Adoption of: L.Z.E.G., Appeal of: M.B. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: L.Z.E.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.B., MOTHER :
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: No. 1018 MDA 2021
Appeal from the Decree Entered June 25, 2021
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 41-AD-2021
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 14, 2022
M.B. (Mother) appeals from the orphans’ court’s decree involuntarily
terminating her parental rights to her child, L.Z.E.G. (Child), born in August
2010, pursuant to the Adoption Act, 23 Pa.C.S. § 2511.1 We affirm.
The orphans’ court summarized the relevant history underlying the
present appeal in its opinion. See Orphans’ Ct. Op. at 1-18. The Dauphin
County Social Services for Children and Youth (the Agency) initially became
involved with Mother and her family in November of 2014, when it received
“numerous referrals regarding allegedly inappropriate discipline by Mother of
her children, including of D.M., who is [Child]’s older half-brother and who has
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1 The parental rights of the Child’s father, M.E.G. (“Father”), also were
terminated. Father is not a party to this appeal, nor has Father filed his own
appeal. See Orphans’ Ct. Op., 9/17/21, at 1.
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Down’s Syndrome.” Id. at 2. In May 2018, the Agency determined
substantial evidence existed to indicate Mother as a perpetrator of physical
abuse against D.M. and one month later, Mother was criminally charged with
aggravated assault and endangering the welfare of a child (EWOC). See id.
“On June 22, 2018, the Swatara Township police were informed that . .
. Child was residing with Mother, in violation of her bail conditions, which
prohibited her from having contact with any of her children.” Orphans’ Ct.
Op. at 3. The police transferred temporary custody of Child to the Agency.
“This was the last time Mother exercised any custody over . . . Child or had
any visitation rights with . . . Child, until February 2020, when Mother’s bail
conditions were removed and she was permitted supervised contact with”
Child. Id.
Upon Child’s removal from Mother’s home, the Agency created a family
service plan for Mother, which was updated and renewed approximately every
six months, with the last one being created in November 2020. See Orphans’
Ct. Op. at 3-4. With regard to Child, there were limited kinship care resources
and as a result, she was placed into formal foster care pending her shelter
care hearing. See Orphans’ Ct. Op. at 3. Following the hearing, the court
ordered Child to remain in the Agency’s temporary care and custody pending
a final hearing. See id. During this time, Child was placed in the same foster
care home as D.M. See id.
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In July 2018, following a hearing, Child was adjudicated dependent and
placed in the Agency’s care and custody. See Orphans’ Ct. Op. at 4. A kinship
resource was identified and approved by the Agency as appropriate placement
for Child. See id.
Multiple permanency review hearings were held between September
2018 and December 2020. See Orphans’ Ct. Op. at 4-6. Notably, at the
second hearing in December 2018, a finding of abuse was made regarding
Mother’s conduct towards D.M. See id. at 4. At the third hearing in March
2019, the juvenile court found aggravated circumstances existed against
Mother because of physical abuse resulting in serious bodily injury to D.M.
See id. at 5. “Despite this finding, the Agency was ordered by the Court to
continue to work toward reunification between . . . Child and Mother.” Id. At
the sixth hearing in March 2020, the “Agency was relieved of reasonable
efforts to reunify [Child] with Mother, based on the aggravated circumstances
found by [the juvenile court] at the third permanency reviewing hearing
concerning Mother’s abusive conduct towards D.M.” Id. at 6. At the seventh
hearing in June 2020, the “court found that Mother was minimally compliant
with her court ordered service objectives and that Father had no compliance.”
Id. Lastly, at the eighth hearing in December 2020, the court ordered the
following: (1) Child to remain dependent and in the Agency’s care and
custody; (2) that visitation between Mother and Child remain supervised; and
(3) that the Agency between relieved of family/kinship finding. Id. The court
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also found that Mother “was in moderate compliance with her service
objectives[,]” but denied her “request for visitation with . . . Child more
frequently than every other week.” Id. at 6-7.
During this time, Mother’s bail restrictions were removed, and she was
permitted to have bi-weekly visitations2 with Child. See Orphans’ Ct. Op. at
5-6. Mother also pled guilty to felony aggravated assault and misdemeanor
EWOC on February 19, 2020. See id. at 6. That same day, she was sentenced
to two years’ probation and five years’ intermediate punishment supervision
(IPP).3 See id.
As for Child, in August 2020, she was moved from a kinship home to a
non-kinship foster home with T.B. and B.B., where she resided at the time of
the termination hearing.4 See Orphans’ Ct. Op. at 6.
On April 8, 2021, the Agency filed a petition for involuntary termination
of parent rights (TPR) of both Mother and Father. See Orphans’ Ct. Op. at 7.
At the same time, a goal change to adoption was requested through the
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2 Visitations were described as lasting “about two hours every other week in
a highly structured and heavily monitored environment. Mother attended the
visitations consistently.” See Orphans’ Ct. Op. at 10 (record citations
omitted).
3 The sentences were to run concurrently.
4 It was noted at the hearing that Child referred to her foster parents as
“mom” and “dad.” Orphans’ Ct. Op. at 11.
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juvenile court. See id. A hearing on the TPR and goal change was held before
the orphans’ court on June 24, 2021. See id.
At the hearing, Tiffany Burston, an agency casework supervisor,
testified. See Orphans’ Ct. Op. at 7. She noted that the “primary objective
for Mother had been for her to focus on and improve her mental health[,]” but
Mother had been “unable to fully follow” through with the recommendations
given to her by numerous providers. Id. (record citations omitted). Burston
testified that “Mother’s mental health instability [was] a health risk” to Child,
pointing out that Mother had admitted to the supervisor that she had not been
taking her medication due to a mental breakdown, which required inpatient
care. Id. at 7-8 (record citations omitted). Burston also stated she had
concerns about “the possibility of future abuse” to Child, which “was based
upon the fact that Mother had been criminally convicted of severe child abuse
against her son D.M., who had special needs and was particularly reliant upon
Mother for parental care.” Id. at 8 (record citation omitted). The supervisor
further testified that Mother “had never fully acknowledged the harm she
caused to D.M. maintaining that she just over-disciplined her son.” Id. (record
citation omitted).
Burston mentioned Mother underwent a mental health evaluation by
Hempfield Behavioral Health, and the “evaluation reflected Mother as scoring
at high risk on four of five parenting areas.” See Orphans’ Ct. Op. at 8 (record
citation omitted). Burston said that Mother was discharged from several
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programs over the years for non-compliance or non-attendance. See id. at
9-10. For example, Mother was referred to Pressley Ridge’s Reunification
program, an evidence-based program, after her bail conditions were lifted.
See id. at 9. The program was a “component of which was for Mother to
commence supervised visitations with” Child. Id. (record citation omitted).
However, Pressley Ridge “terminated the program due to Mother’s non-
compliance before it had the opportunity to be satisfied that the interactions
with . . . Child were progressing.” Id. at 9-10 (record citation omitted).
Nevertheless, Mother did complete all the classes offered by Samara
Parenting, an approved parenting program that was not evidence-based. See
id. at 10.
Moreover, Burston testified that “the Agency has had a difficult time
trying to get Mother to focus on the actual objectives of parenting as opposed
to getting involved in different programs that did not relate to reunification[.]”
Orphans’ Ct. Op. at 9. Burston averred that Child had a bond with Mother
“but that it is not a healthy bond.” Id. at 11 (record citation omitted). Per
Burston’s opinion, it was in Child’s best interest for Mother’s parental rights
be terminated. See id.
Barry Stewart, a family therapist at Pressley Ridge, also testified at the
termination proceeding. Stewart stated that he “closed” Mother’s case in
September 2020 because she was not making any progress and she was not
too close to reunification. See Orphans’ Ct. Op. at 11 (record citation
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omitted). “He felt that Mother was not focused during their meetings and was
not retaining what he was trying to teach. He believed her lack of progress
was due either to her being bored or having intellectual limitations.” Id.
(record citation omitted). Stewart also stated that “Mother failed to take her
prescribed medication which he understood as partly related to her religious
beliefs.” Id. at 12 (record citation omitted). He noted that Mother “blamed
the Agency for failing her and was the reason she was in a situation where
she was not seeing” Child. Id. (record citation omitted). Stewart mentioned
Mother “downplayed” her treatment of D.M., “failing to take responsibility for
her actions and blaming other people or institutions.” Id. (record citation
omitted). The therapist stated Mother failed to meet several treatment plan
goals, including “that she establish and maintain mental health stability,
maintain a financially stable home[,] and maintain employment.”5 Id. (record
citation omitted). Stewart opined that Mother had an “enmeshed” relationship
with Child that was “unhealthy.” Id. (record citation omitted).
Child’s therapist, Jennifer Mansfield, testified that Child “talk[ed] about
when she used to live with Mother but that the subject is very difficult for her
to speak about.” See Orphans’ Ct. Op. at 13 (record citation omitted). Most
of the information that Child told Mansfield did not relate to witnessing or
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5 Stewart acknowledged that Mother lived in the same residence the entire
time he had contact with her and she was not subject to eviction. See
Orphans’ Ct. Op. at 12.
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experiencing abuse, but rather about “being left alone and being removed
from Mother’s house.” Id. Mansfield indicated Child did not want to “speak
ill of her Mother and trie[d] to focus on the positives.” Id. (record citation
omitted). Mansfield expressed concern that Mother’s pattern of abuse would
continue if Mother and Child were reunited, and that it was her general
impression that Child did “not want to be without her mother but she [did] not
want to live in that environment.” Id. at 13 (record citation omitted). Like
Stewart, Mansfield did not believe Mother had a “healthy bond” with Child.
Id. Mansfield averred that terminating Mother’s parental rights would not
harm Child and she did not have any apprehension as to Child living with the
foster parents in their home. See id. at 14 (record citation omitted).
Mother also testified at the hearing. She expressed her love for Child,
their “good bond[,]” and that it would be detrimental to Child to terminate
Mother’s parental rights. Orphans’ Ct. Op. at 17 (record citation omitted).
Mother stated she was “a good parent who made a mistake and [was] seeking
a second chance.” Id. (record citation omitted). “Mother agreed she ha[d]
struggled with mental health issues over the past four years, but disagreed it
was a lifelong issue.” Id. (record citation omitted). “She considered herself
mentally stable as of the hearing date.” Id. at 18 (record citation omitted).
She placed much of the blame regarding her noncompliance with certain
programs on the administrators. Id. at 17-18. Lastly, Mother acknowledged
that at the time of hearing, she was unemployed and received unemployment
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benefits, but planned to seek work as a health aid once her unemployment
ran out. Id. at 18.
Mother also called two witnesses to testify. April Downing, a family
reunification counselor with The Program, and Marissa Wiehe, a therapist with
Youth Advocate Program. See Orphans’ Ct. Op. at 15. Downing “believed
that Mother was able to internalize the lessons [from a reunification/parenting
class she attended from December 2020 to April 2021,] and showed progress
over the course of the class.” Id. (record citation omitted). Nevertheless,
Downing acknowledged that “Child never attended any supervised visits with
Mother” during her time with The Program and that observation of Mother and
Child would have provided Downing “with a better idea of Mother’s parenting
skills.” Id. at 16 (record citations omitted). Wiehe testified that she held
outpatient talk therapy sessions with Mother that began in March 2021. See
id. Wiehe “believed Mother had ‘progressed some’ during therapy[,]” but that
Mother “probably needs a more intensive therapy than talk therapy but that
there were limits with telehealth.” Id. (record citation omitted).
Lastly, “Child’s attorney, on cross[-]examination of Mother, indicated to
the Court that . . . Child had informed him that she wanted to live with
Mother.” Orphans’ Ct. Op. at 18 (record citation omitted).
On June 25, 2021, the orphans’ court issued its decree, in which it
granted the Agency’s TPR petition pursuant to 23 Pa.C.S. §§ 2511(a)(1),
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(a)(2), (a)(5), (a)(8), and 2511(b). It set forth its rationale on the record.
See N.T., 6/25/21, at 3-6. This timely appeal followed.6
Mother presents the following issues for our review:
1. Whether the trial court abused its discretion and committed an
error of law when it found, despite a lack of clear and
convincing evidence, that enough grounds existed for a
termination of [Mother]’s parental rights under Section 2511(a)
of the Adoption Act, 23 Pa.C.S.A. § 2511(a)[?]
2. Whether the trial court abused its discretion and committed an
error of law in determining it would be in . . . [C]hild’s best
interest to have parental rights terminated, when it failed to
primarily consider . . . [C]hild’s developmental, physical[,] and
emotional needs and welfare, thus contravening Section
2511(b) of the Adoption Act, 23 Pa.C.S.A. § 2511(b)[?]
Appellant’s Brief at 4 (some capitalization omitted).
We apply the following standard of review when considering a TPR
decree:
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
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6 A review of the record reveals Mother did not file a Pa.R.A.P. 1925(b) concise
statement of error complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i) (in
a children’s fast track appeal, “[t]he concise statement of errors complained
of on appeal shall be filed and served with the notice of appeal.”). Neither
this Court nor the orphans’ court entered an order directing Mother to file a
concise statement. Thus, we decline to find waiver for failure to comply with
Pa.R.A.P. 1925(a)(2)(i). See In re K.T.E.L., 983 A.2d 745, 747 n.1 (Pa.
Super. 2009) (holding that failure to file a concise statement with the notice
of appeal will result in a defective notice of appeal that will be disposed of on
a case-by-case basis).
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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).
The Pennsylvania Supreme Court has explicitly acknowledged the
“significant gravity of a termination of parental rights, which has far-reaching
and intentionally irreversible consequences for the parents and the child.” In
re Adoption of C.M., 255 A.3d 343, 358 (Pa. 2021). As noted above, Section
2511 of the Adoption Act governs the involuntary termination of parental
rights. See 23 Pa.C.S. § 2511. It 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
The court terminated Mother’s parental rights pursuant to Subsections
2511(a)(1), (2), (5), and (8) in addition to Section 2511(b). We need only
agree with the court as to any one subsection of Section 2511(a), as well as
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Section 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc).
Subsections 2511(a)(1), (2), (5), and (8) and Section 2511(b) are as
follows:
(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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
(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.
* * *
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
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removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
* * *
(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. §§ 2511(a)(1), 2511(a)(1), (2) (5), (8), (b).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned and thorough opinion of the orphans’
court, we conclude that there is no merit to the issues Mother has raised on
appeal. The orphans’ court properly disposed of the questions presented. See
Orphans’ Ct. Op. at 19–27 (concluding the Agency provided clear and
convincing evidence that: (1) pursuant to Subsection 2511(a)(1), Mother
demonstrated a settled intent to relinquish parental claim to Child where: (a)
for over a 32-month period, Mother failed to perform parental duties as she
was prohibited from seeing Child for much of that time as result of her own
actions and the criminal abuse of D.M., (b) even after Mother was granted
limited visitation rights for a period of approximately 15 months, Mother
performed some parental duties but she was never close to being approved
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for increased custody and overnights with Child due her noncompliance and
failure to seriously pursue a reunification program until almost two and one-
half years after Child’s placement, (c) Mother failed to adequately address her
mental health instability by repeatedly failing to comply with treatment
programs and recommendations and failing to take her medication as
prescribed by her psychiatrist, and (d) Mother had not taken responsibility for
her abuse of D.M. and blamed the Agency, other people, and other institutions
for her problems; (2) in satisfaction of Subsection 2511(a)(2), Mother’s
refusal to commit to treatment and counseling regarding her mental health
incapacity resulted in her failing to provide essential parental care, thereby
depriving Child of safety, security, and subsistence necessary for physical and
mental well-being and while Mother subsequently may have made efforts to
address the concerns of the Agency and her mental health providers, many of
those efforts did not commence until recently and some only after the
termination petition was filed; (3) pursuant to Subsections 2511(a)(5) and
(a)(8), Child has been removed from parental care for more than 12 months,
Mother’s mental health conditions that led to removal continue to exist, Mother
cannot or will not remedy conditions that led to placement, even with services
and assistance concerning mental health and parenting programs, within a
reasonable period of time, and termination of parental rights would best serve
needs and welfare of Child; and (4) termination of Mother’s parental rights
would serve best interests of Child under Section 2511(b) where (a) the
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evidence demonstrated that even though there was a bond between Mother
and Child, credible testimony revealed the bond was not healthy as Child
appeared to be protecting her mother and Child expressed that while she
wanted to be with Mother, she did not want to live in the environment created
by Mother’s mental health difficulties and (b) the court would not subordinate
Child’s best interest and the stability with her foster parents in the hope that
Mother could someday overcome her obstacles). Accordingly, we affirm on
the basis of the orphans’ court’s opinion while adding a few additional
comments.
First, we emphasize that where a parent has made some progress
towards resolving the problems that led to the removal of the child, this Court
has previously stated:
[T]he statute implicitly recognizes that a child’s life cannot be held
in abeyance while the parent is unable to perform the actions
necessary to assume parenting responsibilities. This Court cannot
and will not subordinate indefinitely a child’s need for permanence
and stability to a parent’s claims of progress and hope for the
future.
In re I.J., 972 A.2d 5, 11-12 (Pa. Super. 2009) (citations omitted).
Second, Mother’s arguments largely amount to a request for this Court
to reweigh the evidence in her favor. See i.e., Appellant’s Brief at 12 (“In
rendering its decision, the [Orphans’] Court failed to give proper weight to the
evidence of Mother’s efforts to achieve her . . . objectives.”). The
Pennsylvania Supreme Court has previously opined:
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We [have] 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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).
Because the orphans’ court’s credibility determinations are supported by the
record, we decline to reweigh the evidence. See id.Finally, it merits mention that both Child’s legal counsel and her
guardian ad litem (GAL) agree with the orphans’ court’s decision. See Letter
from Gary L. Rothschild, Esquire (Legal Counsel), to Jennifer Traxler, Esquire,
1/28/22 and Letter from Sarah E. Hoffman, Esquire (GAL), to Jennifer Traxler,
Esquire, 2/8/22. In sum, we discern no abuse of discretion or legal error by
the orphans’ court in concluding that Mother failed to perform her parental
duties pursuant to 23 Pa.C.S. §§ 2511(a) and (b), and termination of her
parental rights was proper.
We direct that a copy of the orphans’ court’s September 17, 2021,
opinion be filed along with this memorandum and attached to any future filings
in this case.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/14/2022
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