Opinion
J-S70043-16 No. 783 EDA 2016
10-07-2016
IN THE INTEREST OF: L.M.F., a Minor APPEAL OF: A.F., Father
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree entered February 9, 2016
In the Court of Common Pleas of Philadelphia County
Family Court Division at No(s): CP-51-AP-0000087-2014, FID 51-FN-386654-2009 BEFORE: OLSON, OTT, and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
A.F. ("Father") appeals from the Decree granting the Petition filed by the Child Advocate, the Defender Association of Philadelphia, on behalf of his eleven-year-old daughter, L.M.F. ("Child"), seeking to involuntarily terminate Father's parental rights pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and change the permanency goal for Child to adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351. We affirm.
In a separate Decree entered on February 9, 2016, the trial court terminated the parental rights of Child's mother, L.K., a/k/a L.G. ("Mother"). Mother has not appealed the termination of her parental rights or the change in Child's permanency goal, nor is she a party to the instant appeal. The Philadelphia Department of Human Resources ("DHS") is a participant in the appeal.
The trial court set forth the relevant factual background and procedural history of this case in its Opinion, which we adopt as though fully set forth herein. See Trial Court Opinion, 5/18/16, at 1-2 (unnumbered).
On February 9, 2016, the trial court entered the Decree involuntarily terminating Father's parental rights and changing Child's permanency goal to adoption. On March 8, 2016, Father timely filed a Notice of Appeal, along with a Concise Statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father now presents the following issues for our review:
1. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [F]ather ... pursuant to 23 Pa.C.S.A. [§] 2511(a)(1)[,] where [F]ather presented evidence that he tried to perform his parental duties[?] Additionally, [F]ather visited [Child] throughout [the] time she was in foster care.Father's Brief at 7.
2. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [F]ather ... pursuant to 23 Pa.C.S.A. [§] 2511(a)(2)[,] where [F]ather presented evidence that he has remedied his situation by completing parenting classes, random drug screens and has housing[?]
3. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [F]ather ... pursuant to 23 Pa.C.S.A. [§] 2511(a)(5)[,] where evidence was provided to establish that [] [C]hild was removed from the care of [] [M]other[?] Additionally, [F]ather visited with [Child] and maintained contact with her throughout the case.
4. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [F]ather ... pursuant to 23 Pa.C.S.A. [§] 2511(a)(8)[,] where evidence was presented to show that [F]ather is capable of caring for [] [C]hild[?] Additionally, [F]ather visited with [Child] consistently and maintained contact with her.
5. Whether the trial court erred and/or abused its discretion by terminating the parental rights of [F]ather ... pursuant to 23 Pa.C.S.A. [§] 2511(b)[,] where evidence was presented that clearly established that [] [C]hild had a close bond with [] [F]ather[?]
Although Father stated his issues somewhat differently in his Pa.R.A.P. 1925 Concise Statement, we deem them preserved for our review. However, Father waived any challenge to the goal change by failing to preserve such a claim in his Concise Statement and the Statement of Questions Involved portion of his brief. See Krebs v. United Ref. Co. of Pennsylvania , 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are not raised in the Rule 1925(b) concise statement and the statement of questions involved in the appellate brief).
In reviewing an appeal from a decree 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., 608 Pa. 9, 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
As [the 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal citations omitted).
Termination of parental rights is controlled by Section 2511 of the Adoption Act. See 23 Pa.C.S.A. § 2511. The burden rests 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).
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), along with a consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In the instant case, the trial court terminated Father's parental rights under section 2511(a)(1), (2), (5), (8), and (b). We will focus on sections 2511(a)(2) and (b), which provide as follows:
Because we focus only on sections 2511(a)(2) and (b), as raised in Father's issues numbered 2 and 5, we need not address Father's issues numbered 1, 3, and 4, as they concern other subsections of section 2511(a). See In re B.L.W., supra.
§ 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.
* * *
23 Pa.C.S.A. § 2511(a)(2), (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. 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.
Father argues that the trial court erred in determining that the requirements of subsection 2511(a)(2) were met by clear and convincing evidence. Father's Brief at 15. Father asserts that the court improperly overlooked evidence that he has successfully completed several of his Family Service Plan ("FSP") objectives, including parenting classes and domestic violence and anger management programs. Id. According to Father, the evidence showed that he had remedied the conditions that caused Child to be placed in foster care, and he is able to appropriately care for Child. Id.
In its Opinion, the trial court concisely summarized the relevant law, addressed Father's claims, and determined that the evidence was clear and convincing that termination of Father's parental rights under section 2511(a)(2) was warranted. See Trial Court Opinion, 5/18/16, at 3-4 (unnumbered). The trial court acknowledged that although Father had made minimal progress concerning some of his FSP objectives (i.e., Father's inconsistent attendance at family therapy), he had not completed any of his FSP goals. See id. at 3 (noting that Father did not complete drug and alcohol treatment, anger management, domestic violence counseling, or specialized parenting classes, and did not attend Child's medical appointments). The trial court's factual findings are supported by the record, and its legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of S.P., supra. Accordingly, we rely on the trial court's rationale in determining that the requirements of subsection 2511(a)(2) have been met by clear and convincing evidence. See Trial Court Opinion, 5/18/16, at 3-4 (unnumbered).
Next, we review the termination of Father's parental rights under section 2511(b). The focus in terminating parental rights under section 2511(a) is on the parent, but, under section 2511(b), the focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
[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). ... [T]he 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 conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Further, no bond worth preserving is formed between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Moreover, it is appropriate to consider a child's bond with his or her foster parent. See In re: T.S.M., 71 A.3d at 268.
[C]ontradictory considerations exist as to whether termination will benefit the needs and welfare of a child who has a strong but unhealthy bond to [her] biological parent, especially considering the existence or lack thereof of bonds to a pre-adoptive family. As with dependency determinations, we emphasize that the law regarding termination of parental rights should not be applied mechanically[,] but instead always with an eye to the best interests and the needs and welfare of the particular children involved. Obviously, 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. Similarly, while termination of parental rights generally should not be granted unless adoptive parents are waiting to take a child into a safe and loving home, termination may be
necessary for the child's needs and welfare in cases where the child's parental bond is impeding the search and placement with a permanent adoptive home.In re T.S.M., 71 A.3d at 268-69 (some citations omitted); see also In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008) (stating that "[t]he bonding cannot be in one direction only - that of child to the parent - but must exhibit a bilateral relationship which emanates from the parents' willingness to learn appropriate parenting, anger management, drug rehabilitation and marital stability." (citation omitted)).
... [The Adoption and Safe Families Act of 1997, P.L. 105-89] ASFA[,] was enacted to combat the problem of foster care drift, where children ... are shuttled from one foster home to another, waiting for their parents to demonstrate their ability to care for the children. See In re R.J.T., 9 A.3d at 1186; In re Adoption of S.E.G., [901 A.2d 1017, 1019 (Pa. 2006)]. This drift was the unfortunate byproduct of the system's focus on reuniting children with their biological parents, even in situations where it was clear that the parents would be unable to parent in any reasonable period of time. Following ASFA, Pennsylvania adopted a dual focus of reunification and adoption, with the goal of finding permanency for children in less than two years, absent compelling reasons. See [] 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S. § 6351(f)(9) (requiring courts to determine whether an agency has filed a termination of parental rights petition if the child has been in placement for fifteen of the last twenty-two months).
Finally, "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.")).
Father argues that the trial court erred in terminating his parental rights under section 2511(b) because the evidence showed that Child has a positive parental bond with him, and that it would be detrimental to Child if this bond was severed. See Father's Brief at 12, 23; see also id. at 19-20 (pointing to the testimony of two witnesses at the hearing on the termination Petition that Child had a bond with Father). Father asserts that his "substantial compliance" with his FSP goals and the parental bond establishes that termination of Father's parental rights is not in the best interest of Child and would harm her emotional needs and welfare. Id. at 12, 23.
In its Opinion, the trial court addressed Father's challenge concerning section 2511(b) and determined that the evidence presented was clear and convincing that termination of Father's parental rights would best serve Child's needs and welfare. See Trial Court Opinion, 5/18/16, at 5-6 (unnumbered). The trial court found that Child has been in placement for nearly four years, and that no bond worth preserving exists such that Child would suffer permanent emotional harm if Father's parental rights are terminated. Id. at 3, 5; see also In re K.Z.S., supra. Further, the trial court noted that Child's continued attachment to Father should not be misconstrued as bonding. See Trial Court Opinion, 5/18/16, at 6. The trial court additionally found that Child is bonded to her pre-adoptive foster parents (more so than her attenuated bond to Father), her maternal aunt and uncle. Id. The trial court's factual findings are supported by the record, and its legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of S.P., supra. We therefore, affirm the trial court's Decree, with regard to section 2511(b), based on the trial court's Opinion. See Trial Court Opinion, 5/18/16, at 5-6 (unnumbered).
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/7/2016
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