In the Int. of: H.H.M., Appeal of: A.L.M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.H.M., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.L.M., MOTHER :
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: No. 181 MDA 2022
Appeal from the Decree Entered December 30, 2021
In the Court of Common Pleas of Luzerne County Orphans' Court at
No(s): A-9141
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JULY 19, 2022
A.L.M. (“Mother”) appeals from the decree granting the petition filed by
Luzerne County Children and Youth Services (“LCCY”) and terminating her
parental rights to her son, H.H.M., Jr. (“Child”), born in August 2019, pursuant
to 23 Pa.C.S. § 2511(a)(2), (5), and (8) and (b).1 After careful review, we
affirm.
Child was placed in foster care directly from the hospital, due to
concerns that Mother was not bonding with Child and because of her suicidal
ideations while at the hospital. Orphans’ Court Opinion at 3. LCCY had
received reports that Mother had an extensive history of mental illness
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* Retired Senior Judge assigned to the Superior Court.
1On December 30, 2021, the orphans’ court also issued a decree terminating
the parental rights of Child’s father, H.H.M., Sr. (“Father”) pursuant to 23
Pa. C.S. § 2511(a)(2), (5), (8) and (b). Father’s appeal is docketed at 180
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including multiple suicide attempts, one of which occurred while Mother was
pregnant with Child. Petition for Termination of Parental Rights, 4/19/21.
Mother indicated to LCCY that she had been inconsistent in receiving mental
health treatment, although she had been diagnosed with schizophrenia as well
as bipolar disorder, had suffered from seizures, and had issues controlling her
anger. Id. In addition, LCCY had concerns regarding both Mother’s and
Father’s intellectual and cognitive states: LCCY’s petition for termination
indicates that both Mother and Father are each intellectually and cognitively
limited and have significant difficulty in retaining information regarding how
to care for Child, and need to be continually reminded to feed and otherwise
care for Child. Id.
LCCY also reported concerns with the home where Child was going to
reside. N.T., 7/15/21 (2nd session), at 5. At the time of Child’s birth, Mother
was living in an apartment, Father was living with his parents, and they were
planning on the Child residing with them together at the paternal
grandparents’ residence, but it had been condemned and was deemed
uninhabitable. Id.
Child was adjudicated dependent on August 28, 2019; at that time,
Mother was ordered to engage in a course of services including mental health
and development, parenting education, and safe and stable housing in order
to achieve unification with Child. Id. The history and status of Mother’s
various referrals are set forth in LCCY’s petition for termination as follows:
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[Mother] was referred for parenting education through
Family Service Association on August 29, 2019. [She] was closed
out for non-compliance on November 27, 2019. [Mother] was
referred for parenting education through [Concern Professional
Services] on March 4, 2020. [She] was closed out unsuccessfully
on September 25, 2020. [She] was re-referred for parenting
education through Family Service Association on January 26,
2021. At this time, the provider has significant concerns regarding
[Mother’s] intellectual capacity and her ability to meet her own
basic needs in addition to meeting the needs of the minor child.
[Mother] had been receiving mental health treatment through
Community Counseling Services prior to [Child’s] dependency,
however, [Mother] has not signed [a] release allowing [LCCY] to
access her records. [Mother] was referred for mental health
counseling services through the Robinson Counseling Center on
March 5, 2020. [She] has not yet completed that course of
treatment. At this time the provider has continued concerns
regarding [Mother’s] ability to meet her own needs. The provider
has recommended that [Mother] engage in Mental Health and
Developmental Services (MHDS). In addition, [Mother] was
admitted to First Hospital for approximately a month in February
and March of 2021, however, [Mother] has not signed releases for
[LCCY] to obtain the records regarding this admission.
[Mother] was referred for [MHDS] through Luzerne County in
December of 2020. To date, [Mother] has not engaged in or
completed that service.
Petition for Termination of Parental Rights, 4/18/21.
LCCY proceeded with termination of both Mother’s and Father’s parental
rights, and the orphans’ court conducted a full-day hearing on April 15, 2021.
At the time of the hearing, Child had been in placement for about 23 months.
The orphans’ court ordered the parties to submit written summations and on
December 30, 2021, a decree was entered terminating Mother’s parental
rights to Child. Mother filed a timely notice of appeal and a contemporaneous
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concise statement of errors complained of on appeal in accordance with
Pa.R.A.P. 1925(a)(2)(i).
On appeal, Mother asserts generally that the orphans’ court abused its
discretion, committed an error of law, and/or that there was insufficient
evidentiary support for its decision to terminate her parental rights. Mother’s
Brief at 4. More specifically, Mother asserts that the orphans’ court erred in
its factual findings with regard to her inability to care for Child due to limited
cognitive and intellectual abilities, her incapacity to resolve the issues that led
to his placement despite receiving mental health treatment and parental
education, and her refusal to acknowledge the developmental delays of Child.
Id.; see Orphans’ Court Opinion at 6, 31, 36-37.
Our standard of review in appeals from orders terminating parental
rights is deferential:
The standard of review in termination of parental rights
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 determination 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 J.R.R., 229 A.3d 8, 11 (Pa. Super. 2020) (citation omitted).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
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rights are valid. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The
clear and convincing evidence standard 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. (citation and internal quotation marks omitted).
Here, the orphans’ court terminated Mother’s parental rights pursuant
to Sections 2511(a)(2), (5), (8), and (b). However, this Court may affirm the
court’s decision to terminate if we agree with its determination concerning any
one subsection of Section 2511(a), as well as Section 2511(b). See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We focus our
analysis, therefore, on Section 2511(a)(8) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition is filed on the
following grounds:
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(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, and 12 months or more have elapsed from
the date of 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.
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(b) Other considerations.--The court in termination 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
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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.
23 Pa.C.S. § 2511(a)(8), (b).
To satisfy Section 2511(a)(8), the petitioner must show three
components: (1) that the child has been removed from the care of the parent
for at least 12 months; (2) that the conditions which led to the removal or
placement of the child still exist; and (3) that termination of parental rights
would best serve the needs and welfare of the child. In re Adoption of
J.N.M., 177 A.3d 937, 943 (Pa. Super. 2018). Unlike other subsections,
Section 2511(a)(8) does not require the court to evaluate a parent’s
willingness or ability to remedy the conditions that led to the placement of the
child. In re M.A.B., 166 A.3d 434, 446 (Pa. Super. 2017). “[T]he relevant
inquiry” regarding the second prong of Section 2511(a)(8) “is whether the
conditions that led to the removal have been remedied and thus whether
reunification of parent and child is imminent at the time of the hearing.” In
re I.J., 972 A.2d 5, 11 (Pa. Super. 2009).
Although Section 2511(a) generally focuses on the behavior of the
parent, the third prong of Section 2511(a)(8) specifically “accounts for the
needs of the child.” In re C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008)
(en banc). This Court has recognized that “the application of [Section
2511(a)(8)] may seem harsh when the parent has begun to make progress
toward resolving the problems that had led to the removal of her children.”
In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).
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However, by allowing for termination when the conditions that led
to removal of a child continue to exist after a year, the statute
implicitly recognizes that a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The 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.
Indeed, we work under statutory and case law that contemplates
only a short period of time, to wit [18] months, in which to
complete the process of either reunification or adoption for a child
who has been placed in foster care.
Id.Instantly, the orphans’ court determined that Child had been removed
from the custody of his parents since August 20, 2019 and thus for a period
well in excess of the statutorily required twelve (12) months since the date of
Child’s placement. The orphans’ court stated:
The conditions that led to [Child’s] removal from Mother and
Father’s care and into placement were that the natural Mother and
Father did not have the capacity to resolve the issues that gave
rise to the placement of [Child]. The overwhelming evidence
shows that the parents’ cognitive limitations and intellectual
disabilities are not able to be remedied even after participating in
mental health treatment and completion of the parenting
education courses. Furthermore, despite the parents being told
of [Child] having developmental delays, the natural parents refuse
to acknowledge them.
Orphans’ Court Opinion at 36-37.
The facts upon which the court relied are supported by the certified
record. The orphans’ court heard the testimony of Giovanni Forte, caseworker
for LCCY, who stated that Child was placed with LCCY on August 20, 2019,
two days after his birth, because Mother was not bonding with Child at the
hospital and “there were some concerns of suicidal ideations on the part of
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[M]other” as well as concerns regarding both Father’s and Mother’s intellectual
and cognitive states and regarding where Child was going to reside. N.T.,
7/15/21 (2nd session), at 4-5. Child was adjudicated dependent on August
28, 2019, and both natural parents engaged in mental health, parenting, safe
and stable housing and mental health and developmental services; however,
Mr. Forte testified that, to date, neither parent has successfully completed a
parenting education program without any concerns by the provider. Id. at 6-
7. He stated that he has been unable to inspect the paternal grandparents’
house where Mother and Father reside since no one has answered the door
there – even when he has heard voices from inside the home - despite
numerous attempts to visit, and he has received no response to letters or
phone calls, including phone calls made on an hourly basis over a two-week
period. Id. at 11.
Mr. Forte stated that Child has developmental delays and there are
concerns that he has autism, although it is too early for him to be diagnosed.
Id. at 11-12. Nevertheless, Mr. Forte acknowledged that both Mother and
Father had expressed to him during visits that they feel that Child is perfectly
healthy and does not need any other support. Id. at 12. He testified further
that as of the hearing date, neither Mother nor Father has admitted to or
agreed with the fact that a medical professional has said that Child has
developmental issues. Id. at 33. He believes that neither parent fully
understands Child’s special needs and developmental delays, and expressed
safety concerns for Child if he were returned to his parents; Mr. Forte testified
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that both parents’ compliance and progress with services toward reunification
were minimal, and terminating their parental rights would best serve Child’s
needs and welfare. Id. at 15. The caseworker confirmed that over the course
of time Child has been in placement, Mother has been hospitalized with mental
health issues more than once, including within the past year. Id. at 38. At
the hearing, Mother’s counsel and Father’s counsel each requested that the
orphans’ court call upon their respective clients to confirm that neither of them
would be testifying, and the court did so. Id. at 41-42.
Sarah Kendricks, who works at Concern Professional Services, a foster
care agency that also provides community-based services such as supervised
visitation, visit coaching, intensive family reunification services, and parenting
and case management, testified that she provided parenting education
services to Mother and Father. N.T., 7/15/21 (1st Session), at 16. She met
with Mother and Father for a six-month period from April 2020 until September
2020. Id. Working with Ms. Kendricks, Child’s parents completed a 52-
chapter book of parenting lessons; however, Ms. Kendricks indicated that she
did not believe they fully understood Child’s disabilities and she was concerned
that they would not follow through with the recommended services of
providers. Id. at 17-19. She observed, during visits Mother and Father had
with Child, that Mother did not seem to interact with Child, and Father “just
sat with [Child] on his lap during the visits.” Id. at 19. Despite the fact that
Mother and Father completed the program, Ms. Kendricks could recommend
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neither reunification nor unsupervised contact between parents and Child. Id.
at 20.
Rebecca Ciliberto, a case manager in the Intensive Family Reunification
Service Program at Family Service Association, testified that she served as
case manager for Mother and Father on two different occasions. Beginning in
August 2019, about two weeks after Child was born and following up on a
referral from LCCY,2 she assisted in establishing program goals, which
included: (i) to gain a better understanding of child development, age
appropriate expectations and basic parenting skills; (ii) to find and maintain
safe and stable housing; (iii) for Mother to address her mental health
concerns; and (iv) for Mother and Father to make appropriate decisions to
increase their protective capacities and prioritize Child’s needs. N.T., 7/15/21
(1st Session), at 61-62. Ms. Ciliberto stated that throughout the first period
of time in which she worked with them, Mother and Father were not consistent
in appearing for visits and were closed out of the program for violation of the
attendance policy. Id. at 62-63. In January 2021, following another referral
from LCCY, Ms. Ciliberto met again with the parents; this time, she established
the additional goals of addressing both Mother’s and Father’s mental health
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2Ms. Ciliberto explained that the first referral came shortly after Child’s birth,
when LCCY determined that parents’ home had been condemned and was
unsafe for Child to come home to. Id. at 70. Parents initially mislead her
about the condition of the house, but thereafter agreed to be truthful about
housing conditions going forward. Id. at 71.
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concerns and ensuring their participation and engagement in their mental
health and developmental service program. Id. at 64.
As of the hearing date, Ms. Ciliberto had met with parents for total of
twelve sessions, a combination of phone and in-person sessions and five
parent/child visitations, and Mother and Father were still engaged in the
parenting program. Id. at 65. She reported that the only goal that they have
achieved is housing, as they have been able to maintain housing with Father’s
parents. Id. She reported that they have not been consistent in attending
the sessions and, in response to the orphans’ court’s question, she offered her
opinion as to whether Mother and Father can independently parent their son:
Not at this time. They still need a lot of prompting, a lot of
guidance. So, I’m still working on them on gaining more
confidence, being able to think on their own. I do tailor the
parenting sessions or real life scenarios and examples. I know
reading sometimes is difficult for them. So, I try to give real
examples to help them [ ] to think on their own about what would
happen...
Id. at 68.
Ms. Dawn O’Donnell, an outpatient therapist at the Robinson Counseling
Center (“Robinson”), a therapeutic service provider for adult services for
mental health, testified that Mother was referred by LCCY in June 2020 for
individual therapy and possible medication management. N.T., 7/15/21 (1st
Session), at 89. She reported that Mother had a history of anxiety and that
she had previously received a diagnosis of bipolar disorder from a prior service
provider. Id. at 90, 96. Ms. O’Donnell conducted monthly individual therapy
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sessions with Mother from August 2020 through May 2021; however, Mother
has not responded to her attempts to contact her to schedule another
appointment, and because she is not reporting any symptoms of depression
or anxiety to Robinson, she will be closed out of the program. Id. at 96.
Here, tragically, the evidence clearly establishes that Mother has been
unable to make sufficient progress toward remedying the conditions that gave
rise to Child’s placement. Despite completion of parenting courses, Mother
has not demonstrated the capacity to independently care for Child, who has
special needs. Based upon these facts, we discern no abuse of discretion or
error of law in the orphans’ court’s conclusion that the conditions leading the
Child’s removal continue to exist more than twelve months after his removal,
and that the termination of Mother’s parental rights would best serve the
needs and welfare of Child.
We turn then to subsection (b), which requires the court to “give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S. § 2511(b). “The emotional needs and welfare of the
child have been properly interpreted to include intangibles such as love,
comfort, security, and stability.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013)
(citation and quotation marks omitted). Our Supreme Court has made clear
that Section 2511(b) requires the orphans’ court to consider the nature and
status of bond between a parent and child. In re E.M., 620 A.2d 481, 484-
85 (Pa. 1993). It is reasonable to infer that no bond exists when there is no
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evidence suggesting the existence of one. See In re K.Z.S., 946 A.2d 753,
762-63 (Pa. Super. 2008).
Further, we have stated that “[w]hile a parent’s emotional bond with his
or her child is a major aspect of the [s]ubsection 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 M.M.,
106 A.3d 114, 118 (Pa. Super. 2014). “In 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.” Id. In determining needs and
welfare, the court may properly consider the effect of the parent’s conduct
upon the child and consider “whether a parent is capable of providing for a
child’s safety and security or whether such needs can be better met my
terminating a parent’s parental rights.” In re L.W., 267 A.3d 517, 524 (Pa.
Super. 2021). Further, our Supreme Court has stated, “[c]ommon sense
dictates that courts considering termination must also consider whether the
children are in a pre-adoptive home and whether they have a bond with their
foster parents.” T.S.M., supra, at 268.
The orphans’ court determined that Mother cannot meet Child’s basic
physical, developmental, and emotional needs, and that Child’s special needs
will require further attention throughout his future life. Orphans’ Court
Opinion at 40. The orphans’ court stated that Mother “has been given ample
time to address and remedy these concerns,” but has been unable to do so.
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Id. The court noted that, in stark contrast, the foster parents “have amply
demonstrated they meet the physical, developmental, emotional, and special
needs” of Child and that he has thrived under their care. Id. As noted by the
orphans’ court, Child’s guardian ad litem (“GAL”) stated in its written
recommendation that terminating Mother’s parental rights serves the best
interest of Child. Orphans’ Court Opinion at 40. The GAL indicated its strong
feeling that a “parent-child” bond exists between Child and his foster parents
and that terminating Mother’s parental rights will not have any detrimental
impact on Child whatsoever. See Letter from GAL, 7/30/21. The LCCY
caseworker, Mr. Forte, testified that Child’s foster parents are paternal
cousins, that they wish to adopt Child, and that Child gets along well with their
other children, who look at him as a sibling, and is well assimilated into their
home. N.T., 7/15/21 (2nd session), at 46-47. He stated that Child is well-
cared for in the foster home, and the foster parents ensure that he is taken to
all necessary appointments including those for early intervention services and
occupational therapy. Id. at 47. Mr. Forte observed Child in the foster home
at least ten times and stated that Child is well-bonded with his foster parents.
Id. at 49. He testified that Child “gets very upset” and “cries and screams
when he’s been taken from the foster mother” for a visit with his biological
parents, and that having observed at least ten of these visits, he believes Child
has almost no bond with them. Id. at 50.
Here, the record reflects that the orphans’ court appropriately
considered the effect of termination of Mother’s rights on Child pursuant to
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Section 2511(b), and did not abuse its discretion or commit an error of law in
determining that termination of Mother’s rights is in Child’s best interest.
As we conclude that the orphans’ court did not err in terminating
Mother’s parental rights, we affirm the decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/19/2022
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