J-S59029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ADOPTION OF: C.L., C.L., :           IN THE SUPERIOR COURT OF
MINOR CHILDREN                  :                PENNSYLVANIA
                                :
                                :
                                :
APPEAL OF: D.L., BIRTH FATHER   :           No. 727 WDA 2015

              Appeal from the Judgment entered April 15, 2015,
                Court of Common Pleas, Washington County,
                 Orphans’ Court at No(s): 63-OC-2013-1517
                           and 63-OC-2013-1516


IN RE: ADOPTION OF: C.L., C.L., :           IN THE SUPERIOR COURT OF
MINOR CHILDREN                  :                PENNSYLVANIA
                                :
                                :
                                :
APPEAL OF: D.L., BIRTH FATHER   :           No. 728 WDA 2015

                   Appeal from the Order April 15, 2015,
                Court of Common Pleas, Washington County,
                Orphans’ Court at No(s): 63-OC-2013-1516
                           and 63-OC-2013-1517

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED SEPTEMBER 24, 2015

      Appellant, D.L. (“Father”), appeals from the order of the trial court

terminating his parental rights to his two children, C.L. (born June 12, 2010)

and Ch.L. (born September 14, 2011) (together, the “Children”).        For the

reasons that follow, we affirm the trial court’s order granting the petition to

terminate parental rights filed by the Washington County Children and Youth

Services Agency (“CYS”).




*Former Justice specially assigned to the Superior Court.
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      In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the trial court set forth the following facts

relevant to Father’s appeal:

            The Father is [] from Lakeland, Florida. The Father
            testified that he moved to Washington County in
            2009. (T.T. 11/5/14, P. 63) However, Dr. Lee
            reported in his evaluation of the Father that he
            reviewed records from an inpatient hospitalization of
            Father in Washington Hospital in 2003. (Exhibit 1, P.
            3) The Mother and Father are not married. (T.T.
            11/5/14, P. 27) The Father is married but separated
            from wife Christina. Christina and Father have a
            daughter Nina, born May 2012.        Nina is in the
            custody of mother Christina and the Father has
            supervised visitation. The Father has a criminal
            conviction from Florida in 2008; the Father pled
            guilty to “Unlawful Sexual Activity with Certain
            Minors”. Due to this conviction, Father is required to
            report as a Megan’s Law offender under a Tier I
            offense, the lowest category pursuant to Florida law.
            (Exhibit 5)     The Father receives social security
            disability (SSI). (T.T. 8/6/14, P. 125; 11/5/14, P.
            21)

            CYS first became involved with the family on
            September 14, 2011, at the birth of Ch.L. The
            hospital staff reported concerns to CYS that Mother
            lacked any identification and that Father was very
            controlling of Mother, answering questions for her.
            (T.T. 8/6/14, P. 95) At the time, the Mother, Father,
            the two children and the Father’s wife were all living
            together. (T.T. 11/5/14, P. 29) In early 2012, after
            an argument between Mother and Father’s wife
            Christina, the Mother and [Children] moved to a
            women’s shelter in Allegheny County.             (T.T.
            11/13/14, P. 30-32) After a few months, they left
            and returned to the home of the Father. In October
            of 2012, CYS located the family and went to the
            residence.    CYS found that the home was in a
            deplorable and filthy condition and was inadequate



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          for the seven adults and two children living there.
          (T.T. 8/6/14, P. 99) The Children were removed by
          emergency shelter order and placed in foster care on
          October 16, 2012, where they have remained. (T.T.
          8/6/14, P. 100)

          The Children were adjudicated dependent on
          December 3, 2012. The allegations of dependency
          were deplorable living conditions, the Father’s status
          as a Megan’s Law offender and his serious mental
          health issues and the lack of verifiable identity of
          Mother. (Exhibit 6; Dep. Pet. P. 5 of 5) Over the
          course of the dependency case, the parents have
          been ordered to obtain and maintain appropriate
          housing, to complete a parenting educational
          training and to obtain a mental health evaluation and
          follow through with any treatment. The Father was
          also ordered to complete an anger management
          course and obtain a sexual offender assessment and
          follow through with any recommended treatment.
          (Exhibit 6; T.T. 8/6/14, P. 101)

          The parents have moved at least four times in the
          last two years. They lived in a trailer in Canton
          Township, then moved to Washington, then to West
          Alexander and in January of 2014 to Eighty-Four,
          Pennsylvania, where they have remained.      (T.T.
          8/6/14, P. 118) Their current housing was found
          with the assistance of CYS and is appropriate,
          although some issues of cleanliness have arisen.
          (T.T. 8/6/14, P. 170) The parents completed the
          parenting program through Justice Works.     (T.T.
          8/6/14, P. 105) …

          The Father completed anger management in
          February 2014. (T.T. 8/6/14, P. 175) During the
          course of treatment for anger management, he
          continued to have outbursts of anger; on November
          25, 2013 he verbalized that he wanted to kill the
          CYS caseworker. (Id.) The Father had a sexual
          offender’s assessment in December 2012 and was
          found to be at a moderate risk for recidivism.
          (Exhibit 3) He did not begin treatment for sexual



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          offenders until June 2014; the treatment consists of
          weekly group counseling sessions and twice monthly
          individual sessions.   (T.T. 11/5/14, P. 83, 86)
          Treatment is expected to take two years. (T.T.
          11/5/14, P. 87)

          The Father’s mental health issues date back to his
          teenage years.      He had a voluntary psychiatric
          hospital admission in 2003. He was diagnosed as
          bipolar and was prescribed Lithium, Clozaril,
          Depakote and Zyprexa and recommended continued
          treatment.     The Father obtained a psychiatric
          evaluation by Dr. Stephen Lee of Washington
          Communities Human Services, Inc.             Dr. Lee
          diagnosed the Father with bipolar disorder (Axis I).
          (Exhibit 1) He recommended (urgently) medication
          management and individual therapy. He found that
          Father did not present suicidality, but homicidality
          was present.      (Exhibit 1)   In the psychological
          evaluation by Dr. Rosenblum in 2014, the Father was
          diagnosed with bipolar disorder with psychotic
          features (Axis I), impulse control disorder NOS (Axis
          I), and mixed personality disorder with narcissistic,
          antisocial and borderline features (Axis II). (Exhibit
          2) His IQ was found to be 99. The Father began
          mental health counseling in May of 2014. (T.T.
          8/6/14, P. 187)

          Throughout the history of the case, the Father has
          relayed grandiose and incredible statements to the
          many social workers and other professionals involved
          with this family and to this Court in juvenile
          dependency proceedings. The Father has reported
          having a genius IQ, having completed graduate
          school at Brigham Young University, serving in the
          military and being injured in Iraq, and building a
          large home in Marianna, Pennsylvania, all of which
          are not true.

          The parents have weekly supervised visitation for
          five hours. (T.T. 8/6/14, P. 123) Even though the
          Children were not dirty, the Father insisted on
          bathing them during each visit, stating the Children



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            got dirty and that they enjoy bath time.        (T.T.
            11/13/14, P. 72; 11/5/14, P. 56)         The Father
            accused the case aide of inappropriate leering at his
            daughter during the bath time. (T.T. 11/5/14, P. 57)

            Dr. Rosenblum conducted an interactional evaluation
            with the parents and the Children and the foster
            parents and the Children.         He supported the
            termination of the parents’ rights. (T.T. 8/6/14, P.
            44)    The CYS caseworker testified that, in her
            opinion, the Children would not suffer any
            detrimental effects if the parents’ rights were
            terminated. (T.T. 8/6/14, P. 129-30) The Guardian
            Ad Litem also supported the termination of the
            parents’ rights. (T.T. 11/13/14, P. 69)

Trial Court Opinion, 6/12/2015, at 2-5.

      CYS filed a petition to terminate Father’s parental rights on December

24, 2013. The trial court conducted evidentiary hearings on August 6, 2014,

November 5, 2014, November 5, 2014, and November 13, 2014. On April

15, 2015, the trial court issued an order granting CYS’s petition and

terminating Father’s parental rights.     On appeal, Father contends that the

trial court erred because the evidence presented by CYS was “insufficient to

sustain” the trial court’s decision to terminate his parental rights.

      We review the appeal from 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



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            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. As
            has been often stated, an abuse of discretion does
            not result merely because the reviewing court might
            have reached a different conclusion.       Instead, a
            decision may be reversed for an abuse of discretion
            only     upon      demonstration      of     manifest
            unreasonableness, partiality, prejudice, bias, or ill-
            will.

            As [the Pennsylvania Supreme Court] discussed in
            [In re: R.J.T., 9 A.3d 1179 (Pa. 2010)], there are
            clear reasons for applying an abuse of discretion
            standard of review in these cases. [The Supreme
            Court] 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal

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

Moreover, we have explained:




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            [t]he 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).

      When deciding a case falling under section 2511, the trial court must

engage in a bifurcated process. In re B.C., 36 A.3d 601, 606 (Pa. Super.

2012). In that analysis,

            [t]he initial 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 at least one of the nine statutory grounds in
            section 2511(a). If the trial court determines that
            the parent’s conduct warrants termination under
            section 2511(a), then it must engage in an analysis
            of the best interests of the child under section
            2511(b), taking into primary consideration the
            developmental, physical, and emotional needs of the
            child.

Id.

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

banc). Here, the trial court terminated Father’s parental rights under section

2511(a)(1), (2), (5), (8) and (b). We will analyze the trial court’s decision

to terminate Father’s parental rights under section 2511(a)(8) and (b).

      These sections provide:

            § 2511. Grounds for involuntary termination



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           (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:

                                        ...

                 (8) The child has been removed from the
                 care of the parent by the court or under
                 a voluntary agreement with an agency,
                 12 months or more have elapsed from
                 the date of removal or placement, the
                 conditions which led to the removal or
                 placement of the child continue to exist
                 and termination of parental rights would
                 best serve the needs and welfare of the
                 child.

                                        ...

           (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)-(b).

     Termination of parental rights under Section 2511(a)(8) requires CYS

to demonstrate the following factors: (1) the child has been removed from

parental care, (2) 12 months or more have lapsed from the date of removal;

(3) the conditions which led to the removal or placement of the child



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continue to exist; and (4) termination of parental rights would best serve the

needs and welfare of the child. In re K.M., 2012 160, 53 A.3d 781, 789

(Pa. Super. 2012) (quoting In Re Adoption of M.E.P., 825 A.2d 1266,

1275–1276 (Pa. Super. 2003)).

      The first two elements in this analysis are established, as CYS

removed the Children from Father’s care in October 2012, and they have

resided in foster care since that date. N.T., 8/6/2014, at 99. With respect

to the third element, the certified record on appeal supports the trial court’s

decision.    The reasons for the removal of the Children from Father’s care

included, inter alia, Father’s need for anger management and mental health

treatment.    Id. at 101-02.   While it is true that Father completed anger

management counseling in November 2013, the trial court questioned its

effectiveness, pointing out that Father threatened the life of a caseworker.

Trial Court Opinion, 6/12/2015, at 3.    The record supports this finding, as

there was testimony that just three days prior to completing his anger

management counseling, Father indicated to John Bert of Justice Works that

he was “going to put a hole in [the CYS caseworker’s] head.”              N.T.,

8/6/2014, at 111.

      Regarding his mental health issues, Father delayed beginning his

treatment for more than a year after the Children had been removed from

his care, and not until after the petition to terminate his parental rights had

been filed. Id. at 115. More importantly, Father’s mental health issues are



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both severe and, with respect to at least one significant diagnosis

(personality disorder), not amenable to treatment. The trial court found as

follows:

           He was diagnosed with an Axis II disorder; the Axis
           II diagnosis of personality disorder is not responsive
           to treatment and is ingrained and lifelong. That is,
           Father’s serious mental health disorder is not easily
           treatable to behavior modification. The Father is not
           only bipolar, he “displays prominent antisocial
           personality characteristics and evidence of an
           impulse control disorder. He has very few inhibitions
           and tends to be reckless, impulsive and exercises
           poor judgment in his interactions with others.” (Dr.
           Rosenblum’s     Report,    Exhibit   2).       He    is
           “tempermental,     reckless    and    evidencing    an
           extremely unstable personal adjustment and
           lifestyle.” (Exhibit 2). His ability to benefit from
           treatment is very limited. The Father’s treatment as
           a sexual offender is only in its beginning stages and
           can take upward of two years to complete.
           Additionally, untreated mental issues pose a barrier
           to successful treatment for sexual offenders. Since
           Father had also just begun mental health treatment,
           any cognizable progress was yet to be seen.

Trial Court Opinion, 6/12/2015, at 8-9.     Based upon our review of the

certified record on appeal, including the testimony and reports of Dr.

Stephen Lee and Dr. Neil Rosenblum, the trial court has correctly

summarized the evidence regarding Father’s current mental health issues

that CYS presented at the evidentiary hearings.

      On appeal, Father disagrees with the trial court’s findings. He argues

that CYS’s contentions “can be boiled down to a fear that Father will at some

time behave erratically and harm his children.” Father’s Brief at 11. Father



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contends that this “conjecture” is belied by his actions, including the absence

of any evidence of recent anger outbursts demonstrating ongoing anger

management issues. Id. at 13.

      Unfortunately, the Father’s arguments amount to an attack on the

credibility of the opinions of CYS’s mental health experts. As is clear from its

Rule 1925(a) opinion, however, the trial court found their testimony

regarding the state of Father’s mental health to be credible.       Trial Court

Opinion, 6/12/2015, at 8-9.       This Court is bound by the trial court’s

determinations in this regard, as “[t]he trial court is free to make all

credibility determinations, and may believe all, part, or none of the evidence

presented.”   In the Interests of J.F.M., 71 A.3d 989, 992 (Pa. Super.

2013). Moreover, the courts of this Commonwealth have long held that a

child's life “simply cannot be put on hold in the hope that [the parent] will

summon the ability to handle the responsibilities of parenting.”         In re

Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003) (citing In Re:

J.T. and R.T., 817 A.2d 505, 509 (Pa. Super. 2003)). As a result, we must

conclude that the trial court’s decision that Father’s serious mental issues

and the concomitant need for treatment, which were conditions that lead to

the removal of the Children, continue to exist and likely will continue to

persist well into the future.     CYS thus presented clear and convincing

evidence to establish the third element under section 2511(a)(8).




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      The fourth element under section 2511(a)(8) requires CYS to show

that termination of Father’s parental rights would best serve the needs and

welfare of the Children. Under Section 2511(a), the focus is on the parent,

whereas the focus in Section 2511(b) is on the child.     In re Z.S.W., 946

A.2d 726, 732 (Pa. Super. 2008). The “best interests of the child” analysis

under Section 2511(a)(8) therefore accounts for the needs of the child in

addition to the behavior of the parent.      In re C.L.G., 956 A.2d 956 A.2d

999, 1008-09 (Pa. Super. 2008) (en banc); In re I.J., 972 A.2d 5, 12 (Pa.

Super 2009). This analysis requires consideration of “[i]ntangibles such as

love, comfort, security, and stability.” In re C.P., 901 A.2d 516, 520 (Pa.

Super. 2006). To this end, this Court has indicated that the trial court “must

also discern the nature and status of the parent-child bond, paying close

attention to the effect on the child of permanently severing the bond.”

C.L.G., 956 A.2d at 1009.      The continuity of relationships is important

because severing close parental ties is often extremely painful.       In re

Adoption of K.J., 936 A.2d 1128, 1134 (Pa. Super. ).

      Azure Hixenbaugh, the CYS caseworker, testified that based upon her

observations, there was no bond between the Children and their parents

(including Father) that was of benefit to the Children.    N.T., 8/6/2014, at

130. Dr. Rosenblum testified that while he believed that the parents loved

the Children, he saw no similar loving relationship between the Children and

their parents. Id. at 46-47. Instead, Dr. Rosenblum described the Children



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as “comfortable” with their parents, with the older child (C.L.) exhibiting

more of an attachment than Ch.L. Id. at 46. Both Ms. Hixenbaugh and Dr.

Rosenblum agreed that severing the relationship between the Children and

Father would not result in any detrimental effect to the Children. Id. at 47-

48, 130. According to Dr. Rosenblum, the Children have adapted to life with

their pre-adoptive foster parents, from whom they derive all of their

“nurturing,   direction   and   emotional    support,”     and   that   as   a    result

termination was not “something that would cause the children any significant

adjustment concerns.”         Id. at 47-48.      Both Ms. Hixenbaugh and Dr.

Rosenblum also agreed that the Children have strong bonds with their pre-

adoptive foster parents and that termination of parental rights and adoption

were in the Children’s best interests. Id. at 44, 130; see In re T.S.M., 71

A.3d 251, 268 (Pa. 2013) (“Common sense dictates that courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.”).

      Turning to section 2511(b), on appeal Father does not challenge the

trial court’s factual findings or legal determination under this provision. For

the   reasons   set   forth   hereinabove,     including   the   testimony       of   Ms.

Hixenbaugh and Dr. Rosenblum, no basis exists in the certified record to

conclude that the trial court erred in this respect.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




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