In the Interest of: J.K.S.W. Appeal of: J.W. (memorandum)

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J-S31002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: J.K.S.W., CHILD, IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.W., FATHER, Appellant No. 3274 EDA 2013 Appeal from the Decree October 21, 2013 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-DP-0012070-2010 IN THE INTEREST OF: J.L.G.W.S., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.W., FATHER, Appellant No. 3275 EDA 2013 Appeal from the Decree October 21, 2013 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000486-2011 J-S31002-14 IN THE INTEREST OF: A.A.S.W., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.W., FATHER, Appellant No. 3276 EDA 2013 Appeal from the Decree October 21, 2013 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000489-2011 IN THE INTEREST OF: K.L.S., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: J.W., FATHER, Appellant No. 3277 EDA 2013 Appeal from the Decree October 21, 2013 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-AP-0000488-2011 BEFORE: BOWES, SHOGAN, and MUSMANNO, JJ. MEMORANDUM BY BOWES, J.: FILED JULY 09, 2014 2013, in the Court of Common Pleas of Philadelphia County, involuntarily terminating his parental rights to his daughter, A.A.S.W., born in April of 2005, and his three sons, J.L.G.W.S., born in April of 2007, J.K.S.W., born in -2- J-S31002-14 1 In addition, Father appeals from the contemporaneous orders changing the placement goals to adoption. We affirm. In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court aptly set forth the relevant facts and procedural history as follows: On January 4, 2010, the [Philadelphia] Department of Human d Protective Services (CPS) report was substantiated. After an investigation, [DHS] implemented a safety plan where father agreed to have no contact with A.A.S.W. During a [DHS] home visit with the family, [the] DHS social worker observed the paternal grandmother evict the family from the home. Subsequently the family was relocated to the home of the maternal cousin. On January 5, 2010, the child, A.A.S.W., stated to a [DHS] representative[] she had been sexually abused by her father, J.W. On January 11, 2010, [m]aternal cousin contacted [DHS] to report mother and father were abusing drugs while residing in her home. On January 12, 2010, [DHS] obtained an Order of Protective [J.L.G.W.S., and J.K.S.W.,] due to a report of continued drug abuse by mother and father in violation of the safety plan. . . . ____________________________________________ 1 On the same date, the court entered separate decrees involuntarily Children. She appealed. The disposition memorandum. -3- J-S31002-14 .... On January 28, 2010, after a hearing . . ., the OPC was lifted and the children were temporarily committed to [DHS]. The Court specifically ordered the mother and father to the Clinical Evaluation Unit (CEU) to receive an appropriate evaluation. . . . .... A Family Service Plan meeting was held. The Family Service Plan objectives for mother and father were (1) to meet with counselor on a weekly basis to learn expected behavior for children (2) [to] participate in evaluation for drug/alcohol abuse, (3) to attend parenting capacity evaluation and (4) [to] comply and maintain contact and communication with children. .... The objective specifically identified for father was (1) engage in a sex offender treatment evaluation. The matter was then listed on a regular basis before [the] Judges of the Philadelphia Court of Common Pleas Family Court Division Juvenile Branch pursuant to Section 6351 of the Juvenile Act, 42 Pa.C.S.[] §6351 and evaluated for the purpose of determining or reviewing the permanency plan of [A.A.S.W., J.L.G.W.S., J.K.S.W., and K.L.S.] with the goal of reunification of the family. In subsequent hearings, the [Permanency Review Orders] reflect as a result of evidence presented addressing the lack of compliance with drug and alcohol treatment, sex offender treatment and suitable housing. .... Trial Court Opinion, 12/31/13, at 1-3. On October 6, 2011, the court-appointed Child Advocate filed petitions -4- J-S31002-14 and (b). On October 1, 2012, the Child Advocate filed amended petitions for a goal change 2 A hearing on the petitions was held on October 22, 2012, and June 18, 2013. The Child Advocate presented the following witnesses on October 22, 2012: Dr. Joseph Gbaba, the DHS social work services manager; Michelle Robbins, a psychologist who performed a parenting capacity evaluation of Mother and Father; and Patricia Jackson, a case manager at Friendship House. On June 18, 2013, the Child Advocate presented the testimony of Stephen Miksic, a psychologist who performed a forensic psychological bonding evaluation of Mother and Father. In addition, on June 18, 2013, Father and Mother testified on their own behalf. Following oral argument, by decrees dated and entered on October 21, pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). In addition, by orders dated October 21, 2013, the trial court changed the placement goals to adoption. Father timely filed notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated. ____________________________________________ 2 During the termination hearing, counsel for DHS joined the Child Advocate DHS filed an appellee brief in support of the decre parental rights. -5- J-S31002-14 On appeal, Father presents one issue for our review: 1. Did the trial court err in determining that it was in the best Father never evidenced a settled purpose of relinquishing his parental rights, nor did he fail to perform his parental duties insofar as he was permitted to do so by DHS and the court; in completing his goals? Initially, we review the termination decrees according to the following standard: [A]ppellate courts must apply an abuse of discretion standard 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 by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., 614 Pa. 275, 284, 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., 613 Pa. 371, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id. As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We 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. R.J.T., [608 Pa. at 28-30], 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency -6- J-S31002-14 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 error of law or an abuse of discretion. In re Adoption of Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994). In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012). Termination of parental rights is governed by § 2511 of the Adoption Act, which requires a bifurcated analysis. Our case law has made clear that under Section 2511, the court must engage in a bifurcated process prior to terminating parental rights. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evid statutory grounds for termination delineated in Section 2511(a). termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citing 23 Pa.C.S. § 2511). The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009). pursuant to § 2511(a)(1), (2), (5), (8), and (b), the trial court, in its Rule 1925(a) opinion, analyzed the decrees with respect only to § 2511(a)(1), -7- J-S31002-14 (2), and (b). This Court must agree with only one subsection of 23 Pa.C.S. § 2511(a), in addition to § 2511(b), in order to affirm the termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we review the decrees pursuant to § 2511(a)(2) and (b), which provide as follows. (a) General Rule. The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds: .... (2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent. .... (b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition. 23 Pa.C.S. § 2511(a)(2), (b). To satisfy the requirements of § 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect, or refusal; (2) such -8- J-S31002-14 incapacity, abuse, neglect, or refusal caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003). The grounds for termination of parental rights under § 2511(a)(2), 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 A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In In re Adoption of S.P., supra, our Supreme Court addressed the relevance of incarceration in termination decisions under § 2511(a)(2). The S.P. ion that grounds for termination exist under § 2511(a)(2) where the repeated and continued incapacity of a parent due to incarceration has caused the child to be without essential parental care, control or subsistence and that the causes of the incapacity Id. at 829. With respect to § 2511(b), this Court has explained the requisite analysis as follows: Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, love, comfort, security, and stability are -9- J-S31002-14 In addition, we instructed that the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63. In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010). rights pursuant to § 2511(a)(2) as follows. Dr. Joseph Gbaba, 3 the DHS inter alia, (1) complete drug and alcohol treatment; (2) complete sex offender treatment at the Joseph J. Peters three sons. N.T., 10/22/12, at 21-22. With respect to drug and alcohol treatment, Dr. Gbaba testified that, as a result of his CEU evaluation, Father was recommended to attend an intensive outpatient drug and alcohol treatment program, and he has no documentation showing that Father ever did so. Id. at 22-23. Further, the record reveals Father was arrested for a crime related to drugs in February of 2012, of which he was convicted in June of 2012. Id. at 23. At the time ____________________________________________ 3 accomplishment. - 10 - J-S31002-14 incarcerated. On June 18, 2013, the last day of the termination hearing, Father testified he was released from prison approximately three weeks earlier. N.T., 6/18/13, at 48. With respect to sex offender treatment, Dr. Gbaba testified Father was sex abuse. . ., but in order for that to occur, he had to admit to the Id. at 24. Dr. Gbaba explained in his testimony that Father did attend treatment at the JJPI in 2011, but his insurance lapsed, and he stopped treatment. Dr. Gbaba was retherapist [at the JJPI] would not want to resume treatment with [Father] Id. at 25. Father had visits two times per week with his three sons, J.L.G.W.S., J.K.S.W., and K.L.S. N.T., 10/22/12, at 27. Because of the sexual abuse therapist. Id. at 27, 44. As such, at the time of the termination hearing, Father had no supervised visits with A.A.S.W. Id. at 99-100. Patricia Jackson, the case manager at Friendship House, where isits were decreased from twice per week to once per week due to Father having missed visits. N.T., - 11 - J-S31002-14 his sons was in June of 2012, prior to his incarceration. Id. at 100. Michelle Robbins, a psychologist who performed a parenting capacity evaluation of Father on May 16, 2011, testified on direct examination that Father told her the children were removed from his care due to allegations of drug use, but he did not discuss the allegations of sexual abuse regarding the abuse allegations alarmed Mr. Robbins. She explained, molested or even reported to be molested, if that person is a caretaker, what we try to look for is are they actively pursuing to also try to find out who the perpetrator might be, or if there is no perpetrator, why a child would make such statements. Those are important for us to understand how does a parent view that and does a parent actively pursue an understanding of why this is the way it is. Id. at 68. Ms. Robbins also testified that Father had insufficient treatment intervention because he did not complete treatment at the JJPI. Id. at 7778. In sum, she concluded, That [Father] should continue the visits with the children at the discretion of DHS and that counseling at JJPI should continue. Continue drug and alcohol intervention, as well as, random drug screens. And re-evaluation is what was recommended, to assure that he has made sufficient progress. Id. at 68. Ms. Jackson, the case manager at Friendship House, testified that she - 12 - J-S31002-14 objectives of drug and alcohol treatment and therapy at JJPI, inter alia. N.T., 10/22/12, at 97. With respect to drug and alcohol treatment, Ms. drug-related crime, this objective was not completed. Id. at 97-98. Further, Ms. Jackson testified that Father did not complete sex offender therapy at JJPI. Id. at 98. On June 18, 2013, Dr. Stephen Miksic, a psychologist who performed a forensic psychological bonding evaluation of Father on November 15, 2011, examination: Q. And was [Father] able to state the reason the children came into care? A. Yes. He said that there were allegations against him related to [A.A.S.W.] and, therefore, there were concerns about the safety of the children in general together with him. Q. Did [Father] discuss the allegations with you? A. I brought up the allegations, specifically, for [Father] to respond to[,] and he said he was not the individual who ha[d] any inappropriate contact with [A.A.S.W.] Id. at 31. Dr. Miksic continued on direct examination: Q. Now, regarding just specifically the allegations of sexual abuse[,] [w]hat concerns, obviously, did those raise for you, as well? - 13 - J-S31002-14 A. The overwhelming information of consistent interviews of [A.A.S.W.] suggested that she provided information to many different individuals that [Father] was indeed a perpetrator of inappropriate sexual contact with her. And her direct statements to me also conveyed to me that his was a sincere and valid d to me that there would be a problem with any efforts for rehabilitation. Id. at 34. We conclude the foregoing testimonial evidence supports termination continued neglect or refusal to (1) acknowledge his sexual abuse of A.A.S.W. and/or show any concern for the allegations made by A.A.S.W.; (2) complete sex offender treatment; and (3) attend an intensive outpatient drug and alcohol treatment program and overcome his drug addiction have caused the Children to be without essential parental care, control, or subsistence necessary for their physical or mental well-being. Further, the In light of the requisite bifurcated analysis in termination matters, we next review the decrees pursuant to § 2511(b) regarding the developmental, physical, and emotional needs and welfare of the Children. Ms. Jackson visits. She stated, Most of the time [Father] was not as positively interacting with [J.L.G.W.S., J.K.S.W., and K.L.S.]. The kids would play by themselves[,] and he would either be on the phone or doing ing, no playing activities or anything like that. - 14 - J-S31002-14 N.T., 10/22/12, at 99. October 22, 2012, Father had been incarcerated for approximately four months, and she stated that Father had not contacted her about visiting with J.L.G.W.S., J.K.S.W., and K.L.S. Id. at 100. Significantly, Ms. Jackson testified that J.L.G.W.S., J.K.S.W., and K.L.S. had not asked to see Father since his last visit in June of 2012, and that it would not be detrimental to them or to A.A.S.W. Id. at 100, 107- 108. Dr. Miksic observed Father interact with his three sons as part of the bonding evaluation. He concluded as follows: The children appeared to be familiar with [Father], but there was not because of the history and the general characteristics of [Father] not being available to the children as a caretaker, due to his periods of incarceration, also the observation of the relationship or bo[n]ding with him was insecure and that it would not be damaging to the children emotionally in the future if his parental rights were terminated. N.T., 6/18/13, at 33-34. Based on the foregoing evidence and the relevant case law, we discern no abuse the Children. Accordingly, we affirm the suant to 23 Pa.C.S. § 2511(a)(2) and (b). - 15 - J-S31002-14 We now review the orders changing the placement goals from reunification to adoption. The following principles are relevant to our review: . . . to adoption, our standard of review is abuse of discretion. To hold that the trial court abused its discretion, we must determine its judgment was manifestly unreasonable, that the court disregarded the law, or that its action was a result of partiality, prejudice, bias or ill will. While this Court is bound by the facts determined in the trial court, we are not tied to the responsibility to ensure that the record represents a comprehensive inquiry and that the hearing judge has applied the appropriate legal principles to that record. Therefore, our scope of review is broad. In re S.B., 943 A.2d 973, 977 (Pa.Super. 2008) (citations omitted), appeal denied, 959 A.2d 320 (Pa. 2008); see also In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). This matter is controlled by the Juvenile Act, 42 Pa.C.S. § 6301-6375, which was amended in 1998 to conform to the federal Adoption and Safe Families -679. In re M.S., 980 A.2d 612, 615 (Pa.Super. 2009). Both statutes are compatible pieces of legislation seeking to benefit the best interest of the child, not the parent. . . . ASFA promotes the reunification of foster care children with their natural parents when upon reunification of the family, which means that - 16 - J-S31002-14 Id., citing 42 Pa.C.S. § 6301(b)(1). As such, child welfare agencies are required to make reasonable efforts to return a foster child to his or her biological parent. In re N.C., 909 A.2d 818, 823 (Pa.Super. 2006). When cing the Id. At permanency review hearings for dependent children removed from the parental home, a trial court must consider the following factors. (f) Matters to be determined at permanency hearing. At each permanency hearing, a court shall determine all of the following: (1) The continuing necessity appropriateness of the placement. for and (2) The appropriateness, feasibility and extent of compliance with the permanency plan developed for the child. (3) The extent of progress made toward alleviating the circumstances which necessitated the original placement. (4) The appropriateness and feasibility of the current placement goal for the child. (5) The likely date by which the placement goal for the child might be achieved. (5.1) Whether reasonable efforts were made to finalize the permanency plan in effect. (6) Whether the child is safe. .... - 17 - J-S31002-14 (9) If the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from preserve and reunify the family need not be made or continue to be made, whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child. . . . 42 Pa.C.S. § 6351(f)(1)- These statutory mandates clearly place In re S.B., supra -being of the child must take precedence over all Id. (citation omitted) (emphasis in original). Moreover, the burden is on the child welfare agency In re D.P., 972 A.2d 1221, 1227 (Pa.Super. 2009). We discern no abuse of discretion by the trial court in changing the placement goals of the Children to adoption. The certified record demonstrates that Father has made no progress in meeting his FSP and ISP objectives, described above. To the extent Father argues that his incarceration prevented him from achieving his objectives, we reject his was due to his drugin his failure to achieve his objectives. The Children had been adjudicated dependent since January 28, 2010, at which time they were ages five, three, - 18 - J-S31002-14 two, and six months, respectively. Based on the foregoing testimonial evidence, we conclude that the court properly weighed the needs of the Children for safety and permanency over all other considerations, and that it did not abuse its discretion in concluding that changing the placement goals to adoption served their best interests. Accordingly, we affirm the October 21, 2013 decrees involuntarily terminat and the October 21, 2013 orders changing the placement goals to adoption. Decrees affirmed. Orders affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 - 19 -

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