J-S33018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.J.K., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: D.L.K., FATHER                  :
                                               :
                                               :
                                               :
                                               :   No. 3536 EDA 2017

                     Appeal from the Order October 4, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000913-2017


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 11, 2018

        D.L.K. (“Father”) appeals from the order terminating his parental rights

to A.J.K. (“Child”). Because we conclude that the trial court did not abuse its

discretion in terminating Father’s parental rights, we affirm.

        Child, born October 2010, has two siblings, Z.L.K., born June 2001, and

C.K.1 On March 9, 2015, the Department of Human Services (“DHS”) received

a general protective services report alleging that Z.L.K. was truant, that the

school had attempted to contact her parents, that she was two school grades

below her grade level, and that there were concerns regarding the condition



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*    Former Justice specially assigned to the Superior Court.

1   C.K. was “about 20 years old” in 2015. N.T., 10/4/17, at 13.
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of the home.2 N.T., 10/4/17, at 10-11. DHS made approximately four

attempts to visit the home, and, although DHS observed people inside the

home on at least one occasion, no one responded. Id. at 11.

       Father and S.K. (“Mother”) continued to refuse DHS access to the home

until April 27, 2015, after DHS received police assistance and obtained a

break-down order from the trial court. Id. at 11-12. Once inside the home,

DHS discovered that the home was in deplorable condition. There was “trash

from the door all the way to the top of the top floor,” id. at 12, including

empty soda bottles, pizza boxes, broken toys, and dog waste, id. at 12-13.

The home had a “stench of dog, dog urine, feces, old food, [and] garbage.”

Id. at 19-20. The bathtub was filled with trash. Id. at 21. The children’s beds

did not have bedsheets, the refrigerator had no food, and the stove did not

work. Id. at 12-13. Further, the home’s garage contained car parts from floor

to ceiling. Id. at 12.

       DHS met with Z.L.K. and Child, both of whom were not well kept. Id. at

14, 20.3 Z.L.K. informed DHS that she had not had her hair done in a year or

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2 DHS had also received allegations that Z.L.K. was truant on January 13,
2012, and November 14, 2013. DHS was unable to contact the parents to
investigate the allegations.

3 DHS may have been able to speak with Z.L.K. and Child prior to April 28,
2015. See Trial Court Opinion, filed Jan. 24, 2018, at 4-5 (stating that on April
14, 2015, Father answered door and, although he did not allow DHS to enter
the home, DHS did speak with Children); Petition for Involuntary Termination
of Parental Rights, at Ex. A, Statement of Facts, filed 9/18/2017, at ¶ h
(same). The facts as outlined in this memorandum are from the testimony at
the hearing on the Petition for Involuntary Termination of Parental Rights.

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two and did not know the last time she had taken a bath. Id. at 20-21. DHS

noted that Child had bruising on different parts of his body. Id. at 14. Further,

Child had not received well-child visits or immunizations for the past two-to-

three years. Id. at 19.

       DHS obtained an Order for Protective Custody. The trial court

adjudicated Child dependent on May 19, 2015. Shortly after being removed

from the home, Child was placed with S.T. (“Foster Mother”).

       The trial court held numerous permanency review hearings following

Child’s placement. Father’s goals varied, but included: cleaning the home of

debris and other items that posed a safety threat to Child, visiting with Child,

applying for medical coverage, and attending individual therapy.

       On September 18, 2017, DHS filed a Petition for Involuntary

Termination of Parental Rights to Child.4 The trial court conducted a hearing.5

At the hearing, George Siti, a DHS worker, outlined the case’s history prior to

adjudication. N.T., 10/4/17, at 9-26. In addition, Dr. Erica Williams,

Psychologist and Director of Forensic Services, testified. She had conducted a

parenting capacity evaluation and an addendum parenting capacity evaluation

for Father. Id. at 27. Following a March 15, 2016 parenting capacity
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4 DHS also filed a petition to terminate Mother’s parental rights to Child, and
the trial court terminated Mother’s parental rights to Child on the same day it
terminated Father’s rights. Mother filed a Notice of Appeal, which is docketed
at 3534 EDA 2017.

5 For a complete factual history of this case and an extensive summary of the
evidence presented at the hearing, please see the Trial Court Opinion, filed
Jan. 24, 2010, at 1-33.

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evaluation, Dr. Williams opined that Father did not present with the capacity

to provide safety and permanency to Child. Id. at 46. She noted his non-

responsiveness to Z.L.K.’s truancy, his refusal to allow DHS in the home, his

projection of his issues onto others, and the conditions of the home. Id. at

46-47. Following a January 2017 parenting capacity evaluation, Dr. Williams

again opined that Father did not have the capacity to provide safety or

permanency for Child, noting that the same concerns from March 2016

continued to exist. Id. at 49. She noted that although Father was complying

with his objective to attend therapy, the compliance was “not translating into

[Father] addressing the issues of concern.” Id. at 54. She noted that in

therapy Father needed to focus on “understanding the role [he] played in the

children’s removal, taking accountability and ownership for [his] parenting

and the neglect that occurred and helping [him] work towards developing a

plan that that wouldn’t occur again.” Id. at 67.6

       Dr. Williams also conducted a bonding evaluation. Id. at 27. She noted

that Child hid behind Foster Mother when he saw Father and that Child stated

he did not want to live with Father. Id. at 51-52. She observed that Child

engaged with Father and allowed Father to tickle him, but that Child was

unresponsive when Father requested that he pick up the toys. Id. at 52-53.




____________________________________________


6 At the time of the evaluations, Dr. Williams had requested, but had not
received from NHS Human Services (“NHS”), Father’s mental health records.
N.T., 10/4/17 at 69-70.

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Dr. Williams opined that Child would not suffer irreparable harm if the trial

court terminated Father’s parental rights. Id. at 53.

      Reginald Nelson, the case manager at Catholic Community Services, a

Community Umbrella Agency, also testified. He stated that there were issues

in the current home, including that DHS observed drug paraphernalia in the

home and that it had concerns regarding the individuals living in the current

home. Id. at 75-76. Mr. Nelson stated he observed no issues with hoarding,

but did observe issues of cluttering. Id. at 77. He stated that the last of the

home improvements—installation of the fire alarm and fixing a light—had been

completed. Id. Mr. Nelson stated that Child struggles during the visits with

Father and he has no difficulty leaving at the end of a visit. Id. at 82-83. He

further testified that Child has a positive relationship with Foster Mother. Id.

at 85. He stated that terminating Father’s parental rights would be in Child’s

best interest, id. at 105, and that Child is secure, is in a safe environment,

and has a strong bond with his foster family. Id. at 85. Mr. Nelson noted that

Father does not call him to inquire about Child’s well-being. Id. at 86. He

further noted that Child made allegations that, before being removed from

Father and Mother’s home, he had been locked in the trunk of Mother’s car

and locked in his room. Id.

      Dr. Beverly Ingles, a psychologist, also testified. She sees Child in

therapy on a bi-weekly basis. Id. at 108. Dr. Ingles stated that Child is very

responsive to Foster Mother, and is very well bonded with her. Id. at 114. She

has observed that Child’s visits with his parents are very difficult for Child.

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Child has nightmares after the visits and states he does not like his parents

because they are bad. Id. at 114-15. She further testified that Child refers to

Father and Mother by their first names and refers to his foster parents as mom

and dad. Id. at 115. She opined that it would be harmful and have

“devastating effects” to remove Child from the foster home. Id. at 117.

      Foster Mother testified that when Child arrived he was “sad, frightened

and confused.” Id. at 122. She said Child was clingy, had nightmares, and

asked her to stay by his bed at night. Id. She stated that Child is much better

now, that her relationship with Child is excellent, and that he goes to her and

her husband with his fears and anxieties. Id. at 124.

      Father next testified. He stated Child enjoyed the visits with Father,

where they played games and had fun. Id. at 127-28. He noted Child became

cooler with him during visits at the Agency. Id. at 129. He stated he repaired

the lighting fixtures and fire alarm in the house in which he and Mother are

residing. Id. at 130. He obtained a certificate of completion from Project

Positive Parenting and attends therapy at NHS. Id. at 133, 136. Father

testified that he had rectified the hoarding issues and obtained medical

insurance. Id. at 145. Father also claimed the therapy enabled “[him] to

accept the ownership of the—of things that I’ve done as far as not ensuring

that my children went to school consistent as far as—my daughter especially.

Or ensuring that they saw doctors consistently.” Id. at 144. He said he

“owned” those facts, but could not “do anything about them right now because

I don’t actually have the children.” Id.

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      On October 4, 2017, the trial court terminated Father’s parental rights,

finding DHS presented clear and convincing evidence for termination of

Father’s parental rights under Sections 2511(a)(1), (2), (5), and (8) of the

Adoption Act, and that termination would be in Child’s best interest under

Section 2511(b). 23 Pa.C.S.A. § 2511(a)( 1), (2), (5), (8), (b). Father filed a

timely notice of appeal.

      On appeal, Father raises the following issues:

         1. Did the Department of Human Services (DHS) sustain the
         burden that Father’s rights should be terminated when there
         was evidence that Father had completed and/or had been
         actively completing [his] permanency goals?

         2. Was there was sufficient evidence presented to establish
         that it was in the best interest of the child to terminate
         Father’s parental rights?

Father’s Br. at 4 (trial court answers omitted).

      Father maintains the trial court erred in terminating his parental rights

because he had made progress toward completing his goals, his visits with

Child were appropriate, and Child was happy to see Father. He further argues

DHS did not present sufficient evidence to support a conclusion that

termination of parental rights would be in Child’s best interest.

      When reviewing orders terminating parental rights, we must “accept the

findings of fact and credibility determinations of the trial court if they are

supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting

In re Adoption of S.P., 47 A.3d 817, 826 (Pa.2012)). Where “the factual

findings are supported,” we review the decision “to determine if the trial court


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made an error of law or abused its discretion.” Id. We defer “to trial courts

that often have first-hand observations of the parties spanning multiple

hearings,” id., and will reverse a decision “for an abuse of discretion only upon

demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-

will,” id. (quoting In re Adoption of S.P., 47 A.3d at 826). We will not

reverse the trial court “merely because the record would support a different

result.” Id. (quoting In re Adoption of S.P., 47 A.3d at 827).

      The Pennsylvania Supreme Court has explained the reason for applying

an abuse of discretion to termination decisions:

         [U]nlike 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).

      To affirm the termination of parental rights, this Court need only agree

with the trial court’s determination as to any one subsection of section

2511(a), along with section 2511(b). In re B.L.W., 843 A.2d 380, 384

(Pa.Super. 2004) (en banc). Here, we conclude that the trial court properly

terminated Father’s parental rights pursuant to sections 2511(a)(2) and (b).



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      We will first review the trial court’s conclusion that termination was

proper under Section 2511(a)(2), which provides:

         (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.

23 Pa.C.S.A. § 2511(a)(2).

      To terminate parental rights pursuant to Section 2511(a)(2), the moving

party must produce clear and convincing evidence of the following: “(1)

repeated and continued incapacity, abuse, neglect or refusal; (2) such

incapacity, abuse, neglect or refusal has caused the child to be without

essential parental care, control or subsistence necessary for his physical or

mental well-being; and (3) the causes of the incapacity, abuse, neglect or

refusal cannot or will not be remedied.” See In re Adoption of M.E.P., 825

A.2d 1266, 1272 (Pa.Super. 2003). Further, we note that “[p]arental 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 his or her

physical and emotional needs.” See In re B., N.M., 856 A.2d 847, 855

(Pa.Super. 2004).




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      Here, in terminating Father’s parental rights, the trial court noted that

when DHS removed Child from the home, the home was uninhabitable due to

the “collection of junk and trash,” the children were unkempt, Z.L.K. had not

been attending school, and the children had not received medical care. N.T.,

10/4/2018, at 184. It further found that 30 months later, Father had not put

himself “in a position to understand [his] Children[, a]nd once understanding

them then be able to care for them.” Id. at 185. The court stated it did not

believe Father “benefitted one measure from all of the attendance at parenting

classes.” Id. at 186. Further, the court noted it did not have records or

testimony from Father’s therapist, and “[took] with a grain of salt everything

[Father] says about how well he’s adjusted.” Id.

      The trial court further referenced the objectivity of the case workers and

supervisor, noting they saw “things completely different than the parents

[saw] things.” Id. It noted the current home became appropriate only within

the preceeding few weeks and that the family “moved into another building

rather than address the mess that they had created” in the prior house. Id.

at 186-87. The court found parents did not take any concrete steps to put

themselves in a position to parent Child. Id. at 187. The trial court further

stated that “[f]rom the beginning when the Child was placed he became a

different child.” Id. The court did not believe that parents were capable of

recognizing the issues. Id. It referenced the experts’ opinions that the therapy

and education have not improved Father’s status as a parent, and noted that




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Father was “unconnected to the reality and that’s a safety factor for this Child

going forward.” Id. at 189-90. The trial court concluded:

         While they present this image that they’ve done everything
         they could it’s meaningless because all they did was attend
         sessions, have not demonstrated that they’ve benefitted
         from any of this education. [They h]ave not demonstrated
         that they understand these Children or are able to now
         parent these children and keep them safe and provide for
         their wellbeing going forward.

         I think the record is clear and convincing that they’re not
         able to parent [Child].

Id. at 188.

      We conclude that the trial court’s factual findings are supported by the

record and it did not abuse its discretion in terminating Father’s parental rights

under Section 2511(a)(2). The conditions that existed upon removal establish

“repeated and continued incapacity, abuse, neglect or refusal” that caused

Child “to be without essential parental care, control or subsistence necessary

for his physical or mental well-being.” Further, the record supports the court’s

conclusion that Father continued to lack the capacity to parent Child.

      We next address the trial court’s conclusion that termination would best

serve Child’s developmental, physical and emotional needs and welfare under

Section 2511(b). 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.

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         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).

      The focus in terminating parental rights under section 2511(b) is not on

the parent, but on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008

(Pa.Super. 2008) (en banc). Pursuant to section 2511(b), the trial court must

determine “whether termination of parental rights would best serve the

developmental, physical and emotional needs and welfare of the child.” See

In re C.M.S., 884 A.2d 1284, 1286 (Pa.Super. 2005). This Court has

explained that “[i]ntangibles such as love, comfort, security, and stability are

involved in the inquiry into [the] needs and welfare of the child.” Id. at 1287.

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.

      The trial court noted Mr. Nelson’s testimony that Child did not ask for

Father, referred to his parents by their first names, referred to his foster

parents as mom and dad, and seeks his foster parents for safety, comfort and

to meet his daily needs. Trial Court Opinion, filed Jan. 24, 2018, at 40. It

further noted that Dr. Ingles testified Child is well bonded to Foster Mother

and that Child did not want to visit his parents. Id. It also referenced the

bonding evaluation, which concluded Child would not suffer irreparable harm



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if the trial court terminated Father’s parental rights. Id. The trial court

concluded that termination would best serve the Child’s needs and welfare

and Child would not suffer irreparable harm if Father’s parental rights were

terminated. Id. at 40-41. We conclude that the record supports this

determination and the trial court did not abuse its discretion in terminating

Father’s parental rights.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




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