Opinion
J-S79017-17 No. 1933 EDA 2017 No. 1934 EDA 2017
12-18-2017
IN THE INTEREST OF: P.K.K., JR., A MINOR APPEAL OF: P.K.K. A/K/A P.K., FATHER IN THE INTEREST OF: J.Z.K., A MINOR APPEAL OF: P.K.K. A/K/A P.K., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 23, 2017
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000668-2014, CP-51-DP-0000993-2013 Appeal from the Order Entered May 23, 2017
In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000669-2014, CP-51-DP-0000994-2013 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J.:
P.K.K. (a/k/a P.K.) ("Father") appeals from the trial court's orders involuntarily terminating his parental rights to his minor children, P.K.K., Jr. (born 7/2008), and J.Z.K (born 3/2010), (collectively, "Children"). After careful review, we affirm. Father simply has not demonstrated a willingness or capacity to undertake a parental role for Children which would provide the safety and permanency they so desperately need.
Father filed two separate appeals at Nos. 1933 and 1934 EDA 2017 from the orders terminating his parental rights to Children. On July 11, 2017, our Court sua sponte consolidated these appeals. See Pa.R.A.P. 513.
Mother's rights to Children were involuntarily terminated on March 7, 2016; she filed a pro se appeal from that order. On January 9, 2017, our Court affirmed the trial court's decree terminating her parental rights. In re P.K.K., Jr. & J.Z.K., 1151 EDA 2016 (Pa. Super. filed Jan. 9, 2017) (memorandum decision).
On May 11, 2013, the Philadelphia Department of Human Services ("DHS") received a report that Mother was wandering the streets with Children while she was high on "wet," a combination of PCP and marijuana. Because no other kin were identified, Children were taken into police custody and placed at a temporary residence. When Mother was unable to locate a viable placement for Children, DHS obtained a temporary foster home for them. Authorities later determined that Father was incarcerated on drug charges.
After an adjudicatory hearing held on May 21, 2013, Children were adjudicated dependent, committed to DHS, and placed in foster care. Mother was given a Family Service Plan ("FSP") that consisted of continuing treatment, complying with scheduled appointments with the Clinical Evaluation Unit ("CEU"), and drug screening and monitoring. When Mother was non-compliant with her FSP goals and tested positive for drugs (PCP and marijuana), the court ordered that legal custody remain with DHS and that Children remain in foster care. The court also granted Father supervised visits with Children at Hoffman Hall, a halfway house, as arranged by the parties.
In May 2014, Father was given the following FSP objectives: locate adequate housing with suitable space, heat and working utilities; comply with drug and alcohol services; receive drug and alcohol assessments from the Clinical Evaluation Unit; keep and maintain regular contact with Children, meet regularly with social workers and follow through with FSP, and receive random drug screens. In June 2014, Father was permitted unsupervised day visits in the community as arranged by the parties; Father was on probation at the time for his prior drug conviction. Father continued to test positive at drug screens and was developing a pattern of missing P.K.K., Jr.'s therapy appointments. In September 2014, the court modified Father's visits with Children to supervised. In December 2014, Father was ordered to begin parent-child interaction therapy. In March 2015, the court found that Father's home was not suitable for Children and determined that Father was minimally compliant with his permanency goals and non-compliant with his FSP.
At the time of the next permanency review hearing in June 2015, Father was incarcerated. On March 7, 2016, the court held a goal change/permanency review hearing, at which time Mother's parental rights were terminated. The court also determined that it was "not prepared to terminate [F]ather's rights at th[at] point . . . and ordered that a bonding evaluation occur." N.T. Hearing, 3/7/16, at 40. On November 22, 2016, DHS filed a petition to involuntarily terminate Father's parental rights to Children. After a full hearing on DHS's petition, the trial court entered a decree on May 23, 2017, terminating Father's rights to Children under sections 2511(a)(1), (a)(2) and (b) of the Adoption Act. At the hearing, the court noted that "[F]ather has no credibility before the Court [and] all of his testimony must be viewed in that light," N.T. Termination Hearing, 5/23/7, at 87; however, the court "credit[ed] [caseworker, Burr's] testimony and g[a]ve it great weight [as well as the testimony of] Dr. Williams[, who provided] both the parenting capacity evaluation and the bonding evaluation." Id. at 87-88.
We can affirm the trial court's decision regarding the termination of parental rights with regard to any singular subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
23 Pa.C.S. §§ 2101-2910.
Father simultaneously filed a timely notice of appeal and Pa.R.A.P. 1925(a)(2) concise statement of errors complained of on appeal. Father presents the following issues for our consideration:
(1) Did the Court below err in terminating Father's parental rights even though he had fairly consistent weekly visits and with [his] children and the visits were appropriate?
(2) Did the Court below err in terminating Father's parental rights due to the fact that Father had appropriate housing?
(3) Did the Court below err in terminating Father's parental rights because Father was in [Drug and Alcohol] treatment[?]Father's Brief, at 3.
All three of Father's issues can essentially be condensed into one inquiry, whether the court properly terminated his parental rights where he visited Children fairly consistently, had appropriate housing and was in drug and alcohol treatment.
Father argues that the court did not have legal grounds to terminate his parental rights to Children where he "had met his FSP goals of visits, housing drug and alcohol treatment, anger management and parenting." Father's Brief, at 5.
The argument section of Father's brief is one page in length. He states that termination was improper where Community Umbrella Agency ("CUA") case manager, Jared Burr, indicated Father: had completed anger management and parenting classes while incarcerated; had been compliant with substance abuse treatment; and had completed therapy with P.K.K., Jr. at Joseph J. Peters Institute. Id. at 10. Father also claims that due to an unfounded abuse allegation against him, his visits with Children were suspended and never reinstated. Father contends that mental health referrals that were indicated were never made for him, that he was an excellent participant in group and individual therapy sessions, and that there is a bond between him and Children.
In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. The 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." It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted). See also In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of proving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b)).
We review a trial court's decision to involuntarily terminate parental rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to determining whether the trial court's order is supported by competent evidence. Id.
We recognize that in the certified record there are two letters, dated March and May 2017, from a therapist at Sobriety Through Out Patient, Inc. ("STOP") indicating that Father has been attending his group and individual therapy sessions without fail since January, and that he had continued to maintain sobriety throughout his admission to the program. While the therapist notes that Father's prognosis is great, he qualifies this statement by noting his progress "can remain as such, proving that [Father] maintains and utilizes his support system and appl[ies] his knowledge of addiction to his drug-free lifestyle." STOP Letter, 5/1/17. However, there also is a progress report from STOP, dated March 2017, noting that Father "is not sober[,] is using marijuana as a buffer to suppress his anxiety instead [of] medication . . . [and] he needs to understand that marijuana is also [a] drug and he is on probation. He does have mental health issues he needs to deal with and he is not being truthful with himself." STOP Preview Progress Note, 3/30/17, at 1.
At the termination hearing, Jared Burr, Father's CUA case manager, testified that Father has been very inconsistent with his weekly, supervised visits with Children, refused to have supervised visits at DHS, and has continued to test positive for marijuana, thus necessitating that the visits be supervised. N.T. Termination Hearing, 5/23/17, at 15. Mr. Burr also testified that while Father had showed him several homes, DHS would not clear them because they lacked basic essentials for Children (i.e., smoke detectors, food, operable utilities). Id. at 23-24. Finally, Mr. Burr testified that Father continues to have anger-management issues, has failed to complete an anger-management evaluation/assessment, has not completed court-ordered mental health and substance abuse treatment at STOP, and continues to break the law. Id. at 8-14.
Erica G. Williams, PsyD, testified at the termination hearing that Father's refusal to visit with Children due to the visits being supervised was a deleterious pattern of behavior. Id. at 46. Dr. Williams opined that Father's chronic substance abuse, criminal behavior, constant probation violations, and lack of financial means and housing were factors that indicate Father is not capable of providing safety and permanence for Children. Id. at 46-47. Dr. Williams also performed a formal bonding evaluation, a specialized assessment with the goal of determining the nature of Children's attachment to Father, and determined Father's lack of presence in Children's lives indicates he is not capable of meeting their day-to-day needs and that children in general are not able to emotionally thrive without a continuous and close relationship with their primary caregiver. Report of Forensic Evaluation: Bonding Evaluation by Erica G. Williams, PsyD, 11/17/16, at 7-8.
Father is correct that Dr. Williams noted there was a parent-child bond between Father and Children, that Children identified him as their biological father, and that they enjoyed their time with him. N.T. Termination Hearing, 5/23/17, at 50. However, Dr. Williams also testified that, due to Father's repeated incarcerations and continued arrests, they have only spent intermittent time with him. Id. As a result, she did not think that they would suffer irreparable harm were his rights terminated, as Father does not play a central role in their lives. Id. at 50-51. In addition, Mr. Burr testified that he could not say there is a current parent-child bond. Id. at 19. However, he also testified that the Children would not be irreparably harmed if Father's rights were terminated. Id. Finally, Children have bonded with their foster parent, a pre-adoptive resource, and have thrived in her care while she has provided for Children's educational, behavioral and cognitive needs. Id. at 17, 19.
After carefully reviewing the parties' briefs, relevant case law and the certified record on appeal, we conclude that the through 31-page opinion authored by the Honorable Allan L. Tereshko adequately disposes of Father's issues on appeal. We agree that termination of Father's parental rights to Children, pursuant to sections 2511(a)(2) and (b), was in their best interest and is supported by record evidence. We direct the parties to attach a copy of Judge Tereshko's opinion in the event of further proceedings in the matter.
Pursuant to 23 Pa.C.S. § 2511(a)(2)(a):
(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
23 Pa.C.S. § 2511(a)(2).(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.
Pursuant to 23 Pa.C.S. § 2511(b):
(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.23 Pa.C.S. § 2511(b). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/18/2017
Image materials not available for display.