In the Int. of: G.C.R., a Minor ( 2023 )

J-S45031-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: G.C.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.H., MOTHER :
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: No. 1129 MDA 2023
Appeal from the Decree Entered July 11, 2023
In the Court of Common Pleas of York County Orphans' Court at No(s):
2023-0011
IN THE INTEREST OF: H.M.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.H., MOTHER :
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:
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: No. 1130 MDA 2023
Appeal from the Decree Entered July 11, 2023
In the Court of Common Pleas of York County Orphans' Court at No(s):
2023-0012
IN THE INTEREST. OF: R.A.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.H., MOTHER :
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: No. 1131 MDA 2023
Appeal from the Decree Entered July 11, 2023
In the Court of Common Pleas of York County Orphans' Court at No(s):
2023-0013
J-S45031-23
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 27, 2023
A.H. (“Mother”) appeals from the decrees entered in the Court of
Common Pleas of York County Orphans’ Court, which involuntarily terminated
her parental rights to her minor children: twins, R.A.R. and H.M.R. (born in
September of 2017), and G.C.R. (born in October of 2019) (collectively “the
children”),1 pursuant to Section 2511 of the Adoption Act.2 Mother’s appointed
counsel, Brandy Hoke, Esquire, has filed an Anders3 brief seeking to withdraw
from representing Mother on appeal. After a careful review, we affirm the
orphans’ court’s decrees and grant counsel’s petition to withdraw.
The relevant facts and procedural history are as follows: On April 28,
2022, the York County Offices of Children, Youth, and Families (“the Agency”)
filed an application for the emergency protective custody of the children. On
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* Former Justice specially assigned to the Superior Court.
1 Mother filed a separate notice of appeal for each decree regarding each child.
This Court consolidated the appeals. Father has not filed an appeal from the
orphans’ court’s decrees, which involuntarily terminated his parental rights to
the children.
2 23 Pa.C.S.A. §§ 2101-2938.
3 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (Pa. 2009). The Anders principles and
process have been extended to appeals involving the termination of parental
rights. See In re V.E., 611 A.2d 1267 (Pa.Super. 1992) (extending Anders
briefing requirements to termination of parental rights appeals involving
indigent parents represented by court-appointed counsel).
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May 11, 2022, the children were adjudicated dependent, and at a status
review hearing held on January 26, 2023, the orphans’ court changed the
goals from reunification with a concurrent goal of adoption to the primary goal
of adoption with a concurrent goal of return to parent. Neither Mother nor
Father appealed the January 26, 2023, goal change orders.
On January 24, 2023, the Agency filed a petition for the involuntary
termination of parental rights as to the children, and the Agency amended the
petition on May 5, 2023. The Agency sought termination pursuant to 23
Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b).
On July 10, 2023, the orphans’ court held a termination of parental
rights hearing at which the children were represented by Christopher Moore,
Esquire, as legal counsel, and Daniel Worley, Esquire, as the guardian ad
litem. Mother and Father appeared for the hearing, and they were
represented by separate court-appointed counsel. Specifically, Brandy Hoke,
Esquire, represented Mother while Thomas Gregory, Esquire, represented
Father.
At the hearing, Shari Delafield, who provided services to Father through
JusticeWorks, testified she had scheduled visits with Father on June 22, 2023,
and June 23, 2023; however, he was a “no show.” N.T., 7/10/23, at 15. On
June 26, 2023, Ms. Delafield arrived at Father’s residence unannounced, and
Father opened the door. Id. However, Father was “heightened” and appeared
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to have been crying. Id. He informed Ms. Delafield that he could not “deal
with services today,” and he asked her to leave. Id.
On June 29, 2023, Ms. Delafield saw Father at a job site in Dillsburg,
Pennsylvania, and she informed him that it was necessary for her to view the
interior of Father’s trailer. Id. at 16. Even though Father had refused her
past offers to clean the trailer, Ms. Delafield testified she again asked Father
if he wanted her to assist in cleaning his trailer. Id. Father declined her
assistance. Id.
Ms. Delafield reminded Father that, since he had reported he started a
new job as a painter, she needed his new income information. Id. Ms.
Delafield testified Father had previously worked at night, but he found that
nighttime work “messed with his mental health,” so he switched to a day job.
Id. at 18. She noted Father never provided any verification that he had, in
fact, started the new day job as a painter. Id. Father provided her with no
contact information for the new employer or any pay stubs. Id. at 19.
Ms. Delafield testified she did not hear from Father after her June 29,
2023, visit, so she attempted to conduct an unannounced visit on July 5, 2023;
however, Father was not at his trailer. Id. at 18. She scheduled a visit for
July 6, 2023, but Father failed to appear. Id. She noted that she had not
been allowed in Father’s trailer since the last court date on June 21, 2023.
Id. at 17.
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At this point in the hearing, since Mother and Father were both present
in the courtroom, the orphans’ court directed that Linda Tirado-Lopez from
JusticeWorks conduct a urine drug test on both parents. After the tests were
completed, Ms. Tirado-Lopez testified Father’s urine tested positive for
methadone, for which he had a prescription. Id. at 23. Mother tested positive
for cocaine and methadone. Id. at 66. She noted Mother was not in a
methadone program for methadone maintenance. Id.
Elyse Nangle, a caseworker for the Agency, testified she received the
initial referral for the family on April 18, 2022, and she has been the sole
caseworker for the family since that time. Id. at 26. Ms. Nangle noted that
Mother had been incarcerated, and after she was released from prison, Ms.
Nangle went to the address where Mother was supposed to be staying. Id.
No one answered the door at the residence. Id. at 27.
She noted that Father had referrals dating back to October of 2017, and
he received services until April 2, 2018. Id. The referral was for inadequate
housing for the children and substance abuse as to both parents. Id. When
the referral was made, paternal grandmother took the twins, R.A.R. and
H.M.R., as a thirty-day emergency caregiver while the parents received
services. Id. Then, on October 8, 2019, the Agency received a referral that
G.C.R. was born positive for buprenorphine, but the case was closed in
November of 2019. Id.
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However, on April 18, 2022, a new referral was made related to Mother’s
and Father’s substance abuse and domestic violence issues. Id. at 28. Drug
and alcohol services were offered to Mother and Father, but the services were
unsuccessful. Id. Specifically, on April 28, 2022, Ms. Tirado-Lopez contacted
Ms. Nangle and reported she had concerns about Father, who was the sole
caregiver for the children, being under the influence. Id. at 29. Father could
not provide a “warm” urine sample for testing. Id. Also, the children were
sleeping in excess of eleven hours a day, and Father admitted that he had
“medicated them.” Id. She noted that, as of this time, there was a protection
from abuse order in place between Mother and Father. Id. Thus, the Agency
filed the petition for emergency protective custody, and the children have
remained in placement since April 28, 2022, which is approximately fourteen
months. Id. She noted the children have been adjudicated dependent. Id.
at 30.
She noted that, at various points, Mother and Father have been
homeless, and she has provided them with services. Id. She noted Mother’s
general goals have been to participate in drug and alcohol evaluations, and
although Mother initially complied and took methadone, she is no longer
attending drug and alcohol treatment. Id. at 31. She noted that Mother’s
whereabouts have been unknown, so she is not aware whether Mother has
been receiving methadone. Id. She also noted that Mother was “hit or miss”
with her required drug and alcohol testing. Id. Mother appeared for testing
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eight times, and six times she was negative, but each time “there were some
issues with the tests.” Id. In November of 2022, Mother tested positive for
methadone. Id. at 32. Since February of 2023, Mother’s whereabouts have
been unknown, she has not cooperated with the Agency, and she did not
appear for any drug tests. Id.
Ms. Nangle testified that Mother was supposed to participate in domestic
violence and mental health treatment; however, Mother never appeared for
the treatment. Id. Further, Mother was supposed to participate in nurturing
parenting classes; however, she missed the initial class. Id. at 33. Mother
reenrolled in the class, but she missed the first month due to “scheduling
issues.” Id. Mother did not complete the course. Id. Mother was supposed
to receive in-home team assistance; however, as of February 28, 2023,
Mother’s whereabouts were unknown by the Agency, so Mother did not receive
the service. Id. Mother has not maintained a consistent source of income, and
Ms. Nangle indicated she “honestly could not remember the last time [Mother]
was employed.” Id. at 52.
Ms. Nangle testified the last time Mother appeared for visitation was on
February 28, 2023, and she never progressed past the supervised visit level
due to her ongoing concerns of sobriety. Id. at 41. She also noted the
children had negative behaviors after Mother visited. Id. She testified that
Mother has made “no” progress with her goals. Id. at 37.
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Ms. Nangle testified Father’s goals included drug and alcohol
evaluations, and he has been going daily for methadone maintenance. Id. at
34. Father was supposed to comply with drug and alcohol testing, but he has
been “hit or miss” with appearing for his scheduled tests. Id. Father was
directed to submit to hair follicle testing in June of 2023; however, the hair
sample provided was too short for proper testing. Id. When Father had a
hair follicle test in March of 2023, it came back positive for cocaine. Id. at
35. Ms. Nangle noted Father cut his hair extremely short after the March 2023
test came back positive. Id. at 61.
Ms. Nangle indicated Father was to participate in domestic violence and
mental health treatment beginning on March 28, 2023; however, she has
received no confirmation that he started the program. Id. She noted that,
overall, Father’s progress with his goals has been “very minimal.” Id.
Regarding Father’s residence, which is a trailer, she noted the trailer was “very
cluttered” when she last viewed it in June of 2023. Id. at 38. When she last
visited, she “sank into the floor.” Id. She opined that the condition of the
home was not suitable for the children. Id. at 59.
Ms. Nangle testified Father, like Mother, has never progressed from
supervised visitation with the children due to the concerns about his sobriety
and the children’s poor behavior after his visits. Id. at 42. Ms. Nangle testified
that, after supervised visits with Mother and Father, the children exhibited
negative behaviors. Id. In this regard, she testified as follows:
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The…[initial] foster mom…[reported that] after visits the
children would become aggressive, hitting, biting her and other
kids in the home, calling her a bitch. They would smear poop on
the walls and purposely urinate in their room on the floor.
Recently, after visits, they are just very hyper and whiney.
Id. at 42-43.
Ms. Nangle testified that all services at the Agency’s disposal were
offered to Mother and Father, and they never requested any services that the
Agency was unwilling to provide. Id. at 43. She noted that, during the time
the Agency has been involved, Father has paid “$105.00 total for all three
children,” and Mother has made no financial contribution. Id. at 40. She
indicated neither parent has provided any direct financial support to any of
the foster homes. Id. She noted that, throughout the adjudication, neither
Father nor Mother have kept her adequately informed as to where they are
residing. Id. at 39.
Ms. Nangle testified that, since February of 2023, the children have been
placed together with the same foster parents, who want to adopt the children.
Id. at 43, 47. She indicated the children are “happy” and bonded with the
pre-adoptive foster parents, and the children do not ask about their biological
parents. Id. at 48. She testified that during recent visits she asked the
children if they want to go home with Mother and Father, and the children
have indicated they want to stay with their pre-adoptive foster parents. Id.
at 49. She noted that, when she first met the twins in April of 2022, they
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were “very skinny.” Id. at 48. However, since being in placement, the twins
have “put weight on,” became “less hyper,” and are “more well-behaved.” Id.
She noted Mother and Father have attended “a few” of the children’s
medical appointments; however, they have not been involved with speech
therapy for the twins, who have a “significant need” in this area. Id. at 43.
She also noted that the foster parents took G.C.R. for his scheduled medical
appointments, and during one such medical appointment, it was confirmed
that G.C.R. has “one kidney, [as well as] severe asthma.” Id. at 44. Neither
Mother nor Father attended the medical appointment where G.C.R.’s kidney
irregularity was discussed. Id.
Ms. Nangle testified that, during the past twelve months, aside from
sporadically attending supervised visitation, Mother and Father have given the
children Christmas and birthday gifts. Id. However, neither Mother nor
Father have made substantial progress toward alleviating the circumstances
that led to the original placement. Id. For instance, neither Mother nor Father
have completed domestic violence and mental health treatment. Additionally,
they have not completed various courses as described supra. Id. at 45. She
testified that, despite the history of domestic abuse, Mother and Father
continue to have contact with each other. Id. Ms. Nangle opined that neither
Mother nor Father have been working diligently towards resuming their
parental responsibilities for the children. Id.
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Ms. Nangle testified it would be in the best interest of the children for
Mother’s and Father’s parental rights to be involuntarily terminated. Id. at
46. In this vein, she indicated:
These parents have not successfully completed any goals in
the Family Service Plan. These children adore [the pre-adoptive
foster parents]. My co-workers in the back and myself saw them
last Thursday. They were loving[.] They are very sweet kids.
[The children] need stability and these children need to be
able to get to appointments, and especially the girls getting their
speech worked on. Mother has been MIA for—since February—
***
The in-home JusticeWorks has been trying to get into
[Father’s] home since the last hearing and to complete a budget
with no success. So, we have no way to prove stability.
Id. at 46-47.
Ms. Nangle testified that, from February 28, 2023, to June 21, 2023,
Mother had no contact with the Agency, and in May or June of 2023, the
Agency independently discovered that Mother was incarcerated. Id. at 61.
During this time, Mother did not submit to drug tests. Id. She noted Mother
has provided no contact information or information as to her residence since
she was released from jail. Id. at 63.
Attorney Worley, who is the children’s guardian ad litem, made the
following statement to the orphans’ court:
[M]y position is that I agree with the Agency’s
recommendation. I have seen the children in the home of the
current foster parents. They are very happy. They like it there.
They didn’t ask me about their [biological] parents when I
went to visit them. And the [biological] parents aren’t able at this
point to be there for them and to have a safe, stable house for
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them, and they still haven’t—especially Mother is working on her
active drug addiction. So, at this point, I feel it is in the best
interest to have rights terminated and allow them to be adopted.
***
The children seem to be very close to [the pre-adoptive
foster parents]. I asked if they call them mom or dad, and they
called them that sometimes. Like, it’s “Daddy John” or “Mommy
Amy.” They are still working on it. They don’t want to step on
the [biological] parents’ toes. But just by living there [the
children] naturally look to them as a parental figure. You can tell
they are very close.
The children seem happy. They seem really happy.
Id. at 69-70.
Attorney Moore, who was legal counsel for the children, indicated as
follows:
I have been to the [pre-adoptive foster] home on two
separate occasions for about an hour each. I talked to the
children. I talked to the foster parents and with them in the room.
They are very excited. On both occasions, if I didn’t know the
facts of this case, I would assume that [the children] had always
been there.
As best I can claim, given their ages of 3 and 5, they couldn’t
get too substantively into [discussion] beyond their intellectual
abilities at their age, but based on my observations, they don’t
want to leave [the pre-adoptive foster home].
Id. at 70-71.
Attorney Moore noted that he discussed with the pre-adoptive foster
parents whether they would be willing to allow the children to have contact
with the paternal grandmother, and they indicated they would do whatever
was in the best interests of the children. Id. at 72.
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Mother testified she does not want the children to be taken away from
her, she loves the children, and she wants another chance. Id. Mother
admitted she was incarcerated from May 28, 2023, to June 29, 2023, and
prior to her incarceration she wasn’t “living anywhere.” Id. at 74. She
clarified that from February 28, 2023, until her incarceration, she was
“hopping from place to place” while relying on friends. Id. at 76. She admitted
that, since February 28, 2023, she did not call the Agency, get a job, visit the
children, or undergo a drug test (except for the positive urine test conducted
during the termination hearing). Id.
She noted she is currently looking for employment at warehouses, and
since her release from prison, she has been living off and on with her parents.
Id. at 73. She admitted that, after her release from prison, she did not make
an appointment for a drug or alcohol evaluation or contact the Agency. Id. at
74. She also admitted she has been talking to Father since her release from
prison, and he is trying to help her “stay clean.” Id. at 75. She indicated she
got the cocaine and methadone, for which she tested positive during the
termination hearing, from people in Harrisburg. Id. at 75-77.
Father testified he leases the lot for his trailer, and beginning on June
20, 2023, he began working as a house painter for Keys Painting. Id. at 80.
He testified he has paperwork proving his employment, but he left the
paperwork in his car. Id. He has not yet received a paycheck, and the work
is sporadic. Id. at 81. He indicated that, prior to starting with Keys Painting,
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he worked at a warehouse for four months; however, he quit the warehouse
job because the nightshift was “taking a toll on him,” and if he ever got the
children back, he needed to be available during the night. Id. at 82.
Father testified he goes once or twice a month for drug and alcohol
counseling and meetings. Id. at 83. He goes to a methadone clinic three
times a week to get his prescribed methadone. Id. Father testified he has not
addressed his mental health issues, but he does plan on making an
appointment to “see somebody for anxiety and depression.” Id. at 84.
Father admits he has a problem with being “last minute” about his
responsibilities, but he loves the children and does not want his parental rights
terminated. Id. at 86-87. He is “overwhelmed” and is trying to get his life
together. Id. at 87. He testified he cleaned the trailer; however, he admitted
he did not bring any photos or videos to prove he cleaned the trailer. Id.
At the conclusion of the hearing, the orphans’ court entered its decrees
involuntarily terminating Mother’s and Father’s parental rights under
subsections 2511(a)(1), (2), (5), (8), and (b) as to the children. Mother filed
a timely counseled notice of appeal, as well as a contemporaneous concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). The orphans’ court filed a responsive Pa.R.A.P. 1925(a)
opinion. Thereafter, on October 20, 2023, Mother’s counsel, Attorney Hoke,
filed a petition to withdraw her representation, as well as an Anders brief.
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On appeal, counsel raises the following issues on behalf of Mother
(verbatim):
1. Whether the Lower Court erred as a matter of law and/or
abused its discretion in finding there was sufficient evidence
presented to show that Mother by conduct continuing for a
period of at least six months immediately preceding the filing
of the petition either evidenced a settled purpose of
relinquishing parental claim to the child or has refused or failed
to perform parental duties pursuant to 23 Pa.C.S.A. §
2511(a)(1)?
2. Whether the Lower Court erred as a matter of law and/or
abused its discretion in finding there was sufficient evidence
was [sic] presented to show repeated continued incapacity,
abuse, neglect or refusal of Mother causing the child to be
without essential parental care, control or subsistence
necessary for the physical or mental well-being and that the
conditions and causes of any incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent pursuant
to 23 Pa.C.S.A. § 2511(a)(2)?
3. Whether the Lower Court erred as a matter of law and/or
abused its discretion in finding there was sufficient evidence to
show that the child was removed from the care of Mother for a
period of six months, the conditions which led to the removal
continue to exist and Mother cannot or will not remedy those
conditions in a reasonable period of time and termination will
serve the needs and welfare of the child pursuant to 23
Pa.C.S.A. § 2511(a)(5)?
4. Whether the Lower Court erred as a matter of law and/or
abused its discretion in finding there was sufficient evidence
that the child was removed for 12 months or more, the
conditions which led to removal continue to exist and
termination best serves the needs and welfare of the child,
pursuant to 23 Pa.C.S.A. § 2511(a)(8)?
5. Whether the Lower Court erred as a matter of law and/or
abused its discretion in finding there was sufficient evidence
presented that termination is warranted under 23 Pa.C.S.A. §
2511(b)?
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Anders Brief at 4-5.4
Our standard of review is well-settled:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the [orphans’] court’s factual findings and
legal conclusions. However, our standard of review is narrow: we
will reverse the [orphans’] court’s order only if we conclude that
the [orphans’] court abused its discretion, made an error of law,
or lacked competent evidence to support its findings. The
[orphans’] judge’s decision is entitled to the same deference as a
jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). Further,
we have stated:
Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result. We are
bound by the findings of the [orphans’] court which have adequate
support in the record so long as the findings do not evidence
capricious disregard for competent and credible evidence. The
[orphans’] court 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. Though we
are not bound by the [orphans’] court’s inferences and deductions,
we may reject its conclusions only if they involve errors of law or
are clearly unreasonable in light of the [orphans’] court’s
sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citations omitted).
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4 We note the Agency, as well as the children’s legal counsel and guardian ad
litem, notified this Court that they agree with Attorney Hoke’s conclusion that
there are no meritorious grounds for appeal, and, thus, they will not be filing
briefs with this Court.
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Before we begin our substantive analysis, we must address the
application to withdraw as counsel, which was filed by Mother’s counsel,
Attorney Hoke. When counsel files an Anders brief, this Court may not review
the merits without first addressing counsel’s request to withdraw.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa.Super. 2013). We
review Attorney Hoke’s Anders brief for compliance with the requirements set
forth by our Supreme Court in Santiago, supra.
[C]ounsel must:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id. at 361.
Additionally, pursuant to Commonwealth v. Millisock, 873 A.2d 748(Pa.Super. 2005) and its progeny, “[c]ounsel also must provide a copy of the
Anders brief to [her] client.” Commonwealth v. Orellana, 86 A.3d 877,
880 (Pa.Super. 2014). Counsel must attach to the brief a letter that advises
the client of her right to: “(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court’s attention in addition to the points raised by counsel in
the Anders brief.” Id. (internal quotation marks and citation omitted). “Once
counsel has satisfied the above requirements, it is then this Court’s duty to
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conduct its own review of the [orphans’] court’s proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super. 2007) (en banc)
(quotation omitted).
Here, Attorney Hoke filed a petition to withdraw, and, therein, she
confirmed she sent Mother a letter informing her of her right to obtain new
counsel, or to proceed pro se, and explained that Mother may raise any
additional arguments with this Court. A copy of this letter is attached to the
petition to withdraw.5 See Petition to Withdraw, filed 10/21/23.
In her Anders brief, Attorney Hoke sets forth the relevant history of the
case, as well as her reasons for concluding that Mother’s appeal is wholly
frivolous. Attorney Hoke states in her petition that a copy of this brief was
forwarded to Mother. See Petition to Withdraw, filed 10/21/23. Accordingly,
we conclude that Attorney Hoke has complied with the technical requirements
of Anders, Santiago, and Millisock. We, therefore, proceed with our
independent review of the record and the issues presented on Mother’s behalf.
Instantly, the orphans’ court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8), and (b). In order to
affirm the termination of parental rights, this Court need only agree with the
orphans’ court’s findings under any one enumerated subsection of 2511(a),
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5 We note Mother did not file a brief with privately retained counsel or pro se.
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as well as 2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). After review, we conclude that the record supports termination
under subsection 2511(a)(2), as well as 2511(b).
Pursuant to subsection 2511(a)(2), parental rights may be terminated,
after the filing of a petition, when:
[t]he repeated and continued incapacity, abuse, neglect[,] or
refusal of the parent has caused the child[ren] to be without
essential parental care, control[,] or subsistence necessary for
[their] 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.
23 Pa.C.S.A. § 2511(a)(2).
The orphans’ court relevantly indicated the following on the record at
the termination hearing:
With respect to 2511(a) and the enumerated subsections.
[The orphans’] court looks back on this case and recalls at one
hearing five or so months ago where the court congratulated
Mother and Father on being the worse parents in the [orphans’]
court’s dependency docket. Mother and Father have fought their
addictions unsuccessfully for a significant bulk of this case.
Mother’s addiction continues to rage on. The [orphans’]
court noticed at the last hearing where Mother had been
incarcerated for a period of time, and Mother was clean, Mother
was looking the best that she had actually looked since the
beginning of this case. [However, at the termination hearing,
Mother tested positive for cocaine and methadone.] Mother has
simply failed to meet any of her goals whatsoever. The [orphans’]
court hopes that Mother can at some point overcome her addiction
and get her life together. But, the court has no reason to believe
that’s going to happen any time in the near future.
The [orphans’] court need not belabor its opinion of the
testimony as to Mother, as there has been an utter and complete
failure on Mother’s part, including the most recent complete
relapse and being AWOL since February of 2023.
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This brings me to Father. Father likewise fought a war with
addiction. Although the [orphans’] court does acknowledge that
Father has a little bit better track record most recently. However,
the court also notes that Father has continuously played games
with drug testing. Despite the court’s admonitions that the drug
testing, like the inspections of the trailer, are opportunities for
Father to prove his sobriety. Just as the home inspections are an
opportunity to prove that the home is safe. I think Father is very
adept and very knowledgeable as to how to play games with drug
testing.
***
The [orphans’] court notes that the last thing that the court
ever wants to do is terminate parental rights. The court is
hardwired to try and preserve biological parental rights as much
as possible. However, when presented with unrelenting facts like
the facts in this case, the [orphans’] court has no choice but to
proceed with termination in the best interests of the children.
The [orphans’] court also notes that the children are doing
extremely well in their recent placement and had done equally
well in their prior placement, notwithstanding the problems that
would flow following their visitation with [Mother and Father]. As
to that issue, the [orphans’] court notes that neither parent, 14
months in, has moved passed supervised visitation….The
[orphans’] court recalls situations where Father would point out to
Mother outside visitation after she missed her visits and would
show the children that Mother was outside, which is evidence of
ongoing contact between Mother and Father, notwithstanding the
PFA order that was in place.
The [orphans’] court also believes that Mother and Father
have continued to have sporadic, if not more frequent, contact
throughout the pendency of this case and have lied to the service
providers and the Agency about that contact and took efforts to
shield that contact from the Agency. I say that only as an aside,
but not as a primary basis for termination.
Given Mother’s lack of employment and Father’s sporadic
employment, the ability to create and adhere to a budget remains
completely allusive. We note that Mother has made no support
payments, has no job, and Father has paid $105.00 since the
inception of this case.
In summary, Mother’s compliance should be termed
nonexistent or minuscule. It doesn’t even rank as minimal.
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Father’s compliance is minimal at best.
***
[T]he children haven’t seen Mother since February or prior
to February.
N.T., 7/10/23, at 101-07.
Furthermore, in its opinion, the orphans’ court relevantly indicated the
following:
[Regarding Subsection 2511(a)(2)], the [orphans’] court
cannot stress enough that,…per the caseworker, Ms. Nangle,
Mother made no progress on her service goals. Apart from any
other element, this demonstrates that the conditions and causes
of the incapacity, abuse, neglect, and/or refusal cannot or would
not be remedied by Mother[.]
Mother’s inability and/or refusal to correct the conditions
and causes of the incapacity, abuse, neglect, and/or refusal
having been established. [T]his case is replete with evidence that
the children were without essential parental care, control, or
subsistence necessary for their physical and mental well-being.
Each of the children has medical needs. It was established that
the [twins] have a great need for speech therapy, and Mother did
not participate in this therapy. Thus, the [twins’] physical and/or
mental well-being was neglected and/or refused. The same is true
of [G.C.R.’s] physical well-being in that his lack of a kidney was
not even discovered until the pre-adoptive parents…took over the
parental care, control, and subsistence of the children. [G.C.R.’s]
physical well-being was neglected and/or refused [by Mother].
Regarding subsistence, there was testimony that the
children put on weight once they were taken out of the care of the
biological parents. While there was no testimony at the
termination hearing of malnutrition in the parents’ care, it is clear
from context that the caseworker, Ms. Nangle, spoke approvingly
of the children putting on weight, which speaks to the need. Thus,
through neglect or refusal, the children were without essential
subsistence necessary for their physical and/or mental well-being.
The children’s poor behavior following visitations with
Mother speaks to how Mother’s incapacity, neglect, and/or refusal
caused the children to be without essential parental care and/or
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control necessary for their mental well-being. Children who are
receiving appropriate parental care and support do not, following
visits with a parent, revert to bad behaviors, to include hitting and
biting others, including other children, purposefully urinating on
the floor of their room, and/or becoming hyper and whiney.
Though [the orphans’ court suggests it has set forth ample
evidence supporting termination under subsection 2511(a)(2)],
the court briefly mentions other instances of repeated and
continued incapacity, abuse, neglect, and/or refusal by Mother
that caused the children to be without essential parental care,
control, and/or subsistence necessary for their physical and/or
mental well-being and that the conditions and causes of the
incapacity, abuse, neglect, and/or refusal cannot or would not be
remedied by Mother. Mother, who was still in the grip of her
ongoing, active, and unrelenting drug addiction at the time of the
termination hearing, and even tested positive for cocaine, could
not provide the children with essential parental care, control, or
subsistence necessary for their physical and/or mental well-being,
and Mother clearly cannot remedy this. She exhausted the
services of York County. Mother was inconsistent with her
[supervised] visitation, and, eventually, abandoned the children.
The [orphans’] court is flummoxed as to how Mother believes that
she could remedy this behavior to avoid yet further mental harm
to the children. Mother could not and cannot provide stable
housing for the children. The children were, thus, without
essential parental care necessary for their physical and mental
well-being. Likewise, Mother cannot provide financial support for
the children. Mother, by her demonstrated inability to make any
forward progress on her service goals, shows she cannot or will
not remedy any of the conditions and causes of the incapacity,
abuse, neglect, and/or refusal that has caused the children to be
without essential parental care, control, or subsistence necessary
for their physical and mental well-being. Thus, the [orphans’]
court was empowered to terminate Mother’s rights under 23
Pa.C.S.A. § 2511(a)(2).
Orphans’ Court Opinion, filed 8/30/23, at 25-28 (emphasis in original).
We find no abuse of discretion or error of law. See In re M.G., supra.The record demonstrates that, at nearly every turn, Mother has failed to show
any initiative to act as a parent, causing the children to be without the
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essential parental care or control necessary for their well-being. Because of
Mother’s continued course of conduct, her failure to meet any of her
objectives, and her inability or unwillingness to remedy the situation, we
conclude the Agency has met its burden of proof under subsection (a)(2).
Accordingly, we conclude the orphans’ court did not abuse its discretion in
terminating Mother’s parental rights to the children pursuant to 23 Pa.C.S.A.
§ 2511(a)(2).
Turning to subsection 2511(b), the orphans’ court concluded
termination would best serve the children’s “developmental, physical[,] and
emotional needs and welfare,” and, thus, termination was in the children’s
best interests. See 23 Pa.C.S.A. § 2511(b) (“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.”).
Specifically, on the record at the termination hearing, the orphans’ court
relevantly indicated the following:
[Regarding the issue of parental-child bond,] the [orphans’]
court notes that it is limited by the age of the children, the five-
year-old twins and the three-year-old boy. The court does accept
the testimony of the [guardian ad litem] and legal counsel that
the children are well-bonded in their current placement.
The court also finds as a matter of fact and law that the
bond with the parents, to the extent it exists, is an exceedingly
toxic bond. The court is persuaded by the children’s ability to
thrive with both foster parents and also persuaded by the fact that
the children only go off the rails emotionally following visits with
either [Mother or Father]. What’s clear to the court is that these
[biological] parents are a long way from being in a position to take
care of themselves let alone parent their children.
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N.T., 7/10/23, at 106.
Moreover, in its opinion, the orphans’ court relevantly indicated the
following:
The court does not deny that there are bonds of sorts
between Mother and the children. However, the [orphans’] court
found that the bonds between Mother and the children are and
were toxic bonds. As already discussed, the caseworker, Ms.
Nangle, guardian ad litem, Attorney Worley, and legal counsel for
the children, Attorney Moore, clearly felt that the bond between
children and the pre-adoptive parents was what we would consider
a true parent-child bond. The [pre-adoptive foster parents] dealt
with the mechanical demands that are dictated by the parent-child
bond, which is best illustrated by [their], and not the biological
parents, addressing the children’s medical needs. However, the
[pre-adoptive foster parents] also fulfill the emotional bonds of
the children. It spoke volumes that the children did not inquire
about their biological parents. It spoke volumes that the children
had poor reactions to visitations with their biological parents that,
unsurprisingly, trailed off as the children’s time with the [pre-
adoptive foster parents] lengthened, and as Mother disappeared
from their lives, and, thus, had no visitation for a stretch of
months. The caseworker, Ms. Nangle, made it clear that these
children reach out to the [pre-adoptive foster parents] when they
have a childhood need that only a parent can meet. This stands
in stark contrast to the toxic relationship the children have with
Mother, who no doubt cares for them in her own way, results in
the children exhibiting poor behavior from the minimal supervised
contact that they had with Mother.
As we have stated in other cases, while it is a lamentable
state of affairs, the [orphans’] court concluded based on all of the
evidence during the life of this case, that the children were
primarily bonded and healthily so with [the pre-adoptive foster
parents]. The best interests of the children, coupled with their
need for permanency, demanded termination.
Orphans’ Court Opinion, filed 8/30/23, at 31-32 (emphasis in original).
We find no abuse of discretion. See In re M.G., supra. The record, in
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particular the testimony of the caseworker, Ms. Nangle, supports the orphans’
court’s determination. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.Super.
2008) (when conducting bond analysis, a court is not required to use expert
testimony); In re A.R.M.F., 837 A.2d 1231 (Pa.Super. 2003) (holding the
court properly terminated parental rights where decision was based, in part,
on social worker’s and caseworker’s testimony children did not share
significant bond with biological parents and were well bonded with foster
parents). Moreover, the guardian ad litem and the children’s legal counsel
echoed Ms. Nangle’s testimony that the children were bonded with the pre-
adoptive foster parents.
Finally, our review of the record does not reveal any non-frivolous issues
overlooked by Attorney Hoke. After our independent review, we conclude that
the evidence presented supports the orphans’ court’s decrees involuntarily
terminating Mother’s parental rights pursuant to subsections 2511(a)(2) and
(b). See In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (absent abuse
of discretion, error of law, or insufficient evidentiary support for the lower
court’s decision, decree in termination of parental rights proceeding must
stand). Thus, we affirm the orphans’ court’s decrees and grant Attorney
Hoke’s petition to withdraw her representation.
Decrees affirmed. Motion to withdraw granted.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/27/2023
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