September 10, 2013
IN THE INTEREST OF: A.K., A MINOR. APPEAL OF: K.K., FATHER IN THE INTEREST OF: E.K., A MINOR. APPEAL OF: K.K., FATHER
Appeal from the Decree entered February 25, 2013, in the Court of Common Pleas of Philadelphia County, Domestic Relations, at No(s): CP-51-AP-000085-2013, CP-51-DP-0002047-2011, CP-51-AP-0000086-2013, CP-51-DP-0002046-2011.
BEFORE: PANELLA, OLSON, and PLATT [*] , JJ.
Father, K.K., appeals the decrees and orders dated and entered on February 25, 2013, which granted the petitions filed by the Philadelphia Department of Human Services ("DHS") to involuntarily terminate his parental rights to his two male, minor children with T.S. ("Mother"): E.R.K., a/k/a E.K., and A.R.K., a/k/a A.K. (collectively, "Children"), pursuant to the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b), and changed the permanency goal for the Children to adoption pursuant the Juvenile Act, 42 Pa.C.S.A. § 6351. We affirm.
The trial court set forth the factual background and procedural history of these appeals as follows:
The children [involved in this case], E.K. and A.K. were born respectively [in] December . . . [of] 2005 and September [of] 2007.
On October 28, 2003, the Department of Human Services received a General Protective Services report (GPS) regarding [M]other's present inability to provide proper food for [Mother's other] child [C.A.S.]. It also reported that [M]other failed to provide a safe living environment, had mental health issues and abused drugs and alcohol.
On November 11, 2003, the Department of Human Services received a General Protective Services report (GPS) regarding [M]other's mental health hospitalization and diagnosis of a schizaphrenic [sic] disorder. Furthermore, it also reported that [M]other failed to provide proper food for the child. Lastly, [M]other failed to provide a safe living environment and she abused drugs and alcohol.
On September 23, 2011, the Department of Human Services received a General Protective Services report (GPS) that [M]other was requiring C.A.S. to care for her sibling[s, Children herein, ] while [M]other attended weekly medical appointments. It also reported that [Mother] was not taking any medication. The report was substantiated.
On September 28, 2011, [the] Department of Human Services obtained an Order of Protective Custody (OPC) for C.A.S. After a hearing before the Honorable Walter Olszewski, he lifted the OPC and ordered a temporary commitment of C.A.S. to the Department of Human Service[s]. The [trial court] ordered that [M]other could have supervised visits at the discretion of C.A.S. The siblings of C.A.S.[, Children herein] were placed in the care of [Father].
On October 12, 2011, [the] Department of Human Services obtained an Order of Protective Custody after receiving a report of allegations [Children] were sleeping outside of [F]ather's home on trash bags. [Father] was allegedly intoxicated at the time of the incident.
After a hearing on October 14, 2011 for [Children] before the Honorable Alice Debow [sic], she lifted the Order of Protective Custody and ordered the temporary commitment of [Children] to [the] Department of Human Services.
The Department of Human Services held a Family Service Plan [(FSP)] meeting. The Family Service Plan objectives for [M]other and [F]ather were[:] (1) to meet with [the] counselor on a weekly basis to learn expected behavior for [the] [C]hildren[;] (2) [to] participate in evaluation for drug/alcohol abuse and (3) [to] maintain contact and communication with the [C]hildren.
The matter was then listed on a regular basis before Judges of the Philadelphia Court of Common Pleas – Family Court Division – Juvenile Branch pursuant to Section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351[, ] and evaluated for the purpose of determining or reviewing the permanency plan of the child with the goal of reunification of the family.
In subsequent hearings, the DRO's [Dependency Review Orders] reflect the [trial court's] review and disposition as a result of evidence presented addressing the lack of compliance with suitable housing, employment[, ] and drug and alcohol treatment.
Trial Court Opinion, 5/3/2013, at 1-2.
On February 11, 2013, DHS filed petitions for involuntary termination of the parental rights of Father, and for a change of the permanency goal for Children to adoption. On February 25, 2013, the trial court held a hearing on the petitions. At the hearing, DHS presented the testimony of its social worker, Kelayne Minus. N.T., 2/25/2013, at 3-11. The Child Advocate presented the testimony of the social worker for Jewish Family and Children Services ("JFCS" or the "Agency"), Amy Sesay. Id. at 39-47. Father, represented by counsel, testified on his own behalf. Id. at 52-58.
Ms. Minus testified that Children were removed from the care of Father for approximately twelve months, and that they were currently residing in the pre-adoptive home of their maternal grandmother ("Maternal Grandmother") through JFCS. Id. at 3-4.
Ms. Minus testified that Father's FSP objectives were to complete a parenting evaluation through the Assessment & Treatment Alternatives (ATA); to have a drug and alcohol assessment through the Clinical Evaluation (CEU); to provide drug and alcohol screens through the CEU; to provide parenting to Children through the Achieving Reunification Center (ARC); and to attend visitation with Children. Id. at 9. Ms. Minus testified that Father did not attend the ARC, and was dropped from the program for non-compliance. Id. When Father was later re-referred to the ARC through outreach, he also failed to comply. Id. She stated that Father had only two visitations with Children since they had been in care. Id. Father did not complete the parenting capacity evaluation, and did not attend either part of the evaluation scheduled through the ATA. Id. Father also did not comply with the recommendations of the CEU. Id. Father went to a drug screen on April 12, 2012, but never went to the CEU for an assessment. Id. at 10. Ms. Minus stated that, after the previous hearing, she had sent Father for an assessment at the CEU, but he did not show up. Id. Ms. Minus testified that, to the knowledge of DHS, Father did not comply with any other drug and alcohol services. Id. Father was not compliant with any of his FSP objectives. Id.
With regard to the welfare of Children, Ms. Minus testified that all three children, including Children at issue herein, were residing with Maternal Grandmother, and that they were doing well in the home. Id. She stated that Children were intelligent young children, who were doing well and attending school, and were happy to be in the same home together. Id. at 10-11. Further, Ms. Minus testified that the termination of the parental rights of Father was in the best interests of Children, so that Maternal Grandmother may adopt them. Id. at 11. She also stated that, when she saw Children on January 29, 2013, they were safe, and Maternal Grandmother was meeting all of their basic needs. Id.
With regard to the bond between Children and Maternal Grandmother, Ms. Minus testified that she observed a loving bond, and that Maternal Grandmother treats Children as her own and is very receptive of them. Id. at 12. Ms. Minus explained that there are cousins of Children who also reside in the home, and that Maternal Grandmother ensures that they all eat, are clothed, and are involved in activities. Id. She also takes them to church with her. Id. With regard to the bond between Children and Father, Ms. Minus testified that Children know who Father is and they speak about him. Id. at 13. She stated, however, that, because of Father's lack of consistent visitation with Children, they do not really bring him up in conversation. Id. at 14. Ms. Minus also testified that she did not believe there would be any detrimental effects on Children from the termination of their parents' parental rights. Id.
On re-direct examination, Ms. Minus testified that, initially, the case became known to DHS because of C.A.S.'s truancy, and it was determined that C.A.S. was serving as the caregiver for her younger siblings, Children. Id. at 29-30. Mother was given a mental health assessment under Section 302 of the Mental Health and Procedures Act. Id. at 30. See 50 Pa.C.S.A. § 7302. The core issues for the placement of Children in the care of Maternal Grandmother were Mother's mental health, and Father's drug and alcohol abuse, as DHS believed that he was abusing prescription drugs. Id.
On re-cross-examination by the Child Advocate, Ms. Minus stated that, at the time of Mother's mental evaluation, C.A.S. was living with Maternal Grandmother, and Children were residing at home with Father while Mother was hospitalized. Id. at 31-32. She explained that Mother was not hospitalized for a lengthy time. Id. at 31. Ms. Minus testified that Children were then removed from Father's care because it was believed that Father was intoxicated while caring for them, and that they were sleeping outside of the home on trash bags. Id. at 32-33. This was the second report about Father's intoxication while he was serving as the sole caregiver for Children. Id.
In response to questioning by Mother's counsel on re-cross-examination, Ms. Minus responded that it had been indicated that the parents were getting high together. Id. at 36. In response to re-cross-examination by Father's counsel, Ms. Minus stated that, in the hearing on the adjudication of dependency for Children, Children's aunt had testified that the parents were getting intoxicated on cocaine, and that one drug screen which Father had done had shown elevated results for alcohol. Id. at 37-38.
On direct examination by the Child Advocate, Ms. Sesay testified that she had been assigned to the case for twelve months. Id. at 39. Ms. Sesay testified that JFCS offered a schedule of visits to the parents, and she had supervised a visit between Father and Children, occurring in May of 2012. Id. at 40. She stated that Father had appeared a half-hour late for a second visit, which she also supervised. Id. at 41, 51. Ms. Sesay offered visitation contact information, but Father did not request any additional visits. Id. at 40-43. Ms. Sesay explained that Mother had arrived with Father for the visits, but that Mother had not visited with Children, stating that she had difficulty parking her vehicle. Id. at 40-42.
Ms. Sesay testified that Father and Mother had not progressed to unsupervised visitation because they were not attending the scheduled visits. Id. at 43. Ms. Sesay also testified that Mother makes threats, generally. Id. at 44-45. Maternal Grandmother obtained a restraining order, and does not permit Mother or Father in her home because Mother has entered the home, threatened individuals, and broken the television and other items. Id. at 45. Ms. Sesay observed Children in Maternal Grandmother's home, and stated that Maternal Grandmother meets their needs and assumes all of the parental responsibilities. Id. at 46.
On cross-examination by Mother's counsel, Ms. Sesay testified that she was aware that Mother and Father both suffer from physical disabilities, and both walk with canes. Id. at 47. Ms. Sesay stated that she had explained to Father and Mother that they could come to visits at the JFCS center, which has free parking in front of the building and handicap access, but they did not show up for visitation there. Id. at 48-49. Ms. Sesay also testified that the visitation schedule offered to the parents was weekly, from 4:00 p.m. to 5:00 p.m., from July of 2012 to October of 2012, and from October of 2012 to January 2013. Id. at 49.
On cross-examination by Father's counsel, Ms. Sesay testified that Father had not made threats on the only two occasions when she spoke with him, during the supervised visitations, and that he had never called her. Id. at 51. Ms. Sesay could not respond as to whether he appeared at the visitations in an intoxicated state. Id. at 51-52.
On direct examination by his counsel, Father testified that he had gone to the CEU to complete drug screens on four occasions. Id. at 53-54. He claimed that, on the third occasion, the CEU staff refused to complete the drug test for him without the DHS social worker being present, and that the DHS social worker refused to accompany him because of a situation with Mother. Id. at 53-54. Father also testified that he had been in a cast, on crutches, and in a wheelchair, because he had broken his hip and his neck, and had injured his left heel and had dislocated discs in his lower back. Id. at 55-56. Father claimed that he could not attend visitations with Children because of his condition, and, because he depended on Mother to transport him, and she always got into a conflict with the DHS staff. Id. at 55-56. Father testified that he was in the process of separating himself from Mother. Id. at 56. When asked if he believed that the termination of his parental rights would affect Children, Father responded that it would mean that he could not "see his kids." Id. at 57-58.
On cross-examination by counsel for DHS, Father admitted that he did not have the results of the four drug screens. Id. at 58-59. On cross-examination by the Child Advocate, Father admitted that he was aware that he was court-ordered to submit to the CEU for drug testing. Id. at 60-61. He also admitted that he was aware of the court order to submit to a parenting evaluation and to take a parenting class. Id. at 61. He claimed he had not completed either of these directives because of a refusal of DHS workers to cooperate with him, his medical problems, and Mother's behavior, from which he needed to separate himself. Id. at 61-63. On cross- examination by Mother's counsel, Father admitted that he drank a can of beer during lunch on the day of the hearing. Id. at 63. Father admitted that he had not attempted to separate himself from Mother. Id. at 65. Father also admitted that he had told DHS or the JFCS worker that he could not care for Children without Mother, but he claimed to have made the statement so he could get Children back. Id.
The trial court admitted into evidence Father's drug screen results from October 11, 2012, and April 18, 2012, and stated that the October test results were negative for alcohol and positive for opiates, and the April test was negative for all substances. N.T., 2/25/2013, at 66-67; Father's Exhibits Nos. 1 and 2; see also Supplemental Record, Exhibits A and B Father's Drug Test Reports dated October 11, 2012 and April 18, 2012.
On February 25, 2013, on the record at the close of the hearing, and in separate decrees and orders entered on that same date, the trial court terminated Father's parental rights, and changed the permanency goal for Children to adoption. The trial court appointed new counsel for Father, both on the record at the hearing and in a separate order. N.T., 2/25/2013, at 84-85.
On March 22, 2013, Father, through his new court-appointed counsel, filed notices of appeal from the termination decrees and goal change orders, along with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Father raises four issues on appeal for our consideration:
1. Did the Department of Human Services use reasonable efforts to reunify the [C[hildren with [F]ather?
2. Did the trial court err in terminating [Father's] parental rights under  Pa.C.S. Section 2511?
3. Did the [t]rial [c]ourt err in finding that termination best served the [C]hildren's development, physical and emotional need under  Pa.C.S. Section 2511(b)?
4. Was [F]ather's counsel ineffective and did such ineffectiveness of counsel cause the decree of termination?
Father's Brief, at 8.
We will consider Father's issues together, as they are interrelated. In his first issue examined, Father asserts that DHS failed to use reasonable efforts to reunify Children with him because DHS had a contentious relationship with Mother, upon whom he relied for his visitation with Children, and in order to attend appointments. He suggests that DHS personnel did not wish to have contact with Mother, so they failed to make alternate arrangements for Father that would not involve his being transported by Mother.
In his second issue, Father contends that it was apparent to any observer that he was having medical problems, as he appeared in court in a wheelchair, on crutches, or with a cane. Father asserts that his temporary physical disabilities prevented him from working on his FSP goals. Father admits that he made only two visits with Children since they have been in foster care with Maternal Grandmother. He argues, however, that, if his trial counsel had allowed him to testify more fully, he would have explained how his physical disabilities prevented him from working on his FSP goals. Father asserts that he never had a settled purpose of relinquishing his parental claim, nor has he refused to perform his parental duties, but, rather, suffers from debilitating injuries and has had a long recovery. However, because of his physical ailments, he was unable to work on his FSP goals without DHS or JFCS being more proactive in assisting him. Father contends that DHS could have brought Children to visit him at his home, hired a person to conduct the parenting capacity evaluation in his home, and provided parenting instruction to him in his home while Children were visiting. Additionally, Father asserts that his physical disability was temporary, that he has recovered, and that he is ready to remedy the situation.
Third, Father argues that DHS failed to present clear and convincing evidence that the termination of his parental rights would promote the emotional needs and welfare of Children. Father complains that the testimony of Ms. Minus did not establish how the termination of Father's parental rights would affect the developmental, physical and emotional needs of Children.
Finally, Father argues that his trial counsel rendered ineffective assistance by failing to elicit testimony from him concerning his temporary physical disability and his interaction with Children during visits, and as to whether the termination best served Children's developmental, physical, and emotional needs under Section 2511(b). Father contends that his counsel's ineffectiveness violated his constitutional guarantee to due process of law, and resulted in the termination of his parental rights.
We review an appeal from the termination of parental rights and a dependency order in accordance with 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 opinion)]. 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.
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).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
In a termination case, 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). Further, our Supreme Court accepted, without discussion, this Court's statement that the burden of proof is on the agency seeking the goal change. In re R.J.T., 9 A.3d at 1185 n.7.
Moreover, we have explained that:
[t]he 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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we will focus on Section 2511(a)(1):
Section 2511 provides, in relevant part, 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:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
23 Pa.C.S.A. § 2511(a)(1).
We have explained this Court's review of a challenge to the sufficiency of the evidence to support the involuntary termination of a parent's rights pursuant to Section 2511(a)(1) as follows:
To satisfy the requirements of Section 2511(a)(1), the moving party must produce clear and convincing evidence of conduct, sustained for at least the six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or a refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent demonstrate both a settled purpose of relinquishing parental claim to a child and refusal or failure to perform parental duties. Accordingly, parental rights may be terminated pursuant to Section 2511(a)(1) if the parent either demonstrates a settled purpose of relinquishing parental claim to a child or fails to perform parental duties.
Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, the court must engage in three lines of inquiry: (1) the parent's explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to [s]ection 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations omitted).
This Court has defined "parental duties" as such:
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this [C]ourt has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life.
Parental duty requires that the parent act affirmatively with good faith interest and effort, and not yield to every problem, in order to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more suitable or convenient time to perform one's parental responsibilities while others provide the child with . . . her physical and emotional needs.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
Moreover, this Court has instructed:
[t]o be legally significant, the [post-abandonment] contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) quoting In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999).
In its opinion, the trial court provided the following Section 2511(a)(1) analysis of the evidence in this case:
It is clear from the record that for a period of six (6) months leading up to the filing of the Petition for Involuntary Termination, [F]ather failed to perform any parental duties for[ C]hildren, E.K. and A.K. Furthermore, the [trial] court found by clear and convincing evidence that [F]ather failed to perform his parental duties. Testimony established that Father visited twice with E.K. and A.K. during their several months in care. (N.T. 2/25/13, pg. 9, 42)[.] Further[, ] testimony established that [F]ather did not request additional visits with the [C]hildren. (N.T. 2/25/13 pg[.] 42)[.]
A parent has an affirmative obligation to act in his child's best interest. As stated in Adoption of Hamilton, [549 A.2d 1291, 1295 (Pa. Super. 1988)], "to be legally significant, the contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child [relationship], and must demonstrate a willingness and capacity to under take [sic] the parental role." In re E.S.M.[, 622 A.2d 388, 395 (1993)].
In this matter, [ C]hildren have been in care for over fifteen months. (N.T. 2/25/13, pg. 15).
Trial Court Opinion, 5/3/2013, at 3.
We find that the trial court's determinations regarding Section 2511(a)(1) are supported by ample, competent evidence in the record. See In re Adoption of S.P., 47 A.3d at 826-827. The trial court considered that Children had been in care for fifteen months at the time of the hearing and order, as they had been removed from their parents' care and custody in October of 2011. The trial court also considered Father's post- abandonment contact, finding that, during the time that Children were in care, Father had attended only two of the numerous supervised visits offered him. Moreover, the trial court considered Father's explanation for his lack of post-abandonment contact was that his physical difficulties had allegedly caused him to use drugs and alcohol. The trial court also considered Father's explanation for his failure to complete his FSP objectives was that DHS workers would not assist him because of their reaction to Mother's behavior, and his need to separate himself from her. The trial court rejected Father's explanation as not credible.
In its opinion, the trial court found:
The testimony of [F]ather established he attended the present hearing under the influence of alcohol (N.T. 2/25/13 pg. 63). Secondly, [F]ather did not complete a parenting capacity evaluation (N.T. 2/25/13 pg. 9). Furthermore, the testimony indicated that [F]ather failed to comply with the [c]ourt[-]ordered drug and alcohol evaluations. (N.T. 2/25/13 pg[.] 60).
Trial Court Opinion, 5/3/2013, at 4.
Further, the trial court stated:
[I]n the instant matter, the social worker for the Department of Human Services testified credibly. Father's testimony regarding his drug and alcohol use was not credible. (N.T. 2/25/13 pg. 56, 62, 77)[.] [ F]ather'[s] testimony regarding his failure to complete his Family Service Plan objectives was inconsistent and contradictory. (N.T. 2/25/13 pg. 79).
Id. at 5.
We find no merit to Father's argument that DHS did not make reasonable efforts to assist him. We have instructed:
It is incumbent upon a parent when separated from his child to maintain communication and association with the child. This requires an affirmative demonstration of parental devotion, imposing upon the parent the duty to exert himself, to take and maintain a place of importance in the child's life.
In re G.P.-R., 851 A.2d 967, 976 (Pa. Super. 2004).
After our careful review of the trial court's application of the law to the facts of this case, we find no reason to disturb the trial court's conclusions. We have stated,
a "parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re N.M.B., 856 A.2d 847, 856 (Pa. Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005). Moreover, "the parent wishing to reestablish [his or her] parental responsibilities bears the burden of proof relative to post-abandonment contact." See In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa. Super. 2008) (en banc).
There is sufficient, competent, clear and convincing evidence in the record to support the trial court's conclusions with regard to the first two prongs of the aforementioned test in In re Z.S.W., 946 A.2d at 730.
After we determine that the requirements of Section 2511(a) are satisfied, we proceed to review whether the requirements of Section 2511 (b) are satisfied. See In re Adoption of C.L.G., 956 A.2d at 1009. Section 2511(b) provides:
(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(b). This Court has stated that the focus in terminating parental rights under Section 2511(a) is on the parent, but it is on the child pursuant to Section 2511(b). In re Adoption of C.L.G., 956 A.2d at 1008.
In reviewing the evidence in support of termination under Section 2511(b), our Supreme Court recently held:
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], [our Supreme 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., __A.3d__; (Slip Op. Nos. 7-11 WAP 2013, filed July 22, 2013); 2013 Pa. Lexis 1568 (Pa. July 22, 2013).
Regarding Section 2511(b), the trial court set forth the case law that provides that the best interest of the child is determined after consideration of the needs and welfare of the child, and that DHS must prove that termination is in the child's best interest by clear and convincing evidence. The trial court then found the following:
The testimony established the [C]hild[ren were] in a stable environment and adoption was in the best interest of the [C]hild[ren]. (N.T. 2/25/13 pgs. 13-14)[.]
In the instant matter, the testimony established that . . . [C]hild[ren] would not suffer any irreparable harm if [F]ather's parental rights were terminated. (N.T. 2/25/13, pg. 14)[.] [Children have not] had an opportunity to bond with [F]ather due to [Father's] lack of consistent visitation. (N.T. 2/25/13, pg. 9, 13-14). E.K. and A.K. have bonded with their [M]aternal [G]randmother. (N.T. 2/25/13, pgs. 10-12, 46)[.] The testimony described the relationship between [Children] and their [M]aternal [G]randmother as strong and loving[.] (N.T. 2/25/13, pg. 12).
Trial Court Opinion, 5/3/2013, at 3-4.
With regard to Section 2511(b), the trial court found that Father had only two visits with Children since they have been in foster care, and he made no effort to attend or re-schedule any other visits. The trial court specifically found that there is no bond between Children and Father that would be harmed by the termination of his parental rights. The trial court found, on the other hand, that there is a strong bond between Children and Maternal Grandmother, who wishes to adopt them so that they may be with their foster family on a permanent basis. The trial court appropriately made such a factual finding based on the testimony of the DHS social worker, Ms. Minus. We have stated that, when conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d at 1121. This Court has observed that no bond worth preserving is formed between a child and a natural parent where the child has been in foster care for most of the child's life, and the resulting bond is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).
Father failed to follow through on court referrals for a parenting capacity evaluation, consistent, supervised visitation with Children, and drug and alcohol treatment. Thus, Father failed to "exhibit [the] bilateral relationship which emanates from the parent['s] willingness to learn appropriate parenting . . . [and] drug rehabilitation." In re K.K.R.S., 958 A.2d 529, 534 (Pa. Super. 2008). He did not put himself in a position to assume daily parenting responsibilities so that he could develop a real bond with Children. In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).
As part of its bonding analysis, the trial court examined Children's relationship with their pre-adoptive caregiver. "[T]he strength of emotional bond between a child and a potential adoptive parent is an important consideration in a 'best interests' analysis." In re I.J., 972 A.2d 5, 13 (Pa. Super. 2009). In In re: T.S.M., our Supreme Court explained that the mere existence of a bond attachment of a child to a parent will not necessarily result in the denial of a termination petition, and that the court must consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents. Id., A.3d at; (Slip Op. Nos. 7-11 WAP 2013, filed July 22, 2013, at 28-29); 2013 Pa. Lexis 1568, at 47-48 (Pa. July 22, 2013) citing In re K.K.R.-S., 958 A.2d at 535, and In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
Here, the record demonstrates clear and convincing evidence that Children have developed a bonded relationship with their foster parent, Maternal Grandmother, who has cared for them since their placement in foster care. Maternal Grandmother provided for all of Children's needs. The DHS social worker, Ms. Minus, confirmed that Children are bonded to Maternal Grandmother, and would not be negatively affected by the termination of Father's parental rights. Hence, the trial court ruled that the termination of Father's parental rights was in Children's best interests. There is no such evidence concerning the bond between Children and Father. In fact, in In re: T.S.M., our Supreme Court recognized that where there is no clear, apparent bond between parent and subject child, there is no requirement for the county children and youth agency to prove the absence of a positive bond. In re: T.S.M., __A.3d at__; (Slip Op. Nos. 7-11 WAP 2013, filed July 22, 2013, at 29 n. 27); 2013 Pa. Lexis 1568, at 47-48 n.27 (Pa. July 22, 2013).
Pursuant to our Supreme Court's recent pronouncement in In re: T.S.M., we find competent evidence to support the trial court's determination that the termination of Father's parental rights would serve Children's best interests by allowing them to be with their foster family and their pre-adoptive foster parent, Maternal Grandmother, with whom they are bonded. Accordingly, there is sufficient, competent, clear and convincing evidence in the record to support the trial court's conclusions with regard to the third prong of the test in In re Z.S.W., 946 A.2d at 730. In re Adoption of S.P., 47 A.3d at 826-27. As we stated in In re Z.P., 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." Id. at 1125. Therefore, we find no merit to Father's argument that the trial court abused its discretion with regard to Section 2511(b).
Finally, we review Father's ineffectiveness argument. Where a party raises ineffective assistance of counsel in a termination of parental rights case, "we then review the record as a whole to determine whether or not the parties received a 'fundamentally fair' hearing; a finding that counsel was ineffective is made only if the parent demonstrates that counsel's ineffectiveness was 'the cause of the decree of termination.'" In re J.T., 983 A.2d 771, 775 (Pa. Super. 2009) (internal citations omitted). Accordingly, our review of the ineffective assistance of counsel claim is inextricably linked to our determination of whether the trial court's decrees and orders are supported by the record.
In light of Father's inaction in fulfilling his parental responsibilities, we do not deem Father's trial counsel ineffective for failing to present evidence that Father's failure to perform his parental duties was due to physical disability. Father's trial counsel was aware of the overwhelming evidence against Father because of Father's lack of action to act as a parent to the Children, and his failure to comply with his FSP objectives, including his parenting capacity evaluation, visitation, and drug and alcohol abuse objectives. In fact, Father came to the hearing after drinking a beer at lunch. We, therefore, find that Father has failed to establish that his trial counsel's alleged ineffectiveness was the cause of the termination decree. In re J.T., supra.
Moreover, we find no merit to Father's due process contention. "Due process requires nothing more than adequate notice, an opportunity to be heard, and the chance to defend oneself in an impartial tribunal having jurisdiction over the matter." In re J.N.F., 887 A.2d 775, 781 (Pa. Super. 2005). "Due process is flexible and calls for such procedural protections as the situation demands." In re Adoption of Dale A., II, 683 A.2d 297, 300 (Pa. Super. 1996) citing Mathews v. Eldridge, 424 U.S. 319, 334, (1976). As Father had notice and an opportunity to be heard, and also separate, appointed appellate counsel to make his ineffectiveness argument as to his trial counsel's assistance, we reject Father's argument.
Next, we turn to the change of permanency goal to adoption. Here, the trial court found, by clear and convincing evidence, that DHS met its statutory burden, and that it was in the best interest of Children to terminate Father's parental rights and change the permanency goal to adoption. The trial court found that the testimony established that the change in goal would best serve Children's safety, protection, mental, physical, and moral welfare, so that Maternal Grandmother may adopt them, and they may become a permanent part of their foster family. See Trial Court Opinion, 5/3/2013, at 5.
We could find that Father has waived any challenge to the propriety of the change in permanency goal to adoption by his failure to raise the issue of the goal change in his concise statement of errors complained of on appeal and in his brief on appeal. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006).
Nevertheless, to the extent that he argues that DHS failed to make reasonable efforts to reunify him with Children, we will review the goal change issue. We observe that, in a change of goal proceeding under the Juvenile Act, 42 Pa.C.S.A. § 6351, the best interests of the child, and not the interests of the parent, must guide the trial court. In re A.K., 936 A.2d 528, 532-534 (Pa. Super. 2007). The Juvenile Act requires DHS to make reasonable efforts to finalize the permanency plan in effect for the family before changing the permanency goal for the child. See 42 Pa.C.S.A. § 6351(f)(5.1).
Here, the trial court found that Father's testimony regarding his failure to complete his FSP objectives was inconsistent and contradictory. Trial Court Opinion, 5/3/2013, at 5. We find that the evidence supports the trial court's credibility determinations. In re Adoption of S.P., 47 A.3d at 826-827. After a careful review of the record in this matter, we find that there is competent, clear and convincing evidence in the record to support the trial court's finding that a change in the permanency goal to adoption is in Children's best interests. R.J.T., 9 A.3d at 1185 n.7, 1190-1191; see also In re A.K., 936 A.2d at 532-534.
Accordingly, we affirm the trial court's decrees and orders terminating Father's parental rights to Children and changing the permanency goal for Children to adoption.
Decrees and orders affirmed.