In the Interest of: M.M., a Minor ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M.M. AND J.W.M. No. 253 MDA 2015
Appeal from the Order entered January 13, 2015,
in the Court of Common Pleas of York County, Juvenile
Division, at No: CP-67-DP-0000228-2012
IN THE INTEREST OF: R.A.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M.M. AND J.W.M. No. 254 MDA 2015
Appeal from the Order entered January 13, 2015,
in the Court of Common Pleas of York County, Juvenile
Division, at No: CP-67-DP-0000229-2012
IN THE INTEREST OF: J.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M.M. AND J.W.M. No. 255 MDA 2015
Appeal from the Order entered January 13, 2015,
in the Court of Common Pleas of York County, Juvenile
Division, at No: CP-67-DP-0000230-2012
IN RE: ADOPTION OF: S.L.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.M.M. AND J.W.M. No. 256 MDA 2015
Appeal from the Order entered January 13, 2015,
in the Court of Common Pleas of York County, Juvenile
Division, at No: CP-67-DP-0000231-2012
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IN RE: ADOPTION OF: S.L.M. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: R.M.M. & J.W.M. No. 325 MDA 2015
Appeal from the Decree entered January 13, 2015,
in the Court of Common Pleas of York County, Orphans’
Court, at No: 2014-0023
IN RE: ADOPTION OF: R.A.M. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: R.M.M. & J.W.M. No. 326 MDA 2015
Appeal from the Decree entered January 13, 2015,
in the Court of Common Pleas of York County, Orphans’
Court, at No: 2014-0022
IN RE: ADOPTION OF: J.M.M. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: R.M.M. & J.W.M. No. 327 MDA 2015
Appeal from the Decree entered January 13, 2015,
in the Court of Common Pleas of York County, Orphans’
Court, at No: 2014-0020
IN RE: ADOPTION OF: M.F.M. IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: R.M.M. & J.W.M. No. 328 MDA 2015
Appeal from the Decree entered January 13, 2015,
in the Court of Common Pleas of York County, Orphans’
Court, at No: 2014-0021
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BEFORE: WECHT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 21, 2015
R.M.M. (Mother) and J.W.M. (Father) (collectively, Appellants) appeal
from the orders entered January 13, 2015, in the Court of Common Pleas of
York County, which changed the permanency goal to adoption with respect
to their four minor children, M.F.M., a female born in May 1997; R.A.M., a
male born in December 1998; J.M.M., a female born in October 2000; and
S.L.M., a female born in August 2003 (collectively, the Children). In
addition, Appellants appeal from the decrees entered that same day, which
terminated their parental rights to the Children involuntarily.1 We affirm.
On December 27, 2012, the York County Office of Children, Youth, and
Families (CYF) filed applications for emergency protective custody of the
Children. In its applications, CYF alleged that the police were called to
Appellants’ home on December 21, 2012. Application for Emergency
Protective Custody, 12/27/12, at 3. Upon arriving, the officers discovered
that the residence “was extremely dirty with numerous animals running
about and the house smelled of animal excrement . . . .” Id. Specifically,
the home contained “a pig, several lizards, snakes, rabbits, a dog, a cat,
1
The appeals from the trial court’s goal change orders at 253 MDA 2015,
254 MDA 2015, 255 MDA 2015, and 256 MDA 2015, were consolidated sua
sponte by this Court on March 24, 2015. The appeals from the decrees
terminating Appellants’ parental rights at 325 MDA 2015, 326 MDA 2015,
327 MDA 2015, and 328 MDA 2015, were consolidated sua sponte on April
14, 2015. We address both matters in this combined memorandum for ease
of disposition.
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several hamsters, large rats, ferrets, and birds . . . .” Id. at 3-4. Officers
also observed maggots in the home, as well as several sexual devices, which
were lying out in the open. Id. The Children were very dirty and stated
that they had not bathed in two weeks. Id. at 4. The Children were
transported to the hospital by ambulance. Id. During the trip, M.F.M.
indicated that the Children were homeschooled, but that J.M.M. and S.L.M.
could not read or write. Id. M.F.M. also reported that the Children were not
permitted to have contact with anyone outside the home. Id.
The applications further alleged that the Children were examined at
the hospital, and that all of them were found to be in various states of
intoxication. Id. at 5. The Children explained they became intoxicated after
Appellants provided the Children with beer, reportedly to get the Children to
fall asleep, and/or to “celebrate the pagan holiday, Yule.” Id. at 4. At some
point, Father assaulted J.M.M. Id. Appellants then informed the Children
that they were going to Walmart, and left the residence. Id. As a result of
these allegations, the police took protective custody of the Children. Id.
CYF was awarded temporary custody of the Children by verbal order of the
Honorable Harry M. Ness on December 22, 2012. Id.
On December 27, 2012, Judge Ness reaffirmed his prior verbal order
awarding custody of the Children to CYF. A shelter care hearing was held on
January 11, 2013, during which Appellants consented to the Children
remaining in foster care. N.T., 1/11/13, at 6. Judge Ness also stated that
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there would be no visits between Appellants and the Children because a
criminal investigation against Appellants was ongoing. Id. at 9. CYF filed
dependency petitions on January 30, 2013. A dependency hearing was held
on February 12, 2013, during which Appellants agreed that the Children
should be adjudicated dependent based on the environmental and
educational concerns raised by CYF. N.T., 2/12/13, at 5. Judge Ness then
ordered that visitation between the Children and Appellants would not be
permitted until further order of court, due again to the ongoing criminal
investigation.2 Id. at 19.
On March 10, 2014, CYF filed petitions to change the Children’s
permanency goals to adoption, as well as petitions to terminate the parental
rights of Mother and Father involuntarily. On April 3, 2014, Appellants filed
an answer to the CYF petitions. As part of their answer, Appellants included
a petition for the recusal of Judge Ness, in which they alleged that Judge
Ness made inappropriate comments during a permanency review hearing on
November 25, 2013. By order dated July 29, 2014, Judge Ness granted the
petition for recusal, and this matter was reassigned to the Honorable Andrea
Marceca Strong.
2
Judge Ness loosened this restriction during a March 28, 2013 status
hearing, by permitting Appellants to send the Children letters, which first
would be screened by CYF to ensure that Appellants did not say anything
inappropriate. N.T., 3/28/13, at 21.
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A goal change and termination hearing was held on October 29, 2014
and October 30, 2014. During the hearing, the trial court heard the
testimony of social worker, Dr. Kathy Minnich; therapists, Lisa MacKillop,
Jessica Green, and Lori Cape; school counselor, Nancy Rossi; CYF
caseworker, Jessica Jones; Mother’s parole officer, Rikki Martin; Mother; and
Father. The court also interviewed all four of the Children in camera, in the
presence of the parties’ attorneys. On January 13, 2015, the court entered
its orders changing the Children’s permanency goal to adoption, as well as
its decrees terminating the parental rights of Mother and Father to the
Children. Mother and Father timely filed notices of appeal on February 9,
2015, along with concise statements of errors complained of on appeal.3
3
It appears that Appellants filed one notice of appeal and concise statement
of errors complained of on appeal per child, each of which included the
docket numbers for both the change of goal and termination matters. On
February 18, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a), in which it indicated that Mother and Father mistakenly filed their
notices of appeal and concise statements with the clerk of courts, rather
than the orphans’ court. Trial Court Opinion, 2/18/15, at 2. The court
stated that it would forward the notices of appeal and concise statements to
the orphans’ court, subject to an additional filing fee. Id. We emphasize
that it was improper for Appellants to file a single notice of appeal as to each
child, rather than file a notice of appeal as to each termination decree and
goal change order. See Pa.R.A.P. 341, Note (“Where, however, one or more
orders resolves issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). However,
we decline to quash Appellants’ appeal, as we discern no prejudice stemming
from Appellants’ procedural misstep. In addition, we note that Appellants’
notices of appeal were timely filed in the orphans’ court, even though they
were not forwarded to the orphans’ court until February 18, 2015. See
Pa.R.A.P. 905(a)(4) (“If a notice of appeal is . . . filed in an incorrect office
within the unified judicial system, the clerk shall immediately stamp it with
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Appellants now raise the following issue for our review: “Did the trial
court abuse its discretion or commit[] an error of law in granting the petition
for involuntary termination of parental rights and petition for change of
goal?”4 Appellants’ Brief at 8 (unnecessary capitalization omitted).
We consider Appellant’s claim mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
the date of receipt and transmit it to the clerk which entered the order
appealed from, and upon payment of an additional filing fee the notice of
appeal shall be deemed filed in the trial court on the date originally filed.”).
4
While Appellants purport to challenge the orders changing the Children’s
permanency goals to adoption, their brief on appeal contains no substantive
discussion of this issue, nor does it contain any citation to relevant authority.
Accordingly, Appellants have failed to preserve any challenge to the change
of goal orders for our review, and we address only the decrees terminating
Appellants’ parental rights. See In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011), appeal denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C.,
991 A.2d 884, 897 (Pa. Super. 2010)) (“[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails
to develop the issue in any other meaningful fashion capable of review, that
claim is waived.”).
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
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).
In this case, the trial court terminated Appellants’ parental rights
pursuant to Sections 2511(a)(2), (5), (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), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we
analyze the court’s decision to terminate under Section 2511(a)(2) and (b),
which provides 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) and (b).
We first address whether the trial court abused its discretion by
terminating Appellants’ 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
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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).
Instantly, Appellants argue that the trial court erred or abused its
discretion by terminating their parental rights to the Children. Appellants’
Brief at 14-19. Appellants contend that it was impossible for them to
achieve reunification due to the no-contact order put in place by Judge Ness
prior to his recusal, and that the trial court “failed to afford proper
consideration” to these circumstances. Id. at 14-15, 19. Appellants further
argue that Judge Ness erred by refusing to appoint separate counsel for
each parent. Id. at 20.
The trial court concluded that it was “at best, speculative” that
Appellants ever could make the changes in their lives necessary to care for
the Children, and that returning the Children to Appellants’ care would result
in instability and emotional damage. Trial Court Opinion, 1/9/15, at 23, 38.
The court found, inter alia, that Appellants have not taken responsibility for
their actions, and for the harm they have caused to the Children. Id. With
respect to Appellants’ claim that they should have received separate
counsel, the trial court emphasizes that Appellants never requested separate
counsel. Trial Court Opinion, 2/18/15, at 6.
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After a thorough review of the record in this matter, we conclude that
the trial court did not abuse its discretion by involuntarily terminating
Appellants’ parental rights to the Children. During the termination hearing,
CYF caseworker, Jessica Jones, testified that both Appellants received
sentences of incarceration as a result of their actions with respect to the
Children. N.T., 10/29/14-10/30/14, at 38-39. Mother pled guilty to four
counts of endangering the welfare of a child, and received a sentence of
11½ to 23 months’ incarceration with credit for time served. Id. at 38-39.
Mother was incarcerated from May 25, 2013 until June 13, 2014. Id. at 39.
Father pled guilty to four counts of endangering the welfare of a child, as
well as one count of simple assault, and also was incarcerated on May 25,
2013. Id. At the time of the termination hearing, Father remained
incarcerated. Id. at 40. Mother currently resides in a one-room apartment,
which shares a kitchen, bathroom, and living area with other tenants. Id. at
41. Mother receives disability payments, and Ms. Jones believed that these
payments result from Mother’s mental health issues. Id. at 42.
Ms. Jones further testified that CYF created a series of family service
plans aimed at addressing Appellants’ mental health and parenting concerns.
Id. at 35-37. With respect to Mother’s mental health, Mother received a
psychological evaluation in 2012, prior to being incarcerated. Id. at 106-07.
In addition, CYF received a mental health treatment plan from T.W. Ponessa
on September 18, 2014. Id. at 82. However, CYF had not yet received any
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documentation indicating that Mother had followed through with her
recommended treatment. Id. It also was reported that Father received
mental health treatment prior to being incarcerated, and that he completed
a psychological evaluation, but CYF did not receive any documentation to
confirm this. Id. at 106, 201-02.
Officer Rikki Martin testified that she works for York County Adult
Probation, and that she has been supervising Mother since she was paroled
in June 2014. Id. at 96. Officer Martin explained that a condition of
Mother’s parole was to undergo a mental health evaluation, which Mother
completed on July 10, 2014. Id. at 97-98. As a result of this evaluation, it
was recommended that Mother continue with regular outpatient counseling.
Id. at 98. Officer Martin stated that she contacted Mother’s counselor, and
that Mother reportedly missed her most recent appointment in October
2014. Id. at 99. Further, Mother had not attended counseling since
September 2014. Id. Officer Martin admitted that she was unaware how
often Mother’s counseling appointments are scheduled, but explained that
Mother has failed to provide her with a signed release, despite several
requests, that would have allowed Officer Martin to acquire this information.
Id. at 100-01.
Dr. Kathy Minnich testified that she is a social worker at Northeastern
School District, where J.M.M. and S.L.M. are enrolled. Id. at 12-14. At the
time of the hearing, J.M.M. was in the sixth grade, but read at a third grade
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level. Id. at 16. When S.L.M. first was enrolled in school, she was placed in
the third grade, but “at that point she didn’t even know all of her letters
. . . .” Id. at 16. At the time of the hearing, S.L.M. was in the fourth grade,
and read at approximately a second grade level. Id. at 25-26. Dr. Minnich
explained that J.M.M. and S.L.M reported little prior schooling experience,
and emphasized that their educational deficits are not due to a lack of
cognitive ability, but due to “a lack of exposure.” Id. at 13-14, 22, 31-32.
Dr. Minnich stated that J.M.M. and S.L.M. are continuing to “make gains at
an impressive level,” and that they there are “thriving.” Id. at 14-15.
Ms. Nancy Rossi testified that she is a school counselor at Central York
Middle School, where R.A.M. formerly was enrolled. Id. at 252, 258-59.
Ms. Rossi explained that R.A.M. was operating approximately three to four
years behind his peers at the time he began school. Id. at 252-53. When
R.A.M. entered the eighth grade, it was determined that he was reading at
about a third grade level. Id. at 255. During this time, R.A.M. struggled
with stress and anxiety, and occasionally became overwhelmed. Id. at 254-
57. Ms. Rossi explained that R.A.M. became “extraordinarily anxious and
emotional” if he began to focus on his past experiences, and that he “would
sometimes melt down and not be able to do anything.” Id. at 254-58.
Nonetheless, R.A.M. was able to overcome these difficulties and pass the
eighth grade. Id. at 258-59.
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Dr. Lisa MacKillop testified that she provided therapy for M.F.M.,
J.M.M., and S.L.M., and that none of these children has been fully able to
process the trauma they experienced while residing with Appellants. 5 Id. at
142. J.M.M. has expressed that she remains fearful that she will be hit when
others yell at her. Id. at 128. J.M.M. stated that this fear stems from her
experience with Appellants. Id. Similarly, S.L.M. reported to Ms. MacKillop
that she has difficulty feeling safe and trusting others, due to the way she
was treated while residing in her prior home. Id. at 125. Dr. MacKillop
observed that M.F.M. suffers from difficulty developing trust, tends to be
irritable, and has difficulty expressing her frustrations. Id. at 123. M.F.M.
did not state that these difficulties resulted from her time in Appellants’ care,
however. Id. at 123-24.
Therapist Jessica Green testified that she began providing therapy for
R.A.M. in September 2013. Id. at 155. R.A.M. does not like to discuss his
experiences while living with Appellants, and R.A.M. reports that discussing
his past puts him in a bad mood. Id. at 150-51, 158. Ms. Green noted that
R.A.M. has displayed “increased maladaptive behaviors around [the] time of
court surrounding anything to do with his parents.” Id. at 152.
5
Dr. MacKillop produced a series of reports, which were entered into
evidence as CYF Exhibits 5, 6, and 7. Dr. MacKillop’s reports indicate that
M.F.M., J.M.M., and S.L.M. began receiving therapy from her in March 2013.
CYF Exhibit 5 at 1; CYF Exhibit 6 at 1; CYF Exhibit 7 at 1 (unpaginated).
M.F.M. stopped receiving therapy from Dr. MacKillop in August 2014, and
was scheduled to transition to a new therapist. CYF Exhibit 5, at 1.
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Ms. Lori Cape testified that she provided R.A.M. mobile therapy from
May 2013 until May 2014. Id. at 162. R.A.M.’s treatment goals were to
“learn and demonstrate socially acceptable ways of coping with stress or
anger along with learning to problem solve within the home that he was in
and learning to adjust his behavior accordingly.” Id. at 162. Ms. Cape
explained that R.A.M. tended to use avoidance, anger, and eating as his
primary coping mechanisms, but that he tried doing other things, including
exercise and talking through his problems with his foster mother. Id. at
163. R.A.M. reported to Ms. Cape that his biological family was one of his
“triggers,” and described incidents of past abuse. Id. at 166-67.
Mother testified that she suffers from “severe depression, severe
anxiety and a panic disorder,” and that the condition of her former residence
was a result of her depression. Id. at 268. When discussing the condition
of the home, Mother denied that she left sexual devices lying out in the
open, but stated that she kept them “secured,” and that, “I believe the
police officers put them there and took pictures of them.” Id. at 285-87,
324. Mother also indicated that she has been diagnosed with post-traumatic
stress disorder, and agoraphobia. Id. at 272. According to Mother, she is
waiting to see a psychiatrist at T.W. Ponessa. Id. at 270. In the meantime,
Mother is receiving mental health medications from her regular physician.
Id. Mother stated that she also sees a counselor once per week. Id.
Mother admitted that she recently missed “a couple” of appointments,
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however. Id. Mother claimed that her current medications are working
better than the combination of medications she was on at the time the
Children were placed in foster care, and that she would be in a position to
care for the Children if she were to obtain suitable housing. Id. at 272, 310.
Mother stated that she is in the process of looking for a new apartment. Id.
at 280. Mother also indicated that she visits with Father monthly, and that
she expects that she and Father will “be back together” after he is released.
Id. at 313.
Father testified that the condition of the home at the time the Children
were placed in foster care was a result of Mother’s depression, the Children’s
failure to assist her in cleaning the residence, and “a lack of my presence.”
Id. at 335, 337, 353. Father’s also blamed the Children’s educational
deficiency on Mother’s mental health. Id. at 339, 350. Father later
admitted, “I could have stepped up and cleaned [the house] and didn’t. Also
their education, . . . I could have been more involved with that and made
sure that they got the education that they needed.” Id. at 344. Father
explained that he pled guilty to simple assault because of an incident during
which “I grabbed [J.M.M.] and yanked her off of her bed, her side hit the bed
frame. And, unfortunately, she ended up hurting her rib.” Id. at 344.
Father admitted that J.M.M. suffered a rib fracture as a result of this
incident. Id. at 349.
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Father further testified that he suffers from high anxiety, obsessive
compulsive disorder, and panic disorder. Id. at 336. Father stated that he
participated in monthly counseling and took Prozac prior to the Children
being removed from his care. Id. at 336-37. Father underwent a
psychological evaluation while incarcerated, and he currently sees a
psychiatrist as well as a counselor and is prescribed medications. Id. at
344-45. Father claimed that he intends on continuing with mental health
treatment upon his release. Id. at 346. Father noted that he would be
eligible for parole in March 2015. Id. at 331.
Accordingly, the record supports the finding of the trial court that
Appellants’ parental incapacity has caused the Children to be without
essential parental care, control, or subsistence, and that Appellants cannot,
or will not, remedy this incapacity. Mother lives in a one-bedroom
apartment that is not suitable for the Children, and Father is incarcerated.
Further, Mother has failed to demonstrate a serious commitment toward
improving her mental health, as she recently missed “a couple” counseling
appointments. Father has yet to demonstrate that he will continue with
mental health treatment once released from incarceration. Also troubling is
Appellants’ hesitance to accept responsibility for their actions. As observed
by the trial court, Father primarily blamed Mother’s mental health and the
Children for the condition of his previous home, and minimized his
responsibility for fracturing J.M.M.’s rib. Similarly, Mother blamed her
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mental health for the condition of the home, and alleged that the police
conspired against her by placing her sexual devices in inappropriate
locations and then taking pictures of them. While Appellants argue that their
reunification efforts were thwarted by the no-contact order put in place by
Judge Ness, the restrictions placed on Appellants’ contact with the Children
do not make up for the fact that neither parent is, or will be, capable of
caring for the Children any time soon.
Additionally, we reject Appellants’ claim that Judge Ness committed
reversible error by failing to appoint separate counsel for both parents. The
record reveals that Appellants initially applied for court-appointed counsel
but the request was denied because Father made too much money working
as a truck driver. Appellants then retained Charles J. Hobbs, Esquire, to
represent them.6 During the shelter care hearing, Attorney Hobbs requested
that Judge Ness “consider” appointing separate counsel due to a possible
conflict of interest. N.T., 1/11/13, at 6. However, Attorney Hobbs stated
that Appellants “were willing to waive any conflict,” and that, “[r]ight now I
am comfortable with it.” Id. Judge Ness reminded Attorney Hobbs that
Appellants were not entitled to court-appointed counsel due to Father’s
income. Id. at 6-7. After Appellants were incarcerated in May 2013,
Appellants were no longer able to afford Attorney Hobbs. This issue was
6
Attorney Hobbs continues to represent Appellants in the instant appeal.
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raised during a permanency review hearing on June 6, 2013, and addressed
by Judge Ness as follows.
[Counsel for CYF]: I believe that the parents are asking that
Attorney Hobbs no longer represent them and perhaps we could
address that because he’s private counsel.
ATTORNEY HOBBS: They privately retained me, Your Honor, and
given their current circumstances, they don’t think my
representation is necessary at this point.
THE COURT: Well I don’t know about the necessary part, but
certainly -- they’re not financially able to meet your -- we’ll
figure that out. Don’t worry about that. Are they dissatisfied --
are you dissatisfied with him? You would still like him to be your
attorney, however, you can’t pay him because you’re not
working anywhere, sir; is that correct?
[Father]: Right.
THE COURT: As between the two of you, do you feel that he can
adequately represent you together, one attorney for the pair of
you, or do you believe that you each need to have your own
attorney because one of you believes that the other is at fault or
vice versa? No conflict with having one attorney?
[Father]: No conflict.
THE COURT: Are you requesting court appointed counsel?
[Father]: I guess we have no choice, yes.
THE COURT: All right, AND NOW, this 6th day of June 2013,
Attorney Charles Hobbs is appointed to represent -- assuming
he’ll accept the appointment?
ATTORNEY HOBBS: Yes, sir.
THE COURT: -- both parents in this matter. Fixed it.
ATTORNEY HOBBS: Thank you, Your Honor.
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N.T., 6/6/13, at 7-9.
Thus, Father agreed that Attorney Hobbs could be appointed to
represent both parents. Further, our review of the record does not reveal
that Appellants, or Attorney Hobbs, requested separate counsel at a later
date. Mother requested a new attorney during a hearing on September 11,
2014, but she did not suggest that Attorney Hobbs should not act as her
counsel due to a conflict of interest. Instead, she complained that Attorney
Hobbs had not been “aggressive” enough in representing her. N.T.,
9/11/14, at 71. During the goal change and termination hearing, Mother
stated that she previously had requested a separate attorney in the context
of her criminal matter, but she did not state that Attorney Hobbs should not
be representing her in the present case. N.T., 10/29/15-10/30/14, at 278.
Thus, Appellants’ claim merits no relief.
We next consider whether the trial court abused its discretion by
terminating Appellants parental rights under Section 2511(b). Here,
Appellants’ brief contains no specific argument with respect to Section
2511(b). Thus, Appellants have waived any claims relating to that section.
See W.H., 25 A.3d at 339 n.3. However, to the extent Appellants’ previous
claims can be construed as a challenge to the termination of their parental
rights under Section 2511(b), we offer the following analysis.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
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analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. 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. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted)).
In the instant matter, the trial court concluded that terminating the
parental rights of Appellants would serve the needs and welfare of the
Children. Trial Court Opinion, 1/9/15, at 32-35, 43-46. The court
emphasized that none of the Children has a healthy or beneficial bond with
Appellants, and that none of the Children wishes to return to Appellants’
care. Id.Again, our review of the record supports the trial court’s conclusions.
Ms. Jones testified that, to her knowledge, Appellants last saw the Children
on December 21, 2012, which was the day they were removed from the
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home. N.T., 10/29/14-10/30/14, at 44. Ms. Jones explained that the
Children received a series of cards and letters from Appellants between late
August or early September 2013 and October 2014. Id. at 48-49, 111.
Some of Appellants’ letters were not delivered to the Children, because CYF
deemed them to be inappropriate. Id. at 49-50, 112, 193-94, 204-05, 208-
09. M.F.M., J.M.M., and S.L.M. also wrote letters to Appellants. Id. at 47,
193, 210. When asked to summarize the content of these letters, Ms. Jones
stated, “[t]hey were doing well [] where they are at. They want to stay
where they are at. They don’t get hit or yelled at like they did with mom
and dad. They talked about school and being able to have friends.” Id. at
193.
Ms. Jones reported that M.F.M. has requested that she be able to visit
Father “behind glass,” but only so she could “see the inside of the prison,”
and “tell her father, ‘Look at me and see how well I am doing.’” Id. at 45.
M.F.M. did not request visits with Mother. Id. Ms. Jones opined that M.F.M.
has no parental bond with Appellants, as she has not seen them in nearly
two years, and has had no contact with them outside of letters. Id. at 62.
Ms. Jones later opined that M.F.M. has an unhealthy bond with Appellants.
Id. at 69. M.F.M. “appears comfortable” in her foster home, and seems to
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have “a normal parental relationship” with her foster parents.7 Id. at 70.
With respect to R.A.M., Ms. Jones stated that there was no indication that he
had a parental bond with either parent. Id. at 74. R.A.M. also did not
request visits with either parent. Id. at 45. R.A.M. “appears comfortable” in
foster care. Id. at 75.
Ms. Jones further testified that J.M.M. does not have a “strong”
parental bond with Appellants, and noted that she has “been very adamant
that she does not want to return to her parents[’] care.” Id. at 77. Ms.
Jones noted that J.M.M. sometimes does not get along with her foster
parents because of “normal 14 year old stuff” like not wanting to do her
homework, but that otherwise they “have a lot of fun together.” Id. at 78.
Similarly, Ms. Jones testified that S.L.M. does not have a parental bond with
Appellants, and explained that she “has been adamant as well that she does
not want to return to her parents[’] care.” Id. at 80. Ms. Jones stated that
S.L.M. has “a strong bond with the foster family.” Id. J.M.M. and S.L.M.
requested a visit with Mother in October 2014, but did not request a visit
with Father. Id. at 45-46.
M.F.M. indicated that the termination of Mother and Father’s parental
rights would be a “good thing,” because “they messed up as parents. They
shouldn’t have the right to call us their kids when they didn’t really treat us
7
At the time of the termination hearing, J.M.M. and S.L.M. resided together
in the same foster home, while M.F.M. and R.A.M. resided in their own
separate foster homes.
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like their kids.” Id. at 244. M.F.M. explained that she is “a lot happier” in
foster care. Id. at 246. M.F.M. stated that she would like to see Father,
“but mostly to show him that everything he said about me when I was living
with him is wrong,” and that she would want no further visits with Father
after that. Id. at 244, 247. M.F.M. noted that she has received letters from
Mother and Father, and that she recently responded to Father’s letter. Id.
at 246. M.F.M. indicated that she most likely would continue to write to
Father, “because I don’t see that we will ever have that daughter-father
connection or relationship.” Id. at 246. M.F.M. stated that she last wrote to
Mother “like a year ago,” and that “I want nothing to do with her. I don’t
want her in my life anymore.” Id. at 247.
R.A.M. stated that he would like to see Mother and Father “[a]s soon
as possible.” Id. at 237. He indicated that he would like to visit with Mother
for “[m]aybe 20 minutes” at “McDonald[’]s or something like that,” and that
he would like these visits to occur once per month. Id. at 237-38. R.A.M.
stated that he “[n]ever” wants to live with Mother, but that he wants to
“move on with the next family.” Id. at 239. With respect to Father, the trial
court noted that, “[y]ou told me before that you wanted to see your dad
maybe with the glass,” to which R.A.M. responded, “[y]eah, that is still with
him.” Id. at 237.
J.M.M. explained that she and her siblings “would get beat for stupid
stuff” while living with Mother and Father, and recounted an incident during
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which “we ate one of our dad’s cereal bars that he takes to work and we got
beat for that.” Id. at 230. J.M.M. noted, “I want to see my mom but not
my dad. I never had a good relationship with him.” Id. at 231. J.M.M.
clarified that she would want to see Mother “[o]nce every two months.” Id.
at 231. J.M.M. stated that she wants to be adopted, and that she recently
wrote to Father “so I could convince him to sign the papers,” because “I
don’t want to wait for like three years . . . when I get adopted. I don’t want
to be that old when I get adopted.” Id. at 233.
S.L.M stated that that she would like to see Mother and Father, but
later clarified that, “I want to see my mom but not my dad.” Id. at 221,
226. S.L.M. noted that she would like to see Mother “for a visit,” but that
she does not want to live with Mother. Id. at 226-27. S.L.M. indicated that
both Mother and Father have written to her, and that she has written to
Mother and Father, but “[n]ot that often.” Id. at 222, 225. S.L.M.
explained that, in her correspondence with Mother and Father, she discussed
“[e]verything and I am being baptized and that I want to be adopted.” Id.
at 222.
Thus, the record supports the finding of the trial court that the
Children do not want to return to the care of Appellants. In contrast, the
Children are comfortable in foster care, and slowly are making up for lost
time by progressing in school, and by learning to cope with their past
traumas. While the Children may still retain some bond with Appellants, it is
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clear that this bond is outweighed by Appellants’ parental incapacity, and by
the Children’s need for permanence and stability. See C.D.R., 111 A.3d at
1220 (concluding that the appellant mother’s bond with C.D.R was
outweighed by the mother’s “repeated failure to remedy her parental
incapacity,” and by C.D.R.’s need for permanence and stability).
Accordingly, because Appellants failed to preserve any challenge to the
change of the Children’s permanency goals to adoption and because the trial
court did not abuse its discretion by terminating Appellants’ parents rights to
the Children involuntarily, we affirm the orders and decrees of the trial
court.
Orders affirmed. Decrees affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 8/21/2015
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