In Re: L.M., a minor, Appeal of: M.M.D.L.R.

J-A21030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.M., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: M.M.D.L.R. :

:

:

:

:

: No. 453 WDA 2017

Appeal from the Order February 22, 2017

In the Court of Common Pleas of Allegheny County

Orphans’ Court at No(s): CP-02-AP-214-2016

BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 20, 2017

M.M.D.L.R. (“Father”) appeals from the order dated February 17,

2017, and entered on February 22, 2017, granting the petition filed by the

Allegheny County Office of Children, Youth and Families (“OCYF” or the

“Agency”), and involuntarily terminating his parental rights to his male child,

L.M. (“Child”) (born in January of 2014), pursuant to the Adoption Act, 23

Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).1

____________________________________________

1 In the same order entered on February 22, 2017, the trial court terminated

the parental rights of Child’s mother, S.F., (“Mother”), after she withdrew

her contest to the involuntary termination. See Trial Court Opinion,

4/24/17, at 1 n.1; N.T., 2/10/17, at 4. In the same order, the trial court

also involuntarily terminated the parental rights of any unknown father to

Child. Neither Mother nor any unknown father has filed an appeal, nor is

Mother or any unknown father a party to the present appeal.

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On November 28, 2016, OCYF filed the petition to terminate Father’s

parental rights to Child. The trial court held a hearing on the petition on

February 10, 2017. Attorney Lilian A. Akin, on behalf of OCYF, and Attorney

Cynthia B. Moore, guardian ad litem (“GAL”) for Child,2 were present.

Father and his counsel, Attorney Raymond N. Sanchas, and Mother’s

counsel, Attorney Rhonda A. Marks, were also present at the hearing. OCYF

first presented the testimony, via telephone, of Terry O’Hara, Ph.D., the

court-appointed psychologist from Allegheny Forensic Associates who

conducted several evaluations of the family. N.T., 2/10/17, at 6. Attorney

Sanchas cross-examined Dr. O’Hara, then Attorney Akin conducted re-direct

examination, followed by re-cross examination by Attorney Sanchas. OCYF

next presented the testimony of Hannah Shankle, the Family Service

caseworker for Child’s family. Id. at 45. Attorney Sanchas cross-examined

Ms. Shankle, as did the GAL. Attorney Akin then conducted re-direct

examination of Ms. Shankle.

Next, Father presented the testimony of Carles Kemp, a family support

transportation worker for A Second Chance, Inc. Id. at 86. Mr. Kemp

supervised the visits between Father and Child since July 2016. Id. at 86-

88. Attorney Akin cross-examined Mr. Kemp. Father testified on his own

____________________________________________

2Attorney Moore has filed with this Court an advocate’s brief on behalf of

Child.

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behalf. Id. at 92. Attorney Akin questioned Father on cross-examination.

Attorney Sanchas conducted further questioning of Father on re-direct

examination. OCYF then presented the testimony of Ms. Shankle in rebuttal.

Id. at 118.

The trial court found the following:

Hannah Shankle (hereinafter, “Ms. Shankle”) was the Family

Service caseworker for this family since April 14, 2015. Ms.

Shankle testified that Child came to the attention of OCYF on

November 9, 2014, after he presented at Children’s Hospital of

Pittsburgh with multiple injuries. See OCYF Exhibit 1;

Stipulation No. 6 at 1. After an investigation, OCYF found a

“large abrasion to [Child’s] head, scratches to his nose in a

symmetrical shape, a bruise to his right ear and behind the ear,

a large four-centimeter linear abrasion over the left side of his

head and a two-centimeter bruise to the right back area of his

head.” On November 10, 2014, OCYF obtained an Emergency

Custody Authorization (hereinafter, “ECA”) because “no clear

explanation” for the injuries was provided to OCYF.

On February 4, 2015, Child was adjudicated dependent pursuant

to [subsection one] of the Pennsylvania Juvenile Act at 42

[Pa.C.S.A.] § 6302. Mother and Father stipulated that Dr.

Jennifer Wolford and Dr. Romberger, doctors from the Children’s

Advocacy Center (hereinafter, “CAC”) of the Children’s Hospital

of Pittsburgh of UPMC, “would have testified that [Child] was

brought to [the] hospital with bruises and scratches and

unexplained injuries.” See OCYF Exhibit 1, Stipulation No. 10, at

2.

OCYF created a Family Plan which listed the following goals for

Father: 1) mental health; 2) parenting; 3) domestic violence;

and 4) remain in contact and cooperate with OCYF.

OCYF created a mental health goal for Father because during the

initial investigation he admitted that he had a history of

depression and Post-Traumatic Stress Disorder (hereinafter,

“PTSD”) and was in treatment at the VA Hospital at that time.

During the initial family conference on April 28, 2015, Ms.

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Shankle observed a verbal altercation between Father and his

sister where Father “became very angry, began cursing, yelling

and screaming and eventually stormed out of the home, got in

his vehicle and sped out of the driveway.”

Domestic violence was a goal for Father because OCYF was

active with Father and another child.[fn.1] Additionally, OCYF

received documentation from the Monroeville Police Department

“of numerous calls to the home where [Father] and [Mother]

resided regarding domestic disputes, and [OCYF] also had

received information from [Mother] in June 2016 of domestic

violence.”

Ms. Shankle testified that Father had a goal of parenting because

OCYF was made aware of two previous charges of endangering

the welfare of a child in West Virginia and Colorado.

“Additionally, [OCYF] had concerns due to the physical injuries

that [Child] had sustained as well as injuries that [I.K.-M.],

[Father’s] other daughter, had sustained while in his care.”

OCYF offered Father a multitude of services in order to reach his

Family Plan goals. On May 9, 2015, Father completed a

parenting program at Arsenal. In-home services through Family

Resources were also available to Father. To address his goal of

domestic violence, Father participated in the Men’s Group

through the Women’s Center and Shelter. Father’s mental

health treatment included medication management through the

VA Hospital as well as outpatient therapy which he completed

through the Vet Center. OCYF also provided Father with gas

cards and a toddler bed to assist Father with his visitation with

Child.

In terms of progress, Father has not met his goal of mental

health. Ms. Shankle provided examples of why OCYF believes

this and explained that Father “has been consistently involved in

outpatient therapy; however, his medication management

through the Veterans Hospital has not been consistent.” Ms.

Shankle testified that “OCYF confirmed that Father did not

provide his therapist information as to why [Child] actually came

into care and is not addressing this issue in therapy.” See OCYF

Exhibit 3; Trial Court Order, 5/11/16, at 3. Additionally, OCYF

received information that Father had a third child who resided in

the Colorado area. On August 17, 2016, after a permanency

review hearing, Ms. Shankle asked Father about his third child

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and Father “stated that this was none of my business, that he

would not discuss this with me, and he was very confrontational

during that encounter.” In December [] 2016, Ms. Shankle

asked Father to sign releases of information and documents for

Child to participate in Westmoreland Intermediate Unit, a

regional education service for children. Ms. Shankle observed

that Father was “very frustrated and combative” and “very

resistant” to sign the releases of information. OCYF also believes

Father did not meet his mental health goal because he was not

compliant with his medication.

Father’s visitation with Child has remained consistent and

he completed a parenting program at Arsenal on May 9, 2015.

See OCYF Exhibit 1; Stipulation No. 15 at 2. However, there has

been a lack of progress in terms of his visitation with Child and

Father’s parenting ability. Father obtained unsupervised

visitation on September 17, 2015. However, on September 22,

2015, KidsVoice filed a Motion for Supervised Visits.[fn.2]

Visitation was ordered to go back to supervised on September

25, 2015. On May 11, 2016, Father was again given

unsupervised visitation. Father reported that “the visits have

gone well and have been successful.” However, visits “went

back to being supervised by court order on July 6, 2016 due to

reports of [Child’s] behavior declining since visits moved to

unsupervised.” See OCYF Exhibit 1; Stipulation No. 27 at 3.

They have reported that [Child] is now extremely ‘clingy’

and ‘needy.’ [‘][Child] does not interact well with other

children in the daycare. He has been hitting and kicking

children. [Child] has also appeared fearful of unknown

adults. [Child] was observed covering his ears and

appeared extremely startled when teachers prompted him

to stop while redirecting him in the daycare.’ Further, the

foster family alleged that [Child] has been experiencing

‘night terrors.’ [Father] denied observing any of these

behaviors during visits. OCYF questions ‘if these

behaviors are the result of the large transition, or if

something possibly is occurring during the visits.’

KidsVoice provided similar information with respect to

alleged changes for [Child] since unsupervised, overnight

visitation commenced. From KidsVoice[’s] perspective,

the changes reported by [Child’s] foster parents, daycare,

and early intervention clinician are `drastic, as he

reportedly [becomes] aggressive, ‘needy, clingy, and

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afraid to change classrooms unless he knows where he is

going. [Child] does not like to leave the daycare unless

he is picked up by his foster father or foster mother.’

When a staff member from A Second Chance arrives to

transport [Child], he ‘screams and cries. On one

occasion, [Child] held onto the curtains and screamed

when the A Second Chance worker arrived to pick him up.

He pulled on them so hard they came off.’ In addition,

[Child's] foster mother, according to KidsVoice, indicated

that [Child] ‘now touches and holds his private parts both

inside and outside his diaper. It has been reported that

[Child] covers his ears when reprimanded.’ These

behaviors are ‘new,’ according to KidsVoice. Also,

KidsVoice reported that [Child’s] behavior seems to

return to normal as the week goes on, and gets worse

again after Thursday visits. . . .

See OCYF Exhibit 2; Psychological Evaluation Report, 6/21/16,

Collateral Information, at 2-3.

___________________________________________________

[fn.1] Father had a history of domestic abuse with his previous

wife, S.K. I.K.-M. is Father’s daughter with S.K. I.K.-M. was

also active with OCYF and a dependent child with the court.

[fn.2] This motion alleged that the caseworker reported that:

Father drove carelessly; Foster Mother “observed a brush burn”

on Child’s back; Father was “not spending much time actually

interacting” with Child; and Father’s “mental health treatment is

unverified.” Motion for Supervised Visits; 9/22/15, at 1-3.

Trial Court Opinion, 4/24/17, at 3-6 (footnotes in original) (some internal

footnotes, citations, and capitalization omitted).

On February 17, 2017, the trial court granted OCYF's petition and

terminated Father’s parental rights to Child. On March 23, 2017, Father filed

the notice of appeal from the termination decree regarding Child, along with

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b).

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Father raises the following issues:

1. Did the trial court abuse its discretion and/or err as a matter

of law in granting the petition to involuntarily terminate Father’s

parental rights pursuant to 23 Pa.C.S. §2511(a)(2), (5), and

(8)?

2. Did the trial court abuse its discretion and/or err as a matter

of law in concluding that CYF met its burden of proving by clear

and convincing evidence that termination of [Father’s] parental

rights would best serve the needs and welfare of the child

pursuant to 23 Pa.C.S. §2511(b)?

Father’s Brief at 5.3

In his first issue, Father argues that the evidence demonstrates that

he made sufficient progress in compliance with the goals set by OCYF for

him to be reunified with Child. Father’s Brief at 9-10 and 16. Father

complains that OCYF was unwilling to accept his explanation for Child’s

injuries as accidental, despite the fact that OCYF had no explanation for the

cause of the injuries. Id. at 9-10. Specifically, Ms. Shankle testified that

Father made progress in parenting, and admitted that there had not been

any reported incidents of domestic violence since November of 2015. Id. at

9 (citing N.T., 2/10/17, at 66 and 74). Father also states that Dr. O’Hara

acknowledged that Father had positive parenting skills. Father’s Brief at 9

(citing N.T., 2/10/17, at 10).

____________________________________________

3 We note that Father stated his issues somewhat differently in his concise

statement, particularly, that he has reduced the number of issues by

combining them. We, nevertheless, find them sufficiently preserved for our

review.

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In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

[A]ppellate courts must apply an abuse of discretion standard

when considering a trial court’s determination of a petition for

termination of parental rights. As in dependency cases, our

standard of review requires an appellate court to accept the

findings of fact and credibility determinations of the trial court if

they are supported by the record. In re: R.J.T., 9 A.3d 1179,

1190 (Pa. 2010). If the factual findings are supported, appellate

courts review to determine if the trial court made an error of law

or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa.

2011) (plurality opinion)]. As has been often stated, an abuse of

discretion does not result merely because the reviewing court

might have reached a different conclusion. Id.; see also

Samuel Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51

(Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).

Instead, a decision may be reversed for an abuse of discretion

only upon demonstration of manifest unreasonableness,

partiality, prejudice, bias, or ill-will. Id.

As [the Pennsylvania Supreme Court] discussed in R.J.T., there

are clear reasons for applying an abuse of discretion standard of

review in these cases. [The Supreme Court] observed that,

unlike 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. R.J.T., 9 A.3d at 1190. Therefore, even where the

facts could support an opposite result, as is often the case in

dependency and termination cases, an 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 Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

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

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The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, we explained:

[t]he standard of clear and convincing evidence is defined as

testimony 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.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

This Court may affirm the trial court’s decision regarding the

termination of parental rights with regard to any one subsection of section

2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). We will address section 2511(a)(2) and (b), which provide, in

relevant part:

§ 2511. Grounds for involuntary termination

(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

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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.

23 Pa.C.S.A. § 2511.

The Supreme Court set forth our inquiry under section 2511(a)(2) as

follows.

[Section] 2511(a)(2) provides statutory grounds for termination

of parental rights where it is demonstrated by clear and

convincing evidence that “[t]he repeated and continued

incapacity, abuse, neglect or refusal of the parent has caused

the child to be without essential parental care, control or

subsistence necessary for his physical or mental well-being and

the conditions and causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied by the parent.” . . .

This Court has addressed incapacity sufficient for termination

under § 2511(a)(2):

A decision to terminate parental rights, never to be made

lightly or without a sense of compassion for the parent,

can seldom be more difficult than when termination is

based upon parental incapacity. The legislature,

however, in enacting the 1970 Adoption Act, concluded

that a parent who is incapable of performing parental

duties is just as parentally unfit as one who refuses to

perform the duties.

In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986) quoting

In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).

In re Adoption of S.P., 47 A.3d at 827.

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This Court has long recognized that a parent is required to make

diligent efforts towards the reasonably prompt assumption of full parental

responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A

parent’s vow to cooperate, after a long period of uncooperativeness

regarding the necessity or availability of services, may properly be rejected

as untimely or disingenuous. Id. at 340.

The trial court addressed Father’s issue challenging the sufficiency of

the evidence to support the termination of his parental rights as follows.

While Father has been relatively compliant with the Family Plan,

Father has failed to make adequate progress and cannot or will

not remedy the conditions that existed which led to the removal

of Child in a reasonable amount of time. Additionally,

termination meets the Child’s needs and welfare. This [c]ourt

finds it unsettling that Father’s visitation was twice ordered to go

back to being supervised and that Father has not been able to

obtain unsupervised visitation again since July 6, 2016. Despite

Father’s completion of the Arsenal parenting program, Ms.

Shankle testified that Father “lacks consistency” and “still had to

ask basic questions about activities” for Child. For example,

Father had to be reminded that Child needed to wear a helmet

while riding a motorized four-wheeler. Father also continued to

need to be “redirected about the cleanliness of his home and the

environment that [Child] is sleeping in” after it was discovered

that Child’s bedroom did not have the toddler bed in it and there

were car parts and papers on the floor.

Ms. Shankle testified that while Father reached some of the

goals set out for him in the Family Plan, OCYF sought

termination of Father’s rights because:

[Child] has been in care for 27 months. [OCYF] has

provided [Father] with a number of services and support

to reunify with [Child]. Unfortunately, [Father] has been

unable to reach a point that reunification is possible. As

[OCYF] has moved towards unsupervised visits on two

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occasions, the visits had to revert back to being

supervised.

On the second time that [Father] had unsupervised

visitation and overnight visitation with [Child], [Child] had

exhibited severe behaviors where he was having night

terrors and having severe tantrums and emotional

disturbances.

It is of paramount concern that Father has not provided an adequate

explanation of the injuries to Child that brought him into care. This

[c]ourt concluded that Father does not have the capacity to parent

Child and cannot or will not remedy the conditions which led to

removal in a reasonable amount of time. In reaching this decision,

this [c]ourt relied upon the testimony of Terry O’Hara, Ph.D., [] a

licensed psychologist for Allegheny Forensic Associates, who conducted

several evaluations of this family throughout the history of this case.

Dr. O’Hara had “significant concerns that the essential issues leading

to [Child’s] removal have not been addressed. . . . I think [Child] is

still at risk for abuse and injury if he were to be unsupervised with his

father.” Dr. O’Hara explained that there’s been “a multitude of

unexplained injuries for [Child] which there’s been no explanation for

the injuries by his parents. . . . I have no evidence that these issues

have been addressed.”

On February 11, 2015, Dr. O’Hara conducted an interactional

evaluation of Father, Child and Child’s half-sibling, I.M.-K. Dr. O’Hara

observed that Father demonstrated positive parenting skills, however,

he noted that Father “was not appropriately supporting [Child’s] head

while carrying him, [Father] acknowledged ‘dropping’ [Child] during a

relatively recent visit, and acknowledged that [Child] accidentally

struck his head on the door frame while being carried by [Father].

[Father’s] elbow also covered [Child’s] mouth on one occasion for

several moments during this evaluation.” See OCYF Exhibit 2;

Psychological Evaluation Report, 2/11/15, Discussion &

Recommendations, at 21.

On March 10, 2015, Dr. O’Hara conducted an individual evaluation

with Father. Dr. O’Hara noted several concerns with Father's mental

health:

[Father] acknowledged carelessness and awkwardness

with the children. . . . [Father] has been involved with

the police on several occasions and he often externalized

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responsibility for his circumstances with police

involvement, negative interactions with the Army, and his

interactions with OCYF. During the evaluation, [Father]

acknowledged depressed mood, inattention, over activity,

impulsivity, a history of anxiety, several symptoms of

PTSD, and a history of anger management concerns. He

also acknowledged domestic violence in his relationship

with [S.K.], and he alleged exposure to domestic violence

and abuse during his upbringing. He has not been

consistent with treatment through the VA. In this

examiner’s opinion, [Father’s] carelessness with the

children is, at least in part, related to his unaddressed

mental health concerns, including PTSD and [Attention

Deficit Hyperactivity Disorder]. These mental health

issues can influence a lack of focus and attunement to the

children and impulsivity when with them.

See OCYF Exhibit 2; Psychological Evaluation Report, 3/10/15,

Discussion & Recommendations, at 28-29.

On August 10, 2015, Dr. O'Hara conducted an individual

evaluation of Father and an interactional evaluation of Father

and Child. Dr. O’Hara noted that Father completed the Arsenal

parenting program, continued to be involved with family

resources in-home program, participated with the Men’s Group,

and the VA. See OCYF Exhibit 2; Psychological Evaluation

Report, 8/10/15, Discussion & Recommendations, at 16.

However, Father “acknowledged anxiety about his children,

symptoms of PTSD, and poor sleep. He showed defensiveness

. . . and his responses [on the test] were . . . reflective of

depression, anxiety, externalization, health issues, lack of

support, and distrust in relationships.” See OCYF Exhibit 2;

Psychological Evaluation Report, 8/10/15, Discussion &

Recommendations, at 17.

On June 21, 2016, Dr. O’Hara conducted an individual evaluation

of Father and an interactional evaluation of Child and Father

because OCYF received reports from the foster family, the

daycare, and early intervention worker that they noticed a

change in Child’s behavior after unsupervised, overnight visits

with Father. Dr. O’Hara observed that Father “exhibited several

positive parenting skills” but testified that Child “cried for several

minutes during the initial part of the interactional [evaluation].

[Child] attempted to leave the evaluation. He was further

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resistant to entering into the evaluation with his father.” TR at

1; See OCYF Exhibit 2; Psychological Evaluation Report,

6/21/16, Discussion & Recommendations, at 18. Regarding

Child’s alleged change in behavior since beginning unsupervised,

overnight visits with Father, Dr. O’Hara suggested that

“increased anxiety for children of [Child’s] age is not atypical

during times of significant transition, especially when increased

time is spent with a caregiver with whom the child is not

primarily attached.” However, Dr. O’Hara proffered that “given

the history of allegations involving this case, in conjunction with

[Mother’s] allegations and [Child’s] historical injuries, of which

the CAC was significantly concerned, we should also be attuned

to the possibility of ongoing abuse of [Child].” See OCYF Exhibit

2; Psychological Evaluation Report, 6/21/16, Discussion &

Recommendations, at 18. (Emphasis added.)

On November 23, 2016, Dr. O’Hara conducted an interactional

evaluation with Child with Father. Dr. O’Hara recounted that

Father’s parenting and mental health were still a concern and

explained:

. . . [Father] showed irritation during this evaluation in

front of his son. [Father] was upset about the order of

the evaluations . . . . he was of the opinion that it was

unfair that the foster parents went first with [Child] not

only during this evaluation but on the most recent one

. . . from June.

But what was concerning for me was that he showed

irritation in front of [Child] and his consequent mood as a

result negatively impacted his engagement, his

attunement with [Child]. So he wasn’t appropriately

supervising [Child] during the initial part of the most

recent interactional evaluation.

He also appeared depressed on occasion as well, and I

think this negatively impacted [Child’s] engagement with

his father. [Child] was distant with his father during the

first 10, 15 minutes of the interactional [evaluation]. He

also attempted to leave the evaluation. He was also

hesitant to enter into the evaluation, and he showed

qualitatively more aggression in his play than I observed

during the interactional [evaluation] with his foster

parents.

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Given Father’s “history of inattention” and “significant

carelessness,” Dr. O’Hara was concerned that if Father’s

depression and ADHD symptoms are not appropriately being

addressed “his mood could negatively impact his parenting.”

On November 23, 2016, Dr. O’Hara conducted a final individual

evaluation of Father. Dr. O’Hara acknowledged that Father was

successfully discharged from mental health treatment at the Vet

Center because his doctor obtained a new position. “However,

Mr. Zimmerman reports that [Father] was not discussing his

OCYF involvement in treatment, nor did he disclose that [Child’s]

goal was changed to adoption in August. Furthermore, [Father]

was not compliant with medication management and last

participated in a psychiatric appointment in June.” See OCYF

Exhibit 2; Psychological Evaluation Report, 11/23/16, Discussion

and Recommendations, at 23. Dr. O’Hara concluded:

I’m acutely aware of [Father] being in adherence to many

of the recommendations of him, and also there have been

no criminal charges filed against [Father,] either. I think

that he has made progress in some areas, and I think he

clearly cares a lot about his son, and I think [Child] has

benefits that he has in his relationship with his father as

well.

My main concerns, on the other hand, with regard to this

case include, first of all, as I mentioned, [Father] has not

reportedly been cooperative with his medications, his

psychiatric appointments, and if this is valid, then his

long-term issues with ADHD and depression are likely not

being sufficiently addressed, and I think this can be

particularly problematic when we look at some of the

allegations that have happened and the injuries that have

occurred with [Child] as well.

[Father] does acknowledge that he’s been very careless

with his son, and I think this carelessness is likely to

continue if the ADHD is not appropriately addressed.

Secondly and foundationally, a main concern that I’ve

alluded to is [Child] has sustained multiple substantial

injuries while in his father and [Mother’s] care. Also,

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[Father’s] daughter [I.K.-M.] sustained a black eye in the

care of her father and stepmother, [Mother].

Dr. Wolford of CAC and Dr. Romberger, [Child’s]

pediatrician, I believe, they both believe that [Child’s]

substantial injuries were the result of child abuse.

Furthermore, as I’ve noted, [Mother] alleged significant

abuse of [Child] by [Father]. Her allegations of [Child’s]

injuries to his head and his ear were something that was

noted by . . . CAC as well. And as I mentioned, [Mother]

and [S.K.] both alleged being choked by [Father].

Within the context of domestic violence, being choked is

something that’s not common to hear as opposed to

being, you know, someone striking another. So I think

that was noteworthy.

. . . [T]here’s no assumption of responsibility with the

exception of [Father] acknowledging that that he’s been

careless. There’s also evidence [Father] provided

contrasting accounts to Dr. Romberger with respect to

[Child’s] injury to his nipple, that he stated initially

apparently that something had occurred in the bathroom

in the waiting room prior to the visit, and after it was

revealed to [Father] that that wasn’t possible, the story

was allegedly changed, that something had happened two

weeks prior.

I don’t have any evidence that [Father] has addressed

the issues, the factors that are associated to the injuries

of [Child], which would include emotional regulation,

anger management, impulsivity, violence and low

frustration tolerance.

It’s my opinion that [Child] would be at risk of further

injury if he were to be returned to his father’s care at this

time as a result of these issues not being sufficiently

addressed, and so those are my foundational

recommendations and opinions.

This [c]ourt concluded that Father’s lack of progress in terms of

parenting and mental health treatment exhibits a lack of

capacity to parent Child and that he cannot or will not remedy

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the conditions which led to removal in a reasonable amount of

time. Additionally, termination meets the needs and welfare of

Child. Accordingly, OCYF established grounds for Father's

termination pursuant to [§ 2511(a)(2)]. . . .

Trial Court Opinion, 4/24/17, at 8-13 (some internal citations omitted)

(internal emphasis and footnote omitted).

After a careful review of the record, we find that termination of

Father’s parental rights to Child was warranted pursuant to section

2511(a)(2) because the evidence demonstrates that Father lacks parental

capacity and Father will be unable to remedy that situation within a

reasonable period of time, if ever. As there is competent evidence in the

record that supports the trial court’s findings and credibility determinations,

we find no abuse of the trial court’s discretion under section 2511(a)(2). In

re Adoption of S.P., 47 A.3d at 826-27.

Next, we will review Father’s second issue, in which he challenges the

sufficiency of the evidence to support the trial court’s termination of his

parental rights under section 2511(b). Father contends that the trial court

abused its discretion in concluding that the evidence demonstrated a clear

necessity to terminate his parental rights, as he asserts that the termination

will not best serve Child’s needs and welfare. Father’s Brief at 10 and 14-

16. Father argues that termination would unnecessarily and permanently

terminate the loving relationship he has with Child, and the strong bond that

Child has with him. Id. Father asserts that Mr. Kemp testified that, during

his supervision of Father’s visits with Child, he observed Child is animated

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and excited to see Father, and Child is visibly upset when he has to separate

from Father. Id. at 15 (citing N.T., 2/10/17, at 87, 90).

This Court has stated that the focus in terminating parental rights

under section 2511(a) is on the parent, but it is on the child pursuant to

section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.

Super 2008) (en banc). In reviewing the evidence in support of termination

under section 2511(b), our Supreme Court stated as follows:

[I]f the grounds for termination under subsection (a) are met, a

court “shall give primary consideration to the developmental,

physical and emotional needs and welfare of the child.” 23

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, and stability.” In re K.M., 53 A.3d 781,

791 (Pa. Super. 2012). In In re E.M., 620 A.2d 481, 485 (Pa.

1993), the Supreme] Court held that the determination of the

child’s “needs and welfare” requires consideration of the

emotional bonds between the parent and child. The “utmost

attention” should be paid to discerning the effect on the child of

permanently severing the parental bond. In re K.M., 53 A.3d at

791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

In addressing Father’s challenge to the sufficiency of the evidence to

support the termination of his parental rights under section 2511(b), the

trial court stated as follows:

Here, this [c]ourt judiciously evaluated the bond between Father

and Child and determined that there was no indication that an

emotional bond exists to the extent that the termination of

parental rights of Father would cause Child to suffer extreme

emotional consequences. In Re E.M., 620 A.2d [481,] 485

[(Pa. 1993)].

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On August 8, 2016, and November 23, 2016, Dr. O’Hara

conducted an interactional evaluation of the Foster Parents and

Child. He “assessed [the Foster Parents] as possessing

significant stability and strong parenting skills. [Child] also in

my opinion demonstrated several elements or components of

security and attachment in his relationship with them.”

In the evaluations between Child and Father, Dr. O’Hara

observed some elements of security and attachment. “There

were times when he directed himself to his father. He was

engaging with his father, smiled and laughed with his father as

well.” However, Dr. O’Hara qualified the attachment between

Father and Child:

In those cases where children are securely attached to

more than one caregiver, if the child were to end the

relationship with one of the caregivers, the potential

detriment which could result in the end of that

relationship for a child with that particular caregiver, that

potential detriment can be mediated by the security and

attachment that the child has with the other caregiver.

And I think that would be the case for [Child], given his

strong relationship with the [Foster Parents].

This [c]ourt finds it unsettling that Dr. O’Hara was in support of

unsupervised visitation or at least partial unsupervised visitation

prior to the evaluations in June [] 2016. However, he then

recommended that all visitation be supervised due to “[Mother’s]

concerning allegations.” While Dr. O’Hara was not able to fully

discern whether Mother’s allegations of domestic abuse were

accurate, Dr. O’Hara testified that “there has been some

consistency with regard to what [Mother] has reported and the

findings from . . . [CAC]. There’s also been some similarities

with what [Mother] has alleged and what [was alleged by S.K.],

who is [Father’s] prior paramour[;] they both alleged that they

had been choked by [Father].”

Child was removed from [] Father’s care in November [] 2014

and has resided with the Foster Parents since September 15,

2015. Child is now three years old and has been out of []

Father’s care for twenty-seven months. This [c]ourt credits Dr.

O’Hara’s testimony that “permanency is of urgent concern for

[Child]. There’s a variety of developmental needs that depend

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upon factors associated with permanency and benefits of

permanency, like stability and safety and security.”

This [c]ourt was within its discretion when it determined that

severing Child’s bond with Father would not cause extreme

emotional consequences. The evidence established that

termination will be able to provide Child with much needed

stability and permanence at his young age. This [c]ourt

concludes that the developmental, physical and emotional needs

and welfare of Child would be best served by terminating

Father’s parental rights.

...

With the grounds for termination established, it is evident to this

[c]ourt that termination would best meet Child’s needs and

welfare. For the reasons set forth in this Opinion, the decision of

this [c]ourt should be affirmed.

Trial Court Opinion, 4/24/17, at 14-16 (internal citations omitted).

A parent’s abuse and neglect are likewise a relevant part of this

analysis:

concluding a child has a beneficial bond with a parent simply

because the child harbors affection for the parent is not only

dangerous, it is logically unsound. If a child’s feelings were the

dispositive factor in the bonding analysis, the analysis would be

reduced to an exercise in semantics as it is the rare child who,

after being subject to neglect and abuse, is able to sift through

the emotional wreckage and completely disavow a parent . . .

Nor are we of the opinion that the biological connection between

[the parent] and the children is sufficient in of itself, or when

considered in connection with a child’s feeling toward a parent,

to establish a de facto beneficial bond exists. The psychological

aspect of parenthood is more important in terms of the

development of the child and [his or her] mental and emotional

health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

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of the child. See In re K.Z.S., 946 A.2d 753, 763-64 (Pa. Super. 2008)

(affirming the involuntary termination of the mother’s parental rights,

despite the existence of some bond, where placement with the mother would

be contrary to the child’s best interests, and any bond with the mother

would be fairly attenuated when the child was separated from her, almost

constantly, for four years).

In fact, our Supreme Court has observed that the mere existence of a

bond or attachment of a child to a parent will not necessarily result in the

denial of a termination petition, and that “[e]ven the most abused of

children will often harbor some positive emotion towards the abusive

parent.” See In re: T.S.M., 71 A.3d at 267 quoting In re K.K.R.-S., 958

A.2d at 535. The Supreme Court instructed, “[t]he continued attachment to

the natural parents, despite serious parental rejection through abuse and

neglect, and failure to correct parenting and behavior disorders which are

harming the children cannot be misconstrued as bonding.” In re: T.S.M.,

71 A.3d at 267 quoting In re Involuntary Termination of C.W.S.M., 839

A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J. dissenting).

We have explained that a parent’s own feelings of love and affection

for a child, alone, do not prevent termination of parental rights. In re Z.P.,

994 A.2d at 1121. Further, this Court has stated: “a parent’s basic

constitutional right to the custody and rearing of . . . [his] child is converted,

upon the failure to fulfill . . . [his] parental duties, to the child’s right to have

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proper parenting and fulfillment of [the child’s] potential in a permanent,

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

2004) (internal citations omitted). It is well-settled that “we will not toll the

well-being and permanency of [a child] indefinitely.” In re Adoption of

C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.

Super. 2008) (noting that 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.”)).

After a careful review of the record in this matter, we find the record

supports the trial court’s factual findings, and the court’s conclusions are not

the result of an error of law or an abuse of discretion. In re Adoption of

S.P., 47 A.3d at 826-27. Accordingly, it was proper for the trial court to find

no bond exists such that Child would suffer permanent emotional harm if

Father’s parental rights were terminated. This Court finds no abuse of

discretion in the trial court’s termination of Father’s parental rights pursuant

to section 2511(b). We, therefore, affirm the order terminating Father’s

parental rights with regard to Child under section 2511(a)(2) and (b).

Order affirmed. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2017

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