J-S25016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: O.L.M., III : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: O.M., FATHER : : : : : : No. 214 WDA 2022
Appeal from the Order Entered January 19, 2022 In the Court of Common Pleas of Allegheny County Juvenile Division at No(s): CP-02-AP-0000189-2021
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED: September 14, 2022
O.M. (“Father”) appeals from the January 19, 2022 order entered in the
Allegheny Court of Common Pleas that involuntarily terminated his parental
rights to three-year-old O.L.M. (“Child”). Upon review, we affirm.
The factual and procedural history in this case is largely undisputed, as
the parties submitted joint stipulations into evidence at the beginning of the
termination hearing. In sum, in June 2019, Child was born at West Penn
Hospital while Mother was incarcerated. Child tested positive for Subutex and
remained in the newborn intensive care unit while he experienced withdrawal
symptoms. The Allegheny County Office of Children, Youth, and Families (“the
Agency”) contacted Father, who disclosed that he was currently homeless,
had a lengthy criminal history including sexual assault of a minor when he was
a minor, public drunkenness, and pending charges for aggravated assault.
Father also disclosed a history of mental health issues including diagnoses of J-S25016-22
depression, bi-polar disorder, and anxiety. The Agency obtained emergency
custody of Child, and at the shelter care hearing, Father tested positive for
drugs that were not prescribed to him. The Agency initially placed Child with
Father’s mother, who requested that Child be removed a few days later. The
Agency then secured a foster home for Child, where Child has remained
throughout the course of the dependency proceedings living with S.D (“Foster
Mother”).
On August 7, 2019, the trial court adjudicated Child dependent and the
court ordered Father to continue to participate in mental health treatment,
obtain a drug and alcohol assessment and follow recommendations, comply
with drug screens, and obtain suitable housing. The court granted Father
supervised visitation with Child two times per week.
In November of 2019, Father began living with Mother. At a
permanency review hearing on December 14, 2019, Father tested positive for
THC and Xanax. The trial court ordered Father to resolve his criminal charges,
attend dual diagnosis treatment, submit to random drug screens, attend
parenting classes, and confirm his visits with Child 24 hours in advance. On
June 23, 2020, the court held another permanency review hearing. In addition
to the above-mentioned goals, the court ordered Father to cooperate with in-
home services and allowed Father’s visits with Child to be moved to a
community setting. On August 26, 2020, after a hearing, the trial court found
that Father was compliant with dual diagnosis treatment, although heard
testimony that Foster Mother was concerned that Father was under the
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influence of drugs or alcohol during a visit with Child due to Father’s
unresponsive nature. The court ordered Father to have an updated drug and
alcohol evaluation.
On October 12, 2020, Mother died from a drug overdose. Father, who
had been living with Mother for over a year, was not named in the lease
agreement and was unable to remain in the apartment after Mother’s death.
Father moved into a homeless shelter and then stayed with friends until he
was admitted to a hospital psychiatric unit on November 17 and 18, 2020, and
again on November 28 through December 2, 2020. After his release, Father
continued to experience housing instability, again staying in a homeless
shelter and with various friends. At a December 8, 2020, hearing, the trial
court ordered Father to comply with mental health treatment.
On April 14, 2021, after a hearing, the court once again ordered Father
to comply with an appropriate level of mental health treatment. After the
August 31, 2021, permanency review hearing, the trial court heard evidence
that Father was incarcerated on three different occasions since the last court
hearing and had criminal charges pending. The court ordered Father’s
supervised visits with Child to be decreased to once a week.
On September 17, 2021, the Agency field a termination of parental
rights petition against Father seeking to terminate his parental rights under
Sections 2511(a)(2), (5), (8), and (b) of the Adoption Act. The trial court
appointed Child’s guardian ad litem (GAL) to serve as Child’s legal counsel
after the court found that the dual role did not pose a conflict.
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On January 14, 2022, the trial court held a hearing on the termination
petition. It heard testimony from Courtney Reinhardt, Agency supervisor;
Greensburg police officer Chase Mollomo; Kristina Scott, Children’s Institute
foster care specialist; Patricia Pepe, Ph.D, licensed psychologist and expert in
the field of child psychology; Brian Reese, Axiom family counseling drug and
alcohol clinical supervisor; and Father.
Ms. Reinhardt testified in accordance with the above-stated facts.
Additionally, Ms. Reinhardt testified that Father was non-compliant with the
recommended level of both drug and alcohol and mental health treatment.
Ms. Reinhardt testified that Father never participated in the recommended
intensive outpatient treatment, despite the Agency offering in-home services
and a Father Engagement Specialist to assist Father with obtaining
appropriate services. Ms. Reinhardt also informed the court that after Father’s
inpatient psychiatric hospitalizations, he never increased his level of treatment
as was typically recommended.
Ms. Reinhardt testified that Father continued to display impulsivity and
poor decision making as evidenced by his continued criminal activity, including
the five sets of criminal charges filed against Father—in June 2020 and in
March, May, June, and August of 2021—while Child has been in foster care.
Ms. Reinhardt also expressed concern that Father has been incarcerated on
outstanding warrants four times since Child’s birth and was serving probation
and had pending charges at the time of the termination hearing. Ms.
Reinhardt stated that Father has not demonstrated housing stability and has
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moved 13 times since Child has been in care. Ms. Reinhardt explained that
Father provided the Agency with a lease a few weeks ago, but the document
was difficult to read and decipher. She further testified that Father completed
the Family Resources Nurturing Program, but was discharged from the Justice
Works Coached Visitation program for noncompliance and failed to attend any
of Child’s medical, educational, or treatment appointments.
Ms. Reinhardt testified that she believed that termination of Father’s
parental rights would be in Child’s best interest. Ms. Reinhardt stated that the
Agency has safety concerns if Father were to be Child’s primary caretaker due
to Father’s ongoing impulsivity and aggression, as well as the fact that Father
has not progressed to unsupervised visitation with Child.
Officer Mollomo testified that he arrested Father on July 14, 2021, and
charged him with Simple Assault and Terroristic Threats after Father allegedly
became irate, chased a woman through an apartment complex while
threatening her, and then hid from police in a closed bathroom. Upon arrest,
Officer Mollomo discovered that Appellant had an outstanding warrant from
another jurisdiction.
Ms. Scott testified that she supervises visits between Father and Child.
Ms. Scott explained that Father has been offered a total of 279 visits while
Child has been in the care of the Agency; Father has attended 196 visits,
Father has canceled 68 visits, and 15 visits were canceled by the Agency or
Child for various reasons. Ms. Scott testified that Father missed 24 visits from
May 5, 2021 to August 16, 2021 due to 2 holidays, his incarceration, his no-
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shows, or no available ride. Ms. Scott stated that from August to October
2021 visits were difficult and Child would often have “melt downs” or
“[t]antrums, screaming, yelling, kicking, throwing toys” or even swearing at
Father in response to interactions with Father. N.T. Hearing, 1/14/22, at 37-
38. Ms. Scott further stated that visits improved substantially from October
2021 to January 2022 after Foster Mother reminded Father that Child has
sensory processing issues and gave Father tips on how to be affectionate with
Child and how to redirect Child. Ms. Scott testified that Child is usually excited
to see Father, and during the visits Father and Child play and Father feeds
Child snacks and changes his diaper when appropriate. However, Ms. Scott
explained that whenever Child has a meltdown, it is usually because Father
does not read Child’s cues and tries to hug Child and pick him up.
Dr. Pepe completed interactional evaluations between Father and Child
and between Foster Mother and Child. Dr. Pepe also attempted to complete
an individual evaluation of Father, who was uncooperative with parts of the
evaluation. Dr. Pepe testified that she diagnosed Father with anti-social
personality disorder, uncomplicated bereavement, history of depression,
history of anxiety, and history of bipolar disorder. Dr. Pepe testified that there
are ”grave implications related to child care for parents that are diagnosed
with anti-social personality disorder[,]” a disorder which entails a “pattern of
disregard for and the violation of others[.]” Id. at 66. Dr. Pepe based this
diagnosis on Father’s “extensive criminal history, his attitude and that there
is the potential to become aggressive and irritable easily, repeated physical
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attacks or assaults.” Id. at 66-67. Dr. Pepe explained her clinical concerns
for a parent diagnosed with anti-social personality disorder, including: “the
parents can become irritable, can have poor frustration tolerance and there
can be a general lack of stability, for example, if a parent is incarcerated or
arrested then it leaves the child without that parent.” Id. at 68. Dr. Pepe
also explained that Father was evasive and tried to intimidate her during the
evaluation. Dr. Pepe testified that, considering Father’s mental health
diagnoses, Father’s mental health treatment less than twice a month at Axiom
from November 2018 to June 2021 was not sufficient. Dr. Pepe recommended
more intense treatment to occur at a minimum of once a week.
Dr. Pepe testified that Child’s primary attachment is with Foster Mother,
who Child considers his psychological parent, or the person who is responsible
for taking care of him, keeping him safe, and meeting his needs daily. Dr.
Pepe noted that Child displays spontaneous physical affection for Foster
Mother, calls her “mommy,” and cries for Foster Mother when she is out of the
room.
Dr. Pepe testified that Child does not display an attachment or bond to
Father and merely tolerates his presence. Dr. Pepe explained that during a
visit, she observed Child set up two playhouses as a barrier between Child and
Father, which Dr. Pepe characterized as a “coping mechanism for his own
sense of safety and security to feel as though, you know, he had a barrier, a
separation.” Id. at 59. Dr. Pepe explained that Child’s lack of attachment to
Father is likely due to inconsistent nature of their relationship.
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Finally, Dr. Pepe testified that Father does not have the capacity to meet
Child’s essential needs at this time and recommended that Child be provided
with permanency through adoption. Dr. Pepe testified that there would be no
emotional detriment to Child if Father’s rights were terminated. In contrast,
Dr. Pepe testified that if Child were to be removed from Foster Mother’s care,
it could result in psychological trauma, depression, or developmental
regression in Child.
Mr. Reese testified that Father has been compliant with therapy on a
weekly or biweekly basis since August 5, 2021, his second admission to the
program, with no sign of relapse. Mr. Reese explained that Father is receiving
treatment for alcohol dependency, cannabis abuse, and the following
disorders: general anxiety, major depressive, post-traumatic stress, and
bipolar disorder. He further testified that he also provides mental health
treatment to Father, and that Father is compliant. Mr. Reese confirmed that
Father submits to random drug screens and meets with a nurse practitioner
for medication management. Mr. Reese explained that Father was previously
receiving monthly treatment from November 2018 to June 2021, and he was
subsequently discharged due to his incarceration in July.
Father testified that he has voluntarily been in treatment at Axiom since
2018, and he reengaged in treatment within two weeks of being released from
his last incarceration in July 2021. Father explained that on December 1,
2021, he signed a year-long lease on an apartment, but that the Agency has
not been out to see it. Father admitted that he was using marijuana illegally
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when Child was first born, but explained that he has since gotten a medical
marijuana card. Father denied abusing alcohol.
Father testified that he felt like he and Mother were very close to
reunifying with Child right before Mother’s death. Father explained that he
had appropriate housing and was complying with his goals. Father testified
that he felt betrayed when Mother died and stated that he was “[j]ust keeping
myself together.” Id. at 126. Father testified that he pleaded guilty to
Resisting Arrest and Public Drunkenness on July 27, 2021, Resisting Arrest
and Simple Assault on September 2, 2021, and Unauthorized Use of a Motor
Vehicle and Accident Involving Damage to an Attended Vehicle on November
10, 2021. Father confirmed that he started to get his “stuff back together” in
July of 2021 after he was released from incarceration. Id. Father explained
that he has not been arrested since then and is currently on probation.
Father testified that his visits with Child are “great.” Id. at 122. Father
stated that he believes he is “capable of being a great father” to his son. Id.
at 128. Father stated that his progress was delayed when Mother died and
that was not his fault. Father testified, “I just feel like I can’t move on in life,
I can’t move on in life I feel like until I just have my son. . . So I just like, you
know, praying to God and just trying to do every single thing I can do in my
power to get my son back to me because he needs his dad.” Id. Father
confirmed that he would like more time to meet his goals and reunify with his
son and that he does not want his parental rights to be terminated.
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At the conclusion of the hearing, the trial court terminated parental
rights. Child’s attorney, acting in a court-approved dual role of GAL and legal
counsel, advocated for and agreed with the court’s decision to terminate
Father’s parental rights.
Father timely appealed. Both Father and the trial court complied with
Pa.R.A.P. 1925.
Father raises the following issue for our review: “Did the evidence
support the conclusion of the trial court that the causes of the incapacity,
abuse, neglect, or refusal cannot or will not be remedied by the parent?”
Father’s Br. at 4 (some capitalization omitted).
When we review a trial court’s decision to grant or deny a petition to
involuntarily terminate parental rights, we must accept the findings of fact and
credibility determinations of the trial court if the record supports them. In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013). “If the factual findings are supported,
appellate courts review to determine if the trial court made an error of law or
abused its discretion.” Id. (citation omitted). “Absent an abuse of discretion,
an error of law, or insufficient evidentiary support for the trial court’s decision,
the decree must stand.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation omitted). We may not reverse merely because the record could
support a different result. T.S.M., 71 A.3d at 267. We give great deference
to the trial courts “that often have first-hand observations of the parties
spanning multiple hearings.” Id. Moreover, “[t]he trial court is free to believe
all, part, or none of the evidence presented, and is likewise free to make all
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credibility determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. “Initially,
the focus is on the conduct of the parent.” In re Adoption of A.C., 162 A.3d
1123, 1128 (Pa. Super. 2017) (citation omitted). “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).” Id. (citation omitted). If the court determines that the parent’s
conduct warrants termination of his or her parental rights, the court then
engages 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.” Id. (citation omitted). Notably, we need only agree
with the court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination of parental rights. In re K.Z.S.,
946 A.2d 753, 758 (Pa. Super. 2008).
In his sole issue, Father avers that the trial court abused its discretion
when it terminated his parental rights pursuant to Section 2511(a)(2).
Father’s Br. at 6. Father avers that the factors creating his incapacity to
parent were pending criminal charges, housing instability, and his need for
dual treatment for mental health and drug and alcohol issues. Id. Father
argues that he remedied those factors by September 2020, but experienced
a setback when Mother passed away and he once again “fell victim to each of
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his incapacities.” Id. at 7. However, Father further argues, that at the time
of the hearing, he had remedied his incapacities except for pending criminal
charges. Accordingly, Father contends that the trial court abused its discretion
when it terminated his parental rights. We disagree.
Section 2511(a)(2) provides for termination of parental rights where the
petitioner demonstrates by clear and convincing evidence that “[t]he 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.” 23 Pa.C.S. § 2511(a)(2); In re Adoption of S.P., 47 A.3d 817,
827 (Pa. 2012). The grounds for termination of parental rights under Section
2511(a)(2) due to parental incapacity are not limited to affirmative
misconduct; those grounds may also include acts of refusal as well as
incapacity to perform parental duties. In re N.A.M., 33 A.3d 95, 100 (Pa.
Super. 2011). Thus, sincere efforts to perform parental duties may still be
insufficient to remedy an incapacity. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super 2010). This is because subsection (a)(2) “emphasizes the child’s
present and future need for essential parental care, control or subsistence
necessary for his physical or mental well-being,” especially “where disruption
of the family has already occurred and there is no reasonable prospect for
reuniting it.” Id. (citation and emphasis omitted).
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It is well-settled that a parent is “required to make diligent efforts
toward the reasonably prompt assumption of full parental responsibilities.”
Id. at 1117-18 (citation omitted). Notably, a “parent's vow to cooperate,
after a long period of uncooperativeness regarding the necessity or availability
of services, may properly be rejected as untimely or disingenuous.” Id.
(citation omitted). Finally, a parent’s repeated pattern of criminal activity
coupled with a failure to comply with court-ordered goals may satisfy the
requisites of incapacity, abuse, neglect or refusal. In re Adoption of W.J.R.,
952 A.2d 680, 687 (Pa. Super. 2008).
Applying these principles, the trial court concluded that the Agency
presented clear and convincing evidence that Father does not have the
capacity to perform parental duties, despite his best efforts. The trial court
found that “Father’s multiple periods of incarceration and psychiatric
hospitalizations have prevented him from establishing and maintaining himself
as a consistent presence in Child’s life.” Trial Ct. Op., dated 4/19/22, at 13.
The trial court emphasized that in the year leading up to the termination
hearing, Father experienced 4 arrests, 3 incarcerations, and a psychiatric
hospitalization. The trial court opined that Father “failed to engage in the level
of treatment necessary to sufficiently address his drug and alcohol and mental
health issues” despite the court ordering Father to engage in an appropriate,
i.e. higher, level of treatment. Id. at 15. The trial court also found that
despite Father participating in parenting classes, Father “never demonstrated
sufficient parenting ability to progress to unsupervised visitation.” Id. at 16.
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Finally, the trial court credited Dr. Pepe’s expert opinion that “Father lacks the
capacity to meet Child’s essential needs,” Child’s primary attachment is with
Foster Mother, and Child “merely tolerates” Father rather than looking to
Father to fulfill his needs. Id. (quotation marks omitted).
As stated above, the trial court is free to believe all, part, or none of the
evidence as well as make credibility determinations and weigh the evidence.
The evidence of Father’s repeated criminal activity, failure to engage in an
appropriate level of mental health and drug and alcohol treatment, failure to
progress to supervised visitation, and inconsistent visitation coupled with Dr.
Pepe’s expert testimony provided the trial court with ample evidence to
support a termination of Father’s parental rights pursuant to Section
2511(a)(2). We decline to reweigh the evidence. As the record supports the
trial court’s findings, we discern no abuse of discretion.1
Order affirmed.
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1 We decline to address whether the Agency has presented sufficient evidence to satisfy the requirements for termination pursuant to Section 2511(b) because Father has not raised this challenge on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/14/2022
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