In the Interest of: M.A.S., Appeal of: J.A.W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.A.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.A.W., MOTHER :
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: No. 712 MDA 2018
Appeal from the Decree Entered March 28, 2018
In the Court of Common Pleas of Berks County
Orphans' Court at No: 85072
IN THE INTEREST OF: X.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.A.W., MOTHER :
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: No. 713 MDA 2018
Appeal from the Decree March 28, 2018
In the Court of Common Pleas of Berks County
Orphans' Court at No: 85071
BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2018
J.A.W. (“Mother”) appeals from the March 28, 2018 decrees
involuntarily terminating her parental rights to her sons, M.A.S., born in
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* Former Justice specially assigned to the Superior Court.
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January 2016, and X.M.W., born in October 2013 (collectively, “Children”).1, 2
Upon review, we affirm the decree involuntarily terminating Mother’s parental
rights to M.A.S. We vacate the decree involuntarily terminating Mother’s
parental rights to X.M.W. without prejudice and remand for proceedings
consistent with this memorandum.
In its opinion pursuant to Pa.R.A.P. 1925(a), the orphans’ court set forth
the relevant factual and procedural history of this case, which the record
evidence supports. As such, we adopt it herein. See Trial Court Opinion,
5/10/18, at 4-9.
By way of background, the Berks County Children and Youth Services
(“CYS”) became aware of Mother and X.M.W. in the summer of 2014, when
X.M.W. was approximately eight months old, due to allegations involving
Mother’s substance abuse and mental health issues, domestic violence, a lack
of stable housing and employment, and a lack of proper medical care for
X.M.W. Id. at 4. Following approximately seven months of services provided
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1 The orphans’ court voluntarily terminated the parental rights of M.A.S.’s
putative father, J.D.S., by decree dated March 26, 2018. By decree the same
date, the court involuntarily terminated the parental rights of any unknown
father and any putative father of M.A.S. The orphans’ court involuntarily
terminated the parental rights of X.M.W.’s natural father, M.A.F., by decree
dated March 28, 2018. Neither J.D.S., M.A.F., nor any putative nor unknown
father of Children have filed an appeal from the respective decrees terminating
their parental rights.
2 Children’s guardian ad litem (“GAL”) filed a brief to this Court in support of
the termination decrees.
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to Mother, the court placed X.M.W. in CYS’s custody on May 26, 2015. Id. at
5. The court adjudicated X.M.W. dependent on June 3, 2015. Id.
On August 27, 2015, Mother was incarcerated for violating her probation
due to testing positive for methamphetamines. Id. at 6. Mother remained
incarcerated until the birth of M.A.S. in January 2016. Id. The court
adjudicated M.A.S. dependent on March 30, 2016. Id.
At the time of the subject proceedings, X.M.W. was four and one-half
years old. He displayed aggressive behavior and was diagnosed with
oppositional defiance disorder. Id. at 7. M.A.S. was two years old, and he
was in a separate foster home. He suffered from significant developmental
delays and medical problems, including failure to walk and difficulty with
eating and swallowing. Id. at 8. M.A.S. appeared to be eleven or twelve
months old rather than his chronological age of 26 months. Id.
Throughout the history of this case, Mother was required to comply with
Family Service Plan (“FSP”) objectives including participating in parenting
education and in evaluations and recommended treatments regarding drug
and alcohol, mental health, and domestic violence. N.T., 3/26/18, at 75. In
addition, she was required to obtain stable and appropriate housing and
employment. Id. at 76.
The orphans’ court held a hearing on CYS’s involuntary termination
petition on March 26, 2018. CYS presented the testimony of Laura Fritts,
Ph.D., who performed a psychological and bonding evaluation; Lisa Mohler,
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the caseworker from Partners in Parenting, who supervised Mother’s visits
with Children; Joshua Fasig, X.M.W.’s behavior specialist from the
Commonwealth Clinical Group; Andrea Karlunas, Mother’s therapist from the
Commonwealth Clinical Group; and Cheri Kipp, CYS caseworker. Further, CYS
introduced 101 exhibits in total, which the court admitted into the record.
Mother testified on her own behalf.
By decree dated March 28, 2018, the orphans’ court involuntarily
terminated Mother’s parental rights to M.A.S. pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), and (b). By decree the same date, the court involuntarily
terminated Mother’s parental rights to X.M.W. pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), (8), and (b). Mother timely filed notices of appeal and
concise statements of errors complained of on appeal on April 24, 2018,
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated sua
sponte.
On appeal, Mother presents four issues, as follows:
A. Whether the [orphans’] court erred as a matter of law by
terminating [Mother’s] parental rights as to her child especially
in light of the fact that the minor child is separated from his
sibling and reunification is warranted to allow the siblings to be
raised together?
B. Whether the [orphans’] court erred in and abused its discretion
in terminating [Mother’s] parental rights where [Mother] has
remediated the issues that led to the placement of the child?
C. Whether the [orphans’] court erred as a matter of law in
terminating [Mother’s] parental rights based on the length of
time the child has been in care where there were compelling
reasons not to terminate her rights especially in light of the
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steps taken to remediate to the issues that led to the initial
placement?
D. Whether the [orphans’] court erred as a matter of law in
considering the lack of a bond between [Mother] and child
where [CYS] did not meet their burden in establishing grounds
for an involuntary termination?
Mother’s brief at 4.
Before addressing the merits of this appeal, we must determine whether
Children had the benefit of counsel during the involuntary termination
proceeding as required by Section 2313(a) of the Adoption Act. 3 See In re
Adoption of T.M.L.M., 184 A.3d 585, 588 (Pa. Super. 2018) (“This Court
must raise the failure to appoint statutorily-required counsel for children sua
sponte, as children are unable to raise the issue on their own behalf due to
their minority.”) (citing In re K.J.H., 180 A.3d 411, 414 (Pa. Super. 2017)).
In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017), our Supreme
Court held that, pursuant to Section 2313(a), a child involved in a contested
involuntary termination of parental rights proceeding must be appointed
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3 Section 2313(a) provides:
(a) Child.--The court shall appoint counsel to represent the child
in an involuntary termination proceeding when the proceeding is
being contested by one or both of the parents. The court may
appoint counsel or a guardian ad litem to represent any child who
has not reached the age of 18 years and is subject to any other
proceeding under this part whenever it is in the best interests of
the child. No attorney or law firm shall represent both the child
and the adopting parent or parents.
23 Pa.C.S. § 2313(a).
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counsel. The term “counsel” refers to an attorney representing the child’s
legal interests, which the L.B.M. Court defined as the child’s preferred
outcome of the termination proceeding, as opposed to the child’s best
interests, “which the trial court must determine.” Id. at 174. Significantly,
the L.B.M. lead opinion did not gain a majority of the justices for the
proposition that an attorney appointed as GAL during the underlying
dependency proceedings is prohibited from also serving as counsel under
Section 2313(a).
Our Supreme Court subsequently held in In re T.S., 192 A.3d 1080 (Pa.
2018), that the trial court did not err in allowing the children’s GAL to act as
their sole representative during the termination proceeding because, at two
and three years old, they were incapable of expressing their preferred
outcome. The Court explained, “if the preferred outcome of the child is
incapable of ascertainment because the child is very young and pre-verbal,
there can be no conflict between the child’s legal interests and his or her best
interests; as such, the mandate of Section 2313(a) of the Adoption Act that
counsel be appointed ‘to represent the child,’ 23 Pa.C.S. § 2313(a), is satisfied
where the court has appointed an attorney-[GAL] who represents the child’s
best interests during such proceedings.” Id. at 1092-93.
In this case, by order dated May 23, 2017, the orphans’ court appointed
Melissa Krishock, Esquire, as Children’s GAL, who represented their best
interests during the involuntary termination proceeding. The court did not
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appoint legal-interests counsel for them. The younger child, M.A.S., was two
years old, or 26 months, at the time of the proceeding. Pursuant to T.S.,
supra, we conclude that his preferred outcome was not ascertainable because
of his young age, and, therefore, there was no conflict between his legal and
best interests. As such, the orphans’ court did not violate the Section 2313(a)
mandate to appoint counsel to represent M.A.S.
The older child, X.M.W., was nearly four and one-half years old at the
time of the termination hearing. There is no indication in the record that he
was incapable of expressing his feelings about permanency. However, nothing
in the record reveals X.M.W.’s feelings and/or whether he had a preferred
outcome of the termination proceeding. Although the testimony of Dr. Fritts,
Ms. Mohler, and Mr. Fasig reveals that no parent-child bond exists between
X.M.W. and Mother, to conclude on this evidence alone that there is no conflict
between his legal and best interests would be speculation.
In addition, there is no indication in the certified record, or in Attorney
Krishock’s brief to this Court, that she met with or interviewed X.M.W. in an
attempt to ascertain his feelings with respect to permanency, and if he had a
preferred outcome and was capable of directing her representation at least to
some extent. See In re Adoption of D.M.C., ___ A.3d ___, ___, 2018 PA
Super LEXIS 774 at *12 (Pa. Super. filed July 9, 2018) (concluding, in part,
that the four-and-one-half-year-old child “may not have been old enough to
actively participate in [his attorney’s] representation of him, and it is possible
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[the child] was too young to clearly express his position[.]” However, the
child “likely had feelings about permanency,” and his attorney “should have
attempted to ascertain those feelings to determine whether [the child] had a
preferred outcome and was capable of directing [his attorney’s]
representation at least to some extent.”) (noting that Pa.R.P.C. 1.14
addresses representation of clients with diminished capacity)).
Accordingly, we are constrained to vacate the decree involuntarily
terminating Mother’s parental rights to X.M.W. without prejudice and remand
for the orphans’ court to appoint legal-interests counsel for X.M.W. pursuant
to Section 2313(a). Such counsel must interview X.M.W. directly in an
attempt to ascertain (1) his feelings about permanency; (2) whether he has a
preferred outcome as to Mother; and (3) whether he is capable of directing
counsel’s representation at least to some extent. See D.M.C., supra
(vacating order involuntarily terminating the mother’s parental rights without
prejudice and remanding due, in part, to the children’s attorney failing to
attempt to ascertain their preferred outcome).
Once X.M.W.’s feelings and preferred outcome of the termination
proceeding is identified, his counsel shall notify the orphans’ court whether
termination of Mother’s parental rights is consistent with X.M.W.’s legal
interests. If the court determines that there is no conflict between X.M.W.’s
legal and best interests, then it may re-enter the original decree. However, if
the court determines that X.M.W.’s legal interest is different from his best
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interest, then the court shall conduct a new involuntary termination hearing
with respect to Mother’s parental rights to X.M.W.
Turning to the decree involuntarily terminating Mother’s parental rights
to M.A.S., we review it according to an abuse of discretion standard. We have
explained:
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) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
We need only agree with the trial court as to any one subsection of
Section 2511(a), as well as Section 2511(b), in order to affirm. See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In this case, we
conclude that the certified record supports the decree pursuant to Section
2511(a)(2) and (b), which provides as follows.4
(a) General Rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
...
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied by the parent.
...
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
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4Based on this disposition, to the extent Mother argues that the trial court
abused its discretion in terminating her parental rights pursuant to Section
2511(a)(1) and (5), we need not review those subsections.
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23 Pa.C.S. § 2511(a)(2) and (b).
This Court has explained that the moving party must produce clear and
convincing evidence under Section 2511(a)(2), as follows: (1) repeated and
continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse,
neglect or refusal caused the child to be without essential parental care,
control or subsistence necessary for his physical or mental well-being; and (3)
the causes of the incapacity, abuse, neglect or refusal cannot or will not be
remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super.
2003).
Pursuant to Section 2511(a)(2), parents are required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. See In re A.L.D. 797 A.2d 326, 340 (Pa. Super. 2002). The
grounds for termination of parental rights under Section 2511(a)(2), due to
parental incapacity that cannot be remedied, are not limited to affirmative
misconduct; to the contrary those grounds may include acts of refusal as well
as incapacity to perform parental duties. Id. at 337.
With respect to Section 2511(b), this Court has stated that,
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005) (citation omitted). Further, 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. (citation
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omitted). However, “[i]n cases where there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.
The extent of any bond analysis, therefore, necessarily depends on the
circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-763
(Pa. Super. 2008) (citation omitted).
Instantly, Mother contends that the orphans’ court abused its discretion
in involuntarily terminating her parental rights because she has remediated
her employment and housing issues, she has maintained sobriety since her
pregnancy with M.A.S., and she has never refused treatment or services.
Regarding M.A.S.’s special needs, Mother acknowledges that, during
supervised visits, she “was not as comfortable with feeding and things as the
foster parents,” but she contends, throughout the life of this case, she “was
denied the opportunity to demonstrate her abilities to parent her children.”
Mother’s brief at 10.
Ms. Mohler supervises Mother’s visits with Children, which occur once
per week for four hours. N.T., 3/26/18, at 50. Specifically, she testified that
Mother spends one and one-half hours alone with each child during her total
of four hours of visitation per week. Mother spends the final hour visiting with
both of them. Id. at 50. Ms. Mohler testified that she provides hands-on
parenting instruction during visits. Id. In addition, she testified that Mother
attends M.A.S.’s physical therapy and doctor appointments. Id. at 48. With
respect to M.A.S.’s physical and developmental needs, Ms. Mohler testified, if
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“prompted to work on certain things, [Mother is] able to do that minimally,
but . . . she was not able to carry that into the next visit.” Id. at 43. She
explained:
Q. Are there specific therapies and specific behaviors that
[M]other is supposed to display with [M.A.S.] to help address
some of his delays?
A. Correct.
Q. And do you see [M]other doing that during the visitation?
A. She will work on things very minimally. Like, for example,
when he was learning to walk, she would have him just like to get
up and walk across the room one time. But she can’t incorporate
it into . . . his play or into his whole visit.
Another example is the physical therapist in October was
talking about working on going up and down steps. And where
the visit is, there’s just a set of three steps. That would be very
easy for him to work on that. But she felt he was too young to be
doing that and only in the last month began having him crawl up
the steps. . . .
Id. at 43-44. On cross-examination by the GAL, Ms. Mohler testified:
Q. [D]uring that hour when it’s just [Mother and M.A.S.] one-on-
one, she is not incorporating the therapeutic exercises or activities
that he needs?
A. She will, but it’s very minimal. Like less than ten minutes in
that hour and a half.
Id. at 51.
Ms. Karlunas, Mother’s therapist, began working with her in April 2015.
Since June 2016, she has been working with her one hour per week. Id. at
64. She testified that Mother’s emotional stability is concerning. Ms. Karlunas
explained on direct examination, in part:
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[Mother] continues to deny that she has any depression or anxiety
symptomatology. However, she evasively did not address her
depression and anxiety in the summer of 2017 and I inadvertently
found out she was on Cymbalta.
We then began to address the symptoms as she has suffered from
anxiety and depression in the past, and to date [Mother] continues
to minimize or deny that her symptomatology is present or that it
has any effects on her parenting.
It is a concern to me that throughout the course of this case, there
has been poor judgment exercised or poor insight exercised which
is evident by the following: [Mother] obtained a dog during this
period. It came to my attention that [M.A.S.] was allergic to dogs.
When I addressed this with [Mother], she answered me that she
would have to be court[-]ordered to get rid of the dog.
Id. at 65-66.
Moreover, Ms. Karlunas testified that Mother has not “transferred,
incorporated and demonstrated throughout the [supervised] visits” the
parenting skills that she and the other providers have taught her. Id. at 67.
Further, she testified:
[Mother] pervasively has tended to deny the veracity of the
parenting reports, despite that we’ve had five different parenting
supervisors on [the] case. She denies any concerns addressed by
casework.[5] In fact, at one point she walked out of the meeting,
stating that she did not have to tolerate this behavior from
professionals, avoiding any type of engagement or any type of
addressing of our concerns.
And she continues to blame her children’s problems on the foster
parents. Specifically, [M.A.S.] was not walking. When I would
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5 Ms. Karlunas testified that, when she discussed the supervised visitation
reports indicating that Mother was not incorporating parenting skills into the
visits, Mother stated to her, “they’re all lies.” N.T., 3/26/18, at 70.
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address that with [Mother], [she] stated that it was the foster
parents’ fault because they carried him too much. . . .
Id. On direct examination, Ms. Karlunas testified with respect to whether
Mother has remedied any of the foregoing concerns, as follows:
At present, it is my professional opinion she’s not remediated
those particular concerns that I have outlined. She has
remediated, she’s obtained employment, she has managed to get
promoted at her job.[6] She should be commended for that. . . .
She has maintained sobriety for two years as far as we know, and
she has demonstrated a level of engagement with the therapeutic
process. However, those factors do not outweigh my concerns at
this time.
Id. at 68.
Ms. Kipp, the CYS caseworker, agreed that Mother’s parenting skills
have not improved. She testified, “Despite [Mother’s] strengths and making
some improvement, numerous hours have been given to [Mother] with
parenting education, casework[,] and therapeutic services, and she has shown
a lack of progress and inconsistency in providing her parenting, appropriate
parenting, and being able to meet the developmental, emotional, mental,
social and physical needs of both children.” Id. at 77.
We conclude that the foregoing testimonial evidence supports the
decree involuntarily terminating Mother’s parental rights to M.A.S. pursuant
to Section 2511(a)(2). Mother’s repeated and continued incapacity to develop
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6Mother testified that she has been employed at a grocery store for over two
years, and she was recently promoted to assistant manager in the meat
department. Id. at 83.
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necessary parental skills during M.A.S.’s entire life has caused him to be
without essential parental care, control, or subsistence necessary for his
physical and developmental needs. Further, the causes of Mother’s incapacity
cannot or will not be remedied insofar as her therapist testified that she
refuses to acknowledge and take responsibility for not implementing parental
skills during supervised visits.
We now review the decree pursuant to Section 2511(b), and do so
mindful of the following settled case law.
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In re K.K.R.S., 958 A.2d 529, 533-536 (Pa. Super. 2008). The
mere existence of an emotional bond does not preclude the
termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.
Super. 2008) (trial court’s decision to terminate parents’ parental
rights was affirmed where court balanced strong emotional bond
against parents’ inability to serve needs of child). Rather, the
orphans’ court must examine the status of the bond to determine
whether its termination “would destroy an existing, necessary and
beneficial relationship.” In re Adoption of T.B.B., 835 A.2d 387,
397 (Pa. Super. 2003). As we explained in In re A.S., 11 A.3d
473, 483 (Pa. Super. 2010),
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and should
also consider the intangibles, such as the love, comfort,
security, and stability the child might have with the foster
parent. Additionally, this Court stated that the trial court
should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
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Upon careful review, there is no evidence that a parent-child bond exists
between Mother and M.A.W. Therefore, it was reasonable for the orphans’
court to conclude that none exists. See In re K.Z.S., supra. The CYS
caseworker, Ms. Kipp, testified that Children are thriving in their separate
foster homes and “exhibit such a connection and strong bond to their foster
parents.” N.T., 3/26/18, at 78. Further, Dr. Fritts testified that there would
be no detriment to Children if Mother’s parental rights are terminated. Id. at
34. We conclude that the totality of the record evidence supports the
involuntary termination of Mother’s parental rights pursuant to Section
2511(b) in that it will serve M.A.S.’s developmental, physical, and emotional
needs and welfare. Accordingly, we affirm the decree involuntarily
terminating Mother’s parental rights to M.A.S.
Decree involuntarily terminating Mother’s parental rights to M.A.S.
affirmed. Decree involuntarily terminating Mother’s parental rights to X.M.W.
vacated without prejudice to permit the orphans’ court to re-enter the original
decree if a new involuntary termination hearing is not required. Case
remanded for proceedings consistent with this memorandum.7
Jurisdiction relinquished.
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7 Counsel Melissa Krishock’s October 23, 2018 application to withdraw is
denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2018
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