In the Interest of: H.K., a minor, Appeal of: R.L.

J-A05036-17

2017 PA Super 124

IN THE INTEREST OF: H.K., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: R.L., FATHER

No. 1201 WDA 2016

Appeal from the Order Entered July 11, 2016

In the Court of Common Pleas of Allegheny County

Orphans' Court at No(s): CP-02-DP-0001429-2014

IN THE INTEREST OF: H.K., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: R.L., FATHER

No. 1416 WDA 2016

Appeal from the Order Entered August 24, 2016

In the Court of Common Pleas of Allegheny County

Family Court at No(s): CP-02-AP-000063-2016

BEFORE: BENDER, P.J.E., SHOGAN, J., and MOULTON, J.

OPINION BY MOULTON, J.: FILED APRIL 28, 2017

Appellant R.L. (“Father”) appeals from the July 11, 2016 permanency

review order and from the August 24, 2016 order terminating his parental

rights to his child, H.K., born in July 2014 (“Child”), under 23 Pa.C.S. §

J-A05036-17

2511(a)(1), (2), and (b). We conclude that Father lacks standing to

challenge the July 11, 2016 permanency review order and, therefore,

dismiss his appeal from that order, docketed at 1201 WDA 2016. We affirm

the August 21, 2016 order terminating Father‟s parental rights, docketed at

1416 WDA 2016.

The trial court set forth the following factual background:

[Child] is a two year old child, who has only lived in the

home of her foster parents, having been placed with them

upon her discharge from the hospital when she was two

weeks old. She had spent the first thirteen days of her

young life detoxing: Mother had tested positive for

Subutex. She does not know or have a relationship with

her [paternal] grandparents. Mother named R.L. as the

alleged Father shortly before the child was adjudicated

dependent on August 25, 2014. Father R.L. is currently

incarcerated. He did not sign an acknowledgement of

paternity, nor was his name on the birth certificate. Father

took a genetic test in November 2014; he was determined

to be the child‟s biological Father on December 11, 2014.

From January 2015 to April 2016, Father did not have any

contact with [the Office of Children Youth and Families

(“CYF”)] or the Court despite receiving notice at his place

of incarceration. He did not hire an attorney, nor ask for

visitation, nor participate in court hearings. Mother signed

to voluntarily terminate her parental rights on April 15,

2016.

Only after the [termination of parental rights] petition

was filed, did Father seek counsel; counsel entered her

appearance on April 4, 2016. Counsel‟s first appearance

on behalf of Father was at the July 11, 2016 permanency

review hearing. Paternal Grandparents filed a

“Grandparent Complaint for Custody” in April; their request

for visitation and issues related to custody were ultimately

deferred to the July 11, 2016 permanency review hearing.

See Order of Court, dated June 16, 2016.

-2-

J-A05036-17

Opinion, 9/26/2016, at 1-2 (“PRO 1925(a) Op.”). On July 11, 2016, the trial

court held a permanency review hearing and a hearing addressing

Grandparent‟s request for custody.

Following this hearing, the trial court found Child “shall remain with”

her foster parents. Perm. Rev. Order at 4. The Court further found that CYF

shall “Offer Family Team Conferencing and Act 101 Mediation to foster

parents[.] NO visitation shall be scheduled with paternal grandparents . . .

without approaching the court.” Id. On August 11, 2016, Father filed a

notice of appeal from the permanency review order, which was docketed at

1201 WDA 2016.

On March 29, 2016, CYF filed a petition to terminate Father‟s parental

rights. On August 24, 2016, the trial court conducted a hearing on this

petition and terminated Father‟s parental rights pursuant to section

2511(a)(1) and (2) and (b).1 On September 23, 2016, Father filed a notice

of appeal, which was docketed at 1416 WDA 2016. On October 11, 2016,

this Court consolidated the appeals sua sponte.2

____________________________________________

1

On April 1, 2016, Mother signed a written consent to the adoption of

Child. On August 24, 2016, the trial court confirmed the consent and

terminated Mother‟s parental rights. Mother did not appeal from that order.

2

The trial court issued two opinions pursuant to Pennsylvania Rule of

Appellate Procedure 1925(a). On September 26, 2016, the trial court issued

its opinion as to the appeal of the July 11, 2016 permanency review order.

PRO 1925(a) Op. On November 7, 2016, it issued its opinion in support of

the order terminating Father‟s parental rights. Opinion, 11/7/16

(“Termination 1925(a) Op.”).

-3-

J-A05036-17

Father raises the following issues on appeal:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR AND/OR ABUSED ITS DISCRETION IN FINDING

THAT AFTER PATERNITY WAS ESTABLISHED IN DECEMBER

2014, “CYF DID ONGOING FF[”] (FAMILY FINDING)

[“]WORKING WITH THE FATHER[”]?

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR AND/OR ABUSED ITS DISCRETION IN FINDING

"APRIL 2016 [PATERNAL GRANDPARENTS] FIRST

CONTACTED CYF AND THAT IS THE FIRST TIME CYF WAS

AWARE THEY EXISTED"?

III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR AND/OR ABUSED ITS DISCRETION . . . IN NOT

ALLOWING VISITATION WITH THE PATERNAL

GRANDPARENTS OF [CHILD] OUTSIDE THE SCOPE OF ACT

101 MEDIATION?

IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR AND/OR ABUSED ITS DISCRETION IN RULING “IT

WOULD BE TRAUMATIC TO [CHILD] BOTH TO BE

REUNI[TED] WITH OR INTRODUCED TO PEOPLE SHE DOES

NOT KNOW, GIVEN HER CURRENT AGE AND HER CURRENT

LEVEL OF [ST]ABILITY WITH HER CURRENT FOSTER

PARENTS[”]?

V. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR AND/OR ABUSED ITS DISCRETION IN FINDING IN

RULING THAT THE COURT IS NOT REQUIRED TO

CONSIDER REASONABLE EFFORTS IN A HEARING TO

INVOLUNTARILY TERMINATE PARENTAL RIGHTS OF

FATHER, R. L.?

VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

ERROR AND/OR ABUSED ITS DISCRETION IN FINDING

CHILDREN, YOUTH AND FAMILIES PROVED BY CLEAR AND

CONVINCING EVIDENCE THAT TERMINATING THE

PARENTAL RIGHTS OF R. L. BEST MEETS THE NEEDS AND

WELFARE OF [CHILD], THE MINOR CHILD IN THIS

MATTER?

Father‟s Br. at 1-2.

-4-

J-A05036-17

1. Appeal of the July 11, 2016 Permanency Review Order (1201

WDA 2016)

Father‟s first four issues attempt to challenge findings the trial court

made in the July 11, 2016 permanency review order. We conclude that

Father lacks standing to contest these findings, which address whether

Grandparents had a right to custody of, or visitation with, Child.

Father challenges the trial court‟s findings that: CYF did family finding;

CYF first learned of Grandparents when they contacted the agency in April

2016; and it would be traumatic for Child to be reunited with or introduced

to Grandparents. He also challenges whether the court erred in not allowing

visitation with Grandparents outside of Act 101 mediation.3

____________________________________________

3

Act No. 2010-101 amended the Adoption Act, by, among other

things, providing for continuing contact with birth relatives. 2010 Pa. Legis.

Serv. Act 2010-101 (S.B. 1360). The statute provides:

The purpose of this subchapter is to provide an option for

adoptive parents and birth relatives to enter into a

voluntary agreement for ongoing communication or

contact that:

(1) is in the best interest of the child;

(2) recognizes the parties‟ interests and desires for

ongoing communication or contact;

(3) is appropriate given the role of the parties in the child‟s

life; and

(4) is subject to approval by the courts.

23 Pa.C.S. § 2731.

-5-

J-A05036-17

Pennsylvania Rule of Appellate Procedure 501 states: “Except where

the right of appeal is enlarged by statute, any party who is aggrieved by an

appealable order, or a fiduciary whose estate or trust is so aggrieved, may

appeal therefrom.”4 The Pennsylvania Supreme Court has explained:

“Aggrieved person” has acquired a particular meaning in

the law. In William Penn [Parking Garage, Inc. v.

Pittsburgh], we explained that the core concept of

standing was that a party had to be “aggrieved.” [346

A.2d 269, 280-81 (Pa. 1975)]. And, “aggrieved” when

used in terms of standing is generally understood to mean

that the person “has a substantial, direct and immediate

interest in the claim sought to be litigated” as set forth in

William Penn.

Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132, 1149 (Pa. 2009).5

Father was not aggrieved by the July 11, 2016 permanency review

order, as he has no substantial, direct, or immediate interest in the issues on

appeal. Father‟s arguments focus on how the alleged lack of family finding

affected Grandparents‟ rights, how Grandparents should have been awarded

visitation, and that the court erred in finding that it would be traumatic for

____________________________________________

4

Both Child‟s guardian ad litem and CYF argue that Father lacks

standing to challenge the July 11, 2016 permanency review order.

5

Pursuant to William Penn, the requirement of a substantial interest

means “there must be some discernible adverse effect to some interest

other than the abstract interest of all citizens in having others comply with

the law.” 346 A.2d at 282. To establish a direct interest, the party “must

show causation of the harm to his interest by the matter of which he

complains.” Id. To establish that interest is immediate, the party must

show a “sufficiently close causal connection between the challenged action

and the asserted injury to qualify the interest as „immediate‟ rather than

„remote.‟” Id. at 286.

-6-

J-A05036-17

Child to meet Grandparents. Father does not assert that the court‟s July 11,

2016 order in any way affected his rights as to Child or affected his ability to

visit or communicate with Child.6 Further, during the pendency of the

appeal, the trial court terminated Father‟s parental rights,7 and he no longer

has the “power or the right . . . to object to . . . adoption proceedings.” 23

Pa.C.S. § 2521(a); see also In re Adoption of G.R.L., 26 A.3d 1124, 1130

(Pa.Super. 2011) (noting “[p]arents no longer have any input regarding an

adoptive placement for Children, where the court has terminated their

____________________________________________

6

The stated legislative intent for the adoption of the Family Finding

and Kinship Care Act, which Father cites in his brief, is as follows:

[T]o promote the use of kinship care when it is necessary

to remove a child from the child‟s home in an effort to:

(1) Identify and build positive connections between the

child and the child's relatives and kin.

(2) Support the engagement of relatives and kin in

children and youth social service planning and delivery.

(3) Create a network of extended family support to assist

in remedying the concerns that led the child to be involved

with the county agency.

62 P.S. § 1301. Father concedes “he was not deprived of the support of his

family and friends because CYF failed to conduct family findings.” Father‟s

Br. at 18. Rather, he argues that “because CYF failed to conduct family

findings and conduct a diligent search for relatives of his daughter,” Child

“was deprived of building positive connections” with “her relatives and kin.”

Id. at 18-19. He notes that although he “has not been proactive in fostering

a relationship with his child he wants his child to have an opportunity to

know his family.” Id. at 19.

7

As discussed below, we affirm the trial court‟s termination of Father‟s

parental rights.

-7-

J-A05036-17

parental rights and Parents have not challenged the court's specific findings

in support of termination”).8

Accordingly, we dismiss Father‟s appeal of the July 11, 2016

permanency review order for lack of standing.9

2. Appeal of the August 23, 2016 Order Terminating Father’s

Parental Rights (1416 WDA 2016)

We will next address Father‟s appeal of the August 23, 2016 order

terminating his parental rights.10

Father maintains that the trial court erred in finding that the trial court

was not required to consider CYF‟s reasonable efforts prior to terminating his

____________________________________________

8

Grandparents appealed from the trial court‟s order denying their

custody complaint, raising the same issues Father raised in his appeal of the

permanency review order. Grandparents‟ appeal is docketed at 1315 WDA

2016.

9

We do not hold that a parent may never have standing to challenge a

trial court‟s order granting or denying custody to a family member. Rather,

we conclude that, under the circumstances of this case, Father has failed to

establish that he was aggrieved by the findings that affected Grandparent‟s

ability to visit Child.

10

The trial court had jurisdiction to address the petition to terminate

Father‟s parental rights while Father‟s appeal of the permanency review

order was pending. The appeal of the permanency review order addressed

Grandparents‟ rights to visitation and custody, which, in this case, is a

separate issue from whether Father‟s parental rights should be terminated.

See Pa.R.A.P. 1701(c) (“Where only a particular item, claim or assessment

adjudged in the matter is involved in an appeal, . . . the appeal . . . shall

operate to prevent the trial court . . . from proceeding further with only such

item, claim or assessment, unless otherwise ordered by the trial court or

other government unit or by the appellate court or a judge thereof as

necessary to preserve the rights of the appellant”).

-8-

J-A05036-17

parental rights. He claims that he attempted to elicit testimony regarding

CYF‟s efforts to contact Father and his family, but the trial court sustained an

objection to the questions.

As this Court has stated:

Our standard of review with respect to a trial court's

evidentiary rulings is deferential. The admission of

evidence is within the discretion of the trial court and such

decisions will be reversed only if the trial court has abused

its discretion.

In re Adoption of R.K.Y., 72 A.3d 669, 675 (Pa.Super. 2013) (citations

omitted).

In In re D.C.D., the Pennsylvania Supreme Court stated:

Neither subsection (a) nor (b)[11] requires a court to

consider the reasonable efforts provided to a parent prior

to termination of parental rights. Nevertheless, this Court

has observed that the provision or absence of reasonable

efforts may be relevant to a court‟s consideration of both

the grounds for termination and the best interests of the

child. [In re Adoption of S.E.G., 901 A.2d 1017, 1029

(Pa. 2006)]. For example, as applicable to subsection

(a)(2), a court may find an agency‟s lack of assistance to a

parent relevant to whether a parent‟s incapacity “cannot or

will not be remedied by the parent.” 23 Pa.C.S. §

2511(a)(2). Indeed, we agree with Father, at least in a

situation involving a strong bond between parent and child

prior to incarceration and a short term of incarceration,

that a child welfare agency cannot refuse reasonable

efforts to an incarcerated parent and then point to the

resulting erosion in the parental bond created by the

agency as justification for termination of parental rights.

The fact that such a scenario can be articulated, however,

____________________________________________

11

23 Pa.C.S. § 2511(a) and (b) provide the grounds for involuntary

termination of parental rights.

-9-

J-A05036-17

does not transform the provision of reasonable efforts to

reunite parents and children into a requirement for

termination.

105 A.3d 662, 672 (Pa. 2014). The Court concluded that although

“reasonable efforts should be considered and indeed, in the appropriate

case, a trial court could insist upon their provision, we hold that nothing in

the language or the purpose of Section 6351(f)(9) forbids the granting of a

petition to terminate parental rights, under Section 2511, as a consequence

of the agency‟s failure to provide reasonable efforts to a parent.” Id. at

675.

Father does not cite the portion of the testimony to which he refers in

his brief. It appears he is referencing an exchange during the cross-

examination of Elizabeth Reiter, a CYF casework supervisor, where the trial

court sustained an objection to the following question:

Q: And did the agency determine that it was appropriate

for [Grandparents] to have contact with [Child]?

N.T., 8/24/16, at 57-59. Evidence regarding the reasonable efforts CYF

made to help a parent reunite with his or her children may be relevant for a

determination as to termination of parental rights. See In re D.C.D., 105

A.3d at 672. Here, the trial court heard testimony regarding CYF‟s efforts to

contact Father, and found Father not credible when he testified that he did

not receive the communications. N.T., 8/24/16, at 121. The court further

found that “Father largely eschewed all CYF inquiry and communication until

he received notice that CYF filed a petition to terminate his rights.”

- 10 -

J-A05036-17

Termination 1925(a) Op. at 6. It was not an abuse of the trial court‟s

discretion to preclude testimony regarding CYF‟s efforts to find Father‟s

family when determining whether to terminate Father‟s parental rights.

Father next maintains that the trial court erred in finding that

terminating his parental rights meets the needs and welfare of Child.

We apply the following standard when reviewing an order terminating

a parent‟s parental rights:

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

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) (alteration in original).

The Pennsylvania Supreme Court has explained the reason for

applying an abuse of discretion standard to termination decisions:

[U]nlike trial courts, appellate courts are not equipped to

make the fact-specific determinations on a cold record,

where the trial judges are observing the parties during the

relevant hearing and often presiding over numerous other

hearings regarding the child and parents. Therefore, even

where the facts could support an opposite result, as is

often the case in dependency and termination cases, an

- 11 -

J-A05036-17

appellate court must resist the urge to second guess the

trial court and impose its own credibility determinations

and judgment; instead we must defer to the trial judges so

long as the factual findings are supported by the record

and the court‟s legal conclusions are not the result of an

error of law or an abuse of discretion.

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citation

omitted).

The trial court terminated Father‟s parental rights pursuant to sections

2511(a)(1), (2), and (b), which provide:

(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:

(1) The parent by conduct continuing for a period of at

least six months immediately preceding the filing of the

petition either has evidenced a settled purpose of

relinquishing parental claim to a child or has refused or

failed to perform parental duties.

(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.

- 12 -

J-A05036-17

23 Pa.C.S. § 2511(a)(1), (2), and (b).

Father does not contest that termination was proper under sections

2511(a)(1) and (2). Rather, Father claims that the court erred in finding

that terminating his parental rights would be in Child‟s best interest. He

argues that the trial court failed to consider “other considerations” that

affect the needs and welfare of Child because it failed to consider CYF‟s

efforts to conduct family finding. He further maintains that knowing her

biological family would be in Child‟s best interest.

The focus in terminating parental rights under section 2511(b) is not

on the parent, but on the child. In re Adoption of C.L.G., 956 A.2d 999,

1008 (Pa.Super. 2008) (en banc). Pursuant to section 2511(b), the trial

court must determine “whether termination of parental rights would best

serve the developmental, physical and emotional needs and welfare of the

child.” In re C.M.S., 884 A.2d 1284, 1286 (Pa.Super. 2005). As this Court

stated, “a child‟s life „simply cannot be put on hold in the hope that [a

parent] will summon the ability to handle the responsibilities of parenting.‟”

In re Z.S.W., 946 A.2d 726, 732 (Pa.Super. 2008) (quoting In re

Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa.Super.2003)). Rather, “a

parent‟s basic constitutional right to the custody and rearing of his child is

converted, upon the failure to fulfill his or her parental duties, to the child‟s

right to have proper parenting and fulfillment of his or her potential in a

- 13 -

J-A05036-17

permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856

(Pa.Super. 2004).

This Court has explained that “[i]ntangibles such as love, comfort,

security, and stability are involved in the inquiry into the needs and welfare

of the child.” In re C.M.S., 884 A.2d at 1287. Further, the trial court “must

also discern the nature and status of the parent-child bond, with utmost

attention to the effect on the child of permanently severing that bond.” Id.

(citation omitted). However, “[i]n cases where there is no evidence of any

bond between the parent and child, it is reasonable to infer that no bond

exists. The extent of any bond analysis, therefore, necessarily depends on

the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-

63 (Pa.Super. 2008).

The trial court found:

Father argues that termination would not best meet the

needs and welfare of the child. See Statement of Error at

Paragraph 5. The child, having had to spend the first

month of her life in the hospital, has never known either of

[her] biological parents. When . . . she was released from

the hospital a month after her birth, she was placed in the

home of her pre-adoptive foster parents. She is now two

years old. Father has never met his child. At the TPR

hearing, the parties stipulated to the admission of Dr. Neil

Rosenblum‟s psychological evaluations. See CYF Exhibit 4.

Dr. Rosenblum reported that the child has only known the

home of the [pre-]adoptive foster parents. See Exhibit 4,

Evaluation dated June 2, 2016, at 3. “Rather predictably

[Child] has formed a very strong, primary and exclusive

attachment to her foster parents.” Id. Dr. Rosenblum

reported that the child is “a very happy, emotionally

secure little girl” who is “progressing extremely well in her

development.” Id. In Dr. Rosenblum‟s “clinical opinion

- 14 -

J-A05036-17

this is a secure, highly supportive family environment

which clearly offers [Child] the best opportunity for

growing up in a stable, supportive environment that is

capable of meeting her needs at this time and in the years

to come.” Id. In fact, Dr. Rosenblum reported that the

child‟s removal from the pre-adoptive foster parents could

“potentially expose [Child] to traumatic emotional

experiences, pronounced adjustment difficulties and the

possibility of an eventual attachment disorder.” Id. The

Court found [Child] to be securely bonded to her pre-

adoptive foster patents. While Dr. Rosenblum did not

meet with Father, it is clear that termination would be

service the child‟s interests.

Termination 1925(a) Op. at 9. The trial court‟s findings are supported by

the record, and it did not abuse its discretion in finding it would be in Child‟s

best interest to terminate Father‟s parental rights. Any benefit Child may

receive from knowing other biological family does not affect whether it would

be in her best interests to terminate Father‟s parental rights. Further, any

such benefit would not outweigh the evidence establishing that Child‟s best

interest would be met by remaining with her foster parents. See In re

Adoption of G.R.L., 26 A.3d at 1127 (stating that “[t]he goal of preserving

the family unit cannot be elevated above all other factors when considering

the best interests of children, but must be weighed in conjunction with other

factors”). Therefore, we affirm the trial court‟s order terminating Father‟s

parental rights.

Father‟s appeal from the July 11, 2016 permanency review order

(1201 WDA 2016) is dismissed. The August 24, 2016 order terminating

Father‟s parental rights (1416 WDA 2016) is affirmed.

- 15 -

J-A05036-17

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2017

- 16 -