Adoption of A.A.S., Appeal of: H.L.C. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF A.A.S. : IN THE SUPERIOR COURT OF
IN RE: ADOPTION OF L.T.S. : PENNSYLVANIA
IN RE: ADOPTION OF D.L.S. :
: No. 1140 WDA 2019
APPEAL OF: H.L.C., BIRTH MOTHER :
Appeal from the Order Entered June 11, 2019,
in the Court of Common Pleas of Westmoreland County
Orphans’ Court Division at No. 7 of 2019, No. 8 of 2019,
No. 9 of 2019
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2020
H.L.C. (“Mother”) appeals from the June 11, 2019 order entered in the
Court of Common Pleas of Westmoreland County, Orphans’ Court Division,
involuntarily terminating her parental rights to her dependent children, A.A.S.,
female child, born in July 2006; L.T.S., male child, born in May 2008; and
D.L.S., male child, born in April 2009 (collectively, the “Children”), pursuant
to the Adoption Act, 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8), and (b).1 We affirm.
The trial court set forth the following:
At all times relevant to the within proceedings, the
Children resided exclusively with Mother in
Westmoreland County, Pennsylvania, and [birth
father] resided in North Carolina. On February 21,
2017, the [Westmoreland County Children’s Bureau
1 The record reflects that the trial court also involuntarily terminated birth
father’s rights to the Children in the June 11, 2019 order. The record further
reflects that birth father and Mother were married at the time that the Children
were born. Birth father is not a party to this appeal.
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(the “Agency”)] received a referral, citing concerns
about the Children’s behavior and lack of supervision.
On April 6, 2017, the Agency caseworker met Mother
at her home. Mother appeared disoriented and had
dirt on her face. The Children were not at home and
Mother did not know where they were. Garbage was
strewn about the home; food, dirty dishes and cat
litter was on the floor; plates overflowing with
cigarette ashes were on the table; mattresses were on
the floor; and spilled food was in the refrigerator.
When [L.T.S.] returned home alone, he reported that
the other two [c]hildren were playing in an abandoned
building; Mother accused [L.T.S.] of lying about his
siblings’ whereabouts.
The Agency offered services to Mother, and then
learned that Mother was going to be evicted by her
landlord due to the housing conditions, which included
a flea infestation in the home. When Mother failed to
move from the premises, which was her father’s
home, she was arrested and incarcerated on charges
of defiant trespassing. At that time, Mother placed
the Children in the care of their maternal
grandmother.
The Agency caseworker met Mother in jail on April 26,
2017. During that meeting, Mother denied having
been evicted, denied the poor condition of the home,
and denied that the Children had behavioral issues.
Maternal Grandmother needed financial assistance to
care for the Children, so the Agency filed a Petition for
Dependency on May 9, 2017, alleging that the
Children were without proper parental care and
control. Specifically, Mother allowed the Children to
play in the neighborhood without supervision. In
addition to the poor housing conditions, the Children
played with hypodermic needles with Mother’s
knowledge and she showed no concern for their
safety. The Children were lagging behind in school
and required tutoring. Although [L.T.S.] was
diagnosed with Autism Spectrum Disorder, Mother
failed to seek treatment or special education for him.
In addition, [L.T.S.] had behavioral problems that
were not being addressed: he was physically
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aggressive, and striking, biting and kicking Mother;
and he suffered from panic attacks. Because he had
such poor hygiene, his teacher provided him with a
comb and toothbrush to use while at school.
Mother appeared to have untreated mental health
issues. Her behavior resulted in a Protection from
Abuse Order being entered on January 4, 2016,
prohibiting her from having contact with a former
paramour.
Agency caseworker Robert Allison was assigned this
case on May 1, 2017. Although he had no concerns
about drug and alcohol use, he had concerns about
Mother’s mental health. He reported that the Children
were doing well at their maternal grandmother’s
home. . . .
The Agency contracted with Timothy Kramer, a
placement specialist with Project STAR at the
Children’s Institute, to provide Mother with services,
including parenting instruction, home maintenance,
housing, and connections to community resources.
When he attempted to communicate with Mother on
April 12, 2017, she declined to speak with him. He
met Mother again on June 19, 2017, and eventually
she agreed to go to a homeless shelter in Uniontown.
He continued to try to offer assistance to Mother.
At the Adjudication and Disposition hearing held on
June 23, 2017, the Children were adjudicated
dependent with continued placement in the kinship
home of the maternal grandmother, Ms. [K.], the
pre-adoptive parent.
At the conclusion of the Adjudication and Disposition
hearing held on June 23, 2017, Mother was directed
to undergo a mental health evaluation and comply
with any recommended treatment; to participate in
parenting instruction until successful completion; to
obtain stable and appropriate housing and keep it in a
safe and clean manner; and to secure a verifiable
source of legal income.
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....
At a Permanency Review Hearing held on
December 11, 2017, the Juvenile Court Hearing
Officer made the following findings with regard to
Mother’s compliance and progress during the
preceding 6 months, which are summarized as
follows: Mother had minimal compliance with the
permanency plan as she was incarcerated from
September 29, 2017, until November 28, 2017. She
did not participate in the hearing. She had no housing
or source of income. As of December 6, 2017, she
was living at the Welcome Home Shelter. She was not
receiving any mental health treatment. She did not
engage in any parenting instruction. During the entire
6-month review period, she had only 3 visits with the
Children.
....
At the conclusion of the Permanency Review Hearing
held on December 11, 2017, Mother was directed to
continue with mental health treatment or individual
counseling until successfully discharged; to undergo a
mental health or psychiatric evaluation and comply
with any recommended treatment; to participate in
parenting instruction; to obtain and maintain stable
and appropriate housing and keep it in a safe and
clean manner; and to secure and maintain a verifiable
source of legal income.
....
At a Permanency Review Hearing held on June 20,
2018, the Juvenile Court Hearing Officer made the
following findings with regard to Mother’s compliance
and progress during the preceding 6 months, which
are summarized as follows: Mother had minimal
compliance with the permanency plan in that she
continued to struggle with obtaining housing and was
residing at Pathway Homeless Shelter in Indiana
County. She was unemployed and had no source of
income. She continued to refuse to have a mental
health evaluation. For a period of 5 months, she had
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no visits with the Children. Then in May 2018, she
began to receive parenting instruction through Justice
Works, and had 5 supervised visits since then,
although the oldest [c]hild, [A.A.S.], refused to attend
visits with Mother.
....
At the conclusion of the Permanency Review Hearing
held on June 20, 2018, the Agency was directed to
begin therapeutic supervised visits for Mother with
[A.A.S.]. Mother was directed to undergo a mental
health evaluation and comply with any recommended
treatment; to participate in parenting instruction, until
successful completion; to obtain and maintain stable
and appropriate housing and keep it in a safe and
clean manner; and to secure and maintain a verifiable
and legal source of income. The Order appointing
legal counsel for Mother was vacated because Mother
discharged her counsel at the hearing.
....
At a Permanency Review Hearing held on January 14,
2019, the Juvenile Court Hearing Officer made the
following findings with regard to Mother’s compliance
and progress during the preceding 6 months, which
are summarized as follows: Mother had minimal
compliance with the permanency plan as Mother
continued to have no stable housing. She was
residing with her father, but that was only temporary.
She was unemployed and had no source of income.
She was not cooperating with Justice Works to
attempt to alleviate her housing and unemployment
issues. To the contrary, she stated that she does not
wish to be employed and desires to be a “stay-at-
home Mother.” She refused to have a mental health
evaluation and denies that there are any issues or
concerns with regard to her mental health, her
parenting ability, her lack of housing and lack of
income. Mother did cooperate with 13 out of
14 parenting sessions with Justice Works, and
attended 19 out of 25 visits with the Children. She
also participated in family therapy with [A.A.S.].
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....
At the conclusion of the Permanency Review Hearing
held on January 14, 2019, the Court directed that
[A.A.S.’s] visits with Mother be therapeutically
supervised and occur separately from her brothers’
visits with Mother. Mother was directed to undergo a
psychiatric evaluation and comply with any
recommended treatment; to participate in parenting
instruction until successful completion; to participate
in life skills services, including instruction on home
maintenance and budgeting, and connections to
community resources; to obtain and maintain stable
and appropriate housing and keep it in a safe and
clean manner; and to secure and maintain a verifiable
and legal source of income.
....
ViJaya Greene, MPC, a Behavioral Health Clinician with
Project STAR at The Children’s Institute, had
11 bi-weekly therapy sessions with [D.L.S.] from
November 15, 2017, though April 30, 2018.
Ms. Greene testified as follows. The objective of
[D.L.S.’s] therapy was to address issues related to
emotional regulation and trauma. During the period
of time Ms. Greene worked with [D.L.S.], [birth
f]ather was in contact with the Children, and [D.L.S.]
was excited about the possibility of moving to North
Carolina to live with his [birth f]ather. As time passed,
[D.L.S.] was becoming indifferent toward his Mother,
and he expressed no concern about leaving
Pennsylvania or his Mother in order to reside with
[birth f]ather. . . .
Rayna Carter, M.S.Ed., NCC, LPC, a Behavioral Health
Clinician with Project STAR at The Children’s Institute,
had 22 therapy sessions with [A.A.S.] from
November 15, 2017, through July 23, 2018.
Ms. Carter testified to the following[:] In the
beginning, [A.A.S.] talked positively about her
rekindled relationship with her Father. She said she
spoke to him almost every day and desired to spend
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more time with him. She did not talk about her
Mother, but when asked, said that she was not
interested in talking to her. She was very angry, and
felt like she had had to be the parent. She referred to
her Mother by her first name, and had no misgivings
about leaving her Mother. . . . In mid-April 2018,
[A.A.S.] began to refuse to participate in supervised
visits with her Mother. [A.A.S.] did not want to move
to North Carolina [to reside with birth father]; she was
interested in maintaining a relationship with her [birth
f]ather, but she wanted to continue living with
Maternal Grandmother. When Maternal Grandmother
was hesitant to accept permanent responsibility for
the care of the Children, [A.A.S.] stated that she
would prefer to go into foster care rather than live with
[birth f]ather because his explosive temper scared
her. During her last therapy session with [A.A.S.],
Ms. Carter explained that a new therapist has been
assigned to her case to provide reconciliation therapy
to [A.A.S.] and her Mother. [A.A.S.] was reluctant to
have either supervised visitation or reconciliation
therapy with her Mother.
Bethany Marie Crile, M.A., NCC, a Behavioral Health
Clinician with Project STAR at The Children’s Institute,
worked with [A.A.S.] and [D.L.S.] on issues relating
to past trauma, anger and aggression, and their ability
to articulate feelings in an appropriate way. Ms. Crile
testified to the following[:] [A.A.S. and D.L.S.]
attended 25 therapy sessions from September 11,
2018, through May 2, 2019. Ms. Crile observed that
Grandmother’s and [A.A.S.’s] relationship had
strengthened, peer relationships improved, and
[A.A.S.’s] grades improved. [A.A.S. and D.L.S.] do
not indicate that they have any attachment to Mother.
To the contrary, they argue over not speaking to their
Mother when she calls.
Rachel Johnston of Justice Works YouthCare provided
housing, community resources and supervised
visitation to the Family from May 27, 2018, through
August 26, 2018. She testified as follows[:]
Ms. Johnston attempted to rebuild the relationship
between Mother and the Children. [A.A.S.] did not
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want to be touched at all by her Mother, and she
physically threatened her. Mother continued to
maintain that she was a “stay-at-home” Mom, that
she did not need a job, and that she would find a
husband to help her. Mother’s source of income was
unknown, and for periods of time she resided in
homeless shelters, despite Ms. Johnston’s efforts to
help her. Mother insisted that she needed a
7-bedroom house, which was an unrealistic
expectation for a woman of her limited financial
means. Mother would not complete a mental health
evaluation, and would not complete the tasks
assigned to her.
Courtney Knox of Justice Works YouthCare provided
housing, community resources and supervised
visitation to the Family beginning in August 2018, and
continuing through December 2018. She testified as
follows[:] Ms. Knox attempted to work with Mother in
obtaining a mental health evaluation, housing and
help through Family Behavioral Resources, but Mother
refused to comply or cooperate. Mother attended 19
out of 25 scheduled supervised visits. She had
appropriate interactions with [D.L.S.] and [L.T.S.]
during those visits, but she had difficulty with
discipline and setting boundaries. Mother and
[A.A.S.] did not interact well with one another, and a
therapist from King and Associates intervened. When
Mother would not agree to guidelines established by
the therapist to govern her interactions with [A.A.S.]
during visits, the visit was cancelled on August 2,
2018. Ms. Knox stated that from August 2018 to
December 2018, Mother made no progress in
improving her interactions with the Children.
Mary O’Hara, LSW, a social worker with King and
Associates, began to work with Mother and [A.A.S.] in
September 2018. Ms. O’Hara testified as follows[:]
Mother continued to refuse to have a mental health
evaluation. When Ms. O’Hara tried to explain the
steps Mother must take toward the goal of
reunification with her Children, the Children yelled, “I
don’t want to live with her, she’s boring!” and asked
multiple times not to be returned to her. Mother
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frequently touched the Children when they did not
want to be touched or held, which made the Children
increasingly upset. Mother’s relationship with [A.A.S.]
did not improve. In general, Mother was not
compliant with services offered to her.
Kelsey Dolan, LSW, a social worker with King and
Associates, provided six (6) therapeutic supervised
visits to Mother and the Children from December 10,
2018, through April 22, 2019. Ms. Dolan testified as
follows[:] Throughout this period of time, Mother
continued to demonstrate a lack of parenting abilities.
She was unable to provide appropriate boundaries for
the Children. She ignored the clinician’s prompts and
suggestions for establishing boundaries and rules.
Mother’s thoughts and reasoning were distorted and
not reality-based, in that she refused to seek
employment, and continued to maintain that she
would be a “stay-at-home Mom,” despite the fact that
she had no home and no domestic partner on whom
she could rely financially. She insisted that the
Children be returned to her, and told the Children they
would be coming home with her soon. During the
April 22, 2019, visit, the Children were eager to end
the visit and frequently asked, “How many more
minutes are left?” and “What time do we leave?”
Ms. Dolan recommended that the visits decrease in
frequency to assist Mother, Ms. Knopf and the
Children in the transition toward termination of
Mother’s parental rights. Again, she recommended
that Mother undergo a mental health evaluation.
Mother testified at the hearing on the termination
petition as follow[:] She is 37 years old and has a
high school diploma. She is currently separated from
her spouse, who is her youngest son[‘s] father.[2]
Although she was employed before she had children,
she is now a “stay-at-home Mom.” She said that she
was hoping to get back together with [her youngest
2 The record reflects that Mother’s youngest son is her fourth child. The record
also indicates that at the time of the termination proceeding, that child’s birth
father had instituted a custody action against Mother. (See notes of
testimony, 5/23/19 at 156-160.)
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son’s birth] father, presumably as a solution to her
lack of housing and income. She believed that a
criminal court judge decided in April 2019 that she did
not have to have a mental health evaluation, and
provided that as her excuse for failing to comply with
the prior Orders of Court directing her to have one.
She believed that the current proceeding would result
in the Children being returned to live with her, despite
the fact that she had no home and was residing in a
homeless shelter. She did not appear to understand
the nature of the termination proceeding. She denied
being under the influence of any medication, but many
of her perceptions and representations were not
reality-based and [were] distorted. She did not
appear to be aware of the gravity of the situation. She
maintained that she loves [the C]hildren and wants
them to be returned to her.
Without the benefit of a thorough mental health
evaluation, the etiology and nature of Mother’s mental
health issues are unclear, yet she did not appear to be
stable, sensible, coherent or well-adjusted. It was
unclear whether she lacked credibility, whether her
mental health interferes with her ability to accurately
state the facts, or both.
Robert Allison, the Agency caseworker, reported that
prior to the hearing on May 23, 2019, the Children
stated they would prefer to continue living with their
Grandmother and wished to be adopted by her. The
Children are making progress in their Grandmother’s
home and their needs are being met.
It is unclear whether Mother has made any financial
contribution to the care of the Children since they
have been in Agency custody.
It is unclear whether Mother has given any cards or
gifts to the Children since they have been in Agency
custody.
Other than for brief periods of time during supervised
visitation, neither Mother nor [birth f]ather has
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performed any parental duties on behalf of the
Children for over 12 months.
By Order of Court dated January 25, 2019, [the trial
c]ourt appointed Catholic Charities of the Diocese of
Pittsburgh to provide counseling services to Mother
relative to the upcoming termination proceeding.
Despite making several attempts to reach out to her,
no successful contact was made, and as a result, no
counseling services were provided.
The Children’s Guardian ad litem, Diane Murphy, Esq.,
reports that the Children want to be adopted by their
maternal Grandmother. Ms. Murphy believes this
would be in the Children’s best interests.
The Children’s attorney, Emily L. Smarto, Esq.,
reports that the Children want to be adopted by their
maternal Grandmother.[3]
3 We note that the trial court entered one order terminating Mother’s parental
rights to A.A.S. at No. 7 of 2019 (“No. 7.”), L.T.S. at No. 8 of 2019 (“No. 8”),
and D.L.S. at No. 9 of 2019 (“No. 9”). The certified record at No. 8 contains
an original notice of appeal with a caption that lists all three docket numbers.
The certified record at No. 7 contains a photocopy of the notice of appeal filed
at No. 8. The certified record at No. 9 contains a photocopy of the notice of
appeal filed in No. 8. Therefore, Mother filed a notice of appeal listing three
docket numbers in each docket below. Subsequently, on August 14, 2019,
this court in Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super. 2019),
interpreted Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018)
(holding that quashal is required where litigants fail to file separate notices of
appeal from an order resolving issues on more than one docket number), as
prohibiting us from accepting a notice of appeal listing multiple docket
numbers, even if a separate notice of appeal is filed in each docket, as was
done by Mother in the appeal before us. Because Mother filed her notice of
appeal prior to Creese being decided, previous decisional law may have been
unclear insofar as requiring Mother to list only one docket number on each
notice of appeal. We further note that after Walker and before Creese, this
court did not quash an appeal where an appellant filed a notice of appeal
bearing multiple docket numbers in each docket. Moreover, this is a Children’s
Fast Track appeal that involves the lives of children. In such appeals, this
court has traditionally considered the disposition of a defective notice of
appeal on a case-by-case basis and has declined to dismiss or quash when the
defect does not prejudice the other parties. See In re K.T.E.L., 983 A.2d
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Order of termination, 6/11/19 at 4-17 (paragraph numbering, record citations,
and footnotes omitted).
Mother raises the following issue:
Whether the trial court erred in finding by clear and
convincing evidence that the Agency met its burden,
under 23 Pa.C.S.[A.] §2511(b)?
Mother’s brief at 4.
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re
Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012). “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. “[A] decision may
be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial
court’s decision, however, should not be reversed
merely because the record would support a different
result. Id. at 827. We have previously emphasized
our deference to trial courts that often have first-hand
observations of the parties spanning multiple
hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
745, 747 (Pa.Super. 2009) (holding that failure to file a Rule 1925(b)
statement concurrently with a Children’s Fast Track appeal is considered a
defective notice of appeal, to be disposed of on a case-by-case basis, but did
not result in dismissal or quashal where there was no prejudice to the other
parties as a result of the late filing). Therefore, we decline to quash this appeal
based on noncompliance with Rule 341 because Mother filed her notices of
appeal prior to Creese being decided and this is a Children’s Fast Track
appeal.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). “The trial court is free to believe
all, part, or none of the evidence presented and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[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).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which 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 Section 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
Section 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 Section 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). We have
defined clear and convincing evidence as that which is so “clear, direct,
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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), quoting
Matter of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998).
Here, the trial court terminated Mother’s parental rights pursuant to
Sections 2511(a)(2), (5), and (8), as well as (b). In her brief to this court,
Mother only challenges the termination under Section 2511(b). Therefore,
Mother waives any challenge to Section 2511(a). See Krebs v. United
Refining Co., 893 A.2d 776, 797 (Pa.Super. 2006) (reiterating that “[w]e will
not ordinarily consider any issue if it has not been set forth in or suggested
by an appellate brief’s statement of questions involved, Pa.R.A.P. 2116(a)”).
Even if Mother had not waived her challenge under Section 2511(a), we
would find that competent record evidence supports the trial court’s decision
to terminate Mother’s parental rights under Section 2511(a)(2). See
In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc) (restating
long-standing rule that in order to affirm parental termination rights, we need
only agree with trial court as to any one subsection of Section 2511(a), as
well as Section 2511(b)).
Subsections 2511(a)(2) and (b), 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:
....
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(2) The 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.
(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.A. § 2511(a)(2), (b).
This court has explained the Section 2511(a)(2) inquiry, as follows:
In order to terminate parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(2), the following three
elements must be met: (1) repeated and continued
incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal has caused the
child to be without essential parental care, control or
subsistence necessary for his physical or mental
well-being; and (3) the causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa.Super. 2015),
quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super. 2002). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [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 A.L.D., 797
A.2d at 340 (internal quotation marks and citations omitted).
Here, competent record evidence demonstrates that Mother has only
minimally complied with her permanency goals. It further demonstrates that
Mother has consistently refused to undergo a mental-health evaluation, to
obtain employment, and to secure stable housing. Mother continues to insist
that she is a stay-at-home mother even though she has been living in
homeless shelter and has no financial means to support the Children and no
intention and/or desire to obtain employment. Therefore, even if Mother did
not waive her challenge under Section 2511(a)(2), we would conclude that
the record supports the trial court’s factual findings and that the trial court did
not abuse its discretion in terminating Mother’s parental rights under
Section 2511(a)(2). The record demonstrates that the conditions that existed
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upon removal establish repeated and continued incapacity, abuse, neglect, or
refusal of Mother that caused the Children to be without essential parental
care, control, or subsistence necessary for their physical or mental well-being.
The record also supports the trial court’s conclusion that Mother continued to
lack capacity to parent the Children.
We now turn to whether termination was proper under Section 2511(b).
As to that section, our supreme court has stated 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.[A.] § 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. However, as discussed below,
evaluation of a child’s bonds is not always an easy
task.
In re T.S.M., 71 A.3d at 267. “In cases where there is no evidence of any
bond between the parent and child, it is reasonable to infer that no bond
exists. The extent of any bond analysis, therefore, necessarily depends on
the circumstances of the particular case.” In re K.Z.S., 946 A.2d 753,
762-763 (Pa.Super. 2008) (citation omitted).
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When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
While a parent’s emotional bond with his or her child
is a major aspect of the subsection 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.
[I]n 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. . . .
In re Adoption of C.D.R., 111 A.3d at 1219, quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011) (quotation marks and citations omitted).
Our supreme court has stated that, “[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., 71 A.3d at 268. The court directed that, in weighing the bond
considerations pursuant to Section 2511(b), “courts must keep the ticking
clock of childhood ever in mind.” Id. at 269. The T.S.M. court observed,
“[c]hildren are young for a scant number of years, and we have an obligation
to see to their healthy development quickly. When courts fail . . . the result,
all too often, is catastrophically maladjusted children.” Id.
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Here, Mother contends that the trial court abused its discretion when it
terminated her parental rights under Section 2511(b) because “the testimony
establishes that during visitation[,] Mother would show affection to the
[C]hildren and the [C]hildren would show affection to her.” (Mother’s brief
at 10.) Mother’s contention, however, fails to address the primary
consideration under Section 2511(b), which is the Children’s developmental,
physical, and emotional needs and welfare.
Here, the record supports the trial court’s determination that
termination of Mother’s parental rights is in the Children’s best interests. As
set forth by the trial court and as supported by the record,
the emotional bond between the Mother and the
Children, to the limited extent there is one, does not
indicate a beneficial relationship. The Children do not
want to spend time with her. They count down the
minutes before they get to leave when they are
visiting with her. They argue about whether they
have to talk to her on the phone. They desire to be
adopted by their Grandmother.
Order of termination, 6/11/19 at 19, ¶ 62. Indeed, Children’s guardian
ad litem reported that the Children desire to be adopted by their maternal
grandmother and that this would be in their best interest.
Based upon our review of the record, we find no abuse of discretion and
conclude that the trial court appropriately terminated Mother’s parental rights
under Sections 2511(a)(2) and (b).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2020
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