In the Int. of: D.R.-W., a Minor Appeal of: D.W.
Pa. Super. Ct.
J-A27033-19
2020 PA Super 15
IN THE INTEREST OF: D.R.-W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER :
:
:
:
: No. 779 EDA 2019
Appeal from the Decree Entered December 12, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000678-2018
IN THE INTEREST OF: E.R.-W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER :
:
:
:
: No. 780 EDA 2019
Appeal from the Decree Entered December 12, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000677-2018
IN THE INTEREST OF: D.R.-W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER :
:
:
:
: No. 886 EDA 2019
J-A27033-19
Appeal from the Order Entered December 12, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000874-2017
IN THE INTEREST OF: E.R.-W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: D.W., FATHER :
:
:
:
: No. 887 EDA 2019
Appeal from the Order Entered December 12, 2018
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000875-2017
BEFORE: BOWES, J., SHOGAN, J., and COLINS, J.*
OPINION BY SHOGAN, J.: FILED JANUARY 29, 2020
D.W. (“Father”) appeals from the decrees1 entered December 12, 2018,
which terminated involuntarily his parental rights to his son, D.R.-W., born in
January 2013, and his daughter, E.R.-W., born in March 2017 (collectively,
“the Children”).2 Father also appeals from the orders entered that same day,
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* Retired Senior Judge assigned to the Superior Court.
1 Father filed separate notices of appeal for each child, and for each order;
thus Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018), which
requires that “where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each of those cases,” is
satisfied.
2 In addition, the trial court entered separate decrees terminating the
parental rights of the Children’s mother, S.R. (“Mother”), and of the possible
unknown father of E.R.-W. Neither Mother, nor any unknown father, filed an
appeal.
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which changed the Children’s permanent placement goals from reunification
to adoption. After careful review, we affirm.
The record reveals that the Philadelphia Department of Human Services
(“DHS”) filed dependency petitions regarding the Children on March 30, 2017.
Therein, DHS stated that it received a General Protective Services report on
February 3, 2017, which alleged substance abuse and mental health concerns
with respect to Mother. DHS averred that it received a subsequent General
Protective Services report on March 21, 2017, following the birth of E.R.-W.
The report alleged that E.R.-W. was born prematurely and tested positive for
methadone, and that Mother tested positive for methadone, benzodiazepines,
and PCP shortly prior to E.R.-W.’s birth. As for Father, DHS averred that he
had a history of unstable housing and drug-related convictions. On April 12,
2017, the trial court entered orders adjudicating the Children dependent and
placing them in Father’s care. The court also referred Father for drug screens
and a substance abuse assessment and directed that he enroll in services at
the Achieving Reunification Center (“ARC”).3
This arrangement did not last, and DHS obtained emergency protective
custody of the Children less than two months later on May 30, 2017. In its
applications for emergency protective custody, DHS averred that Father’s
whereabouts were unknown, and the Children were living with their maternal
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3 The trial court entered amended orders of adjudication and disposition on
the same day, apparently to correct a typographical error.
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grandmother, who was an indicated perpetrator of child abuse. 4 The trial
court entered shelter-care orders on June 1, 2017, and placed the Children in
foster care.5
Following the Children’s placement in foster care, Father made minimal
progress toward regaining custody. The Community Umbrella Agency (“CUA”)
prepared a series of Single Case Plan (“SCP”) goals for Father, which included
obtaining substance-abuse treatment, following all recommendations,
complying with random drug screens, receiving services at ARC, obtaining
stable housing, and obtaining proper employment. N.T., 12/12/18, at 17. As
the record demonstrates, Father made little progress toward completing his
goals throughout the life of this case.
The trial court conducted a permanency review hearing on October 13,
2017. N.T., 12/12/18, at 17. At the time of the hearing, Father was not
visiting the Children, did not have stable housing, and was not attending ARC.
Id. at 19. He tested positive for opiates on August 31, 2017. Id. In addition,
while Father was scheduled for a substance abuse assessment on
September 26, 2017, he failed to appear. Id. Father was arrested for a parole
violation after the October 13, 2017 hearing, and was incarcerated for an
unspecified period. Id. at 20.
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4 Pursuant to 23 Pa.C.S. § 6303(a)(1), a report of child abuse is “indicated”
where “an investigation by the department or county agency determines that
substantial evidence of the alleged abuse by a perpetrator exists….”
5 DHS filed amended dependency petitions on June 3, 2017, although the
Children were already dependent.
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Additional permanency review hearings took place on January 10, 2018,
and March 20, 2018. N.T., 12/12/18, at 20. Father remained noncompliant
with his SCP objectives at the time of these hearings. Id. CUA did not have
an address for Father and he failed to make his whereabouts known. Id. at
21. As a result, the trial court suspended Father’s visits with the Children.
Id. at 20-21. Father’s visits were reinstated after a permanency review
hearing on June 21, 2018. Id. at 21-22. Father was residing in a recovery
house, and the trial court granted him two supervised visits per month. Id.
at 22. Despite Father’s efforts to address his substance abuse problems, he
remained noncompliant with the remainder of his objectives. Id. On
August 21, 2018, DHS filed petitions to terminate Father’s parental rights to
the Children involuntarily and to change the Children’s permanent placement
goal from reunification to adoption.
A final permanency review hearing took place on September 5, 2018.
By that time, Father had attended an intake appointment at ARC on
August 22, 2018. Id. at 23. However, he failed to follow up with services
after the appointment, and ARC discharged him as of November 27, 2018.
Id. Father also failed to provide CUA with an address, despite several
requests. Id. at 23-24.
On December 12, 2018, the trial court conducted a hearing on DHS’s
termination and goal change petitions. At the conclusion of that hearing, the
trial court announced its intention to terminate Father’s parental rights and to
change the Children’s permanent placement goals from reunification to
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adoption. The court entered its termination decrees and goal change orders
that same day, memorializing its decision. Order, 12/12/18. Father did not
file an appeal from the decrees or orders within the requisite thirty-day period.
Pa.R.A.P. 903. Instead, Father filed pleadings entitled “Petition for Leave to
File Petition for Allowance of Appeal Nunc Pro Tunc” on January 24, 2019. He
filed additional pleadings with the same title on February 25, 2019, in which
he corrected a typographical error on two of the pleadings and added a
doctor’s note. The court granted permission to appeal nunc pro tunc on
February 26, 2019. Father timely filed notices of appeal on March 19, 2019,
and March 21, 2019, along with concise statements of errors complained of
on appeal.
Father now raises the following claims for our review:
1. The trial court committed an error of law and discretion by
changing the permanency goal from reunification to adoption
where [DHS] failed to provide sufficient evidence that such a goal
change would be best suited for the [C]hildren’s needs and
welfare.
2. The trial court committed an error of law and abuse of discretion
by involuntarily terminating [Father’s] parental rights under 23
Pa. C.S. § 2511 (a), where the evidence showed that Father
substantially complied with [SCP] goals established by [DHS].
3. The trial court committed an error of law and abuse of discretion
by involuntarily terminating [Father’s] parental rights under 23
Pa. C.S. § 2511 (a) and (b), where [DHS] failed to prove by clear
and convincing evidence that involuntar[il]y terminating [D.W.’s]
parental rights would best serve the emotional needs and welfare
of the [C]hildren as an extension of time under 42 Pa.C.S. § 6351
(f) (9) would best serve D.R.-W’s needs and welfare.
Father’s Brief at 7-8.
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Preliminarily, we note that Father’s brief fails to comply with Pa.R.A.P.
2119(a), which requires that the argument section shall “be divided into as
many parts as there are questions to be argued. . . .” Despite including three
questions involved, the argument portion of Father’s brief is comprised of one
undivided section. Moreover, although Father presents questions regarding
the trial court’s decisions under Sections 2511(a) & (b) of the Adoption Act,
Father makes no effort in his brief to analyze the relevant statutory
subsections of the Adoption Act. Instead, he fails to cite or discuss the
Adoption Act entirely, opting to focus on his claim that the trial court
terminated his rights based on a mechanical application of a section of the
Juvenile Act, 42 Pa.C.S. 6301 et seq.6 Given the lack of discussion and citation
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6 In his brief, Father challenges the evidence supporting the involuntary
termination of his parental rights, arguing that “compelling reasons” existed
to continue with reunification efforts. Father’s Brief at 12-13. Father directs
our attention to 42 Pa.C.S. § 6351(f)(9) of the Juvenile Act, which requires
that trial courts determine whether the county agency has filed a termination
petition once a child has remained in foster care for fifteen of the last twenty-
two months. Father’s Brief at 13. That section contains the following
language:
(9) If the child has been in placement for at least 15 of the last 22
months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent or
eliminate the need to remove the child from the child's parent,
guardian or custodian or to preserve and reunify the family need
not be made or continue to be made, whether the county agency
has filed or sought to join a petition to terminate parental rights
and to identify, recruit, process and approve a qualified family to
adopt the child unless:
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to relevant legal authority, we find that Father has waived any issues relating
to error on the part of the trial court as it relates to 23 Pa.C.S § 2511. See,
e.g., In re A.P., 920 A.2d 1269, 1275 (Pa. Super. 2007) (finding issue waived
where mother failed to develop or cite any authority in support of argument).
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(i) the child is being cared for by a relative best suited
to the physical, mental and moral welfare of the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to
terminate parental rights would not serve the needs
and welfare of the child; or
(iii) the child's family has not been provided with
necessary services to achieve the safe return to the
child's parent, guardian or custodian within the time
frames set forth in the permanency plan.
42 Pa.C.S. § 6351(f)(9). Father emphasizes an exception to this requirement,
found at 42 Pa.C.S. § 6351(f)(9)(ii), which provides that the court need not
make the required finding if the county agency documents a compelling reason
that filing a petition would not serve the subject child’s needs and welfare.
Father’s Brief at 14. Father asserts that the compelling reason in this case
was his compliance with his SCP goals. Id. at 15, 22-23, 30-31. Specifically,
Father asserts that he had overcome his drug addiction and maintained
sobriety for approximately one year at the time of the hearing, and that he
had maintained a job for four months. Id. at 15, 20, 30. Father acknowledges
that he failed to attend services at ARC, but insists that he will be able to
complete that goal as well, “in a minimal amount of time.” Id. at 15-16, 20,
24. The subsection upon which Father relies does not address whether the
court should actually grant a termination petition when DHS files one.
In this case, we see no indication in the trial court’s opinion or in the
transcript of the hearing that the court relied on an erroneous interpretation
of Section 6351(f)(9) to terminate Father’s parental rights. A review of the
trial court’s opinion confirms that it applied the correct statutory authority,
Section 2511 of the Adoption Act, when reaching its decision.
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Even if we were to reach the merits of Father’s argument that the trial
court erred in finding termination of Father’s parental rights was proper under
23 Pa.C.S. §§ 2511(a) and (b), we would find no error.
Our 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. 23 Pa.C.S. § 2511. It requires a bifurcated analysis as
follows:
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 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. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In the instant matter, the trial court terminated Father’s rights to the
Children pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b). We
need only agree with the court as to any one subsection of Section 2511(a),
as well as Section 2511(b), in order to affirm. In re B.L.W., 843 A.2d 380,
384 (Pa. Super. 2004) (en banc). Here, we analyze the court’s decision
pursuant to Sections 2511(a)(2) and (b), which provide as follows:
(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.
* * *
(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.
23 Pa.C.S. §§ 2511(a)(2), (b).
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We first consider whether the trial court committed an error of law or
an abuse of its discretion by terminating Father’s parental rights pursuant to
Section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[]
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272(Pa. Super. 2003) (citation omitted). As this Court has held, “The grounds for termination 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) (citations omitted).
The trial court explained its decision to terminate Father’s parental
rights as follows:
This [c]ourt found the testimony of the CUA case workers to
be credible and persuasive and found Father’s testimony to be
incredible and self-serving. This [c]ourt’s decision to terminate
Father’s parental rights to the Children was based on clear and
convincing evidence which established that Father’s conduct for at
least the six months prior to the filing of the petition to terminate[]
revealed a settled purpose relinquishing parental claim to the
Children and revealed a failure to perform parental duties. This
[c]ourt found the evidence supported th[e] conclusion that Father
lacks the present and future capacity to provide parental care,
control or subsistence necessary for the Children’s physical and
mental well-being. Father cannot provide for the Children’s basic
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needs nor can he provide a structured environment for these
Children.
This [c]ourt found that DHS proved by clear and convincing
evidence that Father is incapable of providing safety and
permanency for these Children now and in the future. This [c]ourt
is not persuaded that Father can or will remedy the conditions
which continue to exist and which brought the Children into
supervision.
Trial Court Opinion, 5/16/19, at 25-26.
After careful review of the record in this matter, we discern no error of
law or abuse of discretion. Moreover, we conclude that the record supports
the trial court’s decision to terminate Father’s parental rights pursuant to
Section 2511(a)(2). The trial court adjudicated the Children dependent on
April 12, 2017, and placed them in Father’s care. However, this arrangement
lasted less than two months, and DHS obtained emergency protective custody
May 30, 2017. The CUA case manager, Ms. Michele Jackson, testified that
DHS obtained emergency protective custody after Father abandoned the
Children with their maternal grandmother and disappeared. N.T., 12/12/18,
at 14, 42-43. Father then tested positive for opiates on August 31, 2017. Id.
at 19. He failed to attend a substance abuse assessment on September 26,
2017, before being arrested for a parole violation following the October 13,
2017 hearing, resulting in an unspecified period of incarceration. Id. at 19-
20. Subsequently, CUA had no address for Father and his whereabouts were
unknown. Id. at 21.
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Ms. Jackson testified that Father entered substance-abuse treatment in
March of 2018. N.T., 12/12/18, at 32-33. At the time of the June 2018
hearing, Father resided in a recovery house but remained noncompliant with
services at ARC. Id. at 33, 21-22. While Father attended an intake
appointment at ARC on August 22, 2018, he then failed to follow up with
services, resulting in his discharge. Id. at 23. Father’s circumstances
remained essentially the same at the time of the hearing on December 12,
2018, with the exception that he presented brief, self-serving testimony that
he held employment for the past four or five months, and that he would be
looking at potential housing the next day. Id. at 131-133. It was within the
trial court’s discretion to reject this testimony as not credible. See In the
Interest of D.F., 165 A.3d 960, 966 (Pa. Super. 2017) (“The [trial court] is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”).
As this Court has emphasized, “[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.” In re Adoption of R.J.S., 901 A.2d 502,
513 (Pa. Super. 2006). The trial court did not abuse its discretion in finding
that 23 Pa.C.S. § 2511(a)(2) was satisfied.
Turning to 23 Pa.C.S. § 2511(b), we apply the following analysis:
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Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the [S]ection 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.
[I]n 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. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219(Pa. Super. 2015) (quoting In re N.A.M.,33 A.3d 95, 103
(Pa. Super. 2011) (quotation marks and
citations omitted)).
In the instant matter, Father argues that he and the Children share a
bond, although he acknowledges that this bond was “rebuilding” at the time
of the termination proceedings. Father’s Brief at 24. In addition, Father
maintains that the Children wanted to return to his care, and he stresses that
the Children’s legal counsel requested a bonding evaluation. Id. at 16, 25-
27. He contends that DHS rushed to terminate his rights and that the trial
court placed insufficient weight on the Children’s preference. Id. at 16, 25,
29-30. Father insists that there is no risk of “foster care drift” in this case
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because the Children have remained in the same foster home since their
shelter care hearing and likely will continue to remain there in the event this
Court reverses the termination decrees. Id. at 14-15.
The trial court explained its reasoning with regard to Section 2511(b) as
follows:
Testimony by Ms. Jackson and Ms. [Adia] Gettysmith, the
CUA case workers, provided credible, persuasive testimony
regarding the Children’s physical and emotional needs, best
interests and with whom the Children have a parental bond. They
testified that Father has minimal contact with the Children and
only when prompted by Mother. Ms. Jackson stated there is no
engagement [and] no interaction between [E.R.-W.] and Father.
At the conclusion of the visits, the Children are happy to return to
their foster parents. She stated the foster parents provide safety,
care, and meet all of the Children’s emotional and day-to-day
needs. There is a parental bond between the Children and their
Foster Parents. She noted that D.R.[-]W.[] recognizes his
Father[;] however, she opined there is no parental bond between
them. Regarding [E.R.-W.], the [c]hild has minimal recognition
and in fact, Father has never been seen by the visitation observers
to have held the [c]hild, and only interacts with the Children when
prompted by Mother. Both social workers opined the Children
would not suffer irreparable harm if Father’s parental rights were
terminated and it would be in their best interest to be adopted.
Susan Rubinovitz, [the Children’s legal counsel,] testified
she met with the Children over the weekend. D.R.[-]W. told her
he wants to go home to live with his real Mom and Dad. He refers
to his foster parent as “foster mom.”
Here, the totality of the evidence supports the [c]ourt’s
conclusion that termination of Father’s parental rights is in the
best interest of these Children. This [c]ourt found that
termination of Father’s parental rights met the developmental,
physical and emotional needs and welfare of the Children, and the
statutory requirements for involuntary termination of his parental
rights pursuant to 23 Pa.C.S. [§] 2511(b) were met.
Trial Court Opinion, 5/16/19, at 27-28.
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We discern no error of law or abuse of discretion in this assessment. As
detailed above, Father has had minimal contact with the Children since their
placement in foster care. The trial court adjudicated the Children dependent
in April 2017, when D.R.-W. was four years old and E.R.-W. was only one
month old. It is not clear from the record how much time D.R.-W. spent with
Father prior to his adjudication, although Ms. Jackson’s testimony appears to
indicate that contact was sporadic. See N.T., 12/12/18, at 26 (“There was a
sporadic in and out before even in placement.”). After their adjudication, the
Children lived with Father for just over one month until Father abandoned
them into the care of their maternal grandmother, an “indicated perpetrator”
of child abuse, in May 2017. Ms. Jackson testified that Father then failed to
visit with the Children and was incarcerated. Id. at 18-20. In total, Father
visited with the Children only once prior to the suspension of his visits in
September 2017, and only five times, in June 2018, July 2018, August 2018,
September 2018, and November 2018 after his visits resumed. Id. at 22-23,
29, 38.
Ms. Jackson testified that she was present during the first two of Father’s
reinstated visits, and that D.R.-W. was “not engaged” and did not interact with
Father during either of them. N.T., 12/12/18, at 28-30. Concerning D.R.-
W.’s relationship with Father, Ms. Jackson explained, “[D.R.-W.] identifies who
[Father] is . . .. He does know who he is. The kids have both expressed fear
of him to the foster parent, though.” Id. at 26. As for E.R.-W., Ms. Jackson
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testified that the child “gets very upset upon leaving the foster mother on all
of her visits. And there is no engagement. There’s no interaction.” Id. at
45. Ms. Jackson added that she spent most of E.R.-W.’s visits with Father just
“trying to calm the child down because she was too upset.” Id. Ultimately,
she opined that neither child would suffer irreparable harm if the trial court
terminated Father’s parental rights and that termination would be in the
Children’s best interests.7 Id. at 27, 47.
On cross-examination, the Children’s legal counsel asked Ms. Jackson
whether she was aware that D.R.-W. wanted to live with his birth parents.
N.T., 12/12/18, at 32. Ms. Jackson responded that D.R.-W. was “somewhat
confused at this point, yes.” Id. At the conclusion of the hearing, counsel
summarized her own meeting with the Children, as follows:
I met with the children over the weekend. Very early on in
the visit, they started telling me about how they want to go home.
[D.R.-W.] told me he wanted to go home to live with his real
[M]other and [F]ather. And [the Children’s half-sibling, A.,8] told
me she wanted to go live with her birth mother. And that was
without me mentioning their real parents.
I just said, you know, “do you want to stay here for a long
time?” And they both right away told me they wanted to go home
with their real parents. I asked -- I pointed to the foster mother.
And I asked both of them who is this? ‘Cause normally, a lot of
times the children tell me it’s the “mommy” or their “mom.”
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7 It is important to note that the trial court was under no obligation to order
a bonding evaluation before terminating Father’s rights. See In re Z.P., 994
A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted) (“When conducting a
bonding analysis, the court is not required to use expert testimony. Social
workers and caseworkers can offer evaluations as well.”).
8 A. is not Father’s child, and she is not involved in the instant appeal.
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And they both referred to her as their “foster mom.” And
they both told me more than once in the visit that they want to
go home with their birth parents and that they enjoy the visits
with their birth parents.
Id. at 152-153.
While DHS’s testimony was not consistent with D.R.-W.’s preference as
reported by his legal counsel, that inconsistency does not require reversal of
the termination decrees. The Adoption Act and our case law provide that trial
courts must appoint legal counsel to represent the preferred outcome of
children in contested involuntary termination matters. See 23 Pa.C.S.
§ 2313(a); In re T.S., 192 A.3d 1080, 1082(Pa. 2018).9 However, a child’s preferred outcome is not controlling, especially where that child is under twelve, and his or her consent is not necessary to effectuate an adoption. See 23 Pa.C.S. § 2711(a) (“[C]onsent to an adoption shall be required of . . . [t]he adoptee, if over 12 years of age.”). In this case, given D.R.-W.’s young age, and given that his preference appeared immature and completely at odds with other evidence of record, which established that he had barely even seen ____________________________________________ 9 In In re L.B.M.,161 A.3d 172
(Pa. 2017) our Supreme Court explained that a child’s legal interests, or preferred outcome, is distinct from a child’s best interests, which is determined by a court. In the instant case, Susan M. Rabinovitz, Esq., was appointed counsel TPR counsel, representing the legal interests of the Children. Maureen F. Pie, Esq., was appointed the Children’s guardian ad litem, representing the Children’s best interests. Where, as here, the Children’s legal interests are not synonymous with their best interests, those interests must be represented separately. In re L.B.M.,161 A.3d at 182
.
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Father for over one year and one-half, it was well within the court’s discretion
to accord that preference little weight.10
The trial court also considered the Children’s bond with their foster
parents. See T.S.M., 71 A.3d at 268 (“Common 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.”).
Here, Ms. Jackson testified that the Children resided together in the same
foster home. N.T., 12/12/18, at 13, 99. E.R.-W. has resided there nearly her
entire life, since June 2017, while D.R.-W. has resided there since July 2017.
Id. at 98-99. Ms. Jackson opined that D.R.-W. shares a bond with his foster
parents and refers to them as “Mom” and “Dad.” Id. at 25-26. D.R.-W. is
thriving in the foster home, and he shares “a very close connection” with his
foster parents’ biological children as well. Id. at 25, 27. With regard to E.R.-
W., Ms. Jackson opined that she, too, shares a bond with the foster parents
and is “doing great” in foster care.11 Id. at 46-47. Taken together, this
____________________________________________
10 We note that E.R.-W. was less than two years old at the time of the hearing
and she was nonverbal. N.T., 12/12/18, at 106. Therefore, her preferred
outcome was incapable of ascertainment.
11 Similarly, the visitation coach, Adia Gettysmith, testified that she observed
three of Father’s visits with the Children. N.T., 12/12/18, at 116. She
reported that Father interacted with the Children during the visits only “if
prompted by Mom.” Id. Concerning D.R.-W.’s demeanor, Ms. Gettysmith
testified that the child appears “[h]appy” when he is with his foster parents
but only “[n]eutral” when he is with Father. Id. at 121-22. She testified that
E.R.-W. also appears “happy” when she sees her foster mother but that the
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evidence confirms that involuntary termination of Father’s parental rights and
adoption by the foster parents would best serve the Children’s needs and
welfare. We therefore affirm the termination decrees pursuant to Section
2511(b).
Finally, we turn our attention to Father’s first claim on appeal, in which
he challenges the trial court’s decision to change the Children’s permanent
placement goals from reunification to adoption. Father waived this claim by
failing to develop it in his appellate brief. See In re M.Z.T.M.W., 163 A.3d
462, 465 (Pa. Super. 2017) (“It is well-settled that this Court will not review
a claim unless it is developed in the argument section of an appellant’s brief,
and supported by citations to relevant authority.”). Father indicates at the
start of his brief that he is appealing only the decrees terminating his parental
rights. Father’s Brief at 6. However, as discussed supra, the argument section
of Father’s brief is comprised of a single section. While Father mentions the
goal change in his argument, he appears to be conflating the court’s goal-
change orders with its termination decrees and does not present a distinct
goal-change claim supported by citation to relevant legal authority. Notably,
even if Father had not waived his goal change claim, it would be moot in light
of our decision to affirm the court’s termination decrees. See In re D.A., 801
____________________________________________
child cries when she is “passed off” to Mother for a visit. Id. at 119. When
asked how E.R.-W. reacts when she is passed off to Father, Ms. Gettysmith
replied that she had never seen E.R.-W. passed off to Father. Id.
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A.2d 614, 616 (Pa. Super. 2002) (“An issue before a court is moot if in ruling
upon the issue the court cannot enter an order that has any legal force or
effect.”).
Even accepting for the sake of argument that Father did not waive this
claim and that it is not moot, we would conclude he is not entitled to relief.
We review goal-change orders pursuant to an abuse-of-discretion standard of
review. In re R.J.T., 9 A.3d 1179, 1190(Pa. 2010). As such, we must accept the trial court’s findings of fact and credibility determinations if the record supports them, but we need not accept the court’s inferences or conclusions of law.Id.
The Juvenile Act governs proceedings to change a child’s permanent
placement goal. 42 Pa.C.S. §§ 6301-6375. Trial courts must apply the
following analysis:
Pursuant to [42 Pa.C.S.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
[trial] court is to consider, inter alia: (1) the continuing necessity
for and appropriateness of the placement; (2) the extent of
compliance with the family service plan; (3) the extent of progress
made towards alleviating the circumstances which necessitated
the original placement; (4) the appropriateness and feasibility of
the current placement goal for the children; (5) a likely date by
which the goal for the child might be achieved; (6) the child’s
safety; and (7) whether the child has been in placement for at
least fifteen of the last twenty-two months. The best interests of
the child, and not the interests of the parent, must guide the trial
court. As this Court has held, a child’s life simply cannot be put
on hold in the hope that the parent will summon the ability to
handle the responsibilities of parenting.
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In re A.B., 19 A.3d 1084, 1088-1089 (Pa. Super. 2011) (citations and
quotation marks omitted).
The trial court explained its decision to change the Children’s goals as
follows:
This [c]ourt reasoned that DHS has provided Father with
necessary referrals to services to allow him to be reunited with his
Children, however, he has not complied with these referrals in the
time frames set forth in the permanency plan. The Children are
doing well with their foster parents and they cannot be expected
to place their future on hold to wait for Father to get his life in
order.
The Pennsylvania Juvenile Act, as amended to reflect the
principles of the Federal Adoption and Safe Families Act
([“]ASFA[“]) which focuses on safety and permanency as the
paramount concerns in planning for dependent children, ranks the
permanency options for children using a hierarchical priority. The
permanency options are listed first to last and each preceding
option must be ruled out before the next can be chosen as a viable
permanency option. . . . Pursuant to the hierarchy of permanency
option[s], the option of “placement with a legal custodian” is listed
third. Once reunification is ruled out, the second preferred
permanency option is adoption. Adoption has been clearly
established as the appropriate goal in the best interest of these
Children.
Trial Court Opinion, 5/16/19, at 29-30.
We again discern no error of law or abuse of discretion. As we have
discussed throughout this Opinion, Father has demonstrated that he is
incapable of parenting the Children and that he will not be capable of parenting
the Children at any point in the foreseeable future. In addition, the Children
do not share a bond with Father and instead share a bond with their foster
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parents. It is clear that changing the Children’s permanent placement goals
to adoption would be in their best interests.
Based on the foregoing, we conclude that the trial court did not commit
an error of law or abuse its discretion by terminating Father’s parental rights
involuntarily, and that Father waived any challenge to the court’s decision to
change the Children’s permanent placement goals to adoption. Therefore, we
affirm the termination decrees and the goal-change orders.
Decrees affirmed. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2020
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