In Re: M.X.O., a minor, Appeal of: T.A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.X.O., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.A., MOTHER No. 66 WDA 2015
Appeal from the Order entered December 11, 2014,
in the Court of Common Pleas of Blair County, Orphans’
Court, at No(s): 2014 AD 61
IN THE INTEREST OF: A.M.O., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.A., MOTHER No. 68 WDA 2015
Appeal from the Order entered December 11, 2014,
in the Court of Common Pleas of Blair County, Orphans’
Court, at No(s): 2014 AD 61A
BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 22, 2015
T.A. (“Mother”) appeals the decrees dated December 11, 2014, and
entered on December 12, 2014, that granted the petitions filed by the Blair
County Children, Youth, and Families (“CYF,” “BCCYF,” or the “Agency”),
seeking to involuntarily terminate her parental rights to M.X.O., a male born
in March 2006, and A.M.O., a female born in December 2007, (collectively,
the “Children”), pursuant to sections 2511(a)(2), (5), (8), and (b) of the
Adoption Act, 23 Pa.C.S.A. § 2511(2), (5), (8), and (b).1 We affirm.
1
In the same decrees, the trial court involuntarily terminated the parental
rights of the Children’s father, T.O. (“Father”). Father has not filed a notice
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The trial court adequately and accurately set forth the factual
background and procedural history of this appeal in its opinion entered on
January 27, 2015, which we incorporate herein. See Trial Court Opinion,
1/27/15, at 1-13. The trial court stated that, on September 25, 2104, after
the 48-month permanency/dispositional review/goal change hearing held on
September 22, 2014, the court entered a permanency review order changing
the permanency goal for the Children to adoption pursuant to section
6351(f) of the Juvenile Act, 42 Pa.C.S.A. § 6351(f). Id. at 12.
On October 28, 2014, CYF filed petitions for the involuntary
termination of the parental rights of both Mother and Father with regard to
both of the Children. On December 4, 2014, the trial court held a hearing
with regard to CYF’s Motion for 51st Month Interim Permanency/Dispositional
Review Hearing, which was combined with the involuntary termination
proceedings. At the time of the hearing, A.M.O. was living in South Dakota
with Mother’s aunt, S.B., who is the twin sister of Mother’s mother, L.A.
M.X.O. was removed from S.B.’s home, and was residing in a Residential
Treatment Facility (“RTF”) in Pennsylvania. At the hearing, CYF presented
the testimony of Taylor Zindel, the CYF ongoing caseworker assigned to the
Children. N.T. Hearing, 12/4/14, at 10-11. CYF then presented the
of appeal from the decrees terminating his parental rights, nor is he a party
to the instant appeal.
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testimony of A.M.O.’s pre-adoptive foster mother, S.B., via telephone. Id.
at 28 and 31. Mother testified on her own behalf. Id. at 42.
After the hearing, in orders dated December 11, 2014, the trial court
made the following factual findings regarding Mother.
[Mother] still has not established any structure or stability
in her life. By her own admission, she is an addict and
recognizes this will be a life-long struggle for her. She is
still residing with her parents, who have a history of
domestic violence and [] addiction []. They have been ruled
out as a resource for the [C]hildren. [Mother] has not had
any personal visits with the [C]hildren since they were
transitioned to South Dakota. She is permitted to have
written communication that is supervised by each child’s
therapist. M.X.O. has not demonstrated any interest in
receiving such letters, until just recently when he wrote a
letter in return to his mother. [Mother’s Exhibit 1].
[Mother] is in intensive outpatient treatment at Home
Nursing Agency for co-occurring drug and alcohol and
mental health issues. Per the report dated December 1,
2014, her responsiveness is considered “good,” her attitude
toward service is “excellent,” and her progress toward goals
is “good.” [Petitioner’s Exhibit 1]. The sexual abuse
allegations wherein [Mother] was named as the perpetrator
and M.X.O. as the victim child were unfounded. [Mother]
passed a polygraph test, and M.X.O. underwent a forensic
interview, and there was no evidence that these allegations
were true.
[Mother] has been in and out of treatment for years, and
still struggles with her addiction issues. She has also
undergone counseling for personal relationships, anger
management, art therapy, cognitive behavioral therapy, and
other mental health services. Despite a multitude of
services, [Mother] has been unable to demonstrate that she
can consistently provide a safe, secure[,] and stable
placement for approximately four years now. [Mother]
testified that she would relinquish her rights if the
[C]hildren would be adopted by her cousin. She has had
three [] [driving under the influence] convictions. [Mother]
has a mental health diagnosis of post[-]traumatic stress
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disorder[,] anxiety[,] depression[,] bi-polar condition[,] and
obsessive compulsive disorder. She is currently on three []
different medications.
Trial Court Opinion, 1/27/15, at 14, quoting Trial Court Order, 12/11/14, at
¶ 3 (some internal capitalization omitted).
On December 12, 2014, the trial court entered the decrees
involuntarily terminating Mother’s parental rights to the Children, pursuant
to sections 2511(a)(2), (5), (8), and (b) of the Adoption Act. On January
23, 2015, this Court, acting sua sponte, consolidated the appeals.
On December 22, 2014, Mother timely filed notices of appeal, along
with concise statements of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises two issues:
I. Whether the [trial court] gave sufficient weight and
consideration to the progress [Mother] made in mental
health treatment in finding that clear and convincing
evidence existed to terminate [her] parental rights?
II. Whether clear and convincing evidence existed that the
developmental, physical[,] and emotional needs of the
[C]hildren would be met by terminating parental rights?
Mother’s Brief at 6.
Mother argues that the trial court erred in terminating her parental
rights because the court failed to give sufficient weight and consideration to
the progress she has made in mental health treatment. See Mother’s Brief
at 13. Mother asserts that she made progress in her mental health
treatment that alleviated the circumstances that led to the placement of the
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Children. Mother also contends that the trial court erred and/or abused its
discretion in finding that CYF established, through clear and convincing
evidence, that the termination of her parental rights to the Children would
serve their best interests. Mother argues that the Children’s developmental,
physical, and emotional needs are not being met in their current placements.
Mother asserts that the Children’s needs were better met when they had
regular contact with her.
We review the appeal from the termination of parental rights in
accordance with 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 they are supported by the
record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 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. As has been often stated, an abuse of
discretion does not result merely because the reviewing
court might have reached a different conclusion. Instead, a
decision may be reversed for an abuse of discretion only
upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.
As [the Pennsylvania Supreme Court] discussed in R.J.T.,
there are clear reasons for applying an abuse of discretion
standard of review in these cases. [The R.J.T. Court]
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
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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
[appellate courts] 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal
citations omitted).
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 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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc).
The trial court terminated Mother’s parental rights under sections
2511(a)(2), (5), (8), and (b). We will focus on sections 2511(a)(2) and (b),
which provide as follows:
§ 2511. Grounds for involuntary termination
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(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 which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect, or refusal;
(2) such incapacity, abuse, neglect, or refusal caused the child to be without
essential parental care, control, or subsistence necessary for his physical or
mental well-being; and, (3) the causes of the incapacity, abuse, neglect, or
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refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003).
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied, are not
limited to affirmative misconduct; to the contrary, those grounds may
include acts of refusal as well as incapacity to perform parental duties. In
re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
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.” If and only if grounds for termination are
established under subsection (a), does a court consider “the
developmental, physical and emotional needs and welfare of
the child” under § 2511(b).
[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.
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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).
In re Adoption of S.P., 47 A.3d at 827.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D. 797 A.2d at 337. 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.
The trial court explained its decision to terminate Mother’s parental
rights under section 2511(a)(2) as follows:
[Mother] first argues that [the trial court] did not give
sufficient consideration and weight to the evidence that
[Mother] has made progress in her mental health treatment
and that allegations of sexual abuse as against M.X.O. were
unfounded. . . . [The trial court does] not believe that
[Mother] has made sufficient progress in her mental health
treatment. Even as recently as our Permanency Review
Order of December 11, 2014, [the trial court] specifically
found that “[d]espite a multitude of services, [Mother] has
been unable to demonstrate that she can consistently
provide a safe, secure and stable home environment for her
children.”
[Mother’s] mental health issues are significant, as she has
been diagnosed with [post-traumatic] stress disorder,
anxiety, depression, bipolar and obsessive compulsive
disorder. Despite her significant mental health diagnosis,
she has never consistently invested in mental health
treatment over the course of time.
Relative to the allegations of sexual abuse wherein [Mother]
was identified as the perpetrator and M.X.O. as the victim,
such was determined to be unfounded. Quite frankly, [the
trial court was] taken aback when this allegation arose, and
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not surprised when this allegation was deemed to be
unfounded. As a result, [the trial court] afforded absolutely
no weight to this allegation of sexual abuse in [its] findings,
nor in [its] decision to involuntarily terminate the parental
rights of [Mother].
Trial Court Opinion, 1/27/15, at 15 (some internal capitalization omitted).
There is ample, competent, clear and convincing evidence in the
record to support the trial court’s determination that Mother has not
demonstrated any ability to remedy the circumstances which led to the
Children’s placement, nor is there any indication that she could remedy such
circumstances in the foreseeable future, even with continued services in
place. After a careful review of the record, we find that the trial court aptly
discussed the evidence against the requirements of section 2511(a)(2). We
will not impose our own credibility determinations and re-weigh the
evidence. We must defer to the trial judge’s determination, 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 S.P., 47 A.3d at 826-27.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa.
Super. 2008) (en banc). This Court has stated that the focus in terminating
parental rights under section 2511(a) is on the parent, but it is on the child
pursuant to section 2511(b). Id. at 1008.
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In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows:
[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 “[i]ntangibles 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).
We have stated that, in conducting a bonding 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 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). It is
appropriate to consider a child’s bond with her foster parent. See In re:
T.S.M., 71 A.3d at 268.
With regard to Mother’s second issue, the trial court explained its
decision to terminate Mother’s parental rights under section 2511(b) as
follows.
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In her second error complained of on appeal, [Mother]
argues that the court did not give sufficient consideration
and weight to the evidence that [Mother] has a bond with
the [C]hildren despite the efforts of the current foster
parent (S.B.) to sever that bond. First of all, there is
absolutely no credible evidence whatsoever that S.B. has
engaged in any action or efforts to sever the bond between
[Mother] and the subject children. [Mother] reached out to
S.B., the maternal great-aunt (who is the twin sister of the
[Mother’s] own mother) to assume custody of the [C]hildren
during the course of this dependency proceeding. In all
respects, [the trial court] found S.B. to be very credible and
sincere in her willingness to serve as a permanent resource
for these children, despite their significant issues. The
significant issues that the [C]hildren are suffering are
directly related to the traumatic and chaotic history that
they had while residing in the care, custody and control of
[Mother]. [The trial court has] no question that [Mother]
loves her children, but [it does] not find that a healthy bond
exists by and between them. In fact, both children stated
on numerous occasions that they desired to remain with
their maternal great-aunt, S.B., in South Dakota rather than
return to [Mother’s] care in Pennsylvania. In fact, M.X.O.
became visibly distraught and was shaking when he learned
that he was returning to Pennsylvania, being fearful that
such return meant returning to the custody of [Mother].
Trial Court Opinion, 1/27/15, at 15.
Mother also contends that S.B., as the legal custodian of the Children,
has impeded her contact with the Children. See Mother’s Brief at 20.
Mother claims that A.M.O. was excited to receive a holiday art project from
Mother, but S.B. testified that A.M.O. “raged” after receiving it. Id. at 21.
She asserts that M.X.O.’s behavior worsened as a result of the lack of
contact with Mother. Id. She blames M.X.O.’s being moved to an RTF in
South Dakota in January of 2013 on S.B., as M.X.O.’s legal custodian. Id.
Mother also suggests that M.X.O. was moved to the RTF in Pennsylvania in
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January of 2014, partly because he was getting out of control at visits with
S.B., and was having “meltdowns” with her. Id. at 21. Mother contends
that S.B. is not meeting the Children’s needs and welfare, because the
Children were doing much better when they were receiving regular contact
and visitation with Mother. Id. at 22.
The trial court responded to Mother’s additional argument as follows.
[Mother] raises on additional argument as it relates to
M.X.O. She submits that [the trial court] failed to give
significant consideration to the best interest of M.X.O. as
the termination of parental rights resulted in [his] being
confined to a residential treatment facility hours away from
family members and without realistic expectation of ever
being returned to a family setting within a reasonable period
of time. In response, [the trial court] acknowledge[d] that
[it is] troubled that M.X.O. is currently in a residential
treatment facility and would certainly prefer him to be in a
home setting with a family member. It was the initial hope
and goal that the transfer of the [C]hildren to their maternal
great-aunt, S.B., in South Dakota would result in
permanency, with the specific goal being changed at the
time of such transfer to P.L.C. (relative). It does appear
that permanency with S.B. will be achieved for A.M.O.
Unfortunately, the relationship between the siblings is not a
healthy one[,] and they needed to be separated for the
reasons [the trial court] set forth in [its] Permanency
Review Orders. However, S.B. has ensured that there is
ongoing contact and communication between the siblings.
Necessary services for A.M.O. are being provided in S.B.’s
home. Unfortunately, M.X.O.’s needs were much more
significant and have resulted in separation from his sibling,
and a return to Pennsylvania[,] and placement in a
residential treatment facility that is best suited to address
his significant needs. It remains the goal of [the trial] court
and BCCYF to place M.X.O. with a family member. A
potential family resource has been identified[;] however, it
is necessary that M.X.O.’s behavior be stabilized before he
can be safely transitioned into a family setting. Even
though [the trial court is] troubled with M.X.O.’s situation,
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[it is] fully satisfied that a return to [Mother’s] custody is
not the answer.
Therefore, based on the above, [the trial court] respectfully
submit[s] that BCCYF established by clear and convincing
evidence the statutory grounds for involuntary termination
of parental rights under 23 Pa.C.S.A. § 2511(a)(2), (a)(5),
(a)(8) and (b).
[The trial court] also submits that the record established by
clear and convincing evidence, after taking into
consideration the developmental, physical and emotional
needs and welfare of the subject children, that the
termination of parental rights of [Mother] (and [Father])
would best serve [the Children’s] needs and welfare. As a
result of the foregoing, [the trial court] respectfully
request[s] your Honorable Court to affirm [the trial] court’s
entry of the TPR Decrees of December 11, 2014.
Trial Court Opinion, 1/27/15, at 15-16 (emphasis in original).
There is ample, competent, clear, and convincing evidence in the
record to support the trial court’s finding that S.B., the Children’s maternal
great-aunt, meets all of A.M.O.’s needs and welfare, and that M.X.O.’s
significant needs and welfare are being met in the RTF where he resides in
Pennsylvania. Although the trial court did not expressly discuss the effect of
severing the bond between the Children and Mother in its December 11,
2014 orders, the court indicated in its opinion that it found clear and
convincing evidence that a return of the Children to Mother would not be
healthy for them, especially for M.X.O. The trial court found that A.M.O.,
who had been in placement with S.B. for 51 months, desires to remain with
S.B.
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The competent evidence in the record supports the trial court’s
determination that that the termination of Mother’s parental rights would
serve the Children’s best interests and that the Children would not suffer any
harm from the termination of Mother’s parental rights. Our Supreme Court
has stated that the mere existence of a bond or attachment of a child to a
parent will not necessarily result in the denial of a termination petition, and
that “[e]ven the most abused of children will often harbor some positive
emotion towards the abusive parent.” See In re: T.S.M., 71 A.3d at 267,
quoting In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008). The
Supreme Court stated, “[t]he continued attachment to the natural parents,
despite serious parental rejection through abuse and neglect, and failure to
correct parenting and behavior disorders which are harming the children
cannot be misconstrued as bonding.” See In re: T.S.M., 71 A.3d at 267
(internal quotations and citations omitted). Thus, we will not disturb the
trial court’s decision. In re Adoption of S.P., 47 A.3d at 826-27.
While Mother may claim to love the Children, a parent’s own feelings
of love and affection for a child, alone, will not preclude termination of
parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). 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.” Id. 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
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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).
Accordingly, we affirm the trial court’s decrees terminating Mother’s
parental rights to the Children pursuant to section 2511(a)(2) and (b) of the
Adoption Act.
Orders affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2015
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