J. S33001/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF S.B.K.          :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER,      :
                                   :
                    Appellant      :         No. 166 EDA 2015


               Appeal from the Decree, December 10, 2014,
          in the Court of Common Pleas of Montgomery County
                Orphans’ Court Division at No. 2014-A0057



IN RE: ADOPTION OF B.J.L.K.        :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER,      :
                                   :
                    Appellant      :         No. 173 EDA 2015


               Appeal from the Decree, December 10, 2014,
          in the Court of Common Pleas of Montgomery County
                Orphans’ Court Division at No. 2014-A0058



IN RE: ADOPTION OF K.F.L.K.        :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER,      :
                                   :
                    Appellant      :         No. 179 EDA 2015


               Appeal from the Decree, December 10, 2014,
          in the Court of Common Pleas of Montgomery County
                Orphans’ Court Division at No. 2014-A0059
J. S33001/15



IN RE: ADOPTION OF T.L.K., JR.          :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
APPEAL OF: T.K., SR., FATHER,           :
                                        :
                       Appellant        :            No. 182 EDA 2015


                Appeal from the Decree, December 10, 2014,
           in the Court of Common Pleas of Montgomery County
                 Orphans’ Court Division at No. 2014-A0060


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 10, 2015

     T.K., Sr. (“Father”), appeals the decrees terminating his parental

rights to his four children pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b) of

the Adoption Act. After careful review, we affirm.

     Father and A.W. (“Mother”)1 met in 2000 and over the course of

six years had four children: K.F.L.K. born in 2001; T.L.K., Jr. born in 2003;

B.J.L.K. born in 2005; and S.B.K. born in 2006 (“the Children”). Father and

Mother never married, and their relationship included several periods in

which they lived together and several periods in which they were separated.

From 2007 until 2011, Mother had primary custody of the Children except

for K.F.L.K., who resided with Father. During March or April of 2011, Father

took custody of all the Children.     They remained with Father and his



1
  Mother has filed separate appeals from the decrees terminating her
parental rights to the Children.


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girlfriend until the Montgomery County Office of Children and Youth’s

(“OCY”) involvement in March 2012. At that time, OCY began investigating

an allegation that Father sexually abused K.F.L.K.

      During the investigation, Father agreed to two different safety plans,

first to have no unsupervised contact with his daughters, K.F.L.K. and

B.J.L.K., and subsequently, no contact with them. During this time, the girls

lived in Father’s home in the care of his girlfriend. On April 16, 2012, the

two girls were removed from the home after Father had contact with them in

violation of the safety plan.       On May 4, 2012, the boys, T.L.K., Jr. and

S.B.K., were removed from Father’s home after Father sent notes in their

lunches to pass to the girls, after previously being instructed not to do so, in

violation of the safety plan.

      Based on its investigation, OCY determined that the allegations made

by K.F.L.K. of sexual abuse by Father were credible and reported these

allegations as “indicated” to the state registry, ChildLine.     Father did not

appeal this finding.   Father was charged with sexual assault; however, all

criminal charges were subsequently dropped in September of 2013.

      In order to facilitate reunification with the Children, OCY created a

family service plan (“FSP”) for Mother and Father. Father’s goals included:

obtain stable housing and provide proof of financial ability to care for the

Children; obtain drug and alcohol evaluation and follow all treatment

recommendations;       obtain   a   psycho-sexual   evaluation   and   follow   all



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treatment recommendations; demonstrate an understanding of sexual abuse

and its effects on children; resolve his legal issues and cooperate with OCY;

follow the conditions of his bail; and if visits were reinstated, to demonstrate

appropriate parenting boundaries. (Notes of testimony, 10/1/14 at 54.)

        On April 8, 2014, OCY filed petitions to terminate Father’s parental

rights to the Children.     Hearings were held on October 1, 2014, and

November 12, 2014. OCY caseworker, Julia Solomon, testified that she was

assigned the case in June of 2012. (Id. at 41.) Ms. Solomon testified that

the court suspended Father’s visitation with the Children after they were

placed in foster care in May of 2012 due to Father’s repeated violations of

the safety plan and his refusal to follow orders not to have contact with the

Children.    (Id. at 51.)   Ms. Solomon testified that Father was not very

cooperative and was repeatedly confrontational with OCY. (Id. at 84.) She

testified the vast majority of her communication with Father was received

through his girlfriend. (Id.) She stated, “I had very infrequent contact with

father, and he did not ask me about the children when he would contact me.

(Id.)

        Regarding Father’s FSP goals, Ms. Solomon testified that he refused to

comply with many of them, and that Father repeatedly stated that his

attorney had instructed him not to complete certain things that OCY had

asked him to do.      (Id. at 84-85.)   When asked about Father’s housing

status, Ms. Solomon replied that Father and his girlfriend maintained the



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home they had when the Children were removed, and the girlfriend provided

OCY with a copy of the lease. (Id. at 85-86.)

      Regarding income and employment, Father’s girlfriend provided some

of the proof. (Id. at 86.) Father worked for a fencing company and had

another job in general construction. (Id.)

      From the outset of this case, Father was directed to obtain a drug and

alcohol evaluation.   He did not comply until November of 2013.            The

recommendations were for him to attend outpatient treatment, to attend

groups, and also to attend individual drug and alcohol counseling on a

weekly basis. (Id. at 94.) According to Ms. Solomon, Father only attended

a few sessions. (Id.) Ms. Solomon testified that Father denied that he had

any substance abuse problems. (Id. at 95.) Father acknowledged that he

drank, but that was not a crime, and it was not an issue. (Id.)

      Ms. Solomon testified that although Father’s visits were suspended

during the time she was assigned to the case, he did not assert himself to

stay informed about the lives of his children or be involved as much as he

could. (Id. at 96.)

      Stephanie Setty, an OCY caseworker, testified that she was assigned

the case in January of 2014. (Id. at 163.) Ms. Setty testified concerning

Father’s failure to provide urine screens within 24 hours of a request, despite

being told that a failure to respond would be considered a positive test.

According to her log, there were twelve 24-hour notices that Father failed to



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respond to. (Id. at 177.) Father did respond twice; one result came back

negative but “diluted” and another came back negative. (Id. at 177.)

      Father testified he was advised by his criminal defense attorney not to

participate in a psycho-sexual evaluation which had been requested by OCY

while the criminal charges were pending.         After the criminal charges were

dropped in September of 2013, Father did take part in a psycho-sexual

evaluation.     While the evaluator, Barry Zakireh, Ph.D., found insufficient

evidence that Father’s behaviors “rise to the level of any specific sexual

disorder   or    reflect   severe,   enduring,    sexual,   or   highly   frequent

manifestations of sexual preoccupation, sexual obsessions or compulsive

sexual behaviors,” he did note other issues that were consistent with the

observations and testimony of others.        Those issues included “a history of

aggression in a domestic context involving his ex-paramour,” “evidence of

abuse of alcohol and narcotic analgesics, which [Father] seems to downplay

or underreport,” and a “tendency to place himself in a favorable light and

deny difficulties.” (See report of Dr. Barry Zakireh.)

      Regarding the sexual assault allegations made by K.F.L.K. that were

later dropped, the trial court made it clear that it “[could] not draw any

conclusion regarding why the criminal charges were dropped.               Nor was

sufficient evidence presented to this Court to conclude whether the abuse

occurred or not. Therefore, this Court will not make any determination that




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depends upon whether or not the sexual abuse occurred.”                (Trial court

opinion, 12/10/14 at 10.)

      On December 10, 2014, the trial court granted the petitions to

terminate Father’s parental rights and entered final decrees.          Father filed

this timely appeal.

      Father raises two issues for our consideration:

            1.     Whether the trial court committed an error of
                   law and/or abuse of discretion when it held
                   that OCY had proven by “clear and convincing
                   evidence” that Father’s parental rights should
                   be terminated pursuant to 23 Pa.C.S.
                   § 2511(a)(2)?

            2.     Whether the trial court committed an error of
                   law and/or abuse of discretion in concluding
                   that changing the goal from reunification to
                   adoption is best suited to the safety, protection
                   and physical, mental, and moral welfare of the
                   children, when reunification remains the most
                   appropriate and feasible goal?

Father’s brief at 5.

      We review the termination of parental rights in accordance with 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., 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.;


                                      -7-
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              In re: R.I.S., 36 A.3d [567,] 572 [(Pa. 2011)
              (plurality opinion)]. As has been often stated, an
              abuse of discretion does not result merely because
              the reviewing court might have reached a different
              conclusion.     Id. [] Instead, a decision may be
              reversed for an abuse of discretion only upon
              demonstration       of   manifest       unreasonableness,
              partiality, prejudice, bias, or ill-will. Id.

              . . . . [E]ven 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 judge[] 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, 650 A.2d 1064, 1066 (Pa.
              1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations

modified, some citations omitted).           It is well settled that a party seeking

termination of a parent’s rights bears the burden of proving the grounds by

clear and convincing evidence, a standard that requires evidence 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.” In re T.F., 847 A.2d 738, 742 (Pa.Super. 2004) (citation omitted).

      We believe the record contains sufficient evidence to support the

termination     of   Father’s     parental    rights    pursuant     to     23   Pa.C.S.A.

§ 2511(a)(2).        In   order    to   terminate      parental    rights    pursuant   to

Section 2511(a)(2), three elements must be met:                      (1) repeated and

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


                                          -8-
J. S33001/15


neglect, or refusal caused the child to be without essential parental care,

control, or subsistence; 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) (citations omitted).

      Our supreme court has explained our inquiry under Section 2511(a)(2)

as follows:

              As stated above, § 2511(a)(2) provides statutory
              grounds for termination of parental rights where it is
              demonstrated by clear and convincing evidence that
              “[t]he 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.” If and only if
              grounds for termination are established under
              subsection (a), does a court consider “the
              developmental, physical and emotional needs and
              welfare of the child” under § 2511(b).

                     This Court has addressed incapacity sufficient
              for termination under § 2511(a)(2):

                    A decision to terminate parental rights,
                    never to be made lightly or without a
                    sense of compassion for the parent, can
                    seldom be more difficult than when
                    termination is based upon parental
                    incapacity. The legislature, however, in
                    enacting   the    1970   Adoption   Act,
                    concluded that a parent who is incapable
                    of performing parental duties is just as
                    parentally unfit as one who refuses to
                    perform the duties.

In re Adoption of S.P., 47 A.3d at 827 (citation omitted).



                                      -9-
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      Instantly, Father asserts that the criminal charges filed against him

impeded his ability to fully comply with OCY. He further contends that the

steps he has taken since his criminal case was withdrawn warranted further

deference from the court. (Father’s brief at 9.) That is the total of Father’s

argument to this court. We cannot grant Father relief on his claim.

      As already stated, Father’s children were removed in April and May of

2012 and were placed in foster care. Father’s criminal case was withdrawn

in September of 2013. Father would have us ignore the 16 months between

May of 2012 and September of 2013 where he did very little to resolve the

issues of his parental incapacity.    This court has stated that a parent is

required to make diligent efforts towards the reasonably prompt assumption

of full parental responsibilities. In re A.L.D., 797 A.2d 326, 337 (Pa.Super.

2002).     A   parent’s   vow   to   cooperate,   after   a   long   period   of

uncooperativeness regarding the necessity or availability of services, may

properly be rejected as untimely or disingenuous. Id. at 340.

      Father claims that his impending criminal charges impeded his ability

to fully comply with OCY.    We find that assertion disingenuous.      Initially,

Father was not permitted to see the Children because of his failure to follow

the safety plan. The filing of criminal charges also prevented Father from

having contact with the Children.     However, there was no bar to Father

contacting OCY to inquire as to the Children’s well-being.            The OCY




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caseworkers testified that it was Father’s girlfriend who spoke with them

about the Children, and not Father.

      OCY Caseworker Solomon testified that at a meeting on December 18,

2013, Father was “very confrontational with all staff members present, and

he, you know, repeatedly denied he needed to do these things.” (Notes of

testimony, 10/1/14 at 92-93.) She was referring to giving a urine sample

which Father was ordered to provide. Additionally, while Father eventually

obtained drug and alcohol evaluations, he failed to attend counseling

sessions.     He consistently maintained he never had a drinking problem.

(Notes of testimony, 11/12/13 at 193.)

      The record belies Father’s assertion that he did not have a drinking

problem. Diana Rosenstein, Ph.D., an expert in psychology, psychoanalysis,

and bonding and attachment assessments among children, parents, and

other caregivers, testified that she performed assessments of the parenting

capacity of each of the birth parents, and an evaluation of each of the

Children to each birth parent. Dr. Rosenstein testified that all four children

had observed Father abuse alcohol and stated that Father became “mean,”

“violent,” or “physical” when he was drinking.   All four children mentioned

his drinking and the frightening effect it had on them. (Id. at 44-46.) The

Children also mentioned incidents of violence between Father and his

girlfriend.   (Id. at 45.)   Dr. Rosenstein stated, “I found all four of the




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children to be credible in their description of the father’s alcohol abuse.”

(Id. at 47.)

      In her testimony, Mother described acts of violence perpetrated

against her by Father when he was drunk, such as, punching her in the face,

and pinning her against a wall and choking her.         (Id. at 148.)     Mother

testified that the Children had witnessed one of the physical altercations

between herself and Father. (Id. at 150.)

      Father’s girlfriend, while denying he had an alcohol abuse problem,

described an incident where Father was arrested because he was drinking

and depressed that he did not have a job at the time. (Id. at 241.)

      Additionally, Father’s repeated failure to provide urine screens within

24 hours upon request, despite being advised that a failure to respond would

be considered a positive test, infers he feared a positive test result.

      The above evidence clearly contradicts Father’s statements that he did

not have a drinking problem and raises concerns about Father’s reliability as

a witness.     Along with Father’s alcohol abuse was a history of domestic

violence that clearly had an effect on the Children. The clear and convincing

evidence of record confirms the trial court’s determination that “Father’s

alcohol use and history of domestic violence, as well [as] his inability to

meet the emotional needs of the children, creates a parental incapacity that

prevents him from providing a safe and secure home for the children.” (Trial

court opinion, 12/10/14 at 17.)        Accordingly, we conclude the record



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evidence supports the termination of Father’s parental rights under

Section 2511(a)(2).

      After we determine that the requirements of Section 2511(a) are

satisfied, we proceed to review whether the requirements of Subsection (b)

are satisfied.     See In re Adoption of C.L.G., 956 A.2d 999, 1009

(Pa.Super. 2008) (en banc) (providing that, once a court determines that

the parent’s conduct warrants termination of his or her parental rights

pursuant to Section 2511(a), the court then conducts the second part of the

analysis, pursuant to Section 2511(b), to determine “the needs and welfare

of the child under the standard of best interests of the child.”). This court

has   stated     that   the    focus   in   terminating    parental   rights   under

Section 2511(a) is on the parent, but it is on the child pursuant to

Section 2511(b). Id. at 1008.

      In   reviewing     the    evidence    in   support   of   termination    under

Section 2511(b), we consider 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, 1286-1287 (Pa.Super. 2005),

appeal denied, sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa.

2006).     “Intangibles such as love, comfort, security, and stability are

involved in the inquiry into the needs and welfare of the child.          The court

must also discern the nature and status of the parent-child bond, with




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utmost attention to the effect on the child of permanently severing that

bond.” Id. at 1287 (citation omitted).

      We note Father has failed to present an argument regarding

Section 2511(b). Suffice it to say, the trial court has addressed this section,

and we conclude its analysis that the termination of Father’s parental rights

will best serve the needs and welfare of the Children is supported by the

record.

      Father’s remaining issue concerns whether the trial court abused its

discretion when it approved a change of goal from reunification to adoption.

According to Father, the facts and circumstances of this case do not support

the goal change. On appeal, goal change decisions are subject to an abuse

of discretion standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super.

2006).

            In order to conclude that the trial court abused its
            discretion, we must determine that the court’s
            judgment was “manifestly unreasonable,” that the
            court did not apply the law, or that the court’s action
            was “a result of partiality, prejudice, bias or ill will,”
            as shown by the record. We are bound by the trial
            court’s findings of fact that have support in the
            record. Id. The trial court, not the appellate court,
            is charged with the responsibilities of evaluating
            credibility of the witnesses and resolving any
            conflicts in the testimony. In carrying out these
            responsibilities, the trial court is free to believe all,
            part, or none of the evidence. When the trial court’s
            findings are supported by competent evidence of
            record, we will affirm “even if the record could also
            support an opposite result.”

Id. at 822-823 (internal citations omitted).


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     This matter is controlled by the Juvenile Act, 42 Pa.C.S.A. § 6301.

When considering a petition for goal change for a dependent child, the trial

court considers:

             the continuing necessity for and appropriateness of
             the placement; the extent of compliance with the
             service plan developed for the child; the extent of
             progress made towards alleviating the circumstances
             which necessitated the original placement; the
             appropriateness and feasibility of the current
             placement goal for the child; and, a likely date by
             which the goal for the child might be achieved.

In re A.K., 936 A.2d 528, 533 (Pa.Super. 2007), citing 42 Pa.C.S.A.

§ 6351(f).

     Additionally, Section 6351(f.1) requires the trial court to make a

determination regarding the child’s placement goal:

             (f.1) Additional determination.--Based upon the
                   determinations made under subsection (f) and
                   all relevant evidence presented at the hearing,
                   the court shall determine one of the following:

                   ....

                   (2)    If and when the child will be placed
                          for adoption, and the county
                          agency will file for termination of
                          parental rights in cases where
                          return to the child’s parent,
                          guardian or custodian is not best
                          suited to the safety, protection and
                          physical, mental and moral welfare
                          of the child.

42 Pa.C.S.A. § 6351(f.1).

     On the issue of a placement goal change, this court has stated:



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                   When a child is adjudicated dependent, the
            child’s proper placement turns on what is in the
            child’s best interest, not on what the parent wants or
            which goals the parent has achieved. See In re
            Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691
            (1990) (noting that “[o]nce a child is adjudicated
            dependent . . . the issues of custody and
            continuation of foster care are determined by the
            child’s best interests”).        Moreover, although
            preserving the unity of the family is a purpose of
            [the Juvenile Act], another purpose is to “provide for
            the care, protection, safety, and wholesome mental
            and physical development of children coming within
            the provisions of this chapter.”          42 Pa.C.S.
            § 6301(b)(1.1).       Indeed, “[t]he relationship of
            parent and child is a status and not a property right,
            and one in which the state has an interest to protect
            the best interest of the child.” In re E.F.V., 315 Pa.
            Super. 246, 461 A.2d 1263, 1267 (1983) (citation
            omitted).

In re K.C., 903 A.2d 12, 14-15 (Pa.Super. 2006).

      Instantly, after careful review of the record, we discern no abuse of

discretion by the trial court. The crux of Father’s argument is that he had

essentially alleviated the circumstances, i.e., the allegations of sexual

abuse, which led to placement of the Children. (Father’s brief at 11.) Father

contends because the criminal charges were not pursued and Dr. Zakireh

concluded there was insufficient evidence to establish Father sexually

assaulted the victim in this case, that the trial court should have maintained

reunification as the goal and directed OCY to provide more services to

Father. (Id.)

      As previously discussed, the trial court could not draw any conclusion

regarding why the criminal charges were dropped.         As such, the court


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declined to consider whether the sexual abuse occurred when making its

determination.    Clearly, Father ignores the other factors which prevented

him from retaining custody of the Children, such as:        Father repeatedly

ignored OCY’s safety plans which caused his two sons to be removed from

his home; he failed to cooperate and was confrontational with OCY staff; he

failed to attend counseling sessions; he failed to admit he had a drinking

problem; he failed to produce urine screens at least 15 times when called

upon to do so; all four children told Dr. Rosenstein that Father’s drinking had

a frightening effect on them (see notes of testimony, 11/12/14 at 44-46).

Based on the entire record, we find the trial court correctly determined that

continued placement was best suited to the safety, protection, physical,

mental, and moral welfare of the Children. Accordingly, we affirm.

      Decrees affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




                                    - 17 -
