Tina Yakamicki, Family
Pathways caseworker; Brenda Alter, Specialty Outreach Service (“SOS”)
executive director; Erin McCracken, SOS caseworker; Tiffany Crotzer, Agency
caseworker; Heather Kniess, Agency supervisor; Jarrod Sowa, SOS parent
mentor; Paternal Aunt; Paternal Grandmother; and Father.
Dr. Clarke, a physician in the Child Advocacy Center at Children’s
Hospital of Pittsburgh, testified that she conducted an inpatient consult when
Child arrived at the hospital. N.T., 11/5/19, at 16-17. She explained that
Child was fussy, but consolable, and verified that Child was diagnosed with
seven rib fractures, at least two leg fractures, broken blood vessels in both
eyes and on one shoulder, abdominal bruising, and a frenulum tear. Id. at
17-19, 26. Dr. Clarke testified that Child’s injuries were a result of physical
abuse, the injuries caused Child to experience substantial pain, and that Child
probably would have been fussy and would have had trouble feeding when the
injuries occurred. Id. at 19, 20, 26. Dr. Clarke stated that the broken blood
vessels in the eyes would have been caused by direct trauma or increased
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pressure on the chest or belly causing Child to struggle to breathe, the
petechiae by impact or grabbing, the rib injuries by direct trauma or
squeezing, and the leg fractures by forceful yanking or jerking. Id. at 27, 39,
40. Although Mother had reported to Dr. Clarke that the broken blood vessels
in Child’s eyes and shoulders resulted from Child struggling to have a bowel
movement, Dr. Clarke testified that a two-month-old Child could not generate
enough force to cause the broken blood vessels. Id. at 21, 27. Finally, Dr.
Clarke testified that the injuries had occurred within three days prior to Child’s
hospitalization on Sunday night, and were likely the result of more than one
occasion of physical abuse. Id. at 43.
Dr. Bernstein completed a Parenting Capacity Evaluation of Father and
a Bonding Evaluation. He testified that Father demonstrated adequate
parenting skills. Id. at 54-55. However, Dr. Bernstein expressed concern
over Father’s lack of understanding about the serious nature of Child’s injuries.
Id. at 56-57, 82-83. Finally, Dr. Bernstein stated that Child, who was almost
two years old at the time of the hearing, recognizes the foster parents as his
“psychological parents” and that a termination of Father’s parental rights
would not have a significant negative impact on Child. Id. at 58.
The Agency caseworkers testified, in sum, that Father complied with his
Family Service Plan objectives but a safety threat remained because Father
was an indicated perpetrator of abuse against Child.
Erin McCracken, one of the SOS caseworkers who supervised visits
between Father and Child, testified that Father consistently attended visits
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and the visits were appropriate. N.T., 12/2/19, at 8, 12, 28. Ms. McCracken
further testified that Father’s extended family always attended the visits that
occurred in the home, which began with Father’s visits supervised by SOS in
the home and then progressed to visits supervised by the Paternal
Grandparents in the home. She stated that she explained to Father that he
would need to progress toward frequent and longer visits with Child in the
community without family members around, and care for and maintain Child’s
safety without family members around. Although Father participated in a few
supervised community visits, both with and without family, SOS had concerns
because Father refused community visits several times without explanation.
Id. at 5-42. Ms. McCracken explained that when Father’s family is present,
they all provide care for Child. Id. at 40.
Mr. Sowa testified that he served as a parent mentor to Father, Father
was receptive to the mentoring, and Mr. Sowa did not observe Father having
any anger issues. Id. at 90-93.
Paternal Aunt testified that she has been a nurse for eight years but
does not treat children, that she is a mandated reporter, and that she
observed the bruises on Child’s stomach, but because Child did not seem like
he was in distress, she advised Father to just keep an eye on the bruises. Id.
at 102-118. Paternal Aunt further testified that she asked the Agency to
consider her as a placement resource for Child; the Agency evaluated her
home in January 2019; and the Agency informed her that she could not be a
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placement resource for Child because she did not advise Father to take Child
to hospital when she observed Child’s injuries. Id.
Paternal Grandmother testified that Father was the primary caretaker
during visits but the family helped sometimes; that she did not notice the
Child being fussy on the weekend in question; and that she never learned the
extent of Child’s injuries beyond the bruising. Id. at 119-144.
Father testified that he lives with his parents, he works for a construction
company, he participated in a father-mentoring program, and he completed
anger management. N.T., 1/7/20, at 5, 15-20. Father testified that he has
supervised or monitored visits with Child on Mondays from 1:30 PM to 7:00
PM, Thursdays from 4:00 PM to 7:00 PM, and one Saturday per month from
3:30 PM to 7:00 PM. Id. at 12-13. Father also testified that his family
members are usually present—including Paternal Grandparents, Paternal Aunt
and her husband, Father’s brother, and family friends—except Mondays until
4:00 PM, when it is just Father, Child, and a SOS caseworker at the visits. Id.
Father testified that during the visits, he is usually Child’s primary caretaker;
he plays with Child, puts Child down for a nap, and then the family typically
has a big family dinner. Id. at 14-15, 21. Father testified that he has
participated in several community visits with Child. Id. at 37-39, 52-53.
Father stated that on the weekend of April 27, 2018, he noticed bruising
on Child’s stomach on Sunday morning and was concerned, but did not
immediately take Child to the hospital because Father was not on Child’s birth
certificate and did not have Child’s medical information. Id. at 23, 35. When
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counsel asked if Father had performed the bicycle motion with Child’s legs that
weekend, Father invoked his Fifth Amendment right against self-incrimination.
Id. at 49-50. Father testified that he did not cause injuries to the Child and
had taken some steps to appeal his status as an indicated perpetrator of abuse
against Child. Id. at 41-42. Father stated, “I would like to get [Child] back.”
Id. at 45.
After considering the evidence and reviewing Briefs, the trial court
changed Child’s permanency goal to Adoption and terminated Father’s
parental rights to Child.
Father timely appealed. Both Father and the trial court complied with
Pa.R.A.P. 1925.
ISSUES RAISED ON APPEAL
Father raises the following issues for our review:
1. Did the [trial] court commit an error of law when it determined that the [the Agency] proved by clear and convincing evidence that [Father]’s parental rights should be terminated pursuant to [23 Pa.C.S. § 2511(a)(2), (5), and (8)].
2. Did the trial court abuse its discretion when it failed to find [Father] successfully alleviated the circumstances that led to the placement of [C]hild?
3. Did [the Agency] fail to show by clear and convincing evidence that safety concerns continued, thus the trial court abused its discretion in terminating [Father]’s parental rights?
4. Did the trial court commit an error of law when it determined that there was sufficient evidence to support a finding that the termination of parental rights served the best interest and welfare of [C]hild pursuant to [23 Pa.C.S. § 2511(b)]?
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5. Did the [trial] court commit an error of law when it determined that [the Agency] proved by clear and convincing evidence that the goal should be changed from Reunification to Adoption?
6. Did the trial court abuse its discretion in that it disregarded [Father]’s full compliance and full progress of [] Child’s Permanency Plan?
7. Did [the Agency] fail to show by clear and convincing evidence that safety concerns continued to exist and thus the trial court abused its discretion in changing the goal from Reunification to Adoption?
8. Did the trial court fail to consider all of the testimony and evidence before rendering its decision to change the goal from Reunification to Adoption?
9. Did [the Agency] fail to explore potential relatives of [C]hild as resources for [A]doption and/or permanency placement?
10. Did [the Agency] fail to provide proper services to alleviate the circumstances that led to the placement of [C]hild?
11. Did [the Agency] fail to provide reasonable efforts to reunify [C]hild with [Father]?
12. Did the trial court disregard that [Father] is ready, willing, and able to care for [C]hild pursuant to [In re M.L., 757 A.2d 849 (Pa. 2000)]?
13. Did the trial court fail to exclude certain evidence that could not and should not have been considered in rendering its decision to terminate [Father]’s parental rights and change the goal from Reunification to Adoption?8
Father’s Br. at 8-10 (reordered for ease of disposition).
LEGAL ANALYSIS
When we review a decision of trial court to terminate parental rights,
we must accept the findings of fact and credibility determinations of the trial
8Father has declined to pursue this issue on appeal. See Father’s Br. at 36- 37.
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court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
“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. (citation
omitted). “Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court's decision, the decree must stand.” In
re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citation omitted). We may
not reverse merely because the record could support a different result.
T.S.M., 71 A.3d at 267. We give great deference to the trial courts “that often
have first-hand observations of the parties spanning multiple hearings.” Id.
Moreover, “[t]he 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).
In addressing petitions to terminate parental rights involuntarily, the
Adoption Act requires the court to conduct a bifurcated analysis. See 23
Pa.C.S. § 2511(a) and (b). The court must first focus on the conduct of the
parent, and, if the party seeking termination presents clear and convincing
evidence that the parent’s conduct meets one of the grounds for termination
set forth in Section 2511(a), then the court will analyze whether termination
of parental rights will meet the needs and welfare of the child, i.e., the best
interests of the child, as provided in Section 2511(b). The court must examine
the existence of the child’s bond with the parent, if any, and the potential
effect on the child of severing such bond. In re L.M., 923 A.2d 505, 511 (Pa.
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Super. 2007). A parent’s basic constitutional right to the custody and rearing
of his child is converted, upon the failure to fulfill his parental duties, to the
child’s right to have proper parenting and fulfillment of the child’s potential in
a permanent, healthy, safe environment. In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
Instantly, in his first four issues, Father avers that the trial court abused
its discretion when it terminated his parental rights under multiple subsections
of 23 Pa.C.S. § 2511(a) and subsection (b). Father’s Br. at 31. We need only
agree with its decision as to any one subsection of Section 2511(a) and
subsection (b) in order to affirm the termination of parental rights. See In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004). For the following reasons,
we conclude that the trial court correctly determined that the Agency met its
burden of proof under 23 Pa.C.S. § 2511(a)(2) and (b).
Termination Pursuant to 23 Pa.C.S. § 2511(a)(2)
Section 2511(a)(2) provides for termination of parental rights where the
petitioner demonstrates by clear and convincing evidence that “[t]he 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); In re Adoption of S.P., 47 A.3d 817,
827 (Pa. 2012). The grounds for termination of parental rights under Section
2511(a)(2) due to parental incapacity are not limited to affirmative
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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).
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. Id. at 340. “Parental rights are not preserved by waiting for
a more suitable or convenient time to perform one's parental responsibilities
while others provide the child with his or her physical and emotional needs.”
B.,N.M., 856 A.2d at 855 (citation omitted). Rather, “[a] parent must utilize
all available resources to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path of maintaining
the parent-child relationship.” Id. (citation omitted).
Applying these principles, the trial court concluded that Father’s status as
an indicated perpetrator of child abuse against Child, which poses an ongoing
safety threat to Child, combined with Father’s reluctance to engage in
community visits with Child without his family present, rendered him incapable
of parenting Child and caused Child to be without essential parental care,
control, or subsistence for over two years. The trial court opined:
Father’s participation in services has not remedied the condition that caused Child to be removed from Mother and Father’s care. Child’s injuries are still unexplained. Father is still the indicated perpetrator of abuse, and prima facie evidence exists for this [c]ourt to find that Father committed [c]hild abuse against Child.
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Father has not presented evidence to rebut the presumption that he abused Child.[9]
. . . After [22] months in foster care, Father has not sufficiently remedied the conditions that led to Child’s removal. Father will not or cannot remedy the conditions and causes of the abuse and subsequent safety threat posed by Father’s status as a perpetrator of abuse. After [22] months, Child is still in foster care, and Father has nothing more than supervised and monitored visits. Father has declined opportunities for lesser supervision of his visits and visits in the community, which were intended to measure Father’s parenting ability and Child’s safety with Father [without Father’s family present]. Despite knowing the purpose of such suggestions from SOS and [the Agency], Father still declined to engage in lesser-supervised visits with Child in the community. Father has not made diligent efforts toward the prompt assumption of full parental duties . . . This constitutes a repeated and continued incapacity, abuse, neglect, or refusal that has caused Child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being, and Father cannot or will not remedy the conditions and causes of incapacity.
Trial Court Opinion, filed 3/16/20, at 28-29. The trial court also highlighted
that Father never requested a court-ordered decrease in the level of
supervision during his visitation with Child, and the court made a finding that
Father still does not understand the full extent of Child’s non-accidental
injuries. Id. at 28. Our review of the record supports the trial court’s findings.
9 Section 6381 of the Child Protective Services Law provides:
Evidence that a child has suffered child abuse of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child.
23 Pa.C.S. § 6381(d).
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We decline to usurp the trial court’s creditability determinations or reweigh
the evidence.
Father cites to In the Interest of N.M., 186 A.3d 998 (Pa. Super.
2018), to support his argument that the trial court abused its discretion in
terminating Father’s parental rights based solely the safety concern that
Father “cannot or will not explain the Child’s injuries.” Father’s Br. at 38-41.
This argument is unpersuasive.
In N.M., this Court vacated permanency review orders denying kinship
care placement, and, consequently vacated termination decrees, after
concluding that the trial court abused its discretion when it refused to consider
placing a child, who suffered unexplained rib fractures, in kinship care until
the parents explained the injuries. Id. at 1011-13.
Here, the trial court did not terminate Father’s parental rights based
solely on Father’s inability or unwillingness to explain Child’s injuries. Rather,
the trial court based its decision on the totality of the circumstances, including
Father’s undisputed status as an indicated perpetrator of abuse against Child,
Father’s failure to progress to unsupervised or unmonitored visitation, and the
amount of time that Child was in placement.
For the foregoing reasons, we conclude that the trial court did not abuse
its discretion when it terminated Father’s parental rights pursuant to Section
2511(a)(2).
Termination Pursuant to 23 Pa.C.S. § 2511(b)
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Father also contends that the trial court abused its discretion when it
determined that it was in Child’s best interest to terminate Father’s parental
rights pursuant to Section 2511(b). Father’s Br. at 10. We conclude,
however, that the evidence supports this finding of the trial court, and
therefore the court did not abuse its discretion.
With respect to Section 2511(b), our analysis focuses on the effect that
terminating the parental bond will have on the child. In particular, we review
whether “termination of parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted).
One major aspect of the “needs and welfare” analysis concerns the
nature and status of the emotional bond that the child has with the parent,
“with close attention paid to the effect on the child of permanently severing
any such bond.” In re Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super.
2018) (citation omitted). The fact that a child has a bond with a parent does
not preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that its
termination would destroy an existing, necessary, and beneficial relationship.
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Id. at 898. Moreover, the trial court may consider intangibles, such as the
love, comfort, security, and stability the child might have with the foster
parent. In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011). Ultimately, the
concern is the needs and welfare of the child. In re Z.P., 994 A.2d 1108,
1121 (Pa. Super. 2010).
Father avers that a bond exists between him and Child and that severing
that bond would prove detrimental to Child. Father’s Br. at 49-50. Father
argues that the testimony of Dr. Bernstein, who stated that Father and Child
have a “positive bond,” demonstrates that termination of Father’s parental
rights is not in Child’s best interest. Id. at 49.
Father fails, however, to recognize that the trial court also heard Dr.
Bernstein testify that the bond is “limited to a degree by the level of contact,
[F]ather’s limited responsibility for [C]hild’s needs, and the nature in which he
is participating with [C]hild in supervised visits[.]” N.T., 11/5/19, at 61.
Significantly, Dr. Bernstein characterized Father as “an ancillary support” in
Child’s life, and testified that Child viewed the foster parents, who are an
adoptive resource, as “psychological parents upon whom he relies for his
everyday needs and with whom he shares a strong bond.” Id. at 61-62.
The trial court credited Dr. Bernstein’s testimony that, despite a bond
between Father and Child, terminating Father’s parental rights would not have
a significant negative impact upon Child due to Child’s age, the fact that Child
has lived with foster parents since he was two months old, and the strong
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bond between Child and foster parents. Trial Ct. Op., 3/16/20, at 34-35. The
trial court opined:
Despite any bond between Child and Father, Child’s need for safety, stability, and permanency outweigh any potential harm to Child[] from the severing of Father’s parental rights. Stability and family permanence are critical to the health and welfare of dependent Children. . . There is no credible, record evidence that Child would be harmed by severing Father’s parental rights. There is credible record evidence that, due to his age, Child would not be significantly negatively impacted by severing the parental bond with Father.
Id. at 35. Based on these factors, the trial court concluded that terminating
Father’s parental rights would be in Child’s best interest. Id.
Our review of the record supports the factual findings of the trial court
and, once again, we decline to reweigh the evidence. The evidence supports
the trial court’s conclusion that terminating Father’s parental rights is in Child’s
best interest. Accordingly, we find no abuse of discretion.
Permanency Goal Change from Reunification to Adoption
In his next three issues, Father challenges the trial court’s decision to
change Child’s permanency goal from Reunification to Adoption. Father’s Br.
at 8-9. We find no abuse of discretion.
We review a trial court’s decision to change a child’s permanency goal
to Adoption for an abuse of discretion. In re R.J.T., 9 A.3d 1179, 1190 (Pa.
2010). In order to conclude that the trial court abused its discretion, this
Court “must determine that the court's judgment was manifestly
unreasonable, that the court did not apply the law, or that the court's action
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was a result of partiality, prejudice, bias or ill will, as shown by the record.”
Interest of H.J., 206 A.3d 22, 25 (Pa. Super. 2019) (citation omitted). Our
standard of review in dependency cases requires this Court “to accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record, but does not require the appellate court to accept
the lower court's inferences or conclusions of law.” R.J.T., 9 A.3d at 1190.
This Court is “not in a position to make the close calls based on fact-specific
determinations.” Id. Rather, “we must defer to the trial judges who see and
hear the parties and can determine the credibility to be placed on each witness
and, premised thereon, gauge the likelihood of the success of the current
permanency plan.” Id. Notably, even if this Court “would have made a
different conclusion based on the cold record, we are not in a position to
reweigh the evidence and the credibility determinations of the trial court.” Id.
The overarching purpose of the Juvenile Act, which governs goal change
requests, is “[t]o preserve the unity of the family whenever possible or to
provide another alternative permanent family when the unity of the family
cannot be maintained.” 42 Pa.C.S. § 6301(b)(1). At each dependency review
hearing, the trial court must consider, inter alia, the continuing necessity for
and appropriateness of the child's placement, the extent of compliance with
the permanency plan, the extent of progress made toward alleviating the
circumstances which necessitated the child’s placement, the appropriateness
and feasibility of the current placement goal for the child, the likely date the
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goal might be achieved, and the child’s safety. 42 Pa.C.S. § 6351(f). The
focus of goal change proceedings, like all dependency proceedings, is on “the
safety, permanency, and well-being of the child and the best interests of the
child must take precedence over all other considerations.” H.J., 206 A.3d at
25.
“[T]he agency has the burden to show [that] a goal change would serve
the child’s best interests[.]” In re R.M.G., 997 A.2d 339, 347 (Pa. Super.
2010) (citations omitted). If reunification with the child's parent or guardian
is not in the child’s best interest, the trial court may determine that adoption
is the appropriate permanency goal. H.J., 206 A.3d at 25; 42 Pa.C.S. §
6351(f.1)(2). Notably, “[a]doption may not be an appropriate
permanency goal if severing an existent parent-child bond would have a
detrimental effect on a child.” H.J., 206 A.3d at 25. Further, “[b]ecause the
focus is on the child's best interests, a goal change to adoption might be
appropriate, even when a parent substantially complies with a reunification
plan.” R.M.G., 997 A.2d at 347.
Father avers that the trial court abused its discretion when it changed
Child’s permanency goal from Reunification to Adoption after it had found
during a June 2019 permanency review hearing that Father had fully
progressed with Child’s permanency plan. Father’s Br. at 35. Father also
argues that the record does not support the trial court’s findings that safety
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concerns remain and that Father failed to request unsupervised visitation with
Child. Id. at 42-44.
As stated above, when deciding whether to change a child’s permanency
goal, the focus is on the child’s best interest rather than the parent’s
compliance. Accordingly, the trial court’s June 2019 finding that Father made
“full progress” on the permanency plan does not dictate that a goal of
Reunification is in Child’s best interest. See Permanency Review Order,
6/25/19. Rather, a court must consider the Section 6351 factors to determine
what is in child’s best interest, as the trial court did in this case. The trial
court opined:
As demonstrated by the findings of fact . . . this [c]ourt considered the necessity and appropriateness of the placement of Child, the extent of compliance with the service plan, the extent of progress towards alleviating the circumstances necessitating placement, the appropriateness of the current placement goal, the likely date the goal might be achieved, Child’s safety, and the length of time Child has been in foster care, ultimately finding that changing the goal from [R]eunification to [A]doption was appropriate as established by the evidence. . . . In dependency proceedings, the child’s safety is of paramount importance. In the instant matter, this Court found, at the permanency review hearing held contemporaneously with the hearing on the Petition to Terminate Parental Rights, that there was a current safety threat, in that Father was the indicated perpetrator of physical abuse of Child, and that neither Child nor Father had protective capacities to compensate for the safety threat.
Trial Ct. Op., filed 3/23/20, at 37, 39. The trial court also found that Father
was not ready to have unsupervised parenting time. That finding is supported
by testimony that Father repeatedly declined the opportunity for visits with
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Child in the community, without assistance or “supervision” from family
members. Id. at 40; N.T. 12/2/19, at 5-42. The trial court further opined:
There was no evidence to indicate when he might be ready and/or once ready, how much longer until he was ready and able to have full physical custody of Child. . . . Child needs permanency, and the current permanency goal of [R]eunification with Father was not imminent. The record supports by clear and convincing evidence the goal change to [A]doption.
Trial Ct. Op., filed 3/23/20, at 40. The record supports the trial court’s findings
and we find no abuse of discretion.
Trial Court’s Consideration of All of the Evidence
In his eighth issue, Father contends, for the first time on appeal, that
the trial court failed to consider all of the evidence presented at the three-day
goal change and termination hearings, as evidenced by its signing the goal
change order on December 2, 2019, after the second hearing, which it
ultimately filed on February 7, 2020, after the final hearing. Father’s Br. at 8.
This issue is waived. See Pa.R.A.P 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Relatives as Placement Resources
In his ninth issue, Father avers that the Agency failed to explore Child’s
relatives as placement resources. Father’s Br. at 44. This issue is meritless,
as the record reflects that, in fact, the Agency did consider the Paternal Aunt
as a placement resource but could not recommend her. The trial court opined:
[A]t the time Child was placed, Child could not have been placed with either parent, Maternal Grandmother, Paternal Grandmother, Paternal Grandfather, Paternal Aunt, or Paternal Uncle, as all of
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those relative had been left alone with Child during the time period when he was injured. While Paternal Aunt testified that she requested Child be placed with her in January 2019, she was not considered due to the concerns that [the Agency] had about her failure to recommend medical treatment for Child and Child’s bond with the foster parents. Prior to her [January 2019] request, Paternal Aunt was not eligible to be a placement option for Child when she lived in the same home as Father. Child had been placed with the foster parents for almost a year when Paternal Aunt stated that she finally moved out of Paternal Grandparents’ home. By that point, Child was bonded with the foster family, and it was not in Child’s best interest to be moved.
Trial. Ct. Op., filed 3/23/20, at 47. The record supports the trial court’s
findings and we find no abuse of discretion.
Agency Services and Reasonable Efforts
In his next two issues, Father baldly avers that the Agency failed to
provide proper services to alleviate the circumstances that led to the
placement of Child and that the Agency failed to provide reasonable efforts to
reunify Child with Father. Father’s Br. at 9. Because of Father’s lack of
specificity, the trial court was unable to identify exactly what issues the court
needed to address on appeal. See Trial Ct. Op., 3/23/20, at 45-48. Thus, we
find both issues waived. See Commonwealth v. Dowling, 778 A.2d 683,
686-87 (Pa. Super. 2001) (citations omitted) (explaining “[w]hen a court has
to guess what issues an appellant is appealing, that is not enough for
meaningful review” and holding that waiver of the issue is appropriate).
In re M.L.
In Father’s final issue, he avers that the trial court disregarded that he
is ready, willing, and able to care for Child pursuant to M.L., supra. Father’s
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Br. at 44. In his two-sentence argument, Father incorporates the entirety of
his Brief but fails to include any discussion of M.L. or how that case relates to
Father and Child, thus hampering our review. “This Court will not act as
counsel and will not develop arguments on behalf of an appellant.”
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).
Accordingly, we conclude this issue is waived.
CONCLUSION
In conclusion, the trial court did not abuse its discretion when it changed
Child’s permanency goal to Adoption and terminated Father’s parental rights.
Accordingly, we affirm.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/08/2020
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