In the Int. of: F.I.A.T., Appeal of: W.T.

• Court: Superior Court of Pennsylvania
• Decided: April 1, 2024
• Docket: 2960 EDA 2023
• Status: Unpublished

Opinion

J-S04030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: F.I.A.T., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: W.T., FATHER : : : : : No. 2960 EDA 2023

Appeal from the Order Entered October 31, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-DP-0002324-2018

IN THE INTEREST OF: F.I.A.T., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: W.T., FATHER : : : : : No. 2961 EDA 2023

Appeal from the Decree Entered October 31, 2023 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-AP-0000209-2023

BEFORE: BOWES, J., STABILE, J., and LANE, J.

MEMORANDUM BY STABILE, J.: FILED APRIL 1, 2024

W.T. (Father) appeals the October 31, 2023 decree involuntarily

terminating his parental rights to his biological daughter, F.I.A.T., born in

October 2018. He also appealed the order entered on the same day changing J-S04030-24

F.I.A.T.’s permanency goal to adoption.1 Upon review, we affirm the

termination decree and dismiss Father’s appeal from the goal change order as

moot.

We glean the factual and procedural history of the above-captioned

matters from the certified record. The Philadelphia Department of Human

Services (“DHS”) first became involved with this family shortly after F.I.A.T.

was born in October 2018, at which time J.F. (“Mother”) and F.I.A.T. both

tested positive for marijuana. Application for Protective Custody, 10/11/18.

At prior prenatal appointments, Mother tested positive for marijuana, cocaine,

opioids, and benzodiazepines. Id. On October 11, 2018, DHS was awarded

protective custody of F.I.A.T. and, at a shelter care hearing held the next day,

the court determined F.I.A.T. should remain in the custody of the agency.

Father appeared at the shelter care hearing and asserted himself as the

biological father of F.I.A.T. After an assessment of Father’s home and

conducting the appropriate clearances, on October 22, 2018, custody of

F.I.A.T. was transferred to Father and the dependency petition discharged.

Thereafter, Father and F.I.A.T. moved to Colorado with his paramour,

E.A., and her child. Dependency Petition, 4/20/22, ¶ 5(d). On or about

October 8, 2021, Arapahoe County Department of Human Services (“ACDHS”)

in Colorado received an allegation that Father assaulted E.A., and that F.I.A.T. ____________________________________________

1 The parental rights of F.I.A.T.’s biological mother, J.F., were involuntarily terminated on October 31, 2023. She did not file an appeal. By separate decree entered the same day, the trial court also terminated the right of any potentially unknown father of F.I.A.T.

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was present when it occurred. Id., ¶ 5(e). When ACDHS visited the home,

marijuana and cigarette smoke emanated from inside. Id. E.A. answered the

door, but would not allow ACDHS into the home or to assess F.I.A.T.’s safety.

Id. ACDHS observed a quarter-sized bruise below E.A.’s left eye and heard a

man yelling from inside. Id. E.A. said it was not a good time, closed the

door, then reopened the door and agreed to speak with ACDHS on another

day. Id.

On October 18, 2021, ACDHS met with E.A. for a safety visit. Id.,

¶ 5(g). E.A. said she was moving back to Philadelphia and wanted information

on domestic violence shelters. Id. On November 1, 2021, ACDHS went to

the home to speak with E.A. Id., ¶ 5(h). A man yelled from inside that E.A.

was not there and refused to answer the door. Id. On November 8, 2021,

ACDHS was notified that a domestic violence incident occurred between Father

and E.A. Id., ¶ 5(i). E.A. and her daughter were safe, but E.A. was unsure

about F.I.A.T.’s safety. Id.

After another domestic violence incident, on December 6, 2021, E.A.,

her daughter, and F.I.A.T. went to a local hospital. Id., ¶ 5(k). E.A. did not

return to Philadelphia in November 2021, but was now planning to leave

Colorado and did not know where F.I.A.T. would go. Id. On December 9,

2021, due to the ongoing safety concerns, F.I.A.T. was removed from the

home and placed in the care of ACDHS. Id., ¶ 5(l). ACDHS was unable to

meet with Father or assess the home. Id.

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On March 29, 2022, DHS received a general protective services (“GPS”)

report from ACDHS seeking to transfer the family’s case because they believed

Father returned or would be returning to Philadelphia. Id., ¶ 5(m). ACDHS

requested DHS to verify Father’s status in Philadelphia before transferring the

case. Id. On March 30, 2022, DHS met with Father at the home of paternal

grandmother, T.T. Id., ¶ 5(n). Father denied the allegations in ACDHS’s

dependency petition and claimed E.A. suffered from untreated mental health

issues. Id. He left Colorado and returned to Philadelphia because he did not

believe he would be reunified with F.I.A.T. Id. Father said he was searching

for employment and was willing and able to care for F.I.A.T. Id.

On April 13, 2022, DHS contacted Father who said he was still searching

for employment and housing. Id., ¶ 5(o). On April 20, 2022, DHS filed an

urgent dependency petition. On May 12, 2022, DHS accepted jurisdiction of

the case from ACDHS, and the court deferred adjudication of dependency for

further investigation. F.I.A.T. was residing in a foster home in Colorado and

would be brought to Philadelphia as soon as possible.

F.I.A.T. was adjudicated dependent in June 2022 and placed in kinship

care with maternal great aunt, S.F., where she has remained during the

entirety of these proceedings.2 N.T., 10/31/21, at 10. On May 30, 2023, DHS

filed a petition to involuntarily terminate Father’s paternal rights pursuant to

____________________________________________

2 S.F. also has custody of Mother’s two other children, F.I.A.T.’s older half- siblings. N.T., 10/31/23, at 10.

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23 Pa.C.S.A. § 2511(a) and (b).3 The trial court held a goal change and

termination hearing on October 31, 2023, wherein DHS presented the

testimony of the community umbrella agency (“CUA”) case manager, Shante

Atkins, and child advocate social worker, Roya Paller, and introduced the

dependency docket as a stipulated exhibit. N.T., 10/31/23, at 8. Father

testified on his own behalf. Id. at 53-60. The same day, the trial court

entered a decree involuntarily terminating Father’s parental rights pursuant

to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).

On November 26, 2023, Father filed a timely notice of appeal and

statement of errors complained of on appeal. The trial court complied with

Pa.R.A.P. 1925(a)(ii) explaining its reasoning, which largely referred to its on-

the-record statements at the conclusion of the October 31, 2023 hearing.

Upon application from Father, we consolidated the cases pursuant to Pa.R.A.P.

513. Father raises six issues for our review:

1. Whether the Trial Court erred by terminating the parental rights of Appellant, W.T., under 23 Pa.C.S.A. § 2511(a)(1)?

2. Whether the Trial Court erred by terminating the parental rights of Appellant, W.T., under 23 Pa.C.S.A. § 2511(a)(2)?

3. Whether the Trial Court erred by terminating the parental rights of Appellant, W.T., under 23 Pa.C.S.A. § 2511(a)(5)?

4. Whether the Trial Court erred by terminating the parental rights of Appellant, W.T., under 23 Pa.C.S.A. § 2511(a)(8)?

3 William Rice, Esquire, was appointed as legal counsel for the child. N.T., 10/31/23, at 3. James Demarco, Esquire, served as guardian ad litem for the child. Id.

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5. Whether the Trial Court erred by terminating the parental rights of Appellant, W.T., under 23 Pa.C.S.A. § 2511(b)?

6. Whether the Trial Court erred by determining it to be in the child’s best interest to change the goal from reunification to adoption?

Father’s Brief at 5-6.

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 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.

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

and quotations omitted).

Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated

analysis:

Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in 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 interest of the child.

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

“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, 863 A.2d 1141 (Pa. 2004) (citing In re C.S., 761 A.2d 1197,

1199 (Pa. Super. 2000)).

Here, the trial court terminated Father’s parental rights pursuant to

Section 2511(a)(1), (2), (5), (8), and (b). We need only agree with the trial

court as to any one subsection of Section 2511(a), as well as Section 2511(b),

to affirm. Id. at 384. We begin our analysis with Section 2511(a)(2), which

states:

The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental

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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.A. § 2511(a)(2). “The grounds for termination are not limited to

affirmative misconduct, but concern parental incapacity that cannot be

remedied.” In re Adoption of A.H., 247 A.3d 439, 443 (Pa. Super. 2021),

appeal denied, 258 A.3d 1144 (Pa. 2021). We emphasize that “[p]arents are

required to make diligent efforts toward the reasonably prompt assumption of

full parental duties.” Id. “A parent who is incapable of performing parental

duties is just as parentally unfit as one who refuses to perform the duties.”

B.L.W., 843 A.2d at 387-88.

Father contends that DHS failed to prove by clear and convincing

evidence that his conduct warranted termination under Section 2511(a)(2).

Specifically, Father asserts that he “has made consistent weekly visits with

the child throughout the life of the case, has employment and did an

evaluation at the Wedge in June 2023. He is willing to remedy the issues that

brought the child into care.” Father’s Brief at 17. We disagree.

The trial court identified Father’s incapacity for purposes of Section

2511(a)(2) as the lack of compliance with his objectives and the continued

concern for substance abuse and domestic violence. See N.T., 10/31/23, at

70-72. Father’s permanency plan objectives essentially remained the same

throughout the life of the case. Initially, his objectives were to (1) complete

a full drug and alcohol screen and dual diagnosis assessment through CEU;

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(2) report for random drug screenings; (3) provide proof of employment; (4)

engage in housing and employment services through the Achieving

Reunification Center (“ARC”); (5) provide proof of a medical marijuana card;

and (6) continue with his mental health treatment. Id. at 23-24. He was

initially scheduled to have weekly supervised visits at the agency or in the

community.

The record demonstrates that Father was minimally compliant with his

permanency plan objections and made minimal progress toward alleviating

the circumstances that brought F.I.A.T. into care. Notably, ACDHS took

custody of F.I.A.T. in December 2021, and Father moved back to Philadelphia

while F.I.A.T. was in foster care in Colorado. N.T., 10/31/23, at 20. He told

DHS that he returned to Philadelphia because he did not believe he would be

reunified with F.I.A.T. Dependency Petition, 4/20/22, ¶ 5(n).

When DHS assumed jurisdiction of the case, Father had recently tested

positive for marijuana, benzoylecgonine, and methamphetamine in Colorado.

N.T., 10/31/23, at 28; Dependency Hearing, 6/28/22, Exhibit 1. Father was

ordered to complete random drug screens throughout the life of the case. He

took one early in the case and it was positive for marijuana. N.T., 10/31/23,

at 30-31, 38. The record does not indicate whether Father completed a drug

and alcohol screen and dual diagnosis assessment at CEU. However, Father

completed an intake evaluation at Wedge Recovery Center on June 12, 2023,

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but did not follow through with any recommendations.4 Id. at 28-30. Further,

Father never provided proof of a medical marijuana card. Id. at 31.

Father denied having a drug and/or alcohol problem. Id. at 56.

However, he does admit to self-medicating, though he does not specify which

substance he utilizes. Id. at 56-57. Father denied using cocaine and stated

the positive drug test result was from using Orajel. Id. at 57. He testified

that he completed four random drug screens total, but “kind of lost

understanding” when he started at Wedge. Id. at 58. Father claims that once

he started doing random drug screens at Wedge every weekend, he believed

that satisfied the objective for random drug screens. Id. at 58. The records

provided by Father’s counsel do not support the claim that he provided weekly

drug screens to Wedge. Id. at 58-59.

As for housing, Father was referred twice to ARC for housing and

employment, and a third time for appropriate services, yet he only attended

once and was discharged on September 7, 2023. Id. at 26-27. Father never

secured stable housing in the Philadelphia area. Id. at 31-32. He explained

that it is difficult to find housing in Philadelphia as a single father because

“[t]hey’re not helping me as fast as they’re going to help a single mother.”

Id. at 61. Father provided no explanation for why he did not engage with the

4 Father was directed to complete an intake at Wedge Recovery Center and

follow all recommendations on October 7, 2022.

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ARC for assistance with housing. A few days prior to the termination hearing,

Father mentioned that he had housing in the Harrisburg area. Id. at 31-32.

Although Father was consistent with visitation, it never progressed

beyond supervised because of the lack of compliance with his objectives. Id.

at 33-34. Ms. Atkins testified that initially, Father “had this attitude that he

really didn’t want to do what he was supposed to do,” but eventually started

making some attempts to comply. Id. at 39. “[H]e would go to the Wedge,

or he would go try to get help, but he would not follow through. Like, he

would go in for intake, but would not continue with services.” Id.

Father blamed his lack of compliance on DHS:

Because if they gave me the correct paperwork, whereas though they broke down exactly what [Father] was supposed to be doing – they just was saying, “Do this, do this, do this.” They never said, “This is what [Father’s] supposed to be doing.” They said, “You should do this,” or “You should do that.” They never said this was obligated for me to do, or else this would happen.

Id. at 55. He further testified that he was confused and unaware of his

permanency plan objectives:

Honestly, I did not – I was confused at the beginning of this case, and also with being . . . a father and . . . a fiancé of someone right now, it’s kind of hard to be trying to do that when I’m working to feed my child also, and feed my other kids.

Ain’t no job paying the price that – I – I don’t have a good job that really pays a lot of money, so, I have to figure it out.

****

. . . [S]he did discuss, at the beginning of the case, like, things that I should do to be able to reunify with her. She said things

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that would help me in my case. She never said that this would destroy my case.

She said, “If you go to this program, this program,” this is how it was explained. She said, “Certain jo [sic] – certain things, if you don’t do it, it could affect your case, but I’m not telling you you have to do anything, but if I was you, I – I would do X, Y, and Z.”

It took a year for me to talk to one of my friends, and him say, “Bro, if she said – she advised you to do it, that means you need to do it.” I didn’t understand that. I suffer from mental problems and I’m also a little bit slow.

Id. at 59-61. Despite admitting that he suffers from mental health issues,

Father never availed himself of the resources offered by DHS.

Based on the foregoing, Ms. Atkins opined that Father was not capable

of providing a safe and stable home for the child. Additionally, Ms. Atkins has

continued concerns about domestic violence in the home as Father denied it

was a problem and did not avail himself of any resources. Id. at 37. Father

claimed he recently obtained a protection from abuse order against E.A., but

did not provide any proof. Id. There is no evidence that Father has remedied

the issues that brought F.I.A.T. into care. Id. at 35.

Accordingly, the record demonstrates that Father’s repeated and

continued incapacity to comply with his permanency objectives due to his lack

of responsibility, externalization of blame and continued concerns for

substance abuse and domestic violence has caused F.I.A.T. to be without

essential parental care, control or subsistence necessary for her physical and

mental well-being. There is a difference between participating in the

objectives and recommendations, and actual progress. Here, there was no

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evidence that Father progressed despite the number of services he was

provided. Thus, the conditions and causes of Father’s incapacity and refusal

cannot or will not be remedied. Therefore, the trial court did not abuse its

discretion in terminating Father’s parental rights pursuant to Section

2511(a)(2).

We now turn to Section 2511(b), which states, in pertinent part:

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.A. § 2511(b). “Notably, courts should consider the matter from the

child’s perspective, placing her developmental, physical, and emotional needs

and welfare above concerns for the parent.” Interest of K.T., 296 A.3d 1085,

1105 (Pa. 2023). This determination “should not be applied mechanically,”

but “must be made on a case-by-case basis,” wherein “the court must

determine each child’s specific needs.” Id. at 1106.

Our Supreme Court has mandated that a Section 2511(b) analysis must

include “consideration of the emotional bonds between the parent and child.”

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). Thus, the court must determine

whether the adverse impact of severing the parent-child bond “is outweighed

by the benefit of moving the child toward a permanent home.” Id. at 253.

[B]y evaluating the impact of severance to determine if it will impose more than an adverse or detrimental impact, courts correctly refine their focus on the child’s development and mental

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and emotional health rather than considering only the child’s “feelings” or “affection” for the parent, which even badly abused and neglected children will retain.

K.T., 296 A.3d at 1110. “The continued attachment to the natural parents,

despite serious parental rejection through abuse and neglect, and failure to

correct parenting and behavior disorders which are harming the children

cannot be misconstrued as bonding.” T.S.M., 71 A.3d at 267 (citing In re

K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008)).

However, “courts must not only consider the child’s bond with the

biological parent, but also examine the intangibles such as the love, comfort,

security, and stability the child might have with the foster parent.” K.T., 296

A.3d at 1111 (emphasis in the original; internal citations and quotation marks

omitted). Thus, courts should also consider factors that naturally arise due to

the particular facts of a case, such as: (1) the child’s need for permanency

and time in foster care; (2) whether the child is in a pre-adoptive home and

bonded with foster parents; and (3) whether the foster home meets the child’s

needs. Id. at 1113.

Turning to the merits of Father’s appeal, he argues that the evidence

was insufficient to terminate his parental rights because he was consistent

with visitation and F.I.A.T. knows him as her biological father. Father’s Brief

at 19. We disagree.

Ms. Atkins testified that F.I.A.T. has a bond with Father. Id. at 41.

However, she believes that the benefit of moving the child towards a

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permanent and stable home outweighs the adverse impact of severing the

bond. Id. Father has not shown that he is able to make proper and

appropriate decisions to refrain from relationships that lead to domestic

violence. Id. He has not completed anger management or gone to therapy

for the domestic violence issues. Id. Without addressing those issues, Father

is unable to provide a safe, stable and secure home for F.I.A.T. Id.

Roya Paller is a social worker assigned to the family and testified at the

termination hearing. She interviewed F.I.A.T. on October 19, 2023. Id. at

49. F.I.A.T. defined ‘adoption’ as living with her mommy, who she identified

as her foster mother. Id. at 49-50. Ms. Paller also informed F.I.A.T. that

visitations with Father could stop if she were adopted. Id. F.I.A.T. “said she

was okay with that because sometimes she gets scared that he’s going to take

her home.” Id.

As previously noted, F.I.A.T. was placed with her maternal great aunt,

S.F., who has custody of F.I.A.T.’s older half-siblings. Id. at 10. F.I.A.T. has

been in her pre-adoptive home since June 2022, and looks to S.F. for love,

protection and support, and S.F. meets all F.I.A.T.’s needs. Id. at 9, 13, 15.

Initially, F.I.A.T. displayed some aggression, but S.F. and F.I.A.T. have

continuously worked on those issues. Id. at 11. Ms. Atkins explained:

The aunt did state that – and this was in the beginning, and also not that long ago, about when – just the – the physical part. . . . [W]hen [F.I.A.T.] gets upset, she will hit instead of talking – talking things out.

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So, the aunt . . . tries to . . . redirect [F.I.A.T.], as far as talking things out if she’s upset; you don’t hit, you don’t hit your siblings, and stuff like that, you don’t hide toys away if you get upset about different things, you don’t do things like that.

So, she tries to definitely redirect her behavior, but again, a lot of that is coming from where she was residing in Colorado, and what she witnessed.

Id. at 16. F.I.A.T. could not attend daycare this year due to incontinence

issues. Id. at 14. The doctor recently ruled out any medical issues, and it

was determined that the incontinence is a trauma response. Id. At the time

of the hearing, S.F. was trying to find a therapist for F.I.A.T. Id. at 14-15.

Based on the foregoing, we find no abuse of discretion or error of law in

the trial court’s holding that termination was warranted pursuant to Section

2511(b). Accordingly, we affirm the decree terminating Father’s parental

rights.

We now turn to Father’s separate challenge of the trial court’s order

changing F.I.A.T.’s permanency goal from reunification to adoption. Under

Pennsylvania law, our decision above affirming the trial court’s termination

decree renders any challenge to the goal change order moot. See In re

Adoption of A.H., 247 A.3d 439, 446 (Pa. Super. 2021); see also In re

D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An issue before a court is moot

if in ruling upon the issue the court cannot enter an order that has any legal

force or effect.”). Accordingly, we dismiss Father’s goal change appeal as

Decree affirmed. Appeal from goal change order dismissed as moot.

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Date: 4/1/2024

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