J. S33001/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF S.B.K. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: T.K., SR., FATHER, :

:

 Appellant : No. 166 EDA 2015

Appeal from the Decree, December 10, 2014,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2014-A0057

IN RE: ADOPTION OF B.J.L.K. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: T.K., SR., FATHER, :

:

 Appellant : No. 173 EDA 2015

Appeal from the Decree, December 10, 2014,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2014-A0058

IN RE: ADOPTION OF K.F.L.K. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: T.K., SR., FATHER, :

:

 Appellant : No. 179 EDA 2015

Appeal from the Decree, December 10, 2014,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2014-A0059
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IN RE: ADOPTION OF T.L.K., JR. :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: T.K., SR., FATHER, :

:

 Appellant : No. 182 EDA 2015

Appeal from the Decree, December 10, 2014,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2014-A0060

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND LAZARUS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 10, 2015

T.K., Sr. (“Father”), appeals the decrees terminating his parental 

rights to his four children pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b) of 

the Adoption Act. After careful review, we affirm.

Father and A.W. (“Mother”)1 met in 2000 and over the course of 

six years had four children: K.F.L.K. born in 2001; T.L.K., Jr. born in 2003; 

B.J.L.K. born in 2005; and S.B.K. born in 2006 (“the Children”). Father and 

Mother never married, and their relationship included several periods in 

which they lived together and several periods in which they were separated. 

From 2007 until 2011, Mother had primary custody of the Children except 

for K.F.L.K., who resided with Father. During March or April of 2011, Father 

took custody of all the Children. They remained with Father and his 

 

1 Mother has filed separate appeals from the decrees terminating her 

parental rights to the Children.
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girlfriend until the Montgomery County Office of Children and Youth’s 

(“OCY”) involvement in March 2012. At that time, OCY began investigating 

an allegation that Father sexually abused K.F.L.K.

During the investigation, Father agreed to two different safety plans, 

first to have no unsupervised contact with his daughters, K.F.L.K. and 

B.J.L.K., and subsequently, no contact with them. During this time, the girls 

lived in Father’s home in the care of his girlfriend. On April 16, 2012, the 

two girls were removed from the home after Father had contact with them in 

violation of the safety plan. On May 4, 2012, the boys, T.L.K., Jr. and 

S.B.K., were removed from Father’s home after Father sent notes in their 

lunches to pass to the girls, after previously being instructed not to do so, in 

violation of the safety plan.

Based on its investigation, OCY determined that the allegations made 

by K.F.L.K. of sexual abuse by Father were credible and reported these 

allegations as “indicated” to the state registry, ChildLine. Father did not 

appeal this finding. Father was charged with sexual assault; however, all

criminal charges were subsequently dropped in September of 2013.

In order to facilitate reunification with the Children, OCY created a 

family service plan (“FSP”) for Mother and Father. Father’s goals included: 

obtain stable housing and provide proof of financial ability to care for the 

Children; obtain drug and alcohol evaluation and follow all treatment 

recommendations; obtain a psycho-sexual evaluation and follow all 
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treatment recommendations; demonstrate an understanding of sexual abuse 

and its effects on children; resolve his legal issues and cooperate with OCY; 

follow the conditions of his bail; and if visits were reinstated, to demonstrate 

appropriate parenting boundaries. (Notes of testimony, 10/1/14 at 54.)

On April 8, 2014, OCY filed petitions to terminate Father’s parental 

rights to the Children. Hearings were held on October 1, 2014, and 

November 12, 2014. OCY caseworker, Julia Solomon, testified that she was 

assigned the case in June of 2012. (Id. at 41.) Ms. Solomon testified that 

the court suspended Father’s visitation with the Children after they were 

placed in foster care in May of 2012 due to Father’s repeated violations of 

the safety plan and his refusal to follow orders not to have contact with the 

Children. (Id. at 51.) Ms. Solomon testified that Father was not very 

cooperative and was repeatedly confrontational with OCY. (Id. at 84.) She 

testified the vast majority of her communication with Father was received 

through his girlfriend. (Id.) She stated, “I had very infrequent contact with 

father, and he did not ask me about the children when he would contact me. 

(Id.)

Regarding Father’s FSP goals, Ms. Solomon testified that he refused to 

comply with many of them, and that Father repeatedly stated that his 

attorney had instructed him not to complete certain things that OCY had 

asked him to do. (Id. at 84-85.) When asked about Father’s housing 

status, Ms. Solomon replied that Father and his girlfriend maintained the 
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home they had when the Children were removed, and the girlfriend provided 

OCY with a copy of the lease. (Id. at 85-86.)

Regarding income and employment, Father’s girlfriend provided some 

of the proof. (Id. at 86.) Father worked for a fencing company and had 

another job in general construction. (Id.)

From the outset of this case, Father was directed to obtain a drug and 

alcohol evaluation. He did not comply until November of 2013. The 

recommendations were for him to attend outpatient treatment, to attend 

groups, and also to attend individual drug and alcohol counseling on a 

weekly basis. (Id. at 94.) According to Ms. Solomon, Father only attended 

a few sessions. (Id.) Ms. Solomon testified that Father denied that he had 

any substance abuse problems. (Id. at 95.) Father acknowledged that he 

drank, but that was not a crime, and it was not an issue. (Id.)

Ms. Solomon testified that although Father’s visits were suspended 

during the time she was assigned to the case, he did not assert himself to 

stay informed about the lives of his children or be involved as much as he 

could. (Id. at 96.)

Stephanie Setty, an OCY caseworker, testified that she was assigned 

the case in January of 2014. (Id. at 163.) Ms. Setty testified concerning 

Father’s failure to provide urine screens within 24 hours of a request, despite 

being told that a failure to respond would be considered a positive test. 

According to her log, there were twelve 24-hour notices that Father failed to 
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respond to. (Id. at 177.) Father did respond twice; one result came back 

negative but “diluted” and another came back negative. (Id. at 177.)

Father testified he was advised by his criminal defense attorney not to 

participate in a psycho-sexual evaluation which had been requested by OCY 

while the criminal charges were pending. After the criminal charges were 

dropped in September of 2013, Father did take part in a psycho-sexual 

evaluation. While the evaluator, Barry Zakireh, Ph.D., found insufficient 

evidence that Father’s behaviors “rise to the level of any specific sexual 

disorder or reflect severe, enduring, sexual, or highly frequent 

manifestations of sexual preoccupation, sexual obsessions or compulsive 

sexual behaviors,” he did note other issues that were consistent with the 

observations and testimony of others. Those issues included “a history of 

aggression in a domestic context involving his ex-paramour,” “evidence of 

abuse of alcohol and narcotic analgesics, which [Father] seems to downplay 

or underreport,” and a “tendency to place himself in a favorable light and 

deny difficulties.” (See report of Dr. Barry Zakireh.)

Regarding the sexual assault allegations made by K.F.L.K. that were 

later dropped, the trial court made it clear that it “[could] not draw any 

conclusion regarding why the criminal charges were dropped. Nor was 

sufficient evidence presented to this Court to conclude whether the abuse 

occurred or not. Therefore, this Court will not make any determination that 
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depends upon whether or not the sexual abuse occurred.” (Trial court 

opinion, 12/10/14 at 10.)

On December 10, 2014, the trial court granted the petitions to 

terminate Father’s parental rights and entered final decrees. Father filed 

this timely appeal.

Father raises two issues for our consideration:

1. Whether the trial court committed an error of 

law and/or abuse of discretion when it held 

that OCY had proven by “clear and convincing 

evidence” that Father’s parental rights should 

be terminated pursuant to 23 Pa.C.S. 

§ 2511(a)(2)?

2. Whether the trial court committed an error of 

law and/or abuse of discretion in concluding 

that changing the goal from reunification to 

adoption is best suited to the safety, protection 

and physical, mental, and moral welfare of the 

children, when reunification remains the most 

appropriate and feasible goal?

Father’s brief at 5.

We review the termination of parental rights in accordance with the 

following standard:

[A]ppellate courts must apply an abuse of discretion 

standard when considering a trial court’s 

determination of a petition for 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., 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.; 
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In re: R.I.S., 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. [] Instead, a decision may be 

reversed for an abuse of discretion only upon 

demonstration of manifest unreasonableness, 

partiality, prejudice, bias, or ill-will. Id.

. . . . [E]ven where the facts could support an 

opposite result, as is often the case in dependency 

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 judge[] so long as 

the factual findings are supported by the record and 

the court’s legal conclusions are not the result of an 

error of law or an abuse of discretion. In re 

Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 

1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012) (citations 

modified, some citations omitted). It is well settled that a party seeking 

termination of a parent’s rights bears the burden of proving the grounds by 

clear and convincing evidence, a standard that requires evidence that is “so 

clear, direct, weighty, and convincing as to enable the trier of fact to come 

to a clear conviction, without hesitance, of the truth of the precise facts in 

issue.” In re T.F., 847 A.2d 738, 742 (Pa.Super. 2004) (citation omitted).

We believe the record contains sufficient evidence to support the 

termination of Father’s parental rights pursuant to 23 Pa.C.S.A. 

§ 2511(a)(2). In order to terminate parental rights pursuant to 

Section 2511(a)(2), three elements must be met: (1) repeated and 

continued incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse, 
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neglect, or refusal caused the child to be without essential parental care, 

control, or subsistence; and (3) the causes of the incapacity, abuse, neglect, 

or refusal cannot or will not be remedied. In re Adoption of M.E.P., 825 

A.2d 1266, 1272 (Pa.Super. 2003) (citations omitted).

Our supreme court has explained our inquiry under Section 2511(a)(2) 

as follows:

As stated above, § 2511(a)(2) provides statutory 

grounds for termination of parental rights where it is 

demonstrated by clear and convincing evidence that 

“[t]he 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.” If and only if 

grounds for termination are established under 

subsection (a), does a court consider “the 

developmental, physical and emotional needs and 

welfare of the child” under § 2511(b).

This Court has addressed incapacity sufficient 

for termination under § 2511(a)(2):

A decision to terminate parental rights, 

never to be made lightly or without a 

sense of compassion for the parent, can 

seldom be more difficult than when 

termination is based upon parental 

incapacity. The legislature, however, in 

enacting the 1970 Adoption Act, 

concluded that a parent who is incapable 

of performing parental duties is just as 

parentally unfit as one who refuses to 

perform the duties.

In re Adoption of S.P., 47 A.3d at 827 (citation omitted).
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Instantly, Father asserts that the criminal charges filed against him 

impeded his ability to fully comply with OCY. He further contends that the 

steps he has taken since his criminal case was withdrawn warranted further 

deference from the court. (Father’s brief at 9.) That is the total of Father’s 

argument to this court. We cannot grant Father relief on his claim.

As already stated, Father’s children were removed in April and May of 

2012 and were placed in foster care. Father’s criminal case was withdrawn 

in September of 2013. Father would have us ignore the 16 months between 

May of 2012 and September of 2013 where he did very little to resolve the 

issues of his parental incapacity. This court has stated that a parent is 

required to make diligent efforts towards the reasonably prompt assumption 

of full parental responsibilities. In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 

2002). A parent’s vow to cooperate, after a long period of 

uncooperativeness regarding the necessity or availability of services, may 

properly be rejected as untimely or disingenuous. Id. at 340.

Father claims that his impending criminal charges impeded his ability 

to fully comply with OCY. We find that assertion disingenuous. Initially, 

Father was not permitted to see the Children because of his failure to follow 

the safety plan. The filing of criminal charges also prevented Father from 

having contact with the Children. However, there was no bar to Father 

contacting OCY to inquire as to the Children’s well-being. The OCY 
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caseworkers testified that it was Father’s girlfriend who spoke with them 

about the Children, and not Father. 

OCY Caseworker Solomon testified that at a meeting on December 18, 

2013, Father was “very confrontational with all staff members present, and 

he, you know, repeatedly denied he needed to do these things.” (Notes of 

testimony, 10/1/14 at 92-93.) She was referring to giving a urine sample 

which Father was ordered to provide. Additionally, while Father eventually 

obtained drug and alcohol evaluations, he failed to attend counseling 

sessions. He consistently maintained he never had a drinking problem. 

(Notes of testimony, 11/12/13 at 193.)

The record belies Father’s assertion that he did not have a drinking 

problem. Diana Rosenstein, Ph.D., an expert in psychology, psychoanalysis, 

and bonding and attachment assessments among children, parents, and 

other caregivers, testified that she performed assessments of the parenting 

capacity of each of the birth parents, and an evaluation of each of the 

Children to each birth parent. Dr. Rosenstein testified that all four children 

had observed Father abuse alcohol and stated that Father became “mean,” 

“violent,” or “physical” when he was drinking. All four children mentioned 

his drinking and the frightening effect it had on them. (Id. at 44-46.) The 

Children also mentioned incidents of violence between Father and his 

girlfriend. (Id. at 45.) Dr. Rosenstein stated, “I found all four of the 
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children to be credible in their description of the father’s alcohol abuse.” 

(Id. at 47.)

In her testimony, Mother described acts of violence perpetrated 

against her by Father when he was drunk, such as, punching her in the face, 

and pinning her against a wall and choking her. (Id. at 148.) Mother 

testified that the Children had witnessed one of the physical altercations 

between herself and Father. (Id. at 150.)

Father’s girlfriend, while denying he had an alcohol abuse problem, 

described an incident where Father was arrested because he was drinking 

and depressed that he did not have a job at the time. (Id. at 241.)

Additionally, Father’s repeated failure to provide urine screens within 

24 hours upon request, despite being advised that a failure to respond would 

be considered a positive test, infers he feared a positive test result.

The above evidence clearly contradicts Father’s statements that he did 

not have a drinking problem and raises concerns about Father’s reliability as 

a witness. Along with Father’s alcohol abuse was a history of domestic 

violence that clearly had an effect on the Children. The clear and convincing 

evidence of record confirms the trial court’s determination that “Father’s 

alcohol use and history of domestic violence, as well [as] his inability to 

meet the emotional needs of the children, creates a parental incapacity that 

prevents him from providing a safe and secure home for the children.” (Trial 

court opinion, 12/10/14 at 17.) Accordingly, we conclude the record 
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evidence supports the termination of Father’s parental rights under 

Section 2511(a)(2).

After we determine that the requirements of Section 2511(a) are 

satisfied, we proceed to review whether the requirements of Subsection (b) 

are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 

(Pa.Super. 2008) (en banc) (providing that, once a court determines that 

the parent’s conduct warrants termination of his or her parental rights 

pursuant to Section 2511(a), the court then conducts the second part of the 

analysis, pursuant to Section 2511(b), to determine “the needs and welfare 

of the child under the standard of best interests of the child.”). This court 

has stated that the focus in terminating parental rights under 

Section 2511(a) is on the parent, but it is on the child pursuant to 

Section 2511(b). Id. at 1008.

In reviewing the evidence in support of termination under 

Section 2511(b), we consider whether termination of parental rights would 

best serve the developmental, physical, and emotional needs and welfare of 

the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005), 

appeal denied, sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa. 

2006). “Intangibles such as love, comfort, security, and stability are 

involved in the inquiry into the needs and welfare of the child. The court 

must also discern the nature and status of the parent-child bond, with 
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utmost attention to the effect on the child of permanently severing that 

bond.” Id. at 1287 (citation omitted).

We note Father has failed to present an argument regarding 

Section 2511(b). Suffice it to say, the trial court has addressed this section, 

and we conclude its analysis that the termination of Father’s parental rights 

will best serve the needs and welfare of the Children is supported by the 

record.

Father’s remaining issue concerns whether the trial court abused its 

discretion when it approved a change of goal from reunification to adoption. 

According to Father, the facts and circumstances of this case do not support 

the goal change. On appeal, goal change decisions are subject to an abuse 

of discretion standard of review. In re N.C., 909 A.2d 818, 822 (Pa.Super. 

2006).

In order to conclude that the trial court abused its 

discretion, we must determine that the court’s 

judgment was “manifestly unreasonable,” that the 

court did not apply the law, or that the court’s action 

was “a result of partiality, prejudice, bias or ill will,” 

as shown by the record. We are bound by the trial 

court’s findings of fact that have support in the 

record. Id. The trial court, not the appellate court, 

is charged with the responsibilities of evaluating 

credibility of the witnesses and resolving any 

conflicts in the testimony. In carrying out these 

responsibilities, the trial court is free to believe all, 

part, or none of the evidence. When the trial court’s 

findings are supported by competent evidence of 

record, we will affirm “even if the record could also 

support an opposite result.” 

Id. at 822-823 (internal citations omitted).
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This matter is controlled by the Juvenile Act, 42 Pa.C.S.A. § 6301. 

When considering a petition for goal change for a dependent child, the trial 

court considers:

the continuing necessity for and appropriateness of 

the placement; the extent of compliance with the 

service plan developed for the child; the extent of 

progress made towards alleviating the circumstances 

which necessitated the original placement; the 

appropriateness and feasibility of the current 

placement goal for the child; and, a likely date by 

which the goal for the child might be achieved.

In re A.K., 936 A.2d 528, 533 (Pa.Super. 2007), citing 42 Pa.C.S.A. 

§ 6351(f).

Additionally, Section 6351(f.1) requires the trial court to make a 

determination regarding the child’s placement goal:

(f.1) Additional determination.--Based upon the 

determinations made under subsection (f) and 

all relevant evidence presented at the hearing, 

the court shall determine one of the following:

. . . .

(2) If and when the child will be placed 

for adoption, and the county 

agency will file for termination of 

parental rights in cases where 

return to the child’s parent, 

guardian or custodian is not best 

suited to the safety, protection and 

physical, mental and moral welfare 

of the child.

42 Pa.C.S.A. § 6351(f.1).

On the issue of a placement goal change, this court has stated:
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When a child is adjudicated dependent, the 

child’s proper placement turns on what is in the 

child’s best interest, not on what the parent wants or 

which goals the parent has achieved. See In re 

Sweeney, 393 Pa. Super. 437, 574 A.2d 690, 691 

(1990) (noting that “[o]nce a child is adjudicated 

dependent . . . the issues of custody and 

continuation of foster care are determined by the

child’s best interests”). Moreover, although 

preserving the unity of the family is a purpose of 

[the Juvenile Act], another purpose is to “provide for 

the care, protection, safety, and wholesome mental 

and physical development of children coming within 

the provisions of this chapter.” 42 Pa.C.S. 

§ 6301(b)(1.1). Indeed, “[t]he relationship of 

parent and child is a status and not a property right, 

and one in which the state has an interest to protect 

the best interest of the child.” In re E.F.V., 315 Pa.

Super. 246, 461 A.2d 1263, 1267 (1983) (citation 

omitted).

In re K.C., 903 A.2d 12, 14-15 (Pa.Super. 2006).

Instantly, after careful review of the record, we discern no abuse of 

discretion by the trial court. The crux of Father’s argument is that he had 

essentially alleviated the circumstances, i.e., the allegations of sexual 

abuse, which led to placement of the Children. (Father’s brief at 11.) Father 

contends because the criminal charges were not pursued and Dr. Zakireh 

concluded there was insufficient evidence to establish Father sexually 

assaulted the victim in this case, that the trial court should have maintained 

reunification as the goal and directed OCY to provide more services to 

Father. (Id.)

As previously discussed, the trial court could not draw any conclusion 

regarding why the criminal charges were dropped. As such, the court 
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declined to consider whether the sexual abuse occurred when making its 

determination. Clearly, Father ignores the other factors which prevented 

him from retaining custody of the Children, such as: Father repeatedly 

ignored OCY’s safety plans which caused his two sons to be removed from 

his home; he failed to cooperate and was confrontational with OCY staff; he 

failed to attend counseling sessions; he failed to admit he had a drinking 

problem; he failed to produce urine screens at least 15 times when called 

upon to do so; all four children told Dr. Rosenstein that Father’s drinking had 

a frightening effect on them (see notes of testimony, 11/12/14 at 44-46). 

Based on the entire record, we find the trial court correctly determined that 

continued placement was best suited to the safety, protection, physical, 

mental, and moral welfare of the Children. Accordingly, we affirm.

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015