IN THE INTEREST OF: D.R.-W., A MINOR; APPEAL OF: D.W., FATHER
Nos. 779 EDA 2019, 780 EDA 2019, 886 EDA 2019, 887 EDA 2019
Superior Court of Pennsylvania
January 29, 2020
2020 PA Super 15
SHOGAN, J.
J-A27033-19
Appeal from the Decree Entered December 12, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000677-2018
Appeal from the Order Entered December 12, 2018 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0000874-2017
BEFORE: BOWES, J., SHOGAN, J., and COLINS, J.*
OPINION BY SHOGAN, J.:
FILED JANUARY 29, 2020
D.W. (“Father“) appeals from the decrees1 entered December 12, 2018, which terminated involuntarily his parental rights to his son, D.R.-W., born in January 2013, and his daughter, E.R.-W., born in March 2017 (collectively, “the Children“).2 Father also appeals from the orders entered that same day,
The record reveals that the Philadelphia Department of Human Services (“DHS“) filed dependency petitions regarding the Children on March 30, 2017. Therein, DHS stated that it received a General Protective Services report on February 3, 2017, which alleged substance abuse and mental health concerns with respect to Mother. DHS averred that it received a subsequent General Protective Services report on March 21, 2017, following the birth of E.R.-W. The report alleged that E.R.-W. was born prematurely and tested positive for methadone, and that Mother tested positive for methadone, benzodiazepines, and PCP shortly prior to E.R.-W.‘s birth. As for Father, DHS averred that he had a history of unstable housing and drug-related convictions. On April 12, 2017, the trial court entered orders adjudicating the Children dependent and placing them in Father‘s care. The court also referred Father for drug screens and a substance abuse assessment and directed that he enroll in services at the Achieving Reunification Center (“ARC“).3
This arrangement did not last, and DHS obtained emergency protective custody of the Children less than two months later on May 30, 2017. In its applications for emergency protective custody, DHS averred that Father‘s whereabouts were unknown, and the Children were living with their maternal
Following the Children‘s placement in foster care, Father made minimal progress toward regaining custody. The Community Umbrella Agency (“CUA“) prepared a series of Single Case Plan (“SCP“) goals for Father, which included obtaining substance-abuse treatment, following all recommendations, complying with random drug screens, receiving services at ARC, obtaining stable housing, and obtaining proper employment. N.T., 12/12/18, at 17. As the record demonstrates, Father made little progress toward completing his goals throughout the life of this case.
The trial court conducted a permanency review hearing on October 13, 2017. N.T., 12/12/18, at 17. At the time of the hearing, Father was not visiting the Children, did not have stable housing, and was not attending ARC. Id. at 19. He tested positive for opiates on August 31, 2017. Id. In addition, while Father was scheduled for a substance abuse assessment on September 26, 2017, he failed to appear. Id. Father was arrested for a parole violation after the October 13, 2017 hearing, and was incarcerated for an unspecified period. Id. at 20.
A final permanency review hearing took place on September 5, 2018. By that time, Father had attended an intake appointment at ARC on August 22, 2018. Id. at 23. However, he failed to follow up with services after the appointment, and ARC discharged him as of November 27, 2018. Id. Father also failed to provide CUA with an address, despite several requests. Id. at 23-24.
On December 12, 2018, the trial court conducted a hearing on DHS‘s termination and goal change petitions. At the conclusion of that hearing, the trial court announced its intention to terminate Father‘s parental rights and to change the Children‘s permanent placement goals from reunification to
Father now raises the following claims for our review:
- The trial court committed an error of law and discretion by changing the permanency goal from reunification to adoption where [DHS] failed to provide sufficient evidence that such a goal change would be best suited for the [C]hildren‘s needs and welfare.
- The trial court committed an error of law and abuse of discretion by involuntarily terminating [Father‘s] parental rights under
23 Pa. C.S. § 2511 (a) , where the evidence showed that Father substantially complied with [SCP] goals established by [DHS]. - The trial court committed an error of law and abuse of discretion by involuntarily terminating [Father‘s] parental rights under
23 Pa. C.S. § 2511 (a) and(b) , where [DHS] failed to prove by clear and convincing evidence that involuntar[il]y terminating [D.W.‘s] parental rights would best serve the emotional needs and welfare of the [C]hildren as an extension of time under42 Pa.C.S. § 6351 (f) (9) would best serve D.R.-W‘s needs and welfare.
Father‘s Brief at 7-8.
In this case, we see no indication in the trial court‘s opinion or in the transcript of the hearing that the court relied on an erroneous interpretation of
Our 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.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted).
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 toSection 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 the instant matter, the trial court terminated Father‘s rights to the Children pursuant to
(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. 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.
In order to terminate parental rights pursuant to
23 Pa.C.S. § 2511(a)(2) , the following three elements must be met: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation omitted). As this Court has held, “The grounds for termination due to parental incapacity that cannot be remedied are not limited to affirmative misconduct. To the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations omitted).
The trial court explained its decision to terminate Father‘s parental rights as follows:
This [c]ourt found the testimony of the CUA case workers to be credible and persuasive and found Father‘s testimony to be incredible and self-serving. This [c]ourt‘s decision to terminate Father‘s parental rights to the Children was based on clear and convincing evidence which established that Father‘s conduct for at least the six months prior to the filing of the petition to terminate[] revealed a settled purpose relinquishing parental claim to the Children and revealed a failure to perform parental duties. This [c]ourt found the evidence supported th[e] conclusion that Father lacks the present and future capacity to provide parental care, control or subsistence necessary for the Children‘s physical and mental well-being. Father cannot provide for the Children‘s basic
This [c]ourt found that DHS proved by clear and convincing evidence that Father is incapable of providing safety and permanency for these Children now and in the future. This [c]ourt is not persuaded that Father can or will remedy the conditions which continue to exist and which brought the Children into supervision.
Trial Court Opinion, 5/16/19, at 25-26.
After careful review of the record in this matter, we discern no error of law or abuse of discretion. Moreover, we conclude that the record supports the trial court‘s decision to terminate Father‘s parental rights pursuant to
As this Court has emphasized, “[A] child‘s life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The court cannot and will not subordinate indefinitely a child‘s need for permanence and stability to a parent‘s claims of progress and hope for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006). The trial court did not abuse its discretion in finding that
Turning to
[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and citations omitted)).
In the instant matter, Father argues that he and the Children share a bond, although he acknowledges that this bond was “rebuilding” at the time of the termination proceedings. Father‘s Brief at 24. In addition, Father maintains that the Children wanted to return to his care, and he stresses that the Children‘s legal counsel requested a bonding evaluation. Id. at 16, 25-27. He contends that DHS rushed to terminate his rights and that the trial court placed insufficient weight on the Children‘s preference. Id. at 16, 25, 29-30. Father insists that there is no risk of “foster care drift” in this case
The trial court explained its reasoning with regard to
Testimony by Ms. Jackson and Ms. [Adia] Gettysmith, the CUA case workers, provided credible, persuasive testimony regarding the Children‘s physical and emotional needs, best interests and with whom the Children have a parental bond. They testified that Father has minimal contact with the Children and only when prompted by Mother. Ms. Jackson stated there is no engagement [and] no interaction between [E.R.-W.] and Father. At the conclusion of the visits, the Children are happy to return to their foster parents. She stated the foster parents provide safety, care, and meet all of the Children‘s emotional and day-to-day needs. There is a parental bond between the Children and their Foster Parents. She noted that D.R.[-]W.[] recognizes his Father[;] however, she opined there is no parental bond between them. Regarding [E.R.-W.], the [c]hild has minimal recognition and in fact, Father has never been seen by the visitation observers to have held the [c]hild, and only interacts with the Children when prompted by Mother. Both social workers opined the Children would not suffer irreparable harm if Father‘s parental rights were terminated and it would be in their best interest to be adopted.
Susan Rubinovitz, [the Children‘s legal counsel,] testified she met with the Children over the weekend. D.R.[-]W. told her he wants to go home to live with his real Mom and Dad. He refers to his foster parent as “foster mom.”
Here, the totality of the evidence supports the [c]ourt‘s conclusion that termination of Father‘s parental rights is in the best interest of these Children. This [c]ourt found that termination of Father‘s parental rights met the developmental, physical and emotional needs and welfare of the Children, and the statutory requirements for involuntary termination of his parental rights pursuant to
23 Pa.C.S. [§] 2511(b) were met.
Trial Court Opinion, 5/16/19, at 27-28.
Ms. Jackson testified that she was present during the first two of Father‘s reinstated visits, and that D.R.-W. was “not engaged” and did not interact with Father during either of them. N.T., 12/12/18, at 28-30. Concerning D.R.-W.‘s relationship with Father, Ms. Jackson explained, “[D.R.-W.] identifies who [Father] is . . . . He does know who he is. The kids have both expressed fear of him to the foster parent, though.” Id. at 26. As for E.R.-W., Ms. Jackson
On cross-examination, the Children‘s legal counsel asked Ms. Jackson whether she was aware that D.R.-W. wanted to live with his birth parents. N.T., 12/12/18, at 32. Ms. Jackson responded that D.R.-W. was “somewhat confused at this point, yes.” Id. At the conclusion of the hearing, counsel summarized her own meeting with the Children, as follows:
I met with the children over the weekend. Very early on in the visit, they started telling me about how they want to go home. [D.R.-W.] told me he wanted to go home to live with his real [M]other and [F]ather. And [the Children‘s half-sibling, A.,8] told me she wanted to go live with her birth mother. And that was without me mentioning their real parents.
I just said, you know, “do you want to stay here for a long time?” And they both right away told me they wanted to go home with their real parents. I asked -- I pointed to the foster mother. And I asked both of them who is this? ‘Cause normally, a lot of times the children tell me it‘s the “mommy” or their “mom.”
Id. at 152-153.
While DHS‘s testimony was not consistent with D.R.-W.‘s preference as reported by his legal counsel, that inconsistency does not require reversal of the termination decrees. The Adoption Act and our case law provide that trial courts must appoint legal counsel to represent the preferred outcome of children in contested involuntary termination matters. See
The trial court also considered the Children‘s bond with their foster parents. See T.S.M., 71 A.3d at 268 (“Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents.“). Here, Ms. Jackson testified that the Children resided together in the same foster home. N.T., 12/12/18, at 13, 99. E.R.-W. has resided there nearly her entire life, since June 2017, while D.R.-W. has resided there since July 2017. Id. at 98-99. Ms. Jackson opined that D.R.-W. shares a bond with his foster parents and refers to them as “Mom” and “Dad.” Id. at 25-26. D.R.-W. is thriving in the foster home, and he shares “a very close connection” with his foster parents’ biological children as well. Id. at 25, 27. With regard to E.R.-W., Ms. Jackson opined that she, too, shares a bond with the foster parents and is “doing great” in foster care.11 Id. at 46-47. Taken together, this
Finally, we turn our attention to Father‘s first claim on appeal, in which he challenges the trial court‘s decision to change the Children‘s permanent placement goals from reunification to adoption. Father waived this claim by failing to develop it in his appellate brief. See In re M.Z.T.M.W., 163 A.3d 462, 465 (Pa. Super. 2017) (“It is well-settled that this Court will not review a claim unless it is developed in the argument section of an appellant‘s brief, and supported by citations to relevant authority.“). Father indicates at the start of his brief that he is appealing only the decrees terminating his parental rights. Father‘s Brief at 6. However, as discussed supra, the argument section of Father‘s brief is comprised of a single section. While Father mentions the goal change in his argument, he appears to be conflating the court‘s goal-change orders with its termination decrees and does not present a distinct goal-change claim supported by citation to relevant legal authority. Notably, even if Father had not waived his goal change claim, it would be moot in light of our decision to affirm the court‘s termination decrees. See In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (“An issue before a court is moot if in ruling
Even accepting for the sake of argument that Father did not waive this claim and that it is not moot, we would conclude he is not entitled to relief. We review goal-change orders pursuant to an abuse-of-discretion standard of review. In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). As such, we must accept the trial court‘s findings of fact and credibility determinations if the record supports them, but we need not accept the court‘s inferences or conclusions of law. Id.
The Juvenile Act governs proceedings to change a child‘s permanent placement goal.
Pursuant to
[42 Pa.C.S.] § 6351(f) of the Juvenile Act, when considering a petition for a goal change for a dependent child, the [trial] court is to consider, inter alia: (1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might be achieved; (6) the child‘s safety; and (7) whether the child has been in placement for at least fifteen of the last twenty-two months. The best interests of the child, and not the interests of the parent, must guide the trial court. As this Court has held, a child‘s life simply cannot be put on hold in the hope that the parent will summon the ability to handle the responsibilities of parenting.
The trial court explained its decision to change the Children‘s goals as follows:
This [c]ourt reasoned that DHS has provided Father with necessary referrals to services to allow him to be reunited with his Children, however, he has not complied with these referrals in the time frames set forth in the permanency plan. The Children are doing well with their foster parents and they cannot be expected to place their future on hold to wait for Father to get his life in order.
The Pennsylvania Juvenile Act, as amended to reflect the principles of the Federal Adoption and Safe Families Act ([“ASFA“]) which focuses on safety and permanency as the paramount concerns in planning for dependent children, ranks the permanency options for children using a hierarchical priority. The permanency options are listed first to last and each preceding option must be ruled out before the next can be chosen as a viable permanency option. . . . Pursuant to the hierarchy of permanency option[s], the option of “placement with a legal custodian” is listed third. Once reunification is ruled out, the second preferred permanency option is adoption. Adoption has been clearly established as the appropriate goal in the best interest of these Children.
Trial Court Opinion, 5/16/19, at 29-30.
We again discern no error of law or abuse of discretion. As we have discussed throughout this Opinion, Father has demonstrated that he is incapable of parenting the Children and that he will not be capable of parenting the Children at any point in the foreseeable future. In addition, the Children do not share a bond with Father and instead share a bond with their foster
Based on the foregoing, we conclude that the trial court did not commit an error of law or abuse its discretion by terminating Father‘s parental rights involuntarily, and that Father waived any challenge to the court‘s decision to change the Children‘s permanent placement goals to adoption. Therefore, we affirm the termination decrees and the goal-change orders.
Decrees affirmed. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2020
Notes
(9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the child‘s parent, guardian or custodian or to preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child unless:
(i) the child is being cared for by a relative best suited to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling reason for determining that filing a petition to terminate parental rights would not serve the needs and welfare of the child; or
(iii) the child‘s family has not been provided with necessary services to achieve the safe return to the child‘s parent, guardian or custodian within the time frames set forth in the permanency plan.