Adoption of: M.M., Appeal of: G.L. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: M.M., JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: G.L., MOTHER :
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:
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: No. 1281 WDA 2022
Appeal from the Decree Entered October 7, 2022
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): No 18 Adopt 2022
IN RE: ADOPTION OF: R.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: G.L., MOTHER :
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:
:
:
: No. 1282 WDA 2022
Appeal from the Decree Entered October 7, 2022
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): No 19 Adopt 2022
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED: March 28, 2023
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G.L. (Mother) appeals1 from the decrees,2 entered in the Fayette County
Orphans’ Court, terminating her parental rights to her two minor children,
M.M., Jr. (born April 2019) and R.M. (born May 2016) (Children).3 Mother
acknowledges that due to her incarceration, drug addiction, and unstable
housing, she did not meet any of her Family Service Plan (FSP) goals. Mother
argues, however, that Fayette County Children and Youth Services Agency
(CYS) did not provide her with services in meeting those goals during her
incarceration, and, consequently, she was denied the opportunity to fully
engage in reunification services. After our review, we find this claim meritless,
and we affirm.
On October 15, 2020, Children were removed from Mother’s care as a
result of Mother’s substance abuse, mental health issues, and unstable
housing. On April 4, 2022, CYS filed petitions to terminate Mother’s parental
rights to Children pursuant to the Adoption Act.4 The court held a termination
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1 Mother has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), by filing a separate notice of appeal for each Orphans’
Court docket number. See In re: M.P., 204 A.3d 976 (Pa. Super. 2019)
(applying Walker holding in termination of parental rights context).
2By order dated December 5, 2022, this Court sua sponte consolidated these
appeals as they involve related parties and issues. See Pa.R.A.P. 513.
3 On October 7, 2022, the Orphans’ Court granted Father’s petitions to
voluntarily relinquish his parental rights to Children.
4 23 Pa.C.S.A. §§ 2101-2938.
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hearing on August 24, 2022. At the hearing, the court heard testimony from
three CYS caseworkers, a Justice Works5 supervisor, and Mother, who was
represented by counsel.6
Terry Brown, a Justice Works supervisor, testified that Mother
completed 3 of 18 classes in the nurturing parent program. He stated that
CYS sent Justice Works the referral for Mother in February 2021, that Mother
began classes on March 1, 2021, and, after April 5, 2021, she did not attend
more classes. N.T. Termination Hearing, 8/24/22, at 9-12. Brown also
testified that during the period from February 23, 2021, through January 27,
2022, Mother attended only 41 of 106 supervised visits with Children.7 Id.
at 13. Brown also explained that Mother was subject to random drug screens
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5 Justice Works is a child and family services agency, which CYS utilizes to
support its efforts “to create safety, permanency, and well-being for Fayette
children.” See https://www.justiceworksyouthcare.com/2014/12/17/fayette-
county-children-and-youth-services-selects-justiceworks-for-intensive-in-
home-services/ (last visited 3/9/23).
6 The court appointed Brent Eric Peck, Esquire, as guardian ad litem for
Children. Attorney Peck represented Children’s legal interests as well,
perceiving no conflict. See N.T. Termination Hearing, 8/24/22, at 6. In Re:
T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) (“[D]uring contested termination-
of-parental-rights proceedings, where there is no conflict between a child’s
legal and best interests, an attorney-guardian ad litem representing the child’s
best interests can also represent the child’s legal interests.”). Attorney Peck
has filed a statement in lieu of a brief on appeal, indicating his agreement with
Judge Cordaro’s termination decrees. See Statement in Lieu of Brief,
1/10/23.
7 Additionally, Mother confirmed 28 visits, but did not appear for them.
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twice a week, and that she tested positive on many occasions, including during
visits. Id. at 15, 19-20.8 He testified that efforts were made to schedule
twice-a-week drug screens, whether by visits or phone calls, however, either
Mother was not always available or staff was unable to reach her by phone.
Id. at 27.
CYS caseworker Tiffany Marghella, the first caseworker to handle this
case, testified that Mother’s FSP consisted of the following: a drug and alcohol
assessment; successfully addressing drug and alcohol concerns; obtaining a
mental health evaluation; maintaining appropriate housing; completing
parenting classes; maintaining a bond with Children while they were in foster
care; and cooperating with CYS. Id. at 30-33. She stated that she met with
Mother to go over the FSP goals in February 2021, that Mother signed the
plan, and that the plan was reviewed every six months. Caseworker Marghella
noted that she met with Mother on March 22, 2021, went over the service
plan with her and provided her another copy since Mother stated she had lost
her copy. Id. at 40. In August 2021, the plan remained the same because
Mother had not completed the goals. Id. at 33-34. Specifically, Marghella
stated that Mother did not keep in touch with CYS, CYS had difficulty reaching
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8 Counsel for CYS read the laboratory drug screen reports into the record,
stating that Mother tested positive for cocaine, barbiturates, buprenorphine,
marijuana, morphine, and methamphetamine, or combinations of these drugs,
on the following dates: March 2, 4, 8, 19, 21 of 2021; April 8, 20, 27 of 2021;
May 4, 2021; June 15, 29 of 2021; July 1, 6, 8, 27, 29 of 2021; September
7, 2021; October 22, 2021; December 2, 2021; and January 1, 13, 2022. See
N.T. Termination Hearing, supra at 15-17. On her last visit with Children,
January 27, 2022, Mother refused the drug test. Id. at 28.
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her because her whereabouts and phone number changed often, Mother was
inconsistent with visits and, ultimately, Mother’s visitation rights were
suspended on May 18, 2021, after she missed four visits in a row, Mother
consistently failed drug screens, was noncompliant with drug and alcohol
counseling, was discharged from nurturing parenting classes for
noncompliance, and did not compete a mental health evaluation. Id. at 35-
42. Mother did undergo a mental health evaluation on May 3, 2021, which
recommended drug and alcohol therapy as well as mental health therapy,
however, Marghella testified Mother did not complete any of the goals related
to drug and alcohol therapy, mental health therapy, or housing. Id. at 41-
43.
CYS caseworker Jesse Davis, Mother’s caseworker from September
2021 to April 2022, testified that during that period, “she never had a good
phone number for [M]other. . . [and] I did not have a good address for her
either.” Id. at 54-55. Caseworker Davis also testified that Mother continued
to test positive on drug screens even after completing inpatient rehabilitation
at Pyramid Rehabilitation Center, that Mother admitted to her she “was still
using” as of December 2021, and that Mother refused Davis’s offer to help her
get back into rehabilitation or get her into a shelter. Id. at 55-56. Davis
clarified that the only time Mother reached out to her was when she contacted
Davis to ask “if she could sign over the [C]hildren to her mother.” Id. at 59.
Davis concluded that Mother did not complete any of the goals in the FSP. Id.
at 60.
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On March 28, 2022, the FSP goal was changed from reunification to
adoption. Id. at 73. On April 18, 2022, Mother was incarcerated.
Caseworker Jessica Roberts, the caseworker at the time of the
termination hearing, testified that she began working with Mother on May 1,
2022, that Mother was incarcerated at that time, and that she spoke with
Mother about her FSP goals. Id. at 67-68. Roberts confirmed that at that
time, and as of the date of the termination hearing, Mother had reached none
of those goals. Id. at 68-69.
Finally, Mother testified. Mother stated that she was incarcerated in
county jail on April 18, 2022 as a result of a probation violation, and, after
three months, she was transferred to a state correctional facility. Mother
testified that caseworker Roberts never visited her while in she was
incarcerated, that she called caseworker Roberts several times to try to
arrange for video visits with Children, and that no one from CYS mentioned
services available to her while incarcerated. Id. at 76-78. Mother also
asserted that, prior to her incarceration, and contrary to caseworker
Marghella’s testimony, “[CYS] never offered me anything. They said that I
had to do everything on my own.” Id. at 82.
Following the hearing, the court granted the petitions for termination,
finding CYS had presented clear and convincing evidence that termination was
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appropriate under sections 2511(a)(1), (5), and (b), 9 and finding that
Mother’s testimony regarding CYS’s failures was not credible. See Trial Court
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9 Section 2511 provides, in relevant part:
(a) General rule.--The rights of a parent in regard to a child may be
terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.
***
(5) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency for a
period of at least six months, the conditions which led to the
removal or placement of the child continue to exist, the parent
cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which led to the
removal or placement of the child within a reasonable period of
time and termination of the parental rights would best serve the
needs and welfare of the child.
(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)(1), (5), (b).
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Opinions, 11/17/22, at 5. See also In re C.P., 901 A.2d 516, 520 (Pa. Super.
2006) (party seeking termination of parental rights bears burden of proving
by clear and convincing evidence that at least one of eight grounds for
termination under 23 Pa.C.S.A § 2511(a) exists and that termination
promotes emotional needs and welfare of child set forth in 23 Pa.C.S.A §
2511(b)).
Mother filed a notice of appeal. Both Mother and the trial court have
complied with Pa.R.A.P. 1925. Mother raises the following issue for our
review: whether the trial court erred in granting CYS’s petition to terminate
Mother’s parental rights to M.M., Jr., and R.M., when CYS failed to provide
adequate reunification services while Mother was incarcerated. See
Appellant’s Brief, at 3.
We review a trial court’s decision to involuntarily terminate parental
rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,
563 (Pa. Super. 2003). Our scope of review is limited to determining whether
the trial court’s order is supported by competent evidence. Id. See also In
re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (even where facts could
support opposite result, appellate court must not second guess trial court and
impose its own credibility determinations and judgment); In re Adoption of
A.C.H., 803 A.2d 224, 228 (Pa. Super. 2002) (trial court, as finder of fact, is
sole determiner of witness credibility).
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The Honorable Linda R. Cordaro made the following findings with respect
to the evidence supporting termination of Mother’s parental rights to Children
pursuant to section 2511(a)(5):
Here, [Children] had been in the [] foster home since October
2020. Section 2511(a)(5) includes that
. . . the conditions which led to the removal or placement of
the child continued to exist, the parent cannot or will not
remedy the condition which led to the removal or placement
of the child within a reasonable period of time, and the
termination of parental rights would best serve the needs
and welfare of the child.
Here, the conditions [that] led to [Children’s] placement involved
Mother’s drug use. CYS subsequently developed a [FSP] with the
goal of achieving reunification, and the requirements of the [FSP]
appropriately addressed the issues that caused the placement of
[Children]. Specifically, the [FSP] required Mother to undergo a
drug and alcohol assessment, to maintain sobriety; to address her
mental health needs; to maintain a bond with [Children] through
regular visitation; and to complete parenting classes. Although
Mother did enter into a FSP, and she acknowledged that she
understood the [FSP], she failed to address her drug addiction.
By her own admission, prior to her incarceration on April 18, 2022,
she had not been sober since 2017. She also acknowledged that
she had not had [Children] in her care since October 2020.
Trial Court Opinion, 11/17/22, at 10-11.10 Thus, the court’s findings that
Children had been removed for at least six months, the conditions that led to
placement of Children continued to exist, and that Mother either could not or
did not remedy those conditions in a reasonable period of time based on
services available to her, is supported in the record. In re A.R., supra.____________________________________________
10We note Judge Cordaro wrote separate opinions for M.M., Jr., and R.M.,
which are virtually identical; therefore, it is unnecessary to cite to both
opinions.
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Moreover, the court found that M.M., Jr., who was age three at the time of the
hearing, and R.M., who was age six at the time of the hearing, had been in
the foster home for 22 months, that the foster family was a permanency
option for Children, and that Children identified foster family as their family,
and, as such, concluded termination would best serve the developmental,
physical, and emotional needs and welfare of Children. See 23 Pa.C.S.A. §§
2511(a)(5), (b).
After our review, we find that CYS presented sufficient evidence to
support the court’s decrees terminating Mother’s parental rights pursuant to
sections 2511(a)(5) and (b), and we find no error or abuse of discretion. See
In re A.R., supra; see also In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc) (this Court can affirm trial court’s decision regarding
termination of parental rights with regard to any single subsection of section
2511(a)).
Furthermore, the court found Mother’s testimony that CYS did not
provide services for reunification prior to her incarceration not credible. We
will not disturb that finding. In re Adoption of A.C.H., supra. Furthermore,
Mother’s claim is belied by the record. CYS presented clear and convincing
evidence that Mother was provided ample services and opportunity to
complete her goals and achieve reunification, but that Mother made neither
significant nor consistent strides to do so. Despite CYS’s reasonable efforts in
providing services, Mother was unable to maintain sobriety or complete any
of her FSP goals. Mother’s attempt to place blame on CYS for failing to support
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her through her incarceration is, simply stated, misguided. See In re N.C.,
909 A.2d 818, 823 (Pa. Super. 2006) (“[W]hen the child welfare agency has
made reasonable efforts to return a foster child to . . . [his or] her biological
parent, but those efforts have failed, then the agency must redirect its efforts
towards placing the child in an adoptive home.”); see also In re N.W., 859
A.2d 501, 508 (Pa. Super. 2004) (“To address the issue of foster home drift,
the [Adoption and Safe Families Act] has made a commitment to, and
Pennsylvania statutes mandate, permanency planning such that, ‘when a child
is placed in foster care, after reasonable efforts have been made to establish
the biological relationship, the needs and welfare of the child require CYS and
foster care institutions to work toward termination of parental rights, placing
the child with adoptive parents.’”) (citations omitted).
Here, the record establishes that CYS’s efforts at providing services to
Mother from the time Children were removed were reasonable, that Mother
was unable to meet her FSP goals despite those services, and that after the
goal was changed from reunification to adoption, CYS’s focus on permanency
planning for Children with the foster family was appropriate. See In re
S.C.B., 990 A2d 762 (Pa. Super. 2010).
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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