In Re: L.M., Appeal of: A.B. ( 2023 )

J-S28017-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: L.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.B., MOTHER :
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: No. 411 WDA 2023
Appeal from the Order Entered March 14, 2023
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000133-2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED: OCTOBER 6, 2023
A.B. (“Mother”) appeals from the order entered on March 14, 2023,
which involuntarily terminated her parental rights to her female, two-year-old
child, L.M. (“Child”), who was born in October 2020.1 We affirm.
The trial court ably summarized the underlying facts of this matter:
[Following L.M.’s birth, L.M.] remained in the family home
with Mother and [J.M. (“Father”),] until August of 2021. In
August, it was reported to [the Allegheny County Office of
Children, Youth, and Families (“OCYF”)] that Mother fled the
family home after being assaulted by Father and had taken
[Child] to a shelter. OCYF began an investigation into the
family's circumstances and Mother reported that she suffered
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The trial court terminated the parental rights of putative father, J.M., and
any unknown father. See Trial Court Order, 3/14/23, at 1. Neither J.M. nor
any unknown father has filed a separate appeal, and they are not participants
in the instant appeal.
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broken ribs as a result of this incident. Mother also disclosed
a history of domestic violence with Father. Despite the
injuries and the history of violence in the relationship, Mother
declined to get a Protection from Abuse order against Father.
A few weeks later, OCYF discovered that Mother had left the
shelter and returned home with Father. Based on concerns
for the child's safety, OCYF obtained an Emergency Protective
Order on August 26th, 2021 and [Child] was removed from
Mother's care. [Child] was placed in the kinship foster home
of her maternal grandmother, [T.W.].
On September [28], 2021, [Child] was adjudicated
dependent. The court ordered [Child] to remain in her foster
care placement. Mother was ordered to follow through with
a final Protection From Abuse order against Father, to engage
in mental health treatment on a consistent basis, to complete
intimate partner violence counseling (hereinafter "IPV"), and
to attend supervised visitation.
In November [] 2021, OCYF received reports that the foster
mother was allowing the parents to care for [Child]
unsupervised. Due to these concerns, [Child] was moved
into the foster home of her biological half-sister, [J.C.]. In
January [] 2022, the West Mifflin police were dispatched to
Father's home. Officer Christopher Miller testified that he
witnessed Father pick Mother up and slam her onto a set of
steps, and then repeatedly strike her. Officer Miller then
presented his taser and commanded Father to stop and show
his hands. Father did not comply and held Mother in front of
him in a "hostage stance." Father then pulled Mother back
inside and tried to close the door. Police were able to prevent
him from closing the door and eventually subdued Father
while inside the residence. While inside, police officers
discovered a firearm and several spent shell casings near the
door. Father was arrested and charged criminally as a result
of this incident. Mother did not seek a Protection from Abuse
order after this assault.
A Permanency Review Hearing was held on May [3], 2022.
[Child] was ordered to remain in her foster care placement
with [J.C.]. [J.C.] was appointed the secondary educational
and medical decision-maker for the child. Mother was found
to be in moderate compliance with the permanency plan and
to have made minimal progress towards alleviating the
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circumstances which necessitated the original placement.
The court ordered Mother to participate in mental health
treatment, and to obtain stable housing.
The parties appeared for a Permanency Review Hearing on
August [2], 2022. The court ordered [Child] to remain in the
foster care placement of [J.C.]. Mother was found to be in
minimal compliance and to have made minimal progress.
The court found that Mother had been unsuccessfully
discharged from her coached parenting program and has
been inconsistent with her mental health treatment and
visitation. The court ordered Mother to reengage with
coached visitation, to complete an updated drug and alcohol
evaluation and follow all recommendations, and to submit to
urine screens and mouth swabs. On September [27], 2022,
OCYF filed a petition to involuntary terminate Mother's
parental rights [to Child].
A Permanency Review Hearing was held on November [9],
2022. The court ordered [Child] to remain in the foster care
placement of [J.C.]. Mother was found to be in minimal
compliance and to have made minimal progress. The court
found that Mother refused to engage with parenting services
until recently and had been inconsistently attending visitation
and [Child’s] medical appointments. Mother had also been
referred to the Woman's Empowerment Club and had not
completed that program. The court ordered Mother to attend
the psychological evaluations which had been previously
ordered, to participate in coached parenting, to attend
visitation consistently, to re-engage with IPV counseling and
to work with the Women's Empowerment Club.
Dr. Eric Bernstein was the court-appointed psychologist
assigned to evaluate the family in this case. He conducted
an individual mental health evaluation of Mother in August []
2022. An interactional evaluation between [Child] and
Mother was scheduled for this time period but had to be
rescheduled after Mother failed to appear. In the individual
evaluation of Mother, Dr. Bernstein diagnosed Mother with
clinical depression. He recommended that Mother attend
outpatient counseling for a minimum of three to six months
and to consider meeting with a psychiatrist for medication
management. Dr. Bernstein testified that he made these
recommendations based upon Mother's history of incurred
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domestic violence. He opined that three months would be on
the lower end of treatment time needed to effectuate
substantive change but that six months would ideally "allow
for a bit more depth in investigation of her mental health and
offer her support techniques to cope more effectively from
her distress." It was concerning to Dr. Bernstein that Mother
minimized the domestic violence between herself and Father.
She reported to suffering some injuries but largely
downplayed the incidents which had been reported by OCYF
to Dr. Bernstein. Mother did finally appear for the
interactional evaluation in November of 2022. In the
interactional evaluation of Mother and [Child] conducted by
Dr. Bernstein, he reported that she showed familiarity with
[Child’s] needs and that the interaction was positive.
Trial Court Opinion, 5/10/23, at 2-5 (citations omitted).
On March 14, 2023, the trial court entered an order that granted OCYF’s
petition and terminated Mother’s parental rights to Child under 23 Pa.C.S.A.
§§ 2511(a)(2), (5), (8), and (b). Mother filed a timely notice of appeal. She
raises two claims to this Court:
1. Did the trial court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily
terminate Mother’s parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), (5), and (8)?
2. Did the trial court abuse its discretion and/or err as a
matter of law in concluding that [OCYF] met its burden of
probing by clear and convincing evidence that termination of
Mother’s parental rights would best serve the needs and
welfare of [Child] pursuant to 23 Pa.C.S.A. § 2511(b)?
Mother’s Brief at 6.
We review involuntary termination orders for an abuse of discretion
which our Supreme Court has explained “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). When
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applying this standard, appellate courts must accept the trial court’s findings
of fact and credibility determinations if they are supported by the record.
Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa. 2021). “Where the trial
court’s factual findings are supported by the evidence, an appellate court may
not disturb the trial court’s ruling unless it has discerned an error of law or
abuse of discretion.” In re Adoption of L.A.K, 265 A.3d 580, 591 (Pa. 2021).
An appellate court may reverse for an abuse of discretion “only upon
demonstration of manifest unreasonableness, partiality, prejudice, bias, or
ill-will.” Id.Termination of parental rights is governed by Section 2511 of the
Adoption Act. If the trial court determines the petitioner established grounds
for termination under subsection 2511(a) by clear and convincing evidence,
then the court must assess the petition under subsection 2511(b), which
focuses on the child’s needs and welfare. In re T.S.M., 71 A.3d 251, 267 (Pa.
2013).
In this case, the trial court terminated Mother’s parental rights pursuant
to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). We have long held that, in
order to affirm a decree terminating parental rights, we need only agree with
the trial court as to any one subsection of Section 2511(a), as well as Section
2511(b). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004). As such,
we analyze the trial court’s termination order pursuant to Section 2511(a)(2)
and (b), which provide as follows:
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(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.
...
(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.A. § 2511(a)(2), (b).
With regard to termination of parental rights pursuant to Section
2511(a)(2), we have indicated:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met
(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal has caused the child
to be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination 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 S.C., 247 A.3d 1097, 1104 (Pa. Super. 2021), quoting In re
Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015) (internal citation
omitted). “Parents are required to make diligent efforts towards the
reasonably prompt assumption of full parental responsibilities.” Matter of
Adoption of M.A.B., 166 A.3d 434, 443 (Pa. Super. 2017), quoting In re
N.A.M., 33 A.3d 95, 100 (Pa. Super. 2011). As such, “[a] parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous.” In re S.C., 247 A.3d at 1105, quoting In re Z.P., 994 A.2d
1108, 1118 (Pa. Super. 2010).
The trial court thoroughly explained the factual basis for its finding of
termination under Section 2511(a)(2):
As a part of the court's analysis pursuant to 23 Pa.C.S.
2511(a), the court considers the goals set for a parent
through Family Service Plans as well as in court hearings.
Mother's goals remained largely the same throughout the
case and included attending IPV counseling, consistently
attending visitation, mental health treatment, completing a
coached parenting program, obtaining stable housing,
engaging with the Kid's Club and Mom's Empowerment
Program, ensuring [Child’s] medical needs were met and
cooperating with OCYF and other service providers.
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Addressing intimate partner violence concerns was a crucial
goal for Mother as domestic violence has been the primary
concern in this case. Mother has reported to being violently
assaulted by Father several times throughout 2021 and 2022.
The extent and nature of these assaults has grown
increasingly more violent. In April of 2021, Mother reported
that Father had attempted to rip her ear off. Mother did
obtain a temporary Protection from Abuse order but did not
follow through with a final order. In August [] 2021, Mother
suffered a broken rib after an assault by Father. She did not
obtain a Protection from Abuse order against him. Roughly
one month later, Mother reported that Father had physically
assaulted her again. Mother did obtain a temporary
Protection from Abuse order but did not follow through with
a final order. In January [] 2022, Father violently assaulted
Mother in plain view of law enforcement. The arresting
officer, Christopher Miller, reported that Father used Mother
as a "human shield" to prevent being apprehended. Mother
did not attempt to get a Protection from Abuse order after
this incident and was not cooperative in Father's prosecution
for this offense. Officer Miller reported that Mother has not
appeared for any court hearing related to this incident. After
each incident, Mother has downplayed the severity of the
assaults and essentially reported that "everyone fights in
relationships." . . .
The court recognizes that there are many factors to consider
when determining whether a parent is successful in
accomplishing a goal of addressing intimate partner violence.
Counseling is a crucial part of this analysis and a key
component to providing a victim with resources and support
to leave a violent partner. Aside from resources and support,
counseling is meant to help victims develop self-awareness
and insight into the dynamics of intimate partner violence and
ways to safely leave dangerous relationships and avoid future
unhealthy relationships. . . .
In this case, Mother has availed herself of counseling through
the Women's Center and Shelter and has participated in
treatment beyond that of the traditional counseling sessions.
Despite her participation with this resource, she has gained
little insight into ways to ensure her safety and to reduce her
exposure to incidents of intimate partner violence. Mother is
largely indifferent to her circumstances. Her overall response
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to these incidents, her lack of cooperation with law
enforcement and her continuing contact with Father are
indicative to this court that Mother has not internalized or
used any of the information that she received in IPV
counseling. The court has serious concerns for Mother's
safety and her limited insight into the impact of intimate
partner violence in her life and reunification with [Child]. For
these reasons, the court found that Mother did not
satisfactorily complete this goal.
Mother's mental health has also been a long-standing
concern as she suffers from clinical depression and has been
psychiatrically hospitalized several times throughout her life.
While it has been some time since Mother was hospitalized
for mental health issues, OCYF and the court have continued
to have concerns about her mental health. Mother has
experienced significant trauma in her life. She was in need
of consistent mental health treatment to improve her
functioning and to assist in parenting [Child]. These services
were vital for her because she needed to demonstrate a
significant period of stability in order for [Child] to be
returned to her care. Mother has not been independently
evaluated for mental health treatment outside of an
evaluation by Dr. Bernstein in August [] 2022, where he
recommended that she attend outpatient mental health
treatment for three to six months. Dr. Bernstein's
recommendations were largely based on improving Mother's
functioning and decreasing the symptoms she endorsed at
her evaluation. Unfortunately, Mother has not meaningfully
engaged in mental health treatment and has been unable to
make any substantial changes in her functioning. Mother has
not made any progress in this regard and as such, the court
finds that she did not satisfactorily complete this goal.
Consistent visitation with [Child] was another important goal
for Mother. During the [18] months that [Child] was in care,
Mother attended approximately half of her scheduled visits.
As a component of the visitation goal, Mother was referred to
the coached parenting program in March [] 2022. A
representative from that program, Kasey Toomey, reported
that Mother was discharged in May [] 2022 for
noncompliance. Mother was re-referred to this program in
November [] 2022 but did not begin working with this service
until February [] 2023. All reports from the three sessions
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she attended in 2023 were that she did well with [Child]. It
appears that Mother has been appropriate at visits she
attended outside of coached parenting. She was even able
to have some visitation in her home when she obtained
appropriate housing. However, her lack of consistency and
her inability to satisfy her other court-ordered goals has
prevented her from attaining unsupervised visitation. For
these reasons, the court found that Mother did not
satisfactorily complete this goal.
Mother was also expected to ensure [Child’s] medical needs
were met. Mother did not consistently attend those
appointments and had to be court-ordered to sign paperwork
to have [Child] evaluated for developmental and behavioral
concerns. [Child] was taken to Children's Hospital of
Pittsburgh in August [] 2022 for a small bruise on her eye.
There was concern about the cause of the injury, so OCYF
had to temporarily remove [Child] from her foster home while
they investigated. Mother became upset when she found out
that [Child] was going to be placed into stranger respite care
overnight. Mother attempted to take [Child] out of the
hospital and hospital staff had to intervene to stop her from
leaving. Mother then left the hospital and did not return to
check on [Child]. Mother has been unable to prioritize [Child]
and has not been able to ensure her routine or emergent
medical needs have been met. For these reasons, the court
found that Mother did not meet this goal.
Housing has long been a concern in this case as Mother
typically resides in Father's home when he is not
incarcerated. To her credit, Mother was able to obtain
appropriate housing while Father has been incarcerated. The
court is not confident that Mother can sustain her housing
long-term if Father is released from jail. Mother was also
court-ordered to participate with the Mom's Empowerment
Club in May [] 2022. This program could have provided
Mother and [Child] with various activities and additional
visitation, which could have had a meaningful impact on the
case. Mother did not engage with this program until 2023.
It took Mother approximately six months to begin this
program and it appears that she completed it on the eve of
the termination proceedings. The court finds this late
compliance directly correlates to Father's incarceration as
Mother chose not to engage with the program until Father
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became re-incarcerated. Mother was also court-ordered to
cooperate with OCYF and other service providers due to her
general instability. She has not meaningfully done so until
recently. With respect to these three goals, Mother has
experienced limited success.
Father was incarcerated in November [] 2022. It was only
after this incarceration that Mother became more compliant
with her court-ordered goals. While Father was out, Mother
did not successfully complete any of her court-ordered goals
and did not meaningfully engage with service providers other
than the Woman's Center and Shelter. Given the testimony
presented to the court, it is clear that Mother maintains some
type of relationship with Father. The court has serious
concerns about Mother's willingness to participate in services
if Father is released. [Child] has been out of Mother's care
since August [] 2021 and the conditions which caused her to
come into care have not been remedied. These conditions
continue to exist, and Mother's incapacity and unwillingness
have caused the child to be without the essential care, control
or subsistence necessary for her physical and mental well-
being.
Trial Court Opinion, 5/10/23, at 7-11 (citations omitted).
We agree with the trial court’s analysis and conclude that the trial court
did not abuse its discretion or commit an error of law when it terminated
Mother’s parental rights under 23 Pa.C.S.A. § 2511(a)(2).
With respect to Section 2511(b), this Court has stated that the trial court
“must . . . discern the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that bond.” In re
C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted). Further,
[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.
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In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010). Our Supreme Court
explained, “[c]ommon sense dictates that courts considering termination must
also consider whether the [child is] in a pre-adoptive home and whether [the
child has] a bond with their foster parents.” In re T.S.M., 71 A.3d at 268.
The Court directed that, in weighing the bond considerations pursuant to
Section 2511(b), “courts must keep the ticking clock of childhood ever in
mind.” Id. 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.
Again, the trial court ably summarized its factual findings regarding the
best interest of Child:
As part of the best interest analysis, the court considered
several factors including [Child’s] safety, the bond between
[Child] and Mother and the bond between [Child] and foster
mother. The safety and stability of [Child] is often the most
important consideration in cases involving domestic violence
between the parents. Exposure to domestic violence in the
family home can have lifelong effects on children. Dr.
Bernstein explained that it could impact their self-esteem,
sense of security and could lead to anxiety, depression, peer
conflict, challenges in relationship with family, extreme acting
out behavior, and symptoms mimicking ADHD or disruptive
behavior disorder. Additionally, Dr. Bernstein reported that
if girls are exposed to domestic violence, they are more likely
to become desensitized to violence which causes them to be
unable to anticipate or appreciate the impact of it and more
likely to engage in those type of relationships. Aside from
the psychological effects of exposure to domestic violence,
the court also has concerns for the physical safety of [Child].
There is no doubt that Mother's continued relationship with
Father places both herself and [Child] at risk for serious
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physical injury. As part of the safety analysis, the court also
looked at whether Mother could provide stability to [Child] if
she were returned to her care. The only real periods of
stability that Mother has experienced have been when Father
was incarcerated for significant periods of time. Additionally,
Mother has engaged in unlawful and disorderly behavior as
recently as January of 2023. Unfortunately, Mother cannot
provide the stability required to parent a young child. If
[Child] were returned to Mother's care, the court finds that
she would be exposed [to the risks of] instability and
homelessness.
OCYF presented limited testimony regarding the existence of
a bond between [Child] and Mother. Dr. Bernstein reported
that Mother was appropriate during the interactional
evaluation but provided limited information about any bond
or attachment with her. Dr. Bernstein reported that he had
concerns about Mother's level of commitment with [Child]
based upon collateral reports made to him. Based upon
Mother's lack of consistency and her inability to progress to
unsupervised visitation, the court does not believe that
[Child] has a necessary and beneficial bond with Mother.
[Child] has been in the care of her half-sister, [J.C.], since
November [] 2021. [J.C.] has a biological son close in age
and the children get along well. When [Child] was first placed
in [J.C.’s] care, [Child] suffered from behavioral issues and
night terrors. [J.C.] has been able to address these concerns
appropriately. [J.C.] meets the day to day needs of [Child]
and offers her comfort and support. The OCYF caseworker
reported that [Child] has a "great bond" with foster mother
and seeks her out for comfort or to meet her needs. If there
were any detriment to [Child] from the cessation of the
relationship with Mother, the court believes that [J.C.] could
adequately address those concerns.
The court finds that termination of Mother's parental rights
would best suit [Child’s] developmental, physical, and
emotional needs and welfare. [Child] has been in care since
August [] 2021 and Mother has only recently begun to
engage with services. [Child] is flourishing in her foster home
and has developed a loving relationship with her foster
mother. The court does not believe that Mother will be able
to attain or maintain the stability to provide a safe and loving
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home for [Child]. For those reasons, the court found that
termination best suited the needs and welfare of [Child].
Trial Court Opinion, 5/10/23, at 11-12 (citations omitted).
The trial court’s factual conclusions are supported by the record and
binding on this Court. Therefore, we conclude that the trial court did not err
when it terminated Mother’s parental rights to Child under 23 Pa.C.S.A.
§ 2511(a)(2) and (b).
Order affirmed.
DATE: 10/6/2023
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