In the Interest of: C.D., a minor ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: C.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: C.D. :
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: No. 1225 WDA 2020
Appeal from the Order Entered October 20, 2020
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): No.TPR CP-02-AP-11-2020
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 8, 2021
C.D. (Child) appeals, by and through his attorney, the trial court’s order
denying the petition of the Allegheny County Office of Children, Youth and
Families (CYF) to involuntarily terminate the rights of H.H. (Mother), pursuant
to the Adoption Act.1, 2 See 23 Pa.C.S.A. § 2511. While the court determined
CYF established grounds for termination under Section 2511(a), the court
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* Retired Senior Judge assigned to the Superior Court.
1 CYF also appealed the denial of its termination petition. See 1223 WDA 2020.
That appeal is separately listed before this panel.
2 We observe the court also terminated the rights of C.A.D., who was married
to Mother at the time of Child’s birth, but whose biological parentage was ruled
out by genetic testing. CYF also filed a termination petition against the
unknown father, which the court granted. Those terminations were not
appealed.
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denied CYF’s petition after finding CYF failed to demonstrate that termination
best served Child’s needs and welfare under Section 2511(b). After careful
review, we affirm.
The facts pertinent to our disposition are these: Child was born in 2013
in Tennessee. He tested positive for illicit drugs at birth, and the local social
services agency removed Child from Mother’s care. While in Tennessee, Child
was placed with Maternal Grandmother and in foster care. The family
eventually relocated to the Pittsburgh area.
The family came to the attention of CYF in the Summer of 2017, when
Child was four years old, after Mother had several incidents involving the
police. Following one such incident, Mother was admitted to the hospital
where she tested positive for benzodiazepines and cocaine. CYF obtained an
emergency custody authorization and placed Child into the foster home where
he now resides.
Mother stipulated to a dependency adjudication in July 2017. The court
ordered a family service plan to aid Mother’s reunification with Child. The
goals of the reunification plan included, inter alia, housing, mental health
treatment, and visitation; but the primary goal was Mother’s sobriety.
Between July 2017 and August 2020, the court conducted permanency review
hearings approximately every three months.
The trial court found Mother’s overall compliance with the family service
plan to be moderate, and that Mother’s progress ebbed and flowed.
Specifically, Mother completed therapy, obtained housing, and managed her
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medication during the dependency case. Because Mother had achieved
sobriety for months at a time, the court ordered substantial visitation,
including overnights and unsupervised visits. At one point, those visits
occurred at least three days per week.
However, Mother’s progress was always impeded by drug relapses. And
apart from her substance abuse issues, Mother’s ability to parent was also
impeded by her mental health issues; she was diagnosed with borderline
personality disorder and bipolar disorder. The court also observed tensions
between Mother and the foster mother, who alleged Child was mistreated by
Mother; the allegation was eventually deemed unfounded. Mother requested
that CYF pursue placement options with Mother’s family in Alabama. The court
ordered CYF to submit an interstate compact to pursue these options, but
Mother’s family ultimately decided not to make themselves a placement
resource.
Child displayed behavioral issues when he was initially placed with the
foster family, but after therapeutic intervention Child did well in their care.
Over the course of the dependency case, the court ordered several evaluations
with psychologist Beth Bliss, Ph.D. Eventually, CYF petitioned for the
involuntary termination of Mother’s rights in January 2020. Meanwhile, with
the onset of the Covid-19 pandemic, Mother’s visits became virtual. The
hearing was twice continued before the court ultimately held the proceeding
on October 15, 2020, approximately 39 months after the court adjudicated
Child dependent.
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At the conclusion of the termination proceeding, the court determined
CYF met its burden under Section 2511(a) of the Adoption Act – the first step
of the bifurcated analysis. However, the court concluded CYF had not
demonstrated that termination would best serve Child’s needs and welfare
under Section 2511(b). In reaching this determination, the court relied largely
upon the expert testimony of Dr. Bliss. The court denied CYF’s termination
petition.3 Child timely filed this appeal and presents the following single issue
for our review.
Whether the trial court abused its discretion and/or erred as
a matter of law in denying the petition of [CYF] to
involuntarily terminating the parental rights of Mother after
CYF proved by clear and convincing evidence that
termination of Mother’s parental rights would serve the
needs and welfare of the Child pursuant to 23 Pa.C.S.A. §
2511(b)?
Child’s Brief at 6.
We begin with our well-settled standard of review of termination cases:
The 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,
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3 Immediately following the termination proceeding, the court conducted a
permanency review hearing pursuant to 42 Pa.C.S.A. § 6351. By agreement
of the parties, the court incorporated the testimony of the termination
proceeding into its permanency review. CYF appealed the goal change, see
1224 WDA 2020, but Child did not.
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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.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent's conduct satisfies the statutory
grounds for termination delineated in section 2511(a). Only
if the court determines that the parent's conduct warrants
termination of his or her parental rights does the court
engage in the second part of the analysis pursuant to section
2511(b): determination of the needs and welfare of the
child[.]
In re C.M.K., 203 A.3d 258, 261-262 (Pa. Super. 2019) (citation omitted).
Here, the trial court found that statutory grounds for termination existed
under Section 2511(a)(2), (5), and (8). Mother did not appeal that finding,
and thus the first step of the bifurcated analysis is settled. The issue here is
the second step of the termination analysis, whether CYF met its burden under
Section 2511(b), which states in relevant part:
(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
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medical care if found to be beyond the control of the parent.
[…].
23 Pa.C.S.A. § 2511(b).
This Court has explained that:
[S]ection 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort,
security, and stability are involved in the inquiry into the
needs and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and status
of the parent-child bond, with utmost attention to the effect
on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of
a bond between a parent and child, it is reasonable to infer
that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63
(Pa. Super. 2008). Accordingly, the extent of the bond-
effect analysis necessarily depends on the circumstances of
the particular case. Id. at 763.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Concerning the bond, the question is not merely whether a bond exists,
but whether termination would destroy this existing, necessary and beneficial
relationship. See C.M.K., 203 A.2d at 264 (citation omitted); see also In re
K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (Observing the “immutable
psychological truth” that “[e]ven the most abused of children will often harbor
some positive emotion towards the abusive parent.”); and see K.Z.S., 946
A.2d at 764 (holding there was no bond worth preserving where the child had
been in foster care for most of the child’s life, which caused the resulting bond
to be too attenuated). We add, the court is not required to use expert
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testimony to resolve the bond analysis but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super.
2010). Finally, we emphasize that “[w]hile a parent’s emotional bond with
her and/or her child is a major aspect of the § 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the court when
determining what is in the best interest of the child.” In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011) (citation omitted).
In the instant matter, the court noted two primary reasons for denying
termination under Section 2511(b): the court found compelling the expert
testimony of Dr. Bliss, who did not recommend termination; and the court
found lacking the evidence offered by CYF in favor of termination.
Dr. Bliss testified that the foster home provided Child with a safe,
positive placement, where Child’s needs were met. She also stated that
removing Child from the foster home would cause the same negative effects
as severing the parental bond between Mother and Child. Dr. Bliss ultimately
opined that termination would not be in Child’s interests, and she
recommended permanent legal custodianship. See N.T., 10/15/20, at 78-79.
She explained why the best situation for Child would be to stay in the foster
parents’ care, while having ongoing contact with Mother:
So with children, obviously we don’t know what will happen,
but we know what research shows can happen to children.
So with children who have a strong bond or attachment and
that is severed, whether that be through death or
termination of parental rights or a parent leaving and never
having contact with the child again, it can do multiple things.
It can have impact on future behavioral issues, emotional
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issues. There is that sense of parental rejections or
potential internal blame for that. In addition to that, it can
have impact on how they attach or relate to people later in
life. That is much more the case for younger children, but
with [Child] he has a strong positive bond with [Mother]
and she was initially his primary attachment. He’s obviously
formed a strong primary attachment now to [the] foster
parent as well. But severing that relationship could impact
his ability to attach or relate to others later in his life.
Id. at 89 (emphasis added).
Dr. Bliss testified that Child turned to Mother for comfort and “as his
secure home base, which you’ll see as children with attachments.” Id. at 93;
see also id. at 70. She also testified that Child was protective of his Mother.
Id. at 70. Dr. Bliss explained how she witnessed the strength of the parental
bond: “My opinion is that their bond is strong enough and in place enough.
[…] It’s there. It’s stable. It’s consistent. It hasn’t been impacted by the fact
that they weren’t having in person visits [due to Covid-19 precautions].” Id.
at 92.
Thus, relying on the testimony of Dr. Bliss, the court explicitly found
that the bond between Child and Mother was positive, and that Mother was a
source of comfort and security for Child. The court also found that this bond
was so beneficial, that its severance would be destructive. Although Mother’s
inability to parent meant that she might not be able to serve Child’s physical
needs, the court found the bond between them served Child’s emotional
needs, which are also necessary to a child’s development and welfare.
Not only did the trial court find the testimony of Dr. Bliss to be
persuasive, but the court also determined, by contrast, that CYF failed to meet
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its evidentiary burden. See T.C.O., 12/14/20, at 18. The court noted CYF did
not offer any witness testimony to contradict Dr. Bliss’s expert opinion. The
caseworker did not testify to his observations between Child and Mother or
between Child and the foster parents. CYF did not call other witnesses who
might have testified about the bond. No one asked the foster parent about
the foster family’s relationship with Child, or what they observed between
Child and Mother. No one called Child’s therapist to testify about the
relationship Child had with Mother and the foster parents. See id at 25-26.
On appeal, Child does not directly challenge the court’s bond
determinations, so much as he maintains that the court failed to place its bond
determination in the appropriate context. Child restates our aforementioned
precedents to reiterate that the bond is just one factor the court must consider
in its Section 2511(b) analysis, that the court must also consider the bond
between the Child and the foster parents, and that the existence of a bond
will not automatically defeat termination. See Child’s Brief at 54-55.
In particular, Child relies on K.K.R.S., supra, where we noted that
“bonding cannot be one direction only – that of child to the parent – but must
exhibit a bilateral relationship […].” 958 A.2d at 534 (citation omitted); see
also Child’s Brief at 53-54. There, for instance, we cautioned that even
abused children have an emotional, albeit unhealthy, bond with their abuser.
K.K.R.S., 958 A.2d at 535.
Although the parent’s illicit drug use was a factor in both cases, the
instant matter is distinguishable from K.K.R.S. Here, Mother demonstrated
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her commitment to the Child by her continued efforts toward accomplishing
the family service plan goals. Moreover, the bond here was “stable,”
“consistent,” and “positive.” See N.T., at 89, 92. Whereas, in K.K.R.S., the
“record [was] devoid of any evidence tending to indicate appellant had a
positive effect on her children’s lives.” 958 A.2d at 534. Perhaps the most
consequential distinction between this matter and K.K.R.S. is the disposition
of the appeals. In this case, the trial court denied termination. In adherence
to our deferential standard of review, we will not find an abuse of discretion
merely because the record also supports a different outcome. See T.S.M., 71
A.3d at 267. We reiterate that trial courts warrant our deference, because
they have observed the parties first-hand and over the course of multiple
hearings. Id.
Notably, Child also cites T.S.M. for the proposition that the trial court
had to consider whether Child has a bond with the foster parents. See Child’s
Brief at 54. Indeed, our Supreme Court has said such a consideration was
common sense. T.S.M., 71 A.3d at 268. But we fail to see how Child’s
argument is a prevailing one, at least in this case. Here, the court did consider
Child’s bond to his foster family. Dr. Bliss also testified that Child would
experience the same traumatic effects if his bond was severed with them, just
as he would if his bond with Mother was severed. But Child’s close relationship
with the foster family is certainly not a basis for reversal. If anything, Child’s
bonds with both his foster parents and his Mother also supports the trial
court’s decision to deny termination in favor of permanent legal custodianship.
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Ultimately, we conclude the trial court did not abuse its discretion when
it found CYF provided insufficient evidence to demonstrate termination would
best serve Child’s needs and welfare under Section 2511(b). Although the
record might have supported a different outcome, this is not a basis for
reversal. In our review, we find the court’s determinations were supported by
the record, and its decision was not manifestly unreasonable.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2021
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