In the Interest of:J.B. minor, Appeal of: M.J.A.G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: M.J.A.G., MOTHER : No. 1135 WDA 2017
Appeal from the Decree June 28, 2017
in the Court of Common Pleas of Blair County,
Orphans’ Court at No(s): 2017 AD 8
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 26, 2018
M.J.A.G. (“Mother”) appeals from the Decree terminating her parental
rights to her son, J.B. (“Child”). We affirm.
Child was born to Mother and Father1 on June 21, 2015. Father’s
daughter from a different relationship, A., also lived with the couple. A. was
removed from the home after she had suffered an untreated cigarette burn
from Father. During an investigation by Blair County Children, Youth and
Families (“CYF”), it was discovered that Child had a fungal infection in his
diaper area and pneumonia, both of which were untreated. The conditions
in the home were poor, with roaches, bed bugs and lice being found. Child
also was removed from the home.
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1Father, whose parental rights also were terminated, is not a party in these
proceedings.
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CYF first placed A. and Child (“the children”) with Father’s half-
brother, D.H., but the children were later moved to the home of the McG’s.2
Initially, the permanency goal for Child was reunification. Mother was
identified as needing assistance with housing, mental health, drug and
alcohol treatment and relationship issues.
On March 22, 2017, CYF filed a Petition to terminate Mother’s parental
rights, and to change Child’s permanency goal from reunification to
adoption. On May 28, 2017, in addition to considering CYF’s Petition, the
orphans’ court conducted a combined 12-month and 15-month review
hearing. The orphans’ court summarized what next occurred as follows:
At the combined 12-month and 15-month Permanency Review
on May 28, 2017, [the orphans’ court] received testimony that
Mother had not established housing and[,] in fact[,] had changed
her housing as she moved in and out of relationships with
various men. Mother had terminated her mental health care
from Primary Health Network to co-occurring services at the
Home Nursing Agency. Chrystal Price[,] of Home Nursing
Agency[,] testified that Mother’s poor attendance resulted in her
termination from the co-occurring and relationship skills group
(which [Mother] started in December 2016), and her individual
counseling attendance was at 60%. Mother had almost perfect
attendance with reunification service visits with [Child], circles of
security and a safety class. However, the reunification worker,
Krista Gorman [(“Gorman”)], testified that despite their
numerous discussions to problem solve, [and] Mother’s
attendance at Mental Health and Drug and Alcohol, Mother could
not balance her treatment and work responsibilities. [Gorman]
testified that Mother’s moods and capacities fluctuated with the
ups and downs of her various male relationships[,] which
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2Later, A. was found not to be dependent, and moved to Williamsport with
her mother.
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changed frequently. [] Gorman also testified that Mother had
stopped taking her medications as prescribed and even failed to
fill [the prescriptions]. Mother continued to utilize marijuana to
self-medicate[,] and could not establish enough Mental Health
Treatment to stop the cycle. [] Gorman testified that Mother
struggles to take responsibility for her decisions and actions and
prefers to see herself as a victim of others and/or
circumstances[,] so any change in behavior is not possible or
necessary with that perspective. Although Mother has better
personal stability when in a male relationship, the relationship is
not sustained and the cycle repeats itself. Mother does not have
the ability (or willingness) to see how that change and chaos
would affect the well-being and permanency of [Child], as a
young developing child.
Orphans’ Court Opinion, 8/25/17, at 4-5. Additionally, the orphans’ court
found that Mother had not attended any of Child’s doctor visits, and had not
called regularly. Id.
After that hearing, the orphans’ court changed Child’s permanency
goal to adoption. On June 28, 2017, the orphans’ court conducted a hearing
on CYF’s termination Petition. Following the hearing, the orphans’ court
terminated Mother’s parental rights to Child pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), (8), and (b). Mother filed a timely Notice of Appeal and a
Concise Statement of matters complained of on appeal.
Mother presents the following claims for our review:
I. Whether the [orphans’] court erred and/or abused its
discretion when it found clear and convincing evidence
existed to terminate [Mother’s] parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(2)?
II. Whether the [orphans’] court erred and/or abused its
discretion when it found clear and convincing evidence
existed to terminate [Mother’s] parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(8)?
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III. Whether the [orphans’] court erred and/or abused its
discretion when it found clear and convincing evidence
existed to terminate [Mother’s] parental rights pursuant to
23 Pa.C.S.A. § 2511(b)?
Brief for Appellant at 4.
We begin with our standard of review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the [orphans’] court if they are
supported by the record. If the factual findings are supported,
appellate courts review to determine if the [orphans’] court
made an error of law or abused its discretion. A decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.
The [orphans’] court’s decision, however, should not be reversed
merely because the record would support a different result. We
have previously emphasized our deference to [orphans’] courts
that often have first-hand observations of the parties spanning
multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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 [subsection]
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
[subsection] 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
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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).
Relevant to our review, 23 Pa.C.S.A. § 2511 provides, in pertinent
part, 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:
* * *
(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.
* * *
(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….
23 Pa.C.S.A. § 2511(a)(2), (b).
Mother first argues that the orphans’ court improperly terminated her
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2). Brief for Appellant at
12. According to Mother, Child originally was removed from her care
because he was suffering from severe diaper rash and pneumonia, and
therefore, he was ‘without essential parental care.’” Id. Mother asserts that
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there is no support in the record that Child lacked parental care, because
she had taken Child to “several check-ups and vaccine appointments prior to
his removal.” Id. Mother directs our attention to evidence that she had
scheduled and taken Child to appointments for a respiratory infection, and
that one appointment was within a week of Child’s removal from her care.
Id. Mother additionally argues that Child’s diaper rash was caused by an
allergic reaction to diapers used by her brother-in-law and his wife, while
Child was in their care. Id. at 13. Mother contends that she had the
appropriate diapers at her house. Id. According to Mother, the conditions
that led to Child’s removal from her care do not “continue to exist,” as she
had been doing everything possible to alleviate these conditions prior to
Child’s removal. Id. Further, Mother states that she has been prevented
from fully resolving her housing and employment situation because of the
pending criminal charges against Father. Id.
In its Opinion, the orphans’ court addressed Mother’s claim as follows:
[T]he testimony establishes by clear and convincing evidence
that [M]other has not cared for [Child] since he was
approximately 6[] months old[,] and he is now over 2[] years of
age. In over 15 months, [Mother] has not stabilized her living
conditions or built parenting capacities that can provide safety
for [Child] She continues to struggle with her mental health[,]
which leads to self-medication, broken relationships and a sense
of victimization[,] rather than hope for change and
responsibility. The record supports the conclusion that [M]other
has not progressed in her capacity or ability to provide safe[,]
essential parental care[,] as she struggles mightily to take care
of her own needs, even 15 months after [Child’s] removal.
Despite the best efforts of reunification, mental health and drug
and alcohol providers, Mother has not stabilized enough in her
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mental health to improve her life conditions. As [the court]
noted at the end of the goal change hearing, it is tragic and sad;
however, the reality of the situation requires permanent forward
movement for [Child’s] well-being and benefit.
Orphans’ Court Opinion, 8/25/17, at 7. The Orphans’ Court’s findings are
supported in the record, and we discern no abuse of discretion with regard
to its findings and conclusions. We therefore affirm on the basis of the
reasoning set forth in the Orphans’ Court’s Opinion, as set forth above. See
id. We additionally note the following.
Mother’s claim that Child was removed from her care based upon his
diaper rash and pneumonia diagnosis is belied by the record. At the
termination hearing, CYF casework supervisor Diane Litzinger (“Litzinger”)
testified that in addition to Child’s diaper rash and pneumonia, “the
conditions in the home were very poor and there was too little to no
furniture. The family had no diapers, [and] very limited food. It was later
discovered that they also had … bedbugs and roaches ….” N.T., 6/28/17, at
16. According to Litzinger, “I think the parenting skills we were concerned
about [were] the lack of food, [] no diapers[,] and [Child] not being taken to
the doctor for the pneumonia or the fungal infection, the fungal issue within
his diaper area.” Id. at 21. Litzinger testified that “[t]here was some
follow-through” by Mother of the recommendations in her family service
plan, but no actual completion of the recommendations. Id. at 25. In
addition, there were several positive drug test results. Id. Mother had not
successfully completed her mental health treatment. Id. at 26. Further,
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Mother was not consistently taking her medications, and “follow-through has
not been good.” Id.
Thus, the record supports the findings of the orphans’ court, and its
legal conclusions are sound. See Orphans’ Court Opinion, 8/25/17, at 7.
Accordingly, we cannot grant Mother relief on this claim.
In her Statement of Issues, Mother also challenges the termination of
her parental rights pursuant to 25 Pa.C.S.A. § 2511(a)(8) and (b). Brief for
Appellant at 4. However, Mother does not address these claims in the
Argument section of her brief. Rather, Mother argues that termination is not
warranted because she was not responsible for any abuse, and CYF did very
little to help Mother resolve the criminal charges against her. Id. at 14.
Mother asserts the criminal charges were not resolved until after the
termination proceedings. Id. at 15. Mother argues that any setbacks in her
obtaining independent housing or stable employment were not her fault. Id.
As set forth above, we agree with the determination of the orphans’
court that CYF had established, by clear and convincing evidence, that
termination was appropriate pursuant to 25 Pa.C.S.A. § 2511(a)(2).3
Regarding subsection (b), we observe that
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3 We note that we need only agree with the orphans’ court’s decision as to
one subsection of 23 Pa.C.S.A. § 2511(a) and subsection (b) in order to
affirm the termination of parental rights. In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc).
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[s]ection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, [s]ection 2511(b) does not explicitly require a
bonding analysis and the term “bond” is not defined in the
Adoption Act. Case law, however, provides that analysis of the
emotional bond, if any, between parent and child is a factor to
be considered as part of our analysis. While a parent’s
emotional bond with his or her child is a major aspect of the
subsection 2511(b) best-interest analysis, it is nonetheless only
one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and should
also consider the intangibles, such as the love, comfort,
security, and stability the child might have with the foster
parent. Additionally, this Court stated that the trial court
should consider the importance of continuity of relationships
and whether any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
Regarding subsection (b), the orphans’ court stated the following:
[The orphans’ court] heard testimony from [] Gorman that
[Child] enjoyed his visits with his Mother for the 2-hour sessions
she maintained. [Gorman] also testified that Mother had
appropriate interaction with [Child] and they shared a bond.
However, [Gorman] indicated [that] she would not recommend
unsupervised contact[,] even after 15 months[,] since Mother
could not “keep up” with [Child’s] level of activity to provide
basic safety. Mother’s chaotic living and untreated mental health
would most certainly create unhealthy influences and living
conditions for [Child]. For the large majority [] of his life, [Child]
has lived with the [McG’s], an adoptive resource, and he has met
all developmental targets and[,] at times, ahead of schedule. He
has bonded with the [McG’s] and they have openly welcomed
Mother’s involvement and investment of time as Mother has
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indicated. This has provided [Child] with the biological
connection which he needs[,] and the safety and protection of a
healthy home meeting his developmental, physical and
emotional needs….
Orphans’ Court Opinion, 8/25/17, at 7-8. Consequently, the orphans’ court
found that it was in Child’s best interests to terminate Mother’s parental
rights. See id. The clear and convincing evidence of record supports the
orphans’ court’s findings, and its legal conclusions are sound. We therefore
affirm the orphans’ court’s termination of Mother’s parental rights pursuant
to subsection (b).
For the above-stated reasons, we affirm the Decree of the orphans’
court, which terminated Mother’s parental rights as to Child. We additionally
grant the Application to withdraw the appearance of Gary A. Daldwell,
Esquire, as guardian ad litem for Child.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2018
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