In the Interest of: J.B., Appeal of: A.W.-B. ( 2020 )

J-S11045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.B., JR. A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W.-B, BIOLOGICAL :
MOTHER : No. 1682 WDA 2019
Appeal from the Order Dated October 21, 2019
in the Court of Common Pleas of McKean County
Orphans’ Court at No(s): No. 42-18-0077
IN THE INTEREST OF: B.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W.-B., BIOLOGICAL :
MOTHER : No. 1683 WDA 2019
Appeal from the Order Entered October 18, 2019
in the Court of Common Pleas of McKean County
Orphans’ Court at No(s): 42-18-0076
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.W.-B., BIOLOGICAL :
MOTHER : No. 1689 WDA 2019
Appeal from the Order Dated October 21, 2019
in the Court of Common Pleas of McKean County
Orphans’ Court at No(s): 42-18-0078
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
J-S11045-20
MEMORANDUM BY MUSMANNO, J.: FILED JULY 06, 2020
A.W.B. (“Mother”) appeals from the Orders,1 granting the Petitions filed
by the McKean County Children and Youth Services (“CYS”), seeking to
involuntarily terminate her parental rights to her three minor, male children,
J.B., Jr., born in August 2007; J.B., born in June 2008; and B.W., born in
October 2011 (collectively, “the Children”), pursuant to the Adoption Act, 23
Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).2, 3 We affirm.
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1 The above-stated Orders were dated October 16, 2019. However, the docket
reflects that the Notice, pursuant to Pa.R.C.P. 236(b), for B.W., was entered
on October 18, 2019. The Pa.R.C.P. 236(b) Notices for J.B., Jr., and J.B. were
entered on October 21, 2019. The respective Notice dates are considered to
be the “entry” dates for the Orders. See Frazier v. City of Philadelphia,
735 A.2d 113, 115 (Pa. 1999) (holding that “an order is not appealable until
it is entered on the docket with the required notation that appropriate notice
has been given”); see also Pa.R.A.P. 108(a) (recognizing that the entry of an
order is designated as “the day on which the clerk makes the notation in the
docket that notice of entry of the order has been given as required by
Pa.R.C.P. 236(b).”).
2 In the three separate termination Orders, the trial court involuntarily
terminated the parental rights of Mother and J.B., Sr. (“Father”), (collectively,
“Parents”), to each of the Children. Father has not filed any appeals
challenging the termination of his parental rights, nor has he filed a brief in
this appeal.
3 In addition to the Children, Mother has three older children, N.W., a male
born in June 1999; K.W., a female born in March 2001; and K.W., a male born
in March 2006. N.T., 5/31/19, at 27. N.W. lives in Mother’s home with his
girlfriend and their son; and K.W. (female) and K.W. (male) live with C.D.,
who is Mother’s mother (“Maternal Grandmother”). Id.-2-
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In its Opinion,4 the trial court ably and accurately set forth the factual
background and procedural history of this appeal, which we adopt as though
fully restated herein. Trial Court Opinion, 10/17/19, at 1-5. Importantly, the
trial court stated the following:
The [C]hildren were found to be dependent by an Order
dated May 17, 2016. At that time[,] Mother had been sentenced
to a [prison] term of 6 to 13 years.
Father was incarcerated in the McKean County Jail[,] and
was facing pending criminal charges and a [s]tate [p]arole
revocation. Paternal grandparents, [W.B. (“Paternal
Grandfather”)] and [C.B. (“Paternal Grandmother”)] [collectively,
(“Paternal Grandparents”)], indicated that they could provide
kinship care for the [C]hildren. Therefore, [the Children] were
placed in their home. [Paternal Grandparents] were also
providing care for three additional grandchildren who were found
to be dependent. Mother had requested visits with the [C]hildren
(at her SCI facility). Visits with Mother have continued since the
inception of the dependency action. Mother has maintained
regular phone contact with the [C]hildren….
The placement with [Paternal Grandparents] was found, in
the initial dependency proceedings, to be going well. However, at
the October 18, 2016, hearing[,] the court found that there were
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4 There are three virtually identical trial court Opinions in this matter, one for
each of the Children, with the only differences being the name of the subject
child throughout the Opinion, and the remaining children referenced as that
child’s siblings. In this Memorandum, we will reference “Trial Court Opinion,
10/17/19,” in relation to all three of the identical Opinions, unless otherwise
indicated.
The trial court Opinion regarding J.B., Jr., erroneously states that J.B.
was born in January 2008. However, the Opinions regarding J.B. and B.W.
recite June 2008 for J.B.’s date of birth. Compare Trial Court Opinion (J.B.,
Jr.), 10/17/19, at 1, with Trial Court Opinions (J.B. and B.W.), 10/17/19, at
1. Moreover, Mother testified that J.B. was born in June 2008. See N.T.,
5/31/19, at 26-27.
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serious concerns. Service providers working with the family raised
concerns to CYS regarding the treatment of the [C]hildren in the
[Paternal Grandparents’] home. [Paternal Grandparents] had
difficulty providing care for all [six] of the children. [The Children]
have behavioral issues that [Paternal Grandparents] struggled
with. The trial court found that [Paternal Grandparents] couldn’t
provide appropriate care for all [six] of the children. Therefore,
the Children were placed in the [Foster Parents’] foster home [in
September or October of 2016. N.T., 1/22/19, at 82.].
[Foster Parents] have provided exceptional care for [the
Children]. They have worked with service providers and school
staffs to assure that their needs are met. They will adopt the
[C]hildren[,] if that is an option. [N.T., 1/22/19, at 124.]
At the October 18, 2016, hearing[,] [M]aternal
[G]randmother [ ] indicated that she was a placement option for
[the Children]. However, [Maternal Grandmother] had three
other grandchildren in her home[,] and there had been issues
regarding previous visits there. Services were put in place to
assist [Maternal Grandmother] with the development of skills[,]
and a plan to have all [six] of the children placed in her care.
At the review hearing on January 18, 2017, the court found
that the [C]hildren continued to do well in the [Foster Parents’]
foster home. [Maternal Grandmother] was still requesting that
the [C]hildren be placed with her. However, additional concerns
had arisen about the lack of supervision in [Maternal
Grandmother’s] home during the [C]hildren’s weekly visits with
[Maternal Grandmother] and their siblings. [Maternal
Grandmother] had a hard time controlling and supervising all of
the [C]hildren.
At a review hearing on March 8, 2017, despite the previous
emphasis and directives to [Maternal Grandmother] not to leave
the [C]hildren unattended during the sibling visits, it was
discovered that she continued to do so. A plan was put in place
for an additional caregiver to assist [Maternal Grandmother] when
the [C]hildren visited her, particularly when she was at work.
At the review hearing on September 22, 2017, the court
found that there had been a significant and troubling incident
during a visit with [Maternal Grandmother]. The [C]hildren were
left alone[,] and B.W. found and took some medication that was
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prescribed for [Maternal Grandmother]. He had to receive
emergency medical treatment. It became evident that, although
[Maternal Grandmother] deeply cares for [the Children,] and they
enjoy their relationship with her, she would not be a future
placement option for them. Since the [C]hildren had been in
placement for some time[,] the permanency plan for the
[C]hildren was discussed, including the potential of termination
and adoption by [Foster Parents]….
Trial Court Opinion, 10/17/19, at 2-4.
Subsequently, while released from incarceration, Father violated his
parole conditions and committed new criminal offenses, for which he was re-
incarcerated.5 Id. at 5. The trial court stated that both Mother and Father
are incarcerated in State Correctional Institution (“SCI”) facilities,6 and both
Parents have a history of prior criminal convictions and have had serious drug
and alcohol addiction issues. Id. at 1.
On April 4, 2019, CYS filed a separate Petition for each of the Children,
seeking to involuntarily terminate Parents’ parental rights. At the time of the
termination hearings underlying this appeal, the Children had resided in the
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5 The trial court explained that, during the dependency proceedings, Father
was paroled in December 2017, but absconded from a drug treatment facility,
and a warrant was issued for his arrest. Trial Court Opinion, 10/17/19, at 5.
After apprehension, in June 2019, Father was sentenced, including for
additional convictions for offenses committed while he was released on parole,
to four to eight years in prison. Id. The trial court emphasized that Father
had not followed through on the promises and representations that he made
to the court at the permanency hearing on September 22, 2017. Id. at 6.
6 Mother is incarcerated at SCI-Cambridge Springs. N.T., 5/31/19, at 22.
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foster home of pre-adoptive Foster Parents, T.L., and her boyfriend of fifteen
years, D.T., since September 2016, for between 2½ and 3 years.7 Trial Court
Opinion, 10/17/19, at 1; N.T., 1/22/19, at 14, 82, 124.
Parents were represented by independent legal counsel in the
termination proceedings. On April 13, 2019, the trial court appointed Mark
Hollenbeck, Esquire (“Attorney Hollenbeck”), as the Children’s legal interests
counsel and guardian ad litem (“GAL”). Subsequently, on January 15, 2019,
the trial court appointed Kord Kinney, Esquire (“Attorney Kinney”), to
represent the Children’s legal interests, as the Children’s legal interests
counsel, with Attorney Hollenbeck to remain as GAL.8
On January 22, 2019, May 31, 2019, and October 4, 2019, the trial court
held evidentiary hearings on the termination Petitions, at which both Father
and Mother were present, along with their respective counsel. 9 See N.T.,
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7 See N.T., 1/22/19, at 112-13, 132.
8 See In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality).
Attorney Kinney indicated that he had met with each of the Children on the
day prior to the hearing. N.T., 1/22/19, at 7, 19. B.W., who was seven years
old, and J.B., Jr., who was eleven years old, wished to testify at the hearing.
Id. J.B., who was ten years old, did not wish to testify. Id. Based on the
Children’s ages, and, after questioning J.B., Jr., and B.W. in camera, the trial
court found that the Children understood the termination proceedings. Id. at
27-28.
9 At multiple places in her appellate brief, Mother references testimony from
an additional day of testimony, July 31, 2019. We note that the trial court
docket, the trial court Opinion, and the briefs of the other parties do not make
reference to July 31, 2019, as a day of evidentiary hearing in the termination
proceedings.
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1/22/19, at 8, 27. At the January 22, 2019, termination hearing on the
termination Petitions held on January 22, 2019, the trial court separately
questioned B.W. and J.B., Jr., in camera. Id. at 9-26.10 CYS presented
Brianna Jones (“Ms. Jones”), the intake supervisor for CYS assigned to the
family. Id. at 74. CYS then presented the testimony of Donna Trimm, who
was previously employed by CYS and the ongoing caseworker for the family.
Id. at 79. Next, CYS presented the testimony of Foster Mother. Id. at 112.
Finally, CYS presented the testimony of Amanda Johnson, who is the ongoing
supervisor at CYS and has been involved with the family since mid-October
2016. Id. at 134-35.
Immediately prior to the testimony of Ms. Jones, Attorney Kinney stated
that, because he had been appointed on January 15, 2019, he had not had
time to file a motion for an expert bonding assessment, so he was orally
presenting the Motion. N.T., 1/22/19, at 70. Mother’s prior counsel, Erika
Mills, Esquire (“Attorney Mills”), joined in the Motion.11 Id. at 71-72. CYS did
not dispute the existence of a bond between the Children and Mother, but did
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10 CYS presented the testimony of Shawn Hartman (“Hartman”), who is
employed by the Pennsylvania Board of Probation and Parole as a parole
agent, and has been twice assigned to supervise Father when he was released
on parole. Id. at 56. As Father is not challenging the termination of his
parental rights, Hartman’s testimony is not relevant to this appeal.
11In an Order entered on March 8, 2019, the trial court granted Attorney Mills
permission to withdraw as counsel, and appointed Mother’s current counsel,
Anthony V. Clarke, Esquire (“Attorney Clarke”).
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not concur with the Motion, stating that the trial court could decide the nature
of the bond without an expert assessment. Id. at 73. The trial court decided
to hear the remainder of the testimony and rule on the Motion later in the
hearing, reasoning that there was no requirement for expert testimony
regarding the bond between the parent and a child. Id. at 70-74.
At the close of testimony, the trial court stated that there was a
sufficient question as to the effect on each of the Children from severing their
bond with Mother to warrant the appointment of a bonding expert. Id. at
139. The trial court expressed concern about ordering an evaluation because
the court did not need an assessment of whether a bond existed with both
parents, the Foster Parents, and Maternal Grandmother, because of the
parties’ agreement that such a bond exists. Id. The court was concerned
about the effect of severing that bond, which would involve the expert meeting
with the Children individually and ascertaining the effect of the termination of
Mother’s parental rights on them. Id. at 139. The trial court added,
I also don’t want to limit the evaluator and say, “I know how you
should do this” because I’m not the expert.
But I am really worried about the typical, “[l]et’s have visits
with mom and interview” and this is “[d]id the kids smile, did they
go up and did they respond[,]” and we don’t need that. We
already know that the [C]hildren are bonded with [M]other[;] the
question is what will the effect be if that bond is severed [-]
positive or negative, [or] both? ….
Id. The GAL agreed to an assessment, but requested that the time frame for
the assessment would not be longer than necessary. Id. at 140. The trial
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court instructed Attorney Kinney to obtain an expert evaluator, and stated
that the court would enter a written order. Id. at 141. Mother’s prior counsel
did not oppose the Motion, based on counsel’s agreement that the court may
determine whether severing the bonds is in the best interest of the Children
without an expert assessment. Id. at 143. Thus, on January 24, 2019, the
trial court entered an Order directing that an assessment should be conducted
as to the effect of termination of parental rights on the Children, without a full
bonding evaluation as to the existence of any bond, which had been conceded
at the hearing. Trial Court Opinion and Order, 1/24/19.
In its Opinion and Order, the trial court emphasized that
the court is granting the request for an evaluation to focus on the
negative impact, if any, that the [C]hildren will incur (each child
addressed separately) if parental rights are terminated.
It is important to clarify that this evaluation is unusual
because normally[, when] an evaluation is undertaken to
determine if there is a bond, that would be the first inquiry the
evaluator would have. Here, the court has already found, based
on the stipulation of counsel and the existing record in this case,
that there is a bond with Parents. What is not clear is the long[-
]term effect, the emotional harm (if any), that severing that
bond(s) would have on the [C]hildren[]; and, if there will be
emotional harm caused by severing the bond, [whether] the
benefits to the [C]hildren (each child’s situation addressed
separately) obtaining stability, as in being adopted and having a
permanent home, outweigh the negative impact of severing the
bond. The evaluator is to consider all potential available options
when factoring in the bond that the [C]hildren have with
[P]arents, including: 1) termination of both parent’ [sic] rights and
adoption by the foster family – what will be the emotional harm
caused by termination and how does that negative effect compare
against [the] benefit of being adopted and obtaining permanency?
2) termination of one parent’s rights and an order of subsidized
legal custodianship [(“SPLC”)] (physical custody to [F]oster
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[P]arents and visits with parent – with the possibility of the
custody order being modified in the future). How does the loss of
permanency in that the [C]hildren will not be in the custody of a
parent for some time, if ever, under this option compare with the
benefit of having a continued relationship with a parent?; 3) denial
of the request to terminate parental rights regarding each parent
and subsidized legal custodianship with the foster family. How
does the loss of permanency in this potential option compare
against the benefit of having a continued relationship with both
parents?
Trial Court Opinion and Order, 1/24/19, at 1-2 (unpaginated).
At the commencement of the May 31, 2019 hearing, Attorney Kinney
did not intend to present as a witness the clinical psychologist who had
examined the Children pursuant to the January 24, 2019, bonding Order, Peter
von Korff, Ph.D. (“Dr. von Korff”). N.T., 5/31/19, at 5.12 CYS, however, was
considering whether to present Dr. von Korff’s testimony later in the hearing.
Id. CYS presented the testimony of Foster Mother. Id. at 8. Mother was
present with her counsel, and testified on her own behalf. Id. at 22. Mother
also presented the testimony of Maternal Grandmother. Id. at 66-67. Finally,
Mother presented the testimony of her eighteen-year-old daughter, K.W. Id.
at 94-96. At the close of the hearing, the trial court provided CYS additional
time to decide whether it would present Dr. von Korff’s testimony in a separate
hearing. Id. at 107. The trial court stated that it would not request a
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12Attorney Kinney contacted Dr. von Korff to conduct the bonding assessment
on the Children pursuant to the trial court’s January 24, 2019, Order. N.T.,
10/4/19, at 14.
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recommendation from the GAL until a determination of whether Dr. von Korff
would testify. Id.
At the hearing on October 4, 2019, CYS proffered the testimony of Dr.
von Korff. N.T., 10/4/19, at 5. Mother’s counsel, Attorney Clarke, objected
on the basis that Dr. von Korff’s testimony did not meet the test for
admissibility of evidence set forth in Frye v. United States, 293 F. 1013(D.C. Cir. 1923). N.T., 10/4/19, at 5. The following exchange then occurred
with the trial court:
[ATTORNEY] CLARKE: …
Preliminarily, I would request that the report and testimony
of Dr. von Korff be excluded from these proceedings. My primary
thrust would be that it fails to meet the Frye test,[13] specifically
the report and the testimony that’s going to be brought forward
today will be produced absent having met with either of the
parents or more specifically the parents and/or – and the
[C]hildren at the same time and fails to include any of those
observations. Personally I’ve never seen a bonding assessment
done that did not incorporate those elements into that bonding
assessment and [Dr.] [v]on Korff’s report we’ve -- reaches very
sweeping conclusions that there is for all intents and purposes
either a weak or insecure bond between [M]other and [the
C]hildren. I do not believe from a scientific standpoint he can
reach those conclusions without having observed [M]other and
[C]hildren interacting in a somewhat natural setting[,] so[,] for
those reasons[,] I object to this testimony and/or report being
included as part of the record for the court’s consideration.
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13See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (adopted in
Pennsylvania in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977)).
Under Frye, “novel scientific evidence is admissible if the methodology
underlying the evidence has general acceptance in the relevant scientific
community.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003).
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THE COURT: I’m denying that request. Frye has to do with -- is
it unusual scientific[,] some type of new experiment, something
like that. Some procedure not recognized normally -- we get into
a Frye issue. What counsel’s [sic] arguing is that the evaluation
is bad, shouldn’t be given weight, should be rejected, which that
argument can certainly be made -- I’m not saying whether it’s
right or wrong, but that’s why we have the hearing to – so I can
get the facts. Do I accept the evaluation, are there any problems
with it, was it done appropriately? Those -- are all things we can
get into through the testimony and questioning but it – it – it’s not
that it’s -- again it’s a test saying the -- the argument is well[,]
this is invalid having these type of bonding assessments[,] so I’m
denying the objection.
N.T., 10/4/19, at 5-6.
Thus, the trial court overruled Mother’s Frye test objection, finding it
misplaced, and CYS presented Dr. von Korff’s testimony. Id. at 6, 11. The
trial court accepted Dr. von Korff as an expert in clinical psychology. Id. at
13-15. Mother then testified on her own behalf. Id. at 92.
On October 21, 2019, the trial court entered the Orders presently at
issue, which involuntarily terminated Mother’s parental rights to each of the
Children. On November 12, 2019, Mother timely filed three separate appeals,
which this Court, on November 26, 2019, consolidated sua sponte. On
November 27, 2019, Mother filed separate Concise Statements of errors
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complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).14
On appeal, Mother raises the following claims for our review:
1. Whether the [c]ourt erred in granting [CYS’s] Petition[s] for
Involuntary Termination of Parental Rights where [M]other
showed devotion toward[,] and had a bond with[,] [the]
[C]hildren[,] where [M]other was a substantial part of [the]
[C]hildren’s life prior to a finding of [d]ependency[,] and where
[M]other continued to maintain visits with [the [C]hildren after a
finding of dependency?
2. Whether the [c]ourt erred in not properly considering the
[C]hildren’s needs and welfare as it relates to a bond with
[M]other[,] and potential harm that may be caused to the
[C]hildren by severing said bond[,] particularly as it relates to the
two older siblings[, J.B., Jr., and J.B.,] who have clearly stated in
the bonding assessment they will not consent to an adoption[?]
If the termination of parental rights is not overturned and the
[C]hildren are not adopted, they will [e]ffectively be orphaned
through the remainder of their childhood[.]
3. Whether the [trial court] erred in permitting the bonding
assessment testimony of [Dr. v]on Korff[][?] The testimony
established that the bonding assessment was not properly
conducted in that Dr. [v]on Korff never spoke with [ ] [M]other,
never observed any interaction of [M]other with [the C]hildren,
never spoke with [ ] [Foster Parents], never observed interaction
of [F]oster [P]arents with [the C]hildren[,] and based his entire
testimony on [a] relatively short interview with the [C]hildren[.]
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14 Mother admitted in her transmittal letter that she had failed to comply with
Pa.R.A.P. 1925(a)(2)(i) by failing to file a concise statement of errors
complained of on appeal concurrently with each of her Notices of Appeal.
Mother filed Concise Statements fifteen days thereafter. Neither the trial court
nor this Court ordered her to file a concise statement on a date certain with
which she failed to comply, and there is no assertion of any prejudice. We,
thus, do not quash or dismiss her appeal. See In re K.T.E.L., 983 A.2d 745,
747 (Pa. Super. 2009) (holding that failure to file a Rule 1925(b) statement
concurrently with a children’s fast track appeal is considered a defective notice
of appeal, to be disposed of on a case-by-case basis, but did not result in
dismissal or quashal where there was no prejudice to the other parties as a
result of the late filing).
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Mother’s Brief at 3-4.
In reviewing an appeal from a decree terminating parental rights, we
adhere to 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.; 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.; see also Samuel
Bassett v. Kia Motors America, Inc., … 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, 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., 9 A.3d at 1190.
Therefore, even 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 judges 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, 826-27 (Pa. 2012).
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The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). “The
standard of clear and convincing evidence is defined as testimony 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.’”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a), along
with consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). We will address Section 2511(a)(1), (2) and
(b), which provide as follows:
§ 2511. Grounds for involuntary termination
(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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(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.
***
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(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.A. § 2511(a)(1), (2), (b).
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.
2008) (en banc). 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.
Regarding section 2511(b), our Supreme Court has explained as
follows:
[I]f the grounds for termination under subsection (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.[A.] § 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 child of permanently severing
the parental bond. In re K.M., 53 A.3d at 791.
- 16 -
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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
In her brief, Mother does not specifically contest the trial court’s findings
under 23 Pa.C.S.A. § 2511(a), except insofar as any certain subsection of
section (a) also has a “needs and welfare” element. Mother’s Brief at 21.
Mother explains, “the crux of this case focuses on 23 Pa.C.S.[A.] § 2511(b).”
Id. As Mother does not discuss any subsection of section 2511(a) in her brief,
we find that she has waived any challenge to the termination of her parental
rights under section 2511(a). See In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011) (recognizing that, “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”); Chapman-Rolle v. Rolle, 893 A.2d 770, 774 (Pa. Super. 2006)
(stating that “[i]t is well settled that a failure to argue and to cite any authority
supporting any argument constitutes a waiver of issues on appeal.”) (quoting
Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005)).15
____________________________________________
15 Even if Mother had not waived any challenge to section 2511(a), we would
conclude that she had conceded that the requirements of subsection (a)(1)
and/or (a)(2) were met, as those subsections, unlike subsections (5) and (8),
do not have a separate “needs and welfare” element. Further, we would
conclude that any challenge to section 2511(a) lacks merit, for the reasons
discussed in the trial court’s October 17, 2019, Opinion, which we adopt
herein. Trial Court Opinion, 10/17/19, at 13-23.
- 17 -
J-S11045-20
Thus, we proceed to Mother’s challenges regarding section 2511(b). See
C.L.G., supra. Mother requests that we address her third issue, her “Frye”
issue, before reviewing her remaining issues. Mother’s Brief at 21. Relying
on Commonwealth v. Harrell, 65 A.3d 420, 429 (Pa. Super. 2013), and its
discussion of Frye, Mother contends that the trial court erred in admitting Dr.
von Korff’s testimony. Mother’s Brief at 23-25. Mother argues that it is
necessary to determine whether Dr. von Korff’s testimony was within the
scope of what the trial court could consider in assessing the effect of severing
the Children’s bond with Mother, before we can assess the effect of the
termination on the Children. Id. 21-22.
We agree with CYS and the GAL that Mother has waived the Frye issue
by explicitly not renewing her objection to Dr. von Korff’s testimony and report
as inadmissible under the Frye test. See CYS Brief at 25; GAL’s Brief at 23.
Our review discloses that, upon the completion of cross-examination of Dr.
von Korff by Mother’s counsel, Attorney Clarke, the trial court questioned
whether Mother continued to object to Dr. von Korff’s testimony and report
on the bases of Frye. The following exchange ensued:
MR. CLARKE: So[,] Your Honor[,] the -- I -- I -- I believe that the
original objection[,] if I remember correctly[,] was that I objected
on a Frye basis and you also indicated perhaps it goes to the
weight of the testimony[,] and certainly the court can make that
determination as to whether or not it goes to the weight of the
testimony. I’m not renewing my objection.
N.T., 10/4/19, at 60-61 (emphasis added).
- 18 -
J-S11045-20
This Court has held that issues not raised in the lower court are waived,
and cannot be raised for the first time on appeal. In re C.P., 901 A.2d 516,
522 (Pa. Super. 2006); Pa.R.A.P. 302. As Mother’s counsel specifically stated
in court, on the record, that Mother was not renewing her Frye objection, the
objection was waived. Further, the trial court did not address this issue in the
Opinion that accompanied its October 16, 2019, Orders. We agree that the
issue is waived.
Even if Mother had not waived her Frye challenge, we would conclude
that it lacks merit.
At the hearing on October 4, 2019, the trial court explained that
Mother’s Frye objection to Dr. von Korff’s testimony was misplaced. N.T.,
10/4/19, at 5-6. The court stated that Dr. von Korff would not be testifying
with regard to an issue about which there was novel scientific methodology.
Id. The trial court had appointed a psychological expert to conduct a bonding
assessment to assist the court in assessing, from the standpoint of an expert
in psychology, the emotional effect on each of the Children of severing their
uncontested bond with Mother. Dr. von Korff carried out the court’s Order to
assist the court with its inquiry.
Dr. von Korff testified that he was assigned to meet with the Children to
offer an opinion with respect to their status of attachment and then any
subsequent opinions that he might give in relation to assisting the court to
address the Children’s permanency. N.T., 10/4/19, at 15. Dr. von Korff
- 19 -
J-S11045-20
explained that the tools that he used to make his determinations in this case
were valuable in assessing attachment; the tools are long-standing
instruments in his field and widely used in his profession. Id. at 16-17. Thus,
had Mother not waived her Frye challenge, we would conclude that there was
no Frye issue as to the methodology that Dr. von Korff had employed. Id. at
17.
In the remaining two issues, which Mother addresses together in her
brief, Mother asserts that there is a bond between her and the Children, and
that the Children will be harmed by terminating her parental rights and
severing the bond. Mother’s Brief at 25-33. Additionally, she contends that
the oldest child, J.B., Jr., who turned twelve in August 2019, does not wish to
be adopted, but would like to be reunited with her when she is released from
her incarceration.16 Id. at 29-30 (citing N.T., 10/4/19, at 31; N.T., 1/22/19,
at 125-26). Mother urges that the middle child, J.B., who will be twelve in
June 2020, will likely follow the lead of his older brother and resist adoption,
but she concedes his intention is not clear in the record. Id. at 29-30 (citing
N.T., 10/4/19, at 31-32). Mother asserts that the case law does not favor
courts terminating parental rights so that children become “legal orphans.”
Id. at 30-31 (citing In re Adoption of: L.J.B., 18 A.3d 1098, 1107 (Pa.
____________________________________________
16Mother cites 23 Pa.C.S.A. § 2711 (providing that the consent of an adoptee
who is over the age of twelve is required for an adoption).
- 20 -
J-S11045-20
2011); In re E.M., 908 A.2d 297, 309 (Pa. Super. 2006)).17 Mother requests
us to reverse the trial court’s Order, and remand the matter for the trial court
to order SPLC for the Children with Foster Parents. Id. at 34. Alternatively,
Mother asks us to reverse and remand for SPLC with Foster Parents only as to
the two older children, J.B., Jr., and J.B., and not as to the youngest child,
B.W. Id.
Dr. von Korff recommended termination of Mother’s parental rights as
to the Children, opining that SPLC would maintain the status quo, and the
status quo had to change. N.T., 10/4/19, at 31-36; see also Trial Court
Opinion, 10/17/19, at 10-13. Mother contends that the trial court committed
an error of law in admitting Dr. von Korff’s bonding assessment, as it varied
from the methodology Dr. von Korff normally employed in conducting a
bonding evaluation, in that he did not interview the Children and the parents
and/or Foster Parents. N.T., 10/17/19, at 23-25.
With regard to Mother’s contentions concerning her remaining two
issues, we adopt the Opinion of the trial court, as it fully explains the court’s
needs and welfare analysis in this case. See Trial Court Opinion, 10/17/19,
at 13-26. We find no merit to Mother’s argument regarding the potential for
the two older children to become legal orphans by their potential refusal to
____________________________________________
17In his brief, the Children’s legal interests counsel, Attorney Kinney, echoes
the arguments raised by Mother. CYS and the GAL argue that the trial court’s
decision was proper and supported by competent evidence in the record.
- 21 -
J-S11045-20
consent to adoption by Foster Parents. The trial court Opinion discusses In
the Matter of T.D., 949 A.2d 910, 922-23 (Pa. Super. 2008), in which this
Court considered E.M., supra, and also discusses In re T.S.M., supra, in
which our Supreme Court considered T.D. and L.J.B., supra.
In T.D., the panel of this Court concluded that the trial court must give
consideration to the particular needs and welfare of the child at issue. T.D.,
949 A.2d at 920. Further, we recognized that creating legal orphans is not
desirable. Id. at 922. The panel in T.D. held that although the child was
twelve years old, still had loyalty and close ties to his natural parents, and
there was no pre-adoptive placement readily available, termination would best
serve the child’s needs and welfare. Id., at 922-23. See Trial Court Opinion,
10/17/19, at 17-18.
Likewise, in T.S.M., our Supreme Court, after considering L.J.B. and
T.D., explained that
[o]bviously, 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. Similarly, while
termination of parental rights generally should not be granted
unless adoptive parents are waiting to take a child into a safe
and loving home, termination may be necessary for the child’s
needs and welfare in cases where the child’s parental bond is
impeding the search and placement with a permanent adoptive
home.
T.S.M., 71 A.3d at 269; see also Trial Court Opinion, 10/17/19, at 20.
Our careful review of the record in this matter discloses that the trial
court’s determinations are supported by competent evidence. In re
- 22 -
J-S11045-20
Adoption of S.P., 47 A.3d 826-27. We agree with the trial court that the
Children’s bond with Mother is impeding their permanency and adoption with
Foster Parents, who are willing to adopt them. The termination of Mother’s
parental rights would be in the best interests of the Children in order to provide
them the potential for permanency and stability by being adopted by their
pre-adoptive Foster Parents, as recommended by Dr. von Korff. N.T.,
10/4/19, at 31-36. See T.D., 949 A.2d at 920-23; T.S.M., 71 A.3d at 269.
Accordingly, we affirm the trial court Orders involuntarily terminating Mother’s
parental rights.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2020
- 23 -
Circulated 06/08/2020 12:17 PM
IN THE INTEREST OF: : IN THE COURT OF COMMON PLEAS OF
J.B. JR. : McKEAN COUNTY, PENNSYLVANIA
� ' ::-� n
: ORPHAN'S COURT DIVISION
n u
DEr� TE 2 : NO. 42-18-0077
tt· .� · .. · .. ,·� :, I' , "
&
ul, ,) t..\J!::i c�, . ..>: . (/:·\
· .. .: , ifY
BY:,�
MEMORANDUM AND ORDER
McKean County Children and Youth Services (hereinafter "CVS") filed a Petition to
Involuntarily Terminate the Parental Rights of I B �B'9(hereinafter "Mother") and
---� Sr. (hereinafter "Father") to J ... �••Jr.
B (hereinafter "James"). Several days
of hearings have been held and the matter is now ready for a decision.
FINDINGS OF FACT:
� is 12 years old and his date of birth is August 2, 2007. He has several
siblings including J.B., date of birth January 30, 2008; and, B.W., date of birth October 4,
2011. J .. J.B. and B.W. have resided in the T4lll9and �L� for over
three years. Mother and Father are both incarcerated in State Correctional facilities.
They both have serious drug and alcohol addictions and numerous prior criminal
convictions.
Brianna Jones, an intake supervisor for McKean CVS, testified at the January 22,
2019, termination hearing. She explained that CVS initially became involved due to
Father being incarcerated and Mother facing incarceration. Mother had made
arrangements for her Mother, C�4illa and her friend, Karly Ryan, to provide care
for her 6 children when she was incarcerated. CVS initially monitored the case I family.
1
However, when Karly Ryan stole rent subsidy money and it appeared that C-�
was unable to provide appropriate care and supervision for the children, a dependency
petition was filed in April of 2016.
The children were found to be dependent by an Order dated May 17, 2016. At
that time Mother had been sentenced to a term of 6 to 13 years.
Father was incarcerated in the McKean County Jail and was facing pending
criminal charges and a State Parole revocation. Paternal grandparents, v49I and
� 8-, indicated that they could provide kinship care for the children. Therefore,
._, J.B., and B.W. were placed in their home. Q9and Vtlll B- were also
providing care for three additional grandchildren who were found to be dependent.
Mother had requested visits with the children {at her SCI facility). Visits with Mother
have continued since the inception of the dependency action. Mother has maintained
regular phone contact with the children. There were no visits with Father while he was
incarcerated. Father had limited contact with the children prior to his incarceration. He
initially had some phone contact with the children but then that ended.
proceedings, to be going well. However, at the October 18, 2016, hearing the court
found that there were serious concerns. Service providers working with the family
raised concerns to CVS regarding the treatment of the children in the Ht-15
B
The B-had difficulty providing care for all of the children . .Jtlll9 and his siblings
have behavioral issues that the B-struggled with. The court found that the BB411••
2
couldn't provide appropriate care for all of the children. Therefore, J-, J.B. and B.W.
were placed in the L•••foster home.
The I & have provided exceptional care for -- and his siblings. They
have worked with service providers and school staffs to assure that their needs are met.
They will adopt the children if that is an option.
At the October 18, 2016, hearing maternal grandmother, (811 Dtlllt, indicated
three other grandchildren in her home and there had been issues regarding previous
visits there. Services were put in place to assist [411111 o
Ull--= with the development of
skills and a plan to have all of the children placed in her care.
At the review hearing on January 18, 2017, the court found that the children
continued to do well in the Lancaster foster home. C.- D F was still requesting that
the children be placed with her. However, additional concerns had arisen about the lack
of supervision in 09 D�'s home during the children's weekly visits with Mrs.
oima and their siblings. c• oll9 had a hard time controlling and supervising all of
the children.
At a review hearing on March 8, 2017, despite the previous emphasis and •
directives to C-. � not to leave the children unattended during the sibling visits,
it was discovered that she continued to do so. A plan was put in place for an additional
caregiver to assist o when the children visited her, particularly when she was
C1119,.._.,
at work.
3
At the review hearing on September 22, 2017, the court found that there had
were left alone and B.W. found and took some medication that was prescribed for his
grandmother. He had to receive emergency medical treatment. It became evident that,
although ceo .. deeply cares for James and his siblings and they enjoy their
relationship with her, she would not be a future placement option for them. Since the
children had been in placement for some time the permanency plan for the children was
discussed, including the potential of termination and adoption by the L�. Father
participated in the hearing via telephone. He indicated that he was in the Boot Camp
Program and taking advantage of all available treatment options. He indicated he
"would do whatever it takes" to have the children in his care and to be part of their
lives; and, "I would go to the moon if I have too." The focus at the hearing was on
Father as Mother would not be eligible for release from incarceration for several years.
The court advised Father that his recent steps to complete his sentence and be in a
position to provide care for the children was a positive development. However, the
court also specifically advised Father that he would have to demonstrate, through his
actions, that there was substance behind his commitment to provide care for J-and
his siblings. Father was ordered to follow his drug and alcohol treatment plan; to
maintain contact with CVS and establish a visitation schedule with CVS once he was
released from incarceration; to refrain from using controlled substances and alcohol;
and, to obtain appropriate housing. If Father was following his reunification plan CVS
had discretion to increase his visits and contact with J�nd his brothers.
4
•
Father was released from incarceration after the September 22, 2017, hearing
but before the next review hearing on March 23, 2018. He made little effort to have
contact with the children and form a relationship with them after he was released. He
missed visits and did not attend their appointments. He would tell the children he was
buying them Christmas gifts, or they would have pizza at the next visit, but then not
show up. This was traumatic to the children and deeply harmed Father's relationship
with them. He tested positive for cocaine use on January 7, 2018. His visits with the
children were then suspended. Father had additional positive drug screens for cocaine
and Suboxone. He had not obtained appropriate housing. Mother indicated that she
believed she would be eligible for parole sometime in 2022.
Father's parole agent, Shawn Hartman, testified at the January 22, 2019,
termination hearing. He supervised Father on two separate occasions. He initially
supervised him in 2015 or 2016. Father absconded and was again incarcerated. He was
then released in December of 2017. Father began utilizing controlled substances shortly
after he was released from state incarceration and was, therefore, required by Agent
Hartman to attend the Gateway Rehabilitation Center treatment program in Erie,
Pennsylvania. He attended that program for two or three weeks and then he left
Gateway and absconded. A warrant was placed for his arrest. He was apprehended in
August of 2017 at his parents' (wtiaand cmlll�s) residence in Bradford, Pa. He
also committed new criminal offenses during this time period. By Order of Court dated
June 20, 2019, at case numbers 462 CR 2018, 606 CR 2018 and 30 CR 2019, Father was
sentenced to a period of confinement of not less than 4 years to no more than 8 years.
5
At 30 CR 2019 he pied guilty to Theft by Unlawful Taking, Criminal Trespass and Criminal
Mischief. The date that these offenses occurred was June 28-29, 2018. Therefore, after
Father indicated at the September 22, 2017, that he would be released from
incarceration soon and would "would do whatever it takes" to have the children in his
care and to be part of their lives; and, "I would go to the moon if I have too," Father: 1)
had little contact with the children; 2) made promises to them that he did not follow
through on and which emotionally harmed them; 3) utilized controlled substances; 4)
left inpatient treatment; S) absconded from supervision; and, 6) committed new serious
criminal offenses.
Jti9, J.B. and B.W. have a negative relationship/ bond with their Father. This
conclusion is consistent with the information provided by the children's' Guardian ad
litem, Mark Hollenbeck, Esquire;�· appointed attorney, Kord Kinney, Esquire; and,
Dr. Peter van Korf, an expert called by CVS.
Regarding their relationship with their Mother, former CVS caseworker Donna
Trim testified that the children (Jl9 included) are happy to visit with and see their
Mother. They would always run to her. The visits occur once a month at an SCI facility.
The children's grandmother, (119 D ... often transports the children to the visits.
However, as discussed below, Dr. von Korf testified that the children have an "insecure
attachment" with Mother. The court accepts the opinion of Dr. von Korf regarding the
classification and concerns regarding the children's relationship with Mother.
Mother testified at the May 31, 2019, termination hearing that she will be
eligible for parole from state prison in 30 months. The court does not accept this
6
assertion as fact. As outlined above Mother was sentenced to several periods of
consecutive confinement; and, there is nothing in the record definitively establishing the
date she is eligible for parole. The court is concerned about Mother providing a clearly
self-serving statement about this date and her potential to obtain parole upon her
minimum without something more definitive. Mother testified that she is optimistic
and, in fact, believes that she will be granted parole upon the expiration of her
minimum. Mother could be required to attend a half-way house/ treatment program
upon her release. Further, it may take her sometime to obtain appropriate housing for
the children after she is released. Therefore, at best, it will be several years before
Mother is available to have the children in her care. Placing a time period on Mother's
parole and availability to have the children in her care, at best, if everything goes well
and Mother fully follows her parole plan, it will be in 30 to 36 months. Of course, there
is the possibility that Mother will not be granted parole, or, will have set backs if she is.
lfthis occurs it could be much longer until she is available, if at all, to care for the
children. Mother testified that she has completed a Family Support Program while
incarcerated; and, a domestic violence program phases I, II and II. She is taking classes
to obtain her GED.
Mother testified that she has six children, 4 minor children and two adults. Two
of Mother's children reside with her mother, ceot9, and, J4llland his two
brothers reside in the L... foster home. Mother had no concerns regarding the
care the Lancasters are providing for the children. She thanked them in her testimony
for caring for the children and being open to her having contact with them.
7
Mother testified that she and her children would go on "outings" before she was
incarcerated, like fishing, camping, swimming, the Erie Zoo. Although the court accepts
this testimony as accurate, that Mother did undertake these activities with the children,
the court also finds that Mother often left the children with her Mother and others
before she was incarcerated. Mother struggled with addiction and would often be out
of the home. There were concerns with Mother's care ofthe children even before she
Ci-
was incarcerated.
When Mother is released she will seek assistance from her Mother,
om., to provide care for the children. The children do have a bond with ClliD ...
as they have had regular contact with her for all of their lives. Mother plans on
obtaining employment when she is released. She indicated that she enjoys cleaning and
would like to get a job doing that. She testified that she will follow her drug and alcohol
treatment plan and goals, and, she wants to be actively involved in the children's lives.
Mother's criminal history is summarized as follows:
1) McKean County Criminal Case No. 440 CR 2002. Convicted of Criminal Attempt -Theft
by Unlawful Taking (F-3), Forgery (F-3). Sentenced to one year of probation;
2) McKean County Criminal Case No. 371 CR 2004. Convicted of Simple Assault (victim
Mother's sister), Reckless Endangerment, Accidents Involving Damage. Sentenced to
one year probation;
3) McKean County Criminal Case No. 413 CR 2004. Convicted of Hindering Apprehension,
Driving at Safe Speed and Restraint System Violation (not having child properly secured).
Sentenced to one year consecutive probation;
4) McKean County Criminal Case No. 263 CR 2005. Convicted of Obstructing the
Administration of Law (involving assistance to Father who she knew law enforcement
was attempting to apprehend due to him fleeing a facility). Sentenced to 15 days
incarceration to 6 months, no contact with Father;
5) McKean County Criminal Case No. 672 CR 2005. Convicted of Perjury, Forgery- Altered
Writing, Altered and Forged Counterfeit Documents. Sentenced to 6 to 12 months of
incarceration;
8
6) McKean County Criminal Case No. 73 CR 2006. Convicted of Driving Under the
Influence. Sentenced to 6 months of consecutive probation;
7) McKean County Criminal Case No. 635 CR 2009. Convicted of Simple Assault. Sentenced
to 115 days to 12 months. Parole later revoked at this number for new violations (new
DUI and consuming alcohol). Her sentence for the revocation was remanded for the
balance of her sentence and eligible for re-parole after serving 45 days;
8) McKean County Criminal Case No. 463 CR 2010. Convicted of Driving Under the
Influence - 2nd Offense. Sentenced to 6 months to 3 years in a State Correctional
Facility;
9) McKean County Criminal Case No. 126 CR 2015. Convicted of Delivery of Suboxone.
Sentenced to 1 to 3 years in a State Correctional Facility;
10) McKean County Criminal Case No. 157 CR 2015. Convicted of Delivery of
Amphetamines. Sentenced to 18 months to 36 months consecutive to the sentence at
126 CR of 2015;
11) McKean County Criminal Case No. 158 CR 2015. Convicted of Delivery of Vicodin.
Sentence of not less than 18 months to no more than 3 years consecutive to the
sentence at 157 CR 2015;
12) McKean County Criminal Case No. 41 CR 2016. Convicted of Criminal Mischief/
Damaging Property and Criminal Trespass I Entering a Structure. Sentenced to 2 years
of concurrent probation;
13) McKean County Criminal Case No. 62 CR 2016. Convicted of Simple Assault and Fleeing
and Eluding. Sentenced to 2 to 4 years consecutive to the sentence at 158 CR 2015. The
victim of the assault was Father.
1-22-19 Hearing Tr. Pages 42 -52. Father's criminal history is even more extensive than
Mother's and is outlined in the January Hearing Transcript pages 34 to 43.
J .. and his brother J.B. remember residing with their Mother. They have a
bond with her. This bond is affected by their relationship with and frequent contact
with their maternal grandmother, ,...-
c ...o.-, and their siblings. There is
encouragement from the family and extended family to support the hope and goal of
the children being back with Mother and into the family unit. This is certainly
understandable but it does put Jtl9and his siblings in a very difficult position. They
care for their Mother and have connection to her and their maternal family, but, they
have been residing with the L-for several years and recognize that they have
9
been caring for them and assuring that their needs are met. B.W., due to his age, is in a
different position than J- and J.B. He has limited recollection of being in his
Mother's care before she was incarcerated. He is much more bonded to the L s
than his siblings. �and J.B. have behavioral and emotional issues which were likely
caused by or enhanced by the lack of stability in their lives. B.W. is not facing these
behavioral issues. ,1- and J.B. have fully accepted Mother and their maternal
grandmother's assertion that Mother will be released from prison and they will be back
in her care. The have expressed this belief to their caseworker, to their Guardian ad
litem Mark Hollenbeck, Esquire, to their counsel, Kord Kinney, Esquire, and to Dr. von
Korf. As discussed elsewhere in this Memorandum, that conclusion may turn out to be
unrealistic, but the fact that it is .-..and J.B.'s adamant conclusion/ desire has to be
recognized and given consideration.
Dr. Peter von Korf s involvement in this case occurred when counsel for James
and J.B., Kord Kinney, Esquire, made an oral motion to obtain an expert opinion
regarding the relationship I bond between Mother and .. and J.B. and the potential
negative affect of severing that bond. In an Opinion and Order dated January 22, 2019,
the court granted the Motion. Attorney Kord Kinney indicated at the May 31, 2019,
hearing that he did not intend on calling Dr. von Korf. CVS Solicitor Michele Alfieri-
Causer indicated that CVS did intend on calling Dr. van Korf. Therefore, further hearing
was held on October 4, 2019.
Regarding Father Dr. van Korf had no difficulty concluding that termination of his
parental rights was in the best interests of all 3 children. He indicated that "none of the
10
children expressed any attachment to Father." Any memory they had of him was
negative. Therefore, it was his opinion that termination of Father's parental rights was
appropriate because it would eliminate concerns/ fears that the children have
regarding their Father and his potential future contact with them.
Regarding Mother Dr. von Kort's testimony and opinion was different regarding
Jill9and J.B-and - B.W. It was his opinion that B.W., due to his age, has very limited
memory of residing with Mother, has not established a strong attachment to her, and,
he has developed a bond with the L--s because he has been in their care for the
last several years. Therefore, he was not concerned about potential negative effects of
termination of parental rights for B.W. He recognized that J .. and J.B. have
expressed a desire to not have their Mother's parental rights terminated and to work
towards returning to her care. J .. and J.B. stated to him, as they have to others:
"when my mom gets out of jail we are going to live with her." He found that J�nd
J.B. have "affection and fondness" for their Mother, but, their bond with her "is not
secure." He testified: "these children had very low scores in terms of parental
attachment." He found that J�and J.B. "have no attachment to an adult;" and, "this
is very unusual." Dr. von Korf's "central opinion" was that "these children are insecurely
attached to all caregivers in their life;"' and, "that circumstance had to have some root in
their life." He found the children to be "avoid ant children" who "rely heavily on self."
He found J.B. to be "depressed, angry- emotional troubled." He found B.W., who again
has spent more of his young life with the Lancasters, "in the best circumstance. He is
doing the best, best of all 3 to make gains." He went on to explain that "'attachments
11
can evolve over time. It can be repaired. They can become familiar with secure
attachments." He initially rendered a clear opinion that termination and adoption
would give all 3 children the best option to form secure attachments. However, when
pressed regarding ... and J.B.'s preference to return to their Mother's care his
opinion became less confident regarding potential outcomes. He testified that he
"hoped" that once parental rights were terminated �and J.B. would be open to
adoption by the� and change their positions and agree to it. However, he also
admitted that there was no certainty that would occur. Regarding J�he recognized
that he has "unrealistic 12 year old conclusions" regarding reunification with Mother. He
agreed that it would be a horrible outcome if J4llliltand J.B. did not agree to adoption,
they later had resentment regarding the removal of the option of returning to their
Mothers care, the L....9i were no longer willing to provide care I a home for them
and Mother was not an option because her rights would have been terminated.
However, it was also his professional opinion that "the status quo has to change. SPLC
(subsidized permanent legal custodianship) would just maintain the status quo.''
During cross examination by Parent's Counsel, Dr. von Korf agreed that his
evaluation was not as thorough as he would have preferred. He agreed that he had not
met with the Parents, which is something he would normally do. He indicated that "we
ran out of time," referring to the fact that the time between when he was Initial
contacted and when the first hearing was held on May 31, 2019, was limited. However,
the court found this explanation somewhat questionable because, had he needed more
time to complete a more thorough evaluation, the court would have granted it; and, the
12
next hearing after the May 19, 2019, hearing did not commence until October 4, 2019.
Nevertheless, the court found Dr. von Korf's analysis to be accurate and of assistance.
AUTHORITY:
The statutory requirements for termination in this case are 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:
(1) The parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a settled
purpose of relinquishing parental claim to a child or has refused or failed to
perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without 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.
(5) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency for a period of at least six months,
the conditions which led to the removal or placement of the child continue to
exist, the parent cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to the parent are
not likely to remedy the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of parental rights would
best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency, 12 months or more have elapsed
from the date of removal or placement, the conditions which led to the removal
13
or placement of the child continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
23 Pa.C.S. §2511(a)(l),(2), (5) and (8).
The grounds for terminating parental rights under Section 2511(a)(2) 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.LO., 797
A.2d 326, 337 (Pa.Super. 2002). Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities. Id. at
340.
In In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), our Supreme Court first
announced the fundamental test in terminating parental rights pursuant to
section 2511(a)(2). According to Geiger.
three things must be shown before a natural parent's rights in a
child will be terminated: (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; (3)
it must be shown that the causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied. M:._at 173-174.
In Re R.H., 33 A.2d 95, 100 (Pa.Super. 2011).
When addressing a request to terminate parental rights the Court is required to "[g]ive
primary consideration to the developmental, physical and emotional needs and welfare of the
child." 23 Pa.C.C. §2511(b). Further, "[t]he 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. 19.:.
An inquiry into whether termination of parental rights would best serve the
developmental, physical and emotional needs and welfare of the child is a
14
distinct aspect of a termination hearing, to be undertaken only after the
statutory requirements of section 2511{a) have been met. Intangibles such as
love, comfort, security, and stability are involved when inquiring about the needs
and welfare of a child. The court must also discern the nature and status of the
parent-child bond, paying close attention to the effect on the child of
permanently severing the bond.
In re C.P .• 901 A.2d 516, 520 (Pa.Super. 2006), as cited by, In re K.C.F .• 928 A.2d 1046, 1049
(Pa.Super. 2007).
The burden of proof upon a petitioner in a termination proceeding is by clear and
convincing evidence:
In termination cases, the burden is upon the petitioner to prove by clear and
convincing evidence that the asserted grounds for seeking termination of
parental rights are valid .... The standard of clear and convincing evidence is
defined as testimony 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 the Interest of A.S .• 11 A.3d 473, 477 (2010){citations omitted).
When reviewing the evidence the Court, as the trier of fact, "is likewise free to make all
credibility determinations and resolve conflicts in the evidence." !fl
A parent's right to the custody of his or her children is not absolute and has to be
balanced against a child's right to have proper parenting:
A parent's basic constitutional right to the custody and rearing of ... [his]
children is converted, upon the failure to fulfill ... parental duties, to the
children's right to have proper parenting and fulfillment of [the child's] potential
in a permanent and healthy, safe environment. There is a recognized connection
between Pennsylvania law on termination of parental rights and the Adoption
and Safe Families Act ... This act was designed to curb an inappropriate focus on
protecting the rights of parents when there is a risk of subjecting children to long
term foster care or returning them to abusive families.
15
Id. at 478 (citations omitted}.
In In re Adoption of S.P .• 47 A.3d 817 (Pa. 2012) the Pennsylvania Supreme Court set
forth the standard to utilize when addressing parent's future period of incarceration:
In line with the expressed opinion of a majority of justices in R.I.S., our prior
holdings regarding incapacity, and numerous Superior Court decisions, we now
definitively hold that incarceration, while not a litmus test for termination. can
be determinative of the question of whether a parent is incapable of providing
"essential parental care, control or subsistence" and the length of the remaining
confinement can be considered as highly relevant to whether "the conditions
and causes of the incapacity. abuse, neglect or refusal cannot or will not be
remedied by the parent." sufficient to provide grounds for termination pursuant
to 23 Pa.C.S. § 2511(a}(2). See e.g. Adoption of J.J., 515 A.2d at 891 ("[A] parent
who is incapable of performing parental duties is just as parentally unfit as one
who refuses to perform the duties."}; E.A.P., 944 A.2d at 85 (holding termination
under § 2511(a}(2} supported by mother's repeated incarcerations and failure to
be present for child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied despite mother's
compliance with various prison programs}.' If a court finds grounds for
termination under subsection (a}(2}. a court must determine whether
termination is in the best interests of the child, considering the developmental,
physical, and emotional needs and welfare of the child pursuant to§ 2511(b}. In
this regard, trial courts must carefully review the individual circumstances for
every child to determine, inter a/ia, how a parent's incarceration will factor into
an assessment of the child's best interest.
In re Adoption of S.P .• 47 A.3d 817, 830-831 (Pa. 2012). In that case the Superior Court had
reversed the trial court, finding that the trial court had given too much weight to the fact that a
parent was incarcerated. The Supreme Court reversed the Superior Court holding:
As applied to this case, we conclude the Superior Court erred in reversing the trial
court's decision to terminate Father's parental rights where that decision was
supported by the record and did not constitute an abuse of discretion or an error of
law. The trial court properly found that Father has been incarcerated since prior to
Child's birth and never provided Child with essential parental care. Accordingly, the
court did not abuse its discretion in concluding that Father's "repeated and continued
incapacity ... caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being." 23 Pa.C.S. §
2511 (a)(2). Moreover, the record supports the trial court's findings regarding the
uncertainty of Father's parole date and that, even upon parole, Father would reside
in a half-way house and would need to obtain housing, employment and
transportation in addition to parenting skills. Accordingly, the trial court did not abuse
its discretion when it concluded that "the conditions and causes of the incapacity ...
cannot or will not be remedied" by Father. 23 Pa.C.S. § 2511 (a)(2). Finally, given that
Child did not have a relationship with Father, that Father would not be able to provide
for her, especially considering her special needs, and that Child had a strong bond
16
with her maternal half-sister, the trial court did not abuse its discretion in concluding
that t�rminating Father's rights would best serve the "developmental, physical and
emotional needs and welfare" of Child. 23 Pa.C.S. § 2511 (b).
In re Adoption of S.P., 47 A.3d 817, 831 (Pa. 2012). It is important to note that, when
conducting their analysis regarding the effect of incarceration, the Supreme Court in In
re Adoption of S.P gave consideration to the length of future incarceration and to the
quality of the existing relationship between the parent and the trial (finding the
relationship was poor thus supporting termination).
In In the Matter ofT.D., 949 A.2d 910 (Pa.Super. 2008), the Superior Court addressed
the standard to apply when a parent is unavailable, the children have a bond and connection
with the parent, and, the children express reluctance to consent to an adoption.
This Court confronted a similar issue in In re E.M., 908 A.2d 297(Pa.Super.2006), and reversed the trial court's order terminating a mother's
parental rights to her two children. In that case, the trial court determined that
the appellant maintained sporadic contact with her two teenage children during
placement and she failed to perform her parental duties. Id. at 301-302.
Nevertheless, the children, who had maintained emotional bonds with their
mother, desired to reunify and only would consent to adoption if it were a last
resort. Id. at 307. Despite the apparent bond, the trial court found that the
agency had satisfied the statutory requirements of section 2511(a) and section
2511(b). On appeal, this Court reversed, finding that, under the unique
circumstances of that case, the trial court had abused its discretion in concluding
that termination served the needs and welfare of the children.
In reaching its conclusion, this Court reasoned that, given the children's
ages, fourteen and fifteen, and the requirement of their consent to adoption, the
lack of an identifiable pre-adoptive home, a stable foster home willing to care for
them until they reach majority, and the children's commitment to maintaining
contact with their mother, even in the face of termination, "the reality is these
children most likely will remain in foster care until they reach majority regardless
of the outcome of this case." Id. at 306-07. Specifically, the court found,
"nothing will change whether mother's rights are terminated or not, and the
only thing that will be accomplished by termination is that the children will be
true orphans .... [T]he children currently have permanency to the fullest extent
possible under the circumstances." Id. at 309.
17
Later, in In re K.C.F., 928 A.2d 1046 (Pa.Super.2007), this Court distinguished the
facts of In re E.M. from the facts underlying that case, wherein the appellant
argued that her children's ages, eleven, nine, and eight, and the lack of a pre-
adoptive home would prevent them from being adopted. As the In re K.C.F.
Court observed, unlike the children in In re E.M., the three children at issue in In
re K.C.F., had not yet reached the age where consent was required for adoption,
and two of the children acknowledged that the Mother could not consistently
meet their needs. Id. at 1053. Similarly, while the remaining child preferred to
reunite with his mother, he was not secure in her presence. Id. Accordingly,
noting that the Juvenile Act does not require pre-adoptive placement as a
precondition to termination of parental rights, we found that the mother did not
establish that her children's ages would prevent them from being adopted.
The case at bar aligns with In re K.C.F. rather than In re E.M. Herein, T.D.
is only twelve, and although he must consent to adoption, he still is several years
from reaching the age of majority. Moreover, his foster placement is uncertain.
T.D. has been removed from the pre-adoptive foster home in which he resided
since August 2006, and in stark contrast to the children in In re E.M., the record
does not indicate that his present foster home, the second since being removed
from pre-adoptive care, is committed to caring for him for six years until he is
eighteen. Hence, the unique circumstances *923 that compelled our conclusion
in In re E.M. are absent from this case. As in In re K.C.F., T.D. 'sage, loyalty to his
natural parents, and apparent lack of an identifiable pre-adoptive placement will
not automatically preclude him from attaining permanency after parental rights
have been terminated. See In re K.C.F., 928 A.2d 1046. In contrast, however, in
light of Parents' demonstrated inability to provide the minimum level of parental
care, preserving Mother's and Father's parental right, would foreclose any hope
for adoption and condemn T.D. to foster care until he reaches majority.
Accordingly, the court did not abuse Its discretion in concluding that termination
best serves T.D.'s needs and welfare.
In the Matter ofT.D .• 949 A.2d 910, 922-923 (Pa.Super. 2008).
In In re T.S.M .• 71 A.3d 251 (Pa. 2013), the Pennsylvania Supreme Court discussed at
length the weight to be given to the potential of a child's future adoption if parental rights are
terminated:
Common sense dictates that courts considering termination must also consider
whether the children are in a pre-adoptive home and whether they have a bond
with their foster parents. See In re K.M., 53 A.3d at 791. Indeed In cases where
the petitioner is a party standing in loco parentis, the statute requires the party
to file a report of intention to adopt. 23 Pa.C.S. § 2512(a)(3). Likewise, this Court
18
has noted that a petition to terminate parental rights filed by a biological parent
"is only cognizable when it is accompanied by a prospective stepparent's
intention to adopt the child," noting that *630 the public policy behind this
provision is to prevent" state-created orphans." In re Adoption of L.J.B., 610 Pa.
213, 18 A.3d 1098, 1107-08 n. 11 (2011) (plurality). Notably, however, the
Adoption Act specifically provides that a pending adoption is not a prerequisite
to termination of parental rights involving agencies such as CYF: "If the petitioner
is an agency it shall not be required to aver that an adoption is presently
contemplated nor that a person with a present intention to adopt exists." 23
Pa.C.S. § 2512(b).
The Superior Court has rejected the suggestion that termination of parental
rights is inappropriate when adoption is not imminent and has allowed
termination even if it results in the child temporarily being without one or both
parents. See In re C. W.U., Jr., 33 A.3d 1, 9 (Pa.Super.2011). Additionally, the
Superior Court has observed that termination may improve the likelihood of
finding an adoptive home. See In the Matter of T.D., 949 A.2d at 922-23. Indeed,
in some cases, a child's bond with a parent, who has proven incapable of caring
for the child, may impede the child's ability to attach to a pre-adoptive family
who can provide the needed care and stability. See Id. at 921; In re J.F., 904 A.2d
at 1216. Nonetheless, the Superior Court has expressed concern for terminating
parental rights absent a pre-adoptive home especially in the case of an older
child, whose consent is needed for adoption, lest the child age out of foster care
without any permanent family. See In the Matter of T.D., 949 A.2d at 922.
Moreover, members of this Court have opined that the existence of a pre-
adoptive home is "an important factor" in termination cases. In re R.I.S., 614 Pa.
275, 36 A.3d 567, 575 (2011) (Saylor, J., concurring). We have questioned
whether a grant oftermination would require that an "agency must Intend
subsequent to termination to seek out an adoptive parent." In re Adoption of
L.J.B., 18 A.3d at 1107 n. 8. Indeed, decades ago, we opined in obiter dictum that
an agency may not terminate parental rights absent a contemplated adoption. In
re B.E., 474 Pa. 139, 377 A.2d 153, 155 n. 5 (1977). The Office of Children and
Family in the Courts, however, recently provided direction in the Dependency
*631 Bench book, "While having an identified adoptive resource ls not a
prerequisite for [termination of parental rights], ideally there should be a strong
likelihood of an eventual adoption." Administrative Office of Pennsylvania
Court's Office of Children and Families In the Courts, Pennsylvania Dependency
Benchbook § 12.1 at 126 (2010).
678 As the prior paragraphs reveal, contradictory considerations exist as to
whether termination will benefit the needs and welfare of a child who has a
strong but unhealthy bond to his biological parent, especially considering the
existence or lack thereof of bonds to a pre-adoptive family. As with dependency
determinations, we emphasize that the law regarding termination **269 of
19
parental rights should not be applied mechanically but instead always with an
eye to the best interests and the needs and welfare of the particular children
involved. See, e.g., R.J. T., 9 A.3d at 1190 (holding that statutory criteria of
whether child has been in ca re for fifteen of the prior twenty-two months should
not be viewed as a "litmus test" but rather as merely one of many factors in
considering goal change). Obviously, 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. Similarly, while termination of parental rights generally
should not be granted unless adoptive parents are waiting to take a child into a
safe and loving home, termination may be necessary for the child's needs and
welfare in cases where the child's parental bond is impeding the search and
placement with a permanent adoptive home.
9 In weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Children are young for a scant number of years,
and we have an obligation to see to their healthy development quickly. When
courts fail, as we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to dependent children,
*632 requiring vigilance to the need to expedite children's placement in
permanent, safe, stable, and loving homes. ASFA was enacted to combat the
problem of foster care drift, where children, like the children in this case, are
shuttled from one foster home to another, waiting for their parents to
demonstrate their ability to care for the children. See In re R.J. T., 9 A.3d at 1186;
In re Adoption of S.E.G., 901 A.2d at 1019. This drift was the unfortunate
byproduct of the system's focus on reuniting children with their biological
parents, even in situations where it was clear that the parents would be unable
to parent in any reasonable period oftime. Following ASFA, Pennsylvania
adopted a dual focus of reunification and adoption, with the goal of finding
permanency for children in less than two years, absent compelling reasons. See,
42 Pa.C.S. § 6301(b){l}; 42 Pa.C.S. § 6351(f)(9} (requiring courts to determine
whether an agency has filed a termination of parental rights petition if the child
has been in placement for fifteen of the last twenty-two months).
Considering these statutory purposes, we reject the trial court's suggestion that
"the ultimate exception to ASFA time frames should be until a child finds
meaningful, loving relationships with a family and committed homes are
established." Tr. Ct. Op. at 19. The trial court's suggested exception could
swallow the rule, and permanency could be obstructed in cases where children
have been unable to form healthy bonds with foster families, potentially as a
result of their unhealthy bonds with biological parents who may be undermining
their relationship with their foster family. See, e.g. In the Matter of T.D., 949
A.2d at 921; In re J.F., 904 A.2d at 1215-16 (terminating parental rights where
20
biological parents could not parent child and instead hampered child's ability to
bond with foster family and attain stability).
10 Similarly, we question the trial court's use of concurrent planning in this case.
We commend the trial court for recognizing that concurrent planning is a best
practice, as it allows agencies to provide families with services in hopes of
reunification while also preparing for the child's potential adoption. Concurrent
**270 planning is especially useful early in *633 the proceedings when it is
unclear whether the parents will be able to learn to parent their children.
Conversely, we caution that concurrent planning should not be used to prolong
instability for children when it becomes clear that parents will be unable to
provide their children's basic needs in the near future. Trial courts' use of
concurrent planning beyond its useful life can create confusion for the children
and potentially increase the difficulty for them to bond with pre-adoptive
parents, thus perpetuating the problem of foster care drift. As Dr. Pepe observed
in her testimony, the child is conflicted "between loyalty to a biological parent
and loyalty to a foster parent, pre-adoptive parent, adoptive parent. When it is
clear to the child that they are in their permanent home, then the conflict can
diminish, which can result in less disruptive behaviors and a greater sense of
security." N.T., 8/31/11, at 107.
While we have no doubt that the trial court in the case at bar acted with full
intention of protecting the needs and welfare of these children in sustaining
their bonds with Mother, we conclude that the denial of termination merely
prolonged and, indeed, exacerbated the harm suffered by the children. The trial
court made valiant efforts to utilize concurrent planning and family group
decision making; however, these efforts were inappropriate in a case such as
this, where, at the time of the termination hearing, Mother had the benefit of
services for over five years without showing the potential of being able to parent
the children in any reasonable period of time.
11 In this case, the children have unhealthy bonds to Mother, who is seemingly
the root of their manifold psychological and behavioral conditions. Moreover,
Mother appears to be interfering with the children's bonding to their foster
families, resulting in confusion for the children and further delay in permanency
for the children. For example, Ty. M. reported that Mother told him that he
would not be adopted and that his foster brothers "were not his brothers." See
Report of Dr. Pepe, 6/23-30/11, at 5. Dr. Pepe opined that Ty. M. "would
naturally have ambivalence regarding adoption given his age {eight] and level of
attachment to his biological *634 mother but that her comments could serve to
cause increased confusion with the child." Id.
Whether or not the children have current bonds to their foster families, there
appears to be a "strong likelihood of an eventual adoption." Pennsylvania
Dependency Benchbook § 12.1 at 126. Indeed, Dr. Pepe specifically
recommended adoption for Ty. M., Tai. M., and N. M., N.T., 8/31/11, at 102;
21
Report of Dr. Pepe, 6/23-30/11, at 5; Report of Dr. Pepe, 12/10-2/11, at 31. In
regard to Ti. M., Dr. Pepe did not recommend adoption at the time of the
evaluation, but nonetheless did not recommend reunification and suggested
reduced visitation with Mother. Report of Dr. Pepe, 12/10-2/11, at 28. The
youngest child, Tae. M., previously had a very strong and positive bond with his
pre-adoptive foster mother who, unfortunately, became ill and unable to care
for Tae. M. Report of Dr. Pepe, 12/10-2/11, at 23. While no adoptive home was
present at the time of the hearings, one can presume that a permanent home
will be found for Tae. M, when he is freed for adoption.
Although we defer to a trial court's determination regarding termination when it
is supported by the record, we must reverse the trial court's determination in
this case because we find the court's conclusion to be manifestly unreasonable,
and thus an abuse of discretion. In re Adoption of S.P., 47 A.3d at 826. In relying
upon the **271 mere existence of the bond between Mother and the children,
the trial court failed to recognize the substantial, possibly permanent, damage
done to these children by the prolonged, unhealthy, pathological bond with
Mother, especially as it affected the children's ability to form attachments to
foster families who could have provided the necessary love, care and stability
that these children have so needed for the past decade. We conclude without
hesitation that it best serves their needs and welfare to sever their bond with
Mother permanently, in order to permit them to be placed forthwith into
healthy, permanent homes. Accordingly, we reverse the Superior Court decision
affirming the trial court's denial of termination of parental rights and order the
trial court to enter orders terminating Mother's parental *635 rights as to the
five children before this Court. We expect this to be done promptly, and we
further expect the child welfare agency and court to give this case their utmost
attention so that these children have a chance for normal lives. Jurisdiction
relinquished.
In re T.S.M .• 71 A.3d 251, 268-271 (Pa. 2013).
DISCUSSION:
At the conclusion of the termination hearing all of the attorneys indicated that this is a
"difficult decision." However, when applicable and controlling authority is applied to the
specific proven facts, it is not. It is an emotionally difficult and charged situation I case, but
logically applying the appropriate legal standard to the facts clearly and definitively leads to
termination of both Parents' parental rights.
22
First, the required statutory factors set forth in 23 Pa.C.S. §2511(a)(1),(2), (5) and (8)
have been demonstrated. Parents, due to criminal convictions, substance use/ abuse
and failure to perform parental duties, have been unavailable for several years. Both
are now incarcerated and will be for at least several more years. Therefore, the only
potential issue requiring further legal analysis is: Will termination of parental rights best
serve the developmental, physical and emotional needs and welfare of the child
(addressing each child's situation separately)? When answering this question we are
required to: "discern the nature and status of the parent-child bond, paying close
attention to the effect on the child of permanently severing the bond." In re C.P., 901
A.2d 516, 520 (Pa.Super. 2006), as cited by, In re K.C.F .• 928 A.2d 1046, 1049 (Pa.Super.
2007).
The holding of our Supreme Court in In re T.S.M. compels termination of parental rights
in this case, including the following:
In weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Children are young for a scant number of years,
and we have an obligation to see to their healthy development quickly. When
courts fail, as we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to dependent children,
requiring vigilance to the need to expedite children's placement in permanent,
safe, stable, and loving homes.
In re T,S.M., 71 A.3d 251, 269 (Pa. 2013). After the Supreme Court in In re T.S.M. mandated "courts" to
consider "the ticking clock of childhood," they chastised the lower court for not doing so:
While we have no doubt that the trial court in the case at bar acted with full
intention of protecting the needs and welfare of these children in sustaining
their bonds with Mother, we conclude that the denial of termination merely
prolonged and, indeed, exacerbated the harm suffered by the children.
23
In re T.S.M., 71 A.3d 251, 269 (Pa. 2013).
Regarding Father the children have a negative bond and negative memories of him. He has very
little contact with the children. He made promises to the court regarding the efforts that he was going
to make upon his release from incarceration. He didn't follow through with any of them. He
immediately began utilizing controlled substances when he was released and is now serving a lengthy
criminal sentence. Therefore, it is definitely fulfills the needs and welfare of .Jtlltand his siblings for
Father's parental rights to be terminated.
Mother has been involved in the criminal justice system, consistently and regularly, since 2002.
She had numerous periods of local supervision and attempted rehabilitation that resulted in revocations
and new convictions I sentences. Her criminal activity only ended when she was incarcerated following
the filing of charges in 2016. She has a history of alcohol and drug use/ abuse and mental health
concerns (mental health evaluations required as part of criminal sentences}. There is nothing in the
record indicating that Mother has addressed the drug and alcohol and mental health concerns that
initially led to her previous criminal convictions and difficulties. Mother did testify that she plans on not
falling back into the destructive patterns she had been involved in for at least 14 years prior to 2016.
However, there is no evidence that she has completed any drug treatment or mental health programs
that would support her assertions.
Mother testified that she and her children would go on "outings" before she was
incarcerated, like fishing, camping, swimming, the Erie Zoo. However, this self-serving and rosy
analysis of Mother's care and contact with the children prior to her recent period of
incarceration does not line up with reality. She was frequently out of the home and involved In
activities that were destructive and, at times, resulted in criminal charges. She frequently relied
on her mother and others to care for the children. As Dr. von Korf found, James and J.B. "have
no attachment to an adult;" and, "this is very unusual." Dr. von Korf s "central opinion" was
24
that "these children are insecurely attached to all caregivers in their life;" and, "that
circumstance had to have some root in their life." He found the children to be "avoidant
children" who "rely heavily on self."
The court is in agreement with Dr. von Kort's opinion that "the status quo has to cliange.
SPLC (subsidized permanent legal custodianship) would just maintain the status quo." The
court accepts this opinion because: it is supported by the facts in this case, the years of
instability the children have already gone through and are potentially facing if a major change is
not made soon; and, it is supported by applicable legal authority and guidance including the
holding in In re J.S.M .• 71 A.3d 251, 269 (Pa. 2013).
The court recognizes that Parents, and in particular Mother, have and will focus
on the preference of Jl9:ind J.B. to reunify with her when she is released from
incarceration; and, the affection they have for her. This assertion is emotional, that two
boys want to be with their mother, of course, pulls on the heart strings. However, this Is
a decision that can't be made by emotion and heart strings. It has to be made based on
logic and legal analysis. The fact that these young children want to be reunified with
their Mother was given weight and consideration, but is outweighed by the reality of
the situation. See, In the Matter of LO .. 949 A.2d 910 (Pa.Super. 2008). Mother has had
difficulty for years and it is unlikely anything will change even if we wait for several more
years for her to be released from incarceration.1 The clock here has ticked long enough,
longer than it should have. No outcome is guaranteed, but, at this point, based on the
1
The court also finds that the children are motivated and encouraged by Mother, their maternal grandmother,
c.90.awho they have frequent contact with, and other family members, to support and accept the goal and
dream of returning to Mother's care. This is further evidence that the status quo is emotionally pulling them in
different directions.
25
prior history and the facts and circumstances in this record, by far the best potential for
J .. and his siblings to obtain permanency and stability is to terminate parental rights
and create the possibility of their adoption by the �· There is a short window
for taking meaningful action here- and that window is closing rapidly.
WHEREFORE, WE ENTER THE FOLLOWING:
26
IN THE INTEREST OF: : IN THE COURT OF COMMON PLEAS OF
B.W. : McKEAN COUNTY, PENNSYLVANIA
• ,. . . . . - , � ;:J .,.
l . .· ; : ; : .·:.. I ''1--t
: ORPHAN'S COURT DIVISION
: NO. 42-18-0076 . ·;·
c'.·'.·' ... ' ' .. '. v, . .';, rY
MEMORANDUM AND ORDER
McKean County Children and Youth Services (hereinafter "CVS") filed a Petition to
Involuntarily Terminate the Parental Rights of Amber Walker-Bunce (hereinafter "Mother") and
... Bmt Sr. (hereinafter "Father") to �••
R �hereinafter "1:,1 3 ••·J. Several days of
hearings have been held and the matter is now ready for a decision.
FINDINGS OF FACT:
�is 8 years old and his date of birth is October 4, 2011. He has several
siblings including J.B. Jr., date of birth August 2, 2007; and, J.B. date of birth June 30,
2008. B- J.B. Jr. and J.B have resided in the T-and � �or over
three years. Mother and Father are both incarcerated in State Correctional facilities.
They both have serious drug and alcohol addictions and numerous prior criminal
convictions.
Brianna Jones, an intake supervisor for McKean CVS, testified at the January 22,
2019, termination hearing. She explained that CVS initially became involved due to
Father being incarcerated and Mother facing incarceration. Mother had made
arrangements for her Mother, �and her friend, Karly Ryan, to provide care
for her 6 children when she was incarcerated. CVS initially monitored the case I family.
1
However, when Karly Ryan stole rent subsidy money and it appeared that <9 D
was unable to provide appropriate care and supervision for the children, a dependency
petition was filed in April of 2016.
The children were found to be dependent by an Order dated May 17, 2016. At
that time Mother had been sentenced to a term of 6 to 13 years.
Father was incarcerated in the McKean County Jail and was facing pending
criminal charges and a State Parole revocation. Paternal grandparents, �nd
C9 �, indicated that they could provide kinship care for the children. Therefore,
Ell9, J.B. and J.B. Jr. were placed in their home. �nd � 8'9were also
providing care for three additional grandchildren who were found to be dependent.
Mother had requested visits with the children (at her SCI facility). Visits with Mother
have continued since the inception of the dependency action. Mother has maintained
regular phone contact with the children. There were no visits with Father while he was
incarcerated. Father had limited contact with the children prior to his incarceration. He
initially had some phone contact with the children but then that ended.
The placement with the � was found, in the initial dependency
proceedings, to be going well. However, at the October 18, 2016, hearing the court
found that there were serious concerns. Service providers working with the family
raised concerns to CVS regarding the treatment of the children in the 899' home.
The -had difficulty providing care for all of the children. Elllllll's siblings have
behavioral issues that the 811119 struggled with. The court found that the e4ll9
2
couldn't provide appropriate care for all of the children. Therefore,� J.B. Jr. and
J.B. were placed in the Lancaster foster home.
The L.4lmlllts have provided exceptional care for a.aand his siblings. They
have worked with service providers and school staffs to assure that their needs are met.
They will adopt the children if that is an option.
At the October 18, 2016, hearing maternal grandmother, � .. indicated
that she was a placement option for Bl9and his siblings. However, Mrs. D-had
three other grandchildren in her home and there had been issues regarding previous
visits there. Services were put in place to assist c.-,�ith the development of
skills and a plan to have all of the children placed in her care.
At the review hearing on January 18, 2017, the court found that the children
continued to do well in the L ...foster home. ctl9:>�as still requesting that
the children be placed with her. However, additional concerns had arisen about the lack
of supervision in C�411119's home during the children's weekly visits with Mrs.
�nd their siblings. c.-,�ad a hard time controlling and supervising all of
the children.
At a review hearing on March 8, 2017, despite the previous emphasis and
directives to �ot to leave the children unattended during the sibling visits,
it was discovered that she continued to do so. A plan was put in place for an additional
caregiver to assist c:9l>�hen the children visited her, particularly when she was
at work.
3
At the review hearing on September 22, 2017, the court found that there had
been a significant and troubling incident during a visit with �The children
were left alone and �ound and took some medication that was prescribed for his
grandmother. He had to receive emergency medical treatment. It became evident that,
although (8o.il deeply cares for B.and his siblings and they enjoy their
relationship with her, she would not be a future placement option for them. Since the
children had been in placement for some time the permanency plan for the children was
discussed, including the potential of termination and adoption by the�- Father
participated in the hearing via telephone. He indicated that he was in the Boot Camp
Program and taking advantage of all available treatment options. He indicated he
"would do whatever it takes" to have the children in his care and to be part of their
lives; and, "I would go to the moon if I have too." The focus at the hearing was on
Father as Mother would not be eligible for release from incarceration for several years.
The court advised Father that his recent steps to complete his sentence and be in a
position to provide care for the children was a positive development. However, the
court also specifically advised Father that he would have to demonstrate, through his
actions, that there was substance behind his commitment to provide care for 84111 and
his siblings. Father was ordered to follow his drug and alcohol treatment plan; to
maintain contact with CVS and establish a visitation schedule with CVS once he was
released from incarceration; to refrain from using controlled substances and alcohol;
and, to obtain appropriate housing. If Father was following his reunification plan cvs·
had discretion to increase his visits and contact with �nd his brothers.
4
Father was released from incarceration after the September 22, 2017, hearing
but before the next review hearing on March 23, 2018. He made little effort to have
contact with the children and form a relationship with them after he was released. He
missed visits and did not attend their appointments. He would tell the children he was
buying them Christmas gifts, or they would have pizza at the next visit, but then not
show up. This was traumatic to the children and deeply harmed Father's relationship
with them. He tested positive for cocaine use on January 7, 2018. His visits with the
children were then suspended. Father had additional positive drug screens for cocaine
and Suboxone. He had not obtained appropriate housing. Mother indicated that she
believed she would be eligible for parole sometime in 2022.
Father's parole agent, Shawn Hartman, testified at the January 22, 2019,
termination hearing. He supervised Father on two separate occasions. He initially
supervised him in 2015 or 2016. Father absconded and was again incarcerated. He was
then released in December of 2017. Father began utilizing controlled substances shortly
after he was released from state incarceration and was, therefore, required by Agent
Hartman to attend the Gateway Rehabilitation Center treatment program in Erle,
Pennsylvania. He attended that program for two or three weeks and then he left
Gateway and absconded. A warrant was placed for his arrest. He was apprehended in
n11•:w11•·s) residence in Bradford, Pa. He
also committed new criminal offenses during this time period. By Order of Court dated
June 20, 2019, at case numbers 462 CR 2018, 606 CR 2018 and 30 CR 2019, Father was
sentenced to a period of confinement of not less than 4 years to no more than 8 years.
5
At 30 CR 2019 he pied guilty to Theft by Unlawful Taking, Criminal Trespass and Criminal
Mischief. The date that these offenses occurred was June 28-29, 2018. Therefore, after
Father indicated at the September 22, 2017, that he would be released from
incarceration soon and would "would do whatever it takes" to have the children in his
care and to be part of their lives; and, "I would go to the moon if I have too," Father: 1)
had little contact with the children; 2) made promises to them that he did not follow
through on and which emotionally harmed them; 3) utilized controlled substances; 4)
left inpatient treatment; 5) absconded from supervision; and, 6) committed new serious
criminal offenses.
B-J.B. and J.B. Jr. have a negative relationship/ bond with their Father.
This conclusion is consistent with the information provided by the children's' Guardian
ad litem, Mark Hollenbeck, Esquire; James' appointed attorney, Kord Kinney, Esquire;
and, Dr. Peter von Korf, an expert called by CVS.
Regarding their relationship with their Mother, former CVS caseworker Donna
Trim testified that the children (B .. included) are happy to visit with and see their
Mother. They would always run to her. The visits occur once a month at an SCI facility.
The children's grandmother, c9D .. often transports the children to the visits.
However, as discussed below, Dr. von Korf testified that the children have an "insecure
attachment" with Mother. The court accepts the opinion of Dr. von Korf regarding the
classification and concerns regarding the children's relationship with Mother.
Mother testified at the May 31, 2019, termination hearing that she will be
eligible for parole from state prison in 30 months. The court does not accept this
6
assertion as fact. As outlined above Mother was sentenced to several periods of
consecutive confinement; and, there is nothing in the record definitively establishing the
date she is eligible for parole. The court is concerned about Mother providing a clearly
self-serving statement about this date and her potential to obtain parole upon her
minimum without something more definitive. Mother testified that she is optimistic
and, in fact, believes that she will be granted parole upon the expiration of her
minimum. Mother could be required to attend a half-way house I treatment program
upon her release. Further, it may take her sometime to obtain appropriate housing for
the children after she is released. Therefore, at best, it will be several years before
Mother is available to have the children in her care. Placing a time period on Mother's
parole and availability to have the children in her care, at best, if everything goes well
and Mother fully follows her parole plan, it will be in 30 to 36 months. Of course, there
is the possibility that Mother will not be granted parole, or, will have set backs if she is.
If this occurs it could be much longer until she is available, if at all, to care for the
children. Mother testified that she has completed a Family Support Program while
incarcerated; and, a domestic violence program phases I, II and II. She Is taking classes
to obtain her GED.
Mother testified that she has six children, 4 minor children and two adults. Two
of Mother's children reside with her mother, ctlle>1119, and, � and his two
brothers reside in the L.-it foster home. Mother had no concerns regarding the
care the � are providing for the children. She thanked them in her testimony
for caring for the children and being open to her having contact with them.
7
Mother testified that she and her children would go on "outings" before she was
incarcerated, like fishing, camping, swimming, the Erie Zoo. Although the court accepts
this testimony as accurate, that Mother did undertake these activities with the children,
the court also finds that Mother often left the children with her Mother and others
before she was incarcerated. Mother struggled with addiction and would often be out
of the home. There were concerns with Mother's care of the children even before she
was incarcerated.
When Mother is released she will seek assistance from her Mother, C-.
D-to provide care for the children. The children do have a bond with �
as they have had regular contact with her for all of their lives. Mother plans on
obtaining employment when she is released. She indicated that she enjoys cleaning and
would like to get a job doing that. She testified that she will follow her drug and alcohol
treatment plan and goals, and, she wants to be actively involved in the children's lives.
Mother's criminal history is summarized as follows:
1) McKean County Criminal Case No. 440 CR 2002. Convicted of Criminal Attempt-Theft
by Unlawful Taking (F-3), Forgery (F-3). Sentenced to one year of probation;
2) McKean County Criminal Case No. 371 CR 2004. Convicted of Simple Assault (victim
Mother's sister), Reckless Endangerment, Accidents Involving Damage. Sentenced to
one year probation;
3) McKean County Criminal Case No. 413 CR 2004. Convicted of Hindering Apprehension,
Driving at Safe Speed and Restraint System Violation (not having child properly secured).
Sentenced to one year consecutive probation;
4) McKean County Criminal Case No. 263 CR 2005. Convicted of Obstructing the
Administration of Law (involving assistance to Father who she knew law enforcement
was attempting to apprehend due to him fleeing a facility). Sentenced to 15 days
incarceration to 6 months, no contact with Father;
5) McKean County Criminal Case No. 672 CR 2005. Convicted of Perjury, Forgery- Altered
Writing, Altered and Forged Counterfeit Documents. Sentenced to 6 to 12 months of
incarceration;
8
6) McKean County Criminal Case No. 73 CR 2006. Convicted of Driving Under the
Influence. Sentenced to 6 months of consecutive probation;
7) McKean County Criminal Case No. 635 CR 2009. Convicted of Simple Assault. Sentenced
to 115 days to 12 months. Parole later revoked at this number for new violations (new
DUI and consuming alcohol). Her sentence for the revocation was remanded for the
balance of her sentence and eligible for re-parole after serving 45 days;
8) McKean County Criminal Case No. 463 CR 2010. Convicted of Driving Under the
Influence - 2"d Offense. Sentenced to 6 months to 3 years in a State Correctional
Facility;
9) McKean County Criminal Case No. 126 CR 2015. Convicted of Delivery of Suboxone.
Sentenced to 1 to 3 years in a State Correctional Facility;
10) McKean County Criminal Case No. 157 CR 2015. Convicted of Delivery of
Amphetamines. Sentenced to 18 months to 36 months consecutive to the sentence at
126 CR of 2015;
11) McKean County Criminal Case No. 158 CR 2015. Convicted of Delivery ofVicodin.
Sentence of not less than 18 months to no more than 3 years consecutive to the
sentence at 157 CR 2015;
12) McKean County Criminal Case No. 41 CR 2016. Convicted of Criminal Mischief/
Damaging Property and Criminal Trespass I Entering a Structure. Sentenced to 2 years
of concurrent probation;
13) McKean County Criminal Case No. 62 CR 2016. Convicted of Simple Assault and Fleeing
and Eluding. Sentenced to 2 to 4 years consecutive to the sentence at 158 CR 2015. The
victim of the assault was Father.
1-22-19 Hearing Tr. Pages 42 -52. Father's criminal history is even more extensive than
Mother's and is outlined in the January Hearing Transcript pages 34 to 43.
J.B. and his brother J.B. Jr. remember residing with their Mother. They have a
bond with her. This bond is affected by their relationship with and frequent contact
with their maternal grandmother, C9Dtll9, and their siblings. There is
encouragement from the family and extended family to support the hope and goal of
the children being back with Mother and into the family unit. This is certainly
understandable but it does put J.B. and J.B. Jr. in a very difficult position. They care for
and remember their Mother and have connection to her and their maternal family, but,
9
they have been residing with the �s for several years and recognize that they
have been caring for them and assuring that their needs are met .
.._, due to his age, is in a different position than J.B. and J.B. Jr. He has
limited recollection of being in his Mother's care before she was incarcerated. He is
much more bonded to the� than his siblings. J.B. and J.B. Jr. have behavioral
and emotional issues which were likely caused by or enhanced by the lack of stability in
their lives. Btmlls not facing these behavioral issues. J.B. and J.B. Jr. have fully
accepted Mother and their maternal grandmother's assertion that Mother will be
released from prison and they will be back in her care. The have expressed this belief to
their caseworker, to their Guardian ad litem Mark Hollenbeck, Esquire, to their counsel,
Kord Kinney, Esquire, and to Dr. von Korf. As discussed elsewhere in this Memorandum,
that conclusion may turn out to be unrealistic, but the fact that it is J.B. and J.B.'s Jr.'s
adamant conclusion/ desire has to be recognized and given consideration.
Dr. Peter von Korfs involvement in this case occurred when counsel for J.B. and
J.B. Jr., Kord Kinney, Esquire, made an oral motion to obtain an expert opinion regarding
the relationship/ bond between Mother and J.B. and J.B. Jr. and the potential negative
affect of severing that bond. In an Opinion and Order dated January 22, 2019, the court
granted the Motion. Attorney Kord Kinney indicated at the May 31, 2019, hearing that
he did not intend on calling Dr. von Korf. CVS Solicitor Michele Alfieri-Causer indicated
that CVS did intend on calling Dr. von Korf. Therefore, further hearing was held on
October 4, 2019.
10
Regarding Father Dr. von Korf had no difficulty concluding that termination of his
parental rights was in the best interests of all 3 children. He indicated that "none of the
children expressed any attachment to Father." Any memory they had of him was
negative. Therefore, it was his opinion that termination of Father's parental rights was
appropriate because it would eliminate concerns/ fears that the children have
regarding their Father and his potential future contact with them.
Regarding Mother Dr. von Kort's testimony and opinion was different regarding
J.B. and J.B Jr. - and - _.. It was his opinion that 819, due to his age, has very
limited memory of residing with Mother, has not established a strong attachment to
her, and, he has developed a bond with the �s because he has been in their care
for the last several years. Therefore, he was not concerned about potential negative
effects of termination of parental rights for� He recognized that J.B. and J.B. Jr.
have expressed a desire to not have their Mother's parental rights terminated and to
work towards returning to her care. J.B. and J.B. Jr. stated to him, as they have to
others: "when my mom gets out of jail we are going to live with her." He found that J.B.
and J.B. Jr. have "affection and fondness" for their Mother, but, their bond with her "is
not secure." He testified: "these children had very low scores in terms of parental
attachment." He found that J.B. and J.B. Jr. "have no attachment to an adult;" and, "this
is very unusual." Dr. von Kort's "central opinion" was that "these children are insecurely
attached to all caregivers in their life;" and, "that circumstance had to have some root in
their life." He found the children to be "avoidant children" who "rely heavily on self."
He found J.B. to be "depressed, angry- emotional troubled." He found Bt1a who
11
again has spent more of his young life with the �s, "in the best circumstance. He
is doing the best, best of all 3 to make gains." He went on to explain that "attachments
can evolve over time. It can be repaired. They can become familiar with secure
attachments." He initially rendered a clear opinion that termination and adoption
would give all 3 children the best option to form secure attachments. However, when
pressed regarding J.B. and J.B. Jr.'s preference to return to their Mother's care his
opinion became less confident regarding potential outcomes. He testified that he
"hoped" that once parental rights were terminated J.B. and J.B. Jr. would be open to
adoption by the L••ias and change their positions and agree to it. However, he also
admitted that there was no certainty that would occur. Regarding J.B. Jr. he recognized
that he has "unrealistic 12 year old conclusions" regarding reunification with Mother. He
agreed that it would be a horrible outcome if J.B. and J.B. Jr. did not agree to adoption,
they later had resentment regarding the removal of the option of returning to their
Mothers care, the L.....s were no longer willing to provide care I a home for them
and Mother was not an option because her rights would have been terminated.
However, it was also his professional opinion that "the status quo has to change. SPLC
(subsidized permanent legal custodianship) would just maintain the status quo."
During cross examination by Parent's Counsel, Dr. van Korf agreed that his
evaluation was not as thorough as he would have preferred. He agreed that he had not
met with the Parents, which is something he would normally do. He indicated that "we
ran out of time," referring to the fact that the time between when he was initial
contacted and when the first hearing was held on May 31, 2019, was limited. However,
12
the court found this explanation somewhat questionable because, had he needed more
time to complete a more thorough evaluation, the court would have granted it; and, the
next hearing after the May 19, 2019, hearing did not commence until October 4, 2019.
Nevertheless, the court found Dr. van Kori's analysis to be accurate and of assistance.
AUTHORITY:
The statutory requirements for termination in this case are 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:
(1) The parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a settled
purpose of relinquishing parental claim to a child or has refused or failed to
perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without 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.
(5) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency for a period of at least six months,
the conditions which led to the removal or placement of the child continue to
exist, the parent cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to the parent are
not likely to remedy the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of parental rights would
best serve the needs and welfare of the child.
13
(8) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency, 12 months or more have elapsed
from the date of removal or placement, the conditions which led to the removal
or placement of the child continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
23 Pa.C.S. §2511(a)(1),(2), (5) and (8).
The grounds for terminating parental rights under Section 2511(a)(2) 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.LO., 797
A.2d 326, 337 (Pa.Super. 2002). Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities. !f!.:. at
340.
In In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), our Supreme Court first
announced the fundamental test in terminating parental rights pursuant to
section 2511(a)(2). According to Geiger,
three things must be shown before a natural parent's rights in a
child will be terminated: (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; (3)
it must be shown that the causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied. !f!:..at 173-174.
In Re R.H., 33 A.2d 95, 100 (Pa.Super. 2011).
When addressing a request to terminate parental rights the Court is required to "[g]ive
primary consideration to the developmental, physical and emotional needs and welfare of the
child." 23 Pa.C.C. §2511(b). Further, "[t]he 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. 19..:.
14
An inquiry into whether termination of parental rights would best serve the
developmental, physical and emotional needs and welfare of the child is a
distinct aspect of a termination hearing, to be undertaken only after the
statutory requirements of section 2511(a) have been met. Intangibles such as
love, comfort, security, and stability are involved when inquiring about the needs
and welfare of a child. The court must also discern the nature and status of the
parent-child bond, paying close attention to the effect on the child of
permanently severing the bond.
In re C.P., 901 A.2d 516, 520 (Pa.Super. 2006), as cited by. In re K.C.F .• 928 A.2d 1046, 1049
(Pa.Super. 2007).
The burden of proof upon a petitioner in a termination proceeding is by clear and
convincing evidence:
In termination cases, the burden is upon the petitioner to prove by clear and
convincing evidence that the asserted grounds for seeking termination of
parental rights are valid .... The standard of clear and convincing evidence is
defined as testimony 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 the Interest of A.S., 11 A.3d 473, 477 (2010)(citations omitted).
When reviewing the evidence the Court, as the trier of fact, "is likewise free to make all
credibility determinations and resolve conflicts in the evidence." !fL.
A parent's right to the custody of his or her children is not absolute and has to be
balanced against a child's right to have proper parenting:
A parent's basic constitutional right to the custody and rearing of ... [his]
children is converted, upon the failure to fulfill ... parental duties, to the
children's right to have proper parenting and fulfillment of [the child's] potential
in a permanent and healthy, safe environment. There is a recognized connection
between Pennsylvania law on termination of parental rights and the Adoption
and Safe Families Act ... This act was designed to curb an inappropriate focus on
15
protecting the rights of parents when there is a risk of subjecting children to long
term foster care or returning them to abusive families.
Id. at 478 (citations omitted).
In In re Adoption of S.P., 47 A.3d 817 (Pa. 2012) the Pennsylvania Supreme Court set
forth the standard to utilize when addressing parent's future period of Incarceration:
In line with the expressed opinion of a majority of justices in R.I.S., our prior
holdings regarding incapacity, and numerous Superior Court decisions, we now
definitively hold that incarceration, while not a litmus test for termination, can
be determinative of the question of whether a parent is incapable of providing
"essential parental care, control or subsistence" and the length of the remaining
confinement can be considered as highly relevant to whether "the conditions
and causes ofthe incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent," sufficient to provide grounds for termination pursuant
to 23 Pa.C.S. § 2511(a)(2). See e.g. Adoption of JJ., 515 A.2d at 891 ("[A) parent
who is incapable of performing parental duties is just as parentally unfit as one
who refuses to perform the duties."); E.A.P., 944 A.2d at 85 (holding termination
under§ 2511(a)(2) supported by mother's repeated incarcerations and failure to
be present for child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied despite mother's
compliance with various prison programs).' If a court finds grounds for
termination under subsection (a)(2), a court must determine whether
termination is in the best interests of the child, considering the developmental,
physical, and emotional needs and welfare of the child pursuant to§ 2511(b). In
this regard, trial courts must carefully review the individual circumstances for
every child to determine, inter alia, how a parent's incarceration will factor into
an assessment of the child's best interest.
In re Adoption of S.P .• 47 A.3d 817, 830-831 (Pa. 2012). In that case the Superior Court had
reversed the trial court, finding that the trial court had given too much weight to the fact that a
parent was incarcerated. The Supreme Court reversed the Superior Court holding:
As applied to this case, we conclude the Superior Court erred in reversing the trial
court's decision to terminate Father's parental rights where that decision was
supported by the record and did not constitute an abuse of discretion or an error of
law. The trial court properly found that Father has been incarcerated since prior to
Child's birth and never provided Child with essential parental care. Accordingly, the
court did not abuse its discretion in concluding that Father's "repeated and continued
incapacity ... caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being." 23 Pa.C.S. §
2511 (a)(2). Moreover, the record supports the trial court's findings regarding the
uncertainty of Father's parole date and that, even upon parole, Father would reside
in a half-way house and would need to obtain housing, employment and
transportation in addition to parenting skills. Accordingly, the trial court did not abuse
16
its discretion when it concluded that "the conditions and causes of the incapacity ...
cannot or will not be remedied" by Father. 23 Pa.C.S. § 2511 (a)(2). Finally, given that
Child did not have a relationship with Father, that Father would not be able to provide
for her, especially considering her special needs, and that Child had a strong bond
with her maternal half-sister, the trial court did not abuse its discretion in concluding
that terminating Father's rights would best serve the "developmental, physical and
emotional needs and welfare" of Child. 23 Pa.C.S. § 2511 (b).
In re Adoption of S.P., 47 A.3d 817, 831 (Pa. 2012). It is important to note that, when
conducting their analysis regarding the effect of incarceration, the Supreme Court in !n
re Adoption of S.P gave consideration to the length of future incarceration and to the
quality of the existing relationship between the parent and the trial (finding the
relationship was poor thus supporting termination).
In In the Matter ofT.D., 949 A.2d 910 (Pa.Super. 2008), the Superior Court addressed
the standard to apply when a parent is unavailable, the children have a bond and connection
with the parent, and, the children express reluctance to consent to an adoption.
This Court confronted a similar issue in In re E.M., 908 A.2d 297(Pa.Super.2006), and reversed the trial court's order terminating a mother's
parental rights to her two children. In that case, the trial court determined that
the appellant maintained sporadic contact with her two teenage children during
placement and she failed to perform her parental duties. Id. at 301-302.
Nevertheless, the children, who had maintained emotional bonds with their
mother, desired to reunify and only would consent to adoption if it were a last
resort. Id. at 307. Despite the apparent bond, the trial court found that the
agency had satisfied the statutory requirements of section 2511(a) and section
2511(b). On appeal, this Court reversed, finding that, under the unique
circumstances of that case, the trial court had abused its discretion in concluding
that termination served the needs and welfare of the children.
In reaching its conclusion, this Court reasoned that, given the children's
ages, fourteen and fifteen, and the requirement of their consent to adoption, the
lack of an identifiable pre-adoptive home, a stable foster home willing to care for
them until they reach majority, and the children's commitment to maintaining
contact with their mother, even in the face of termination, "the reality is these
children most likely will remain in foster care until they reach majority regardless
of the outcome of this case." Id. at 306-07. Specifically, the court found,
"nothing will change whether mother's rights are terminated or not, and the
only thing that will be accomplished by termination is that the children will be
17
true orphans .... [T]he children currently have permanency to the fullest extent
possible under the circumstances." Id. at 309.
Later, in In re K.C.F., 928 A.2d 1046 (Pa.Super.2007), this Court distinguished the
facts of In re E.M. from the facts underlying that case, wherein the appellant
argued that her children's ages, eleven, nine, and eight, and the lack of a pre-
adoptive home would prevent them from being adopted. As the In re K.C.F.
Court observed, unlike the children in In re E.M., the three children at issue in In
re K.C.F., had not yet reached the age where consent was required for adoption,
and two of the children acknowledged that the Mother could not consistently
meet their needs. Id. at 1053. Similarly, while the remaining child preferred to
reunite with his mother, he was not secure in her presence. Id. Accordingly,
noting that the Juvenile Act does not require pre-adoptive placement as a
precondition to termination of parental rights, we found that the mother did not
establish that her children's ages would prevent them from being adopted.
The case at bar aligns with In re K.C.F. rather than In re E.M. Herein, T.D.
is only twelve, and although he must consent to adoption, he still is several years
from reaching the age of majority. Moreover, his foster placement is uncertain.
T.D. has been removed from the pre-adoptive foster home in which he resided
since August 2006, and in stark contrast to the children in In re E.M., the record
does not indicate that his present foster home, the second since being removed
from pre-adoptive care, is committed to caring for him for six years until he is
eighteen. Hence, the unique circumstances *923 that compelled our conclusion
in In re E.M. are absent from this case. As in In re K.C.F., T.D. 's age, loyalty to his
natural parents, and apparent lack of an identifiable pre-adoptive placement will
not automatically preclude him from attaining permanency after parental rights
have been terminated. See In re K.C.F., 928 A.2d 1046. In contrast, however, in
light of Parents' demonstrated inability to provide the minimum level of parental
care, preserving Mother's and Father's parental right, would foreclose any hope
for adoption and condemn T.D. to foster care until he reaches majority.
Accordingly, the court did not abuse its discretion in concluding that termination
best serves T.D.'s needs and welfare.
In the Matter ofT.D .• 949 A.2d 910, 922-923 (Pa.Super. 2008).
In In re T.S.M .• 71 A.3d 251 (Pa. 2013), the Pennsylvania Supreme Court discussed at
length the weight to be given to the potential of a child's future adoption if parental rights are
terminated:
Common sense dictates that courts considering termination must also consider
whether the children are in a pre-adoptive home and whether they have a bond
18
with their foster parents. See In re K.M., 53 A.3d at 791. Indeed in cases where
the petitioner is a party standing in loco parentis, the statute requires the party
to file a report of intention to adopt. 23 Pa.C.S. § 2512(a)(3). Likewise, this Court
has noted that a petition to terminate parental rights filed by a biological parent
"is only cognizable when it is accompanied by a prospective stepparent's
intention to adopt the child," noting that •530 the public policy behind this
provision is to prevent" state-created orphans." In re Adoption of LJ.B., 610 Pa.
213, 18 A.3d 1098, 1107-08 n. 11 (2011) (plurality). Notably, however, the
Adoption Act specifically provides that a pending adoption is not a prerequisite
to termination of parental rights involving agencies such as CYF: "If the petitioner
is an agency It shall not be required to aver that an adoption is presently
contemplated nor that a person with a present intention to adopt exists." 23
Pa.C.S. § 2512(b).
The Superior Court has rejected the suggestion that termination of parental
rights is inappropriate when adoption Is not imminent and has allowed
termination even if it results in the child temporarily being without one or both
parents. See In re C. W.U., Jr., 33 A.3d 1, 9 (Pa.Super.2011). Additionally, the
Superior Court has observed that termination may improve the likelihood of
finding an adoptive home. See In the Matter of T.D., 949 A.2d at 922-23. Indeed,
in some cases, a child's bond with a parent, who has proven incapable of caring
for the child, may impede the child's ability to attach to a pre-adoptive family
who can provide the needed care and stability. See Id. at 921; In re J.F., 904 A.2d
at 1216. Nonetheless, the Superior Court has expressed concern for terminating
parental rights absent a pre-adoptive home especially in the case of an older
child, whose consent is needed for adoption, lest the child age out of foster care
without any permanent family. See In the Matter of T.D., 949 A.2d at 922.
Moreover, members of this Court have opined that the existence of a pre-
adoptive home is "an important factor" In termination cases. In re R.I.S., 614 Pa.
275, 36 A.3d 567, 575 (2011) (Saylor, J., concurring). We have questioned
whether a grant of termination would require that an "agency must Intend
subsequent to termination to seek out an adoptive parent." In re Adoption of
LJ.B., 18 A.3d at 1107 n. 8. Indeed, decades ago, we opined in obiter dictum that
an agency may not terminate parental rights absent a contemplated adoption. In
re B.E., 474 Pa. 139, 377 A.2d 153, 155 n. 5 (1977). The Office of Children and
Family in the Courts, however, recently provided direction in the Dependency
*631 Benchbook, "While having an identified adoptive resource is not a
prerequisite for [termination of parental rights], ideally there should be a strong
likelihood of an eventual adoption." Administrative Office of Pennsylvania
Court's Office of Children and Families in the Courts, Pennsylvania Dependency
Benchbook § 12.1 at 126 (2010).
678 As the prior paragraphs reveal, contradictory considerations exist as to
whether termination will benefit the needs and welfare of a child who has a
19
strong but unhealthy bond to his biological parent, especially considering the
existence or lack thereof of bonds to a pre-adoptive family. As with dependency
determinations, we emphasize that the law regarding termination **269 of
parental rights should not be applied mechanically but instead always with an
eye to the best interests and the needs and welfare of the particular children
involved. See, e.g., R.J. T., 9 A.3d at 1190 (holding that statutory criteria of
whether child has been in care for fifteen of the prior twenty-two months should
not be viewed as a "litmus test" but rather as merely one of many factors in
considering goal change). Obviously, attention must be paid to the pain that
inevitably results from breaking a child's bond to a biologica I parent, even if that
bond is unhealthy, and we must weigh that injury against the damage that bond
may cause if left intact. Similarly, while termination of parental rights generally
should not be granted unless adoptive parents are waiting to take a child into a
safe and loving home, termination may be necessary for the child's needs and
welfare in cases where the child's parental bond is impeding the search and
placement with a permanent adoptive home.
9 In weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Children are young for a scant number of years,
and we have an obligation to see to their healthy development quickly. When
courts fail, as we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to dependent children,
*632 requiring vigilance to the need to expedite children's placement in
permanent, safe, stable, and loving homes. ASFA was enacted to combat the
problem of foster care drift, where children, like the children in this case, are
shuttled from one foster home to another, waiting for their parents to
demonstrate their ability to care for the children. See In re R.J. T., 9 A.3d at 1186;
In re Adoption of S.E.G., 901 A.2d at 1019. This drift was the unfortunate
byproduct of the system's focus on reuniting children with their biological
parents, even in situations where it was clear that the parents would be unable
to parent in any reasonable period of time. Following ASFA, Pennsylvania
adopted a dual focus of reunification and adoption, with the goal of finding
permanency for children in less than two years, absent compelling reasons. See,
42 Pa.C.S. § 6301(b)(l); 42 Pa.C.S. § 6351(f)(9) (requiring courts to determine
whether an agency has filed a termination of parental rights petition if the child
has been in placement for fifteen of the last twenty-two months).
Considering these statutory purposes, we reject the trial court's suggestion that
"the ultimate exception to ASFA time frames should be until a child finds
meaningful, loving relationships with a family and committed homes are
established." Tr. Ct. Op. at 19. The trial court's suggested exception could
swallow the rule, and permanency could be obstructed in cases where children
have been unable to form healthy bonds with foster families, potentially as a
result of their unhealthy bonds with biological parents who may be undermining
20
their relationship with their foster family. See, e.g. In the Matter of T.D., 949
A.2d at 921; In re J.F., 904 A.2d at 1215-16 (terminating parental rights where
biological parents could not parent child and instead hampered child's ability to
bond with foster family and attain stability).
10 Similarly, we question the trial court's use of concurrent planning in this case.
We commend the trial court for recognizing that concurrent planning is a best
practice, as it allows agencies to provide families with services in hopes of
reunification while also preparing for the child's potential adoption. Concurrent
**270 planning is especially useful early in *633 the proceedings when it is
unclear whether the parents will be able to learn to parent their children.
Conversely, we caution that concurrent planning should not be used to prolong
instability for children when it becomes clear that parents will be unable to
provide their children's basic needs in the near future. Trial courts' use of
concurrent planning beyond its useful life can create confusion for the children
and potentially increase the difficulty for them to bond with pre-adoptive
parents, thus perpetuating the problem of foster care drift. As Dr. Pepe observed
in her testimony, the child is conflicted "between loyalty to a biological parent
and loyalty to a foster parent, pre-adoptive parent, adoptive parent. When it is
clear to the child that they are in their permanent home, then the conflict can
diminish, which can result in less disruptive behaviors and a greater sense of
security." N.T., 8/31/11, at 107.
While we have no doubt that the trial court in the case at bar acted with full
intention of protecting the needs and welfare of these children in sustaining
their bonds with Mother, we conclude that the denial of termination merely
prolonged and, indeed, exacerbated the harm suffered by the children. The trial
court made valiant efforts to utilize concurrent planning and family group
decision making; however, these efforts were inappropriate in a case such as
this, where, at the time of the termination hearing, Mother had the benefit of
services for over five years without showing the potential of being able to parent
the children in any reasonable period of time.
11 In this case, the children have unhealthy bonds to Mother, who is seemingly
the root of their manifold psychological and behavioral conditions. Moreover,
Mother appears to be interfering with the children's bonding to their foster
families, resulting in confusion for the children and further delay in permanency
for the children. For example, Ty. M. reported that Mother told him that he
would not be adopted and that his foster brothers "were not his brothers." See
Report of Dr. Pepe, 6/23-30/11, at 5. Dr. Pepe opined that Ty. M. "would
naturally have ambivalence regarding adoption given his age [eight] and level of
attachment to his biological *634 mother but that her comments could serve to
cause increased confusion with the child." Id.
Whether or not the children have current bonds to their foster families, there
appears to be a "strong likelihood of an eventual adoption." Pennsylvania
21
Dependency Benchbook § 12.1 at 126. Indeed, Dr. Pepe specifically
recommended adoption for Ty. M., Tai. M., and N. M., N.T., 8/31/11, at 102;
Report of Dr. Pepe, 6/23-30/11, at 5; Report of Dr. Pepe, 12/10-2/11, at 31. In
regard to Ti. M., Dr. Pepe did not recommend adoption at the time of the
evaluation, but nonetheless did not recommend reunification and suggested
reduced visitation with Mother. Report of Dr. Pepe, 12/10-2/11, at 28. The
youngest child, Tae. M., previously had a very strong and positive bond with his
pre-adoptive foster mother who, unfortunately, became ill and unable to care
for Tae. M. Report of Dr. Pepe, 12/10-2/11, at 23. While no adoptive home was
present at the time of the hearings, one can presume that a permanent home
will be found for Tae. M, when he is freed for adoption.
Although we defer to a trial court's determination regarding termination when it
is supported by the record, we must reverse the trial court's determination in
this case because we find the court's conclusion to be manifestly unreasonable,
and thus an abuse of discretion. In re Adoption of S.P., 47 A.3d at 826. In relying
upon the **271 mere existence of the bond between Mother and the children,
the trial court failed to recognize the substantial, possibly permanent, damage
done to these children by the prolonged, unhealthy, pathological bond with
Mother, especially as it affected the children's ability to form attachments to
foster families who could have provided the necessary love, care and stability
that these children have so needed for the past decade. We conclude without
hesitation that it best serves their needs and welfare to sever their bond with
Mother permanently, in order to permit them to be placed forthwith into
healthy, permanent homes. Accordingly, we reverse the Superior Court decision
affirming the trial court's denial of termination of parental rights and order the
trial court to enter orders terminating Mother's parental *635 rights as to the
five children before this Court. We expect this to be done promptly, and we
further expect the child welfare agency and court to give this case their utmost
attention so that these children have a chance for normal lives. Jurisdiction
relinquished.
In re T.S.M., 71 A.3d 251, 268-271 (Pa. 2013).
DISCUSSION:
At the conclusion of the termination hearing all of the attorneys indicated that this is a
"difficult decision." However, when applicable and controlling authority is applied to the
specific proven facts, it is not. It is an emotionally difficult and charged situation I case, but
22
logically applying the appropriate legal standard to the facts clearly and definitively leads to
termination of both Parents' parental rights.
First, the required statutory factors set forth in 23 Pa.C.S. §2511(a)(l),(2), (5) and (8)
have been demonstrated. Parents, due to criminal convictions, substance use/ abuse
and failure to perform parental duties, have been unavailable for several years. Both
are now incarcerated and will be for at least several more years. Therefore, the only
potential issue requiring further legal analysis is: Will termination of parental rights best
serve the developmental, physical and emotional needs and welfare of the child
(addressing each child's situation separately)? When answering this question we are
required to: "discern the nature and status of the parent-child bond, paying close
attention to the effect on the child of permanently severing the bond." In re C.P .• 901
A.2d 516, 520 (Pa.Super. 2006), as cited by, In re K.C.F .• 928 A.2d 1046, 1049 (Pa.Super.
2007).
The holding of our Supreme Court in In re T.S.M. compels termination of parental rights
in this case, including the following:
In weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Children are young for a scant number of years,
and we have an obligation to see to their healthy development quickly. When
courts fail, as we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to dependent children,
requiring vigilance to the need to expedite children's placement in permanent,
safe, stable, and loving homes.
In re T.S.M .• 71 A.3d 251, 269 (Pa. 2013). After the Supreme Court in In re T.S.M. mandated "courts" to
consider "the ticking clock of childhood," they chastised the lower court for not doing so:
23
While we have no doubt that the trial court in the case at bar acted with full
intention of protecting the needs and welfare of these children in sustaining
their bonds with Mother, we conclude that the denial of termination merely
prolonged and, indeed, exacerbated the harm suffered by the children.
In re T.S.M .• 71 A.3d 251, 269 (Pa. 2013).
Regarding Father the children have a negative bond and negative memories of him. He has very
little contact with the children. He made promises to the court regarding the efforts that he was going
to make upon his release from incarceration. He didn't follow through with any of them. He
immediately began utilizing controlled substances when he was released and is now serving a lengthy
criminal sentence. Therefore, it is definitely fulfills the needs and welfare of �and his siblings for
Father's parental rights to be terminated.
Mother has been involved in the criminal justice system, consistently and regularly, since 2002.
She had numerous periods of local supervision and attempted rehabilitation that resulted in revocations
and new convictions/ sentences. Her criminal activity only ended when she was incarcerated following
the filing of charges in 2016. She has a history of alcohol and drug use I abuse and mental health
concerns (mental health evaluations required as part of criminal sentences). There is nothing in the
record indicating that Mother has addressed the drug and alcohol and mental health concerns that
initially led to her previous criminal convictions and difficulties. Mother did testify that she plans on not
falling back into the destructive patterns she had been involved in for at least 14 years prior to 2016.
However, there is no evidence that she has completed any drug treatment or mental health programs
that would support her assertions.
Mother testified that she and her children would go on "outings" before she was
incarcerated, like fishing, camping, swimming, the Erie Zoo. However, this self-serving and rosy
analysis of Mother's care and contact with the children prior to her recent period of
incarceration does not line up with reality. She was frequently out of the home and involved in
24
activities that were destructive and, at times, resulted in criminal charges. She frequently relied
on her mother and others to care for the children. As Dr. von Korf found, J.B. and J.B. Jr. "have
no attachment to an adult;" and, "this is very unusual." Dr. von Kori's "central opinion" was
that "these children are insecurely attached to all caregivers in their life;" and, "that
circumstance had to have some root in their life." He found the children to be "avoidant
children" who "rely heavily on self."
The court is in agreement with Dr. von Kori's opinion that "the status quo has to change.
SPLC (subsidized permanent legal custodianship) would just maintain the status quo." The
court accepts this opinion because: it is supported by the facts in this case, the years of
instability the children have already gone through and are potentially facing if a major change is
not made soon; and, it is supported by applicable legal authority and guidance including the
holding in In re T,S.M .• 71 A.3d 251, 269 (Pa. 2013).
The court recognizes that Parents, and in particular Mother, have and will focus
on the preference of J.B. and J.B. Jr. to reunify with her when she is released from
incarceration; and, the affection they have for her. This assertion is emotional, that two
boys want to be with their mother, of course, pulls on the heart strings. However, this is
a decision that can't be made by emotion and heart strings. It has to be made based on
logic and legal analysis. The fact that these young children want to be reunified with
their Mother was given weight and consideration, but is outweighed by the reality of
the situation. See, In the Matter ofT.D .• 949 A.2d 910 (Pa.Super. 2008). Mother has had
difficulty for years and it is unlikely anything will change even if we wait for several more
25
years for her to be released from incarceration.1 The clock here has ticked long enough,
longer than it should have. No outcome is guaranteed, but, at this point, based on the
prior history and the facts and circumstances in this record, by far the best potential for
�and his siblings to obtain permanency and stability is to terminate parental rights
and create the possibility of their adoption by the L�. There is a short window
for taking meaningful action here - and that window is closing rapidly.
WHEREFORE, WE ENTER THE FOLLOWING:
1 The court also finds that the children are motivated and encouraged by Mott:ier, their maternal grandmother,
ce�. who they have frequent contact with, and other family members, to support and accept the goal and
dream of returning to Mother's care. This is further evidence that the status quo is emotionally pulling them In
different directions.
26
IN THE INTEREST OF: : IN THE COURT OF COMMON PLEAS OF
J.B. : McKEAN COUNTY, PENNSYLVANIA
: ORPHAN'S COURT DIVISION
: NO. 42·18·0078
�ECE&VE�
O .'-'. . Tl 2 3 ��
BY: /rlVl'3
.,1
l(.Ji;:)
u
� ·:1..
MEMORANDUM AND ORDER
McKean County Children and Youth Services (hereinafter "CVS") filed a Petition to
Involuntarily Terminate the Parental Rights of Atilt W�Bt9(hereinafter "Mother") and
JtlllltB� Sr. (hereinafter "Father'') to 4IIB�hereinafter "J-"). Several days of
hearings have been held and the matter is now ready for a decision.
FINDINGS OF FACT:
•
J�is 11 years old and his date of birth is June 30, 2008. He has several
siblings including J.B. Jr., date of birth August 2, 2007; and, B.W., date of birth October
4, 2011. J4illt J.B. Jr. and B.W. have resided in the T- and ��for
over three years. Mother and Father are both incarcerated in State Correctional
facilities. They both have serious drug and alcohol addictions and numerous prior
criminal convictions.
Brianna Jones, an intake supervisor for McKean CVS, testified at the January 22,
2019, termination hearing. She explained that CVS initially became involved due to
Father being incarcerated and Mother facing incarceration. Mother had made
for her 6 children when she was incarcerated. CVS initially monitored the case I family.
1
However, when Karly Ryan stole rent subsidy money and it appeared that (9 otl9
was unable to provide appropriate care and supervision for the children, a dependency
petition was filed in April of 2016.
The children were found to be dependent by an Order dated May 17, 2016. At
that time Mother had been sentenced to a term of 6 to 13 years.
Father was incarcerated in the McKean County Jail and was facing pending
criminal charges and a State Parole revocation. Paternal grandparents, �and
(9 B , indicated that they could provide kinship care for the children. Therefore,
J-, J.B. Jr. and B.W. were placed in their home. �and� �were also
providing care for three additional grandchildren who were found to be dependent.
Mother had requested visits with the children (at her SCI facility). Visits with Mother
have continued since the inception of the dependency action. Mother has maintained
regular phone contact with the children. There were no visits with Father while he was
incarcerated. Father had limited contact with the children prior to his incarceration. He
initially had some phone contact with the children but then that ended.
The placement with the 89s was found, In the initial dependency
proceedings, to be going well. However, at the October 18, 2016, hearing the court
found that there were serious concerns. Service providers working with the family
raised concerns to CVS regarding the treatment of the children in the �' home.
The 119s had difficulty providing care for all of the chitdren. Jl9and his siblings
have behavioral issues that the Bunces struggled with. The court found that the 81119
2
couldn't provide appropriate care for all of the children. Therefore,� J.B. Jr. and
B.W. were placed in the �foster home.
The L-s have provided exceptional care for Javon and his siblings. They
have worked with service providers and school staffs to assure that their needs are met.
They will adopt the children if that is an option.
At the October 18, 2016, hearing maternal grandmother, (9�, indicated
that she was a placement option for J911tand his siblings. However, Mrs. c:mthad
three other grandchildren in her home and there had been issues regarding previous
visits there. Services were put in place to assist �ith the development of
skills and a plan to have all of the children placed in her care.
At the review hearing on January 18, 2017, the court found that the children
continued to do well in the '4•• foster home. \.ll-�c
c --was still requesting that
the children be placed with her .. However, additional concerns had arisen about the lack
of supervision in ��'s home during the children's weekly visits with Mrs.
0-and their siblings. �had a hard time controlling and supervising all of
the children.
At a review hearing on March 8, 2017, despite the previous emphasis and
directives to (90-not to leave the children unattended during the sibling visits,
it was discovered that she continued to do so. A plan was put in place for an additional
caregiver to assist �Dtllt when the children visited her, particularly when she was
at work.
3
At the review hearing on September 22, 2017, the court found that there had
been a significant and troubling incident during a visit with (8U11-•
r The children
were left alone and B.W. found and took some medication that was prescribed for his
grandmother. He had to receive emergency medical treatment. It became evident that,
relationship with her, she would not be a future placement option for them. Since the
children had been in placement for some time the permanency plan for the children was
discussed, including the potential of termination and adoption by the �s. Father
participated in the hearing via telephone. He Indicated that he was in the Boot Camp
Program and taking advantage of all available treatment options. He indicated he
"would do whatever it takes" to have the children in his care and to be part of their
lives; and, "I would go to the moon if I have too." The focus at the hearing was on
Father as Mother would not be eligible for release from incarceration for several years.
The court advised Father that his recent steps to complete his sentence and be in a
position to provide care for the children was a positive development. However, the
court also specifically advised Father that he would have to demonstrate, through his
actions, that there was substance behind his commitment to provide care for eand
his siblings. Father was ordered to follow his drug and alcohol treatment plan; to
maintain contact with CVS and establish a visitation schedule with CVS once he was
released from incarceration; to refrain from using controlled substances and alcohol;
and, to obtain appropriate housing. If Father was following his reunification plan CVS
had discretion to increase his visits and contact with J-nd his brothers.
4
Father was released from incarceration after the September 22, 2017, hearing
but before the next review hearing on March 23, 2018. He made little effort to have
contact with the children and form a relationship with them after he was released. He
missed visits and did not attend their appointments. He would tell the children he was
buying them Christmas gifts, or they would have pizza at the next visit, but then not
show up. This was traumatic to the children and deeply harmed Father's relationship
with them. He tested positive for cocaine use on January 7, 2018. His visits with the
children were then suspended. Father had additional positive drug screens for cocaine
and Suboxone. He had not obtained appropriate housing. Mother indicated that she
believed she would be eligible for parole sometime in 2022.
Father's parole agent, Shawn Hartman, testified at the January 22, 2019,
termination hearing. He supervised Father on two separate occasions. He initially
supervised him in 2015 or 2016. Father absconded and was again Incarcerated. He was
then released in December of 2017. Father began utilizing controlled substances shortly
after he was released from state incarceration and was, therefore, required by Agent
Hartman to attend the Gateway Rehabilitation Center treatment program in Erl�,
Pennsylvania. He attended that program for two or three weeks and then he left
Gateway and absconded. A warrant was placed for his arrest. He was apprehended in
August of 2017 at his parents' (�and C9Btl9's) residence In Bradford, Pa. He
also committed new criminal offenses during this time period. By Order of Court dated
June 20, 2019, at case numbers 462 CR 2018, 606 CR 2018 and 30 CR 2019, Father was
sentenced to a period of confinement of not less than 4 years to no more than 8 years.
5
At 30 CR 2019 he pied guilty to Theft by Unlawful Taking, Criminal Trespass and Criminal
Mischief. The date that these offenses occurred was June 28-29, 2018. Therefore, after
Father indicated at the September 22, 2017, that he would be released from
incarceration soon and would "would do whatever it takes" to have the children in his
care and to be part of their lives; and, "I would go to the moon if I have too," Father: 1)
had little contact with the children; 2) made promises to them that he did not follow
through on and which emotionally harmed them; 3) utilized controlled substances; 4)
left inpatient treatment; 5) absconded from supervision; and, 6) committed new serious
criminal offenses.
Jlml J.B. Jr. and B.W. have a negative relationship/ bond with their Father.
This conclusion is consistent with the information provided by the children's' Guardian
ad litem, Mark Hollenbeck, Esquire; J ... appointed attorney, Kord Kinney, Esquire;
and, Or. Peter von Korf, an expert called by CVS.
Regarding their relationship with their Mother, former CVS caseworker Donna
Trim testified that the children (J-ncluded) are happy to visit with and see their
Mother. They would always run to her. The visits occur once a month at an SCI facility.
The children's grandmother, ceo� often transports the children to the visits.
However, as discussed below, Dr. von Korf testified that the children have an "insecure
attachment" with Mother. The court accepts the opinion of Dr. von Korf regarding the
classification and concerns regarding the children's relationship with Mother.
Mother testified at the May 31, 2019, termination hearing that she will be
eligible for parole from state prison in 30 months. The court does not accept this
6
assertion as fact. As outlined above Mother was sentenced to several periods of
consecutive confinement; and, there is nothing in the record definitively establishing the
date she is eligible for parole. The court is concerned about Mother providing a clearly
self-serving statement about this date and her potential to obtain parole upon her
minimum without something more definitive. Mother testified that she is optimistic
and, in fact, believes that she will be granted parole upon the expiration of her
minimum. Mother could be required to attend a half-way house/ treatment program
upon her release. Further, it may take her sometime to obtain appropriate housing for
the children after she is released. Therefore, at best, it will be several years before
Mother is available to have the children in her care. Placing a time period on Mother's
parole and availability to have the children in her care, at best, if everything goes well
and Mother fully follows her parole plan, it �ill be in 30 to 36 months. Of course, there
is the possibility that Mother will not be granted parole, or, will have set backs if she is.
If this occurs it could be much longer until she is available, if at all, to care for the
children. Mother testified that she has completed a Family Support Program while
incarcerated; and, a domestic violence program phases I, II and II. She is taking classes
to obtain her GED.
Mother testified that she has six children, 4 minor children and two adults. Two
of Mother's children reside with her mother, (90"9 and, J .. and his two
brothers reside in the �foster home. Mother had no concerns regarding the
care the � are providing for the children. She thanked them in her testimony
for caring for the children and being open to her having contact with them.
7.
Mother testified that she and her children would go on "outings" before she was
incarcerated, like fishing, camping, swimming, the Erie Zoo. Although the court accepts
this testimony as accurate, that Mother did undertake these activities with the children,
the court also finds that Mother often left the children with her Mother and others
before she was incarcerated. Mother struggled with addiction and would often be out
of the home. There were concerns with Mother's care of the children even before she
\Vas incarcerated.
When Mother is released she will seek assistance from her Mother, �
� to provide care for the children. The children do have a bond wlth (8�
as they have had regular contact with her for all of their lives. Mother plans on
obtaining employment when she is released. She indicated that she enjoys cleaning and
would like to get a job doing that. She testified that she will follow her drug and alcohol
treatment plan and goals, and, she wants to be actively involved in the children's lives.
Mother's criminal history is summarized as follows:
1) McKean County Criminal Case No. 440 CR 2002. Convicted of Criminal Attempt-Theft
by Unlawful Taking (F-3), Forgery (F-3). Sentenced to one year of probation;
2) McKean County Criminal Case No. 371 CR 2004. Convicted of Simple Assault (victim
Mother's sister), Reckless Endangerment, Accidents Involving Damage. Sentenced to
one year probation;
3) McKean County Criminal Case No. 413 CR 2004. Convicted of Hindering Apprehension,
Driving at Safe Speed and Restraint System Violation (not having child properly secured).
Sentenced to one year consecutive probation;
4) McKean County Criminal Case No. 263 CR 2005. Convicted of Obstructing the
Administration of Law {involving assistance to Father who she knew law enforcement
was attempting to apprehend due to him fleeing a facility). Sentenced to 15 days
incarceration to 6 months, no contact with Father;
5) McKean County Criminal Case No. 672 CR 2005. Convicted of Perjury, Forgery -Altered
Writing, Altered and Forged Counterfeit Documents. Sentenced to 6 to 12 months of
incar:ceration;
8
6) McKean County Criminal Case No. 73 CR 2006. Convicted of Driving Under the
Influence. Sentenced to 6 months of consecutive probation;
7) McKean County Criminal Case No. 635 CR 2009. Convicted of Simple Assault. Sentenced
to 115 days to 12 months. Parole later revoked at this number for new violations (new
DUI and consuming alcohol). Her sentence for the revocation was remanded for the
balance of her sentence and eligible for re-parole after serving 45 days;
8} McKean County Criminal Case No. 463 CR 2010. Convicted of Driving Under the
Influence - 2"d Offense. Sentenced to 6 months to 3 years in a State Correctional
Facility;
9) McKean County Criminal Case No. 126 CR 2015. Convicted of Delivery of Suboxone.
Sentenced to 1 to 3 years in a State Correctional Facility;
10) McKean County Criminal Case No. 157 CR 2015. Convicted of Delivery of
Amphetamines. Sentenced to 18 months to 36 months consecutive to the sentence at
126 CR of 2015;
11) McKean County Criminal Case No. 158 CR 2015. Convicted of Delivery of Vicodin.
Sentence of not less than 18 months to no more than 3 years consecutive to the
sentence at 157 CR 2015;
12) McKean County Criminal Case No. 41 CR 2016. Convicted of Criminal Mischief/
Damaging Property and Criminal Trespass I Entering a Structure. Sentenced to 2 years
of concurrent probation;
13) McKean County Criminal Case No. 62 CR 2016. Convicted of Simple Assault and Fleeing
and Eluding. Sentenced to 2 to 4 years consecutive to the sentence at 158 CR 2015. The
victim of the assault was Father.
1-22-19 Hearing Tr. Pages 42 -52. Father's criminal history is even more extensive than
Mother's and is outlined in the January Hearing Transcript pages 34 to 43.
J ..and his brother J.B. Jr. remember residing with their Mother. They have a
bond with her. This bond is affected by their relationship with and frequent contact
with their maternal grandmother, C� .., and their siblings. There is
encouragement from the family and extended family to support the hope and goal of
the children being back with Mother and into the family unit. This is certainly
understandable but it does put J�nd his siblings in a very difficult position. They
care for their Mother and have connection to her and their maternal family, but, they
have been residing with the L� for several years and recognize that they have
9
been caring for them and assuring that their needs are met. B. W., due to his age, is in a
different position than Jtlland J.B. Jr. He has limited recollection of being in his
Mother's care before she was incarcerated. He is much more bonded to the Lancasters
than his siblings. �and J.B. Jr. have behavioral and emotional issues which were
likely caused by or enhanced by the lack of stability in their lives. B.W. is not facing
these behavioral issues. J .. and J.B. Jr. have fully accepted Mother and their
maternal grandmother's assertion that Mother will be released from prison and they
will be back in her care. The have expressed this belief to their caseworker, to their
Guardian ad litem Mark Hollenbeck, Esquire, to their counsel, Kord Kinney, Esquire, and
to Dr. von Korf. As discussed elsewhere in this Memorandur�\ that conclusion may turn
out to be unrealistic, but the fact that it is .Jtll9and J.B.'s Jr.'s adamant conclusion I
desire has to be recognized and given consideration.
Dr. Peter von Korf's involvement in this case occurred when counsel for J�
and J.B. Jr., Kord Kinney, Esquire, made an oral motion to obtain an expert opinion
regarding the relationship I bond between Mother and J- and J.B. Jr. and the
potential negative affect of severing that bond. In an Opinion and Order dated January
22, 2019, the court granted the Motion. Attorney Kord Kinney indicated at the May 31,
2019, hearing that he did not intend on calling Dr. von Korf. CVS Solicitor Michele
Alfieri-Causer indicated that CVS did intend on calling Dr. von Korf. Therefore, further
hearing was held on October 4, 2019.
Regarding Father Dr. von Korf had no difficulty concluding that termination of his
parental rights was in the best interests of all 3 children. He indicated that "none of the
10
children expressed any attachment to Father." Any memory they had of him was
negative. Therefore, it was his opinion that termination of Father's parental rights was
appropriate because it would eliminate concerns I fears that the children have
regarding their Father and his potential future contact with them.
Regarding Mother Dr. von Korf s testimony and opinion was different regarding
.... and J.B Jr. -and-B.W. It was his opinion that B.W., due to his age, has very
limited memory of residing with Mother, has not established a strong attachment to
her, and, he has developed a bond with the Lancasters because he has been in their care
for the last several years. Therefore, he was not concerned about potential negative
effects of termination of parental rights for B.W. He recognized that .... and J.B. Jr.
have expressed a desire to not have their Mother's parental rights terminated and to
work towards returning to her care. J- and J.B. Jr. stated to him, as they have to
others: "when my mom gets out of jail we are going to live with her." He found that
.-it and J.B. Jr. have "affection and fondness" for their Mother, but, their bond with
her "is not secure." He testified: "these children had very low scores in terms of
parental attachment." He found that .J9tand J.B. Jr. "have no attachment to an
adult;" and, "this is very unusual." Dr. von Kort's "central opinion" was that "these
children are insecurely attached to all caregivers in their life;" and, "that circumstance
had to have some root in their life." He found the children to be "avoidant children"
who "rely heavily on self." He found �o be "depressed, angry- emotional
troubled." He found B.W., who again has spent more of his young life with the
�s, "in the best circumstance. He is doing the best, best of all 3 to make gains."
11
He went on to explain that "attachments can evolve over time. It can be repaired. They
can become familiar with secure attachments." He initially rendered a clear opinion
that termination and adoption would give all 3 children the best option to form secure
att�chments. However, when pressed regarding .itmland J.B. Jr.'s preference to
return to their Mother's care his opinion became less confident regarding potential
outcomes. He testified that he "hoped" that once parental rights were terminated
J .. and J.B. Jr. would be open to adoption by the L- and change their
positions and agree to it. However, he also admitted that there was no certainty that
would occur. Regarding J.B. Jr. he recognized that he has "unrealistic 12 year old
conclusions" regarding reunification with Mother. He agreed that it would be a horrible
outcome if J91and J.B. Jr. did not agree to adoption, they later had resentment
regarding the removal of the option of returning to their Mothers care, the L
were no longer willing to provide care I a home for them and Mother was not an option
because her rights would have been terminated. However, it was also his professional
opinion that "the status quo has to change. SPLC (subsidized permanent legal
custodianship) would just maintain the status quo."
During cross examination by Parent's Counsel, Or. von Korf agreed that his
evaluation was not as thorough as he would have preferred. He agreed that he had not
met with the Parents, which is something he would normally do. He indicated that "we
ran out of time," referring to the fact that the time between when he was initial
contacted and when the first hearing was held on May 31, 2019, was limited. However,
the court found this explanation somewhat questionable because, had he needed more
12
time to complete a more thorough evaluation, the court would have granted it; and, the
next hearing after the May 19, 2019, hearing did not commence until October 4, 2019.
Nevertheless, the court found Dr. von Korf's analysis to be accurate and of assistance.
AUTHORITY:
The statutory requirements for termination in this case are 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:
(1) The parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a settled
purpose of relinquishing parental claim to a child or has refused or failed to
perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without 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.
(5) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency for a period of at least six months,
the conditions which led to the removal or placement of the child continue to
exist, the parent cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to the parent are
not likely to remedy the conditions which led to the removal or placement of the
child within a reasonable period of time and termination of parental rights would
best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency, 12 months or more have elapsed
13
from the date of removal or placement, the conditions which led to the removal
or placement of the child continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
23 Pa.C.S. §2511(a)(l),(2), (5) and (8).
The grounds for terminating parental rights under Section 2511(a)(2) 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). Parents are required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities. Id. at
340.
In In re Geiger. 459 Pa. 636, 331 A.2d 172 (1975), our Supreme Court first
announced the fundamental test in terminating parental rights pursuant to
section 2511(a}(2). According to Geiger.
three things must be shown before a natural parent's rights in a
child will be terminated: (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; (3)
it must be shown that the causes of the incapacity, abuse, neglect
or refusal cannot or will not be remedied. 19:_at 173-174.
ID Re R.H .• 33 A.2d 95, 100 (Pa.Super. 2011).
When addressing a request to terminate parental rights the Court is required to "[g]ive
primary consideration to the developmental, physical and emotional needs and welfare of the
child." 23 Pa.C.C. §2511(b). Further, "[t]he 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. Id.
14
An inquiry into whether termination of parental rights would best serve the
developmental, physical and emotional needs and welfare of the child is a
distinct aspect of a termination hearing, to be undertaken only after the
statutory requirements of section 2511(a) have been met. Intangibles such as
love, comfort, security, and stability are involved when inquiring about the needs
and welfare of a child. The court must also discern the nature and status of the
parent-child bond, paying close attention to the effect on the child of
permanently severing the bond.
In re C.P .• 901 A.2d 516, 520 (Pa.Super. 2006), as cited by. In re K.C.F .• 928 A.2d 1046, 1049
(Pa.Super. 2007).
The burden of proof upon a petitioner in a termination proceeding is by clear and
convincing evidence:
In termination cases, the burden is upon the petitioner to prove by clear and
convincing evidence that the asserted grounds for seeking termination of
parental rights are valid .... The standard of clear and convincing evidence is
defined as testimony 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 the Interest of A.S .• 11 A.3d 473, 477 (2010)(citations omitted).
When reviewing the evidence the Court, as the trier of fact, "is likewise free to make all
credibility determinations and resolve conflicts in the evidence." �
A parent's right to the custody of his or her children is not absolute and has to be
balanced against a child's right to have proper parenting:
A parent's basic constitutional right to the custody and rearing of ... [his]
children is converted, upon the failure to fulfill ... parental duties, to the
children's right to have proper parenting and fulfillment of [the child's] potential
in a permanent and healthy, safe environment. There is a recognized connection
between Pennsylvania law on termination of parental rights and the Adoption
and Safe Families Act ... This act was designed to curb an inappropriate focus on
15
protecting the rights of parents when there is a risk of subjecting children to long
term foster care or returning them to abusive families.
Id. at 478 (citations omitted).
In In re Adoption of S.P .• 47 A.3d 817 (Pa. 2012) the Pennsylvania Supreme Court set
forth the standard to utilize when addressing parent's future period of incarceration:
In line with the expressed opinion of a majority of justices in R.I.S., our prior
holdings regarding incapacity, and numerous Superior Court decisions. we now
definitively hold that incarceration, while not a litmus test for termination, can
be determinative ofthe question of whether a parent is incapable of providing
"essential parental care, control or subsistence" and the length of the remaining
confinement can be considered as highly relevant to whether "the conditions
and causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent," sufficient to provide grounds for termination pursuant
to 23 Pa.C.S. § 2511(a)(2). See e.g. Adoption of J.J., 515 A.2d at 891 ("[A] parent
who is incapable of performing parental duties is just as parentally unfit as one
who refuses to perform the duties."); E.A.P., 944 A.2d at 85 (holding termination
under § 2511(a)(2) supported by mother's repeated incarcerations and failure to
be present for child, which caused child to be without essential care and
subsistence for most of her life and which cannot be remedied despite mother's
compliance with various prison programs).' If a court finds grounds for
termination under subsection (a)(2), a court must determine whether
termination is in the best interests of the child, considering the developmental,
physical. and emotional needs and welfare ofthe child pursuantto § 2511(b). In
this regard, trial courts must carefully review the individual circumstances for
every child to determine, inter alia, how a parent's incarceration will factor into
an assessment of the child's best interest.
In re Adoption of S.P .• 47 A.3d 817, 830-831 (Pa. 2012). In that case the Superior Court had
reversed the trial court, finding that the trial court had given too much weight to the fact that a
parent was incarcerated. The Supreme Court reversed the Superior Court holding:
As applied to this case, we conclude the Superior Court erred in reversing the trial
court's decision to terminate Father's parental rights where that decision was
supported by the record and did not constitute an abuse of discretion or an error of
law. The trial court properly found that Father has been incarcerated since prior to
Child's birth and never provided Child with essential parental care. Accordingly, the
court did not abuse its discretion in concluding that Father's "repeated and continued
incapacity ... caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being." 23 Pa.C.S. §
2511 (a)(2). Moreover, the record supports the trial court's findings regarding the
uncertainty of Father's parole date and that, even upon parole, Father would reside
in a half-way house and would need to obtain housing, employment and
transportation in addition to parenting skills. Accordingly, the trial court did not abuse
16
its discretion when it concluded that "the conditions and causes of the incapacity ...
cannot or will not be remedied" by Father. 23 Pa.C.S. § 2511 (a)(2). Finally, given that
Child did not have a relationship with Father, that Father would not be able to provide
for her, especially considering her special needs, and that Child had a strong bond
with her maternal half-sister, the trial court did not abuse its discretion in concluding
that terminating Father's rights would best serve the -developmental, physical and
emotional needs and welfare" of Child. 23 Pa.C.S. § 2511(b).
In re Adoption of S.P .. 47 A.3d 817, 831 (Pa. 2012). It is important to note that, when
conducting their analysis regarding the effect of Incarceration, the Supreme Court in In
re Adoption of S.P gave consideration to the length of future Incarceration and to the
quality of the existing relationship between the parent and the trial (finding the
relationship was poor thus supporting termination).
In In the Matter of T.O .. 949 A.2d 910 (Pa.Super. 2008), the Superior Court addressed
the standard to apply when a parent is unavailable, the children have a bond and connection
with the parent, and, the children express reluctance to consent to an adoption.
This Court confronted a similar Issue In In re E.M., 908 A.2d 297(Pa.Super.2006), and reversed the trial court's order terminating a mother's
parental rights to her two children. In that case, the trial court determined that
the appellant maintained sporadic contact with her two teenage children during
placement and she failed to perform her parental duties. Id. at 301-302.
Nevertheless, the children, who had maintained emotional bonds with their
mother, desired to reunify and only would consent to adoption If It were a last
resort. Id. at 307. Despite the apparent bond, the trial court found that the
agency had satisfied the statutory requirements of section 2511(a) and section '
2511(b). On appeal, this Court reversed, finding that, under the unique
circumstances of that case, the trial court had abused its discretion In concluding
that termination served the needs and welfare of the children.
In reaching its conclusion, this Court reasoned that, given the children's
ages, fourteen and fifteen, and the requirement of their consent to adoption, the
lack of an identifiable pre-adoptive home, a stable foster home willing to care for
them until they reach majority, and the children's commitment to maintaining
contact with their mother, even in the face of termination, "the reality is these
children most likely will remain in foster care until they reach majority regardless
of the outcome of this case." Id. at 306-07. Specifically, the court found,
"nothing will change whether mother's rights are terminated or not, and the
only thing that will be accomplished by termination is that the children will be
17
true orphans .... [T]he children currently have permanency to the fullest extent
possible under the circumstances." Id. at 309.
Later, in In re K.C.F., 928 A.2d 1046 {Pa.Super.2007), this Court distinguished the
facts of In re E.M. from the facts underlying that case, wherein the appellant
argued that her children's ages, eleven, nine, and eight, and the lack of a pre-
adoptive home would prevent them from being adopted. As the In re K.C.F.
Court observed, unlike the children in In re E.M., the three children at issue in In
re K.C.F., had not yet reached the age where consent was required for adoption,
and two of the children acknowledged that the Mother could not consistently
meet their needs. Id. at 1053. Similarly, while the remaining child preferred to
reunite with his mother, he was not secure in her presence. Id. Accordingly,
noting that the Juvenile Act does not require pre-adoptive placement as a
precondition to termination of parental rights, we found that the mother did not
establish that her children's ages would prevent them from being adopted.
The case at bar aligns with In re K.C.F. rather than In re E.M. Herein, T.D.
is only twelve, and although he must consent to adoption, he still is several years
from reaching the age of majority. Moreover, his foster placement is uncertain.
T.D. has been removed from the pre-adoptive foster home in which he resided
since August 2006, and in stark contrast to the children in In re E.M., the record
does not indicate that his present foster home, the second since being removed
from pre-adoptive care, is committed to caring for him for six years until he is
eighteen. Hence, the unique circumstances *923 that compelled our conclusion
in In re E.M. are absent from this case. As in In re K.C.F., T.D.'s age, loyalty to his
natural parents, and apparent lack of an identifiable pre-adoptive placement will
not automatically preclude him from attaining permanency after parental rights
have been terminated. See In re K.C.F., 928 A.2d 1046. In contrast, however, in
light of Parents' demonstrated inability to provide the minimum level of parental
care, preserving Mother's and Father's parental right, would foreclose any hope
for adoption and condemn T.D. to foster care until he reaches majority.
Accordingly, the court did not abuse its discretion in concluding that termination
best serves T.D.'s needs and welfare.
In the Matter of r,o .. 949 A.2d 910, 922-923 (Pa.Super. 2008).
In In re I,S,M .• 71 A.3d 251 (Pa. 2013), the Pennsylvania Supreme Court discussed at
length the weight to be given to the potential of a child's future adoption if parental rights are
terminated:
Common sense dictates that courts considering termination must also consider
whether the children are in a pre-adoptive home and whether they have a bond
18
with their foster parents. See In re K.M., 53 A.3d at 791. Indeed in cases where
the petitioner is a party standing in loco parentls, the statute requires the party
to file a report of intention to adopt. 23 Pa.C.S. § 2512(a)(3). Likewise, this Court
has noted that a petition to terminate parental rights filed by a biological parent
"is only cognizable when it is accompanied by a prospective stepparent's
intention to adopt the child," noting that "'630 the public policy behind this
provision is to prevent "state-created orphans." In re Adoption of L.J.8., 610 Pa.
213, 18 A.3d 1098, 1107-08 n. 11 (2011) (plurality). Notably, however, the
Adoption Act specifically provides that a pending adoption is not a prerequisite
to termination of parental rights involving agencies such as CYF: "If the petitioner
is an agency it shall not be required to aver that an adoption is presently
contemplated nor that a person with a present intention to adopt exists." 23
Pa.C.S. § 2512(b).
The Superior Court has rejected the suggestion that termination of parental
rights is inappropriate when adoption is not imminent and has allowed
termination even if it results in the child temporarily being without one or both
parents. See In re C. W. U., Jr., 33 A.3d 1, 9 (Pa.Super.2011). Additionally, the
Superior Court has observed that termination may improve the likelihood of
finding an adoptive home. See In the Matter of T.D., 949 A.2d at 922-23. Indeed,
in some cases, a child's bond with a parent, who has proven incapable of caring
for the child, may impede the child's ability to attach to a pre-adoptive family
who can provide the needed care and stability. See Id. at 921; In re J.F., 904 A.2d
at 1216. Nonetheless, the Superior Court has expressed concern for terminating
parental rights absent a pre-adoptive home especially in the case of an older
child, whose consent is needed for adoption, lest the child age out of foster care
without any permanent family. See In the Matter of T.D., 949 A.2d at 922.
Moreover, members of this Court have opined that the existence of a pre-
adoptive home is "an Important factor" in termination cases. In re R.I.S., 614 Pa.
275, 36 A.3d 567, 575 (2011) (Saylor, J., concurring). We have questioned
whether a grant of termination would require that an "agency must intend
subsequent to termination to seek out an adoptive parent." In re Adoption of
L.J.B., 18 A.3d at 1107 n. 8. Indeed, decades ago, we opined in obiter dictum that
an agency may not terminate parental rights absent a contemplated adoption. In
reB.E., 474 Pa. 139, 377 A.2d 153, 155 n. 5 (1977). The Office of Children and
Family in the Courts, however, recently provided direction in the Dependency
*631 Bench book, "While having an identified adoptive resource Is not a
prerequisite for [termination of parental rights], ideally there should be a strong
likelihood of an eventual adoption." Administrative Office of Pennsylvania
Court's Office of Children and Families in the Courts, Pennsylvania Dependency
Benchbook § 12.1 at 126 (2010).
678 As the prior paragraphs reveal, contradictory considerations exist as to
whether termination will benefit the needs and welfare of a child who has a
19
strong but unhealthy bond to his biological parent, especially considering the
existence or lack thereof of bonds to a pre-adoptive family. As with dependency
determinations, we emphasize that the law regarding termination **269 of
parental rights should not be applied mechanically but instead always with an
eye to the best interests and the needs and welfare of the particular children
involved. See, e.g., R.J. T., 9 A.3d at 1190 (holding that statutory criteria of
whether child has been in care for fifteen of the prior twenty-two months should
not be viewed as a "litmus test'' but rather as merely one of many factors In
considering goal change). Obviously, 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. Similarly, while termination of parental rights generally
should not be granted unless adoptive parents are waiting to take a child into a
safe and loving home, termination may be necessary for the child's needs and
welfare in cases where the child's parental bond is impeding the search and
placement with a permanent adoptive home.
9 In weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Children are young for a scant number of years,
and we have an obligation to see to their healthy development quickly. When
courts fail, as we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to dependent children,
*632 requiring vigilance to the need to expedite children's placement in
permanent, safe, stable, and loving homes. ASFA was enacted to combat the
problem of foster care drift, where children, like the children in this case, are
shuttled from one foster home to another, waiting for their parents to
demonstrate their ability to care for the children. See In re R.J. T., 9 A.3d at 1186;
In re Adoption of S.E.G., 901 A.2d at 1019. This drift was the unfortunate
byproduct of the system's focus on reuniting children with their biological
parents, even in situations where it was clear that the parents would be unable
to parent in any reasonable period of time. Following ASFA, Pennsylvania
adopted a dual focus of reunification and adoption, with the goal of finding
permanency for children in less than two years, absent compelling reasons. See,
42 Pa.C.S. § 6301(b)(l); 42 Pa.C.S. § 63Sl(f)(9) (requiring courts to determine
whether an agency has filed a termination of parental rights petition if the child
has been in placement for fifteen of the last twenty-two months).
Considering these statutory purposes, we reject the trial court's suggestion that
"the ultimate exception to ASFA time frames should be until a child finds
meaningful, loving relationships with a family and committed homes are
established." Tr. Ct. Op. at 19. The trial court's suggested exception could
swallow the rule, and permanency could be obstructed in cases where children
have been unable to form healthy bonds with foster families, potentially as a
result of their unhealthy bonds with biological parents who may be undermining
20
their relationship with their foster family. See, e.g. In the Matter of T.D., 949
A.2d at 921; In re J.F., 904 A.2d at 1215-16 (terminating parental rights where
biological parents could not parent child and instead hampered child's ability to
bond with foster family and attain stability).
10 Similarly, we question the trial court's use of concurrent planning in this case.
We commend the trial court for recognizing that concurrent planning Is a best
practice, as it allows agencies to provide families with services in hopes of
reunification while also preparing for the child's potential adoption. Concurrent
**270 planning is especially useful early in *633 the proceedings when it is
unclear whether the parents will be able to learn to parent their children.
Conversely, we caution that concurrent planning should not be used to prolong
instability for children when it becomes clear that parents will be unable to
provide their children's basic needs in the near future. Trial courts' use of
concurrent planning beyond its useful life can create confusion for the children
and potentially increase the difficulty for them to bond with pre-adoptive
parents, thus perpetuating the problem of foster care drift. As Dr. Pepe observed
in her testimony, the child is conflicted "between loyalty to a biological parent
and loyalty to a foster parent, pre-adoptive parent, adoptive parent. When it is
clear to the child that they are in their permanent home, then the conflict can
diminish, which can result in less disruptive behaviors and a greater sense of
security." N.T., 8/31/11, at 107.
While we have no doubt that the trial court In the case at bar acted with full
intention of protecting the needs and welfare of these children in sustaining
their bonds with Mother, we conclude that the denial of termination merely
prolonged and, indeed, exacerbated the harm suffered by the children. The trial
court made valiant efforts to utilize concurrent planning and family group
decision making; however, these efforts were inappropriate in a case such as
this, where, at the time of the termination hearing, Mother had the benefit of
services for over five years without showing the potential of being able to parent
the children in any reasonable period of time.
11 In this case, the children have unhealthy bonds to Mother, who Is seemingly
the root of their manifold psychological and behavioral conditions. Moreover,
Mother appears to be interfering with the children's bonding to their foster
families, resulting In confusion for the children and further delay in permanency
for the children. For example, Ty. M. reported that Mother told him that he
would not be adopted and that his foster brothers "were not his brothers." See
Report of Dr. Pepe, 6/23-30/11, at 5. Dr. Pepe opined that Ty. M. "would
naturally have ambivalence regarding adoption given his age [eight] and level of
attachment to his biological *634 mother but that her comments could serve to
cause increased confusion with the child." Id.
Whether or not the children have current bonds to their foster families, there .
appears to be a "strong likelihood of an eventual adoption." Pennsylvania
21
Dependency Benchbook § 12.1 at 126. Indeed, Dr. Pepe specifically
recommended adoption for Ty. M., Tai. M., and N. M., N.T., 8/31/11, at 102;
Report of Dr. Pepe, 6/23-30/11, at 5; Report of Dr. Pepe, 12/10-2/11, at 31. In
regard to Ti. M., Dr. Pepe did not recommend adoption at the time of the
evaluation, but nonetheless did not recommend reunification and suggested
reduced visitation with Mother. Report of Dr. Pepe, 12/10-2/11, at 28. The
youngest child, Tae. M., previously had a very strong and positive bond with his
pre-adoptive foster mother who, unfortunately, became ill and unable to care
for Tae. M. Report of Dr. Pepe, 12/10-2/11, at 23. While no adoptive home was
present at the time of the hearings, one can presume that a permanent home
will be found for Tae. M, when he is freed for adoption.
Although we defer to a trial court's determination regarding termination when it
is supported by the record, we must reverse the trial court's determination in
this case because we find the court's conclusion to be manifestly unreasonable,
and thus an abuse of discretion. In re Adoption of S.P., 47 A.3d at 826. In relying
upon the **271 mere existence of the bond between Mother and the children,
the trial court failed to recognize the substantial, possibly permanent, damage
done to these children by the prolonged, unhealthy, pathological bond with
Mother, especially as it affected the children's ability to form attachments to
foster families who could have provided the necessary love, care and stability
that these children have so needed for the past decade. We conclude without
hesitation that it best serves their needs and welfare to sever their bond with
Mother permanently, in order to permit them to be placed forthwith into
healthy, permanent homes. Accordingly, we reverse the Superior Court decision
affirming the trial court's denial of termination of parental rights and order the
trial court to enter orders terminating Mother's parental *635 rights as to the
five children before this Court. We expect this to be done promptly, and we
further expect the child welfare agency and court to give this case their utmost
attention so that these children have a chance for normal lives. Jurisdiction
relinquished.
In re T.S.M .. 71 A.3d 251, 268-271 (Pa. 2013).
DISCUSSION:
At the conclusion of the termination hearing all of the attorneys indicated that this Is a
"difficult decision." However, when applicable and controlling authority is applied to the
specific proven facts, it is not. It is an emotionally difficult and charged situation I case, but
22
logically applying the appropriate legal standard to the facts clearly and definitively leads to
termination of both Parents' parental rights.
First, the required statutory factors set forth in 23 Pa.C.S. §2511(a)(1),{2), (S) and (8)
have been demonstrated. Parents, due to criminal convictions, substance use/ abuse
and failure to perform parental duties, have been unavailable for several years. Both
are now incarcerated and will be for at least several more years. Therefore, the only
potential issue requiring further legal analysis is: Will termination of parental rights best
serve the developmental, physical and emotional needs and welfare of the child
(addressing each child's situation separately)? When answering this question we are
required to: "discern the nature and status of the parent-child bond, paying close
attention to the effect on the child of permanently severing the bond." In re C.P .• 901
A.2d 516, 520 (Pa.Super. 2006), as cited by. In re K.C.F., 928 A.2d 1046, 1049 (Pa.Super.
2007).
The holding of our Supreme Court in In re T.S.M. compels termination of parental rights
in this case, including the following:
In weighing the difficult factors discussed above, courts must keep the ticking
clock of childhood ever in mind. Chlldren are young for a scant number of years,
and we have an obligation to see to their healthy development quickly. When
courts fail, as we have In this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past fifteen years, a
substantial shift has occurred in our society's approach to dependent children,
requiring vigilance to the need to expedite children's placement in permanent,
safe, stable, and loving homes.
In re T,S,M .. 71 A.3d 251, 269 (Pa. 2013). After the Supreme Court in In re T.S.M. mandated "courts'' to
consider "the ticking clock of childhood," they chastised the lower court for not doing so:
23
While we have no doubt that the trial court in the case at bar acted with full
intention of protecting the needs and welfare of these children in sustaining
their bonds with Mother, we conclude that the denial of termination merely
prolonged and, Indeed, exacerbated the harm suffered by the children.
In reJ.S.M .. 71 A.3d 251, 269 (Pa. 2013).
Regarding Father the children have a negative bond and negative memories of him. He has very
little contact with the children. He made promises to the court regarding the efforts that he was going
to make upon his release from incarceration. He didn't follow through with any of them. He
immediately began utilizing controlled substances when he was released and Is now serving a lengthy
criminal sentence. Therefore, it is definitely fulfills the needs and welfare of� and his siblings for
Father's parental rights to be terminated.
Mother has been involved in the criminal justice system, consistently and regularly, since 2002.
She had numerous periods of local supervision and attempted rehabilitation that resulted in revocations
and new convictions I sentences. Her criminal activity only ended when she was incarcerated following
the filing of charges in 2016. She has a history of alcohol and drug use/ abuse and mental health
concerns (mental health evaluations required as part of criminal sentences). There Is nothing in the
record indicating that Mother has addressed the drug and alcohol and mental health concerns that
initially led to her previous criminal convictions and difficulties. Mother did testify that she plans on not
falling back Into the destructive patterns .she had been Involved In for at least 14 years prior to 2016.
However, there is no evidence that she has completed any drug treatment or mental health programs
that would support her assertions.
Mother testified that she and her children would go on "outings" before she was
incarcerated, like fishing, camping, swimming, the Erie Zoo. However, this self-serving and rosy
analysis of Mother's care and contact with the children prior to her recent period of
incarceration does not line up with reality. She was frequently out of the home and involved In
24
activities that were destructive and, at times, resulted in criminal charges. She frequently relied
on her mother and others to care for the children. As Dr. von Korf found, J.. and J.B. Jr.
"have no attachment to an adult;" and, "this is very unusual." Dr. von Korf s "central opinion"
was that "these children are insecurely attached to all caregivers in their life;" and, "that
circumstance had to have some root in their life." He found the children to be "avoidant
children" who "rely heavily on self."
The court is in agreement with Dr. von Korfs opinion that "the status quo has to change.
SPLC (subsidized permanent legal custodianship) would just maintain the status quo." The
court accepts this opinion because: It is supported by the facts in this case, the years of
instability the children have already gone through and are potentially facing if a major change is
not made soon; and, it is supported by applicable legal authority and guidance including the
holding in IO re T.S.M .. 71 A.3d 251, 269 (Pa. 2013).
The court recognizes that Parents, and In particular Mother, have and will focus
on the preference of J-.ind J.B. Jr. to reunify with her when she is released from
incarceration; and, the affection they have for her. This assertion is emotional, that two
boys want to be with their mother, of course, pulls on the heart strings. However, this is
a decision that can't be made by emotion and heart strings. It has to be made based on
logic and legal analysis. The fact that these young children want to be reunified with
their Mother was given weight and consideration, but is outweighed by the reality of
the situation. See, In the Matter of T,D .. 949 A.2d 910 (Pa.Super. 2008). Mother has had
difficulty for years and it is unlikely anything will change even if we wait for several more
25
years for her to be released from incarceration.1 The clock here has ticked long enough,
longer than it should have. No outcome is guaranteed, but, at this point, based on the
prior history and the facts and circumstances in this record, by far the best potential for
J :nd his siblings to obtain permanency and stability is to terminate parental rights
and create the possibility of their adoption by the �•••· There is a short window
for taking meaningful action here - and that window is closing rapidly.
WHEREFORE, WE ENTER THE FOLLOWING:
1
The court also finds that the children are motivated and encouraged by Mother, their maternal grandmother,
r I• j who they have frequent contact with, and other family members, to support and accept the goal and
dream of returning to Mother's care. This is further evidence that the status quo is emotionally pulling them in
different directions.
26