J-S27029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.G., MINOR,           :   IN THE SUPERIOR COURT OF
    ADJUDICATED DEPENDENT                      :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: K.G., NATURAL FATHER            :   No. 1556 WDA 2018

              Appeal from the Decree Entered September 26, 2018
                 In the Court of Common Pleas of Erie County
                     Orphans’ Court at No(s): 66B of 2018

BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 15, 2019

       K.G. (“Father”) appeals from the decree entered September 26, 2018,

which terminated involuntarily his parental rights to his minor child, A.R.G., a

female born in February 2018 (“Child”).1 After careful review, we affirm.

       The record reveals that the Erie County Office of Children and Youth

(“OCY”) became involved with this family in March 2017, around the time that

Child’s older brother, W.B.G., was born. N.T., 8/17/18, at 107. Mother had

tested positive for opiates several days prior to W.B.G.’s birth. Id. She then

tested positive for benzodiazepines, opiates, and marijuana on the day he was

born. Id. W.B.G. suffered from drug withdrawal symptoms, which required


____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1The orphans’ court entered a separate decree terminating the parental rights
of N.L.S. (“Mother”) involuntarily. We address Mother’s appeal in a separate
memorandum.
J-S27029-19


monitoring at the hospital for five days. Id. at 107-08. Father also admitted

to drug use and neither parent provided appropriate care for W.B.G. while he

remained in the hospital. Id. at 45, 108. The parents did not attempt to care

for W.B.G. when he cried, and left the hospital for extended periods. Id. Due

to safety concerns, the hospital staff removed W.B.G. from Mother’s room.

Id. OCY obtained emergency protective custody of both W.B.G. and Child’s

older sister, K.N.G., born in November 2014, and the juvenile court entered

shelter care orders. The court adjudicated W.B.G. and K.N.G. dependent on

March 29, 2017.

      Father initially received reunification services from Corry Counseling’s

Family Preservation program. Id. at 45, 50-51. Father failed to attend the

program consistently. Id. at 46. Further, Father was not receiving visits with

W.B.G. and K.N.G., due to his positive drug screens. Id. at 47, 54, 119, 128.

Because of these circumstances, Corry Counseling was unable to assist Father

and discharged him on September 12, 2017. Id. at 47. He received additional

reunification services through the Time Limited Family Reunification program

beginning on December 20, 2017. Id. at 58.

      OCY referred Father to the Erie County Family Dependency Treatment

Court. Id. at 73. Father failed to attend his orientation in June 2017. Id.

The program rescheduled Father’s orientation for July 2017 and he attended.

Id. at 74.    However, the program rejected Father due to his failure to

participate consistently in drug screens and comply with drug and alcohol


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treatment services. Id. at 75. Father’s compliance with services subsequently

appeared to improve and Treatment Court accepted him on January 5, 2018.

Id. at 76. Once again, Father failed to attend his first scheduled appearance.

Id. at 81.    Treatment Court also discovered that Father had become

noncompliant with his drug and alcohol treatment at Gaudenzia and needed

to write a letter to reenter the program. Id.

      In February 2018, Father’s progress declined dramatically. Id. at 78.

Mother gave birth to Child prematurely, at which time she tested positive for

opiates, benzodiazepines, and cocaine. Id. at 32, 78, 114-16. In addition,

Father admitted that he had relapsed at the same time as Mother. Id. at 114.

OCY caseworker, Stephanie Mumford, reported that she met with Father at

the hospital and that he had “glazed eyes, a blank expression on his face, and

nothing to say when I did discuss the removal of the child.” Id. at 116. When

Ms. Mumford spoke to Father later, “he didn’t even remember that I was at

the hospital to visit him with the child.” Id. The juvenile court removed Child

from Father’s care and entered a shelter care order. The court adjudicated

Child dependent on March 7, 2018.

      Following his relapse and Child’s birth, Father proposed that he should

attend treatment at ARS. Id. at 78. Treatment Court informed him that ARS




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was not an acceptable program.2 Id. Nonetheless, Father ignored Treatment

Court’s instructions and attended ARS.3          Petitioner’s Exhibit 14 (Treatment

Court reports). Father’s participation in Treatment Court was sporadic. N.T.,

8/17/18, at 82.      Father did well at times, “but towards the end” became

noncompliant. Id. In May 2018, Father simply stopped attending Treatment




____________________________________________


2 OCY caseworker and Treatment Court liaison, Kristen Heise, testified that
the ARS program was not acceptable because “[t]hey don’t provide the
appropriate counseling that we would like to see. . . . [W]hat they do is they
give you a 30-day script [for Suboxone] and send you on your way.” N.T.,
8/17/18, at 79.

3  In addition, Father received a referral in February 2018 to the Center of
Excellence at Esper Treatment Center for further drug-and-alcohol-related
services. N.T., 8/17/18, at 7. According to the Center care manager, Nicole
Corbitt, the purpose of these services is to “ensure effective coordination
integrating physical, [and] behavioral needs for every patient with an opioid
use disorder.” Id. Moreover, the Center “increase[s] access to medication
assisted treatment, including Methadone, Suboxone, and Vivitrol.” Id. The
Center made contact with Father several days after the referral but he refused
services. Id. at 8. He did not agree to participate until March 2018. Id. at
9. Father appeared at his first session at the Center three hours and forty-
five minutes late. Id. He agreed to return to the Center for further services
but never did so. Id. at 10. The Center then attempted to contact Father “on
numerous occasions” without success. Id. at 11. Finally, Father made contact
on April 3, 2018 and scheduled an appointment for April 11, 2018, to begin
medically assisted treatment. Id. He failed to appear for his appointment.
Id. at 11-12. The Center attempted to call Father three times without success
before discharging him later in April. Id. at 12. Even after discharging Father,
the Center continued attempting to contact him. Id. The Center made contact
with Father on May 1, 2018, and scheduled yet another appointment for May
18, 2018. Id. He failed to appear. Id. The Center made three more attempts
at contacting Father in June 2018, all of which were unsuccessful. Id. at 13.
The Center discharged Father for a second time on June 20, 2018. Id.



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Court. Id. The program discharged Father in June 2018. Petitioner’s Exhibit

14.

       At approximately the same time, on February 27, 2018, Father resumed

attending outpatient treatment at Gaudenzia. N.T., 8/17/18, at 32. Father

did not attend four of his thirteen or fourteen scheduled sessions and lacked

“motivation and insight into the severity of his addiction and his need for

follow-up treatment[.]” Id. at 33, 38. He “often presented with ambivalence

and wanted to focus more on how he hates OCY and treatment court[.]” Id.

at 34.   The program discharged Father due to noncompliance on May 29,

2018. Id. at 32.

       As Father’s progress toward sobriety deteriorated, so too did the other

circumstances of his life. Father informed OCY that he was going to become

homeless and that he would be staying with Mother’s parents. Id. at 117-18.

Troublingly, Father also reported that he would likely relapse if he had to stay

with Mother’s parents. Id. at 118. Father was evicted from his residence on

May 17, 2018, due to nonpayment of rent. Id. at 122. Father also failed to

attend his paternity testing for Child4 and then failed to attend the contempt

hearing that followed. Id. at 120-21. As a result, Father incurred a bench



____________________________________________


4Despite Father’s failure to appear at the paternity test, it is undisputed that
he is Child’s father. N.T., 8/17/18, at 120.




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warrant.5 Id. The juvenile court changed Child’s permanent placement goal

to adoption on June 1, 2018. Following the goal change, Time Limited Family

Reunification ended services with Father and his visitation with Child ceased.

Id. at 60, 152.

       On June 22, 2018, OCY filed a petition to terminate Father’s parental

rights to Child involuntarily. The orphans’ court held a termination hearing on

August 17, 2018, and September 21, 2018.6 On September 26, 2018, the

court entered a decree terminating Father’s rights. Father timely filed a notice

of appeal on October 26, 2018, along with a concise statement of errors

complained of on appeal.

       Father raises the following claims for our review:

       1. Did the [orphans’ c]ourt abuse its considerable discretion or
       commit an error of law when it ruled that the goal of “Adoption”
       should be abandoned in favor of terminating the parental rights of

____________________________________________


5Father was facing various summary charges as well. N.T., 8/17/18, at 123;
Petitioner’s Exhibit 19 (Magisterial District Judge docket).

6 The orphans’ court appointed Catherine Allgeier, Esquire, to serve as Child’s
legal counsel. Attorney Allgeier also served as Child’s guardian ad litem during
the dependency proceedings. The record demonstrates that Child was seven
months old at the time of the termination hearing. Thus, Child was too young
to state her preferred outcome in this case. See In re T.S., 192 A.3d 1080,
1092-93 (Pa. 2018) (holding that a guardian ad litem may represent both a
child’s legal and best interests so long as the two interests do not conflict, and
that no conflict can exist when a child is very young and pre-verbal, and his
or her preference is incapable of ascertainment). Attorney Allgeier supported
termination of Father’s rights during the hearing. N.T., 9/21/18, at 5. She
did not file a brief on appeal but did submit a letter repeating her support for
termination and joining the brief that OCY filed in Mother’s appeal.



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       [Father] even though he continued to make efforts to work [on] a
       treatment plan in efforts to reunify with his daughter, [Child]?

       2. Did the [orphans’ c]ourt abuse its considerable discretion or
       commit an error of law when it ruled that the goal of “Adoption”
       should be abandoned in favor of terminating the parental rights of
       [Father] under section (a)(6) that [F]ather failed to rectify the
       conditions under which the child was adjudicated, when the
       [c]ourt unilaterally chose not to follow the time limit of four (4)
       months prior to make any change in goal for this particular child,
       [Child]?

       3. Did the [orphans’ c]ourt commit an abuse of discretion in ruling
       that the termination of the father’s rights as parent under section
       (b) would be in the best interest of the child?

Father’s brief at 3 (suggested answers omitted).7

       We review Father’s claims in accordance with the following standard of

review:

       The standard of review in termination of parental rights cases
       requires appellate courts to accept the findings of fact and
       credibility determinations of the trial court if they are supported
       by the record. If the factual findings are supported, appellate
       courts review to determine if the trial court made an error of law
       or abused its discretion. A decision may be reversed for an abuse
       of   discretion    only   upon     demonstration      of    manifest
       unreasonableness, partiality, prejudice, bias, or ill-will. The trial
       court’s decision, however, should not be reversed merely because
       the record would support a different result. We have previously
       emphasized our deference to trial courts that often have first-hand
       observations of the parties spanning multiple hearings.

____________________________________________


7 While Father references Child’s goal change in his statement of questions
involved, and states briefly in the argument section of his brief that it was
improper for the juvenile court to change Child’s goal, he does not develop
this argument with citation to relevant authority. See 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, and supported by citations to relevant authority[.]”). We also observe
that Father did not appeal the goal change order.

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

omitted).

      Section 2511 of the Adoption Act governs involuntary termination of

parental rights. See 23 Pa.C.S.A. § 2511. It requires a bifurcated analysis:


      . . . . Initially, the focus is on the conduct of the parent. The party
      seeking termination must prove by clear and convincing evidence
      that the parent’s conduct satisfies the statutory grounds for
      termination delineated in Section 2511(a). Only if the court
      determines that the parent’s conduct warrants termination of his
      or her parental rights does the court engage in the second part of
      the analysis pursuant to Section 2511(b): determination of the
      needs and welfare of the child under the standard of best interests
      of the child. One major aspect of the needs and welfare analysis
      concerns the nature and status of the emotional bond between
      parent and child, with close attention paid to the effect on the child
      of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).

      In this case, the orphans’ court terminated Father’s parental rights to

Child pursuant to Sections 2511(a)(2), (6), and (b). We need only agree with

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

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

banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s

decision to terminate pursuant to 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:

                                       ***



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            (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.A. § 2511(a)(2), (b).

      We begin by considering whether the orphans’ court committed an

abuse of 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.A.
      § 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



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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).

      The orphans’ court found that Father has an extensive history of drug

abuse and that he failed to cooperate with services aimed at addressing his

addiction for nearly a year preceding Child’s birth. Orphans’ Court Opinion,

12/6/18, at 9. The court observed that Father remained noncompliant with

services even after Child’s birth, which established overwhelmingly that he

would not remedy his drug addiction. Id. at 9-10. The court also observed

that Father was evicted from his home for failure to pay rent, and struggled

to pay fines resulting from his criminal charges, which confirmed that he would

not be able to provide for Child financially. Id. at 10. The court concluded:

            [Father] has continuously demonstrated he cannot or will
      not place his children’s needs above his own. He refuses to accept
      responsibility for his actions. The skills and judgment necessary
      to provide for the emotional well-being of his child remain
      problematic. [Father] has consistently shown since March 2017,
      that he will not avail himself to the services offered to help him
      reunite with his children. The circumstances which led to the
      placement of the children have not been alleviated. [Father] was
      given numerous opportunities to demonstrate he would work to
      be able to provide the necessary basic needs for his child and
      repeatedly failed to do so. . . .

Id. at 10-11.

      Father argues that the orphans’ court abused its discretion or committed

an error of law because he was making progress toward complying with his



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drug and alcohol treatment plan. Father’s brief at 8-9. He acknowledges that

he put forward an “abysmal performance” after W.B.G. and K.N.G. entered

foster care in March 2017, but insists that he was largely compliant during the

following winter and the spring of 2018. Id. at 9. Father stresses that he did

not test positive for any illegal substance during 2018 and that he held

employment. Id. at 9-10. Father also contends that the court terminated his

parental rights too quickly, as it entered its decree only seven months after

Child’s birth. Id. at 8.

       We discern no abuse of discretion. As Father concedes, his performance

after OCY removed W.B.G. and K.N.G. in March 2017 was abysmal. Father

failed to comply with services throughout the remainder of the year. He then

relapsed as recently as February 2018, when Child was born. After Father’s

relapse, his compliance with services remained deficient. He failed to comply

with Treatment Court, outpatient treatment at Gaudenzia, and the Center for

Excellence. Meanwhile, Father was evicted from his housing and incurred a

bench warrant for failing to attend a contempt proceeding. Father is correct

that, after his relapse, he tested positive for alcohol and Suboxone only, and

that he reportedly received a prescription for Suboxone through ARS.8 What

____________________________________________


8During the hearing, Ms. Heise detailed Father’s history of drug screens. N.T.,
8/17/18, at 84. Between April 13, 2017 and February 12, 2018, Father was
unable to produce sufficient urine to provide a screen on five occasions. Id.
From March 2017 until June 4, 2018, Father failed to attend sixty-one screens.
Id. Father produced fifty-one positive screens between March 2017 and May



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Father does not acknowledge is that he also failed to attend several of his drug

screens, including those on May 25, 2018, May 29, 2018, May 31, 2018, and

June 4, 2018. Petitioner’s Exhibit 12 (drug screen results). At best, Father’s

drug screen results suggest that he had managed to avoid illegal substances

for a mere seven months at the time of the hearing. Father’s brief period of

sobriety does not excuse his failure, or even outright refusal, to comply with

services, nor does it excuse his inability to maintain housing and avoid legal

troubles.

       In addition, while Father protests that Child had only been out of his

care for seven months at the time the orphans’ court terminated his parental

rights, we cannot view Child’s short dependency in a vacuum. By the time of

the termination hearing, Father had received the benefit of numerous services

over the course of a year and a half. Father’s failure to comply with services

and maintain sobriety for any significant length of time demonstrates that he

will be at a high risk for future relapses, and that he will not be able to achieve

the maturity and stability necessary to care for Child in the foreseeable future.

As this Court has emphasized, “a child’s life cannot be held in abeyance while

a parent attempts to attain the maturity necessary to assume parenting

responsibilities. The court cannot and will not subordinate indefinitely a child’s


____________________________________________


21, 2018. Id. From June 1, 2017, until March 13, 2018, Father produced
forty-eight negative screens. Id. Two screens leaked in transit on July 18,
2017, and May 4, 2018, and one screen was damaged in transit on February
9, 2018. Id.

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need for permanence and stability to a parent’s claims of progress and hope

for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.

2006). The record supports the conclusion of the orphans’ court that Father

is incapable of parenting Child and that he cannot or will not remedy his

parental incapacity pursuant to Section 2511(a)(2).

      We next consider whether the orphans’ court committed an abuse of

discretion by terminating Father’s parental rights to Child pursuant to Section

2511(b). The requisite analysis is as follows:

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

            [I]n addition to a bond examination, the trial court can
            equally emphasize the safety needs of the child, and
            should also consider the intangibles, such as the love,
            comfort, security, and stability the child might have
            with the foster parent. Additionally, this Court stated
            that the trial court should consider the importance of
            continuity of relationships and whether any existing
            parent-child bond can be severed without detrimental
            effects on the child.

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

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

citations omitted).


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      The orphans’ court concluded that involuntarily terminating Father’s

parental rights would serve Child’s needs and welfare.         Orphans’ Court

Opinion, 11/29/18, at 10.    The court found that Child is prospering in her

foster home and that an “obvious bond” exists between Child and her foster

parents, who are meeting Child’s medical and developmental needs. Id.

      In response, Father makes no effort to argue that he and Child share a

bond. Father’s brief at 11-12. Instead, Father asserts once again that he was

making progress toward remedying his drug and alcohol issues at the time

the orphans’ court terminated his parental rights. Id. Father concedes that

he “may not have been following the Court Order to its exact parameters,”

but maintains that he was achieving sobriety nonetheless, which was more

important than strict compliance with the court’s directives. Id. Father also

emphasizes that he held employment, that he was searching for housing and

transportation, and that he struggled with “the extreme contentiousness of

scheduling issues with OCY[.]” Id. at 12.

      We again discern no abuse of discretion by the orphans’ court. Child

entered foster care shortly after her birth in February 2018 and remained in

care throughout her young life. After Child entered foster care, Father’s visits

were inconsistent. N.T., 8/17/18, at 128, 130. When Father did attend visits,

he often arrived twenty minutes to an hour late. Id. at 126. Moreover, Father

and Child did not appear to share a parental bond. Ms. Mumford recalled that

Father’s visits tended to consist of playing games with Child and her siblings.


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Id. at 141. She explained that Father and Mother “would basically act like

children and just like play with [C]hildren, play with the arcade games, like it

wasn’t very parent/child like.” Id.

      The record describes Child’s relationship with her foster parents in a

more positive light. Ms. Mumford testified that terminating Father’s parental

rights would not have a detrimental impact on Child, because she has a very

positive relationship with her foster parents and views them as her parents.

Id. at 128. Given Child’s dearth of contact with Father, it is apparent that she

and her foster parents share an important parental bond.       See Matter of

Adoption of M.A.B., 166 A.3d 434, 449 (Pa. Super. 2017) (“[A] child

develops a meaningful bond with a caretaker when the caretaker provides

stability, safety, and security regularly and consistently to the child over an

extended period of time.”). Therefore, terminating Father’s parental rights

will best serve Child’s needs and welfare. The record supports the decision of

the orphans’ court to terminate pursuant to Section 2511(b).

      Based on the foregoing, we conclude that the orphans’ court did not

abuse its discretion or commit an error of law by involuntarily terminating

Father’s parental rights to Child. Therefore, we affirm the court’s September

26, 2018 decree.

      Decree affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2019




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