Adoption of: K.T.W.E., Appeal of: A.S.

J-A18041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: K.T.W.E. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: A.S., NATURAL MOTHER :
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:
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: No. 282 WDA 2020
Appeal from the Order Entered February 4, 2020
In the Court of Common Pleas of Butler County Orphans’ Court at No(s):
O.A. No. 36 of 2019
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 2, 2020
A.S. (Mother) appeals1 from the order granting the petition filed by the
Butler County Children and Youth Social Services (CYS) to involuntarily
terminate her rights to her minor child, K.T.W.E., born in May of 2016,
pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1),(2), (5), (8), and (b).
After careful review, we affirm.
The trial court accurately summarized the facts of this matter as follows:
On September 18, 2017, [CYS] received a report from local law
enforcement of an incidence of domestic violence with a child
present. CYS Caseworker Michelle Womar responded to Mother’s
home. Mother confirmed the domestic violence incident,
explaining that she was the victim of Father’s assault. Mother
confirmed that she had to climb out of a two-story window to
escape Father at approximately 2:30 A.M. Mother had placed
Child in a playpen prior to leaving through the window.
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1Father filed a separate appeal from the order, which is docketed at 333 WDA
2020 and 334 WDA 2020.
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Upon Caseworker Womar’s arrival, Father was no longer at the
home, and Caseworker Womar had no interaction with him.
Caseworker Womar observed the home to be appropriate. Mother
had secured Child’s safety, and she was an appropriate caregiver.
Caseworker Womar indicated at this time that Child was healthy
and that Mother was cooperative.
Mother filed a Petition for Protection from Abuse (PFA) [against
Father]. A temporary PFA was granted on September 18, 2017.
Father was charged by the police with assault and endangering
the welfare of a child. Mother informed Caseworker Womar that
Father made no attempts to physically harm Child. The matter
was closed with CYS on September 22, 2017. Mother filed a
Motion to Withdraw and Discontinue the PFA action, and the
Temporary Order was dismissed on September 28, 2017. The
Order of Court discontinuing the PFA action ordered the original
petition be forwarded to Butler CYS due to allegations in the
petition of potential abuse or threat of abuse of a child.
On November 12, 2017, CYS again received a report from local
law enforcement notifying CYS that Father had been arrested,
Mother’s whereabouts were unknown, and there was a child at the
scene. CYS Caseworker Jonibeth Loverick and Caseworker Jessica
Wagner went to the home. Upon their arrival, Child was with the
police and was wearing only a diaper. The caseworkers noted that
there was little food and only a few items for Child in the home.
The home was in slight disarray, and there were pieces of plastic
bags all over the floor near the couch. The police informed CYS
that they were at the home based upon an anonymous tip that
Father was at the address and had active warrants. The police
also informed CYS that Father had barricaded himself in the home
earlier, but he had voluntarily surrendered. Father was arrested,
so there was no caretaker present for Child.
The police provided a phone number for Mother to CYS.
Caseworker Loverick called the number and left a message for
Mother. She also called and spoke to Maternal Grandmother, who
reported that she did not know Mother’s whereabouts.
Caseworker Loverick inquired as to Maternal Grandmother’s
availability to be a placement, but based upon a prior criminal
history and the emergent nature of the placement, Maternal
Grandmother could not be a kinship placement at that time. She
further explained to Maternal Grandmother that CYS would take
further steps to determine if she was eligible for placement during
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normal business hours. Around 1:30 A.M., having not been able
to locate Mother, CYS contacted this judge for an emergency
placement. This judge found that it would be contrary to Child’s
welfare to remain in the home and that CYS had made reasonable
efforts to prevent the removal and to find an adult relative or kin
for placement. Mother finally contacted CYS after 4:00 A.M. when
Caseworker Loverick was returning from placing Child with his first
foster home. Caseworker Loverick explained the process to
Mother. Paternal Aunt called CYS the following morning and
discussed what steps she could take to become a kinship
placement for Child. On November 13, 2017, this judge issued a
written court order to memorialize the court’s findings and verbal
order. On that same date, CYS filed a Dependency Petition
pursuant to 42 Pa. C.S. § 6302(1).
Caseworker Kayla Somerville-Carraher (who was, at the time,
Kayla Somerville) received the case as the primary caseworker.
That same day, a Shelter Care Hearing was held before the
juvenile court hearing officer. Father did not attend. Mother and
Child were present. Mother was represented by counsel. A
Guardian-Ad-Litem was present for Child. Father was assigned
court-appointed counsel for the hearing. Father was present at
the time of the hearing in another courtroom on criminal matters.
The hearing officer found that Father has an extensive criminal
history, and there was a history of domestic violence between
Father and Mother. The hearing officer also found that Mother
dropped the emergency PFA order on September 28, 2017, only
a few days after it was issued. Mother also admitted to the
caseworker that she used THC and Ecstasy. The hearing officer
recommended the continued detention of Child and provided
Mother with supervised visitation a minimum of three days per
week for two hours per visit.
On November 14, 2017, Mother filed for and was granted a
temporary PFA [against Father]. On November 22, 2017, Nia Ellis
(Paternal Aunt) was approved for a kinship placement subject to
certification as a placement provider within 60 days. Child was
placed with Paternal Aunt at both Father’s and Mother’s request.
At the time of Father’s request, Father was incarcerated. An
Adjudication Hearing was scheduled for November 22, 2017.
Father’s counsel requested a continuance due to the Sheriff’s
Office being unable to transport Father for the hearing from the
Butler County Prison. All parties consented to the continuance.
The hearing was rescheduled for November 27, 2017. On that
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date, due to the late hour of starting the hearing and the
requirement that the Sheriff have Father returned to the Butler
County Prison by 4:30 P.M., the hearing was again continued.
Immediately prior to the Adjudication Hearing, Father made
allegations, in a letter to CYS, claiming that Mother was a drug
addict, had attempted to commit suicide on multiple occasions,
drank too much alcohol, and was involved with CYS in Allegheny
and Beaver Counties. He also stated that he did not feel that Child
was safe with Mother and that Mother did not clean Child or
change his diapers. Father claims now that he made all of the
allegations up in an attempt to hurt Mother.
Following the Adjudication Hearing on December 19, 2017 and
December 27, 2017, the hearing officer made findings of fact and
found Child to be dependent pursuant to 42 Pa. C.S. § 6302(1).
Mother and Father had a history of domestic violence incidents
which involved the police. In September 2017, Father was
charged with aggravated assault, simple assault, child
endangerment, and theft after Mother escaped from a physical
confrontation with Father and she escaped by jumping out of a
second floor window, leaving Child with Father until the police
arrived. The assault charges were dismissed after Mother gave
contradictory testimony that favored Father at the preliminary
hearing.
In November [of] 2017, Father was arrested for trespass while at
Mother’s home. The police also found narcotics all over the
residence. Child was found on the floor. Mother was not home at
the time, but rather, was at a bar. Father admitted to drug and
alcohol use and an extensive criminal history that included
burglary. Father has anger issues, and he admitted that he and
Mother fight a lot.
Ultimately, the hearing officer found facts supporting domestic
violence, drug and alcohol use, anger issues, mental health issues,
criminal histories, and lack of stability for Mother and Father. On
January 22, 2018, a Dispositional Hearing was held. Prior to the
hearing, Mother and Father participated in Family Team Meetings
and participated in creating a Service and Visitation Plan. Mother’s
objectives were to maintain a sober lifestyle, maintain good
mental health, and meet Child’s basic needs. Father’s objectives
were to manage his anger with appropriate coping skills, maintain
a sober lifestyle, and meet Child’s basic needs.
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On January 22, 2018, an indirect criminal contempt for violation
of Mother’s PFA was filed, with a final hearing held on January 30,
2018. Father was found in contempt and sentenced to one to six
months of incarceration, and Father was to be on parole for the
remainder of any time upon release. A Final PFA Order was
entered January 30, 2018, to expire January 30, 2019.
On January 25, 2018, Child was removed from the kinship
placement with Paternal Aunt because the certification service
provider notified CYS that the Paternal Aunt’s home could not be
certified. Marcia Ellis, (Maternal Grandmother), did not pursue
certification at that time. Child was then placed in the kinship
home of Maternal Great-Grandmother at Mother’s request. After
only a month or two, Maternal Great-Grandmother reported [that
she was] having vivid nightmares about Father and reported that
she was afraid that Father would come and take Child away. She
requested [that] Child be removed from her home. Again, on
March 9, 2018, Child was detained, and Child was placed in a
confidential foster care.
On April 9, 2018, Father was arrested for violating the PFA again.
Father admitted that he violated the PFA and was sentenced to six
months of probation to run consecutive to the parole violation.
Father’s parole was revoked on the earlier violation.
A permanency review hearing was held on May 11, 2018. Mother
had made moderate progress with the service plan. Father had
made minimal progress, especially since he was incarcerated for
violation of a PFA. Father had not participated in any services.
On August 24, 2018, at a permanency review hearing, Mother had
still made moderate progress with the service plan in that she was
struggling to attend therapy. Father had still made only minimal
progress. The same was true at the October 12, 2018
Permanency Review Hearing. Father did not appear at the hearing
and had no contact with CYS since July 2018. Mother, however,
had missed therapy sessions only due to work and was providing
negative drug screens consistently. On or about November 12,
2018, CYS filed a motion for return of custody, which was granted.
Child was returned to the custody of Mother on November 12,
2018 for an extended visit. At this time, Father was not
participating in services. His last visit had occurred in July 2018.
His only contact with Caseworker Laura Bathgate consisted of a
voicemail where Father left no number for her to return his call.
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Caseworker Bathgate testified that during the period of
reunification, Mother’s apartment was clean, Child was happy, and
Mother was working. Mother was relieved of having to participate
in drug and alcohol treatment at this time, but she was negative
on one random drug screening. Mother was in mental health
treatment. Child was in Mother’s care for approximately two
months.
On January 4, 2019, Mother called Caseworker Bathgate and
stated that Father had been arrested at her apartment complex.
Mother called because she was concerned that Father’s arrest on
the property would affect Child’s placement with her. Mother hid
the facts of the arrest from CYS. Father was arrested as an
unauthorized tenant in Mother’s apartment. The property
manager and maintenance staff of the apartment complex saw
Father on the property repeatedly. Father was arrested because
he had active warrants.
At another indirect criminal contempt hearing in January 2019,
Father admitted he violated the Final PFA Order again on January
4, 2019. Father was sentenced to two to six months of
incarceration, with a period of parole for any time remaining after
release. On January 10, 2019, Mother’s Final PFA Order was
extended to July 30, 2019.
Following Father’s arrest at Mother’s home, on January 8, 2019,
Child was detained and placed in a new foster home. Following a
Permanency Review Hearing on January 11, 2019, the court found
that Father was on the premises of Mother’s apartment as early
as September, 2018, prior to the return of Child to Mother’s
custody and despite the PFA. Father was observed doing laundry,
being in Mother’s apartment, and socializing with employees. The
landlord filed a complaint with the police. An incident occurred
when the police located Father in Mother’s apartment, and he fled
by exiting a window, breaking the window screen and ultimately
being tased by law enforcement and taken into custody, although
Father disputes whether or not the window was broken and
whether or not he was ever tased. Mother hid Father’s activity in
her home and their continued relationship. Mother had also failed
to attend appointments for her mental health.
Caseworker Bathgate testified that the former foster care
placement for Child was not willing to have Child returned to them
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because of concerns about their safety and Father. Child was
placed in a new confidential foster home. The permanency plan
for Mother and Father remained the same as prior to Mother’s
reunification with Child. At the time that Child was placed with
the new foster family, Mother’s visits began occurring at Totin
Family Services. . . .
Another criminal contempt complaint was filed alleging that Father
violated the Final PFA Order on June 22, 2019, and when Father
failed to appear for the hearing on July 2, 2019, a bench warrant
was issued for his arrest. Father was arrested and the bench
warrant was lifted. Father was ordered to appear for the hearing
on August 1, 2019. Father did not appear for the indirect criminal
contempt hearing and Gagnon I[2] hearing, and a bench warrant
was issued for Father’s arrest. The indirect criminal contempt and
Gagnon I hearings were dismissed after the hearing on August
8, 2019.
On April 12, 2019, CYS filed a Petition to Involuntarily Terminate
Parental Rights of Mother and Father pursuant to 23 Pa.C.S. §§
2511(a)(1), (2), (5), and (8). CYS also requested a Preliminary
Review Hearing with a goal change from reunification to adoption.
The matters were consolidated for trial. Trial was held on October
1, 2019, October 2, 2019, and October 23, 2019.[3]
Caseworker Somerville-Carraher testified that during her
involvement with the case, she had concerns about Mother using
drugs and alcohol. At Mother’s first visit with Child on November
17, 2017, Mother smelled like alcohol and registered a blood
alcohol content of .04, which was the highest reading that that
particular test was capable of showing. Mother stated that she
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 At the hearing, Child was represented by a GAL, who argued in favor of
termination. Mother does not raise any issues relating to Child’s right to
separate legal counsel. See In re Adoption of K.M.G., 219 A.3d 662, 670
(Pa. Super. 2019) (holding that (1) that “this Court’s authority is limited to
raising sua sponte the issue of whether the orphans’ court violated Section
2313(a) by failing to appoint any counsel for the Child in a termination
hearing,” and (2) we may not “review sua sponte whether a conflict existed
between counsel’s representation and the child’s stated preference in an
involuntary termination of parental rights proceeding” (citations omitted)
(emphasis in original)).
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had been out drinking the night before. At that time, CYS did not
stop the visit because Mother was not impaired, but CYS advised
Mother that she should not show up intoxicated for visits in the
future. Caseworker Somerville-Carraher had Mother come in for
a drug screening on December 29, 2017. Mother’s results
indicated that she was positive for cocaine and THC. Additionally,
Mother had problems with incarceration due to missing hearings
where bench warrants would be issued for her arrest. Mother was
incarcerated three times. Twice, Mother was incarcerated for one
day, and once, she was incarcerated for seven days. Mother’s
earlier periods of incarceration in January and August of 2019
were related to charges of public drunkenness. Mother’s most
recent period of incarceration occurred in September 2019 and
was for resisting arrest, trespass, disorderly conduct, and public
drunkenness. At the time of testimony on October 23, 2019,
these charges were still outstanding with Mother having a hearing
scheduled in Allegheny County on November 5, 2019.
* * *
Caeworker Somerville-Carraher testified that while Child was
placed with Paternal Aunt, Mother had to take two buses to get to
her visits with Child, and as a result, Mother missed some visits.
Mother raised concerns that Paternal Aunt was doing drugs while
caring for Child. Mother wanted Child removed from Paternal
Aunt’s care and placed with her mother and grandmother. Later,
Mother said that it was her mother, Maternal Grandmother, who
had a problem with Paternal Aunt being Child’s placement.
Caseworker Bathgate received the case from Caseworker
Somerville-Carraher. At the time, Child was still placed with
Paternal Aunt. Paternal Aunt was working to complete the
certification to be a kinship care placement for Child with Family
Pathways. Caseworker Bathgate testified that in order to be
certified, a placement has to complete the certification process
within sixty days of starting it. On the forty-fifth day, Family
Pathways called Caseworker Bathgate to inform her that they
were concerned Paternal Aunt would not complete the certification
process. Caseworker Bathgate called Paternal Aunt several times
but was unable to reach her. Eventually, the sixty-day period ran,
and Paternal Aunt had not completed the certification process.
Caseworker Bathgate testified that she was not aware of other
cases where a possible foster family had failed to complete the
certification process within sixty days; however, Paternal Aunt had
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not completed several steps, including getting a license,
completing FBI fingerprinting, contacting Family Pathways, and
completing a physical exam of Child. Additionally, Caseworker
Bathgate testified that for some period of time, Father was using
Paternal Aunt’s address, which would have precluded her from
being a placement for Child. Paternal Grandmother testified that
Father never lived at that address, but she was not aware of
whether or not that address was used on any documentation.
Paternal Grandmother testified at the termination hearing that she
was in the process of completing the paperwork to be certified as
a placement as of October 23, 2019. She had never proceeded
with the process before because she did not want to interfere, and
she thought that Mother would get Child back. Paternal
Grandmother noted that Mother “will be a good mother one day.”
However, Paternal Grandmother just started the certification
process at the end of August 2019.
Mother has had problems with the current foster family. Child is
biracial, and his foster parents are Caucasian. At visits, Mother or
Father has braided Child’s hair, which the foster parents would
then remove very soon after the visit. However, Caseworkers and
Dr. Bernstein noted that the foster parents have sought out
resources to learn how to properly care for a biracial child,
especially in how to properly take care of Child’s hair. Caseworker
Tiffany Crotzer stated that the foster parents had indicated to her
that they had removed the braids after Mother’s visits because
they were coming loose, Child was pulling them out, and they
were getting matted and unclean. This court ordered the foster
parents to stop removing Child’s braids unless they had a
legitimate reason, so the foster parents stopped touching Child’s
hair altogether. Then Mother complained to Caseworker Crotzer
that Child’s hair was dirty and unmaintained. Father has also
raised some concerns regarding the differences in race between
Child and foster parents, citing as an example that one of the
foster parents’ parent (foster grandparent) referred to Child’s
private parts as “black dingles” during bath time one night. Father
was upset about the “black dingles” comment, but he admitted
that he did not know in what context the comment was made.
Father also stated that the few instances of Child’s race being
made an issue where not really problems for him, but he found it
concerning that everyone else kept bringing up Child’s race in
relation to his foster parents.
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Mother has alleged that Child told her that the foster parents were
hitting him in the mouth and on the butt. Mother has called
Childline to report abuse of Child with the current foster family.
Mother alleges that Child was always covered in bruises, including
an incident where Mother alleges that Child had a handprint bruise
across his face, and that Child is not included in family activities.
Mother alleges that foster parents told her that the marks on
Child’s face were mosquito bites.
However, Mother had also called Childline on the prior foster
family. CYS Caseworker Olexsak testified that Mother has made
numerous complaints about the prior and current foster parents,
which she believed were made up. When Mother answered
questions about the number of times that she made complaints of
abuse by the foster parents, Mother was unsure of the number of
times she made complaints, was unsure of when or what details
she gave for each complaint, and was unsure of which foster
parent she was alleging was responsible for a particular alleged
injury. Further, Mother changed her testimony several times in
relation to the alleged abuse.
Caseworker Olexsak testified that Father reported a handprint on
Child’s face in June 2019; however, Child indicated that the former
foster parents were the ones who grabbed his face. Caseworker
Olexsak testified that two reports were sent to Childline, which is
investigated by the regional office, and not the local CYS office.
One report was made in June 2019 that Child had been hit in the
eye and had blisters on his feet. The second report was made in
August 2019. Both investigations were conducted by the regional
CYS office, and not the local Butler CYS agency, and were returned
as unfounded. Child alleged, to Mother, that the current foster
mother had used a red spatula to hit him on the butt. During the
investigation, Child alleged that Mother had used a red spatula to
hit him on the butt. Caseworker Olexsak testified that the photos
Mother sent to CYS about any alleged abuse did not warrant any
investigation based on the photos themselves, which depicted
minor injuries such as small bruises and an old, healing scab.
Notably, Child makes a lot of allegations to Mother when not in
the presence of any other adult, and when Child is interviewed,
Child says something different than what Mother alleges he said
to her. Despite these concerns raised by parents, the caseworkers
report that at the foster parents’ home, Child shares a room with
their biological children and is included in family activities. The
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foster parents’ natural children get along with Child, and the foster
parents have made, in Caseworker Crotzer’s opinion, substantial
efforts to understand and adjust to Child’s hygienic and cultural
needs.
As Caseworker Crotzer had only recently taken the case over in
August 2019, Caseworker Bathgate testified that both Mother and
Father were familiar with the objectives laid out in the service plan
based on a meeting that she had with them. Mother’s objectives
were as follows: to maintain a sober lifestyle, maintain good
mental health, and demonstrate an ability to meet Child’s basic
needs.
In order to demonstrate that Mother was maintaining a sober
lifestyle, Mother was required to complete a drug and alcohol
evaluation, follow through with any recommendations made
through such assessment, submit to drug screenings two times
per week and any requested random drug screens, and provide
the agency with signed release forms for any completed
treatment. Mother completed three drug and alcohol evaluations
from 2017 to 2019, which were all based on self-reporting. After
the second evaluation, Mother was recommended to begin
outpatient counseling, but after she started treatment, the center
recommended a higher level of treatment. Treatment ended when
Mother was arrested on a bench warrant. Mother completed a
third drug and alcohol assessment, and no further treatment was
recommended. Mother was ordered to complete drug screening
at Totin Family Services. Mother was consistent in attending after
May 2018. Eventually, drug and alcohol treatment was removed
from the permanency plan for Mother, marked as completed.
After Child was re-detained in January 2019, drug and alcohol
evaluation and treatment was again added to Mother’s service
plan due to her arrest for public drunkenness in February 2019.
In order to demonstrate that she was able to meet Child’s basic
needs, Mother was required to keep a calendar of her
appointments and utilize the calendar to schedule appropriate
transportation arrangements; choose healthy relationships with
individuals who are drug free and safe to have around Child;
maintain safe, stable housing with working utilities; and attend
and actively participate in Child’s medical appointments. Mother
had been maintaining a residence at Old Plank Estates, but after
her former apartment was broken into and damaged in July 2018,
Mother moved to Greenview Apartments, which is based on
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income. Mother reported to Caseworker Bathgate that she
suspected that Father was the one who broke in and destroyed
her apartment. Mother receives assistance with her utility
payments, but she has had no problem adequately paying for
those services. Mother attended several of Child’s doctor
appointments in 2018. In 2018, Mother was working at the
Veterans Administration Hospital. Mother has changed jobs
several times since the commencement of this case. Mother
reported that she quit working at the Veterans Administration
Hospital on the day that Father was arrested at her home, in
January 2019, because she did not feel that she could go. From
August to September 2019, Mother began working with Maternal
Grandmother at Donny B’s Restaurant. Mother is now employed
at Iron City Vape Lounge. Mother’s biggest problem in meeting
this objective was her refusal to stay away from Father despite an
active PFA and several accusations of domestic violence, including
one where she alleged that he punched her in the face five times
and threatened to burn the house down with her and Child inside.
Additionally, in February 2019, Mother was involved in a domestic
violence incident with another man, who she alleges was not her
boyfriend. He threatened to kill her if she did anything to hurt
him. This individual had a gun in his hand at the time of the
incident and had to be removed by police. Mother claims that he
was mad because Mother told him that they were not in a
relationship.
In order for Mother to maintain good mental health, the service
plan provided that she was to participate in individual counseling
as recommended by her therapist and create a treatment plan,
sign all necessary releases for her mental health providers to
share information with CYS, participate in a psychiatric evaluation
at a provider of her choice, and participate in domestic violence
services through VOICe if eligible. Mother has been inconsistent
in attending to her mental health needs. Mother initially began
counseling with VOICe in 2017, where she completed a safety plan
to address domestic violence issues with Father. In September
2017, Mother completed her assessment at Family
[Psychological], but she was inconsistent with attending regular
appointments. Mother became more consistent in maintaining
regular appointments by the summer of 2018. Mother eventually
left Family Psychological. She stated that this was because she
was having a hard time being able to make appointments with her
therapist because the therapist was not available often, which
caused problems with her compliance with the service plan.
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Mother began attending Wellness Works in March or April 2019.
Her last appointment with Wellness Works was in May 2019.
Mother stated that she left Wellness Works because of their
inability to prescribe medication, so Mother went back to Family
Psychological for their medication management abilities. Between
May 2019 and August 2019, Mother did not participate in mental
health treatment. Then, Mother went back to Family Psychological
and had her initial evaluation on August 24, 2019. Mother had
not had an appointment between the end of September and
October 23, 2019, and no appointments were scheduled for the
future.
Mother participated in visitation with Child at Totin Family
Services. From April 2018 until August 2018, Mother had
monitored visits. From August 2018 until October 2018, Mother
had unsupervised visits with Child in the community. Mother
consistently attended visits, and her interactions with Child were
appropriate. The visits ended when Mother and Child were
reunified in November 2018. Upon Child’s re-detention in January
2019, Mother’s visitation was restarted at Totin Family Services.
Since visitation restarted, Mother only missed two visits, which
were missed because she was incarcerated in August 2019. In
mid- September 2019, Mother’s visits returned to unsupervised in
the community. Totin Family Services had recommended a
decrease in the number of visits that Mother had because of
Child’s reactions. At the end of visits, Child did not want to
separate from Mother, and Child made statements indicating that
he did not want to have two mommies. Because Mother’s visits
are monitored and someone is not present the entire visit, Totin
Family Services employees indicated that they do not know what
Mother [was] saying to Child during visits. Since August 2019,
the visits with Mother have started and ended at the Totin Family
Services center. Since that time, Child’s behaviors have stopped.
Additionally, Child has a very heavy schedule for visitation. He
visits Mother twice a week, Father once a week, Maternal
Grandmother every other week, and Paternal Grandmother and
Paternal Aunt every other week.
* * *
After 18-19 months, none of the objectives were completed by
Mother or Father. Child was removed in November 2017, and
except for an extended visit from October 2018 until the beginning
of January 2019, Child has been placed in kinship and/or non-
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kinship foster care. Caseworker Crotzer indicated that there is
still a safety threat on the part of the agency because Mother has
not addressed the problems with domestic violence, her mental
health, and her unhealthy relationships. She also noted that
Mother was arrested in August 2019 for public drunkenness for
the third time this year, which demonstrated to her that Mother’s
behaviors are still not under control and Child is at a significant
risk of instability.
Dr. Eric Bernstein conducted a bonding assessment for Mother and
Child and Father and Child. The bonding assessment entailed a
“combination of methodology from interviews; a review of the
collateral information; to contact, of course, with the referral
source, in this case CYF; observations; and when necessary,
psychological testing, combined with a written report to reflect
everything [he] learned.” Dr. Bernstein also did an assessment
of Child’s interactions with the foster parents. Dr. Bernstein noted
that the foster parents are intimidated by Father due to what they
know about domestic violence between Father and Mother;
however, they were open to post-adoption contact with Mother.
Dr. Bernstein opined that Child fits in well with the foster parents
and their biological children. Dr. Bernstein indicated that there
were no problems with the interactions between the foster parents
and Child. Dr. Bernstein noted that calling many people mommy
and daddy can cause problems for a child, and the foster parents
had redirected Child away from calling them Mommy and Daddy
to calling them Mommy Katie and Daddy Ryan.
Dr. Bernstein conducted a clinical interview, the Personality
Assessment Screener, and the Beck Depression Inventory [(BDI)]
for Mother and Father, which measures “for a wide range of
personality factors from addition to psychopathology, depression,
and anxiety.” Mother acknowledged some depressive
symptomatology. According to Mother’s self-reporting on the BDI,
“she contended that she follows rules, respects authority.
Minimized any history of rebelliousness. She essentially portrayed
herself as a well-functioning adult, even despite the diagnoses of
generalized anxiety disorder [. . .] and major depressive
disorder.” Father did not consider that he had any issue with
anger or temper, despite acknowledging domestic violence and
acknowledging being arrested between 10 and 20 times, with 4
arrests for felonies. By Father’s report, he managed to control his
moods and emotions.
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Dr. Bernstein found the interactions between Mother and Child to
be concerning. His main concern was regarding the way that
Mother corrected Child about terms of reference for her and Father
and for the foster parents. He stated that Mother told Child that
she did not want Child calling the foster parents “mommy” and
“daddy.” He felt that Mother was using inappropriate pressure
when Child is too young to appreciate the terms, which, to Child,
would indicate shame and disapproval. Dr. Bernstein conducted
a personality test on Mother, which was all based on Mother’s self-
reporting. Mother’s answers did not match the reality of the
situation, and he noted that Mother had a depressive tendency.
Dr. Bernstein raised concerns about whether or not Mother could
keep Father away if they were not in a relationship, stating that
based upon Mother’s characterization of the situation, it raised
concerns about whether she could establish safe boundaries
against Father if he attempted to reconcile or re-enter her life. Dr.
Bernstein expressed concerns that Child will begin to emulate
Father’s illegal activity.
Dr. Bernstein noted that Father is less than truthful. One example
he cited is the letter that Father wrote accusing Mother of being a
drug addict, which he then later retracted. Father described it to
Dr. Bernstein as “over exaggerating a whole bunch of nonsense.”
Father self-reported no problems with anger or any emotional
problems. Dr. Bernstein’s final recommendation was that the
foster parents offer a safe and stable home for Child, where there
is an absence of violence or drama. While Mother and Father love
Child and intend to meet his needs, they do not.
Ultimately, Dr. Bernstein opined that severing the bonds with
parents, or foster parents, may result in harm to Child, stating
“ultimately, he is likely to be negatively impacted not only by the
separation from his parents but also the lack of future support as
he grows and develops in need of their guidance and care.
Granted, however, if reunited with [Mother] or [Father], he is also
at risk for compromise of his safety, well-being, and emotional
health.”
Dr. Bernstein supported terminating parental rights, testifying
“weighing both the matter of reunification versus termination of
parental rights, I support the court moving forward with the
termination of both parents’ rights and support the foster parents
as an adoptive resource. No matter how the court decides, [Child]
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will likely be negatively impacted by the loss of an important bond
with his parents or established safety and stability provided for by
his foster parents. What tips the scale in favor of adoption is the
clear potential for increased risk of compromise to [Child’s] need
for safety and stability if the court reunified him and his parents.”
At Mother and Father’s request, Dr. Beth Bliss completed a
bonding assessment for Child and Mother and Child and Father
limited to the existence of a bond between parents and Child and
whether Child would be harmed if the parental relationship was
terminated. This [c]ourt ordered that Dr. Bliss was permitted to
include the foster parents if it would inform the above issues. Dr.
Bliss indicated that she got some background information from the
parents, including that Child was removed due to domestic
violence issues. Dr. Bliss concluded that Child is “closely bonded”
with Mother and Father. She observed that the interactions
between Mother and Child and Father and Child were natural.
Child often repeated Father and showed a strong desire to be like
Father. Father and Child held hands and read books. Dr. Bliss
testified that Child has a “strong and positive attachment” and a
“strong and positive bond” with Father. Dr. Bliss’ testified, in her
opinion, that “if the bond were severed, that it could harm
[Child].” Dr. Bliss stated that kids who move around frequently
can develop Reactive Attachment Disorder, where they have
difficulty forming healthy reactions to people or attachment to
people. Dr. Bliss indicated that her “fear would be that in severing
these bonds that he does have, that he could have difficulty in
bonding or attaching to others later on.”
Dr. Bliss noted that with Mother, Child often sought her out. Child
called her mom and loves her. Child and Mother talked during the
entire session; Child shared experiences with Mother, and they
practiced shapes and animal sounds. The interactions were
natural. In Dr. Bliss’ opinion, Child is “closely bonded” with
Mother, stating that he has a “strong, necessary, and important
bond with [Mother].” Dr. Bliss opined that “it would be
psychologically harmful” if the bond between Mother and Child
was severed. When questioned about the difference in her
answers concerning whether it could or would harm Child, Dr. Bliss
clarified that harm was one possible outcome. She further added
that she did not know what would happen to a bond that Child
might have formed with a foster parent if that relationship was
severed.
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Dr. Bliss did not perform any bonding between Child and the foster
parents because she stated that it was not relevant to the
questions posed by the [c]ourt. When asked if the bond between
Mother and Child could have formed after Child was removed by
virtue of their weekly visits, Dr. Bliss opined that a bond would
likely form if Child spent two hours per week with any stranger
but that it was unlikely that this level of bond would form solely
from twice-weekly visits. She noted that Child’s difficulty in
transitioning between his parents and the foster parents was due
to age-appropriate difficulties with separation, typical and normal
for kids his age. Dr. Bliss noted that the extent of any harm that
Child could face may be varied but that harm would likely still
occur. Dr. Bliss did not review Dr. Bernstein’s report and did not
state any opinions as to Dr. Bernstein’s methodology or opinions.
Trial Ct. Op. at 10-16, 20-24.
On February 4, 2020, the trial court issued an opinion and order granting
CYS’s petition to terminate Mother’s parental rights under Section
2511(a)(1),(2), (5), (8), and (b). Mother timely appealed and complied with
Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issues:
1. Whether the evidence in the record is inadequate for the trial
court to have concluded, by clear and convincing evidence, that
grounds for involuntary termination of parental rights existed
pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), and (8).
2. Whether the evidence in the record is inadequate for the trial
court to have concluded that termination of parental rights was
in the best interests of the child, as required by 23 Pa.C.S. §
2511(b).
3. Whether the trial court[] committed an error of law and/or
abused its discretion in failing to adequately address the bond
between Mother and Child.
Mother’s Brief at 4 (some formatting altered).
Challenge To Evidence Supporting Termination
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In her first claim, Mother challenges the evidence supporting
termination under Sections 2511(a)(1), (2), (5) and (8). Id. at 16. Mother
argues that she has made progress towards maintaining a sober lifestyle,
seeking mental health treatment, and meeting Child’s needs. With respect to
sobriety, Mother contends that although she “has had some problems of late
with regard to charges of public drunkenness, she remains drug free.” Id. at
20. Regarding mental health treatment, Mother argues that “[t]he only
mental health therapy appointments Mother missed were due to [] scheduling
conflicts and switches.” Id. As to Child’s basic needs, Mother claims that she
maintained stable housing and her “progress was such that Child was reunified
with her on November 12, 2018. This reunification was broken only through
the actions of Father.” Id. at 23. Mother also asserts that she “met her
objective in maintaining a calendar of her appointments and used those
calendars to schedule transportation,” in addition to attending Child’s
appointments and visits with Child. Id.
CYS responds that the trial court properly terminated Mother’s parental
rights under Section 2511(a)(1), (2), (5) and (8).4 CYS’s Brief at 12. CYS
contends that Mother “exhibited an overall lack of compliance with services”
by failing to “follow through with recommendations, especially for mental
health therapy, maintaining sobriety[,] and separating [C]hild and herself
from Father.” Id. at 17. CYS also argues that “Mother’s history [of] alcohol
____________________________________________
4 The GAL also filed a brief in support of terminating Mother and Father’s
parental rights to Child. GAL’s Brief at 12-24.
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and drug use and lack of sobriety is significant. During her testimony Mother
acknowledged her alcohol abuse and prior failed attempts with drug and
alcohol and mental health treatment as well as her recent criminal convictions
for public drunkenness and incarceration.” Id. Finally, CYS asserts that Child
was out of Mother’s care for a period of seventeen months and that, at the
time of the hearing, Mother had not completed her service objectives or
secured employment. Id. Therefore, CYS concludes that “[g]iven the length
of the dependency case and Mother’s . . . failure to complete services, the
[t]rial [c]ourt did not err in finding that [CYS] met by clear and convincing
evidence the grounds for termination of Mother’s . . . parental rights.” Id. at
18.
In reviewing an appeal from an order terminating parental rights, we
apply the following standard of review:
[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., 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. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
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
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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. 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
The burden is on 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). We
have explained that “[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. (citation omitted).
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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) . . . .
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we “may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
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2511(a).” In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc)
(citation omitted).
Initially, we review the trial court’s ruling under Section 2511(a)(8),
which provides:
§ 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:
* * *
(8) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency, 12 months or more have elapsed from the date of
removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
23 Pa.C.S. § 2511(a)(8).
In order to terminate parental rights under this subsection,
an agency must prove by clear and convincing evidence that “(1)
that the child has been removed from the care of the parent for
at least twelve (12) months; (2) that the conditions which had led
to the removal or placement of the child still exist; and (3) that
termination of parental rights would best serve the needs and
welfare of the child.”
In re C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc) (citation
omitted).
With regard to the second requirement, termination under subsection
(a)(8) “does not require an evaluation of [the parent’s] willingness or ability
to remedy the conditions that led to placement of [the] child[].” In re R.J.S.,
901 A.2d 502, 511 (Pa. Super. 2006) (citations omitted). Instead, subsection
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(a)(8) “requires only that the conditions continue to exist” after the twelve-
month period has elapsed. In re I.J., 972 A.2d 5, 11 (Pa. Super. 2009)
(citation omitted). This Court has recognized that “by allowing for termination
when the conditions that led to removal continue to exist after a year,
[subsection 2511(a)(8)] implicitly recognizes that a child’s life cannot be held
in abeyance while the parent is unable to perform the actions necessary to
assume parenting responsibilities.” Id. at 11-12 (quoting C.L.G., 956 A.2d at
1005) (additional citations omitted).
Here, the trial court addressed Section 2511(a)(8) as follows:
[I]t has been well over twelve months since Child’s removal from
Mother’s care and the conditions which led to [Child’s] removal
still exist. Initially, Mother began to make progress, complied with
the service plan, and even had Child returned to her for
approximately two months on an extended visit. However,
despite her initial progress, Mother has not remedied the
circumstances that caused Child’s removal. Mother participated
in visitation, but she has been unable to maintain employment,
quitting her job in January [of] 2019, after Father was arrested at
her home in violation of the PFA. Mother has missed many mental
health appointments. Mother had drug and alcohol treatment
removed from her service plan and was then incarcerated on a
bench warrant for public drunkenness shortly after that condition
was marked as complete.
Because Mother cannot maintain her progress for any length of
time, she has still not made any progress to remedy any of these
problems. As the findings of facts demonstrate, the services
offered to Mother have not been utilized to sufficiently remedy the
circumstances that led to [Child’s] removal. [CYS] has
established, by clear and convincing evidence, that it would serve
[Child’s] needs and welfare to terminate Mother’s parental rights.
Moreover, even if Mother were to continue using services and start
using them reliably, she could not remedy the circumstances
with[in] a reasonable time. It has been almost two years since
Child’s initial detention in November 2017.
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However, as stated above, Mother’s most egregious failure has
been her refusal to keep Child safe. Despite domestic violence
and Mother’s discussions with CYS about her fears of Father,
Mother purposefully deceived CYS and her landlords and allowed
Father to spend time in her home with Child without regard for
her safety or Child’s safety. Throughout this case, Mother and
Father have lied and taken deceptive actions in order to
circumvent the [c]ourt’s orders, thereby placing Child at risk of
harm.[5] Both have repeatedly demonstrated an intent to sidestep
the safety measures in place while CYS made a good faith effort
to assist them with reunification. Mother’s actions are indicative
that she puts her own interest in spending time with Father before
Child’s safety. In the alternative, Mother is easily manipulated by
Father and makes poor decisions that place Child at risk.
Trial Ct. Op. at 38-39.
Following our review, we find no abuse of discretion or error of law in
the trial court’s ruling that CYS presented clear and convincing evidence to
support termination of Mother’s parental rights under Section 2511(a)(8).
See S.P., 47 A.3d at 826-27; see also R.N.J., 985 A.2d at 276.
As noted by the trial court, CYS became involved with Child in
September of 2017 after a domestic violence incident between Mother and
Father. See N.T. Trial, 10/2/19, at 31. Child was subsequently removed from
Mother’s care in November of 2017 after Child was left unattended in Mother’s
home.6 Id. at 31. At that time, Mother had a tumultuous relationship with
____________________________________________
5 The trial court explained that “Mother purposefully deceived CYS and her
landlords and allowed Father to spend time in her home with Child without
regard for her safety or Child’s safety.” Trial Ct. Op. at 37.
6 As explained by the trial court, Mother left Child with Father while she was
at a friend’s house. See Trial Ct. Op. at 2; see also N.T. Trial, 10/2/19, at
30-32. Father was arrested that night on a bench warrant and police were
unable to get in contact with Mother. N.T. Trial, 10/2/19, at 30-35.
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Father and also suffered from problems with drugs, alcohol, and mental
health. Id. at 35, 56, 62, 70. Despite Mother’s initial progress with her
service plan objectives, Mother failed to maintain her progress and ultimately
failed to remedy the circumstances that led to Child’s removal. See Trial Ct.
Op. at 36; N.T Trial, 10/1/19, 102, 104-105; N.T. Trial, 10/23/19, at 196-97.
Specifically, the trial court noted that shortly after drug and alcohol
treatment were removed from Mother’s service plan, she was arrested for
public drunkenness. See Trial Ct. Op. at 16; see also N.T. Trial, 10/23/19,
at 53-55. Further, although Mother initially attended her therapy
appointments, the trial court found there was “no credible record evidence
that Mother made progress with her mental health.” Trial Ct. Op. at 31; see
also N.T Trial, 10/1/19, 102, 104-105; 156-57.
Finally, throughout the pendency of this case, Mother has failed to
separate herself from Father, despite the existence of a PFA, a history of
domestic abuse, Father’s criminal activity, and Mother’s representations to
CYS and the trial court. See N.T. Trial, 10/1/19, at 98; N.T. Trial, 10/23/19,
at 196-97. Although Mother blames Father for Child’s removal, the trial court
explained that Mother’s own actions demonstrate that she “puts her own
interest in spending time with Father before Child’s safety” and “is easily
manipulated by Father and makes poor decisions that place Child at risk.”
Trial Ct. Op. at 39.
In sum, having reviewed the parties’ arguments and the record, we find
no basis to disturb the trial court’s findings of fact, which were supported by
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the record. Moreover, we discern no error in the trial court’s legal conclusion
that more than twelve months have elapsed since Child’s removal, the
conditions leading to Child’s removal, namely Mother’s mental health, alcohol
abuse, and her problematic relationship with Father, continued to exist. See
I.J., 972 A.2d at 11. As this Court has noted, “a child’s life cannot be held in
abeyance while the parent is unable to perform the actions necessary to
assume parenting responsibilities.” Id. at 11-12. Accordingly, we affirm the
trial court’s ruling to terminate Mother’s parental rights under Section
2511(a)(8).
Challenge To Trial Court’s Conclusions Under Section 2511(b)
Mother also challenges the trial court’s conclusions regarding Child’s
best interests under Section 2511(b).7 Mother argues that “undisputed
evidence demonstrated that a strong bond exists between Mother and Child”
and that although “[b]oth experts testified that severing the bond would harm
Child . . . the trial court did not adequately address how severance would
affect [] Child.” Mother’s Brief at 15. Mother also claims that Dr. Bernstein
“placed greater weight on Father’s actions in recommending termination for
Mother” and that Mother and Father’s history of domestic issues “tainted his
overall view of Mother’s bond with Child apart from Father.” Id. at 29. In
sum, Mother argues that “[r]ather than evaluating Mother’s parental rights
and bond with Child in her own right, the trial court improperly incorporated
____________________________________________
7 Although Mother’s statement of questions contains two separate issues
relating to Section 2511(b), she combines both issues into one section in her
brief. Nonetheless, this does not impede meaningful review.
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Father’s actions and transgressions in its analysis of Mother” and failed to
consider “her efforts to curb his abuse.” Id.Finally, Mother argues that the trial court should have given greater
weight to Child’s biracial status in evaluating Child’s best interests under
Section 2511(b). Id. at 30. Mother contends that Child’s race was relevant
to determining whether it was in Child’s best interest to sever Mother and
Father’s parental rights and for him to remain with foster parents, who are
Caucasian. Id. at 32. Mother contends that “Child is in the critical periods of
his development, and therefore his biracial status and current exposure to
positive cultural influences of his biological family” are significant to analyzing
Child’s best interests. Id.CYS responds that although there is a bond between Mother and Child,
“there was little evidence that the bond is positive and/or strong.” CYS’s Brief
at 22.8 Further, CYS contends that “[e]ven if there were such a bond, Child’s
need for safety, stability, and permanency outweigh any potential harm” to
Child that would result from severing Mother’s parental rights. Id.____________________________________________
8 The GAL notes that “[a]lthough Mother’s situation is marginally better, her
inability to keep away from Father, her lack of follow up for mental and drug
and alcohol treatment and lack of stable employment continues to be
problematic.” GAL’s Brief at 13. Further, the GAL asserts that when
comparing Dr. Bernstein’s written report with Mother’s testimony, “it is easy
to point out her inability to appreciate the seriousness of violence to her or
around [C]hild in terms of knowing how to protect the child and ensure his
safety.” Id. at 14. The GAL also expresses concern that Mother’s
“minimization of the threats and incidents of violence in the past will result in
the child being placed in dangerous situations if reunited with Mother and
possibly having [C]hild develop a desensitization toward violence.” Id.- 26 -
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Section 2511(b) states:
(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.
23 Pa.C.S. § 2511(b).
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but the focus of Section 2511(b) is on the
child. See C.L.G., 956 A.2d at 1008. 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 In re E.M., 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 T.S.M., 71 A.3d 251, 267 (Pa. 2013) (some citations omitted).
Nonetheless, the mere existence of a bond or attachment of a child to a
parent will not necessarily result in the denial of a termination petition, as
“[e]ven the most abused of children will often harbor some positive emotion
towards the abusive parent.” Id. at 267 (citation omitted). Further, “[t]he
continued attachment to the natural parents, despite serious parental
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rejection through abuse and neglect, and failure to correct parenting and
behavior disorders which are harming the children cannot be misconstrued as
bonding.” Id. (citations and quotation marks omitted).
In evaluating a child’s best interests, the court may emphasize the
safety needs of the child. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008)
(affirming involuntary termination of parental rights, despite the existence of
some bond, where placement with mother would be contrary to the child’s
best interests); see also In re Adoption of J.N.M., 177 A.3d 937, 946 (Pa.
Super. 2018) (reiterating that the detrimental effects of severing a parent-
child bond could be outweighed by the need for safety and security). As this
Court has noted, “a parent’s basic constitutional right to the custody and
rearing of . . . her child 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) (citations omitted).
Nonetheless, “[w]hen examining the effect upon a child of severing a
bond, courts must examine whether termination of parental rights will destroy
a necessary and beneficial relationship, thereby causing a child to suffer
extreme emotional consequences.” J.N.M., 177 A.3d at 944 (citation and
quotation marks omitted). “In the case of an unhealthy bond, ‘attention must
be paid to the pain that inevitably results from breaking a child’s bond to a
biological parent, even if that bond is unhealthy, and we must weigh that
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injury against the damage that bond may cause if left intact.’” Id. (quoting
T.S.M., 71 A.3d at 269).
Here, the trial court addressed Child’s best interests as follows:
Both Dr. Bliss and Dr. Bernstein noted that terminating the
parental bonds between Child and his parents could harm Child.
Despite that, Dr. Bernstein supported termination of parental
rights to Child because of several concerns that he raised,
including Mother’s ability to keep Child safe from Father and
Father’s propensity to be less than truthful in dealing with his
ongoing problems with anger and domestic violence. Despite a
possible negative impact on Child from the separation from his
parents, Dr. Bernstein still supported termination of parental
rights because, in his opinion, Child’s safety and stability
outweighed the potential for speculative harm caused to Child by
severing the bonds with Mother and Father. This is demonstrated
in Dr. Bernstein’s testimony that in “weighing both the matter of
reunification versus termination of parental rights, [Dr. Bernstein]
support[s] the [c]ourt moving forward with the termination of
both parents’ rights and support[s] the foster parents as an
adoptive resource. No matter how the [c]ourt decides, [Child] will
likely be negatively impacted by the loss of an important bond
with his parents or established safety and stability provided for by
his foster parents. What tips the scale in favor of adoption is the
clear potential for increased risk of compromise to [Child’s] need
for safety and stability if the [c]ourt reunified him and his
parents.”
Dr. Bliss, pursuant to the [c]ourt order that permitted her to
conduct the bonding assessment between Mother and Father and
Child, did not address whether the bond was outweighed by a
need for safety, stability, and permanency. Dr. Bliss’ only inquiry
was into whether or not a bond existed and what possible harm
could occur from a severance of the bond. She testified that harm
was one possible outcome of severing the bonds. Dr. Bliss did not
opine on whether or not parental rights should be terminated and
was not even aware of most of the background information,
preferring, by her own testimony, to avoid collateral information
that might bias her opinion of whether or not severing the bond
might harm Child. Further, Dr. Bliss never reviewed Dr.
Bernstein’s report, and she did not testify that any protocol used
by Dr. Bernstein was inappropriate. Dr. Bliss did not testify as to
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how Child’s bond with the foster parents may mediate any harm
experienced by Child from termination of the bond with his
parents.
As agreed by Dr. Bliss and Dr. Bernstein, there is a possibility of
harm to Child if his bonds with Mother and Father were severed.
However, Dr. Bernstein noted, and this [c]ourt agrees, that the
risk to safety and stability faced by Child if he is reunited with
Mother and Father outweighs the potential for harm if the bonds
are severed.
Child is bonded with Mother and Father. Mother and Father love
Child, and Child loves them. Child looks to Mother and Father for
love. On visits, they play together and talk about things. The one
thing that Mother and Father have consistently done since Child
was detained is maintain their relationship with Child. However,
“the mere existence of a bond or attachment of a child to a parent
will not necessarily result in the denial of a termination petition.”
T.S.M., 71 A.3d at 267. Stability and family permanence are
critical to the health and welfare of dependent children and must
take priority.
Despite Mother and Father’s bonds with Child, Child’s need for
safety, stability, and permanency outweigh any potential harm to
[Child] from the severing of [Mother and Father’s] parental rights.
* * *
Mother has failed to remedy her problems with drugs and alcohol
and her mental health. Mother has demonstrated that she cannot
or will not make sure that Child is safe in her care. Mother had
Child returned to her in November 2018 on an extended visit.
Child was removed again in January 2019 because Father was
arrested on her property, despite an active PFA and concerns for
domestic violence. Immediately after, she quit her job because
she felt that she “could not go” after Father’s arrest. She failed
to secure other employment between January 2019 and April
2019 when the petition was filed. Additionally, right after that
instance of Father’s arrest, Mother was arrested for public
drunkenness. Mother has missed many appointments to maintain
her mental health. Mother makes excuses for why she is unable
to go to or schedule her appointments. While Child is bonded with
Mother and may experience negative consequences as a result of
terminating her parental rights, any negative consequences Child
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may experience from the severance of any bond with Mother are
outweighed by his need for safety, stability, and permanency.
Worse than Mother and Father’s failure to comply with the service
plan is Mother and Father’s lying and deceptive behavior designed
to circumvent the [c]ourt’s orders, placing Child at great risk of
harm. Both have repeatedly demonstrated an intent to sidestep
the safety measu[r]es in place to protect Child, putting their own
desires before Child’s safety.
Child has been involved with CYS for approximately two years of
the three years and a half years since his birth, while Mother and
Father have made no progress and continue to place Child at risk
of harm. Child needs to be safe and stable above all else. Safety,
permanency, and the well-being of Child “must take precedence
over all other considerations.” S.B., 943 A.2d at 973. Mother and
Father’s inability or unwillingness to remedy the problems that
continue for them, most specifically the domestic violence and
drug and alcohol problems, cause it to be in the best interests of
Child to have parental rights terminated so that Child can find
safety, permanency, and stability.
In this case, the parents have spent a lot of time comparing
themselves to the foster parents; however this is not the standard
in an involuntary termination of parental rights case that involves
agencies. Trial courts should pay the utmost attention to
discerning the effect on Child of permanently severing parental
bonds; however, the Adoption Act specifically provides that a
pending adoption is not a prerequisite to terminations of parental
rights that involve agencies like CYS. In re T.S.M., 71 A.3d at
267. This court understands that best practice is to have a stable
and permanent family if parental rights are terminated, and the
court may consider a child’s bond with his or her foster parents.
This court has given consideration to Child’s bond and interactions
with the foster parents in so far as it affects the developmental,
physical and emotional needs and welfare of Child; however, this
court has not, and will not, engage in a comparison of foster
parents and natural parents. The safety, permanency, and
stability of Child is the paramount concern.
Mother raises, in her brief, that it is not in Child’s best interests to
be removed from Mother and Father’s care because of cultural
competency concerns with the foster parents and requests that
this Court take cultural competence into consideration in deciding
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whether to terminate the parental rights, citing 55 Pa. Code §
3350.12, which sets forth criteria for adoptive applicants and not
criteria for termination of parental rights. However, as Mother’s
brief notes, in conducting its 2511(b) analysis, the court may not
balance the foster home against the natural parents. What criteria
may be considered for adoptive applicants are not relevant in
determining what is in the best interest of Child in an involuntary
termination proceeding. This issue is a red herring. Any
conversation surrounding the issue of cultural competency is
related to the dependency action and not the Orphan’s Court
matter, and any questions raised by the court were in response to
the nature of the combined dependency and orphan’s court
hearings. While the foster parents may have needed some
cultural education, it was immediately provided, and the foster
parents followed through with that training. This is not really at
issue and is more of an issue with Mother and Father,
understandably, not wanting anyone else to raise Child.
Mother and Father have raised the failure to place Child in a
kinship home with Paternal Aunt or Paternal Grandmother. The
ability or inability to be placed in a kinship home is not relevant to
a termination proceeding. The court acknowledges that it is best
practice in a dependency action to place a child in kinship care
when possible and can consider this when considering the needs
and welfare of a child. Unfortunately, in this case, neither Paternal
Aunt nor Paternal Grandmother completed the certification
process. There is no evidence that this was the result of CYS[‘s]
action or inaction. Paternal Grandmother testified that she did not
start the process timely because she assumed that Mother would
get Child back. This appears to be a common presumption in
Father’s family. While the Paternal family waited for Mother to do
everything right, they took little to no action. At best, Child was
not placed with Father’s family because of a lack of follow through.
Regardless of how unfortunate it is, this is the factual scenario
that the court is left with due to the inaction of Father’s family in
completing or starting the certification process.
In summation, this court recognizes that, regrettably, Child may
suffer some grief and loss with the termination of rights of his
parents and the termination of relationship with Father’s extended
family. However, after nearly two years of providing opportunities
for reunification, the court must ultimately meet Child’s best
interest by ensuring a safe, stable, and permanent home for Child.
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Trial Ct. Op. at 40-45.
Based on our review of the record, we discern no basis to disturb the
trial court’s finding that termination of Mother’s parental rights would best
serve Child’s needs and welfare. See T.S.M., 71 A.3d at 267. The trial court
acknowledged the existence of a bond between Mother and Child and the fact
that Child may suffer grief or loss if that bond were severed. Trial Ct. Op. at
43; see also N.T. Trial, 10/2/19, at 71. Nonetheless, the trial court concluded
that any negative consequences Child may experience were outweighed by
his need for safety, stability, and permanency. See J.N.M., 177 A.3d at 944;
see also B.,N.M., 856 A.2d at 856; see also K.Z.S., 946 A.2d at 763.
We also reject Mother’s claim that the trial court was required to
consider Child’s biracial status when evaluating his best interests under
Section 2511(b). As noted by the trial court, cultural competence is relevant
when determining an individual’s capacity for adoptive parenthood under
section 3350.12 of the Pennsylvania Administrative Code. See Trial Ct. Op.
at 44. The trial court acted within its discretion by emphasizing Child’s need
for safety and stability and concluding that, under the circumstances of this
case, termination would nonetheless serve Child’s best interests. See K.Z.S.,
946 A.2d at 763.
Finally, Mother’s claim that the trial court blamed her for Father’s
transgressions is not supported by the record. The trial court considered
Child’s bond with Mother, but ultimately concluded that termination would best
serve Child’s needs. Therefore, Mother is not entitled to relief.
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Under these circumstances, we discern no abuse of discretion by the
trial court in applying Section 2511(b). See S.P., 47 A.3d at 826-27. Clear
and convincing evidence supports the trial court’s conclusion that termination
of Mother’s parental rights would best serve Child’s developmental, physical,
and emotional needs and welfare. See R.N.J., 985 A.2d at 276. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/02/2020
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