J-S73017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.R., JR., A MINOR                         IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


APPEAL OF: J.R., FATHER
                                                      No. 1325 MDA 2014


                   Appeal from the Order Entered July 3, 2014
               In the Court of Common Pleas of Lancaster County
                       Orphans’ Court at No: 45 of 2014


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 19, 2014

       J.R. (“Father”) appeals the July 3, 2014 order that terminated his

parental rights to J.R., Jr. (“Child”).1 After careful review, we affirm.

       The trial court summarized the procedural and factual history of this

case as follows:

       This matter comes before the court on the Petition filed by the
       Lancaster County Children and Youth Social Service Agency
       (hereinafter “Agency”) to terminate the parental rights of
       [Father] and [C.T. (“Mother”) (collectively, “Parents”)], birth
       parents of [Child]. The petition was filed on January 8, 2014
       and notice in accordance with the provisions of the Adoption Act
       was provided to Parents. The petition was served on Parents on
       February 25, 2014. [Child] has now been in placement for
       almost 18 months. A full hearing was held on March 25, 2014,
       and then additional testimony was presented on April 22, 2014.
       Juvenile records were incorporated fully at the termination
       hearing on March 25, 2014.
____________________________________________


1
      The court also terminated the parental rights of C.T. (“Mother”) in the
July 3, 2014 order. Mother also filed a notice of appeal that was docketed at
1268 MDA 2014. That appeal is disposed of in a separate memorandum.
J-S73017-14


                                  *    *    *

     The relevant facts are as follows: [Child] is a minor child born [in
     November 2012], in Lancaster County, Pennsylvania. At the
     time of [Child’s] birth, Mother and Father were living together in
     a motel room at Penns Woods Inn, in Manheim with three other
     people. Additionally, Mother had a previous history with the
     Agency, and her first[-]born child was placed with a family friend
     under a safety plan that was developed due to neglect [of the
     child] while under Mother’s care.       Mother’s older child was
     subsequently adopted by the resource family.

     Due to these concerns, [Child] was released from the hospital
     under a safety plan on December 13, 2012. On December 15,
     2012, the safety plan family contacted the Agency and stated
     they were no longer willing to keep the child. [Child] has been
     in Agency care since December 16, 2012. [Child] was placed in
     the resource home that adopted his older half-brother and has
     done very well there. At the time of placement, the Agency was
     very concerned with Mother and Father’s inappropriate housing,
     Mother’s mental health and their parenting skills.

     The court approved a Child Permanency Plan that included the
     following goals for both Mother and Father: mental health,
     parenting, income, housing, and commitment to the child. At
     the hearing, the caseworker testified that she had provided them
     with information on low-income housing and how to apply for it.
     She also spoke to them about websites they could use to find
     housing and how to look in the newspaper. At that time, the
     caseworker also offered to continue providing the information
     and assist in filling out applications.      Both parents have
     completed their mental health goals, have demonstrated a
     commitment to the child by regularly attending visits, and now
     have sufficient income. However, Parents have been unable or
     unwilling to find appropriate housing for the child. Mother and
     Father were also unable to start working on the parenting goal,
     as the Personalized Parent Trainer [(“PPT”)] could only be put in
     place once the housing goal was met.3 In addition to verbal
     communication, the Agency sent letters to Parents on June 6,
     2013, August 5, 2013, September 4, 2013 and December 9,
     2013 in which [it] encouraged Parents to keep the Agency
     updated and to find housing so that a referral to a [PPT]
     program could be made. [Child] has now been in placement for
     almost 18 months.


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        3
           The Agency determined that a parenting class would not
        be sufficient to satisfy the parenting goal, due to Mother’s
        demonstrated parenting deficits with her older child.

     At the first review hearing on June 4, 2013, the caseworker
     testified that Mother and Father were still residing at the Penns
     Woods Inn, but they had plans for housing. The caseworker also
     testified that she explained to Mother and Father that she could
     not make a referral to a Personalized Parent Trainer until there
     was more stable and appropriate housing. The caseworker
     stated, “I think that they’re both committed to getting housing,
     and I think that knowing that the biggest step, being the
     parenting, can’t start until that happens . . . I think, if anything,
     they’re definitely going to make sure they have it done now.”

     The caseworker testified that, in 2013, Father was reporting to
     the Agency that he was making $800 per week. In actuality,
     Father had made approximately $5,000 for the entire year of
     2013. Mother reported to the Agency that she was filing for SSI
     and would receive around $900 per month. Based upon the
     income being reported to the caseworker, the Agency did not
     provide services to help Parents apply for low-income housing.
     Additionally, Parents repeatedly indicated to the caseworker that
     they were identifying appropriate housing and therefore did not
     need support finding a place to live. The parents are solely
     responsible for the misinformation given to the Agency and
     Court concerning their income and housing prospects, which
     directly affected the services provided to them.

     Father first told the Agency that he had trouble locating housing
     in October of 2013, after the child had been in placement for 10
     months. At a hearing before the Master on October 2, 2013, the
     caseworker stated: “The income is less than we expected. Part
     of the Agency’s sort of hands-off approach at finding housing
     was an impression to us that they had sufficient funds . . . So
     there will be some additional efforts put forth in terms to help to
     find some housing.” The caseworker again stated that the PPT
     would only be willing to work with the family in a potentially
     permanent home, and they would not accept a referral while
     Mother and Father continued to reside in the motel. [The]
     caseworker also testified that Parents indicated that part of their
     struggle finding housing was their low credit score.           The




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       caseworker had made calls to Tabor[2] but had not been called
       back. The caseworker also testified that she was going to ask
       Mother and Father to sign a release so she could talk with the
       landlord to figure out what it would take for Parents to switch
       from the motel room to an apartment on the same premises.

       The caseworker spoke with Father in November 2013, and he
       told her that a family friend was willing to rent them a basement
       apartment for $250 or $500 a month,13 which was less than
       what they paid to the motel. The caseworker testified that at
       that time she told Father that was a good option, because even
       if it was not appropriate for the child, they would save money to
       put towards an apartment. The caseworker stated that Father
       told her in December that moving into the basement apartment
       would not happen, as he did not think it would be the right place
       for the child. At this point, [Child] had been in Agency custody
       for a year.
          13
              The record is unclear.        The caseworker originally
          testified that the rent of the basement apartment would be
          $450-$500, but later stated that it was $250. Parents
          were paying about $750/month at the motel where they
          were staying.

       At the initial termination of parent rights and review hearing on
       February 25, 2014, the caseworker stated that the parents had
       progressed only minimally on their child permanency plans since
       the first review. The caseworker stated, “They certainly took a
       lot of steps early on, but there seems to be not much follow-
       through lately.” [He] testified that parents still did not have
       stable income, they continued to reside in the Penns Wood Inn,
       and therefore had not been referred for parenting.            The
       caseworker also testified that Parents had completed the mental
       health component of their plans and continued to attend and
       behave appropriately at visits [with Child], however they did not
       seem dedicated to completing their plans.         The caseworker
       stated that [he] was suspicious as Parents kept telling [him] that
       they were applying for housing, but had not provided [him] with
       any names, applications, or records of income.

____________________________________________


2
      Tabor is a Lancaster County community organization that assists with
housing and provides financial counseling.



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     Father testified at the [February 2014] hearing that he was laid
     off from Good’s Dairy in November of 2013, where he worked for
     8 years, and only earned approximately $5,000 before he was
     let go in 2013. He had earned approximately $800 per [week]
     (approximately $40,000 a year) in prior years. He stated that
     he had filed for unemployment but was denied due to inadequate
     hours, and at the time of the hearing his appeal was still
     pending.      Father stated that he was unable to obtain
     employment because he needed Monday afternoons off in order
     to attend visits. Father told the Court that his friend was buying
     a lot with a house on it, and hopefully they could move in by
     March 1, 2014. The caseworker met with Father on March 3,
     and he told the caseworker that he would be meeting with the
     landlord later that week to sign a lease. Prior to the termination
     of parental rights hearing on March 25, 2014, Father informed
     the caseworker that they would not be moving into that property
     in the immediate future as the current tenant was still living in
     the house and the potential landlord had not purchased the
     property yet.       At this point [Child] had been in care
     approximately 15 months.

     The termination of parental rights hearing was continued to April
     22, 2014 in order for Parents to prepare their testimony and the
     potential landlord’s testimony. When the Court reconvened in
     April, Parents had changed their plan yet again, and were no
     longer going to live in the house from the March hearing, and
     were now planning on renting a house with Father’s birth
     mother, [D.C.].29 Both Father and [D.C.] testified that they had
     signed a lease on a duplex, and would be moving in June 1,
     2014. A copy of the lease was presented at the hearing, marked
     as an exhibit and admitted to the record. As of the June 1, 2014
     occupancy date, [Child] would be in care for approximately 16
     months.
        29
           Father’s birth mother has a history with the Agency.
        She placed Father for adoption when he was an infant.
        Father did not have any contact with his birth mother until
        very recently.

Trial Court Memorandum and Order (“T.C.M.”), 7/3/2014, at 1-6 (some

footnotes omitted; minor modifications to capitalization and punctuation).




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      Following the hearings, on July 3, 2014, the trial court issued a

memorandum and order that terminated Mother’s and Father’s parental

rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(8) and (b). On August 4, 2014,

Father timely filed a notice of appeal and a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).       On

August 13, 2014, the trial court filed a Pa.R.A.P. 1925(a) opinion.

      Father raises four issues for our review:

      1. Whether the court erred by terminating Father’s parental
         rights when environmental factors beyond his control caused
         any failure to complete a child permanency plan[?]

      2. Whether the court abused its discretion by terminating
         Father’s parental rights when the child has a bond with Father
         and there was insufficient evidence presented to determine if
         the termination of the relationship with Father would harm
         the child[?]

      3. Whether the court erred in determining the parenting goal
         required a personalized parenting trainer (PPT) where the
         plan only specified an agency[-]approved program and the
         court did not mandate a PPT during any point in the
         proceedings?

      4. Whether the court erred in terminating Father’s parental
         rights where the Agency failed to fulfill their obligations to
         assist the parents with reunification and presented ongoing
         resistance to the parents[?]

Father’s Brief at 4.

      Our scope and standard of review are as follows:

      In an appeal from an order terminating parental rights, our
      scope of review is comprehensive: we consider all the evidence
      presented as well as the trial court’s factual findings and legal
      conclusions. However, our standard of review is narrow: we will
      reverse the trial court’s order only if we conclude that the trial


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     court abused its discretion, made an error of law, or lacked
     competent evidence to support its findings. The trial judge’s
     decision is entitled to the same deference as a jury verdict.

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

     Further, we have stated:

     Where the hearing court’s findings are supported by competent
     evidence of record, we must affirm the hearing court even
     though the record could support an opposite result.

     We are bound by the findings of the trial court which have
     adequate support in the record so long as the findings do not
     evidence capricious disregard for competent and credible
     evidence. The trial court is free to believe all, part, or none of
     the evidence presented, and is likewise free to make all
     credibility determinations and resolve conflicts in the evidence.
     Though we are not bound by the trial court’s inferences and
     deductions, we may reject its conclusions only if they involve
     errors of law or are clearly unreasonable in light of the trial
     court’s sustainable findings.

In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).

     The trial court terminated Father’s parental rights pursuant to section

2511(a)(8) and (b), which provide in relevant part:

     (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.

                                 *    *    *


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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.A. § 2511.

      To terminate parental rights pursuant to 23 Pa.C.S.A.
      § 2511(a)(8), the following factors must be demonstrated: (1)
      the child has been removed from parental care for 12 months or
      more from the date of removal; (2) the conditions which led to
      the removal or placement of the child continue to exist; and (3)
      termination of parental rights would best serve the needs and
      welfare of the child. Section 2511(a)(8) sets a 12-month time
      frame for a parent to remedy the conditions that led to the
      [child’s] removal by the court. Once the 12-month period has
      been established, the court must next determine whether the
      conditions that led to the child’s removal continue to exist,
      despite the reasonable good faith efforts of [the child welfare
      agency] supplied over a realistic time period. Termination under
      Section 2511(a)(8) does not require the court to evaluate a
      parent’s current willingness or ability to remedy the conditions
      that initially caused placement or the availability or efficacy of
      [the child welfare agency’s] services.

In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citations omitted).

      While Father presents four issues in his Statement of Questions

Presented, he divides his brief into three sections – two discussing

subsection 2511(a)(8) and one briefly discussing subsection 2511(b).

Therefore, we will follow a similar format.




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      Father argues that he does not yet have appropriate housing, but he

attributes that failure to factors beyond his control. Father asserts that his

income is sufficient to secure housing, but that his lack of a credit score has

prevented him from obtaining housing.           Father also argues that the lease

that he presented at the last hearing satisfies the Agency’s requirements.

Father’s Brief at 14-16. Father also contends that he could have fulfilled the

parenting requirement through a non-PPT program, but that the Agency

refused to cooperate. Id. at 16-17.

      A   parent’s   rights   are   not    to   be   terminated   based   upon   an

environmental factor, such as housing, that is outside the parent’s control.

23 Pa.C.S.A. § 2511(b). In this case, the Agency made clear that housing

was a priority.   Notes of Testimony (“N.T.”), 2/25/2014, at 22.           Matthew

McCafferty, the caseworker, had been informed about various plans from

Father about housing, but Father never provided any details, such as lease

applications, names of contacts, or any records.           Id. at 19-21.    At the

termination hearing, Mr. McCafferty testified that Mother or Father told him

four or five different times that they had secured housing, only to have it not

work out. N.T., 3/25/2014, at 19, 33. Parents’ residence at the motel was a

single, small room with a microwave and an adjoining bathroom. Id. at 19-

20.

      The trial court concluded that Father misled the Agency about the

housing situation.   T.C.M. at 7.    The court specifically found that Father’s

excuses for failing to find housing, including his credit score issue, were not

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credible. Id. at 8. The court determined that Mother and Father “lack[ed]

motivation to secure appropriate housing” and that there was “a frequent

pattern of little information provided to the Agency, extremely late follow

through, and no documentation.”        Id. at 7.     Further, Father’s lack of

transparency about housing caused the Agency to provide less assistance

than it might otherwise have provided.        Trial Court Opinion (“T.C.O.”),

8/13/2014, at 2. The trial court concluded that Mother and Father were the

sole cause of their lack of appropriate housing.      T.C.M. at 8.   While the

termination was due, in part, to the housing issue, the court found, and the

record supports, that this was not outside of Father’s control. Regarding the

lease with D.C. that was produced at the April 22 hearing, the court may not

consider it because it is prohibited from considering post-petition conduct.

See 23 Pa.C.S.A. § 2511(b); In re D.W., 2004 PA Super 320, 856 A.2d

1231, 1235 (2004) (holding that the “restriction [against considering post-

petition conduct] set forth in § 2511(b) applies to the entire termination

analysis”). Therefore, it did not err in finding that the lease Parents entered

into with D.C. did not suffice to remedy the housing problem.

      Next, Father argues that the inability to complete the parenting goal

was also outside of his control.    The trial court stated that, based upon

Mother’s previous involvement with the Agency, it had “serious concerns”

about Mother’s ability to parent.    T.C.O., at 1.    Further, because Father

worked, Mother would be the primary caretaker if Child was returned to the

home.   Therefore, the trial court determined that a PPT was necessary to

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alleviate those concerns, that parenting classes or other alternatives would

not have provided enough guidance to ensure that Mother could parent Child

adequately, and that the PPT was the only method by which Parents could

meet their goal. Id. at 1-2. Because Parents’ housing was not appropriate,

the PPT could not work with them in their residence to assess parenting or

work with Parents and Child. Id. at 2.

     We find nothing in the record to contradict the trial court’s statements.

At the last permanency review in February 2014, the trial court stated that

the parenting referral could not occur until Parents secured housing. N.T.,

2/25/2014, at 31-32.     “[T]ermination under subsection (a)(8) does not

require an evaluation of [the parent’s] willingness or ability to remedy the

conditions that led to placement of the children. Instead, subsection (a)(8)

requires only that the conditions continue to exist after the twelve month

period has elapsed.” In re Adoption of R.K.Y., 72 A.3d 669, 679-80 (Pa.

Super. 2013) (citations and quotation marks omitted).       While Father may

have been willing to take other parenting classes, the court determined that

they were not sufficient. We find no abuse of discretion.

     Finally, Father briefly argues that the trial court failed to consider the

bond between Child and Father in its consideration of Child’s needs and

welfare pursuant to 23 Pa.C.S.A. § 2511(b).     In reviewing the evidence in

support of termination under section 2511(b), our Supreme Court recently

stated:




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      [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.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). However, this Court has held

that the trial court is not required to order a formal bonding evaluation

performed by an expert. In re K.K.R.-S., 958 A.2d 529, 533 (Pa. Super.

2008). Additionally, “[t]he mere existence of an emotional bond does not

preclude the termination of parental rights.” In re A.D., 93 A.3d 888, 897

(Pa. Super. 2014). Instead, the court must determine whether severing that

bond would be detrimental to the child. Id. at 898.

      Mr. McCafferty testified that Child’s foster home was safe and secure.

N.T., 3/25/2014, at 34.    He also stated that Child’s medical needs were

“well-attended to” by his foster parents. Id. Child was placed in this home

in January 2013, when he was approximately three months old.         Child is

“strongly attached” to the foster parents. Id. at 35. While Child interacts

well with Father during the supervised visits, Mr. McCafferty opined that

Child would not be harmed by the termination of Father’s parental rights and

that termination was in Child’s best interest. Id. at 36-37.



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      The trial court credited this testimony. The court considered that Child

has lived with the foster family for almost his entire life and that the foster

parents have provided him with care and met all his needs. The trial court

found that Child’s primary bond and attachment was with his foster parents

and that termination of Father’s parental rights would not harm Child.

T.C.M. at 10. Based upon the record before us, the trial court did not abuse

its discretion in so finding.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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