In the Int. of: H.B.M., etc. Appeal of: W.F.M.

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2018
• Docket: 1451 EDA 2018
• Status: Unpublished

Opinion

J-S64001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: H.B.M. A/K/A : IN THE SUPERIOR COURT OF H.M., A MINOR : PENNSYLVANIA : : APPEAL OF: W.F.M., FATHER : : : : : No. 1451 EDA 2018

Appeal from the Order Entered April 17, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000780-2016, CP-51-DP-0001845-2011, FID: 51-FN-003665-2011

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018

W.F.M. (“Father”) appeals from the trial court decree entered on April

17, 2018, that granted the petition filed by the Philadelphia Department of

Human Services (“DHS”) to involuntarily terminate his parental rights to his

daughter, H.B.M. He also appeals the concomitant juvenile court order that

changed H.B.M.’s permanency goal from reunification to adoption.1 We affirm.

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1 Father filed a single notice of appeal from the termination decree and the goal change order. However, the correct procedure is to file a separate notice of appeal for each docket. See Pa.R.A.P. 341, Note (“Where . . . one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed.”). Recently, the Pennsylvania Supreme Court held that the failure to file separate notices of appeal from an order resolving issues on more than one docket requires the quashal of the appeal. Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). However, this holding applies only to future cases. Id. As Father filed his notice prior to the filing of the Supreme Court’s decision in Walker, we do not quash his appeal. J-S64001-18

We adopt the following statement of facts from the trial court opinion,

which is supported by the record. H.B.M., born in January 2003, was

diagnosed with hypotonic cerebral palsy and Sotos Syndrome, a genetic

disorder characterized by a distinctive facial appearance, overgrowth in

childhood, delayed development, and learning disabilities. Due to her

diagnoses, H.B.M. is non-verbal, and although she is ambulatory, she utilizes

a wheelchair. The child requires dedicated medical care and cannot perform

basic functions such as cleaning and feeding herself without assistance.

Father is legally blind and requires Mother’s assistance. D.M.B. (“Mother”)

has an intellectual disability.2

The family came to the attention of DHS in August 2011, after in-home

protective services were implemented to monitor H.B.M.’s care and

supervision. Upon DHS’s intervention, the agency discovered that Mother had

a history of transience, the family interfered with H.B.M.’s services, and

Mother and Father neglected to ensure that H.B.M. consistently received

physical and occupational therapy for her developmental delays.

In September 2011, the family became homeless. Although Mother

initially informed DHS that she intended to move H.B.M. into the home of the

paternal grandfather, neither parent provided DHS with an address or

telephone number to contact the child. Father was belligerent and

2The trial court also terminated Mother’s parental rights to H.B.M. We address Mother’s appeal separately.

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uncooperative, and he refused to disclose information regarding any relatives

or friends who were willing to care for his daughter.

On September 20, 2011, DHS obtained an order of protective custody

(“OPC”) for H.B.M. and placed her in a medical institution. Following a shelter

care hearing, the OPC was lifted and H.B.M.’s temporary commitment

continued, with parents allowed generous supervised visitation. On October

13, 2011, the court adjudicated H.B.M. dependent and continued her

placement, where she received physical therapy and on-going medical care.

In the ensuing four and one-half years, H.B.M. remained in residential

care where she received medical treatment and physical therapy. Mother and

Father attended family service plan (“FSP”) meetings and were provided with

various objectives designed to facilitate reunification. Their compliance with

the FSP objectives varied. Occasionally, parents complied with their

objectives and completed services, but they struggled to satisfy other

requirements, such as maintaining stable housing and employment.

During March 2015, William Russell, Ph.D. performed parenting capacity

evaluations of both parents. As it relates to Father, Dr. Russell opined that

Father would need significant support in order to successfully coordinate the

services and educational supports that H.B.M. required. The evaluation report

noted, particularly, that H.B.M. had been removed from Father’s care for five

years, and in that time Father was not able to obtain employment, stable

housing, or demonstrate an understanding of H.B.M.’s medical needs. Indeed,

Father was unable to identify the specific services in place for his daughter.

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In sum, Dr. Russell concluded that Father lacked the capacity to provide safety

and permanency, and that a long-term medical placement would best suit her

needs. Nevertheless, he opined that, since H.B.M. was reportedly bonded to

Mother and Father, supervised visitations should continue.

In August 2016, DHS filed a petition seeking to involuntarily terminate

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

and (b). During the ensuing hearing on the termination petition, H.B.M. was

represented by a guardian ad litem and by legal counsel. Father, represented

by counsel, was present at the hearing but did not testify on his own behalf.

Dr. Russell testified that Father did not have the capacity to care for

H.B.M., and introduced a video of H.B.M. going about her daily routine to

illustrate the significant level of care that she requires. N.T., 4/17/18, at 25.

Yolanda Bronson-Williford, DHS social worker, testified that it was in H.B.M.’s

best interests to terminate Father’s rights, and that H.B.M. would not be

harmed by termination. Id. at 48. She explained that, at the time of the

hearing, H.B.M. was not in a pre-adoptive home, but would be referred to the

DHS Adoption Unit. Id. at 64-65.

During the hearing, Father admitted that DHS had proven by clear and

convincing evidence the statutory grounds for termination under § 2511(a).

Likewise, he conceded that he was unlikely to demonstrate any parental

capacity going forward. Nevertheless, he contested that it was in H.B.M.’s

best interests for his rights to be terminated under § 2511(b). Id. at 19, 46-

47.

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As it relates to one of Father’s complaints on appeal regarding court

interference, DHS presented the testimony of Octavia McLean, H.B.M.’s

program specialist at Woods Services, who stated that Father initially spent

the majority of every day with his daughter at the facility. However, his

prolonged presence interrupted H.B.M.’s daily routine and had a negative

impact on her ability to adapt to her new residential environment. Id. at 79-

80. Thereafter, the trial court reduced the visitations to a total of twelve hours

per week, i.e., three four-hour supervised visitations. Following that decision,

Father’s compliance waned. He missed several visitations, neglected to notify

Woods Services in advance of his scheduled visits, would not leave the

visitations at the designated time, and continued to disrupt H.B.M.’s daily

routine. Id. at 83-87. Moreover, Father was rude to the staff at the

residential facility, and he withheld consent to medication. Father’s outbursts

during the visitations increased the frequency of H.B.M.’s maladaptive

behaviors, as evidenced by her incidents of self-harm following the visits. Id.

at 101.

At the conclusion of the hearing, the court terminated Father’s parental

rights. He timely filed a notice of appeal and statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 1925(b).

On appeal, Father raises the following questions for our review:

1[.] Was there sufficient evidence presented to establish under 23 [Pa.C.S. §] 2511(b) that it was in the best interest of the child, H.B.M., to terminate Father’s parental rights?

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2. Was there sufficient evidence presented to establish under [23 Pa.C.S. §] 2511(b) that Father demonstrated a sincere and genuine desire to maintain a parent-child bond with H.B.M. when it was the court’s order that curtailed Father’s visits with his child thereby limiting his opportunities to perform the required duties of a parent?

3. Did the [c]ourt commit reversible error when it terminated Father’s parental rights when the City’s own expert, Dr. William Russell, and the program coordinator from The Woods, Octavia McLean, stated that continued contact with [H.B.M.] was not harming [H.B.M.]’s development or interfering with her ongoing routine and programs at [T]he Woods?

4. Did the trial court commit reversible error and abuse its discretion changing [H.B.M.]’s goal to adoption which is not in the best interest of the child. (Perhaps APPLA [Another Planned Permanent Living Arrangement] would have been more appropriate[?])

Father’s brief at 3.3

We review cases involving the termination of parental rights according

to the following standards.

The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest

3 As Father failed to present any argument or citation to relevant legal authority specific to his contention that the juvenile court erred in changing H.B.M.’s goal to adoption pursuant to the Juvenile Act, 42 Pa.C.S. § 6351, that claim is abandoned. See, e.g., Thomas v. Thomas, __ A.3d __, 2018 PA Super 224, *6 (appellant must support each issue raised by discussion and analysis of pertinent authority; failure to do so hampers this Court’s review and risks waiver). Accordingly, we do not address the merits of the juvenile court’s goal change order.

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unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations

omitted).

To affirm the trial court, we need only agree with any one of the

subsections of 2511(a), as well as § 2511(b). See In re B.L.W., 843 A.2d

380, 384 (Pa.Super. 2004) (en banc). Here, we will focus our analysis on

§ 2511(b), as Father stipulated that DHS had proven grounds for termination

under § 2511(a)(1), (2), (5), and (8). Termination 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 interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

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

The relevant section of 23 Pa.C.S. § 2511 provides that:

(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

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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(b).

As Father conceded to the grounds for termination under § 2511(a), we

must consider whether H.B.M.’s developmental, physical, and emotional

needs and welfare will be met by termination pursuant to § 2511(b). See In

re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). “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.” Id. The court is not required to use expert testimony, and

social workers and caseworkers may offer evaluations as well. Id. Ultimately,

the concern is the needs and welfare of the child. Id. Where there is no

evidence of a bond between the parent and child, it is reasonable to infer that

no bond exists. In re: K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008).

We have noted that

[b]efore granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child—the love, comfort, security, and closeness—entailed in a parent-child relationship, as well as the tangible dimension. Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful. The trial court, in considering what situation would best serve the child[ren]’s needs and welfare, must examine the status of the natural parental bond to consider whether terminating the natural parents’ rights would destroy something in existence that is necessary and beneficial.

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Z.P., supra at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa.Super.

2000)). However, love between a parent and child is not the sole determining

factor, and love alone is not enough. In re J.L.C., 837 A.2d 1247, 1249

(Pa.Super. 2003).

Although raised as three separate issues in his statement of questions

presented, Father combined all of his arguments regarding § 2511(b) into a

single section in his brief. Accordingly, we will address the three claims

collectively. Father first argues that the evidence was insufficient to establish

that it was in H.B.M.’s best interests for his parental rights to be terminated.

Specifically, he contends that DHS failed to establish either an absence of a

parental bond, or that the extant bond was harmful to H.B.M. Father

continues that he demonstrated a sincere and genuine desire to maintain a

parent-child bond with H.B.M., but that the juvenile court curtailed the extent

of his visitation and restricted his opportunities to perform parental duties.

Finally, Father argues that the evidence does not sustain the conclusion that

his continued contact with H.B.M. harmed her development, or interfered with

her ongoing routine and programs. In this vein, Father argues that the trial

court overlooked what he characterizes as his daughter’s diminished

“adoptability” in considering whether to terminate his parental rights. Father’s

brief at 9-10. None of these arguments is availing.

In explaining its needs and welfare analysis pursuant to § 2511(b), the

trial court observed:

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Now, all the evidence I’ve heard say that these two parents do not have the capacity to have a parental relationship; both cognitively and emotionally, they’re not capable of forming a parental bond because of their limitations. And more importantly, [H.B.M.] is not capable of appreciating what’s known as a parental bond.

There are suggestions that [H.B.M.] recognizes these two people as her parents [but] the clear and convincing evidence says otherwise. [H.B.M.] does not recognize them as parental authority—parental figures.

[H.B.M.] has severe limitations, as we’ve seen through the video and through the testimony—that [she] never recognized, nor does [she] recognize [Mother and Father] as [her] parents, and that’s because of the cognitive limitations of [H.B.M.].

Trial Court Opinion, 8/13/18, at 31-32. Thereafter, the trial court concluded

that the certified record did not support Father’s suggestion that a parental

relationship existed between him and H.B.M. simply because she recognizes

his presence during visitations, and it reasoned that terminating parental

rights would not harm H.B.M. in the absence of a parent-child bond. Id. at

32. As explained, infra, we do not discern an abuse of discretion in the trial

court’s statement of rationale.

As previously noted, our case law permits social workers to testify about

their observations of the parent-child bond, and it recognizes that, where

there is no evidence of a bond between a parent and child, it is reasonable to

infer that no bond exists. See Z.P., supra at 1121; K.Z.S., supra at 763.

Instantly, two caseworkers stated that they did not observe a meaningful

parent-child bond, and the certified record does not otherwise sustain a finding

that a bond existed between H.B.M. and Father. One DHS social worker, Ms.

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Bronson-Williford, testified that, while H.B.M. recognizes Father’s presence, it

is not clear whether she knows that he is her parent. Similarly, Ms. McLean,

H.B.M.’s program specialist, testified that Father’s interactions with the child

were not always beneficial. She specifically recounted how Father repeatedly

interfered with H.B.M.’s daily routines in the residential facility, including

impeding H.B.M.’s nighttime routine by refusing to leave at the end of the

allotted time. This component of the relationship caused the child distress.

For example, following her visitations with Father, H.B.M. engaged in

maladaptive behavior, including self-harm. As the trial court found the

foregoing testimony credible and persuasive, it was reasonable for it to

conclude that no beneficial bond existed between H.B.M. and Father that

would be harmful to sever.

Additionally, as it relates to Father’s assertion that the trial court

interfered with the parent-child relationship by reducing the total duration of

the visitations to twelve hours per week, the certified record confirms that the

reduction was necessary to address the effect of Father’s behavior upon his

daughter’s wellbeing. If not for Father’s persistent interference with service

providers and his thinly-veiled attempt to parlay his daughter’s residential

care into a form of supplemental housing for himself, the trial court would not

have been compelled to reduce his visitations. Hence, we reject Father’s

insinuation that, but for the revised visitation schedule, he would have formed

a healthy bond with his daughter.

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Similarly, we are not persuaded by Father’s argument that the trial court

abused its discretion in failing to attribute greater weight to what Father

characterized as H.B.M.’s small probability of adoption. In support of this

contention, Father highlights that DHS sought to terminate parental rights

even though it did not anticipate placing the child for adoption in the

immediate future. Based upon testimony that DHS had not referred H.B.M.’s

case to its adoption unit, he opines that it is unlikely that the fifteen-year-old

will ever be adopted due to her age and medical needs. However,

notwithstanding Father’s pessimistic speculation, whether or not H.B.M. is

likely to be adopted is not the determinative factor in deciding whether the

termination of parental rights would best serve her developmental, physical,

and emotional needs and welfare.

To be clear, the case law that Father cites in support of his position, In

re Adoption of B.J.R., 579 A.2d 906 (Pa.Super. 1990), actually belies his

assertion that the fears of diminished “adoptability” take precedence over the

statutory grounds for the termination of parental rights. The B.J.R. Court

stated, “Although the record offers no indication that CYS has found a

prospective adoptive family for [the child], this fact does not serve to bar the

involuntary termination of parental rights where such termination is otherwise

warranted[.]” Id. at 915. Hence, notwithstanding Father’s protestations to

the contrary, the Adoption Act simply did not require DHS to anticipate an

immediate adoption in order to pursue the termination of parental rights. In

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fact, the law specifically exempts agencies from that requirement. Subsection

2512(b) states, “an agency . . . shall not be required to aver that an adoption

is presently contemplated nor that a person with a present intention to adopt

exists.” 23 Pa.C.S. § 2512(b). Accordingly, Father’s assertion fails.

For all of the foregoing reasons, we do not disturb the court’s finding

that clear and convincing evidence supported terminating Father’s parental

rights to H.M.B. with pursuant to § 2511(a) and (b).

Decree affirmed. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/18

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