Adoption of: T.N.C., Appeal of: L.M.M. ( 2019 )

J-S64040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF T.N.C. : PENNSYLVANIA
:
:
APPEAL OF: L.M.M., NATURAL :
MOTHER :
:
:
: No. 1142 WDA 2019
Appeal from the Order Entered June 28, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
9B In Adoption 2017
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF T.A.M. : PENNSYLVANIA
:
:
APPEAL OF: L.M.M., NATURAL :
MOTHER :
:
:
: No. 1143 WDA 2019
Appeal from the Order Entered June 28, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 9A, and In Adoption 2017
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: M.M.A.W. : PENNSYLVANIA
:
:
APPEAL OF: L.M.M., NATURAL :
MOTHER :
:
:
: No. 1144 WDA 2019
Appeal from the Order Entered June 28, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 9 In Adoption 2017
J-S64040-19
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 13, 2019
L.M.M. (Mother) appeals from the May 23, 2019 decree entered in the
Court of Common Pleas of the Erie County—Orphans’ Court (trial court),
granting the petition of the Erie County Office of Children & Youth (OCY) to
terminate her parental rights to her minor children, T.N.C., T.A.M., and
M.M.A.W. (collectively, the Children). After careful review, we affirm.
I.
We glean the following facts from the certified record. T.N.C. (age 10)
and T.A.M. (age 5) were removed from Mother’s care and placed in protective
custody with OCY in July 2015 and adjudicated dependent shortly thereafter.
Following a review hearing, in November 2015, they were returned to Mother’s
custody, though dependency continued. However, M.M.A.W. (age 3) was born
in January 2016 and only days after her birth, all of the Children were again
removed from Mother’s custody. M.M.A.W. was also found to be dependent.
All of the Children then remained in placement in various foster homes
throughout the remaining history of the case.
In 2017, OCY petitioned to terminate Mother’s parental rights and the
parental rights of the Children’s fathers. In October 2017, the trial court
terminated the parental rights of the fathers but found that OCY had not met
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* Retired Senior Judge assigned to the Superior Court.
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its burden of proof with regard to Mother. As a result, the trial court ordered
OCY to resume services with Mother to address her problems with drug and
alcohol use, mental health, grief and parenting.
Patty Bush, the OCY caseworker who took over Mother’s case when the
initial termination petition was denied in 2017, testified that the denied
petition was Mother’s “second chance” to develop a relationship with the
Children. (Notes of Testimony (“NT”), 6/24/19, at 5). However, Mother did
not recognize that she had problems with drug and alcohol use and mental
health. She made excuses when she repeatedly tested positive for marijuana
and she delayed for months in pursuing treatment for her mental health
problems. By June 2018, Mother had completed outpatient treatment for her
drug use and was able to consistently pass drug screens, but for several
months, Mother was unable to visit the Children and reform her bond with
them because she failed the drug tests. Mother also did not continue with any
treatment program or meetings after completing the outpatient therapy and
she was arrested for disorderly conduct while intoxicated in 2019.
Both of the OCY caseworkers who had interacted with Mother following
the denied termination petition opined that she had made no progress with
her parenting skills. Tina Ferraro, an employee at Project First Step, testified
that they had attempted to work with Mother to improve her parenting skills
in the past, but Mother was unable to successfully complete the program.
After the unsuccessful termination proceedings, Project First Step resumed
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services with Mother. However, Mother would refuse to answer the door for
appointments or would cancel or reschedule the appointments. She was
unable to answer questions about her relationship with the Children and she
would not interact with the Children during visits. Mother did not recognize
any deficiencies in her parenting skills or display any desire to improve her
parenting. Eventually, Project First Step discharged Mother a second time for
lack of progress.
Prior to the dependency proceedings, T.N.C. witnessed domestic
violence between Mother and M.M.A.W.’s father and he began trauma
counseling while he was in foster care. Mother would deny that the abuse
ever occurred, tell him not to talk about it as well as refuse to acknowledge
his feelings about what he had witnessed. After being in foster placement for
several years, T.N.C. seemed reluctant to talk about his life in front of Mother.
He has expressed concern that Mother would be unable to keep him safe in
her home.
Both OCY caseworkers and Ferraro opined that Mother had not made
progress on any of her goals since the first termination petition was denied in
2017. One caseworker confirmed that there were no other services that the
agency could offer Mother to address the issues that had led to dependency.
Because she did not make adequate progress in developing her parenting
skills, Mother was never permitted to have unsupervised visits with the
Children.
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As a result of Mother’s lack of progress with OCY in the year following
the denied petition for termination, the trial court changed the placement goal
to adoption in November 2018. Finding that the evidence had established
several statutory grounds for involuntary termination, the trial court entered
a decree of involuntary termination of parental rights on June 28, 2019.
Mother filed a timely notice of appeal, and both the trial court and Mother
have complied with Pa.R.A.P. 1925.
II.
On appeal, Mother argues that the termination decree should be
reversed because it was not supported by clear and convincing evidence and
that there was insufficient evidence that termination of her parental rights is
in the best interests of the Children. As further discussed below, we hold that
the trial court relied on statutory grounds for involuntary termination which
are supported by our independent review of the record.
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)). Clear and convincing evidence
is that which is so “clear, direct, weighty and convincing as to enable the trier
of fact to come to a clear conviction, without hesitance, of the truth of the
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precise facts in issue.” In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017)
(citation and quotation marks omitted). 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.1
The trial court found clear and convincing evidence to terminate
Mother’s parental rights pursuant to Sections 2511(a)(1), (2), (5), and (8):
(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:
(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.
(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.
***
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1 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). Moreover, “[w]e give great
deference to trial courts that often have first-hand observations of the parties
spanning multiple hearings.” In re Interest of D.F., 165 A.3d 960, 966 (Pa.
Super. 2017). “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). “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, 477 (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.
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(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 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.
When reviewing a trial court’s order terminating parental rights, we need only
agree as to one subsection of Section 2511(a), as well as Section 2511(b), to
affirm the order. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Accordingly, we proceed to our analysis of the trial court’s findings
under subsection 2511(a)(8).
It is undisputed that all of the Children have been in foster placement
since January 2016, over three years prior to OCY filing the termination
petitions at issue in this case. M.M.A.W. has been in placement for virtually
her entire life. It is clear that the Children have been removed from Mother’s
care much longer than the twelve months prescribed by the statute. 23
Pa.C.S. § 2511(a)(8).
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OCY also presented clear and convincing evidence that the conditions
that led to the Children’s placement continue to exist. Two OCY caseworkers
testified that since the first termination petition was denied in 2017, Mother
has made virtually no progress in addressing the issues that led to the
Children’s placement. The only area of progress that is apparent from the
record is that, after many months where Mother’s visitation with the Children
was limited due to positive drug tests, Mother was able to complete outpatient
treatment and stop using marijuana. However, she still uses alcohol and has
not sought continued treatment for drug and alcohol use. When ordered to
address both the drug use and mental health issues that had led to the
Children’s placement, Mother delayed for months and did not follow through
with appointments, counselling or treatment.
Further, Mother was largely uncooperative with Project First Step’s
attempts to address the deficiencies in her parenting. She refused to
acknowledge that she had any problems with parenting and would not take
responsibility for the Children’s placement. She did not interact well with the
Children during her limited visitation time or respond productively when given
instruction on her parenting. She does not recognize that T.N.C. witnessed
domestic violence as a young child or validate his fears when he attempted to
discuss the trauma in counselling. As a result, T.N.C. seems reluctant to talk
to Mother about his life. All of the Children are thriving in foster care and have
substantially bonded with their foster family. The trial court did not abuse its
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discretion in finding that OCY presented sufficiently clear and convincing
evidence to support termination based on Section 2511(a)(8).
B.
Having found that the termination of Mother’s parental rights was
justified under Section 2511(a)(8), the next step of our inquiry is whether the
termination is in the best interests of Children. 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
M.Z.T.M.W., 163 A.3d 462, 464 (Pa. Super. 2017). It is sufficient for the
court to rely on the opinions of social workers and caseworkers when
evaluating the impact that termination of parental rights will have on a child.
See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). “In this context, the
court must take into account whether a bond exists between child and parent,
and whether termination would destroy an existing, necessary and beneficial
relationship.” Id.
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.,
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71 A.3d 251, 267 (Pa. 2013) (citation omitted). The orphans’ court may
consider intangibles such as the love, comfort, security and stability the child
might have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 (Pa.
Super. 2011). Ultimately, the concern is the needs and welfare of the child.
In re Z.P., supra at 1121.
There was clear and convincing evidence produced at the hearing to find
that the Children are thriving in their current placement and that termination
of Mother’s parental rights is in their best interest. In his earlier placements,
T.N.C. exhibited some behavioral problems but those issues have abated in
his current placement. NT at 34. He has expressed that he wishes to stay
with his foster parents. Id. at 33, 84. All of the Children have bonded with
the foster parents. Id. at 33, 36, 41. They refer to the foster parents as
“mom and dad,” and they think of the other children in the home as their own
siblings. Id. at 83. They have not been able to develop the same bond with
Mother, and T.N.C. has expressed concern about whether Mother would be
able to keep him safe. Id. at 91. The Children’s current placement has
provided them with stability and security for two years, and the trial court did
not abuse its discretion in finding that it is in the Children’s best interest to
remain with their foster parents.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2019
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