Adoption of: M.A.G., Appeal of J.N.Y. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: M.A.G. : PENNSYLVANIA
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APPEAL OF: J.N.Y., MOTHER :
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: No. 842 WDA 2022
Appeal from the Decree Entered June 24, 2022
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 21A in Adoption, 2022
IN THE MATTER THE ADOPTION OF: : IN THE SUPERIOR COURT OF
M.D.G. : PENNSYLVANIA
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APPEAL OF: J.N.Y., MOTHER :
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: No. 843 WDA 2022
Appeal from the Decree Entered June 24, 2022
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 21 In Adoption 2022
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: December 6, 2022
J.N.Y. (“Mother”) appeals from the decrees terminating involuntarily her
parental rights to her children, M.D.G., born June 2017, and M.A.G., born July
2019.1 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 This Court consolidated these appeals sua sponte.
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We provide the following pertinent background. In August 2021, M.D.G.
and M.A.G. were removed from Mother’s care pursuant to an emergency
protective order and placed in the custody of the Erie County Office of Children
and Youth (“Agency”). The Agency was concerned with Mother’s unstable
housing, untreated mental health issues, verbal aggression during the
removal process, and history with the Agency regarding the removal of two
older children for similar concerns. M.D.G. and M.A.G. were adjudicated
dependent and placed in a foster home.2 Mother’s goals for reunification
included submitting to a mental health assessment and following the
recommended therapy, participating in domestic violence and anger
management programs, cooperating with Family Reunification, attending the
children’s medical appointments, obtaining employment and stable housing,
and maintaining contact with the Agency.
Between August and December 2021, Mother had approximately nine
visits with the children. M.D.G. had to be forcibly extracted from the foster
home and placed in a vehicle to be transported to visits by Stephen Davis, the
Agency case aide. During the car ride, M.D.G. would tell Mr. Davis that she
wanted to stay with her new mom and did not want to go to her old mom
because she made her feel sad, bad, and unsafe. Following the latter visits,
M.D.G. would evacuate her bladder during the car ride back to the foster
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2 The children have remained together in the same pre-adoptive foster home
since their initial placement.
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home. Also, during this period, Mother terminated her mental health
treatment in anticipation of moving out of the county.
These events were relayed at the first permanency review hearing in
December. Additionally, the caseworker, Danielle Lubak, notified the court of
two incidents with Mother that indicated mental health stability concerns. At
the conclusion of the hearing, the court found Mother minimally compliant
with the permanency plan, noting she had made minimal progress towards
alleviating the circumstances that led to placement. Accordingly, it added a
concurrent goal of adoption. The court also suspended visitation until it was
deemed therapeutically appropriate “[d]ue to . . . M.D.G.’s behaviors
regarding visits, [Mother’s] decline in acting appropriately with the children,
and [Mother’s] failure to acknowledge or even discuss the children’s need for
trauma therapy[.]” Orphans’ Court Opinion, 8/19/22, at 4.
At that time, the court also ordered a psychological evaluation and
bonding assessment to be conducted by Peter von Korff, Ph.D. Mother refused
to participate, so Dr. von Korff conducted the bonding assessment solely as
to the children and their foster parents. Mother, meanwhile, moved to Ohio,
was unsuccessfully discharged from her services in Erie County, and did not
provide proof of participation in any services in Ohio. “Based on [Mother’s]
lack of compliance with the permanency plan and failure to alleviate the
circumstances which necessitated the original placement, the [c]ourt granted
the Agency’s request to change the goal to adoption[.]” Id. at 5. The court
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did not resume visitation. Thus, the children’s last contact with Mother was
in December 2021.
On April 13, 2022, the Agency filed a petition to involuntarily terminate
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and
(b).3 The orphans’ court held a hearing on the petition on June 22, 2022.4
The court heard testimony from Dr. von Korff, Ms. Lubak, Mr. Davis, and
Mother.5 At the conclusion of the hearing, the orphans’ court granted the
Agency’s petition to terminate Mother’s parental rights involuntarily pursuant
to § 2511(a)(1), (2), and (b). The court found Mother “ha[d] not made any
efforts to remedy the conditions that put [her] in this position in the first
place[.]” N.T., 6/22/22, at 101. While acknowledging that Mother claimed to
have stable housing in Ashtabula, Ohio, the court observed that the Agency
could not review the housing or its adequacy because it was out of state in a
“completely different jurisdiction.” Id. Additionally, the court noted that its
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3 The Agency also sought termination of the parental rights of S.L.G.
(“Father”). Father has not appealed the involuntary termination of his
parental rights as to M.D.G. and M.A.G.
4 M.D.G. and M.A.G. were represented by their guardian ad litem/legal
counsel. Counsel did not file a substantive brief on appeal but did file a letter
joining the Agency’s brief in support of termination.
5 The orphans’ court thoroughly detailed the testimony presented at the
termination hearing in its Rule 1925(a) opinion. See Orphans’ Court Opinion,
8/19/22, at 6-11.
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reunification efforts had been detrimental to the children and found that
termination was in their best interests. See id.
This timely filed appeal followed. Both Mother and the orphans’ court
have complied with Pa.R.A.P. 1925.6 Mother presents the following for our
consideration: “Did the [orphans’ c]ourt abuse its discretion in terminating
[Mother’s] parental rights when the record is comprised of insufficient
competent evidence to establish grounds for termination? And, did the
[orphans’ c]ourt abuse its discretion by finding that severance of [Mother’s]
parental rights would serve the child’s best interest?” Mother’s brief at 4.
We begin with our standard of review for matters involving
involuntary termination of parental rights:
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
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 Adoption of B.G.S., 245 A.3d 700, 704 (Pa.Super. 2021) (cleaned up).
“The trial court is free to believe all, part, or none of the evidence presented
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6The orphans’ court initially stated its belief that Mother had waived her claims
on appeal due to a vague concise statement. See Orphans’ Court Opinion,
8/19/22, at 12. As the orphans’ court was able to ascertain Mother’s claims
on appeal and addressed them substantively, we decline to find waiver.
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and is likewise free to make all credibility determinations and resolve conflicts
in the evidence.” Interest of G.M.K., 255 A.3d 554, 560 (Pa.Super. 2021)
(cleaned up). “[I]f competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
Termination of parental rights is governed by § 2511 of the Adoption
Act and requires a bifurcated analysis of the grounds for termination followed
by the needs and welfare of the child.
Our case law has made clear that under [§] 2511, the court must
engage in a bifurcated process prior to terminating parental rights.
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 [§] 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 [§] 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).
Mother argues that the Agency failed to establish by clear and
convincing evidence the statutory grounds for termination of her parental
rights or that termination would be in the best interests of her children. 7 See
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7Although Mother essentially raises two issues, one as to § 2511(a) and one
as to § 2511(b), Mother presents a single argument section in her brief.
Although this technically violates Pa.R.A.P. 2119(a), we decline to find waiver
on this basis.
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Mother’s brief at 7. We have defined clear and convincing evidence as that
which 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.” In re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc)
(cleaned up). Termination is proper when the moving party proves grounds
for termination under any subsection of § 2511(a), as well as § 2511(b).
T.B.B., supra at 395. To affirm, we need only agree with the trial court as
to any one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
Here, we focus our analysis on § 2511(a)(1) and (b), which provide 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.
....
(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
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511.
Our Supreme Court set forth the proper inquiry under § 2511(a)(1) as
follows:
Once the evidence establishes a failure to perform parental duties
or a settled purpose of relinquishing parental rights, the court
must engage in three lines of inquiry: (1) the parent’s explanation
for his or her conduct; (2) the post-abandonment contact between
parent and child; and (3) consideration of the effect
of termination of parental rights on the child pursuant to Section
2511(b).
In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1998) (citation
omitted).
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). In this
vein, “[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.” Id. at 340 (citation omitted). As it relates
to § 2511(a)(1), “[a] parent is required to exert a sincere and genuine effort
to maintain a parent-child relationship; the parent must use all available
resources to preserve the parental relationship and must exercise ‘reasonable
firmness’ in resisting obstacles placed in the path of maintaining the parent-
child relationship.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003)
(citation omitted).
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Mother assails various portions of the testimony provided by Dr. von
Korff, Ms. Lubak, and Mr. Davis. See Mother’s brief at 12-14. According to
Mother, her testimony “reveal[ed] that she maintained contact with the
Agency after her relocation and remained focused on reunification with her
children.” Id. at 15.
The orphans’ court concluded that Mother “consistently demonstrated
an unwillingness to acknowledge or alleviate any issues that brought the
children into the Agency’s care.” Orphans’ Court Opinion, 8/19/22, at 15. “In
fact, the longer the case went on, the more [Mother] demonstrated a decline
in the stability and ability to parent the children.” Id. at 14. Specifically, the
court addressed Mother’s failure to perform parental duties as follows:
[Mother] was given an opportunity to engage in services
under her treatment plan, visit with the children, and attend their
medical appointments. However, at the time of the first
permanency review hearing, [Mother] had minimal effort in
complying with her treatment plan and minimal progress at
alleviating the circumstances, which necessitated the children’s
removal from [Mother’s] care. At the first permanency review
hearing, the court heard testimony regarding [Mother’s] declining
interactions with the children at a dentist appointment and during
visits where she referred to the foster mother as a “stranger” and
told the children not to “trust her.”
Based on the testimony regarding M.D.G.’s behaviors before
and after visits, and testimony that [Mother] kicked the
caseworker out of her home when she tried to discuss the
children’s need for trauma therapy, a concurrent goal of adoption
was added, and the court stopped visitation. At the same time,
the children began therapy, and the court ordered [Mother] to
participate in a psychological and bonding assessment with Dr.
von Korff.
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Shortly after the December review hearing, [Mother],
despite being advised it would harm her chance at reunification,
moved to Ashtabula, Ohio. Consequently, the respective
providers unsuccessfully discharged her from her services in Erie
County. Additionally, despite being able to participate with Dr.
von Korff by telephone, [Mother] refused to participate in the
court ordered psychological and bonding assessment and
ultimately demonstrated no compliance with the treatment plan
during the second review period.
Id. (cleaned up).
As evidenced by the detailed recitation of the testimony presented at
the termination hearing by the orphans’ court, the court’s factual findings are
supported by the certified record. See id. at 6-11. Thus, we discern no abuse
of discretion by the orphans’ court in finding grounds to terminate Mother’s
parental rights pursuant to § 2511(a)(1).
Next, we consider whether the orphans’ court committed an error of law
or abuse of discretion pursuant to § 2511(b). As explained above, § 2511(b)
focuses on the needs and welfare of the children, which includes an analysis
of any emotional bond that the children may have with Mother and the effect
of severing that bond. L.M., supra at 511. The key questions when
conducting this analysis are whether the bond is necessary and beneficial and
whether severance of the bond will cause the child extreme emotional
consequences. In re Adoption of J.N.M., 177 A.3d 937, 944 (Pa.Super.
2018) (quoting In re E.M., 620 A.2d 481, 484–85 (Pa. 1993)). It is important
to recognize that the existence of a bond, while significant, is only one of many
factors courts should consider when addressing § 2511(b). In re Adoption
of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting In re N.A.M., 33
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A.3d 95, 103 (Pa.Super. 2011)). Other factors include “the safety needs of
the child, and . . . the intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.” Id.On appeal, Mother attacks the credibility of Dr. von Korff’s bonding
assessment. See Mother’s brief at 12-13. Mother notes that he never met
with Mother and only had one meeting with the children. See id. at 12.
Additionally, she claims his testimony revealed problems with the bonding
assessment due to the young ages of the children and his reliance on the court
summary and background information from the foster parent. See id. at 12-
13.
In relation to § 2511(b), the orphans’ court concluded as follows:
The testimony at the [termination] trial clearly established
that it is in the children’s best interest to terminate [Mother’s]
rights. Ms. Lubak and Mr. Davis testified that the children both
suffered behavioral issues surrounding visits with [Mother]. Even
assuming the visits did not relate to their relationship with
[Mother], an assumption inconsistent with the evidence, [Mother]
refuses to acknowledge the behaviors or the children’s need for
trauma therapy.
Further, testimony was clear that the children’s significant
needs were/are being met in the foster/pre-adoptive home, and it
would be in their best interest for [Mother’s] right to be terminated
so that they may find permanency.
Orphans’ Court Opinion, 8/19/22, at 15 (cleaned up).
Preliminarily, we note that Mother mischaracterizes Dr. von Korff’s
testimony. His testimony revealed that he attempted to engage Mother in the
court-ordered psychological evaluation and bonding assessment but she
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refused to comply and terminated their telephone conversation. See N.T.,
6/22/22, at 9. Lacking any cooperation from Mother or Father, Dr. von Korff
had no choice but to rely on the foster parents, the Agency, and the court
summary for background information. Moreover, despite Mother trying to cast
Dr. von Korff’s findings as being pre-determined, Dr. von Korff expressly
rejected that accusation, testifying “[t]hat is not true and that’s really kind of
a terrible misread of what I’ve been saying.” Id. at 30.
Contrary to Mother’s assertions, the certified record supports the factual
findings of the orphans’ court. Dr. von Korff found that based upon his
assessment of M.D.G. and M.A.G., neither child would be harmed by
termination of Mother’s parental rights. See id. at 21. Dr. von Korff
elaborated:
I wanted to make it clear to the [c]ourt that these children would
not be harmed by a termination of the parents’ rights because
they have experienced so much trauma and so much
abandonment by parents who clearly have indicated to me that
they are unwilling to even comply with the most basic [c]ourt
mandate such as, you know, have an assessment. So, there is a
strong indication to me that there is not going to be any change
forthcoming for these parents and therefore these children – and,
fortunately, they’re quite young, they have a chance to securely
attach.
Id. at 22.
Furthermore, the record bears out that the foster parents, rather than
Mother, are whom the children seek for safety, affection, and structure. The
children refer to the foster mother as “mom” and it is the foster parents who
are providing for the needs of the children, including their emotional and
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therapeutic needs. See id. at 64-65. Accordingly, we discern no abuse of
discretion by the orphans’ court in concluding that termination was in the best
interests of the children.
Based on the foregoing, we affirm the decrees terminating Mother’s
parental rights as to M.D.G. and M.A.G.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2022
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