In Re: Adopt of: A.M., Minor ( 2016 )

J-S05016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.M., MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.P., MOTHER,
Appellant No. 1187 MDA 2015
Appeal from the Decree Entered June 10, 2015
In the Court of Common Pleas of Cumberland County
Orphans' Court at No(s): 91 Adoptions 2014
IN RE: ADOPTION OF: A.M., MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.P., MOTHER,
Appellant No. 1188 MDA 2015
Appeal from the Decree Entered June 10, 2015
In the Court of Common Pleas of Cumberland County
Orphans' Court at No(s): 89 Adoptions 2014
IN RE: ADOPTION OF: J.M., MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.P., MOTHER,
Appellant No. 1189 MDA 2015
Appeal from the Decree Entered June 10, 2015
J-S05016-16
In the Court of Common Pleas of Cumberland County
Orphans' Court at No(s): 90 Adoptions 2014
BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 12, 2016
Appellant, M.P. (“Mother”), appeals from the decrees dated June 9,
2015, and entered on June 10, 2015, granting the petitions filed by the
Cumberland County Children and Youth Services (“CYS”) to involuntarily
terminate her parental rights to her children, Am.M., a daughter born in
December of 2011, J.M., a son born in October of 2012, and Av.M., a
daughter born in January of 2014 (collectively “the Children”), pursuant to
the Adoption Act, 23 Pa.C.S. § 2511(a)(2) and (b).1, 2
We affirm.
The trial court set forth the extensive history of this case in its
Pa.R.A.P. 1925(a) opinion, which we adopt for purposes of this appeal. Trial
Court Opinion, 9/2/15, at 1-9. On July 9, 2015, after the trial court
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although CYS sought the involuntary termination of Mother’s parental
rights pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b), the trial court
specifically indicated that it found clear and convincing evidence to
involuntarily terminate Mother’s parental rights to the Children under 23
Pa.C.S. § 2511(a)(2), and that termination of parental rights was in the best
interest of the Children under 23 Pa.C.S. § 2511(b).
2
In separate decrees dated June 9, 2015, and entered on June 10, 2015,
the trial court terminated the parental rights of V.M., Jr., the natural father
of Am.M. and J.M.; and the parental rights of S.W., the alleged father of
Av.M. or any other unknown father of Av.M. None of these men has filed an
appeal, nor are they parties to the instant appeal.
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terminated Mother’s parental rights to the Children, Mother filed a timely
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).
Mother raises the following issues for our review:
Did the Trial Court err as a matter of law and abuse its
discretion in determining that [CYS] presented evidence so clear,
direct, weighty, and convincing as to enable the fact finder to
come to a clear conviction without hesitancy, of the truth of the
precise facts in issue?
Did the Trial Court err as a matter of law and abuse its
discretion in determining the best interests of the [C]hildren
would be served by terminating the parental rights of Mother,
when the evidence indicated that the original reasons for
placement of the [C]hildren no longer exist or had been
substantially eliminated?
Mother’s Brief at 4.3
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
____________________________________________
3
Although Mother phrased her issues somewhat differently in her concise
statement, we conclude that her issues are preserved for our review. In
addition, in her concise statement, Mother challenged the change of the
Children’s goal to adoption. However, she has waived that issue on appeal
by failing to include it in the statement of questions portion of her brief. See
Krebs v. United Refining Company of Pennsylvania, 893 A.2d 776, 797
(Pa. Super. 2006) (holding that an appellant waives issues that are not
raised in both the concise statement of errors complained of on appeal and
the statement of questions involved in the brief on appeal).
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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.; [In re:] R.I.S., 36
A.3d [567,] 572 [(Pa. 2011) (plurality opinion)]. As has been
often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., ___ Pa. ___, 34 A.3d 1, 51 (2011);
Christianson v. Ely, 575 Pa. 647, 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 the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 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
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enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). As
previously stated, in terminating Mother’s parental rights, the trial court
focused on 23 Pa.C.S. § 2511(a)(2) and (b). Trial Court Opinion, 9/2/15, at
1, 10. Section 2511(a)(2) and (b) provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
***
(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. 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
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(2) and (b).
This Court has explained that the focus in terminating parental rights
under section 2511(a) is on the parent, but under section 2511(b), the focus
is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc). For purposes of this appeal, we first analyze this case
under subsection 2511(a)(2), then under subsection 2511(b), as did the trial
court in its opinion dated on September 2, 2015.
Our Supreme Court set forth the proper inquiry under section
2511(a)(2) as follows:
[Section] 2511(a)(2) provides [the] statutory ground[] for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
[The Supreme Court] has addressed incapacity sufficient
for termination under § 2511(a)(2):
A decision to terminate parental rights, never to be
made lightly or without a sense of compassion for
the parent, can seldom be more difficult than when
termination is based upon parental incapacity. The
legislature, however, in enacting the 1970 Adoption
Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit
as one who refuses to perform the duties.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986), quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978).
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In re Adoption of S.P., 47 A.3d at 827.
This Court has stated that a parent is required to make diligent efforts
toward the reasonably prompt assumption of full parental responsibilities.
In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). A parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340.
Here, the trial court properly assessed, at length, the evidence
regarding Mother’s repeated incapacity to parent the Children, and Mother’s
inability to remedy the conditions and causes of her incapacity to parent the
Children. Trial Court Opinion, 9/2/15, at 9-12. The trial court found that
the repeated and continued incapacity, abuse, neglect or refusal of Mother
has caused the Children to be without essential parental care, control or
subsistence necessary for her physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by Mother.
Mother contends that the trial court abused its discretion and erred as
a matter of law in terminating her parental rights when CYS failed to provide
reasonable efforts to promote reunification of Mother and the Children prior
to filing the termination petitions. Mother’s Brief at 11-13. Our Supreme
Court held, however, that the trial court is not required to consider
reasonable efforts in relation to a decision to terminate parental rights under
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section 2511(a)(2). In the Interest of: D.C.D., 105 A.3d 662, 675 (Pa.
2014). Thus, we conclude that her argument lacks merit.
The facts as found by the trial court, nevertheless, support the
determination that CYS did indeed make reasonable efforts to reunify the
Children with Mother. The trial court stated the following:
When Mother had the opportunity to better herself as a
parent by attending the outpatient mental health counseling,
intensive outpatient drug and alcohol counseling, and parenting
courses required by CYS, Mother regularly cancelled or did not
show up to her appointments, repeatedly resulting in her
dismissal. When CYS sought to arrange transportation and set
up visits with the Children at Tri-State for Mother’s convenience,
Mother was unreachable. Likewise, when Mother had the
opportunity to give testimony before this [c]ourt as to why she is
a fit parent, she once again was not present. Mother was given
another opportunity to resume her full parental responsibilities of
[J.M] and [Am.M.] when they were placed with Mother in May of
2014, yet Mother cared for them for just nine days before they,
along with [Av.M.], were found dirty and hungry after being left
at a hospital with a stranger.
This Court believes that taking an active interest in the
judicial process, cooperating with CYS, and working to reach the
goals set in a service plan are all “necessary steps to supporting
a parent-child relationship” where the children have been
adjudicated as dependent, such as in the present case. In re
E.A.P., 944 A.2d 79, 83 (Pa. Super. 2008). After giving Mother
a significant amount of time to meet these goals and better
herself as a person and parent, this Court no longer believes that
Mother is capable of remedying the incapacity and neglect which
led to the Children’s placement in September of 2013 and in
June of 2014.
Trial Court Opinion, 9/2/15, at 11-12.
Although a reasonable-efforts inquiry is not an element of a
termination decision under section 2511(a)(2), our review of the record
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reflects that there is ample evidence to support a determination that CYS did
make reasonable efforts to promote reunification of Mother with the
Children. As the trial court’s factual findings are supported by the record,
and the trial court’s legal conclusions are not the result of an error of law or
an abuse of discretion, we affirm the trial court’s decision with regard to
subsection (a)(2). In re Adoption of S.P., 47 A.3d at 826-827. Therefore,
we adopt the trial court’s analysis as our own. Trial Court Opinion, 9/2/15,
at 9-12.
Next, we review the termination of Mother’s parental rights under 23
Pa.C.S. § 2511(b). Mother erroneously asserts that there was no testimony
or evidence regarding the bond between Mother and the Children and, thus,
that the trial court failed to properly conduct a bond analysis under Pa.C.S. §
2511(b).
Our Supreme Court recently stated the following:
[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 “intangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., 620 A.2d [481,] 485
[(Pa. 1993)], this Court held that the determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
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We have stated that, in conducting a bond analysis, the court is not
required to use expert testimony, but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010). This Court has also observed that no bond worth preserving is
formed between a child and a natural parent where the child has been in
foster care for most of the child’s life, and the resulting bond with the
natural parent is attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super.
2008). In addition, it is appropriate to consider a child’s bond with their
foster parents. In re: T.S.M., 71 A.3d at 268.
Furthermore, in In re: T.S.M., our Supreme Court set forth the
process for evaluation of the existing bond between a parent and a child,
and the necessity for the court to focus on concerns of an unhealthy
attachment and the availability of an adoptive home. The Supreme Court
stated the following:
[C]ontradictory considerations exist as to whether termination
will benefit the needs and welfare of a child who has a strong but
unhealthy bond to his biological parent, especially considering
the existence or lack thereof of bonds to a pre-adoptive family.
As with dependency determinations, we emphasize that the law
regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests
and the needs and welfare of the particular children involved.
See, e.g., [In the Interest of] R.J.T., 9 A.3d [1179,] 1190
[(Pa. 2010)] (holding that statutory criteria of whether child has
been in care for fifteen of the prior twenty-two months should
not be viewed as a “litmus test” but rather as merely one of
many factors in considering goal change). Obviously, attention
must be paid to the pain that inevitably results from breaking a
child’s bond to a biological parent, even if that bond is
unhealthy, and we must weigh that injury against the damage
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that bond may cause if left intact. Similarly, while termination of
parental rights generally should not be granted unless adoptive
parents are waiting to take a child into a safe and loving home,
termination may be necessary for the child’s needs and welfare
in cases where the child’s parental bond is impeding the search
and placement with a permanent adoptive home.
In weighing the difficult factors discussed above, courts
must keep the ticking clock of childhood ever in mind. Children
are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When
courts fail, as we have in this case, the result, all too often, is
catastrophically maladjusted children. In recognition of this
reality, over the past fifteen years, a substantial shift has
occurred in our society’s approach to dependent children,
requiring vigilance to the need to expedite children's placement
in permanent, safe, stable, and loving homes. [The Adoption
and Safe Families Act of 1997, P.L. 105-89] ASFA[,] was enacted
to combat the problem of foster care drift, where children . . .
are shuttled from one foster home to another, waiting for their
parents to demonstrate their ability to care for the children. See
In re R.J.T., 9 A.3d at 1186; In re Adoption of S.E.G., 901
A.2d [1017,] 1019 [(Pa. 2006)]. This drift was the unfortunate
byproduct of the system’s focus on reuniting children with their
biological parents, even in situations where it was clear that the
parents would be unable to parent in any reasonable period of
time. Following ASFA, Pennsylvania adopted a dual focus of
reunification and adoption, with the goal of finding permanency
for children in less than two years, absent compelling reasons.
See, 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S. § 6351(f)(9)
(requiring courts to determine whether an agency has filed a
termination of parental rights petition if the child has been in
placement for fifteen of the last twenty-two months).
In re: T.S.M., 71 A.3d at 268-269.
Here, the trial court considered the needs and welfare of the Children
and set forth a proper bond analysis, at length, which we adopt as our own.
See Trial Court Opinion, 9/2/15, at 12-13. Furthermore, we point out that
to the extent Mother suggests that there is some type of bond between her
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and the Children that the trial court failed to properly consider, Mother did
not appear for the hearing scheduled for May 12, 2015, where she was to
provide testimony. Id. at 1-2.
Further, 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.” In re Z.P., 994 A.2d 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). Again, as the trial court’s 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, we affirm the trial court’s decision with
regard to subsection 2511(b). In re Adoption of S.P., 47 A.3d at 826-827.
Accordingly, we affirm the trial court’s decrees terminating Mother’s parental
rights.4
Decrees affirmed.
____________________________________________
4
The parties are directed to attach the redacted copy of the trial court’s
opinion dated September 2, 2015, in the event of further proceedings in this
matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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Circulated 02/05/2016 11:31 AM
IN Tiffi ADOPTION OF : IN THE COURT OF CO:tviMON PLEAS OF
~rv &~ : CU1\1BERLAND COUN1Y, PENNSYLVANIA
: ORPHANS COURT DMSION
DOB: 12/.11
: No. 89 ADOPTIONS2014
-~
IN 1HE ADOPTION-OF : IN THE COURT OF CO:tviMON PLEAS OF
: CU1\1BERLAND COUNTY, PENNSYLVANIA
. : ORPHANS COURT DMSION
: No. 90 ADOPTIONS 2014
IN TIIB ADOPTION OF : IN THE COURT OF CO:tviMON PLEAS OF
AVlllllt~ : CU1\1BERLAND COUNTY, PENNSYLVANIA
: ORPHANS COURT DMSION
DOB: 1./14
: No. 91 ADOPTIONS 2014
.··-, 0
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 . ·o .:, .,,
~ :3 ····: ~
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~_. ::_: m
Peck, J., september 2, 2015. en
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Appellant rv I P (hereinafter "Mother') is the biological mother of
Am9II M[ 16 (born 12•11), JJ rv I (born 10.12), and Av..
l\T & (born la'l4)(collectively, the "Children"). On November 25, 2014,
Cumberland County Children and Youth Services (hereinafter "CYS") filed a Petition for
Involuntary Termination of Parental Rights of M TI I Under Section 2512 of the
Adoption Act (hereinafter the "Petition for Involuntary Termination" or the "Petition") in
each of the above-docketed cases in order to terminate Mother's parental rights. CYS
listed 23 Pa.C.S. § 25ll(a)(2), (a)(S), (a)(8), and (b) as the statutory grounds for
1
termination. Michael J. Whare was appointed to represent Mother, and hearings were
held on this matter on January 14, 2015 and April 8, 2015. A third hearing was
scheduled for May 12, 2015 in order for Mother to give testimony, but Mother was not
1
Order of the Court, January 9, 2015.
1
present for the scheduled hearing.2 On May 12, 2015, this Court took the matter under
j: . 7.•-,i~r:
. ..... ~
advisement. In an Order dated June 9, 2015, this Court granted the Petition for
Involuntary Terminationand terminated Mother's parental rights as to all three Children.
On July 9, 2015, Mother filed a Notice of Appeal and a Statement of Errors Complained
of on Appeal, alleging the following:
1. The Honorable Court erred as a matter of law and abused. its discretion in
changing the goal to adoption and terminating Appellant's parental rights in
that Appellant is able to provide the children with essential parental care,
control, and subsistence in the very near future.
2. The Honorable Court erred as a matter of law and abused its discretion in
terminating Appellant's parental rights in that the conditions which led to the
removal or placement of the children no longer existed or were substantially
eliminated.
3. The Honorable Court was in error in determining the best interest of the
children would be served by terminating Appellant's parental rights.
i
Pursuant to Pa.RA.P. 1925(a), this Opinion is written in support of this Court's I
decision to terminate Mother's parental rights. II
FACTUAL AND PROCEDURAL HISTORY l!
!
M P I a is the biological mother of An 7 ,J , and Av-MJ I
The dependency date for Amllllll and Ji was September 19, 2013, and the
dependency date for Av• was June 12, 2014.3 CYS first became involved with
Au 's and JJ l's well-being as a result of referrals for concerns regarding
marijuana use in the household, unstable housing, and a lack of food in the household,"
~ and Jj1-•were first placed in the foster care of B•• and 411811111
2
Notes ofTestlmony May 12, 2015, p. 2.
3
Notes of Testimony January 14, 2015 (hereinafter "N.T. Jan. 14"), p. 10-11.
4
Testimony of Amanda Sigrist, January 7, 2015, p. 6.
I
2
II
!
f
(hereinafter the "~s" or the "S J family") in September of 2013, but were taken
out of foster care and returned to the care of their maternal grandparents in February of
2014.5 From February 24, 2014 until May 22, 2014, Mother and the Children were living
with the Children's maternal grandparents, but when the Children's maternal
grandmother began having problems with her health, the Children began living solely
with Mother.6 On May 31, 2014, barely more than a week after the Children had been
placed in the sole care of Mother on May 22, 2013, CYS received another referral.7 This
referral was the result of an incident whereby Mother left the Children in a car with an
8
unfamiliar gentleman while she visited a friend in the hospital. The gentleman, who had
given Mother and the Children a ride to the hospital, needed to leave before the Mother
returned (after an hour) and the gentleman then brought the Children into the hospital
and left them with the hospital staff.9 The hospital staff f~und that the Children's hygiene
was extremely poor, that the Children were wearing dirty diapers, and that the Children
did not have any food or drinks.'?
As a result of the hospital incident and corresponding referral, the Children were
returned to the foster care of the S family on June 2, 2014.11 This was Av.'s first
time in foster care, since she had not been born the first time that An L and J &
were placed with the ~s.12 All three children have remained in the custody of the
sm.... family since June 2, 2014.13 At the time of the hearings, the Siiia family
expressed their intention to adopt the Children.14 By all accounts, the ~ .. family
provided a loving, stable home for the Children, and the Children get along well with the
Slllt' s other children.15
5
N.T. Jan. 14, p. 53.
6
N.T. Jan. 14, p. 30.
7
N.T. Jan. 14, p. 30.
8
N.T.Jan. 14, p.11.
9
N.T. Jan. 14, p, 11.
10
N.T. Jan: 14, p. 11.
11
N.T. Jan. 14, p. 10, 53.
12
N.T. Jan. 14, p. 10.
13
N.T. Jan. 14, p. 53,
14
N.T. Jan. 14, p. 54.
15
N.T. Jan. 14, p. 27-28, 53.
3
After the initial dependency and placement of J I and Aml9II CYS filed a
Service Plan for Mother on September 20, 2013, which included the following goals:
( 1) Cooperate with CYS;
(2) Maintain Mental Health;
(3) Remain Drug and Alcohol Free;
(4) Obtain and maintain stable housing and income;
(5) Demonstrate appropriate parenting skills; and
(6) Cooperate with adult probation requirements.
The Court heard the following testimony regarding Mother's. progress towards
meeting each of these goals, which was uncontradicted because Mother failed to appear
before the Court to give her testimony.
In regards to Mother's first goal, cooperation with CYS, this Court heard
testimony that Mother's cooperation has been sporadic.16 Mother maintained good
contact with CYS when Pamela Gross, caseworker (hereinafter, "Ms. Gross'') was
appointed to the case in August of 2014, lost touch except for two conversations at the
end of the month in October, completely lost contact in November, and then re-
established contact in December, after the Petition for Involuntary Tertnination was
filed.17 Furthermore, while Mother made progress with signing releases for CYS since
December, again after the Petition for Involuntary Termination was filed, she has not
always been compliant in that regard.18 Finally, Mother has failed to include CYS in a
meaningful way in her efforts to meet her other goals, such as her goals to maintain her
mental health and remain drug and alcohol free. For example, while Mother underwent
both a mental health evaluation and a drug and alcohol evaluation, she did so without first
telling CYS or executing a release, so CYS was unable to provide input for those
19
evaluations.
15
I
N.T. Jan. 14, p. 12.
17
N.T. Jan. 141 p. 12.
18
N.T. Jan, 14, p. 12.
1;
N.T. Jan. 14, p. 15-16.
4 I
I
Mother failed to meet her goal of maintaining her mental health.20 While Mother
reported to CYS that she was undergoing counseling and taking medications, she was
unable to provide CYS with any information about when and where her self-reportsd
appointments were taking place; 21 As mentioned above, Mother did undergo a mental
health evaluation through Youth Advocate Services on October 28, 2014, but she failed
to provide CYS with an opportunity to provide input into that evaluation.22 Furthermore,
Mother indicated to CYS that the evaluation resulted in no recommendations, but when
·cys received a copy of the evaluation on November 13, 2014, it indicated that Mother's
participation in outpatient therapy was recommended. 23 Mother recently provided
documentation that she is scheduled to start receiving mental health services through I
Youth Advocate Services/"
Mother further was to remain drug and alcohol free. Despite negative drug tests in
I
I
I
February and June of 2014,25 this Court heard testimony that Mother has not cooperated
I
with urine testing after June of2014.26 Furthermore, when AvA was born in January of
2014, her meconium tested positive for THC.27 Mother underwent a drug and alcohol
I
evaluation with White Deer Run on October 27, 2014, but, again, failed to inform CYS of
this evaluation ahead of time, thus depriving CYS of the ability to provide input.28 The
drug and alcohol evaluation resulted in a recommendation of intensive outpatient therapy,
however Mother did not complete the recommended therapy. 29 Mother was officially
discharged from the outpatient therapy program on November 10, 2014 due to
noncompliance with attendance policies after missing or cancelling appointments on
November 3rd and 5th_
20
N.T.' Jan. 14, p. 13.
21
N.T. Jan. 14, p. 13.
22
N.T. Jan. 14, p. 15.
23
N.T. Jan. 14, p. 15.
24
N.T. Jan. 14, p. 13.
2S N.T. Jan. 14, p. 38.
26
N.T. Jan. 14, p. 16.
·21 N.T. Jan. 14, p. 44.
28
N.T. Jan. 14, p.16.
29
N.T. Jan. 14, p. 16. I
5 I
l
i
I
Regarding Mother's goal of obtaining and maintaining stable housing and income,
this Court heard testimony that this goal has not been met. Ms. Gross testified that
Mother has provided conflicting information regarding her residence since the Service
Plan was put into place in September of 2013.30 Testimony was given that Mother has
provided CYS with nine different addresses between January of 2014 and January of
2015,31 including the following addresses: 335 Pine Street, Steelton (July 2014); Vernon
Street, Harrisburg (August 2014); 329 Spring Street (October 2014); 310 North Third
Street (October2014); 335 Pine Street, Steelton (December 2014).32 Despite the multiple
addresses given between July and December of 2014, Mother later insisted to CYS that
she has resided at the 335 Pine Street address for six consecutive months.33 CYS did visit
Mother at the 335 Pine Street address in December of 2014, and confirmed that Mother
and her newborn child (who is not involved in the present matter) live there with the
gentleman who owns the property, and that Mother provides care for the gentleman in
lieu of paying rent.34 While the home is small, CYS did find it to be suitable for the
newborn baby, and it does have beds for the Children at issue in this matter.35 However,
CYS did have concerns that there was a "for sale" sign in front of the house, which may
or may not force Mother to vacate the property if it is sold.36
The information that Mother has provided to CYS regarding her income has been
equally unreliable. In February of 2014, Mother indicated that she was working for
Applebee's, but CYS never received confirmation that she had been working there.37 In
July, Mother indicated that she was working at Nyree's restaurant in Harrisburg, but she
did not provide CYS with any pay stubs or other proof that she was working there, and
CYS was unable to confirm his employment with anyone at Nyree's.38 In August of I
i
I
30
N.T.Jan.14, p.47.
31
N.T. Jan. 14, p. 47.
32
N.T. Jan. 14, p. 16-17.
33
N.T. Jan. 14, p. 17.
34
N.T. Jan. 14, p. 17-18.
35
N.T. Jan. 14, p. 17.
36
N.T. Jan. 14, p. 18-19.
S7
N.T. Jan. 14, p. 20.
38
N.T. Jan. 14, p, 21.
6
2014, Mother indicated that she was going to be employed by Staffmark Employment
Agency, but when CYS contacted Staffmark, they indicated that Mother had not been
their employee since April of 2014, and that they did not plan to hire her back.39 Mother
provided pay stubs to CYS in November of 2014 to prove that she was working eight
hours per week for Menlo Logistics." In December of 2014, Mother reported she was
working in a temporary position for Berks & Beyond, but would be unable to continue
this employment during the final stages of her pregnancy." Mother indicated to CYS that
she has returned to her work at Berks & Beyond following the birth of her newborn
child.42 CYS is unsure of the hours, the type of work, and the compensation Mother is
receiving at Berks & Beyond.43
Mother failed to meet her goal of demonstrating appropriate parenting skills.
Mother agreed to pursue parenting services through Alternative Behavior Consultants
(hereinafter "ABC"), but was discharged from the program due to her failure to attend
scheduled appointments." On October 29, 2014, Mother reported that she was receiving
parenting services through Tri-County Community Action in Harrisburg (hereinafter
"Tri-County'), and CYS received confirmation that Mother completed a five week
parenting course." CYS indicated several concerns with this five week course, including
the fact that the course did not involve "hands-on" learning with the Children, and it did
not address boundaries with the children, supervision, or discipline. Furthermore, the five
week course included only seven total hours of instruction,46 as opposed to the twenty
hours of instruction Mother would have received through ABC. 47
Also in regards to Mother's parenting, this Court heard credible testimony that
Mother requested only minimal visitation with the Children. Since the Children were
19
N.T. Jan. 14, p. 21.
40
N.T. Jan. 14, p. 21.
41
N. T. Jan. 14, p. 20.
42 N.T. Jan. 14 , p. 20.
45
N.T. Jan. 14, p, 22.
44
N. T. Jan. 14, p. 22.
45
N.T. Jan. 14, p. 22-23.
46
N.T. Jan. 14, p, 23-24.
47
N.T. Jan. 14, p. 49.
7
placed back in foster care in May of 2014, Mother's first visit with them was after a
hearing on· July 24, 2014.48 Mother's first requested visit with the Children was on
August S, 2014, at ABC.49 After that time, Mother did not visit with the Children at all
through the rest of August, and through all of September, October, and November.i''
despite CYS's willingness to arrange transportation and set up visits at Tri-County, which
was a more convenient location for Mother.51 In December, once Mother re-established
contact with CYS and Tri-County, but again after the Petition for Involuntary
Termination was filed, Mother began having visitation with the Children again, including
visits on December 16, 2014 and January 8, 201 S.52 This Court heard testimony that after
the Children have had visits with Mother, they have each exhibited concerning behavior
as follows when returned to the S.. family: Am has thrown multiple temper
tantrums, had a hard time settling down for bed, and has repeatedly defecated herself;53
' ; has seemed unsettled and both urinated and defecated himself;54 A vahas had
trouble keeping her formula down, and has repeatedly spit-up." This Court heard
testimony that each of these behaviors were either out of the norm for the Children, or .
were is sues that had previously been resolved.56
Finally, Mother's goal of cooperating with adult probation has not been met. This
Court heard testimony that Mother has outstanding objectives to remain complaint with
probation, including completion of the Bair Foundation B.E.S.T. Program and managing
medication pursuant to the recommendations of a mental health _evaluation.57 While
Mother completed the mental health evaluation in October of 2014, CYS was unaware of
Mother's efforts to manage the medicine, Latuda, which was recommended in the mental
48
N.T. Jan. 14, p. 24,
49
N.T. Jan. 14, p. 24.
so N.T. Jan. 14, p. 24.
51
N.T. Jan. 14, p. 40.
52
N.T. Jan. 14, p. 4()-41.
53
N.T. Jan. 14, p. 60.
S4
Jan. 14, p. 61-62.
N.T.
SS
Jan. 14, p. 62.
N.T.
56
N.T. Jan. 14, p. 60-62.
57
N.T. Jan. 14, p. 45.
8
health evaluation.58 Additionally, this Court heard testimony that Mother has not
completed the B.E.S.T. program.59
As a result of Mother's failure to meet the goals outlined in the September 20,
2013 Service Plan, as well as the S-. family presenting itself as an adoptive resource,
CYS filed the Petition for Involuntary Termination. This Court granted the Petition for
Involuntary Termination, thus terminating Mother's parental rights as of June 9, 2015.
This appeal followed.
DISCU~SION
Under Pennsylvania's jurisprudence, a trial court must conduct a two-pronged
analysis under 23 Pa.C.S. § 2511 when deciding whether to involuntarily terminate the
parental rights of a natural parent. See In re I. G. ,939 A.2d 950, 952 (Pa. Super. 2007).
First, a court must determine whether appropriate grounds for involuntary termination of
parental rights exist under§ 251l(a). Id. If grounds exist under section (a), then the court
must determine whether the termination of parental rights is in the best interest of the
children under§ 2511(b). Id. Under section (a), the focus is on the parent's conduct,
while under section (b), the focus is on the needs of the child. Id. at 956. It is well
established that a party seeking termination of parental rights bears the burden of
establishing, by clear and convincing evidence, that grounds for involuntary termination
exist. Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In the present case, the Petition for Involuntary Termination filed by CYS sought
to terminate Mother's parental rights under several provisions of Section 25 l l(a) of the
Adoption Act. The particular subsections of the Act relied upon by CYS provide 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
51
N.T. Jan. 14, p. 45-46.
51
N.T. Jan. 14, p. 45,
9
and causes of the incapacity, abuse, neglect or refusal cannot or will not b~ I
remedied by the parent. · J
r
( 5) The child has been removed from the care of the parent by the court or i
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 I
exist, the parent cannot or will not remedy those conditions within a reasonable II
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 I
rights would best serve the needs and welfare of the child.
I
(8) The child has been removed from the care of the parent by the court or
t
under a voluntary agreement with an agency, 12 months or more have elapsed
from the date of removal or placement, the conditions which led to the removal Ii
or placement of the child continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
I
23 Pa.C.S. § 2511 (a)(2),(5), and ( 8).
Although CYS listed subsections (2), (5), and (8) as its grounds. for involuntary
termination, it only needed to prove that grounds for termination existed under any one of
the subsections. In re: L.S.G., 767 A2d 587, 590-91 (Pa. Super. 2001). As set forth in
more detail below, this Court found clear and convincing evidence to support termination
of Mother's parental rights under § 251 l(a)(2), and it also found that termination of
Mother's rights was in the best interest of the children under § 251 l(b). Because this
Court finds that sufficient grounds exist under §25 ll(a)(2), this Court constrains its
analysis to that subsection.
L Sufficient grounds existed for involuntary ter~ination under 23 Pa. C.S. §
2511(a)(2).
Under§ 251 l(a)(2), this Court found that the repeated and continued incapacity of
Mother, as well as neglect by Mother, has caused the Children to be without essential
parental care, and that the conditions causing the same cannot or will not be remedied by
Mother. As the Superior Court has noted,
The grounds for termination of parental rights under Section 251 l(aX2),
due to parental incapacity that cannot be remedied, are not limited to
10
affirmative misconduct; those grounds may also include acts of refusal as
well as incapacity to perform parental duties. Nevertheless, parents are
required to make diligent efforts toward the reasonably prompt assumption
of full parental responsibilities. A parent's vow to cooperate, after a long
period of uncooperativeness regarding the necessity or availability of
resources, may properly be rejected as untimely or disingenuous.
In re of KZ.S., 946 A.2d 753, 758 (Pa. Super. 2008).
In the present case, this Court found that Mother failed to utilize all of the
resources provided to help make her a better parent and to help support a parent-child
relationship. Furthermore, this Court did not find that Mother is capable of remedying the
incapacity and neglect in order to provide care for the Children in the immediate future.
At the time that I and Am were originally adjudicated as dependent,
Mother received a Service Plan, which contained many goals designed to make Mother a
better parent and to reunite her with the . Children. Undoubtedly, meeting the goals
outlined in the Service Plan would require significant life changes on Mother's behalf,
but life changes were necessary for Mother in order· for her to be an effective parent.
Almost two years have now passed since the Service Plan was created in September of
2013, and Mother has not met any of the six goals, and her progress toward meeting. the
same has been minimal at best.
When Mother had the opportunity to better herself as a parent by attending the
outpatient mental health counseling, intensive outpatient drug and. alcohol counseling,
and parenting courses required by CYS, Mother regularly cancelled or did not show up to
her appointments, repeatedly resulting in her dismissal. When CYS sought to arrange
transportation and set up visits with the Children at Tri-State for Mother's convenience,
Mother was unreachable. Likewise, when Mother had the opportunity to give testimony
before this Court as to why she is a fit parent, she once again was not present. Mother
was given another opportunity to resuine her full. parental responsibilities of J ( and
~ when they were placed with Mother in May of 2014, yet Mother cared for
them for just nine days before they, along with Ave were found dirty and hungry after
II
being left at a hospital with a stranger.
11
II
I
This Court believes that taking an active interest in the judicial process,
cooperating with CVS, and working to reach the goals set in a service plan are all
"necessary steps to supporting a parent-child relationship" where the children have been
.adjudicated as dependent, such as in the present case. In re E.A.P., 944 A.2d 79, 83 (Pa.
Super. 2008). After giving Mother a significant amount of time to meet these goals and
better herself as a person and parent, this Court no longer believes that Mother is capable
of remedying the incapacity and neglect which led to the Children's placement in
September of2013 and in June of 2014.
II. Involuntary termination is in the best interest of the Children under 23 Pa.
c.s. § 2511(b).
Unlike the analysis a court conducts under§ 251 l(a), the analysis under§ 25 I l(b)
focuses on the interests of the child. This analysis includes "weighing the needs and
welfare of the child, as well as an examination of the emotional bond.between parent and !'
1
child... which 'encompasses intangibles such as love, comfort, security, and stability.'"
I
In re LG., 939 A.2d at 956 (citing In re D.W., 856 A.2d 1231, 1234 (Pa Super. 2004);
quoting In re Adoption ofR.J. S., 90 l A.2d 502, 514 (Pa. Super. 2006)). I
!
'
In the present case, it is apparent to the Court that Mother loves the Children, but,
as noted above, analysis under § 2511(b) focuses on the Children, not the parents. From
the Children's point of view, this Court questions the bond that may exist between the
Children and their Mother. Toe Children were each placed into foster care at a young
enough age that the bond between parent and child was never fully formed with their
biological Mother. At the time that Am & and J: were first adjudicated as
dependent and taken out of Mother's care in September of 2013, they were approximately
two years old and one year old, respectively. When AvA was taken out of Mother's
care in June of 2014, she was approximately six months old. Since their placement in the
S~s foster care in June of 2014, Mother has seen the Children four times. This Court
heard testimony that the Children were fearful and apprehensive about visiting with
12
Mother,60 and that they have exhibited concerning behavior following their visits.61 As
such, this Court found that at best a limited emotional bond exists between Mother and
the Children, and that such bond is not so strong as to render tennination of Mother's
parental rights unwise.
Concerning· the mental and physical needs of the Children, this Court believes that
the Children have a great need for stability and permanence in their lives. All three
Children have now been living in the 8111Ws home for more than a year. The evidence
showed that The ~s have provided a safe, stable, and loving environment for the
children, and that a strong bond exists between the children and the Silles. Furthermore,
the ~s planned to adopt all three children if given the opportunity. This Court found
at the time of the hearing that adoption by the stlles would provide the permanency that
these children desperately need. In contrast, as noted above, Mother has continually faced
stability problems with both income, housing, and sobriety, and is not exhibiting behavior
that those issues will be resolved any time soon. Thus, the S family can provide the
Children with the stability and permanence that they need, whereas Mother cannot.
Therefore, this Court found that involuntary termination of Mother's parental
rights is in the best interest of all three Children.
(;ONCLUSION
In summary, this Court found clear and convincing evidence to support
termination of Ms. 1 ;z ;' parental rights under 23 Pa. C.S. § 25ll(a)(2), based on
Mother's continual failure to cooperate with CYS, her failure to make progress toward
the goals established in her Service Plan, and her failure to participate in the judicial
proceedings concerning her children. Furthermore, this Court found that termination of
Mother's parental rights under§ 25ll(b) is in the best interestofthe children because
60
N.T. Jan. 14, p. 58.
61
N.T. Jan. 14, p. 59-62.
13
Mother is unable to provide the stable environment that the children need.
BY THE COURT,
Lindsay D. Baird, Esq.
16 West High Street
Carlisle, PA 17013
Attorney for Cumberland County
Children and Youth Services
Cindy L. Villanella, Esq.
875 Market Street
LeJDOyne,PA,.17043
Guardian ad Litem
John J. Mangan, Esq. i
)
17 West South Street
Carlisle, PA,17013 I
Attorney for Biological Father
Joseph L. Hitchings, Esq.
5000 Ritter Road
Suite202
I
I
Mechanicsburg, PA
Attorney for Shane Wright
(No. 91 Adoptions 2014)
Bret Shaffer, Esq.
2080 LinglestoWn Road
Harrisburg, PA 17110 I
Attorney for Foster Parents I
I
Michael J. Wbare, Esq.
~7 E. Pomfret Street j
Qrlisle, PA 17013
Attorney for Mother
I
14