Opinion
J-S08043-20 J-S08044-20 No. 1615 WDA 2019 No. 1624 WDA 2019
03-30-2020
IN THE INTEREST OF: M.E.M., A MINOR APPEAL OF: M.E.M., BIOLOGICAL FATHER IN THE INTEREST OF: M.E.M, A MINOR APPEAL OF: M.P., NATURAL MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 10, 2019 in the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000023-2019 Appeal from the Order Entered October 10, 2019 in the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02AP-023-2019 BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
M.E.M. ("Father") and M.P. ("Mother") (collectively, the "Parents") appeal from the Orders granting the Petitions filed by the Allegheny County Office of Children Youth and Families ("OCYF"), which sought to involuntarily terminate their parental rights to their biological child, M.E.M. ("Child") (a male born in January 2018), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). Father challenges the termination of his parental rights under each of these sections. Mother challenges only whether the trial court properly terminated her parental rights under section 2511(b). We affirm both Orders.
In its Opinion, the trial court set forth the factual background and procedural history of this appeal, which we adopt for the purpose of this appeal. See Trial Court Opinion, 12/10/19, at 1-9.
At the hearing, Tara Yontz, Esquire ("Attorney Yontz"), from KidsVoice, was present as the guardian ad litem ("GAL") for Child, since she already served as GAL in the dependency matters for Child and his siblings, who were not present. N.T., 2/19/19, at 3. Attorney Yontz requested the appointment of conflict counsel for Child in the termination proceedings. See In re Adoption of L.B.M., 161 A.3d 172, 174-75 (Pa. 2017) (plurality) (wherein our Supreme Court held that 23 Pa.C.S.A. § 2313(a) requires that counsel be appointed to represent the legal interests of any child involved in a contested involuntary termination proceeding. The Supreme Court further defined a child's legal interest as synonymous with his or her preferred outcome); see also In re T.S., 192 A.3d 1080, 1089-90, 1092-93 (Pa. 2018) (wherein the Supreme Court held that the trial court did not err in allowing the childrens' GAL to act as their sole representative during the termination proceeding because, at two and three years old, they were incapable of expressing their preferred outcome). John Cavicchio, Esquire ("Attorney Cavicchio"), was appointed as conflict counsel.
The trial court held evidentiary hearings on OCYF's Petition on February 19, 2019, and September 27, 2019. At the February 19, 2019, hearing, OCYF presented the testimony of Jennifer Watson ("Watson"), the OCYF caseworker assigned to the family, see N.T., 2/19/19, at 3; Linda Patterson-Bell, a visit coach from Holy Family Institute ("HFI"), see id. at 28; Emily Mackowiak ("Mackowiak"), a visit coach from HFI, see id. at 52; and Laura Burbaugh ("Burbaugh"), the treatment coordinator from Pressley Ridge, see id. at 74. Attorney Yontz presented the testimony of T.K., Child's foster mother ("Foster Mother"), who is also the foster mother for Child's older brother, Ai., see id. at 78; and H.E.-M., the foster mother for Child's older brother, Ad., see id. at 83. Mother testified on her own behalf. See id. at 61.
At the hearing on September 27, 2019, OCYF presented the testimony of Watson, see N.T., 9/27/19, at 5; Heather Anderson, who is an in-home services worker with HFI, see id. at 87; Mackowiak, see id. at 94; Burbaugh; and Megan Brooks, who is the foster care planner at Pressley Ridge assigned to Child ( id. at 158). Attorney Cavicchio gave a statement regarding Child's legal interests.
The record reflects that, at the close of the evidence, Attorney Cavicchio stated the position of Child, who was twenty months old, on the record. N.T., 9/27/19, at 170-71. Attorney Cavicchio stated that, when he had broached the topic of Child's preference as to the termination of his Parents' parental rights, Child was not able to answer in any substantive way, and could not express any preference. Id. Citing In re: T.S., 192 A.3d at 1082, Attorney Cavicchio stated that, where a child cannot express his preference, the role of legal counsel is effectively synonymous with that of a GAL, such that Attorney Cavicchio was to offer what he believed was in Child's best interests. N.T., 9/27/19, at 170-71. Attorney Cavicchio testified that it would be in Child's best interests for the trial court to terminate Parents' parental rights. Id. at 171. We do not comment on the quality of Attorney Cavicchio's representation of Child. See In re: Adoption of K.M.G., 219 A.3d 662, 669 (Pa. Super. 2019) (en banc), (holding that this Court has authority only to raise, sua sponte, the issue of whether the trial court appointed any counsel for the child, and not the authority to delve into the quality of the representation), appeal granted in part and denied in part , 221 A.3d 649 (Pa. 2019).
In the Orders entered on October 10, 2019, the trial court terminated Father's and Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). Father and Mother, respectively, each 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).
On November 12, this Court, acting sua sponte, listed the appeals consecutively. We are addressing both appeals in the same Memorandum, as the trial court addressed both Father's and Mother's matters in the same Opinion. On December 11, 2019, this Court granted the Motion to substitute counsel, substituting Lynne Sherry, Esquire ("Attorney Sherry"), as legal counsel for Child, replacing Attorney Cavicchio. Attorney Sherry filed a brief on behalf of Child in this matter.
On appeal, Father raises the following issues:
I. Whether the [t]rial [c]ourt committed fatal error and/or abused its discretion in finding [that OCYF] met [its] burden of proof and
proved[,] by clear and convincing evidence[,] that the parental rights of [Father] should be terminated pursuant to 23 Pa.C.S.A. § 2511(a)(2), (a)(5), and (a)(8)?Father's Brief at 5.
II. Whether the [t]rial [c]ourt erred and/or abused its discretion by finding that the [OCYF] met [its] burden of proof and proved[,] by clear and convincing evidence[,] that terminating the parental rights of [Father] best meets the needs and welfare of [Child] pursuant to 23 Pa.C.S.A. § 2511(b)?
On appeal, Mother raises one issue:
1. Did the trial court abuse its discretion and/or err[,] as a matter of law[,] in concluding that termination of [] Mother's parental rights would serve the needs and welfare of [] Child pursuant to 23 Pa.C.S.A. § 2511(b)?Mother's Brief at 6.
Mother does not raise section 2511(a) in the Statement of Questions Involved in her brief. See Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in or suggested by an appellate brief's statement of questions involved is deemed waived). In fact, Mother concedes that OCYF established, by clear and convincing evidence, that the grounds for termination pursuant to 23 Pa.C.S.A. § 2511(a)(2) were satisfied. We, nevertheless, would find such a challenge lacks merit for the reasons set forth infra, and provided in the trial court's Rule 1925(a) Opinion.
In reviewing an appeal from the termination of 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., ... 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. Id.; R.I.S., 36 A.3d 567, 572 (Pa. 2011) [(plurality)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America , Inc., ... 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely , 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We 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 Atencio , 650 A.2d 1064, 1066 (Pa. 1994).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). 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." Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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 consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will address section 2511(a)(2) and subsection (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 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.
To satisfy the requirements of subsection (a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental rights under subsection (a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary, those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
Father argues that the trial court erred and/or abused its discretion in terminating his parental rights under subsection(a)(2). Father's Brief at 10. Father asserts that he did make progress in achieving his plan goals, and remedying the conditions that led to the dependency adjudication. Id. at 11. Father states that he completed a domestic violence program through Renewal Center and a Batterer's Intervention Program through Woman's Center and Shelter. Id. (citing N.T., 9/27/19, at 26). Father alleges that no domestic violence incidents occurred since 2014, or during the life of Child. Id. Father states that he attended mental health therapy from October 2, 2018, through July 31, 2019. Id. Father asserts that he also visited Child to strengthen his bond with Child. Id.
In its Opinion, the trial court addressed the termination of Father's parental rights under 23 Pa.C.S.A. § 2511(a)(2). See Trial Court Opinion, 12/10/19, at 11-12. We agree with and adopt the trial court's Opinion with regard to the termination of Father's parental rights under 23 Pa.C.S.A. § 2511(a)(2). See id.
The trial court also addressed the termination of Mother's parental rights under subsection (a)(2).
There is competent evidence in the record that supports the trial court's findings and credibility determinations. The termination of Father's parental rights to Child is warranted pursuant to section 2511(a)(2), as Father clearly lacks parental capacity, and the evidence showed that he will be unable to remedy that situation within a reasonable period of time, if ever. There was sufficient, competent evidence in the record for the trial court to find the grounds for termination of parental rights under section 2511(a)(2), due to parental incapacity that cannot be remedied. We thus find no abuse of the trial court's discretion in finding that Father's parental rights should be terminated under section 2511(a)(2). See In re Adoption of S.P., 47 A.3d at 826-27.
Next, we address the Parents' challenge to termination pursuant to section 2511(b). We have explained that 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. 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.A. § 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 trial 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 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 neglect is likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent .... Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in [and] of itself, or when considered in connection with a child's feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and [his or her] mental and emotional health than the coincidence of biological or natural parenthood.In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and quotation marks omitted). Thus, the court may emphasize the safety needs of the child. See In re K.Z.S., 946 A.2d at 763-64 (affirming the involuntary termination of the mother's parental rights, despite the existence of some bond, where placement with the mother would be contrary to the child's best interests, and any bond with the mother would be fairly attenuated when the child was separated from her, almost constantly, for four years).
Father argues that the trial court erred in finding that the termination of his parental rights serves Child's best interests. Father's Brief at 14. Father asserts that his failures are not significant for purposes of assessing Child's bond with him. Id. at 16. Father contends that the trial court erred and/or abused its discretion in ruling that the severance of the bonded relationship between Father and Child best meets the needs and welfare of Child. Id.
Likewise, Mother argues that the trial court abused its discretion and erred as a matter of law by concluding that the termination of her parental rights would best serve the needs and welfare of Child pursuant to section 2511(b). Mother's Brief at 11. Mother asserts that the issue of what serves the needs and welfare of Child is not the same as what is in his best interest, and the issue is to be analyzed to a much higher standard. Id. Mother contends that the trial court failed to consider the nature of the bond between Mother and Child, as well as what effect the termination of her parental rights would have on Child. Id.
In its Opinion, the trial court addressed the termination of Father and Mother's parental rights, under 23 Pa.C.S.A. § 2511(b), and determined that termination would serve Child's best interests. See Trial Court Opinion, 12/10/19, at 12-13. The record supports the trial court's findings, and its conclusion is sound. See id. We reject the Parents' arguments and agree with the trial court's determination that there is no parent-child bond that, if severed, would permanently affect Child. There was competent evidence in the record from which the trial court could conclude that the termination of the Parents' parental rights to Child serves Child's needs and welfare and is in his best interests. The record supports the trial court's factual findings, and the court's conclusions are not the result of an error of law or an abuse of discretion with regard to section 2511(b). In re Adoption of S.P., 47 A.3d at 826-27. We therefore affirm on the basis of the trial court's Opinion with regard to termination of the parental rights of Father and Mother pursuant to section 2511(b).
This Court has explained that a parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights. In re Z.P., 994 A.2d at 1121. Further, this Court has stated: "[A] parent's basic constitutional right to the custody and rearing of ... [his or] her child is converted, upon the failure to fulfill ... [his or] 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). "[W]e 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.")).
We, therefore, affirm the Orders terminating Father's and Mother's parental rights with regard to Child under section 2511(a)(2) and (b).
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/30/2020
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