In Re: G.R., a minor, Appeal of: J.C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: G.R., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.C., NATURAL MOTHER,
Appellant No. 20 WDA 2015
Appeal from the Order December 4, 2014
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): TPR 140 of 2014
BEFORE: PANELLA, SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 07, 2015
J.C. (“Mother”) appeals from the December 4, 2014 order that granted
the petition filed by the Allegheny County Office of Children, Youth and
Families (“CYF” or the “Agency”), seeking to involuntarily terminate Mother’s
parental rights to her son, G.R. (“Child”), who was born in January of 2013,
pursuant to 23 Pa.C.S. § 2511(a)(2) and (b) of the Adoption Act. 1 We
affirm.
On July 31, 2014, CYF filed a petition to involuntarily terminate
Mother’s parental rights to Child. On November 18, 2014, the trial court
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1
In separate orders dated December 4, 2014, the trial court involuntarily
terminated the parental rights of Child’s father, G.R.R. a/k/a G.R. a/k/a A.R.,
as well as any unknown father, to Child. Neither Father nor any unknown
father filed an appeal, nor are they a party to the instant appeal.
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held a hearing on the petition. At the hearing, CYF presented the testimony
of Justine Walz, the CYF caseworker assigned to the family and Terry
O’Hara, a psychologist licensed in Pennsylvania who is a court-appointed
forensic evaluator for the trial court, as an expert witness. N.T., 11/18/14,
at 9-10, 61. Mother testified on her own behalf.
Based on the testimonial and documentary evidence, the trial court set
forth the background of this case as follows:
The child was born [in January of 2013]. The baby was
born premature and was placed in the NICU immediately after
birth. Staff from Children’s Hospital contacted CYF and
expressed a concern about the parents’ ability to care for the
newborn child. CYF first made contact with the family on
January 8, 2013. After a brief investigation, CYF determined
that Mother had an extensive mental health history including
diagnoses of schizoaffective disorder, mild mental retardation,
depression, bipolar and ADHD. Mother had a service coordinator
through Mercy Behavioral Health and was active in medication
management at the time of the child’s birth. CYF had a number
of concerns regarding Father’s mental health issues and criminal
history. Mother reported that there were domestic violence
issues between her and Father.
CYF continued to monitor the case, and the child was
released from the hospital and into the care of the parents.
Shortly thereafter, the caseworker noticed that the child had
been vomiting for a few days. She advised Mother to take the
child to the hospital immediately. Mother disregarded her advice
and instead waited for a number of days before taking the child
to the emergency room. While at the hospital, Mother reported
that she had not fed the child for approximately twelve hours
because she did not want him to vomit. CYF also discovered
that the family home had a bed bug infestation. At the time the
child was admitted to the hospital, CYF had significant concerns
about the parents’ ability to change diapers, to feed properly,
and to care for the child.
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On February 17, 2013, CYF requested an Emergency
Custody Authorization. The child was placed in the care of S.H.
and F.H. (hereinafter foster parents) ten days after removal. On
May 8, 2013[,] the child was adjudicated dependent pursuant to
42 Pa.C.S. §6302(1) as to both Mother and Father. A Family
Service Plan (FSP) was developed for Mother[,] and she was
directed to continue attending mental health treatment, follow
any recommendations, attend an AFA individual and interactional
evaluation and follow any recommendations, and assist CYF in
scheduling an Alliance for Infants Evaluation. Mother was also
ordered to attend Domestic Violence counseling, obtain a PFA
against Father, address pending criminal charges, address
parenting and attend classes, address mental health and
cooperate with her case manager, and to sign all necessary
releases.
Mother completed domestic violence counseling at the
Women’s Center and Shelter. However, Mother continued to
maintain a romantic relationship with Father despite ongoing
domestic violence. She was minimally compliant with her mental
health goal, and was inconsistent with her treatment. CYF
provided Mother with a number of services along with referrals
to the Office of Intellectual Disabilities and TRAC [(Three Rivers
Adoption Council)].
During visits, Mother displayed irrational fears about
common health issues. Specifically, she insisted that the child
had a staph infection when he had a diaper rash. Mother
demanded that the child be taken to the emergency room on a
number of occasions for relatively mild afflictions such as a slight
fever and a runny nose. Mother’s visits with the child have
never progressed to unsupervised while the case was open.
Mother completed parenting programs through Arsenal and
TRAC but made very little progress in appropriately parenting
the child during visits. Despite extensive instruction, Mother’s
limitations have impacted her ability to supervise, provide
appropriate care, and ensure the child’s safety.
Dr. O’Hara conducted an interactional evaluation of the
child and Foster Parents on April 22, 2013. The child was
relaxed and comfortable during the interactional with foster
parents. They exhibited positive parenting skills and were
attune[d] to the child’s needs. There was also an interactional
evaluation of the child and Mother[,] and an individual evaluation
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of Mother scheduled for the same day, but Mother failed to
appear.
On June 3rd 2013, Dr. O’Hara conducted an individual
evaluation of Mother[,] and an interactional between her and the
child. Mother exhibited extremely poor parenting skills and was
not attune[d] to his cues. Mother displayed a number of
concerning behaviors including forcing a bottle in his mouth on
several occasions and jerking him suddenly. Dr. O’Hara opined
that he would have serious safety concerns if Mother was
permitted unsupervised contact with the child. He expressed
doubt that she could ever reunify with the child.
Dr. O’Hara conducted an interactional evaluation of Foster
Parents and Child on May 14, 2014. They continued to
demonstrate strong parenting skills[,] and the child was securely
attached to Foster Parents. There was also an interactional
evaluation between Mother and the child. Mother showed some
improvement in that she was more calm and relaxed. However,
collateral information provided to the doctor revealed that
Mother had not been compliant with her mental health
treatment.
Foster Parents participated in an interactional evaluation
with the child on September 23, 2014. The child displayed a
secure attachment to Foster Parents. Dr. O’Hara opined that
[a]doption by the Foster Parents would meet the child’s needs
and welfare[,] and that adoption would outweigh any possible
detriment in the termination of parental rights.
Dr. O’Hara conducted a final set of evaluations on
September 23, 2014. He reported ongoing concerns about
Mother’s mental health as she had not been participating in
treatment since June. Mother showed a poor understanding of
the child’s capabilities and did not appropriately supervise him.
At the time of that evaluation, Dr. O’Hara opined that
termination was appropriate[,] as Mother was unable to
appropriately meet the needs and welfare of the child. Dr.
O’Hara did not believe that Mother had the capability to progress
past unsupervised visits based upon her lack of progress.
. . . At the date of termination, Mother had attended two medical
visits and [a]sthma training. The child continues to suffer from
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[a]sthma[,] and requires a nebulizer and a humidifier in his
bedroom at night.
Trial Court Opinion, 2/4/15, at 1-5 (unnumbered pages) (footnote omitted).
On December 4, 2014, the trial court involuntarily terminated Mother’s
parental rights to Child pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
On January 2, 2015, Mother timely filed a notice of appeal, along with
a concise statement of matters complained of on appeal, pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Mother raises one issue:
Did the trial court abuse its discretion and/or err as a matter of
law in concluding that termination of Appellant’s parental rights
would serve the needs and welfare of the child pursuant to 23
Pa.C.S. § 2511(b)?
Mother’s Brief at 5.
We review an appeal from the termination of parental rights in
accordance with the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). 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.; R.I.S.,
36 A.3d 567, 572 (Pa. 2011) (plurality opinion). As has been
often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 613 Pa. 371, 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a
decision may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. Id.
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As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at
28-30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency
and termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
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., 837 A.2d 1247, 1251 (Pa. Super. 2003)). As this
Court may affirm the trial court’s decision concerning the termination of
parental rights with regard to any one subsection of section 2511(a), In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), we will focus on
section 2511(a)(2) and (b), which provide as follows:
§ 2511. Grounds for involuntary termination
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(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) and (b).
While we would address the trial court’s findings relative to section
2511(a), In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008)
(en banc), Mother concedes that there was competent, clear and convincing
evidence in the record to support the trial court’s termination of her parental
rights under section 2511(a)(2). Mother’s Brief at 9. Because we agree
with the trial court’s findings and Mother’s concession with respect to section
2511(a), we next review whether the requirements of section 2511(b) are
satisfied. In re Adoption of C.L.G., 956 A.2d at 1009.
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This Court has stated that the focus in terminating parental rights under
section 2511(a) is on the parent, but it is on the child when considering
section 2511(b). Id. at 1008. In reviewing the evidence in support of
termination under section 2511(b), our Supreme Court recently 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. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
The trial court stated the following with regard to section 2511(b):
Mother could not provide the child with a healthy or safe
environment and has been unable to remedy the condition which
brought him into care. Mother continues to suffer from ongoing
parenting deficits including supervision and lack of
understanding regarding the child’s capabilities. Additionally,
Mother suffers from extensive mental health issues and cognitive
limitations which have rendered her incapable of internalizing the
skills that Achieva and TRAC have provided to her. Mother has
been sporadic at best in complying with mental health
treatment. Mother displayed a wide range of emotions during
these evaluations most notably externalizing responsibility for
the child remaining in placement.
The child has been in the care of the foster parents since
he was one month old and has developed a primary bond with
them. They have consistently presented with stability and
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positive parenting skills. Furthermore, Dr. O’Hara opined that
the attachment between the child and Mother is not a secure
one. It is the opinion of this [c]ourt that the termination of
parental rights is in the child’s best interests[,] and that adoption
by the foster parents outweighs any possible detriment in the
termination of parental rights of Mother.
The [c]ourt has considered the nature and status of the
bond between Mother and the child[,] and considered the effect
of severing it. The [c]ourt does find that CYF met their burden
by clear and convincing evidence and that it is in the best
interests of the child to grant the petition to terminate parental
rights. The order of the [c]ourt should be affirmed.
Trial Court Opinion, 2/4/15, at 5-6 (unnumbered pages).
Mother contends that the trial court abused its discretion and erred as
a matter of law, under section 2511(b), in concluding that the termination of
her parental rights would serve the needs and welfare of Child. Mother’s
Brief at 12. Moreover, Mother argues that the trial court failed to analyze
the bond between Mother and Child and the emotional effect that
termination would have on Child. Id. She claims that the court improperly
shifted the focus of its consideration to the fault of Mother in failing to meet
her FSP goals. Id.
After review, we discern no merit in Mother’s argument. With regard
to the bonding analysis, we have stated that the court is not required to use
expert testimony, but may rely on the testimony of social workers and
caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). This
Court has observed that no bond worth preserving is formed between a child
and a natural parent where the child has been in foster care for most of the
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child’s life, and the resulting bond with the natural parent is attenuated. In
re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008).
Here, CYF presented the testimony of its caseworker, Ms. Walz, and
did in fact present a psychological expert, Dr. O’Hara, with respect to the
bond analysis. Ms. Walz testified that Child has been in placement with his
foster parents, who are adoptive resources, since mid-February of 2013,
when he was six weeks old. N.T., 11/18/14, at 16. Ms. Walz testified that
Child, who was born prematurely, has asthma and that his foster parents
keep a nebulizer with him to use if he starts wheezing, and they utilize a
humidifier in his room at night. N.T., 11/18/14, at 34. Ms. Walz also
testified that while Mother had attended asthma training, it was difficult to
assess its usefulness because Mother tends to misinterpret and overreact to
Child’s symptoms. Id. at 35.
Ms. Walz testified that despite parenting training, Mother does not
maintain her attention on Child during her visits, and she is a safety risk to
Child because she cannot do two things at one time. N.T., 11/18/14, at 36-
37. In fact, Mother’s visits with Child were never unsupervised because
Mother has had little improvement in her parenting abilities, even after
completing parenting classes. Id. at 37-38. Mother attended only two-
thirds of the potential visits and cancelled the remaining third. Id. at 39.
CYF was concerned that Mother had maintained a relationship with Father
throughout the history of the case, even after she successfully completed a
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domestic violence program. Id. at 24-25. Ms. Walz expressed concern that
Mother minimizes all domestic violence incidents and does not even
acknowledge Father’s domestic violence, mental health, and anger
management issues, for which he has not been treated. Id. at 25.
Ms. Walz testified that CYF removed Child from the parents’ home
because: 1) they both lack parenting skills and have mental health issues;
2) there were issues with domestic violence and Father’s drug and alcohol
issues; and 3) Child had remained in care because of those issues. N.T.,
11/18/14, at 45. In addition, other problems existed, including Father’s lack
of housing, poor anger management, mental health issues, and his failure to
address those matters. Id. Ms. Walz also stated that Mother’s mental
health and mental retardation diagnoses impact her ability to appropriately
supervise, parent, and ensure Child’s safety. Id. Ms. Walz testified that
termination of the parental rights of both parents would meet Child’s needs
and welfare, stating the following:
The parents haven’t been able to show much stability at
all. Father hasn’t addressed any of his goals, including drug and
alcohol, mental health, anger management, housing, [and]
visitation. Mother, her mental health continues to be of concern.
She’s not compliant with her treatment and has not been for
some time now.
Her limitations also are significant, impact on her ability to
supervise, provide appropriate care, [and] ensure his safety, and
she hasn’t been consistent either in her visitation although better
than Father’s, but it hasn’t been consistent over the course of
the case.
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And there’s been numerous concerns again in regards to
her housing as well. [Child] needs to be in an environment
where he’s going to get the appropriate treatment that he needs
where all of his needs are going to be consistently addressed.
N.T., 11/18/14, at 47-48.
Additionally, Ms. Walz testified that Child is presently in an
environment where his foster parents address all of his needs. N.T.,
11/18/14, at 48. On cross-examination by Mother’s counsel, Ms. Walz
testified that Mother potentially could be evicted from her current housing,
and that Father spends a significant amount of time at Mother’s home. Id.
at 48-49. She also testified that Mother had missed one out of every four of
her visits with Child during the two months preceding the termination
hearing. Id. at 53.
On cross-examination by the guardian ad litem, Ms. Walz stated that
Mother needed to improve her parenting skills, and that her improvement in
parenting skills was not sufficient to progress to unsupervised visitation and
reunification with Child. N.T., 11/18/14, at 55. Ms. Walz also explained
CYF’s concern that, although there had not been any additional domestic
violence reports by Mother against Father, Father had not completed any
domestic violence classes or satisfied his other treatment goals. Id. at 57.
Ms. Walz testified that she regularly observed Child in the home of his foster
parents. Id. She has observed that Child is completely comfortable in the
home of his foster parents, and that Child is always happy and energetic.
Id. Ms. Walz testified that the foster mother is very affectionate, and that
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Child is very affectionate towards her, goes to her for comfort, and appears
very bonded with her. Id. at 57.
Dr. O’Hara conducted several individual evaluations of Mother, and
interactional evaluations of Child with Mother, and several interactional
evaluations of Child with his foster parents, but only one interactional
evaluation of Child with Father. N.T., 11/18/14, at 62-63. Dr. O’Hara
testified that, at the time of his evaluations in June of 2013, he observed no
evidence that Mother could appropriately care for Child, and that, if Mother
were permitted to have unsupervised contact with Child, Child would have
safety issues. Id. at 72-73, 75.
Dr. O’Hara testified that in his September 2014 evaluations, he noted
that Mother exhibited some positive parenting skills but was slow to respond
to Child, who is very active, and had a poor understanding of Child’s
developmental capabilities as a two-year-old child. N.T., 11/18/14, at 80-
81. Dr. O’Hara observed that Child’s foster mother did a good job of closely
monitoring and following Child. Id. at 80. Dr. O’Hara was also concerned
Mother disclosed that at the time of Child’s removal from her care, Child was
living in a house infested with bed bugs, which she viewed as the only
alternative to living in the streets. Id. at 81-82. Dr. O’Hara opined that
there is no evidence that Mother is able to meet Child’s needs and welfare,
and that the prognosis for her to have unsupervised contact with Child is
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extremely poor, as she has not benefitted from intensive services. Id. at
83.
Dr. O’Hara observed that on several occasions during his evaluation
with Mother in September of 2014, Child attempted to leave. N.T.,
11/18/14, at 82. Dr. O’Hara believed that Child’s attempts to leave reflected
the inconsistency in visits involving Child and Mother, and that Child did not
have a secure bond with Mother because she was not attuned to his needs.
Id. Dr. O’Hara testified that the effect on Child of terminating Mother’s
parental rights would be that Child would have the benefits of adoption,
including security and permanency from the foster parents. Id. Dr. O’Hara
did not believe that Child’s attachment with Mother is a secure attachment,
and he opined that the termination of Mother’s parental rights would serve
Child’s best interests. Id. at 83. Dr. O’Hara cocnluded that the benefit of
adoption outweighed any possible detriment to Child from the termination of
Mother’s parental rights. Id. On cross-examination by Mother’s counsel,
Dr. O’Hara explained that he did not believe there was any significant
potential detriment to Child. Id. at 85.
Based on the foregoing, we agree with the trial court’s conclusion that
there is ample, competent, clear and convincing evidence in the record
establishing that Mother cannot meet Child’s needs and welfare, and that
Child’s foster parents meet all of his needs and welfare. Further, the
competent evidence in the record, Ms. Walz’s testimony, and Dr. O’Hara’s
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expert testimony support the trial court’s determination that Child’s
relationship with Mother is such that Child would not suffer any harm from
the termination of Mother’s parental rights, and that the termination of
Mother’s parental rights would serve Child’s best interests. Accordingly, we
affirm the trial court’s order terminating Mother’s parental rights to Child
pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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