In the Int. of: L.L., Appeal of: R.L. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: L.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: CAITLYN ROGOWSKI, :
MOTHER :
:
:
:
: No. 2320 EDA 2020
Appeal from the Decree Entered November 3, 2020
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): 7 OCA 2020
IN THE INTEREST OF: L.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: RICHARD LAWSON, :
FATHER :
:
:
:
: No. 2321 EDA 2020
Appeal from the Decree Entered November 3, 2020
In the Court of Common Pleas of Monroe County Juvenile Division at
No(s): 7 OCA 2020
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED JULY 20, 2021
C.R. (“Mother”) and R.L. (“Father”) (collectively, “Parents”), appeal the
decree dated and entered on November 3, 2020, which granted the petition
filed by the Monroe County Children and Youth Services (hereinafter, “CYS”
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* Retired Senior Judge assigned to the Superior Court.
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or the “Agency”) to involuntarily terminate their parental rights with respect
to their dependent, male child, L.L., (born in September of 2018) (“Child”),
pursuant to 23 Pa.C.S. §§ 2511(a)(2), (5), (8), and (b), and changed the
permanency goal for Child to adoption pursuant to the Juvenile Act, 42 Pa.C.S.
§ 6351.1 We affirm.
On February 11, 2020, CYS filed a termination of parental rights (“TPR”)
petition seeking the involuntary termination of Parents’ rights to Child. On
October 21, 2020, the trial court held an evidentiary hearing on the petition,
at which Attorney Elizabeth Weekes represented CYS.2 Parents were present,
along with their counsel, Attorney Ashley A. Messoline. Child’s guardian ad
litem (“GAL”)/legal interest counsel, Brandie J. Belanger, was also present on
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1 In the same decree, dated and entered on November 3, 2020, the trial court
involuntarily terminated both Parents’ parental rights to Child pursuant to 23
Pa.C.S. §§ 2511(a)(2), (5), (8), and (b), and changed the permanency goal
for Child to adoption. We dispose of both Parents’ separate appeals from the
decree terminating their parental rights and from the goal change order in a
single memorandum for ease of disposition, as the trial court entered only one
decree and filed an identical opinion in each case, essentially disposing of them
together. Notably, as the court changed Child’s goal in the termination decree
that Parents have appealed, not in a separate order, we find this matter
distinguishable from In the Interest of S.D., 2021 WL 2521629 (filed June
21, 2021), in that there was not a separate goal change order for Parents to
appeal, and they are not challenging the goal change in any event.
2 The trial court explained that, due to the COVID-19 pandemic and [c]ourt
protocols, and the availability of counsel, the trial court continued the matter
to October 21, 2020. Trial Court Opinion, 11/3/20, at 1.
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behalf of Child.3 CYS presented the testimony of its caseworker, Jennifer
Payne, who is assigned to the family. N.T., 10/21/20, at 6. Mother then
testified on her own behalf, as did Father. Id. at 67, 86.
Based upon the testimonial and documentary evidence entered into the
record, the trial court made the following findings of fact regarding the period
preceding Child’s birth.
1. [L.L.], DOB [September 2018] and two (2) years of age, is the
minor child subject to the TPR petition.
2. [C.R.] (“Mother”), age 32, is the natural mother of the minor
child[,] and she resides in East Stroudsburg, Monroe County, PA.
3. [R.L.] (“Father”), age 37, is the natural father of the minor
child[,] and he resides with Mother in East Stroudsburg, Monroe
County, PA.
4. The initial involvement by CYS with Mother and Father occurred
in July 2015, when an older child, [P.], was born. That child was
born positive for opioids. Other concerns included Mother having
her parental rights terminated in New Jersey as to four (4) other
children (three (3) voluntarily and one (1) involuntarily), and
unstable housing.
5. Mother gave birth shortly thereafter to another child, [E.], and
the same concerns still existed. Both children were found
dependent, with continued placement in the home.
6. Both [P.] and [E.] went into foster care in November 2016 due
to [parental loss of housing]. The [P]arents then moved to New
Jersey, where an Interstate Compact [on the Placement of
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3 On February 14, 2020, the trial court appointed Attorney Belanger as Child’s
GAL/legal interest counsel. See Trial Court Order, 2/14/20.
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Children, (“ICPC”),] was denied due to unstable housing and
Father being incarcerated for a period of time.
7. Mother and Father had no contact with [P.] and [E.] from
November 2016 until July 2018[,] when [Parents] returned to
Pennsylvania.
8. Visit coaching with Justice Works was then put in place.
Trial Court Opinion, 11/3/20, at 1-2.
Based upon the testimonial and documentary evidence entered into the
record, the trial court made the following findings regarding the facts which
lead CYS to file a dependency petition regarding Child.
9. On September [ ], 2018, [Child] was born positive for
Suboxone, which Mother was reportedly taking. It was later
revealed that Mother had been receiving Suboxone treatment
since at least July 2015[,] when CYS first became involved with
the family.
10. The minor child then went through withdrawal and had to be
placed in the NICU [Neo-Natal Intensive Care Unit] at the hospital.
11. EPC [Emergency Protective Custody] was taken and shelter
care was granted on October 2, 2018[,][ ] due to housing, the
minor child’s withdrawal symptoms, and no progress on the
[P]arents’ goals for the two older children.
12. As of October 2018, Mother and Father were living in a one[-
]room rental at the Paramount Motel in East Stroudsburg, PA.
13. At that time, Father was refusing drug screens and Mother
refused to sign releases of information for CYS.
Trial Court Opinion, 11/3/20, at 2-3 (footnote omitted).
Based upon the testimonial and documentary evidence in the record,
the trial court made the following findings regarding Child’s dependency.
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14. Dependency of the minor child was granted by [the trial court
on October 11, 2018,4] shortly after shelter care, and placement
was ordered to be with the [P]arents after the minor child was
released from the NICU, provided drug and alcohol screens were
given, no smoking in the home, and that the [P]arents sign
releases for CYS. [See N.T., 10/21/20, at 14]. The [c]ourt also
found aggravated circumstances existed due to Mother’s TPR of
her older children in New Jersey.
15. Mother again refused to sign releases[,] and both Mother and
Father refused drug and alcohol screens, which resulted in the
minor child going from the NICU to a foster home, instead of home
with the [P]arents.
Trial Court Opinion, 11/3/20, at 3.
The trial court made the following findings of fact regarding the period
extending from Child’s adjudication of dependency until CYS filed the TPR
petition in this case.
16. Despite Mother not signing releases or providing medical
records, CYS was able to confirm that Mother was treating with a
doctor for opioid dependency and that Mother had been taking
Suboxone for four years at that point. CYS was concerned
because Mother would not admit that her Suboxone use was for
an opioid dependency and she would not provide information on
her treatment.
17. A TPR petition was filed as to the older children [P.] and [E.],
and[,] on January 23, 2019, the parental rights of Mother and
Father as to those children were terminated. (See 54 and 55 OCA
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4 The notes of testimony from the hearing on October 21, 2020 appear to have
a typographical error, as it states that Child was adjudicated as dependent on
October 21, 2019, but the trial court states in its opinion that the court
adjudicated Child dependent on October 11, 2018, which appears to be the
correct date based on the record. See Trial Court Opinion, 11/3/20, at 17;
cf. N.T., 10/21/20, at 14.
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2018). The TPRs were upheld by the Superior Court by order
entered on November 11, 2019 at No. 634 E.D.A. 2019, which
became final thereafter. The older children were then adopted by
their foster parents on October 20, 2020.
18. Father became verbally abusive with the CYS caseworker after
entry of the TPR on the two older children, including incidents
where he called her a kidnapper, was loud and angry, and
slammed a door in her face.
19. Mother and Father continued visits with the minor child at CYS,
and then again at Justice Works when visits were moved there in
the summer of 2019.
20. The concerns at that time were still housing, Mother’s
continued use of Suboxone with a prior opioid addiction, lack of
consistent drug screens from Father, [P]arents’ excessive
smoking[,] and the abusive language and anger of Father toward
CYS caseworkers.
21. Following a review hearing in 2019, Father made threats of
punching the caseworker.
22. During the visits at Justice Works, the [P]arents smelled of
cigarette smoke and took excessive smoking breaks. Father also
brought a knife to one of the visits.
23. In the fall of 2019, Mother and Father moved to a two[-
]bedroom apartment [in] East Stroudsburg, PA[,] where they
continue to reside to the present time. The apartment is on the
same property with a motel located thereon.
24. In January 2020, the caseworker again discussed with Mother
about having a mental health evaluation done. Mother has never
provided one or supplied records on her mental health. Also at
that time, Father stated he was working at a restaurant in
Tannersville, PA, but provided no proof of employment.
25. Mother has been giving drug screens to Justice Works at visits
and has remained positive for Suboxone.
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26. A home visit was conducted on January 16, 2020. It had to
be scheduled at a [c]ourt hearing due to the [P]arents’ refusal to
respond to the caseworker’s earlier requests to see the home. The
[P]arents still have not provided a lease for the residence despite
numerous requests to do so.
27. The home was appropriate, [sic] but smelled heavily of
cigarette use. It is also noted that the [P]arents had an
overwhelming smell of cigarette smoke on them in [c]ourt at the
hearing held on October 21, 2020.
Trial Court Opinion, 11/3/20, at 3-5 (footnote omitted).
The trial court made the following findings of fact regarding the Parents’
conduct during the period following CYS’s filing of the TPR petition on February
11, 2020.
28. Mother and Father have submitted no proof of employment
nor any paystubs despite numerous requests by CYS. Both
parents were unemployed at the time of the hearing in this matter,
[sic] but claim to receive about $450 per week in unemployment
benefits. Their rent is $400 per week. Mother says she gets some
financial help from her stepfather.
29. The [P]arents do not have reliable transportation[,] as their
car broke down. As a result, they have been having virtual visits
with the minor child since August 2020 by Zoom. The [P]arents
claim they will be getting the car fixed with the help of [Child’s
paternal grandfather].
30. Father has remained verbally abusive toward CYS by making
comments and swearing in the background of the Zoom visits.
31. Mother has not provided any drug and alcohol records other
than confirmation she has been taking Suboxone. Mother claims
she had a drug and alcohol evaluation through Catholic Social
Services, but CYS did not have a record of it.
32. Mother does not appear to have engaged in any drug and
alcohol counseling other than continuing to take Suboxone.
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Mother stated she is trying to reduce the amount of Suboxone she
takes daily in an attempt to no longer use it. Mother denies any
impairment from the use of the Suboxone.
33. Mother claims she suffers from anxiety and that she had a
mental health evaluation done. However, she could not
remember the name of the doctor and she has not provided any
information about it to CYS.
34. Mother stated she completed parenting classes in the past,
but Father did not due to his incarceration in New Jersey.
35. Mother has had eight (8) total children, of which six (6) have
had parental rights terminated, (1) is deceased and the other is
the minor child in this case.
36. The [P]arents’ unemployment benefits will run out in
December 2020, and Mother admitted they have not really looked
for employment due to the COVID-19 pandemic, as she believes
no one is hiring.
37. Father stated that he refuses drug screens because he
believes there was a false positive for alcohol in a past screen.
Trial Court Opinion, 11/3/20, at 5-6.
The trial court made the following findings of fact regarding Child’s
relationship with the Parents.
38. The visits with the minor child show a good parent/child
relationship. The [P]arents have also brought snacks and toys to
the visits for the minor child.
39. The [P]arents have a bond with the minor child as his parents.
40. The minor child lives in the same foster home with his two
siblings, [P.] and [E.].
41. The minor child has as strong bond with his siblings and with
the foster parents.
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42. The foster parents want to adopt the minor child and have
already adopted his two older siblings.
43. The minor child’s attorney agrees with the request for TPR.
44. CYS is also seeking a goal change to adoption.
Trial Court Opinion, 11/3/20, at 6-7 (footnote in original).
In a decree dated and entered on November 3, 2020, the trial court
terminated Mother’s and Father’s parental rights to Child, pursuant to 23
Pa.C.S. § 2511(a)(2), (5), (8), and (b), and changed Child’s permanency goal
to adoption, pursuant to 42 Pa.C.S. § 6351. On December 1, 2020, Mother
and Father each timely filed a notice of appeal, along with a concise statement
of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and
(b).
In their briefs on appeal, Mother and Father raise one identical issue:
1. Whether the court erred in finding that [CYS] proved the
elements of 23 Pa.C.S.A. section 2511(a)(2), (5) and (8) and 23
Pa.C.S.A. section 2511 (b) through clear and convincing evidence.
Mother’s Brief at 4; Father’s Brief at 4.5
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5 Mother and Father waived any challenge to the goal change by their failure
to preserve the challenge in their concise statements and statements of
questions involved on appeal. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (stating that any issue
not set forth in or suggested by an appellate brief’s statement of questions
involved is deemed waived). See also In re W.H., 25 A.3d 330, 339 n.3 (Pa.
Super. 2011); In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017).
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Mother and Father argue that CYS failed to establish by clear and
convincing evidence that it satisfied the statutory grounds for termination
under Pa.C.S.A. § 2511(a)(2), (5) and (8), and (b). Mother and Father
contend that the evidence was insufficient to support a decision to terminate
their parental rights, and that the trial court failed to properly consider that
they had remedied the original reasons for Child’s placement in foster care.
They also assert that the evidence was insufficient for the trial court to
conclude that termination of their parental rights was in the best interest of
Child. Accordingly, they urge that the trial court committed an error of law
and abuse of its discretion. Mother’s Brief at 8; Father’s Brief at 8.
In reviewing an appeal from a decree terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
1179, 1190 (Pa. 2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; R.I.S., [614 Pa. 275,
284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has
been often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634
(Pa. 2003). Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.- 10 -
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As we discussed in R.J.T., there are clear reasons for applying an
abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at
28-30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion. In re Adoption of Atencio, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 616 Pa. 309, 325-26, 47 A.3d 817, 826-27 (2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained, “[t]he standard of clear and convincing
evidence is defined as testimony that is so “clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.” Id., quoting In re J.L.C.,
837 A.2d 1247, 1251 (Pa. Super. 2003).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of section 2511(a). See
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In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will
address section 2511(a)(2) and (b), which provides as follows:
§ 2511. Grounds for involuntary termination
(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. § 2511.
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) such
incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence necessary for his physical or mental well-
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being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272
(Pa. Super. 2003). The grounds for termination of parental rights under
section 2511(a)(2), 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
A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
This Court has stated that the focus in terminating parental rights under
section 2511(a) is on the parent, but it is on the child pursuant to section
2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.
2008) (en banc).
Regarding section 2511(a)(2), Mother and Father argue:
Of significant importance in the instant case, [sic] is that none of
the conditions that led to placement continued to exist at the time
of filing for termination, and there is in no way a refusal or
incapacity by the [P]arents to perform parental duties. The
caseworker gave a vague answer when identifying the initial
concerns saying, “two other children being in foster care. . . and
[Parents’] current living arrangements at that time.” N.T.
10/21/2020 at 11. Despite these concerns, however, the minor
child did return home with [P]arents.
The caseworker then harped on the fact that [M]other did not
provide her medical records to the Agency. However, [M]other
did in fact provide records in a sense, and the Agency admits to
having received a letter, email, and phone call from [M]other’s
treating physician. The caseworker testified that this
correspondence documented that natural mother was under the
care of a physician, had a valid prescription for suboxone,
[M]other was compliant with treatment, and that her drug screens
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for her treating physician were always fine. Id[.] at 15. The
caseworker admitted she had no reason to question the
prescribing doctor or that [M]other was compliant with treatment
saying, “I do trust what he’s saying in the letter, yes.” Id[.] at
40. The caseworker further admitted that she was in no way a
medical professional qualified to decipher medical records. Yet
she still insisted on reading medical records of natural mother in
an attempt to somehow insert her lay opinion about [M]other’s
[S]uboxone use.
Also of importance in relation to the Agency’s concerns about drug
use are [M]other’s screens for the Agency as well as the drug and
alcohol evaluation from Catholic Social Services that confirmed no
treatment was necessary. Except for a couple positive screens for
marijuana in 2019, [M]other tested clean throughout 2020 and
provided consistent screens up until the time of the visits being
moved to [Z]oom. Id[.] at 43. Mother was never asked to
participate in any type of counseling for drug and alcohol and
never tested positive for an illegal opioid over almost two years of
testing. The caseworker not being able to read medical records
she isn’t qualified to decipher does not rise to the level of a
legitimate concern of an opioid addiction interfering with
[M]other’s ability to care for her son. If caseworkers are allowed
to substitute their opinions for professionals trained to address
drug and alcohol concerns, there’s no use in requiring parents to
engage in services in the first place.
Another concern identified by the Agency was the [P]arents’
housing. However, the caseworker testified that [P]arents
obtained a two-bedroom apartment that was appropriate for the
child. Even when the [P]arents resided in a hotel, the caseworker
noted that it was still acceptable and appropriate for the child.
Although the [P]arents were not currently working at the time of
the hearing, they had taken appropriate steps to maintain their
apartment like many other Americans by filing for unemployment
and seeking employment to the best of their ability during the
pandemic.
Finally, the [P]arents in this case in no way showed a refusal or
incapacity to parent as required under section 2511(a)(2). The
[P]arents actively participated in visitation, and visitation was
appropriate and positive. The [P]arents provided items for the
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child including meals and toys, and also maintained items for the
child within their home. They also demonstrated that reasons for
placement were in fact remedied as discussed at length above.
Natural mother’s testimony was credible and convincing and
established that the [P]arents did address the Agency’s concerns
and reasons for placement to the best of their ability. The
caseworker’s testimony was vague and often times contradictory
in regards to the drug and alcohol concerns and evaluation.
Although there is no dispute that the first prong under 23
Pa.C.S.A. § 2511(a)(5) and (8) is met, the Agency did not
establish by clear and convincing evidence that the conditions that
led to placement still exist[,] nor did it prove by clear and
convincing evidence that any prongs under [§] 2511(a)(2) have
been met. The record and testimony are not enough to support
the [t]rial [c]ourt’s decision.
Mother’s Brief, at 11-13; Father’s Brief, at 11-13.
The trial court addressed the Parents’ issue regarding 23 Pa.C.S.
§ 2511(a)(2), as follows:
[]The minor child has been in care since he was born over two
years ago[.]
We [ ] find that CYS has provided clear and convincing evidence
for granting the requested TPR. In this case, the minor child has
been removed from the [P]arents’ care more than one (1) year.
The minor child has resided in the same foster home for his entire
two[-]year lifetime. The conditions that led to removal continue
to exist, in that the [P]arents have no employment [and] they lack
transportation. Mother continues to take Suboxone without
providing a current drug and alcohol evaluation or proof of a
mental health evaluation, Mother has not released her medical
records or signed a release, Father refuses to give drug screens
and has not completed parenting classes, and questions remain
as to the stability of the [P]arents.
The [P]arents claim they have or will have transportation, but
their vehicle has not worked in over three months. Due to this,
visits have been by video, since they cannot get to Justice Works
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to see the minor child. The [P]arents claim it will be fixed soon.
But, [sic] their only income is unemployment benefits of $450.00
per week and their rent alone is $400.00 per week. The [P]arents
claim the minor child’s paternal grandfather will pay to have the
vehicle fixed, [sic] but offer no proof of that or why it was not
done sooner. It is unknown when the [P]arents will have
transportation again.
The [P]arents claim to be able to support themselves and the
minor child; however, they provide no proof of employment.
Father claims he has had all “cash” jobs in the restaurant
business, which ended due to COVID-19. Assuming the [P]arents
receive unemployment benefits as they stated, the weekly amount
barely covers their rent with only a few hundred dollars per month
left over for food, clothes, utilities, and transportation. They
clearly smoke a lot of cigarettes, which can be expensive. Their
unemployment benefits run out in December 2020 and neither
parent has actively sought out work, which they claim generally is
due to the COVID-19 pandemic. Mother claims her stepfather
helps them with expenses, but she provided no proof of that, or
even how much. It simply does not appear that the [P]arents can
support themselves, let alone the minor child. This situation is
concerning when considering the history of this case and that of
the [P]arents’ older children.
The [P]arents now live in a suitable residence[;] however, they
provided no proof of a lease to confirm stability at that address.
Housing was a primary concern when the minor child came into
care. The lack of employment and high cost of this residence
($400.00 per week) causes questions about the ability of the
parents to maintain it. The residence is also on the same property
as a motel, which raises separate concerns about a transient
population. The location of the residence also makes it difficult, if
not impossible, for the [P]arents to attend visits because they do
not have an operable vehicle.
Mother’s prior drug use and her continued use of Suboxone was a
concern when the minor child first went into care. Mother had
been on Suboxone for several years at that point, two other
children were born previously with opioid withdrawal, and the
minor child suffered from withdrawal after birth due to Mother’s
continued Suboxone use. That use continues to the present time.
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The concern is not that the Suboxone impairs Mother, rather it is
her continued choice of this treatment for an opioid addiction
without actually addressing her dependence on drugs. Mother
refuses to sign a release for CYS to get her medical records to
assess her prior drug and alcohol treatment. She has not provided
proof of a recent drug and alcohol evaluation and does not appear
to have received any drug and alcohol treatment. The continued
use of Suboxone for over five years is like a “crutch” for treating
Mother’s opioid addiction, rather than treating the cause and
ending an addiction. Counseling and tapering off of the Suboxone
is what CYS was looking for; otherwise, there is a concern that a
missed dose, or some other circumstance, could lead to a relapse
of opioid use. Mother says she can take one less pill each day
when she needs to do so. However, she misses the point of the
CYS goal[,] which is to eliminate her dependence on something in
order to lessen her chance of a relapse.
Mother has also failed to obtain and provide a mental health
evaluation to CYS for her noted anxiety issues. Mother has
continuously refused to provide CYS with her medical records or
sign a release for records. This dates back to this [c]ourt requiring
her to do so in order to have the minor child placed in the home
following the initial dependency hearing. Mother refused to follow
that court order and the minor child was placed in foster care as
a result. Despite that fact, Mother has still failed and refused to
provide her medical records, or a release for those records.
Mother claims she had a mental health evaluation done at some
point, but she cannot remember the provider, when she did it, or
what the recommendation was from it. Based upon that, we doubt
Mother had an evaluation done and do not find her credible in that
regard. Her failure to provide her medical records, or to sign a
release, or to engage in a mental health evaluation is troubling at
this point.
Father has not completed parenting classes, refuses to give drug
and alcohol screens, and has failed to provide proof of
employment despite various requests [by CYS throughout this
case] to do so. His reason for failing to complete parenting classes
was that he was incarcerated with only a week of classes left.
However, that was several years ago, before the minor child was
even born, and Father [has] done nothing since. He refuses to
give drug screens because he believes CYS recorded a false
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positive in the past. However, he presented no proof of that, has
been offered to give them at Justice Works instead, and he has
not done them there or through any other third party of his
choosing.
Father has never produced proof of employment. He claims he
has always received cash payment for work, but other than
supplying the name of the [] restaurant where he recently worked,
Father provided no details for CYS to be able to confirm prior
employment. Father is currently unemployed, which is somewhat
understandable during the current global pandemic, but his
unemployment runs out in less than two (2) months and he has
not offered any plan. It is also concerning that Father has blamed
the TPR of his older children on the CYS caseworker, and that he
has remained belligerent and threatening to CYS caseworkers,
both in person with them, and during video visits throughout the
dependency of the minor child. Father clearly has either mental
health or anger management issues which need to
be addressed.
[U]nder Section 2511(a)(2), parents are required to make diligent
efforts toward reasonably prompt assumption of full parental
responsibility. In re A.L.D., 797 A.2d 326 (Pa. Super. 2002). In
two years, the parents have not remedied these conditions, other
than moving to a two[-]bedroom apartment. It also does not
seem likely that the parents will remedy the conditions in a
reasonable period of time. Mother continues to use Suboxone,
she will not provide medical records, she has not provided proof
of a drug and alcohol evaluation or mental health evaluation, and
she refuses to sign a release of information. Mother and Father
remain unemployed[,] and benefits run out soon. Their income
does not cover expenses and they have no transportation. Father
refuses to engage and complete parenting classes and refuses to
give drug and alcohol screens. The behavior of the [P]arents in
the past and their current testimony did nothing to reassure the
[c]ourt they will complete any of these things in the near future.
As such, the conditions that led to removal mostly still exist two
years later with no assurance it will be addressed in a reasonable
amount of time.
Trial Court Opinion, 11/3/20, at 11-16.
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After a careful review, we find that the trial court’s determination that
CYS satisfied the requirements of section 2511(a)(2) is supported by
competent, clear and convincing evidence in the record. In re Adoption of
S.P., 616 Pa. at 325-26, 47 A.3d at 826-27; In re: T.S.M., 620 Pa. at
628-629, 71 A.3d at 267. We adopt the discussion set forth in the trial court
opinion. There was sufficient evidence in the record from which the trial court
could have properly found that the Parents display parental incapacities that
have caused Child to be without essential parental care, control or subsistence
necessary for his physical or mental well-being, as they lack stability, and that
they cannot or will not remedy the causes of their incapacities, the conditions
that led to Child’s placement. The evidence showed that the same conditions
that existed at Child’s birth existed at the time that their parental rights were
terminated with regard to Child’s two older siblings, P. and E., and continued
to exist at the time of the TPR hearing as to Child.
Regarding section 2511(b), Mother and Father argue that the trial court
erred in finding that CYS proved that termination was in Child’s best interest,
citing In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). The Parents argue
that they had regular visits with Child throughout the life of the case, and that
Child shares a good bond with them, refers to them as his mom and dad, and
runs to them in excitement when seeing them at visits. Mother’s Brief at 14,
and Father’s Brief at 14, citing N.T. 10/21/2020 at 49, 53, and 76-78. The
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Parents also assert that the Justice Works notes CYS presented as CYS Exhibit
7 support the conclusion that Child had positive visits with them, and that
Child’s pre-adoptive foster parents did not note any concerns with the visits
between the Parents and Child when they facilitated the visits via Zoom.
Mother’s Brief at 14; Father’s Brief at 14. The Parents urge:
While [C]hild is placed with his siblings in his foster home,
there was no testimony or evidence to suggest that severing the
bond of the [C]hild and [P]arents would not be more detrimental
than beneficial to the child. [Child] and [P]arents clearly love each
other and [P]arents are in a position to care for their son.
Mother’s Brief at 15; Father’s Brief at 15.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court has stated as follows.
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., [533 Pa. 115, 121, 620 A.2d
481, 485 (Pa. 1993)], this Court held that the determination of
the child’s “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.
In re: T.S.M., 620 Pa. 602, 628-629, 71 A.3d 251, 267 (2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
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well. Additionally, section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
direct observation of the interaction between the parent and the child is not
necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
concluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . . Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and
quotation marks omitted). Thus, the court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary
termination of parental rights, despite existence of some bond, where
placement with mother would be contrary to child’s best interests). “[A]
parent’s basic constitutional right to the custody and rearing of . . . her child
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is converted, upon the failure to fulfill . . . her parental duties, to the child’s
right to have proper parenting and fulfillment of [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004) (internal citations omitted).
This Court has explained that a parent’s own feelings of love and
affection for a child, alone, do not prevent termination of parental rights. In
re Z.P., 994 A.2d at 1121. It is well-settled that “we will not toll the well-being
and permanency of [a child] indefinitely.” In re Adoption of C.L.G., 956
A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)
(noting that a child’s life “simply cannot be put on hold in the hope that [a
parent] will summon the ability to handle the responsibilities of parenting.”)).
The trial court discussed Parents’ argument concerning section 2511(b)
as follows:
Finally, an analysis of the minor child’s needs and welfare . . .,
as well as developmental, emotional and physical needs of the
minor child under Section 2511(b), weighs in favor of terminating
parental rights. The minor child is now two years old and has
been in foster care all of his life. He needs stability and
permanency. The minor child should not have to wait a long time
to see if the [P]arents can address goals of the family service plan
and concerns that still exist. The [P]arents still do not have
stability, as the same concerns and problems exist today as they
did at the minor child’s birth, and at the TPR of the two older
children. In contrast, the foster home is providing a stable home
with no concerns.
The foster family wants to adopt the minor child as they have with
the two older children. The minor child is bonded with the foster
parents, and with his siblings. Those siblings are now a
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permanent part of the minor child’s foster family. By granting the
TPR, the minor child would remain with his siblings and his foster
family permanently. This is of greater importance than if the
minor child were simply with a different family and had no siblings.
Furthermore, his young age, and need for continuity and
recognition of parental providers is extremely important. To
remove him at some point in the future to live with his parents,
when that time is uncertain, would be very difficult for the minor
child. He would also lose that connection, bond and comfort that
he has with his siblings and foster family. He has only ever known
a home with his foster parents and his siblings. As such, it is
important that the minor child continue living in the foster home
with his siblings.
The [P]arents do have a bond with the minor child. They have
stayed connected with the minor child and attend visits regularly.
The [P]arents are appropriate with the minor child and play with
him at visits. The CYS caseworker has observed this as well. The
[P]arents do appear to love the minor child and sincerely want to
be a part of his life. However, a great deal of time has passed,
and the [P]arents still have not addressed concerns, even with the
ability to do so. The uncertainty of their income, employment,
housing expenses, transportation, drug and alcohol issues and
mental health have not been resolved[,] and it appears will not be
resolved in a reasonable period of time based upon the [P]arents’
actions. The minor child should not have to wait indefinitely for
the [P]arents to address these issues. The minor child’s
placement with the foster family and his siblings weighs most
heavily in favor of granting TPR. It has been shown that the
welfare and needs, as well as the developmental, emotional and
physical needs of the minor child will be best served by granting
a termination. For all of these reasons, under Section 2511(a)(2),
(a)(5), (a)(8) and (b), we will grant the petition of CYS.
***
[ ] Termination of parental rights of the mother and father would
best serve the needs and welfare of [Child], and the statutory
criteria set forth in 23 Pa.C.S.A. 2511(a)(2) and (b) for such
termination has been established by clear and convincing
evidence.
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Trial Court Opinion, 11/3/20, at 16-17.
After a careful review, we find that the trial court’s determination that
CYS satisfied the requirements of section 2511(b) is supported by competent
evidence in the record. In re Adoption of S.P., 616 Pa. at 325-26, 47 A.3d
at 826-27; In re: T.S.M., 620 Pa. at 628-629, 71 A.3d at 267. We adopt the
discussion set forth in the trial court opinion. The trial court gave proper
consideration to Child’s placement with his two older siblings, P. and E., in a
pre-adoptive family who had adopted P. and E., and Child’s connection and a
bond with his siblings and foster family, which have provided him with
permanence. While the Child may be bonded with the Parents, Child is also
bonded with his foster parents, who have been constant and provided stability
for Child in his young life. The trial court found that the Parents’ bond with
Child is not more significant than the fact that they have had a parental
incapacity, and an inability or unwillingness to remedy their instability and
incapacity to provide proper parenting for Child. We agree that the
termination of the Parents’ parental rights to Child, and his adoption by the
same foster parents who adopted his siblings, P. and E., best serves his
developmental, physical, and emotional needs and welfare.
As we have determined that there was clear and convincing evidence to
support the termination of Mother’s and Father’s parental rights to Child
pursuant to 23 Pa.C.S. § 2511(a)(2) and (b), we find that the trial court did
not commit an error of law or an abuse of discretion in terminating their
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parental rights to the Child. Accordingly, we affirm the trial court decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2021
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