In Re: J.D., a minor, Appeal of: M.S. ( 2016 )

J-S83029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.D., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: M.S.
No. 975 WDA 2016
Appeal from the Order June 3, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000021-2016
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 16, 2016
M.S. (“Mother”) appeals from the order dated June 3, 2016,1 and
entered on June 7, 2016, that granted the petition of the Allegheny County
Office of Children, Youth and Families (“OCYF”) for involuntary termination
of her parental rights to her son, J.D. (“Child”), born in May of 2011,
pursuant to the Adoption Act, 23 Pa.C.S. §§ 2101–2938. We affirm.
The orphans’ court accurately and aptly set forth the factual
background and procedural history of this case in its opinion entered on
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*
Retired Senior Judge assigned to the Superior Court.
1
“The Parental Rights of J.D., natural Father (hereinafter, “Father”), were
also terminated pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), [(a)](2), (a)(5),
and (a)(8). Father did not appear at either of the hearings and did not
appeal this [c]ourt’s decision.” Orphans’ Court Opinion, 8/25/16, at 1 n.2.
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August 15, 2016, which we incorporate herein. Orphans’ Court Opinion,
8/25/16, at 2-6. On February 8, 2016, OCYF filed a petition to terminate
Mother’s parental rights. Following hearings on May 27, 2016, and June 3,
2016, the orphans’ court granted OCYF’s petition, involuntarily terminating
Mother’s parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(2),
(a)(5), (a)(8), and 2511(b). Order, 6/7/16. On July 5, 2016, 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)(i) and (b). The orphans’ court
complied with Pa.R.A.P. 1925(a).
On appeal, Mother raises one issue:
Did the trial court abuse its discretion and/or err as a matter of
law in concluding that [OCYF] met its burden of proving that
termination of Birth Mother’s parental rights serves the needs
and welfare of [Child] pursuant to 23 Pa. C.S. § 2511(b) by clear
and convincing evidence when such is not supported by the
record[?]
Mother’s Brief at 5 (reformatted).
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. Id.; [In re]
R.I.S., 36 A.3d [567, 572 (Pa. 2011) (plurality opinion)]. As
has been often stated, an abuse of discretion does not result
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merely because the reviewing court might have reached a
different conclusion. Id.; see also Samuel Bassett v. Kia
Motors America, Inc., [613 Pa. 371,] 34 A.3d 1, 51 (Pa.
2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003).
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will. Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “[t]he standard of clear and convincing
evidence is defined as testimony that is so “clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear conviction,
without hesitance, of the truth of the precise facts in issue.” Id. (quoting In
re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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Mother solely challenges the orphans’ court’s conclusion that
termination of her parental rights serves the needs and welfare of Child
pursuant to section 2511(b).2 That section provides as follows:
§ 2511. Grounds for involuntary termination
(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(b).
Mother asserts that the evidence was insufficient to support the
termination of her parental rights under 23 Pa.C.S. § 2511(b). Specifically,
Mother argues that OCYF failed to prove: (a) that termination of her parental
rights would best serve Child’s needs and welfare; and (b) that no bond
exists between Child and Mother to the extent that Child would suffer
irreparable harm if Mother’s rights were terminated. Mother’s Brief at 11,
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2
Mother has waived any challenge to the sufficiency of the evidence to
support termination under 23 Pa.C.S § 2511(a) by her failure to include such
a challenge in both her concise statement of errors complained of on appeal
and the Statement of Questions Involved in her brief on appeal. See Krebs
v. United Refining Company of Pennsylvania, 893 A.2d 776, 797 (Pa.
Super. 2006) (holding that an appellant waives issues that are not raised in
both her concise statement of errors complained of on appeal and the
statement of questions involved in her brief on appeal).
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15. In support of her position, Mother relies on In re Adoption of G.L.L.,
124 A.3d 344, 347 (Pa. Super. 2015). Therein, Mother posits, this Court
recognized that “[a]n existing parent-child relationship may preclude
termination where the relationship is positive and provides meaningful
contributions to the child’s life and well-being.” Mother’s Brief at 15.
Applying G.L.L., Mother argues that her relationship with Child “should be
preserved” because “a strong parent-child bond can be inferred from the
observations made by Dr. Patricia Pepe, the testimony of the [O]CYF
caseworker and from the testimony of Mother.” Id. Those observations
include an attachment between Child and Mother, the benefit of ongoing
contact between them, and their interaction when together. Id. at 16–18.
OCYF presents different observations: Child is bossy and controlling
towards Mother, who gives into him easily; Mother is more attached to Child
than he is to her; if Mother’s rights were terminated, Child would be upset,
but not irreparably harmed. OCYF’s Brief at 8, 12, 15. The guardian ad
litem (“GAL”) argues that the parent-child relationship between Mother and
Child is “not one comprised of love, comfort, security and closeness.” GAL’s
Brief at 11 (citing In re Bowman, 647 A.2d 217 (Pa. Super. 1994)).
Rather, when Child was with Mother, Child “was acting as the parent.” Id.
at 13.
The focus in terminating parental rights under section 2511(a) is on
the parent, but it is on the child under section 2511(b). In re Adoption of
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C.L.G., 956 A.2d 999, 1008 (Pa. Super 2008) (en banc). In reviewing the
evidence in support of termination under section 2511(b), our Supreme
Court has explained this perspective as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall 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 “[i]ntangibles such as
love, comfort, security, and stability.” 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 determination of the child’s
“needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013). Additionally, it is well-settled
that “we will not toll the well-being and permanency of [a child] indefinitely.”
In re Adoption of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d
726, 732 (Pa. Super. 2008) (noting that a child’s life “simply cannot be put
on hold in the hope that [a parent] will summon the ability to handle the
responsibilities of parenting”)).
The trial court submitted the following analysis under section 2511(b):
Here, this [c]ourt judiciously evaluated the bond between Mother
and Child and determined that there was no indication that an
emotional bond exists to the extent that the termination of
parental rights of Mother would cause Child to suffer extreme
emotional consequences. In reaching this conclusion, this [c]ourt
relied upon the testimony of Patricia Pepe, Ph.D. (hereinafter,
“Dr. Pepe”), a licensed psychologist, and agreed that termination
meets the Child’s needs and welfare. Dr. Pepe described the
significance of positive and primary attachment as “the capacity
for the child to understand that a parent or parent figure is able
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to care for them and address their needs so they feel a sense of
stability and safety. There is a sense that the child can depend
upon these parents to be there for him. That is, the child is the
child and the parents is [sic] the parent.” [N.T.] 5/27/16 at 64.
Dr. Pepe conducted evaluations in December of 2015 and
April of 20[16]. [N.T.] 5/27/16 at 60. Dr. Pepe described Child’s
interactional evaluation with the Foster Parents:
He was very responsive to the Foster Parents, and
they exhibited excellent parenting skills… they
consistently exhibited positive and appropriate
parenting skills, and Child was a very happy child in
both of the evaluations.
….
What struck me about the Foster Parents is they
have a very good understanding of what Child’s
dynamics are.
….
I think they have a very good understanding of what
the Child’s mental issues are. They set boundaries.
[N.T.] 5/27/16 at 62–63.
Notably, Dr. Pepe observed that Child “demonstrated
multiple bonding behaviors” with the Foster Parents and “it
seemed like a very positive placement, and each of the Foster
Parents demonstrated positive and primary attachment.” [N.T.]
5/27/16 at 64.
Dr. Pepe also conducted two evaluations of Mother. Dr.
Pepe commended Mother for having shown increased stability,
but expressed concern because:
The issue with bipolar disorders and especially
with psychotic features and episodes of mania is
health issues are not reliable, and they are very
transient in that any time there could be an episode
of mania or depression.
Historically, individuals with bipolar disorders
have the most difficulty maintaining medication
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compliance. She is doing it now, and I give her
credit for that, but it wasn’t so long ago that she
wasn’t.
So, also, there could be an emergence of any
symptoms to such severity that she may need
hospitalization at some time.
So she has a history of opiate dependence,
bipolar disorder, moderately low intellectual and
active behavioral functioning, and unfortunately, she
has been resistant to some services that would help
her with her intellectual instability and help achieve
that.
[N.T.] 5/27/16 at 67.
During the interactional evaluation between Mother and
Child, Dr. Pepe noted “that Child seems to really look out for his
mother and is concerned. He tells her to be careful. He will, you
know, to some degree parentify with his mother.” [N.T.]
5/27/16 at 68. Also, Dr. Pepe doubts Mother’s capacity to grasp
how to appropriately parent Child since Mother did not
participate in developmentally appropriate behaviors and “she
didn’t seem to understand developmentally what he knows and
doesn’t know, what he needs and doesn’t need.” [N.T.] 5/27/16
at 69. For example, Mother has a one bedroom apartment and
informed Dr. Pepe that she and Child could share the bedroom.
Dr. Pepe indicated that doing so “is not learning appropriate
boundaries. It inhibits the relationship between the parent and
the child, as both parents and child need their own space.”
[N.T.] 5/27/16 at 71.
The uncontroverted testimony established that Child’s
needs are best met with the Foster Parents. A strong bond
exists between the Foster Parents and Child because Child has
been living with the Foster Parents for about fifteen out of the
past twenty-two months and relies on them to be his primary
caregivers.
Given Mother’s significant history of opiate dependence,
her diagnosis of bipolar disorder, her moderately low intellectual
and active behavioral functioning, this Court found it unsettling
that Mother is resistant to services that would help her with her
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stability. More specifically, this Court is concerned that Mother
declined to attend a higher level of care at Mercy Behavioral
Health despite recommendations from her therapist and Court
Orders. [N.T.] 5/27/16 at 24; see also OCYF Exhibit 1,
December 2, 2015, Court Order. Mother testified that she
attends NA and AA meetings only “once in a while” despite
having relapsed on heroin in April of 2015. [N.T.] 6/3/16 at 54.
Ms. Weaver explained that OCYF sought termination of Mother’s
parental rights because:
Mother failed to make progress on family service
plan goals, and time and care… the Child has been in
care for well over 15 out of 22 months. He is in a
stable, pre-adoptive foster home that is willing to
meet the Child’s best needs and include the
biological family to play a part in the Child’s life. He
has made significant progress since he has been in
his foster home… Mother, though she has been in
contact and has been consistent, has not made
adequate progress at this time.
[N.T.] 5/27/16 at 55.
Most notably, Dr. Pepe explained that Child and Mother do
not exhibit the same level of attachment as Child and the Foster
parents and explicitly testified that she does not believe that
Child will be irreparably harmed if Mother’s parental rights are
terminated. [N.T.] 5/27/16 at 76.[3]
The evidence established that Child’s primary bond is with
the Foster Parents. The Foster Parents provide Child with much
needed stability and permanence at his young age. This [c]ourt
concludes that the developmental, physical and emotional needs
and welfare of Child would be best served by terminating
Mother’s parental rights.
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3
Dr. Pepe observed, “While [Child] certainly recognizes his mother and was
happy to see her, it is frankly difficult to assess whether it is related to
genuine attachment and bonding, although I am sure that there is some
attachment that [Child] feels towards his mother, or if it is his ability to get
gifts and his favorite food items.” OCYF Exhibit 3 at 8.
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Orphans’ Court Opinion, 8/25/16, at 7–10.
After a careful review of the record in this matter, we conclude that it
supports the trial court’s factual findings and that the trial court’s legal
conclusions are not the result of an abuse of discretion or an error of law.
N.T., 5/27/16, at 18–56, 59–84. In re Adoption of S.P., 47 A.3d at 826–
827. Accordingly, the trial court properly found that OCYF presented
sufficient evidence to demonstrate that the developmental, physical and
emotional needs and welfare of Child would be best served by terminating
Mother’s parental rights. 23 Pa.C.S. § 2511(b). We, therefore, affirm the
order terminating Mother’s parental rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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