J-S20014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.R.J., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : : : APPEAL OF: A.J. : No. 1578 WDA 2018
Appeal from the Order Entered October 4, 2018 in the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000067-2018
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 20, 2019
A.J. (“Father”) appeals from the Order granting the Petition filed by the
Allegheny County Office of Children, Youth and Families (“CYF”), and
involuntarily terminating Father’s parental rights to his daughter, H.R.J.
(“Child”), pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).1 We
affirm.
Child was born to Father and Mother in October 2011. On July 26, 2016,
Child was admitted to Children’s Hospital with bruising to her face, chest,
lower back, buttocks and thighs. Father admitted to striking Child, and was
subsequently charged with and convicted of simple assault of a victim less
than six years old. Father was sentenced to twelve months of probation, and
____________________________________________
1 The trial court also involuntarily terminated the parental rights of Child’s mother, A.K. (“Mother”). Mother has not filed an appeal from the termination of her parental rights, nor is she a party to the instant appeal. J-S20014-19
ordered to attend anger management and parenting classes, and to have no
unsupervised contact with Child.
CYF subsequently became aware of Father’s abuse of Child, and
requested a shelter hearing. On July 27, 2016, following a hearing, Child was
adjudicated dependent. Child was placed into the home of her paternal
grandfather and his paramour.
On March 19, 2018, CYF filed Petitions seeking the involuntary
termination of Father’s and Mother’s parental rights to Child. On October 9,
2018, following a hearing, the trial court granted CYF’s Petition pursuant to
23 Pa.C.S.A. § 2511(2), (5), (8), and (b). Father timely filed a Notice of
Appeal and a Concise Statement of matters complained of on appeal.
Father raises the following issues for our review:
1. Did the trial court abuse its discretion and/or err as a matter of law in granting the [P]etition to involuntarily terminate Father’s parental rights pursuant to 23 Pa.C.S.[A.] §[ ]2511(a)(2), (5), and (8)?
2. Did the trial court abuse its discretion and/or err as a matter of law in concluding that CYF met its burden of proving by clear and convincing evidence that termination of Father’s parental rights would best serve the needs and welfare of [C]hild pursuant to 23 Pa.C.S.[A.] §[ ]2511(b)?
Father’s Brief at 6.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for termination of parental rights. As in dependency
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cases, our standard of review requires an appellate court 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
As we discussed in [In re] R.J.T., [9 A.3d 1179, 1190 (Pa. 2010),] there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court’s legal conclusions are not the result of an error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
We will address Father’s claims together. First, Father alleges that CYF
failed to present clear and convincing evidence that Father was unable to care
for Child pursuant to subsections 2511(a)(2), (5) and (8). See Father’s Brief
at 18-21. According to Father, CYF’s case rested largely on the fact that Father
failed to consistently attend therapeutic sessions through Three Rivers
Adoption Council, (“TRAC”). Id. at 20. Father argues that his attendance at
the TRAC sessions was not a prerequisite to reunification, and therefore, his
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failure to attend all of the sessions could not be a basis for termination. Id.
at 20-21. According to Father, the classes were designed to assist with the
reunification process, and the evidence at the termination hearing proved that
Father had positive interactions with Child and displayed positive parenting
skills. Id.
In his second claim, Father alleges that CYF did not present clear and
convincing evidence that termination of Father’s parental rights is in Child’s
best interests pursuant to Section 2511(b). See Father’s Brief at 21-24.
Father claims that Child would suffer an emotional setback if Father’s parental
rights were terminated. Id. at 22-23. Father points to the testimony of Dr.
Neil Rosenblum, who stated that it “would be a disaster for [Child] to totally
be shut out from having contact with [Father,]” and that Child “needs her
relationship with [Father]….” Id. at 22 (citation to record omitted). Father
argues that permanent legal custody, rather than adoption, would better serve
Child’s interests. Id. at 23-24.
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 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 [subsection] 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 [subsection] 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
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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). This Court may affirm the
trial court’s decision regarding the termination of parental rights with regard
to any one subsection of section 2511(a), along with consideration of Section
2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Here, we will consider subsections 2511(a)(2) and (b), which provide as
follows:
§ 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:
***
(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.
(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. …
23 Pa.C.S.A. § 2511(a)(2), (b).
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The Supreme Court set forth our inquiry under Section 2511(a)(2) as
[Section] 2511(a)(2) provides statutory grounds for termination of parental rights where it is demonstrated by clear and convincing evidence that 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. …
This Court has addressed incapacity sufficient for termination under [Section] 2511(a)(2):
A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based upon parental incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.
In re Adoption of S.P., 47 A.3d at 827 (quotation marks, brackets, and
citations omitted).
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but it is on the child pursuant to Section
2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). In reviewing the evidence in support of termination under
Section 2511(b), our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a court “shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include intangibles such as love, comfort, security, and stability. In In re
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E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child’s “needs and welfare” requires consideration of the emotional bonds between the parent and child. The “utmost attention” should be paid to discerning the effect on the child of permanently severing the parental bond.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations and quotation
marks omitted; brackets omitted).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child’s feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent. … Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in of itself, or when considered in connection with a child’s feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and [his or her] mental and emotional health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (citations and quotation
marks omitted).
Our Supreme Court has stated that the mere existence of a bond or
attachment of a child to a parent will not necessarily result in the denial of a
termination petition, and that “[e]ven the most abused of children will often
harbor some positive emotion towards the abusive parent.” See In re T.S.M.,
71 A.3d at 267. The Supreme Court stated that “[t]he continued attachment
to the natural parents, despite serious parental rejection through abuse and
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neglect, and failure to correct parenting and behavior disorders which are
harming the children cannot be misconstrued as bonding.” Id.
Thus, the court may emphasize the safety needs of the child. See In
re K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental
rights, despite existence of some bond, where placement with mother would
be contrary to child’s best interests). “[A] parent’s basic constitutional right
to the custody and rearing of his or her child is converted, upon the failure to
fulfill his or her parental duties, to the child’s right to have proper parenting
and fulfillment of [the child’s] potential in a permanent, healthy, [and] safe
environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
In its Opinion, the trial court addressed Father’s claims and concluded
that they lack merit. See Trial Court Opinion, 1/11/19, at 4-7 (pages
unnumbered). We agree with and adopt the sound reasoning of the trial court,
and affirm on this basis with regard to Father’s claims. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/20/2018
-8- Circulated 05/02/2019 11 37 AM ·
IN THE COURT OF CO:MJvION PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION
IN THE INTEREST OF: CIDLDREN'S FAST TRACK APPEAL
H.R.J., CP-02-AP-000067-2018 1578 WDA 2018 A MINOR. OPINION OF THE COURT
OPINION
Before the Court is a matter arising from an Order granting the petition of the Allegheny
County Office of Children, Y outh, and Families ("CYF") for Termination of the Parental Rights
(''TPR") of A.J., the Biological Father ("Father") of H.R.J. ("child"), pursuant to 23 Pa. C.S.
§§2511 (2), (5), and (8) and §2511 (b) The Court engaged in a two-step analysis by which it
found and determined .grounds to terminate under 23 Pa. C.S. §§2511 (a)(2),(5) and (8) existed;
then, this Court addressed the child's needs and welfare under 23 Pa. C.S. §2511 (b). [See In re
J. F.M., 71 A. 3 d 9 8 9 (Pa. Super 2013)] For the reasons set forth below, the Order of this Court
terminating the parental rights of Father A.J. should be affirmed.
A party seeking termination of parental rights must establish by clear and convincing
evidence that the parent's conduct satisfies at least one of the statutory grounds for temrination;
if it is determined that this burden of proof has been met, then the trial court must next consider
the second step of the process, which entails a determination of whether termination best serves
the needs and welfare if the child. In re S.D. T., Jr., 934 A.2d 703 (Pa. Super 2007) In
reviewing an order terminating parental rights, the appellate court "is Limited to determining
whether the decision of the trial court is supported by competent evidence .. Absent an abuse of discretion, an error of Jaw, or insufficient evidentiary support for the trial court's decision, the
decree must stand." In re S.H., 879 A.2d 802, 809 (Pa. Super 2005) When determining whether
terminating parental rights serves the child's needs and welfare, the Court mustexamine the
nature and status o� any bond between the parent and the child and consider whether severing
that bond would destroy a relationship that is "necessary and beneficial." In re P.A.B., 570 A.2d
522, 525 (Pa. Super 1990). Furthermore, the trial court is "the sole determiner of the credibility
of witnesses and resolves all conflicts in testimony." Id. To affirm, the appellate court need only
agree that grounds exist for termination under any one of the subsection of applicable law.
Adoption of C.J.P., 114 A.3d i046, 1050 (Pa. Super 2015). Pennsylvania law provides.for the
(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.
[ ... ]
(8) The child has been removed from the care of the parent by the court or under a voluntary agreenient 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.
23 Pa.C.S. § 2511 (a)(l), (a)(2), (a)(8). Moreover,
[t]he 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.
A hearing was conducted in regards to the ''TPR" petition on October 4, 2018. The Court
. _ heard.testimony.fromnumerous witnesses, .. including.. the-Biological-Father. -The .testimony--- -·
accepted was that the minor child came into the care of Allegheny County Children Youth and
Families ("CYF") on July 27, 2016 [NT 6, In 8-9] and was adjudicated dependent on September
7, 2016. [NT 6, In . 10-11] The .child, H.R._J., was placed into the home of her paternal
grandfather and his paramour (hereinafter referred to as "foster parents") for the past twenty-two
months. [NT 19, In 4-10] The child was born to A.J. and AK., who abandoned the child. The
child came into the care of CYF as a result of a physical assault by Father which resulted in harm
to the child and a subsequent diagnosis of Post Traumatic Stress Disorder. [NT 6, In 15-25; NT
7, In 13-22]. Father was prosecuted and convicted for simple assault of a victim under the age of
twelve. [NT 17, ln 7-13] As a result of the criminal prosecution, Father was placed on probation
for the criminal matter with many conditions similar to the goals of the dependency proceeding.
CYF reunification goals were established to include: scheduled visitation with the child; anger
management; mental health evaluation and compliance with treatment; housing requirements; and to comply/maintain contact with the agencies involved with supervision over both matters.
[NT 14, In 13-18}.
Throughout the life of this case, Father's parenting and participation has been at issue.
Credible testimony was provided by Elva Chavez, a CYF caseworker assigned to this matter.
Ms. Chavez testified that Father did complete the anger management and mental health programs
at Positive Pathways, which were also required by the criminal prosecution. Father, however,
failed to successfully complete family therapy with the child. Not completing family therapy
yielded noncompliance with the CYF goal of mental health treatment, because family therapy
was an important element as the original reason for removal was an assault by Father. [NT 15,
_____ __ In ? �14l_G�s-�.1.Y�t.:lc�_r_ Gh.ll:Y�:z;_Je§tifi�4 _9i:�4tll:b: regarding __99.119.�§ _qf..th:�__ f':!th�:r '. � llj:}J}i_!:ytC>_
parent the child as he has not had the child in his care for near I y two years. Further, when last in
his sole custody the child suffered physical abuse. [NT 16, ln 16-14] The caseworker noted
that in addition to the above, the Father lacked consistency with Court ordered visitation
schedule. From March 2017 to January 2018, Father met for visits 8 out of 45 times or less than
20% of the permitted visitation schedule. [NT 18, ln 1-2}. It is this lack of consistency that has
plagued Father throughout this case.
The Court heard from witness Lily Vandik of Three Rivers Adoption Council. This
agency received a referral for the child's family to perform an assessment to include
psychosocial evaluation. Ms. Vandik detailed to the Court the numerous attempts she and her
colleague made to schedule evaluations with the Father. Father and child were scheduled to
meet with the agency worker bi-weekly for therapy session through Three Rivers Adoption
Council (TRAC). The goal of the meetings were to address Father's coping skills and identify
triggers that cause hint anger, specifically which gave rise to the removal of the child and-the
\ initiation of dependency proceedings. (NT 53, ln 11-19] In total, Father sporadically attended 7
sessions between February 2018 and July 2018 and he missed or cancelled sessions in between.
[NT 52, 1n 4-11] Ms. Vandik offered Father an open schedule to avoid potential scheduling
conflicts so that he could meet his goals of family therapy, but Father chose not to attend this
1 · Court's mandated sessions because "he felt that he was getting what was needed at a different
service . provider," despite - the. Court order. [NT . 54, In .7-16]. . As a result . of this inaction, . Ms'.
Vandik closed the referral in the case. [Id. at 20-23]
This Court found that.Father only adhered to the CYF goals that wereconsistent with the
Probation Department of the Criminal Division. Father failed to adequately address any
... . .......... ··- �d.<:ljtipp,.i_lgQa,l�-��.tforth_by_tbis Courtpertaining.to reunification.and_only.positi.v.elyr.esponded__ _ ······-- -- .
when a criminal: penalty or sanction existed. It was this Court's finding that reunification was
not as much of a priority as was his desire to complete his probation.
The pattern set by the Father of failing to follow through with the goals of reunification,
as set by the Court, was further reinforced by the testimony of Dr. Neil Rosenblum, an expert
from Allegheny ForensicAssociates, who is a court-appointed psychological evaluator. It was
Dr. Rosenblum's expert opinion that Father has not made being a parent a priority nor has he
adequately addressed or remedied these issues. Throughout his testimony, Dr. Rosenblum
detailed Father's lack of follow through in his commitments to therapy, whether it be his failure
to follow through with TRAC visitation or more importantly, Father not being able to
demonstrate the ability to understand and effectively respond to the child's emotional needs and
· existing adjustment concems.1 [See: Psychological Evaluation, Dr. Neil Rosenblum, Ph.D.;
Court Exhibit J
1 Q. [Ms. Abernathy] You also said that the goal ofreunlftcatlon was no longer viable? Further, Dr. Rosenblum opined that the environment, provided by her foster parents,
provides the child with the stability and security she needs to move forward in her adjustment.
[NT 107, ln 1-3] In his expert. clinical opinion "that she has a very meaningful and positive
attachment to the foster parents, who have been psychological parents now for the last two
years." [NT 96, ln 17-20]
This Court acknowledged through the Father's testimony_thathe loves the child and the
child loves her Father. The Court identified that an emotional bond existed between Father and
child. However, after deliberate consideration and review of the record, the Court made a
specific finding that the emotional bond is significantly outweighed by the inability for Father to
________________ �f'f€::�!iy_�l_y_ ���-n!__th�--�hilcl __i.i}_l_igl1t .9.f_l!i� -��dm��JaGk of__commitmenttobe a parent, respond to _
the child's emotional needs and her existing adjustment concerns. It is in this Court's opinion
that a significant ( emphasis added) bond existed with the foster parents so much that the child -
thinks of them as mom and dad, and that foster parents are providing the needs and welfare of
the child. The fact that a biological parent loves their child is only one component of parenting ..
There are other components necessary to effectively parent, which Father falls short. The
components of permanency, trust, and emotional dependency have been effectively provided to
the child by the foster parents for the past twenty-two months. A Father owes his child a duty to
provide them with love, protection, guidance and support. (See In re B.M.N., 856 A.2d 847, 855
(Pa. Super. 2004). A child's needs both, "'physical and emotional, cannot be met by a merely
A. {Dr. Rosenblum] Well, father has had some starts and stops and some spurts of visitation. To cut to the chase, if we look at his actions over the last two and one half yea rs he has not been able to make his daughter a priority. He has not been able to stick with the TRAC program. He's not been able to visit consistently. He has floundered in hi_s life ...._ But the bottom l_ine is that two and a half vears has gone by and father has not been able to take sufficient steps to demonstrate that he is capable of providing a stable, secure home and supportive environment for his daughter. Or is capable of making her a priority. So it continues to be my testimony that an alternative permanency goal is indicated at this time. [NT 100, In 4-25] passive interest in the development of the child.": Id. at 855 (quoting In re C.M.S., 832 A.2d
457, 462 (Pa. Super. 2003)); accord In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
CONCLUSION
The evidence discussed above amply supported the Court's conclusion that Father had
nearly two years to demonstrate his commitment to parent the child. Father chose not to avail
himself of the available resources to nourish the parent-child relationship and understand her
needs. Father failed to provide the consistent and steady contact/visitation over a period of time
sufficient to demonstrate a serious intent to re-establish parental responsibilities. A '"parent
. -·· ---·-·· ··- ··- -- who --··cannot . ·-······-·-. .. or will not meet the requirements within---·-··a ·····-- ---······-·- ·-····-----·-· -------- -···-····- .. ·-- --·-······· -·-------·· --- --····· reasOI"!!!°l -· J!�Ji:g:i�_ fQHQw}11g _ip.t�fY.t!pJi.9_11__py_ .. . _ __ · ···- .. _ .
the state may properly be considered unfit"' and have his parental rights terminated. K.Z.S., 946
at 759 (quoting In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super. 2001)). The Court finds the
evidence more than sufficient to conclude that Father cannot or will not remedy the issues that
brought the child into care nods willing to make the child a priority in his life. The child's bond
with the Biological Father "no longer helps but rather hinder]s] the child".2 It is clear that the
foster home provides security for the child and that the child is bonded to them. CYF has carried
the burden of proving by clear and convincing evidence that Father's rights should be terminated
to serve the child's best interest. The Court is hopeful that the foster parents (paternal
grandfather and his paramour) will still allow for contact and communication with Father, so that
the bond is not entirely broken. Therefore, for these reasons, the Court's order should be
affirmed.
2 In re P.A.B., 570 A.2d 522, 526 (Pa. Super. 1990) BY THE COURT:
pµJd� The Hon. David L. Spurgeon