In the Int. of: S.M.W., Appeal of: J.R.W.

• Court: Superior Court of Pennsylvania
• Decided: August 28, 2018
• Docket: 2024 EDA 2017
• Status: Unpublished

Opinion

J-S48016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.M.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: J.R.W., FATHER : : : : : No. 2024 EDA 2017

Appeal from the Decree Entered May 25, 2017 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000098-2017

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.: FILED AUGUST 28, 2018

J.R.W. (Father) appeals from the decree involuntarily terminating his

parental rights to his minor daughter, S.M.W. (Child), pursuant to 23 Pa.C.S.A.

§ 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act.1 After careful review,

we affirm.

Child was born in December 2015. At the time of the birth, both Mother

and Child tested positive for marijuana and cocaine. The Philadelphia

Department of Human Services (DHS) subsequently filed an application for an

order of protective custody (OPC) for Child, averring that Mother had a history

of substance abuse and mental health issues and was non-compliant with

treatment; and that Father had a lengthy substance abuse and criminal

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1The parental rights of T.E.B. (Mother) were also terminated at this time. She separately appealed, and the termination was affirmed. See In the Interest of S.M.W., 181 A.3d 436 (Pa. Super. 2017) (unpublished memorandum). ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S48016-18

history. The trial court granted the application and Child was placed in foster

care, where she has remained since.

Following a shelter care hearing, the trial court lifted the OPC and

ordered Child’s temporary commitment to stand. Parents were granted

supervised visitation at DHS. In January 2016, Child was adjudicated

dependent and fully committed to DHS. Father was referred to the Clinical

Evaluation Unit (CEU) for drug screens, dual assessment, and three random

drug screens. The Community Umbrella Agency (CUA) held a single case plan

(SCP) meeting. The objectives identified for Father were to comply with court

ordered random drug screens and with the recommendations of the CEU dual

assessment.

Periodic permanency reviews showed that Father was either moderately

or minimally compliant with his objectives. In April, July, August, September,

and November 2016, Father returned positive drug screens. Although Father

reported that he was attending substance abuse treatment at the Wedge

Medical Center – North, the center indicated Father had never attended his

intake appointment and was discharged from the program in April 2016.

In January 2017, DHS filed petitions seeking to involuntarily terminate

the parental rights of Mother and Father and change Child’s goal to adoption.

At that time, Child had been in pre-adoptive foster care for the entirety of her

life, over seventeen months.

In May 2017, the court convened a hearing. DHS presented the

testimony of Gaylen Brunson, the Wordsworth CUA case manager. See N.T.,

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5/25/17, at 2. Additionally, DHS’ exhibits 1-11, including its statement of

facts in support of its petition to involuntarily terminate Father’s parental

rights, were entered into the record without objection. See Decree, 5/25/17,

at 2. Father was represented by counsel and testified on his own behalf. See

N.T., 5/25/17, at 26-30. He introduced an appointment slip for JFK Behavioral

Health to show that he had been attending a dual diagnosis program for

mental health and drug and alcohol treatment, although the caseworker stated

he was unaware that Father was attending treatment. Id. at 22, 26-27.

Child was represented by Deborah Fegan, Esquire, as Child’s counsel,

and Angelina Dagher, Esquire, as guardian ad litem (GAL). Id. at 1, 31. Both

counsel and GAL agreed it was in Child’s legal interests and best interests for

Father’s rights to be terminated and Child to be adopted. Id. at 31.

Following the conclusion of DHS’ case in chief, the court granted the

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

terminated Father’s parental rights. The court also entered an order changing

Child’s permanency goal to adoption.

Father contemporaneously filed a timely notice of appeal and concise

statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).2

2 Father pro se timely filed a notice of appeal and concise statement of errors complained of on appeal on June 23, 2017. In September 2017, we remanded the matter to determine whether counsel had abandoned Father and whether further action was necessary to protect his appellate rights. Following remand

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

1. Did the trial court err in terminating [Father’s] parental rights under [23 Pa.C.S.A. § 2511(a)?]

2. Did the trial court err in finding that termination of parental rights best served the child’s developmental, physical and emotional needs under [23 Pa.C.S.A. § 2511(b)]?

3. Did the trial court err in changing the child’s goal to adoption?

See Father’s Brief at vi (unnecessary capitalization, proposed answers, and

answers below omitted).

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 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.

and counsel’s failure to file a docketing statement as ordered, we vacated counsel’s appointment and directed the trial court to determine whether Father was entitled to new court-appointed counsel. New counsel was appointed and ordered to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal by December 1, 2017. New counsel filed her statement in the lower court on December 1, 2017, and in this Court on December 11, 2017. Accordingly, we remanded to determine whether Father had been abandoned by counsel. On May 30, 2018, the trial court responded that counsel had not abandoned Father, and that counsel would be filing an appellate brief that week.

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

omitted).

Here, the court terminated Father’s parental rights pursuant to 23

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

affirm, we need only agree with any one of the subsections of 2511(a), as well

as subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)

(en banc). In this case, we focus our analysis on Sections (a)(2) and (b).

The relevant sections of 23 Pa.C.S. § 2511 provide:

(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:

(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.

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***

(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.

To satisfy the requirements of Section 2511(a)(2), the moving party

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.”

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

grounds for termination are not limited to affirmative misconduct, but concern

parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,

1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward

the reasonably prompt assumption of full parental duties. Id.

Father argues that the court erred in terminating his rights under

Section 2511(a)(2) because he was participating in mental health treatment

and drug and alcohol treatment, and was visiting consistently with Child.

Father’s Brief at 3-4. He contends there was no evidence introduced which

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would establish that the conditions causing the original placement were not

remedied. Id. at 4.

This is, at best, a disingenuous representation of the evidence

introduced at the hearing. Although Father regularly visited with Child, the

evidence introduced at the hearing established that Father was not compliant

with his SCP objectives. Specifically, he was not attending outpatient drug

and alcohol treatment and regularly tested positive for various controlled

substances including marijuana, cocaine, and PCP throughout the pendency

of this case, and as recently as two months prior to the termination hearing.

See DHS Exhibit 7-9. Although Father introduced an appointment slip in an

attempt to show that he was attending treatment, the caseworker was

unaware of Father’s attendance, and Father was discharged from the program

in April 2016. See TCO at 5-6; Father’s Exhibit 1. The trial court credited this

evidence and we afford great deference to such findings. See T.S.M., 71 A.3d

at 267.

Accordingly, we conclude that the trial court properly found by

competent, clear, and convincing evidence that Father’s parental rights could

be terminated pursuant to Section 2511(a)(2), based on the finding that

Father evinced a continued incapacity – his drug abuse – that resulted in Child

being without essential parental care, the cause of which “cannot or will not

be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.

Next, we must consider whether Child’s needs and welfare will be met

by termination pursuant to Section 2511(b). See Z.P., 994 A.2d at 1121. “In

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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. 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:

[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.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.

2000)).

Father testified that he visits regularly and has a bond with Child. See

N.T., 5/25/17, at 29-30. However, the case manager testified that although

Father is consistent with his visits, caseworkers have to encourage Father and

Child to bond. Id. at 19. Instead of playing with Child, Father focuses on his

cell phone. Id. Father was referred to parenting classes, but did not attend.

Id. at 21. The caseworker opined that it would be in Child’s best interests for

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Father’s parental rights to be terminated and Child’s goal changed to adoption,

and that Child would not suffer irreparable harm as a result of the termination.

Id. at 19-20. The court credited the caseworker’s testimony over that of

Father. Id. at 32. On this record, indicating that there was no bond between

Father and Child, who had been in care for her entire life, clear and convincing

evidence supports the trial court’s termination of Father’s parental rights with

respect to 2511(b), where adoption would best serve Child’s needs and

welfare. See Z.P., 994 A.2d at 1126-27.

Finally, Father contends that the court erred in changing Child’s

permanency goal to adoption. Father’s Brief at 6-7. Father reiterates his prior

arguments – that from the time Child came into care, Father visited

consistently with her, and that Father was in both mental health and drug and

alcohol treatment. Id. at 7. Father claims it is in Child’s best interest to be

with her father rather than strangers. Id.

The appeal from the goal change determination is not properly before

us. Father appealed solely from the termination docket, CP-51-AP-0000098-

2017; he did not appeal from the goal change order entered on the

dependency docket. See Notice of Appeal, 5/25/17, at 1-19; see also

Permanency Review Order, 5/25/17, at 1-2; see also Decree of Involuntary

Termination of Parental Rights, 5/25/17, at 1-2. Accordingly, we lack

jurisdiction to consider that merits of this issue. See Pa.R.A.P. 902 (providing

manner of taking appeal); Pa.R.A.P. 903 (providing thirty days to file a notice

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of appeal); see, generally, In re Adoption of W.R., 823 A.2d 1013, 1015-

16 (Pa. Super. 2003).

For all of the above reasons, we affirm the termination of Father’s

parental rights to Child.

Decree affirmed.

Judge Platt joins the memorandum.

Judge Dubow did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/28/18

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