In the Interest of: H.D.K., Appeal of: S.E.P. ( 2020 )

J-S18045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.D.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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:
APPEAL OF: S.E.P., MOTHER :
:
:
:
: No. 1995 MDA 2019
Appeal from the Decree Entered November 12, 2019
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
86750
IN THE INTEREST OF: H.A.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: S.E.P., MOTHER :
:
:
:
: No. 1996 MDA 2019
Appeal from the Decree Entered November 12, 2019
In the Court of Common Pleas of Berks County Orphans' Court at No(s):
86749
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 17, 2020
S.E.P. (“Mother”) appeals from the Decrees entered on November 12,
2019, which granted the petition of Berks County Children and Youth Services
(“BCCYS”), and involuntarily terminated Mother’s parental rights to her two
____________________________________________
* Former Justice specially assigned to the Superior Court.
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biological children: H.A.K. (born in January of 2015) and H.D.K (born in March
of 2016) (collectively “the children”).1 After a careful review, we affirm.
The Orphans’ Court has thoroughly set forth the relevant facts and
procedural history as follows:
BCCYS first became involved with the family in 2016 due to
concerns of unstable housing and income, mental health issues,
medical neglect, and domestic violence. On January 11, 2017,
BCCYS received a report that [H.A.K.] fell down a flight of stairs
and fractured her femur. Mother stated that a maternal aunt was
caring for [H.A.K.] at the time of the incident. The family was
then opened for investigation [sic].
During the investigation, it was discovered that Mother was
missing medical appointments for both of [the] children. Both of
[the] children suffer from neurofibromatosis type 1 (“NF1”). (N.T.
11/4/19 at 42). NF1 is a hereditary genetic disorder that affects
multiple systems of the body. Amongst the symptoms are skin
changes, benign growths on body areas, skeletal abnormalities
(such as scoliosis or bowing of the legs)[,] and learning
disabilities. There is also a risk of developing optic pathway
gliomas which are tumors in the optic pathway. Id. Mother also
suffers from NF1.
In addition to [the] children suffering from NF1, [H.A.K.]
suffers from a rare disease known as Moya Moya disease. This is
a rare disease of the blood vessels. Both of [H.A.K.’s] carotid
arteries are affected by this. More specifically, [H.A.K.’s] right
carotid artery is completely blocked and will never be unblocked.
(N.T. 11/4/19 at 42). This disease puts [H.A.K.] at a high risk of
an ischemic stroke and intracerebral hemorrhage which can be
provoked by fluctuations in her blood pressure or dehydration.
As a result of their medical conditions, [the children] require
routine appointments with neurology, hematology, oncology[,]
and ophthalmology. Additionally, [H.A.K.] was required to follow
____________________________________________
1 The Orphans’ Court noted that the parental rights of Father, who is
incarcerated at a state correctional institution in North Carolina due to felony
charges related to the sexual assault of a minor less than sixteen years of age,
were also terminated. See Orphans’ Court Opinion, filed 1/8/20, at 6 n.4.
Father has not filed an appeal.
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up with Penn Dental as a result of not properly having maintained
her teeth. Id. at 42-43.
On May 16, 2017[,] [H.D.K.] was admitted to the hospital
for dehydration and a double ear infection. Mother struggled with
insight into the medical situation.
[H.A.K.] was scheduled for brain surgery on December 6,
2017[,] at the Children’s Hospital of Philadelphia (“CHOP”).
Despite this, the caseworker from CHOP reported that Mother
failed to keep numerous appointments for [the] children. [The]
children missed oncology and ophthalmology appointments on
July 11, 2017[,] and July 25, 2017. Another oncology
appointment was missed on August 21, 2017. [The] children
missed oncology and ophthalmology appointments on October 13,
2017[,] and October 19, 2017. Mother missed her own NF1
oncology appointment on July 19, 2017.
On December 6, 2017[,] [H.A.K.] underwent her scheduled
brain surgery at CHOP. [H.A.K.] was kept overnight and not
released due to concerns that [H.A.K.] would not receive proper
hydration at home. The discharge summary also stated that
Mother was no longer allowed to stay at the Ronald McDonald
House due to not adequately supervising [the] children.
Mother did not take [H.A.K.] for her follow up appointment
with the neurosurgeon on January 2, 2018. Later in January 2018
Mother reported to the caseworker that she was moving into a
shelter with the children. When asked if [the children’s biological
father] could provide assistance, Mother indicated that he could
not provide any relief and that he was very abusive to her.
On February 7, 2018[,] CHOP Social Worker Heather Deline
advised Mother that [H.A.K.] needed to be evaluated by the
Intermediate Unit due to speech delays and should be enrolled in
a Head Start Program. The following day, on February 8, 2018[,]
Mother’s home was raided by the police with weapons drawn.
Mother stated the children were present and that it was “scary.”
On February 15, 2018[,] CHOP Social Worker [Deline]
advised that Mother has not had medical care for her own NF1 “for
a long time.” On the same day, Mother had an interview at Family
Promise for one of the housing programs. Mother was denied due
to being unable to provide [H.D.K.’s] age or social security
number. Mother also gave incorrect information about her own
prior addresses. Mother further indicated that she has not
received medical treatment for her own bipolar disorder and
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schizophrenia. Finally, she falsely indicated that [H.A.K.] had
brain cancer.
On February 16, 2018[,] it was reported by the Reading
Children’s Health Center that both children were underweight, that
[H.A.K.] should have been moved from Early Intervention to Berks
County Intermediate Unit and that [H.D.K.] has not had a follow-
up with his ophthalmologist.
From January 2017 to February 2018[,] BCCYS had been
providing weekly services and Mother has moved residences
seven (7) times.
***
On February 22, 2018[,] BCCYS filed a dependency petition
regarding [H.A.K.] and [H.D.K.] as a result of their concerns.
When notified, Mother fled to New Jersey with [the] children. On
February 28, 2018[,] Mother moved to Northampton County. On
March 12, 2018[,] Mother met with BCCYS caseworker Richelle
Smith and reported that she was now residing in the State of
Maryland and that she wanted to give custody of [the] children to
her brother.
Based on Mother’s actions, an Emergency Petition was filed
by BCCYS. [The Orphans’ Court] transferred custody of [the]
minor children to BCCYS as remaining in the home with Mother
was “contrary to the welfare of the child[ren].”
On March 23, 2018[,] an Adjudication and Disposition
hearing was held [in the Orphans’ Court]. At that time, the Court
adjudicated [the] children as dependent, removed them from the
care of Mother and into the custody of BCCYS (kinship care).
Further, Mother was ordered to cooperate with the following: (1)
parenting education on attending to the children’s medical needs,
(2) mental health evaluation with IQ testing and any additional
recommendations, (3) psychiatric evaluation and any additional
recommendations, (4) domestic violence evaluation and any
recommendations, (5) casework sessions and any additional
recommendations, (6) establishing and maintaining stable and
appropriate housing and income, (7) keeping BCCYS informed
regarding any changes in residence or income, (8) signing
releases as required, (9) ensuring that the children attend all
medical appointments, and (10) supervised visits and acting in an
appropriate manner.
***
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Permanency Review hearings were held on August 21, 2018,
January 15, 2019[,] and June 3, 2019. [BCCYS filed petitions to
involuntarily terminate Mother’s parental rights as to the children
on May 24, 2019.]
At the Permanency Review hearing on August 21, 2018, it
was found that Mother had made no progress towards alleviating
the circumstances which necessitated the original placement.
Notably, Mother did not maintain stable employment [and] did not
consistently attend casework with BCCYS[.] [S]he participated in
casework with Child and Family First but failed to follow through
with recommendations including following through with
community resources for housing. Mother was provided
reminders and transportation to the children’s medical
appointments at CHOP but demonstrated an inability to
understand the medical information.
At the time of the August 21, 2018[,] hearing, it was
reported that two of Mother’s sisters had, on two (2) separate
occasions, taken the children from the kinship home; they lied to
the kinship resource about their plans and took the children to
see…Mother. This was unauthorized contact with Mother and done
without the knowledge of the kinship resources. Neither aunt was
authorized by BCCYS to supervise contact with Mother. Mother
acknowledged that she knew this was wrong but did so anyway.
She further acknowledged that the visiting supervisor arrived in
time to see the two sisters bringing [the] children. (N.T. 11/4/19
at 32). Full-time supervised visits were enforced, and Mother
attended all [of] those visits.
At the Permanency Review hearing on January 15, 2019, it
was noted that Mother had been substantially compliant with the
permanency plan and had made substantial progress. The
Findings of Fact indicate that Mother moved residences twice and
left one job and was now working with another employer on a
part-time basis. Mother participated in casework with BCCYS and
with Child and Family First. It is also noted that Mother attended
all offered visits and that her interaction with the children was
appropriate. Mother also was attending the medical
appointments[,] and…she was able to effectively manage each
child and was engaged when receiving medical information. It
was further noted that Mother and [the] children were clearly
bonded to one another.
At the final Permanency Review hearing held on June 4,
2019[,] it was found that Mother was in substantial compliance
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with the permanency plan[;] however[,] “there has been minimal
progress toward alleviating the circumstances which necessitated
the original placement.” While Mother had maintained stable
housing and was consistent in her casework with BCCYS and Child
and Family First, it was unfortunately noted that Mother had again
quit her job because she was unhappy. She failed to secure
alternate employment before quitting[,] and she declined
temporary assignments because she did not want to go from job
to job. Mother was offered visits in her home, semi-supervised.
During these visits, Mother was unable to comply with restrictions
regarding additional people at visits and, therefore, full
supervision was resumed.
While it was noted that Mother enjoyed the visits, she
remained unable to supervise the children without adult
assistance. She was not consistent with discipline and did not
follow through. Mother was unable to remember information
provided at meetings and medical appointments. Mother
acknowledged missing two medical appointments for [the]
children. (N.T. 11/4/19 at 26, 43). Mother initially had taken over
the responsibility to schedule medical appointments but was
unable to do so; the responsibility returned to foster mother.
Mother did not seem to understand questions asked of her
regarding the children, such as whether lunch was provided.
Mother also failed to bring required documentation to
appointments.
***
As discussed above,…Mother [was required] to participate
in professional services. These included domestic violence
counseling, mental health evaluations, and any other services that
were recommended.
On June 20, 2018, Mother was referred for an Adult
Alternatives to Violence Evaluation at Commonwealth Clinic. At
that time, Mother acknowledged physical and verbal abuse by the
children’s father. She described coercion, threats of violence,
intimidation[,] and emotional abuse. She also described an
extensive history of childhood victimization of sexual, verbal[,]
and emotional abuse that has developed into a pattern of her own
abusive relationships as an adult. In a report dated January 2,
2019[,] from Commonwealth Clinic, it was noted that Mother’s
inconsistent attendance has caused her to make limited progress
in addressing her unresolved trauma. She was noted to
experience low self-esteem and limited assertiveness skills.
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Notably, at the final Permanency Review hearing on June 4, 2019,
it was noted that Mother’s attendance was inconsistent and
Commonwealth Clinic Group (“CCG”) questioned the veracity of
the information that was provided by Mother. In a May 30,
2019[,] report from CCG, it was noted that Mother presented with
an emotional dependence on men and that she had been in an
intimate partner relationship with an unidentified male. CCG
noted that Mother seemed to be minimizing the significance of this
relationship due to her court involvement. Mother eventually
disclosed that she had entered [into] a relationship with a man
named Christian. She reported that the relationship was exclusive
“but not yet serious.”
At the [termination] hearing that was held before [the
Orphans’] Court on November 4, 2019[2] Mother testified that she
was eight (8) months pregnant and that the father was a man
named Christian Diaz-Cruz. Mr. Diaz-Cruz is an individual with a
criminal history of aggravated assault and drug charges. (N.T.
11/14/19 at 20).
Mother was also referred for a Mental Health intake at Berks
Counseling Center (“BCC”). Her first appointment was on August
16, 2018. She was recommended to participate in a Level I Mental
Health Program. On March 29, 2019, BCC reported that Mother
had completed her treatment goals and she was successfully
discharged from the Level I Mental Health Program.
Mother also attended a Forensic and Intellectual Evaluation
at Spring Psychological Associates on April 30, 2018[,] with Dr.
Richard Small. Dr. Small opined Mother’s intelligence falls in the
lower end of the mild intellectual disability range, and she shows
both psychotic and dependent tendencies. Dr. Small diagnosed
Mother with Intellectual Disorder, Mild; Schizoaffective Disorder,
Bipolar Type; Obsessive Compulsive Disorder, and Personality
Disorder with Schizoid and Dependent Features. Dr. Small did not
believe Mother was able to provide a safe environment for [the]
____________________________________________
2 During the termination hearing, Mother was represented by counsel. The
children were represented by Daniel H. Degler, Esquire, guardian ad litem.
H.A.K. was four years old, and H.D.K. was three years old at the time of the
termination hearing. There is no indication of a conflict between the children’s
legal and best interest or a conflict in each other’s interests. See In re T.S.,
648 Pa. 236, 192 A.3d 1080, 1089-90, 1092-93 (2018) (reaffirming the ability
of an attorney-guardian ad litem to serve a dual role and represent a child’s
non-conflicting best interests and legal interests).
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children or meet their special needs. He was pessimistic about
Mother’s ability to make improvements.
At the request of Mother’s attorney, Mother and [the]
children attended a Bonding Evaluation on July 25, 2019. This
evaluation was performed by Laura M. Fritts, Psy.D., LMFT. Dr.
Fritts noted that a genuine closeness and familiarity was apparent
between Mother and the children. Dr. Fritts opined that they
“clearly love her and are well bonded to her.” Dr. Fritts observed
that Mother had genuine affection for both of [the] children; she
was patient and she was appropriately prepared with supplies; she
engaged them on the floor with games. Dr. Fritts also observed
however that while [the] children were animated, bright, alert,
playful and engaged, Mother appeared “more remote.”
Dr. Fritts further noted that Mother did not appear as
attached and bonded to [the] children as they were to her. Mother
was not indifferent to [the] children “but she was also not as well
bonded as one would hope to see.” Importantly, Dr. Fritts noted
that the children “appeared quite bonded with her but more as a
friend and playmate whom they love than as their mother.”
At the conclusion of the evaluation, Dr. Fritts noted that
while the children were happy to see their mother and engaged
well with her, they had no separation issues “nor were any
concerns raised with regard to leaving their mother when the
session ended.”
Orphans’ Court Opinion, filed 1/8/20, at 5-12 (citations to exhibits and
footnotes omitted) (footnote added) (italics in original).
By Decrees entered on November 12, 2019, the Orphans’ Court found
clear and convincing evidence to involuntarily terminate Mother’s parental
rights as to the children under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).
The Orphans’ Court additionally concluded that termination of Mother’s
parental rights was in the best interest of the children under 23 Pa.C.S.A. §
2511(b).
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Mother filed two separate timely, counseled notices of appeal, each
containing a single Orphans’ Court docket number pertaining to each child.
Additionally, Mother filed two counseled statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On
December 26, 2019, this Court sua sponte consolidated Mother’s notices of
appeal, and on January 8, 2020, the Orphans’ Court filed an Opinion pursuant
to Pa.R.A.P. 1925(a).
On appeal, Mother sets forth the following issues in her “Statement of
the Questions Involved”:
A. Whether the [Orphans’] Court erred in and abused its
discretion in terminating [Mother’s] parental rights where
[Mother] has remediated the issues that led to the placement
of the child[ren]?
B. Whether the [Orphans’] Court erred as a matter of law in
terminating [Mother’s] parental rights based on the testimony
which established that there are ways to ongoingly support
Mother to the extent it is needed to ensure Mother continues
to meet the special needs of her child[ren]?
C. Whether the [Orphans’] Court erred as a matter of law in
determining it would not be detrimental to sever the bond
Mother has with the children in light of the fact that the minor
child[ren] [have] only been in the current placement since
October 21, 2019?
Mother’s Brief at 4 (suggested answers omitted).
We review Mother’s claims 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 [Orphans’ Court] if they are
supported by the record. If the factual findings are supported,
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appellate courts review to determine if the [Orphans’ 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 [Orphans’ Court’s] decision, however, should not be reversed
merely because the record would support a different result. [Our
Supreme Court has] previously emphasized [the appellate courts’]
deference to [Orphans’ Courts] that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 620 Pa. 602, 71 A.3d 251, 267 (2013) (quotation marks,
quotations, and citations omitted). “The [Orphans’] [C]ourt is free to believe
all, part, or none of the evidence presented, and is likewise free to make all
credibility determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004) (citations 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 [subsection] 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 [subsection] 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 the case sub judice, the Orphans’ Court terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), as well as
subsection (b), which provide as follows:
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§ 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:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
(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.
***
5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency, 12 months or more have elapsed from
the date of removal or placement, the conditions
which led to the removal or placement of the child
continue to exist and termination of parental rights
would best serve the needs and welfare of the child.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
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physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b) (bold in original).
Mother first contends the Orphans’ Court erred in determining BCCYS
met its burden of proof under 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).
We have long held that, in order to affirm the termination of parental rights,
we need only agree with the Orphans’ Court as to any one subsection of
2511(a), as well as subsection 2511(b). See In re B.L.W., 843 A.2d 380,
384 (Pa.Super. 2004) (en banc). Here, with regard to subsection 2511(a),
we conclude the Orphans’ Court properly found that BCCYS met its burden of
proof under subsection 2511(a)(2).
To satisfy the requirements of subsection (a)(2), the moving party must
produce clear and convincing evidence regarding the following elements: (1)
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 or her physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa.Super. 2003). The grounds for termination of parental
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rights under subsection (a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002).
In the case sub judice, in terminating Mother’s parental rights, the
Orphans’ Court relevantly indicated the following:
In this case, BCCYS argue[d] that Mother…continue[d] to
struggle with understanding the severe medical needs of [the]
children. During her testimony at the termination hearing, Mother
acknowledged missing two additional medical appointments prior
to the hearing. (N.T. 11/4/19 at 24, 26). Mother has also failed
to maintain employment—admitting at the hearing that she, once
again, obtained a job but quit that job two months prior to the
hearing without securing any additional employment. (N.T.
11/4/19 at 21). Mother stated that she quit her job because it
was too difficult to comply with the requirements of BCCYS and
work at the same time. (N.T. 11/4/19 at 22).
Mother also testified that she has been receiving SSI for her
entire life, yet she…has no idea why she is receiving these
benefits. (N.T. 11/4/19 at 22, 28). Mother also completed a
domestic violence evaluation and counseling. Despite completing
this counseling, Mother has found herself in another relationship
that was minimizing during treatment. It is concerning to [the
Orphans’] Court that Mother stated on May 30, 2019[,] that the
relationship was not serious but then showed up at the hearing on
November 4, 2019[,] and exclaim[ed] that she was now eight (8)
months pregnant with a child from a man with a violent criminal
history. (N.T. 11/4/19 at 20).
It was also determined by Valerie George, a caseworker and
counselor to Mother, that Mother has failed to demonstrate the
ability to care for [the] children on her own after all this time.
(N.T. 11/4/19 at 44). Ms. George also testified that she had given
Mother the opportunity to transport the children to their medical
appointments but that resulted in some missed appointments and
she, therefore, had to resume transportation for Mother. (N.T.
11/4/19 at 45). Mother also continued to demonstrate an inability
to supervise the children without adult assistance. She was not
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consistent with discipline and did not follow through. Mother was
unable to remember information provided at meetings and
medical appointments.
Mother completed a Mental Health evaluation by Dr. Small.
However, BCCYS has not received any information that Mother
has successfully completed any kind of mental health treatment.
In fact, Mother has acknowledged that she has not received any
treatment for her bipolar disorder and schizophrenia.
***
Mother has been unable to unilaterally care for both of [the]
children on a consistent basis while in the care and custody of
BCCYS. The reports of Dr. Small and Dr. Fritts both establish the
mutual concerns regarding [M]other’s limitations as well as the
children’s excessive medical needs. (N.T. 11/4/19 at 50).
Moreover, Mother’s own mental health diagnosis and medical
condition have seemingly prevented her from providing any
meaningful long-term care for [the] children.
Counsel for Mother presented the testimony of Jessica
Gonzalez, presumably to show the great extent of Mother’s ability
to eventually care for [the] children. However, Ms. Gonzalez
admitted that[,] although Mother was showing improvement in
certain areas, Ms. Gonzalez did not personally attend any of the
medical appointments at CHOP and, importantly, Ms. Gonzalez
could not opine that Mother was able to care for [the] children
independently. (N.T. 11/4/19 at 63). In fact, there was
absolutely no testimony that Mother would eventually be able to
perform the actions necessary to assume parenting
responsibilities. See In re I.J., 972 A.2d 5 (Pa.Super. 2009)
(stating that a child’s needs for permanence and stability cannot
be subordinated indefinitely to a parent’s claims of progress and
hope for the future).
Orphans’ Court Opinion, filed 1/8/20, at 13-14 (footnote omitted).
We discern no abuse of discretion in the Orphans’ Court’s conclusion
that the termination of Mother’s parental rights was proper pursuant to
subsection 2511(a)(2). Specifically, BCCYS proved by clear and convincing
evidence that Mother has repeatedly refused to provide the children with the
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essential parental care for their physical well-being and Mother cannot or will
not remedy the situation. See 23 Pa.C.S.A. § 2511(a)(2).
Regarding Mother’s contention termination is improper under subsection
2511(a)(2) since the testimony of Ms. Gonzalez established there are ways to
support Mother to ensure she meets the special medical needs of the children,
we find Mother is not entitled to relief.
In rejecting Mother’s claim, the Orphans’ Court indicated the following:
Mother alleges [the Orphans’] Court could not terminate
Mother’s parental rights based on the testimony which established
that there are ways to ongoingly support Mother to the extent it
is needed to ensure Mother continues to meet the special needs
of [the children]. Mother relies specifically on the testimony of
Jessica Gonzalez[.] This argument is without merit as Ms.
Gonzalez…could not opine that any of the services she mentioned
were available to Mother or that they would alleviate the concerns
of BCCYS. Her testimony in this regard was purely speculative at
best as she uses the phrases “maybe” and “possibly.” (N.T.
11/4/19 at 63). Such testimony is not persuasive to [the
Orphans’] Court. Therefore, Mother’s argument is wholly without
merit.
For all [of] the reasons stated above,…Mother is unable to
remedy the causes of incapacity due to her repeated failures,
[her] mental health concerns[,] and her own medical condition.
Orphans’ Court Opinion, filed 1/8/20, at 15.
We discern no abuse of discretion. As indicated supra, “[t]he [Orphans’]
[C]ourt is free to believe all, part, or none of the evidence presented, and is
likewise free to make all credibility determinations and resolve conflicts in the
evidence.” In re M.G., 855 A.2d at 73-74 (citation omitted).
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Mother’s remaining claim relates to the Orphans’ Court’s determination
that termination of Mother’s parental rights would best serve the children’s
best interests under subsection 2511(b). In this regard, Mother contends the
evidence supports the conclusion that Mother has a bond with the children
and that severance of this bond would be detrimental to the children.
[Subsection] 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, [subsection] 2511(b) does not explicitly require a
bonding 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 [Orphans’ 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 [has] stated that the [Orphans’ 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) (quotation
marks, quotations, and citations omitted).
In the case sub judice, the Orphans’ Court found that termination of
Mother’s parental rights best met the children’s needs and welfare under
subsection 2511(b) and reasoned as follows:
BCCYS has had custody of the minor children since March of
2018. The conditions which led to the children’s placement
continue to exist, and Mother has not shown an ability to remedy
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the conditions within a reasonable period of time. Mother has
failed to grasp the serious nature of [the] children’s medical
conditions, continues to miss appointments, and is limited in her
own abilities due to her own mental and physical health
conditions. While [the Orphans’] Court does not question that
Mother loves [the] children, Mother has not shown an ability to
cure the issues that led to her incapacity in raising [the] children
safely. Therefore, the [Orphans’] Court must…determine whether
the termination of parental rights would best serve the needs and
welfare of the child[ren].
Initially, [the Orphans’] Court credits the testimony of
BCCYS caseworker Rebecca Mill who credibly testified that Mother
continues to be prompted about topics that need to be covered,
such as nutrition, eating, and following through with discipline.
(N.T. 11/4/19 at 48-49). Certainly, these are issues directly
related to the needs and welfare of the children. Moreover, [the
Orphans’] Court finds that Ms. Mill credibly testified that the
agency sees no detriment to terminating parental rights in this
case. (N.T. 11/4/19 at 52).
The inquiry does not rest here, however, as the [appellate
courts have] stated that “[i]n considering how termination affects
the children’s needs and welfare, a court must consider the role
of the parental bond in the children’s lives.” In re P.A.B., 570
A.2d 522, 528 (Pa.Super. 1990).
Instantly, [the Orphans’] Court needs to look no further than
the report of Dr. Laura Fritts who was asked specifically to answer
the question of the parental bond between Mother and [the] two
children. As stated above, Dr. Fritts performed a bonding
evaluation on July 25, 2019. Dr. Fritts concluded that the children
clearly love their mother and are well bonded to her. However,
Dr. Fritts noted that the loving bond shown by the children was
“more as a friend or playmate” rather than as a mother. Dr. Fritts
also stated that whereas the children were “animated, bright,
alert, playful and engaged,” Mother was noted to be “more
remote.” Overall, Dr. Fritts concluded that Mother did not appear
as attached and bonded to [the] children as they were to her—
which is not as “one would hope to see.”
This question of “bond” relates to Mother’s third and final
allegation…; namely[,] that [the Orphans’] Court erred in
determining it would not be detrimental to sever the bond Mother
has with the children in light of the fact that the minor child[ren]
have only been in the current placement since October 21, 2019.
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Initially, the report of Mother’s own requested expert, Dr. Fritts,
exposes the nature of the “friendly” bond that Mother shares with
[the] children. To that extent, [Mother’s] argument is flawed.
The second part of Mother’s argument[,] however[,]
implicates the nature of the relationship and the current bond that
exists between the children and their current resource, Maritza
Colon. Ms. Colon presented as a resource on May 2, 2019[,] and
was thus aware to Mother for nearly six (6) months prior to the
termination hearing. Ms. Colon lives in Maryland and was
referred…for a home study. Mother knows Ms. Colon and has
never objected to her as a resource. Mother testified that Ms.
Colon is the mother of her brother’s wife, who also live in
Maryland. (N.T. 11/4/19 at 36-37).
The current BCCYS caseworker, Rebecca Mill, credibly
testified that both children are doing “very well” in this
environment. (N.T. 11/4/19 at 50). Ms. Mill indicated that Ms.
Colon keeps her updated on the wellbeing of both children and
that “they both refer to it as their home already.” She further
noted that they are having a great time with their cousins, who
live in the area. The caseworker had an opportunity to observe
the children during a recent visit and noted that “they are bonded
already.” (N.T. 11/4/19 at 51). This bond appeared to be
buttressed by Mother’s own witness, Jessica Gonzalez, who saw
the children in Ms. Colon’s custody and noted that “they appeared
happy” and that they gave Ms. Colon a hug and a kiss. (N.T.
11/4/19 at 62).
Importantly, Ms. Colon is uniquely familiar with the NF1
disease because “one of her grandchildren also has appointments
at CHOP for a similar or the same condition.” (N.T. 11/4/19 at
51). As such, [the Orphans’] Court is satisfied, not only are the
children bonded with Ms. Colon, but there is also a family
connection with their uncle and two cousins[,] and their medical
condition of NF1 is something that is familiar to Ms. Colon and her
family. It is also worth noting that Ms. Colon appears highly
receptive to fostering an ongoing relationship with Mother. As Ms.
Mill testified:
They actually requested that mom move to Maryland
and be part of their lives there and help her [get] set
up with an apartment, a job, and, you know, be
involved in holidays, birthdays…[w]hen they start
getting involved in sports, plays, whatever the
children are involved in.
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(N.T. 11/4/19 at 52).
Based on all [of] this information, [the Orphans’]
Court…[concludes] that the testimony credibly establishes a
strong bond with a resource who would continue to act with the
best interests of both children in mind.
***
After reviewing the testimony and considering the exhibits,
[the Orphans’] Court finds that a natural parental bond is lacking,
as per the report of Mother’s own witness, Dr. Fritts. The
[Orphans’] Court rests on [the] detailed “bond” analysis [set forth]
above. Moreover, it is abundantly clear to [the Orphans’] Court
that the termination of Mother’s rights will serve the best interests
and welfare of both minor children. Mother has shown her inability
to understand and appreciate the serious nature of [the] children’s
medical conditions and has continued to miss necessary medical
appointments. She has consistently lacked the insight to
appreciate her own limitations and has miss[ed] her own medical
appointments while, at the same time, engaged in relationships
with men of questionable moral character—including her most
recent pregnancy with a man with a violent criminal history.
It is also clear that [the] children are in a safe and stable
environment and that termination will not be detrimental to either
children. In fact, it seems quite apparent that the children are
already well bonded to their resources in Maryland and that they
have the benefit of being around family members, obtaining
appropriate medical care[,] and have the consent of the resource
to maintain a relationship with Mother, should she so choose. For
these reasons, [the Orphans’] Court [concludes] that Mother’s
issue[] [does] not contain any merit and that the needs of both
minor children would best be served by the involuntary
termination of Mother’s parental rights[.]
Orphans’ Court Opinion, filed 1/8/20, at 16-20 (citations to exhibits omitted).
We discern no abuse of discretion in the Orphans’ Court’s reasoning.
The credited testimony supports the Orphans’ Court’s determination that it
would best serve the needs and welfare of the children to involuntarily
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terminate Mother’s parental rights pursuant to subsection 2511(b). See In
re T.S.M., supra.
For all of the aforementioned reasons, we affirm the Orphans’ Court’s
Decrees, which involuntarily terminated Mother’s parental rights to H.D.K. and
H.A.K.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2020
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