In the Interest of: H.O., a Minor, Appeal of: C.O.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: H.O., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.O., NATURAL :
MOTHER :
:
:
: No. 1574 WDA 2017
Appeal from the Order Entered October 4, 2017
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-033-2017
IN THE INTEREST OF: I.J., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
:
APPEAL OF: C.O., NATURAL :
MOTHER :
:
:
: No. 1575 WDA 2017
Appeal from the Order Entered October 4, 2017
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-032-2017
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 21, 2018
C.O. (“Mother”) appeals from the orders dated September 29, 2017,
and filed October 4, 2017, granting the petitions of the Allegheny County
Office of Children, Youth and Families (“CYF”) for the involuntary termination
of her parental rights to her two children: H.O., born in September of 2009
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and I.J., born in October of 2002 (collectively, “the Children”), pursuant to the
Adoption Act, 23 Pa.C.S. § 2511(a)(2), (8), and (b).1 We affirm.
The orphans’ court accurately and aptly set forth the factual background
and procedural history of this case in its Pa.R.A.P. 1925(a) Opinion to this
Court. Orphans’ Court Opinion, 12/22/17, at 1–5. In short, following a two-
day hearing, the orphans’ court found that “[t]he cycle of Mother making
progress, receiving expanded visitation, and then having setbacks repeated
itself up until the termination hearing.” Id. at 4. Based on the facts of record,
the orphans’ court concluded “that grounds to terminate Mother’s parental
rights existed pursuant to 23 Pa. C.S. § 2511(a)(2) and (a)(8).” Id. at 5.
Additionally, pursuant to 23 Pa.C.S. § 2511(b), the orphans’ court opined that
termination would serve the needs and welfare of the Children. Id. at 7.
On October 25, 2017, Mother timely filed a notice of appeal along with
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). This Court, sua sponte, consolidated the appeals on
November 14, 2017. Mother raises the following single issue on appeal:
1. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in concluding that termination of Natural Mother’s
parental rights would serve the needs and welfare of the
children pursuant to 23 Pa.C.S. §2511(b)?
____________________________________________
1 On September 29, 2017, the orphans’ court confirmed the consent to
termination of parental rights filed by S.W.D., father of H.O. (“Father”).
Father did not file an appeal, and he is not a party to the instant appeal.
N.B.J., Sr., is the father of I.J. N.T., 7/11/17, at 58. The record does not
indicate the status of his parental rights, but he is not a party to this appeal.
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Mother’s Brief at 8; Pa.R.A.P 1925(b) Statement, 10/25/17.
In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d
1179, 1190 (Pa. 2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; In re R.I.S., 614 Pa.
275, 36 A.3d 567, 572 (Pa. 2011) (plurality). As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion. Id.;
see also Samuel–Bassett v. Kia Motors America, Inc., 613
Pa. 371, 455, 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 575
Pa. 647, 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, 539 Pa. 161, 165, 650
A.2d 1064, 1066 (Pa. 1994).
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In re I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re
Adoption of S.P., 47 A.3d 817, 826–827 (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 that the “standard of clear and convincing evidence is defined
as testimony that is so ‘clear, direct, weighty and convincing as to enable the
trier of fact to come to a clear conviction, without hesitance, of the truth of
the precise facts in issue.’” Id. (quoting In re J.L.C., 837 A.2d 1247, 1251
(Pa. Super. 2003)). “It is well established that a court must examine the
individual circumstances of each and every case and consider all explanations
offered by the parent to determine if the evidence in light of the totality of the
circumstances clearly warrants termination.” In re Adoption of G.L.L., 124
A.3d 344, 346 (Pa. Super. 2015) (citation omitted). Moreover, this Court has
stated that the focus in terminating parental rights under Section 2511(a) is
on the parent, but under Section 2511(b), the focus is on the child. In re
Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc).
Initially, we note that Mother has waived any challenge to the sufficiency
of the evidence to support termination under Section 2511(a) by her failure
to include such a challenge in both her concise statements of errors
complained of on appeal and the statement of questions involved in her brief
on appeal. See In re G.D., 61 A.3d 1031, 1036 n.3 (Pa. Super. 2013) (citing
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Krebs v. United Refining Company of Pennsylvania, 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 appellate brief)). Indeed, Mother
concedes that CYF satisfied its burden of proof with regard to 23 Pa.C.S. §
2511(a)(2). Mother’s Brief at 16. Rather, she challenges the orphans’ court’s
orders only as to Section 2511(b), which provides as follows:
§ 2511. Grounds for involuntary termination
* * *
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(b).
Specifically, Mother challenges the trial court’s adoption of:
the findings of Dr. Bliss that [Mother] was unable to care for the
[C]hildren due to her “psychological functioning, personality
traits, and intellectual difficulties.” This conclusion was based
upon the trial court’s perceived faults on the part of [Mother] in
relation to her family plan and court ordered goals. The fault-
based analysis constituted an abuse of the trial court’s discretion
as well as an error of law.
Mother’s Brief at 21 (citations omitted).
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In reviewing the evidence in support of termination under Section
2511(b), our Supreme Court has explained 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). We have further explained:
When 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.” In re E.M.,
533 Pa. 115, 620 A.2d 481, 484–85 (1993). 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 injury against the
damage that bond may cause if left intact.” In re T.S.M., 620 Pa.
602, 71 A.3d 251, 267 (2013).
In re Adoption of J.N.M., ___ A.3d ___, 2018 Pa. Super. 3, *5 (Pa. Super.
2018). Moreover, this Court has held:
“[T]he orphans’ court is not required by statute or precedent to
order a formal bonding evaluation be performed by an expert.” In
re K.K.R.–S., 958 A.2d 529, 533 (Pa. Super. 2008)). . . .
Furthermore, the orphans’ court is free to rely upon the
assessments of social workers and caseworkers. In re M.A.B.,
166 A.3d 434, 444 (Pa. Super. 2017).
Id. at *6.
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In assessing whether termination of Mother’s parental rights served the
Children’s needs and welfare, the orphans’ court opined as follows:
In this matter, the evidence amply supported the [c]ourt’s
conclusion that termination of Mother’s parental rights served the
Children’s needs and welfare. At the conclusion of the hearing, the
Children had been in placement for 22 months. I.J. was 14 years
old and H.O. was 8 years old.
The family therapist working with the family from October
2016 until July 2017 observed the Children’s behavior following
Mother’s angry outbursts. Following an incident in January 2017
where the police needed to be called to deescalate Mother’s
behavior, H.O. appeared “really afraid” and began to cry. I.J.
attempted to deescalate the situation and Mother threatened to
physically reprimand her. Following the final incident in July 2017,
the therapist described the Children as “really jumpy and
traumatized.”
Dr. Bliss conducted two interactional evaluations between
Mother and the Children, as well as individual evaluations of
Mother and the Children. Dr. Bliss described Mother’s interactions
with I.J. as typical of interactions between siblings, or peers, as
opposed to appropriate parent-child interactions. In contrast,
Mother’s interactions with H.O. would vary between Mother not
paying attention to H.O., to then suddenly engaging in “very
extreme hyperactive physical affection to an excessive degree.”
Dr. Bliss noted that Mother did not engage in any typical parenting
behaviors with either child.
Dr. Bliss testified that both Children love Mother and were
happy to spend time with her. However, Dr. Bliss opined that the
attachment between the Children and Mother was not a positive
attachment for a parent/child relationship. Dr. Bliss ultimately
concluded that “because Mother is not currently in a position to
care for her kids and it seems unlikely that she will be able to in
the near future due to her psychological functioning, personality
traits, and intellectual difficulties, it would be in the Children’s best
interest to proceed to permanency . . . and for termination of
parental rights.” In addition, Lonna Latham’s testimony supports
the [c]ourt’s conclusion that the Children’s existing bond with
[M]other is actually harmful to them. As there is no positive
parent-child bond to preserve, the [c]ourt was justified in
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concluding that termination of Mother’s rights serves the
Children’s needs and welfare.
Orphans’ Court Opinion, 12/22/17, at 6–7 (citations omitted).
Upon review, we reject Mother’s argument that the orphans’ court’s
conclusion was fault-based. Rather, it was based on consideration of
testimony provided by a caseworker, a therapist, and an expert, all of whom
witnessed firsthand Mother’s negative interaction with the Children. The CYF
caseworker and the Three Rivers Adoption Council therapist testified that
Mother’s behavior is not stable because of her mental health; when Mother
does not take her medication, she “becomes very violent, angry and
dangerous, and cannot be deescalated.” N.T., 7/11/17, at 85; see also N.T.,
7/11/17, at 18–33, 36–40, 69–74, 80–88 (describing Mother’s behavior and
its effect on the Children). According to these witnesses, Mother’s behaviors
manifested during her visits with the Children through her use of profanity,
raising her fist to I.J., making the Children feel unsafe, and slapping the
therapist. Id. at 20–21, 24, 33, 70, 85, 104–105. The caseworker also
testified that the Children have a comfortable relationship with their foster
mother; the caseworker had no concern that termination would be detrimental
to the Children. Id. at 88–89, 96, 100–102. The expert, Dr. Bliss, observed
that Mother and the Children did not have a positive parent-child relationship
and that Mother did not engage in any typical parenting behaviors with the
Children. N.T., 9/29/17, at 23, 28. This testimony established that Mother
was unable to provide love, comfort, security, and stability to the Children.
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Rather, her behavior compromised the Children’s “physical and emotional”
safety and caused them to be “jumpy and traumatized.” Id. at 39–40, 48.
We conclude that the orphans’ court properly discerned the effect on the
Children of permanently severing their unhealthy bond with Mother and
determined that termination would best serve their needs and welfare.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2018
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