In Re: S.S.S., A Minor, Appeal of: Y.O. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: S.S.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: Y.O., NATURAL :
MOTHER :
:
:
:
: No. 1392 WDA 2017
Appeal from the Order July 31, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000035-2017
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 06, 2018
Y.O. (“Mother”) appeals from the order entered on July 31, 2017,
terminating her parental rights to S.S.S., (“Child”), her male, dependent child
born in January 2015, with an unknown father, pursuant to 23 Pa.C.S.A. §
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, 23 Pa.C.S.A. §§ 2101-
2938 the Adoption Act.1 We affirm.
Based on the testimony at the termination hearing, the trial court set
forth the factual background and procedural history of this appeal as follows.
The minor is residing at Wesley Spectrum, a foster care
provider. He was born to [Mother] and an unknown father.
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1In the same order, the trial court involuntarily terminated the parental rights
of “G. Unknown,” and any unknown father of Child. Neither “G. Unknown” nor
any unknown father has filed an appeal from the termination order, nor is “G.
Unknown” or any unknown father a party to the appeal presently before this
Court.
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[Mother], 20 years old, has demonstrated[,] for years and on
numerous occasions, that she is not able to control her violent
outbursts. CYF became involved with [Mother][] as a result of a
2015 referral, when she was in her teenage years. She has a
diagnosis of bi-polar disorder and was ordered treatment, to which
she had not been compliant. According to Ms. Shaheeda Wilks, a
caseworker who testified at the hearing, CYF received reports that
on July 14, 2015, [Mother] threatened to kill [Child] via text
message. This was never objected to by her counsel; therefore,
the [c]ourt afforded weight to this statement and found that this
statement, standing on its own, is enough to cause great alarm
for the minor’s well-being and it is clearly not in the minor’s best
interest to remain in that type of environment. However, this does
not end the [c]ourt’s inquiry. Ms. Wilks continued to testify that
on July 29, 2015, during a dependency hearing, … [M]other had
to be removed from the courthouse and could not attend the
hearing because she had a physical altercation with another
female while inside the courthouse. Following the dependency
hearing, the child was found dependent under Section 1. [42
Pa.C.S.A. § 6302(1), definition of “Dependent child”.] A family
service plan (hereinafter referred to as (FSP) was put into place
to address the mother’s mental health and anger issues, whereby
she was ordered to participate with the caseworkers and other
professionals. [Mother] did attend two meetings; however, during
one meeting specifically, March 9, 2017, [Mother] became
verbally aggressive and abusive to the caseworkers and at one
point had to be removed from the office by security. The violent
outburst caused by [Mother] prevented her from being able to
participate in subsequent sessions. Additionally, [Mother] has
been inconsistent with her mental health treatment, which was a
goal of the FSP.
Trial Court Opinion, 10/12/17, at 2-3 (unpaginated).
On March 6, 2017, CYF filed the petition seeking the involuntary
termination of Mother’s parental rights to Child. On July 21, 2017, the trial
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court held an evidentiary hearing on the petition.2 At the hearing, CYF
presented the testimony of Shaheeda Wilks, the CYF caseworker assigned to
the case. CYF then presented the testimony of Amy Rendos, the supervisor
for coach visitation at Project Star. Finally, CYF presented the testimony of
Maria Luczkow, a psychotherapist at Milestones Center who had treated
Mother.3 On July 31, 2017, the trial court entered the order involuntarily
terminating Mother’s parental rights.
Mother timely filed a notice of appeal, along with a concise statement
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). In her brief on appeal, Mother
raises the following issues:
1. Did the trial court abuse its discretion and/or err as a matter of
law in granting the petition to involuntarily terminate Mother’s
parental rights pursuant to 23 Pa.C.S. §2511(a)(1), (2), (5), and
(8)?
2. Did the trial court abuse its discretion and/or err as a matter of
law in concluding that CYF met its burden of proving by clear and
____________________________________________
2The trial court previously changed Child’s permanency goal to adoption under
the Juvenile Act, 42 Pa.C.S.A. § 6351.
3 Mother, who was represented by counsel at the hearing did not testify, and,
in fact, left the hearing prior to its conclusion. See N.T., Termination Hearing,
7/21/17, at 104-105, 127-128, 148. Child was represented by Attorney Lynne
P. Sherry, who stated, upon questioning by the trial court, that she was
representing Child both as to his legal interests and best interests, as set forth
in In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017). There, a plurality
decision, a majority of the Court concluded that counsel may serve both as
the guardian ad litem, representing the child’s best interests, and as the child’s
counsel, representing the child’s legal interests, as long as there is no conflict
between the child’s legal and best interests. Here, the trial court concluded
that there was no such conflict by Attorney Sherry’s dual representation of
Child. See N.T., Termination Hearing, 7/21/17, at 11.
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convincing evidence that termination of Mother’s parental rights
would best serve the needs and welfare of the child pursuant to
23 Pa.C.S. §2511(b)?
Mother’s Brief, at 6.
In reviewing an appeal from an order terminating parental rights, we
adhere to 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. If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
[T]here 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. 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 S.P., 47 A.3d 817, 826-827 (Pa. 2012) (internal citations
omitted).
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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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that
[t]he 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)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of § 2511(a). See In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
Section 2511 provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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.
***
To satisfy the requirements of subsection (a)(2), the moving party must
produce clear and convincing evidence regarding the following elements:
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(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 of parental rights under subsection
(a)(2) are not limited to affirmative misconduct, but may include acts of
refusal and also the incapacity to perform parental duties. See In re A.L.D.
797 A.2d 326, 337 (Pa. Super. 2002).
Mother challenges the sufficiency of the evidence to support termination
with regard this subsection. She claims the evidence at the hearing
demonstrated she was working towards satisfying her FSP objectives, and did
not act with a settled purpose of relinquishing her parental rights or refuse to
perform her parental duties. And she offers a litany of reasons in support of
her position.
Mother maintains she complied with Lifeworks, and participated in a
parenting program until her discharge. Additionally, Mother points out she
attended mental health evaluations, engaged in treatment, and even took
prescribed medication. Mother further states that, although she lacked her
own housing, she resided with relatives. Mother also asserts she visited Child.
Mother complains that CYF argues that she was not fully compliant with any
of her goals, based on her inconsistent participation, discharge from
programs, or refusal to participate. Mother argues that, although CYF
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presented testimonial evidence that she argued, yelled, and threatened
individuals, the testimony demonstrated that Child was not exposed to this
behavior since April 2017, when Ms. Wilks took over the case. Mother further
claims that there was no testimony that she caused any physical harm to
Child.
Mother concedes that, in the past, she has acknowledged her frustration
and anger control issues, but denies these issues prevent her from being able
to parent Child. According to Mother, CYF is basing its conclusion on her
interaction with the adults assigned to the case. Mother argues CYF is
presuming she cannot parent Child because of her frustration and anger
control issues, and that there is insufficient clear and convincing evidence to
prove that she is incapable of parenting Child. Mother claims she engaged in
appropriate and loving interactions with Child.
Mother also contends she remedied any parental incapacity, and that
any allegation that she is not ready to parent Child is speculative or unclear.
Mother does not dispute she failed to complete some programs and did not
have a 100% attendance rate. She argues, however, that her actual level of
participation or compliance with mental health therapy, medication, parenting
instruction, and visitation was sufficient to remedy any parental incapacity
directly related to Child.
With regard to subsection (a)(2), the trial court found the following from
the testimony at the termination hearing:
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It was the opinion of Ms. Wilks that [Mother’s] unaddressed
mental health and anger issues have and will affect her ability to
safely parent the minor.
The testimony of Ms. Wilks also demonstrated that [Mother]
failed the parenting goal the agency determined was necessary.
On May 31, 2016, [Mother] was to attend and complete the
Arsenal Program to specifically address her emotional outbursts
and anger issues. Her case file was closed out because she failed
to attend her orientation on two separate occasions. [Mother] was
given another chance to attend Arsenal; however, she was
discharged and her case file was closed out a second time because
she threatened to kill the staff members and made other
inappropriate remarks to other clients. It should be noted that
despite all of this, [Mother] was given a third chance to complete
the parenting goal as a referral to the Family Resource Program
was made by the agency. [Mother] never called to enroll in the
program. In addition, Ms. Maria Luczkow, from Milestones Center,
which is an outpatient psychotherapy clinic, testified [Mother] was
to have 37 sessions of therapy to address her emotional and
mental health well-being. She only attended 16 of the 37. It is
important to note that when confronted by Ms. Luczkow, as to her
inconsistent participation in the therapy, [Mother] threatened to
kill her if she showed up for court. Needless to say, the service
was terminated.
[Mother] failed the housing goal set out by the FSP. The
agency made three referrals to the Urban League to address
housing for [Mother] but she failed to participate and fully comply;
therefore, failing the goal of obtaining and maintaining
independent housing.
[Mother] failed the agency FSP visitation goal. Specifically,
[Mother] was given numerous opportunities to have supervised
visits. She had been inconsistent with the visits, only attending 27
of 68 visits in the time period of September 2015 through
November 2016; had to have some of those visits she attended
cut short due to her irrational emotionally [sic] outbursts, which
caused a safety concern for the minor, the service providers, and
CYF caseworkers; and due to her violent outbursts, two case
workers had to be assigned due to safety concerns.2
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2 The [trial court] specifically notes that, in addition to [Mother’s]
violent and irrational behaviors exhibited in the context of this
case, as the record is replete with her violent outbursts, she faced
criminal prosecution in the 5th Judicial District-Crim. Div. for
simple assault and terroristic threats as her own mother was the
victim. She punched her mother in the face and was placed on
adult probation, as this case was in pendency, and was ordered
by The Hon. Joseph K. Williams, III, to complete anger
management and a mental health evaluation. (See CP- 02-CR-
0015862-2015)[.]
Trial Court Opinion, 10/12/17, at 2-4 (unpaginated).
After a careful review of the record, we find the trial court appropriately
found Mother had (1) a repeated and continued incapacity, abuse, neglect or
refusal; (2) such incapacity, abuse, neglect or refusal 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.
Mother attempts to minimize her frustration and anger management
issues, claiming that she has addressed them. Her anger and threats, she
explains, only involved adults and concerned the removal of Child from her.
And she asserts any future impact on her ability to parent Child is speculative.
We disagree.
We find no merit to Mother’s argument that she is ready to, and capable
of, parenting Child. Far from it. There is competent, clear and convincing
evidence in the record that supports the trial court’s determinations with
regard to subsection (a)(2), and its termination of Mother’s parental rights to
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Child under that section. Thus, we find no abuse of discretion in the
termination of Mother’s parental rights pursuant to subsection (a)(2).
Next, we address Mother’s second issue, i.e., that the trial court abused
its discretion in terminating her parental rights to Child pursuant to § 2511(b).
That subsection provides as follows:
(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.
The focus in terminating parental rights under § 2511(a) is on the
parent, but it is on the child pursuant to § 2511(b). See In re Adoption of
C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc). In reviewing the
evidence in support of termination under section 2511(b), 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. § 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. … [T]he
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.
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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013) (most citations and internal
quotation marks omitted; brackets added and in original).
Subsection (b) does not mandate a formal bonding evaluation. See In
re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). And when evaluating a
parental bond, “the court is not required to use expert testimony. Social
workers and caseworkers can offer evaluations as well.” Id. (citations
omitted). Although it is often wise to have a bonding evaluation and make it
part of the certified record, “[t]here are some instances … where direct
observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008) (citation omitted). “The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular
case.” Id. (citation omitted).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent … Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his] mental and emotional health
than the coincidence of biological or natural parenthood.
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In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See, e.g., In re K.Z.S., 946 A.2d at 763. “[A] parent’s basic
constitutional right to the custody and rearing of … her child is converted,
upon the failure to fulfill … her parental duties, to the child’s right to have
proper parenting and fulfillment of [the child’s] potential in a permanent,
healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super.
2004) (citation omitted).
With regard to subsection (b), the trial court stated the following:
The minor has been placed in his pre-adoptive home since
August 20, 2016. Furthermore, he has not been in [Mother’s] care
since July 29, 2015[,] and most importantly, for the life of this
case, i.e. from the time the child was found dependent until the
present, the minor and [Mother] have never re-unified. Lastly, 12
months have elapsed from the date of the minor’s placement
and/or removal from the unknown father.
The [trial court] also heard testimony from the caseworker
regarding observations of the minor’s interaction with the foster
family. It was testified by Ms. Wilks that she personally observed
interactions between the minor and the foster family and observed
him to be “happy” in that regard and his needs were being met.
It was the opinion of the caseworker that termination and adoption
were in the minor’s best interest. It is also the same opinion
shared by [the trial court].
The evidence discussed above amply supported the [trial
court’s] conclusion that the child’s bond with the mother “no
longer helps but rather hinder[s] this child”.3 Therefore, the [trial
court] properly concluded that the potential damage that may
result from prolonging this relationship substantially outweighs
the pain that may be caused by severing any remaining bond.
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3 In re P.A.B., 570 A.2d 522, 526 (Pa. Super. 1990).
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Trial Court Opinion, 10/12/17, at 4-5 (unpaginated).
Mother maintains the trial court failed to properly consider her
undisputed love for Child, and the effect of Child severing his relationship with
Mother and all of his maternal relatives, including his infant, male sibling, C.,
who was born in January 2017. We disagree.
The trial court appropriately considered the safety of Child as weightier
than any affection the young child might feel for Mother or vice versa. A
parent’s love of his child, alone, does not preclude a termination. See In re
L.M., 923 A.2d 505, 512 (Pa. Super. 2007). Nor will we “toll the well-being
and permanency of [a child] indefinitely[,]” In re Adoption of C.L.G., 956
A.2d at 1007 (citation omitted), while a parent tries to get her act together.
We find no merit to Mother’s argument concerning the separation of the
siblings. Child’s sibling, C., was born seven months prior to the termination of
Mother’s parental rights. C. was also dependent, had not been reunified with
Mother, and had not lived with Child. The trial court properly weighed the
argument that Mother’s counsel made at the hearing concerning the
separation of the siblings in this case. The trial court appropriately concluded
that the separation of the siblings in this matter served Child’s best interests,
for the reasons expressed by the trial court concerning Child’s safety, as set
forth above. Thus, we reject Mother’s contention that the trial court abused
its discretion in separating Child from his sibling.
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After a careful review of the record, we find ample competent evidence
to support the trial court’s findings and credibility determinations. We,
therefore, find no abuse of the trial court’s discretion in terminating Mother’s
parental rights to Child under subsection (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2018
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