J-S28044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE MATTER OF THE ADOPTION              :   IN THE SUPERIOR COURT OF
    OF A.Z.F.                                  :        PENNSYLVANIA
                                               :
                                               :
                                               :
    APPEAL OF: R.O.F.-F., NATURAL              :
    FATHER                                     :   No. 67 WDA 2017

                    Appeal from the Decree December 9, 2016
                   In the Court of Common Pleas of Erie County
                  Orphans’ Court at No(s): 22 In Adoption 2016

BEFORE:      OLSON, MOULTON, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                           FILED JUNE 16, 2017

        R.O.F.-F. (Father) appeals from the Decree entered December 9,

2016, in the Court of Common Pleas of Erie County, which terminated

involuntarily his parental rights to his minor daughter, A.Z.F. (Child).1 We

affirm.

        The orphans’ court summarized the relevant factual and procedural

history of this matter as follows.

              [Child] was born [in January 2014]. She was adjudicated
        dependent on September 8, 2014 after she was removed from
        her parents’ care due to an incident of domestic violence.
        During this incident, [Father] held the natural mother down,
        poured bleach over her face, and held a gun to her head while
        [Child] was present in the home. The natural mother showed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The orphans’ court entered a separate decree that same day terminating
the parental rights of Child’s mother, D.W.         D.W. did not appeal the
termination of her parental rights, nor did she file a brief in connection with
this appeal.
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     [Erie County Office of Children and Youth (OCY)] workers
     staining on the couch and carpet that appeared consistent with
     exposure to bleach.       [Father] was arrested and criminally
     charged after this incident.

           The natural mother received medical treatment for skin
     and eye irritation. At the time of the adjudication, [Father]
     stipulated to the facts underlying the adjudication, including his
     own history with [OCY] regarding another child.

Orphans’ Court Opinion, 2/2/2017, at 1 (citations omitted).

     On April 4, 2016, OCY filed a petition to terminate involuntarily

Father’s parental rights to Child.        The orphans’ court conducted a

termination hearing on December 1, 2016, and December 2, 2016.

Following the hearing, on December 9, 2016, the court entered a decree

terminating Father’s parental rights. Father timely filed a notice of appeal,

along with a concise statement of errors complained of on appeal.

     Father raises the following issues for our review.

     1. Did the orphans’ court commit an abuse of discretion and/or
     error of law when it concluded that the termination of [Father’s]
     parental rights was in [C]hild’s best interest in view of the
     unconverted [sic] evidence of record that [C]hild and [F]ather
     share a close, loving relationship and bond?

     2. Did the orphans’ court err when it summarily denied
     [Father’s] pre-hearing motion to compel the production of
     visitation case notes/case summaries as those notes and
     summaries likely contained information favorable to [] Father,
     were relevant to the termination proceeding, and were
     discoverable?

Father’s Brief at 5 (unnecessary capitalization, orphans’ court answers, and

suggested answers omitted).




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      In his first issue, Father challenges the decree terminating his parental

rights to Child.   We consider Father’s issue mindful of our well-settled

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.

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

omitted).

      Termination of parental rights is governed by Section 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938, which 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.

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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

pursuant to Section 2511(a)(1), (2), (5), (8), and (b).     On appeal, Father

does not challenge the findings of the orphans’ court with respect to Section

2511(a). Instead, Father focuses his argument entirely on Section 2511(b),

which states as follows.

      (b) Other considerations.--The court in terminating the rights
      of a parent shall give primary consideration to the
      developmental, physical and emotional needs and welfare of the
      child. The rights of a parent shall not be terminated solely on
      the basis of environmental factors such as inadequate housing,
      furnishings, income, clothing and medical care if found to be
      beyond the control of the parent. With respect to any petition
      filed pursuant to subsection (a)(1), (6) or (8), the court shall not
      consider any efforts by the parent to remedy the conditions
      described therein which are first initiated subsequent to the
      giving of notice of the filing of the petition.

23 Pa.C.S. § 2511(b).

      Father argues that terminating his parental rights would be contrary to

Child’s needs and welfare, because he performed well during his visits with

Child, and because Child is bonded with him.         Father’s Brief at 32-35.

Father further argues that Child became upset when she was no longer able

to visit with him. Id. at 33.

      We have discussed our analysis pursuant to Section 2511(b) 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

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      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 subsection 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).

      In its opinion, the orphans’ court found that Father has a “clear bond”

with Child, and that because of this bond Father was given “opportunity after

opportunity” to achieve reunification. Orphans’ Court Opinion, 2/2/2017, at

10.   However, the court found that Father failed to address his substance

abuse issues, and relapsed repeatedly.     Id.   The court further found that

Child has been in placement for over two years, and that she is in need of

permanence and stability. Id. at 11. The court emphasized that Child is in

a pre-adoptive foster home, that Child refers to her foster mother as

“mommy,” and that Child does not ask about Father.            Id.    The court

concluded that neither removing Child from her current foster home nor



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allowing Father to retain his parental rights would serve Child’s best interest.

Id.

       Our review of the record supports the findings of the orphans’ court.

During the termination hearing, OCY presented the testimony of caseworker,

Mary Biley.     Ms. Biley testified that Father initially made progress toward

reunification with Child. Father completed an anger management program,

completed a domestic violence program, participated in drug screens, and

attended visits with Child.       N.T., 12/1/2016, at 48.   Father also attended

Child’s medical appointments, demonstrated an understanding of Child’s

medical needs, and participated in the Time Limited Family Reunification

program. Id. at 51, 57-58. Father came so close to reunification that OCY

offered him overnight visits with Child three times per week. Id. at 59, 67.

       However, Ms. Biley testified that Father failed to remedy his substance

abuse issues. Ms. Biley explained that Father had four positive urine screens

for alcohol in May 2015. Id. at 49. Father also had several positive tests for

marijuana in June 2015. Id. at 50. In July 2015, Father had a positive drug

test for alcohol and cocaine. Id. In December 2015, Father was “detained

by probation for testing positive for alcohol.”2,3 Id. at 52-53, 64. The court
____________________________________________


2
  Ms. Biley explained that Father was on probation as a result of “the bleach
incident” described above. N.T., 12/1/2016, at 57.
3
   OCY also presented the testimony of Father’s probation officer, Brad
Romancik. Officer Romancik testified that Father was incarcerated a second
time after he admitted to consuming alcohol on November 14, 2016. N.T.,
(Footnote Continued Next Page)


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changed Child’s permanency goal to adoption in January 2016, and Father’s

visits with Child ended. Id. at 53-54.

      Concerning the relationship between Father and Child, Ms. Biley

testified that their visits went “very well.”     Id. at 51.   Child referred to

Father as “daddy,” and they appeared to share “a close connection.” Id. at

62, 73.    At the conclusion of Father’s final visit with Child, in December

2015, Child became upset and cried. Id. at 65. On one occasion after visits

ended, Child became upset due to not being able to see Father. Id. at 54.

However, other than that one incident, Child appears to be fine. Id. at 54,

69. Ultimately, Ms. Biley opined that it would be in Child’s best interest for

Father’s parental rights to be terminated. Id. at 55. She explained, “[Child]

is integrated into the foster home, she’s been with her [foster mother] for a

long time, she really didn’t have any adverse effects not seeing [Father]

anymore.” Id. Ms. Biley did not believe that there would be any harm to

Child if Father’s parental rights were terminated.4 Id. at 56.




                       _______________________
(Footnote Continued)

12/1/2016, at 12-13. Father admitted to consuming alcohol only a month
after completing outpatient drug and alcohol treatment at Stairways on
October 5, 2016. Id. at 14. Officer Romancik reported that Father had a
probation revocation hearing scheduled for December 15, 2016. Id. at 13.
4
  OCY permanency caseworker, Kim Covatto, testified that Child is bonded
with her pre-adoptive foster mother, and refers to her as “mommy.” N.T.,
12/1/2016, at 77-80. Ms. Covatto reported that she has not noticed “any
adverse effect” on Child as a result of not visiting with Father. Id.



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        Thus, the record confirms that terminating Father’s parental rights will

best serve Child’s needs and welfare. By the time of the termination hearing

in December 2016, Child had been removed from Father’s care for over two

years, and was nearly three years old.      During Child’s time in foster care,

Father had numerous opportunities to remedy his substance abuse issues,

and yet failed to do so. Child cannot wait forever. As this Court has stated,

“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 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).

        While it is true that Child appeared to share a bond with Father during

their visits, it was within the discretion of the orphans’ court to accept Ms.

Biley’s testimony that other than appearing upset on one occasion, Child has

not been negatively affected by Father’s absence from her life since visits

ended, and therefore that Child will not be harmed by the termination of

Father’s parental rights. Moreover, as explained above, the bond between a

parent and his or her child is only one of many factors that courts must

consider pursuant to Section 2511(b). It was within the court’s discretion to

conclude that Child’s need for permanence and stability outweighs whatever

bond that Child may continue to have with Father. See C.D.R., 111 A.3d at

1219.




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     We next consider Father’s second issue, in which he argues that the

orphans’ court erred by denying his pre-hearing motion to compel the

production of visitation case notes and summaries, based on its mistaken

belief that the documents were protected as the work product of OCY.

     Our standard of review is well-settled.

     Whether the attorney-client privilege or the work product
     doctrine protects a communication from disclosure is a question
     of law. This Court’s standard of review over questions of law is
     de novo, and the scope of review is plenary. Our review of a
     discovery order, ... requires the application of an abuse of
     discretion standard.

Saint Luke’s Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa. Super.

2014) (citations and quotation marks omitted).

     Father’s argument stems from his motion to compel filed November 7,

2016, in which he requested that the orphans’ court enter an order requiring

OCY to produce any “notes, reports and/or summaries” prepared by Ms.

Biley, and by OCY social service aide, Abby Conley, relating to “their

observations during visitation periods.”   Motion to Compel Production of

Visitation Case Notes/Case Summaries, 11/7/2016, at ¶ 7-8.        The court

entered an order on November 9, 2016, denying Father’s motion.          In its

opinion, the orphans’ court explained that it denied Father’s motion to

compel “out of an abundance of caution, ... in an effort to protect [OCY’s]

work product.”   Trial Court Opinion, 2/2/2017, at 12.    The court further

explained that, even if the documents sought by Father were discoverable,

any error would be harmless. Id.


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      Father argues that the orphans’ court erred pursuant to our Orphans’

Court Rules and Rules of Civil Procedure. Specifically, Father observes that

discovery in Orphans’ Court matters is governed by Orphans’ Court Rule 7.1,

which provides as follows.

      Rule 7.1.   Depositions,   Discovery,   Production              of
      Documents and Perpetuation of Testimony

      The court, by local rule or order in a particular matter, may
      prescribe the practice relating to depositions, discovery,
      production of documents and perpetuation of testimony. To the
      extent not provided for by local rule or an order governing a
      particular matter, the practice relating to depositions, discovery,
      production of documents and perpetuation of testimony shall
      conform to the practice in the Trial or Civil Division of the local
      Court of Common Pleas.

Pa.O.C.R. 7.1.

      Father contends that there was no Erie County local orphans’ court

rule governing discovery at the time he filed his motion to compel. Father’s

Brief at 38.   Father further alleges that the Erie County local rules of civil

procedure contain rules governing discovery in the form of depositions only.

Id. at 39. Therefore, Father argues, his motion to compel was governed by

the Pennsylvania Rules of Civil Procedure. Id. Father directs our attention

to Rules 4003.1 and 4003.3, which provide as follows.

      Rule 4003.1. Scope of Discovery Generally. Opinions and
      Contentions

      (a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive
      and Rule 4011, a party may obtain discovery regarding any
      matter, not privileged, which is relevant to the subject matter
      involved in the pending action, whether it relates to the claim or
      defense of the party seeking discovery or to the claim or defense
      of any other party, including the existence, description, nature,

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      content, custody, condition and location of any books,
      documents, or other tangible things and the identity and location
      of persons having knowledge of any discoverable matter.

      (b) It is not ground for objection that the information sought will
      be inadmissible at the trial if the information sought appears
      reasonably calculated to lead to the discovery of admissible
      evidence.

      (c) Except as otherwise provided by these rules, it is not ground
      for objection that the information sought involves an opinion or
      contention that relates to a fact or the application of law to fact.

Pa.R.C.P. 4003.1.

      Rule 4003.3. Scope         of    Discovery.   Trial   Preparation
      Material Generally

      Subject to the provisions of Rules 4003.4 and 4003.5, a party
      may obtain discovery of any matter discoverable under Rule
      4003.1 even though prepared in anticipation of litigation or trial
      by or for another party or by or for that other party's
      representative, including his or her attorney, consultant, surety,
      indemnitor, insurer or agent. The discovery shall not include
      disclosure of the mental impressions of a party’s attorney or his
      or her conclusions, opinions, memoranda, notes or summaries,
      legal research or legal theories.         With respect to the
      representative of a party other than the party’s attorney,
      discovery shall not include disclosure of his or her mental
      impressions, conclusions or opinions respecting the value or
      merit of a claim or defense or respecting strategy or tactics.

Pa.R.C.P. 4003.3.

      Father contends that any visitation notes and summaries would be

relevant to the involuntary termination of his parental rights pursuant to

Pa.R.C.P. 4003.1(a), and would not be privileged pursuant Pa.R.C.P. 4003.3.

Father’s Brief at 41-42. Father further alleges that the failure of the court to

compel the production of any notes and summaries was not harmless error.

Id. at 42-43.    Father argues, “[i]t is possible that the review of these


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records could have opened additional areas for cross-examination that

remain unknown to [Father] and that could have been relevant to the issue

of termination.” Id. at 43. Specifically, Father contends that the visitation

notes or summaries may have provided “invaluable insight into [] Father’s

parenting ability and the parent/child bond.” Id. at 41.

      Father is not entitled to relief. Even assuming that Father is correct in

his assessment of our Orphans’ Court Rules and Rules of Civil Procedure, it is

clear that the production of any visitation notes or summaries prepared by

Ms. Biley and Ms. Conley would not have changed the outcome of this case.

Both Ms. Biley and Ms. Conley testified that Father’s visits with Child went

very well, and the orphans’ court found that Father and Child are bonded.

Father’s ability to parent during supervised visitation and his bond with Child

are not in dispute, and notes and summaries recording Father’s interactions

with Child during their visits do not relate Father’s failure to rectify his

substance abuse and the lack of a significant adverse impact on Child once

Father stopped visiting.   Because any visitation notes or summaries would

have been merely cumulative of the other evidence presented to the court,

we conclude that Father suffered no prejudice as a result of the order

denying his motion to compel, and that any error on the part of the court

was harmless.    See Drew v. Work, 95 A.3d 324, 337 (Pa. Super. 2014)

(quoting Lake Adventure Cmty. Ass'n v. Dingman Tp. Zoning Hearing

Bd., 72 A.3d 807, 809 (Pa. Cmwlth. 2013)) (“‘[A]n error is harmless if a

party does not suffer prejudice as a result of the error.’”).

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

abuse its discretion by terminating Father’s parental rights to Child

involuntarily, and that any error on the part of the court in denying Father’s

motion to compel was harmless. Therefore, we affirm the court’s December

9, 2016 decree.

      Decree affirmed.

      Judge Moulton joins.

     Judge Olson concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2017




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