In Re: R.H., Appeal of: J.H. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.H., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: J.H., MOTHER : No. 1182 WDA 2020
Appeal from the Decree Entered September 22, 2020
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No: CP-02-AP-233-2018
IN RE: R.H., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: J.H., MOTHER : No. 1183 WDA 2020
Appeal from the Decree Entered September 22, 2020
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No: CP-02-AP-232-2018
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: June 10, 2021
J.H. (“Mother”) appeals from the decrees entered September 22, 2020,
which terminated involuntarily her parental rights to her children, R.L.H., a
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* Retired Senior Judge assigned to the Superior Court.
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male born in March 2016, and R.C.H., a female born in December 2016 (“the
Children”).1 After careful review, we affirm.
The record indicates that the Allegheny County Office of Children, Youth
and Families (“CYF”) became involved with Mother after it received a report
at or near the time of R.L.H.’s birth in March 2016. N.T., 8/23/19, at 8-9.
CYF conducted an investigation, during which Mother acknowledged that she
was homeless, suffering from depression, using marijuana, and that domestic
violence was occurring in her relationship. Id. While CYF referred Mother for
services, it did not seek to remove R.L.H. from her care. Id. at 8-10.
The subsequent procedural history of this matter is somewhat unclear.
The trial court adjudicated R.L.H. dependent by order dated August 10, 2016
but allowed him to remain with Mother. The record does not appear to indicate
if anything specific precipitated the adjudication. When R.C.H. was born in
December 2016, the court did not adjudicate her dependent. The Children
remained in Mother’s care until March 2017, when CYF obtained emergency
custody authorizations and placed them in foster care. Id. at 6, 13. A shelter
care order for R.L.H., dated April 3, 2017, states that the court granted CYF
emergency custody because the Children “were placed . . . with their aunt.
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1 The decrees also terminated the parental rights of the Children’s father, R.H.,
who did not appeal.
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The mother was not to be alone with the [C]hildren and this happened.”2 Id.
at 13. The Children have remained in foster care continuously since that time,
and the court adjudicated R.C.H. dependent by order dated May 3, 2017.
CYF developed reunification objectives for Mother, and she made some
progress toward compliance. N.T., 8/23/19, at 14-17. However, Mother left
Pennsylvania in approximately May 2018 and failed to visit with the Children.
Id. at 20-21. She did not send the Children cards, letters, gifts, or support.
Id. at 21. Mother did not ask to visit with the Children, and had no contact
with them at all, from the time she left Pennsylvania until she returned in mid-
October 2018. Id. at 20-21.
On October 31, 2018, CYF filed petitions to terminate Mother’s parental
rights involuntarily. Due to continuances, a hearing on the petitions did not
begin until August 23, 2019 and did not conclude until September 18, 2020.
Following the hearing, on September 22, 2020, the trial court entered decrees
terminating Mother’s rights. Though Mother initially failed to file timely notices
of appeal, she requested leave to appeal nunc pro tunc on October 29, 2020.
The court entered orders granting leave to appeal nunc pro tunc on November
5, 2020, and Mother filed notices of appeal that same day, along with concise
statements of errors complained of on appeal.
Mother now raises the following claims for our review:
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2 This explanation appears on the second page of the shelter care order.While
the first pages of the Children’s shelter care orders appear in the record as
exhibits, the second pages do not. A witness read the relevant portion of the
order during the hearing. N.T., 8/23/19, at 13.
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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)(1), (2), (5),
and (8)?
2. Did the trial court abuse its discretion and/or err as a matter of
law in concluding that CYF met its burden of proving by clear and
convincing evidence that termination of Mother’s parental rights
would best serve the needs and welfare of the [C]hild[ren]
pursuant to 23 Pa.C.S.[A.] §[]2511(b)?
Mother’s Brief at 8 (trial court answers omitted).
We review Mother’s claims pursuant to the following standard of review:
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, 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).
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. It 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
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needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare 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 L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(1), (2), (5), (8), and (b). We need only agree with the
court as to any one subsection of 2511(a), in addition to Section 2511(b), to
affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal
denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s decision to
terminate pursuant to Section 2511(a)(1) and (b),3 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:
(1) The parent by conduct continuing for a period of
at least six months immediately preceding the filing of
the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused
or failed to perform parental duties.
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(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,
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3 CYF included Section 2511(a)(1) in its termination petitions, the trial court
listed Section 2511(a)(1) as a basis for termination in its decrees, and Mother
raised Section 2511(a)(1) in her concise statements. Nonetheless, the court
did not discuss Section 2511(a)(1) in its opinion. We focus our analysis on
Section 2511(a)(1), despite the court’s omission, because we believe it is the
subsection that most clearly supports the court’s decision.
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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)(1), (b).
We begin by addressing the trial court’s termination of Mother’s parental
rights pursuant to Section 2511(a)(1). To satisfy the requirements of Section
2511(a)(1), “the moving party must produce clear and convincing evidence of
conduct, sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish parental claim
to a child or a refusal or failure to perform parental duties.” In re Z.S.W.,
946 A.2d 726, 730 (Pa. Super. 2008). The trial court must then consider the
parent’s explanation for his or her abandonment of the child, in addition to
any post-abandonment contact. Id. This Court has emphasized that a parent
does not perform parental duties by displaying a merely passive interest in
the development of a child. In re B.,N.M., 856 A.2d 847, 855 (Pa. Super.
2004), appeal denied, 872 A.2d 1200 (Pa. 2005) (quoting In re C.M.S., 832
A.2d 457, 462 (Pa. Super. 2003), appeal denied, 859 A.2d 767 (Pa. 2004)).
Rather,
[p]arental duty requires that the parent act affirmatively with
good faith interest and effort, and not yield to every problem, in
order to maintain the parent-child relationship to the best of his
or her ability, even in difficult circumstances. A parent must utilize
all available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
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rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with his or her physical and emotional
needs.
Id. (citations omitted).
Mother argues on appeal that the evidence presented at the termination
hearing was insufficient. Mother’s Brief at 21-25. Mother maintains that she
obtained housing, completed domestic violence counseling, and stopped using
marijuana. Id. at 22-23. While she acknowledges that she missed many of
her visits with the Children, she contends that she attempted to schedule visits
unsuccessfully and directs this Court’s attention to her own testimony at the
hearing. Id. at 22. She also asserts that missed visits can never be a basis
for removing a child from a parent’s care and, “therefore[, are] not a condition
a parent must remedy pursuant to 23 Pa.C.S.[A.] §[]2511(a).” Id. at 24.
As discussed above, CYF filed its petitions to terminate Mother’s parental
rights on October 31, 2018, meaning that the critical six-month period under
Section 2511(a)(1) began on April 30, 2018. CYF caseworker Deborah Pfeifer
testified that Mother left Pennsylvania in approximately May 2018 and failed
to visit with the Children until after she returned in mid-October 2018. N.T.,
8/23/19, at 20-21. Mother did not ask to visit with the Children during this
time, nor did she send them cards, letters, gifts, or support. Id. at 21. Ms.
Pfeifer testified merely that Mother called the Children’s foster mother on the
phone “a few” times. Id. at 21-22.
Although the six months preceding the filing of the termination petitions
is the focus of our analysis, we note that Mother’s failure to visit the Children
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consistently continued even after she returned to Pennsylvania. See B.,N.M.,
856 A.2d at 855 (“[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory provision.”). William
Pipkins, the transportation supervisor for the visits, testified that Mother last
attended a visit in December 2019. N.T., 9/18/20, at 51. Before that, Mother
last attended a visit in August 2019. Id. Of thirty-three recently scheduled
visits, Mr. Pipkins testified that Mother attended only one. Id. at 51-52. He
explained that this figure included virtual visits available during the COVID-19
pandemic. Id. at 52. While the Children’s foster mother cancelled one of the
thirty-three scheduled visits, the others did not occur because Mother failed
to appear, failed to confirm, or because his staff did not have Mother’s contact
information and could not locate her. Id. at 57-58.
Based on this evidence, the record demonstrates that Mother refused or
failed to perform parental duties during the six months preceding the filing of
the termination petitions and during the nearly two years that followed. While
Mother claimed at the hearing that she attended visits as often as she could,
and blamed others for her lack of more frequent visits, it was within the trial
court’s discretion to reject her testimony as lacking credibility. Id. at 102-06,
120-22; see In the Interest of D.F., 165 A.3d 960, 966 (Pa. Super. 2017),
appeal denied, 170 A.3d 991 (Pa. 2017) (“The [trial c]ourt 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.”). Thus, we
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affirm the termination of Mother’s parental rights to the Children pursuant to
Section 2511(a)(1).
We next consider the termination of Mother’s parental rights pursuant
to Section 2511(b). The requisite analysis is as follows:
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 [S]ection 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.
[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. 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.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (citations and quotation
marks omitted).
Mother focuses her claim regarding Section 2511(b) on the testimony
of CYF’s expert psychologist, Eric Bernstein, Psy.D. She emphasizes that Dr.
Bernstein last performed interactional evaluations, during which he observed
the Children interact with her and their pre-adoptive foster mother, in 2019.
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Mother’s Brief at 11-12. Mother argues that Dr. Bernstein could not offer an
opinion on whether termination would serve the Children’s needs and welfare,
and that more recent evaluations were necessary to determine the effect that
termination would have on them and whether the foster mother could provide
them with permanence. Id. at 26-27.
The trial court explained its decision to terminate pursuant to Section
2511(b) as follows:
. . . . The Children have been in the care of [their foster mother]
for almost three years. [The f]oster [m]other meets the[]
parental needs of the Children. She provides the Children with
love and support. Additionally, Mother has not had any contact
with the Children for over nine months. The Children are bonded
with [their f]oster [m]other; severance of the parental bond with
biological Mother would not likely cause any serious harm to the
[C]hildren at this time. Both [of the] Children are very young and
have very limited memories, and interactions with Mother. The
Children look to [their f]oster [m]other to meet their emotional,
psychological, [and] educational needs. [The f]oster [m]other
provides a stable home, love and support. Mother has not been
successful at achieving her goals set for reunification, in the
allocated timeframe. Therefore, it best serves the [C]hildren[’s]
needs and welfare to terminate Mother’s [parental r]ight[s].
Trial Court Opinion, 1/22/21, at 13.
Our review of the record supports the trial court’s determination. The
Children entered foster care in March 2017, when R.L.H. was a year old and
R.C.H. was three months old. By the time the termination hearing concluded
in September 2020, R.L.H. was four and a half years old, and R.C.H. was three
years and nine months old. In the meantime, the record indicates that the
Children had minimal contact with Mother and had not seen her at all since
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the end of 2019.4 It is apparent given the circumstances that the Children do
not have a meaningful bond with Mother, and that termination of her parental
rights would not cause the Children to suffer emotional harm. See Matter of
Adoption of M.A.B., 166 A.3d 434, 449 (Pa. Super. 2017) (instructing “that
a child develops a meaningful bond with a caretaker when the caretaker
provides stability, safety, and security regularly and consistently to the child
over an extended period of time.”).
While Mother is correct Dr. Bernstein did not recommend termination of
her parental rights, her argument oversimplifies the issue. Expert evaluations
are not a prerequisite to terminate parental rights. See In re K.K.R.-S., 958
A.2d 529, 533 (Pa. Super. 2008) (“In analyzing the parent-child bond, the
[trial] court is not required by statute or precedent to order a formal bonding
evaluation be performed by an expert.”). It was also within the trial court’s
discretion to reject Dr. Bernstein’s recommendations. See In re Bosley, 26
A.3d 1104, 1111 (Pa. Super. 2011) (“[A] trial court has discretion to accept
or reject a witness’ testimony, including that of an expert witness[.]”).
Dr. Bernstein’s evaluation reports and testimony indicate that he did not
recommend termination of Mother’s parental rights primarily for two reasons.
First, he was unable to reconcile Mother’s claim that she was compliant with
CYF with contradictory reports from other sources that she was not compliant.
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4 Although the details are not entirely clear, R.C.H. did not attend every visit
that occurred and, therefore, saw Mother even less than R.L.H. N.T., 9/18/20,
at 122-23.
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N.T., 9/18/20, at 20, 23, 39; Exhibit 1 (5/23/19 Psychological Evaluation at 6
and 2/27/20 Psychological Evaluation at 6). Second, he was concerned that
the Children’s pre-adoptive foster mother suffered from a significant medical
condition, which might impair her ability to care for them. N.T., 9/18/20, at
37-39; Exhibit 1 (5/23/19 Psychological Evaluation at 6).
Regarding Dr. Bernstein’s first concern, the trial court heard competing
testimony at the hearing regarding whether Mother was compliant with CYF.
It was the court’s duty to consider and resolve the conflicts in that testimony.
See D.F., 165 A.3d at 966. The court did so and found that Mother lacked
credibility.
Regarding Dr. Bernstein’s second concern, our law does not require that
a trial court weigh the health of a pre-adoptive foster parent as a critical factor
when rendering a termination decision. Indeed, although it is not preferred,
a court may terminate parental rights even when the agency has not identified
any pre-adoptive foster parent at all. See In re K.C.F., 928 A.2d 1046, 1052-
54 (Pa. Super. 2007), appeal denied, 936 A.2d 41 (Pa. 2007) (observing, “the
termination statute does not require children to be placed in a pre-adoptive
home as a precondition to termination of parental rights.”). It is important to
note that testimony at the hearing indicated the Children’s foster mother is
“very active,” and that her health does not presently prevent her from caring
for the Children. N.T., 9/18/20, at 64. In addition, the record is replete with
testimony that the Children share a bond with their foster mother, with whom
they have resided since 2017. N.T., 8/23/19, at 26-28; N.T., 9/18/20, at 10,
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37-38, 62-64, 78. We discern no abuse of discretion by the trial court in its
decision to terminate Mother’s parental rights, despite Dr. Bernstein’s lack of
support, and affirm pursuant to Section 2511(b).
Based on the foregoing, we conclude that Mother’s claims do not entitle
her to relief, and we affirm the September 22, 2020 decrees terminating her
parental rights to the Children involuntarily.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2021
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