In Re: Adoption of: X.P.D. Appeal of: K.K., mother ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: X.P.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: K.K., NATURAL MOTHER, :
: No. 128 WDA 2015
Appellant :
Appeal from the Order Entered December 22, 2014,
in the Court of Common Pleas of Butler County
Orphans’ Court Division at No. OA No. 2011-00035a
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 26, 2015
K.K. (“Mother”) appeals from the order granting the petition filed by
J.R.D. (“Father”), involuntarily terminating Mother’s parental rights to her
son, X.P.D. (“Child”), born in 2007, pursuant to Section 2511(a)(2) and (b)
of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2) and (b). We affirm.
We adopt the factual history of this matter as recounted by the trial
court.
Mother and Father never married. At the time
of Child’s birth, they resided together. Both
consumed illegal drugs. Child was born addicted to
methadone. During this time, both parents provided
care for Child. When Child was three or four months
old, Father left Mother who then provided all parental
care for Child until her arrest on or about July 16,
2008 when Child was approximately 18 months old.
Mother was purchasing stamp bags of heroin.
Child was present. Mother was charged with
endangering the welfare of a child, possession of a
controlled substance, and distribution of a small
* Retired Senior Judge assigned to the Superior Court.
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amount of marijuana. Mother ultimately pled guilty
to all three charges.
After breaking up with Mother, Father began a
process to stop his drug use. In July of 2007, Father
enrolled in rehabilitation at Turning Point. He
continued his plan for sobriety by attending
Gateway, participating in Narcotics Anonymous for
one year and participating in counseling through his
church. Father has a clean date of August 9, 2007.
Following Mother’s arrest, Child was
temporarily placed with Maternal Grandfather.
Mother remained incarcerated for approximately
three weeks. Father learned of Mother’s
incarceration and placement of Child with Maternal
Grandfather at a previously scheduled Custody
Conciliation conference. Thirteen days after Mother’s
arrest, physical custody was then granted to Father.
Father has remained the primary physical custodian
of Child since.
From the date of her arrest on July 16, 2008
until the start of therapeutic visits sometime in the
summer of 2011, Mother had little contact with
Child, provided no parental care, and provided no
financial support for Child. Father provided all
parental care and emotional support for Child. Prior
to 2011, Mother had a long history of drug abuse
and criminal convictions for drug related matters.
Mother testified she has a diagnosis of borderline
personality disorder. Mother has been prescribed
medication such as Klonopin and Adderall for anxiety
and ADHD. It is not clear from the evidence whether
Mother has officially had a mental health evaluation,
nor is it clear what prescriptions, if any, Mother is
currently prescribed. Mother testified that she
addresses her mental health by taking medication,
attending weekly therapy and attending church.
Mother spent some time in 2010 in a state
correctional facility followed by a day reporting
program and a half-way house. It was during this
time, with Father’s consent and support by Maternal
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Grandfather, that Mother had limited contact with
Child.
Sometime after her release from the half-way
house, Mother filed for a modification of custody.
Following a custody conciliation, Mother received
therapeutic visits with Mr. Ken Evanoski at Family
Pathways through a Court Order dated June 2, 2011.
Goals were set for Mother through Family Pathways
which included being consistent with visitations,
being prepared with snack, games and activities for
Child during visits, and being able to show she was
interested in Child. From the start, Mother did very
well in that she would always come to visits
“prepared and provided plenty of stuff and food” for
Child. She would bring train sets and a little chair
every week for Child. Mother signed releases to
allow Family Pathways to communicate with her
probation officer and other therapists. Due to the
weekly drug screens Mother was submitting through
her probation officer, she did not submit to drug
screens at Family Pathways. She did, however,
submit weekly reports with regards to her drug
screens through her probation officer. Mother was
passing her weekly tests.
Mother and Child continued to visit at Family
Pathways until sometime in December of 2011.
Father unilaterally stopped the therapeutic visits.
Father’s explanation for ending the visits even
though Court ordered varied from complaining that
the location was inconvenient to disagreeing with the
view of the therapeutic supervisor. Ken Evanoski
testified that he has not been involved for more than
two years with the parties, and has no knowledge of
the current situation that exists.
Due to Father’s refusal to take Child to Family
Pathways, Mother missed some parenting time.
However, Father “permitted” Mother to have
parenting time at Maternal Grandfather’s home
instead.
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Therefore, Mother and Child had regular
consistent parenting time together from
approximately May, 2011 until December, 2012
(18 months). Mother has not, however, had any
significant parenting time with Child that was not at
least monitored since prior to July 16, 2008.
Mother’s presence in Child’s life has been sporadic as
a result of her continued struggle with addiction and
incarceration. In fact, Mother has not seen Child
since December 18, 2012 other than for a bonding
assessment session on February 17, 2014.
In December of 2012, Mother proceeded to an
appointment at a Suboxone clinic in Squirrel Hill
during her scheduled four-hour visit with Child. She
then kept Child for an additional four days, and she
knowingly and intentionally failed to advise Father of
Child’s whereabouts during that period of time. This
incident resulted in the suspension of Mother’s
visiting time with Child, which is still in effect.
Mother testified that she believed Child to be too ill
to return to Father’s care and, therefore, sought
medical treatment for Child and claimed Child
exhibited symptoms of a fever, a runny nose,
vomiting and sore throat. The Court did not find
Mother credible as to the reason she failed to timely
return Child to Father’s custody. Mother testified
that upon being discharged from the health care
provider, Mother received instructions to give Child
Tylenol or ibuprofen as needed, to drink fluids, and
rest. Nothing was placed on the record to confirm
such medical treatment was sought. Since that
incident in December of 2012, the only contact
Mother has had with Child has been via telephone,
the two letters Mother sent Child, and the one
Mother’s Day card Child sent Mother.
When the Court ordered, on or about
December 17, 2012, that Mother’s visitations be
suspended, her contact with Child was limited to
telephone contact. That Order of Court continues to
be in effect due to the consented to continuation of
the custody litigation under the family docket.
Mother has called Child at Father’s residence on a
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regular basis since the filing of the Petition despite
the fact that Father listens to every conversation on
speaker phone. The comfort level of the telephone
communications may have been strained due to the
monitoring of the communications by Father. During
the telephone conversations, Mother did not engage
in meaningful conversation with Child and indicated
the calls were “purposeless” because Father listened
to them. Even though Father and Stepmother have
not promoted or fostered a relationship between
Mother and Child, the telephone conversations
between Mother and Child consisted mainly of
Mother talking about herself and not asking
questions about Child and Child’s well-being,
therefore Mother did not foster a relationship with
Child either.
Maternal Grandparents have custodial rights
with regards to Child pursuant to the September 14,
2011 Court Order under the family docket number
F.C. 07-90783-C. Mother never communicated with
Child via telephone while Child was in the care of
Maternal Grandmother. Maternal Grandparents have
maintained a relationship with Child as a result of
their own custody action.
On January 11, 2013, Mother was arrested for
driving with a suspended license. She was
incarcerated and released on June 24, 2013 from the
Butler County Prison, but was immediately
transported to the State Parole Center until July 2,
2013. During that period of incarceration, Mother
attempted to keep in contact with Child via letters,
although they were sporadic and minimal. The first
letter was written on April 15, 2013 and addressed
to Child, but mailed to Maternal Grandmother’s
address. The second letter was written on May 22,
2013 and addressed to Child’s maternal
grandmother. Mother indicated that she did not
send letters to Child at Father’s residence out of fear
that Father and Stepmother would not let Child see
the letters even though there was no prohibition to
do so. Both letters clearly indicate that Mother
expresses love and advice to Child. On May 7, 2013,
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Mother received a Mother’s Day card signed by Child,
which Maternal Grandmother assisted Child in
preparing. Mother also sent gifts and toys to
Maternal Grandmother’s residence for Child. Mother
has not provided Child with any emotional support
other than the two letters she sent to Child at
Maternal Grandmother’s home.
In September of 2013, approximately two
months after her release from the State Parole
Center, Mother relapsed and overdosed on heroin.
Mother appears to have stabilized since her
September 2013 relapse in that she has suffered no
further incarceration and has not reported further
relapse in her recovery. Mother has maintained
recovery, in part, by treating with Suboxone, as per
Mother’s own testimony. She tests monthly with her
parole officer and has not recently had a positive
drug test. It does not appear that Mother has taken
any additional steps to treat her drug addiction.
Mother provided no evidence that she participated in
any rehabilitation service or therapy following her
relapse. Other than testifying to taking some
medications, Mother offered little testimony
regarding the treatment/maintenance of her mental
health.
....
Mother testified that she has attempted to
provide what limited support she can offer since she
is unemployed, and offered to pay for Child’s
participation in Martial Arts; however, Father refused
any financial assistance from Mother. Mother has
not provided financial support in any substantive
manner. Mother is unable to provide for Child’s
needs and welfare without assistance from a third
party. Mother’s life lacks stability.
Currently, Mother is residing with her friend.
She takes medications for her borderline personality
disorder and attention deficit hyperactivity disorder.
She also attends weekly therapy in Sewickley as well
as church. It is not clear to the Court whether
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Mother is working or what her source of income may
be.
Trial court opinion, 3/5/15 at 8-15 (footnotes omitted).
We have condensed the procedural history as follows. Initially, Father
filed a petition for involuntary termination of Mother’s parental rights on
May 29, 2011. However, Mother and Father reached an agreement pursuant
to a concurrent custody action in family court whereby Mother enjoyed
therapeutic visits with Child. Pursuant to the agreement, Father withdrew
the petition. During the next two years, multiple petitions seeking custody
modification and special relief were filed by both parties. Father filed
another petition for involuntary termination of Mother’s parental rights on
June 20, 2013. On July 1, 2013, counsel was appointed for Child. Following
several continuances, hearings on Father’s petition were held on July 7-8,
and August 4-5, 2014. Prior to the start of the hearings, a petition for
adoption of Child was filed on July 3, 2014, by A.M.D., wife of Father.
(Docket #124.) On December 22, 2014, the trial court entered an opinion
and order terminating Mother’s parental rights. On January 16, 2015,
Mother filed her notice of appeal along with a concise statement of errors
complained of, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On March 5,
2015, the trial court issued its Rule 1925(a) opinion.
Mother now presents the following claims for our review:
I. Whether the evidence in the record is
inadequate for the trial court to have
concluded, by clear and convincing evidence,
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that grounds for involuntary termination of
parental rights existed pursuant to
23 Pa.C.S.A. § 2511(a)(2)[?]
II. Whether the evidence in the record is
inadequate for the trial court to have
concluded that termination of parental rights
was in the best interests of the child, as
required by 23 Pa.C.S.A. § 2511(b)[?]
III. Whether the trial court’s failure to admit and
consider competent evidence constituted an
abuse of discretion[?]
Mother’s brief at 2.
We review an appeal from the termination of parental rights in
accordance with the following standard.
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s
determination of a petition for termination of
parental rights. As in dependency cases, our
standard of review requires an appellate court to
accept the findings of fact and credibility
determinations of the trial court if they are supported
by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if
the trial court made an error of law or abused its
discretion. Id.; [In re] R.I.S., 36 A.3d 567[, 572
(Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely
because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett
v. Kia Motors America, Inc., 613 Pa. 371[, 455],
34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838
A.2d 630, 634 (Pa. 2003). Instead, a decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.
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As we discussed in R.J.T., there are clear
reasons for applying an abuse of discretion standard
of review in these cases. We observed that, unlike
trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold
record, where the trial judges are observing the
parties during the relevant hearing and often
presiding over numerous other hearings regarding
the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an
opposite result, as is often the case in dependency
and termination cases, an appellate court must resist
the urge to second guess the trial court and impose
its own credibility determinations and judgment;
instead we must defer to the trial judges so long as
the factual findings are supported by the record and
the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re
Adoption of Atencio, 650 A.2d 1064, 1066 (Pa.
1994).
In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa.Super. 2009).
The standard of clear and convincing evidence is
defined as testimony that is so “clear, direct, weighty
and convincing as to enable the trier of fact to come
to a clear conviction, without hesitance, of the truth
of the precise facts in issue.”
Id., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003).
Here, the trial court terminated Mother’s parental rights based on
Section 2511(a)(2) and (b), which provide as follows:
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§ 2511. Grounds for involuntary termination
(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.
23 Pa.C.S.A. § 2511(a)(2), (b).
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), three elements must be met:
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(1) repeated and continued incapacity, abuse,
neglect or refusal; (2) such incapacity, abuse,
neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citations
omitted).
Our supreme court addressed incapacity sufficient for termination
under Section 2511(a)(2).
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 on incapacity. The legislature,
however, in enacting the 1970 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.
In re Adoption of S.P., 47 A.3d at 827 (citations omitted).
After a careful review of the record, we cannot grant Mother relief on
her claim that the evidence was insufficient to terminate her parental rights
under Section 2511(a)(2). We adopt the trial court’s discussion of
Section 2511(a)(2) as this court’s own. (See trial court opinions, 12/22/14
at 15-17 and 3/5/15 at 17.) The clear and convincing evidence of record
confirms the trial court’s determination that Mother has been unable to
remedy her drug addiction and mental health issues that create her repeated
and continuing incapacity to parent, and that Mother has been, and
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continues to be, unable to provide proper care for Child, warranting the
termination of her parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2).
After we determine that the requirements of Section 2511(a) are
satisfied, we proceed to review whether the requirements of Section 2511(b)
are satisfied. See In re Adoption of C.L.G., 956 A.2d 999, 1009
(Pa.Super. 2008) (en banc). This court has stated that the focus in
terminating parental rights is on the parent under Section 2511(a), whereas
the focus in Section 2511(b) is on the child. Id. at 1008.
In reviewing the evidence in support of termination under
Section 2511(b), we consider whether termination of parental rights would
best serve the developmental, physical, and emotional needs and welfare of
the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005),
appeal denied sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa. 2006).
“Intangibles such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child. The 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. at 1287 (citation
omitted).
The extent of the bond-effect analysis necessarily depends upon the
unique facts and circumstances of the particular case. In re K.Z.S., 946
A.2d 753, 763 (Pa.Super. 2008). Moreover, the mere existence of an
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emotional bond does not preclude the termination of parental rights. Id. at
764.
In In re Z.P., 994 A.2d 1108 (Pa.Super. 2010), we stated:
“Above all else . . . adequate consideration
must be given to the needs and welfare of the child.”
A parent’s own feelings of love and affection for a
child, alone, do not prevent termination of parental
rights.
Before 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
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.
Id. at 1121 (citations omitted) (emphasis in original).
Mother argues the trial court ignored the evidence provided by the
court-appointed expert, Dr. Bernstein, that she had a strong bond with
Child. Additionally, Mother contends the trial court erroneously relied on
Father’s expert, Dr. Chambers, who reviewed Dr. Bernstein’s report and
criticized the methodology used. (Mother’s brief at 18.) Mother points out
Father placed no evidence on the record to argue that a bond did not exist.
(Id.)
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Regarding Dr. Bernstein’s and Dr. Chambers’ conclusions, the trial
court found the following:
Bonding assessments were conducted by
Dr. Bernstein. He found that Child was resilient
enough to handle the periods of time when Mother
was removed from Child’s life due to her substance
abuse problems, but he was unable to conclude if
Child would be equally resilient whether the Court
chooses to terminate or not terminate the rights of
Mother. He was also unable to conclude whether
one of the results would more negatively affect Child
than the other. Dr. Bernstein opined that a bond still
existed between Mother and Child, that there was a
shared connection between Mother and Child, and it
was more than an acquaintance. However,
Dr. Bernstein opined that to determine the depth of
the bond, it would require speculation of facts that
do not exist. Dr. Bernstein was unable to determine
what, if any, long-term effects terminating Mother’s
parental rights would have on Child. Dr. Bernstein
opined that the Court not move forward with the
termination of Mother’s parental rights and that
Mother and Child, as soon as possible, participate in
a therapeutic-like opportunity to help them rebuild
the bond, and to help Mother gain the trust that is
necessary for Child to develop [in] knowing that she
is committed to being a part of his life.
Dr. Chambers reviewed Dr. Bernstein’s report
and any other collateral information that
Dr. Bernstein used in reaching his opinions. It was
Dr. Chamber’s position that the methods employed
by Dr. Bernstein during the bonding assessments
were “flawed” and “disconnected.”
Trial court opinion, 3/5/15 at 13-14 (footnote omitted).
Instantly, Child is eight years old. As an eight-year-old child, he
undoubtedly knows Mother and has developed some type of emotional bond
with her. However, the mere existence of an emotional bond does not
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preclude the termination of parental rights. See In re T.D., 949 A.2d 910
(Pa.Super. 2008) (trial court’s decision to terminate parental rights was
affirmed where court balanced strong emotional bond against parents’
inability to serve needs of child).
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.
While In re A.S. discusses a foster parent, the court’s analysis applies
to the matter before us. Additionally, a significant aspect in this case is that
Child enjoys the intangibles of love, comfort, security, and stability while in
the custody of Father and step-mother. Based upon Mother’s difficulties
with drug addiction, mental health issues and the law, her relationship with
Child lacks security, stability, and safety. Moreover, as discussed below, the
trial court found that the severance of Mother’s bond with Child would not
have a harmful effect on Child. According to the trial court,
In considering the totality of the evidence,
months have passed with mother having minimal
contact with Child. There is no credible evidence
that Child has suffered or exhibited any loss or
trauma as a result of not spending time with
Mother. . . . The clear and convincing facts support
that Mother and Child’s bond is not “necessary and
beneficial” and that Child’s resiliency would have a
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positive impact on how he is affected by the
termination of Mother’s parental rights.
So, while Child may have fun with Mother
during their visits and enjoy the time spent, even
looking forward to another time together in the
future, there was no evidence that Child turns to
Mother for comfort or direction. Therefore, the Court
concludes that terminating Mother’s rights would be,
for Child, a minimal loss primarily because Mother’s
involvement with Child has been sporadic throughout
his life. Mother was not parenting in any way from
December of 2012 to the hearing. The instability of
Mother’s life, which causes her relationship with
Child to be unstable, poses significant risk factors for
Child. Considering Child’s developmental, physical
and emotional needs, the evidence supports that
terminating Mother’s parental rights meets the needs
and welfare of Child.
Trial court opinion, 12/22/14 at 22.
Although Mother’s love for Child is not in question, along with her
desire for an opportunity to serve as Child’s mother, a parent’s own feelings
of love and affection for a child, alone, will not preclude termination of
parental rights. See In re Z.P., 994 A.2d at 1121. A child’s life “simply
cannot be put on hold in the hope that [a parent] will summon the ability to
handle the responsibilities of parenting.” In re Z.S.W., 946 A.2d 726, 732
(Pa. 2008) (citations omitted). Rather, “a parent’s basic constitutional right
to the custody and rearing of his child is converted, upon the failure to fulfill
his or her parental duties, to the child’s right to have proper parenting and
fulfillment of his or her potential in a permanent, healthy, safe
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environment.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004)
(citation omitted).
Instantly, the trial court found that Mother has not provided for Child’s
developmental, physical, and emotional needs and welfare, and will not be
able to provide for Child’s needs, particularly because of the instability in
Mother’s life. As there is competent evidence in the record that supports the
trial court’s credibility and weight assessments regarding Child’s needs and
welfare, we conclude the trial court did not abuse its discretion as to
Section 2511(b).
Last, Mother argues the trial court abused its discretion in failing to
admit the reports of two witnesses. This issue is waived as Mother failed to
include it in her Rule 1925(b) statement. See In re G.D., 61 A.3d 1031,
1036 n.3 (Pa.Super. 2013) (any issues not raised in the Rule 1925(b)
statement are waived on appeal).
Accordingly, we affirm the order of the trial court terminating Mother’s
parental rights to Child.
Order affirmed.
Strassburger, J. joins the Memorandum.
Donohue, J. files a Concurring Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2015
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