In Re: C.A.T., Appeal of: K.C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.A.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.C., MOTHER :
:
:
:
:
: No. 492 MDA 2019
Appeal from the Order Entered February 13, 2019
In the Court of Common Pleas of Lackawanna County Orphans' Court at
No(s): 2018-00046
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 30, 2019
K.C. (Mother) appeals from the order involuntarily terminating her
parental rights to her daughter, C.A.T. (born August 2014) (Child), pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b).1 After careful review, we
affirm.
The record reveals that Lackawanna County Office of Youth and Family
Services (OYFS) became involved with Mother and her two older children in
2011. N.T., 11/5/18, at 9. Prior to Child’s birth, Mother agreed to the
voluntary termination of her parental rights with respect to the two older
children. Id. at 25. OYFS became involved with Child in September 2014,
when Child was one month old. Id. at 26. At that time, police found Child in
____________________________________________
1 By order entered November 9, 2018, the court involuntarily terminated the
parental rights of Child’s father, C.T. (Father). Father has not appealed the
termination of his parental rights and is not a party to the instant appeal.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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the care of an eight-year-old. Id. at 26-27. As a result, Mother was charged
with endangering the welfare of a child. Id. at 27-28. Child was subsequently
adjudicated dependent and placed in foster care until March 2016, when
Mother regained custody of Child. N.T., 11/19/18, at 10-12, 85. During the
course of the dependency, Mother married R.S. and became pregnant,
subsequently giving birth to R.C. Id. at 10-13. Child’s dependency
terminated in June 2016. Id. at 12.
In July 2016, while married to R.S., Mother rekindled her relationship
with Father. Id. at 12-13. As a result, R.S. left the home. Id. In November
2016, OYFS received a report that Mother, then 28 years old, was dating a
minor, B.S., the nephew of R.S. Id. at 13-14, 22. Further, B.S. cared for
Child and R.C. while Mother worked 10 to 12 hours a day. Id. at 14. OYFS
encouraged Mother to seek more reliable daycare. Id. at 14-15.
In May 2017, OYFS received a referral for suspected child abuse when
Mother brought seven-month-old R.C. to Moses Taylor Hospital with a black
eye and a hematoma. Id. at 58-64. Mother reported that Child injured R.C.
when Child threw a toy at him. Id. at 59. A full skeletal scan revealed that
R.C. had two skull fractures and a rib fracture. Id. at 62-63. Because R.C.’s
injuries were inconsistent with Mother’s explanation, both Child and R.C. were
removed from her care. Id. at 59-61.
On October 12, 2017, Child was adjudicated dependent once again.
OYFS developed a service plan for Mother that required Mother to engage in
mental health services; obtain a parenting assessment; and participate in
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visitation with Child. Id. at 87. In November 2017, Mother’s service plan was
modified to include participation in a parenting group. Id. Mother attended
her appointments sporadically and was unsuccessfully discharged from a
parenting program. Id. at 89-90. Moreover, Mother’s visits never progressed
for any appreciable period of time. Id. at 130-34.
On August 3, 2018, OYFS filed a petition to involuntarily terminate
Mother’s parental rights to Child. The court conducted an evidentiary hearing
on November 5, 2018 and November 19, 2018. OYFS presented the testimony
of Cristin Wormuth, an OYFS supervisor; Jennifer Dunston and Marissa
Lynady, caseworkers for OYFS; Erik Krauser, an intake caseworker for OYFS;
and Stephanie Herne, an OYFS family engagement caseworker and visitation
supervisor. Mother testified on her own behalf and presented the testimony
of B.S.2
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2 At the time of the hearing, Child had a guardian ad litem, Attorney Kevin
O’Hara. Attorney O’Hara stated, “I do not believe that I have a conflict of
interest representing the child. . . .” N.T., 11/19/18, at 221. See In re
Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017) (plurality)
(stating that, pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject
of a contested involuntary termination proceeding has a statutory right to
counsel who discerns and advocates for the child’s legal interests, defined as
a child’s preferred outcome); see also In re T.S., 192 A.3d 1080, 1089-90,
1092-93 (Pa. 2018) (finding the preferred outcome of a child who is too young
or non-communicative unascertainable in holding a child’s statutory right to
counsel not waivable and reaffirming the ability of an attorney-GAL to serve a
dual role and represent a child’s non-conflicting best interests and legal
interests).
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On February 13, 2019, the court entered an order involuntarily
terminating Mother’s parental rights. On March 18, 2019, Mother filed her
notice of appeal and concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).3
On appeal, Mother raises the following issues for review:
1. The [c]ourt erroneously allowed this matter to proceed to a full
hearing as the petition for termination of parental rights was
fatally defective pursuant to 23 Pa.C.S.A. [§] 2512. The petition
in this case made no mention of the “conditions” on which the
termination was based. As such it was unclear and remains
unclear as to what “conditions” the agency believes necessitated
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3 Generally, an appeal must be filed within 30 days after entry of the order
from which the appeal is taken. Pa.R.A.P. 903(a). An untimely appeal divests
this Court of jurisdiction. Valley Forge Center Associates v. Rib-It/K.P.,
Inc., 693 A.2d 242, 245 (Pa. Super. 1997). However, “[e]ven when a party
has filed an untimely notice of appeal, . . . appellate courts may grant a party
equitable relief in the form of an appeal nunc pro tunc in certain extraordinary
circumstances.” Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001). Such
extraordinary circumstances include situations where “a party failed to file a
timely notice of appeal as a result of fraud or a breakdown in the court’s
operations.” Rothstein v. Polysciences, Inc., 853 A.2d 1072, 1075 (Pa.
Super. 2004) (“Cases involving a breakdown in court operations often involve
a failure on the part of the prothonotary to fulfill his or her ministerial duties,
such as the filing of dispositions and other relevant information on the
appropriate docket, or giving notice of these dispositions to interested
parties[.]”). Here, it is apparent that such a breakdown occurred. On May
22, 2019, this Court issued an order directing Mother to show cause why her
appeal should not be quashed as untimely. In response, Mother asserted that
the February 13, 2019 order was not served upon Mother or her counsel, and
that Mother did not learn of the order until March 7, 2019. Answer in Response
to Rule to Show Cause at 1. Mother argued that the order was sent to counsel
at an address in Scranton, Pennsylvania, despite the fact that counsel “does
not and has never had an office in Scranton.” Id. As it is apparent from the
certified record that the prothonotary served counsel at the wrong address,
we conclude that Mother is entitled to appeal nunc pro tunc.
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placement or termination. The [c]ourt should have denied the
petition without prejudice as being fatally defective.
2. The [c]ourt erroneously terminated [Mother’s] parental rights in
that [Mother] did not cause injury to [Child] or [Child’s] sibling
and there is no indication that an injury, such as the injury to
[Child’s] sibling might reoccur. Accordingly, the conditions that
led to placement no longer exist and the [c]ourt did not have a
valid basis for finding for termination pursuant to 23 Pa.C.S.A. [§]
2511(a)(2), (5) or (8).
3. The [c]ourt erroneously terminated [Mother’s] parental rights
without fully considering the best interests of [Child] pursuant to
Pa.C.S.A. [§] 2511(b). Part of that best interest analysis in this
context is a review of the effect of breaking the bond between
parent and child. All evidence presented suggested a strong bond
between [Mother] and child and no evidence was presented to
suggest how the termination of that bond might effect [C]hild.
Accordingly, there was not sufficient evidence to terminate
[Mother’s] parental rights[.]
Mother’s Brief at 4-5 (reordered for ease of disposition).4
In her first issue, Mother argues that the petition for involuntary
termination filed by OYFS failed to contain supporting facts. Mother’s Brief at
21-22. Mother asserts the petition provides only demographic information
and a recitation of the statutory sections asserted by OYFS without supporting
facts. Id. at 22-23. Mother contends that she would have received more
information had she received a parking ticket, and that the court should have
dismissed OYFS’s petition. Id. at 22-25.
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4 In the argument section of her brief, Mother combines the first and second
issues. We address them separately.
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Prior to the start of the termination hearing, Mother’s counsel made an
oral motion to dismiss OYFS’s petition based on the lack of factual assertions
contained in the petition. N.T., 11/5/18, at 5. The court denied Mother’s
motion, stating:
[Y]ou have been present for almost all, if not all, of the
hearings, so at that point in time you heard the testimony and the
court made reference to the findings of fact as to the testimony
that was presented in those hearings, so both you and your client
should understand exactly why and how and under what facts the
agency is following through with this, so motion denied.
Id. at 7.
Initially, we observe “the Rules of Civil Procedure do not recognize a
Motion to Dismiss as a separate motion . . .” Long v. Ostroff, 854 A.2d 524,
527 (Pa. Super. 2004). On occasion, we have treated motions to dismiss as
equivalent to a motion for summary judgment. See id. Here, however,
Mother’s argument is directed at the failure of OYFS to include sufficient facts
in its petition. Accordingly, Mother’s motion to dismiss is more akin to
preliminary objections. See Pa.O.C.R. 3.9(b)(2), (3) (permitting a party to
file preliminary objections asserting the failure of a pleading to conform to law
or rule of court or insufficient specificity in a pleading). “This Court will reverse
the trial court’s decision regarding preliminary objections only where there has
been an error of law or an abuse of discretion.” Mendel v. Williams, 53 A.3d
810, 816–817 (Pa. Super. 2012).
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The content of a petition to involuntarily terminate parental rights is
governed by 23 Pa.C.S.A. § 2512 and Pa.O.C.R. 15.4. Pursuant to Section
2512:
(b) Contents.--The petition shall set forth specifically those
grounds and facts alleged as the basis for terminating parental
rights. The petition filed under this section shall also contain an
averment that the petitioner will assume custody of the child until
such time as the child is adopted. If the petitioner is an agency it
shall not be required to aver that an adoption is presently
contemplated nor that a person with a present intention to adopt
exists.
23 Pa.C.S.A. § 2512(b).
Moreover, Rule 15.4 provides, in pertinent part:
(a) Petition. A petition for involuntary termination of parental
rights under Sections 311 and 312 of the Adoption Act shall
include the following allegations:
***
(6) facts constituting grounds for the involuntary
termination under Section 311 of the Adoption Act, and a
reference to the applicable subsection or subsections;
***
Pa.O.C.R. 15.4(a)(6).
Here, OYFS’s petition included the assertion that Child has been in its
care since May 19, 2017, was adjudicated dependent on October 12, 2017,
and specifically referenced Child’s juvenile court docket number. Petition for
Involuntary Termination at ¶ 2. It would have been advisable for OYFS to
plead additional facts or explicitly incorporate by reference the juvenile court
record to establish the facts supporting the termination petition. However, we
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discern no prejudice to Mother, as she was aware of OYFS’s concerns
throughout Child’s dependency. Pursuant to Pa.O.C.R. 1.2(a), the orphans’
court rules “shall be liberally construed to secure the just, timely and efficient
determination of every action or proceeding to which they are applicable. The
court at every stage of any action or proceeding may disregard any error or
defect of procedure that does not affect the substantive rights to the parties
in interest.” Upon review, we conclude that the orphans’ court did not abuse
its discretion by denying Mother’s motion to dismiss. Accordingly, Mother’s
first issue does not merit relief.
With respect to Mother’s substantive arguments, we review cases
involving the termination of parental rights according to the following
standards:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations
omitted).
Termination requires a bifurcated analysis:
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Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
While the orphans’ court in this case determined that OYFS met its
burden of proof under 23 Pa.C.S.A. § 2511(a)(2), (5), and (8), as well as (b),
we need only agree with its decision as to any one subsection of Section
2511(a), as well as Section 2511(b), to affirm the termination of parental
rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Thus, we focus our analysis on Section 2511(a)(2) and (b), which provides:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the
following grounds:
***
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
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physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The
grounds for termination are not limited to affirmative misconduct, but concern
parental incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108,
1117 (Pa. Super. 2010). Parents are required to make diligent efforts toward
the reasonably prompt assumption of full parental duties. Id.Mother argues that the orphans’ court improperly terminated her
parental rights pursuant to Section 2511(a)(2) because there was insufficient
evidence to support its conclusion that Mother lacks the capacity to
appropriately parent Child. Mother’s Brief at 25-28. Mother contends there
is no evidence that she caused or had knowledge of the cause of R.C.’s injury.
Id. at 25-26. She further asserts that she is addressing mental health issues,
and has no current issues with domestic violence or parenting. Id. at 26-28.
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Additionally, she claims that OYFS presented insufficient evidence of any
problems with Mother’s decision-making. Id. at 28.
Conversely, the orphans’ court summarized its conclusions with respect
to Section 2511(a)(2) as follows:
In satisfaction of the elements required to find termination
appropriate pursuant to 23 Pa.C.S.A. § 2511(a)(2): (1) Mother
repeatedly and continuously demonstrated that she refuses or
lacks the capacity to protect her children from violent, tumultuous
or inappropriate circumstances; (2) Mother’s refusal or incapacity
caused minor child to be without essential parental care, control
or subsistence necessary for her well-being; and (3) the causes of
Mother’s failings cannot or will not be remedied as evidenced by
her extensive history with [OYFS], sporadic engagement in
services, and cyclical irresponsible conduct. In fact, though her
actions clearly suggest the same, Mother testified that the
services [OYFS] prescribed have not positively affected her
decision-making capabilities. This [c]ourt finds no question that
Mother “has demonstrated a continued inability to conduct [her]
... life in a fashion that would provide a safe environment for a
child... and [that her] behavior is irremediable as supported by
clear and competent evidence.” In re Z.P., 994 A.2d at 1118(quoting, In re Adoption of Michael S.C. 486 A.2d at 375). The
[c]ourt is, therefore, satisfied that [OYFS] met its burden with
respect to its first ground alleged for termination of Mother’s
parental rights.
Orphans’ Court Opinion, 2/13/19, at 10 (citation to record omitted).
Our review of the record supports the orphans’ court’s decision. Cristin
Wormuth, an OYFS supervisor, discussed Mother’s lengthy history with OYFS,
which began in August 2011. N.T., 11/5/18, at 9. At that time, OYFS received
a referral that one of Mother’s children was hanging out of a window, followed
by a report that Mother had no car seat for her infant child. Id. In addition
to the safety concerns, Mother’s home was found to be in disarray and there
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were concerns about domestic violence between Mother and Father. Id. at
10. Ms. Wormuth had numerous conversations with Mother about domestic
violence and her need to engage in trauma counseling to understand how
domestic violence affected Mother’s life and her relationships. Id. at 16-17.
Throughout OYFS’s initial involvement, Mother’s progress and compliance was
minimal to moderate. Id. at 24. Eventually, Mother agreed to voluntarily
terminate her parental rights to her two older children. Id. at 25.
After the voluntary termination, OYFS involvement ceased. Id. Child
was born August 2014. Id. OYFS became involved with Child in September
2014 when Mother left her in the care of an eight-year-old. Id. at 26-27.
Mother insisted that the eight-year-old was “really good with the baby.” Id.
at 27. As a result of this incident, Child was adjudicated dependent. Id. at
28. OYFS’s concerns included Mother’s lack of protective capacity — in
particular, Mother’s failure to realize that it is inappropriate to leave an infant
in the care of an eight-year-old. Id.
Marissa Lynady, an OYFS caseworker, testified to additional concerns
regarding housing; employment; mental health treatment; and Mother’s
extensive history of relationships involving domestic violence. N.T., 11/19/18,
at 7-8. Initially, Mother was not compliant with services, but eventually began
services, albeit inconsistently. Id. at 6. Child was returned to Mother in March
2016, and the dependency was closed in June 2016. Id. at 12.
Ms. Lynady further testified that a month later, in July 2016, turmoil
ensued, referencing what she perceived as Mother’s gravitation to chaos. Id.
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Mother reached out to Father, although she was married to R.S., and was
pregnant with R.C., causing a rift in the relationship between Mother and R.S.
Id. Eventually, R.S. left Mother. Id. In October 2016, Mother gave birth to
R.C. Id. at 13. Shortly thereafter, OYFS received a report that Mother, then
nearly 30, was dating a 17-year-old. Id. This caused OYFS concern, as
Mother had two children in the home, had difficulty paying household bills,
and was dating a teenager. Id. Mother responded that B.S. was 18 and that
he was very mature for his age. Id. at 14.
Around this time, Mother began working more frequently and left both
Child and R.C. to be supervised by B.S. Id. OYFS encouraged Mother to find
more appropriate daycare. Id. Mother claimed to be attempting to locate
alternate daycare. Id. at 15. Ms. Lynady was worried that Mother was too
focused on work, was not attending therapy, and was regressing. Id. Ms.
Lynady viewed Mother’s decision to leave Child and R.C. with B.S. as a lack of
“protective capacity,” as she allowed someone she did not know well to be
their sole caregiver ten hours a day for five or six days a week. Id. at 16.
In May 2017, OYFS received a new referral alleging that R.C. had a
hematoma from an injury that occurred while B.S. was watching the children.
Id. at 58-62. Erik Krauser, an intake caseworker for OYFS, testified about the
report, which alleged that R.C. was brought to Moses Taylor Hospital by
Mother with a black eye and a hematoma to the right scalp. Id. at 59. Mother
claimed that she observed the injury two to three days prior, and the injury
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occurred when Child threw a toy at R.C.5 Id. at 59, 65, 77. It was later
discovered that R.C. had two skull fractures and a rib fracture. Id. at 62-63.
The doctors believed R.C.’s injuries were inconsistent with Mother’s
explanation. Id. at 60. Because of the inconsistency, both children were
removed from Mother’s care and placed in foster care on May 19, 2017. Id.
at 61, 67-68. Further, Mr. Krauser determined that the report was indicated.
Id. at 63. Child was adjudicated dependent on October 12, 2017.
After Child was removed from Mother’s care, Jennifer Dunston, another
caseworker for OYFS, became involved. The initial family service plan required
mental health services; a parenting assessment; and visitation. Id. at 87. In
November 2017, Mother’s Group, a parenting program, was added to Mother’s
services. Id.
Overall, Mother had difficulty being consistent with services. Id. at 92.
Mother’s mental health counseling was scheduled for four times per month;
however, Mother failed to attend in April, went twice in May, three times in
June and August, and once in July, September, and October. Id. at 89-90.
Mother was referred to Mother’s Group in May 2017 and March 2018, but did
not participate until May 2018. Id. Mother was also unsuccessfully discharged
from a parenting program in August 2018. Id.
Further, Mother exhibited minimal progress. Id. at 94. Ms. Dunston
testified that Mother had periods of compliance, but never made progress to
____________________________________________
5 Mother also reported that R.C.’s black eye could have been caused by Child
rolling a skateboard into him. N.T., 11/19/18, at 70-71.
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address the reasons why her children came into care with OYFS. Id. at 98.
At the time OYFS filed the termination petition, Ms. Dunston assessed Mother
as moderately compliant because she was engaged in Mother’s Group and
attended mental health counseling sporadically. Id. at 89. However, it was
not safe to return Child to Mother because she was in a relationship with B.S.
and there was no explanation for R.C.’s injuries.6 Id. at 126.
Stephanie Herne, an OYFS family engagement caseworker and a
visitation caseworker, testified regarding Mother’s visits with Child. Id. at
130. Mother attended the majority of visits with B.S. Id. The visits started
in May 2017. Id. at 130-31. Visits were a struggle, as Mother could not
multitask with both children, often paying attention to Child and ignoring R.C.
Id. at 131-32. The level of supervision was decreased for approximately two
months before more supervised visits were reinstituted due to the birth of C.,7
Mother’s child with B.S. Id. at 133-34.
Mother also testified. She stated that R.C.’s injuries could have occurred
when R.C. rolled off of her and struck his head on a dresser. Id. at 167-68.
With regard to services, Mother described her attendance at mental health
counseling as sporadic. Id. at 171-73. Further, she acknowledged that she
____________________________________________
6Multiple case workers testified that Mother reported she was concerned that
B.S. could have injured R.C. N.T., 11/19/18, at 19-20, 91.
7C.’s last name is not clear from the record. Accordingly, we refer to him only
by his first initial.
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stopped attending due to her pregnancy with C.8 Id. at 172. Moreover,
Mother asserted the parenting group was not helpful. Id. at 176-77. When
asked by the court why she did not become more consistent with services,
particularly after having her rights voluntarily terminated to two children,
Mother responded:
Honestly, I don’t have a good enough answer for that. It’s just
when it rains it pours for me. I’m not poor, but I’m not rich. I
get by because I work hard, and I get by check to check, so when
I have to take time off to do all these different things and all these
different hoops, it takes a toll on my pocket, it takes a toll on my
kids, it takes a toll on my finances. . . .
Id. at 203.
Ms. Lynady provided the following summary of Mother’s parenting issues
and progress:
Mom’s always able to keep it together for a short period of time
and is able to do well, and it seems [just] as things are going well,
mom finds the chaos to come back in. So, it just, it’s not a long
term overall effectiveness. . . . She does what she needs for the
moment in time, and then it all goes to the side at some point.
And it just, it shows that, you know, it’s child after child that have
been involved in our system.
Id. at 50.
Based on the foregoing, we discern no abuse of discretion by the
orphans’ court in terminating Mother’s parental rights pursuant to Section
2511(a)(2). The evidence demonstrates that after almost a decade of OYFS
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8 In February 2018, shortly before C.’s birth, B.S. initiated a Protection from
Abuse (PFA) action against Mother. At the termination hearing, B.S. testified
that he falsified the allegations in the PFA, acknowledging that this was a
crime. N.T., 11/19/18, at 212-13.
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involvement with multiple children, Mother is either incapable or refuses to
safely care for Child. Further, the evidence demonstrates that Mother’s
incapacity or refusal cannot or will not be remedied.
Next, we consider whether Child’s needs and welfare will be met by
termination pursuant to Section 2511(b). See Z.P., 994 A.2d at 1121. “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.” Id. The court is not required to use
expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.We have stated:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Where there is no evidence of a bond between the
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parent and child, it is reasonable to infer that no bond exists. Id. “[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 [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004) (internal citations omitted).
Mother argues that the orphans’ court erred in its consideration of
Section 2511(b) because the evidence revealed a strong bond between Mother
and Child and there was no evidence regarding the effect that terminating
Mother’s parental rights would have on Child. Mother’s Brief at 18-19.
Accordingly, Mother contends that OYFS did not meet its burden of proof. Id.
at 19.
In discussing Section 2511(b), the orphans’ court credited testimony
that a bond existed between Mother and Child. Orphans’ Court Opinion,
2/13/19, at 14. However, the court also observed that Child lived with Mother
for less than one month after birth, and for 10 months between the ages of
two and three. Id. On the other hand, Child has resided with her foster family
for more than three years and Child considers the foster family to be her
family. Id. at 15. The court noted Child refers to her foster mother as her
mother and is very bonded with her. Id. The orphans’ court concluded that
preserving Mother’s relationship with Child “must give way to ensuring that
minor child is afforded the opportunity to thrive in a loving, safe and stable
home such as what the [foster family] provide[s] and Mother does not.” Id.
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Accordingly, the court found that termination best served Child’s needs and
welfare. Id.
The testimonial evidence supports the orphans’ court’s conclusion. Ms.
Dunston testified that Child was initially placed with T.C. (Foster Mother) from
September 2014 through March 2016. N.T., 11/19/18, at 85. Child returned
in May 2017 and has resided in the foster home since then. Id. Child also
lives with her brother and is doing well with the family. Id. at 85-86. Ms.
Dunston testified that Child looks to Foster Mother to take care of her and is
very bonded to her. Id. at 86. Ms. Herne testified that although Mother and
Child are bonded, she has observed Child run to Foster Mother after visits.
Id. at 135. Ms. Dunston opined that termination is in Child’s best interest.9
Id. at 125.
Upon review, we find that the orphans’ court appropriately considered
the bond between Child and Mother, as well as Child’s need for safety and
stability, in determining that termination of Mother’s parental rights best met
Child’s needs and welfare. The record supports the orphans’ court’s decision,
and we do not discern an error of law or abuse of discretion. Accordingly, we
affirm the order involuntarily terminating Mother’s parental rights.
Order affirmed.
____________________________________________
9 Mother testified she had a good relationship with Child and denied any room
for improvement. N.T., 11/19/18, at 182-83, 193.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/30/2019
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