Opinion

Adoption of: T.M., Appeal of: M.I.

Court
Superior Court of Pennsylvania
Filed
Jun 18, 2024
Status
Unpublished
On the bench
Kunselman, J.
Cited by
0 cases
Authority
More cited than 17.8%

The opinion

J-S13032-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: ADOPTION OF: T. M., A/K/A : IN THE SUPERIOR COURT OF

T.J.M., A MINOR : PENNSYLVANIA

:

:

APPEAL OF: M.I., FATHER :

:

:

:

: No. 1091 WDA 2023

Appeal from the Order Dated August 17, 2023

In the Court of Common Pleas of Washington County Orphans' Court at

No(s): No. 63-23-0548

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED: June 18, 2024

M.I. (Father) appeals the decision of the Washington County Orphans’

Court, which granted the petition filed by Washington County Children and

Youth Services (CYS) and terminated his rights to his 9-year-old daughter,

T.M. (the Child), pursuant to the Adoption Act. See 23 Pa.C.S.A. §

2511(a)(1), (a)(2), (a)(5), (a)(8), (b). After review, we affirm.1

The record discloses the following factual and procedural history. The

Child was born in 2013. She came to the attention of CYS during the summer

of 2021. The Child was living with Father’s former paramour, K.R., who is the

mother of Father’s other children – i.e., the Child’s half-siblings. The Child

had not been in the care of either parent for some time. Father was a resident

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 The court also involuntarily terminated the rights of V.M. (Mother), who did

not appeal.

J-S13032-24

of New Jersey, while Mother was a resident of Texas. The Child had lived with

Mother until the age of 5, when she was removed from Mother’s care and

placed with Father. How the Child came to live with K.R. was unclear, but by

2020, K.R. relocated from New Jersey to Pennsylvania with the Child and the

Child’s half-siblings.

During the Summer of 2021, CYS received reports that K.R. was not

properly caring for the children in her home. The CYS intake worker contacted

Mother and Father. What became of these initial contacts is unclear. In

September 2021, CYS learned of additional allegations against K.R.,

specifically that she was leaving the children unattended for days. CYS also

learned Father was prohibited from having contact with the Child, because of

a New Jersey protective order obtained by K.R. that same month.2 CYS

arranged for the Child and her half-siblings to live with P.R., the mother of

K.R.; but K.R. was allowed to have contact with the children so long as she

was not under the influence.

In October 2021, the Child was admitted to a local psychiatric hospital

after threats of self-harm. A couple weeks later, CYS learned that K.R.

allegedly abused her children, which caused CYS to petition for dependency.

Upon the Child’s release from the hospital, CYS obtained a shelter order to

formally remove the Child from K.R. and her parents. The Child’s placement

remained with P.R. Given that both parents resided outside of the

____________________________________________

2 The order also prohibited Father from having contact with K.R. or K.R.’s

daughter.

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Commonwealth, CYS evidently had difficulty obtaining proper service. At one

point, CYS had to obtain a second reauthorization for the shelter care order.

The Child was ultimately adjudicated dependent in February 2022. The

dependency petition alleged that Father had a criminal history, which included

pending charges in New Jersey for simple assault, threat of serious bodily

injury, harassment, aggravated sexual assault to a child older than 13 and

less than 16, and endangering the welfare of a child. Father was denied

visitation with the Child due to the protection order. The adjudicatory order

directed Father to complete several objectives to aid with reunification. Father

had to complete a sex offender evaluation; a drug and alcohol evaluation; and

a mental health assessment. He had to refrain from drugs and alcohol, obtain

housing, and resolve the pending criminal matters.

The juvenile court conducted three permanency review hearings prior

to the termination hearing. At the first hearing, in August 2022, Father alleged

that he participated in some of the required evaluations, but the court noted

Father did not provide any verification. Father did not appear for the second

hearing, which occurred in January 2023. Apparently, Father was incarcerated

because of new criminal charges, separate from the pending charges

regarding sexual abuse of a minor. At the third permanency review hearing,

in June 2023, Father indicated that he hoped to “fast track” his criminal

matters. The court concluded that Father continued to make no progress

toward his reunification goals.

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The orphans’ court held a termination hearing on August 17, 2023. In

its thorough opinion filed pursuant to Pa.R.A.P. 1925(a), the orphans’ court

summarized the testimony:

At the TPR hearing, the Agency first presented testimony

from caseworker Tenisha Brown. Brown testified that she

has been the caseworker for [the Child], who was [nearly]

10 years of age at the time of the hearing, since

approximately the end of 2021 to the beginning of 2022.

Brown testified that at the time of Agency involvement, [the

Child] was in Pennsylvania under the care of Father's former

paramour, [K.R], with whom there were reported concerns

of substance abuse. Brown testified that [the Child] was

hospitalized and couldn't be released due to custody

concerns. At that time, the Agency learned that [the Child]

was in the care of her Mother until age 5 and then removed

from Mother's care and placed with Father. At some point

there was a report of sexual maltreatment by Father against

one of [K.R.’s] other children and [K.R.] obtained custody

of the children through a September 2021 final protection

order.

Brown continued to detail that in August of 2021, the

Agency initially sought a shelter petition due to excessive

drinking by [K.R.], who also reportedly hit her children.

Consistent with the history stated above, Brown testified

that [the Child] was adjudicated dependent in February of

2022. The adjudication was challenged by Father who

requested reconsideration, however the adjudication was

confirmed on March 7, 2022. Brown testified that the

Agency had several concerns with Father, including the

protection order preventing contact, the pending sexual

assault on a minor charges and domestic violence concerns.

Brown testified that the Agency had no evidence of Father

engaging in a sexual offender evaluation. Similarly, Brown

said the Agency had no evidence of Father engaging in

Batterer's Intervention Counseling. Brown was aware of a

mental health evaluation completed by Father and was

further aware of a drug and alcohol assessment completed,

resulting in a mental health treatment recommendation.

Brown testified that the Agency was unable to obtain

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accurate releases from Father to confirm information from

mental health treatment and no drug tests for Father have

been received by the Agency. Brown testified that Father

continued to have outstanding criminal matters and failed

to refrain from criminality, facing new 2023 burglary,

unlawful possession and property damage charges.

Furthermore, Brown testified that Father has not established

safe and stable housing and in fact was incarcerated in

January 2023, where he remained at the time of the

hearing. The Caseworker testified that Father's current

incarceration length is unknown and he continues to have

two outstanding criminal matters.

Testifying as to [the Child’s] contact with Father, Brown

testified that contact was prohibited as a result of the

outstanding PFA and the no contact order remained

throughout the history of the dependency matter. Brown

testified that Father provided no financial support for [the

Child], sent no gifts, cards or letters to [the Child], failed to

provide for the daily needs of [the Child] and did not make

[the Child] a priority. The Caseworker reported that neither

Mother or Father actively participates with [the Child’s]

medical and/or educational needs and at the time of the

hearing [the Child] was out of parental care twenty-two (22)

months. In the present matter, [the Child] was adjudicated

dependent on February 16, 2022 and the TPR petition was

filed by the Agency on March 29, 2023. The hearing on the

TPR was conducted on August 17, 2023. (Eighteen months

after adjudication).

According to Brown, while Father failed to perform these

basic functions, [the Child] remained and remains in an

undisclosed foster home where she engages in therapy,

performs well in school and continues to thrive. The

Caseworker testified that [the Child] is able to verbalize her

wants and has indicated that, although she wishes to have

some contact with Mother, she wants to be adopted, and

stay in her foster home.

Through additional testimony, Brown testified that when

[the Child] was adjudicated dependent in February of 2022,

Father was not incarcerated. Brown acknowledged that

Father had nearly a year to work on court-ordered services

when he was incarcerated in January of 2023 and failed to

do so. Additionally, while the record supports some mental

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health treatment for Father, documentation evidencing such

treatment consists of information regarding two, one-hour

sessions, not the weekly mental health counseling

recommended and court ordered.

Testimony was next received from [an] expert in forensic

psychology, Dr. Neil Rosenblum. Dr. Rosenblum testified

that he did an evaluation with [the Child] on January 11,

2023. [The Child] gave him background information

indicating that she did not remember a lot about her birth

Mother. The Child knew that her Mother had gone to jail

and she was removed from her care.

Rosenblum testified that [the Child] described her time with

Father as “unpleasant.” Rosenblum characterized the time

as being a “struggle for the child.” By way of further

explanation, Rosenblum testified regarding [the Child’s]

relationship with [K.R.], who treated her own children better

and [the Child’s] witnessing fighting between her Father and

[K.R.]. According to Rosenblum, [the Child] moved to

Pennsylvania sometime in 2020 and/or 2021.

Rosenblum performed an interactional evaluation between

[the Child] and her Foster family. At the time of the

evaluation, [the Child] was in the foster home for a year and

was reportedly safe and secure with the foster family.

Rosenblum testified that the Child had a “low understanding

of family.” Rosenblum also completed a virtual interactional

with [the Child] and her Mother, but was unable to do an

individual and/or interactional evaluation with Father.

Nevertheless, based on the evaluations completed,

Rosenblum offered a permanency recommendation of

adoption. In support of his recommendation, Rosenblum

testified that, [the Child], at 9 years of age, has had a series

of disruptions in her life and has lived in multiple states and

locations. Rosenblum testified that the Child has trauma, a

rule out of Reactive Attachment Disorder, difficulty trusting

people and suicidal ideations. Additionally, Rosenblum

testified that [the Child] verbalizes the desire to be adopted

and the Child's identity is established here in Pennsylvania

with the foster family.

Rosenblum opined that continued contact should occur with

birth mother, but that is not a stable placement. Rosenblum

recognized that Mother had no in-person visitation with [the

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Child] during the dependency matter and Mother said that

in-person visits were cost prohibitive. While Rosenblum did

not evaluate Father, he opined that Father was also not a

valid reunification option considering [the Child]'s emotional

needs and Father's circumstances. Rosenblum testified that

[the Child] did not speak about Father, except for describing

trauma in the home environment between Father and her

step-mother. Rosenblum did not completely dismiss the

ability of Father having a relationship with [the Child] in the

future, but opined that presently, Father is not a placement

option and further noted, although only hypothetically, that

it was unlikely that [the Child] had an attachment with

Father.

Rosenblum testified that [the Child] has the most trusting

relationship with her foster parents and the benefits of

adoption outweigh any detriment of terminating parental

rights. Rosenblum testified that [the Child] is fortunate to

have connected with her foster family and finds any

alternative for the Child “very risky.” Rosenblum

emphasized trust, belonging and identity throughout his

testimony.

Father, although incarcerated, appeared and provided

testimony virtually through the video Polycom.

Father testified that he last saw [the Child] on July 19, 2020

and then the protection order was put into place. Despite

the protection order, Father testified that he believes that

[the Child’s] statements are confused when she was

“alienated from him.”

Father was specifically questioned regarding the

requirements in the dependency matter and although

littered with narratives involving court actions in other

jurisdictions, Father provided responses to each of the

specific services listed. When asked if he completed the

sexual offender counseling, Father indicated that he had not

but agreed with his counsel that he thought this requirement

was stayed by the Court pending the adjudication of his

other matters. Father provided a similar response with

regard to batterer's counseling. In response to whether he

participated in a mental health evaluation, Father responded

that he did a drug and alcohol evaluation through his pre-

trial services that recommended mental health treatment.

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Father testified that he received services from an

organization named Mind Your Mind. Father indicated that

he engaged with these services weekly, even seeing

counselors while incarcerated.

Father submitted documentation supporting two meetings

with Mind Your Mind on August 12 and August 15, 2022.

Father testified that he did drug testing in New Jersey. In

response to whether he had safe and stable housing, Father

indicated that he once had a two-bedroom place but was

unaware if his kids were coming back to New Jersey or

staying in Pennsylvania. Father acknowledged that there

was a period of approximately fourteen months where he

was not incarcerated and available to complete services, but

failed to do so.

Father was asked about the best interests of Child,

inasmuch as quite amount of time has passed since he has

last seen [the Child.] To demonstrate his relationship with

[the Child], Father described the time when she lived with

him indicating that he was a “stay at home dad” and would

be home all day and they would “just hang out” and do

“snack and homework after school.” When he was asked

his opinion on whether a termination of his parental rights

would be detrimental to [the Child], Father responded that

he absolutely believed it would be detrimental indicating

that, “when I am done here, I will be back with my other

children and she is going to see that and it will be hurtful to

[the Child].” Nevertheless, Father acknowledged that he

last saw [the Child] on July 19, 2020 with the protection

order preventing contact after that time. In later testimony

it was established that Father's time with [the Child] started

when she was approximately 5 years of age. Father

testified, “[the Child] was five when she came into the

picture.... When she came into my household.” Father later

testified that she was with him for a little over a year and

went through kindergarten while living with him.

Father testified that his trial regarding the sexual assaults is

scheduled for September 11, 2023 and no trial is scheduled

to date on his burglary charges. Father acknowledged that

his sexual assault charges involve sexual penetration of a

victim under the age of thirteen for activity alleged to have

occurred from 2015 through 2019, however Father indicates

that his plea agreement only involves his use of alcohol.

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Father testified that he was willing to come to Pennsylvania,

however he never did and Father agreed it was unfair for

[the Child] to be in limbo while he handled his pending and

outstanding criminal charges, but declined to acknowledge

that his present incarceration would continue to prevent

reunification with [the Child] even in the absence of the

protection order.

T.C.O., 10/19/23, at 15-21 (footnotes omitted) (style adjusted).

The orphans’ court issued its termination order the same day, August

17, 2023. Specifically, the court determined that CYS proved grounds for

termination existed under 23 Pa.C.S.A. § 2511(a)(1), (a)(2), (a)(5), (a)(8),

(b).

Father timely filed this appeal. He presents the following issue for our

review:

Whether the trial court erred by terminating the parental

rights under 23 Pa.C.S.A. § 2511(b) when the trial court

failed to give the proper weight of [sic] Appellant’s evidence

and testimony.

Father’s Brief at 7.

We begin with our well-settled standard of review:

The standard of review in termination of parental rights

cases requires appellate courts to accept the findings of fact

and credibility determinations of the trial court if they are

supported by the record. If the factual findings are

supported, appellate courts review to determine if the trial

court made an error of law or abused its discretion. A

decision may be reversed for an abuse of discretion only

upon demonstration of manifest unreasonableness,

partiality, prejudice, bias, or ill-will. The trial court's

decision, however, should not be reversed merely because

the record would support a different result. We have

previously emphasized our deference to trial courts that

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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).

Clear and convincing evidence is evidence that is so “clear, direct,

weighty and convincing as to enable the trier of fact to come to a clear

conviction, without hesitance, of the truth of the precise facts in issue.” In re

C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) (quoting Matter of

Adoption Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)).

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 section 2511(a). Only

if the court determines that the parent's conduct warrants

termination of his or her parental rights does the court

engage in the second part of the analysis pursuant to section

2511(b): determination of the needs and welfare of the

child[.]

In re C.M.K., 203 A.3d 258, 261-62 (Pa. Super. 2019) (citation omitted).

Father does not challenge the orphans’ court’s decision under Section

2511(a), thereby conceding the first prong of the bifurcated termination

analysis. Rather, Father opts to present a narrow challenge under Section

2511(b). That subsection provides:

(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

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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(b).

On appeal, Father argues that the orphans’ court should have weighed

more heavily his testimony that he completed the court-ordered evaluations,

and that he provided documentation of the same to CYS. He maintains that

he was approved for a home loan, that he only had to pick out a suitable place

for the Child, and that he notes that he had exercised custody of the Child in

the past – the apparent inference being that he could provide appropriate care

again. Additionally, Father argues that “the Agency never moved on his

sister’s submission [to be a placement resource] and therefore the evidence

was not given any weight in the court’s decision in terminating Father’s

parental rights.” See Father’s Brief at 11-12, 13.

These arguments fail for several reasons. First, Father cannot dictate

how much weight the orphans’ court places on the evidence, which includes

his testimony. See, e.g., A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014).

To that end, issues of witness credibility are directly within the trial court’s

purview. T.S.M., 71 A.3d at 267. Additionally, it is not the role of this Court

to search the record for evidence that would support a contrary result. See

id. But more to the point, these arguments largely concern Section 2511(a),

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which focuses on the parent’s conduct. The focus of a Section 2511(b)

analysis is on the Child. C.M.K., 203 A.3d at 261-62.3

Father presents only one argument relevant to the Section 2511(b)

analysis – namely, that the court should have continued the matter so that he

could be evaluated by Dr. Rosenblum. According to Father, the evaluation

would show he has a bond with the Child. Father maintains that without his

participation, Dr. Rosenblum’s report should not have been given so much

weight. See Father’s Brief at 11-12.

Preliminarily, however, we conclude that Father did not preserve this

argument for our review. Neither his concise statement of matters complained

of on appeal, nor his statement of questions involved challenge the expert

report and expert testimony, either explicitly or implicitly, in contravention of

Pa.R.A.P. 2116(a).4 Moreover, this argument is presented without any citation

to relevant legal authorities, in contravention of Pa.R.A.P. 2119(a). As such,

Father waived this challenge.

____________________________________________

3 The propriety of Father’s housing is relevant to Section 2511(b), but only

insofar as the court may not terminate his rights based solely on inadequate

housing. See 23 Pa.C.S.A. § 2511(b). The court did not do so here, and we

need not discuss the point further.

4 We do not find that this claim constitutes a subsidiary question of, or a

question fairly suggested by, the issue Father presented in his statement of

questions involved section of his brief. See Pa.R.A.P. 2116(a) (“No question

will be considered unless it is stated in the statement of questions involved or

is fairly suggested thereby.”). Frankly, the statement of questions involved

is, itself, a subsidiary of the issue presented in Father’s concise statement.

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Even if we addressed this argument, we would conclude it merits no

relief. First, the court did not even need to consider Dr. Rosenblum’s

testimony or report to conduct a proper Section 2511(b) analysis. “When

conducting a bonding analysis, the court is not required to use expert

testimony.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations

omitted). Put plainly, because expert testimony is not required, Father’s lack

of participation in the expert evaluation does not render the court’s Section

2511(b) analysis erroneous. Father did not need an interactional evaluation

by Dr. Rosenblum to demonstrate he had a bond with the Child. Moreover,

when it considered Dr. Rosenblum’s evaluation, the orphans’ court

appropriately accounted for Father’s absence. Indeed, Dr. Rosenblum also

accounted for Father’s absence by hedging his recommendation.

Significantly, the question under Section 2511(b) is not merely whether

a bond exists. As the Supreme Court explained, trial courts must determine

whether the child has a bond with the biological parent, the nature of that

bond, and effect that severance of the bond would have on the child. In the

Interest of K.T., 296 A.3d 1085, 1109 (Pa. 2023) (citing T.S.M., 71 A.3d at

267, 269). Thus, the question for the court is whether termination would

sever a necessary and beneficial bond. “[T]o grant termination when a

parental bond exists, there must be clear and convincing evidence that the

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bond is not necessary and beneficial.” Id. at 1114.5 The Supreme Court held

that the trial court “must not truncate its analysis and preclude severance

based solely on evidence of an ‘adverse’ or ‘detrimental’ impact to the child.”

Id.

Moreover, our Supreme Court cautioned the parent-child bond inquiry

is but one factor to consider under a proper Section 2511(b) analysis. Id. at

1111 (citing In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)). “[B]ond,

plus permanency, stability and all ‘intangible’ factors may contribute equally

to the determination of a child’s specific developmental, physical, and

emotional needs and welfare, and thus are all of ‘primary’ importance in the

Section 2511(b) analysis.” Id. at 1109 (emphasis added). The Supreme

____________________________________________

5 The Court recognized that severance of any bond could have an “adverse

impact” and upset the child. Therefore, courts must focus on the nature of

the bond commensurate with the impact of severing that bond:

Severance of a “necessary and beneficial” bond would

predictably cause more than the “adverse” impact that,

unfortunately, may occur whenever a bond is present. By

contrast, severance of a necessary and beneficial

relationship is the kind of loss that would predictably cause

“extreme emotional consequences” or significant,

irreparable harm. Moreover, by evaluating the impact of

severance to determine if it will impose more than an

adverse or detrimental impact, courts correctly refine their

focus on the child's development and mental and emotional

health rather than considering only the child's “feelings” or

“affection” for the parent, which even badly abused and

neglected children will retain.

K.T., 296 A.3d at 1109-1110 (footnotes and internal citations omitted).

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Court held that trial courts have discretion to place appropriate weight on each

factor before making a decision under Section 2511(b). Id. at 1113.

Here, the orphans’ court determined – as part of its more general

Section 2511(b) analysis – that there was no evidence of a parental bond

worth preserving. The record supports this determination. Thus, even if we

were to consider Father’s argument regarding his lack of participation in the

forensic evaluation, we would conclude the argument merits no relief.

In sum, we conclude the orphans’ court did not err or abuse its discretion

when it terminated Father’s rights under Section 2511(b). The orphans’ court

was within its discretion to afford little weight to Father’s reasons why his

rights should not be terminated.

Order affirmed.

6/18/2024

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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