In Re: E.H., a minor, Appeal of: R.H. ( 2015 )

J. A29015/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.H., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.H., BIRTH MOTHER, : No. 966 WDA 2015
:
Appellant :
Appeal from the Order Entered May 12, 2015,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-000031-2015
IN RE: L.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.H., BIRTH MOTHER, : No. 967 WDA 2015
:
Appellant :
Appeal from the Order Entered May 12, 2015,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-000033-2015
IN RE: R.-J.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.H., BIRTH MOTHER, : No. 968 WDA 2015
:
Appellant :
Appeal from the Order Entered May 12, 2015,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. CP-02-AP-000032-2015
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
J. A29015/15
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 30, 2015
In these consolidated appeals, R.H. (“Mother”) appeals from the orders
in the Allegheny Court of Common Pleas that involuntarily terminated her
parental rights to three children, E.H., a male, born in December of 2007;
L.K., a female, born in October of 2011; and R.-J.K., a male, born in
November of 2010 (collectively, “the Children”). Upon careful review, we
affirm.1
We summarize the factual and procedural history as follows. The
Allegheny County Office of Children, Youth and Families (“CYF”) first became
involved with this family as a result of allegations by Mother that R.K., the
father of L.K. and R.-J.K., hit Mother’s son, E.H., in the ear, causing it to
bleed. (Trial court opinion, 7/10/15 at 4.) E.H. was adjudicated dependent
on August 10, 2012, but he remained in Mother’s physical custody.
The Children were placed in kinship care with their maternal
grandmother by a shelter care order dated February 15, 2013, due to
1
In separate orders, the orphans’ court involuntarily terminated the parental
rights of R.O.B., the natural father of E.H., and of any unknown father.
R.O.B. did not file a notice of appeal, and he is not a party to Mother’s
appeals. Further, the orphans’ court denied the petitions for the involuntary
termination of the parental rights of R.K., the natural father of L.K. and
R.-J.K. The guardian ad litem (“GAL”) filed notices of appeal, the
dispositions of which are by separate memorandum. The GAL has filed an
appellee brief in the instant appeals, wherein it argues in support of the
orders involuntarily terminating Mother’s parental rights.
-2-
J. A29015/15
Mother’s incarceration at the Allegheny County Jail.2 The shelter care order
directed that the Children be returned to Mother’s care upon her release
from jail. Mother was released on February 20, 2013, but she informed CYF
that she was not able to resume care of the Children. (Trial court opinion,
7/10/15 at 5.) L.K. and R.J.-K. were adjudicated dependent on March 6,
2013. At that time, CYF removed the Children from the home of their
grandmother and placed them in kinship care with their maternal aunt,
where they resided at the time of the subject proceedings.
CYF established the following Family Service Plan (“FSP”) goals for
Mother: to maintain sobriety; stabilize mental health; eliminate verbal and
physical abuse in the family; obtain and maintain appropriate housing;
participate in a parenting program; maintain contact and cooperation with
CYF; and maintain the financial demands of daily living. (Notes of
testimony, 4/10/15 at 16.) In addition, CYF scheduled supervised visits,
which Mother has been “relatively consistent” in attending. (Id. at 25.)
On February 4, 2015, CYF filed petitions for the involuntary
termination of the parental rights of Mother and the Children’s respective
fathers pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). A
2
Mother testified on cross-examination by counsel for CYF that she was
incarcerated for “[a] speeding ticket that turned into a warrant.” (Notes of
testimony, 4/10/15 at 135.) In addition, the record reveals a criminal
history for Mother including being convicted of the crime of endangering the
welfare of children following an incident in January of 2011, when she was
driving with a suspended license while E.H. and R.-J.K. were in the car.
Further, marijuana was found in the car. (Id. at 7-8.)
-3-
J. A29015/15
hearing on the petitions occurred on April 10, 2015, during which CYF
presented the testimony of its caseworker, Sharon Martin, and
Neil Rosenblum, Ph.D., who performed psychological evaluations. Mother
testified on her own behalf. R.K., the father of L.K. and R.-J.K., testified on
his own behalf, and he presented the testimony of David Richardson, the
program director at the Center for Family Excellence.
By orders dated May 12, 2015, the orphans’ court granted the
petitions for the involuntary termination of Mother’s parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). The orphans’ court
accompanied the subject orders with 19 findings of fact. On June 22, 2015,
Mother filed notices of appeal and concise statements of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this court
consolidated sua sponte.3 The orphans’ court filed its Rule 1925(a) opinion
on July 10, 2015.
On appeal, Mother presents the following issue for our review:
1. Did the [orphans’] court abuse its discretion
and/or err as a matter of law in concluding that
3
A notice of appeal must be filed within 30 days after entry of the order
from which the appeal is taken. See Pa.R.A.P. 903(a). Rule 108(b)
provides that the date of entry of an order is “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)”. Pa.R.A.P. 108(b). In this case,
there is no date of entry on the certified docket of the subject orders. As
such, the appeal period has not been triggered, and therefore, Mother’s
appeals are timely. See In re L.M., 923 A.2d 505 (Pa.Super. 2007)
(declining to quash appeal as untimely where the docket does not show that
notice of entry of involuntary termination of parental rights order was
given).
-4-
J. A29015/15
CYF met its burden of proving by clear and
convincing evidence that termination of
Mother’s parental rights would best serve the
needs and welfare of the [C]hildren pursuant
to 23 Pa.C.S.[A.] § 2511(b)?
Mother’s brief at 9.
We consider Mother’s issue mindful of our well-settled standard of
review.
[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 (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 [(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 (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
-5-
J. A29015/15
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 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, 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent.
The party seeking termination must prove by clear
and convincing evidence that the parent’s conduct
satisfies the statutory grounds for termination
delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants
termination of his or her parental rights does the
court engage in the second part of the analysis
pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of
best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and
status of the emotional bond between parent and
child, with close attention paid to the effect on the
child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
The relevant provisions of Section 2511 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:
-6-
J. A29015/15
....
(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.
....
(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 the 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
-7-
J. A29015/15
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.
(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), (5), (8), and (b).
Instantly, Mother does not raise an issue with respect to
Section 2511(a). Rather, her sole issue on appeal relates to
Section 2511(b). Mother argues that the testimony of Dr. Rosenblum and
her own testimony demonstrates that a bond exists between her and the
Children. Further, Mother argues that terminating her parental rights will
not serve the Children’s needs and welfare because it will end all visits
between her and the Children. Further, with respect to L.K. and R.-J.K.,
Mother asserts that they are not eligible for adoption since their father’s
parental rights have not been terminated. As such, Mother argues there will
be no possibility of continued visits in the form of post-adoption contact
-8-
J. A29015/15
between her and L.K. and R.-J.K. Upon careful review, we reject Mother’s
assertions.
With respect to Section 2511(b), this court has described the requisite
analysis as follows:
Subsection 2511(b) focuses on whether termination
of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa.Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).
In considering the affection that a child may hold for his or her natural
parents, this court has explained:
[C]oncluding a child has a beneficial bond with a
parent simply because the child harbors affection for
the parent is not only dangerous, it is logically
unsound. If a child’s feelings were the dispositive
factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare
child who, after being subject to neglect and abuse,
is able to sift through the emotional wreckage and
completely disavow a parent. . . . Nor are we of the
opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or
-9-
J. A29015/15
when considered in connection with a child’s feeling
toward a parent, to establish a de facto beneficial
bond exists. The psychological aspect of parenthood
is more important in terms of the development of the
child and its mental and emotional health than the
coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa.Super. 2008) (internal citations and quotation
marks omitted).
In this case, Dr. Rosenblum performed individual psychological
evaluations of the Children and Mother. He testified on direct examination
that E.H., age seven at the time of the subject proceedings, “maintains a
strong relationship and an attachment to” Mother. (Notes of testimony,
4/10/15 at 59.) Dr. Rosenblum did not testify with respect to the existence
of a bond between Mother and L.K. or R.-J.K., then ages three and four.
Dr. Rosenblum recommended on direct examination that “a goal of
adoption is consistent with [the Children’s] needs and welfare.” (Id. at 76.)
He continued:
Q. And do you believe . . . if the parents’ rights
are terminated, that that would have a
significant negative impact on the [C]hildren?
A. I think it’s going to have an impact on [E.H.].
I can’t say significant negative impact. I think
he looks forward to his visits with his
mother. . . . At this time they are occurring
once a week. And I would recommend if the
[c]ourt does move toward a termination of
parental rights that the [C]hildren do have
some continued contact with parents that
would be at least once a month for a few
months, because . . . I don’t see [R.-J.K.] or
[L.K.] being affected, but I think [E.H.] is
- 10 -
J. A29015/15
going to need some time to work through the
separation.
Id. Dr. Rosenblum further clarified on cross-examination by Mother’s
counsel:
Q. [] [S]hould mother’s rights be terminated, you
felt that there should still be some contact for
at least a few months[?]
A. Well, at least for a few months. I mean, to be
perfectly honest, I . . . would like to see
mother have ongoing contact, period. I mean,
this is her family. . . .
She has such strong parenting skills that I
think it would be a shame if they can’t work
something out where she can continue to see
her children. She loves them, and she’s good
with them. The fact that she can’t take care of
them is unfortunate, but I believe they will
benefit from having a continued relationship
with her. And I would recommend that that be
explored.
Id. at 79-80.
Mother testified on direct examination:
Q. What effect do you think it would have on
these children if your visits ended?
A. It would be astronomically detrimental for all
of my children to not have that contact with
. . . me . . . .
Id. at 130.
In its Rule 1925(a) opinion, the orphans’ court found that a bond
exists between Mother and the Children. (Trial court opinion, 7/10/15 at
12.) The court stated that it considered Dr. Rosenblum’s recommendation
- 11 -
J. A29015/15
for continued visits between Mother and the Children. (Id.) In addition, the
court considered Dr. Rosenblum’s belief that Mother “has intuition with
respect to parenting.” (Id. at 11.) Nevertheless, the court found that
Mother “has shown no desire to be consistent.” (Id.) Further, the orphans’
court found that “Mother was unable to parent, as she failed to comply with
the goals established in the Family Service Plans.” (Id.) Significantly, the
court found that Mother has not remedied her addiction to illegal drugs, and
that her housing has not been consistent. (Id.) The court concluded that
“Mother’s continued behavior alone has caused the [C]hildren to be out of
her care[,]” and that the Children deserve stability and permanency.
Upon careful review, we discern no abuse of discretion by the orphans’
court in concluding that, despite the Children’s bond with Mother,
terminating her parental rights will serve the developmental, physical, and
emotional needs and welfare of the Children pursuant to Section 2511(b).
See In re Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa.Super. 2015)
(concluding that the mother’s bond with her child was outweighed by the
mother’s “repeated failure to remedy her parental incapacity,” and by her
child’s need for permanence and stability). Further, we reject Mother’s
argument regarding the impossibility of her having post-adoption contact
with L.K. and R.-J.K. because their father’s parental rights have not been
terminated. Even if L.K. and R.-J.K. were available for adoption,
consideration of post-adoption contact is speculative and not relevant to the
- 12 -
J. A29015/15
Section 2511(b) analysis. In this case, the testimony of Dr. Rosenblum set
forth above supports the termination of Mother’s parental rights pursuant to
Section 2511(b) with respect to L.K. and R.-J.K. Accordingly, we affirm the
orders involuntarily terminating Mother’s parental rights.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2015
- 13 -