In Re: K.M., A Minor, Appeal of: M.M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.M., NATURAL MOTHER
No. 1414 WDA 2016
Appeal from the Order Dated August 25, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-087-2016
IN RE: D.M-R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.M., NATURAL MOTHER
No. 1415 WDA 2016
Appeal from the Order Dated August 25, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-088-2016
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 10, 2017
Appellant M.M. (“Mother”) appeals from the order granting the petition
of the Office of Children, Youth, and Families (“OCYF”) to involuntarily
terminate her parental rights to K.M., born in January of 2005, and D.M-R.,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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born in November of 2010 (“Children”). Mother concedes sufficient grounds
exist to support termination under 23 Pa.C.S. § 2511(a), but contends that
there was insufficient evidence to justify termination under Section 2511(b).
We affirm.
We state the facts as presented by the family court:
Hannah Shankle (hereinafter, “Ms. Shankle”), a family
service caseworker for OCYF, testified that the family was
active with OCYF since 2003 with Mother’s two older
children. On January 17, 2005, after K.M.’s birth, OCYF
obtained a restraining order because Mother threatened to
leave the hospital with K.M. On January 19, 2005, a
shelter hearing was held and K.M. was placed into care. On
July 29, 2005, K.M. was adjudicated dependent. K.M. was
returned to her Mother at the adjudication hearing. The
case remained open for an additional ten months while
Mother worked on services. The case closed on May 18,
2006 with K.M. remaining with Mother.
On October 9, 2007, K.M. was removed a second time
when Mother contacted OCYF and informed them that she
felt overwhelmed and was unable to parent K.M. On
November 14, 2007, K.M. was adjudicated dependent a
second time and remained in care until December 17,
2010 when she was returned to Mother. Mother was to
complete a mental health evaluation, complete drug and
alcohol treatment, and submit to random screens. On
May 19, 2011, the case was closed and K.M. remained in
Mother’s care.
On January 2, 2012, the Children [(D.M-R. was born in
November of 2010)] were removed via an [Emergency
Custody Authorization] after OCYF received a referral that
the Children were left for the New Year’s holiday with an
inappropriate caregiver and an inadequate amount of food.
This was K.M.’s third removal and D.M.R.’s first removal.
On January 6, 2012, the Children were returned to
Mother’s care and remained with Mother until case closure
on March 1, 2012.
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On January 26, 2015, OCYF received a referral that
Mother left the Children [in Pittsburgh] with [N.G.], the
paramour of D.M.R.’s biological father, and moved to
Durham, North Carolina. [N.G.] filed a Private Dependency
Petition. [N.G.]’s application to proceed with her
dependency petition was granted on April 8, 2016. The
Children were placed in [N.G.]’s care. This was K.M.’s
fourth removal and D.M.R.’s second removal. Mother did
not cooperate with OCYF’s investigation and had limited
contact with OCYF. On June 24, 2015, the Children were
again adjudicated dependent. They were to remain with
[N.G.]. The Children have not returned to the care of their
Mother since she left them in Pittsburgh in January of
2015. [On cross-examination, Mother testified that the
reason she did not return to Pittsburgh was that N.G. said
she would bring the children back to North Carolina.]
At the June 24, 2015, adjudication, Mother was court
ordered “to obtain independent housing from her
paramour. She was ordered to complete a drug and
alcohol assessment and comply with all recommendations
and complete parenting classes and domestic violence
classes.”
Ms. Shankle testified that OCYF “was concerned that the
housing that [Mother] was residing in was unstable, that
she did not have her own independent housing. [OCYF]
requested a lease showing that she had stable housing. To
date, [OCYF] has not received any documentation of that
independent housing.” Ms. Shankle testified “that there
was domestic violence that coincided with her domestic
violence goal”[1] which is why her housing needed to be
independent of that of her paramour. Mother admitted to
having domestic violence in past relationships and with her
current paramour. . . . Mother provided OCYF with a
certificate of completion for an online domestic violence
____________________________________________
1
Because Mother previously admitted to being the victim of domestic
violence in her past and current relationships, one of her goals was
completing a domestic violence treatment program, the details of which
were not in the record.
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course. Mother has not provided a release of information
for OCYF to verify the veracity of the course.[2]
Due to Mother’s extensive drug and alcohol history,
Mother was court ordered to have a drug and alcohol
assessment and comply with recommendations. Ms.
Shankle provided Mother with releases of information[3] on
April 20, 2016, May 27, 2016, and July 6, 2016 to verify
treatment. Mother only signed one release for B and D
Behavioral Health Services, a dual diagnosis program. The
B and D Behavioral Health Services documents indicated
that Mother admitted to a relapse of alcohol and marijuana
in February of 2016. Additionally, Mother’s intake
evaluation at B and D Behavioral Health Services raised
concerns to OCYF because she “disclosed that she was
having homicidal and suicidal ideations, that she was
extremely angry at times. She would have periods of
isolation where she would not leave her home for days at a
time.”
Mother was ordered to attend parenting classes because
OCYF “had significant concerns with [Mother’s] lack of
supervision for the children. She had a history of leaving
them with inappropriate caregivers. Additionally, she did
leave the Children [in Pittsburgh] and had very limited
contact and visits with them.” Mother completed an online
parenting class [in August of 2015] and provided OCYF
with a certificate of completion. Mother has not provided a
release of information for OCYF to verify the veracity of the
program. [As of August 2015, Mother had not yet visited
or called the Children.]
Mother was to have one supervised visit per month in
Allegheny County. OCYF was ordered to assist with
transportation. Since the adjudication of dependency on
____________________________________________
2
We presume the court was referring to submission of proof that Mother
completed the program.
3
Apparently, this refers to documentation that had to be completed by
Mother to authorize the program to release information to OCYF.
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June 24, 2015, Mother completed one visit with the
Children on March 12, 2016.
Family Ct. Op., 10/24/16, at 2-5.
At the August 12, 2016 hearing on whether to terminate Mother’s
parental rights, the OCYF caseworker testified that at the beginning of the
March 12, 2016 visit, Mother was discussing the case status and was not
focused on the Children. D.M-R. brought a book to Mother, who set the book
aside and ignored D.M-R. for the duration of the visit. Mother’s focus was on
K.M. The caseworker prompted Mother to pay attention to both children.
Outside of the visit, according to the caseworker, Mother called the Children
just twice: once in November of 2015, and once in June of 2016. Mother
has not sent any cards, gifts, presents, or letters to the Children. The
caseworker noted that Mother was in Pittsburgh for a scheduled
psychological evaluation on July 14, 2016, but did not want to visit the
Children.
The caseworker testified that the bond between the Children and N.G.
was “great.” She said she observed the interactions between the Children
and N.G., and opined that N.G. has addressed all of the Children’s emotional
needs and was also involved in K.M.’s education.
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Dr. Neil Rosenbaum also testified at the hearing. He said he did not
have the opportunity to evaluate Mother.4 Nevertheless, he opined that
Mother’s minimal efforts at remaining in contact with the Children, when
considered in conjunction with the Children’s close meaningful attachment to
N.G., established the absence of any bond between Mother and the Children.
Under the Code, a court may make a finding of “aggravated
circumstances” if a “child is in the custody of a county agency and . . . the
identity or whereabouts of the parents is known and the parents have failed
to maintain substantial and continuing contact with the child for a period of
six months.” 23 Pa.C.S. § 6302. On March 16, 2016, the family court found
that aggravated circumstances existed and relieved OCYF of the obligation to
engage in reasonable efforts to reunify Mother with the Children. The court
held that Mother failed to maintain substantial and continuing contact with
the Children. After seeing the Children in January of 2015, Mother did not
see them again until March 12, 2016, a timespan of over a year. She never
inquired about their well-being, although the court found that she did call
the Children four to five times over a period of six months.5
____________________________________________
4
The parties disputed whether Mother could have rescheduled her
evaluation with Dr. Rosenbaum.
5
The finding of four or five calls is inconsistent with the caseworker’s
testimony at the August 12, 2016 hearing that Mother called only twice. The
court apparently chose to accept the contrary testimony provided at the
(Footnote Continued Next Page)
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On August 25, 2016, the family court terminated Mother’s parental
rights. Mother timely appealed.
To terminate parental rights, the family court must conclude that the
petitioner established grounds under 23 Pa.C.S. § 2511(a) and (b). Here,
the family court terminated Mother’s parental rights under 23 Pa.C.S. §
2511(a)(2) and (a)(5),6 as well as 2511(b). On appeal, Mother concedes
grounds exist to terminate under subsection (a)(2), and we therefore do not
address the family court’s subsection (a) holding.
_______________________
(Footnote Continued)
March 16, 2016 hearing at which the trial court found aggravating
circumstances. The March 16, 2016 transcript is not part of the record.
6
These provisions allow termination if:
(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.
* * *
(5) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency for a
period of at least six months, the conditions which led to the
removal or placement of the child continue to exist, the parent
cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which led to
the removal or placement of the child within a reasonable period
of time and termination of the parental rights would best serve
the needs and welfare of the child.
23 Pa.C.S. § 2511(a)(2), (5).
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Mother contends, however, that the record was insufficient to justify
termination under Section 2511(b). Mother’s Brief at 13. She acknowledges
her limited contact with the Children, but maintains the court improperly
focused on the strength of the bond between the Children and N.G. and
improperly assumed there was no relationship between the Children and
Mother. We disagree.
We consider Mother’s issue in light of our established standard of
review.
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).
Section 2511(b) provides:
(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
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medical care if found to be beyond the control of the
parent. . . .
23 Pa.C.S. § 2511(b).
This Court has stated that the focus in terminating parental rights
under Section 2511(a) is on the parent, but that under Section 2511(b) it is
on the child. See In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en
banc). The Court explained 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), appeal denied, 897 A.2d 1183 (Pa. 2006). 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 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, 762-63 (Pa. Super. 2008) (citation omitted). “In addition to a
bond examination, the court can equally emphasize the safety needs of the
child under subsection (b), particularly in cases involving physical or sexual
abuse, severe child neglect or abandonment, or children with special needs.”
Id. at 763.
In K.Z.S., the mother, among other things, was separated from the
child in question for almost four years, had missed 33 out of 53 scheduled
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visits, and, at one point, had no contact with the family agency for fourteen
months. K.Z.S., 946 A.2d at 755. The family court opined that the bond
between the mother and the child could be severed without detrimental
effects, given their attenuated relationship and the child’s close bond with
his foster mother. Id. at 764.
Similarly, here, at the time of the trial court’s decision, Mother had not
seen the Children for over a year, and only visited them once—days before
the court found Mother failed to “maintain substantial and continuing contact
with the Children.” Family Ct. Op. at 5. Even assuming that Mother called
the Children four to five times over a six-month timespan, the record still
contains meager evidence of any significant bond between Mother and the
Children. She has not tried to send cards, gifts, presents, or letters to the
Children and never called N.G. to inquire about the Children’s well-being.
She has not seen the Children, has made no efforts to see them, and
actually declined to see them the last time she was in Pittsburgh. When she
last saw the Children in March 2016, she had to be prompted to pay
attention to both of them. We agree with the family court that the record
supports its conclusion that “there was no indication that an emotional bond
exists to the extent that the termination of parental rights of Mother” would
be adverse to the Children. See K.Z.S., 946 A.2d at 763-64. Additionally,
the Children are thriving with N.G., who has afforded them permanency and
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fulfilled their developmental, physical, and emotional needs. See 23 Pa.C.S.
§ 2511(b).
Accordingly, we hold the family court did not abuse its discretion by
holding that the involuntary termination of Mother’s parental rights best
served the needs and welfare of the Children under Section 2511(b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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