In the Interest of: J.M., Appeal of: M.M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.M., MOTHER :
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: No. 1395 WDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000119-2022
IN THE INTEREST OF: C.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.M., MOTHER :
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: No. 1396 WDA 2022
Appeal from the Order Entered October 25, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): CP-02-AP-0000060-2022
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: May 16, 2023
M.M. (“Mother”) appeals from the October 25, 2022 orders that
involuntarily terminated her parental rights to her sons, C.M., born in October
of 2020, and J.M., born in October of 2021.1 We affirm.
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1 The orphans’ court also terminated the parental rights of the putative father
of both children, G.H., and any unknown father of J.M. Neither G.H. nor any
unknown father appealed.
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We glean the factual and procedural history of this matter from the
certified record. Mother has a history of mental health problems, drug and
alcohol abuse, and intimate partner violence (“IPV”) involving her paramour,
G.H., who is the putative father of C.M. and J.M. See N.T., 9/30/22, CYF
Exhibit 1 at ¶ 14. The Allegheny County Office of Children, Youth, and Families
(“CYF”) first became aware of Mother’s state of affairs in October of 2018,
shortly after the birth of an older child, who is not a subject of this appeal.
Id. Two years later, at the time of C.M.’s birth, CYF received a report that
reiterated the same issues with Mother and alleged that Mother admitted
having “thoughts of harming” C.M. Id. at ¶ 15.
The trial court placed C.M. in shelter care and, on January 20, 2021, it
adjudicated C.M. dependent. In furtherance of C.M.’s permanency goal of
reunification, the court ordered Mother to participate in: (1) a drug and alcohol
assessment at the Pennsylvania Organization for Women in Early Recovery
(“POWER”); (2) random drug screens; (3) mental health treatment; (3)
supervised visitation and coached visitation; and (4) an IPV program at the
Women’s Center and Shelter. Id. at ¶¶ 26-28.
Less than one year after C.M.’s adjudication, Mother gave birth to J.M.,
at which time she tested positive for cocaine. The court placed J.M. in CYF’s
emergency custody three days after birth. Id. at ¶ 29. The children have
remained together in a pre-adoptive foster home since their respective
placements. Id. at 158.
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On November 8, 2021, the court held a combined adjudicatory hearing
for J.M. and permanency review for C.M. Id. at ¶ 35. The court adjudicated
J.M. dependent and, in furtherance of J.M.’s permanency goal of reunification,
required Mother to maintain sobriety, cooperate with her mental health team,
and attend coached visitations. Id. at ¶ 36. With respect to C.M.’s
permanency review, the court found that Mother’s compliance with her
objectives and her progress toward reunification were minimal. Specifically,
Mother continued to abuse cocaine, failed to attend random drug screens,
avoided the IPV program, and participated in only twelve out of a possible
twenty-two supervised visits with C.M. Id. at ¶¶ 32, 35. In fact, at every
permanency review hearing with respect to C.M. and J.M., the court concluded
that both Mother’s compliance and her progress were minimal. Id. at ¶ 40.
On May 5, 2022, CYF filed a petition for the involuntary termination of
Mother’s parental rights to C.M. pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8),
and (b). Four months later, it filed a petition to terminate Mother’s rights to
J.M. pursuant to § 2511(a)(2), (5), and (b). The evidentiary hearings on the
petitions occurred on September 30, 2022, and October 21, 2022,
respectively.2
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2 C.M. and J.M., then one and two years old, respectively, were represented
by legal counsel who advocated in favor of terminating Mother's parental
rights. Counsel also filed a brief with this Court in support of the termination
orders.
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CYF presented the testimony of Gregory Lobb, Ph.D., the court-
appointed forensic psychologist who performed an evaluation of Mother in May
and June of 2022 and diagnosed her with unspecified bipolar disorder,
generalized anxiety disorder, cannabis use disorder, stimulant use disorder,
and alcohol use disorder. See N.T., 9/30/22, at 20-21. In addition, the
agency called to the stand the assigned CYF caseworker, Erin Snyder, and
Sara Kohnfelder from TRAC Services for Families. Mother testified, and she
presented the testimony of Shawna Copeland, her family support partner from
Allegheny Family Network.
On October 25, 2022, the orphans’ court involuntarily terminated
Mother’s parental rights to C.M. and J.M. pursuant to 23 Pa.C.S. § 2511(a)(2),
(5), (8), and (b).3 Mother timely filed notices of appeal along with concise
statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).4 The orphans’ court filed its 1925(a) opinion on
December 19, 2022.
Mother presents the following issue for our review:
Did the [orphans’] court abuse its discretion and/or err as a matter
of law in concluding that CYF met its burden of proving by clear
and convincing evidence that termination of Mother’s parental
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3 To the extent that the orphans’ court terminated Mother’s parental rights to
J.M. pursuant to § 2511(a)(8), it erred because CYF did not plead this
subsection in its petition. See In Interest of: T.J.J.M., 190 A.3d 618, 629
(Pa.Super. 2018).
4 This Court consolidated the appeals sua sponte.
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rights would serve the needs and welfare of [C.M. and J.M.]
pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s brief at 4.
We consider Mother’s issue mindful of our well-settled standard of
review. “In cases concerning the involuntary termination of parental rights,
appellate review is limited to a determination of whether the decree of the
termination court is supported by competent evidence.” In re Adoption of
C.M., 255 A.3d 343, 358 (Pa. 2021). Appellate courts must accept the
orphans’ court’s findings of fact and credibility determinations if the record
supports them. See Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa. 2021).
An appellate court may disturb a ruling supported by competent evidence in
the record only upon discernment of an error of law or abuse of discretion.
See In re Adoption of L.A.K., 265 A.3d 580, 591 (Pa. 2021).
In this context, “an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion” or “the facts
could support an opposite result.” In re Adoption of S.P., 47 A.3d 817, 826-
27 (Pa. 2012). Instead, an appellate court may reverse for an abuse of
discretion “only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” Id. at 826. This standard of review reflects the
deference we pay to trial courts, who often observe the parties first-hand
across multiple hearings. See Interest of S.K.L.R., 256 A.3d at 1123-24.
The involuntary termination of parental rights is governed by § 2511 of
the Adoption Act, which requires a bifurcated analysis. See 23 Pa.C.S.
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§ 2511. The trial court must initially determine whether the conduct of the
parent warrants termination under § 2511(a). Only if the court determines
that the petitioner established grounds for termination under § 2511(a) does
it then engage in assessing the petition under § 2511(b), which involves a
child’s needs and welfare. See In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
To involuntarily terminate parental rights, the petitioner must prove
grounds under both § 2511(a) and (b) by clear and convincing evidence, which
is evidence that is so “clear, direct, weighty, and convincing as to enable a
trier of fact to come to a clear conviction, without hesitance, of the truth of
the precise facts in issue.” C.M., supra at 359 (quoting Matter of Adoption
of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998)). It is axiomatic that we
need only agree with any one subsection of § 2511(a), along with § 2511(b),
to affirm the termination of parental rights. See In re Adoption of K.M.G.,
219 A.3d 662, 672 (Pa.Super. 2019) (en banc) (citation omitted).
Mother challenges the orphans’ court’s needs and welfare analysis
pursuant to § 2511(b), which 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.
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23 Pa.C.S. § 2511(b).
Our Supreme Court explained that when examining the effect upon a
child of severing a bond, courts must examine whether the termination of
parental rights will destroy a “necessary and beneficial relationship,” thereby
causing a child to suffer “extreme emotional consequences.” In re E.M., 620
A.2d 481, 484-485 (Pa. 1993). The High Court also recognized that
“[c]ommon sense dictates that courts considering termination must also
consider whether the children are in a pre-adoptive home and whether they
have a bond with their foster parents.” In re T.S.M., supra at 268.
It is beyond cavil that, “[w]hile a parent’s emotional bond with his or
parent is a major aspect of the [s]ubsection 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.” In re M.M., 106 A.3d
114, 118 (Pa.Super. 2014). In this vein, the In re E.M. Court highlighted,
“[i]n addition to a bond examination, the trial court can equally emphasize the
safety needs of the child, and should also consider the intangibles, such as
the love, comfort, security, and stability the child might have with the foster
parent.” In re E.M., supra at 484-485. Similarly, the court may consider
the effect of the parent’s conduct upon the child and contemplate “whether a
parent is capable of providing for a child’s safety and security or whether such
needs can be better met by terminating a parent’s parental rights.” Interest
of L.W., 267 A.3d 517, 524 (Pa.Super. 2021). Finally, in weighing the parent-
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child bond pursuant to § 2511(b), “courts must keep the ticking clock of
childhood ever in mind.” In re T.S.M., supra at 269. The T.S.M. Court
observed, “[c]hildren are young for a scant number of years, and we have an
obligation to see to their healthy development quickly. When courts
fail . . . the result, all too often, is catastrophically maladjusted children.” Id.
Instantly, Mother argues that the record evidence does not support
termination under § 2511(b) because C.M. and J.M. have a beneficial bond
with her and there is no evidence regarding “the impact that termination”
would have on them. Mother’s brief at 13. The certified record belies both
aspects of this contention.
In terminating Mother’s parental rights, the orphans’ court concluded:
At best, the testimony and evidence demonstrated that [C.M. and
J.M.] were merely familiar and comfortable in Mother’s presence
for brief periods of supervised time. In weighing whether
termination would cause extreme, irreparable emotional
consequences to [C.M. and J.M.], there was no evidence that
[they] would suffer such consequences. Moreover, the evidence
supported that any potential detriment or consequences would be
mitigated by the positive, loving, supportive, and secure
relationship [C.M. and J.M.] established with the foster parents.
Orphans’ Court Opinion, 12/19/22, at 14. The evidence supports the court’s
findings.
During the evidentiary hearing, Dr. Lobb testified about (1) his forensic
psychological evaluation of Mother; (2) the respective interactional
evaluations of Mother with C.M. and J.M., and between the children with the
foster parents; and (3) whether he observed any meaningful parent-child
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bonds. In short, Dr. Lobb did not believe that it would be emotionally
detrimental to C.M. or J.M. if the court terminated Mother’s parental rights.
N.T., 9/30/22, at 37-38. In fact, he recommended adoption because it could
be detrimental to C.M. and J.M. if permanency was not achieved as soon as
possible. Id. at 37. His analysis follows.
Dr. Lobb observed a bond between Mother and both children but was
unable to assess the significance of the bond because Mother became upset
and terminated the interactional evaluation prematurely after C.M. referred to
the foster mother as “Mommy.” Id. at 33. He explained, “I think there was
a bond there, for sure. Again, it was cut short with only half of what I normally
have. Sometimes as the interactional goes on . . . other things do sort of
occur in the last half hour that would provide additional information. . . . My
biggest concern with [Mother] is her stability. Id. at 36. He further
highlighted his doubts about Mother’s “ability to be able to take care of these
kids in an unstructured, unsupervised kind of setting by herself, when she was
only able to last thirty minutes in my office.” Id. at 34.
In contrast to Mother’s truncated interactional evaluation, Dr. Lobb
characterized the children’s interaction with foster parents as excellent,
noting, “They were both very engaged with the kids. They worked well
together. . . .” Id. at 35. Dr. Lobb identified “a strong bond” between both
children and the foster parents. Id. at 36. Significantly, Ms. Snyder, the CYF
caseworker, shared Dr. Lobb’s assessment of the bond the children have with
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the foster parents, who the children refer to as “Mom” and “Dad.” Id. at 159.
Ms. Snyder testified that the primary bond of C.M. and J.M. “appears to be
with the foster family[.]” Id. at 162.
To the extent that Mother argues that Dr. Lobb’s recommendation in
favor of the termination of parental rights was based “in part on the foster
parents’ indication that they would allow future contact between Mother” and
C.M. and J.M., that assertion misrepresents the substance of his testimony.
Mother’s brief at 12. On cross-examination by Mother’s counsel, Dr. Lobb
testified:
Q. [I]f I heard you correctly, you weren’t concerned [about] the
children suffering any detriments if Mother’s rights were
terminated. But I thought I heard you say something about the
foster parents being willing to allow contact. Is that why you feel
there wouldn’t be any detriment, because there would be post[-
]adoption contact?
A. No. I don’t think there would be detriment because . . . foster
parents . . . are the primary caregivers of these children at this
point. . . .
Id. at 46. Hence, the record not only belies Mother’s contention that
Dr. Lobb’s support of terminating parental rights was contingent upon
Mother’s continued post-adoption contact with the children, insofar as
Dr. Lobb did not identify any detriments if Mother’s rights were terminated, it
further bolsters the orphans’ court’s conclusion that the children did not share
a necessary and beneficial relationship with Mother.
Moreover, Dr. Lobb testified that Mother’s alcoholism and drug addiction
remained unstable. While Mother participated in a rehabilitation program and
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self-reported attaining approximately two months of sobriety, Dr. Lobb
indicated that “it seemed like her substance use was not completely under
control at th[e] point” he evaluated her. He explained, “I don’t consider [it]
to be stable[.] [I]t’s positive but there is a long road ahead. . . .” Id. at 24.
As it relates to the effect of Mother’s behaviors on the children, Dr. Lobb
testified, “I am concerned that while mom appears to make progress in certain
areas and h[as] been working at times to address her substance abuse issues
[and] mental health issues, I’m concerned about her stability and these kids
continue to wait without permanency because of that.” Id. at 37.
Like Dr. Lobb, Ms. Kohnfelder, the caseworker from TRAC Services for
Families, the foster care agency which placed C.M. and J.M., also noted her
concerns about the damaging effect of Mother’s mental health problems on
the children. She confirmed that Mother ended visitations early on at least
six occasions “stating that she was feeling anxious or upset on that day on
June 18, 2021; September 1, 2021; January 5, 2022; May 30, 2022; April 13,
2022; [and] May 20, 2022[.]” Id. at 92. With respect to the supervised visit
on May 20, 2022, Mother responded to one child’s temper tantrum by
bemoaning,
“I don’t know what to do when they get like this . . . I just can’t
do this. I think I’m going to leave after they eat because I just
mentally cannot right now. I know that sounds bad, but if CYF
never took them then I would be used to this, but I’m not.”
Id. at 92, 93.
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Similarly, Ms. Kohnfelder described an incident during an earlier
supervised visit that occurred on August 11, 2021, when C.M. “had fallen and
. . . hit his lip on the ground and it started bleeding. Mother stated, ‘I’m a
horrible mother and this wouldn’t have happened if he wasn’t in foster care.’
She was unable to remain calm in a stressful situation and she left the
visitation.” Id. at 93. Crucially, Ms. Kohnfelder indicated that Mother never
demonstrated an ability to overcome stressful parenting situations and
complete the visitations as scheduled. Id.
In sum, the foregoing evidence supports the court’s conclusion that
terminating Mother’s parental rights will serve the developmental, physical,
and emotional needs and welfare of C.M. and J.M. The witnesses consistently
testified both that it would not be detrimental to sever any bond between
Mother and C.M. or J.M. and that the primary bonds of both children are with
their foster parents, not to Mother. Critically, C.M. and J.M. have lived virtually
the entirety of their young lives with their foster parents, who are a pre-
adoptive resource. Moreover, the certified record demonstrates that Mother
is not capable of providing for a child’s safety and security. Specifically,
Mother’s unresolved substance abuse and mental illness continue to impact
her parenting skills as outlined in the revealing discussions about her lack of
composure during the supervised visitations.
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Accordingly, having discerned no abuse of discretion by the orphans’
court, we affirm the orders involuntarily terminating Mother’s parental rights
to C.M. and J.M.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2023
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