In Re: Adoption of A.G., Appeal of: R.W. ( 2014 )

J-S39013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.G., A MINOR IN THE SUPERIOR COURT OF
CHILD PENNSYLVANIA
APPEAL OF: R.W.
No. 1786 WDA 2013
Appeal from the Order September 20, 2013
In the Court of Common Pleas of Washington County
Orphans' Court at No(s): 63-12-354
BEFORE: BENDER, P.J.E., WECHT, J. and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 04, 2014
2013, that granted the petition filed by the Washington County Children and
rights to her minor
pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23
Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b).1 We affirm.
On February 6, 2011, CYS first became involved with this family after
left clavicle fracture, multiple acute rib fractures on her left side, multiple
healing rib fractures on her right side, transverse fracture of her right femur,
____________________________________________
1
form, voluntarily relinquishing his parental rights to Child. Father does not
challenge the termination of his parental rights to Child, nor is he a party to
this appeal.
*Retired Senior Judge assigned to the Superior Court.
J-S39013-14
multipl
fractures of the left metatarsal foot, and failure to thrive. Mother has a
history of mental health issues, and has been involved in mental health
treatment since she was an adolescent. Mother had been a dependent child
includes self-cutting, suicidal ideation and a history of hearing voices.
On February 6, 2011, as a result of the referral, CYS entered into a
Voluntary Placement Agreement with Mother and Father that Child was
removed from the care of Mother and Father on February 11, 2011. Child
was placed into CYS shelter care due to the serious injuries she had suffered
after being assaulted by Father, and
to the serious injuries inflicted on the child, both Father and Mother were
charged with criminal offenses.
On March 7, 2011, an Emergency Shelter Care order was entered
re. On March 22, 2011, at the
time for the scheduled hearing before the Juvenile Hearing Master, Mother
and Father entered into an agreement that Child would continue in CYS
foster shelter care until further order of court. Since then, Child has been in
placement. On April 12, 2011, Child was adjudicated as a dependent child.
-2-
J-S39013-14
As a result of the injuries inflicted to Child, Father was charged with
Aggravated Assault, Endangering the Welfare of a Child, and Recklessly
Endangering Another Person, to which he pled guilty on December 9, 2011.2
the Welfare of a Child, to which she entered a plea of guilty on February 13,
2012. Mother was sentenced to twenty-three months in the Intermediate
Punishment program.
rights. On August 22, 2012, a hearing was held on that petition. The trial
court found that CYS did not establish by clear and convincing evidence for
the t
On February 4, 2013, the agency re-filed a petition for involuntary
and September 3, 2013, hearings were held on that petition. At the hearing,
CYS presented the testimony of Heather Miller, a parent educator for the
Blair Foundation; Neil Rosenblum, Ph.D., a licensed psychiatrist; Lindsey
Syster, a family resource specialist for Justice Works Youth Care; Puja
Shroff, a therapist; Foster Mother; David Cincinnati, a CYS caseworker;
____________________________________________
2
In exchange for his plea, Father received a sentence of twenty-
to forty- -four
dings, Father was
incarcerated in a State correctional institution.
-3-
J-S39013-14
rights to Child pursuant to section 2511(a)(2), (5), (8), and (b) of the
Adoption Act.
On November 4, 2013, Mother filed a notice of appeal, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2) and (b).3 In her brief on appeal, Mother raises two issues, as
follows.
1. Did the trial court err in finding that competent evidence
established the statutory grounds for termination of
2511(a)(2), (5) and (8)?
2.
parental rights pursuant to 23 Pa.C.S.A. § 2511(b)?
We review an appeal from the termination of parental rights with the
following standard.
[A]ppellate courts must apply an abuse of discretion
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.,
____________________________________________
3
withdraw as counsel, and granted Mother fourteen days to appeal. On
January 31, 2014, this Court granted Mothe
to file her brief, and ordered the record to be remanded to the trial court to
insure that the record is complete.
-4-
J-S39013-14
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.; R.I.S.,
[613 Pa. 371, 455,] 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, [575 Pa. 647, 654-655],
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.
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., [608 Pa. at
28-30], 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
error of law or an abuse of discretion. In re Adoption of
Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (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).
Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined as
-5-
J-S39013-14
enable the trier of fact to come to a clear conviction, without
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
termination of parental rights with regard to any one subsection of section
2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Here, we will focus on section 2511(a)(2).
Section 2511 provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
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.
***
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.
-6-
J-S39013-14
23 Pa.C.S. § 2511.
We have stated:
In order to terminate parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2), the following three elements must be
met: (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 set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and
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
This Court has addressed incapacity sufficient for
termination under § 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 upon parental 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.
-7-
J-S39013-14
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986) (quoting
In re: William L., 383 A.2d 1228, 1239 (Pa. 1978)).
In re Adoption of S.P., 616 Pa. at 326-327, 47 A.3d at 827.
inquiry with regard to subsection 2511(a)(2).
As set forth above, Mother was discharged unsuccessfully
inability to demonstrate the application of parenting skills.
Mother was unable to apply the skills that she presumably
learned, and she had to be prompted to have interaction with
[C]hild. Although Mother did successfully complete Justice
Works Youth Care "Nurturing Parenting Program" in May of
2013, the family resource specialist representing that provider
closure of the program. The family resource specialist further
testified that there were conc
on her own: that Mother was not able to apply the lessons that
she had completed and that Mother did not demonstrate
independent parenting. In the two years since [Child] was
s to demonstrate
her incapacity as a parent.
Mother has certainly had a reasonable time to remedy the
no evidence that Mother could remedy those conditions if given
additional time.
Furthermore, it was apparent from the testimony that
Mother continues to demonstrate poor decision making. At the
time of the hearing, Mother was cohabitating with a gentlemen
who was thirty years her senior, whom she had met three
months before he moved in with her. Mother was also sharing
her home with another couple whose children are in foster care
with [CYS]. The father of those children is a registered sex
offender, for conviction of a sex offense involving a minor.
Although Mother claimed that the registered sex offender did not
stay at her home every day, she admitted that he sleeps there,
residence.
-8-
J-S39013-14
Mother further acknowledged during her testimony that
she continues to be unable to accept the nature and cause of
[C]hild suffered the fractures to her rib cage at birth, that she
"shot out and the nurse caught her." Mother also stated that
she had "learned how to be stern with [CYS] when asked if she
had the ability to keep [C]hild safe and protect her from harm,
Trial Court Opinion, 12/27/13, at 11-12. The trial court found clear and
convincing evidence in the record that the repeated and continued
incapacity, abuse, neglect or refusal of the Mother had caused Child to be
without essential parental care, control or subsistence necessary for her
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
Mother. Id. at 12.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D. 79
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous. Id. ther does not
have the ability to protect [C]hild and maintain a safe environment for
evidence also demonstrated continued incapacity, abuse,
-9-
J-S39013-14
neglect or refusal to parent could not or would not be remedied, despite
y seeks for
this Court to make credibility and weight determinations different from those
feelings of love and affection for a child, alone, will not preclude termination
of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). We
stated in In re Z.P.
that [a parent] will summon the ability to handle the responsibilities of
Id.
custody and rearing of his child is converted, upon the failure to fulfill his or
fulfillment of his or her potential in a permanent, healthy, safe
In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
After our careful review of the record in this matter, we find that the
competent evidence in the record. In re Adoption of S.P., 616 Pa. at 325-
326, 47 A.3d at 826-827.
determinations regarding section 2511(a)(2) are supported by sufficient,
competent evidence in the record.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
- 10 -
J-S39013-14
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 under section 2511(a) is on the parent, but it is on the child
pursuant to section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are
developmental, physical and emotional needs and welfare of the
of the child have been properly interpreted to
include
In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
consideration of the emotional bonds between the parent and
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
See also In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Mother argues that she has some bond with Child and that Mother was
willing to do anything necessary for return of Child. See
20.
The trial court found as follows:
abuse of
discretion for the Trial Court to find that termination would best
serve the needs and welfare of the child, the Court submits that
the record overwhelmingly supported this conclusion. [Child]
suffered horrific injuries at the hands of her Father and Mother.
Mother failed to recognize the hazardous environment her child
was in, failed to protect [C]hild, and continues to have difficulty
- 11 -
J-S39013-14
does not have the present ability to parent independently or to
provide a safe home for [C]hild. Mother has difficulty making
decisions and makes inappropriate decisions which place herself
and [C]hild in danger. At the time of the termination
proceedings, Mother had allowed a registered sex offender to
reside in her home.
Trial Court Opinion, 12/27/13, at 12-13.
Further, the trial court found that there is no bond between Child and
Mother. Id. at 9.
[C]hild displays anxiety in response to her visits with
Mother, and as a result suffers from hives after the visits.
Mother never established a primary attachment with [C]hild.
[C]hild clearly demonstrates a lack of emotional attachment with
Mother. Mother does not display affection with the child. Mother
has no bond or meaningful relationship with the [C]hild but,
rather, only a peripheral relationship with [C]hild. There was no
evidence of any significant relationship between Mother and
[C]hild and no evidence presented of any adverse consequences
should this relationship be terminated. On the contrary, the
testimony unequivocally demonstrated that the termination of
detrimental to [C]hild.
Trial Court Opinion, 12/27/13, at 13. This Court has observed that no bond
worth preserving is formed between a child and a natural parent where the
bond with the natural parent is attenuated. In re K.Z.S., 946 A.2d 753,
764 (Pa. Super. 2008).
Additionally, as part of its bonding analysis, the trial court
See In re:
T.S.M., ___ Pa. at ___, 71 A.3d at 267-268 (stating that existence of a bond
attachment of a child to a parent will not necessarily result in the denial of a
- 12 -
J-S39013-14
termination petition, and the court must consider whether the child has a
bond with the foster parents). The trial court found, as follows:
[C]hild has a strong primary attachment with her foster mother,
-
relationship with her foster mother, with whom she is thriving,
degree of emotional trauma which [Child] would experience if
removed from her current placement would be considerable and
would be considerably undermined if further reunification efforts
were pursued.
Trial Court Opinion, 12/27/13, at 13-14.
As there is competent evidence in the record that supports the trial
welfare, and the absence of any bond with Mother, we conclude that the trial
court did not abuse its discretion as to section 2511(b). See In re
Adoption of S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. Accordingly, we
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
- 13 -