Com. v. Rounds, F. ( 2015 )

J-S10045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF J.D.M., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: C.M., MOTHER : No. 3090 EDA 2014
Appeal from the Order Entered September 29, 2014
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2013-A0196
IN RE: ADOPTION OF C.D.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: C.M., MOTHER : No. 3091 EDA 2014
Appeal from the Order Entered September 29, 2014
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2013-A0195
BEFORE: GANTMAN, P.J., STABILE, J., AND PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 12, 2015
Appellant, C.M. (“Mother”), appeals from the orders entered in the
Montgomery County Court of Common Pleas Orphans’ Court, which granted
the petition of Appellee, the Montgomery Office of Children and Youth
Services (“OCY”), for involuntary termination of Mother’s parental rights as
to her minor children, J.D.M. and C.D.M. (“Children”).1 We affirm.
1
Children’s birth father is not a party to this appeal. He voluntarily
relinquished his parental rights to Children at the termination hearing on
March 19, 2014.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S10045-15
In its opinion, the Orphans’ court fully and correctly sets for the
relevant facts and procedural history of this case. Therefore, we have no
reason to restate them.
Mother raises several issues for our review:
WHETHER THERE WAS SUFFICIENT EVIDENCE TO
SUPPORT THE FINDINGS OF THIS HONORABLE COURT
THAT [OCY] PROVED BY CLEAR AND CONVINCING
EVIDENCE THE REQUIREMENTS OF 23 PA.C.S.A. [§]
2511(A)(1), (2) AND (8) FOR THE INVOLUNTARY
TERMINATION OF [MOTHER’S] PARENTAL RIGHTS?
WHETHER THIS HONORABLE COURT ABUSED ITS
DISCRETION IN FINDING THAT THE CAUSES OF THE
ALLEGED INCAPACITY, ABUSE, NEGLECT OR REFUSAL
CANNOT OR WILL NOT BE REMEDIED BY [MOTHER]
PURSUANT TO 23 PA.C.S.A. [§] 2511(A)(2), WHEN [OCY]
FAILED TO MAKE REASONABLE ACCOMMODATIONS FOR
[MOTHER’S] DISABILITIES, AND FAILED TO PROVIDE
MEANINGFUL ASSISTANCE IN MAINTAINING STABLE
HOUSING AND OTHER SERVICES?
WHETHER THIS HONORABLE COURT ABUSED ITS
DISCRETION IN TERMINATING THE PARENTAL RIGHTS OF
[MOTHER] ON THE BASIS OF ENVIRONMENTAL FACTORS
SUCH AS INADEQUATE HOUSING, FURNISHINGS,
INCOME, CLOTHING AND MEDICAL CARE, WHEN THOSE
FACTORS WERE BEYOND [MOTHER’S] CONTROL
PURSUANT TO 23 PA.C.S.A. [§] 2511(B), AND WHEN
[OCY] FAILED TO MAKE REASONABLE ACCOMMODATIONS
FOR [MOTHER’S] DISABILITIES AND FAILED TO PROVIDE
MEANINGFUL ASSISTANCE IN MAINTAINING STABLE
HOUSING AND OTHER SERVICES?
WHETHER THIS HONORABLE COURT ABUSED ITS
DISCRETION IN FINDING THAT THE DEVELOPMENTAL,
PHYSICAL AND EMOTIONAL NEEDS AND WELFARE OF
[CHILDREN] WILL BE BEST SERVED BY THE TERMINATION
OF [MOTHER’S] PARENTAL RIGHTS PURSUANT TO 23
PA.C.S.A. [§] 2511(B), WHEN THERE IS A STRONG AND
LOVING BOND BETWEEN [MOTHER] AND THE CHILDREN,
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AND SEVERANCE OF THAT BOND WILL CAUSE
IRREPARABLE HARM TO THE CHILDREN?
WHETHER THIS HONORABLE COURT ERRED IN GRANTING
[OCY’S] PETITION TO CHANGE THE GOAL FROM
REUNIFICATION TO ADOPTION WHEN THE GOAL OF
REUNIFICATION REMAINS THE MOST APPROPRIATE AND
FEASIBLE GOAL BASED ON THE STATUTORY FACTORS SET
FORTH IN 42 PA.C.S.A. [§] 6351(F)?
WHETHER THIS HONORABLE COURT ERRED IN GRANTING
[OCY’S] PETITION TO CHANGE THE GOAL FROM
REUNIFICATION TO ADOPTION WHEN [OCY] FAILED TO
MAKE REASONABLE EFFORTS TO FINALIZE THE
PERMANENCY PLAN GOAL OF REUNIFICATION?
WHETHER THIS HONORABLE COURT HAD SUFFICIENT
EVIDENCE TO DETERMINE THE APPROPRIATENESS OF
CHANGING THE GOAL FROM REUNIFICATION TO
ADOPTION WHEN THE COURT DID NOT CONSULT WITH
THE CHILDREN REGARDING THE PERMANENCY PLAN
PURSUANT TO 42 PA.C.S.A. [§] 6351(E)(1)?
(Mother’s Brief at 4-5).2
Appellate review in 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
order of the trial court is supported by competent
evidence, and whether the trial court 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
2
Mother’s brief on appeal presents no legal argument based on Section
6351, as recited in Mother’s issues 5 through 7. Mother merely quotes the
statute and draws conclusions based on her interpretation of the facts and
circumstances of the case. Therefore, we give these issues no further
attention.
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J-S10045-15
A.2d 5, 8 (Pa.Super. 2009)).
Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must
employ a broad, comprehensive review of the record
in order to determine whether the trial court’s
decision is supported by competent evidence.
In re 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 trial court, 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)).
After a thorough review of the record, the briefs of the parties, the
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J-S10045-15
applicable law, and the well-reasoned opinion of the Honorable Lois E.
Murphy, we conclude Mother’s issues merit no relief. The Orphans’ court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Orphans’ Court Opinion, filed September 29, 2014, at 5-
17) (finding: Children were removed from Mother on September 21, 2011,
at Mother’s own initiative by calling OCY; Mother suffers from multiple
medical and mental health issues, including multiple sclerosis and bipolar
disorder; Mother acknowledges history of drug abuse, including abuse of
prescription drugs, methamphetamines, amphetamines, and cocaine;
Mother, for some time, actively worked toward reunification with Children
per OCY’s goals; however, among other circumstances, Children’s birth
father was released from jail and took from Mother money meant for
housing, and Mother subsequently lost housing; Mother appeared intoxicated
on some visits with Children; Mother missed approximately 50 percent of
visits and 60 percent of scheduled phone calls; Mother allowed birth father
to be present on unsupervised visits with Children, though birth father was
not to attend because he was found intoxicated previously while around
Children; Mother failed to obtain recommended long-term outpatient
psychotherapy; Mother tested positive in drug tests on at least eight
occasions; Mother acknowledged history of health, financial, and housing
instability; Mother refused to provide current address to OCY caseworker;
Mother is unable to provide Children with essential parental care, control, or
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J-S10045-15
sustenance necessary for their physical and mental well-being; the causes of
Mother’s incapacity, abuse, neglect, or refusal cannot or will not be
remedied; Mother has not provided housing, met Children’s needs, or
maintained consistent parent-child relationship; OCY proved by clear and
convincing evidence that Mother failed and refused to perform her parental
duties for 36 months, beyond 6-month period prior to filing of petitions;
conditions leading to placement of Children continue to exist and cannot or
will not be remedied by Mother; Mother lacks capacity to meet all obligations
of providing safe, secure, and nurturing home for Children; OCY met its
burden of proof under Section 2511(a)(1), (a)(2), and (a)(8); per Section
2511(b), parental bond between Mother and Children is attenuated; Children
have developed significant bond with foster parents; Children are very well
loved and entrenched in foster home; Children’s emotional needs and
welfare are best met by termination of Mother’s parental rights, and Children
will not suffer irreparable harm as result of termination; OCY made
reasonable efforts to attempt to reunify Children with Mother, but court
found adoption appropriate; OCY established basis for terminating Mother’s
parental rights to Children). Accordingly, we affirm the termination of
Mother’s parental rights to Children on the basis of the Orphans’ court
opinion.
Orders affirmed.
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J-S10045-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2015
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THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: ADOPTION OF J.D.M., JR.
IN RE: ADOPTION OF C.D.M.
ORPHANS' CT. NUMBER: 2013-A0196
ORPHANS' CT. NUMBER: 2013-A0195
OPINION
Murphy,J. September&'
Before me are Petitions to Terminate the Parental Rights of Birth Mother, c'M.,
~IAIh(Y .
to her two sons, J.D.M., Jr. who was born 2009 and IS 5 Y, years old, and C.D.M.,
who was born J'tJ.1»12007 and is 7 years old. The Petitions were filed on October 17, 2013
and allege 3 grounds as a basis for terminating parental rights. These grounds are found
in § 2511(a)(I), § 2511(a)(2), and 2511(a)(8) of the Adoption Act. If anyone of these
grounds is established and proven, by clear and convincing evidence, then termination of
rights will occur. The Office of Children & Youth of Montgomery County (hereinafter
"OCY") filed Petitions to Terminate the Parental Rights of Birth Father, J.M., with
respect to each of the children, C.D.M. and J.D.M., Jr. On March 19,2014 in open
court, the Birth Father requested modification of the Petition to be a Petition to Confirm
the Voluntary Relinquishment of Parental Rights with respect to each of the children. In
open court, J.M. voluntarily, deliberately and knowingly relinquished all of his parental
IIII rt.'C:m ~lt``~r.t311111
2013-AOI96. IO FilingID: 1683263
1925(a) Opinion
Receipt # Z153543 Fee $0.00
D. Bruce Hanes. Esg. - Monteo Register of Wills
9129/20142:52:33 PM - M. JD 1R
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rights to each of the children on March 19,2014. J.M. was represented by counsel and
had an adequate opportunity to consult with his counsel before relinquishing his parental
rights. Based upon this relinquishment, the Court concluded that his relinquishment of
parental rights was voluntary and has concluded that it is appropriate to enter a Final
Decree tenninating all of his parental rights with respect to C.D.M. and J.D.M., Jr.
The Office of Children & Youth requested that this Court proceed to a hearing on
its Petitions for Involuntary Tennination of Parental Rights of Birth Mother, C.M. and its
applications to change the goal in these proceedings to adoption. The Court conducted a
joint pennanency review hearing to consider the request for a change of goal and
tennination of parental rights hearing with respect to Birth Mother, C.M.
With respect to the Petition for Involuntary Tennination of Birth Mother's
Parental Rights, OCY must prove its case by clear and convincing evidence. The
standard of clear and convincing evidence as a threshold to tennination was established
by the United States Supreme Court in the case of Santosky v. Kramer, 455 U.S. 745
(1982). This standard is defined as testimony that is so clear, direct, weighty and
convincing as to enable me to come to a clear conviction, without hesitancy, of the truth
of the precise facts in issue. It is not necessary that the evidence be uncontradicted ...
provided it 'carries conviction to the mind' or carries 'a clear conviction of its truth.'
LaRocca Trust, 41 J Pa. 633, 192 A.2d 409 (1963).
The requirements under 25JJ(a)(I) are as follows: "The parent has failed or
refused to perfonn parental duties for the 6 months immediately preceding the filing of
the Petition; or has evidenced a settled purpose of relinquishing his [or her] parental
claim to the child."
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Section 2SII(a)(2) provides that 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.
Under 2SII(a)(8), the test is: "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."
With respect to the alleged ground under section (a)(8), the children have been
removed from the care of the parent from September 21, 20 II until present, a period of
36 months.
With respect to this ground (a)(8), the time period having been satisfied, the
principal question I must answer is whether the conditions that led to removal of the
children from the home continue to exist as of the time the Petition was filed. I must
also determine whether termination of parental rights will best serve the needs and
welfare of the children.
Under ground (a)(1) I must consider whether the parent has failed or refused to
perform parenting responsibilities for the six months preceding the filing of the petition;
or whether the parent has evidenced a settled purpose of relinquishing a parental claim.
Under section (a)(2), I must consider whether OCY has proven abuse or neglect
by clear and convincing evidence or whether OCY has proven incapacity to parent. In
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this case, there has been no proof of abuse of the children. Therefore, I must evaluate
whether OCY has proven by clear and convincing evidence that the parent lacks the
capacity to parent the children, and to provide the minimum requirements to which all
children are entitled.
The Pennsylvania Superior Court has identified certain irreducible minimum
requirements to which all children are entitled from their parents, including adequate
housing, clothing, food, love and supervision. In re Diaz, 669 A.2d 372 (Pa. Super.
1995). "The necessary implication is that a parent who cannot or will not meet the
irreducible minimum requirements within a reasonable time following state intervention
may properly ... have parental rights terminated." In re J. w., A. w., V. W. and J. w., 396
Pa. Super. 379, 390-91,578 A.2d 952, 958 (1990). Thus a petition seeking to terminate
parental rights may be based upon a lack of capacity even in the absence of affirmative
misconduct. In re E.M, 533 Pa. 115,620 A.2d 481 (1993).
The Supreme Court of Pennsylvania has held that it is not a violation of
constitutional rights for an individual's parental rights to be terminated due to the
parent's disabilities or handicaps that prevent the parent from being able to provide
proper care for the parent. In re William L., 477 Pa. 322, 383 A.2d 1228 (1978). As the
Supreme Court explained in reaching its decision:
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 ... 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.
383 A.2d at 1239.
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For example, in In the Interest of Lilley, the trial court terminated the parental
rights of a mother who suffered from depression and chronic mental illness. In the
Interest ofLilley, 719 A.2d 327 (Pa Super. 1998). In upholding the decision of the lower
court, the Superior Court noted that the natural mother had not been able to sustain
herself in independent living and had not been able to achieve the family service plan
goals that would permit reunification with her son. Id. at 328. "She could not assume
the role of parent and had not exercised that role except for limited visits, ... and is
presently and for the foreseeable future incapable of fulfilling the role of mother and
caretaker" for her child. Id. at 331. In cases in which the parent is incapable of
providing basic necessities and will continued to suffer such parental incapacity, the
focus of the Court must be not on the parent's wishes and desires, but the child's need for
security, safety, permanency and well-being. Id. at 334 (citing Adoptions and Safe
Family Act, § 101(b)(7)). "The child's safety is the paramount concern.... Substitute
care is a temporary setting. It is not a place for children to grow up." Adoptions and
Safe Family Act, § 10I(b)(7).
The following facts were developed at the hearing. The Birth Mother, C.M.,
(hereinafter "Birth Mother") called OCY on her own initiative requesting assistance with
her children on or about June 27,2011. Birth Mother, according to her own testimony
and the testimony of the caseworkers, suffers from multiple medical and mental health
issues, including bipolar disorder. She also reports that she suffers from multiple
sclerosis. N.T. p. 184. In addition, Birth Mother acknowledges a history of drug abuse,
including abuse of prescription drugs, both prescribed and unprescribed for her, as well
as illegal substances, including methamphetamines, amphetamines, and cocaine. Birth
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Father also has a history of drug use and incarceration for periods of time and was
incarcerated at the time of the hearing.
In June 20 11, Birth Mother concluded that she was struggling to care for her
children due to limited financial resources, her health and mental health issues and a lack
of adequate housing. At Birth Mother's request, OCY took custody of the children and
placed them in a foster home in September of2011. Between September and November
of 2011, OCY was contacted by a family member who wished to offer her home as a
placement for the two children. The foster mother, R.M., testified that she took the two
boys into her home in an effort to be of assistance to her family members and that she
expected the placement to be for a short term of possibly six (6) months to a year while
the birth parents obtained financial and housing security. N.T. p. 59.
In approximately December of 20 11, Birth Mother and Birth Father leased an
apartment in Boyertown. During the time that the birth parents had the apartment, OCY
caseworker noted that Birth Mother was making good progress on achieving the goals of
her family service plan. The caseworker noted, as did Birth Mother that she was "really
working hard" to achieve her goals and to reunify with her children. She had obtained an
apartment, obtained employment, and was working effectively with her OCY caseworker
and also with a time limited family reunification caseworker. She had affectionate and
successful visits with her children on a weekly basis. OCY increased her visits to
overnight weekend visits at her apartment. OCY was actively working toward reunifying
Birth Mother with her children in September and October of 20 12. In approximately
October 2012, however, when the Birth Father was released from jail and returned to the
apartment, issues arose that caused significant challenges for Birth Mother. She reported
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to Dey that the Birth Father took money from the apartment that she had been planning
to use for rent. With the assistance of Dey, she received some emergency housing
assistance to help her maintain her apartment. Incidents of violence occurred at the
residence when the Birth Father was home, according to Birth Mother's testimony. In
February of2013, the Birth Mother lost the apartment. She had not advised Dey that
she was at risk of losing the apartment. During this period according to her own
testimony, she became very depressed as a result of numerous setbacks, including the
loss of her apartment, trouble in her relationship with her husband and the continuing
placement of her children in foster care.
R.M., the foster mother who supervised many of the visits between Birth Mother
and her children described certain problems that have occurred with regard to Birth
Mother's visits with the children and phone calls to the children. For example, on March
12, 2013, when the children were visiting Birth Mother at their maternal grandmother's
home, the foster mother arrived to find Birth Mother and her mother "screaming and
yelling" at each other and broken glass on the living room floor. N.T. pp. 29-31. She
described the situation as very loud and testified that the children were crying. She said
that the two children were very upset driving back to her home, but that she was able to
calm them down with their usual nighttime routine. N.T. pp. 29-32.
R.M. also testified that Birth Mother has at times cancelled visits or been unable
to make visits due to a lack of transportation. She explained that when their Birth Mother
failed to appear at a visit, this was upsetting to both of the boys. N. T. pp. 32-33. She
estimated that Birth Mother failed to arrive for scheduled visits approximately three times
during the summer of 20 12 and also failed to arrive for at least two visits at Dey.
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Although, for the most part, the witnesses described Birth Mother's behavior at
visits at generally appropriate and affectionate, R.M. testified that there were times when
Birth Mother appeared under the influence. N.T. p.p. 33-34. R.M. explained that by
observing Birth Mother's speech, her walking and her behavior in general, she concluded
that at times she was under the influence at visits with the children. N.T. p. 34. Birth
Mother missed approximately 50% of the visits that foster mother tried to arrange with
the Birth Mother. Birth Mother has never visited the pre-school or school attended by
either ofthe children. Although the foster mother agreed that Birth Mother should call
the children once a week on Sunday evenings, she reported that Birth Mother did not call
consistently and that only approximately 40% ofthe scheduled phone calls were made,
with the result that Birth Mother missed the opportunity to call the children
approximately 60% of the time. On at least five of the phone calls with their Birth
Mother, the foster mother noted that the children were upset because of some of the
things she said to them over the phone and on at least one occasion, she appeared to be
under the influence when she made a phone call to the children. N.T. pp. 34-37.
The foster mother also noted that the Birth Mother engaged in inappropriate
behavior in front of the children, including fighting and arguing with other people
including Birth Father, Birth Mother's mother and the foster mother. N.T. p. 38-39.
On these occasions, the children have become upset seeing their Birth Mother express her
anger. On one occasion following a permanency review hearing in January of2014,
Birth Mother confronted the foster mother in the parking lot and argued in front of the
boys. N. T. p. 40-41. Although the foster mother agreed that Birth Mother has never
physically abused the boys and that she loves the boys and is affectionate toward them,
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she noted that on at least one occasion when it was clear to her that Birth Mother was
under the influence of some substance which impaired her judgment, she was unsure
whether Birth Mother would have been able to stop the boys from running into the street
or engaging in a dangerous activity.
OCY Caseworker George Oscovitz testified that Birth Mother's progress during
20 II, after placement of the children, was "rocky". He described Birth Mother as
"combative". N.T. p. 112. However, he noted that she began to progress and that in
Mayor June of 20 12, she attempted to get drug and alcohol evaluations, was maintaining
an apartment, and was working two jobs. N.T. p. 112. Visits were initially scheduled for
one time per week but were increased in duration and by the summer of 20 12, OCY had
begun weekend and overnight visits with the children at the Birth Mother's apartment.
During the summer of2012, Mr. Oscovitz noted few concerns and noted that visits were
going well and Birth Mother had activities planned for the children. N.T. p. 112-113.
During the period November of2011 through September 2012, according to Mr.
Oscovitz, 31 visits were offered and 7 of these visits were cancelled. N.T. p. 116. On or
about October 7,2012, Birth Mother reported that Birth Father was watching the
children, but during the time that he was watching the children, he was drinking and
doing drugs and her older son had to watch the younger children. N.T. p. 117. During
the same period, she continued to struggle financially. At one point, due to the Birth
Father's behavior, OCY determined that visits at the apartment could not continue if the
Birth Father was present. After this decision, however, OCY learned that Birth Father
was present at the apartment at the time of a scheduled visit. Thereafter, visits were
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moved to the maternal grandmother's home. N.T. p. 120. Thereafter, visits were again
changed to the Pottstown OCY office. N.T. p. 121.
Birth Mother lost her job in December of2012 and lost her housing in February
of2013 and was struggling financially. In April 2013, Birth Mother attended three of
four scheduled visits but cancelled one because she reported she was unable to get a ride.
In June, July and August of2013, Birth Mother attended only two of seven visits offered.
Although Birth Mother did obtain a psychological evaluation, the evaluation
recommended that she engage in long-term out-patient psychotherapy. While she
admitted that she finds herself in need of counseling from time-to-time when she is, as
she put it, "really feeling like I'm going to have a nervous breakdown", she also admitted
that she has not engaged in consistent and long-term psychotherapy as recommended.
N.T. p. 221.
Birth Mother also admitted that she has, at times, used illegal substances,
including methamphetamines and cocaine, and used prescription drugs that were not
prescribed for her. Birth Mother testified that she has medical issues that require pain
medications as well as anxiety medication and medication for ADHD. She tested
positive in drug testing administered by OCY on at least eight occasions: September 14,
2011, February 7, 2012, April 12, 2012, May 19, 2012, September 6, 2013, October 10,
2013, December 26, 2013, and February 18,2014. Exhibit OCY-12. In October 2013,
Birth Mother admitted to her caseworker that at times she has used methamphetamines.
At a permanency review hearing on January 6, 2014, Birth Mother testified before Master
Imms that she has used illegal drugs during 2013 and that she used Xanax and cocaine
since September of2013. Both Mr. Oscovitz and R.M. also testified that she told them at
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times that she had used illegal drugs. On October 3, 2013 at the OCY Pottstown office,
she admitted to drug use. On January 24, 2014, Birth Mother was arrested in a hotel
room where marijuana, methamphetamines and drug paraphernalia were present. Birth
Mother's criminal charges were dismissed.
Birth Mother did not demonstrate any insight into her need for long-term
psychotherapy or formal drug treatment. Recently, in February of2014, she was
admitted to Valley Forge Medical Center for a detox program. She was discharged on
February 10,2014 before completing the program. She stated that she was unable to
complete the program because she had to appear in Court before a Magisterial District
Judge. The discharge instructions she received from Valley Forge Medical Center
recommended that she enter a 12-step program. Despite this recommendation, since her
discharge from that program, she has not sought additional treatment for her addictions
nor has she attended Alcoholics Anonymous or Narcotics Anonymous.
With respect to the recommendation that she receive long-term counseling, she
stated "I go to counseling when 1 need to" and "I attend when 1 am really feeling like 1
will have a nervous breakdown". NT p. 221. However, she has not demonstrated a
commitment to or ability to consistently participate in necessary mental health treatment.
Birth Mother admitted to taking Xanax that was not prescribed for her as well as
using cocaine, pain pills and methamphetamine. With respect to methamphetamine, she
admitted that she used this drug once when with Birth Father, and once after she lost the
apartment in February 2013. She disputes the accuracy of some of the positive drug tests
results obtained by OCY. However, she also failed to provide urine samples for drug
tests on January 2,2014, January 22,2014 and January 27, 2014, despite being advised
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that the failure to provide a sample would result in OCY viewing this failure as the
equivalent as a positive drug screen.
Birth Mother described in her own words a history of not only health instability,
mental health instability, and drug use but also financial instability and housing
instability. N.T. p. 184. At times she has lived with her mother, her stepfather, and her
birth father. Each of these residences poses problems for Birth Mother
Since Birth Mother lost her apartment in February 2013, she has had numerous
addresses. Most recently, she refused to provide her current address to her OCY
caseworker. N.T. pp. 138-139.
Birth Mother is a troubled person who loves her two sons and says that she wants
what is best for them. Her problems relating to her health issues, her drug addiction
which she has not effectively treated, and her financial instability have been exacerbated
by Birth Father's incarceration and inability to contribute to their household. Perhaps the
most telling and moving statement by Birth Mother herself was that she did not regret
calling OCY initially to obtain assistance and stability for her children when she could
not care for them. N.T. p. 218. She continues to attempt to obtain employment and
obtain a new residence. However, she has not adequately addressed her drug use and her
mental health issues in a sustained way that may assist her in achieving and maintaining
stability. Despite her acknowledged drug use, her lack of insight was evident when she
contradicted her own testimony, stating, "1 never had a problem with drugs."
Birth Mother cares deeply for her two sons and wants what is best for them. She
testified she is "willing to do anything" for them. N.T. p. 218.
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Although Birth Mother desperately wishes to maintain a place of importance in
the lives of her sons and a relationship with them, she has not addressed her mental health
or substance abuse issues and has not demonstrated that she is capable of providing them
with the stable home environment that she knows they need and deserve. She recognized
that they need this stability when she called DCY initially and acknowledged that she was
struggling and unable adequately to provide the safe, stable home environment that they
need and deserved. Despite her passionate expression of her love and affection for the
children, she could not articulate a plan to address her needs as well as their needs and
has been unable in the three years since they were placed with DCY to maintain a
residence, financial stability and recovery from drug addiction.
Evidence of drug testing with the Petitioner reveals positive tests on numerous
occasions from September 14, 2011 through February 2014. Birth Mother's continued
drug use and continued mental health issues and lack of financial stability and housing
stability make it impossible for her to provide the parental care, control, housing,
nutrition, comfort, support and consistency necessary for the children's physical and
mental well-being. I find that Petitioner has presented clear and convincing evidence
that Birth Mother's continued drug use and continuing mental health issues create a
parental incapacity and has resulted in neglect of parental duties and an inability to
provide a safe and secure home for the children. Moreover, both the drug use and the
mental health issues are among the conditions that led to the removal of the children from
the parent's care which carmot and will not be remedied by Birth Mother. While Birth
Mother has been sober for brief periods of time she has repeatedly relapsed, leaving her
children without adequate parental care and supervision.
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Mother has been unable to provide children with the essential parental care,
control, or subsistence necessary for their physical and mental well-being, and the causes
of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the Birth
Mother. Birth Mother's desire for an opportunity to improve her parenting in the future
is insufficient to overcome the findings that she has been incapable of meeting the needs
of her children to date. In this case, the testimony clearly established that, although Birth
Mother loves and plays with the children, the Birth Mother has not provided safety and
security for her children.
In this case, the Birth Mother has not provided a home, has not met the children's
needs, and has not maintained a consistent and strong parent-child relationship. Her
desire to start over at this time is insufficient to meet the needs of her children for
consistent and reliable love, affection and responsibility.
Based on the foregoing facts, this Court finds that, with respect to each of the
children, OCY had proven by clear and convincing evidence that Birth Mother has failed
and refused to perform her parental duties for a lengthy period beyond the six-month
period prior to the filing of the petitions, that the conditions that led to placement of the
children continue to exist and cannot or will not be remedied by the Birth Mother, and
that Birth Mother, C.M., lacks the capacity to meet all of the obligations of a parent to
provide a safe, secure and nurturing home for her children.
This Court finds that OCY has met its burden of proof under § (a)(l), § (a)(2) and
§ (a)(8) by clear and convincing evidence.
At this point, this Court must consider the needs and welfare of each child.
Section 2511 (b) of the Adoption Act requires this Court to give primary consideration to
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the developmental, physical and emotional needs and welfare ofthe children. The
Superior Court, interpreting the Adoption Act, has held that "the health and safety of the
child supercedes all other considerations." In re Interest of Lilley, cited supra at 333. In
considering the children's needs and welfare, this Court must consider the role of the
parental bond in the child's life and to fully consider whether a parental bond exists to
such an extent that severing this natural relationship would be contrary to the needs and
welfare of the child. In re E.M, 533 Pa. 115,620 A.2d 481 (1993). In reviewing the
evidence in support oftermination under section 2511 (b), the Pennsylvania Supreme
Court recently stated as follows:
[I]fthe 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. § 251 I (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 r.S.M, 71 A.3d 251, 267 (Pa. 2013).
The Pennsylvania Supreme Court has observed the delicate balance between
preserving the family unit and preventing a state of constant uncertainty and limbo for a
child who has no reasonable prospects for returning home to the care of his or her natural
parent. In such a case, our Supreme Court has said:
The policy of restraint in state intervention is intended to
protect, where, as here, disruption of the family has already
occurred and there is no reasonable prospect for reuniting it
without serious emotional harm to the child. . .. the issue
is not whether the state should intrude to disrupt an on-
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going family relationship, but where the state should seek
to preserve in law a relationship that no longer exists in
fact, with the result that the child is consigned indefinitely
to the limbo of foster care or the impersonal care of
institutions. In re William L., supra at 348-49, 383 A.2d at
1241.
In this case, I find that although Birth Mother sincerely loves her children, the
parental bond between Birth Mother and each child is attenuated, as she has been
incapable of providing for them in a mature parental way.
By contrast, I find that a significant bond has developed between the foster
parents and the children. Caseworker Stephen Pulansky testified that the two boys are
"very well loved in their foster home", and that "both children sought out Mr. and Mrs.
[M.l to have all of their needs met". Caseworker George Oscovitz testified that "the
children are really entrenched with the [foster1family." He also testified that in his
opinion the children would not suffer irreparable harm if the parental rights of Birth
Mother were terminated.
This Court concludes that the emotional needs and welfare of the children can
best be met by termination of the parental rights of Birth Mother, and that the children
will not suffer a detriment as a result oftermination of the parental rights oftheir Birth
Mother.
In addition, I find that the children are safe in their current placement, that their
needs are being met in the foster home, and OCY made reasonable efforts to attempt to
reunify the children with their Birth Mother. At this time, I find it is appropriate to
change the goal to Adoption.
In addition, I find that the Office of Children and Youth has established a basis for
terminating the parental rights of Birth Mother, C.M., to each of the children, and that
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termination of parental rights will best serve the needs and welfare of each of the
children.
BY THE COURT:
Copies mailed 9/.3t? 114 to:
Christina Terebelo, Esquire
Rochelle O'Herrick - Paralegal OCY
Craig Bluestein, Esquire
Brendan Campbell, Esquire - Father's Atty.
Carla Monahan - Birth Mother - 259 Montgomery Ave, Hillcrest Village,
Boyertown, PA 19512
O`` Secretary
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