J

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

IN RE: W.P.J.K., A MINOR

APPEAL OF: J.K., FATHER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1026 MDA 2019

Appeal from the Decree Entered , May 30, 2019 , i n the Court of Common Pleas of Berks County , Orphans' Court at No(s): 86417

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IN RE: E.J.K., A MINOR

APPEAL OF: J.W.K., FATHER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1027 MDA 2019

Appeal from the Decree Entered , May 30, 2019 , i n the Court of Common Pleas of Berks County , Orphans' Court at No(s): 86416

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IN RE: K.J.K., A MINOR

APPEAL OF: J.K., FATHER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1028 MDA 2019 Appeal from the Decree Entered May 30, 2019J

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- i n the Court of Common Pleas of Berks County , Orphans' Court at No(s): 86415

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BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J. *
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 06, 2020
J.W.K. (Father) appeals from the decrees entered by the Berks County
Orphans’ Court , which involuntarily terminated his parental rights to three of

his children (four

- year
- daughter K.J.K, two

- year
- daughter E.J.K., and one
year
- son W.P.J.K.) pursuant to the Adoption Act. 1 See 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8) and (b). Upon review, we affirm.
The orphans’ court summarize d the factual and procedural history of

this matter as follows:

[Father] and [Mother] (collectively “Parents”) are the natural parents of K.J.K. (born October [] 2014), E.J.K. (born January [] 2017) and W.P .[J

. ] K. (born January [] 2018) (collectively “the Children”). Mother and Father were not married when t he Children were born. Mother has three additional children who do not reside with her and Father has two additional children that do not reside with him. Berks County Children and Youth Services (“BCCYS”) first engaged Parents and Children (“the Family”) in 2013, though services were discontinued when Parents moved into Montgomery County. In November of 2015, upon referral from BCCYS and the Family moving into Montgomery County, Montgomery County Children and Youth Services (“MCCYS”) became involved in f unding services and

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 The orphans’ court also terminated the parental rights of J.L.C. (Mother). She filed a separate appeal, which is also before this panel.J

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- supervision of the case due to ongoing mental health, domestic violence and housing stability issues. In 2017, upon referral from MCCYS indicating that the Family had moved back into Berks County, BCCYS was re

engaged with the Family in order to address ongoing issues with both Mother and Father. After several months within which several incidents and continuing issues prompted safety plans from BCCYS, but the safety plans were repeatedly broken. On October 12, 2017, BCCYS filed an
eme rgency petition for custody of K.J.K. and E.J.K. that was granted by the court. BCCYS then filed a dependency petition for K.J.K. and E.J.K., and upon a hearing before this court, legal custody was transferred to BCCYS for placement purposes. The primary established goal was return of K.J.K. and E.J.K. to the most appropriate parent with a concurrent goal of adoption. Mother gave birth to W. [P.] J.K. [i]n January [] 2018. After no reported prenatal care and both Mother and W. [P.] J.K. tested positive for m ethamphetamines, BCCYS filed a petition on March 13, 2018 seeking dependency of W. [P.] J.K. The court ordered that W .[P

. ] J.K. would remain with Parents as he was still hospitalized, but also ordered that foster parents were allowed to visit W. [P.] J.K. due to Parents’ inconsistent visits. Upon his discharge from the hospital, BCCYS filed for emergency custody of W. [P.] J.K. and after a hearing, legal custody was transferred to BCCYS on March 28, 2018. [***] On October 31, 2018, [BCCYS] filed a petition for t he involuntary termination of the parental rights of both Mother and Father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). The petition cited the same following factual support for grounds for termination:

a. Failure of Mother and Father to obtain and maintain a legal/stable source of income;

b. Failure of Mother and Father to obtain and maintain stable and appropriate housing;

c. Inability of Mother and Father to appropriately parent the Children;J

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- d. Failure of Mother and Father to show progress with paren ting skills;

e. Failure of Mother and Father to remediate substance abuse issues;

f. Concerns remaining regarding Mother’s and Father’s mental health; and

g. Concerns remaining regarding issues of domestic violence. A hearing on the petition was held on Ma y 13, 201 9 and continued for a second day on May 23, 2019. [***] Upon conclusion of the hearing, the court took the matter under advisement. Thereafter, [the court] filed separate orders dated May 30, 2019 terminating the parental rights of both Mother and Father as to K.J.K., E.J.K., and W .[P

. ] J.K.

Trial Court Opinion, 8/15/19, at 1

- 16 (citations to the record omitted).

Fa ther filed this timely appeal, wherein h e presents two interconnected

issues for our review:

1. Whether the orphans’ court erred in involuntarily terminating Father’s parental rights between K.J.K. and him, where there was a strong emotional and parental bond between him and K.J.K., which would have had a negative effect on the child if the parental bond was permanently severed?

2. Whether the orphans ’ court erred in involuntarily terminating Father’s parental rights to W.P.J.K. and E.J.K., where there was a strong emotional and parental bond between Father and K.J.K., which would have a negative effect on the younger children if the bond was permanent ly severed and it would be detrimental to sever the ties between the three children who are extremely bonded as siblings?J

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Father’s Brief at 5

. ( Edited for clarity

. )
Initially, we note Father’s second issue depends on the success of his

first. Father all but concedes he does not have a strong parental bond with
the younger children (E.J.K. and W.P.J.K.)

. But , he argues , the younger
children’s sibling bond with the eldest child (K.J.K.) is so essential that if his
rights to K.J.K. should not be terminated, neither should his rights to the E.J.K.

and W.P.J.K.
We begin with 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 Adoption of A.C. , 162 A.3d 1123, 1128 (Pa. Super. 2017) (quoting In

re T.S.M. , 71 A.3d 251, 267 (Pa. 2013).
Termination of parental rights is governed by section 2511 of the
Adoption Act, 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 gro unds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrantsJ

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- termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determinatio n of the needs and welfare of the child under the standard of best interests of the child.

In re L.M. , 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The petitioner must 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).
When terminating parental rights under section 2511(a), this court has
stated that the focus is on the parent; but under section 2511(b), the focus in

on the child. See In re Adoption of C.L.G. , 956 A.2d 999, 1008 (Pa. Super.
2008) ( en banc ). In reviewing the evidence in support of termination under
section 2511(b), our Supr eme Court has stated as follows:
[I]f the grounds for termination under subse ction (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 ch ild 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).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as well. Additionally, section 2511(b) does not require a formal bondingJ

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evaluation.” In re Z.P. , 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified r ecord, “[t]here are some instances...where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S. , 946 A.2d
753, 762 (Pa. Super. 2008).
A parent ’ s abuse and neglect ar e also a relevant part of this analysis.

See In re K.K.R.
- S. , 958 A.2d 529, 535 (Pa. Super. 2008). Thus, the court
may emphasize the safety needs of the child. See In re K.Z.S. , 946 A.2d at
763 (affirming involuntary termination of parental rights, despit e existence of
some bond, where placement with mother would be contrary to child ’ s best
interests). “[A] parent ’ s basic constitutional right to the custody and rearing
of ... her child is converted, upon the failure to fulfill ... her parental duties, to

t he child ’ s right to have proper parenting and fulfillment of [the child ’ s]
potential in a permanent, healthy, safe environment.” In re B.,N.M. , 856 A.2d
847, 856 (Pa. Super. 2004) (internal citations omitted).
Instantly, Father limits his appeal to the se cond prong of the termination
analysis , section 2511(b). Thus, we accept the orphans’ court determination
that termination was warranted under section 2511(a)(1), (2), (5) and (8) , and we narrow our focus on section 2511(b) . Regarding section 2511(b),

Fa ther argues that he regularly visited K.J.K. during the dependency case, and
that during those visits, he dem onstrated appropriate parenting by completing
such tasks as feeding and diaper changing. He highlights the testimony of aJ

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MCCYS caseworker who opi ned that Father cared for Children and did a good
job with them. Similarly, Father directs us to the testimony of another service
provider, who stated that K.J.K. is attached to Father. Finally, Father argues
that since he ended his relationship with Mot her, he has placed himself in a
position where he could care for the Children full

- time. See Father’s Brief at

11

- 12.
Regarding the section 2511(b) analysis, we observe that the orphans’

court made extensive findings to support its ultimate determination that
termination of Father’s rights was warranted:

Dr. Richard Small, who was qualified as an expert in the field of psychology, testified that he performed forensic valuations of both Father and Mother. Dr. Small’s evaluation of Father performed in Marc h of 2018 and Father presented as exhibiting self

- centered and anti

- social behavior. Dr. Small noted that Father’s relationship with Mother included verbal and physical violence, including a PFA, and that the relationship between the two was difficult. F ather admitted no issues and indicated that any problems were the fault of other people without accepting any responsibility of his own. In relation to Father’s prospect of change, Dr. Small opined that he sees Father’s prospect of change as “not very good ,” due to Father’s personality disorder and because Father maintains that he has done nothing wrong and viewing himself as superior to others. Initially, Father refused to admit any drug use, but then slowly provided further details on his drug use. Whe n Dr. Small asked how Father could maintain clean urine samples, Father indicated that he knew how to game the system. Further, Father demonstrated no view of problematic drug use other than perhaps the legal consequences arising therefrom. [***]J

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- Dr. Small opined that he had great concern regarding the combustible relationship between Father and Mother and the negative effect on the needs of the Children. Dr. Small further indicated that it is common to observe intermittent periods of engagement w ith individuals in which it appears that the individuals are cooperating and recognizing issues, but then the progress falls apart. When it came to the Children, Dr. Small noted that Father spoke about the Children with affection, while Mother was much mo re focused on herself without much mention of the Children. However, Dr. Small concluded that he had strong doubts as to whether Father or Mother could provide a consistent safe, nurturing and stable environment for the Children. [***]

After issues with P arents arriving late for visitation appointments, BCCYS implemented and the court later ordered, the Parents arrive one hour prior to the visitation app ointments. As was noted, both Parents missed or cancelled appointments throughout. When Father request ed separate visitation times, visitation was reduced from twice a week for two hours with both Parents to once a week for two hours with Mother and the same with Father. [The permanency and adoption supervisor with BCCYS] noted that K.J.K. demonstrated no negative effects resulting from the reduction in visitation time. K.J.K. does not ask for Parents while at the home of foster parents between visitation periods and there is no indication of effect or statements from K.J.K. when Parents have cancelled or failed to show up for visitation appointments. [***] [The permanency and adoption supervisor with BCCYS] indicated that she saw no detriment to the Children in terminating parental rights. W.[P.]J.K. has been in the care of the foster parents since shortly after his birth and is primary attached to the foster parents. E.J.K. has formed a secure attachment to the foster parents, seeking and receiving comfort, support and fulfillment of her needs. K.J .K. has expressed that she didn’t want to go back to the foster home or daycare following some visits, but she is easily redirected and is responsive to the comfort. K.J.K. refers to foster parents as mom and dad.J

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- [The permanency and adoption supervisor w ith BCCYS] explained that BCCYS is seeking termination of parental rights due to the age and vulnerability of the Children, the length of time within which Parents have been afforded the opportunity to engage in services, the span of the case across two co unties and the lack of progress and consistenc y from Parents. The needs of the Children for stability in living arrangements and in environment and the need for consistent and stable caregiving demonstrate that termination of parental rights is in the bes t interests of the Children. [Legal Counsel for the Children] testified that he had the opportunity to meet with foster parents and with the Children. Legal Counsel observed the foster parents to [be] engaging, caring and attentive to the needs of the Chi ldren and indicated that the foster parents share an attachment with the Children. Since E. J.K. and W. [P.] J.K. were too young to engage in dialogue with Legal Counsel, he had a conversation with K.J.K. K.J.K. told Legal Counsel that she loves the foster parents, but indicated to Legal Counsel that she wanted to live with “old mommy and daddy,” meaning Parents. [The GAL for the Children] testified that in reviewing the reports, it is reported that K.J.K., though crying when she needed to leave visits with Parents, also cried when she was dropped off by the foster mom. K.J.K. loves both Parents and foster parents. K.J.K. did not indicate to the GAL a preference of where she wanted to live. The GAL observed a strong bond between K.J.K. and the foster paren ts and noted the stability that foster parents offer in relation to the lack of stability K.J.K. had experienced with Parents. The GAL also expressed the importance of keeping K.J.K. with her siblings. The GAL concluded that it is in the best interests o f the Children to terminate the parental rights of both Mother and Father, indicating that the bond with the foster parents is healthier and much more critical than that with Parents.

T.C.O. at 8

- 16 (citations to the record omitted).J

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These findings, whic h are supported by the record, reveal that Father’s
arguments are without merit. Father claim s he maintained and formed
parental bonds through visitation. The record reveals that his visitation was
not consistent. Even if it were, the record also shows that visitation alone did
not nurture a parental bond worth preserving. By not appealing the first prong
of the termination analysis, Father concedes that he was unable to parent the

Children . What he fails to realize is that because he could not parent the

Children , the y began to form primary attachments to their primary caregivers,
the foster parents. In other words, even the most consistent visitation would
not necessarily prevent the Children from becoming bonded to foster parents.
We certainly reco gnize an atypical facet of this case, namely, that the

four

- year
- old K.J.K. had somewhat conflicting interests. In terms of her legal

interests , i.e. , her preferred outcome, 2 she expressed a desire to return to h er biological parents’ care. But o n the ot her hand , K .J.K.’s best interests

mandated that she remain safe and secure with the foster parents. On this
point, we note that K.J.K.’s preference to return to Father was not exactly
unequivocal. She demonstrated distress when she left the care of which ever parent (foster or biological) she was with. She referred to both sets as “mom
and dad.” She indicated that she had love for both sets, as well. Had there

_________________ __________ ______ ____ _______

2 In In Re Adoption of L.B.M. , 161 A.3d 172 (Pa. 2017) a fractured Pennsylvania Supreme Court interpreted 23 Pa.C.S.A. § 2313(a) to mean that
a child involved in a contested termination hearing must be afforded counsel to represent her “legal interests,” or preferred outcome of the litigation. We note that K.J.K. was represented by separate legal counsel in this case.J

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been evidence that K.J.K.’s success in the foster parents’ home would be
jeopardized by her st rong desire to return to Father’s care, then the conflict

betwee n her “best interests” and her “legal interests” would be more
concerning. But because the record clearly indicates that K.J.K. wa s also
strongly bonded to the foster parents, the record supp orts the orphans’ court

determination that K.J.K.’s legal interests (to live with Father) did not
outweigh her best interests (to remain with the foster parents).
K.J.K.’s legal interests aside, Father argues that it was in K.J.K.’s best
interests to deny the termination, because she had a “strong bond” with
Father. Father’s Brief at 12. Whether K.J.K. did, in fact, share a strong bond

with Father is debatable , bu t even if their bond was strong , it was not the type
worth preserving.
To explain : When examining the effect upon a child of severing a bond, courts must examine whether termination of parental rights will destroy a “necessary and beneficial relationship,” thereby causing the child to suffer “extreme emotional consequences.” (Citation omitted). In the case of an unhealthy bond, “attention must be paid to the pain that inevitably results from breaking a child’s bond to a biological parent, even if that bond is unhealthy, and we must weigh that injury against the damage that bond may cause if left intact. In re T.S.M. , [ supra ] 71 A.3d 251, 267 (Pa. 2013).

In re Adoption of J.N.M. , 177 A.3d 937, 944 (Pa. Super. 2018).
We also note that courts may consider the totality of the circumstances
when performing the needs and welfare analysis under section 2511(b).J

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J.N.M. , 177 A.3d at 946 (citing In re Coast 561 A.2d 762, 771 (Pa. Super.
1989) ( en banc )).
Instantly, Father has evinced an inability to parent. Even if the orphans’
court was inclined to deny the termination petition, Father would not even be
in a position to enjoy unsupervised visitation, much less reunification with

K.J.K. K.J.K.’s instability would persist, which, in turn, would result in

detrimental consequence s . Thus, the bond K.J.K. shares with Father is clearly
an unhealthy one. The only remaining question is whether K.J.K. would suffer
an injury if this unhealthy bond was severed.
The record supports the orphans’ court determination that K.J.K. would

not. A lthough she was upset after leaving her visits with Father, she was
easily redirected and responsive to the foster parents’ comfort. K.J.K. did not

ask about Father either between visits or when those visits were cancelled for

Father’s failu re to show up. She experienced no negative consequences with
her visits with Father were reduced. Importantly, K.J.K. also has a bond with
foster parents, one that is much more stable and secure.
Because we conclude that termination of Father’s rights to K.J.K. was
warranted, we need not discuss Father’s second issue, the hypothetical effect
that splitting up the siblings would have on their respective best interests.
However, we note that “ th e goal of preserving the family unit cannot be

elevated above all other factors when considering the best interests of the
children, but must be weighed in conjunction with other factors.” In re K.D. ,J

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144 A.3d 145, 153 (Pa. Super. 2016) (citing In re Adoption of G.R.L. , 26
A.3d 1124, 1127 (Pa. Super. 2011).

In sum, t he record supports the thorough and extensive findings made
by the orphans’ court. Thus, we conclude that the orphans’ court did not

commit an abuse of discretion when it granted the termination petition filed
by BCCYS.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/06/2020