In the Interest of: K.N., a minor, Appeal of: N.K. ( 2015 )

J-S32015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.N., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.K., NATURAL MOTHER,
Appellant No. 32 WDA 2015
Appeal from the Order Entered December 8, 2014
In the Court of Common Pleas of Blair County
Civil Division at No(s): CP-07-DP-0000033-2013
IN THE INTEREST OF: K.N., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.K., NATURAL MOTHER,
Appellant No. 33 WDA 2015
Appeal from the Order Entered December 19, 2014
In the Court of Common Pleas of Blair County
Orphans’ Court at No(s): 2014 AD-53
BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 24, 2015
N.K. (“Mother”) appeals the December 8, 2014 order changing the
goal in the dependency case of her daughter, K.N. (“Child”), born August of
2003, to adoption and the December 19, 2014 order involuntarily
terminating Mother’s parental rights to Child. We affirm.
J-S32015-15
We glean the facts of this case from the certified record and the trial
court’s opinion. Blair County Children, Youth and Families (“CYF”) became
involved with Child in March 2013 through general protective services due to
Mother’s bizarre behavior, which included reporting that Child had been
kidnapped. During services, Child reported sexual abuse, which led to an
investigation and resulted in criminal charges against the paramour of
Child’s maternal grandmother. CYF established a safety plan for Child,
which Mother violated within months by allowing Child to have contact with
her maternal grandmother, who lived with the alleged sexual abuse
perpetrator. At nine years old, Child requested foster placement due to her
exposure to domestic abuse between Mother and Mother’s paramour.
Despite CYF’s attempts to work with Mother through mental health and
family services, Mother’s mental instability and violation of the safety plan
resulted in an adjudication of Child’s dependency and placement in foster
care on May 2, 2013.
CYF provided treatment and counseling services to assist Child in
emotionally managing the sexual-abuse criminal proceedings, the loss of her
family, and the transition to foster care. CYF also provided services to
Mother, including a psychological evaluation and a referral for drug and
alcohol assessment. Over the course of numerous dependency proceedings,
Child’s goal remained reunification until December 8, 2014, when the trial
court determined that Mother had failed to comply with the permanency plan
-2-
J-S32015-15
and could not provide a safe, stable home for Child. Order, 12/8/14, at ¶ 3.
Based on the trial court’s findings and Child’s placement for almost eighteen
months, CYF filed a petition for termination of Mother’s parental rights on
October 9, 2014. After conducting a hearing over three days, the trial court
granted CYF’s petition on December 19, 2014, involuntarily terminating
Mother’s parental rights to Child.1 Mother and the trial court complied with
Pa.R.A.P. 1925.
Mother presents the following questions for our consideration:
1. Whether the agency met its burden of proving either that the
mother is incapable of performing parental duties, or that she
has failed to remedy the conditions which led to her child’s
dependency placement?
2. Whether termination of parental rights is in the child’s best
interests, where a bond exists between parent and child, and no
clear alternative path to permanency exists?
3. Whether changing the goal to adoption was appropriate,
where the mother had made substantial progress toward
alleviating the problems that led to placement of her child, and
had maintained a strong bond with the child?
____________________________________________
1
After the legally presumptive father, W.N., voluntarily relinquished his
parental rights to Child, the trial court entered an order terminating W.N.’s
rights on December 19, 2014. W.N. has not appealed that order and is not
a party to this appeal. Child’s biological father, J.W., supported the goal
change to adoption and was willing to voluntarily relinquish his rights.
However, because J.W. requested that his voluntary relinquishment be
contingent on the termination of Mother’s parental rights, the trial court did
not accept J.W.’s voluntary relinquishment; rather, it entered an order
involuntarily terminating J.W.’s parental rights on December 19, 2014.
Upon J.W.’s request, the trial court stayed that order until disposition of
Mother’s appeal to this Court. Order, 2/10/15.
-3-
J-S32015-15
Mother’s Brief at 6.
We conduct our review according to the following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent
evidence. Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. Where a trial court has
granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision
the same deference that we would give to a jury verdict.
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.
The burden is upon the petitioning person or agency to prove by
clear and convincing evidence that its asserted grounds for
seeking the termination of parental rights are valid. Moreover,
we have explained:
The standard of clear and convincing evidence is defined
as testimony that 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 precise
facts in issue.
The trial court is free to make all credibility determinations, and
may believe all, part, or none of the evidence presented. If the
findings of the trial court are supported by competent evidence,
we will affirm even if the record could also support the opposite
result.
In re J.F.M., 71 A.3d 989, 992–993 (Pa. Super. 2013) (internal quotation
marks and citations omitted).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of 23
Pa.C.S. § 2511(a). In this case, the trial court terminated Mother’s parental
-4-
J-S32015-15
rights under subsections (1), (2), (5), and (8) of section 2511(a). On
appeal, we will focus on subsection (8), which provides 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:
* * *
(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.
23 Pa.C.S. § 2511(a)(8).
On appeal, Mother argues, “The evidence in this case does not clearly
establish that [Mother] has failed to address her mental health problems.”
Mother’s Brief at 15. In support of her position, Mother challenges the
report of Dr. Marolyn Morford as outdated, incomplete, and inconclusive.
Id. at 15–16. Additionally, Mother highlights the testimony of her mental
health counselor “who testified at the twelve month review hearing, [and]
noted that [Mother’s] condition had improved.” Id. at 17. According to
Mother, the question of “whether [she] had the capacity to parent her child
at the time her parental rights were terminated – remains unanswered.” Id.
We have discussed the requirements of section 2511(a)(8) as follows:
-5-
J-S32015-15
Section (a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the [child’s] removal by the
court. Once the 12-month period has been established, the
court must next determine whether the conditions that led to the
[child’s] removal continue to exist, despite the reasonable good
faith efforts of [the agency] supplied over a realistic time period.
Termination under Section 2511(a)(8) does not require the court
to evaluate a parent’s current willingness or ability to remedy
the conditions that initially caused placement or the availability
or efficacy of [agency] services.
In re J.F.M., 71 A.3d at 993 (quoting In re K.Z.S., 946 A.2d 753, 759 (Pa.
Super. 2008)).
Here, the first element of section 2511(a)(8) has been met. Child had
been in CYF’s care for a period of seventeen months from the adjudication of
dependency on May 2, 2013, until CYF filed the termination petition on
October 9, 2014, and for an additional two months as of the final
termination hearing on December 8, 2014.
Addressing Mother’s challenge to the evidence and the second element
of section 2511(a)(8)—whether the conditions which led to Child’s placement
continue to exist—the trial court opined as follows:
The dependency record which this [c]ourt incorporated into
these orphan court proceedings contains clear and convincing
evidence that despite the best efforts of CYF to assist the Mother
to remedy the reasons placement occurred, Mother has not
gained any stability and continues to struggle to maintain her
own existence. The psychosocial report completed by Dr.
Marolyn Morford, in October 2013, (Exhibit B-April 14, 2014
hrg.), indicates under Prognosis, page 8 of the report:
7) Mother’s prognosis: [Mother’s] prognosis is completely
dependent upon her cooperation with supportive personal
treatment that would address the problem mentioned
above as well as her depression and anxiety problems.
-6-
J-S32015-15
Participation [in] random drug/alcohol test[s] would also
be important, these are difficult long standing problems
that will not change in the very near future. It has been 6
months since her daughter was removed and her
assessment here does not indicate much insight.
The dependency record will also reveal that this [c]ourt
attempted a positive strength building approach in all [c]ourt
proceedings to encourage and engage Mother, in light of her
mental health instability, which effort failed, unfortunately, to
change any pattern of Mother in the 18 months [Child] remained
in care. We recognize the sexual abuse criminal charges created
complications as [Child] struggled emotionally in September
2013. Visits with her Mother distressed her and caused
nightmares as she relived her abuse and trauma. She also felt
guilty for reporting the abuse and causing hurt and harm to her
Mother. [Child’s] therapist stopped visits with her Mother at that
time, however, the goal of visits resumed in April 2014 and
[Child] and her Mother had positive interaction however, Mother
could not maintain consistency missing approximately 50% of
the visits available to her. When the therapist approved visits to
continue outside the supervision and assessment of the
therapist, the provider CYF assigned to facilitate that contact
could not locate the Mother and confirm her permanent
residence. In fact, [CYF] had a delay in assigning the provider
as they too had encountered the same struggle to maintain
contact with Mother before assigning the provider in late August
2014.
Additionally, the final Orphan’s Court proceeding on
December 8, 2014 indicates the Mother failed to appear without
any explanation or contact with the [c]ourt and/or her attorney.
Mother attended the first hearing on the Petition to Terminate
Parental Rights on October 22, 2014 with counsel. This [c]ourt
took testimony from all witnesses except the Mother, due to time
constraints. This [c]ourt rescheduled the Termination of
Parental Rights hearing for November 12, 2014 at which time
Mother failed to appear and her counsel argued for another
continuance which the [c]ourt granted.3 The final hearing on
December 8, 2014 indicated through the testimony of the foster
Mother that despite the foster Mother’s past practice of
arranging and providing for direct contact with the Mother and
[Child] (with CYF consent) the Mother had not had any contact
with [Child] after November 16, 2014. Mother’s attorney
-7-
J-S32015-15
affirmed that Mother met with him prior to December 8, 2014
and knew the consequences of the proceedings from his
explanation despite perhaps her alleged “confusion”. We find all
of these facts circumstantially support the fact Mother has not
yet found stability or the will to make changes, assert her
parenthood and provide permanency for [Child]. In other words,
CYF has without a doubt met their burden to establish that
Mother’s incapacity or refusal has caused [Child] to be without
essential parental care necessary for her physical and mental
well-being and the conditions and causes of the incapacity and
refusal cannot or will not be remedied by the Mother. See23
Pa.C.S.A.2511 Section 2511 (a)(2)(5) & (8)
3
At the outset of the November 12, 2014 hearing, this
[c]ourt denied the continuance; however, at the end of
that hearing we granted counsel the opportunity to call
Mother and we accepted her word that she did not know of
the proceeding until the day before, however she still failed
to appear or make contact with her counsel. In an
abundance of caution this [c]ourt rescheduled the hearing
for November 19, 2014 and Mother’s counsel requested
another continuance to allow more time for him to meet
with Mother before her testimony. We granted that
request and reset the hearing for December 8, 2014.
In summary, Mother has demonstrated bizarre and
irrational behavior, has never evidenced mental stability and
appears to utilize illegal drugs to self-medicate rather than
receive treatment.4 She has not established a permanent
residence and continues to reside with [T.S.] with whom
domestic violence has occurred. Her strong resistance to change
or to take accountability for her actions has continued for over
18 months. Essentially these conditions seriously impair her
functioning and parenting skills as noted in the report of Dr.
Morford. Based upon this ample record, we find CYF has met its
high burden to provide evidence for termination [of] parental
rights.
4
While the therapist facilitated visits between Mother and
[Child], Mother lost a great deal of weight and openly
showed the track marks on her arms from drug use.
Trial Court Opinion, 3/10/15, at 4–6.
-8-
J-S32015-15
Upon review, we discern support in the record for the trial court’s
findings. Child was removed by CYF due to concerns related to Mother’s
mental instability and her violation of the safety plan. Secondary concerns
included Mother’s drug and alcohol history, poor housing, and allegations of
domestic violence. We note some evidence of Mother’s progress. According
to Mother’s mental health counselor, as of Mother’s April 3rd and April 10th,
2013 sessions: she “is a lot more calmer, a lot more focused. She has taken
the initiative to . . . self-enroll in home nursing agency, drug and alcohol
counseling program.” N.T., 4/10/14, at 20. However, the record further
reveals that Mother did not appear for the initial shelter care or adjudicatory
proceedings. N.T., 5/3/13, at 1; 5/10/13, at 1. Moreover, Mother suffers
from major depressive disorder and generalized anxiety disorder, and she
has a history of drug abuse, inpatient hospitalizations, domestic violence,
and noncompliance with services. N.T., 5/10/13, at 26; N.T. 12/19/13, at
38–39; N.T., 7/21/14, at 1–2, 5–15; N.T., 10/22/14, at 19–20, 26–29.
Significantly, Mother’s visitation with Child was sporadic: “She had about a
fifty percent show rate or not and sometimes it was a no-show, sometimes it
was cancellation, sometimes it was showing up to a visit for half an hour or
more late.” N.T., 11/22/14, at 11. With the exception of a family dinner at
Pizza Hut in November 2014, Mother did not have visits with Child from July
2014 through the December 8, 2014 hearing. N.T., 11/12/14, at 34–35;
N.T., 12/8/14, at 5. Additionally, Mother’s whereabouts were sometimes
-9-
J-S32015-15
unknown to CYF, counselors, service providers, and her attorney, which
resulted in no contact with her. N.T., 10/22/14, at 26-29; N.T., 11/12/14,
at 3.
As for housing, Mother lived between her paramour’s home, her own
house, which had no running water, and a friend’s house. N.T., 4/10/14, at
81–87; N.T., 10/22/14, at 26-29. Caseworkers who visited Mother’s
residence observed from the outside that it was in poor condition and
appeared to be vacant. N.T., 7/21/14, at 40, 45–56; N.T., 10/22/14, at 27,
29. CYF caseworkers were not able to conduct a home inspection because
they could not reach Mother, she would cancel the appointment, or she
would not show up for the appointment. N.T., 10/22/14, at 25–29, 47–49.
On July 31, 2014, an Altoona police officer found drugs and paraphernalia in
Mother’s residence, multiple pieces of mail addressed to Mother, and he
obtained statements from individuals in the home that Mother lived there.
The officer also observed that the home was in poor condition, bug infested,
with bags of trash overflowing in the kitchen and clutter, clothing, and
garbage strewn throughout the house. N.T., 10/22/14, at 14–21. At the
time of the termination hearing, Mother did not appear on the second and
third dates, despite the trial court rescheduling twice so Mother could testify.
N.T., 11/22/14, at 1, 44–50; N.T., 12/18/14, at 1–7.
In light of the foregoing, we discern no abuse of the trial court’s
discretion in finding that CYF presented clear and convincing evidence that
- 10 -
J-S32015-15
the conditions which led to the removal or placement of Child continue to
exist. 23 Pa.C.S. § 2511(a)(8). The trial court heard from caseworkers and
medical experts regarding Mother’s ongoing mental instability and inability
to care for Child. The trial court was in the best position to assess the
credibility of these witnesses. Thus, we conclude that the trial court’s legal
conclusion—that termination of Mother’s parental rights would best serve the
needs and welfare of Child—is without error.
Mother’s second issue challenges the trial court’s bond analysis
pursuant to 23 Pa.C.S. § 2511(b). According to Mother, termination would
be appropriate, despite bonds, if “substantial, possibly permanent, damage
[was] done to [Child] by the prolonged, unhealthy, pathological bond with
Mother[.]” Mother’s Brief at 19–20 (quoting In re TSM, 71 A.3d 251, 271
(Pa. 2013)). Here, Mother asserts, “there is no evidence that the bond with
the mother is unhealthy.” Id. at 20.
Section 2511(b) provides as follows:
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
- 11 -
J-S32015-15
23 Pa.C.S. § 2511(b). As this Court has explained, “Section 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.” In re Adoption of C.J.P., 114 A.3d 1046, 1054 (Pa. 2015)
(quoting In re K.K.R.–S., 958 A.2d 529, 533 (Pa. Super. 2008)). “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.” Id. (quoting In re N.A.M., 33 A.3d 95, 103 (Pa.
Super. 2011)).
[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.
N.A.M., 33 A.3d at 103 (quoting In re A.S., 11 A.3d 473, 483 (Pa. Super.
2010)); see also In re T.D., 949 A.2d 910, 920–923 (Pa. Super. 2008)
(affirming termination of parental rights where “obvious emotional ties exist
between child and parents, but parents are either unwilling or unable to
satisfy irreducible minimum requirements of parenthood,” and where
preserving parents’ rights would prevent child from being adopted and
attaining permanency).
- 12 -
J-S32015-15
The trial court addressed section 2511(b) as follows:
We hasten to add that [Child] does indeed love her Mother
and as Mother argues, [Child] has a bond with her Mother. We
must therefore address whether termination of Mother’s rights
would best serve the developmental, physical and emotional
needs and welfare of [Child] as set forth in Section 2511(b).
The record indicates [Child] continued to request and receive
contact with her Mother during her placement in her first and
now second foster care placements. Other than the length of
time from September 2013 – June 2014 where Mother did not
have visits with [Child], she has enjoyed phone contact, letters
and visits through the foster family and [Child’s] therapist as
well as CYF contacts at Mother’s availability.5 Mother and [Child]
have enjoyed this contact despite the fact that Mother has not
had the ability to provide the daily essential care and guidance
required of a parent toward a child. We believe this
demonstrates that [Child] has the capacity to love her Mother
and concurrently recognize her Mother loves her but cannot
provide permanency for her. In fact, the testimony indicates
that [Child] has adjusted to her second foster family, has bonded
to them and has blossomed in her confidence and social skills
enabling her to state her needs and accept nurturing. We note
once again, at 9 years old at the inception of this case, [Child]
requested foster care. She continues to have the added stress
of pending criminal charges to deal with the sexual abuse
allegations. Until disposition of these charges she continues to
need a very consistent, nurturing stable environment to help her
manage that difficult experience. In the 18 months of
placement, [Child] has demonstrated no adverse consequences
of the severed relationship with her Mother. To the contrary,
evidence exists that she has begun to heal. We attribute that
fact, in large measure, to her foster Mother in light of the fact
the foster Mother promotes contact with [Mother] by even
coordinating a dinner at Pizza Hut for [Child’s] mom and family
to maintain contact. This helps [Child] to keep her roots “intact”
in a healthy manner as she grows and flourishes in an
appropriate setting for permanency. This bodes well for [Child’s]
long-term emotional well-being, despite the need to terminate
rights to remove the limbo of foster care.
5
Even with the openness of nonjudgmental contact
provided by the foster family the Mother did not/could not
- 13 -
J-S32015-15
establish any regularity or meaningful contact for over six
months from July 2014-December 2014.
Trial Court Opinion, 3/10/15, at 6–8.
Upon review, we find support in the record for the trial court’s findings.
While in Mother’s custody, Child was exposed to Mother’s unstable mental
health, drug issues, and domestic violence. N.T., 5/10/13, at 27, 33–36.
Child experienced nightmares and anxiety after visits with Mother. N.T.,
11/12/14, at 14, 17, 28. Mother was not supportive of Child with regard to
Child’s allegations of sexual abuse. N.T., 4/10/14, Exhibit B at 2–3. Child
disclosed to her counselor that Mother could not keep Child safe, and Child
took the blame for Mother’s shortcomings. N.T., 12/19/13, at 21; N.T.,
7/21/14, at 24; N.T., 11/12/14, at 17, 28. As of the December 8, 2014
termination hearing, contact between Child and Mother had ceased, with the
exception of a family dinner in early November 2014 arranged by Child’s
foster mother. N.T., 12/8/14, at 5–6. As of the final termination hearing,
Child had been in placement for almost twenty months.
In contrast, Child has been in a pre-adoptive home with the “D” family
since June 8, 2014. N.T., 11/12/14, at 31–32. According to a CYF
caseworker, Child is doing very well with the D family; she has developed a
very strong relationship with them and asked if she could call her foster
parents “mom” and “dad.” N.T., 10/22/14, at 38. Additionally, Child’s
foster mother provides a unique sensitivity to Child’s situation and need to
maintain roots, having been separated from her own mother as a child
- 14 -
J-S32015-15
without getting a chance to meet her mother before her death. N.T.,
12/8/14, at 10–11. Consequently, foster mother has encouraged contact
between Child and Mother. N.T., 10/22/14, at 38–39. Child indicated that
she likes her foster family; she described a positive relationship with foster
mother, advised the CYF caseworker that she felt safe in her foster home,
and indicated that being adopted by them would be “alright” with her. N.T.,
4/10/14, at 53–54; N.T., 7/21/14, at 27–28. According to Child’s counselor,
if Mother’s parental rights were terminated, Child would be able to transition
into her pre-adoptive family with whom she has built a strong attachment.
N.T., 11/22/14, at 26–27. Moreover, the D family would ensure healthy,
appropriate, ongoing contact between Child and Mother in the future. Id. at
8–9, 26–27.
In light of the foregoing, we discern no abuse of the trial court’s
discretion in finding that, although Mother loves Child, she cannot provide
permanency for Child. See In re D.A.T., 91 A.3d 197 (Pa. Super. 2014),
appeal denied, 95 A.3d 278 (Pa. 2014) (holding evidence sufficient to
support termination of parental rights even though Mother’s testimony
revealed that she clearly loves her children). The trial court heard testimony
regarding Child’s relationship with Mother and her relationship with the pre-
adoptive family. The trial court was in the best position to assess the
credibility of the witnesses. Thus, we conclude that the trial court’s legal
conclusion—that termination of Mother’s parental rights would best serve the
- 15 -
J-S32015-15
developmental, physical and emotional needs and welfare of Child—is
without error.
Mother’s final issue challenges the trial court’s order changing the
permanency goal to adoption. Mother’s Brief at 20. We decline to review
this claim. As CYF points out, if the Superior Court affirms the termination
of Mother’s parental rights, “the issue of the goal change is moot and need
not be addressed by the Superior Court.” CYF’s Brief at 40 (citing In re
M.T., 101 A.3d 1163, 1166 (Pa. Super. 2014)). We are affirming the
termination of Mother’s parental rights. Therefore, her goal change issue is
moot. M.T., 101 A.3d at 1166.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
- 16 -