In Re: M.K., Appeal of: A.T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.T., MOTHER :
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:
:
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: No. 139 WDA 2022
Appeal from the Order Entered January 3, 2022
In the Court of Common Pleas of Washington County Orphans' Court at
No(s): 63-21-0815
IN RE: A.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.T., MOTHER :
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:
:
:
: No. 140 WDA 2022
Appeal from the Order Entered January 3, 2022
In the Court of Common Pleas of Washington County Orphans' Court at
No(s): 63-21-0817
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY DUBOW, J.: FILED: SEPTEMBER 14, 2022
A.T. (“Mother”) appeals from the January 3, 2022 orders that
involuntarily terminated her parental rights to M.K., born in October 2019,
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and A.W., born in September 2015 (collectively, “Children”).1 Because the
record supports the decision of the trial court, we affirm the orders.
We glean the following factual and procedural history from the trial
court’s Opinion and the certified record. In November 2018, Washington
County Children and Youth Social Service Agency (“CYS”) became involved
with this family due to concerns regarding drug use and domestic violence.
Additionally, the home where Mother and Father lived with Children was dirty
with no furniture, and only an air mattress. CYS recommended that Mother
attend parenting education, obtain a drug and alcohol evaluation, and engage
in an intervention group, but Mother failed to participate.
Between January 2019 and August 2019, police and CYS were
dispatched to the home at least four times due to reports of domestic violence,
drug use, and drug sales from the home. In late August 2019, following an
emergency shelter proceeding, the court ordered A.W. removed from the
home and placed in the physical custody of A.W.’s then-presumptive father.
In October 2019, CYS received a report alleging that Mother tested
positive for illegal substances while pregnant with M.K. In December 2019,
CYS became aware that Mother had been involved in another incident of
domestic violence with Children present at the home of Jamila Toure.2 These
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1The court also terminated the parental rights of the father of M.K. (“Father”)
and unknown father’s rights to A.W. Father is not a party in this appeal.
2 Notably, Mother has an extensive history of domestic violence with both
Father and Ms. Toure, the mother of one of Father’s other children.
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incidents resulted in criminal charges against Mother, including harassment
and attempted burglary.
On December 4, 2019, A.W.’s then-presumptive father returned A.W. to
Mother’s care. Subsequently, he was excluded as A.W.’s father through
paternity testing and he rescinded his acknowledgment of paternity.
On December 23, 2019, CYS removed Children, who were then 2
months old and 4 years old, respectively, and on January 3, 2020, the court
adjudicated Children dependent. CYS placed them in foster care. They have
been together in the same foster home since April 2020.
The court initially established a goal of reunification and ordered that
Mother have weekly supervised visits with the Children. In addition, the court
ordered Mother to complete domestic violence counseling, parenting
education, and a mental health assessment and follow all recommendations.
The court also ordered Mother to submit to random drug and alcohol testing
and obtain appropriate housing.
In 2020 and 2021, Mother was incarcerated on several occasions for,
inter alia, incidents of domestic violence.
In 2020, when Mother was not incarcerated, the dependency court
found that Mother had “moderate compliance with the permanency plan” and
had “made moderate progress in alleviating the circumstances which
necessitated original placement.” Tr. Ct. Op., filed 1/3/22, at 7. However,
just three months later, in December 2020, the court found Mother “to have
little compliance with the permanency plan and no progress toward alleviating
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circumstances” because Mother had been discharged from dual diagnosis
treatment due to noncompliance and failure to attend, had failed to appear
for random drug testing, and was not making progress in parenting education
due to inconsistency with visitation. Id. at 7-8. Further, Mother continued to
have contact with Ms. Toure despite having completed domestic violence
counseling. Mother was again incarcerated in February 2021.
On May 3, 2021, CYS filed petitions to involuntarily terminate Mother’s
parental rights to Children.3 The trial court held hearings on the petitions on
September 9, 2021, September 27, 2021, and October 8, 2021, when Children
were approximately two and six years old.4
CYS presented the testimony of, among others, caseworker, Deanna
Bevan; psychologist, Neil David Rosenblum, Ph.D.;5 and Children’s Institute
Family Skills Specialist, Matthew Stromeyer. Mother, represented by counsel,
testified on her own behalf, acknowledging her general non-compliance with
services, her failure to address her depression and bipolar disorder until she
was incarcerated from May 2021 to June 2021, and her struggles in parenting
the Children.
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3 With its petitions, CYS also sought to involuntarily terminate Father’s
parental rights to M.K. and any unknown father’s parental rights to A.W.
4 Children were represented by Frank Kocevar, Esquire, as legal counsel.
Father, represented by counsel, testified on his own behalf.
5 Dr. Rosenblum conducted various individual and interactional evaluations
involving the parties. His reports relevant to Mother were marked and
admitted as CYS Exhibits 10 & 13 and Mother’s Exhibits A-1, A-2, & A-3.
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On January 3, 2022, the trial court issued an Opinion and Order of the
Court, which granted CYS’s petitions and terminated Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). The court found,
inter alia, that Mother “has consistently and historically had low or no progress
in alleviating circumstances leading to placement” and “failed to maintain an
upward trajectory of progress,” noting that “despite availing herself of
services, such activity was inconsistent and largely ineffective.” Tr. Ct. Op. at
15-16. Additionally, the court observed that Mother remained incarcerated at
the time of its decision. Id. at 12 n.5.
Mother filed timely Notices of Appeal and Concise Statements of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In lieu
of a Rule 1925(a) opinion, the trial court relied on its January 3, 2022 Opinion
and Order of Court.
In her brief, Mother raises the following issues for our review:
1. Did the trial court commit an error of law in finding that
[CYS] submitted clear and convincing evidence to terminate
Mother’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(1), (a)(2), (a)(5), and (a)(8)?
2. Did the trial court commit an abuse of discretion in failing to
adequately consider domestic violence, mental health, and
COVID’s role in prohibiting Mother from complying with
services?
3. Did the trial court commit an abuse of discretion in failing to
adequately consider the effect that termination of parental
rights would have on the children and their emotional bond
with Mother, as analyzed under 23 Pa.C.S. § 2511(b)?
Mother’s Br. at 4.
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A.
Our standard of review is well settled. “In cases concerning the
involuntary termination of parental rights, appellate review is limited to a
determination of whether the decree of the termination court is supported by
competent evidence.” In re Adoption of C.M., 255 A.3d 343, 358 (Pa.
2021). Appellate courts must accept the trial court’s findings of fact and
credibility determinations if the record supports them. Interest of S.K.L.R.,
256 A.3d 1108, 1123 (Pa. 2021). An appellate court may disturb a ruling
supported by competent evidence in the record only upon discernment of an
error of law or abuse of discretion. In re Adoption of L.A.K., 265 A.3d 580,
591 (Pa. 2021).
“[A]n abuse of discretion does not result merely because the reviewing
court might have reached a different conclusion” or “the facts could support
an opposite result.” In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
Instead, an appellate court may reverse for an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” Id. at 826. This standard of review reflects the deference we pay to
trial courts, who often observe the parties first-hand across multiple hearings.
Interest of S.K.L.R., 256 A.3d at 1123-24.
When addressing a petition to involuntarily terminate parental rights,
the Adoption Act requires the trial court to conduct a bifurcated analysis. 23
Pa.C.S. §2511(a) and (b). Section 2511(a) provides eleven enumerated
grounds describing particular conduct of a parent which would warrant
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involuntary termination. If the trial court determines that the petitioner
established grounds for termination under Section 2511(a) by clear and
convincing evidence, the court must then assess the petition under Section
2511(b), which focuses on the child’s needs and welfare. In re T.S.M., 71
A.3d 251, 267 (Pa. 2013); 23 Pa.C.S. § 2511(b).
B.
While the trial court here found that CYS met its burden of proof under
multiple subsections of 23 Pa.C.S. § 2511(a), we need only agree with the
court’s decision as to any one subsection of Section 2511(a), as well as Section
2511(b), to affirm the termination of parental rights. See In re B.L.W., 843
A.2d 380, 384 (Pa. Super. 2004) (en banc). We focus our analysis on Section
2511(a)(2).
In her first two issues, Mother avers, inter alia, that the trial court
abused its discretion when it terminated her parental rights pursuant to
Section 2511(a)(2). Mother argues that the court “failed to consider the
efforts [she] made to alleviate incapacity.” Mother’s Br. at 33. She contends
that the court did not consider “the abuse and mental health issues [she]
suffered” and the amount of time she needed to remedy the causes of
incapacity. Id. Mother also asserts that the court ignored “the lack of
assistance provided by the Agency” and contends that the COVID-19
pandemic, in combination with domestic violence incidents and mental health
challenges, “inhibited her ability to comply with all court-ordered services.”
Id. at 33, 38.
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Section 2511(a)(2) provides that a parent’s right to her child may be
terminated where “[t]he 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.” 23 Pa.C.S. § 2511(a)(2). See
also Interest of D.R.-W., 227 A.3d 905, 912-13 (Pa. Super. 2020)
(reiterating the three elements contained within Section 2511(a)(2)).
Grounds for termination under subsection 2511(a)(2) include more than
affirmative misconduct and acts of refusal; it also includes parental incapacity.
In re Adoption of A.H., 247 A.3d 439, 443 (Pa. Super. 2021).
Subsection (a)(2) “emphasizes the child’s present and future need for
essential parental care, control or subsistence necessary for his physical or
mental well-being,” especially “where disruption of the family has already
occurred and there is no reasonable prospect for reuniting it.” In re Z.P., 994
A.2d 1108, 1117 (Pa. Super. 2010). “Parents are required to make diligent
efforts toward the reasonably prompt assumption of full parental duties.” In
re Adoption of A.H., 247 A.3d at 443. A “parent's vow to cooperate, after a
long period of uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous.” In re Z.P.,
994 A.2d at 1118. “Parental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every problem, in order to
maintain the parent-child relationship to the best of [her] . . . ability, even in
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difficult circumstances.” Id. (citation omitted). “Parental rights are not
preserved by waiting for a more suitable or convenient time to perform one’s
parental responsibilities while others provide the child with the child’s physical
and emotional needs.” Id. (citation, emphasis omitted).
It is well settled that “incarceration, while not a litmus test for
termination, can be determinative of the question of whether a parent is
incapable of providing ‘essential parental care, control or subsistence’ and the
length of the remaining confinement can be considered as highly relevant to
whether ‘the conditions and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent,’ sufficient to provide grounds
for termination pursuant to 23 Pa.C.S. § 2511(a)(2).” In re Adoption of
S.P., 47 A.3d 817, 830-31 (Pa. 2012). Moreover, a parent’s repeated pattern
of criminal activity coupled with a failure to comply with court-ordered goals
may satisfy the requisites of incapacity, abuse, neglect or refusal. In re
Adoption of W.J.R., 952 A.2d 680, 687 (Pa. Super. 2008).
Here, the trial court concluded that Mother lacked the capacity to
provide essential care and control for Children because she failed to progress
and comply with court-ordered services and continued to engage in criminal
activity. The court opined:
The Children in the present matter have had no stability in excess
of 23 months. While Mother has been consistently inconsistent in
her compliance and participation, . . . Mother ha[s] had repeated
periods of incarceration. All the while, the [] Children remain out
of the care of [Mother] and in foster placement where they are
reportedly flourishing. The failure of parents to progress and fully
comply with [c]ourt ordered services, the continued criminal
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activity of parents[,] and the recurring issues of domestic
violence, have led these two (2) [] [C]hildren to be without
essential parental care, control or subsistence necessary for the
mental well-being and the parents have no remedied the causes
for such absence. Accordingly, the Agency has met its burden of
establishing the elements of § 2511(a)(2) by clear and convincing
evidence.
Tr. Ct. Op.at 12-13 (footnote omitted).
Our review of the record supports the trial court’s finding of Mother’s
incapacity to parent Children. The presented evidence demonstrated that
Mother was unable to participate in certain services or in-person visits while
Mother was incarcerated, that is, from March 5, 2020 to June 18, 2020,
February 3, 2021 through February 18, 2021 and May 3, 2021 to June 23,
2021.. N.T., 9/9/21, at 27-28, 73-74. See also CYS Exhibits 11, 12, & 14.
During her periods of release, however, Mother failed to complete the services
required for reunification.6 Id. at 23-27, 32-34, 74, 94.
Most notably, Mother failed to complete services required to address her
mental health. Despite having been diagnosed with significant de-stabilizing
mental health disorders,7 Mother did not complete required intensive
outpatient treatment. N.T., 9/9/21, at 33. Pyramid Healthcare discharged
Mother twice due to her inconsistent participation and, although Mother re-
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6 Mother acknowledged a lack of consistency with her services, indicating
issues with her mental health as well as transportation.
7 Dr Rosenblum diagnosed Mother with bipolar 1 disorder; post-traumatic
stress disorder; history of cannabis use disorder; unspecified disruptive
impulse control and conduct disorder; personality disorder with borderline
narcissistic and antisocial behavior; history of relationship distress with spouse
or intimate partner; and parent-child relational problems. N.T., 9/27/21, at
12.
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engaged in mental health services through Southwestern Pennsylvania Human
Services, Inc. (“SPHS”), her participation was again inconsistent. Id. at 33-
34, 74-79; see also CYS Exhibit 12; see also Mother’s Exhibits A-4 & A-5.
The evidence demonstrated that Mother’s mental health diagnoses
impacted her ability to parent “very significantly.” N.T., 9/27/21 at 12-13.
After acknowledging Mother’s failure to improve her parenting skills, Dr.
Rosenblum testified, “the issue is far more than her parenting skills. The issue
quite clearly is the lack of mental health stability, [and] the difficulties with
her relationships or impulse control.” Id. at 18. In Dr. Rosenblum’s expert
opinion, Mother’s prognosis for achieving more stability in her life is “not very
good.” Id.
Additionally, Mother never progressed to unsupervised visitation and
failed to consistently attend supervised visits with Children, attending only 53
out of 84 scheduled visits. N.T., 9/9/21, at 27-28; N.T., 10/8/21, at 169. See
also CYS Exhibit 14. When she did attend, she was generally attentive to
Children’s needs; however, there were times when Mother brought other
people to the visits, including Ms. Toure, and frequently talked on her
cellphone during visits. N.T., 9/9/21, at 23-24, 35, 56, 83-89. See also N.T.,
9/27/21, at 103, 111. While Mother completed the requisite parenting
workbook associated with her parenting program, “it took . . . the entire life
of the case to complete” it. N.T., 9/9/21, at 23. Finally, Mother failed to
complete the program at Parent-Child Interactional Therapy that Dr.
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Rosenblum recommended. Because Mother failed to appear consistently, the
facility discontinued services for Mother. Id. at 33-34, 72.
Having reviewed the record, we conclude it supports the findings of the
trial court that Mother has not provided Children with essential parental care,
control, and subsistence necessary for their mental and physical well-being,
and that Mother is unable to remedy the causes of her parental incapacity,
neglect, or refusal any time in the foreseeable future.
Mother argues that the trial court failed to consider that her mental
health challenges posed a barrier to her completing court-ordered services.
That is, however, exactly the type of scenario that termination pursuant to
Section 2511(a)(2) contemplates.
Mother further argues that the trial court should have given her more
time to complete the court-ordered services. This proposition, however, is
contrary to established case law that “[p]arental rights are not preserved by
waiting for a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with the child’s physical and
emotional needs.” In re Z.P., 994 A.2d at 1118.
Mother also argues that the “COVID-19 pandemic impacted the efficacy
of services and visitation.” Mother’s Br. at 38-39. With respect to the
pandemic’s impact on Mother’s ability to visit with the Children, the trial court
properly found that COVID quarantine requirements had only occasional
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impact on her visits with Children. N.T., 10/8/21, at 136, 140-41.8
Additionally, the trial court’s decision to terminate Mother’s parental rights
was based primarily on Mother’s untreated mental health issues and not on
Mother’s infrequent visitation with the Children.
With respect to Mother’s argument about the pandemic’s impact on
Mother’s access to services, Ms. Bevan acknowledged some communication
difficulty or delay as a result of precautions during the pandemic, but also
testified that these issues did not impact Mother’s ability to obtain services in
the normal or alternative formats, such as video conferences and visits. N.T.,
9/9/21, at 51. In fact, Mother testified that it was her struggles with mental
illness and incarceration that were the specific obstacles that impacted her
non-compliance with services. Id. at 138-39.
As the trial court observed, Mother “has consistently and historically
had low or no progress in alleviating circumstances leading to [Children’s]
placement[,] . . . has not regularly complied with all court ordered services,
and [ ] failed to maintain an upward trajectory of progress.” Tr. Ct. Op. at
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8 The trial court “found concerning testimony of Mother that she went to the
beach and was unable to see [ ] Children as a result of COVID restrictions.
More concerning, Mother had only recently been released from prison when
she made this travel decision.” Tr. Ct. Op., at 15 n.8. The trial court did not
otherwise acknowledge that COVID had any impact on Mother’s ability to
obtain services.
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15. The record supports the trial court’s conclusions and we reject Mother’s
challenges to them.9
C.
In her final issue, Mother avers that the trial court abused its discretion
when it terminated her parental rights pursuant to Section 2511(b). Mother
argues that the evidence demonstrates that a bond exists between her and
Children, and the trial court failed to adequately consider the effect of severing
that bond. Mother’s Br. at 39. Mother further argues that the trial court erred
in crediting Dr. Rosenblum’s “speculative” bond testimony over her own
testimony that severing the bond between her and Children would be
detrimental to Children and result in their severe emotional damage. Id. at
40.
With respect to Section 2511(b), we conclude that the trial court
properly determined that termination of Mother’s parental rights would be in
the best interests of Children. Section 2511(b) provides that the court must
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9 To the extent Mother raises an assertion of a lack of reasonable efforts on
the part of CYS, this argument is without merit. When reviewing a termination
order on appeal, courts are not required to consider reasonable efforts
provided to a parent. See In the Interest of: D.C.D., 105 A.3d 662, 672
(Pa. 2014) (concluding, “Neither subsection (a) nor (b) requires a court to
consider the reasonable efforts provided to a parent prior to termination of
parental rights” and holding that while “the provision or absence of reasonable
efforts may be relevant to a court’s consideration of both the grounds for
termination and the best interests of the child[,]” the provision of reasonable
efforts is not a requirement for termination.). Further, Ms. Bevan confirmed
that CYS extended “every available service” to help Mother alleviate the issues
that necessitated the original placement. N.T., 9/9/21, at 39.
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consider whether termination of parental rights would best serve Children’s
developmental, physical, and emotional needs and welfare. See 23 Pa.C.S. §
2511(b). “In this context, the court must take into account whether a bond
exists between child and parent, and whether termination would destroy an
existing, necessary and beneficial relationship.” In re Z.P., supra at 1121.
The court may equally emphasize the safety needs of the child and consider
intangibles, such as the love, comfort, security, and stability the child might
have with the foster parent. See In re N.A.M., supra at 103. Ultimately,
the concern is the needs and welfare of a child. In re Z.P., supra at 1121.
In concluding that the testimony supports the termination of parental
rights under Section 2511(b), the trial court credited the testimony of Ms.
Bevan and Dr. Rosenblum. Trial Ct. Op. at 17-20. The court emphasized that
Ms. Bevan “testified that [Children] were bonded with their Mother, but also
‘extremely attached’ with their foster parents. [Ms.] Bevan opined that any
such bond between [Mother] and [] Children was not worth preserving in
consideration of the 20 month history of the case.” Id. at 18. Critically, Ms.
Bevan opined that it was in Children’s best interests to terminate parental
rights because they had been in care for 20 months, are extremely attached
to their foster parents, and need permanency. N.T., 9/9/21, at 36-37, 91-92.
In addition, the court emphasized and found persuasive the testimony
of Dr. Rosenblum. Specifically, the trial court placed great weight on Dr.
Rosenblum’s testimony that Mother’s mental health and substance abuse
issues create instability and that Mother’s prognosis is “‘not very good.[;]”
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that A.W. has an attachment to Mother but the relationship is not a “healthy,
constructive or a beneficial relationship[;]” that M.K. is “familiar” with Mother,
but has a primary attachment to foster parents; that the “benefits of adoption
would outweigh severing the bond for any of the parents.” Id. at 18-19.
Further, the court considered Mother’s unstable lifestyle and its impact on her
bond with Children. The court opined:
[Dr.] Rosenblum pointed to the start and stop of treatment,
changing relationships, changing residences and employment,
abuse of drugs and troublesome mental health diagnoses in
support of his opinion. Dr. Rosenblum noted that Mother has
acknowledged her criminal history and stated that Mother has
“severe problems with anger and self-control and she can’t rein
that in, even when dealing with the most important things in her
life.” In response to impact on the children, [Dr.] Rosenblum
repeated his opinion that termination of parental rights would
have little impact with M.K.; while testifying that A.W.
“would have some emotional adjustment, but not distress
from termination of parental rights.” [Dr.] Rosenblum
testified that for A.W., preservation on her relationship with
Mother has become far less essential and meaningful over the last
two (2) years. According to [Dr.] Rosenblum, A.W. relies upon
her foster parents for family, community and basic needs and
termination of [Mother’s] parental rights would be most beneficial
for the [m]inor [c]hild. This testimony supports termination under
§ 2511(b) as requested by [CYS].
Id. at 19-20 (emphasis in original; footnote omitted).
It is well-settled that the trial court is free to believe all, part, or none
of the evidence. Mother’s argument that the trial court should have placed
more weight on her testimony is a request for this court to reweigh the
evidence. We decline to do so.
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Our review of the record supports the trial court’s findings. We do not
discern an error of law or abuse of discretion with respect to the court’s
conclusion. Thus, we affirm the court’s determination that the involuntary
termination of Mother’s parental rights is in the best interests of Children.
D.
In sum, we find that the record supports the trial court’s findings and
conclusions, and we affirm its orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2022
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