The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.P.C., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: E.D., FATHER :
:
:
:
: No. 3609 EDA 2017
Appeal from the Decrees Entered October 24, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at Nos.: 51-FN-002124-2010
CP-51-AP-0000896-2017
CP-51-DP-0002681-2016
IN THE INTEREST OF: A.M.P.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: E.D., FATHER :
:
:
:
:
: No. 3616 EDA 2017
Appeal from the Orders Entered October 24, 2017
in the Court of Common Pleas of Philadelphia County
Family Court at Nos.: 51-FN-002124-2010
CP-51-AP-0000897-2017
CP-51-DP-0002680-2016
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED AUGUST 20, 2018
E.D. (“Father”) appeals from the decrees and orders entered October
24, 2017, which granted the petition of the Department of Human Services
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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(“DHS”) and terminated his parental rights to his children, Aa.M.P.C. and
Au.M.P.C.,1 (both born in August 2015), pursuant to section 2511(a)(1), (2),
(5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511, and changed the
Children’s permanency goal to adoption pursuant to the Juvenile Act, 42
Pa.C.S.A. § 6351. We affirm.
We adopt the following facts and procedural history from the trial court’s
opinion, which in turn is supported by the record. (See Trial Court Opinion,
3/05/18, at 1-9; see also N.T. Hearing, 10/24/17, at 1-43).
Father and V.C. (“Mother”) became known to DHS following the death
of Mother’s child, the then thirty-month-old Sa.C., in October 2010. Father
claimed that she had urinated on herself and he took her to the bathroom to
wash her before leaving her in the tub while he checked on the child’s sibling.
When he returned, Sa.C. was having difficulty breathing. She was taken to
Aria-Torresdale Hospital and pronounced dead. Sa.C. had suffered bruising
to her left ribs, flank, thighs, and the left side of her face; she also had a lump
on her forehead. An autopsy revealed evidence of old trauma and injuries,
and no water in her lungs. Mother informed DHS that the forehead lump was
sustained during rough play with Sa.C.’s sister, N.C., and Father claimed the
rib injuries were sustained when he attempted to perform cardio-pulmonary
____________________________________________
1 As this case involves minor children, we have redacted names to protect the
identities of the children involved. However, there are multiple children with
identical initials in this case. Therefore, to distinguish between them where
necessary, we refer to each child by the first two letters of their first names.
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resuscitation (“CPR”) on Sa.C. Mother and Father were unable to explain
Sa.C.’s other injuries.
DHS and police investigations were opened with regard to the death of
Sa.C. Her siblings, N.C. and Sy.C., were removed from the home and placed
with their maternal grandfather. DHS determined that Father’s account of the
incident was not credible. Ultimately, the medical examiner determined that
Sa.C.’s manner of death was homicide and the cause of death was multiple
blunt force injuries and cardiac arrest. As a result, DHS obtained an Order of
Protective Custody (“OPC”) for N.C. and Sy.C., who were committed to DHS
but remained in the care of their maternal grandfather. In November 2010,
the court adjudicated N.C. and Sy.C. dependent.
In June 2011, the court found aggravated circumstances existed based
on the death of Sa.C. and made a finding of child abuse. DHS requested 1)
that the court allow DHS to work with Mother towards reunification with N.C.
and Sy.C., and 2) that DHS need not make reasonable efforts to reunite Father
with the N.C. and Sy.C. The court granted both requests. Later that month,
DHS returned a founded report of child abuse and aggravated circumstances
against Mother and Father.
In June 2011, Mother gave birth to Se.C., who was discharged into her
care; Father was identified as Se.C.’s father and in-home services were
implemented to ensure Se.C.’s safety. In July 2012, the court adjudicated
Se.C. dependent, ordered DHS to supervise her, and directed that the criminal
stay-away order against Father remain. The court found aggravated
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circumstances regarding both Mother and Father, and ordered that efforts be
made to preserve the family with regard to Mother, but no efforts towards
reunification were necessary as to Father.
In August 2012, Father was convicted of endangering the welfare of a
child.2 In October 2012, Father was convicted of a drug-related offense.
Mother gave birth to two more children, D.D., Jr., and L.C., in January 2013
and January 2014, respectively. Their putative father, D.D., Sr., informed
DHS that he did not want D.D., Jr., around Father, who was again living with
Mother.
In June 2014, DHS made an unannounced visit to Mother’s house and
Father answered the door. Mother claimed that Father did not reside there.
Regardless, the matter was scheduled for an adjudicatory hearing, where the
court issued a stay-away order against Father. The court committed Se.C. to
DHS. In September 2014, the court discharged the temporary commitment
of D.D., Jr., who was in the custody of his father; issued another stay-away
order against Father; ordered L.C. and Se.C. remain in status quo; ordered a
paternity test for Father as to Se.C.; and involuntarily terminated the parental
rights of Mother as to N.C.
In September 2014, D.D., Sr., was murdered. D.D., Jr., was placed
temporarily with his maternal grandfather, who also had kinship care of N.C.
and Sy.C. In October 2014, a paternity test revealed that Father was L.C.’s
____________________________________________
2 See 18 Pa.C.S.A. § 4304(a)(1).
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biological father. That same month, DHS held a Family Service Plan (“FSP”)
meeting, setting reunification goals for Se.C. and L.C. and for D.D., Jr., to
remain in the home, and objectives for both Mother and Father. In December
2014, D.D., Jr., was placed in foster care.
In January 2015, the court fully committed D.D., Jr., to DHS, ordered
the stay-away order against Father as to Se.C. remain in place, and directed
that he was to have no in-person visits with L.C. until further order of the
court, but that DHS could explore Skype visits. In March 2015, the court kept
the same orders in place as to Father, and voluntarily terminated the parental
rights of Mother as to Sy.C. Community Umbrella Agency (“CUA”)
implemented services for the family. In June 2015, CUA held a Single Case
Plan (“SCP”) meeting, setting objectives for both parents. Mother was to
participate in grief therapy, obtain safe housing, and attend visitation; Father
was to keep in contact with CUA, comply with his objectives and stay-away
order, and keep Skype visits. In August 2015, the Children who are the
subject of the instant appeal – Au.M.P.C. and Aa.M.P.C. – were born.
In May 2016, CUA modified Father’s objectives and recommended that
he participate in individual therapy and follow recommendations. In July
2016, a parenting capacity evaluation of Father recommended that Father
obtain consistent employment and housing, and participate in counseling to
assist in understanding how his behavior had played a role in the death of
Sa.C. If reunification was to remain a goal, visitation should not be increased
until Father made progress in the other objectives. Further, the evaluation
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noted that there were several issues interfering with Father’s ability to provide
safety and permanency to his children. These issues included: 1) lack of
consistent employment; 2) lack of appropriate housing as a result of his
inconsistent employment; 3) his history of multiple arrests; and 4) his lack of
insight and ability to anticipate and react to situations that were potentially
dangerous for the Children.
In November 2016, DHS received a report alleging that Mother was
unable to protect Aa.M.P.C. and Au.M.P.C. Mother allegedly maintained a
relationship with Father and allowed him to see the Children, despite the fact
that she had obtained a Protection From Abuse (“PFA”) order against him.
DHS visited Mother’s home several times in an attempt to investigate the
allegations, but were unable to contact her.
Mother later contacted DHS and denied that Father was the biological
father of Aa.M.P.C. and Au.M.P.C. She informed DHS that she worked from
7:00 a.m. to 3:00 p.m. and that her mother supervised the Children during
those hours. DHS unsuccessfully attempted two more visits before filing a
motion to compel cooperation with a child protective services investigation;
the court granted the motion.
During further investigations in December 2016 and January 2017,
Mother denied that she had contact with Father or that he had been to her
home, and claimed her last contact with him was in 2014. However, in
January 2017, DHS discovered Father’s “alias” page on Facebook, in which
there were pictures and videos of him with Aa.M.P.C. and Au.M.P.C. in
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Mother’s home and in the community. DHS obtained an OPC for the children
and placed them in foster care; later, the temporary commitment was ordered
to stand and a stay-away order was issued against Father. The Support
Center for Child Advocates were appointed as counsel and guardian ad litem
(“GAL”) for Aa.M.P.C. and Au.M.P.C. on January 17, 2017. On January 9,
2017, Father’s parental rights to Se.C. and L.C. were involuntarily terminated.
DHS determined there was sufficient basis to find that aggravated
circumstances existed pursuant to 42 Pa.C.S.A. § 6302(2) and (5), as 1)
Father had been arrested and convicted of the wrongful death of Sa.C.; and
2) Father’s parental rights to other children had been terminated.
In February 2017, the court adjudicated Aa.M.P.C. and Au.M.P.C.
dependent, committed them to DHS, and found aggravated circumstances by
clear and convincing evidence as to Mother. The court ordered that no further
efforts be made to preserve the family and reunify Aa.M.P.C. and Au.M.P.C.
with Mother. In April 2017, the court found that clear and convincing evidence
established aggravating circumstances as to Father, and ordered that no
efforts be made to preserve the family and reunify the Children with Father.
In September 2017, DHS filed petitions seeking to involuntarily
terminate Father’s parental rights and change the Children’s permanency goal
to adoption. In October 2017, the court held a hearing on the termination
and goal change petitions. Father was represented by counsel, although he
chose not to testify on his own behalf. (See N.T. Hearing, 10/24/17, at 2).
Aa.M.P.C. and Au.M.P.C. were represented by a child advocate, Angelique
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Kuchta, Esquire. (See id. at 2, 4). Tieshima Brown, a social worker and CUA
case manager, and Dr. Erica Williams, the forensic psychologist who had
performed Father’s parenting capacity evaluation, testified. Following the
conclusion of DHS’ case in chief, during which the GAL concurred that Father’s
parental rights should be terminated, the court granted the petition pursuant
to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b), and entered decrees
terminating Father’s parental rights. The court issued orders changing the
Children’s permanency goals to adoption.
On November 2, 2017, Father contemporaneously filed a timely notice
of appeal and a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(a)(2)(i). The trial court filed its opinion on March 5, 2018.
See Pa.R.A.P. 1925(a).
On appeal, Father raises a single question for our review:
Whether there was a legal basis for terminating Father’s parental
rights pursuant to 23 Pa.C.S.A. [§] 2511(a)(1), (2), (5), (8) and
(b) [and] to change [the] goal from reunification to adoption[?]
(Father’s Brief, at 6) (unnecessary capitalization omitted).
Essentially, Father claims that he was not given adequate time to
address his Section 2511(a) incapacity such that the court could make an
accurate assessment of the Section 2511(b) requirement for termination of
his parental rights. (See id. at 13-15). He contends that six months was not
enough time to complete his goal of achieving mental health services, and
that the only evidence in the record of his non-compliance with that objective
is that he never provided documentation to the social worker assigned to his
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case. (See id. at 14). Further, Father claims there was no evidence he was
not compliant with the stay away order. (See id. at 15).
We review cases involving the termination of parental rights according
to the following standards.
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).
Here, the court terminated Father’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Termination 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 under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). To
affirm, we need only agree with any one of the subsections of 2511(a), as well
as subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004)
(en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). We focus our analysis
on sections (a)(1), (2), and (b).
The relevant sections of 23 Pa.C.S.A. § 2511 provide that:
(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.
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23 Pa.C.S.A. § 2511(a)(1), (2), (b).
Essentially, Father’s argument revolves around the fact that six months
is not enough time for meaningful efforts at reunification. He cites no case
law in support of his contentions and, accordingly, risks waiver. See In re
Estate of Whitley, 50 A.3d 203, 209-10 (Pa. Super. 2012), appeal denied,
69 A.3d 603 (Pa. 2013) (noting that argument portion of appellate brief must
contain discussion and citation of pertinent authorities and failure to cite
relevant legal authority constitutes waiver of claim on appeal); see also
Pa.R.A.P. 2101; Pa.R.A.P. 2119(a)-(c). Moreover, his claim is without merit.
“A court may terminate parental rights under Section 2511(a)(1) where
the parent demonstrates a settled purpose to relinquish parental claim to a
child or fails to perform parental duties for at least the six months prior to the
filing of the termination petition.” In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010) (citation and emphasis omitted). With respect to Section
2511(a)(1),
[o]nce the evidence establishes a failure to perform
parental duties or a settled purpose of relinquishing
parental rights, the court must engage in three lines
of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child pursuant
to Section 2511(b).
Further,
the trial court must consider the whole history of a
given case and not mechanically apply the six-month
statutory provision. The court must examine the
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individual circumstances of each case and consider all
explanations offered by the parent facing termination
of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances,
clearly warrants the involuntary termination.
In Interest of: T.J.J.M., 2018 WL 2947885, at *7 (Pa. Super. filed June 13,
2018) (emphasis and citations omitted).
Here, Father references the Juvenile Act, 42 Pa.C.S.A. § 6351(f)(9)(iii)
(enumerating findings the court should make at permanency hearings) in
support of his contention that he was given insufficient time to address his
goal of mental health services. (See Father’s Brief, at 14-15). However,
Section 6351 provides that:
(9) If the child has been in placement for at least 15 of the last 22
months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent
or eliminate the need to remove the child from the child’s
parent, guardian or custodian or to preserve and reunify
the family need not be made or continue to be made, whether
the county agency has filed or sought to join a petition to
terminate parental rights and to identify, recruit, process and
approve a qualified family to adopt the child unless:
* * *
(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the
child’s parent, guardian or custodian within the time
frames set forth in the permanency plan.
42 Pa.C.S.A. § 6351(f)(9)(iii) (emphasis added). Presumably, Father is
attempting to rely on subsection (iii) and its language that the court will not
continue in termination actions where the family has not been given the
necessary services in the time frames set forth in the permanency plan.
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However, the court found aggravated circumstances existed, namely, Father’s
conviction for endangering the welfare of a child in connection with the death
of Sa.C. As a result, the court held that no reasonable efforts needed to be
made to reunify Father and the Children, and, accordingly, this section does
not support Father’s argument.
The evidence clearly established Father’s failure to perform his parental
duties in the six months prior to termination. Testimony demonstrated that
Father did not comply with his reunification objectives, including to 1)
maintain contact with CUA; 2) comply with the stay-away order which
prohibited visitation with the Children; and 3) obtain therapy. (See N.T.
Hearing, 10/24/17, at 24-26). CUA could not verify that Father was compliant
with or attending mental health treatment, and Father only contacted CUA
twice during the six-month time period. (See id. at 23-25). In those scant
contacts, Father did not inquire about Aa.M.P.C. or Au.M.P.C., send cards,
gifts, or seek any kind of communication or visitation with the Children. (See
id.). Further, considering the entire history of the case, Father has also shown
minimal compliance with court orders and objectives; his violation of several
stay-away orders resulted in the Children being placed in care. Accordingly,
the trial court appropriately determined that Father’s parental rights should
be terminated pursuant to Section 2511(a)(1).
Additionally, although we need only find termination appropriate under
one section, it is worthwhile to examine the court’s reliance on subsection
2511(a)(2). The petitioner for involuntary termination under this section must
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prove “(1) repeated and continued incapacity, abuse, neglect or refusal; (2)
that such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence; and (3) that the causes of the
incapacity, abuse, neglect or refusal cannot or will not be remedied.” See In
Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998) (citation omitted).
The grounds for termination are not limited to affirmative misconduct, but
concern parental incapacity that cannot be remedied. See Z.P., supra at
1117. Parents are required to make diligent efforts toward the reasonably
prompt assumption of full parental duties. See id. at 1117-18.
Here, the clear and convincing evidence of record showed that Father
had a continued incapacity to care for the Children that could not be remedied.
Father has at best minimally complied with his objective to attend mental
health treatment or counseling. (See N.T. Hearing, 10/24/17, at 24-25). This
is especially concerning given the death of Sa.C., and Father’s lack of
acceptance of “responsibility for his role in any of this that’s going on.” (Id.
at 25). Thus, because the record showed that Father was either incapable of
or refused to address his objectives, the record supported the termination of
his rights under Subsection (a)(2). See Lilley, supra at 330.
Next, we must consider whether the Children’s needs and welfare will
be met by termination pursuant to Subsection (b). See In re Z.P., supra at
1121. “In this context, the court must take into account whether a bond exists
between child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. (citation omitted). The court is
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not required to use expert testimony, and social workers and caseworkers
may offer evaluations as well. See id. Ultimately, the concern is the needs
and welfare of the child. See id. “[W]here there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.”
In re: K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008).
We have noted that
[b]efore granting a petition to terminate parental rights, it
is imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
In re Z.P., supra at 1121 (citation omitted). We may not consider any effort
by the parent to remedy the conditions in subsection (a)(1) if that remedy
was initiated after the parent was given notice of the filing of the termination
petition, and this evidentiary limitation applies to the entire termination
analysis. See id.
Here, the trial court accepted as credible the social worker’s testimony
that Father had not developed bonds with Aa.M.P.C. and Au.M.P.C.; that it
was in the Children’s best interests to be adopted; and that their current foster
parent was able to provide necessary care and permanency for the Children.
(See N.T. Hearing, 10/24/17, at 25, 41-42; Trial Ct. Op., at 8). Prior to being
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placed, the Children were not permitted to have contact with Father. (See
N.T. Hearing, 10/24/17, at 23). While there was some evidence that Father
had been in contact regardless, there was no evidence introduced to establish
that Father had bonded with the Children: indeed, the social worker testified
that, during two calls, Father never once asked about their welfare. (See id.
at 23-24). In contrast, the Children refer to their foster mother as “mom” and
have good interactions with her. (Id. at 32).
Thus, we conclude that the clear and convincing evidence of record
supports the termination of Father’s parental rights under Sections 2511(a)(1)
and (2), as well as the Section 2511(b) findings that there was no bond
between Father and the Children, and that adoption would best serve their
needs and welfare. See In re Z.P., supra at 1121.
Finally, Father challenged the goal change to adoption in his Pa.R.A.P.
1925(b) statement of errors complained of on appeal and purports to preserve
that challenge in his brief. (See Rule 1925(b) Statement, 11/02/17, at 1;
Father’s Brief, at 6). However, as Father does not address this issue in his
brief in any meaningful way, neither citing to authority nor developing
argument regarding it, we find he has waived it for purposes of appeal. See
Whitley, supra at 209-10; see also Pa.R.A.P. 2101; Pa.R.A.P. 2119(a)-(c).
Accordingly, we affirm.
Decrees affirmed. Orders affirmed.
Judge Dubow did not participate in the consideration or decision of this
case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/18
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