In the Interest of: B.K., Jr.

J-S18030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.K., JR., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: A.M. AND B.K., :
PARENTS :
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:
: No. 1881 MDA 2018
Appeal from the Order Entered October 4, 2018
In the Court of Common Pleas of Mifflin County Orphans' Court at No(s):
2017-00026
IN THE INTEREST OF: E.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.M. AND B.K. :
:
:
:
:
: No. 1882 MDA 2018
Appeal from the Order Entered October 4, 2018
In the Court of Common Pleas of Mifflin County Orphans' Court at No(s):
25 of 2017
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E. *
MEMORANDUM BY NICHOLS, J.: FILED: MAY 3, 2019
A.M. (Mother) and B.K. (Father) (collectively, Parents) appeal from the
orders granting the petitions filed by the Mifflin County Children and Youth
Social Services (CYS or the Agency) to involuntarily terminate their parental
rights to their minor female child, E.K., born in May of 2007, and their minor
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* Former Justice specially assigned to the Superior Court.
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male child, B.K., Jr., born in March of 2009 (collectively, Children) pursuant
to the Adoption Act, 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).1 We affirm.
The trial court has fully and accurately set forth the procedural history
and factual background of this appeal in its opinions entered with regard to
both Children, which we adopt herein. See Trial Ct. Op., 10/4/18, at 1-5. On
December 7, 2017, CYS filed petitions to terminate Mother’s and Father’s
parental rights to Children. On February 5, 2018, March 5, 2018, and
September 28, 2018, the trial court held evidentiary hearings on the petitions.
At the hearing on February 5, 2018, Stephen S. Snook, Esq.,
represented CYS. Mother and Father were present with their counsel, Michael
S. Gingerich, Esq. The guardian ad litem for Children, Stuart A. Cilo, Esq.,
was also present, but Children were not present and did not testify. CYS first
presented the testimony of Nicole Patkalitsky, the assistant administrator at
CYS. Ms. Patkalitsky was involved in placement decisions, Family Intervention
Crisis Services (FICS) reviews, and supervision of the placement unit during
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1 On December 12, 2018, this Court, acting sua sponte, consolidated Parents’
two appeals from both orders into one appeal, which we will address in a single
memorandum for ease of disposition. We observe that B.K., Jr.’s birth
certificate, which is in the certified record, reflects that B.K., Jr., was born in
March of 2009, but the trial court’s opinion contains a typographical error, and
states that B.K., Jr., was born in March of 2019. See Trial Ct. Op., 10/4/18,
at 1; see also N.T., 2/5/18, at 84-85, 123; N.T., 3/5/18, at 4 (stating,
respectively, that B.K., Jr., was in the third grade and was eight years old).
We add that E.K. was eleven years old when the trial court granted the
petitions to terminate Parents’ rights to Children, and will be turning twelve
years old in 2019. Cf. 23 Pa.C.S. § 2711(a)(1) (discussing consent to
adoption).
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the training of the new supervisor. N.T., 2/5/18, at 6. She was familiar with
Children and Parents in this case. Id. at 6-7.
Next, CYS presented the testimony of Darlene Lopez, a FICS counselor
assigned to the family’s case. Id. at 40-41. CYS then presented the testimony
of Allison Dabback, a case manager for Families United Network and who
manages the foster home where Children have been in placement. Id. at 79-
80. Children are placed with their paternal aunt (Foster Mother), and her
husband. Id. at 81. Next, CYS presented the testimony of Foster Mother.
Id. at 93-94. Mother and Father testified on their own behalf. Id. at 113,
173.
On February 23, 2018, the trial court appointed John McCullough, Esq.,
as legal interest counsel for Children, and scheduled a hearing on the
termination petitions to occur on March 5, 2018. On March 5, 2018, the trial
court convened a hearing to discuss the need for the appointment of separate
legal interest counsel and guardian ad litem (GAL) for Children.2 N.T., 3/5/19,
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2 See In re Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017)
(plurality) (stating that, pursuant to 23 Pa.C.S. § 2313(a), a child who is the
subject of a contested involuntary termination proceeding has a statutory right
to counsel who discerns and advocates for the child’s legal interests, defined
as a child’s preferred outcome); see also In re T.S., 192 A.3d 1080, 1089-
90, 1092-93 (Pa. 2018) (finding unascertainable the preferred outcome of a
child who is too young or non-communicative in holding a child’s statutory
right to counsel is not waivable, and reaffirming the ability of an attorney-GAL
to serve a dual role and represent a child’s non-conflicting best interests and
legal interests). Cf. In re Adoption of D.M.C., 192 A.3d 1207 (Pa. Super.
2018) (vacating and remanding where the record was unclear in what capacity
the attorney had been appointed to represent the children and whether the
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at 2. At the hearing on March 5, 2018, Attorney McCullough stated that he
had met with Children, and he requested the opportunity to participate in an
additional evidentiary hearing on the matter. N.T., 3/5/18, at 6. The trial
court directed Attorney McCullough to review the transcripts of the February
5, 2018 hearing, and then submit a written report to the court. Id. at 26-27.
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attorney had ascertained the children’s legal interests prior to the hearing);
In re Adoption of M.D.Q., 192 A.3d 1201 (Pa. Super. 2018) (vacating and
remanding where the record did not indicate that counsel attempted to
ascertain the children’s preferred outcomes, and the record did not reflect the
children’s legal interests); In re Adoption of T.M.L.M., 184 A.3d 585, 587-
91 (Pa. Super. 2018) (vacating and remanding for further proceedings where
the attorney admitted she did not interview the six-year-old child to ascertain
the child’s preferences).
Here, Attorney McCullough spoke with Children on March 3, 2018, regarding
their preferred outcomes. According to Attorney McCullough, Children
expressed preferences to remain permanently with Foster Mother and initially
agreed to adoption, but then indicated that they wanted Parents to remain as
their mother and father. See N.T., 3/5/18, at 3-6, 12-15, 21-22. The trial
court acknowledged and considered the Children’s desires at the hearing. See
id. When rendering its decision, the trial court noted that the Children wished
to permanently remain with Foster Mother and visit with Parents when
rendering its decision. Trial Ct. Op., 10/4/18, at 11.
We note that after setting forth the Children’s preferences, Attorney
McCullough concluded that termination of Parents’ rights was proper.
Additionally, Attorney McCullough did not file a brief in this appeal. However,
because Attorney McCullough consulted with Children and advocated for
Children’s preferences throughout the hearing, we conclude that he
substantially complied with his duties as legal counsel. We remind legal
counsel that the representation of a child’s legal interest encompasses a duty
to advocate for a child’s preferred outcome, and this duty extends to an
appeal.
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Upon receipt of Attorney McCullough’s report, the court would then decide
whether a supplemental hearing would be necessary. Id.
On September 4, 2018, the trial court scheduled a half-hour
supplemental hearing on the termination petitions for September 28, 2018.3
At the hearing on September 28, 2018, Attorney McCullough presented the
testimony of Ms. Lopez. N.T., 9/28/18, at 4. Attorney McCullough then
presented the testimony of Brenda Dobson, who is a CYS employee assigned
to the family in December of 2017. Ms. Dobson observed the visits between
Parents and Children at FICS and observed Children in their foster home. Id.
at 23-24.
On October 4, 2018, the trial court entered the orders granting CYS’s
petitions to involuntarily terminate Parents’ parental rights to Children
pursuant to the Adoption Act, 23 Pa.C.S. § 2511(2), (5), (8), and (b). On
November 5, 2018, Parents timely filed notices of appeal from the October 4,
2018 orders,4 along with concise statements of errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Parents raise the following issues:
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3 Attorney McCullough’s report was not docketed as being filed with the trial
court and is not in the certified record. However, as noted above, the trial
court convened a supplemental hearing.
4 The thirtieth day following the entry of the orders fell on Saturday, November
3, 2018. Therefore, Parents’ notices of appeal filed the following Monday were
timely filed. See 1 Pa.C.S. § 1908.
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Did the trial court err in finding that there was clear, convincing
and sufficient evidence establishing the statutory grounds for
involuntary termination of parental rights?
Did the trial court err in finding that there was clear, convincing
and sufficient evidence that the involuntary termination of
parental rights was in the “best interests” of each child?
Parents’ Brief at 4.
Parents stated their issues somewhat differently in their concise
statement of errors complained of on appeal, but nevertheless preserved
challenges to the sufficiency of the evidence to support the termination of their
parental rights under Section 2511(a)(2), (5), (8), and (b). See Krebs v.
United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (holding
that an appellant waives issues that are not raised in both his concise
statement of errors complained of on appeal and the statement of questions
involved in his brief on appeal).
Specifically, Parents suggest that they were able to perform their
parental duties “for several years, at least until the time the trial court
declared the [C]hildren to be dependent on June 17, 2016.” Parents’ Brief at
10. Parents continue that they either completed or substantially complied
with the goals set for reunification by addressing their housing, financial, and
mental health issues. Id. at 12, 14-15. Lastly, Parents assert that the trial
court failed to consider the effect that termination would have on Children in
light of the bonds between Children and Parents. Id. at 17.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
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[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. Id.; [In re] R.I.S., [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., . . . 34 A.3d 1,
51 ([Pa.] 2011); Christianson v. Ely, . . . 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.
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., 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, . . . 650 A.2d 1064, 1066
([Pa.] 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 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). We
have explained: “[t]he standard of clear and convincing evidence is defined
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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
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). We will
consider Section 2511(a)(2) and (b).
Section 2511(a)(2) and (b) provides, in relevant part, 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
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511.
The Pennsylvania Supreme Court set forth our inquiry under Section
2511(a)(2) as follows:
As stated above, § 2511(a)(2) provides statutory grounds for
termination of parental rights where it is demonstrated by clear
and convincing evidence that “[t]he 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.” . . .
This Court has addressed incapacity sufficient for termination
under § 2511(a)(2):
A decision to terminate parental rights, never to be made
lightly or without a sense of compassion for the parent, can
seldom be more difficult than when termination is based
upon parental incapacity. The legislature, however, in
enacting the 1970 Adoption Act, concluded that a parent
who is incapable of performing parental duties is just as
parentally unfit as one who refuses to perform the duties.
In re Adoption of J.J., . . . 515 A.2d 883, 891 ([Pa.] 1986)
(quoting In re: William L., . . . 383 A.2d 1228, 1239 ([Pa.]
1978)).
S.P., 47 A.3d at 827.
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A
parent’s vow to cooperate, after a long period of uncooperativeness regarding
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the necessity or availability of services, may properly be rejected as untimely
or disingenuous. Id. at 340.
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 C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
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., [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., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (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
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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) (citations and quotation
marks omitted).
Our Supreme Court has stated that 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, and that “[e]ven the most abused of children will often
harbor some positive emotion towards the abusive parent.” See T.S.M., 71
A.3d at 267 (quoting K.K.R.-S., 958 A.2d at 535). The Supreme Court stated
that “[t]he continued attachment to the natural parents, despite serious
parental rejection through abuse and neglect, and failure to correct parenting
and behavior disorders which are harming the children cannot be
misconstrued as bonding.” Id.
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Therefore, the court may emphasize the safety needs of the child. See
K.Z.S., 946 A.2d at 763 (affirming involuntary termination of parental rights,
despite the 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 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).
Having reviewed Parents’ arguments and the record, this Court finds the
trial court’s decision to terminate the parental rights of Father and Mother
under Section 2511(a)(2) and (b) is supported by competent, clear, and
convincing evidence in the record. S.P., 47 A.3d at 826-27. We adopt the
trial court’s discussion set forth in its opinions as to Children with regard to
Section 2511(a)(2) and (b), because its credibility and weight determinations
are supported by the evidence in the record. See Trial Ct. Op. at 5-12.
We add that Children were removed from Parents based on a lack of
food. Children told CYS that they had not eaten since the day before they
were removed from the home. See N.T., 2/5/18, at 9. As noted by the court,
E.K. would also hoard food even after being placed with Foster Mother. See
id. at 54; Trial Ct. Op. at 11. Additionally, the court heard testimony that
during visits, Parents brought snacks that E.K. did not eat, and E.K. would
return to Foster Mother hungry. See N.T., 2/5/18, at 48, 52. The court also
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found Parents were not only uncooperative with FICS, but also refused
assistance with budgeting and shopping for food. See id. at 54; Trial Ct. Op.
at 3.
Although Parents testified that they love Children, see N.T., 2/5/18, at
147, 161, 183, this Court has held that a parent’s love of his child, alone, does
not preclude a termination. See In re L.M., 923 A.2d 505, 512 (Pa. Super.
2007) (stating that a parent’s own feelings of love and affection for a child,
alone, will not preclude termination of parental rights). It is well-settled that
“we will not toll the well-being and permanency of [a child] indefinitely.”
C.L.G., 956 A.2d at 1007 (quoting 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.” (citation omitted)). Moreover, there were
corresponding bonds between Children and Parents. However, under the
circumstances of this case, we cannot conclude that the trial court erred in its
conclusion that terminating those bonds best served the needs and welfare of
Children. See T.S.M., 71 A.3d at 267; K.Z.S., 946 A.2d at 763. Accordingly,
we affirm the trial court’s orders on the basis of the discussion in the trial
court’s opinion.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2019
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Circulated 04/18/2019 03:17 PM
INTHE COURT OF COMMON PLEAS OF MIFFLIN COUNTY, PENNSYLVANIA
ORPHAN'S COURT DIVISION
In the Interest of: E.K. PARENTAL ACTION NO. 25 of 2017
In the Interest of B.K., Jr. PARENTAL ACTION NO. 26 of20l7
OPINION
AND NOW, this 4111 day of October, 2018, Mifflin County Children and Youth Social Services
(''the Agency" hereafter) have filed a petition to terminate the parental rights of natural mother, AM.
C'Mother" hereafter), and natural father, B.K. ("Father" hereafter), with respect to their children, E.K.
and B.K., Jr, A termination hearing was held on February 5, 2018 and supplemental hearings were
held March 5, 2018 and September 28, 2018, This Opinionisin support of the Court's Order, entered
this date, terminating Mother and Father's parental rights.
FACTUAL AND PROCEDURAL HISTORY
E.K. was born on May 24, 2007 and was lO years old at the filing of the Petition to Terminate.
B.K., Jr. was born on March 18, 2019 and was 8 years old at the time of the filing of the Petition to
Terminate. E.K. and B.K., Jr. were adjudicated dependent with disposition of legal and physical
custody with the Agency on June 17, 2016, due to unsafe and instable housing and income concerns.
Testimony provided that the Agency became involved after reports that Mother and Father were living
in a residence with at least five to six other people. Mother and Father were about to be evicted and
planned on moving to a motel. The Agency had concerns with the lack of food in the home, the safety
and security of the current residence and whether the basic needs of the children were being met.
The Agency developed three Child Permanency Plans with parental objectives for both Mother
and Father. The Agency asked Mother and Father to identify and secure a permanent residence for
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E.K. and B.K., Jr. that was free of safety and sanitary concerns and asked that they obtain and maintain
a stable income in order to proper1y provide for the children. The Agency further requested Mother
and Father work on their mental health needs through counseling and medication management and that
they demonstrate the necessary parenting skills to provide for E.K. and B.K., Jr. 's physical, emotional
and mental well-being, Finally, Mother and Father were asked to cooperate with the Agency and work
with all service providers.
To help Mother and Father meet. the Agency's objectives a referral was made to Family
Intervention Crisis Services ("FICS'; hereafter). FICS opened with Mother and Father for
Reunification Services on June 8; 2016. In order to assist Mother and Father in reunification, FICS
provided Mother and Father with parent-education, counseling sessions, Iifestyle checks and visitation
sessions.
Parent education sessions were specifically tailored to help . Mother and Father meet the
Agency's objectives and to further help Mother and Father create a lasting bond with the children.
Parent education included lessons on parentification, validation of feelings, the importance of
reflective listening and communication and how to communicate and interact effectively with their
children. This included discussions on age appropriate activities and conversations. Sessions also
educated parents on the importance of consistency and positive reinforcement and helped parents
establish a bond with their children through activities. These sessions also focused on time and money
management. Mother and Father attended only 6 visits of the 32 that Were offered to them. Mother
was combative during these sessions and believed .sessions were a waste of her time. Furthermore,
testimony provided that she threw a binder at a parent educator after becoming upset. Mother testified
that the Agency and FICS failed to make their objectives clear and avers she was unapprised as to their
expectations, Mother testified that service providers expected her to be perfect. Furthermore, Mother
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testified that she was not willing to work with service providers because they always brought up the
past and she was more concerned with working toward the future.
While Mother and Father failed to attend parent education sessions, they were more faithful to
attend visits with the children. Of the 59 supervised visits offered by FICS, Mother and Father
attended 48 visits. However, during these visits, FICS staffnotedthat Mother ignored E.K. and B,K.,
Jr. several times throughout multiple visits. Testimony provided that there was no structure during
visits and E.K. and B.K., Jr. did not listen to Mother and Father. FICS staff had to direct E.K. and B.K.
Jr. during their visits. FICS staff requested Mother and Father bring a nutritious meal for the children
and offered to go to the grocery store with Mother and Father to help them choose healthy foods and
how to make a budget. FICS also offered Mother and Father a gift card for food; however, both were
refused. F!CS staff also believed that Mother and Father favored one of the children over the other and
yelled at one child over the other. Mother and Father were visibly annoyed and used annoyed tones
when one child attempted to engage Mother and Father in conversation regarding school, holidays,
friends and family. Mother and Father were also argumentative with FICS staff while receiving
feedback after visits.
FICS staff also requested Mother and Father participate in counseling sessions to work on their
mental health, the reason for placement and how to positively move forward. Mother and Father
attended 3 out of the 32 sessions. Of the 3 sessions Mother and Father did attend, they left two
sessions early. During these sessions, Mother and Father were argumentative, defensive and hostile,
Mother and Father blamed the Agency and FICS for their issues and failed to accept responsibility.
Mother and Father refused to sign releases or cooperate with the Agency since August of 2016 and
refused access to their home. Mother and Father signed a document on September 14, 2016 stating
that they no longer wished to participate in counseling or parent education sessions with FICS. For
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this reason, only 11 lifestyle checks were attempted. Only 5 of the 11 were successful and these
checks occurred while Mother and Father were living in the homeless shelter. Aftermoving from the
shelter, Mother and Father denied access to the residence where they lived with their friends. As of
October 2017, FICS has provided Mother and Father a total of 586 hours of services.
Not only did Mother and Father fail to cooperate with the Agency and FICs through parent
education, counseling and lifestyle checks, but Mother and Father also failed to meet any of the
objectives created by these Agencies. Mother and Father have failed to secure a permanent residence
for E.K. and .B.K., Jr. and have failed to maintain a stable income, From the case opening until the
filing of the Petition to Terminate, Mother and Father have resided at numerous residents. Mother and
Father resided at 9I Woodland Avenue when the Agency filed for dependency.
Mother and Father then resided in the homeless shelter from June of 2016 until
September of 2016. Mother and Father then moved in with a friend at'9l 4th Street
until May of 2017. Despite numerous requests, the Agency and FICS workers were denied access to
this home. Finally, in May of 2017, Mother reported that she was living with Father at.Logan Street
in Lewistown. Testimony provided that the residence on Logan Street was cluttered and dirty.
Furthermore, testimony provided that there was no electricity in Mother and Father's bedroom and a
water bucket was in the room to collect water draining from the ceiling. There was also some concern
about heating in one of the children's rooms. Furthermore, Mother testified that they were a couple
months behind on their electric bill.
Not only have Mother and Father failed to secure a permanent residence, Mother and Father
have also failed to secure a stable income. Mother has been unemployed from the opening of the case
in June of 2016 due to health concerns. Mother testified that she receives $924.00 a month as a
survivor benefit from her father. She testified that she will receive this money every month for life,
4
Father is also currently unemployed. While Father obtained employment in March of 2017 at Vantage
Foods in Carlisle, he chose to quit his job 6 months later in August of 2017.
Mother and Father have also failed to work on their mental health needs through counseling
and medication management. Mother attended a mental health intake appointment in December of
2016 at the Geisinger-Lewistown Hospital to begin counseling services. However, Mother did not
follow up after the appointment and failed to participate in counseling services, In March of 2017,
Mother completed a mental health assessment at Enlighten. Enlighten recommended that Mother
participate in medication management and counseling services. To date, Mother has attended four
appointments. Mother cancelled one appointment and failed to appear for another appointment.
Father has not participated in arty psychiatric care to address his mental health needs through
counseling or medication management.
At the Permanency Review Hearing held on November 3, 2016, t�"Court made findings that
Mother and Father were not compliant with the permanency plan and had not made any progress
towards alleviating the circumstances which necessitated placement. At Permanency Review Hearing
held May 5, 2017, the Court found Mother and Father were minimally compliant with the permanency
plan but failed to make any progress towards alleviating the circumstances which necessitated
placement. Finally; at the Permanency Review Hearing held September 29, 2017; the Court found
Mother and Father Were minimally compliant with the permanency plan and had made minimal
progress towards alleviating the circumstances which necessitated placement.
DISCUSSION
The court must undergo a two-step analysis when deciding whether to terminate an individual's
parental rights. First, the court must determine whether the petitioner proved with clear and
convincing evidence one of the grounds for termination stated in 23 Pa.CS.A. § 251 l(a). Next, the
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court must assess the child's developmental, physical, and emotional needs and welfare in accordance
with 23 Pa.C.S,A. § 251 l(b) and the best interest of the child standard. The court must consider each
case's individual circumstances and the parent's explanations to determine whether the "totality of the
circumstances" justifies terminating the parent's rights. In re B.N.M., 856A.2d 847, 853 (Pa. Super.
2004).
The Agency alleges grounds for termination under 23 Pa.CS.A. § 25 ll(a)(2), 23 Pa.C.S.A.
§ 2511 (a)(5) and 23 Pa,.C.S.A. § 251 l(a)(8). The Court will first address the. termination grounds
found in all three alleged sections. Then it will separately determine whether terminating Mother and
Father's parentalrights serves the best interest of the children,
I. Termination Grounds
A. Termination Pursuant to 23 Pa.C.S.A. § 2Sll(a)(2)
Section 251 l(a)(2) authorizes the court to terminate a parent's rights if:
"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."
23 Pa. C.S.A. § 2511(a)(2).
The Agency by clear and convincing evidence established the termination grounds fourid in
§2511 (a)(2) relative. to Mother and Father. Upon obtaining physical and legal custody of E.K. and
B.K., Jr., the Agency developed three Child Permanency Plans with parental objectives for Mother and
Father. These objectives included: identifying and securing a permanent residence that is free of safety
and sanitary conditions; obtain and maintain stable income; ensure mental health needs are met
through counseling and medication management; demonstrate parenting skills that meet the children's
physical, emotional and mental well-being; and cooperate with the Agency and service providers. The
6
Agency established these objectives to address the circumstances and concerns that necessitated
placement, including Mother and Father's history of unsanitary and instable housing, a history of
financial instability and Mother and Father's inability to demonstrate proper patenting skills.
Throughout the duration of this case, Mother and Father have made minimal progress towards
these objectives. Mother arrd Father have moved numerous times since placement, as detailed above.
While Mother testified that they are currently living in a stable home, the Agency and FICS still have
some concerns about the care and condition of the home. Furthermore, testimony provided that
Mother and Father are behind $450.00 dollars on their electric bill. While Mother receives a monthly
social security benefit, Mother and Father are unable to meet their monthly income heeds. Father has
failed to obtain and maintain employment and Mother and Father have failed to address their mental
health needs. Further, Mother and Father have consistently refused to cooperate with the Agency and
•. -�.........
other service providers. Mother and Father failed to provide releases to the Agency arid FICS and have
refused services since September of 2016. Mother and Father failed to utilize any of the services
offered to them by service providers. Mother and Father attended only 6 of 32 parent education
sessions, 3 out of 32 counseling sessions and 48 out of 59 visits with E.K. and B.K., Jr. Mother and
Father blamed the Agency and FICS service providers for their problems and Were argumentative,
defensive and hostile towards their recommendations. In turn, the Agency and FlCS still have the
same concerns for the health and safety of the children that they had at the time of the filing for
dependency.
Therefore, the Court is satisfied that the Petitioners have proved by dear and convincing
evidence that Mother and Father have refused or failed to perform their parental duties and that there is
a continued incapacity that has caused and will continue to cause. E.K. and B.K., Jr. to he without
7
I�
capable of performing their parental duties and responsibilities. E.K. and B.K., Jr. have. been in
custody for approximately twenty months and the conditions which led to their placement continue to
exist.
At this time, Mother and Father cannot provide essential parental care necessary for E.K. and
B.K., Jr. 's physical and mental well-being, Therefore, as Mother and Father have not remedied the
behavior that led to E.K. and H.K., Jr.' s placement in foster care and termination would best serve E.K.
and B.K., Jr.'s needs and welfare, the Court firtds grounds to terminate Mother and Father's parental
rights pursuant to § 25 l l(a)(5).
C. Termination Pursuantto 23 Pa.C.S.A. § 25ll(a)(8)
The court may terminate a parent's parental rights under § 25 ll(a)(8) if:
"The child has been removed from the care of the parent by the court or under
a voluntary agreement with. an agency, twelve 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 serve the needs and welfare of the child."
23 Pa.C.S.A. '§ 251 l(a)(8}
The Agency by clear and convincing evidence also established the termination grounds found
m § 251 l(a)(8). As previously noted above; at the time of the hearing, E.K. and B.K., Jr. have been in
foster care for approximately twenty months and the conditions which led to their placement continue
to exist. Mother and Father have failed to demonstrate a serious intent to re-cultivate a parent-child
relationship or to demonstrate a willingness and capacity to. undertake the parental role. Mother and
Father do not believe they need help and therefore, have not worked towards reunification services.
After being provided services through FICS, the same conditions which led to the. removal of E.K. and
H.K., Jr. have not been remedied. At all three Permanency Review Hearings, this Court found that
there had been minimal to no compliance with the permanency plan and that Father and Mother have
made little to no progress in alleviating the circumstances with necessitated the original placement.
t1
9
essential parental care, control or subsistence necessary for their physical and mental well-being that
cannot be remedied in a timely manner. 23 Pa,C.S.A. §2511 (a)(2).
B. Termination Pursuant to 23 Pa.C.S.A. § 2SU(a)(S)
Section 251 J (a)(5) permits the court to terminate parental rights when:
"The child has been removed from the care of the parent by the court or under
a voluntary agreement with an agency for a period of at least six months, the
conditions which led to the removal or placement of the child continue to exist,
the parent cannot or will not remedy those conditions within a reasonable
period of time, the services or assistance reasonably available to the parent are
not likely to remedy the conditions Which led to the removal or placement of
the child within a reasonable period of time and termination of the parental
rights would best serve the needs and welfare of thechild."
23 Pa.C.S.A. §2511(a)(5).
The Agency by clear and convincing evidence also established the termination grounds found
·-. m § 251 l(a)(S)� At the time of the hearing, E.K. and B.K., Jr., have been in foster care for
approximately twenty months. FICS service providers offered numerous services to Mother and
Father that would have allowed them, through fixing their own physical and mental health needs, to
provide E.K. and B.K., Jr. with the love, protection and necessities they need, However, despite the
plethora ofservices that have been offered to Mother and Father, there has been a lack of progress and
no significant change;
As previously mentioned, Mother and Father were argumentative, defensive and hostile with
service providers throughout dependency proceedings. Mother and Father refused parent education,
counseling and lifestyle checks. Furthermore, Mother and Father failed to meet the Agency's
objectives and failed to demonstrate that they are capable of meeting the physical, mental and
emotional needs ofE.K. and B.K., Jr. Mother and Father failed to work towards the return of E.K. and
B.K., Jr. by cooperating with the Agency to obtain rehabilitative services necessary for them to be
8
\i
..............
As the conditions that led to E.K. and B.K. Jr.'s placement have not been remedied and
terminating Mother and Father's parental rights would best serve the needs and welfare ofE.K. and
B.K.,. Jr. who are happy, healthy, and well-adjusted in their foster home, the Court finds grounds to
terminate Mother and Father's parental rights pursuant to §2511 (a)(8).
II. The Children's Best Interests
Having found the Agency established with clear and convincing evidence the termination
grounds stated in §§ 251 l(a)(l), 251 I(a)(5) and 25ll(a)8), the Court must determine whether
terminating Mother and Father's parental rights servesE.K. and B.K., Jr. 's best interest. As mentioned,
the Court must give "primary determination" to the child's "developmental, physical, and emotional
needs." 23 Pa.C.S.A. § 251 l(b). This analysis involves an examination of "intangibles such as love,
comfort, security, and stability." in re CP., 901 A.2d 516, 520 (Pa. Super. 2006). The Court must
assess the bond the child has with his parent and whether termination would sever "existing, necessary,
and beneficial relationshipjs]." In re KZS., 946 A.2d 753; 760 (Pa, Super. 2008)(citing In re: C.S.,
761 A.2d 1197, 1202 (Pa. Super. 2000), The Court must pay "close attention" to the effect severing
the bond with a parent has on the child. In re L.M, 923 A.2d 505, 511 (Pa. Super. 2007). However,
the child's needs and welfare are the most 'important factors. In re KZ.S., 946 A.2d at 760. In this
case, the Agency established terminating Mother and Father's parental rights serves E.K. and B.K.,
Jr. 's best interest.
Mother and Father attended 48 visits with E.K. and B.K., Jr. Testimony provided that during
these visits, E.K. and B.K., Jr. did not listen to Mother and Father arid FICS staff were left to direct
E.K. and B.K., Jr. Testimony by FICS also provided that E.K. and. B.K. Jr, were not overly
affectionate with Mother and Father. While E.K. and B.K. Jr. would sometimes greet their parents
10
with hugs, E.K. and B.K., Jr. did not display affection unless Mother and Father requested it. FICS
staff further noted that Mother ignored both children at several times throughout different visits.
E.K. and B.K., Jr. were placed with their paternal aunt and uncle in June of 2016. Testimony
provided that E.K. and B.K., Jr. are happy to be with their cousins and are excelling in their current
environment. Foster mother, Bethany Brinker, testified that when the children were initially placed in
their care; E.K. had an issue With hoarding food and both children were .on medication for ADi-Ib.
B.K., Jr. was also very behind academically. In the fast twenty months, these issues have been
alleviated. The children are no longer taking medication for ADHD, are behaving appropriately arid
B.K. Jr. is doing better in school. Foster parents help.B.K. Jr. with his reading and he is now reading at
a third grade level. Testimony provided that E.K. and B.K., Jr. help with chores and operate in the
home as a family unit. E.K. and B.K., Jr. have a loving relationship with their foster family and show
--�._
love and affection to them. Furthermore, E.K. and RK., Jr. look to their foster family for their basic
needs and support.
John R McCullough, the attorney for E.K. and B.K., Jr., spoke with the children on
March 3, 2018. Attorney McCullough stated that the children Were outspoken and expressed that they
enjoyed living with their aunt and uncle, but would like to continue visiting with Mother and Father.
When asked if visitation would still occur if Mother and Father's rights were terminated, Father
testified that he thought his sister would still allow him and Mother to visit with the children.
The Court finds it is in E.K. and B.K., Jr. 's best interest to be placed in a home that can provide
for their specific needs. While there is a bond between E.K., B.K., Jr. and Mother and Father, the
Court finds E.K. and B.K., k's need for safety, security and stability outweighs this bond.
Furthermore, there is no question that E.K. and B.K., Jr. 's need for love and comfort is best served in
the foster home. If the Court were to maintain Mother and Father's parental rights, E,K. and B.K., Jr.
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would be deprived of a permanent, healthy, safe, and secure parent/child relationship and home.
Therefore, the Court finds terminating Mother and Father's parental rights serves E.K. and B.K., Jr. 's
developmental, physical, and emotional needs and. welfare.
CONCLUSION
The Court finds the Agency met its burden by proving through clear and convincing evidence
the grounds for involuntary termination of Mother and Father's parental rights under 23 Pa.C.S,A.
§§251 l(a){2), 2511(a)(5), and 251J(a)(8). Also, termination is in the children's best interest.
BY THE COURT:
.,-·-.,,,
d;//.f;/r
AARON L. GINGRICH
JUDGE
bil rr, IO'-