Adoption of: M.L.K., Appeal of: N.S.K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: ADOPTION OF: : IN THE SUPERIOR COURT OF
M.L.K.. : PENNSYLVANIA
:
:
APPEAL OF: N.S.K., MOTHER :
:
:
:
: No. 695 WDA 2020
Appeal from the Decree Dated June 12, 2020
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): 2020-209 IVT
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 29, 2020
N.S.K. (“Mother”) appeals from the decree dated and entered June 12,
2020, granting the petition, filed by Cambria County Children and Youth
Service (“CYS” or the “Agency”), seeking to involuntarily terminate Mother’s
parental rights to M.L.K. (“Child”) (born in June of 2017), her minor, female
child with J.S. (“Father”), pursuant to the Adoption Act, 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b).1 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 The trial court involuntarily terminated the parental rights of Mother and
Father (collectively, the “Parents”), on the same date. Father has not
appealed the termination of his parental rights, nor has he filed a brief in this
appeal.
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On February 26, 2020, CYS filed the petition to involuntarily terminate
Mother’s and Father’s parental rights to Child pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b). On March 17, 2020, the trial court
appointed Attorney Suzann Lehmier as Child’s guardian ad litem and legal
interests counsel (“GAL/Counsel”).2 On May 14, the trial court appointed
attorney Sydney Maurer to represent Mother. Father proceeded pro se.
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2 In In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172 (2017) (plurality),
our Supreme Court held that 23 Pa.C.S. § 2313(a) requires the appointment
of counsel to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The Court defined a child’s legal interests
as synonymous with his or her preferred outcome. In In re T.S., 648 Pa.
236, 192 A.3d 1080 (2018) (filed August 22, 2018), the Supreme Court held
that the trial court did not err in allowing the children’s GAL to act as their sole
representative during the termination proceeding because, at two and three
years old, they were incapable of expressing their preferred outcome. The
Court explained, “if the preferred outcome of the child is incapable of
ascertainment because the child is very young and pre-verbal, there can be
no conflict between the child’s legal interests and his or her best interests; as
such, the mandate of Section 2313(a) of the Adoption Act that counsel be
appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a), is satisfied where the
court has appointed an attorney-[GAL] who represents the child’s best
interests during such proceedings.” Id. at 257, 192 A.3d at 1092-1093.
Here, Child was almost three years old at the time of the hearing. The
trial court determined there was no conflict between Child’s legal interests and
best interest. See Trial Court Opinion, 6/12/20, at 1-2. We do not comment
on the quality of the GAL/Counsel’s representation of Child. See In re:
Adoption of K.M.G., 219 A.3d 662, 669 (Pa. Super. 2019) (en banc) (filed
September 13, 2019) (holding that this Court has authority only to raise sua
sponte the issue of whether the trial court appointed any counsel for the child,
and not the authority to delve into the quality of the representation) (affirmed,
___ A.3d___ (Pa., filed November 10, 2020).
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The trial court set forth the following factual background and procedural
history of this appeal.
3. CYS started services in December of 2017 for the following
reasons:
A. [Mother] was then 16 years old and a dependency
petition had been filed in the interest of [Mother] on that
date.
B. [Mother] refused to take her prescribed mental health
medication.
C. [Mother] refused to meet with and cooperate with the
potential service providers.
D. [Mother] was relying upon her caregivers (her great-
grandfather and her mother) to provide basic care for the
child, refusing to take the initiative to do such basic tasks
as feeding the baby or changing her diaper.
E. The bond between [Mother] and the child appeared to
be weak and [Mother] appeared content to have others
care for the child.
F. [Mother] had allowed inappropriate individuals to be
around the child.
G. There were reports that during visits with the child[,
Mother] spoke on the phone with others while others cared
for the child.
H. [Father] lived in Florida and CYS had attempted to make
contact with him without success (Petitioner’s Exhibit 5).
4. Pursuant to a petition averring dependency, the Juvenile Court
held a hearing on January 29, 2018 and issued an order that same
date finding the child to be dependent, placing the child and her
biological mother, a minor, in foster care together in the same
home. The placement goal was return child to parent. [Mother]
was ordered to actively participate, regularly attend, and
successfully complete parenting skills classes and demonstrate
her understanding of the skills and recommendations learned in
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the parenting classes by using them within the home, and she was
to fully cooperate with Teen Parenting, Justice Works Nurturing
Parent, Nulton Diagnostic Family Based, and Northwestern Human
Services. [Father] was, and remained, in Florida and had no
contact with the child.
5. Dennis Kashurba, a licensed psychologist, evaluated [Mother]
on February 19, 2018. The purpose of the evaluation was to
gather information pertinent to ascertaining what types of
services would be appropriate to facilitate the possible
reunification of [Mother] with her infant daughter (at that time
eight months old). After reviewing [Mother’s] records, Mr.
Kashurba noted in his report that:
“In mid-December 2017, [Mother] refused to take the
medication she was prescribed at Nulton Diagnostic. She
was subsequently discharged unsuccessfully from Nulton
Diagnostic. She reportedly had prior trials of
antidepressant medication. Her history is also significant
for engaging in self-mutilation in the form of cutting her
left wrist and forearm. Numerous superficial scars were
observed during the course of the evaluation today. As a
result of these concerns, the custodial grandfather was
described at [sic] being at his “wits end” with [Mother].
This led to his indicating he can no longer control her since
she engaged in tantrum behavior and would sometimes
become physically aggressive to those in the home. Of
additional concern was the interaction and the bond
between [Mother] and [Child], which was described as
being “very minimal” and typically lasted only for short
durations. [Mother’s] tantrum behaviors reportedly
occurred whenever she was not permitted go to her
friend’s house or was requested to do something of a
responsible nature or to refrain from engaging in some
activity.
[Mother] has been the recipient of numerous
interventions, including the aforementioned medication
management at Nulton Diagnostic, as well as Family Based
services through Nulton Diagnostic. However, CYS records
indicate that it was the opinion of the Family[-]Based
service providers that the mother and the child both need
to be placed. Additionally, [Mother] has received services
from Nurse Family Partnership and Justice Works Nurturing
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Parent Program. Both of these have documented that
[Mother] rarely cares for the needs of [Child] and often
hands the child over to others to care for her needs.”
Mr. Kashurba administered several standardized tests to
[Mother]. She has an IQ of 77. Her scores on the standardized
tests showed that she had a normal 9- to 10-year-old
development and within the upper half of the borderline range.
On the Parent Behavior rating scale, the foster mother rated
[Mother] as being significant across all six of the measurements
of that instrument. In his conclusion, Mr. Kashurba opines that
“the total information available at the present time indicates that
[Mother’s] cognitive and academic deficiencies make the
prognosis poor for her learning and independently implementing
appropriate parenting strategies to guarantee the best interests
of her daughter.”
Mr. Kashurba’s diagnostic impressions list Parent/Child
Relational Problem, Relational Problem NOS [Not Otherwise
Specified], Unspecified Disruptive Impulse Control Disorder, High
Expressed Emotional Level within Family, Borderline Intellectual
Functioning, Borderline Personality Traits with Dependent
Features (Petitioner's Exhibit 8).
6. The Juvenile Court conducted a Permanency Review Hearing on
July 25, 2018 and issued its order on August 7, 2018[,]
determining that [Mother] had been only minimally compliant with
the Permanency Plan in that she had not been able to demonstrate
that she was able to independently manage her mental health or
maintain her mental health. Further, she had not been able to
demonstrate that she is learning and maintaining parenting skills.
She had made minimal progress towards alleviating the
circumstances which necessitated the original placement.
. . . The goal remained return to parent with a concurrent
placement plan of adoption.
7. A Permanency Review Hearing was held on December 19, 2018,
with the Juvenile Court’s order entered on January 2, 2019.
Again, the [trial court] found that [Mother] had only minimal
compliance with the Permanency Plan, and had made only minimal
progress towards alleviating the circumstances which necessitated
the original placement. . . . The current placement goal was to
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return the child to parent. The concurrent placement plan for the
child was adoption.
8. Another Permanency Review Hearing was held on June 10,
2019, with the Juvenile Court's order entered on June 19, 2019.
The [trial court] noted that the child appeared to be happy in her
foster home and was bonded to her foster family. Further, [the
court noted] that she was too young to share her views in any
coherent way. This time the [trial court] found that [Mother]
made moderate compliance with the Permanency Plan and that
she now attends visits with her daughter, but still struggles to
effectively care for her. The [trial court] also found moderate
progress towards alleviating the circumstances which necessitated
the original placement as to [Mother].
. . . The child had now been in placement for 17 months.
The [trial court] determined that [Mother] should continue to be
compliant with her mental health treatment at Nulton Diagnostic
and to continue to actively participate, regularly attend, and
successfully complete the parenting skills classes.
9. Mr. Kashurba again evaluated [Mother] on September 23,
2019. After noting [Mother’s] prior treatment at Nulton Diagnostic
and prior diagnoses, he noted a reference to [Mother’s] having
experienced possible dissociative episodes, as well as claiming a
29-year-old alter ego named Sally was responsible for rough
treating of her daughter while in [Mother’s] care. Of particular
note is the April 24, 2018 comment by her treating psychiatrist at
Nulton Diagnostic that she “continues to seemingly dissociate at
times, bordering on psychosis.” The psychiatrist also noted that
she had “significant concerns about her safety around the infant
and the foster mother confirmed she is doing all of the direct
care.”
[Mother] was given the Basic Personality Inventory,
Parenting Stress Index, and Aggression Questionnaire. There
were no significant elevations on the Parenting Stress Index, nor
the Aggression Questionnaire. However, two areas on the
Personality Inventory showed significant elevation: Denial and
Thinking Disorder. Mr. Kashurba noted that this area of elevation
tends to be consistent with some of the aforementioned concerns
from her prior mental health treatment. He noted in his
conclusion that [Mother] has adequate intellectual ability to learn
appropriate parenting strategies to ensure the best interests of
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the child, and at that time appeared to be free of any major
affective spectrum disorder symptomology that had been the case
prior to her resuming psychiatric treatment. He goes on to state:
“Thus, this would seem to be the optimal opportunity
for providing [Mother] with the types of services that will
give her the best opportunity to demonstrate her ability to
function at some time in the future as a primary figure for
her daughter” (Petitioner's Exhibit 9).
***
11. The last Permanency Review Hearing was held on November
27, 2019, with an order entered on December 18, 2019. The
Juvenile Court found that the parents had made only minimal
progress with the Permanency Plan and that neither consistently
attend[ed] visits nor followed through with the services provided.
. . . The placement goal was changed to adoption. The child had
now been in placement for 22 months. The [trial court] further
found that CYS had made reasonable efforts to finalize the
Permanency Plan in effect for this child[,] and that CYS need not
make any further reasonable efforts to return the child to her
parents. The Juvenile Court found that reunification of the child
with her parents was not an appropriate option[,] as it would not
be in the child’s best interest to make further attempts at
reunification.
12. Services rendered to the parents, primarily to [Mother], as
[Father] was for most of this time in Florida, include:
* CYS caseworker services;
* Nulton Diagnostic medication management and
counseling;
* Merakey Family Finding and Engagement;
* Justice Works Nurturing Parenting;
* Merakey foster care;
* Psychological evaluations by Dennis Kashurba;
3).
* Johnstown Christian Home independent living;
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* The Meadows psychiatric hospitalization;
* CYS Social Work Services (Petitioner’s Exhibit 3).
Trial Court Opinion, 6/12/20, at 2-11.
On June 1, 2020 and June 3, 2020, the trial court held evidentiary
hearings on the petition. At the hearing on June 1, 2020, CYS presented the
testimony of Kathy Pitman, CYS social worker; Dennis Kashurba, a
psychologist who testified as a stipulated expert in psychology and who
performed psychological evaluations of the Parents; Brooke Schreyer, the
program director for JusticeWorks Youth Care; Jessica Mills, a CYS social
worker; and Dorothy Wyatt, who is employed by Christian Home of Johnstown
and worked with Mother on everyday living skills. N.T., 6/1/20, at 5, 46-48,
81-82, 99-100, and 115. Father testified on his own behalf, questioned by
the trial court on direct examination. Id. at 123. Mother testified on her own
behalf. Id. at 146.
At the hearing on June 1, 2020, CYS social worker, Ms. Pitman, testified
that Mother: has been unable or unwilling to rectify any of her mental health
needs and adequately be trained in her parenting abilities; does not have
housing for herself; has been unable to care for herself, although she has
become an adult; and has no plan. N.T., 6/1/20, at 29. Ms. Pitman believed
that the severance of any bond between Mother and Child would not
detrimentally impact Child. Id. at 29-30. In fact, Ms. Pitman testified that
severing any bond between Child and Mother would promote Child’s
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developmental, physical and emotional needs, because Child would have
consistency in her life and her pre-adoptive foster family would meet those
needs. Id. at 30. Ms. Pitman testified that Child will have the ability to bond
with her pre-adoptive foster family in the future, as she had been placed with
them for more than two years, and she is currently bonded with the family.
Id.
CYS’s expert psychologist, Mr. Kashurba, testified that Mother has
adequate intellectual ability to learn appropriate parenting strategies. Id. at
67. He stated that Mother appeared to be free from any major affective
spectrum symptomatology that had been the case prior to her resuming
psychiatric treatment. Id. Mr. Kashurba further testified that Mother’s
emotion and behavior appear to have stabilized considerably since she
resumed psychiatric treatment and since Father had returned to Pennsylvania
after living in Florida for a few years. Id. Mr. Kashurba testified that there is
an optimal opportunity to provide Mother with services that would give her
the best opportunity to demonstrate her ability to function at some point in
the future as the primary caregiver for Child. Id. Mr. Kashurba stated that
Mother does not appear to have any drug/alcohol use disorder that would
adversely affect her ability to benefit from the services provided to her. Id.
Mr. Kashurba testified that Mother had a diagnostic impression of parent-child
relational problem, borderline intellectual functioning, and borderline
personality traits. Id. Mother also had a diagnosis, by history of treatment
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at Nulton Diagnostic, of major depressive order, generalized anxiety, and
post-traumatic stress disorder. Id. at 67-68. Mr. Kashurba recommended
Mother should be treated with medication and psychotherapy. Id. Since
Mother has borderline personality features and traits, he also recommended
that Mother should have social skills training. Id. at 68. Further, Mr.
Kashurba recommended that Mother should have intensive outpatient services
including both individual and group therapy on a weekly basis in addition to
the medication. Id. at 69.
On cross-examination by Mother’s counsel, Mr. Kashurba testified that,
when he first evaluated Mother on February 19, 2018, he observed Mother
interact with Child, and that they seemed to be affectionate and to share a
bond. Id. at 77. Mr. Kashurba deferred to the personnel who conducted the
parenting training classes with regard to Mother’s ability to parent Child, and
whether her ability had improved with training, over time. Id. at 75, 78.
JusticeWorks Youth Care program director, Ms. Schreyer, testified that
she worked with Mother and provided family services to her, consisting of
working on parenting, primarily in the goal areas of building a bond with Child,
learning different parenting skills, and having appropriate interactions and
observations, with the assistance of visit coaching. Id. at 82-84. Ms.
Schreyer testified that, when Mother completed the services, Ms. Schreyer
would not have been comfortable leaving Mother with Child if someone were
not there to prompt Mother. Id. at 88-89. Ms. Schreyer testified that Mother
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and Child have a strong bond when they are together for the visitation, but
she is familiar with reports that Mother often misses her phone contact with
Child. Id. at 89. Ms. Schreyer has observed Child with her foster family, and
finds that they meet Child’s needs and that Child is bonded with them. Id.
Ms. Schreyer opined that the termination of Mother’s parental rights is
in Child’s best interests. Id. at 89-90. Ms. Schreyer opined that, when she
worked with Mother, there were still areas that remained for Mother to address
and work on before Mother could multi-task and have full-day visits with Child,
let alone safely and successfully parent Child on her own. Id. at 90.
CYS social worker, Ms. Mills, testified that Parents had goals of
increasing parenting skills; obtaining housing; and improving decision-making
skills. Id. at 100. Prior to the goal change hearing, Ms. Mills scheduled
sixteen supervised visits and fourteen social work sessions with Mother, but
Mother attended only eleven visits and eight social work sessions. Id. Ms.
Mills utilized the parent-child interaction model known as the “Safe Care
Program”. Id. at 101. This module has a goal of learning basic hands-on
parenting skills to increase positive interactions with Child and increase
Parents’ bond with Child by teaching new ways to help Child learn, grow, and
develop. Id. at 101-102. Mother was able to provide basic hands-on
parenting, such as changing Child’s diaper and comforting Child when she was
crying, but she had difficulty in decision-making for Child’s daily activities,
such as planning ahead. Id. at 102. Mother also had difficulty focusing on
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Child for an extended period of time, such as following Child to Child’s next
activity. Id. at 102-103.
Ms. Mills stated that the level of parenting ability that Mother
demonstrated while she worked with Mother did not reflect the level of
parenting ability Ms. Mills would have expected, given Mother’s prior parenting
training. Id. at 103. Ms. Mills testified that Mother appeared to have the
ability to use basic hands-on parenting skills and was able to comfort Child
when Child was crying, and there appeared to be a bond between Child and
Mother; however, ongoing extensive parenting was difficult for Mother, as she
had difficulty in focusing on Child. Id. at 104. Ms. Mills testified that Child
would not be safe in Mother’s care, because Mother would have difficulty
caring for Child on an extended basis and required prompting from Ms. Mills
in caring for Child during the two-hour visits. Id. at 104-105. Mother did not
bring the necessary materials with her when she attended the visits. Id. at
105. Mother had difficulty retaining the skills she learned from week-to-week,
as well as difficulty answering open-ended questions regarding why particular
skills were important. Id.
Ms. Mills testified that Mother did not have the level of ability to make
progress in a reasonable amount of time, given her extensive training prior to
working with Ms. Mills and her lack of motivation to show up to visits and to
practice her skills while working with Ms. Mills. Id. at 106-107. Although Ms.
Mills noted that Mother and Child are bonded to some degree, she opined that
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the termination of Mother’s parental rights was in Child’s best interests and
that Child would not be emotionally harmed. Id. at 107.
Next, Dorothy Wyatt, of Christian Home of Johnstown, testified
regarding her work with Mother in the independent living program. Id. at
115. Ms. Wyatt stated that, in particular, she focused with Mother on possibly
pursuing post-secondary education and securing housing. Id. at 115-116.
Ms. Wyatt testified that, while Mother was in foster care, Ms. Wyatt met with
her twice a month, but, when Mother was no longer in foster care, she met
with Mother only once a month. Id. at 116. During the entire time while Ms.
Wyatt met with Mother, Mother did not obtain a job or housing, and Mother
did not establish that she could parent a child. Id. at 117-118. Mother only
showed an interest in working with Ms. Wyatt in August and September of
2019, and, after that date, Ms. Wyatt did not have any more contact with
Mother, despite her attempts to continue to work with Mother. Id. at 117-
120.
At the hearing on June 3, 2020, the trial court heard the remainder of
Mother’s testimony. During her testimony, Mother raised serious allegations
regarding an adult male. Id. at 29-39. CYS then presented the testimony of
Melissa Raho, the CYS social work supervisor, concerning what CYS would do
to address and investigate Mother’s allegations which, to her knowledge,
Mother was raising for the first time. N.T., 6/3/20, at 39-41. Ms. Raho stated
that CYS would investigate the allegations per its protocol. Id. Mother’s
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counsel requested the trial court take her allegations into consideration and
stay its decision on the petition until an investigation was concluded. Id. at
42-43. At the close of the hearing, the GAL/Legal Counsel recommended that
the Parents’ paternal rights to the almost three-year-old Child should be
terminated so that Child may be adopted by her foster family, with whom she
has lived for almost two and a half years and is bonded, and have permanency
and stability in her life. Id. at 47-49. The GAL/Legal Counsel stated that the
termination of Mother’s parental rights would not be detrimental to Child’s
emotional welfare. Id. The court declined Mother’s request to stay the
proceedings, and asked counsel to keep it apprised of any developments. Id.
at 49.
In the decree entered on June 12, 2020, the trial court terminated the
Parents’ parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (a)(2), (5), (8),
and (b). On July 10, 2020, Mother filed a notice of appeal, along with a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
In her brief, Mother raises the following issues:
A. Whether the [t]rial [c]ourt erred as a matter of law and/or
manifestly abused its discretion in determining the Agency
sustained its burden of proving the termination of Natural Mother,
N.S.K.’s, parental rights is warranted under Sections 2511(a)(1),
2511(a)(2), 2511(a)(5) and/or 2511(a)(8) of the Adoption Act?
B. Whether the [t]rial [c]ourt erred as a matter of law or abused
its discretion by terminating the natural mother’s rights before the
completion of an investigation into an allegation which was
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revealed during the hearing and which directly relates to the
reason the natural mother and child were initially separated?
Mother’s Brief, at 7.
In her brief, Mother argues:
[T]he Agency failed to establish the statutory factors necessary to
terminate her parental rights pursuant to Sections 2511(a)(1),
2511(a)(2), 2511(a)(5) and/or 2511(a)(8) of the Adoption Act by
clear and convincing evidence. Even in the event this Court were
to conclude the Agency established grounds for the termination of
Mother’s parental rights pursuant to the Adoption Act, Mother
argues the [t]rial [c]ourt nevertheless erred in concluding the best
interests of the Child would be served by terminating her parental
rights.
Mother also argues the [t]rial [c]ourt erred as a matter of
law or abused its discretion by terminating Mother’s parental
rights before the completion of an investigation into an allegation
which was revealed during the hearing and which directly relates
to the reason the natural mother and child were initially
separated.
Mother requests that the [t]rial [c]ourt’s decision
terminating her parental rights be reversed and, upon the
conclusion of the investigation by Agency of the allegation made
by the [m]other, the record be updated.
Mother’s Brief, at 11, 14.
Mother challenges the trial court’s conclusion with regard to section
2511(b), stating:
Even in the event this Court were to conclude the Agency
established one (1) or more statutory grounds to support the
termination of Mother’s parental rights, the Agency failed to
demonstrate the best interests of the [c]hild would be served by
terminating Mother’s parental rights at this time. In the instant
case, the [C]ourt should be guided by the fact that there was not
any evidence presented which disputes the fact that the [c]hild
has a bond with the [m]other. Mother is pregnant with another
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child and she desires to be reunified with the [c]hild [M.L.K.] and
maintain a family bond.
The [m]other has experienced many issues which have
impeded her efforts at reunification. However, Mother has stable
housing and her mental health has improved, all of which were
the primary reasons which lead [sic] to the [c]hild being removed.
When Mother has been able to attend visits with the child, she was
attentive to her needs and tended to her needs. Agency witness,
Jessica Mills, testified that Mother exhibited basic hands-on
parenting skills (T. 104). There was no testimony offered to
dispute the bond that the [c]hild has with Mother. To the contrary,
several of Agency witnesses testified that there is a bond between
Mother and Child. The Agency failed to meet its burden to
establish that Mother does not have a bond with the [c]hild.
Furthermore, the [t]rial [c]ourt failed to fully consider the effect
terminating Mother’s parental rights will have on the emotional
needs and welfare of the [c]hild pursuant to Section 2511(b).
Accordingly, even if this Court concludes the Agency established
one or more statutory grounds terminating Mother’s parental
rights, the [t]rial [c]ourt nevertheless erred in concluding the
termination of Mother’s rights serves the needs and welfare of the
[c]hild. Mother contends that it is in the [c]hild’s best interest to
be reunified with Mother and to establish a relationship with her
sibling.
Id. at 22-23.3
Moreover, with regard to the second issue in her brief, Mother asserts
that, in her testimony on June 3, 2020, she raised serious allegations involving
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3 We find the issue regarding section 2511(b) discussed in Mother’s brief was
not subsumed into the first issue in her concise statement and statement of
questions involved, which specified CYS’s failure to sustain its burden of proof
with regard to section 2511(a)(1), (2), (5), and (8). Thus, Mother waived any
challenge to section 2511(b) for our review. See Krebs v. United Refining
Co., 893 A.2d 776, 797 (Pa. Super. 2006) (stating that a failure to preserve
issues by raising them both in the concise statement of errors complained of
on appeal and statement of questions involved portion of the brief on appeal
results in a waiver of those issues); see also In re W.H., 25 A.3d 330, 339
n.3 (Pa. Super. 2011); see also In re M.Z.T.M.W., 163 A.3d 462, 465-66
(Pa. Super. 2017).
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an adult male. Mother claims these allegations are the basis for her emotional
outbursts and her subsequent admission into a psychiatric facility and
separation from Child. Mother states that she reported the incident to a social
worker, Kristin Caro, but the Agency’s witness, Melissa Raho, testified that
she was never made aware of the allegations. Mother’s Brief, at 24 (citing
N.T., 6/3/20, at 40).
In reviewing an appeal from an order 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., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; R.I.S., [614 Pa. 275,
284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has
been often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634
(Pa. 2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at 28-
30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency and
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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, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
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).
Moreover, we have explained, “[t]he 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 termination of parental rights if
any one subsection of section 2511(a) has been satisfied. See In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we focus on section
2511(a)(2) and (b), which provides:
§ 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:
***
(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
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for his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights of a
parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511.
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence necessary for his physical or mental well-
being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272
(Pa. Super. 2003). The grounds for termination of parental rights under
section 2511(a)(2), due to parental incapacity that cannot be remedied, are
not limited to affirmative misconduct; to the contrary those grounds may
include acts of refusal as well as incapacity to perform parental duties. In re
A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
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This Court has stated “once the statutory grounds for termination have
been met under [s]ection 2511(a), the [trial] court must consider whether
termination serves the needs and welfare of the child, pursuant to [s]ection
2511(b).” See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc).4 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. In reviewing the evidence in support of termination under section
2511(b), our Supreme Court has stated 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. § 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., [533
Pa. 115, 121, 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.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, section 2511(b) does not require a formal bonding
____________________________________________
4 Although Mother waived any challenge to the termination of her parental
rights under section 2511(b), as part of our two-tiered analysis, we will,
nevertheless, discuss the termination under that section to demonstrate that,
even if Mother had not waived any challenge, CYS satisfied its requirements.
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evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
direct observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
Here, the trial court addressed both of Mother’s issues together, as
follows:
13. A representative of Justice Works Youth Care[, Ms. Schreyer,]
testified concerning a Justice Works report for services rendered
in 2019. Justice Works began providing services in December of
2018. In their report, the referral listed multiple goal areas for
[Mother] all involving around the concern that [Mother] was
refusing to parent [Child].
“It has also been shared that [Mother] had once again
stopped taking medication, was not attending school,
would not allow any suggestions on parenting, and often
left home without [Child] to go see friends sometimes for
days.”
[Mother] was able to accomplish various goals. At times she
would be able to provide a safe, productive visit with the child
without prompting. Other times she would need assistance with
being able to fully parent the child. Multitasking proved to be very
difficult for [Mother]. [Mother’s] mental health was a noted area
of concern during the review period, as it was believed to
progressively decline. There were various times where [Mother]
was encouraged to explore a deeper level of commitment to her
mental health sessions, as she had shown continuing signs of her
mental health deteriorating. When asked if she felt she was
experiencing similar signs of depression or other diagnoses, she
would disclose that “she felt fine” (Petitioner’s Exhibit 10).
14. CYS had provided services through one of its social workers[,
Ms. Mills,] through a training curriculum called “Safe Care.” In
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her report to the [trial court] (Petitioner’s Exhibit 11), the worker
noted that both [Father] and [Mother] were often unprepared for
their sessions as they frequently did not bring their Safe Care
binders and frequently verbalized that they had not participated
in the skills they were to be learning between sessions. . . . The
report notes that [Mother] appeared to have significant cognitive
limitations such as diminished memory, delayed mental
processing, and difficulty problem-solving. The social worker was
in agreement with CYS’ recommendation of goal change to
adoption.
15. Services were also provided to [Mother] and [Father] through
the Independent Living Program overseen by The Christian Home
of Johnstown, Inc.[, Ms. Wyatt]. Of special note is a comment in
the report December 2019 through January 2020, which says:
“Client made no contact with Case Manager for the month
of January. Case Manager attempted to attend Client’s
visit with minor child to sign paperwork and give stipends
to the client, but the social worker informed the Case
Manager that the Client canceled and was moving to
Florida” (Petitioner's Exhibit 12).
16. The [trial court] feels sorry for this young couple. They, as
many of the parents who find themselves in involuntary
termination court proceedings, never had a chance, then[,] when
given an opportunity through CYS services[,] they are unable to
take advantage of those services. They love their child, but
cannot provide for the child. [Mother] testified to serious
allegations concerning an adult male. The [trial court] has been
assured that the allegations are being checked out by CYS.
Notwithstanding those allegations, the fact remains that the child
has not been in the custody of [Mother] since the child was eight
months old. . . . [Mother] has no job, no independent living, and
cannot be left alone with the child. . . .
17. In the [trial court’s] opinion, this child needs support and
affection and an opportunity to flourish. She is doing well in foster
care.
18. [CYS] has established a legal basis for terminating the
parental rights of . . . [Parents].
***
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20. There is conflicting testimony as to a bond between [Mother]
and her child. . . . Even though there is some type of a bond
between [Mother] and her child, there is testimony that severing
that bond will not have a detrimental effect on the child.
21. In terminating the parental rights of these [p]arents, this
[c]ourt has found this will best meet the developmental, physical,
and emotional needs and welfare of the child.
***
Trial Court Opinion, 6/12/20, at 11-15.
After a careful review of the record, this Court finds the trial court’s
decision to terminate the parental rights of Mother under section 2511(a)(2)
and (b) is supported by competent, clear and convincing evidence in the
record. In re Adoption of S.P., 616 Pa. at 325-326, 47 A.3d at 826-827. In
so finding, we have carefully reviewed the testimony of Ms. Pitman, Ms.
Schreyer, Ms. Mills, and Ms. Wyatt, as well as Mr. Kashurba, as set forth
above. There was competent evidence in the record from which the trial court
could have concluded that CYS proved, by clear and convincing evidence, that
Mother demonstrated: (1) repeated and continued incapacity, abuse, neglect
or refusal to parent; (2) such incapacity, abuse, neglect or refusal caused
Child to be without essential parental care, control or subsistence necessary
for her physical or mental well-being; and (3) the causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied. See In re Adoption
of M.E.P., 825 A.2d at 1272.
Moreover, although there was conflicting testimony regarding the
existence of a bond between Child and Mother, as noted by the trial court, the
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trial court did not abuse its discretion or commit an error of law in determining
that the severance of any bond that existed would further Child’s
developmental, physical, and emotional needs and welfare, and, thus, would
further Child’s best interests, and would not be detrimental to Child. Our
Supreme Court has stated that the mere existence of a bond or attachment
of a child to a parent will not necessarily result in the denial of a termination
petition, and that “[e]ven the most abused of children will often harbor some
positive emotion towards the abusive parent.” See In re: T.S.M., 620 Pa. at
627, 71 A.3d at 267 (quoting In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super.
2008)). The Supreme Court stated, “[t]he continued attachment to the
natural parents, despite serious parental rejection through abuse and neglect,
and failure to correct parenting and behavior disorders which are harming the
children cannot be misconstrued as bonding.”) See In re: T.S.M., 620 Pa. at
629, 71 A.3d at 267 (quoting In re Involuntary Termination of C.W.S.M.,
839 A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J. dissenting)). Thus, had
Mother preserved a challenge to section 2511(b), we would find that the trial
court properly ruled that CYS met its burden with regard to section 2511(b).
In re: T.S.M., 620 Pa. at 628-629, 71 A.3d at 267.
Finally, Mother’s allegations of abuse by an adult male, made, for the
first time, to the knowledge of CYS witness Ms. Raho, during the testimony at
the second day of the hearing on the termination petition, was to be afforded
due consideration by the trial court, and considered, if the CYS investigation
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bore out that Mother’s allegations had merit. We find that the trial court did
not commit an abuse of discretion or an error of law in terminating Mother’s
parental rights despite CYS’s opening of an investigation into Mother’s new
allegations, especially since there has been no showing that the allegations
were founded.
While Mother may claim to love Child, a parent’s own feelings of love
and affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We stated in In re Z.P.,
a child’s life “simply cannot be put on hold in the hope that [a parent] will
summon the ability to handle the responsibilities of parenting.” Id. at 1125.
Rather, “a parent’s basic constitutional right to the custody and rearing of his
child is converted, upon the failure to fulfill his or her parental duties, to the
child’s right to have proper parenting and fulfillment of his or her potential in
a permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856
(Pa. Super. 2004). Accordingly, we affirm the trial court decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2020
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