In the Interest of: D.R.-D., Appeal of: J.R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: D.R.-D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.R., MOTHER :
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: No. 16 WDA 2023
Appeal from the Order Entered December 1, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): CP-02-AP-0000080-2022
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 31, 2023
J.R. (Mother) appeals from the order entered in the Court of Common
Pleas of Allegheny County (trial court) involuntarily terminating her parental
rights to her daughter, D.R-.D., born in November 2019 (Child).1 We affirm.
I.
Allegheny County Office of Children, Youth and Families (CYF) first
received a report regarding the family from the hospital when Child was born
because Mother was positive for THC and she admitted to smoking marijuana
throughout her pregnancy. CYF remained involved because of allegations of
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* Retired Senior Judge assigned to the Superior Court.
1Child’s biological father, W.D. (Father) signed a consent to adoption for Child
on October 26, 2022. Child is in the care of Father’s mother, T.J. (Paternal
Grandmother) and she is Child’s prospective adoptive parent.
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untreated mental health and substance abuse issues, periods of incarceration
for both parents and domestic abuse. CYF obtained an order for emergency
protective custody of Child on August 2, 2020, upon the incarceration of both
parents. Child has not returned to their care since that time and she was
placed with Paternal Grandmother with whom she currently resides. Child was
adjudicated dependent in September 2020 and CYF filed petitions seeking
involuntary termination of Mother and Father’s parental rights on June 30,
2022.
Several witnesses testified at the October 26, 2022 hearing, including
CYF Caseworker Hannah Shankle, licensed psychologist Terry O’Hara, Ph.D.
and Mother. Child was three years old at the time. Ms. Shankle testified that
she has been involved with the family since February 2021 and that Mother
has two other children, neither of whom are in her care.2 At the time of Child’s
birth, Mother needed assistance with housing and has a criminal history
including convictions for simple assault and criminal trespassing. Ms. Shankle
relayed that Mother was difficult to locate, could not be reached on the phone,
and no one was present at the residence for home visits. Mother was located
in February 2020 with the use of a private investigation firm. She was then
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2 Mother’s rights to one of her children were voluntarily terminated and
another child resides with the father.
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residing with a friend who had prior convictions for endangering the welfare
of a child.
Ms. Shankle testified to concerns about Mother’s mental health because
she had expressed feeling overwhelmed with an inability to care for Child and
wanted to put Child up for adoption. Mother reported to CYF that she had
been diagnosed with “PTSD, ADHD, anxiety and borderline personality
disorder. She stated that she was overwhelmed, that when she was pregnant,
she had stopped her medication and she had not resumed medication at that
point in time. She also informed CYF that she knows that she needs
medication but that she was not currently taking them.” (See N.T. Hearing,
10/26/22, at 79). CYF goals for Mother included participation in substance
abuse treatment, behavioral health services, counseling for domestic violence
issues, resolve her criminal matters including drug charges, abstain from
further criminal activity, maintain appropriate housing, complete parenting
classes, and attend visitation with Child.
Ms. Shankle also testified to domestic violence concerns regarding
Mother and Father, as he had been arrested for assaulting her and she had
obtained a PFA against him. Mother has participated in some of the services
offered to her by CYF, including parenting and various treatment programs,
and Child was happy to see Mother during supervised visits. However,
visitation with Child was inconsistent, with Mother attending 42 out of the 128
in-person visits offered and 20 of the 60 virtual visits. Ms. Shankle opined
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that termination of Mother’s parental rights was needed because Child had
been in placement for 26 months and Mother had not met or made significant
progress towards any of her goals.
Ms. Shankle testified that has observed positive, appropriate interaction
between Paternal Grandmother and Child during home visits and Paternal
Grandmother provides Child with affection and comfort. (See id. at 143).
Paternal Grandmother is being evaluated by CYF as an adoptive resource and
will likely be approved. Ms. Shankle testified that Mother is not meeting any
of Child’s educational, psychological or developmental needs. While Mother
and Child do have a relationship, the same concerns that were present in
November 2019 persist despite Mother’s opportunities to rectify them. Ms.
Shankle also noted a significant decline in Mother’s progress since March 2022
with regard to her multiple incarcerations, housing issues and inconsistency
in visitation. (See id. at 145). Ms. Shankle opined that termination of
Mother’s parental rights would not negatively impact the Child and she stated
that Child is engaged in services to prepare for adoption designed to assist
with any emotional impact.
Dr. O’Hara was qualified as an expert in the area of child and forensic
psychology and he testified that although Mother was generally cooperative
during the evaluation process, she did not assume responsibility for her
circumstances. Dr. O’Hara diagnosed Mother with unspecified depressive
disorder and he testified that she exhibited signs of major depression, PTSD,
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moderate alcohol abuse disorder and partner physical violence. (See id. at
45-46). Dr. O’Hara noted that Mother showed positive parenting skills
towards Child, including encouraging reading, and he opined that termination
of her rights would have some detrimental effect. However, he observed that
Mother and Child had only had about 20 visits over the course of a year, and
that under such circumstances, it would be very difficult for any child to
develop a secure attachment with a caretaker and view that person as a
dependable source of care and comfort. (See id. at 49-50). Dr. O’Hara
advised against reunification, especially in light of the very positive and secure
relationship the Child has with Paternal Grandmother, who shows strong
parenting skills towards Child. Dr. O’Hara also opined that based on his 20
years of experience working with children, “that there is an urgency of
permanency,” at Child’s age. (Id. at 54).
Mother testified that she has participated in parenting, mental health
and domestic violence programs offered by CYF. She explained that her
primary residence is in Erie with her parents, and that she rents an apartment
at her uncle’s home in Allegheny County. Mother acknowledged that when
Child was born, she needed assistance with obtaining safe housing and
resuming therapy and medication. (See id. at 183). Mother stated that she
attends Alcohol Anonymous meetings and that she has a medical marijuana
card, although she did not submit a copy of the card to CYF. Mother explained
that she has missed visits with Child because of transportation issues,
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although she has been provided with bus tickets. She reported that her visits
with Child go well and that she is in a position to care for Child at her parents’
large property in Erie.
After the hearing, the trial court entered an order involuntarily
terminating Mother’s parental rights to Child pursuant to 23 Pa.C.S.
§§ 2511(a)(2), (5), (8) and (b). In doing so, it found that Mother was not a
credible witness; Ms. Shankle was exceptionally prepared and credible;
Mother was incarcerated for 194 days of Child’s first three years of life; Mother
has not obtained appropriate, safe housing in that her housing in Allegheny
County has been unstable and her housing in Erie not clearly established;
Mother never progressed to unsupervised or overnight visits with Child;
although the interactions between Mother and Child were positive, the court
gave great deference to the opinion of Dr. O’Hara, who testified that it is
difficult for a child to develop a secure relationship with an individual they see
only 20 times per year. (Order, 12/01/22, at 2-4). Mother timely appealed
and she and the trial court complied with Rule 1925. See Pa.R.A.P.
1925(a)(2)(i)-(ii).3
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3 The trial court found Mother’s issues on appeal, in which she generally
challenged its Section 2511(a)-(b) analysis, waived for lack of specificity but
addressed her claims in the event this Court found otherwise. (See Trial Court
Opinion, 1/30/22, at 19); see also Pa.R.A.P. 1925(b)(4)(vii). Because we
are able to discern Mother’s issues from the record, we decline to find waiver.
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II.
A.
Mother’s issues on appeal challenge the trial court’s decision that
termination of her parental rights to Child is warranted, and its finding that
termination serves Child’s best interests is not supported by clear and
competent evidence.4
The following legal principles guide our review. Section 2511 of the
Adoption Act governs termination of parental rights and requires a bifurcated
analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the trial court
determines that the parent’s conduct warrants termination of his
or her parental rights does the trial court engage in the second
part of the analysis pursuant to Section 2511(b): determination
of the needs and welfare of the child under the standard of best
interests of the child. One major aspect of the needs and welfare
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4
Our standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
Interest of D.R.-W., 227 A.3d 905, 911 (Pa. Super. 2020) (citation omitted).
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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 S.C., 247 A.3d 1097, 1103 (Pa. Super. 2021) (citation omitted).
“A child has a right to a stable, safe, and healthy environment in which
to grow, and the child’s life simply cannot be put on hold in the hope that the
parent will summon the ability to handle the responsibilities of parenting.” Id.(citation omitted). When a parent has demonstrated a continued inability to
conduct her life in a manner conducive to providing a safe environment for a
child, and the behavior is irremediable as supported by clear and competent
evidence, the termination of parental rights is justified. See id. at 1105.
In this case, the trial court terminated Mother’s rights pursuant to
Sections 2511(a)(2), (5),(8) and (b), which provide as follows:
(a) General rule.—The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(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.
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(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
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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.
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(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,
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), (5), (8) and (b).
We are also mindful that “incarceration, while not a litmus test for
termination, can be determinative of the question of whether a parent is
incapable of providing essential parental care, control, or subsistence.” Int.
of K.M.W., 238 A.3d 465, 474 (Pa. Super. 2020) (en banc) (citation omitted).
While incarceration in itself is not sufficient to support termination under any
subsection, it does demonstrably impact a parent’s capability of performing
parental duties and may render her incapable of fulfilling these obligations.
See id.-9-
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B.
Mother first contends the trial court erred in terminating her parental
rights because she has remedied the conditions that led to Child’s removal by
addressing her criminal matters, participating in parenting classes and various
treatment programs, and by implementing the skills she has developed during
her visits with Child. Mother maintains that she is in a “much better place
now than when [Child] was removed,” that the evidence was insufficient to
establish that termination is warranted, and that the evidence instead
demonstrates that she is able to provide Child with essential parental care.
(Id. at 24).
We observe with regard to the Juvenile Act that its goal is to “preserve
the unity of the family whenever possible or to provide another alternative
permanent family when the unity of the family cannot be maintained.” 42
Pa.C.S. § 6301(b)(1). The Act is additionally intended to “prevent children
from languishing indefinitely in foster care, with its inherent lack of
permanency, normalcy, and long-term parental commitment.” Interest of
A.M., 256 A.3d 1263, 1273 (Pa. Super. 2021) (citation omitted).
In this case, although Mother claims that she has made great strides
towards accomplishing the goals set by CYF, the record reflects that she has
put forth minimal effort to work towards establishing a meaningful parental
role in Child’s life. As the trial court cogently explained:
Mother has a long history of problems with her ability to
adequately provide for her children’s needs, give them a safe and
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stable environment, and address her own needs to the degree that
she can be a ready, willing, and able parent. Removal originally
occurred because of housing instability and Mother’s mental
health needs, as well as her use of marijuana. It was later learned
that mother also struggled with alcohol. Mother was consistently
evasive with the Agency about her housing, mental health
treatment, and drug and alcohol treatment. While mother made
genuine attempts to address her ability to parent her children,
they were inconsistent and unsuccessful.
* * *
[Mother was] exceptionally inconsistent with visitation,
missing approximately one-third of all visits, and was evasive
about her housing situation. Mother’s housing status was often
unknown—she reported to the Agency living in the Erie area, but
would then report living in various locations in Allegheny County.
This inconsistency continued despite receiving housing-search
assistance from Ms. Shankle. Where mother lived was much less
important than her location being consistent. Her changing
housing led to issues with finding her for visitation and providing
transportation assistance. . . .
The child needs a permanent, stable home and the
demonstrated history of this case as well as the testimony of Dr.
O’Hara makes clear that Mother cannot provide that. Mother
never progressed past supervised visitation, and even at that,
missed a third of the offered visits. Her inconsistency and
unreliability in treatment and unstable housing, as well as her
repeated incarceration demonstrate that she is currently incapable
of providing a safe, stable, permanent home for the Child. This
Court does not place weight on incarceration on its own, but when
that incarceration is the result of repeatedly missing court dates
and violating bond conditions, such behavior is strong evidence of
instability and unreliability. The Child needs a stable and reliable
caregiver, and Mother is currently incapable. . . .
The evidence in this case establishes that at no point from
Removal in August 2022 to the present, has Mother been ready,
willing, and able to meet the Child’s developmental, physical, and
emotional needs. Her lack of progress in establishing stable
housing and inconsistency with treatment coupled with her
inconsistency in visitation and repeated stints of incarceration
make this clear. Mother has been incarcerated for approximately
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one fifth of the Child’s life. She has not engaged with treatment
in a manner that has allowed her to make any progress towards
stability. She has not visited consistently and Dr. O’Hara has
explained that it is “very difficult for a child to develop security in
one’s attachment with a caregiver without not only meaningful
contact, but consistent contact.” He continued that “it would be
difficult from my perspective, theoretically for a child to be able to
develop attachment security with only twenty meetings with the
caregiver over the course of the year.”
(Trial Ct. Op., at 22-25).
Therefore, although Mother claims to have made progress, the record
demonstrates that the same conditions that led to CYF’s involvement since
Child’s birth persisted three years later, despite Mother’s opportunities to
rectify them. In fact, Ms. Shankle testified to a significant decline in Mother’s
progress since March 2022 with regard to her multiple incarcerations, housing
issues and inconsistency in visitation. As noted above, the trial court, after
hearing the witnesses and observing their demeanors, found Ms. Shankle
extremely prepared and credible, and that Mother was not a credible witness.
Because the record demonstrates Mother’s inability or unwillingness to fulfill
her parental obligations, her first issue merits no relief.
C.
Mother next contends the trial court erred in finding that termination of
her parental rights is in Child’s best interests under Section 2511(b). Mother
maintains that she has a strong bond with Child and that termination would
unnecessarily and permanently deprive Child of the loving relationship she has
with Mother. Mother points to the testimony of Dr. O’Hara, who indicated that
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Child valued her relationship with Mother and termination of Mother’s parental
rights would have a detrimental impact.
In considering Section 2511(b), we are guided by the following
principles:
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
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 Section 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 addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, this
Court stated that the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
D.R.-W., supra at 914 (citations omitted).
Instantly, credible witnesses testified that termination of Mother’s
parental rights would serve Child’s best interests and that reunification should
not be the goal given Child’s need for permanency. The trial court found:
It is [] important to note that Dr. O’Hara stressed the need
for permanency for a child this age. Mother cannot provide that
necessary permanency. Mother has made no meaningful progress
towards being able to meet the developmental, emotional, and
physical needs of the child, and as a result, termination is in the
Child’s best interest. Importantly though, foster mother has
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consistently taken the child to all medical appointments and is
meeting the child’s educational and developmental needs.
(Trial Ct. Op., at 25) (record citation omitted).
Although Mother points to the testimony of Dr. O’Hara in support of her
argument, she cherry picks from his testimony to paint it in the light most
beneficial to her, while wholly ignoring the fact that he advised against
reunification and opined that her lack of contact with Child made it extremely
unlikely that any type of secure relationship could have formed between them
in contrast to the consistent and caring relationship Child has developed with
Paternal Grandmother who meets all of Child’s needs and Child looks to as a
source of comfort and support. Because the evidence supports the trial court’s
conclusion that termination of Mother’s parental rights would best serve
Child’s needs and welfare, we affirm its order pursuant to Section 2511(b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
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