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[U] In re E.R.H.W.

Superior Court of Pennsylvania

June 21, 2013

IN RE: E.R.H.W., MINOR APPEAL OF: R.W., FATHER IN RE: M.L.W., MINOR APPEAL OF: R.W., FATHER IN RE: R.L.W., JR., MINOR APPEAL OF: R.W., FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Decree of September 19, 2012, in the Court of Common Pleas of Berks County, Orphans' Court at Nos. 82360, 82361, 82362

BEFORE: FORD ELLIOTT, P.J.E., WECHT and COLVILLE [*], JJ.

MEMORANDUM

COLVILLE, Judge.

R.W. ("Father") appeals from the decrees dated September 19, 2012, in the Court of Common Pleas of Berks County, involuntarily terminating his parental rights to his two sons, M.L.W., born in January of 2007, and R.L.W., Jr., born in March of 2010, and his daughter, E.R.-H.W., born in March of 2011 (collectively, "the Children"). We affirm the decrees.

In April of 2007, this family came to the attention of the Berks County Children and Youth Services ("CYS") due to a referral from an agency in Broome County, New York, indicating, inter alia, that B.A.K. ("Mother") and Father relocated to Berks County, Pennsylvania, and were not able to care for M.L.W. without assistance from a competent adult. CYS made a referral to the Youth Advocate Program, Inc. for in-home parenting instruction, and CYS developed a safety plan that Mother and Father would reside with M.L.W. at the home of M.L.W.'s paternal grandparents, who would provide appropriate supervision at all times. On April 18, 2007, the trial court placed M.L.W. in the emergency protective custody of CYS because Mother and Father violated the safety plan. A dependency petition was filed. However, the trial court returned M.L.W. to Mother and Father in December of 2007 and dismissed the petition.

During the early life of the two older children, CYS continued to receive reports, aptly described by the trial court as follows, in relevant part:

. . . CYS continued to receive reports regarding . . . issues of Mother screaming and swearing at one or more of the children and using inappropriate physical discipline, including strikes to the head with her hand or flip-flops. There were also reports of Mother and Father associating with individuals who were deemed to be unsafe around children. . . . There were also reports of Father being violent and refusing to discipline M.L.W. for fear that 'he would kill him.' Mother and Father were reported to pawn [M.L.W.] off on neighbors as well as to have sex in front of [M.L.W.].
Over the years there was also an ongoing concern about the physical health of the children. A number of referrals were made about Mother and Father's failure to appropriately feed the children and M.L.W., in particular, was still drinking from a bottle at the age of two. M.L.W. was also consistently observed to have a low weight and nutritional concerns. There were ongoing reports of untreated or, at best, sporadically treated MRSA, impetigo, scabies, fungal infections, and lice and bedbug problems. . . .
In December of 2010, the family was opened for continued in-home services due to the boys[] having medical conditions that were not resolved in eighteen months. Signature Family Services was to complete twice weekly home visits to monitor medication management and address parenting skills and Berks Visiting Nurses were visiting the home three times per week to follow up with the MRSA infection. During this time, it also became apparent that Mother and Father were not seeing to proper monitoring of M.L.W.'s bicuspid aortic valve concerns . . . .
During the home visits, Mother was observed to be loud, aggressive and controlling. . . . In-home caseworkers also needed to direct the parents to change the children's dirty pajamas and to provide food by means other than a bottle. Mother was found to be preparing formula incorrectly by skimping on the amount of powder to add to the water. . . .

Trial Court Opinion, 11/20/12, at 4-5.

On February 8, 2011, based on the foregoing concerns, in addition to safety concerns, the trial court placed M.L.W. and R.L.W., Jr., in the emergency protective custody of CYS. CYS filed dependency petitions for M.L.W. and R.L.W., Jr. on February 9, 2011. In March of 2011, CYS filed a dependency petition for E.R.-H.W.; she was two weeks old.

The court adjudicated the Children dependent on April 20, 2011, and established the placement goal of adoption and a concurrent goal of subsidized permanent legal guardianship. CYS developed the following family service plan ("FSP") goals for Mother and Father, in relevant part: obtain a mental health evaluation and follow all recommendations; establish and maintain stable and appropriate housing and income; participate with casework services through CYS and any recommended treatment; participate in supervised visits with the Children; and participate in parenting education.

On December 15, 2011, CYS filed petitions for the involuntary termination of Mother's and Father's parental rights to the Children. The termination hearing was held on September 19, 2012.

By separate decrees dated September 19, 2012, the trial court involuntarily terminated Mother's and Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (b). Father's timely appeal followed.[1]

We review Father's appeals according to the following standard:
Appellate 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. Id.; R.I.S., 36 A.3d [567, 572 (Pa. 2011)]. 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, 575 Pa. 647[, 654-655], 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.
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, 539 Pa. 161[, 165, ] 650 A.2d 1064, 1066 (Pa. 1994). In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

Father raises the following issues for review:

1. Did the trial court err by involuntarily terminating [Father's] parental rights where such determination was not supported by clear and convincing evidence establishing grounds for termination under the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), 23 Pa.C.S.A. § 2511(a)(2), or 23 Pa.C.S.A. § 2511(a)(5)?
2. Did the trial court err by involuntarily terminating [Father's] parental rights where such determination was not supported by clear and convincing evidence establishing grounds for termination under the Adoption Act, 23 Pa.C.S.A. § 2511(b)?
3. Did the trial court err by permitting [CYS] to proceed with an initial goal of adoption, rather than reunification of the child[ren] with [Father], which evidences the court's pre-determined bias against [Father]?
4. Did the trial court err, notwithstanding [Father's] timely objection, in relying upon the Clinical Bonding Evaluation of Mildred H. Gordon, Ph.D., as evidence supporting termination of [Father's] parental rights?

Father's Brief at 5.[2]

Termination of parental rights is controlled by Section 2511 of the Adoption Act, which requires a bifurcated analysis.

Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. 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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S.A. § 2511) (citations omitted). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Instantly, we review the decrees pursuant to Section 2511(a)(2) and (b), which provide as follows:[3]

(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.A. § 2511(a)(2), (b).

To satisfy the requirements of Section 2511(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 Section 2511(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 the Interest of A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

With respect to Section 2511(b), the requisite analysis is as follows:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 2005 PA Super 340, 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 2008 PA Super 62, 946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the
extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

In his first issue, Father argues the record evidence was insufficient to support termination pursuant to Section 2511(a) because he made progress in satisfying his FSP goals of obtaining appropriate housing and income and because he is willing to continue to attend parenting classes and comply with his other FSP goals.[4] We disagree.

The trial court concluded that, "[w]hile Mother and Father may be willing to serve in the role of parents for these children, they are simply unable." Trial Court Opinion, 11/20/12, at 3. This conclusion is reasonable with regard to Father based on the following testimonial evidence.

Ms. George, the CYS caseworker, testified on direct examination:

[Counsel for CYS:] [W]ould you describe for the Court whether the parents have made any improvements or the observations that you've made of parents during the time that you've been working with them?
[Ms. George:] [Mother] and [Father] basically have remained the same. They're concerned about their children. They're anxious to see their children. They would like to have their children returned to them. Is it my observation that they're capable of caring for them? No.

N.T., 09/19/12, at 69.

Ms. Ogle, the caseworker from Berks County Partners in Parenting, testified that she has worked with Mother and Father supervising their visits with the Children and providing "hands-on" parenting instruction during their visits.[5] Id. at 26. Ms. Ogle testified that she "has been with [Mother] and [Father] for over a year-and-a-half and nothing has really changed since we started." Id. at 47. Ms. Ogle testified that, with respect to parenting instruction, Father is "willing to listen, [but] not always able to put [the parenting lessons] into practice." Id. at 56. Ms. Ogle clarified the parental skills that Mother and Father continue to lack, as follows:

[Guardian Ad Litem ("GAL"):] [I]n reading through your reports, it seems that a lot of your concerns were about very basic child care tasks, changing a diaper, wiping a runny nose, recognizing when a child is hungry and feeding them. Would that be correct?
[Ms. Ogle:] Yes.
[GAL:] And is it those really basic child care tasks that you are still needing to do prompting on a year-and-a-half after you started?
[Ms. Ogle:] Correct.
. . .
[GAL:] And do you have concerns about the parents' judgment, their ability to apply the principles that you're teaching them to new situations that they haven't run into before?
[Ms. Ogle:] Correct. And that's what I meant earlier about, say, when emergencies come up. They don't know what to do, even minor things.
[GAL:] . . . [I]s there anything that you feel you or anybody else could do that would give them the ability to apply parenting principles to new situations that they haven't run into before?
[Ms. Ogle:] No, I do not.

Id. at 54-55. Further, Ms. Ogle testified that she has concerns regarding Mother's and Father's ability to appropriately teach and stimulate the Children at their respective age levels. Ms. Ogle testified that Mother and Father are "good a[t] being playmates with their children, " but they "get very overwhelmed" with respect to handling the Children. Id. at 34. As such, Ms. Ogle testified she does not believe the parents should have unsupervised visits with the Children.

In addition, Ms. Ogle testified that Mother and Father received parenting lessons from Lois Good, also a caseworker with Partners in Parenting, which were held separately from their visits with the Children. CYS introduced into evidence reports that were prepared by Ms. Good, which demonstrated that Mother and Father: (1) did not regularly attend the scheduled parenting classes; (2) could not stay focused during the parenting lessons; and (3) had difficulty retaining information that was taught. Ms. Good closed their case for non-compliance in June of 2012.

Dr. Rotenberg, who performed a psychiatric evaluation of Mother and Father, stated in his report that "[n]either of these parents [has] the capacity to adequately engage in parenting responsibilities even at a minimally acceptable level." Dr. Rotenberg's Report (Exhibit 51), at 17. Dr. Rotenberg testified that the fact that the parents have essentially shown no significant improvement despite the provision of concentrated services to them for a year and a half supports his conclusion that nothing could help them become capable of parenting the Children.

Based on the foregoing record evidence, we discern no error of law or abuse of discretion by the trial court in terminating Father's parental rights pursuant to Section 2511(a)(2). The testimonial evidence by Ms. George and Ms. Ogle, in addition to reports prepared by Ms. Good, support the trial court's conclusion that while Father may be willing to serve in the role of parent for these children, he is "simply unable" to parent. Trial Court Opinion, 11/20/12, at 3. Moreover, Dr. Rotenberg's testimony and report indicated his conclusion that Father does not have the capacity to engage in parenting responsibilities and that nothing could help him become capable of parenting the Children. Thus, the record evidence overwhelmingly demonstrates that Father's repeated incapacity has caused the Children to be without essential parental care necessary for their physical and mental well-being, and that such incapacity cannot or will not be remedied.

In his second issue, Father argues the trial court abused its discretion in terminating his parental rights pursuant to Section 2511(b) because a bond exists between Father and the Children. Father argues he showed affection towards the Children, that the Children were excited to see him during visits, and that he loves the Children.

With respect to the nature and status of the parent-child bond, Ms. George testified that the Children have never inquired about their parents between visits nor asked to see their parents more regularly. N.T., 09/19/12, at 81-82. Ms. George testified that the Children look to their foster parents, not to Mother and Father, to have their needs met. She testified that the Children are "very bonded" to their foster parents. Id. at 68. She further testified that the best interest of the Children would be served by terminating Father's rights.

Ms. Ogle testified as follows:
[Father's counsel:] Can you describe the children's reactions to when they see their father?
[Ms. Ogle:] [M.L.W.] is very excited to see his parents. [R.L.W., Jr.], lots of times, will run over to daddy. [E.R.-H.W.], there really isn't a reaction.

Id. at 44. Ms. Ogle further testified the Children are "very excited to go to their foster parents" at the end of visits with Mother and Father. Id. at 55-56. Additionally, Ms. Ogle testified:

[Mother's counsel:] [A]re [the Children] more excited to see foster parents than their parents at the beginning and end of visits?
[Ms. Ogle:] For [R.L.W., Jr.] and [E.R.-H.W.], yes, they are more excited to see the foster parents. [M.L.W.] is pretty much equal.

Id. at 57.

Further, in the report of the bonding evaluation Dr. Gordon conducted of Mother, Father, M.L.W. and R.L.W., Jr., she concluded that a healthy bond does not exist between Mother and Father and the two older Children, that a healthy bond does not seem to be an option with the parents, that severing the bond would not be detrimental to the M.L.W. and R.L.W., Jr., and, instead, the constant lack of stability was most detrimental to them.

Thus, although there is evidence that M.L.W. and R.L.W., Jr., may feel affection for Father, this evidence is not sufficient to demonstrate a beneficial bond for purposes of Section 2511(b). This Court has explained:

. . . [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 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 its 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). Here, the record evidence supports the conclusion that M.L.W. and R.L.W., Jr., despite their affection for Father, do not have a healthy bond with Father and, thus, terminating the connection between them will not "destroy something in existence that is necessary and beneficial." See In re C.P., 901 A.2d 516, 523 (Pa. Super. 2006). Moreover, because there is no evidence of a parent-child bond between Father and E.R.-H.W., it is reasonable to infer that no bond exists. Instead, evidence demonstrates that all of the Children have a parent-child bond with their foster parents. See N.T., 09/19/12, at 68. Based on the totality of the record evidence, we discern no error or abuse of discretion by the trial court in concluding that termination of Father's parental rights would best serve the developmental, physical, and emotional needs and welfare of the Children. Therefore, Father's second issue fails.

In his third issue, Father argues the court erred when it allowed CYS to make an initial placement plan of adoption rather than making a good faith effort to reunify the family. Father argues CYS never made any reasonable efforts to reunify Father with the Children. The trial court determined that the Children's placement goal was adoption or subsidized permanent legal guardianship on April 20, 2011. Thus, the adequacy of CYS's efforts toward reunification was not a valid consideration in the termination proceedings. See In the Interest of A.L.D., 797 A.2d at 339, 341 (holding that "[b]y allowing [the Agency] to change its goal to adoption, the trial court has decided that [the Agency] has provided adequate services to the parent but that he/she is nonetheless incapable of caring for the child and that, therefore, adoption is now the favored disposition. . . . The adequacy of [the Agency's] efforts toward reunification is not a valid consideration at [the termination] stage, as the law allows [the Agency] to give up on the parent once the service plan goal has been changed to adoption.") (quotations omitted). For this reason, this issue is not a proper challenge to the order terminating Father's parental rights to the Children.

In his final issue, Father argues the trial court violated his guarantee of due process of law under the Fourteenth Amendment to the United States Constitution. Specifically, Father argues the court erred by admitting into evidence the bonding evaluation of Dr. Gordon, dated March 18, 2011, because she had subsequently died and was unavailable for cross- examination at the termination hearing. However, we find this issue to be waived as Father offered no objection to the introduction of Dr. Gordon's report at the termination hearing. See N.T., 09/19/12, at 58-59. See Pa.R.A.P. 302(a) (stating "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal."); MacNutt v. Temple Univ. Hosp., 932 A.2d 980, 992 (Pa. Super. 2007) (holding that in order to preserve an issue for appellate review, litigants must make timely and specific objections during trial). Thus, Father is entitled to no relief on this claim.

Based on the foregoing, we conclude the trial court did not abuse its discretion when it terminated Father's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b). Accordingly, we affirm the decrees.

Decrees affirmed.

Judgment Entered.


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