In Re: W.P.J.K., Appeal of: J.K., Father

J-S65026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: W.P.J.K., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: J.K., FATHER :

:

:

:

:

: No. 1026 MDA 2019

Appeal from the Decree Entered, May 30, 2019,

in the Court of Common Pleas of Berks County,

Orphans' Court at No(s): 86417.

IN RE: E.J.K., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: J.W.K., FATHER :

:

:

:

:

: No. 1027 MDA 2019

Appeal from the Decree Entered, May 30, 2019,

in the Court of Common Pleas of Berks County,

Orphans' Court at No(s): 86416.

IN RE: K.J.K., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: J.K., FATHER :

:

:

:

:

: No. 1028 MDA 2019

Appeal from the Decree Entered May 30, 2019

J-S65026-19

in the Court of Common Pleas of Berks County,

Orphans' Court at No(s): 86415.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 06, 2020

J.W.K. (Father) appeals from the decrees entered by the Berks County

Orphans’ Court, which involuntarily terminated his parental rights to three of

his children (four-year-daughter K.J.K, two-year-daughter E.J.K., and one-

year-son W.P.J.K.) pursuant to the Adoption Act. 1 See 23 Pa.C.S.A. §

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

The orphans’ court summarized the factual and procedural history of

this matter as follows:

[Father] and [Mother] (collectively “Parents”) are the

natural parents of K.J.K. (born October [] 2014), E.J.K.

(born January [] 2017) and W.P.[J.]K. (born January []

2018) (collectively “the Children”). Mother and Father were

not married when the Children were born. Mother has three

additional children who do not reside with her and Father

has two additional children that do not reside with him.

Berks County Children and Youth Services (“BCCYS”) first

engaged Parents and Children (“the Family”) in 2013,

though services were discontinued when Parents moved into

Montgomery County. In November of 2015, upon referral

from BCCYS and the Family moving into Montgomery

County, Montgomery County Children and Youth Services

(“MCCYS”) became involved in funding services and

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1The orphans’ court also terminated the parental rights of J.L.C. (Mother).

She filed a separate appeal, which is also before this panel.

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supervision of the case due to ongoing mental health,

domestic violence and housing stability issues.

In 2017, upon referral from MCCYS indicating that the

Family had moved back into Berks County, BCCYS was re-

engaged with the Family in order to address ongoing issues

with both Mother and Father. After several months within

which several incidents and continuing issues prompted

safety plans from BCCYS, but the safety plans were

repeatedly broken. On October 12, 2017, BCCYS filed an

emergency petition for custody of K.J.K. and E.J.K. that was

granted by the court. BCCYS then filed a dependency

petition for K.J.K. and E.J.K., and upon a hearing before this

court, legal custody was transferred to BCCYS for placement

purposes. The primary established goal was return of K.J.K.

and E.J.K. to the most appropriate parent with a concurrent

goal of adoption.

Mother gave birth to W.[P.]J.K. [i]n January [] 2018. After

no reported prenatal care and both Mother and W.[P.]J.K.

tested positive for methamphetamines, BCCYS filed a

petition on March 13, 2018 seeking dependency of

W.[P.]J.K. The court ordered that W.[P.]J.K. would remain

with Parents as he was still hospitalized, but also ordered

that foster parents were allowed to visit W.[P.]J.K. due to

Parents’ inconsistent visits. Upon his discharge from the

hospital, BCCYS filed for emergency custody of W.[P.]J.K.

and after a hearing, legal custody was transferred to BCCYS

on March 28, 2018.

[***]

On October 31, 2018, [BCCYS] filed a petition for the

involuntary termination of the parental rights of both Mother

and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5),

and (8). The petition cited the same following factual

support for grounds for termination:

a. Failure of Mother and Father to obtain and maintain a

legal/stable source of income;

b. Failure of Mother and Father to obtain and maintain

stable and appropriate housing;

c. Inability of Mother and Father to appropriately parent

the Children;

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d. Failure of Mother and Father to show progress with

parenting skills;

e. Failure of Mother and Father to remediate substance

abuse issues;

f. Concerns remaining regarding Mother’s and Father’s

mental health; and

g. Concerns remaining regarding issues of domestic

violence.

A hearing on the petition was held on May 13, 2019 and

continued for a second day on May 23, 2019.

[***]

Upon conclusion of the hearing, the court took the matter

under advisement. Thereafter, [the court] filed separate

orders dated May 30, 2019 terminating the parental rights

of both Mother and Father as to K.J.K., E.J.K., and

W.[P.]J.K.

Trial Court Opinion, 8/15/19, at 1-16 (citations to the record omitted).

Father filed this timely appeal, wherein he presents two interconnected

issues for our review:

1. Whether the orphans’ court erred in involuntarily

terminating Father’s parental rights between K.J.K.

and him, where there was a strong emotional and

parental bond between him and K.J.K., which would

have had a negative effect on the child if the parental

bond was permanently severed?

2. Whether the orphans’ court erred in involuntarily

terminating Father’s parental rights to W.P.J.K. and

E.J.K., where there was a strong emotional and

parental bond between Father and K.J.K., which would

have a negative effect on the younger children if the

bond was permanently severed and it would be

detrimental to sever the ties between the three

children who are extremely bonded as siblings?

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Father’s Brief at 5. (Edited for clarity.)

Initially, we note Father’s second issue depends on the success of his

first. Father all but concedes he does not have a strong parental bond with

the younger children (E.J.K. and W.P.J.K.). But, he argues, the younger

children’s sibling bond with the eldest child (K.J.K.) is so essential that if his

rights to K.J.K. should not be terminated, neither should his rights to the E.J.K.

and W.P.J.K.

We begin with our well-settled standard of review:

The standard of review in termination of parental rights

cases requires appellate courts to accept the findings of fact

and credibility determinations of the trial court if they are

supported by the record. If the factual findings are

supported, appellate courts review to determine if the trial

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

decision may be reversed for an abuse of discretion only

upon demonstration of manifest unreasonableness,

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

decision, however, should not be reversed merely because

the record would support a different result. We have

previously emphasized our deference to trial courts that

often have first-hand observations of the parties spanning

multiple hearings.

In re Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In

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

Termination of parental rights is governed by section 2511 of the

Adoption Act, which requires a bifurcated analysis:

Initially, the focus is on the conduct of the parent. The party

seeking termination must prove by clear and convincing

evidence that the parent's conduct satisfies the statutory

grounds for termination delineated in Section 2511(a). Only

if the court determines that the parent's conduct warrants

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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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

The petitioner must prove by clear and convincing evidence that the

asserted statutory grounds for seeking the termination of parental rights are

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

When terminating parental rights under section 2511(a), this court has

stated that the focus is on the parent; but under section 2511(b), the focus in

on the child. 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 has 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)],

this 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).

When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well. Additionally, section 2511(b) does not require a formal bonding

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

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances...where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

A parent’s abuse and neglect are also a relevant part of this analysis.

See In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court

may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at

763 (affirming involuntary termination of parental rights, despite existence of

some bond, where placement with mother would be contrary to child’s best

interests). “[A] parent’s basic constitutional right to the custody and rearing

of ... her child is converted, upon the failure to fulfill ... her parental duties, to

the child’s right to have 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).

Instantly, Father limits his appeal to the second prong of the termination

analysis, section 2511(b). Thus, we accept the orphans’ court determination

that termination was warranted under section 2511(a)(1), (2), (5) and (8),

and we narrow our focus on section 2511(b). Regarding section 2511(b),

Father argues that he regularly visited K.J.K. during the dependency case, and

that during those visits, he demonstrated appropriate parenting by completing

such tasks as feeding and diaper changing. He highlights the testimony of a

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MCCYS caseworker who opined that Father cared for Children and did a good

job with them. Similarly, Father directs us to the testimony of another service

provider, who stated that K.J.K. is attached to Father. Finally, Father argues

that since he ended his relationship with Mother, he has placed himself in a

position where he could care for the Children full-time. See Father’s Brief at

11-12.

Regarding the section 2511(b) analysis, we observe that the orphans’

court made extensive findings to support its ultimate determination that

termination of Father’s rights was warranted:

Dr. Richard Small, who was qualified as an expert in the field

of psychology, testified that he performed forensic

valuations of both Father and Mother. Dr. Small’s

evaluation of Father performed in March of 2018 and Father

presented as exhibiting self-centered and anti-social

behavior. Dr. Small noted that Father’s relationship with

Mother included verbal and physical violence, including a

PFA, and that the relationship between the two was difficult.

Father admitted no issues and indicated that any problems

were the fault of other people without accepting any

responsibility of his own.

In relation to Father’s prospect of change, Dr. Small opined

that he sees Father’s prospect of change as “not very good,”

due to Father’s personality disorder and because Father

maintains that he has done nothing wrong and viewing

himself as superior to others. Initially, Father refused to

admit any drug use, but then slowly provided further details

on his drug use. When Dr. Small asked how Father could

maintain clean urine samples, Father indicated that he knew

how to game the system. Further, Father demonstrated no

view of problematic drug use other than perhaps the legal

consequences arising therefrom.

[***]

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Dr. Small opined that he had great concern regarding the

combustible relationship between Father and Mother and

the negative effect on the needs of the Children. Dr. Small

further indicated that it is common to observe intermittent

periods of engagement with individuals in which it appears

that the individuals are cooperating and recognizing issues,

but then the progress falls apart. When it came to the

Children, Dr. Small noted that Father spoke about the

Children with affection, while Mother was much more

focused on herself without much mention of the Children.

However, Dr. Small concluded that he had strong doubts as

to whether Father or Mother could provide a consistent safe,

nurturing and stable environment for the Children.

[***]

After issues with Parents arriving late for visitation

appointments, BCCYS implemented and the court later

ordered, the Parents arrive one hour prior to the visitation

appointments. As was noted, both Parents missed or

cancelled appointments throughout. When Father

requested separate visitation times, visitation was reduced

from twice a week for two hours with both Parents to once

a week for two hours with Mother and the same with Father.

[The permanency and adoption supervisor with BCCYS]

noted that K.J.K. demonstrated no negative effects resulting

from the reduction in visitation time. K.J.K. does not ask

for Parents while at the home of foster parents between

visitation periods and there is no indication of effect or

statements from K.J.K. when Parents have cancelled or

failed to show up for visitation appointments.

[***]

[The permanency and adoption supervisor with BCCYS]

indicated that she saw no detriment to the Children in

terminating parental rights. W.[P.]J.K. has been in the care

of the foster parents since shortly after his birth and is

primary attached to the foster parents. E.J.K. has formed a

secure attachment to the foster parents, seeking and

receiving comfort, support and fulfillment of her needs.

K.J.K. has expressed that she didn’t want to go back to the

foster home or daycare following some visits, but she is

easily redirected and is responsive to the comfort. K.J.K.

refers to foster parents as mom and dad.

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[The permanency and adoption supervisor with BCCYS]

explained that BCCYS is seeking termination of parental

rights due to the age and vulnerability of the Children, the

length of time within which Parents have been afforded the

opportunity to engage in services, the span of the case

across two counties and the lack of progress and

consistency from Parents. The needs of the Children for

stability in living arrangements and in environment and the

need for consistent and stable caregiving demonstrate that

termination of parental rights is in the best interests of the

Children.

[Legal Counsel for the Children] testified that he had the

opportunity to meet with foster parents and with the

Children. Legal Counsel observed the foster parents to [be]

engaging, caring and attentive to the needs of the Children

and indicated that the foster parents share an attachment

with the Children. Since E.J.K. and W.[P.]J.K. were too

young to engage in dialogue with Legal Counsel, he had a

conversation with K.J.K. K.J.K. told Legal Counsel that she

loves the foster parents, but indicated to Legal Counsel that

she wanted to live with “old mommy and daddy,” meaning

Parents.

[The GAL for the Children] testified that in reviewing the

reports, it is reported that K.J.K., though crying when she

needed to leave visits with Parents, also cried when she was

dropped off by the foster mom. K.J.K. loves both Parents

and foster parents. K.J.K. did not indicate to the GAL a

preference of where she wanted to live. The GAL observed

a strong bond between K.J.K. and the foster parents and

noted the stability that foster parents offer in relation to the

lack of stability K.J.K. had experienced with Parents. The

GAL also expressed the importance of keeping K.J.K. with

her siblings. The GAL concluded that it is in the best

interests of the Children to terminate the parental rights of

both Mother and Father, indicating that the bond with the

foster parents is healthier and much more critical than that

with Parents.

T.C.O. at 8-16 (citations to the record omitted).

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These findings, which are supported by the record, reveal that Father’s

arguments are without merit. Father claims he maintained and formed

parental bonds through visitation. The record reveals that his visitation was

not consistent. Even if it were, the record also shows that visitation alone did

not nurture a parental bond worth preserving. By not appealing the first prong

of the termination analysis, Father concedes that he was unable to parent the

Children. What he fails to realize is that because he could not parent the

Children, they began to form primary attachments to their primary caregivers,

the foster parents. In other words, even the most consistent visitation would

not necessarily prevent the Children from becoming bonded to foster parents.

We certainly recognize an atypical facet of this case, namely, that the

four-year-old K.J.K. had somewhat conflicting interests. In terms of her legal

interests, i.e., her preferred outcome,2 she expressed a desire to return to her

biological parents’ care. But on the other hand, K.J.K.’s best interests

mandated that she remain safe and secure with the foster parents. On this

point, we note that K.J.K.’s preference to return to Father was not exactly

unequivocal. She demonstrated distress when she left the care of whichever

parent (foster or biological) she was with. She referred to both sets as “mom

and dad.” She indicated that she had love for both sets, as well. Had there

____________________________________________

2 In In Re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) a fractured

Pennsylvania Supreme Court interpreted 23 Pa.C.S.A. § 2313(a) to mean that

a child involved in a contested termination hearing must be afforded counsel

to represent her “legal interests,” or preferred outcome of the litigation. We

note that K.J.K. was represented by separate legal counsel in this case.

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been evidence that K.J.K.’s success in the foster parents’ home would be

jeopardized by her strong desire to return to Father’s care, then the conflict

between her “best interests” and her “legal interests” would be more

concerning. But because the record clearly indicates that K.J.K. was also

strongly bonded to the foster parents, the record supports the orphans’ court

determination that K.J.K.’s legal interests (to live with Father) did not

outweigh her best interests (to remain with the foster parents).

K.J.K.’s legal interests aside, Father argues that it was in K.J.K.’s best

interests to deny the termination, because she had a “strong bond” with

Father. Father’s Brief at 12. Whether K.J.K. did, in fact, share a strong bond

with Father is debatable, but even if their bond was strong, it was not the type

worth preserving.

To explain:

When examining the effect upon a child of severing a bond,

courts must examine whether termination of parental rights

will destroy a “necessary and beneficial relationship,”

thereby causing the child to suffer “extreme emotional

consequences.” (Citation omitted). In the case of an

unhealthy bond, “attention must be paid to the pain that

inevitably results from breaking a child’s bond to a biological

parent, even if that bond is unhealthy, and we must weigh

that injury against the damage that bond may cause if left

intact. In re T.S.M., [supra] 71 A.3d 251, 267 (Pa. 2013).

In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa. Super. 2018).

We also note that courts may consider the totality of the circumstances

when performing the needs and welfare analysis under section 2511(b).

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J.N.M., 177 A.3d at 946 (citing In re Coast 561 A.2d 762, 771 (Pa. Super.

1989) (en banc)).

Instantly, Father has evinced an inability to parent. Even if the orphans’

court was inclined to deny the termination petition, Father would not even be

in a position to enjoy unsupervised visitation, much less reunification with

K.J.K. K.J.K.’s instability would persist, which, in turn, would result in

detrimental consequences. Thus, the bond K.J.K. shares with Father is clearly

an unhealthy one. The only remaining question is whether K.J.K. would suffer

an injury if this unhealthy bond was severed.

The record supports the orphans’ court determination that K.J.K. would

not. Although she was upset after leaving her visits with Father, she was

easily redirected and responsive to the foster parents’ comfort. K.J.K. did not

ask about Father either between visits or when those visits were cancelled for

Father’s failure to show up. She experienced no negative consequences with

her visits with Father were reduced. Importantly, K.J.K. also has a bond with

foster parents, one that is much more stable and secure.

Because we conclude that termination of Father’s rights to K.J.K. was

warranted, we need not discuss Father’s second issue, the hypothetical effect

that splitting up the siblings would have on their respective best interests.

However, we note that “the goal of preserving the family unit cannot be

elevated above all other factors when considering the best interests of the

children, but must be weighed in conjunction with other factors.” In re K.D.,

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144 A.3d 145, 153 (Pa. Super. 2016) (citing In re Adoption of G.R.L., 26

A.3d 1124, 1127 (Pa. Super. 2011).

In sum, the record supports the thorough and extensive findings made

by the orphans’ court. Thus, we conclude that the orphans’ court did not

commit an abuse of discretion when it granted the termination petition filed

by BCCYS.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/06/2020

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