In the Int. of: A.L.C.K. Appeal of: L.K. ( 2017 )

J-S01006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.L.C.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: L.K. : No. 1463 MDA 2016
Appeal from the Decree Entered August 5, 2016
In the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 251 of 2016
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 27, 2017
Appellant, L.K. (“Mother”), appeals from the decree entered in the
Lancaster County Court of Common Pleas, Orphans’ Court, which granted
the petition filed by B.P.K. (“Father”) and L.S.K. (“Stepmother”) for
involuntary termination of Mother’s parental rights to her minor child,
A.L.C.K. (“Child”). We affirm.
In its opinions, the Orphans’ Court fully and correctly set forth the
relevant facts and procedural history of this case. Therefore, we have no
reason to restate them.
Mother raises five issues for our review:
DID THE COURT ERR IN FINDING THAT MOTHER FAILED
TO USE REASONABLE EFFORTS AND FIRMNESS TO
ESTABLISH AND MAINTAIN A PARENTAL RELATIONSHIP
WITH CHILD, AS MOTHER ATTEMPTED TO MAINTAIN
CONTACT BY CONTACTING THE THERAPIST TO ENGAGE IN
REUNIFICATION THERAPY AS WELL AS BY TEXTS SENT TO
CHILD THROUGH MOTHER’S OLDER DAUGHTER?
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DID THE PETITIONERS IMPOSE SIGNIFICANT BARRIERS
TO MOTHER’S ABILITY TO MAINTAIN A PARENTAL
RELATIONSHIP WITH CHILD, SUCH AS PROVIDING TO
MEDICAL AND EDUCATIONAL PROFESSIONALS AN
OUTDATED CUSTODY ORDER THAT INDIC[A]TED FATHER
HAD SOLE LEGAL CUSTODY, AND CHANGING CHILD’S
THERAPIST AND ENROLLING HER IN CYBER SCHOOL IN
2015?
DID THE COURT ERR IN FINDING ON PAGE 9 OF ITS
OPINION THAT THE MATERNAL GRANDMOTHER SERVED
AS A MEANS OF COMMUNICATION WITH CHILD, AS THE
RECORD IN THIS CASE ESTABLISHES THAT PETITIONERS
WERE ADAMANT THAT CONTACT OCCUR THROUGH THE
COUNSELOR?
DID THE COURT ERR IN FINDING CREDIBILITY IN THE
TESTIMONY OF CHILD, AS CHILD USED IN HER
TESTIMONY TECHNICAL LANGUAGE REGARDING THESE
PROCEEDINGS THAT INDICATED CHILD HAD BEEN
METICULOUSLY COACHED AND PREPARED?
SHOULD THE COURT PROPERLY HAVE ORDERED THAT A
BONDING ASSESSMENT BE CONDUCTED IN THIS CASE
GIVEN THE AGE OF CHILD AND THE HISTORY OF
CONTACT BETWEEN MOTHER AND CHILD?
(Mother’s Brief at 20-21).
Appellate review of termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
[decree] of the [Orphans’ C]ourt is supported by
competent evidence, and whether the [Orphans’ C]ourt
gave adequate consideration to the effect of such a decree
on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
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Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the [Orphans’
C]ourt’s decision, the decree must stand. … We
must employ a broad, comprehensive review of the
record in order to determine whether the [Orphans’
C]ourt’s decision is supported by competent
evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the [Orphans’ C]ourt, as
the finder of fact, is the sole determiner of the
credibility of witnesses and all conflicts in testimony
are to be resolved by the finder of fact. The burden
of proof is on the party seeking termination to
establish by clear and convincing evidence the
existence of grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted).
The standard of clear and convincing evidence means
testimony that is so clear, direct, weighty, and convincing
as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.
In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We
may uphold a termination decision if any proper basis
exists for the result reached. In re C.S., 761 A.2d 1197,
1201 (Pa.Super. 2000) (en banc). If the court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support an
opposite result. In re R.L.T.M., 860 A.2d 190, 191-92
(Pa.Super. 2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d
1165 (2008)).
Father and Stepmother filed a petition for involuntary termination of
Mother’s parental rights to Child on the following grounds:
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§ 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:
(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.
* * *
(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(a)(1), (b).1
Termination under Section 2511(a)(1) involves the following:
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1
A petition to terminate a natural parent’s parental rights, filed by one
natural parent against the other, is cognizable only if an adoption of the
child is foreseeable. See 23 Pa.C.S.A. § 2512(b) (stating petition for
involuntary termination of parental rights filed by one natural parent against
other natural parent must contain averment that petitioner will assume
custody of child until such time as child is adopted). Here, Father and
Stepmother’s petition for involuntary termination of Mother’s parental rights
confirmed Stepmother’s intent to adopt Child and stated that Father and
Stepmother will assume custody of Child until Child is adopted.
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To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for…her conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations
omitted). Regarding the six-month period prior to filing the termination
petition:
[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of…her parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa.
718, 872 A.2d 1200 (2005) (internal citations omitted).
Under Section 2511(b), the court must consider whether termination
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will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520
(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability
are involved when inquiring about the needs and welfare of the child. The
court must also discern the nature and status of the parent-child bond,
paying close attention to the effect on the child of permanently severing the
bond.” Id. Significantly:
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.
When conducting a bonding analysis, the court is not
required to use expert testimony. Social workers and
caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding
evaluation.
In re Z.P., supra at 1121 (internal citations omitted).
“The statute permitting the termination of parental rights outlines
certain irreducible minimum requirements of care that parents must provide
for their children, and a parent who cannot or will not meet the requirements
within a reasonable time following intervention by the state, may properly be
considered unfit and have…her rights terminated.” In re B.L.L., 787 A.2d
1007, 1013 (Pa.Super. 2001). This Court has said:
There is no simple or easy definition of parental duties.
Parental duty is best understood in relation to the needs of
a child. A child needs love, protection, guidance, and
support. These needs, physical and emotional, cannot be
met by a merely passive interest in the development of the
child. Thus, this [C]ourt has held that the parental
obligation is a positive duty which requires affirmative
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performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association
with the child.
Because a child needs more than a benefactor, parental
duty requires that a parent ‘exert [herself] to take and
maintain a place of importance in the child’s life.’
Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
to the best of… her ability, even in difficult circumstances.
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable
firmness in resisting obstacles placed in the path of
maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with… her physical and
emotional needs.
In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic
constitutional right to the custody and rearing of…her child is converted,
upon the failure to fulfill…her parental duties, to the child’s right to have
proper parenting and fulfillment of…her potential in a permanent, healthy,
safe environment.” Id. at 856.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Jay J.
Hoberg, we conclude Mother’s issues merit no relief. The Orphans’ Court’s
opinions comprehensively discuss and properly dispose of the questions
presented. (See Orphans’ Court Opinion, filed September 23, 2016, at 2-5;
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Opinion in Support of Decree, filed August 5, 2016, at 5-14) (finding: (1)
although Mother made some attempts to resume contact with Child after
Mother’s decision to take “break” from visits with Child in April 2015, Mother
ceased all attempts to engage in reunification therapy with Child by August
2015; record shows Mother failed to exert effort or utilize opportunities to
establish, maintain, and repair parental relationship with Child; Mother was
historically inconsistent in attending visits, did not attend Child’s medical or
educational appointments, and did not attend Child’s extracurricular
functions; Mother did not utilize opportunities to repair relationship with
Child through reunification therapy; Mother has failed in all respects to
perform any parental duties or responsibilities to Child within six-month time
period; (2) Mother voluntarily moved to New York City because she was not
making progress with Child and wanted to “have a life”; even if court
accepted Mother’s argument that Father and Stepmother placed significant
barriers to Mother’s ability to maintain parental relationship with Child,
Mother still had duty to exercise reasonable firmness in resisting obstacles,
and bore burden to show that obstacles imposed were insurmountable,
despite her genuine and sincere efforts; Mother took no affirmative steps to
remedy her lack of access to Child’s records; Mother did not even request
copy of controlling custody order, which was issued in 2012, until February
2016; Mother could have easily remedied any obstacle she faced resulting
from outdated custody order; (3) Child, Father, and Stepmother have
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maintained relationship with maternal grandparents; Mother was aware of
this relationship, but she failed to use maternal grandparents as resource to
rekindle her relationship with Child; Mother testified she left notes at
maternal grandmother’s house for Child to find, but such conduct does not
equate to using maternal grandmother as resource to reconnect with Child;2
(4) Child, who is now 12-years-old, testified at termination hearing; court
listened to Child’s answers to questions and observed her demeanor; Child
was articulate, intelligent, and mature; court did not find Child’s testimony
was coached or prepared; Child’s use of legal phrases does not automatically
call into question her credibility; instead, court found Child’s testimony was
credible, compelling, persuasive, and supported finding that involuntary
termination of Mother’s parental rights best served Child’s interests; (5)
court is under no obligation to order bonding assessment; Mother has had
inconsistent contact with Child since 2010; from April 2015 to present,
Mother has had no contact whatsoever with Child; Child’s bond with Mother
is attenuated at best and minimal when compared with far greater bond
Child has with Stepmother; Child’s therapist testified that given Child’s
history with Mother and Mother’s most recent absence, evaluation process
itself might be detrimental to Child; thus, court saw little benefit to ordering
bonding assessment; Mother’s testimony at termination hearing was
____________________________________________
2
In its September 23, 2016 opinion, the court interchangeably refers to
Child’s maternal grandmother as “MGM” and “MGP.”
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inconsistent, incredible, and devoid of supporting evidence; termination of
Mother’s parental rights was proper under Section 2511(a)(1) and (b)).
Accordingly, we affirm on the basis of the Orphans’ Court’s opinions.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
INRE:
A.L.C..k. No. 251 of 2016
INVOLUNTARY TERMINATION
OPINION SUR APPEAL
On February 2, 2016,. 1'3..P. I~. 1_-.SJ~. (collectively,
hereinafter "Petitioners") filed a Petition to involuntarily terminate parental rights of the
biological mother. L. .~. I~ . (hereinafter "Mother"), to: A . l. . C. .K .
Mother was personally served with a copy of the Petition on March.31, 2016. The
initial termination hearing was held on May 5, 2016, at which time Mother indicated her desire
to contest the termination of her parental rights and no testimony was taken. The termination of
.parental rights proceedings resumed on June 20, 2016. On August 5, 2016, this Court issued a
Memorandum Opinion and Decree terminating Mother's parental rights. The Court incorporates
the August 5, 2016, Memorandum Opinion and Decree as if fully set forth herein.
Mother filed a timely Notice of Appeal on September 6, 2016; and asserts five issues in
her 1925(b) statement. Mother argues that the Court erred in finding Mother failed to use
reasonable efforts and firmness to establish and maintain a parental relationship with the child,
erred in finding that Petitioners did not impose significant barriers to Mother's ability to maintain
a parental relationship with the child, erred in finding that maternal grandmother (MGM) served
as a means of communication between Mother and Child, erred in finding the Child credible, and
erred in not ordering bonding assessments in this matter.
1
Although this Court believes that these issues were addressed by the Memorandum
Opinion entered on the matter, to ensure complete coverage of the issues, the Court herein
submits this brief Opinion Sur Appeal.
First, Mother asserts the Court erred in finding that mother failed to use reasonable
efforts and firmness to establish and maintain a parental relationship with the child. Mother
argues that she attempted to maintain contact by contacting the therapist to engage in
reunification therapy, as well as by sending text messages to the child through Mother's older
daughter.
Mother contacted A.K.' s therapist a few times in 2015. Mother testified her last attempt
to contact the therapist was in August 2015. Her testimony reveals she contacted Father,
Guardian ad litem and the Child's therapist through e-mail and phone calls for a few months
following her decision to take a break from visits. Her attempts ended sometime in August 2015.
Reunification therapy remained unscheduled, yet Mother did not attempt to enforce or modify
the custody order. The record shows that Mother failed to exert effort or utilize opportunities to
establish, maintain and repair a parental relationship with her daughter.
Second, Mother asserts that the Petitioners imposed significant barriers to Mother's
ability to maintain a parental relationship with the child. Mother argues she did not have access
to A.K.'s medical and educational information because Petitioners provided an outdated custody
order to A.K. 's medical and educational providers reflecting Father as the sole legal custodian.
Mother also argues Father changed the Child's therapist and enrolling the Child in Cyber School
in 2015 without consulting her.
Even if this Court were to accept Mother's argument that Petitioners imposed significant
barriers to Mother's ability to maintain a parental relationship, Mother still has a duty to exercise
2
reasonable firmness in resisting obstacles and bears the burden of proof to show that the
obstacles imposed were insurmountable, despite her genuine and sincere efforts. As detailed in
the Memorandum Opinion, Mother took no affirmative steps to remedy her lack of access to
A.K.'s records. Until February 2016, Mother did not even request a copy of the controlling
custody order, issued in 2012. Any obstacle Mother faced resulting from the outdated custody
order could have been easily remedied by Mother herself. Therefore, Mother failed to show that
Petitioners imposed insurmountable obstacles.
Next, Mother asserts that the Court erred in finding on page nine (9) of its Memorandum
Opinion that the child's maternal grandmother served as a means of communication with the
child. Mother argues that Petitioners were adamant that contact occur through the counselor.
Mother's argument inaccurately portrays the Court's finding. The Opinion highlights
several available resources Mother could have exhausted in order to contact A.K. The Court
found that the Petitioners and A.K. maintained a relationship with MGP, that Mother was aware
of the continuing relationship, and that Mother never used MGP as a resource to rekindling her
relationship with her daughter. Instead, Mother testified that she "left notes at [MGM]'s house
for her to find." The Court also notes that Mother, in her 1925(b) statement, asserts that she did
not adhere to the Petitioner's request that contact occur through a counselor when she used her
older daughter to pass messages to A.K. Mother choose not to use MGM as a possible resource.
Fourth, Mother asserts that the Court erred in finding the Child's testimony credible.
Mother argues that the Child's testimony included technical language regarding the proceedings,
which indicates that she had been meticulously coached and prepared.
The Child's use of legal phrases does not automatically make her testimony lacking in
credibility. A.K., who is currently 12 years of age, testified. The Court listened to her answers to
3
questions and observed her demeanor. She was articulate, intelligent and mature. The Court did
not find that A.K. 's testimony was meticulously coached or prepared. Instead, it found A.K. 's
testimony "was credible, compelling, persuasive, and further supports that the termination of
birth mother's parental rights will be in A.K.'s best interest." Memorandum Opinion at 14
(emphasis added).
Finally, Mother asserts that the Court erred in denying the request for bonding
assessments. Mother argues that the age of the child and the history of contact between Mother
and Child compelled the need for bonding assessments.
The Court is under no obligation to order a bonding assessment. Neither the statute nor
case law requires the Orphans' Court in a TPR proceeding to order that formal bonding
evaluation be performed by an expert. In the Matter of K.K.R.-S., 958 A.2d 529 (Pa. Super.
2008). Mother has not had consistent contact with A.K. since 2010. From April 2015 to present,
Mother has had no contact at all with A.K. It is clear, based on the evidence presented, that
A.K.'s bond with Mother would be attenuated, at best, and minimal when compared with the far
greater bond that has been established between A.K. and her step-mother. Furthermore, the
Petitioners offered testimony from the Child's therapist evidencing that because of the child's
history with Mother and Mother's recent absence, the evaluation process itself may be
detrimental to the child. See In the Interest of K.Z.S., 946 A.2d 753 (Pa. Super. 2008). Under the
circumstances, the Court saw little benefit from ordering a bonding assessment.
The Court further notes, with respect to its decision to terminate Mother's parental rights
under Section 251 l(a)(l), that it followed the statutory requirement of Section 251 l(b) and did
not consider the efforts made by Mother initiated after March ~\, W16, when she was served
with notice of the filing of the termination petition.
4
The totality of the evidence was discussed at length in a detailed explanation of the
current case law and its application to this case in the Memorandum Opinion and Decree. The
Petitioners established by clear and convincing evidence that Mother's parental rights should be
terminated under Section 2511 ( a)( 1) and that termination of parental rights best serves the needs
and welfare of the Child.
All issues raised by Mother in her 1925(b) statement have been fully addressed by the
August 5, 2016, Memorandum Opinion and Decree terminating Mother's parental rights and by
this Opinion Sur Appeal.
The Court remains steadfast in its decision that Petitioners established by clear and
convincing evidence that the parental rights of Mother to A.K. should be terminated pursuant to
Section 251 l(a)(l) and that the termination of Mother's rights is in the best interest of the child
pursuant to Section 251 l(b). The Clerk of the Orphans' Court is directed to transmit the record to
the Superior Court.
BY THE COURT:
ATTEST:
Copies To: Albert J. Meier, Esquire-Attorney for Mother
Jozefa Jackson, Esquire - Attorney for the Petitioners
Elaine G. Ugolnik, Esquire - Guardian ad litem
'-. 6-. k . , mother
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fN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RP.·
·A.Q L. c. K., No. 251 of 2016
INVOLUNTARY TERMINATION
MEMORANDUM OPINION
This matter comes before the Court on the Petition filed by' f3. P. l<. ~"c
L.. • '$. l<. 1 (collectively, hereinafter "Petitioners") to involuntarily terminate parental
rights of the biological mother, l . e,.. I<.. J (hereinafter "Mother"), to ·
. The Petition was filed on February 2, 2016. Notice in accordance with the
provisions of the Adoption Act.was provided to Mother. The Petition was served on Mother on
March 31., 2016. On May 6, 2016, the Court appointed Elaine G. Ugolnik as the Child's
Guardian ad litem.1 Hearings were held on May 5, 2016, and June 20, 2016. Petitioners request
the involuntary termination of Mother's parental rights pursuant to Section 251 l(a)(l) and (b).
· (hereinafter "A.K. ") is a minor female child born
August' .2004, in Lancaster County, Pennsylvania. She currently resides with Petitioners.
P.> . I". l~ . {hereinafter "Father") is the biological father of A.K. and is 39 years
old. Father was present and represented by counsel at both hearings. L · "'S . k .
(hereinafter "Step-Mother") is the step-mother of A.K. and is 32 years old. Step-Mother was
present and represented by counsel at both hearings. Petitioners were married on April 27, 2006,
in Lancaster County, Pennsylvania.
I Attorney Ugolnik was also appointed on July 13, 2010, as the Child's Guardian ad /item in the associated
custody matter referenced below.
L. &. K. is the biological mother of AK. and is 3 7 years old. Mother is
single and has resided in New York City, New York since 2012. Mother was present at the
hearing and was represented by counsel.
AK. is also the subject of an active custody matter in Lancaster County docketed to CI-
06-07700. At the June 20, 2016, hearing the Court took judicial notice of the custody
proceedings. The relevant facts, including those in the custody matter, are summarized as
follows. AK. was born on August 2004. Father and Mother were never married nor lived
together as an intact family. On August 10, 2006, Father filed a custody action against Mother.
Mother was granted primary physical custody of AK. and Father was granted partial physical
custody. Parents were granted shared legal custody. In March 2008, AK. witnessed Mother's
attempted suicide, and subsequently Mother was hospitalized. The custody order was modified,
giving Father primary physical custody. Mother was to have supervised custodial visits by
agreement of the parties. Mother disappeared for a short period of time and Father was granted
sole legal and physical custody of AK.
Upon Mother's return to A.K. 's life, Mother was granted periods of supervised physical
custody until Mother provided the court with a status report from her mental health provider, a
family services SVP program written report from supervised visits, and evidence of attendance at
an educational seminar. In October 2008, Mother was once again granted shared legal custody.
InDecember 2008, the custody order was modified giving Mother partial physical custody,
unsupervised. In April 2009, Father was granted sole legal custody but by August 2009, Parents
were again granted shared legal custody. Subsequently, an altercation between Mother and Step-
Mother occurred and the court ordered that Mother's periods of physical custody again be
supervised. In 2010, A.K. began receiving therapy with Michele Romeo Martin, Psy. D.
2
In June 2010, Father filed for modification of the custody action and Mother filed for
special relief. Mother requested unsupervised partial physical custody of A.K. At that time,
Mother did not have a permanent residence and was not employed. She did, however, receive
Social Security Income benefits for mental health issues. She presented no evidence of ongoing
mental health treatment. Dr. Martin noted A.K.'s anxiety and fear at the prospect of being left
alone with Mother. At that time, Dr. Martin recommended that Mother's visits continue to be
supervised until Mother participated in family therapy. Although Mother knew family therapy
was necessary for Child's therapist to recommend removing the supervision element to
visitation, Mother did not participate in Child's therapy. Mother continued to have supervised
partial physical custody twice a month, despite her objections to the supervision provision.
Mother inconsistently attended visits between 2010 and 2012. While the amount of
missed or late visits is disputed a stipulation to the custody agreement was entered in 2012
requiring Mother confirm her attendance with Father via e-mail by the Wednesday prior to any
scheduled visit. In January 2012, Mother relocated to New York City. Mother testified that she
moved to NYC because she and A.K. were not "making any progress here" and that Mother
"wanted to have a life". At that time, visitation was reduced at Mother's request to once a month.
Since the 2012 stipulation, no further court activity in the custody proceedings had been initiated
until February 26, 2016, when Mother filed a praecipe to change her address from Pennsylvania
to New York.2
As A.K.' s therapy continued, she began verbalizing her traumatic experience during the
periods of unsupervised contact with Mother. She relayed periods of neglect during Mother's
2 The Petition for termination of parental rights was filed on February 2, 2016. Mother was not served until
March 31, 2016. Defendant's Exhibit No. 4, however, evidences that on January 20, 2016, Father put her on notice
that he was filing a termination petition.
3
alcohol binges and mental health episodes, which included having to feed herself while Mother
was incapacitated. As A.K.'s nightmares, food insecurity, and flashbacks continued, Dr. Martin
diagnosed A.K. with Post-Traumatic Stress Disorder (PTSD) and proscribed her Prozac. In 2014,
Dr. Martin recommended A.K. to Amy Witmeier, a trauma therapist, for further treatment. That
same year, Father enrolled A.K. in cyber school.
Mother met with Dr. Martin on one occasion in 2013. Dr. Martin opined that the visits
and the inconsistent interactions between A.K. and Mother continued to re-trigger the Child's
negative emotions towards Mother. A.K's endurance of visits that were not positive resulted in a
lack of improvement in A.K. 's therapy. Prior to visits with Mother, A.K. suffered from physical
manifestations of distress: stomach aches, headaches, and tantrums. As visits with Mother
continued, A.K. 's relationship with Mother deteriorated.
A.K. and Mother had their last visit on April 7, 2015. Mother and AK. got into an
argument while Maternal Grandmother (MGM), who was supervising the visit, went to the
bathroom. A.K. called Mother a profane word and Mother attempted to spank her. The visit
concluded less than an hour after it began when A.K. called Father and requested he pick her up.
Shortly after, Mother contacted Father and requested a break in visits until a plan to address
A.K. 's behavior at visits was implemented, such as visits in a therapeutic setting. Mother and
A.K. have not had contact since.
Mother did contact Father a few times in the subsequent months regarding resuming
visits. Father told Mother that visits would resume using reunification therapy with A.K. 's
therapist. Mother last attempted to contact Father in June 2015. In January 2016, Father reached
out to Mother, requesting Mother's signature for Child's passport for a Girl Scout trip to Canada.
Father also asked Mother for her address in order to serve her with notice of the termination
4
petition. See Defendant's Exhibit No. 4. In February 2016, Mother filed her New York address in
the custody proceedings. The initial termination proceeding and adoption proceeding was
scheduled for May 5, 2016. Mother was present and contested the termination of her parental
rights. The Court bifurcated the matters and set a full hearing for the termination proceeding.
The termination proceedings resumed on June 20, 2016. Petitioners offered the testimony
of Father, Child, Step-Mother and Dr. Michelle Romeo Martin, child's therapist. Mother testified
on her own behalf. The Court left the record open for the Child's Guardian ad !item to submit her
written recommendation to the court. Attorney Ugolnik submitted her written recommendation
on July 19, 2016. The matter is now ripe for disposition.
The termination of parental rights is governed by statute. In re Child M., 452 Pa. Super.
230, 681 A.2d 793 (1996). The pertinent part of the statute 23 Pa. C.S.A. §2511 provides 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:
( 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.
(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)(l), (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 notice of the filing of the petition.
The party seeking termination has the burden of establishing clear and convincing evidence that
parents have failed to perform their parental duties. In re C.M.S., 832 A.2d 457 (Pa. Super.
2003). Clear and convincing evidence exists when testimony given is so "clear, direct, weighty
5
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." In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super.
2003). In termination proceedings, the Court must focus on the conduct of the parent and
determine if that conduct justifies a termination of parental rights. In re B., N.M., 856 A.2d 847,
854-855 (Pa. Super. 2004), citations omitted. In order to protect his parental rights, a parent must
do more than merely state he does not wish to have his parental rights terminated. In re C.M.S.,
832 A.2d 457, 464 (Pa. Super. 2003 ), citing In re E.S.M., 622 A.2d 3 88, 395 (Pa. Super. 1993).
To support a finding for termination under Section (a)(l), Petitioners must present clear
and convincing evidence of a settled purpose of relinquishing parental claim to a child or that the
parent has refused or failed to perform parental duties for a period of six months. Parental duty
has been defined as follows:
There is no simple or easy definition of parental duties. Parental duty is
best understood in relation to needs of a child. A child needs love,
protection, guidance and support. These needs, physical and emotional,
cannot be met by a merely passive interest in development of the child.
Thus, this court has held that the parental obligation is a positive duty,
which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it
requires continuing interest in the child and a genuine effort to maintain
communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a
parent 'exert himself to maintain a place of importance in the child's life.
In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), citing In re Burns, 379 A.2d 535 (Pa. Super.
1997).
Under Section 251 l(a)(l), the Court must look to Mother's actions in the six months
prior to the filing of the petition. Mother did not contact Father or the Child in the six months
prior to the filing of and her receipt of the termination petition. Mother's only actions in the last
6
six months related to A.K. occurred on February 26, 2016, when she submitted a praecipe to
change her address of record in the custody proceedings to the address in New York where she
had been living for the last four years. Mother failed in all respects to perform any parental duties
or responsibilities within that time period. Mother's conduct and failure to maintain a place of
importance in her daughter's life evidences a failure to perform required parental duties.
The Superior Court has been adamant that "to be legally significant ... contact must be
steady and consistent over a period of time, contribute to the psychological health of the child,
and must demonstrate a serious intent on the part of the parent to cultivate a parent-child
relationship and must also demonstrate a willingness and capacity to undertake a parental role.
The parent wishing to reestablish his parental responsibilities bears the burden of proof on this
question." In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010); In re AD., 93 A.3d 888 (Pa.
Super. 2014). Mother has not met this burden.
Pennsylvania law is clear that a parent must take affirmative steps to maintain a
relationship with his or her child to the best of his or her ability under the circumstances as they
exist. In re D.J.S., 737 A.2d 283, 287 (Pa. Super. 1999). "A parent is required to exert a sincere
and genuine effort to maintain a parent-child relationship; the parent must use all available
resources to preserve the parental relationship and must exercise 'reasonable firmness' in
resisting obstacles placed in the path of maintaining the parent-child relationship." In re C.M.S.,
supra at 462, citing In re Shives, 525 A.2d 801, 803 (Pa. Super. 1987). Mother clearly failed to
exert herself to establish and maintain a place of importance in her child's life.
The court must examine the individual circumstances of each case and consider all
explanations and insurmountable obstacles offered by the parent facing termination of his or her
parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly
7
warrants the involuntary termination. In re B., N.M., 856 supra. In this case, Mother argues there
were several obstacles to her continued contact with A.K., including: prohibitive transportation
costs from NY to PA; a lack of access to some of AK.' s medical and educational information;
the supervision provision on visits; Father and Step-Mother creating barriers to contact and
prohibiting visits; and Dr. Martin's recommended that reunification therapy occur before
reestablishing visits. Mother argues these elements created an insurmountable obstacle to her
maintaining a parent-child relationship with A.K.
The Court found the testimony of Petitioners, Dr. Martin, and the child to be credible and
persuasive. Conversely, the Court found that Mother's testimony was inconsistent, lacking
credibility and void of supporting evidence.
First, Mother voluntarily moved to NYC so she could "have a life." She put her needs
before A.K. 's because she believed they were not making progress during visits. Second, Mother
testified she was aware she needed to provide an updated custody order, reflecting Parents shared
legal custody, to A.K. 's educational and medical providers in order to gain access to A.K.'s
records. Mother failed to do so. Mother took no affirmative steps to remedy her lack of access to
A.K.' s records.
Next, the supervision requirement was by court order. Mother had the ability to continue
to petition for removal of that provision, as she did in 2010. She was aware of Dr. Martin's
recommendation to use therapy to repair the mother-child relationship. However, Mother failed
to demonstrate a serious intent to engage in her daughter's ongoing therapy. While Mother might
see the supervision provision as a burden, it was for the benefit of the child. Mother has a
parental duty to place her daughter's needs above her own convenience. Moreover, Mother's
argument that she only had three approved supervisors, making it difficult to be consistent in her
8
visitation, lacks merit. She was responsible for finding appropriate supervisors. If three were not
enough, she needed to find more so she could continue to consistently visit with her child.
Fourth, the record reflects that Father and Step-Mother attempted to facilitate contact.
After Mother's voluntary relocation to NYC, visitation was reduced to once a month, supervised
at MGM's home. Dr. Martin testified that Father and Step-Mother seemed to honor the visitation
1 time and made it clear to A.K. that the time was set aside for Mother, whether Mother attended
the visits or not. Prior to April 2015, Petitioners were consistent in Child's visitation and
treatment. When she still resided in Lancaster, Mother blamed Step-Mother's involvement in
A.K.'s education for Mother's lack of involvement in A.K.'s education. At the request of
Mother, the family court imposed a prohibition of Step-Mother's involvement and attendance at
parent/teacher conferences. Mother still failed to attend.
Even if this Court were to believe that Father imposed a barrier to communication with
A.K., Mother did not exhaust other avenues of communication. Petitioners have continued to
maintain a relationship between Maternal Grandparents (MOP) and the child. A.K. testified she
recently went on vacation with MOP and sees MGM almost weekly. Mother's testimony
revealed she was aware MOP had an ongoing relationship with A.K. Still, Mother did not
attempt to reengage with A.K. through MOP. Furthermore, Mother did not take any legal action
to resume, enforce, or modify the custody order.
Finally, Mother's last contact with Child occurred in April 2015 at which time Mother
requested that they take a break. Prior to that day visits were not beneficial or positive, causing
the relationship to further deteriorate. From April to July, Mother requested visitation a few
times. Father responded with the therapist's recommendation that contact be done through
therapeutic means before visits could resume. Mother was offered the opportunity to pursue
9
reunification therapy with the Child in order to salvage the tumultuous relationship. She failed to
exert a sincere or genuine interest in restarting visits, setting up appointments and maintaining a
place of importance in her daughter's life. Parental rights are not preserved for waiting for a
more convenient time to perform one's parental responsibilities while others provide the child
with his or her physical and emotional needs. In re C.S., supra; In re G.P.-R., 851 A.2d 967 (Pa.
Super. 2004). An examination of Mother's efforts to maintain contact with her daughter
demonstrates a substantial lack of effort since 2010.
Father's insistence that Mother pursue recorrunended reunification therapy prior to any
restarting of visits might offer Mother a convenient excuse, but the record supports that Mother
was historically inconsistent in attending 'visits, did not attend medical and educational
appointments, did not attend A.K. 's extracurricular functions, and initiated the break in contact
between herself and A.K. Mother did not utilize opportunities to repair her relationship with
A.K. through reunification therapy. She did not send the Child letters or provide gifts. She did
not make contact with A.K. a serious priority. Instead, she chose to prioritize her own personal
needs and desires evidenced by her voluntary relocation to New York so she could "have a life."
While Father did not facilitate an ongoing relationship between Mother and A.K. after
April 2015, Mother still had an obligation to use reasonable efforts and firmness to establish and
maintain a parental relationship with her child. She failed to do so. Her reliance on others
initiating all the contact is not enough. Pennsylvania law is clear that Mother bears the burden to
show that Father imposed insurmountable obstacles to Mother's continued contact and
relationship with A.K. Mother failed to show that Father's actions alone made continued contact
impossible.
10
Therefore, the Court finds that Petitioners met their burden with regard to Mother under
Section 251 l(a)(l). The totality of the record establishes by clear and convincing evidence that
for a period of at least six months preceding the filing of this petition, Mother evidenced a settled
purpose of relinquishing her parental claim to A.K. or has refused or failed to perform any
parental duties during that time period, in accordance with 20 Pa.C.S.A. §2511 (a)(l ).
Although the Petitioners have met their burden under Section 251 l(a)(l), the Court must
also look to the requirements of Section 251 l(b) before terminating any parental rights. Under
251 l(b), the Court must also determine if terminating Mother's parental rights would be in the
best interest of A.K., regardless of Mother's failure to parent. It is not a mere formality flowing
from the existence of the other required statutory elements; rather, it is a discrete consideration.
In re Involuntary Termination of C.W.S.M., 839 A.2d 410 (Pa. Super. 2003). Section 251 l(b)
centers judicial inquiry upon the welfare of the child rather than the fault of the parent. In re
A.R., 83 7 A.2d 560 (Pa. Super. 2003). In making this determination, the Court must carefully
consider the tangible dimension as well as the intangible dimension - the love, comfort, security
and stability - entailed in a parent-child relationship. In re T.B.B., 835 A.2d 387 (Pa. Super.
2003). Continuity ofrelationship is also important to a child. In the Interest of C.S., supra.
The bond between a child and a parent is a proper matter to be evaluated in a termination
of parental rights case. In re S.M.B., 856 A.2d 1235 (Pa. Super. 2004). Considering what
situation would best serve the child's needs and welfare, the court must examine the status of the
bond between the natural parent and the child to consider whether terminating the parent's rights
would destroy an existing, necessary and beneficial relationship. In re Adoption of T.B.B., supra.
A child has the right to proper parenting and fulfillment of her potential in a permanent, healthy,
and safe environment. In re J.A.S., 820 A.2d 774, 782 (Pa. Super. 2003).
11
In determining what would be in the best interest of AK., the Court has taken into
consideration the testimony of the Child, Dr. Martin and the Guardian ad !item's
recommendation to the Court. AK. testified to a diminished and damaged relationship with
Mother, which was further impacted by Mother's absence over the last year. A.K. desires to have
Mother's rights terminated in order for Step-Mother to adopt her and in furtherance of some
permanency and stability in her life. Attorney Ugolnik's recommendation supports termination
of Mother's parental rights so that A.K. may be adopted by Step-Mother. Furthermore, the Court
found Attorney Ugolnik's detailed and well-reasoned written recommendation to be credible and
persuasive in determining that termination is clearly in AK. 's best interest.
Child was diagnosed with PTSD resulting from events occurring while in Mother's
unsupervised care. AK. began therapy in 2010 to address these issues which had manifested in
negative behaviors and reactions. In 2014, the child's therapist referred her to trauma therapy
through COBY'S. Child was in therapy until early 2016, when she was discharged after having
made substantial progress. Dr. Martin testified that it was the lack of contact with Mother that
created predictability in her life and allowed AK. to address and resolve her biggest issues and
heal to the point that therapy was no longer warranted. As long as Mother was involved, A.K.
was not able to engage positively in the treatment.
Dr. Martin testified that because of Mother's lack of consistency and initiative, she never
recommended that visits resume:
[v]isits in my mind are different than therapy. Therapy implies that we are working to
intervene to foster a better relationship, and that takes a lot of consistency, and it takes a
lot work to do that. [Mother] was no - at different times over the years, not even attending
visits regularly. So to assume that she would come to therapy regularly, I wasn't willing
to do. N.T. 6/20/2016, 134.
12
Furthermore, the absence of contact or missed visits negatively affected A.K. Mother's
inconsistency was both difficult and damaging for A.K. 'swell-being. Dr. Martin testified that it
is in A.K. 's best interest to have permanence and consistency. For A.K. to continue to heal, she
needs predictability, trust, and security.
Mother fails to comprehend the substantial, possibly permanent, damage she has done to
A.K. Mother refuses to take responsibility for any incident or traumatic experience this Child has
been made to suffer. Instead, Mother continuously blames Father, Step-Mother, MGM, and even
Maternal Uncle's illness, rather than take any responsibility.
Mother's conduct evidences a lack of commitment to A.K. and a lack of desire to rebuild
a relationship with A.K. in the manner that benefits the child. Even at the date of the last
termination hearing, Mother made it clear that she values her desires more than the needs of her
daughter. Mother testified she has no interest in resuming visitation if the visits remain
supervised. She testified, "I'm not going to date a guy because the kind of guy who is going to
date a woman who doesn't have access - who has supervised visitations with her child is going
to be a horrible person." N.T. at 204. Mother approaches a renewal of contact with superficial
interest, void of parental responsibilities. She desires the same relationship with A.K. as she has
with her other daughter, who has always been in the primary custody of her father, and whom
she only sees periodically.
Conversely, Step-Mother has provided A.K. with the stability and permanency that she
deserves. A.K. has been living as an intact family with Step-Mother and Father since 2006. Step-
Mother has provided for the child's physical, emotional and mental well-being. She is at an age
where stability and consistency are crucial.
13
The Court is persuaded by the Guardian ad !item's recommendation that termination of
Mother's parental rights in furtherance of adoption is in this child's best interest. Mother has
been either unwilling or unable to meet A.K.'s basic needs for several years. Terminating
Mother's parental rights would not be detrimental to A.K. 'swell-being or destroy a necessary,
beneficial relationship between A.K. and Mother. Instead, it will allow the Child to be adopted
by Step-Mother with whom the Child has a strong, beneficial bond and who has consistently
provided for A.K. 's developmental, physical and emotional well-being.
Finally, A.K. will be twelve years of age W August ~· 2016. She has been through a lot
of emotional turmoil since the custody proceedings were initiated in 2006, when she was about
two years of age. She testified before this Court. She is very articulate. She appears to be both
intelligent and mature. She expressed her desire to be adopted by her step-mother, with whom
she has established a parent-child relationship and recognizes as her mother, without any
reservation. Her testimony was credible, compelling, persuasive, and further supports that the
termination of birth mother's parental rights will be in A.K. 's best interest.
Based upon the totality of the record and having resolved all issues of credibility, the
Court finds for the above stated reasons that the Petitioners have established by clear and
convincing evidence that the parental rights of Mother should be involuntarily terminated as
requested, and that the termination will promote and enhance the developmental, physical and
emotional needs and welfare of A.K. Accordingly, the Court enters the following Decree:
14
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
INRE·
A. L:. c. k. No. 251 of 2016
INVOLUNTARY TERMINATION
DECREE
~
AND NOW, this ~ day of August, 2016, upon consideration of the Petition to
involuntarily terminate parental rights of the biological mother, L · (;..I'(. to
filed by T3 . P. l< . and L... 5. k. and in
consideration of the hearing conducted on this matter, the Court GRANTS the reliefrequested.
The parental rights and duties of L. c,... .I<. mother of
A. L. C... K. including the obligation of support, shall be and are hereby forever
terminated pursuant to Section 251 l(a)(l) and (b) of the Adoption Act.
L. G-.K. shall be hereafter without any power or right to object to or
receive notice of adoption proceedings concerning said Child.
The Clerk of the Orphans' Court is directed to send a copy of this decree to all counsel and
to the parents of the Child by first class mail at their last known addresses and to note on the docket
the date of the mailing. The clerk is further directed to send to the parents of the Child notice of
the right to place information on file with the Pennsylvania Department of Health, Division of
Vital Records, as provided by the Adoption Act and the right to place medical information on file
with the Department of Welfare as provided by the Adoption Act.
BY THE COURT:
ATTEST: ~}l,AJ" .~
- - D-E``rYCl.~K- o6b
Copies To: Jozefa Jackson, Esquire - Attorney for the Petitioners
Elaine G. Ugolnik, Esquire- Guardian ad /item
Albert J. Meier, Esquire - Attorney for Mother
- L . c;.. k. , mother