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[U] In re R.C.R.

Superior Court of Pennsylvania

January 14, 2014



Appeal from the Order of July 2, 2013 in the Court of Common Pleas of Philadelphia County, Family Court, at Nos. CP-51-AP-0000418-2013, CP-51-AP-0000419-2013.




R.R. ("Father") appeals from the orders entered on July 2, 2013, which terminated Father's parental rights to his son, R.C.R. (born in August 2003) and to his daughter, A.C.R. (born in July 1997) (collectively "the Children"). We affirm.[1]

The court made the following findings of fact:

On September 24, 2010, the Department of Human Services (DHS) received a Child Protective Serves (CPS) Report alleging that A.C.R. and her sister, A.R.2 were the victims of sexual abuse perpetrated by [Father] and that [J.R. (Mother)] knew about the abuse but failed to protect the children. The report also alleged that Father forced his daughters to watch child pornography and had a history of sexual abuse of children. The report stated that Father had been indicated as a perpetrator of sexual abuse of A.C.R. and A.R. for which he had served three months in prison. The report indicated that A.R. was fifteen years old at the time of the abuse and had a learning disability and that R.C.R. was seven years old and suffered from autism as well as a learning disability.
2 A.R. is currently eighteen years old and remains committed to DHS via a board extension. Her case was not before this Court on July 2, 2013.
In addition to the allegations of sexual abuse, it was alleged that Mother and Father hit the children on a daily basis, that Father possessed firearms in the home[, ] and that he was extremely violent. The report indicated that Father was a correctional officer at Curran-Fromhold Correctional Facility and that he had threatened to shoot his sister-in-law and blow up her home. Upon investigation, the CPS report was indicated with Father as the perpetrator of abuse and Mother as a perpetrator by omission.
On September 24, 2010, DHS visited the family's home and met with Mother, A.C.R. and R.C.R. DHS found the home in a deplorable condition and infested with roaches. Mother denied that she used corporal punishment to discipline her children and was unable to provide the contact information for a seventeen[-] year[-]old daughter who did not reside in the home.
On this same date, DHS implemented a Safety Plan signed by maternal cousins, which indicated that the three children, A.C.R., R.C.R., and A.R. would reside in the home of maternal cousins, that they would not permit the children to have contact with their parents, and that once the children's seventeen[-]year[-] old sister was located, they would ensure that she was sent to the home of a relative.
The following day, DHS met with the maternal cousins who were to care for the children and observed a bruise on R.C.R.'s arm and a bruise on A.C.R.'s back. DHS learned that [sexual abuse occurred] as recently as September 5, 2010. On September 27, 2010, DHS made a referral for the children to be interviewed by the Philadelphia Children's Alliance. The same day, DHS learned that maternal cousins were not willing to continue caring for R.C.R. and A.C.R. due to their behavior, but they would continue caring for A.R.
On September 28, 2010, DHS again met with [Mother, ] who denied that the children were being sexually abused by Father, stating that the children had made these allegations in the past and that they were lying. Mother confirmed to DHS that Father continued to reside with her.
Also on September 28, 2010, DHS obtained an Order of Protective Custody (OPC) for the children. At the shelter care hearing on September 30, 2010, the OPC was lifted, and the temporary commitment to DHS was ordered to stand. On October 8, 2010, an adjudicatory hearing was held, and temporary legal custody was transferred to DHS. DHS reported at that time that R.C.R. was placed in a foster home through Caring People Alliance; A.C.R. was placed through Women's Christian Alliance; and A.R. remained in kinship care. At the time of the adjudicatory hearing, parents were offered supervised visits with R.C.R. only, and sibling visits were to be arranged.
The initial Family Service Plan (FSP) meeting was held on October 27, 2010 at which time the goal for the children was reunification. The FSP objective for parents were stated as: 1) to eliminate the health and safety issues in the home; 2) to comply with all psychiatric and sex offender evaluations and resulting recommendations; 3) to sign authorization and release forms; and 4) to participate in parent education and/or sex offender treatment to learn how their behavior resulted in emotional and sexual injury to the children. Mother attended the FSP meeting.
At the permanency hearing before Master Barbara Zarsky on February 17, 2011, DHS reported that the children were residing in treatment foster care through Caring People Alliance; [R.C.R.] was receiving special education at Turbotville and medication management; and the girls were receiving sexual abuse treatment through Women's Christian Alliance. It was noted that Father was incarcerated in Bucks County and Mother was incarcerated at Riverside Correctional Facility.
At the permanency hearing on July 8, 2011, the Court noted that there was minimal compliance with the permanency plan by both Mother and Father. At the permanency hearing on December 2, 2011, the Court noted that there was minimal compliance with the permanency plan by Mother, and no compliance with the permanency plan by Father.
On March 1, 2012, DHS held an FSP revision meeting, and the goal for the children was changed to adoption. The revised FSP objectives for the parents were outlined as: 1) to participate in a mental health evaluation and follow through with the recommendations; 2) to attend parenting classes; 3) to seek, obtain and maintain employment; 4) to locate and occupy suitable housing for the family with adequate space and operable utilities. Mother did not attend the FSP meeting, and Father was incarcerated at the time and thus unable to attend. At the permanency hearing on March 2, 2012, parental visitation was suspended.

Trial Court Opinion ("T.C.O."), 8/28/2013, at 2-7 (citations to record omitted).

On August 28, 2012, DHS filed petitions to terminate involuntarily Father's and Mother's parental rights with regard to R.C.R. and A.C.R. On July 2, 2013, the trial court held a hearing on the petitions. Neither Father nor Mother was present at the hearing, but each was represented by counsel and participated via telephone. By orders entered on July 2, 2013, the trial court granted DHS's petitions and terminated Father's and Mother's parental rights.

In response to the order terminating his parental rights, Father timely filed notices of appeal on August 1, 2013. On that date, Father also filed concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and Pa.R.A.P. 1925(b).[2]

Father's issues on appeal are as follows:

1. Whether the Minor Children's out of Court statements are to be deemed as inadmissible Hearsay, and whether Counsel was thus "Ineffective" in failing to object to their admission into evidence[?]
2. Whether the Evidence was sufficient that Termination of Parental Rights would best serve the Needs and Welfare of the Minor Children, under 23 Pa.C.S. section 2511(b)[?]

Father's Brief at 5.

For ease of disposition, we address Father's second issue first. Father challenges the court's determination to terminate his parental rights. The standard and scope of review applicable in termination of parental rights cases are as follows:

When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree must stand. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge's decision the same deference that it would give to a jury verdict. We must employ a broad, comprehensive review of the record in order to determine whether the trial court's decision is supported by competent evidence.

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en banc) (internal citations omitted).

Furthermore, we note that the trial court, as the finder of fact, is the sole determiner of the credibility of witnesses and all conflicts in testimony are to be resolved by [the] finder of fact. The burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so.

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 2002) (internal citations omitted). "The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue." In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). If the trial court's findings are supported by competent evidence, we must affirm the court's decision, even if the record could support the opposite result. In re R.L.T.M., 860 A.2d 190, 191 (Pa.Super. 2004).

This Court has explained the proper analysis for a termination petition as follows:

[O]ur 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 after determining that the parent's conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interests of the child. Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent's conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child.

In re Adoption of C.L.G., 956 A.2d 999, 1004 (Pa.Super. 2008) (en banc) (citations omitted).

On appeal, we note that Father does not argue that the trial court erred in terminating his parental rights under section 2511(a)(1), (2), (5), and (8), as determined by the trial court. Rather, Father confines his appeal to the question of whether the trial court properly terminated his parental rights in accordance with 23 Pa.C.S.A. § 2511(b), which, as noted above, requires that the termination of parental rights is in the Children's best interest.

Thus, we focus solely upon a review of section 2511(b), which provides:

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. . . . 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.

Pursuant to section 2511(b), we must consider whether the termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005) (citation omitted). The trial court also must consider the nature and status of the parent-child bond, particularly the effect upon the child of permanently severing that bond. Id.

When evaluating a parental bond, "the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, Section 2511(b) does not require a formal bonding evaluation." In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010) (internal citations omitted). Although it is often wise to have a bonding evaluation and make it part of the certified record, "[t]here are some instances . . . where direct observation of the interaction between the parent and the child is not necessary and may even be detrimental to the child." In re K.Z.S., 946 A.2d 753, 762 (Pa.Super. 2008).

A parent's abuse and neglect are a relevant part of this analysis:

[C]oncluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child's feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent . . . . Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in 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).

Thus, the court may emphasize the safety needs of the child. See K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental rights, despite existence of some bond, where placement with mother would be contrary to child's best interests). "[A] parent's basic constitutional right to the custody and rearing of his or her child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of [the child's] potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (internal citations omitted).

In the instant case, Father contends that the trial court abused its discretion and erred as a matter of law in concluding that termination of his parental rights would serve the needs and welfare of R.C.R. and A.C.R. Father maintains that, although testimony was presented that both children did not desire contact with Father and wanted to be adopted, there is little evidence as to what effect adoption would have on them. Father's Brief at 11.

The record demonstrated that Father's prison sentence was a result of his conviction for rape by forcible compulsion of A.R., 18 Pa.C.S.A. § 3121(a)(1); unlawful contact with a minor, 18 Pa.C.S.A. § 6318(a)(1); endangering the welfare of a child, 18 Pa.C.S.A. § 4304(a)(1); and conspiracy, 18 Pa.C.S.A. § 903(c). The record also revealed that, at the time of the termination hearing, R.C.R. and A.C.R. had had no contact, including prison visitation, with Father for nearly three years. T.C.O. at 8.

At the termination hearing, Charlene Hightower, a DHS caseworker, testified that R.C.R. and A.C.R. would not suffer irreparable harm if Father's parental rights were terminated, and that a change of goal to adoption would be in the children's best interest. T.C.O. at 9; Notes of Testimony ("N.T."), 7/2/2013, at 29. Ms. Hightower also testified that R.C.R. and A.C.R. are living in a pre-adoptive home and have a strong emotional bond with their adoptive parent, who is able to meet the Children's needs and aid them in overcoming the abuse that they suffered in Father's care. T.C.O. at 9-10; N.T. at 28-29. Ms. Hightower further testified that R.C.R. and A.C.R. have "an extreme bond" with their foster parent, and can talk openly about any issues or concerns that they have. N.T. at 28. The foster parent helps the Children obtain any required help or services to assist in their recovery from Father's abuse. T.C.O. at 9; N.T. at 28. Ms. Hightower also noted that R.C.R. and A.R.C. told her that they did not wish to have any contact with Father and wished to be adopted by their foster parent. T.C.O. at 9. Ms. Hightower opined that R.C.R. and A.C.R. would not suffer irreparable harm if Father's parental rights were terminated. N.T. at 29.

The law is clear that the trial court is not required by statute or case law to utilize expert testimony or require a formal bonding evaluation when assessing the status of a parent-child relationship and the effect that severing it would have on a child. See Z.P., 994 A.2d at 1121. Social workers are qualified to offer their opinion with respect to a parent's capabilities, the quality of a parent-child relationship, the effect of severing the biological relationship, and what circumstances will best serve a child's needs and welfare to assist the trial court in arriving at a determination of the child's best interests.

In addition, to the extent that Father wants an opportunity to bond with the Children, this Court has held that "[t]he 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); C.L.G., 956 A.2d at 1007-08. Children's need for permanence in a safe environment trumps Father's right to custody. See B., N.M., 856 A.2d at 856. Therefore, after a review of the evidence, the trial court properly ruled that Children had formed a secure bond with their foster parent, and that it is unlikely that Father, who is serving a prison term of ten to twenty years, ever will remedy the conditions that led to the R.C.R's and A.C.R.'s removal or be able to establish a bond with the Children. T.C.O. at 8-9. Father himself never testified regarding any bond with the Children. Therefore, as the trial court's determinations concerning section 2511(b) are supported by competent evidence, we find no reason to disturb its decision on appeal.

As to Father's first issue concerning whether R.C.R.'s and A.C.R.'s out-of-court statements should have been deemed to be inadmissible hearsay, we hold that the issue is waived. This Court has held that issues not raised in the lower court are waived, and cannot be raised for the first time on appeal. In re C.P., 901 A.2d 516, 522 (Pa.Super. 2006); Pa.R.A.P. 302. Our review of the transcript demonstrates that no objection was made to the statements of the Children's wishes regarding contact with Father and adoption. N.T. at 29-30.

In the alternative, Father now argues that his counsel was ineffective for failing to object to the alleged hearsay. Father's Brief at 10. In In re: J.T., 983 A.2d 771, 774 (Pa.Super. 2009) (citations omitted), this Court stated that "[t]he right to counsel . . . is the right to effective assistance of counsel." Further, we have held that where an ineffective assistance of counsel claim is raised on direct appeal, "[W]e 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." Id. at 775 (internal quotation marks omitted).

In this case, having reviewed the evidence in Father's second challenge, we find that the hearing was fair, and that there was ample evidence to support the trial court's orders granting the termination of Father's parental rights without the complained-of statements. Although the trial court did consider Children's statements, T.C.O. at 9, there was ample other evidence showing that Children were bonded with their foster parent and that they would not be affected adversely by the termination of Father's parental rights. Thus, counsel's alleged ineffectiveness did not deprive Father of a fundamentally fair hearing.[3] Therefore, we grant Father no relief on this claim.

Orders affirmed.

Judgment Entered.

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