Opinion
180 MDA 2022 J-S16043-22
07-19-2022
IN THE INTEREST OF: H.H.M., JR., A MINOR APPEAL OF: H.H.M., SR., FATHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree Entered December 30, 2021 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-9141
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
H.H.M., Sr. ("Father") appeals from the decree granting the petition filed by Luzerne County Children and Youth Services ("LCCY") and terminating his parental rights to his son, H.H.M., Jr. ("Child"), born in August 2019, pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8) and (b). After careful review, we affirm.
On December 30, 2021, the orphans' court also issued a decree terminating the parental rights of Child's mother, A.L.M ("Mother") pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and (b). Mother's appeal is docketed at 181 MDA 2022.
Child was placed in foster care directly from the hospital, due to concerns that his mother, A.L.M. ("Mother") was not bonding with Child and because of her suicidal ideations while at the hospital. Orphans' Court Opinion at 3. In addition, LCCY had concerns regarding both Mother's and Father's intellectual and cognitive states, as well as with the home where Child was going to reside. N.T., 7/15/21 (2nd session), at 5. At the time of Child's birth, Father was living with his parents and Mother was living in an apartment, and the parents were planning on the Child residing with them together at the paternal grandparents' residence, but it had been condemned and was deemed uninhabitable. Id.
Child was adjudicated dependent on August 28, 2019; at that time, Father was ordered to engage in a course of parenting education, undergo a mental health evaluation and obtain safe and stable housing in order to achieve unification with Child. Id. Subsequent to the dependency adjudication, it was recommended through service providers that Father would benefit from engaging in mental health and development services ("MHDS") due to apparent cognitive limitations. The history and status of Father's various referrals are set forth in LCCY's petition for termination as follows:
[Father] was referred for parenting education through Family Service Association on August 29, 2019. [He] was closed out for non-compliance on November 27, 2019. [Father] was referred for parenting education through [Concern Professional Services] on March 4, 2020. [He] was closed out unsuccessfully on September 25, 2020. [He] was re-referred for parenting education through Family Service Association on January 26, 2021. At this time, the provider has significant concerns regarding [Father's] intellectual capacity and his ability to meet his own basic needs in addition to meeting the needs of the minor child. [Father] was referred for mental health counseling services through the Robinson Counseling Center on March 5, 2020. [Father] has not yet completed that course of treatment. At this time the provider has continued concerns regarding [Father's] ability to meet his own needs. The provider has recommended that [Father] engage in Mental Health and Developmental
Services (MHDS). [He] was referred for [MHDS] through Luzerne County in December of 2020. To date, [Father] has not engaged in or completed that service.
Petition for Termination of Parental Rights, 4/18/21.
LCCY proceeded with termination of both Father's and Mother's parental rights, and the orphans' court conducted a full-day hearing on April 15, 2021. At the time of the hearing, Child had been in placement for about 23 months. The orphans' court ordered the parties to submit written summations and on December 30, 2021, a decree was entered terminating Father's parental rights to Child. Father filed a timely notice of appeal and a contemporaneous concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(a)(2)(i).
On appeal, Father asserts that the orphans' court erred as a matter of law or otherwise abused its discretion in concluding that LCCY had demonstrated by clear and convincing evidence the grounds for termination of parental rights pursuant to 23 Pa.C.S. §§ 2511(a)(2), (5) or (8). Father's Brief at 19. Specifically, he argues that all of the evidence introduced at the July 15, 2021 hearing demonstrates that he has successfully engaged in those services requested or otherwise alleviated the concerns that led to Child's placement. Id.
Our standard of review in appeals from orders terminating parental rights is deferential:
The standard of review in termination of parental rights 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 determination 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 J.R.R., 229 A.3d 8, 11 (Pa. Super. 2020) (citation omitted).
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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The clear and convincing evidence standard 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. (citation and internal quotation marks omitted).
Here, the orphans' court terminated Father's parental rights pursuant to Sections 2511(a)(2), (5), (8), and (b). However, this Court may affirm the court's decision to terminate if we agree with its determination concerning any one subsection of Section 2511(a), as well as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We focus our analysis, therefore, on Section 2511(a)(8) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition is filed on the following grounds:
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, and 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.
(b) Other considerations.--The court in termination 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(a)(8), (b).
To satisfy Section 2511(a)(8), the petitioner must show three components: (1) that the child has been removed from the care of the parent for at least 12 months; (2) that the conditions which led to the removal or placement of the child still exist; and (3) that termination of parental rights would best serve the needs and welfare of the child. In re Adoption of J.N.M., 177 A.3d 937, 943 (Pa. Super. 2018). Unlike other subsections, Section 2511(a)(8) does not require the court to evaluate a parent's willingness or ability to remedy the conditions that led to the placement of the child. In re M.A.B., 166 A.3d 434, 446 (Pa. Super. 2017). "[T]he relevant inquiry" regarding the second prong of Section 2511(a)(8) "is whether the conditions that led to the removal have been remedied and thus whether reunification of parent and child is imminent at the time of the hearing." In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009).
Although Section 2511(a) generally focuses on the behavior of the parent, the third prong of Section 2511(a)(8) specifically "accounts for the needs of the child." In re C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en banc). This Court has recognized that "the application of [Section 2511(a)(8)] may seem harsh when the parent has begun to make progress toward resolving the problems that had led to the removal of her children." In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
However, by allowing for termination when the conditions that led to removal of a child continue to exist after a year, the statute implicitly recognizes that a child's life cannot be held in abeyance while a parent attempts to attain the maturity necessary to assume parenting responsibilities. The court cannot and will not subordinate indefinitely a child's need for permanence and stability to a parent's claims of progress and hope for the future. Indeed, we work under statutory and case law that contemplates only a short period of time, to wit [18] months, in which to complete the process of either reunification or adoption for a child who has been placed in foster care.Id.
Instantly, the orphans' court determined that Child had been removed from the custody of his parents since August 20, 2019 and thus for a period well in excess of the statutorily required twelve (12) months since the date of Child's placement. The orphans' court stated:
The conditions that led to [Child's] removal from Mother and Father's care and into placement were that the natural Mother and Father did not have the capacity to resolve the issues that gave rise to the placement of [Child]. The overwhelming evidence
shows that the parents' cognitive limitations and intellectual disabilities are not able to be remedied even after participating in mental health treatment and completion of the parenting education courses. Furthermore, despite the parents being told of [Child] having developmental delays, the natural parents refuse to acknowledge them.Orphans' Court Opinion at 36-37.
The facts upon which the court relied are supported by the certified record. The orphans' court heard the testimony of Giovanni Forte, caseworker for LCCY, who stated that Child was placed with LCCY on August 20, 2019, two days after his birth, because Mother was not bonding with Child at the hospital and "there were some concerns of suicidal ideations on the part of [M]other" as well as concerns regarding both Father's and Mother's intellectual and cognitive states and regarding where Child was going to reside. N.T., 7/15/21 (2nd session), at 4-5. Child was adjudicated dependent on August 28, 2019, and both natural parents engaged in mental health, parenting, safe and stable housing and mental health and developmental services; however, Mr. Forte testified that, to date, neither parent has successfully completed a parenting education program without any concerns by the provider. Id. at 6-7. He stated that he has been unable to inspect the paternal grandparents' house where Mother and Father reside since no one has answered the door there - even when he has heard voices from inside the home - despite numerous attempts to visit, and he has received no response to letters or phone calls, including phone calls made on an hourly basis over a two-week period. Id. at 11.
Mr. Forte stated that Child has developmental delays and there are concerns that he has autism, although it is too early for him to be diagnosed. Id. at 11-12. Nevertheless, Mr. Forte acknowledged that both Father and Mother had expressed to him during visits that they feel that Child is perfectly healthy and does not need any other support. Id. at 12. He testified further that as of the hearing date, neither Father nor Mother has admitted or agreed with the fact that a medical professional has said that Child has developmental issues. Id. at 33. He believes that neither parent fully understands Child's special needs and developmental delays, and expressed safety concerns for Child if he were returned to his parents; Mr. Forte testified that both parents' compliance and progress with services toward reunification were minimal, and terminating their parental rights would best serve Child's needs and welfare. Id. at 15. At the hearing, Mother's counsel and Father's counsel each requested that the orphans' court call upon their respective clients to confirm that neither of them would be testifying, and the court did so. Id. at 41-42.
Sarah Kendricks, who works at Concern Professional Services, a foster care agency that also provides community-based services such as supervised visitation, visit coaching, intensive family reunification services, and parenting and case management, testified that she provided parenting education services to Mother and Father. N.T., 7/15/21 (1st Session), at 16. She met with Mother and Father for a six-month period from April 2020 until September 2020. Id. Working with Ms. Kendricks, Child's parents completed a 52-chapter book of parenting lessons; however, Ms. Kendricks indicated that she did not believe they fully understood Child's disabilities and she was concerned that they would not follow through with the recommended services of providers. Id. at 17-19. She observed, during visits Mother and Father had with Child, that Mother did not seem to interact with Child, and Father "just sat with [Child] on his lap during the visits." Id. at 19. Despite the fact that Mother and Father completed the program, Ms. Kendricks could recommend neither reunification nor unsupervised contact between parents and Child. Id. at 20.
Rebecca Ciliberto, a case manager in the Intensive Family Reunification Service Program at Family Service Association, testified that she served as case manager for Mother and Father on two different occasions. Beginning in August 2019, about two weeks after Child was born and following up on a referral from LCCY, she assisted in establishing program goals, which included: (i) to gain a better understanding of child development, age appropriate expectations and basic parenting skills; (ii) to find and maintain safe and stable housing; (iii) for Mother to address her mental health concerns; and (iv) for Mother and Father to make appropriate decisions to increase their protective capacities and prioritize Child's needs. N.T., 7/15/21 (1st Session), at 61-62. Ms. Ciliberto stated that throughout the first period of time in which she worked with them, Mother and Father were not consistent in appearing for visits and were closed out of the program for violation of the attendance policy. Id. at 62-63. In January 2021, following another referral from LCCY, Ms. Ciliberto met again with the parents; this time, she established the additional goals of addressing both Mother's and Father's mental health concerns and ensuring their participation and engagement in their mental health and developmental service program. Id. at 64.
Ms. Ciliberto explained that the first referral came shortly after Child's birth, when LCCY determined the home where parents were planning on bringing Child had been condemned and was unsafe for him to come home to. Id. at 70. Parents initially misled her about the condition of the house, but thereafter agreed to be truthful about housing conditions going forward. Id. at 71.
As of the hearing date, Ms. Ciliberto had met with parents for a total of twelve sessions, a combination of phone and in-person sessions and five parent/child visitations, and Mother and Father were still engaged in the parenting program. Id. at 65. She reported that the only goal that they have achieved is housing, as they have been able to maintain housing with Father's parents. Id. She reported that they have not been consistent in attending the sessions and, in response to the orphans' court's question, she offered her opinion as to whether Mother and Father can independently parent their son:
Not at this time. They still need a lot of prompting, a lot of guidance. So, I'm still working on them on gaining more confidence, being able to think on their own. I do tailor the parenting sessions on real life scenarios and examples. I know reading sometimes is difficult for them. So, I try to give real examples to help them [ ] to think on their own about what would happen next...Id. at 68. Ms. Ciliberto testified that she did not believe that Mother and Father have the ability to raise Child on their own. Id. at 85.
Alicia Singer, an outpatient therapist at Robinson Counseling Center, testified that she completed a mental health evaluation for Father in April 2020, after he was referred from LCCY. N.T., 7/15/21 (1st Session), at 100. Based upon her initial evaluation, Ms. Singer believed that Father may have an intellectual disability or limitation, and in addition to the diagnosis she made of an "adjustment disorder unspecified," she referred him for a psychiatric evaluation to clarify the intellectual disability; Father subsequently received a diagnosis of "unspecified intellectual disability with intellectual developmental disorder." Id. at 101. Ms. Singer attempted to schedule therapy appointments to treat Father's depressive symptoms and Father appeared sporadically; however, at an April 15, 2021 appointment, Father indicated he was happy and had no depressive symptoms and as of the date of the hearing, he had not been heard from. Id. at 103-04. Ms. Singer indicated that each time she called him, Father would be on speaker phone, and she could hear his mother in the background, coaching him with the words to use. Id. at 109, 114.
Luke Reynolds, who processes new referrals and performs intake meetings for persons eligible for supports coordination at Luzerne County Mental Health Developmental Services, testified that in June 2021, Father was referred by LCCY, underwent cognitive testing, and received a statement of eligibility for services. N.T., 7/15/21 (1st Session), at 133. He explained that to be eligible, an individual must have an IQ of 72 or below and meet specified adaptive behavior scale criteria, as well as demonstrate a history of developmental disability before the age of 21. Mr. Reynolds stated that as of the date of the hearing, he had not yet performed intake services for Father. Id. at 138.
Here, tragically, the evidence clearly establishes that Father has been unable to make sufficient progress toward remedying the conditions that gave rise to Child's placement. Despite completion of parenting courses, Father has not demonstrated the capacity to independently care for Child, who has special needs. Based upon these facts, we discern no abuse of discretion or error of law in the orphans' court's conclusion that the conditions leading the Child's removal continue to exist more than twelve months after his removal, and that the termination of Father's parental rights would best serve the needs and welfare of Child.
We turn then to subsection (b), which requires the court to "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 intangibles such as love, comfort, security, and stability." In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation and quotation marks omitted). Our Supreme Court has made clear that Section 2511(b) requires the orphans' court to consider the nature and status of bond between a parent and child. In re E.M., 620 A.2d 481, 484-85 (Pa. 1993). It is reasonable to infer that no bond exists when there is no evidence suggesting the existence of one. See In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008).
Further, we have stated that "[w]hile a parent's emotional bond with his or her child is a major aspect of the [s]ubsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child." In re M.M., 106 A.3d 114, 118 (Pa. Super. 2014). "In addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent." Id. In determining needs and welfare, the court may properly consider the effect of the parent's conduct upon the child and consider "whether a parent is capable of providing for a child's safety and security or whether such needs can be better met my terminating a parent's parental rights." In re L.W., 267 A.3d 517, 524 (Pa. Super. 2021). Further, our Supreme Court has stated, "[c]ommon sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." T.S.M., supra, at 268.
The orphans' court determined that Father cannot meet Child's basic physical, developmental, and emotional needs, and that Child's special needs will require further attention throughout his future life. Orphans' Court Opinion at 40. The orphans' court stated that Father "has been given ample time to address and remedy these concerns," but has been unable to do so. Id. The court noted that, in stark contrast, the foster parents "have amply demonstrated they meet the physical, developmental, emotional, and special needs" of Child and that he has thrived under their care. Id. As noted by the orphans' court, Child's guardian ad litem ("GAL") stated in its written recommendation that terminating Father's parental rights serves the best interest of Child. Orphans' Court Opinion at 40. The GAL indicated its strong feeling that a "parent-child" bond exists between Child and his foster parents and that terminating Father's parental rights will not have any detrimental impact on Child whatsoever. See Letter from GAL, 7/30/21. The LCCY caseworker, Mr. Forte, testified that Child's foster parents are paternal cousins, that they wish to adopt Child, and that Child gets along well with their other children, who look at him as a sibling, and is well assimilated into their home. N.T., 7/15/21 (2nd session), at 46-47. He stated that Child is well-cared for in the foster home, and the foster parents ensure that he is taken to all necessary appointments including those for early intervention services and occupational therapy. Id. at 47. Mr. Forte observed Child in the foster home at least ten times and stated that Child is well-bonded with his foster parents. Id. at 49. He testified that Child "gets very upset" and "cries and screams when he's been taken from the foster mother" for a visit with his biological parents, and that having observed at least ten of these visits, he believes Child has almost no bond with them. Id. at 50.
Here, the record reflects that the orphans' court appropriately considered the effect of termination of Father's rights on Child pursuant to Section 2511(b), and did not abuse its discretion or commit an error of law in determining that termination of Father's rights is in Child's best interest.
As we conclude that the orphans' court did not err in terminating Father's parental rights, we affirm the decree.
Decree affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.