Term. of Par. Rights to G.P.M. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
TERMINATION OF PARENTAL RIGHTS : IN THE SUPERIOR COURT OF
TO: G.P.M., A MINOR : PENNSYLVANIA
:
APPEAL OF: C.K., MOTHER : No. 1853 MDA 2019
Appeal from the Decree Entered October 15, 2019,
in the Court of Common Pleas of York County
Orphans’ Court Division at No. 2019-0100a
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 26, 2020
C.K. (“Mother”) appeals from the October 15, 2019 decree entered in
the Court of Common Pleas of York County, Orphans’ Court Division,
involuntarily terminating her parental rights to her dependent child, G.P.M.,
male child, born in August 2014 (“Child”), pursuant to the Adoption Act,
23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).1 After careful review, we
affirm.
The record reflects that on September 18, 2019, the York County Office
of Children, Youth & Families (the “Agency”), the Child’s guardian ad litem,
Mother’s counsel, and the Child’s counsel entered into a joint stipulation and
stipulated to the following, in relevant part:
An Application for Emergency Protective Custody was
filed by the Agency on June 11, 2018. In the
1 We note that the record reflects, in the same decree, the orphans’ court
terminated the parental rights of the Child’s natural father, M.P.M. (“Father”).
Father did not appeal the termination decree.
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[application], it was alleged that the Agency has been
involved with the [C]hild since September of 2014 due
to concerns regarding the Mother’s mental health. On
or about June 10, 2018, the Agency received a referral
in regard to the [C]hild due to the Mother reporting
him as missing. The paternal grandparents have
rights of partial custody every other weekend from
Friday at 4:30 p.m. until Sunday at 6:00 p.m. The
paternal grandparents were exercising their rights of
custody during the weekend commencing on June 8,
2018. The Mother had contacted the York City Police
Department to report the [C]hild missing sometime
between Saturday, June 9, 2018, and Sunday,
June 10, 2018. The Mother insisted that the [C]hild
was with her, sitting on the porch stoop in the middle
of the night, and disappeared. The York City Police
and canine units searched for the [C]hild; however, it
was later discovered that the [C]hild was with the
paternal grandparents for the scheduled visitation.
The Mother continued to insist that the [C]hild had
been with her and became very confused as to time
and place. At one point in time[,] the Mother told the
Agency representative that she did not know it was
Sunday until the police officer told her. It was alleged
that the Mother has a history of mental health issues
and substance abuse. The Agency had concerns for
the Mother’s mental health and the safety of the
[C]hild should he be returned to her custody. The
paternal grandparents were willing to be a resource
for the [C]hild. The Agency completed an emergency
caregiver investigation as to the paternal
grandparents and they were approved. . . .
In an Order for Emergency Protective Custody dated
June 11, 2018, sufficient evidence was presented to
prove that continuation or return of the [C]hild to the
home of Mother and Father was not in the best
interest of the [C]hild. Legal and physical custody of
the [C]hild were transferred to the Agency. The
[C]hild was to be placed in relative care.
In a Shelter Care Order dated June 12, 2018,
sufficient evidence was presented to prove that
continuation or return of the [C]hild to the home of
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Mother and Father was not in the best interest of the
[C]hild. Legal and physical custody of the [C]hild
were awarded to the Agency. The [C]hild was to
remain in foster care with an emergency caregiver.
A Dependency Petition was filed by the Agency on
June 14, 2018. The allegations contained in the
Dependency Petition were consistent with the
allegations raised in the Application for Emergency
Protective Custody with the following averments[:] At
the Shelter Care Hearing on June 12, 2018, the
Mother arrived late, close to when the proceeding was
concluding. . . . It was alleged that at the Hearing,
the Mother had trouble speaking and was slurring her
words and appeared to be lethargic. The Mother
explained that she was tired and agreed to be drug
tested after the Hearing and an appointment was
made at Averhealth; however, the Mother failed to
appear for the appointment. The Agency caseworker
observed the Mother’s prescription and counted the
amount of pills which was less than the amount that
should be present if Mother were taking the pills as
prescribed.
On July 13, 2018, the [C]hild was adjudicated
dependent and legal and physical custody were
awarded to the Agency. The [C]hild was to be placed
in kinship care. The goal initially established was
return to parent or guardian. In the Order for
Adjudication and Disposition, the [orphans’ c]ourt
made the following findings of fact[:] The Agency had
been involved with the [C]hild since September of
2014 due to Mother’s mental health. By Order dated
October 17, 2014, temporary legal and physical
custody of the [C]hild were awarded to the Agency
upon discharge from the hospital. By Order dated
November 6, 2014, the [C]hild was adjudicated
dependent and legal and physical custody were
returned to his Mother. In an Order dated October 2,
2015, juvenile court jurisdiction was terminated. In
November of 2017, a Motion to Suspend Mother’s
Rights of Custody and Visitation was filed due to
Mother’s mental health and concerns regarding the
[C]hild’s safety. Subsequently, the Motion was
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vacated and custody was returned to the Mother. On
or about June 10, 2018, the Agency received a referral
in regard to the [C]hild due to Mother reporting the
[C]hild missing[, as detailed above]. . . . On June 28,
2018, the Dependency Hearing was continued at the
request of Mother’s counsel. . . .
In a Permanency Review Order dated November 27,
2018, the [orphans’ c]ourt . . . [found, among other
things, that t]here had been moderate compliance
with the Permanency Plan by the Mother [and] . . . .
Mother had made moderate progress toward
alleviating the circumstances which necessitated the
original placement . . . .
In a Permanency Review Order dated April 30, 2019,
the [orphans’ c]ourt . . . [found, among other things,
that t]here had been no compliance with the
Permanency Plan by the Mother [and] . . . . Mother
had made no progress toward alleviating the
circumstances which necessitated the original
placement[.] . . . A new placement goal of adoption
was established.
Stipulation of counsel, 9/18/19 at 4-8 ¶17-¶23 (paragraph numbers omitted;
stipulations regarding Father omitted).
On June 11, 2019, the Agency filed a petition for involuntary termination
of Mother’s parental rights under Sections 2511(a)(1), (2), (5), (8), and (b).
The orphans’ court held a termination hearing on September 24, 2019. On
October 15, 2019, the orphans’ court entered a decree terminating Mother’s
parental rights to the Child. Mother filed a timely notice of appeal, together
with a concise statement of errors complained of on appeal in compliance with
Pa.R.A.P. 1925(a)(2)(i). Thereafter, the orphans’ court filed a “statement”
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pursuant to Rule 1925(a)(2)(ii) that incorporated the reasons for termination
that it set forth in its October 15, 2019 termination order.2
Mother raises the following issue for our review:
Did the [orphans’ c]ourt abuse its discretion and/or
err as a matter of law in terminating Mother’s parental
rights when the Agency failed to meet its burden that
termination of parental rights was warranted under
[Sections] 2511(a)(1), (2), (5), (8) and [] (b) and
said decision of the [orphans’ c]ourt was not
supported by sufficient evidence?
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)].
2We note that the October 15, 2019 termination order sets forth the orphans’
court’s findings of fact and conclusions of law with respect to its entry of the
October 15, 2019 termination decree.
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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,
weighty and convincing as to enable the trier of fact to come to a clear
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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).
In this case, the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(1), (2), (5), and (8), as well as (b). We have long held
that, in order to affirm a termination of parental rights, we need only agree
with the orphans’ court as to any one subsection of Section 2511(a), as well
as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the termination decree pursuant to
Subsections 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
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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).
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.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.
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
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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, in terminating Mother’s parental rights, the orphans’ court found
that Mother had made no progress towards alleviating the circumstances that
necessitated the removal of the Child from Mother’s care and that there had
been no compliance with the permanency plan by Mother. (Order of court,
10/15/19 at 4.) The orphans’ court further found that
[t]he primary concern for Mother was her financial
stability, stable housing, and her mental health needs.
The [orphans’ c]ourt finds that Mother has not
appropriately addressed her mental health needs.
The [orphans’ c]ourt further finds that Mother has
failed to document that she has achieved safe and
appropriate housing to achieve reunification. The
testimony before the [orphans’ c]ourt establishes that
Mother is currently homeless. As part of her
testimony, she indicated that she is identifying her
mother’s residence as her current residence but
acknowledged that she is not staying there overnight
every evening. The [orphans’ c]ourt further finds that
the testimony established that Mother has not
appropriately documented lawful sources of income
that would be adequate to financially support the
[C]hild if reunification was achieved.
Order of court, 10/15/19 at 5.
Three different teams were put in place to work with
Mother, one through Pressley Ridge Family
[E]ngagement, one through Pressley Ridge Intensive
Family Services, and one through Commonwealth
Clinical Group. All three teams closed. The intensive
family services team closed unsuccessfuly due to
Mother’s noncompliance, as did the Commonwealth
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Clinical Group, which was to address Mother’s mental
health needs.
Id. at 7-8.
The [orphans’ c]ourt also notes for the record that
Mother did attend the [termination] hearing; that she
did step out of the hearing on several occasions, and
that she refused to be drug tested prior to the hearing
and again during the hearing when requested to be so
tested directly by the [orphans’ c]ourt.
Id. at 9.
We 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 upon removal establish repeated and continued
incapacity, abuse, neglect, or refusal of Mother that caused Child to be without
essential parental care, control, or subsistence necessary for his physical or
mental well-being. The record also supports the trial court’s conclusion that
Mother continued to lack capacity to parent Child.
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”
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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).
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 1108, 1121 (Pa.Super. 2010) (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. . . .
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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.
In determining that termination of Mother’s parental rights favored
Child’s needs and welfare, the trial court concluded that
there will be no long-term, negative impact on the
[C]hild by [] involuntarily terminat[ing Mother’s]
parental rights. The [orphans’ c]ourt in fact believes
it is in the [C]hild’s best interests and that his needs
and welfare will be best served by the termination of
Mother[’s] . . . parental rights.
The Agency’s caseworker testified that the [sic] she
last spoke with the [C]hild on the Wednesday prior to
the [termination] hearing regarding the [C]hild’s
placement in foster care and that the [C]hild stated to
her that he wanted to remain with his foster parents
and not return to Mother . . . .
Order of court, 10/15/19 at 8-9.
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The record further reflects that the Child’s caseworker testified that the
Child has a “minimal” bond with Mother that the caseworker described as
“unhealthy.” (Notes of testimony, 9/24/19 at 72.) The caseworker also
testified that on July 26, 2019 and August 2, 2019, the Child refused to attend
visits with Mother. (Id. at 72-73.) The caseworker further stated that
termination of Mother’s parental rights would be in Child’s best interest
because the Child is “thriving in his foster home” and is “bonded with his foster
family.” (Id. at 82.)
The record further reflects that the Child’s guardian ad litem stated at
the termination hearing that he is “one hundred percent in agreement with
the Agency’s request to terminate rights because that is what the [C]hild
needs. The [C]hild needs permanency.” (Id. at 132.) Additionally, the Child’s
counsel stated that he
did meet with [the Child], discussed with him as best
[as counsel] could given his age, his situation. He is
comfortable and happy where he is. He says he
enjoys it there.
. . . . [H]e did seem very comfortable, very happy.
He did call foster mother Mom while [counsel] was
there . . . . [Counsel] think[s the child] enjoys being
happy and safe there.
Id.
Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the orphans’ court appropriately terminated
Mother’s parental rights under Sections 2511(a)(2) and (b).
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/26/2020
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