In the Interest of: A.T.E.J., Appeal of: F.J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.T.E.J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: F.J., MOTHER :
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: No. 19 MDA 2019
Appeal from the Decree Entered December 5, 2018
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
86289
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 22, 2019
The Appellant, F.J. (Mother), seeks review of the December 5, 2018
decree entered in the Court of Common Pleas of the Berks County Orphans’
Court (orphans’ court), granting the petition of Berks County Children & Youth
Services (BCCYS) to terminate Mother’s parental rights to her minor child,
A.T.E.J. (Child). We affirm.
I.
An evidentiary hearing on the petition for involuntary termination of
Mother’s parental rights was held on December 3, 2018.1 At the hearing, the
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* Retired Senior Judge assigned to the Superior Court.
1At the termination hearing, Child was represented by legal interest counsel
and a guardian ad litem. See In re Adoption of L.B.M., 161 A.3d 172, 174-
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orphans’ court heard the testimony of Mother, Christine Kopanski (the
assigned BCCYS caseworker), and Dr. Richard Small (a psychologist who
evaluated Mother). The orphans’ court summarized its findings and the
procedural history as follows:
This family came to the attention of BCCYS as the result of a report
made on September 29, 2017. The report stated that Mother was
unable to follow instructions of hospital staff after the birth of her
daughter, and was unable to retain information. It was further
reported that Mother drank while she was pregnant. An
emergency petition was filed, and BCCYS was granted custody of
the Child on October 2, 2017. In addition, a Motion for Aggravated
Circumstances was also filed on this date, based upon Mother’s
prior criminal history.
After a dependency hearing held on October 4, 2017, Mother was
ordered to cooperate with the following conditions: 1)
Parenting education; 2) a mental health evaluation and any
recommended treatment; 3) domestic violence treatment and any
further recommendations; 4) a drug and alcohol evaluation and
any recommended treatment; 5) random urine analysis; 6)
casework sessions and any additional recommendations; 7)
establishing and maintaining stable and appropriate housing and
income; 8) keeping BCCYS informed regarding any changes in
residence or income; 9) [signing] releases as requested; and 10)
visitation with the Child and acting in an appropriate manner. On
this same date, the Court found that Aggravated Circumstances
existed in the case, based upon Mother being a founded
perpetrator of physical abuse, relating to her plea in 2004 [to a
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75, 180 (Pa. 2017) (pursuant to 23 Pa.C.S. § 2313(a), a child who is the
subject of a contested involuntary termination proceeding has a statutory right
to counsel who discerns and advocates for the child’s legal interests). Further,
Child’s father consented to termination of parental rights and waived notice of
the hearing.
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charge of attempted murder as to her other child who was an
infant at the time].[2]
A second review hearing was held in March of 2018. On that date,
Mother was found to have made moderate compliance with the
permanency plan, and made only minimal progress toward
alleviating the concerns that led to the Child’s placement. (Exhibit
6). A third review hearing was held in August of 2018. At this
time, Mother was found to have made minimal progress regarding
the permanency plan, and made no progress toward alleviating
the circumstances that resulted in placement of the Child. On
August 22, 2018, BCCYS filed a Petition to Terminate Parental
Rights with regard to [Child].
....
In this case, BCCYS argues that Mother has not completed
her court ordered services [permanency goals], including
mental health treatment, domestic violence treatment, and
maintaining stable housing and income. Mother argues that
she has attended domestic violence counseling and mental health
treatment. Mother completed a domestic violence evaluation in
November of 2017, and that evaluation resulted in a treatment
need. However, Mother has not successfully completed that
treatment.
Mother has also completed a Mental Health evaluation with Dr.
Small. However, BCCYS has not received any information that
Mother has successfully completed any kind of mental health
treatment. Mother argues that she has been in treatment since
she was nine (9) years old. However, Mother testified that she
only goes to treatment one day a month. Mother testified that
her therapist does think she should go more often, but she decided
to only go once a month during the winter. While Mother argues
that she is engaged in mental health treatment, BCCYS has not
received any information indicating that Mother has completed
any mental health treatment.
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2 Mother was sentenced to a prison term of 5-10 years, followed by 10 years
of probation. See Transcript of Termination Proceedings, 12/3/18, at 9. She
was still serving the probationary portion of the sentence at the time of the
termination hearing.
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In addition, Mother has been unable to maintain appropriate
housing. Mother currently resides in a one-bedroom apartment
with her fiancé. Upon a visit from a BCCYS case worker, the case
worker observed no supplies for a baby in the home.
....
In this case, as discussed above, Mother has been unable
to complete her court ordered services. However, while
Mother argues that she has been engaged in mental health
treatment, Dr. Small testified that even treatment might
not be sufficient to overcome the diagnosis she has.
After an evaluation with Dr. Small in February of 2018, he
diagnosed Mother with three different disorders: Unspecified
Bipolar Disorder with Possible Psychotic Features, Post Traumatic
Stress Disorder, and a Personality Disorder with Dependent and
Schizotypal Features. Dr. Small testified that even if Mother
would take her required medication and attend therapy, he
would have strong doubts about her ability to care for a
child.
In addition, Mother has stated that while her therapist would like
for her to attend therapy twice a month, she chooses to attend
only once a month, as she feels she is doing well and too busy to
attend twice a month.
....
BCCYS [took] custody of [Child in] October of 2017. The
conditions which led to [Child’s] placement continue to exist, and
Mother has not shown an ability to remedy the conditions
within a reasonable period of time. Mother has failed to
complete domestic violence counseling and therapy and
failed to complete mental health treatment. Further, Dr.
Small opined that mental health treatment and medication
may not be sufficient to remedy the concerns he has about
Mother’s ability to safely parent a child. After a thorough
review of the record and testimony, it is clear that Mother
loves her Child, and visits tend to go well. However, Mother
has not shown an ability to cure the issues that led to her
incapacity in raising her Child safely.
....
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After reviewing the testimony [of the December 3, 2018, Hearing
on Involuntary Termination and Parental Rights] and considering
the exhibits, this Court finds that the termination of Mother’s
rights will serve the best interest of the Child. [Child] has been in
placement nearly all of her life, having been born on September
29, 2017, and BCCYS taking custody on October 2, 2017.
Testimony showed that she is well cared for and loved by her
foster grandparents. These grandparents also have custody of
[Child’s] older sister, and the two have a close bond. While visits
with mother do go fairly well, [Child] looks to her grandparents to
meet all of her needs.
Orphans’ Court Opinion, 2/2/19, at 4-8 (emphases added, citations omitted).
The orphans’ court entered a decree of involuntary termination of
parental rights, finding that the evidence had established several statutory
grounds for involuntary termination. See Orphans’ Court Opinion, 2/2/19, at
6-9 (citing 23 Pa.C.S. § 2511(a)(1), (a)(2), and (a)(5), and 23 Pa.C.S. §
2511(b)).
Mother appealed and in her brief she presented two issues. First, she
argued that the decree should be reversed because it was not supported by
clear and convincing evidence that she failed to complete a substantial portion
of her permanency goals. See Mother’s Brief, at 5. Second, she argued that
the decree should be reversed because there was insufficient evidence that
termination of her parental rights is in the best interests of Child. Id. As
further discussed below, we hold that the orphans’ court relied on statutory
grounds for involuntary termination which are supported by our independent
review of the record.
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II.
A.
“The party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds for
termination delineated in [the subsections of 23 Pa.C.S. § 2511(a)].” In re
Adoption of J.N.M., 177 A.3d 937, 942 (Pa. Super. 2018) (quoting In re
L.M., 923 A.2d 505, 511 (Pa. Super. 2007)). If the orphans’ court finds that
one of those subsections has been satisfied, then under Section 2511(b), it
must make a “determination of the needs and welfare of the child under the
standard of best interests of the child.” In re L.M. 923 A.2d at 511. The
orphans’ court may then enter a final decree of involuntary termination if it
is in the child’s best interests as outlined in Section 2511(b). Id.We review such a decree for an abuse of discretion. In re G.M.S., 193
A.3d 395, 399 (Pa. Super. 2018) (citation omitted). “In order to affirm the
termination of parental rights, this Court need only agree with any one
subsection under Section 2511(a).” In re Interest of D.F., 165 A.3d 960,
966 (Pa. Super. 2017) (citation omitted). “We give great deference to trial
courts that often have first-hand observations of the parties spanning multiple
hearings.” Id. “We must employ a broad, comprehensive review of the record
in order to determine whether the trial court’s decision is supported by
competent evidence.” In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005).
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“The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence.” In re A.S., 11 A.3d 473 (Pa. Super. 2010).
“If competent evidence supports the trial court’s findings, we will affirm even
if the record could also support the opposite result.” Id.In this case, BCCYS asserted that each of the following subsections of
Section 2511 were satisfied:
(a)(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.
(a)(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.
....
(a)(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.
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23 Pa.C.S. § 2511(a).3
The orphans’ court found that subsections (a)(1), (a)(2) and (a)(5) were
proven by clear and convincing evidence. See Orphans’ Court Opinion,
2/2/19, at 6-9. The orphans’ court also found that termination of Mother’s
parental rights was in the best interests of Child under Section 2511(b). Id.,
at 8-9.
B.
The orphans’ court did not abuse its discretion in entering the decree of
involuntary termination. First, as to subsection (a)(1), Mother failed to
perform parental duties for at least six months prior to the petition. BCCYS
took custody of Child on October 2, 2017, shortly after she was born, and the
petition of involuntary termination was filed on August 22, 2018. From the
time that BCCYS took custody of Child, Mother failed to complete court
ordered services, including treatment for domestic violence abuse.
Further, she did not maintain appropriate housing or supplies to care for
Child. See In re A.S., 11 A.3d at 478-79 (holding that termination warranted
under subsection (a)(1) where parent’s housing arrangements were
unsuitable for a young child). In short, Mother did little to alleviate the
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3 BCCYS also sought termination of parental rights under subsection (a)(8),
but the orphans’ court did not make a ruling as to that statutory provision.
This subsection provides that termination is proper if the conditions which
prompted the placement continue to exist after a year from the date of
placement and termination would be in the child’s best interests.
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circumstances which resulted in the placement of Child in the custody of
BYCCS. Clear and convincing evidence, therefore, supported termination of
parental rights under Section 2511(a)(1).
Termination was also warranted under Section 2511(a)(2) because the
evidence showed that Mother’s continued incapacity, abuse, neglect or refusal
has caused Child to be without essential parental care, control or subsistence
necessary for her physical or mental well-being. A psychological examination
of Mother revealed her need for treatment of several mental health issues:
Unspecified Bipolar Disorder with Possible Psychotic Features, Post Traumatic
Stress Disorder, and a Personality Disorder with Dependent and Schizotypal
Features. Mother made some effort to undergo therapy and regularly visited
Child, but the testimony of the evaluating physician and caseworker indicate
Mother failed to make significant progress in her treatment for mental health
and domestic violence.
Mother is not engaging in treatment as directed by a physician. Dr.
Small testified that her mental incapacity is so severe that even if she fully
engaged in treatment, it would be doubtful that she would be able to care for
a young child. Mother’s psychiatric and criminal history supports the
conclusion that the circumstances which resulted in Child’s placement cannot
or will not be remedied by Mother. Thus, the orphans’ court did not err in
finding that Mother’s incapacity is a basis for termination under Section
2511(a)(2).
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For similar reasons, there was clear and convincing evidence that
termination was warranted under Section 2511(a)(5). Mother has not
demonstrated an ability to overcome her mental health issues to the extent
that she could safely care for Child. See In re P.A.B., 570 A.2d 522, 528
(Pa. Super. 1990) (“A determination that the Parents’ incapacity results in an
inability to care for the children and that the condition cannot improve over
time is insufficient to warrant termination under 2511(a)(5).”). In fact,
Mother was still serving the probationary term of her sentence for the
attempted murder of her other daughter at the time of the termination
proceedings in this case. Although Mother has undergone some treatment
and made attempts to become fit to care for Child, the orphans’ court did not
err in concluding that Mother fell short in that regard.
C.
Having found that the termination of Mother’s parental rights was
justified under Section 2511(a), the next step of our inquiry is whether the
termination is in the best interests of Child. There are a number of factors to
consider in this analysis:
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. . . . While a parent’s emotional
bond with his or her child is a major aspect of . . . section 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.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015); In re
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M.Z.T.M.W., 163 A.3d 462, 464 (Pa. Super. 2017). Moreover, “[c]ommon
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.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation
omitted).
Here, the record reflects that the best interests of Child were served by
terminating Mother’s parental rights. Child had been fostered by her
grandparents nearly all her short life. Child’s grandparents love and care for
Child, meeting all of her needs. These grandparents also have custody of
Child’s older sister and the two siblings have formed a close bond. Mother’s
own mental health struggles and inability to provide a safe environment for
Child further establish that termination is in Child’s best interests. Thus, the
record supports the orphans’ court’s decision to terminate Mother’s rights, and
the decree of involuntary termination must stand.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2019
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