Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 IN RE: J.M.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA APPEAL OF: T.D., FATHER No. EDA
: Appeal from the Order Entered July 25, 2016 In the Court of Common Pleas of Philadelphia County Domestic Relations Division at No(s): CP-51-AP-0000607-2016;
FID: 51 -FN -001355-2013 BEFORE: OLSON, SOLANO, and MUSMANNO, JJ. FILED APRIL 04, 2017
MEMORANDUM BY OLSON, J.: T.D. ("Father") appeals from the decree order entered on July 25,
2016, his parental rights to his female child, J.M.D. ("Child") (born April of 2006), pursuant the Adoption Act, Pa.C.S.A. § 2511, changing the permanency goal Child adoption pursuant Juvenile Act, 42 Pa.C.S.A. § 6351.1 We affirm. its opinion entered November 2016, the trial court set forth
the following factual background procedural history of this appeal, which we incorporate this Court's own. See Trial Court Opinion, 11/29/16, at 2- separate decree entered same date, the trial court terminated the parental rights of Child's mother, J.R. ("Mother"). Mother not filed appeal from the her parental rights Child, nor she party the instant appeal. Importantly, on July 8, 2016, the Philadelphia Department of Human
18. Services ("DHS" or "the Agency") filed petition involuntarily terminate Father's parental change Child's permanency goal adoption. On July 25, 2016, the trial court held evidentiary hearing on the goal change petitions.2 The trial court issued findings of fact with regard the evidentiary hearing follows.
T.D., Father[,] was present represented his attorney. (N.T. 7/25/2016, p.6 at 14-18). Assistant City Solicitor's first witness was Sherice Blount,
DHS Social Worker, assigned to this family's case in August until April 2016. She noted that in January 2013, there was a GPS Report alleged that J.M.D. pushed her brother down a flight of stairs. That Report was substantiated. There was subsequent GPS Report March 2013 with allegations home dirty it lacked appropriate food. There were also allegations Mother was using marijuana cocaine, using her food stamps purchase the drugs. That Report was substantiated. DHS implemented in -home protective services subsequently the Children came into placement. (N.T. 7/25/2016, p.16 at 13-25; p.17 at 1-10).
[Ms. Blount] testified Family Service Plan (FSP) Meeting was held on July 22, 2015, Father's objectives were he would make his whereabouts known. Prior to that, [c]ourt [o]rdered Father on May 13, provide mental health (N.T. 7/25/2016, p.21 at 24-25; p.22 at 1-3; documentation. p.25 at 17-25).
Ms. Blount further testified that the Court found July 28, 2015 Father had not provided DHS copy Mental its opinion, the court noted Child's four siblings: D.C. (born in December of 2008); E.T. (born April of 2010); L.R. (born July of 2012); J.R. (born August 2014), were also subjects of the hearing July 25, 2016. Trial Court Opinion, 11/29/16, n.1, n.2.
-2 Health Report [o]rdered by the [c]ourt at the last listing. Further[,] the [c]ourt found that the parents not visited [c]hild consistent basis. She noted she had never met the Father today at this hearing was the first time she had seen him. (N.T. 7/25/2016, p.27 at 13-25; p.28 at 1-13).
Ms. Blount testified the FSP other documentation had been mailed Father at the address the Agency had, however, she never had contact with him. She noted during the term her involvement the case there was no contact between [] Child and [] Father. (N.T. 7/25/2016, p.30 at 10- 19).
Ms. Blount stated she believed there was no bond between [] Child and Father because Father had never contacted her nor previous DHS worker, nor had he contacted [] Child. She opined that [] Child would not suffer irreparable harm if Father's parental rights were terminated. (N.T. 7/25/2016, p.31 at 7- 19).
Regarding the foster parent, M.A., Ms. Blount stated [] Child is bonded her foster parent. She observes caring affection between the two, [] Child is very helpful to her foster parent, listens tries hard to follow the directions of her foster parent. Ms. Blount believes it is the best interest [] Child (and other [c]hildren) that they adopted. (N.T. 7/25/2016, p.31 20-25; p.32 at 1-14).
The next witness testify was Kamesh Callands, CUA Wordsworth [c]aseworker. She stated she was assigned this case April 2016, noted Father never contacted her nor visited [] Child. She noted letters were sent to Father, however, he never responded. She opined there is no parental between [] Child and Father because Father not visited her. Also she believes [] Child would not suffer irreparable harm if Father's parental rights were terminated. (N.T. 7/25/2016, p.33 at 6-25; p.34 at 1-8, 20-25; p.35 at 1-2).
Regarding [f]oster [p]arent, M.A., Ms. Callands stated [] Child safe and all her needs are being met [f]oster [m]other. safety date [c]hildren 7/13/2016. Ms. Callands reported they are bonded. M.A. great caregiver parent [] Child and the rest of the [c]hildren. Only one sibling, J.R., same home. Further, Ms.
- 3 - Callands noted M.A. pre -adoptive home foster parent through Devereaux. She opined it is in best interest [] Child to adopted. (N.T. 7/25/2016, p.35 at 3-22).
Father, T.D., was next to testify. He stated he has telephone contact [] Child every two months, last time he spoke to her before the summer began. He stated he spoke to her about minutes and asked her how school was and how she was doing. He finally stated he does want his parental rights terminated. (N.T. 7/25/2016, p.39 at 16-25; p.40 at 1-25; p.41 at 1-14).
Trial Court Opinion, 11/29/16, 16-18 (footnote omitted).
At the conclusion of the hearing, the trial court found clear convincing evidence to terminate Father's parental change Child's permanency goal to adoption, entered its decree goal change order. On August 2016, Father filed notice of appeal with concise statement errors complained of appeal pursuant Pa.R.A.P 1925(a)(2)(i) (b). his brief appeal, Father raises the following issues:
1. Whether the trial court erred terminating Appellant's parental rights under Pa.C.S.A. section 2511(a)(1), the evidence having been insufficient establish Father had evidenced settled purpose of relinquishing parental claim, or having refused or failed perform parental duties[?] 2. Whether the trial court erred Appellant's parental rights under Pa.C.S.A. 2511(a)(2), evidence having been insufficient establish Father caused [C]hild without essential parental care, nor could not been remedied[?]
-4
Father's Brief, at 5.3
Father argues the evidence insufficient to demonstrate he lacks the capacity to parent. He contends record merely reflects vague reference relating to his failure to produce his mental health report. According to Father, this failure clearly insufficient for DHS meet its burden of proof. See Father's Brief 8, 12.
In reviewing an appeal from an order parental rights, we adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard when considering court's determination petition for of parental rights. As dependency cases, our standard of review requires an appellate court accept the findings of fact credibility determinations trial court if they are supported record. re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review determine if the trial court made an error law Id.; R.I.S., 36 A.3d 567, 572 (Pa. or abused its discretion. (plurality opinion). As has been often stated, an abuse of discretion does not result merely because the reviewing court Id.; see also might have reached different conclusion. Samuel Bassett v. Kia Motors America, Inc., 1, (Pa. 2011); Christianson v. Ely, 838 A.2d (Pa. 2003). Instead, decision may reversed of discretion Father does not challenge section 2511(b) either his concise statement his statement of questions involved portion of his brief. We, thus, find he waived the issue. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 2006) (holding an appellant waives issues raised both his concise statement errors complained of appeal statement of questions involved in his brief appeal). For same reason, Father waived any challenge change permanency goal adoption.
-5 only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill -will. Id.
As we discussed R.J.T., there are clear reasons for applying an abuse of discretion standard of review these cases. We observed that, unlike trial courts, appellate courts are not equipped make the fact -specific determinations cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child parents. R.J.T., at 1190. Therefore, even where the facts could support an opposite result, as is often the case dependency and termination cases, an appellate court must resist the urge to second guess the trial court impose its own credibility determinations judgment; instead we must defer trial judges so long as the factual findings are supported by the record the court's legal conclusions are not the result of an re Adoption error law of discretion. Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 826-27 (Pa. 2012). burden upon petitioner prove clear convincing
evidence asserted grounds seeking termination of parental valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he standard of clear convincing evidence defined as testimony so "clear, direct, weighty convincing to enable trier fact to come clear conviction, without hesitance, truth of the precise facts issue." Id. quoting re J.L.C., 837 A.2d 1247, (Pa. Super. 2003).
This Court may affirm court's decision regarding of parental rights with regard any one subsection of section 2511(a). See B.L.W., 843 A.2d 380, 384 (en banc). We will focus 2511(a)(2) (b), review Father's challenges together, as did court. Section 2511(a)(2) and (b) provide as follows:
§ 2511. Grounds for involuntary termination (a) General rule. --The of parent regard a child may be terminated after petition filed any of the following grounds:
* * * (2) The repeated continued incapacity, abuse, neglect or refusal of the parent caused child to be without essential parental care, control or subsistence necessary for his physical or mental well-being the conditions causes incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. * * *
(b) Other considerations. --The court the rights parent shall give primary consideration the to developmental, physical emotional needs welfare of the child. rights of parent shall terminated solely on basis environmental factors such inadequate housing, furnishings, income, clothing medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant subsection (a)(1), (6) or (8), court shall not consider any efforts the parent remedy the conditions described therein which first initiated subsequent giving of notice of the filing of the petition. Pa.C.S.A. § 2511.
To satisfy requirements of section 2511(a)(2), the moving party must produce clear convincing evidence regarding the following elements: (1) repeated continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused child to without essential parental care, control subsistence necessary his physical or mental well-being; (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). grounds for termination of parental rights under section 2511(a)(2), due to parental incapacity that cannot be remedied, limited affirmative misconduct; contrary those grounds may include acts of refusal as well as incapacity perform parental duties. re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
Termination is warranted pursuant subsection (a)(2), Father clearly lacks parental capacity, evidence showed he will be unable to remedy situation within reasonable period time, if ever. As there competent evidence in record supports the trial court's findings credibility determinations, we find no court's discretion finding Father's parental should terminated under section 2511(a)(2). re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
Although Father waived any challenge to section 2511(b), we will analyze the sufficiency of the evidence under section accordance with our caselaw. We explained focus parental rights under section 2511(a) the parent, but it child pursuant 2511(b). See Adoption C.L.G., (en banc). In reviewing the evidence support
-8 under 2511(b), our Supreme Court recently stated as
follows:
[I]f the grounds for termination under subsection (a) are met, court "shall give primary consideration the developmental, physical and emotional needs and welfare of the child." Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In re E.M., [620 A.2d 485 (Pa. 1993)], this Court held determination the child's "needs welfare" requires consideration of the emotional bonds between the parent child. "utmost attention" discerning effect on child should paid permanently severing the parental bond. In re K.M., 53 at 791.
In re: T.S.M., A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, the court is not required to use expert testimony. Social workers caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation. re Z.P., 994 A.2d 1108, (Pa. Super. (internal citations omitted). Although it often wise to a bonding evaluation make it part of the certified record, "[t]here are some instances . . where direct observation interaction between the parent child not necessary may even detrimental child." K.Z.S., 946 A.2d 753, 762 2008).
A parent's neglect likewise relevant part of this analysis:
concluding child beneficial parent simply because child harbors affection the parent only dangerous, it is logically unsound. If child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to exercise semantics as it is the rare child who, after being subject neglect and abuse, is able sift through the emotional wreckage and completely disavow parent . . . Nor are we of the opinion the biological connection between [the parent] and the children is sufficient and of itself, or when considered connection with child's feeling toward parent, establish de facto beneficial bond exists. The psychological aspect of parenthood more important terms of development of the child [his or her] mental and emotional health than the coincidence of biological natural parenthood. re K.K.R.-S., 958 A.2d 529, (Pa. 2008) (internal citations quotation marks omitted). Thus, the court may emphasize the safety
needs of the child. See K.Z.S., 763-764 Super. (affirming involuntary termination mother's parental rights, despite the existence of some bond, where placement with mother would contrary the child's best interests, any bond with mother would fairly attenuated when the child was separated from her, almost constantly, for four years).
The trial court found follows with regard 2511(a)(2) and (b): [r]ecord demonstrates Father's lack of bond with [] Child lack of contact with [] Child, claiming he had telephone calls It clear by the evidence presented that
every two months. there no between Father [] Child. Credible evidence lack presence presented of Father's lack communication with Agency personnel [] Child.
After hearing the credible testimony of Sherice Blount, DHS Social Worker, Kamesh Callands, CUA Wordsworth Caseworker, the [c]ourt found clear convincing evidence, that their observations and conclusions regarding Father's noncompliance with the FSP objectives, and lack of contact and communication were persuasive.
* * * The documents and testimony provided this [c]ourt with clear convincing evidence that termination of Father's parental rights would be in the best interest of [] Child. This [c]ourt finds credible the testimony from [a]gency staff members that [] Child would not suffer irreparable harm if Father's rights were terminated of Father's parental would in best interest [] Child. The evidence was clear that Father did not make the effort communicate with the Agency nor did he contact [] Child. [] Child currently lives a nurturing loving home with [f]oster [m]other, who bonded to [] Child and meets all of her emotional physical needs.
CONCLUSION [c]ourt found Father repeatedly failed to complete
objectives failed make contact communicate with the Agency with [] Child. The [c]ourt not persuaded that Father could or would resolve these issues near future to provide permanency safety for [] Child.
At the conclusion of the hearing the Court stated:
Regarding [] Child, J.M.D., the evidence clear and convincing both parents have failed remedy any issues brought [] Child into care, have failed to create a parental bond with [] Child and will not able create parental bond with [] Child going forward. Notwithstanding Father's testimony[,] the existence of a few phone calls every couple of months does not make parent nor does it create likelihood he would be able to parent [] Child.
She has been care since with same caretaker the evidence uncontested she fact formed parental bond the existing caretaker does parental with either her natural parents.
With respect Father, the evidence established under Section 2511(a)(1) (2), since [] Child was not in Father's care when removed the placement has been excess one year,[sic] addition [Section] 2511(b) satisfied because again there would be no harm in severing relationship does exist. Father's are terminated as well as Mother's rights are terminated. And goal may be moved adoption for [] Child." [sic]
(N.T. 7/25/2016, p.42 at 10-25; p.43 at 1-17).
For the foregoing reasons, this [c]ourt respectfully requests that the Order of July 25, 2016 [t]erminating Father, T.D.'s [p]arental [r]ights changing [p]ermanency [g]oal to [a]doption, AFFIRMED.
Trial Court Opinion, 11/29/16, 19-22.
Our Supreme Court observed the mere existence of or attachment child to parent will not necessarily result the denial of termination petition, that "[e]ven the most abused of children will often harbor some positive emotion towards the abusive parent." See In re: T.S.M., A.3d at 267 (quoting K.K.R.-S., 958 A.2d at 535). The Supreme Court instructed, "[t]he continued attachment the natural parents, despite serious parental rejection through neglect, failure correct parenting behavior disorders which harming the children cannot misconstrued bonding." re: T.S.M., at 267 (quoting re Involuntary Termination of C.W.S.M., 839 A.2d 2003) (Tamilia, J. dissenting)).
We explained that a parent's own feelings of love affection for child, alone, do not prevent of parental rights. re Z.P., 994 A.2d at 1121. Further, this Court stated: "[A] parent's basic constitutional right the custody rearing of . . her child converted, . upon failure fulfill . . her parental duties, the child's right to have . proper parenting fulfillment of [the child's] potential in permanent, healthy, safe environment." In re B.,N.M., A.2d 847, 856 Super. (internal citations omitted). It well -settled that "we will toll the well-being permanency [a child] indefinitely." In re Adoption of C.L.G., 956 at 1007 (citing Z.S.W., 946 A.2d 726, (Pa. 2008) (noting child's life "simply cannot put on hold the hope [a parent] will summon the ability handle the responsibilities of parenting.")).
After careful review of the record this matter, we find record supports the court's factual findings, the court's conclusions not result of error law an of discretion. re Adoption S.P., 47 A.3d 826-827. There was sufficient, competent evidence record trial court to find the grounds for termination of parental rights under 2511(a)(2), due to parental incapacity cannot be remedied. There also sufficient, competent evidence record for trial court to find Child's best interests are served by her foster mother, no exists between Child and Father such Child would suffer permanent emotional harm from the Father's parental rights. We therefore affirm the order Father's parental regard to Child under section 2511(a)(2) (b).
Decree order affirmed.
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 4/4/2017
