J-S01029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: H.M.M., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: R.M., JR., FATHER               :
                                               :
                                               :
                                               :
                                               :   No. 1553 MDA 2018

                Appeal from the Decree Entered August 17, 2018
    In the Court of Common Pleas of Centre County Orphans' Court at No(s):
                                     4306


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 13, 2019

       R.M., Jr. (Father) appeals from the decree involuntarily terminating his

parental rights to his minor child, H.M.M. (born March 2017) (Child), pursuant

to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b) of the Adoption Act. 1 After

careful review, we affirm.

       We adopt and summarize the trial court’s recitation of the facts, which

is supported by the record. See Trial Court Opinion, 10/16/18, at 2-9. We

note, briefly, by way of background, the following. Centre County Children

and Youth Services (“CYS”) has been involved with the family since 2010,

when Mother became pregnant with R.M., the couple’s first child.          CYS

caseworkers attempted to engage parents in preventative services, due to the

fact that Father was a registered sex offender with convictions for sexual
____________________________________________


1That same day, the court terminated the parental rights of L.M. (Mother).
Mother has not appealed the termination of her parental rights.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01029-19



assault, aggravated indecent assault, two counts of indecent assault, and two

counts of corruption of minors.    While parents participated briefly with in-

home parenting services, they eventually refused further assistance.

      Following R.M.’s birth in July 2010, she was immediately taken into

emergency custody by CYS caseworkers. In addition to Father’s convictions,

there were concerns regarding Mother’s physical and cognitive disabilities, and

her failure to acknowledge the potential risk to R.M. posed by Father. Despite

the entry of an aggravated circumstances order against Father, because

Father lived with Mother, he was allowed to participate in reunification services

along with Mother.

      At that time, the services consisted of parenting education sessions and

individual and family sessions.    Mother was not able to prepare bottles or

change diapers without direction from another adult, and required assistance

handling R.M. and understanding her needs. Mother was unable to retain this

information even when it was carefully explained to her.        With regard to

Father, caseworkers had significant concerns regarding his mental health and

stability, his failure to appropriately manage his seizure disorder, and his

failure to take prescription medications to treat his anger and mood disorders.

      Reunification services were provided for approximately twelve months,

but, after parents’ failure to make significant progress, services were

discontinued and a petition to involuntarily terminate Father’s and Mother’s

parental rights with respect to R.M. was filed. Rather than having their rights




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involuntarily terminated, Mother and Father voluntarily relinquished their

parental rights to R.M., who was later adopted by her foster family.

      In September 2015, CYS caseworkers learned that Mother was pregnant

with a second child. Ongoing assessments by caseworkers revealed that little

had changed regarding parents’ situation. Parents were living with the child’s

maternal      grandparents   (“Maternal   Grandparents”),   but   based   upon

caseworkers’ assessments of the interactions between parents and Maternal

Grandparents, there were no adults in the home who could ensure the safety

of a child.

      S.A.M., born in March 2016, was immediately taken into emergency

custody by CYS caseworkers. S.A.M. was placed into kinship foster care in

the same home as her older sister, R.M. Following the filing of a dependency

petition, S.A.M. was adjudicated dependent, and her placement goal identified

as adoption. That same day, an aggravated circumstances order was entered

against Father due to his prior convictions for sexual offenses against minors,

status as a sexually violent predator, and related registration and reporting

requirements. Reunification services were not provided to Father, although

he and Mother were allowed supervised visitation with S.A.M.

      Both parents struggled, during visitation with S.A.M., to provide for her

needs and accomplish basic child care tasks, including changing her diaper

and clothes, recognizing her needs, and feeding her. Additionally, in October

2016, Father advised CYS caseworkers that he had stopped treating with his

sex offender counselor at Project Point of Light, and would begin seeing a new

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counselor. However, he refused to sign a release to allow CYS to gain more

information regarding his treatment.

       While S.A.M.’s case was still pending, CYS caseworkers received a

referral that Mother was pregnant with a third child. However, both Mother

and Father repeatedly denied that Mother was pregnant. Parents canceled a

March 2017 visitation with S.A.M., claiming that Mother was scheduled to have

a tubal ligation at Hershey Medical Center. However, Hershey Medical Center

then informed CYS caseworkers that Mother had given birth to Child through

a scheduled Cesarean section. Shortly after Child’s birth, CYS caseworkers

took her into emergency custody, and she was placed in kinship foster care

with her biological sisters.

       On March 21, 2017, CYS filed a petition to terminate Mother’s and

Father’s parental rights with regard to S.A.M.   The petition was eventually

granted, following a hearing, on January 17, 2018.2 With regard to Child, she

was adjudicated dependent in March 2017, and her permanency goal was

established as adoption. An aggravated circumstances order was once more

entered against Father. Parents were offered bi-weekly visits for one hour,

separate from visits with S.A.M., but parents chose to visit both children at

the same time.


____________________________________________


2Both Mother and Father appealed the termination of their parental rights,
and this Court affirmed the termination decrees. See In re S.A.M., 195 A.3d
1026 (Pa. Super. 2018) (unpublished memorandum).



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       In March 2018, CYS filed petitions to terminate Mother’s and Father’s

parental rights to Child. The court convened a hearing on the petitions on

August 14, 2018. Father, represented by counsel, testified on his own behalf.

Child was represented by Parviz Ansari, Esquire, as legal counsel.3

       Elena Taylor, CYS caseworker, testified that, since Child’s placement,

Father’s sex offender counseling attendance has remained inconsistent. As

noted above, for some time he refused to sign necessary release forms.

Following Child’s birth, Father did sign a release, but then ceased treating with

that counselor. The counselor informed caseworkers that he had seen Father

on seven occasions, but had not received any information from Father’s

previous counselor.        Subsequently, Father informed caseworkers he had

returned to Project Point of Light, but once more refused to sign a release.

Additionally, Father was not managing his seizure disorder, and continued to

suffer from seizures. Father refused to release information to caseworkers

regarding his medical treatment or whether he had received a clearance from

his doctor that he was able to safely hold Child.

       Visitations with Child continued to show the same issues that Father had

had in visitation with R.M. and S.A.M., namely, that he was not able to

____________________________________________


3  Attorney Ansari had been appointed as both legal counsel and guardian ad
litem for Child. See N.T., 8/14/18, at 5. He represented to the court that,
given the young age of the child, there was no conflict between Child’s legal
and best interests. Id.; see also In re T.S., 192 A.3d 1080 (Pa. Super.
2018) (noting that where there is no conflict between child’s best and legal
interests, a guardian ad litem may serve dual roles and still satisfy the child’s
statutory right to counsel in involuntary termination proceedings).

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understand when Child was hungry, tired, or needed a diaper change.

Further, due to his seizure disorder, Father could not hold Child. Parents had

not stabilized their living situation; between June 2017 and August 2018, they

lived in a shelter in Tyrone, Pennsylvania; in Altoona, Pennsylvania with

maternal grandparents; and planned to move to Osceola Mills, Pennsylvania,

in the early fall.

      Ms. Taylor further testified that Child is doing well in her foster home, is

on track developmentally at the time of the hearing, and is walking and

talking. Child is strongly bonded with her foster mother, and looks to foster

mother for support instead of her biological parents. Child refers to foster

mother as “mama” or “mom.”           Additionally, Child is placed with her two

biological siblings and is bonded with them as well. Ms. Taylor believed that

the termination of Father’s parental rights would allow Child the opportunity

for permanency, would not have a detrimental impact on Child, and was in

Child’s best interests.

      Father testified that he denied Mother’s pregnancy because he did not

believe it himself.       Father claimed he was reluctant to sign releases of

information for CYS because he had previously had his identity stolen and had

“gotten weird letters in the mail.” Father claimed he was attending counseling,

and asserted that his lapses in attendance were due to his inability to receive

medical rides. Father denied that he and Mother were incapable of caring for

Child, although he admitted he had never spent any time alone with Child.

Father also contended that his sister should be considered as an adoptive

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resource, though she had never been presented as a resource prior to the

termination hearing.

       At the conclusion of testimony, the orphans’ court terminated Father’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), (a)(5), (a)(8), and (b).

Father timely appealed and filed a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

       On appeal, Father raises the following issues for our review:

       1. Did the trial court incorrectly find clear and convincing evidence
       existed to terminate Father’s parental rights pursuant to 23
       Pa.C.S.A. [§] 2511(a)(2), (5), and (8) where no assessment[] was
       conducted, but instead the Agency merely relied on the lack of
       progress Father made in a prior case years before?

       2. Did the trial court incorrectly determine that sufficient evidence
       was presented to terminate Father’s parental rights?4

See Father’s Brief at 2 (unnecessary capitalization and suggested answers

omitted).




____________________________________________


4 Father’s statement of errors complained of on appeal phrases this issue, “The
[trial court] erred in terminating Father’s parental rights where insufficient
evidence was presented to meet the requirements of the grounds submitted.”
See Pa.R.A.P. 1925(b), 9/14/18, at 1. As Father does not state clearly that
he is challenging the court’s Section 2511(b) findings, he risks waiver of this
issue. See Krebs v. United Ref. Co. of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (stating that a failure to preserve issues by raising them
both in the concise statement of errors complained of on appeal and statement
of questions involved portion of the brief on appeal results in a waiver of those
issues); see also In re Adoption of R.K.Y., 72 A.3d 669, 679 n.4 (Pa. Super.
2013) (declining to address subsection 2511(b) where the appellant did not
make an argument concerning that subsection). However, as discussed
supra, even if not waived, this argument is without merit.

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      We review cases involving the termination of parental rights according

to the following standards.

      The 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) (internal citations and quotations

omitted).

      Termination requires a bifurcated analysis:

      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) (citations omitted). As CYS

argues that it proved by clear and convincing evidence that grounds for

termination existed under 23 Pa.C.S.A. § 2511(a)(2), we focus our analysis

on subsection (a)(2) and (b).


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      The relevant subsections of 23 Pa.C.S.A. § 2511 provide:

      (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.

      To satisfy the requirements of Section § 2511(a)(2), the moving party

must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;

(2) that such incapacity, abuse, neglect or refusal caused the child to be

without essential parental care, control or subsistence; and (3) that the causes

of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”

See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998).             The

grounds for termination are not limited to affirmative misconduct, but concern

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parental incapacity that cannot be remedied.        In re Z.P., 994 A.2d 1108,

1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward

the reasonably prompt assumption of full parental duties. Id.

        Here, Father argues that the orphans’ court erred in granting the petition

and terminating his parental rights because CYS did not prove the presence

of the conditions leading to termination at the time the petition was filed, but

relied on evidence from years earlier. See Father’s Brief at 6-7. Father argues

that, despite the entry of an aggravated circumstances order against him, he

was entitled to reunification services because he was provided such services

during the pendency of R.M.’s dependency. Id. at 7. Father argues that,

because CYS failed to offer reunification services, the agency was not in a

position to adequately determine the abilities or deficiencies of Father relative

to Child. Id. at 8.

        Father raised this same issue in his appeal from the termination of his

parental rights to S.A.M. In that case, a prior panel of this court observed

that:

        Father claims that the finding that termination was proper under
        Section 2511(a) was based on information from Father’s
        involvement with CYS with a prior child and that CYS failed to
        present evidence that he has current inability to parent Child. We
        disagree.

        Here, the trial court found aggravated circumstances as to Father
        based on his convictions. Aggravated Circumstances Order, filed
        March 17, 2016; see 42 Pa.C.S.A. § 6302 (defining aggravated
        circumstances). The trial court further found that CYS need not
        engage in reasonable efforts to reunify Father and Child. See
        Aggravated Circumstances Order.


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      The trial court noted that the “record is replete with testimony
      that most all of the concerning circumstances and conditions
      existing when services were provided for R.M. continued to exist
      on the birth of S.A.M. and thereafter.” TCO at 13. The trial court
      reasoned that termination was proper, in part, because Father
      refused to cooperate with CYS by not providing information
      regarding his psychological and medical treatment, “despite many
      concerns about his mental and physical conditions and how those
      conditions impact his ability to parent.” Id. at 12. The trial court
      further noted that Father failed to show “progress with respect to
      the limitations on his ability to meet the basic needs of an infant
      or young child despite the services provided to him during
      supervised visits.” Id. at 12-13.

      The trial court’s factual findings are supported by the record, and
      the findings support the trial court’s conclusion that Father had a
      continued incapacity that caused Child to be without parental care,
      control or subsistence, and that the cause of the incapacity could
      not be remedied. The trial court did not abuse its discretion in
      finding grounds for termination of parental rights existed under
      Section 2511(a)(2).

In re S.A.M., 195 A.3d 1026, at *4-5 (Pa. Super. 2018) (unpublished

memorandum).

      In the instant case, the situation remains almost exactly the same as it

did in January 2018 when Father’s rights to S.A.M. were terminated, and in

August 2018, when the termination decree was affirmed.              Father has

continued to refuse to cooperate with CYS, has not shown that he is treating

his psychological and medical conditions, and has not progressed with respect

to the limitations on his ability to meet the basic needs of an infant. Due to

the aggravated circumstances order, CYS was not required to provide

reunification services to him, despite the fact that they were offered with

respect to Father’s oldest child. See also In re D.C.D., 105 A.3d 662, 672

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(Pa. 2014) (noting that reasonable reunification efforts are unnecessary to

support termination of parental rights pursuant to Section 2511(a)(2) and

(b)).

        Accordingly, we discern no error in the orphans’ court’s finding that

competent, clear, and convincing evidence supported the termination of

Father’s parental rights pursuant to Section 2511(a)(2), based upon his

continued incapacity – his status as a registered sex offender, his inability to

meet the basic needs of an infant, and his failure to provide proof he is treating

his psychological and medical conditions – that resulted in Child being without

essential parental care, the cause of which “cannot or will not be remedied.”

See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.

        Next, we must consider whether Child’s needs and welfare will be met

by termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121. “In

this context, the court must take into account whether a bond exists between

child and parent, and whether termination would destroy an existing,

necessary and beneficial relationship.” Id. The court is not required to use

expert testimony, and social workers and caseworkers may offer evaluations

as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.

        We have stated:

        [b]efore granting a petition to terminate parental rights, it is
        imperative that a trial court carefully consider the intangible
        dimension of the needs and welfare of a child—the love, comfort,
        security, and closeness—entailed in a parent-child relationship, as
        well as the tangible dimension. Continuity of the relationships is
        also important to a child, for whom severance of close parental

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      ties is usually extremely painful. The trial court, in considering
      what situation would best serve the child[ren]’s needs and
      welfare, must examine the status of the natural parental bond to
      consider whether terminating the natural parents’ rights would
      destroy something in existence that is necessary and beneficial.

Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.

2000)). The trial court may equally emphasize the safety needs of the child

and may consider intangibles, such as the love, comfort, security, and stability

the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,

103 (Pa. Super. 2011).      Additionally, the court may emphasize the safety

needs of a child. See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).

Where there is no evidence of a bond between the parent and child, it is

reasonable to infer that no bond exists. Id. “[A] parent’s basic constitutional

right to the custody and rearing of . . . her child is converted, upon the failure

to fulfill . . . 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).

      Here, Father argues that the court erred in terminating his parental

rights because there was insufficient evidence that termination best suited the

needs and welfare of Child. See Father’s Brief at 8-9. Father contends that

the evidence established a bond between Child and Father, and that no

bonding analysis was conducted. Id. Father seems to imply that the court

did not consider the parent/child bond in rendering its decision. Id. at 9.




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      Initially, we note that Father’s characterization of the evidence and the

court’s analysis is inaccurate. In the instant case, the court observed that:

      In addition to assistance from [CYS], the foster mother has
      facilitated contact and visits between [Child] and Mother and
      Father. Nevertheless, there is no evidence of a reciprocal bond
      between Father and [Child]. Thus, the [c]ourt determined that
      the termination of Father’s parental rights would not destroy an
      existing relationship necessary and beneficial for the child.

See Trial Court Opinion, 10/16/18, at 14-15.         The record supports this

conclusion. Child has been in care since her birth; she knows Father only

through supervised visitation in tandem with her sister, S.A.M., biweekly for

one hour at a time. During these visits, Father is unable to physically hold or

care for Child. Child does not look to Father for her needs during visits, but

to her foster mother. She does not refer to Father as “dad” or any other

specific name. Ms. Taylor testified that Child does not know Father as her

father at this time. Father denied this, and testified that Child does call him

“daddy” because S.A.M. calls him “daddy.”        Regardless, there is no other

evidence of record to support the contention that any kind of bond exists

between Father and Child. See K.Z.S., 946 A.2d at 763 (where there is no

evidence of a bond, it is reasonable to assume no bond exists).

      In contrast, the orphans’ court observed

      [Child] is developing well in her foster home and was on track
      developmentally at the time of the August, 2018 hearing. She
      was walking and beginning to talk at that time. [Child] has a very
      good relationship with her foster mother. [Child] calls her foster
      mother “Mama” or “Mom” and looks to her for guidance and when
      she needs something. [Child’s] foster mother has facilitated
      supervised visits with Mother and Father. During the visits, when

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      [Child] was distressed or needed comfort, she went to her foster
      mother support instead of Father (or Mother). [Child’s] foster
      mother has provided for her physical and emotional needs since
      her discharge from the hospital just after her birth. [Child] is
      bonded with her full biological siblings, with whom she has lived
      since being released from the hospital following her birth. [Child]
      has also bonded with the other two children in her foster mother’s
      home. [Child’s] foster home is the only home she has ever known.

See Trial Court Opinion, 10/16/18, at 9-10 (citations to the record omitted).

Accordingly, the court concluded that it was in Child’s best interests to remain

in her foster home, where she could achieve stability, permanency, and where

her physical and emotional needs were met.

      We discern no abuse of discretion in that conclusion. Accordingly, clear

and convincing evidence supports the orphans’ court’s termination of Father’s

parental rights under Sections 2511(a)(2) as well as the Section 2511(b)

findings that there was no bond between Father and Child, and that adoption

would best serve Child’s needs and welfare. See Z.P., 994 A.2d at 1126-27;

K.Z.S., 946 A.2d at 763.

      Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2019




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