J-S43045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: J.W., A MINOR       :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
    APPEAL OF: J.W.                         :
                                            :
                                            :   No. 389 WDA 2017


                      Appeal from the Order February 9, 2017
                 In the Court of Common Pleas of Allegheny County
                 Orphans’ Court at No(s): CP-02-AP-0000203-2016


BEFORE: STABILE, SOLANO, and FITZGERALD*, JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED AUGUST 30, 2017

        Appellant, Ja.W. (“Father”), appeals from the February 9, 2017 order

entered in the Allegheny County Court of Common Pleas involuntarily

terminating his parental rights to his son, J.W. (“Child”), born in June of

2016, pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).          For the reasons that

follow, we affirm.1

        In its Pa.R.A.P. 1925(a), the trial court set forth the following facts and

procedural history relevant to Father’s appeal:

           [Child] entered the care of the Allegheny County Office of
           Children, Youth and Families (hereinafter “CYF”) in June
           2016, when the agency obtained an Emergency Custody
           Authorization (“ECA”) one week after [Child’s] birth.
           [Child] was hospitalized for 15 days after his birth because
           he experienced severe withdrawal symptoms due to

*
    Former Justice specially assigned to the Superior Court.
1
  On the same date, the trial court also terminated the parental rights of
B.A. (“Mother”). She has not appealed that decision.
J-S43045-17


        [Mother’s] methadone abuse during the pregnancy.
        Meanwhile, supervised visits were set up at the hospital for
        the parents to visit the newborn, but neither attended.
        There is some disagreement as to whether Father tried to
        visit [Child]. [The trial court] found him to be credible
        when he testified that he thought he was not allowed to
        visit [Child] once the ECA was issued. Still, [the trial
        court] also heard testimony that the parents apparently
        provided the hospital with incorrect contact information.
        [Child] was adjudicated dependent on June 28, 2016 and
        placed in the home of his pre-adoptive foster parents.
        [Child] has never spent a day in either parents[’] care.

            CYF created for the family a Family Service Plan
        (“FSP”). The FSP functions as a roadmap, complete with
        “goals” to aid the parents in their efforts to reunify with
        their child. The parents did not participate in the planning
        of the FSP. The goals included were the same for both
        parents: to continue with drug and alcohol counseling and
        participate in drug screenings; to visit [Child]; to attend
        domestic violence counseling; to contact a specified
        service provider to pursue stable housing; [to] sign
        medical releases and maintain contact with CYF; [and to]
        participate in a mental health evaluation.          Father’s
        compliance in this case was nonexistent for the first
        several months of [Child’s] life. Noncompliance led the
        [trial court] to make an “aggravated circumstances”
        finding on August 22, 2016, thereby alleviating CYF from
        making reasonable efforts toward reunification.

Trial Ct. Op., 4/6/17, at 2-3 (record citations omitted). On September 30,

2016, the trial court held a permanency review hearing.      The trial court

again found that Father was noncompliant with regard to the permanency

plan and determined that “no progress” had been made by Father in

alleviating the circumstances that brought Child into CYF care. CYF Exhibit

1.




                                   -2-
J-S43045-17


       On November 9, 2016, CYF filed a petition to involuntarily terminate

Father’s parental rights to Child. On February 8, 2017, the trial court held a

hearing and took testimony on the petition. At the time of the termination

hearing, Father remained noncompliant with his FSP goals.           Regarding his

drug and alcohol use, Father admitted on multiple occasions to his CYF

caseworker that he had used marijuana.                Father also informed the

caseworker that he would test positive for marijuana at a random drug

screen requested on August 22, 2016.         N.T., 2/8/17, at 115-16.        Father

failed to appear for six out of the ten drug screenings and did not appear for

a drug screening until December of 2016.            The only information CYF had

regarding Father’s compliance with this goal was Father’s self-report that he

was participating in methadone maintenance treatment.          Id. at 64-65, 114,

117.

       Father also demonstrated noncompliance with his FSP goals relating to

domestic violence and mental health. Father’s CYF caseworker testified that

the agency had no information that Father had attended domestic violence

counseling and was noncompliant in attending meetings with CYF to address

those concerns.    Id. at 55, 59.   Father testified that he attended a once-

weekly, two-hour domestic violence program, however Father was unable to

verify his attendance at this program.

       Regarding   his   mental   health,   Terry    O’Hara,   Ph.D.,   a   licensed

psychologist, testified that Father reported that he had been diagnosed with



                                      -3-
J-S43045-17


“major   mental   illness,   including   schizophrenia   and    major   depressive

disorder.” Id. at 145. Dr. O’Hara testified that he was limited in making an

accurate diagnosis and treatment recommendation due to Father’s initial

failure to sign medical releases, but noted that Father did follow up with

Western Psychiatric Institute and Clinic after his evaluation to address his

mental health. Finally, in terms of housing, Father resides with his mother,

Child’s paternal grandmother. Father continues to lack independent housing

and acknowledged that he cannot afford housing because he has not worked

since 2010. Id. at 151.

      On appeal, Father raises the following issues for our review and

determination:

         I. Whether the trial court erred as a matter of law and/or
         abused its discretion in finding CYF proved by clear and
         convincing evidence that [F]ather, J.W.[,] has a continued
         incapacity that cannot be remedied?

         II. Whether the trial court erred in finding that terminating
         the parental rights of [F]ather, J.W.[,] best meets the
         needs and welfare of [Child]?

Father’s Brief at 1.

      We review an order terminating a parent’s rights for an abuse of

discretion or error of law. In re Adoption of S.P., 47 A.3d 817, 826 (Pa.

2012). We must accept the credibility determinations and factual findings of

the trial court that are supported by the record.        Id.   This Court may not

reverse a termination order simply because we would have reached a

different result based on the same facts. Id.


                                         -4-
J-S43045-17


      Under section 2511 of the Adoption Act, the trial court must engage in

a bifurcated process.     First, the trial court must examine the parent’s

conduct under section 2511(a). In re Adoption of R.J.S., 901 A.2d 502,

508 (Pa. Super. 2006). The burden of proof is on the petitioner to establish

by clear and convincing evidence the existence of grounds for termination

under section 2511(a).     In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super.

2003).   If the trial court finds termination is warranted under section

2511(a), it must then turn to section 2511(b), and determine if termination

of the parent’s rights serves the children’s needs and welfare. In re I.E.P.,

87 A.3d 340, 344 (Pa. Super. 2014).

      First, Father challenges the termination of his rights under section

2511(a)(2). Section 2511(a)(2) provides:

         (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:

                                    *   *   *

            (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.


23 Pa.C.S. § 2511(a)(2). This Court has previously addressed termination

under this provision, stating,




                                    -5-
J-S43045-17


           Parental rights may be terminated under Section
           2511(a)(2) if three conditions are met: (1) repeated and
           continued incapacity, abuse, neglect or refusal must be
           shown; (2) such incapacity, abuse, neglect or refusal must
           be shown to have caused the child to be without essential
           parental care, control or subsistence; and (3) it must be
           shown that the causes of the incapacity, abuse, neglect or
           refusal cannot or will not be remedied. In re Geiger, 459
           Pa. 636, 331 A.2d 172, 174 (1975).

In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008).

      Father contends that he “did not have a deliberate intent or refusal to

remedy the conditions which caused his son to come into care.”              Father’s

Brief at 4. He asserts that he has been attending therapy at Three Rivers

Adoption    Council    (“TRAC”),   where   he   is   learning   effective   ways   to

communicate and how to improve his timeliness and relationships with

others.    Id. at 5.    Further, Father argues that the testimony presented

suggests that he is able to address Child’s physical and emotional needs.

Notably, Father urges that he is “able to appropriately feed his son, change

him and cuddle appropriately with him.          No safety issues were identified

when Father visited his son.” Id. No relief is due.

      “‘The grounds for termination due to parental incapacity that cannot

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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.

Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)).

Furthermore,



                                      -6-
J-S43045-17


      the language in subsection (a)(2) should not be read to compel
      courts to ignore a child’s need for a stable home and strong,
      continuous parental ties, which the policy of restraint in state
      intervention is intended to protect. This is particularly so “where
      disruption of the family has already occurred and there is no
      reasonable prospect for reuniting it . . .”

In re E.A.P., 944 A.2d at 82 (citing In re William L., 383 A.2d 1228, 1240

(Pa. 1978)). As we have stated many times, “‘[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 I.J., 972 A.2d 5, 9 (Pa. Super.

2009) (quoting In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super.

2003)).

         Parental rights are not preserved by waiting for a more
      suitable or convenient time to perform one’s parental
      responsibilities while others provide the child with his or her
      physical and emotional needs. . . .


            This 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. . . . [A] parent desiring to retain parental
            rights must exert himself to take and maintain a
            place of importance in his child’s life.

In re E.A.P., 944 A.2d at 83 (citations and quotation marks omitted).

      The certified record reveals that Father has caused Child to be without

essential parental care and Father will not remedy the conditions that caused

the incapacity within a reasonable time. Child was placed into care by CYF

because Child was born addicted to methadone.              N.T. at 37.      CYF

immediately noted its concern regarding Father’s drug and alcohol use,



                                       -7-
J-S43045-17


stability, housing and criminal activity.   Id. at 38-40.      These problems

rendered Father incapable of parenting Child at the time of his removal.

Father continued in his drug use throughout the life of this case, only making

efforts to achieve sobriety a few weeks before the scheduled termination

hearing.    Id. at 127.    Father has made no efforts to secure stable and

independent housing, leaving him in no better position to parent Child than

at the time of Child’s removal. Id. at 152.

      Moreover, Dr. O’Hara stated,

           [Father] has been diagnosed with major mental illness and
           I have no way to verify how he’s participating with
           treatment, his level of stability with treatment and his
           history as well which influences these diagnoses. He also
           presents with a history of opioid addiction as well. I don’t
           have evidence that he has sufficiently addressed this.

Id. at 166. Of great concern, Dr. O’Hara testified that Father was unable to

articulate or identify the circumstances that led to Child’s removal, he

externalized responsibility for all issues relating to Child, and he lacked an

independent understanding of what was necessary for him to remedy the

conditions that led to Child’s removal.     Id. at 151-54.    Finally, although

Father would like this Court to believe that he has made substantial progress

towards his goals, the trial court noted that Father arrived late to the

termination hearing, and that this is further evidence that Father continues

to be noncompliant with his FSP goals. Trial Ct. Op. at 7.




                                      -8-
J-S43045-17


      Therefore, we discern no abuse of discretion or error of law in the trial

court’s   determination    that     termination   was   warranted     under   section

2511(a)(2).

       We now turn to subsection (b), which states:

          (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.

23 Pa.C.S. § 2511(b).             Under section 2511(b), we inquire whether

termination of parental rights would best serve the developmental, physical

and emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284,

1286-87 (Pa. Super. 2005).          “Intangibles such as love, comfort, security,

and stability are involved in the inquiry into the needs and welfare of the

child.” Id. at 1287 (citation omitted). The mere finding of a parent-child

bond does not preclude termination of parental rights.              Rather, the trial

court must examine the status of the bond to determine whether its

termination      “would   destroy     an    existing,   necessary    and   beneficial

relationship.”    In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa. Super.

2003).    “[A] court may properly terminate parental bonds which exist in

form but not in substance when preservation of the parental bond would

consign a child to an indefinite, unhappy, and unstable future devoid of the

irreducible minimum parental care to which that child is entitled.”            In re


                                           -9-
J-S43045-17


J.W., 578 A.2d 952, 958 (Pa. Super. 1990) (emphasis in original). Expert

testimony is not required for the trial court to determine if there is a positive

bond between a parent and his child. In re K.K.R.-S., 958 A.2d 529, 533

(Pa. Super. 2008).

      Father asserts that because he has consistently visited and engaged in

age appropriate behavior and interactions with Child, there is necessarily a

bond between them. Father’s Brief at 6-7. Father contends that the trial

court failed to consider the attachment between Father and Child when

determining if terminating the parental rights of Father to Child served the

needs and welfare of Child. Id. at 7. We disagree.

      In assessing the bond between Father and Child, the trial court found

that although Father has had positive interactions with the child, “ultimately

Father does not possess the ability to be responsible for the child’s needs

and welfare.   The child[’s] greatest need is security and stability.     Father

cannot provide those things.”      Trial Ct. Op. at 8.     The trial court thus

concluded that because Father has not provided Child with a home, met his

needs, provided him with much needed stability, or “address[ed] the

pertinent issues that influenced the removal,” Child’s needs and welfare

were best met by terminating Father’s parental rights to Child. Id.

      The record supports the trial court’s decision in this regard.         Dr.

O’Hara testified that he was limited in his evaluation due to the lack of

collateral information he received and Father’s defensiveness. Specifically,



                                     - 10 -
J-S43045-17


Dr. O’Hara noted his concern relating to Father’s tendency to externalize

responsibility and his unwillingness to remedy the conditions that led to

Child’s removal. N.T. at 155-56. Dr. O’Hara testified that he has “found this

historically to be very problematic” and a significant factor when evaluating

a person’s ability to parent a child. Id. at 154-55.

      Moreover, from Dr. O’Hara’s observations, “the child exhibited ‘several

elements of security for the foster parents.’” Trial Ct. Op. at 7. According to

Dr. O’Hara, Child’s foster parents

         presented with stability. They did not have mental health
         issues, substance abuse, criminal activity and domestic
         violence history. [Dr. O’Hara] also observed them to show
         very positive parenting skills. They were affectionate and
         attentive.    They praised [Child], they were verbally
         engaging, they encouraged language, they were calm and
         relaxed. [Foster mother] showed good eye contact while
         feeding [Child].

N.T. at 143. Dr. O’Hara opined that Child “responded very positively to his

foster parents.” Id.

      Accordingly, we find no error or abuse of discretion in the trial court’s

determination that Child’s developmental, emotional and physical needs and

welfare are best met by terminating Father’s parental rights. We therefore

affirm the trial court’s conclusion that the requirements of section 2511(b)

were met.

      Lastly, in its Rule 1925(a) opinion, the trial court sua sponte brought

this Court’s attention to our Supreme Court’s recent decision in In re

Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), in which the Court held that


                                     - 11 -
J-S43045-17


trial courts must appoint counsel to represent the legal interests of any child

involved in a contested termination proceeding pursuant to 23 Pa.C.S. §

2313(a).2

         The Court explained that a child’s legal interests are distinct from his

or her best interests, in that a child’s legal interests are synonymous with

the child’s preferred outcome, while a child’s best interests must be

determined by the court.      Importantly, the Justices disagreed on whether

the role of counsel may be filled by a child’s dependency guardian ad litem

(“GAL”).     In the Court’s lead opinion, Justice Wecht, joined by Justices

Donohue and Dougherty, opined that a child’s legal interests cannot be

represented by his or her dependency GAL. However, the Court’s remaining

four Justices disagreed with that portion of the lead opinion, and opined in a

2
    Section 2313(a) provides as follows.

              (a) Child.―The court shall appoint counsel to
              represent the child in an involuntary termination
              proceeding when the proceeding is being contested
              by one or both of the parents. The court may
              appoint counsel or a guardian ad litem to represent
              any child who has not reached the age of 18 years
              and is subject to any other proceeding under this
              part whenever it is in the best interests of the child.
              No attorney or law firm shall represent both the child
              and the adopting parent or parents.

23 Pa.C.S. § 2313(a).

Here, this Court granted CYF’s and the guardian ad litem’s applications to file
supplemental briefs addressing L.B.M. We have received the supplemental
briefs as well as Father’s responsive brief.




                                      - 12 -
J-S43045-17


series of concurring and dissenting opinions that a child’s dependency GAL

may serve as his or her counsel, so long as the GAL’s dual role does not

create a conflict of interest. See id. at 183-93.

      Shortly following our Supreme Court’s decision in L.B.M., this Court

decided In re D.L.B., __ A.3d __, 2017 WL 2590893 (Pa. Super. June 15,

2017). Similar to the case sub judice, the appellant in D.L.B. argued that

section 2313(a) required the appointment of separate counsel for a child in a

contested termination proceeding. Id. at *5. The appellant argued that the

trial court’s failure to appoint separate counsel was structural error, which

required this Court to remand the matter for the appointment of separate

counsel pursuant to L.B.M.. Id.

      In rejecting the appellant’s claim, this Court stated:

            As a point of information, Justice Wecht’s opinion in
            L.B.M[.] states that the trial court is required to
            appoint a separate, independent attorney to
            represent a child’s legal interests even when the
            child’s GAL, who is appointed to represent the child’s
            best interests, is an attorney. Justice Wecht would
            hold that the interests are distinct and require
            separate representation. While Justice Wecht, joined
            by Justices Donohue and Dougherty, sought to so
            hold, four members of the court, Chief Justice Saylor
            and Justices Baer, Todd, and Mundy disagreed in
            different concurring and dissenting opinions with that
            part of the lead opinion’s holding. Specifically, while
            the other justices agreed that the appointment of
            counsel for the child is required in all [termination of
            parental rights] cases and that the failure to do so by
            the trial court is a structural error, they did not join
            that part of Justice Wecht’s opinion which sought to
            hold that the GAL may never serve as counsel for the
            child.    Rather, such separate representation


                                     - 13 -
J-S43045-17


          would be required only if the child’s best
          interests and legal interests were somehow in
          conflict.
Id. (emphasis added).

      The trial court here expressed concern that because it did not appoint

Child counsel, a reversal and remand may be appropriate.       The trial court

notes that a non-attorney GAL was appointed for the purposes of

dependency.3    However, Child’s GAL at the termination hearing was an

attorney, Jennifer McGarrity, Esq. Moreover, Child was placed in CYF’s care

shortly after birth and was approximately eight months old at the

termination hearing. Our further review of the record does not reveal any

conflict between Child’s legal interests and best interests as would require a

remand. In short, Child is the type of child the dissenting and concurring

justices in L.B.M. envisioned as too young or too cognitively incapacitated to

express his wishes. See In re D.L.B., 2017 WL 2590893, at *5.

      Order affirmed.




3
  Father did not address L.B.M. in his brief. This Court granted the GAL’s
application to file a supplemental brief addressing L.B.M., and provided
Father with fourteen days from the service of the GAL’s supplemental brief
to file a responsive brief. Father has not filed a responsive brief.




                                    - 14 -
J-S43045-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/2017




                          - 15 -
