In Re: E.D. Appeal of: C.F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.F., MOTHER :
:
:
:
:
: No. 1872 EDA 2022
Appeal from the Decree Entered June 16, 2022
In the Court of Common Pleas of Wayne County
Civil Division at 18-AD-2022
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 29, 2022
C.F. (Mother), appeals from the decree involuntarily terminating her
parental rights to E.D. (Child) and changing Child’s permanency goal to
adoption.1 After careful consideration, we affirm.
Child was born in February 2019. On December 18, 2020, Wayne
County Children & Youth Services (WCCYS or the agency) became involved
with the family at the request of the Pennsylvania State Police, who had
reported Mother and Father’s suspected drug abuse. N.T., 6/7/22, at 4; see
also Exhibit 1 (Permanency Plan, 1/4/21, at 1). The WCCYS caseworker,
Sarah Mooney, testified that Mother “was not present at the residence.” N.T.,
6/7/22, at 4. Further:
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1The trial court also terminated the parental rights of L.D. (Father), who has
appealed at 1871 EDA 2022.
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The agency did try to case plan with [Father] at the home and
[Mother] over the phone to avoid protective custody[;] however,
both parents were very combative and stated they did not want
[Child] and to place [her], or to place [Child] in foster care.
Id.
Child was adjudicated dependent on December 28, 2020. WCCYS
established family service plan goals for Mother of cooperating and
communicating with WCCYS; obtaining a drug and alcohol evaluation and
following treatment recommendations; participating in random drug screens;
obtaining a mental health evaluation and complying with recommendations;
taking medications as prescribed; attending visitation with Child; maintaining
a safe and suitable home for Child; and meeting Child’s basic needs. See
Exhibit 1 (Permanency Plan, 1/4/21, at 13-19).
Child’s placement had some “twists and turns.” Id. at 5. Ms. Mooney
testified that Mother’s compliance was mostly “minimal.” N.T., 6/7/22, at 25-
41. However, Mother was compliant at one point; as a result, CYS returned
Child to Mother. Id. at 25. Specifically, CYS returned Child to Mother on
October 15, 2021, but placed Child back with her foster parents two weeks
later, on November 1, 2021, after Mother tested positive for
methamphetamines. Id. at 5-6. WCCYS also attempted kinship care. WCCYS
placed Child with her maternal grandparents, although maternal grandmother
was not permitted to be alone with Child. Id. at 6-7. The placement was
unsuccessful, and the agency removed Child from maternal grandparents’
care a few months after placement. Id.; see also Exhibit 1 (Permanency
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Plan, 1/4/21, at 1 (stating maternal grandparents “failed drug screens,
[maternal grandfather] had a criminal record and [maternal grandmother] has
a PFA against someone in NJ.”)). Child was placed with her foster parents
three times and has remained with them since November 2021. Id. at 8.
The trial court conducted permanency review hearings on January 4,
2021, October 12, 2021, November 1, 2021, and February 8, 2022. On
February 8, 2022, the trial court “found minimal compliance and no progress
with the permanency plan by Mother.” Opinion and Decree, 6/16/22, at 2.
On April 11, 2022, WCCYS petitioned for termination of Mother’s parental
rights. The trial court held a hearing on June 7, 2022. At that time, Child was
three years old and had been in placement for 16 months. N.T., 6/7/22, at
47, 122.
In addition to Ms. Mooney, WCCYS presented testimony from a licensed
psychologist, Dr. Brittney Tunilo. WCCYS sought to introduce Dr. Tunilo’s
testimony “specifically as it regards [Dr. Tunilo’s] bonding evaluation” of
Mother and Child. Id. at 78. The parties stipulated to Dr. Tunilo’s expertise
in forensic psychology. Id.
Mother testified in opposition to termination. Mother admitted to her
drug addiction, but stated she was in recovery. Id. at 88. Mother testified
that she takes prescribed medication and THC; she stated she was “waiting
for the [medical marijuana] license.” Id. Mother also described having
successful part-time employment at Lowes and living temporarily with her
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mother and brother, although she was working with the “SHARE” program to
obtain housing. Id. at 89. Mother testified to having a bond with Child.
Mother stated the bond was “absolutely not” severed by Child’s placement in
foster care, and “each visit we have I feel as though it gets stronger.” Id. at
90.
By decree entered June 16, 2022, the trial court terminated Mother’s
parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2),(5),(8) and (b). Mother
timely appealed. Mother and the trial court have complied with Pa.R.A.P.
1925.2
Mother presents the following questions for review:
I. Whether the trial court erred in concluding that the Appellant
Mother demonstrated an unwillingness or inability to provide the
minor child with the essential parental care necessary for her
physical or mental well-being?
II. Whether the trial court erred as a matter of law in determining
that the parental rights of the Appellant mother, C.F., was
warranted?
III. Whether the trial court erred as a matter of law in determining
that the termination of parental rights of the Appellant mother[,]
C.F., would serve the developmental, physical and emotional
needs and welfare of the minor child?
Mother’s Brief at 4.
In reviewing Mother’s issues,
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2 After reviewing Mother’s Rule 1925 concise statement, the trial court
concluded “there are no issues which merit an appeal,” and “incorporate[d]
and adopt[ed] the entirety of the June 16, 2022 Opinion and Decree.”
Statement of Reasoning, 8/4/22.
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our standard of review requires [us to] accept the findings of fact
and credibility determinations of the trial court if they are
supported by the record. If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. 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 [the Supreme Court] discussed in In re: R.J.T., [9 A.3d 1179,
1190 (Pa. 2010)], there are clear reasons for applying an abuse
of discretion standard of review in these cases. [U]nlike 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
WCCYS has the burden to prove by clear and convincing evidence that
its asserted grounds for termination are valid. In re R.N.J., 985 A.2d 273,
276 (Pa. Super. 2009). “[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. Under 23 Pa.C.S.A. § 2511, “the court
must engage in a bifurcated process prior to terminating parental rights.” In
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re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the focus is on the
conduct of the parent pursuant to § 2511(a). Id.
Section 2511(a)
Mother first challenges the trial court’s finding as to grounds for
termination under Section 2511(a). This Court need only agree “as to any
one subsection in order to affirm the termination of parental rights.” In re
A.S., 11 A.3d 473, 478 (Pa. Super. 2010). Thus, we address the second
subsection, which provides for termination when a parent’s
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).
Section 2511(a)(2) “emphasizes the child’s present and future need for
‘essential parental care, control or subsistence necessary for his physical or
mental well-being.’” In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (citation
omitted). Grounds for termination under subsection (a)(2) are not limited to
affirmative misconduct. Id. “Where the parent does not exercise reasonable
firmness in declining to yield to obstacles, her [parental] rights may be
forfeited.” Id. at 83. The grounds for termination under § 2511(a)(2) may
include acts of refusal as well as incapacity to perform parental duties. In re
S.C., 247 A.3d 1097, 1104 (Pa. Super. 2021). We have long recognized that
a parent is required to make diligent efforts toward the reasonably prompt
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assumption of full parental responsibilities. In re Adoption of M.A.B., 166
A.3d 434, 443 (Pa. Super. 2017).
Instantly, Mother argues
the trial court’s determination that WCCYS met their burden is
reversible error. WCCYS failed to meet their burden in proving
that termination of rights was warranted under 23 Pa.C.S. Section
2511(a)(2), (5), (8) and WCCYS did not supply Mother ample time
and opportunity in which to remedy the situation that necessitated
the child’s second removal. Absent evidence of [M]other’s
inability to remedy that situation, the termination Decree cannot
stand.
Mother’s Brief at 10.3
Mother concedes that as a result of her drug addiction, “the first element
of § 2511(a)(2) has been met.” Id. at 14; see also 23 Pa.C.S.A. § 2511(a)(2)
(incapacity of parent has caused child to be without essential care). However,
Mother claims the evidence “suggested Mother’s willingness to remedy as she
was actively engaged in all of the recommended treatment at the time of the
hearing.” Mother’s Brief at 15. She states: “It appears that the agency solely
relied upon Mother’s drug use as the condition that was not remedied[.]” Id.
Mother asserts she “demonstrated a commitment to reunification and a desire
for the same in a timely manner.” Id. Mother emphasizes she “was honest
with the agency” and “was willing to immediately resume custody of her child.”
Id. at 17. We are not persuaded by Mother’s argument.
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3 WCCYS and Child’s counsel have not filed briefs.
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As stated above, this Court applies a deferential standard of review. In
re Adoption of S.P., supra (appellate courts must defer to trial judges when
factual findings are supported by the record and the trial court’s legal
conclusions are not the result of error). Upon review, we are not persuaded
by Mother’s argument.
The trial court made the following findings:
1. Since November 1, 2021, Mother attended 43 of 66 visits
offered with [Child].
2. Mother tested positive for methamphetamine/amphetamine on
November 10, 2021, November 25, 2021, December 7, 2021,
December 8, 2021 and January 4, 2022. She tested positive
for alcohol on February 24, 2022.
3. During an unannounced home visit from WCCYS on March 1,
2022, Mother’s field screen was positive for methamphetamine
/amphetamine, and the WCCYS caseworker witnessed Mother
consuming alcohol during this visit.
4. Mother tested positive for alcohol on March 15, 2022 and March
16, 2022.
5. Mother tested positive for methamphetamine/amphetamine on
March 31, 2022.
6. Mother has refused to drug screen since March 31, 2022.
7. Since the last review date of February 8, 2022, Mother has not
kept in consistent contact with WCCYS.
Opinion and Decree, 6/16/22, at 2-3.
The record supports these findings. For example, Ms. Mooney testified
that since November 1, 2021, Mother was “offered 66 visits and has missed
23 of them and 8 of those visits had been missed since the last review period.”
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N.T., 6/7/22, at 12. Ms. Mooney explained the missed visits were “due to
[Mother] not confirming with the agency, three of those were no show visits,
one was due to the fifteen-minute rule, in which [Mother] did not show up in
the time frame given. And one [Mother] had declined.” Id.
Ms. Mooney further testified Mother “has not maintained her mental
health services.” Id. at 27. Ms. Mooney stated Mother “had not reported any
mental health services to myself until I recently heard that she was attending
the Wright Center for mental health services.” Id. at 27-28. Ms. Mooney
asked Mother to sign releases for information from the Wright Center, but
Mother reported “the Wright Center does not do releases,” although Ms.
Mooney had “never had an issue before with that.” Id. at 28. Mother refused
Ms. Mooney’s request to sign a general release. Id. at 28-29
Regarding “the major issue” of Mother’s drug use, Ms. Mooney testified
that Mother “obtained drug and alcohol evaluations, but she has not been
consistent with following those recommendations.” Id. at 26, 36. In addition,
Mother was not compliant with drug testing. Ms. Mooney stated “the last time
she screened for the agency was March 31st of 2022 in which she was positive
for methamphetamines.” Id. at 32. During an unannounced visit to Mother’s
home around noon on March 1, 2022, Ms. Mooney rang the buzzer, knocked
on the door, and called Mother’s name without success. Id. at 33-34. Ms.
Mooney contacted Mother’s mother, who “reported [Mother] was home, but
she was sleeping.” Id. at 34. Mother then called Ms. Mooney and “let [Ms.
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Mooney] and the other caseworker into the home.” Id. Ms. Mooney described
Mother’s behavior as “very erratic.” Id. Mother was “pacing a lot … talking
very, very fast,” and drinking alcohol. Id. at 34-35. Mother admitted to using
methamphetamines two hours prior. Id. at 35.
Ms. Mooney summarized that Mother would
sporadically screen for the agency and she was frequently positive
for methamphetamines and or alcohol. [Mother] was positive for
methamphetamines [in 2021] on November 10th, November 25th,
December 7th, December 8th and January 4th[, 2022]. On
February 24 [, 2022,] she tested positive for alcohol and her
th
levels were higher than the lab could register. And then on March
1st[, 2022,] at the unannounced home visit she did screen and the
field screen came back positive for methamphetamines and her
prescribed Subutex, however, she could not produce enough for
the lab to confirm that, but the field screen did in fact say positive
for methamphetamines and [Mother] did admit … she had used
two hours prior.
Id. at 38.
According to Ms. Mooney, WCCYS recommended Mother for “detox
inpatient” in March 2022. Id. at 39. Ms. Mooney testified that although
Mother
went to detox on March 4th of 2022, … it’s unclear how long [she]
stayed there as she did text me on March 7th of 2022, and then
[she ca]me to her morning visit on March 8th and due to no signed
releases [for] a record of her staying we cannot confirm how long
she remained in detox.
...
[Mother] at this time had begun frequently refusing to do drug
screens[,] she would state I’d rather not, it’s not in my best
interest or stating to the visitation worker that she was not going
to screen because it would be the same as the last screen. At this
time [in March 2022,] the screens were also coming back diluted
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… with state[ments] from the lab to use caution or caution should
be used when [interpreting] those results. So it would either come
back diluted or they were coming back positive for alcohol or
methamphetamine.
Id. at 39-40. Mother’s most recent drug screen on March 31, 2022, was
positive for methamphetamine; Mother has “not provided any drug screens”
since. Id. at 41.
With respect to Mother’s communication with the agency, Ms. Mooney
testified:
[Mother] has not kept in consistent contact with the agency … she
has begun not responding to text messages or would go days
without responding, not answering phone calls. Whenever I would
attempt to talk to [Mother] or attempt to talk to her about the
case and progress, [Mother] would get irate, end phone calls and
leave meetings.
Id. at 27.
The above evidence refutes Mother’s claim of her “compliance and
willingness to remedy the situation.” Mother’s Brief at 13. The trial court
concluded:
WCCYS presented credible evidence that Mother has refused
to cooperate and communicate with WCCYS. Mother has a history
of drug use throughout [Child’s] dependency, including the time
[Child] was returned to her care in October 2021 as evidenced by
the positive drug screen results. Mother has not been in
consistent contact with WCCYS and exhibited unwillingness to
cooperate with WCCYS. Since March 31, 2022, Mother has
refused to submit to drug screenings. During the last review
period, Mother has exhibited minimal compliance and progress
with [Child’s] permanency plan.
***
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Mother testified that the reason for [her] refusing drug
screens after March 31, 2022 is that she was using
tetrahydrocannabinol (THC). Mother is not in possession of a
medical marijuana card allowing for the legal use of THC. Mother’s
use of other illegal substances, e.g., methamphetamine and
amphetamine, throughout the dependency period demonstrates
her inability to meet [Child’s] needs and provide for [Child’s]
welfare. Both Mother and Father have demonstrated instability,
lack of cohesion and inability to provide for a basic living
environment [for Child].
Opinion and Decree, 6/16/22, at 6-7, 8.
Our review indicates the trial court acted within its discretion in finding
that Mother’s repeated and continued incapacity cannot or will not be
remedied. We discern no error in the termination of Mother’s parental rights
under Section 2511(a)(2).
Section 2511(b)
Mother also argues the trial court erred in finding support for termination
under Section 2511(b), which requires the court to “give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” Mother’s Brief at 21 (quoting 23 Pa.C.S.A. § 2511(b)).4 Mother
asserts the “record is devoid of any evidence demonstrating how [C]hild’s
needs and welfare would be met by granting termination.” Mother’s Brief at
21. We disagree with Mother’s assessment of the record.
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4 Mother’s second issue regarding grounds for termination under 23 Pa.C.S.A.
§ 2511(a)(8) is rendered moot by our disposition affirming grounds for
termination under 23 Pa.C.S.A. § 2511(a)(2). See Mother’s Brief at 18-20;
In re A.S., 11 A.3d at 478 (this Court need only agree “as to any one
subsection in order to affirm the termination of parental rights.”).
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“Only if the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in the second
part of the analysis pursuant to Section 2511(b): determination of the needs
and welfare of the child under the standard of best interests of the child.” In
re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). When the trial court considers
a child’s needs and welfare, the “extent of any [parental] bond analysis ...
necessarily depends on the circumstances of the particular case.” In re
K.Z.S., 946 A.2d 753, 763 (Pa. 2008).
[I]n addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, this
Court stated that the trial court should consider the importance of
continuity of relationships and whether any existing parent-child
bond can be severed without detrimental effects on the child.
In re A.S., 11 A.3d at 483 (citations omitted).
The bond between Mother and Child is not disputed. The expert
psychologist, Dr. Tunilo, testified that she prepared a written report in June
2022 (Exhibit 4), based on her observation of Mother and Child, interview with
Mother, phone interview with foster parents, and information provided by Ms.
Mooney. Id. at 79-80. Like Ms. Mooney, Dr. Tunilo concluded that Mother
and Child have a bond. Id. at 14; 80. However, Dr. Tunilo found that the
bond had been severed. Id. at 82. Reading from her report, Dr. Tunilo
testified:
At this point in the relationship the bond between [Child] and
[Mother] has already been challenged. [Child] going back with
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[Mother] will create further distress due to adjustment and
severed attachment of [Child] and her foster family. Returning to
[Mother] would not reverse the experience for [Child], but rather
create a second trauma.
Id. at 82 (reading from Exhibit 4, page 4).
Ms. Mooney testified that Child has been in placement for 16 months
and has established a bond with her foster parents, who “have identified
themselves as an adoptive resource.” N.T., 6/7/22, at 47. Consistent with
Ms. Mooney’s testimony, the trial court stated:
[Child] was placed in foster care with [foster parents] multiple
times throughout her dependency. She returned to the care of
[foster parents] for the third time on February 18, 2022. There is
a bond between [Child and foster parents, who are an “adoptive
resource”].
Id. at 3; see also N.T., 6/7/22, at 18, 47 (Ms. Mooney opining that foster
parents have an established bond with Child, who is doing well and “adjusted
quickly to her return” to foster parents).
The trial court further opined:
As to the best interests of [Child] under 23 Pa.C.S.A. § 2511(b),
WCCYS presented credible evidence that termination of parental
rights would best serve [Child’s] needs and welfare. Testimony
indicated [Child] is bonded with Mother. Testimony also
confirmed [Child] is bonded with the family that has been
identified to provide permanency for her. The parental obligation
is a positive duty that requires affirmative performance. In re
Z.P., 994 A2d 1108, 1119 (Pa. Super. 2010) (citing In re B.,N.M.,
856 A.2d 847, 855 (Pa. Super. 2004)). Parental rights are not
preserved by waiting for a more suitable or convenient
time to perform one’s parental responsibilities while others
provide [for the child’s] physical and emotional needs. Id.(emphasis in original).
***
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[I]t is in the best interest of [Child] that the parental rights be
terminated. This will allow [Child] the permanency she deserves.
Opinion and Decree, 6/16/22, at 7-8.
As the record supports the trial court’s reasoning, we discern no error
by the trial court’s termination of Mother’s parental rights under 23 Pa.C.S.A.
§ 2511(b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
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