In Re: A.M.R., a Minor Appeal of: D.S.R., Jr.

• Court: Superior Court of Pennsylvania
• Decided: July 12, 2024
• Docket: 1687 MDA 2023
• Status: Unpublished

Opinion

J-S19031-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: A.M.R., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: D.S.R., JR., FATHER : : : : : : No. 1687 MDA 2023

Appeal from the Decree Entered November 14, 2023 In the Court of Common Pleas of Tioga County Orphans' Court at No(s): 60 OC 2023

BEFORE: DUBOW, J., BECK, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JULY 12, 2024

D.S.R., Jr. (“Father”) appeals from the decree entered November 14,

2023, in the Tioga County Court of Common Pleas, involuntarily terminating

his parental rights to his daughter, A.M.R. (“Child”), born in December 2013.1

After review, we affirm.

We summarize the relevant facts and procedural history, as follows. The

Tioga County Department of Human Services (“DHS”) filed for emergency

protective custody of Child on April 15, 2021, based upon allegations against

Parents concerning substance abuse and domestic violence. See N.T.,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 As best we can discern from the certified record, the parental rights of Child’s

mother, J.P. (“Mother”) (collectively with Father, “Parents”), have not been terminated, and she maintains supervised visitation with Child. See N.T., 10/31/2023, at 14. J-S19031-24

10/31/2023, at 45. The same day, the court granted DHS’s petition and

placed Child, then seven years old, in emergency foster care. See id. The

following day, Child was returned to Father’s care. However, three days later,

she was removed again because Father forgot to pick her up from school. See

id. at 45-46. Contemporaneous to Child’s second removal, DHS found illicit

substances and firearms on a table within Child’s reach in Father’s home and

learned of concerns regarding Father’s mental health. See id. at 46.

On May 6, 2021, the court adjudicated Child dependent and learned of

additional concerns regarding educational neglect due to chronic truancy. See

id. at 46-47. At a dispositional hearing on May 25, 2021, in furtherance of

reunification, the court ordered Father to (1) submit to drug and alcohol

assessments; (2) complete a psychological evaluation and follow any resulting

recommendations for treatment; and, as best we can discern, (3) attend a

parenting course. See id. at 48.

During the initial permanency review period, from May 2021 to August

2021, the caseworker at the time, Cody Losinger, testified that there were

concerns that Father had sexually abused Child, or was “grooming” her for

future abuse. See id. at 48-49. Primarily, Mr. Losinger testified that, during

two visits to Father’s home, he saw Child in Father’s bed. See id. at 57, 60-

61. On one occasion in December 2021, Child was in his bed wearing merely

a t-shirt and underwear. See id. Mr. Losinger also noted that during visits

he was perturbed by Father’s physical contact with Child. See id. at 49. He

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observed Father touching Child with inappropriate affection, consistently

sitting Child on his lap, and rubbing Child’s back, arms, and legs. See id. at

48-49. Mr. Losinger reported that he discussed the concerns with Father, who

“did tone it down.” See id.

On November 23, 2021, the court found Father to be in substantial

compliance with the above-noted objectives. The court also concluded that

Father had made substantial progress in alleviating the circumstances that

brought Child into care because he was meeting with his service providers,

had completed a psychological evaluation,2 and had obtained employment.

See id. at 51-55. Therefore, the court ordered physical custody of Child to

revert to Father. The court, however, also entered additional orders which

required Father to leave Child with approved caregivers and permitted DHS

unfettered access to Child. See id. at 52.

In March 2022, the court terminated judicial supervision of the family.

Nonetheless, Mr. Losinger reported that DHS opted to keep the case open to

ensure Child’s safety and well-being. See id. at 55. Eventually, Mr. Losinger

averred that DHS once again began receiving reports regarding Child’s

truancy, lack of appropriate parental supervision, and indications that Father

had relapsed. See id. at 56. When approached by DHS, Mr. Losinger reported

2 The psychological evaluation concluded that Father should engage in individual therapy. Father never complied with the recommendation. See N.T., 10/31/2023, at 53-54.

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that Father became aggressive and would not allow Mr. Losinger access to

Child. See id. In August 2022, Father’s attorney sent a letter to DHS

indicating his unwillingness to continue participating in services. See id. at

57-58. DHS briefly visited Father one more time on September 15, 2022, and

subsequently closed the case. See id. at 59-60.

Thereafter, on March 20, 2023, DHS was once again made aware of

truancy concerns for Child, by then nine years old, as she had already missed

more than thirty-seven school days, most of them “unlawful.” See id. at 73;

see also DHS Exhibit 7, Child’s Attendance Portfolio. On March 27, 2023,

DHS received a Child Protective Services (“CPS”) report. See N.T.,

10/31/2023, at 73. The report alleged that Father perpetrated sexual abuse

against Child, specifically, that Mother walked into Father’s bedroom and

witnessed Child performing oral sex upon him. See id.; see also Order of

Adjudication and Disposition, 5/30/2023.3 The same day, DHS filed a petition

for emergency protective custody, and Child was removed from Father’s care.

See N.T., 10/31/2023, at 72. In order to secure Child’s removal, DHS sought

police assistance because Father became belligerent and was known to have

various firearms in his home. See Order of Adjudication and Disposition,

5/30/2023. At this time, DHS placed Child in an undisclosed foster home due

to ongoing safety concerns related to Father. See N.T., 10/31/2023, at 72.

3 The order of adjudication and disposition was entered into evidence at the

termination of parental rights hearing as DHS’s Exhibits 1.

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At a shelter care hearing held on March 30, 2023, the court confirmed Child’s

placement and ordered that Father was not permitted to attend any

educational meetings, dental, or medical appointments related to Child. See

id. at 73.

On May 30, 2023, the court adjudicated Child dependent following a

three-day trial. Furthermore, the court found that Child was the “victim of

child abuse as defined by 23 Pa.C.S. § 6303, in the form of sexual assault

perpetrated upon her by [Father.]” Order of Adjudication and Disposition,

5/30/2023. On the same date, the court entered an order finding aggravated

circumstances as to Father pursuant to 42 Pa.C.S. § 6341(c.1)4 and ordered

that “[n]o efforts are to be made to preserve the family and reunify the Child

with the Father.” Aggravated Circumstance Order, 5/30/2023.

Separately, DHS investigated the CPS report allegations of Child abuse

against Father. See N.T., 10/31/2023, at 78. Father was uncooperative

during the investigation. Ultimately, the March 27, 2023 CPS report was

deemed founded in June 2023. See id.

4 (c.1) Aggravated circumstances.--If the county agency or the child's attorney alleges the existence of aggravated circumstances and the court determines that the child is dependent, the court shall also determine if aggravated circumstances exist. If the court finds from clear and convincing evidence that aggravated circumstances exist, the court shall determine whether or not reasonable efforts to prevent or eliminate the need for removing the child from the home or to preserve and reunify the family shall be made or continue to be made and schedule a hearing as required in section 6351(e)(3) (relating to disposition of dependent child).

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On June 14, 2023, DHS filed a petition for the involuntary termination

of Father’s parental rights pursuant to 23 Pa.C.S. § 2511 (a)(1), (2), (5), (8),

(10), and (b). The orphans’ court held evidentiary hearings on October 31,

2023, and November 7, 2023.5 Child, then nine years old, was represented

by a separate guardian ad litem (“GAL”) and legal interest counsel.6 See 23

Pa.C.S. § 2313(a). Father was present for the hearings but did not testify.

DHS presented the testimony of Mr. Losinger; Denise Feger, Ph.D., Child’s

therapist;7 Jenny Farrer, caseworker for the family during Child’s second

adjudication of dependency; and Rebecca Dizon, Child’s third grade teacher.

DHS additionally proffered several exhibits which were admitted without

objection.

5 The Honorable George W. Wheeler presided over these hearings as well as

the May 2023 hearings wherein the court adjudicated Child dependent and entered an order finding aggravated circumstances as to Father pursuant to 42 Pa.C.S. § 6341(c.1).

6 Our Supreme Court has mandated that this Court conduct sua sponte review

to ensure that trial courts have properly appointed counsel to represent the legal interests of children in contested involuntary termination proceedings in conformity with 23 Pa.C.S. § 2313(a). See In re Adoption of K.M.G., 240 A.3d 1218, 1234-36 (Pa. 2020). Here, the court properly appointed counsel to represent Child’s legal interests.

Both the GAL and legal interest counsel argued in favor of termination at the conclusion of the November 7th hearing. See N.T., 11/7/23, at 11.

7 The court certified Dr. Feger as an expert in trauma and attachment therapy.

See N.T., 10/31/2023, at 7.

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Dr. Feger conducted two trauma evaluations of Child and served as her

individual therapist. See id. at 4. Dr. Feger’s initial evaluation occurred in

August 2021. See N.T., 10/31/2023, at 8. After Child was removed from

Father’s care the second time, she completed another evaluation, over four

sessions, in May 2023. See id. at 8-10. She reported that the concerns from

her initial evaluation remained the same in her reassessment. See id. at 10-

11. She averred that during her second evaluation, Child was guarded and

defensive initially. See id. at 10. However, as therapy sessions continued

and rapport was built, Child became more open. See id. at 20. Dr. Feger

diagnosed Child with post-traumatic stress disorder and general anxiety

disorder. See id. at 19. Dr. Feger also reported that Child confirmed that

Mother’s reports of sexual abuse were accurate. See id. at 20. Child also

made several other disclosures to Dr. Feger which resulted in three

subsequent ChildLine reports. See id. Dr. Feger further related that Child is

fearful of Father and that he may try to take her from her foster home. See

id. at 15.

Ms. Dizon testified that prior to her removal from Father’s care, Child

consistently had dark bags under her eyes and was often tired. See id. at 98.

Ms. Dizon stated that Child told her she could not sleep when she was living

with Father. See id. After she was placed, Ms. Dizon testified that the bags

under her eyes disappeared, and Child appeared happy and secure. See id.

Ms. Dizon also noted that Child’s attendance improved while in the care of her

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foster family. See id. As a result, Child’s academic performance “soared.”

See id. at 99-100.

By decree dated November 9, 2023, and entered November 14, 2023,

the court involuntarily terminated Father’s parental rights to Child pursuant to

23 Pa.C.S. § 2511(a)(2), (10), and (b). The court provided the rationale for

its decision in an opinion accompanying the decree. Father timely filed a

notice of appeal and concise statements of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In lieu of a formal Rule 1925(a)

opinion, the orphans’ court submitted a letter referring this Court to its opinion

accompanying the decree.

On appeal, Father presents the following issues for review:

1. Did the orphans’ court abuse its discretion and/or err as a matter of law in terminating Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(10)?

2. Did the orphans’ court abuse its discretion and/or err as a matter of law in terminating Father’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2)?

3. Did the orphans’ court abuse its discretion and/or err as a matter of law by failing to grant a continuance as requested by Father during the first termination hearing?

Father’s Brief at 5 (cleaned up).

Our standard of review in this context is well-settled:

In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. When applying this standard, the appellate court must accept the trial court’s findings of fact and credibility determinations if they are supported by the record. Where the

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trial court’s factual findings are supported by the evidence, an appellate court may not disturb the trial court’s ruling unless it has discerned an error of law or abuse of discretion.

An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion or the facts could support an opposite result. Instead, an appellate court may reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill- will. This standard of review reflects the deference we pay to trial courts, who often observe the parties first-hand across multiple hearings.

In considering a petition to terminate parental rights, a trial court must balance the parent’s fundamental right to make decisions concerning the care, custody, and control of his or her child with the child’s essential needs for a parent’s care, protection, and support. Termination of parental rights has significant and permanent consequences for both the parent and child. As such, the law of this Commonwealth requires the moving party to establish the statutory grounds by clear and convincing evidence, which is evidence that is so clear, direct, weighty, and convincing as to enable a trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.

Interest of M.E., 283 A.3d 820, 829-30 (Pa. Super. 2022) (internal citations

and quotation marks omitted).

The involuntary termination of parental rights is governed by 23 Pa.C.S.

§ 2511 of the Adoption Act, which necessitates a bifurcated analysis that first

focuses upon the “eleven enumerated grounds” of parental conduct that may

warrant termination pursuant to Section 2511(a)(1)-(11). M.E., supra at

830. If the court determines that a petitioner has established grounds for

termination under at least one of these subsections by “clear and convincing

evidence,” the court then assesses the petition under Section 2511(b), which

focuses primarily upon the child’s developmental, physical, and emotional

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needs and welfare. Id. at 830 (citing In re T.S.M., 620 Pa. 602, 628, 71

A.3d 251, 267 (2013)); see also 23 Pa.C.S. § 2511(b). This Court “need only

agree with [the trial court’s] decision as to any one subsection of [Section

2511(a) in addition to Section 2511(b),] in order to affirm the termination of

parental rights.” In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).

In the case sub judice, the court terminated Father’s parental rights to

Child pursuant to 23 Pa.C.S. § 2511(a)(2), (10), and (b). Instantly, we

analyze the court’s termination decree pursuant to Section 2511(a)(10) and

(b), which provide as follows:8

(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:

...

(10) The parent has been found by a court of competent jurisdiction to have committed sexual abuse against the child or another child of the parent based on a judicial adjudication as set forth in paragraph (1)(i), (ii), (iii) or (iv) or (4) of the definition of “founded report” in section 6303(a) (relating to definitions) where the judicial adjudication is based on a finding of “sexual abuse or exploitation” as defined in section 6303(a).

(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 ____________________________________________

8 Based on this disposition, we do not consider Father’s claim concerning Section 2511(a)(2). See B.L.W., supra.

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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)(10), (b).

Section 6303(a) defines a “founded report” as follows:

(1) There has been a judicial adjudication based on a finding that a child who is a subject of the report has been abused and the adjudication involves the same factual circumstances involved in the allegation of child abuse. The judicial adjudication may include any of the following:

(i) The entry of a plea of guilty or nolo contendere.

(ii) A finding of guilt to a criminal charge.

(iii) A finding of dependency under 42 Pa.C.S. § 6341 (relating to adjudication) if the court has entered a finding that a child who is the subject of the report has been abused.

(iv) A finding of delinquency under 42 Pa.C.S. § 6341 if the court has entered a finding that the child who is the subject of the report has been abused by the child who was found to be delinquent.

(4) A final protection from abuse order has been granted under section 6108 (relating to relief), when the child who is a subject of the report is one of the individuals protected under the protection from abuse order and:

(i) only one individual is charged with the abuse in the protection from abuse action;

(ii) only that individual defends against the charge;

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(iii) the adjudication involves the same factual circumstances involved in the allegation of child abuse; and

(iv) the protection from abuse adjudication finds that the child abuse occurred.

23 Pa.C.S. § 6303(1) and (4).

Father contends that while the orphans’ court found that Child had been

the victim of child abuse, the finding was related to aggravated circumstances,

not to the dependency adjudication. See Father’s Brief at 10. He argues that

the adjudication of dependency occurred “not because [C]hild was sexually

abused but because [C]hild was without proper care or control, subsistence,

or education as required by law, or other care or control necessary for her

physical, mental, or emotional health or morals.” Id. Father’s contention is

belied by the certified record.

In determining that DHS met its burden pursuant to Section

2511(a)(10), the orphans’ court found the following:

The [c]ourt [o]rder of May 30, 2023, [] specifically finds that “. . . [Child] has in fact been the victim of child abuse in the form of sexual assault perpetrated upon her by [Father] . . . .” The evidence presented at the adjudicatory hearing before the dependency court, resulted in an adjudication of dependency. The evidence included that [C]hild’s mother observed [C]hild engaging in oral sex with [Father]. No appeal was taken from the Order of Adjudication and Disposition, nor from the finding that the report of abuse was founded. [DHS] has established, by clear and convincing evidence, grounds pursuant to 23 Pa.C.S. § 2511(a)(10).

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Orphans’ Court Opinion, 11/9/2023, at 5. Contrary to Father’s arguments, an

integral part of the court’s findings in the order of adjudication and disposition

included Father’s sexual abuse of Child. See Order of Adjudication and

Disposition, 5/30/2023, at 5. Father did not appeal the court’s findings at the

time, did not object to the court entering the Order of Adjudication and

Disposition as DHS’s Exhibit 1, and even admits that “the court found that

[Child] had in fact been the victim of child abuse in the form of sexual assault

perpetrated upon her by Father. . . .” Father’s Brief at 10. Indeed, the

orphans’ court provided detailed factual findings and ultimately made its

finding of dependency based on Father’s sexual abuse of Child. Accordingly,

we discern no abuse of discretion by the court in terminating Father’s parental

rights pursuant to Section 2511(a)(10). Thus, Father’s first issue fails.

We observe that Father failed to assert an error regarding Section

2511(b) in his statement of questions involved in his brief. See Pa.R.A.P.

1925(b)(4)(vii), 2116(a). Notably, Father also failed to proffer any argument

in his brief regarding subsection (b). Therefore, Father has waived any claim

concerning it. It follows that we do not review the decree with respect to

Section 2511(b). See In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super.

2017) (citation omitted) (finding that, because the appellant-mother “failed to

include a challenge to Section 2511(b) in her statement of questions involved

and concise statements that issue is also waived.[]”); see also In re W.H.,

25 A.3d 330, 339 n.3 (Pa. Super. 2011) (“[W]here an appellate brief fails to

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provide any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review, that claim

is waived.” In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010) (quoting

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009))).9

Finally, we turn to Father’s last issue, whether the court erred in denying

his request for a continuance during the October 31, 2023 termination of

parental rights hearing. This Court has stated that “[t]he matter of granting

or denying a continuance is within the discretion of the [orphans’] court.” In

Interest of D.F., 165 A.3d 960, 964 (Pa. Super. 2017). We will not disturb

an orphans’ court’s determination absent an abuse of discretion. See id. at

965. In this context, “[a]n abuse of discretion is more than just an error in

judgment and, on appeal, the [orphans’] court will not be found to have

abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the results of partiality, prejudice, bias, or

ill-will.” Id.

In the case sub judice, Father verbally requested a continuance

following the completion of DHS’s first witness. See N.T., 10/31/2023, at 39-

42. He contends that “[s]urely a brief continuance to secure witnesses [for a

9 Even if not waived, we would conclude that the court did not abuse its discretion with respect to Section 2511(b). Indeed, Dr. Feger testified that Child fears Father and wants nothing to do with him. See N.T., 10/31/2023, at 15, 20-21. Further, Ms. Farrer testified that Child’s bond is with her foster mother who meets all of her needs. See id. at 85-86.

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termination of parental rights case] would not have impacted any party other

than further disadvantaging [F]ather.” Father’s Brief at 15.

During the hearing on October 31, 2023, Father requested a

continuance because he had asked his counsel to file subpoenas for numerous

witnesses “through this whole case[.]” N.T., 10/31/2023, at 39-40. In

response, his counsel advised that Father did not request any witnesses until

the Thursday before the October 31, 2023 termination hearing. See id. at

41. Ultimately, on the record in open court, the orphans’ court denied Father’s

request because the proceeding had “been scheduled for a long period of time.

This has already been continued once. . . . We certainly will have breaks and

if there are witnesses that you and your attorney believe should be here, I

would be sensitive to a request to do that.” Id. at 41-42. Ultimately, later in

the proceeding, the orphans’ court continued the case until November 7, 2023.

Based on our review of the record, it is clear that Father had abundant

time prior to the proceeding to subpoena witnesses, and even after the court

granted a continuance, he still did not produce any witnesses. Given the

latitude courts are provided in determining whether a continuance should be

granted, we discern no abuse of discretion. See D.F., supra.

Based on the foregoing, we affirm the decree terminating Father’s

parental rights.

Decree affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 07/12/2024

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