Adoption of: Y.R.L.P., Appeal of: L.E.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: Y.R.L.P., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: L.E.F., MOTHER :
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: No. 2193 EDA 2019
Appeal from the Decree Entered July 17, 2019
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2019-A0066
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 28, 2020
L.E.F. (Mother) appeals from the decree entered July 17, 2019, and
dated July 16, 2019, that granted the petition filed by the Montgomery County
Office of Children and Youth (OCY or Agency) seeking the involuntary
termination of Mother’s parental rights to Y.R.L.P. (Child), born in September
of 2015. We affirm.
Initially, we note that on April 25, 2019, the Agency filed its petition for
termination of Mother’s parental rights and alleged grounds under 23 Pa.C.S.
§ 2511(a)(1), (2), (8) and (b). The trial court provided a review of the factual
and procedural history of this case and its reasoning for terminating Mother’s
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* Former Justice specially assigned to the Superior Court.
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parental rights by attaching the notes of testimony from the July 16, 2019
hearing to its Pa.R.A.P. 1925(a) opinion.1 The trial court stated:
With respect to the birth [M]other, the [c]ourt similarly
concludes that Section 2511(a)(1) is not applicable here, as there
has not been a settled purpose of relinquishing a parental claim
or refusal and failure to parent that existed for more than six
months preceding the filing of the petition.
Section 2511(a)(8) is a bit more complicated with respect
to the birth [M]other because the reasons that the [C]hild was
removed from the home, although they relate to the extreme and
severe and very troubling abuse by a third party, also relate to
the fact that the birth [M]other at that time provided insufficient
protection for the [C]hild under all of the circumstances. Her own
testimony was that she and Mr. Darby,[2] I believe – but certainly
she -- was smoking marijuana the night before. She was asleep
at the time of the injuries. When the [C]hild was returned home
to her, she didn’t notice his severe injuries. She allowed him to
go back to sleep. And it wasn’t until several hours later when she
woke up that she realized that he was unresponsive and took him
to the hospital. She deserves credit for taking him to the hospital
and getting him the medical care that he then needed, but the
[c]ourt is concerned about her inattention initially and her inability
to recognize initially the severe injuries that he had suffered.
Because this is related to her marijuana use, it was
significant that the Office of Children and Youth in this case from
the very beginning of the case -- and she acknowledged this, as
did the caseworker -- emphasized with her the need to discontinue
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1 At the same hearing, B.J.P.’s (Father) parental rights to Child were also
terminated. Father filed a separate appeal with this Court, which is addressed
in a separate memorandum at No. 2449 EDA 2019.
2 Mr. Darby was Mother’s boyfriend, who was caring for the Child at the time
of the Child’s injuries, which included Stage V lacerations to the Child’s kidney
and his spleen and fractures to the Child’s clavicle and ribs. These serious
injuries were the result of Mr. Darby’s violent assault of the Child, causing the
Child to remain in the hospital for over a month. See N.T. 7/16/19, at 15-16,
89-90.
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the marijuana use and the need to make sure that she was in
mental health treatment as well as drug and alcohol treatment.
Her own testimony confirmed, as does the records of OCY,
that she repeatedly tested positive for marijuana use and that she
uses marijuana regularly, sometimes weekly, at one time when
she was younger, daily. And she has clearly not participated in
treatment to recover from marijuana use and to reduce that so
that she could be a more attentive and effective and protective
[M]other for a [C]hild who certainly initially had significant special
medical needs as a result of his very severe injuries.
But this case is not only about marijuana use, although that
is a significant factor that [Mother] hasn’t in any meaningful way
addressed during the entire duration of this case for almost two
years. In addition, her visits have been somewhat inconsistent,
although initially they were very consistent. But most concerning,
since late March of 2019, birth [M]other has had only six visits
with her [C]hild, despite many being offered. And she hasn’t
effectively found a way either to arrange for transportation, to
request transportation, to advocate for herself with the Office of
Children and Youth to make sure that the visits happen.
She did testify that the transportation by public
transportation from where she lives is lengthy and somewhat
difficult, but I didn’t hear any testimony that she advocated for a
solution or even explained to her caseworker what the problem
was and that transportation assistance would permit her to attend
visits with her [C]hild.
The visits with her [C]hild initially were the thing that she
did the best on and where she had quality, happy relations with
the [C]hild and happy visits, from the testimony, and they appear
to have enjoyed each other’s company.
Yet over the last several months, since March of 2019, she’s
attended extremely few visits, missed several visits, and didn’t
problem-solve when her phone was apparently not working in
June to use her mother’s phone or find another way to reach out
either to the caseworker or to the foster mother to try and make
sure that she could have a visit and have use of a phone in order
to confirm her visits.
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In addition, birth [M]other provided some evidence of
employment, but it is one letter at one moment in time in January
in her mother’s home that was never substantiated with any pay
stubs or any other documentation to confirm that she has
continued to be productively employed and to have sufficient
funds to provide for her [C]hild.
She did complete a parenting class, which is to her credit.
But similarly to the drug use, she made appointments for mental
health treatment, and her testimony indicated that she missed all
of the appointments in 2019, at least my notes reflect, except for
one in April. She missed her June appointment, her May
appointment, and her February and March appointments for
mental health treatment.
Under all the circumstances of this case, the birth [M]other
has not demonstrated sufficient commitment to and preparation
for and persistence in attending to all of the reasonable requests
that OCY imposed.
She also failed to work with the Time Limited Family
Reunification worker on any of the goals that OCY set for her.
While I believe that she loves her [C]hild and wishes to be
reunited with him, she has not taken sufficient steps and most
concerning in the last six months with respect to her mental health
treatment and with respect to the visits has really fallen off on the
most important issues that she needed to address in order to
establish that she could provide a safe, loving, stable home where
she would have adequate income and resources to support her
[C]hild and where she would have the adequate attention to
provide for him and to meet all of his needs.
Given the unfortunate fall-off in her visits since March of
2019, the [c]ourt concludes that the bond between the birth
[M]other and the [C]hild has been eroded and that she is not
functioning and has not functioned over the last almost two years
as the parental figure providing for his needs and meeting his
needs.
N.T., 7/16/19, at 203-08.
The trial court concluded that:
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With respect to the birth [M]other, L.E.F., under Section
2511(a)(2), I find that she has an incapacity to parent, and she
has not demonstrated her capacity to meet all of the requirements
of parenthood that OCY has reasonably asked her to try and
demonstrate.
I don’t find grounds for termination with respect to the birth
[M]other under Section 2511(a)(1), but I do find with respect to
the birth [M]other a ground for termination under Section
2511(a)(8) in that the conditions that led to the removal of the
[C]hild in the home, particularly her mental health issues, her
marijuana use, and the fact that that caused her to be inattentive
and gave the Office of Children and Youth cause for concern from
the very beginning and encouraged her to seek treatment for the
drug use and treatment for her mental health issues from the very
beginning have not been adequately addressed in the almost two
years since September of 2017.
Id. at 209-10.
With regard to section 2511(b) of the statute, which centers on the
needs and welfare of the Child, the trial court explained:
With respect to the birth [M]other, the [c]ourt finds that
there is love and affection between the birth [M]other and the
[C]hild, undoubtedly, but the failure to attend visits in the last
several months consistently since March, together with the failure
to act in a parental capacity to provide for his needs, to make a
home for him, and to provide for him consistently, and to
consistently make visits all have significantly undermined that
bond, and the [c]ourt concludes that it would not be to his
detriment to sever the bond with the birth [M]other….
By contrast, I will evaluate at this point the testimony
regarding [the Child’s] bonding and attachment to his health and
well-being in the foster home.
The testimony … both of the caseworker Ms. Plakis and of
Ms. Martin indicated that he is happy, thriving, and bonded in the
foster home, that he is loved by the foster parents and by the
foster siblings, that he turns to the foster parents to meet his
needs, to provide for him for comfort, to provide for him when
he’s hungry and when he’s tired, that all of his needs are met by
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the foster parents, and that there is a strong, reliable, and stable
parental bond with both of the foster parents and this [C]hild as
well as a healthy relationship with the foster siblings.
Therefore, from all of the evidence and testimony that I
considered this day, I find that … termination of the birth
[M]other’s parental rights will best serve the needs and welfare of
the [C]hild, and termination of the birth [M]other’s parental rights
… will not irreparably harm the [C]hild.
Id. at 211-13.
On appeal, Mother presents the following issues for our review:
1.) Whether there is sufficient evidence to support the findings
of [the trial court] that the [A]gency proved by clear and
convincing evidence the requirements of 23 Pa.C.S. [§]
2511(a)(2) for the involuntary termination of [b]irth [M]other’s
parental rights?
2.) Whether there is sufficient evidence to support the findings
of [the trial court] that the [A]gency proved by clear and
convincing evidence the requirements of 23 Pa.C.S. [§]
2511(a)(8) for the involuntary termination of [b]irth [M]other’s
parental rights?
3.) Whether [the trial court] abused its discretion in finding that
the developmental, physical and emotional needs and welfare of
[Child] will be best served by the termination of [b]irth [M]other’s
parental rights pursuant to 23 Pa.C.S. [§] 2511(b), when there is
a strong and loving bond between [b]irth Mother and the [C]hild,
and severance of that bond will cause irreparable harm to the
[C]hild?
Mother’s brief at 4.
We review an order terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
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evidentiary support for the trial court’s decision, the decree must
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). Moreover, we have explained that:
The 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. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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). If
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).
We are guided further by the following: Termination of parental rights
is governed by section 2511 of the Adoption Act, which requires a bifurcated
analysis.
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
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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) (citing 23 Pa.C.S. § 2511,
other citations omitted). 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. R.N.J., 985 A.2d at 276.
With regard to section 2511(b), we direct our analysis to the facts
relating to that section. This Court has explained that:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated, “Intangibles
such as love, comfort, security, and stability are involved in the
inquiry into the needs and welfare of the child.” In addition, we
instructed that the trial court must also discern the nature and
status of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that bond. Id. However, in
cases where there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists. In re K.Z.S.,
946 A.2d 753, 762-63 (Pa. Super. 2008). Accordingly, the extent
of the bond-effect analysis necessarily depends on the
circumstances of the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
In this case, the trial court terminated Mother’s parental rights pursuant
to section 2511(a)(2), (8) and (b). We need only agree with the trial court as
to any one subsection of section 2511(a), as well as section 2511(b), in order
to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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Here, we analyze the court’s decision to terminate under section 2511(a)(2)
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:
***
(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. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
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
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causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
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 A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Relative to section 2511(a)(2), Mother begins her argument by
suggesting that the Child’s injuries, which initially caused the Agency’s
interaction with the family, were not foreseeable and that she had no reason
to anticipate her boyfriend’s actions toward the Child. She also asserts that
she submitted to a psychological evaluation, both for her mental health issues
and her drug and alcohol issues, and that she began counseling. However,
Mother claims that the counseling problems were the fault of financial
problems and the death of a therapist. As for the required housing and a job,
she contends that she has had both throughout the case. Additionally, Mother
claims that her visits with Child went well, but did acknowledge that in the last
year she missed some visits due to a transportation issue, which she contends
was due to the Agency’s termination of help. Essentially, Mother asserts that
she merely needs more time and that with help from the Agency, she will be
able to remedy the problems facing her that will allow for the Child’s return to
her care.
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Despite Mother’s assertions as to the actions she has taken over the two
years since the Child has been in care, she does not address her incapacity
due to her continuing substance abuse and her mental health issues. Mother
overlooks her marijuana use, shown through consistent positive testing
results, and her own admission of continuing use and her failure to obtain
treatment. She also does not assert that she has complied with the
recommended mental health treatment. Moreover, Mother attributed her
inconsistent visitation during 2019 to transportation issues, having met with
the Child only 6 out of 17 offered visits. This is contrary to Mother’s consistent
visits at the beginning of the Child’s placement in September of 2017, which
has affected the bond between Mother and the Child. Namely, Mother
contends that if given more time and with assistance from the Agency, she
will be able to correct the problems that prevent the Child’s return to her
custody.
Having reviewed the record, we conclude that it supports the findings of
the trial court that Mother has not provided the Child with the essential
parental care, control and subsistence necessary for his mental and physical
well-being, and that Mother is unable or unwilling to remedy the causes of her
parental incapacity, neglect or refusal. While the trial court noted Mother’s
few positive accomplishments, it is clear that Mother will not, or cannot,
become a capable parent for the Child at any point in the foreseeable future.
Thus, we conclude that the Agency has carried its burden of proving the
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statutory grounds for termination under subsection 2511(a)(2). Therefore,
Mother is not entitled to relief.
Next, we consider whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to section 2511(b). We have
discussed the required analysis under section 2511(b) previously in this
memorandum. See In re Adoption of J.M., 991 A.2d at 324. Mother’s
argument centers on her assertion that she and the Child have a significant
bond, that their visits went well, and that the Child looks forward to the visits
and cries when the visits are over. However, she does acknowledge that the
bond has diminished over time since she has not visited with the Child on a
regular basis and since he has been living with his foster family. However,
Mother essentially contends that severing the bond between her and the Child
is not in the Child’s best interests.
Initially, we note that section 2511(b) does not require a formal bond
analysis. See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2019). Moreover,
expert testimony is not required; rather, a social worker or caseworker can
evaluate whether a bond exists with a biological parent and/or with a foster
parent. Id. To address this issue, we look to the trial court’s discussion of
the facts contained supra in this memorandum, wherein the court found that
Mother’s failure to consistently attend visits with the Child and her failure to
provide for his needs and welfare have undermined the bond that had existed.
The court also discussed the Child’s relationship with the foster parents and
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foster siblings to whom he looks to have his needs met. Based in part on the
testimony from two of the caseworkers, the court concluded that the bond
between the Child and the foster parents meets all his needs and that the
termination of Mother’s parental rights would not irreparably harm the Child.
We have reviewed the record and conclude that the trial court’s findings
and conclusions are supported by the evidence before the court. Thus, we
determine that the Agency has carried its burden regarding section 2511(b).
Again, we conclude that Mother is not entitled to relief.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/20
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