J-S08001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: S.L.L., A MINOR          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
    APPEAL OF: J.L., FATHER
                                                      No. 2967 EDA 2018


              Appeal from the Decree Entered September 11, 2018
              In the Court of Common Pleas of Philadelphia County
                 Family Court at No(s): CP-51-AP-0000039-2018


    IN THE INTEREST OF: S.L.L., A MINOR          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
    APPEAL OF: J.L., FATHER
                                                      No. 2969 EDA 2018


              Appeal from the Decree Entered September 11, 2018
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): CP-51-DP-1000206-2016


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 17, 2019

        J.L. (Father) appeals from the September 11, 2018 decrees that granted

the petitions filed by the Philadelphia Department of Human Services (DHS)

to involuntarily terminate Father’s parental rights to S.L.L. (Child) (born in

January of 2013) and to change the goal for Child to adoption.1, 2 After review,

we affirm.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 These appeals were consolidated sua sponte by per curiam order of this
Court, as all of these matters involve related parties and issues. Order,
1/10/19.

2 The parental rights of Child’s mother, L.W. (Mother), were terminated by
separate decree on September 11, 2018. Mother has not filed an appeal.
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      The trial court provided the following factual and procedural background

of this case, stating:

             The family became known to [DHS] on January 10, 2013
      when DHS received a substantiated General Protective Services
      (“GPS”) report, which alleged that Mother and Child [tested]
      positive for cocaine at Child’s birth. On May 24, 2016, DHS
      received a GPS report alleging that Father had custody of [] Child
      after being removed from Mother’s care. The GPS report also
      alleged that Father used drugs and allegedly sexually assaulted a
      female relative. On May 26, 2016, DHS attempted to visit
      [F]ather’s home but could not locate Father and Child. On May
      31, 2016, DHS located Father and determined that he was
      homeless and that [] Child stayed nights with Father’s maternal
      grandmother. On June 10, 2016, an Adjudicatory Hearing was
      held and Child was adjudicated dependent. On August 4, 2016,
      Dr. Kai Syversten, PhD[,] conducted a psychological evaluation of
      Father. Father was lethargic and nonresponsive during this
      evaluation.     As a result of the evaluation, Dr. Syversten
      recommended that Father (1) receive outpatient psychotherapy
      and psychiatric medication to treat depression; (2) Father submit
      to drug testing; (3) Father obtain housing and (4) that Father
      comply with DHS recommendations. On September 7, 2016, the
      Community Umbrella Agency (“CUA”) held a Single Case Plan
      (“SCP”) meeting. The goals identified for Father were to (1)
      comply with visits; (2) to complete three random drug screens;
      (3) to make visits with the Child and (4) receive mental health
      treatment.     The underlying Petition to Terminate [F]ather’s
      Parental Rights was filed on January 16, 2018 due to Father[’s]
      failing to meet his SCP objectives. On September 11, 2018, the
      court ruled to terminate Father’s parental rights to Child pursuant
      to 23 Pa.C.S.[] § 2511(a)(1)(2)(5)(8) and found that termination
      of Father’s parental rights was in the best interest of Child
      pursuant to 23 Pa.C.S.[] § 2511(b). Father filed the instant Notice
      of Appeal on October 11, 2018.

Trial Court Opinion (TCO), 10/31/18, at 2-3 (citations to record omitted).

      In its opinion, the court noted that although Father did not attend the

September 11, 2018 hearing that resulted in both the termination of his



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parental rights and the goal change for Child to adoption, he was represented

by counsel, who stipulated to the facts set forth in the termination/goal change

petitions. The court further identified Emily Cherniack, Esquire, as the Child

Advocate and Rebecca Mainor, Esquire, as the Guardian Ad Litem (GAL). The

court also set out a synopsis of the testimony provided by Tyrone King, the

DHS Representative, stating:

            At the termination hearing, Mr. Tyrone King, the assigned
      DHS Representative, testified that Father had failed to achieve his
      SCP objectives[,] which included receiving mental health
      treatment and visits with [] Child. Mr. King testified that Child
      was well bonded to her pre-adoptive foster parent and that Child
      had spent a significant period of time with her foster parent. Mr.
      King testified that he had observed interactions between the
      Foster Parent and Child, which indicated a parent/child bond. Mr.
      King testified that the termination of Father’s parental rights
      would not cause irreparable harm to Child and that termination of
      [] Father’s parental rights was in [] Child’s best interest. At the
      hearing, Rebecca Mainor, Esquire, the [GAL], proffered that []
      Child wanted to remain with her foster parent and that she did not
      believe that there would be any conflict between [] Child’s legal
      interest and adoption.       Emily Cherniak, Esquire, as Child
      Advocate, made no indication that [] Child did not want to be
      adopted. The testimony of Mr. King was deemed credible and
      accorded great weight. In addition, the Child Advocate and [the
      GAL] were diligent in their determination that there was no conflict
      between the legal interest and the best interest of [] Child.
      Consequently, documents and testimony presented at the
      Termination of Parental Rights Hearing provided the [c]ourt clear
      and convincing evidence to terminate Father’s parental rights and
      rule that the termination of these rights would be in the best
      interest of Child….

Id. at 4-5 (citations to record omitted).      Based on this record, the court

concluded that Father demonstrated an “ongoing inability to provide care for

or control of Child resulting in his failure to remedy the conditions that brought


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[] Child into care. Specifically, Father failed to satisfy his SCP objectives.” Id.

at 4.

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

        1.    Did the [t]rial [c]ourt err in terminating [Father’s] parental
        rights under [23] Pa.C.S.[] [§] 2511(a)(1), (a)(2), (a)(5), and
        (a)(8)?

        2.    Did the [t]rial [c]ourt err in finding that termination of
        Father’s parental rights best served [] [C]hild’s developmental,
        physical and emotional needs under [23] Pa.C.S.[] [§] 2511(b)?

        3.    Did the [t]rial [c]ourt err in changing [] [C]hild’s goal to
        adoption?

Father’s brief at vi.

        We begin by setting forth the applicable standard of review relating to

Father’s first and second issues.

              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
        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.”



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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 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.




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      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).

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

to Section 2511(a)(1), (2), (5), (8) and (b). We need only agree with the trial

court as to any one subsection of Section 2511(a), as well as Section 2511(b),

in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc).   Here, we analyze the court’s decision to terminate under Sections

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,



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      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).

      We first address whether the trial court abused its discretion by

terminating Father’s parental rights pursuant to Section 2511(a)(2).

      In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
      2511(a)(2), the following three elements must be met: (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.

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation

omitted). “The grounds for termination 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) (citations

omitted).



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      The main thrust of Father’s argument centers on his allegation that DHS

failed to provide clear and convincing evidence to support the termination of

his parental rights, namely, that the “causes of the incapacity, abuse, neglect

or refusal [were] not … remedied.” Father’s brief at 6. Rather, he claims that

he completed parenting classes, healthy relationship classes, and a housing

workshop. He also asserts that he attended mental health treatment, was

employed, visited with Child and that because he had negative drug screens,

he did not need any drug or alcohol treatment.

      What Father fails to note is that he, through his attorney, stipulated to

the facts alleged in the termination/goal change petitions, which together with

the testimony of Mr. King was the basis for the trial court’s findings. The brief

filed by DHS cites two cases that support the trial court’s reliance on the

stipulation of facts. Specifically, DHS’s brief states:

             “A stipulation of facts is binding upon the hearing tribunal
      as well as the parties to the stipulation. As a general rule, once a
      stipulation of facts has been effectively entered into, there can be
      no valid contention or conclusion that facts within the scope of the
      stipulation are unsupported by substantial evidence. In sum, facts
      effectively stipulated to are controlling and conclusive.”
      Kostecky v. Mattern, 452 A.2d 100, 104 (Pa. Cmwlth. 1982)
      (internal citations omitted). “Evidence admitted by stipulation or
      consent of both parties is fully competent and accorded full
      weight.” Jones v. Spidle, 286 A.2d 366, 367-68 (Pa. 1971)
      (internal citations omitted).

DHS’s brief at 19.     We have not found any cases that contradict these

statements of the law.     Moreover, based on our review of the record, we




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conclude that the trial court’s decision was supported by competent evidence

and Father’s arguments to the contrary are without merit.

       Next, we address Father’s second issue, wherein he argues that the

termination of his parental rights was not in Child’s best interest as delineated

under Section 2511(b).        We have discussed the required analysis under

Section 2511(b) previously in this memorandum. See In re Adoption of

J.M., 991 A.2d at 324. However, Father’s sole contention is that because he

consistently visited with Child, the trial court erred in terminating his parental

rights. This statement is contrary to the court’s finding, based on Mr. King’s

testimony that Father “failed to achieve his SCP objectives which included …

visits with [] Child.” TCO at 4. Moreover, our review of the record reveals

that   Father’s   visits   with   Child   decreased   over   time   from   frequent,

unsupervised periods to supervised, bi-weekly, line-of-sight and line-of-

hearing visits.    Furthermore, Mr. King testified that Child would not be

irreparably harmed if Father’s parental rights were terminated and that Child

had a good bond with the pre-adoptive kinship parent. Again, we conclude

that based upon the record, Father is not entitled to any relief.

       Lastly, we turn to Father’s issue concerning the goal change to adoption

for Child.   Father’s brief contains a recitation of the law relating to a goal

change and then he simply argues then he has consistently visited Child and

was receiving mental health treatment. The transcript of the termination/goal

change hearing shows that Child, who was five years old at the time of the


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hearing, had been in care approximately 2½ years.          N.T., 9/11/18, at 4.

Moreover, based upon Mr. King’s testimony, Father was “not fully compliant

with his [SCP] objectives, including mental health, housing, supervised

visitation and remaining out of incarceration[.]”      Id. at 6.   Mr. King also

concluded that it would be in Child’s best interests to be adopted. Id. at 7.

Based on the stipulation of facts and this testimony, the court concluded that

under the circumstances, it was appropriate to order a goal change to

adoption. Id.

      This Court’s standard of review involving a goal change for a dependent

child is as follows:

            In cases involving a court’s order changing the placement
      goal … to adoption, our standard of review is abuse of discretion.
      In re N.C., 909 A.2d 818, 822 (Pa. Super. 2006). To hold that
      the trial court abused its discretion, we must determine its
      judgment was “manifestly unreasonable,” that the court
      disregarded the law, or that its action was “a result of partiality,
      prejudice, bias or ill will.” Id. (quoting In re G.P.-R., 851 A.2d
      967, 973 (Pa. Super. 2004)). While this Court is bound by the
      facts determined in the trial court, we are not tied to the court’s
      inferences, deductions and conclusions; we have a “responsibility
      to ensure that the record represents a comprehensive inquiry and
      that the hearing judge has applied the appropriate legal principles
      to that record.” In re A.K., 906 A.2d 596, 599 (Pa. Super. 2006).
      Therefore, our scope of review is broad. Id.

In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008).

      Pursuant to the Juvenile Act, 42 Pa.C.S. § 6351(f), when considering a

petition for goal change for a dependent child, the juvenile court is to consider,

inter alia: (1) the continuing necessity for and appropriateness of the

placement; (2) the extent of compliance with the family service plan; (3) the


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extent of progress made towards alleviating the circumstances which

necessitated the original placement; (4) the appropriateness and feasibility of

the current placement goal for the children; and (5) a likely date by which the

goal for the child might be achieved. In re S.B., 943 A.2d at 977. The best

interests of the child, and not the interests of the parent, must guide the trial

court. Id. at 978.

      Our review of the record in this case and the statutory directives

governing a goal change support the conclusion that reunification of Child with

Father is not a realistic goal. Father is primarily seeking to have this Court

reweigh the evidence in a light more favorable to him. However, it is beyond

our purview to disturb the credibility determinations of the trial court when

the testimony relied upon is supported in the record. The trial court was free

to conclude that Father was unlikely to remedy the issues in the near future;

thus, the permanency needs of Child dictate changing her goal to adoption.

We are compelled to conclude that the trial court did not err in ordering the

change of goal to adoption.

      Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/19

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