In Re: The Interest of: X.E. minor Appeal of: K.E. ( 2015 )

J-S48030-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN RE: THE INTEREST OF: X.E., MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: K.E., MOTHER : No. 446 WDA 2015
Appeal from the Decree entered February 18, 2015,
Court of Common Pleas, Allegheny County,
Orphans’ Court at Docket No. TPR 071 of 2014
IN RE: THE INTEREST OF: J.S., MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: K.E., MOTHER : No. 447 WDA 2015
Appeal from the Decree entered February 18, 2015,
Court of Common Pleas, Allegheny County,
Orphans’ Court at Docket No. TPR 070 of 2014
BEFORE: PANELLA, DONOHUE and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 11, 2015
K.E. (“Mother”) appeals from the February 18, 2015 decrees entered
by the Allegheny County Court of Common Pleas granting the petitions filed
by the Allegheny County Office of Children, Youth and Families (“CYF”) to
involuntarily terminate her parental rights (“TPR”) to her son, J.S., and
daughter, X.E., (collectively “Children”) pursuant to 23 Pa.C.S.A. §
2511(a)(2), (8) and (b).1 After careful review, we affirm.
1
On the same date, the orphans’ court also involuntarily terminated the
parental rights of J.S.’s father, E.D.S., and the alleged father of X.E., S.C.,
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The relevant factual and procedural histories of this case,2 as gleaned
from the stipulations of the parties entered at the termination hearing, are
as follows:
HISTORY OF CASE UP TO TPR:
1. [J.S.] was born [in] June [] 2007 to Mother [] and
[E.D.S.] in Allegheny County, Pennsylvania.
2. [X.E.] was born [in] October [] 2009 to Mother [] in
Allegheny County, Pennsylvania.
* * *
5. A referral was made to CYF on March 9, 2009 that
Mother had left [J.S.] with caretakers for a long
period of time and could not be located.
6. A referral to Family Group Decision Making [] was
made on July 22, 2009.
7. CYF [s]ervices were utilized for the family from
August 13, 2009 through November 18, 2009[,]
when they were discontinued. [J.S.] had obtained
medical care and insurance and [X.E.] was doing well
in the home.
8. A referral was made to CYF on December 18, 2009
after [X.E.] was admitted to Allegheny General
Hospital for dehydration and [f]ailure to [t]hrive. On
December 20, 2009, [X.E.] was discharged from the
hospital into the care of Mother and in-home services
were put in place.
as well as the unknown father of X.E., pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2) and (b). None of the fathers appealed from the orphans’
court’s decrees terminating their parental rights.
2
As none of the fathers appealed, we omit from our discussion the
propriety of these decrees and the facts attendant thereto.
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9. Mother worked with Greater Valley Community
Services Inc. to obtain an apartment and furniture,
secure daycare for [C]hildren, apply for WIC, take
[C]hildren to doctor appointments, enhance
parenting, obtain birth control, learn budgeting and
CPR.
10. Greater Valley Community Services Inc. began
working with Mother on December 29, 2009 and
closed their case on March 20, 2010.
11. A referral was made to CYF on June 1, 2010 that
Mother was not caring for [X.E.] properly; that
Mother lacked formula, leaves [X.E.] in a soiled
diaper all day, does not have furniture[,] smokes
marijuana and drinks alcohol. This referral was
unfounded.
12. A referral was made on September 3, 2010 that
Mother left [C]hildren with [a] caregiver for an
extended period of time and could not be located,
and that Mother has no idea how to care for
[C]hildren.
13. An [e]mergency [c]ustody [a]uthorization was
obtained on September 3, 2010 and [C]hildren were
taken into protective custody by CYF.
14. A [s]helter [h]earing was held on September 7,
2010. The [c]ourt found there was not sufficient
evidence to keep [C]hildren in the custody of CYF. A
[s]helter [o]rder returned [C]hildren to Mother and
in-home services were put into place.
15. An FSP dated November 1, 2010 and signed by
Mother indicated that Mother was working with Three
Rivers Youth In-Home Services on the following
items[:] parenting skills, keeping the home safe,
obtaining medical care for [C]hildren, maintaining
safety in [the] home, ensuring Mother was to be the
primary caregiver for [C]hildren and Mother not to
leave [C]hildren with others for long periods of time.
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16. Mother was evicted from her apartment on
November 19, 2010 for non-payment of rent.
17. Mother was permitted to stay with [K.E. (“Maternal
Grandmother”)], but [Maternal Grandmother] would
not permit Mother’s paramour, [D.B.], to reside in
her home. [Maternal Grandmother] was worried
about his behaviors. Mother then decided to reside
in a Holy Family [s]helter with [D.B.]
18. On February 7, 2011, [Maternal Grandmother]
applied for, and was granted, custody of [C]hildren
through [f]amily [c]ourt.
19. A referral was made on May 26, 2011 [to CYF] that
[X.E.] had bruises on her buttocks and lower back.
20. On May 26, 2011, an [a]pplication for [e]mergency
[p]rotective [c]ustody was issued, and [Children]
were brought into CYF custody. CYF’s concerns were
that [Maternal Grandmother] did not protect [X.E.]
from harm, and the risk of [J.S.] not being protected
from harm.
21. A [s]helter [c]are [h]earing was held on May 27,
2011[,] and a [s]helter [o]rder was issued for
[C]hildren to stay in CYF custody. The [c]ourt
further ordered a forensic exam of [X.E.], a clothing
stipend, a safety plan to be put into place, in-home
services for [Maternal Grandmother], visits three
times a week for Mother and [Maternal
Grandmother], and directing no contact of [D.B.]
with [C]hildren.
* * *
23. A[n] FSP signed by Mother and [Maternal
Grandmother] on July 13, 2011 listed the following
goals[:] [maintain] contact with CYF, visits [with
Children], urine screens for Mother, no contact with
[D.B.], Mother as primary caregiver, [d]omestic
[v]iolence [e]ducation for Mother; [D.B.] to attend
anger management[,] [Maternal Grandmother], [sic]
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safety and housing for [C]hildren, prevent further
abuse and neglect[.]
24. Orders of [a]djudication and [d]ispostion finding
[C]hildren dependent were filed on August 10, 2011
after a hearing held on August 9, 2011 in front of
Judge Michael Marmo.
25. At the [a]djudication hearing, the parties stipulated
that there was bruising on [X.E.]
26. At the adjudication hearing, Mother testified that
[X.E.] may “have fell” [sic] and that her daughter “is
a tomboy” who is “really rough” and that Mother had
“seen bruises on her knees, her elbows” and that
Mother did not know what happened to cause the
bruising.
27. At the adjudication hearing, [Maternal Grandmother]
testified [to] the following about the bruising on
[X.E.]: “When that baby left me, there was nothing
on her. I didn’t notice anything. And I gave her a
bath and changed her.”
28. It has been CYF’s assertion throughout the case that
[D.B.] may have been the person who caused injury
to [X.E.]
29. Throughout the life of the case, Mother has made
some progress on her FSP [goals].
a. She completed Arsenal Family and Children
Supervised Parenting and Play Program between
October 2011 and January 2012. She was
recommended to benefit from further services.
[She completed an additional eight classes in May
2012].
b. In the summer of 2012, Mother completed a non-
offenders course at the Women’s Center &
Shelter. CYF asked Mother to take another
domestic violence course in August of 2013 but
Mother refused.
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c. Mother has remained exposed and subject to
domestic violence over the life of the case.
d. Mother did not attend any drug and alcohol
services. She completed an evaluation at Power
in the spring of 2013 and was recommended for
intensive outpatient treatment. She was placed on
a waiting list for uninsured persons.
e. Mother has been employed fairly regularly
throughout the case at places such as Steak ‘n
Shake and Wendy’s.
30. Mother and [D.B.] participated in parenting classes
for six to eight weeks in the summer of 2012 with
Scott Flurry, a family counselor at Holy Family.
31. Documentation in the case shows the following urine
screen test results: Mother was called for a total of
forty-one [] random drug screens; out of the forty-
one [] screens, fifteen [] showed a negative result,
there were twenty-one [] no shows, four [] positive
for marijuana, and one [] refusal to take the screen.
The dates for the positive tests are[:] November 29,
2010, March 12, 2013, September 24, 2013 and May
21, 2014.
KIDS/HEALTH/PLACEMENTS:
32. [Children] have been in CYF custody since May 26,
2011. This is a total of three years and seven
months, or forty-three [] consecutive months.
33. [Children] have had [three] placements during their
time in CYF custody.
34. [C]hildren were with the [C.] family of Project Star
from May 26, 2011 until August 26, 2011. This
placement disrupted due to non-compliance [with]
the visitation plan by [Maternal Grandmother].
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35. [C]hildren were with the [B.] family of Project Star
from August 27, 2011 until September 1, 2011. This
placement disrupted due to [J.S.] and another foster
child having been found in a bedroom with their
pants down.
36. [C]hildren were placed with the [D.] family of Project
Star on September 2, 2011 and have remained there
to the present day.
37. When [J.S.] came into care, he was almost four
years old[.] [J.S.] had serious medical needs upon
coming into care as a result of not being taken to the
pediatrician regularly.
38. [J.S.] had developmental delays, sleep apnea, his
speech was difficult to understand, had trouble
eating and drinking, he was not potty trained and
had significant eyesight issues.
39. [J.S.] had a surgery on May 1, 2012 to have his
adenoids and tonsils removed and tubes placed in his
ears. [J.S.] also underwent sleep studies, genetic
profiling, an eye patch, vision therapy, occupational
therapy, outpatient mental health therapy and is
now potty trained.
40. [X.E.] currently attends outpatient mental health
therapy and is up[] to[] date on her pediatrician
visits.
VISITATION INFORMATION
41. In 2011, Mother was offered forty-three [] visits with
[C]hildren through Project Star. Documentation
shows Mother had two [] weekend visits and
attended thirty-six [] day visits; one [] visit was
cancelled by Mother; one [] was cancelled due to
Mother’s failure to confirm and two [] were cancelled
by Project Star.
* * *
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43. In 2012, Mother was offered sixty-two [] visits
facilitated through Project Star. Documentation
shows: Mother had eight [] weekend unsupervised
[visits] in her home, attended fifty-two [] day visits,
one [] visit was cancelled per Mother and one [] visit
is unclear as to its occurrence.
* * *
45. In 2013, Mother was offered sixty-nine [] visits
facilitated through Project Star. Documentation
shows: three [] weekend visits attended and one []
weekend cancelled by mutual decision of Mother and
Project Star; fifty-four [] day visits attended by
Mother, seven [] day visits cancelled due to lack of
Mother’s confirmation and four [] cancelled by
Project Star due to various issues[.]
46. In 2014, Mother was offered fifty-three [] visits
through Project Star. Documentation shows: thirty-
three [] day visits attended, thirteen [] visits
cancelled due to lack of confirmation by Mother,
three [] visits were confirmed but Mother failed to
show, one [] cancelled by Mother and two [] visits
cancelled due to sick children. … Mother’s total
offered visitations documented for 2014 (not
including cancellations for sick children) is sixty-five
[] [51 day and 14 weekends] of which [M]other
attended forty-seven [].
* * *
49. Dr. [Terry] O’Hara[, Ph.D.] conducted several
individual and interactional evaluations throughout
the history of the case. The reports include the
following:
1. January 2012
a. Interactional evaluations of [C]hildren with
(a) Foster Mother, (b) Mother, and (c)
[Maternal Grandmother]
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b. Individual evaluation of [Maternal
Grandmother]
c. Individual evaluation of Mother
2. May 2012
a. Individual evaluation of [D.B.]
3. August 2012
a. Interactional evaluations of [C]hildren with
(a) Foster Parents, [] (b) Mother and (c)
[D.B.]
b. Individual re-evaluation of Mother
* * *
4. August/September 2013
a. Interactional re-evaluation of [C]hildren with …
[Maternal Grandmother] (8/[26]/13) [and] Mother
(9/03/13)
b. Individual re-evaluation of Mother (9/3/13) [and
Maternal Grandmother (8/13/13)]
* * *
5. November 2013
a. Individual evaluation of maternal great-uncle, [M.E.]
6. January 6, 2014
a. Interactional evaluation of [C]hildren with [Maternal
Grandmother] and her paramour, [W.H.]
7. [June 2014]
a. [Interactional re-evaluation of Children with Foster
Parents, Mother, and Maternal Grandmother]
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b. [Individual re-evaluation of Mother and Maternal
Grandmother]
c. [Individual evaluations of Children]
CYF Exhibit 1 (Stipulations), ¶¶ 1-49.
On April 21, 2014, CYF filed petitions to involuntarily terminate
Mother’s parental rights to Children. The orphans’ court took testimony on
the petitions on January 23, 2015. On February 18, 2015, the juvenile court
held a dependency proceeding at which the juvenile court changed Children’s
permanency goal from reunification to adoption and ordered that Children
shall remain in the care of their foster parents, with Maternal Grandmother
to have continued unsupervised visitation with Children. Thereafter, the
orphans’ court reconvened the termination proceeding and entered its
decision terminating Mother’s rights to Children on the record.
Mother filed a timely notice of appeal from the TPR decrees on March
17, 2015, and concomitantly filed a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). The orphans’ court issued
a responsive written opinion on May 15, 2015.3
On appeal, Mother raises the following issues for our review, which we
have reordered for ease of disposition:
3
We note that the briefing schedule on appeal in this case was delayed by
more than a month because of the orphans’ courts’ failure to timely author
its opinion and forward the certified record to this Court. See In re T.S.M.,
71 A.3d 251, 261 n.21 (Pa. 2013) (admonishing this Court for failing to
explain delays that occurred in a children’s fast track case).
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A. Did the [orphans’ court] abuse its discretion and err
in granting the [TPR petitions] pursuant to 23
Pa.C.S.A. §2511(a)(2) and (8) of the Adoption Act?
B. Did the [orphans’ court] abuse its discretion and err
in not determining specifically by clear and
convincing evidence that [C]hildren would not be
adversely affected by severance of the strong bond
extant between [Mother] and [C]hildren?
C. Did the [orphans’ court] abuse its discretion and err
as a matter of law in determining that [TPR]
pursuant to 23 Pa.C.S.A. §2511(a)(2) and (a)(8) of
the [A]doption [A]ct best serves the needs and
welfare of [C]hildren?
D. Did the [orphans’ court] abuse its discretion and err
as a matter of law in determining that [TPR]
pursuant to 23 Pa.C.S.A. §2511(a)(2) and (a)(8) of
the [A]doption [A]ct was in the best interests of
[C]hildren?
E. Did the [juvenile court] abuse its discretion and err
as a matter of law in determining that placement
with the foster parents in this case (and adoptive
resource) would be in the best interests of
[C]hildren?
F. Did the [juvenile court] abuse its discretion and err
as a matter of law in not determining that [C]hildren
should not be placed with [] Maternal Grandmother
under a subsidized [l]egal [c]ustodian agreement?
Mother’s Brief at 6-7.4
4
Contrary to our Rules of Appellate Procedure, Mother does not divide the
argument section of her appellate brief “into as many parts as there are
questions to be argued[.]” Pa.R.A.P. 2119(a). Because of the manner by
which we decide this appeal, this defect is not so substantial that we must
suppress her brief or quash the appeal. See Pa.R.A.P. 2101.
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The first four issues raised by Mother all challenge the orphans’ court’s
decision to terminate her parental rights to Children. We review a decree
terminating a parent’s rights for an abuse of discretion or error of law. In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). We must accept the
credibility determinations and factual findings of the trial court that are
supported by the record. Id. This Court may not reverse a termination
decree simply because we would have reached a different result based on
the same facts. Id.
Under section 2511 of the Adoption Act, the trial court must engage in
a bifurcated process. First, the trial court must examine the parent’s
conduct under section 2511(a). In re Adoption of R.J.S., 901 A.2d 502,
508 (Pa. Super. 2006). The burden of proof is on the petitioner to establish
by clear and convincing evidence the existence of grounds for termination
under section 2511(a). In re J.L.C. and J.R.C., 837 A.2d 1247, 1251 (Pa.
Super. 2003). If termination is found by the trial court to be warranted
under section 2511(a), it must then turn to section 2511(b), and determine
if termination of the parent’s rights serves the children’s needs and welfare.
In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
This Court need only agree with the trial court’s decision as to any one
subsection of section 2511(a) in order to affirm the termination. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863
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A.2d 1141 (Pa. 2004). We will therefore examine the facts under section
2511(a)(8), which states:
(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.A. § 2511(a)(8). We will address each of the three elements
seriatim.
Beginning with the first element, it is uncontested that Children have
been out of Mother’s care for well over twelve months. As the parties
stipulated, Children have been in CYF’s care continuously since May 26,
2011. CYF Exhibit 1 (Stipulations), ¶ 32. CYF filed its TPR petition on April
21, 2014. As such, the first prong of 2511(a)(8) is inarguably met.
Turning to the second element, we recognize that “termination under
subsection (a)(8) ‘does not require an evaluation of [a parent’s] willingness
or ability to remedy the conditions that led to placement of [the] child[].’” In
re I.J., 972 A.2d 5, 11 (Pa. Super. 2009) (quoting In re Adoption of
R.J.S., 901 A.2d at 511)) (emphasis in the original). The relevant questions
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under the second prong are whether the parent has remedied the conditions
that led to the placement of the child, whether those efforts were first
initiated prior to filing the petition to terminate the parent’s rights, and
whether the child’s reunification with that parent is imminent at the time of
the termination hearing. See 23 Pa.C.S.A. § 2511(b); In re I.J., 972 A.2d
at 11; see, e.g., In re Adoption of R.J.S., 901 A.2d at 512 (termination
under (a)(8) was appropriate where Mother was not in a position to parent
her children at the time of the termination hearing).
The record reflects that CYF removed Children from Maternal
Grandmother, who had custody of Children through the family division,
based upon concerns that Maternal Grandmother was unable to adequately
protect Children. CYF Exhibit 1 (Stipulations), ¶¶ 18-20. The juvenile court
ordered Children’s placement in foster care because of concerns about
Mother’s ability to care for Children. At the time of the 2011 removal, CYF
had been involved with Mother and Children for several years. Id., ¶¶ 5-17.
Following the 2011 removal, CYF set goals for Mother to effectuate the
return of Children to her care, including, inter alia, domestic violence
counseling and negative urine screens. Id., ¶ 23; CYF Exhibit 4 (FSP signed
July 13, 2011). The orphans’ court found significant Mother’s failure to
successfully complete these goals in deciding that CYF had satisfied its
burden of proving that Mother’s rights to Children should be terminated
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pursuant to 23 Pa.C.S.A. § 2511(a)(8). Orphans’ Court Opinion, 5/15/15, at
5-7.
We begin with the goal of completing domestic violence counseling.
Although Mother completed domestic violence counseling at the Women’s
Center and Shelter in 2012, the record reflects that Mother continued to be a
victim of domestic violence thereafter. CYF Exhibit 1 (Stipulations), ¶¶
29(b)-(c); CYF Exhibit 5 (Dr. O’Hara’s Report of August/September 2013), at
2 (stating that Mother was living with X.E.’s alleged father, S.C., who had a
history of domestic violence, and that Mother has been observed “to have
bruises up and down her arms as well as on her face”); CYF Exhibit 5 (Dr.
O’Hara’s Report of June 2014), at 2 (indicating that visits between Mother
and Children became supervised in February 2014 because “[M]other
obtained a PFA on her paramour, [D.B.], for physically assaulting [M]other”).
Mother was not forthright about the existence of domestic violence in her
relationships and refused to participate in any further domestic violence
counseling. CYF Exhibit 1 (Stipulations), ¶ 29(b); CYF Exhibit 5 (Dr.
O’Hara’s Report of January 2012), at 12 (Mother denied domestic violence
with D.B., stating that she has bruises because she’s “really clumsy”); CYF
Exhibit 5 (Dr. O’Hara’s Report of August 2012), at 6-7 (Mother discussing
her domestic violence counseling and stating that it did not really address
domestic violence and that she did not believe she needed such counseling);
CYF Exhibit 5, (Dr. O’Hara’s Report of August/September 2013), at 13
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(Mother denied domestic violence with S.C., claiming the bruises were from
“play[ing] around and wrestl[ing]” and “sucker bites,” but finally admitting
that “there was a lot of domestic violence altercations” in her relationship
with D.B.). Thus, at the time of the TPR hearing, Mother had not adequately
addressed her domestic violence goal.
Regarding Mother’s urine screens, the record reflects that Mother was
to participate in a drug and alcohol assessment if she tested positive for
controlled substances and follow any recommendations for treatment. See
CYF Exhibit 4 (FSPs); N.T., 1/23/15, at 11, 22. Mother either did not appear
for or refused to participate in twenty-two urine screens and tested positive
for marijuana at four of the screens. CYF Exhibit 1 (Stipulations), ¶ 31.
Mother participated in a drug and alcohol evaluation, which recommended
that she participate in intensive outpatient drug and alcohol treatment, in
which she failed to enroll or participate. Id., ¶ 29(d); N.T., 1/23/15, at 11.
In her testimony, Mother acknowledged that Power recommended that
she participate in intensive outpatient treatment, but testified that the
treatment conflicted with her work schedule and that “they weren’t really
trying to push it,” and determined that Mother only needed to stay in contact
with her Power mentor. N.T., 1/23/15, at 48. Mother presented no
documentation or additional testimony to support this claim.
Moreover, the record reflects that Mother was still actively using drugs
throughout the time Children were in CYF’s care, up to and including the TPR
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hearing. Id. at 64 (Mother testifying that she might test positive for
marijuana if she underwent a urine screen that day); CYF Exhibit 1
(Stipulations), ¶ 31 (reflecting that Mother tested positive for marijuana on
November 29, 2010, March 12, 2013, September 24, 2013 and May 21,
2014). Therefore, Mother did not address this goal.
Based on the testimony presented, it is clear that Mother not only
failed to remedy the circumstances that led to Children’s placement in foster
care, but she failed, in part, ever to address these issues. As such, the
second element of subsection (a)(8) was satisfied.
Turning to the third prong under (a)(8), the record supports a finding
that terminating Mother’s parental rights will meet Children’s needs and
welfare. Dr. O’Hara provided the following opinion in his June 2014 report:
[Mother] tested positive for cannabis in
September and May and this is representative of
poor coping skills and an inability to remain clean
when clearly knowing what is at stake for her. She
has not participated in treatment through Power and
she acknowledged a significant domestic violence
history with [D.B.] She was also involved with
[S.C.] who has a reported history of assault and, as
mentioned in her prior evaluation, she minimized the
bruises on her body, during her apparent relationship
with [S.C.] [Mother] Clearly lacks support and her
responses on the PAS were representative of anger
management concerns, externalization of
responsibility, impulsivity, and substance abuse.
[Mother] acknowledged “lashing out” when angered
and she discussed a recent incident of wanting to
fight another adult whom she encountered on the
street.
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* * *
[Mother] is not in any position to appropriately
care for [C]hildren at this time or appropriately meet
their needs and welfare, and [C]hildren have been
out of her care for approximately three years.
[Mother] is not currently in any treatment and she
has not appropriately addressed her domestic
violence and anger management concerns.
[C]hildren would be at risk for exposure to substance
abuse and domestic violence as well as psychological
disruption if returned to her care at this time. They
would consequently be at risk for anxiety,
depression, and reactive attachment concerns. For
these reasons, this examiner advises for [Mother’s]
parental rights to be terminated.
CYF Exhibit 5 (Dr. O’Hara’s Report of June 2014), at 32-33. The orphans’
court found Dr. O’Hara’s opinions to be credible. Orphans’ Court Opinion,
5/15/15, at 6.
We therefore find that the record supports the trial court’s finding of
clear and convincing evidence to terminate Mother’s parental rights pursuant
to section 2511(a)(8). We now turn to subsection (b), which states:
(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.
23 Pa.C.S.A. § 2511(b).
Under section 2511(b), we inquire whether termination of parental
rights would best serve the developmental, physical and emotional needs
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and welfare of the child. In Re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super.
2005). “Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” Id. at 1287
(citation omitted). The trial court must also discern the nature and status of
the parent-child bond, with utmost attention to the effect on the child of
permanently severing that bond. Id. “Common sense dictates that courts
considering termination must also consider whether the children are in a
pre-adoptive home and whether they have a bond with their foster parents.”
In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (citation omitted).
As our recitation of the facts reflects, there have been a plethora of
evaluations conducted by Dr. O’Hara assessing Children’s interaction and
attachment to the various caregivers involved in this case. See generally
CYF Exhibit 5 (Dr. O’Hara’s Reports). In June of 2014, Dr. O’Hara noted
some positive interaction between Mother and Children, but did not conclude
that Children were securely attached to Mother. CYF Exhibit 5 (Dr. O’Hara’s
Report of June 2014), at 32-33. Rather, Dr. O’Hara found that Children
were securely attached to their foster parents and that Children have
“thrived and remarkably progressed” in their care. Id. at 36. Dr. O’Hara
observed the foster parents to “present with stability and strong parenting
skills,” and recommended “that it is in [C]hildren’s best psychological
interest to remain primarily with the [Ds] and be adopted by them[.]” Id.
Relying on Dr. O’Hara’s conclusions, the orphans’ court found that
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terminating Mother’s parental rights to Children met their needs and welfare.
Orphans’ Court Opinion, 5/15/15, at 8-9.
Mother contests this conclusion, asserting that Dr. O’Hara has
historically found that Children have a positive relationship with Mother.
Mother’s Brief at 11-12, 14. The fact that there is evidence of a bond
between Mother and Children, however, does not preclude the trial court
from terminating her parental rights. In re A.D., 93 A.3d 888, 897 (Pa.
Super. 2014). “Rather, the trial court must examine the status of the bond
to determine whether its termination would destroy an existing, necessary
and beneficial relationship.” Id. at 898 (quotation and citation omitted).
Mother further contends that concerns regarding Children’s connection to
their cultural heritage should preclude termination.5 Mother’s Brief at 13,
14. Mother did not raise this argument before the orphans’ court or in her
concise statement of errors complained of on appeal, and has therefore
waived its review on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”); Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”); In re B.C., 36 A.3d 601, 605 (Pa. Super. 2012) (finding
5
The record reflects that Children are African-American and their foster
parents are Caucasian.
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that Father waived claims raised on appeal based upon his failure to raise
them at the TPR hearing).
The record reflects that Children have done very well in the care of
their foster parents; they have had all of their health-related needs met; and
by all accounts, they are thriving. While Children have a relationship with
Mother, there is nothing to suggest that terminating Mother’s parental rights
would have a damaging effect upon them. To the contrary, Dr. O’Hara
previously concluded that Children are “primarily attached” to their foster
parents. CYF Exhibit 5 (Dr. O’Hara’s Report of August/September 2013), at
18. Children refer to their foster parents as “mommy” and “daddy,” and
have repeatedly expressed their desire to remain in their foster parents’
care. See CYF Exhibit 5 (Dr. O’Hara’s Report of June 2014), at 21, 23, 25,
26. The record therefore supports the orphans’ court’s determination that
Children’s needs and welfare are met by terminating Mother’s parental
rights.
The evidence of record supports the decision by the orphans’ court to
terminate Mother’s parental rights to Children pursuant to section
2511(a)(8) and (b) of the Adoption Act. Therefore, no relief is due.
The final two issues raised by Mother on appeal concern the placement
of Children with their foster parents instead of with Maternal Grandmother
and the permanency goal of adoption as opposed to permanent legal
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custodianship. The orphans’ court states that these issues are waived.
Orphans’ Court Opinion, 5/15/15, at 10. We agree.
As the orphans’ court correctly observes,
[E]vidence and concerns regarding placement issues
are not relevant for purposes of assessing the
grounds for termination pursuant to 23 Pa.C.S.A. §
2511. Rather, the focus of a termination proceeding
is on the conduct of the parents and whether the
county agency has satisfactorily borne its statutory
burden for termination under Section 2511; not to
review the [j]uvenile court proceedings[;] the issues
and purposes of the proceedings before the
[j]uvenile court and the [o]rphans’ court are wholly
distinct.
Id. (citing In re J.A.S., 820 A.2d 774, 780-81 (Pa. Super. 2003)). The
dependency order entered by the juvenile court on February 18, 2015
changed the permanency goal for Children from reunification to adoption
and addressed the placement of Children. This order was a final, appealable
order. See In re D.S., 102 A.3d 486, 487 n.1 (Pa. Super. 2014) (indicating
that an order granting or denying a change in placement in a dependency
proceeding is a final, appealable order); In re C.J.R., 782 A.2d 568, 569
(Pa. Super. 2001) (stating that an order changing a dependent child’s
permanency goal is final and appealable). Mother did not appeal from the
juvenile court’s order. As such, these issues are not properly before this
Court in this appeal.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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