J-S39015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: R-J.C.K. A/K/A R.J.K., L.K.,               IN THE SUPERIOR COURT OF
MINORS                                                  PENNSYLVANIA

APPEAL OF: R.K.
                                                       No. 132 WDA 2017


              Appeal from the Order Entered December 19, 2016
              In the Court of Common Pleas of Allegheny County
                           Orphans' Court at No(s):
                              CP-02-AP-032-2015
                              CP-02-AP-033-2015


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

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 23, 2017

        R.K. (Father) appeals from the order entered on December 19, 2016,

that granted the petition filed by Allegheny County Children, Youth and

Families (CYF) to involuntarily terminate his parental rights to R-J.C.K. and

L.K. We affirm.

        In its opinion, the trial court set forth the history of this case, as

follows:

        R[-]J.C.K. was born in November, 2010 to R.R.H. (“Mother”).
        L.K. was born in October, 2011 to Mother. The birth certificates
        of both children list R.K. as the Father. The children came to the
        attention of CYF in 2012 and CYF opened an investigation
        following reports of domestic violence between Mother and
        Father, reports that siblings of R[-]J.C.K. and L.K. had suffered
        physical injuries requiring hospitalization while in parental care,
        and reports that the interior of the parental home was in such
        disorderly condition as to present a safety risk. Subsequently,
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*
    Retired Senior Judge assigned to the Superior Court.
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     on February 15, 2013, following Mother’s reports of domestic
     violence and ensuing petition for protection from abuse (“PFA”)
     against Father, together with Mother[’s] having incurred
     separate criminal charges, CYF removed the children from the
     care of their parents and in May, 2016, when R[-]J.C.K. was just
     over two years old, and L.K. just over one year old[,] CYF placed
     the children in foster care with a maternal great aunt and uncle,
     where they continue to reside. [CYF] filed dependency petitions
     on March 3, 2013, and on March 6, 2013, this [c]ourt
     adjudicated the children dependent.

        i. First Petition for Termination of Father’s Parental Rights

           On February 4, 2015, CYF filed petitions for termination of
     the parental rights of Mother and Father. This [c]ourt conducted
     a hearing thereon on April 10, 2015. By order dated May 12,
     2015, this [c]ourt granted CYF’s petition to terminate Mother’s
     parental rights. However, that same day, this [c]ourt entered an
     order denying CYF’s petition to terminate Father’s parental
     rights, concluding that CYF had failed to demonstrate by clear
     and convincing evidence that grounds for termination of Father’s
     rights existed.

           On June 6, 2015, R[-]J.[C.]K. and L.K., through their
     guardian ad litem [(GAL)], filed notices of appeal with the
     Pennsylvania Superior Court from this [c]ourt’s order denying
     CYF’s petition to terminate Father’s parental rights. On June 22,
     2015, Mother filed a separate notice of appeal from this [c]ourt’s
     order granting CYF’s petition to terminate her parental rights.
     On December 22, 2015[,] … the Pennsylvania Superior Court
     affirmed this [c]ourt’s order denying CYF’s petitions to terminate
     Father’s parental rights. Additionally, on December 30, 2015[,]
     … the Pennsylvania Superior Court affirmed this [c]ourt’s order
     terminating Mother’s parental rights.

        ii. Second Petition for Termination of Father’s Parental Rights

           On June 13, 2016, CYF filed a second petition for
     termination of Father’s parental rights. This [c]ourt conducted a
     hearing thereon on December 16, 2016. That same day, this
     [c]ourt entered orders terminating Father’s parental rights to R[-
     ]J.C.K. and L.K. Father filed a notice of appeal on January 9,
     2017. On January 24, 2017, R[-]J.C.K. and L.K., through their


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         [GAL], filed an application to quash, which the Superior Court
         denied without prejudice by order dated February 16, 2017.[1]

Trial Court Opinion (TCO), 3/12/17, at 2-4.

         Following the rendition of the history of this case quoted above, the

trial    court   discussed    the    applicable   law    and   the   testimony   and

documentation presented at the hearing that formed the basis for its

conclusion that Father had failed to take the steps necessary to accomplish

reunification, i.e., that CYF had proven that Father’s parental rights should

be      terminated pursuant to        23   Pa.C.S. §     2511(a)(2), (5) and (8).

Specifically, the court provided an extensive discussion of Dr. Neil

Rosenblum’s testimony of his interactional evaluation of the children, their

foster parents and of Father.         TCO at 7-11.      The court also discussed the

testimony of Sharon Martin, a caseworker for CYF, who corroborated Dr.

Rosenblum’s testimony, and indicated that during the almost four years that

the children were in the care of the foster parents, Father “failed to

demonstrate a commitment to providing consistency and stability or an

ability to provide long-term parental care and supervision to the children.”

Id. at 12 (citing N.T., 12/16/16, at 44-71). Ms. Martin also indicated that

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1
   This Court’s order, dated February 16, 2017, that denied the GAL’s motion
to quash, allowed for the quashal issue to be either raised in a party’s brief
or by filing a new application that would be directed to this merits panel.
Nothing has been received in accordance with the February 16, 2017 order.
Moreover, a review of the record reveals that Father’s appeal was timely
filed in that the trial court’s order was entered on December 19, 2016, and
the appeal was filed on January 19, 2017. See Pa.R.A.P. 903(a).



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“CYF has no record that Father pursued his family service plan goals which

included    that    he    obtain    appropriate      housing,    receive   mental    health

treatment, obtain employment, receive parenting services, and create a

stable environment within which the children would be able to reside.” Id.

(citing N.T. at 46).

        The court also discussed the testimony of Jessica Clark, director of the

care center, who supervised the visits between Father and the children.

Furthermore,        the   trial    court   provided    information     gleaned      at   two

permanency review hearings, held on October 28, 2015, and October 17,

2016.     The court noted in the year between the two permanency review

hearings, “Father failed to take any significant steps towards attaining the

security and stability necessary for the children to be placed in his care.”

Id. at 14.     The court also found that since denying the first termination

petition, “CYF has presented credible evidence and testimony, that, since

then,    Father’s    actions      (or   lack   thereof)   have    hampered    efforts     at

reunification, and strained the already tenuous bond that children had with

Father, as evidenced by Father[’s] speaking negatively of the foster parents

to the children in a manner that threatened the children’s sense of safety

and stability and negatively impacted their wellbeing.” Id. Furthermore, in

its conclusion, the court stated:

        Based on the foregoing evidence and testimony, this [c]ourt
        concludes that CYF proved by clear and convincing evidence that
        termination of Father’s parental rights best served the needs and
        welfare of the children pursuant to § 2511(b). Although a bond
        exists between Father and the children and Father exhibited an

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      interest in parenting the children, in reliance on the evidence
      discussed herein, this [c]ourt found that Father’s ongoing
      parental deficiencies demonstrated an inability or unwillingness
      to provide for the children’s essential parental care, control or
      subsistence. Moreover, the children lack a parental bond with
      Father, and rely on their foster parents for their needs.
      Accordingly, this [c]ourt concludes that children’s welfare and
      needs would be best served by termination of Father’s parental
      rights, and respectfully requests that its December 16, 2016
      order be affirmed.

Id. at 15.

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

      I. The trial court erred in finding that [CYF] had proved grounds
      for termination under Pa.C.S.[] [§] 2511(a)(2), (5) and (8)[.]

      II. The trial court erred in finding that [CYF] had proved by clear
      and convincing evidence that the condition which led to the
      removal of the child[ren] had not or could not be remedied
      within a reasonable period of time.

      III. The trial court erred in finding that [CYF] had proved by
      clear and convincing evidence that termination of the [Father’s]
      parental rights would best serve the developmental, physical and
      emotional needs and welfare of the child[ren] as required by
      Pa.C.S.[] [§] 2511(b).

Father’s brief at 6.

      We review an order terminating parental rights in accordance with the

following standard:

            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 we would give to a jury
      verdict. We must employ a broad, comprehensive review of the

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      record in order to determine whether the trial court’s decision is
      supported by competent evidence.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:

      The 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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

The trial court is free to believe all, part, or none of the evidence presented

and is likewise free to make all credibility determinations and resolve

conflicts in the evidence.     In re M.G., 855 A.2d 68, 73-74 (Pa. Super.

2004).      If competent evidence supports the trial court’s findings, we will

affirm even if the record could also support the opposite result.       In re

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

      We are guided further by the following: Termination of parental rights

is governed by Section 2511 of the Adoption Act, which requires a bifurcated

analysis.

      Our 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 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

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      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) (citing 23 Pa.C.S. § 2511,

other citations omitted). 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. R.N.J., 985 A.2d at 276.

      With regard to Section 2511(b), we direct our analysis to the facts

relating to that section. This Court has explained that:

      Subsection 2511(b) focuses on whether termination of parental
      rights would best serve the developmental, physical, and
      emotional needs and welfare of the child. In In re C.M.S., 884
      A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
      “Intangibles such as love, comfort, security, and stability are
      involved in the inquiry into the needs and welfare of the child.”
      In addition, we instructed that 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. However, in cases where there is no evidence of a
      bond between a parent and child, it is reasonable to infer that no
      bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
      2008).    Accordingly, the extent of the bond-effect analysis
      necessarily depends on the circumstances of the particular case.
      Id. at 763.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).

      The trial court here terminated Father’s parental rights pursuant to

section 2511(a)(2), (5), (8) and (b). In order to affirm, we need only agree

with the trial court as to any one subsection of section 2511(a), as well as

section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). Father’s brief provides argument regarding all three subsections of



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section (a). We have chosen to address and analyze the court’s decision to

terminate Father’s parental rights under section 2511(a)(2) and (b), which

provide 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.

         ...

      (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. § 2511(a)(2), (b).

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

must produce clear and convincing evidence regarding the following

elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;

(2) such incapacity, abuse, neglect, or refusal caused the child to be without

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

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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). The grounds for termination of parental

rights under section 2511(a)(2), due to parental incapacity that cannot be

remedied, are not limited to affirmative misconduct; to the contrary, those

grounds may include acts of refusal as well as incapacity to perform parental

duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

      The thrust of Father’s argument, relating to section 2511(a)(2), is that

“he has substantially remedied the conditions which led to his children being

removed.” Father’s brief at 15. Specifically, Father contends that the family

service plan goals, which centered on housing, domestic violence, parenting,

and maintaining contact with the children were met. He claims that he no

longer has a substance abuse problem, that he has obtained employment

and housing and that he has addressed parenting and domestic violence

issues.   Father also relies on the caseworker’s testimony that he has

maintained contact with her, has consistently visited with the children, and

has acted appropriately during the visits. He further claims that the children

have enjoyed the visits and have not exhibited any fear of him. Father also

relies on Dr. Rosenblum’s testimony that Father had exhibited perseverance

in pursuing the relationship with the children despite obstacles.     Despite

these assertions, Father   does   acknowledge    that   he   never   provided




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documentation with regard to employment, housing and his claim that he

had addressed parenting and domestic violence issues.

      The GAL, in her brief, counters Father’s claims by asserting that he has

not complied with the goals set for him in order for his reunification with the

children.   The GAL notes the lack of documentation as to his housing

arrangement, indicating that he has lived with relatives throughout the

pendency of this case.    The GAL also claims that Dr. Rosenblum’s report

identified various mental health issues and the fact that Father “has not

engaged in mental health treatment as he believes it is a waste of time.”

GAL’s brief at 13 (citing N.T. at 20-21).     The GAL further contends that

Father has not attended domestic violence counseling, despite the fact that

he was removed from the family residence by police and incarcerated.

      The trial court’s opinion, which addresses all three of Father’s issues

together, sheds light on some of Father’s claims, namely, those that concern

Father’s interaction with the children at the supervised visitations.       With

regard to R-J.C.K., the court stated that

      Dr. Rosenblum testified that during the evaluations, R[-]J.C.K.
      “referred to [his foster parents] as mom and dad” and indicated
      that “R[-]J.C.L. didn’t really relate to [Father] as his dad[.]”
      N.T., 12/16/16, at 10. Rather, R[-]J.C.K. viewed Father as
      “someone he visits” and with whom he had only a “casual
      relationship, not a strong attachment,” although R[-]J.C.K. did
      indicate that he enjoyed visiting Father “because he gets candy
      and can play around and do what he wants.” N.T., 12/16/16, at
      10, 12.

            Dr. Rosenblum further testified that he received reports
      from foster parents that after R[-]J.C.K.’s visits with Father, R[-

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       ]J.C.K. experienced “nightmares and sleep difficulties …
       sometimes wetting his bed in response to visits.”              More
       specifically, according to Dr. Rosenblum, foster parents and R[-
       ]J.C.K.’s therapist reported to him that following visits with
       Father, R[-]J.C.K. “struggled with a lot of trauma-related
       symptoms … nightmare, sleep difficulties, fear of the dark and
       closets and bugs, and having a lot of crying spells and difficulties
       at the time of his visit[.]”     N.T., 12/16/16[,] at 11.        Dr.
       Rosenblum indicated that he believed that various factors
       contributed to R[-]J.C.K.’s behaviors, but testified that R[-]J.C.K.
       “is definitely struggling with many symptoms consistent with
       PTSD.” N.T., 12/16/16, at 14.

TCO at 7.

       The court also discussed some of Dr. Rosenblum’s testimony that

related to L.K.’s relationship with foster parents and with Father. Specifically

the court stated that Dr. Rosenblum testified

       that [L.K.] had “a very strong attachment to her aunt and uncle
       [foster parents] whom she referred to as her mom and dad.”
       N.T., 12/16/16, at 15. In contrast, with respect to Father whom
       she referred to as her “other dad”, she stated, “I cry. I don’t
       want to go to the visits” and indicated resistance to spending
       time with him, although she had difficulty articulating her
       reasons. Id. She did state, however, that she enjoyed visiting
       Father because she “enjoys the candy and the games,” and Dr.
       Rosenblum testified that L.K. “seemed to paint a mixed picture
       of [Father] saying he’s nice but he’s also bad” although she did
       assert “clearly … that she does not want to go” to visits with
       Father.

Id. at 8.

       The court then explained that since the time that it had denied CYF’s

first petition to terminate Father’s parental rights, CYF presented evidence

that

       Father’s actions (or lack thereof) have hampered efforts at
       reunification, and strained the already tenuous bond that

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      children had with Father, as evidence by Father[’s] speaking
      negatively of the foster parents to the children in a manner that
      threatened the children’s sense of safety and stability and
      negatively impacting their wellbeing. [] Moreover, despite
      having the opportunity to give priority to the task of creating a
      stable and secure environment for the children to reside with
      him, Father has neglected to do so. This [c]ourt cannot wait
      indefinitely for Father to make progress towards being able to
      parent.

TCO at 14.

      Accordingly, the court concluded that CYF carried its burden of proving

that grounds for the termination of Father’s parental rights existed and that

conditions for removal of the children could not be remedied in a reasonable

amount of time. The court also concluded that the termination best served

the needs and welfare of the children. We agree and note that our review

reveals that the record supports the court’s findings and conclusions. Father

has failed to take advantage of the opportunities provided to him and has

failed to convince this Court otherwise.    Thus, we conclude that he is not

entitled to any relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017




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