Adoption of T.M.B., Jr., Appeal of: T.N.B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF T.M.B., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: T.N.B., NATURAL :
MOTHER :
:
:
:
: No. 1017 WDA 2019
Appeal from the Order Entered May 30, 2019
In the Court of Common Pleas of Westmoreland County Orphans' Court
at No(s): 151 of 2018
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED JANUARY 10, 2020
T.N.B. (“Mother”) appeals from the May 30, 2019 orphans’ court order
that involuntarily terminated her parental rights to her minor daughter,
T.M.B., Jr.,1. We affirm.
T.M.B. was born in April 2015. She has epilepsy, cognitive delays, and
a genetic disorder that may cause defects in her spine and neurological
system. T.M.B. has been in the custody of Westmoreland County Children’s
Bureau (“WCCB”) since October 2017. N.T., 5/30/19, at 63, 76. The trial
court recounted the following circumstances leading to her placement:
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* Retired Senior Judge assigned to the Superior Court.
1 T.M.B., Jr., is a female child, who does not share the initials of either Mother
or Q.M. (“Father”). For ease of reference, we will refer to T.M.B., Jr., solely
as T.M.B. By separate order entered on May 30, 2019, the orphans’ court
involuntarily terminated the parental rights of Father, who did not appeal.
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On or about October 5, 2017, a referral was received by [WCCB]
that Mother was in the emergency room for the sixth time since
August. Mother fell asleep and [T.M.B.] was running around the
emergency room climbing on other patients. There were concerns
for a lack of supervision of the minor child and homelessness for
Mother, as she had multiple bags with her and had spent the night
in the emergency room even though she had been discharged . . .
[T]he caseworker assigned to the case, Brenda Harr, attempted
to meet with Mother but was unsuccessful. On or about October
13, 2017, Mother arrived at the agency stating that [Father] had
[T.M.B.] and would not give [T.M.B.] back to Mother. . . . The
agency requested emergency custody of [T.M.B.] as they were
uncertain about paternity and had ongoing concerns for Mother’s
untreated mental health and homelessness, as well as a lack of
supervision and the lack of proper medical and dental care for
[T.M.B.]
....
[O]n or about October 13, 2017, a Shelter Care hearing was held
before the undersigned Juvenile Court Hearing Officer, at which
time [T.M.B.] was retained in agency custody.
[A] Petition for Dependency was filed by the [WCCB] on October
17, 2017, alleging that [T.M.B.] is without proper parental care
and control. The Petition for Dependency alleged that the family
has a history of involvement with the [WCCB and] . . . the
Allegheny County Children and Youth agency[.] . . . Mother has
severe mental health concerns[, and] has had parental rights
involuntarily terminated in the past to two older children[.]
See Order, Findings of Fact, 11/14/17, at 1-2. Since October 2017, T.M.B.
has resided in pre-adoptive kinship placement with T.D. and K.D., the adoptive
parents of T.M.B.’s two older half-siblings. Id.
T.M.B. was adjudicated dependent on November 14, 2017. In order to
be reunified with T.M.B., Mother was ordered to comply with random drug
screens and testing, undergo a psychiatric evaluation and comply with any
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recommended treatment, participate in parenting instruction to successful
completion, participate in life skills instruction, including home maintenance
and budgeting, and maintain stable and appropriate housing in a safe and
clean manner. Id.
During a June 2018 permanency review hearing, Mother was found to
be in moderate compliance with her permanency plan. Order, 6/27/18, at 1.
She obtained stable housing for a period of four months and attended
visitations with T.M.B. regularly. Id. However, during the visitations, Mother
did not apply what she had been taught in parenting classes. Id. Mother also
completed a psychiatric evaluation and was compliant with treatment, but she
still displayed concerning behavior with regard to her mental health. Id. She
made no progress toward alleviating the circumstances necessitating T.M.B.’s
placement or parenting, and she demonstrated limited ability, insight, and
motivation to retain the information discussed. Id. Mother did not accept
directives and became hostile when directed. Id. While Mother was compliant
with mental health treatment, she had a history of taking herself off of her
medication and exhibiting symptoms of schizophrenia. Id.
On November 30, 2018, WCCB filed a petition to terminate Mother’s
parental rights, pursuant to 23 Pa.C.S. § 2511(a)(5), (8), and (b). At the
ensuing hearing, Mother testified, and WCCB presented the testimony of
Deanna Pulice, a parenting specialist, Melissa Husenits, an applied behavioral
specialist for adults with disabilities, Joe Narduzzi, a licensed social worker
who provided practical parenting training, and Brandi Schweizer, the
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treatment caseworker assigned to T.M.B.2 The orphans’ court terminated
Mother’s parental rights on May 30, 2019. Mother timely filed a notice of
appeal.
Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing a concise
statement of errors complained of on appeal concomitant with her notice of
appeal. She raises the following issue for our review: “Whether the trial court
erred in finding by clear and convincing evidence that the Westmoreland
County Children’s Bureau met its burden . . . under 23 Pa.C.S. § 2511(b)?”
Mother’s brief at 4.
We review cases involving the termination of parental rights according
to the following standard:
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
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2 T.M.B.’s legal interest and her best interests were represented during these
proceedings by Rochelle Bosak, Esquire. Attorney Bosack testified that she
spoke with then-four-year-old T.M.B. and did not discern a conflict between
T.M.B.’s best and legal interests. N.T., 5/30/19, at 3. Attorney Bosack further
testified that T.M.B. had a speech impediment and learning disability, and that
she was not able to articulate her preference. Id. Accordingly, this case
complies with our Supreme Court’s mandate announced in In re Adoption of
L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017) and In re T.S., 192 A.3d 1080,
1089-90, 1092-93 (Pa. 2018), that children in contested termination of
parental rights proceedings must be appointed counsel to represent their legal
interest.
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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) (internal citations and quotations
omitted).
At the outset, we note that since Mother did not challenge the orphans’
court’s determination pursuant to § 2511(a) we do not address that portion
of its decision. Instead, we review Mother’s argument that the orphans’ court
did not adequately examine the bond that she shares with T.M.B. Mother’s
brief at 9. The relevant subsection of 23 Pa.C.S. § 2511 provides:
(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).
In reviewing the orphans’ court’s § 2511(b) determination we examine
the analysis concerning “whether a bond exists between child and parent, and
whether termination would destroy an existing, necessary and beneficial
relationship.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010). The court
is not required to use expert testimony, and social workers and caseworkers
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may offer evaluations as well. Id. Ultimately, the concern is the needs and
welfare of a child. Id.
We have noted
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
Id. at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa.Super. 2000)).
As noted, Mother challenges the sufficiency of the orphans court’s needs
and welfare analysis pursuant to § 2511(b). Mother’s brief at 10-11. In
support of her argument, she highlights the two years of care that she
provided T.M.B. before WCCB placed her in kinship care, and she references
two aspects of the evidence that WCCB adduced during the hearing: (1) the
parenting specialist’s allegedly contradictory testimony that Mother both failed
to show affection toward T.M.B. and also engaged with the child during the
visitations; and (2) the parenting trainer’s testimony that Mother’s
interactions with T.M.B. during mealtime had improved. The gravamen of her
position is, “Giving [sic] the testimony in this matter, an adequate analysis
should have been made to determine whether terminating Mother's parental
rights would destroy an existing, necessary and beneficial relationship.” Id.
She concludes, that WCCB “has not met its burden with regard to 2511(b) and
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Mother's parental rights should not be terminated.” Id at 10. Mother’s
argument fails for at least two reasons.
First, to the extent that Mother asserts that the trial court was required
to order a formal bonding evaluation, that proposition is undeniably wrong.
In actuality, bond evaluations are not required by statute or precedent. In re
J.N.M., 177 A.3d 937, 944 (Pa.Super. 2018). Indeed, as outlined supra, the
orphans’ court may rely upon the relevant observations and assessments of
the caseworkers and social workers who are familiar with the details of the
case. See In re Z.P., supra at 1121. Second and more importantly, the
certified record supports the orphans’ court’s determination that terminating
Mother’s parental rights best served the developmental, physical and
emotional needs and welfare of T.M.B.
Joe Narduzzi, the licensed social worker who performed parenting
training, assisted Mother during her supervised visitations with T.M.B. He
noted that during the first visit, three-year-old T.M.B. had difficulty separating
from her foster mother and cried in her stroller for the length of the visit.
N.T., 5/30/19, at 33-34. Mother was not attentive, and she spent most of the
visit looking at her phone or walking around the room looking at things. Id.
at 34.
In addition, Mother struggled with feeding T.M.B. appropriately. At first,
she brought only junk food to the visits and argued with Mr. Narduzzi when
he suggested bringing microwaveable macaroni and cheese as a more
nutritional option that T.M.B. could chew. Id. at 39. When Mr. Narduzzi
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attempted to assist Mother, she would reply, “I know what my daughter
needs, and I know what is best for my daughter.” Id. at 40.
Mother also showed little interest in learning how to care for T.M.B.’s
seizure disorder or other special needs, and was resistant to any parenting
instruction. Id. at 38-39, 46. With regard to T.M.B.’s seizures, foster mother
provided Mother and Mr. Narduzzi with a specialized “seizure bag,” containing
blankets and supplies, as well as an instruction card describing what to expect
and what to do during seizures; however, Mother ignored the instructions. Id.
at 38-39. At the end of the visit, Mother left the card on the table and refused
to take it with her. Id. at 39.
Mr. Narduzzi further explained how Mother’s slow progress toward
interacting with T.M.B. affected the child negatively. Id. at 39. While T.M.B.
looks forward to their shared meal, Mother is not capable of interacting at
length with T.M.B. after the meal. Id. at 43. After a year and a half of
continual prompting, Mother increased the time she interacts with T.M.B, but
she still has inappropriate conversations with T.M.B., including calling Father
“no good,” and more than once accused foster parents of not appropriately
caring for T.M.B., and abusing her. Id. at 44. Mr. Narduzzi still did not feel
that Mother was capable of interacting with her daughter without supervision.
Id. at 39, 55.
Mr. Narduzzi continued that WCCB decreased the frequency of the
visitations in May 2018 due to Mother’s lack of involvement. He explained, at
times, Mother wanted to leave early, and on other occasions, Mother sat at
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the table without participation, or closed her eyes and fell asleep. Id. at 47-
48. Accordingly, the visitations were decreased to once a week, which Mother
conceded was a good idea. Id. She did not request to increase the frequency
of the visitation until March 2019, and her request was denied because the
petition to involuntarily terminate her parental rights had already been filed.
Id.
In sum, Mr. Narduzzi testified that the visits between Mother and T.M.B.
were more like “play dates” than parent-child visits, and that T.M.B.
considered her kinship foster home to be her actual home. Id. at 53. T.M.B.
did not have any difficulty separating from Mother at the end of visits and
often needed to be reminded to say goodbye. Id. Mr. Narduzzi was unsure
whether Mother had the capacity to be affectionate to T.M.B. due to her
cognitive limitations and mental health issues, and this issue would continue
to interfere with the development of bonding and attachment. Id. at 60.
Mother had shown some improvement in her interactions with T.M.B. but it
was minuscule improvement. Id. While it was clear that Mother loved T.M.B.,
Mr. Narduzzi believed it was in T.M.B.’s best interest to be adopted. Id. at
56.
Similarly, as it relates to T.M.B.’s bond with her kinship family, Richelle
O’Malley, who performed a parenting capacity evaluation of Father,3 testified
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3 While Ms. O’Malley did not evaluate Mother’s parenting capacity, her
testimony helps inform T.M.B.’s needs and welfare, and describes the
relationships that T.M.B. shares with her foster family.
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that T.M.B. had special needs, including cognitive and speech delays. Id.
T.M.B. was being evaluated for a genetic disease and was diagnosed with
epilepsy. Id. Ms. O’Malley stressed that T.M.B. had a strong attachment to
her adult foster sister, M.D., who served a maternal function. Id. at 13. As
an example of their bond, Ms. O’Malley described how T.M.B. typically asked
for M.D. during visitation, looked for her when she was ready to leave, and
ran into M.D.’s arms when she saw her. Id. T.M.B. also appeared comfortable
with her foster mother and would go to her without concern. Id. Ms. O’Malley
opined that termination would be in T.M.B.’s best interest because she had
been removed from the home for a significant period of time, and had
specialized needs that the foster family was meeting, including special
education and medical care. Id. at 13-14.
Similar to Ms. O’Malley, Brandi Schweizer, the treatment caseworker
assigned to T.M.B., believed that it was in T.M.B.’s best interests to terminate
Mother’s parental rights because termination would allow T.M.B. to achieve
permanency and stability in her foster home where her basic needs, safety,
and specialized developmental needs were being met. Id. at 70-72. She
noted that T.M.B. is thriving in a pre-adoptive foster home with her foster
parents, two biological half-siblings, and an adult foster sister to whom she
has an extraordinarily close bond. Id. at 73, 77. She continued that T.M.B.
has dental needs, cognitive delays, seizures, and a genetic disorder that
requires close monitoring because it can lead to “tumors on the spine and just
issues in the brain.” Id. at 74. Foster parents have cared appropriately for
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every one of T.M.B.’s issues, and T.M.B. views them as her parents. Id. at
74-75. While T.M.B. knows Mother, she does not seek Mother out to have her
basic needs met. Id. In Ms. Schweizer’s observation, there was no significant
relationship at all between Mother and T.M.B. Id. at 75. For example, she
supervised three visits between Mother and T.M.B., and watched Mother and
T.M.B talk, sit at the table, and eat meals together, but did not discern any
affection between them. Id. at 65. Hence, Ms. Schweizer did not believe that
termination would lead to the termination of a necessary and beneficial
relationship for T.M.B. Id.
The forgoing evidence belies Mother’s assertion that the orphans’ court’s
analysis was deficient. Although it is true that Mother cared for T.M.B. for two
years prior to T.M.B.’s placement, and that Mother would occasionally play
with T.M.B. during the supervised visitations, these facts do not establish
evidence of a beneficial parent-child bond. Rather, the certified record
demonstrates that Mother’s interactions with T.M.B. were similar to
playmates, and that neither Mother nor T.M.B. showed affection towards each
other during the visits. Indeed, T.M.B. did not even remember to say goodbye
to Mother at the conclusion of the visits without prompting. Importantly, Mr.
Narduzzi testified that Mother’s cognitive limitations would continue to
interfere with the development of the parent-child bond, and Ms. Schweizer
testified that there was no significant relationship between Mother and T.M.B.
The preceding facts demonstrate that T.M.B. is a vulnerable child with
special needs whose care Mother is incapable of providing. T.M.B. has
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developed necessary and beneficial bonds with her pre-adoptive kinship foster
family, including two half-sisters, who care for all of her physical, emotional,
and medical needs. Accordingly, we affirm the orphans’ court’s determination
that WCCB proved by clear and convincing evidence that the termination of
Mother’s parental rights satisfied T.M.B.’s needs and welfare pursuant to §
2511(b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2020
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