J-S30030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: W.A., A MINOR                       :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
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    APPEAL OF: J.P., FATHER                    :     No. 67 WDA 2018

                   Appeal from the Decree December 8, 2017
               In the Court of Common Pleas of Allegheny County
                Orphans' Court at No: CP-02-AP-0000186-2016

BEFORE:      BENDER, P.J.E., STABILE, J., and STRASSBURGER*, J.

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

        J.P. (“Father”) appeals from the decree entered December 8, 2017, in

the Court of Common Pleas of Allegheny County, which terminated

involuntarily his parental rights to his minor son, W.A. (“Child”), born in

December 2006.1 After careful review, we affirm.

        The Allegheny County Office of Children, Youth and Families (“CYF”) has

a lengthy history of involvement with this family dating back to September

2011.     N.T., 12/8/17, at 57.         CYF received its most recent referral on

November 28, 2014, which alleged housing issues, medical neglect, and poor

parenting skills on the part of Mother.            Id. at 60-61.   CYF conducted an

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* Retired Senior Judge assigned to the Superior Court.

1 The trial court also terminated the parental rights of W.A.’s mother, L.A.
(“Mother”). Mother appealed the termination of her parental rights at Superior
Court docket number 48 WDA 2018. We address her appeal in a separate
memorandum.
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investigation, which revealed that Mother was intellectually limited and

appeared to be hoarding food. Id. at 61. In addition, Child’s younger half-

brother, J.A.A., had been hospitalized several times for reactive airway

disease, and Mother was failing to administer his medication properly. Id. at

61, 112. CYF referred Mother for in-home services. Id. at 62.

      CYF obtained an emergency custody authorization for Child on June 26,

2015, after an incident during which J.A.A. “fell down and cut his lip open and

chipped his tooth.”   Id. at 63.   CYF directed Mother to take J.A.A. to the

hospital, but she failed to do so. Id. CYF was also concerned that Mother’s

home was cluttered and dirty, and that she was failing to provide adequate

supervision for Child and ensure his safety. Id. at 63-64.

      Meanwhile, CYF made contact with Father. Id. at 65. Father was living

separately from Mother with Child’s paternal grandmother. Id. However, CYF

concluded that Father would not be an appropriate caregiver. Id. Father’s

home had several safety issues, and a CYF parenting assessment revealed

“that he would not be able to parent unless he had somebody within earshot

of him.” Id. Child was adjudicated dependent on August 15, 2015.        Id. at

66.

      On October 20, 2016, CYF filed a petition to terminate Father’s parental

rights to Child involuntarily. The trial court conducted a hearing on December




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8, 2017, after which it entered a decree terminating Father’s parental rights.2

Father timely filed a notice of appeal on January 5, 2018, along with a concise

statement of errors complained of on appeal.

       Father now raises the following question for our review: “Did the trial

court abuse its discretion and/or err as a matter of law in concluding that CYF

met its burden of proving by clear and convincing evidence that termination

of [Father’s] parental rights would best serve the needs and welfare of the

Child pursuant to 23 Pa.C.S.[A.] §[]2511(b)?” Father’s Brief at 4.

       We review Father’s issue mindful of our well-settled standard of review:

       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) (citations and quotation marks

omitted).




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2 In a single sentence at the conclusion of his brief, Father alleges that the
trial court erred by failing to appoint legal counsel for Child. To the contrary,
Child had legal counsel during the termination hearing, and his counsel
continues to represent him on appeal.

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      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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).

      In this case, the trial court terminated Father’s parental rights pursuant

to Section 2511(a)(2), (5), (8), and (b), which provides as follows:

      (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.

                                      ***

            (5) The child has been removed from the care of the
            parent by the court or under a voluntary agreement
            with an agency for a period of at least six months, the


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           conditions which led to the removal or placement of
           the child continue to exist, the parent cannot or will
           not remedy those conditions within a reasonable
           period of time, the services or assistance reasonably
           available to the parent are not likely to remedy the
           conditions which led to the removal or placement of
           the child within a reasonable period of time and
           termination of the parental rights would best serve the
           needs and welfare of the child.

                                    ***

           (8) The child has been removed from the care of the
           parent by the court or under a voluntary agreement
           with an agency, 12 months or more have elapsed from
           the date of removal or placement, the conditions
           which led to the removal or placement of the child
           continue to exist and termination of parental rights
           would best serve the needs and welfare of the child.

                                    ***

     (b) Other considerations.--The court in terminating the rights
     of a parent shall give primary consideration to the developmental,
     physical and emotional needs and welfare of the child. The rights
     of a parent shall not be terminated solely on the basis of
     environmental factors such as inadequate housing, furnishings,
     income, clothing and medical care if found to be beyond the
     control of the parent. With respect to any petition filed pursuant
     to subsection (a)(1), (6) or (8), the court shall not consider any
     efforts by the parent to remedy the conditions described therein
     which are first initiated subsequent to the giving of notice of the
     filing of the petition.

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

     In his brief on appeal, Father concedes that CYF presented clear and

convincing evidence that his parental rights should be terminated pursuant to

Section 2511(a).   Father’s Brief at 9 (“CYF, the petitioner, did clearly and

convincingly establish threshold grounds        for termination pursuant to



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23 Pa.C.S.[A.] §[]2511(a)(2).”). Moreover, Father failed to include Section

2511(a) in his concise statement and in his statement of questions involved.

See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (holding that

the appellant waived Section 2511(a) by failing to develop it in her brief, and

that she waived Section 2511(b) by failing to include it in her concise

statements and statement of questions involved). Therefore, we need only

consider whether the trial court abused its discretion by terminating Father’s

parental rights pursuant to Section 2511(b).3       The requisite analysis is as

follows:

       Section 2511(b) focuses on whether termination of parental rights
       would best serve the developmental, physical, and emotional
       needs and welfare of the child. As this Court has explained,
       Section 2511(b) does not explicitly require a bonding analysis and
       the term ‘bond’ is not defined in the Adoption Act. Case law,
       however, provides that analysis of the emotional bond, if any,
       between parent and child is a factor to be considered as part of
       our analysis. While a parent’s emotional bond with his or her child
       is a major aspect of the subsection 2511(b) best-interest analysis,
       it is nonetheless only one of many factors to be considered by the
       court when determining what is in the best interest of the child.

              [I]n addition to a bond examination, the trial court can
              equally emphasize the safety needs of the child, and
              should also consider the intangibles, such as the love,
              comfort, security, and stability the child might have
              with the foster parent. Additionally, this Court stated
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3 We remind the trial court that Section 2511(a)(5) and (8) does not provide
an appropriate basis to terminate Father’s parental rights, because Child was
not removed from Father’s care as the statute requires. See In re C.S., 761
A.2d 1197, 1200 (Pa. Super. 2000) (en banc) (“Termination under subsection
2511(a)(5) was not appropriate here because the record reflects that C.S. was
never in Appellant’s care and, therefore, could not have been removed from
his care.”).

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              that the trial court should consider the importance of
              continuity of relationships and whether any existing
              parent-child bond can be severed without detrimental
              effects on the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting

In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and

citations omitted)).

        Here, Father argues that the trial court abused its discretion by

concluding that termination of his parental rights would best serve Child’s

needs and welfare.       Father’s Brief at 7-14.     Father alleges that the court

conducted an improper Section 2511(b) analysis, by focusing on his failings

as a parent, and on the quality of Child’s foster parents, rather than the effect

that terminating his parental rights would have on Child. Id. at 7, 12-14.

        In its opinion, the trial court found there is no possibility that Father will

ever be able to care for Child, due to his significant intellectual limitations and

inability to live independently, among other things.           Trial Court Opinion,

2/6/18, at 10-11. The court further found that Child has “a ‘relationship’ of

sorts with . . . Father,” but that this relationship is not so substantial that

severing it would subject Child to a negative psychological impact. Id. at 11.

The court reasoned that Child has been in care for more than two and a half

years, and that Father has had only sporadic contact with him during that

time.    Id. at 9.   In addition, Child is benefiting from the care of his pre-

adoptive foster parents, who can provide him with the loving and stable

environment he needs. Id. at 11-12.



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      After a thorough review of the record in this matter, we conclude that

the trial court did not abuse its discretion. During the termination hearing,

CYF presented the testimony of psychologist, Neil Rosenblum, Ph.D.         Dr.

Rosenblum testified that he conducted a series of psychological evaluations

involving Father, Child, and Child’s foster parents between August 2016 and

November 2017.       N.T., 12/8/17, at 8-9, 18, 21, 23.      Based on these

evaluations, Dr. Rosenblum opined that Father lacks the capacity to parent

Child. Id. at 24. He emphasized Father’s “very definite limitations in his own

personal functioning and continued dependency on other people to provide

him with support and help in taking care of himself.” Id. Father exhibits a

long-standing history of intellectual limitations. Id. at 23. Moreover, Father

has no employment history and he has never been able to live independently.

Id. at 24.

      Concerning Child’s relationship with Father, Dr. Rosenblum testified that

Child has a “familiarity” with Father, “more like a peer-to-peer relationship,”

but not a parent/child bond. Id. at 23. He continued, “[I]t’s a peripheral

relationship.   In my opinion, [Child] can take it or leave it.   It’s not been

something that’s consistent in his life.” Id. Dr. Rosenblum did not believe

that severing Child’s relationship with Father would cause him severe trauma.

Id. at 25-27. He described Father’s interactions with Child as follows:

      . . . . I mean, [Child] knows his dad. They seem to have some
      physical similarities and things in common with one another in
      terms of their looks and appearance.



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             Father was also, you know, someone who was pretty flat,
       lacking in enthusiasm, very passive in his interaction with [Child].

             When guided into certain activities by me during the
       session, he was able to follow through and play some games with
       [Child], but he seemed to know very little about his school, about
       his special education needs, about his therapy.

             I got the impression that [F]ather comes and spends time
       with [Child], but, again, had very limited -- had definite limitations
       in his parenting capacity and his ability to really understand or
       respond effectively to [Child] and his developmental issues.

Id. at 21-22.4

       Dr. Rosenblum also praised Child’s foster parents. Id. at 10-11, 18-20,

25. He testified that the foster parents “are very observant, very responsible

and very attentive to [Child’s] needs. . . . [T]here’s no question that his

current foster home placement has been extremely beneficial to [Child] and

has helped him to improve his ability to function and respond to different

portions of the environment more effectively.” Id. at 10-11. Dr. Rosenblum

recommended that adoption by the foster parents would be consistent with

Child’s needs and welfare. Id. at 25.

       Thus, the record supports the trial court’s findings pursuant to Section

2511(b). Father’s intellectual limitations and inability to live independently

render him incapable of parenting Child.          Moreover, while Child has a

relationship with Father, this relationship is merely peripheral and is not a



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4 The record indicates that Father missed many of his visits with Child. CYF
caseworker, Vickie Naccarato, testified that Father attended only twenty-six
out of fifty-three scheduled visits. N.T., 12/8/17, at 101.

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necessary and beneficial parent/child bond. Child is now in a pre-adoptive

foster home, which has been extremely beneficial for him.         Child’s foster

parents are supportive of his needs, and can provide him a safe and stable

environment.

      While Father contends that the trial court should not have focused on

his parental incapacity and the quality of Child’s foster parents when

conducting its Section 2511(b) analysis, this argument is specious. As we

stated above, Child’s relationship with Father was only one of many factors

for the court to consider. C.D.R., 111 A.3d at 1219. The court was free to

consider any other factors relevant to Child’s needs and welfare, including

Father’s inability to provide appropriate care, and the love, comfort, security,

and stability that Child will receive in his foster home. Id. at 1219-20.

      Based on the foregoing, we affirm the trial court’s December 8, 2017

decree terminating Father’s parental rights to Child involuntarily.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2018




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