In Re: J.W., a Minor

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2019
• Docket: 2594 EDA 2018
• Status: Unpublished

Opinion

J-S02031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.W., FATHER : No. 2594 EDA 2018

Appeal from the Decree Entered August 3, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000088-2018, CP-51-DP-0001265-2012

IN THE INTEREST OF: S.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.W., FATHER : No. 2595 EDA 2018

Appeal from the Decree Entered August 3, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000089-2018, CP-51-DP-0002751-2015

IN THE INTEREST OF: I.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: D.W., FATHER : No. 2597 EDA 2018

Appeal from the Decree Entered August 3, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000091-2018, CP-51-DP-0002752-2015

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.: FILED FEBRUARY 21, 2019

Appellant, D.W. (“Father”), appeals from the decrees entered in the

Philadelphia County Court of Common Pleas Family Court, which granted the

petitions of the Department of Human Services (“DHS”) for involuntary J-S02031-19

termination of Father’s parental rights to his minor children, J.W., S.W., and

I.W. (“Children”) and changed their permanency goals to adoption. We affirm.

In its opinion, the Family Court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no need to

restate them.1 Procedurally we add, Father timely filed notices of appeal and

contemporaneous statements of errors complained of on appeal per Pa.R.A.P.

1925(a)(2)(i) on Tuesday, September 4, 2018 (September 2, 2018, was a

Sunday, and Monday, September 3, 2018, was Labor Day).2 On September

17, 2018, this Court consolidated Father’s appeals sua sponte.

Father raises three issues for our review:

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FINDING THAT [DHS] PROVED BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN…CHILDREN’S BEST INTEREST TO GRANT THE DHS PETITION TO CHANGE THE GOAL TO ADOPTION[?]

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY GRANTING THE DHS PETITION TO TERMINATE FATHER’S PARENTAL RIGHTS BECAUSE IT FAILED TO CONSIDER THE [SECTIONS] 2511(A)(1)[, (A)](2) EVIDENCE IN THE “TOTALITY OF THE CIRCUMSTANCES”[?]

____________________________________________

1 The record makes clear the court appointed separate legal counsel for Children in addition to the Guardian ad Litem. Both counsel articulated and concurred at the hearing that termination served Children’s legal and best interests.

2The certified record resolves any question as to whether Father filed notices of appeal at each docket number. See Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal from orders which resolve issues arising on separate docket numbers).

-2- J-S02031-19

WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FINDING THAT DHS PROVED BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS IN THE “BEST INTERESTS” OF…CHILDREN TO BE ADOPTED[?]

(Father’s Brief at 3).

In his first and third issues combined, Father argues the trial court

violated Father’s due process rights, when the court prevented Father from

testifying and cross-examining witnesses regarding whether adoption was in

Children’s best interest. Father concludes this Court should reverse the

decrees and remand. We cannot agree.

As a prefatory matter, “issues not raised in the [trial] court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

Additionally, issues not raised in a Rule 1925 concise statement of errors will

be deemed waived. Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006).

See also In re L.M., 923 A.2d 505 (Pa.Super. 2007) (applying Rule 1925

waiver standards in family law context). “Rule 1925(b) waivers may be raised

by the appellate court sua sponte.” Commonwealth v. Hill, 609 Pa. 410,

428, 16 A.3d 484, 494 (2011). The Rule 1925(b) statement must be “specific

enough for the trial court to identify and address the issue [an appellant]

wishe[s] to raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2

(Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). “[A]

[c]oncise [s]tatement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement

at all.” Id.

-3- J-S02031-19

Here, Father failed to raise before the trial court any violation of his due

process rights. On appeal, however, Father couches his arguments regarding

the goal change and part of his argument regarding termination as due

process claims. Specifically, Father claims the court prevented him from

testifying and cross-examining witnesses. Father did not raise his due process

challenge at the termination/goal change hearing. Further, Father’s concise

statement reads as follows:

1. The trial court erred and/or abused its discretion by finding that [DHS] proved by clear and convincing evidence that it was in [Children]’s best interests to grant its petitions to change the goal to adoption because Father was a viable reunification resource and was bonded to…[C]hildren.

2. The trial court erred and/or abused its discretion by granting the DHS petition to terminate Father’s parental rights because it failed to consider the [Section] 2511(a)(1), (2), (5), (8) evidence in the “totality of the circumstances.”

3. The trial court erred and/or abused its discretion by finding that DHS proved by clear and convincing evidence that it was in the “best interests” of [Children] to be adopted without taking into consideration the “totality of the circumstances.”

(See Concise Statement, filed September 4, 2018; Father’s Brief at Exhibit

B.) Thus, Father failed to preserve his due process complaints. Therefore,

Father’s first and third issues are waived in their entirety. To the extent Father

frames his second issue as a due process claim, that issue is also waived for

purposes of appeal. See Pa.R.A.P. 302(a); Lineberger, supra.

Appellate review of termination of parental rights cases implicates the

following principles:

-4- J-S02031-19

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), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) (internal citations omitted).

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.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations and quotation marks omitted). 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. In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may uphold a termination decision if any proper basis exists for the result reached. In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc). 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 R.L.T.M., 860 A.2d 190, 191-92 (Pa.Super. 2004).

-5- J-S02031-19

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165

(2008)).

DHS filed a petition for the involuntary termination of Father’s parental

rights to Children on the following grounds:

§ 2511. Grounds for involuntary termination

(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:

(1) 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.

(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.

* * *

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

-6- J-S02031-19

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

(b) Other considerations.―The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Parental rights may be

involuntarily terminated where any one subsection of Section 2511(a) is

satisfied, along with consideration of the subsection 2511(b) provisions.” In

re Z.P., supra at 1117.

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his… 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.

-7- J-S02031-19

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).

Termination under Section 2511(a)(1) involves the following:

To satisfy the requirements of [S]ection 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,

Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent’s explanation for his...conduct; (2) the post- abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations

omitted). Regarding the six-month period prior to filing the termination

petition:

[T]he trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his...parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.

-8- J-S02031-19

718, 872 A.2d 1200 (2005) (internal citations omitted).

The grounds for termination of parental rights under Section

2511(a)(2), due to parental incapacity that cannot be remedied, are not

limited to affirmative misconduct; to the contrary, those grounds may include

acts of refusal as well as incapacity to perform parental duties. In re A.L.D.,

797 A.2d 326 (Pa.Super. 2002). “Parents are required to make diligent efforts

towards the reasonably prompt assumption of full parental responsibilities.”

Id. at 340. The fundamental test in termination of parental rights under

Section 2511(a)(2) was long ago stated in the case of In re Geiger, 459 Pa.

636, 331 A.2d 172 (1975), where the Pennsylvania Supreme Court announced

that under what is now Section 2511(a)(2), “the petitioner for involuntary

termination must prove (1) repeated and continued incapacity, abuse, neglect

or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child

to be without essential parental care, control or subsistence; and (3) that the

causes of the incapacity, abuse, neglect or refusal cannot or will not be

remedied.” In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998).

Under Section 2511(b), the court must consider whether termination

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520

(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability

are involved when inquiring about the needs and welfare of the child. The

court must also discern the nature and status of the parent-child bond, paying

close attention to the effect on the child of permanently severing the bond.”

-9- J-S02031-19

Id. Significantly:

In this context, the court must take into account whether a bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship.

When conducting a bonding analysis, the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

“The statute permitting the termination of parental rights 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…rights terminated.” In re B.L.L., 787 A.2d

1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.

This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.

Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child’s life.

- 10 - J-S02031-19

Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his…ability, even in difficult circumstances. 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. 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 [the child’s] physical and emotional needs.

In re B.,N.M., supra at 855 (internal citations and quotation marks omitted).

“[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.” Id. at 856.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the reasoned opinion of the Honorable Daine Grey, Jr., we

conclude Father’s second issue merits no relief. The Family Court opinion

comprehensively discusses and properly disposes of the question presented.

(See Family Court Opinion, filed October 25, 2018, at 4-10) (finding: record

indicates Father demonstrated settled purpose of relinquishing parental claim

to Children and failed to perform parental duties for at least six months before

DHS filed termination petitions; at termination hearing, Father testified that

for over six years before termination hearing he was aware of DHS’

involvement with Children, knew single case plan (“SCP”) objectives were in

- 11 - J-S02031-19

place, and knew completion of SCP objectives was vital to reunification with

Children; nonetheless, Father failed to comply with court’s orders, take any

assessments ordered, and attend supervised visits with Children; after July

2016, Father did not visit Children for over two years; Father only visited

Children again five months after DHS filed termination petitions; additionally,

case worker testified that although she spoke to Father several times, he failed

to perform tasks to meet SCP objectives; Father’s failure to complete SCP

objectives demonstrated his lack of interest in caring for Children; Father

offered no evidence to show he had made any effort to re-establish ties with

Children during six-month period before DHS filed termination petitions;

termination of Father’s parental rights to Children under Section 2511(a)(1)

was warranted; regarding termination pursuant to Section 2511(a)(2), Father

failed to cooperate with social services, including completing dual diagnosis

assessments, anger management classes, and housing clearances; Father’s

failure consistently to visit Children established his indifference to Children;

Father’s failure to comply with SCP objectives left Children without essential

parental care, which Father refused to remedy; record supports termination

of Father’s parental rights under Section 2511(a)(2); under Section 2511(b),

record demonstrated Children would not suffer irreparable harm if court

terminated Father’s parental rights; compelling testimony established

Children are not bonded with Father, but Children are bonded with pre-

adoptive parents, to whom Children look for their needs and parental

- 12 - J-S02031-19

guidance; case worker testified J.W. did not want to see Father again and I.W.

did not understand concept of father; Father failed to offer evidence

establishing existence of parent-child bond; in determining termination best

serves needs and welfare of Children, court considered that Father has not

met Children’s emotional, physical, and developmental needs, or provided

Children with healthy, safe environment for more than twenty-two months

prior to termination hearing). The record supports both the court’s rationale

and its decision. Accordingly, we affirm based on the Family Court opinion.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/21/19

- 13 -