J-S23002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: Y.J.B.J. A/K/A         :   IN THE SUPERIOR COURT OF
    Y.J., A MINOR                              :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: W.J., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3539 EDA 2017

              Appeal from the Decree Entered September 27, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000559-2017,
                            CP-51-DP-0001856-2016

    IN THE INTEREST OF: E.S.J. A/K/A           :   IN THE SUPERIOR COURT OF
    E.J., A MINOR                              :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: W.J., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 3540 EDA 2017

              Appeal from the Decree Entered September 27, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-AP-0000560-2017,
                            CP-51-DP-0001947-2016

BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 18, 2018

       W.J. (“Father”) appeals from the trial court’s decrees1 entered

September 27, 2017, which granted the petition filed by the Philadelphia

Department of Human Services (“DHS”) to involuntarily terminate his parental


____________________________________________


1   This Court consolidated the cases sua sponte on December 5, 2017.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S23002-18


rights to his daughters, Y.J.B.J., born in February of 2009, and E.S.J., born in

November of 2014 (collectively, “Children”), pursuant to 23 Pa.C.S.

§ 2511(a)(1), (2), (5), (8) and (b).2 After careful review, we affirm.

       The trial court thoroughly summarized the facts and procedural history

of this case, in relevant part, as follows:

       DHS became involved with this family on November 28, 2014,
       when DHS received a General Protective Services (“GPS”) report
       that [M]other gave birth to [E.S.J. i]n November [of] 2014, and
       both tested positive for marijuana at the time of delivery;
       [Y.J.B.J.] was in the care of Father; Father admitted to having a
       criminal history but did not provide specific information. [E.S.J.]
       was subsequently released to both parents and referrals were
       made for community-based services.

       The family became involved with DHS again on August 15, 2016,
       when DHS received a GPS report alleging that paramedics were
       called to the family home; [Y.J.B.J.] told mother that she had been
       sexually abused by a family friend; [Y.J.B.J.] gave inconsistent
       information regarding the alleged abuse; [Y.J.B.J.] suffers from
       asthma and autism; Father was intoxicated when the paramedics
       arrived at the home; Father knew the family friend who committed
       the alleged abuse; Father admitted to drinking alcohol; Father and
       [M]other began arguing in the presence of the paramedics; Father
       accused [M]other of being a long-time drug user; [M]other stated
       that Father had sexually abused [Y.J.B.J.] in the past; Father
       wanted [Y.J.B.J.] to be examined at the hospital, but [M]other did
       not; and [Y.J.B.J.] was transported to Hahnemann University
       Hospital.    This report was substantiated.        DHS received a
       supplemental GPS report on August 16, 2016. The report stated
       that [Y.J.B.J.] was transported to Hahnemann University Hospital;
       Father appeared to be intoxicated and was belligerent; Father told
       hospital staff that [Y.J.B.J.] had been sexually abused by
       [M]other’s paramour and that a knife had been involved in the
       incident; a medical examination was performed and . . . the
____________________________________________


2  By separate decrees, the trial court involuntarily terminated the parental
rights of Y.J.J. (“Mother”) on September 27, 2017. Mother did not file separate
appeals, nor is Mother a party to the instant appeals.

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J-S23002-18


       results revealed no findings; [Y.J.B.J.] was transferred to
       Children’s Hospital of Philadelphia (“CHOP”) by ambulance. This
       report was substantiated.

       On August 23, 2016, Father and [C]hildren went to the
       Philadelphia Children’s Alliance (“PCA”) for [Y.J.B.J] to be
       interviewed. PCA observed that Father smelled of alcohol and that
       [E.S.J.] was dressed in a shirt, diaper, and shoes that appeared
       to be the wrong size. PCA also observed that Father and
       [C]hildren had an unpleasant odor.           DHS conducted an
       unannounced visit on the same date, August 23, 2016, at Father’s
       home. [C]hildren were not present in the home during the visit.
       DHS observed that Father was intoxicated and Father admitted
       that he drank alcohol when the children were not present.

       On August 26, 2016, DHS conducted another unannounced visit
       at Father’s home. DHS observed that [Y.J.B.J.] was in severe
       respiratory distress. Father gave [Y.J.B.J.] an inhaler, but the
       respiratory distress continued. Father told DHS that [Y.J.B.J.] has
       asthma medication, but that it can only be taken with meals.
       Father also told DHS that he had given [Y.J.B.J.] a nebulizer
       treatment earlier that day. DHS called an ambulance and Father
       became upset and stated that [Y.J.B.J.] did not need hospital
       treatment. The paramedics arrived at Father’s home and stated
       that the inhaler Father gave to [Y.J.B.J.] was empty and that the
       child was in severe respiratory distress. [Y.J.B.J.] was then
       transported to St. Christopher’s Hospital for Children for
       treatment. While at the hospital, Father stated that [Y.J.B.J.] was
       faking her symptoms. On August 26, 2016, DHS obtained an
       OPC[3] for [Y.J.B.J.] and placed the child with her adult sister
       [(“Kinship Parent”)]. On August 27, 2016, [Kinship Parent] went
       to Father’s home to get [Y.J.B.J.’s] clothing and [Kinship Parent]
       agreed that [E.S.J.] could also reside with her.

Trial Court Opinion, 1/17/18, at 1–3 (footnote omitted).

       The trial court entered a shelter care order for Y.J.B.J. on August 29,

2016, and adjudicated Y.J.B.J. dependent on September 7, 2016. At Y.J.B.J.’s

adjudication hearing, the trial court also ordered DHS to obtain an OPC for

____________________________________________


3   Order for Protective Custody.

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J-S23002-18



E.S.J., which DHS obtained that same day. E.S.J. was adjudicated dependent

on September 21, 2016.

       Following Children’s adjudication of dependency, the Community

Umbrella Agency (“CUA”) prepared a Single Case Plan (“SCP”) for Father on

October 28, 2016.       Father’s SCP objectives were to: (1) comply with CUA

services and recommendations; (2) participate in supervised visits with

Children at the agency; (3) sign all necessary educational documents for

Children; (4) comply with all CEU recommendations; (5) enroll in drug

treatment through NorthEast Treatment Center (“NET”); (6) submit to three

random drug screens before the next court date; and (7) participate in

Achieving Reunification Center (“ARC”) services. See Petition for Involuntary

Termination of Parental Rights, 5/18/17, at Exhibit A (referencing DHS Exhibit

10); N.T., 9/27/17, at 71.

       For the next year, Father made little progress toward complying with

these objectives.      Accordingly, on May 18, 2017, DHS filed a petition to

terminate Father’s parental rights to Children and a petition to change

Children’s permanency goal from reunification to adoption.     The trial court

held a joint hearing on the petitions on September 27, 2017, during which it

heard testimony of CUA case manager Tashera Maldonado, and Father.4 At



____________________________________________


4 Children had the benefit of both legal counsel and a guardian ad litem during
the hearing. N.T., 9/27/17, at 5–6.

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J-S23002-18


the conclusion of the hearing, the trial court orally delivered its decree

terminating Father’s parental rights and changing the permanency goal to

adoption and entered its decree that same day.           Decrees, 9/27/17.     On

October 27, 2017, Father filed a timely notice of appeal along with a concise

statement of errors complained of on appeal.

       Father raises a single issue for our review:

              1. Did the lower court err in changing the goal to adoption
       and terminating [Father’s] parental rights under 23 Pa.C.S. §[]
       2511(a)(1), (2), (5), (8) because [DHS] failed to establish by clear
       and convincing evidence that [Father] has evidence[d] a settled
       purpose of relinquishing his claim to [Children] or has refused or
       failed to . . . perform his parental duties; that [Father] cannot or
       will not be able to remedy his incapacity, abuse, neglect or refusal;
       and that [Father] cannot or will not remedy the conditions which
       led to the removal or placement of the children.

Father’s Brief at 3.5




____________________________________________


5 In his notice of appeal and Pa.R.A.P. 1925 statement, Father indicated that
he is appealing both the termination of his parental rights and the trial court’s
decision to change Children’s permanency goal to adoption. In his brief,
however, Father has abandoned any argument relating to the goal-change
determination. Accordingly, we find any issue related to the goal change
waived. Banfield v. Cortes, 110 A.3d 155, 168 (Pa. 2015) (“Where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived. It is not the obligation of an appellate
court to formulate [an] appellant’s arguments for him.”                Wirth v.
Commonwealth, 95 A.3d 822, 837 (Pa. 2014)); In re M.Z.T.M.W., 163 A.3d
462, 465 (Pa. Super. 2017) (“It is well-settled that this Court will not review
a claim unless it is developed in the argument section of an appellant’s brief.”).
Moreover, even if not waived, we would affirm the trial court’s decision to
change the goal based upon its thorough and detailed opinion. Trial Court
Opinion, 1/17/18, at 17–20.

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     In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

     [A]ppellate courts must apply an abuse of discretion standard
     when considering a trial court’s determination of a petition for
     termination of parental rights. As in dependency cases, our
     standard of review requires an appellate court to accept the
     findings of fact and credibility determinations of the trial court if
     they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
     1179, 1190 (Pa. 2010). If the factual findings are supported,
     appellate courts review to determine if the trial court made an
     error of law or abused its discretion. Id.; In re R.I.S., 614 Pa.
     275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As has been often
     stated, an abuse of discretion does not result merely because the
     reviewing court might have reached a different conclusion. Id.;
     see also Samuel-Bassett v. Kia Motors America, Inc., 613
     Pa. 371, 455, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575
     Pa. 647, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may
     be reversed for an abuse of discretion only upon demonstration of
     manifest unreasonableness, partiality, prejudice, bias, or ill-will.
     Id.

           As we discussed in R.J.T., there are clear reasons for
     applying an abuse of discretion standard of review in these cases.
     We observed that, unlike 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. R.J.T., 9 A.3d at 1190.
     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 Atencio, 539 Pa. 161, 165, 650
     A.2d 1064, 1066 (Pa. 1994).

In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re

Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)).


                                     -6-
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      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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). 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., 837 A.2d 1247, 1251

(Pa. Super. 2003)). Moreover, this Court may affirm the trial court’s decision

regarding the termination of parental rights with regard to any one subsection

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

banc).

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

to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Here, we analyze the trial

court’s decision to terminate under Section 2511(a)(2) and (b), which provide

as follows:

      § 2511. Grounds for involuntary termination

      (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.

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                                    * * *

      (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) and (b). This Court has explained that the focus in

terminating parental rights under Section 2511(a) is on the parent, but under

Section 2511(b), the focus is on the child. In re Adoption of C.L.G., 956

A.2d 999, 1008 (Pa. Super. 2008) (en banc).

      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).




                                     -8-
J-S23002-18



       In its opinion, the trial court concluded that Father is incapable of

parenting Children and that Father cannot, or will not, remedy his parental

incapacity. Trial Court Opinion, 1/17/18, at 9–11. The court found credible

Ms. Maldonado’s testimony that Father failed to comply with his SCP

objectives. Id.

       In response, Father argues that he completed a dual diagnosis program

and parenting program. Father’s Brief at 9. Father contends that because he

completed his dual diagnosis program the morning of the termination hearing,

he was never afforded the opportunity to demonstrate his sobriety after

receiving treatment. Id. Father asserts that the record demonstrates that he

is “diligently remedying” the issues that led to Children’s removal and that it

would not be in Children’s best interest to terminate Father’s parental rights.

Id.6

       Our review of the record supports the trial court’s findings. During the

termination hearing, Ms. Maldonado testified that Father has failed to address

his drug and alcohol issues. N.T., 9/27/17, at 17–21. Ms. Maldonado noted

that although Father completed an outpatient drug and alcohol program at

STOP,7 he completed the program on the day of the termination hearing and

continued to produce positive urine screens while participating in the program.

____________________________________________


6 We are compelled to note that Father’s argument in his brief, in addition to
setting forth the relevant standards and statute, consists of two paragraphs.
Father’s Brief at 9.

7   The full name of this program is not revealed in the record.

                                           -9-
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Id. at 17-21, 47–48. Specifically, Ms. Maldonado noted that Father tested

positive for marijuana on June 28, 2017, and September 7, 2017, merely

twenty days prior to the termination hearing.        Id. at 18-19.    Likewise,

Ms. Maldonado recalled that Father attended a visit with Children visibly

“inebriated, disengaged and even slumped over in the chair.” Id. at 17. She

testified that although Father attended all of his visits with Children, he does

not engage in the visits and “there’s very little contact between him [and] the

girls.” Id. at 24.

      In addition to these issues, Ms. Maldonado testified that Father had not

completed a parenting program or addressed his anger management issues.

N.T., 9/27/17, at 21. Father also remains without appropriate housing. Id.

at 16, 33–35. Father reported to CUA that there was a raccoon problem in

his neighborhood and Father’s home lacks the appropriate barriers to protect

animals from entering his home. Id. at 34. Finally, Father’s mental health

continues to be a concern. Id. at 21. At the time of the termination hearing,

Father had provided no documentation that he had been evaluated or is

addressing his mental health issues. Id.

      Based on the foregoing, we discern no abuse of discretion by the trial

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

Father’s repeated and continued incapacity, neglect, or refusal to perform his

parental duties has caused Children to be without essential parental care,

control or subsistence necessary for their physical and mental well-being.




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Father’s failure to meet his objectives supports the trial court’s conclusion that

Father refuses to remedy the conditions that led to Children’s placement.

      Having   determined    that   Father’s   parental   rights   were   properly

terminated under Section 2511(a)(2), we engage in the second part of the

analysis pursuant to section 2511(b), in which we determine if termination

serves the best interests of Children. In re L.M., 923 A.2d 505, 511 (Pa.

Super. 2007). Instantly, Father has not presented a specific challenge to the

termination of his parental rights under Section 2511(b); however, we decline

to find waiver and shall address the trial court’s findings. See Adoption of

C.L.G., 956 A.2d at 1010 (addressing Section 2511(b) despite the mother’s

failure to challenge the trial court’s determination under that subsection).

      We have explained that the focus in terminating parental rights under

Section 2511(a) is on the parent, but under Section 2511(b), the focus is on

the child. Adoption of C.L.G., 956 A.2d at 1008. In reviewing the evidence

in support of termination under Section 2511(b), our Supreme Court stated

as follows:

      [I]f the grounds for termination under subsection (a) are met, a
      court “shall give primary consideration to the developmental,
      physical and emotional needs and welfare of the child.” 23 Pa.C.S.
      § 2511(b). The emotional needs and welfare of the child have
      been properly interpreted to include “[i]ntangibles such as love,
      comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
      (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
      this Court held that the determination of the child’s “needs and
      welfare” requires consideration of the emotional bonds between
      the parent and child. The “utmost attention” should be paid to
      discerning the effect on the child of permanently severing the
      parental bond. In re K.M., 53 A.3d at 791.


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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

        When evaluating a parental bond, “the court is not required to use

expert testimony. Social workers and caseworkers can offer evaluations as

well.    Additionally, Section 2511(b) does not require a formal bonding

evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). While a bonding evaluation may be conducted and made

part of the certified record, “[t]here are some instances . . . where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

        The trial court made the following determinations relative to the bond,

or lack thereof, between Father and Children, and the needs and welfare of

Children:

        Father has attended all scheduled visits with [C]hildren but he
        does not engage with [C]hildren at the visits. Instead, Father
        engages with the caregivers during visits and has very little
        contact with [C]hildren while the children play with each other.
        (N.T. 09/27/17, pgs. 23-24). At one visit, Father appeared
        intoxicated and disengaged. (N.T. 09/27/17, pg. 17). Although
        the children recognize Father, the CUA Case Manager has never
        observed [C]hildren referring to Father as “dad.” (N.T. 09/27/17,
        pg. 44). Father has failed to graduate past weekly supervised
        visits at the agency. Father wants [C]hildren to return to his care
        because it would enable him to resume receiving [C]hildren’s
        social security benefits. (N.T. 09/27/17, pgs. 22-23). [C]hildren
        are currently placed in a stable, loving kinship home and have
        been in this home since August 2016. The kinship parent,
        [C]hildren’s older sister, is meeting their everyday needs and have
        bonded. This kinship home provides [C]hildren with structure that
        they lacked with Father. Father has never attended any medical
        appointments, while he has had many opportunities to ask when

                                      - 12 -
J-S23002-18


      the appointments are scheduled since he often interacted with the
      caregivers during the scheduled visits. Additionally, Father does
      not attend any school functions or parent-teacher conferences for
      [Y.J.B.J.].7 (N.T. 09/27/17, pgs. 24-25). The kinship parent has
      advocated greatly on [Y.J.B.J.’s] behalf with the school district to
      get her the services she needs and receives support in the kinship
      home. (N.T. 09/27/17, pg. 30). [C]hildren would not suffer any
      irreparable harm if Father’s rights were terminated (NJ. 09/27/17,
      pgs. 25-26). [C]hildren do not share a positive, healthy, paternal
      relationship with Father and there is no bond between [C]hildren
      and Father. (N.T. 09/27/17, pgs. 25-26, 27-28, 44-45). The
      kinship parent is very responsive in taking care of [C]hildren.
      (N.T. 09/27/17, pgs. 24-25). The record establishes by clear and
      convincing evidence that termination would not sever an existing
      and beneficial relationship. Father has failed to create any
      parental bond with [C]hildren by not being fully engaged during
      the visits. The trial court’s termination under [Section] 2511(b)
      was proper and there was no abuse of discretion.


      7 Only [Y.J.B.J.] attends school. [E.S.J.] is three years old.
      ____________________________________________________

Trial Court Opinion, 1/17/18, at 17.

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

record supports the trial court’s factual findings, and the trial court’s

conclusions are not the result of an error of law or an abuse of discretion with

regard to Section 2511(b). Accordingly, it was proper for the trial court to

determine that there was no bond such that Children would suffer permanent

emotional harm if Father’s parental rights are terminated and that termination

served the needs and welfare of Children.

      For the reasons set forth above, we conclude that Father is entitled to

no relief. Therefore, we will not disturb the trial court’s determination, and




                                       - 13 -
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we affirm the decrees involuntarily terminating Father’s parental rights to

Children.

     Decrees affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/18




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