In the Interest of: D.R., Appeal of: J.K.

J-S51003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: D.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.K., MOTHER :
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: No. 693 MDA 2019
Appeal from the Decree Entered March 28, 2019
In the Court of Common Pleas of Luzerne County
Orphans' Court at No(s): A-8786
IN THE INTEREST OF: S.L.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
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APPEAL OF: J.K., MOTHER :
:
:
:
: No. 694 MDA 2019
Appeal from the Decree Entered March 28, 2019
In the Court of Common Pleas of Luzerne County
Orphans' Court at No(s): A-8784
IN THE INTEREST OF: A.M.R., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.K., MOTHER :
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: No. 781 MDA 2019
Appeal from the Decree Entered March 28, 2019
In the Court of Common Pleas of Luzerne County
Orphans' Court at No(s): A-8782
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
J-S51003-19
MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 22, 2019
J.K. (“Mother”) appeals from the decrees entered March 28, 2019, that
granted the petition of the Luzerne County Children & Youth Services (“CYS”),
and involuntarily terminated her parental rights to her daughter, A.M.R. (born
April 2005), son D.R. (born January 2007), and daughter S.L.R. (born January
2008) (collectively “Children”).1 After careful review, we affirm.
The family first came to the attention of CYS in July 2011, when Children
were placed in foster care until September 2012. Children were reunited with
Mother at that time, but were again removed from her care and put in
placement from October 2014 through August 2016. At that time, they were
reunited with Mother, although CYS did not close out the case. Permanency
review hearings were held in April 2016 and October 2016.
On December 23, 2016, Mother refused urinalysis and admitted to the
use of Percocet, methamphetamine, Vicodin, and amphetamine. A shelter care
order was issued and Children were removed from her custody.
On January 4, 2017, Children were adjudicated dependent. Permanency
review and status hearings were held in April 2017, July 2017, December
2017, and June 2018. On October 4, 2018, CYS filed a petition seeking to
involuntarily terminate Mother’s parental rights to Children.
The court held hearings on the petition on January 15, 2019, and
January 18, 2019, and on Children’s goal change to adoption. On March 27,
____________________________________________
1 G.R. (“Father”) is deceased.
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2019, the court involuntarily terminated Mother’s parental rights pursuant to
23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).
Mother timely filed notices of appeal and statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother raises the following issue for our review:
A. Whether the trial court erred in terminating parental rights
and/or abused its discretion as testimony offered did not establish
by clear and convincing evidence the requirements of the Adoption
Act of 1980, October 15, P.L. 934, No. 163, 1, 23, Pa C.S.A.
Section 2511(a)(2)[, ](5) and (8) in that [Mother] has not caused
the [Children] to be without essential parental care, control, or
subsistence necessary because she has engaged in court-ordered
services that have remedied the circumstances that originally
gave rise to [Children’s] placement[?]
B. Whether the trial court erred in terminating parental rights
and/or abused its discretion in giving primary consideration to 23
Pa.C.S.A. Section 2511(b) to the developmental, physical, and
emotional needs and welfare of [Children] because it has been
demonstrated by testimony that there was insufficient evidentiary
support for the court’s decision that the best interests of
[Children] be served by terminating [Mother’s] parental rights[?]
See Mother’s Brief at 3 (unnecessary capitalization and proposed answer
omitted).
We review cases involving the termination of parental rights according
to the following standard.
The standard of review in termination of parental rights cases
requires appellate courts 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. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
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court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations
omitted).
Termination requires a bifurcated analysis:
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): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Here, the trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(1), (2), (5), and (8), as well as (b). 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), as well as Section 2511(b).
See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we
will focus our analysis on Section 2511(a)(2) and (b), which provides as
follows:
(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:
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(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for
his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 2511.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
See In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998). The grounds
for termination are not limited to affirmative misconduct, but concern parental
incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010). Parents are required to make diligent efforts toward the
reasonably prompt assumption of full parental duties. Id. Further, “evidence
concerning a parent’s ability to care for another child is irrelevant and
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inadmissible in a proceeding to terminate parental rights with regard to the
child at issue.” In re A.L.D., 797 A.2d 326, 338 (citations omitted).
Mother argues that CYS did not prove by clear and convincing evidence
that her rights should be terminated pursuant to subsection (a)(2) because
she has been involved in drug and alcohol treatment since the inception of the
case. See Mother’s Brief at 25. She contends that no further treatment was
ordered despite the fact that she returned positive screens and had self-
admitted relapses. See id. Mother further argues that she continued attending
trauma therapy throughout the life of the case. See id. at 26. Finally, Mother
argues that she could not complete her parenting classes because the provider
would not work with her due to her lack of stable housing. See id. Mother
argues that she did have housing and the parenting provider did not follow up
on that fact. See id. Mother therefore argues that she remedied the
circumstances leading to placement.
At the hearing on January 18, 2019, CYS presented the testimony of
Lynn Lesh, CYS caseworker. Mother testified on her own behalf and presented
the testimony of L.S., a friend and former coworker and roommate, and R.K.,
her own father and Children’s maternal grandfather. The dependency dockets
were admitted into the record with no objections.
Lynn Lesh, the caseworker for the family, testified that Children are
placed together in a foster home since March 2017 with T.F. and R.F. (“Foster
parents”). See N.T., 1/18/19, at 4. Children reside in the home with their
minor cousins, another foster child, and an adopted child. See id. Additionally,
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Children get along very well with the other children in the household. See id.
at 18. Children have been well assimilated into the foster family: their pictures
are all over the house; they have their rooms set up; they attend activities,
vacations, and family gatherings with foster parents; they perform chores
around the house. See id. at 4-5. Foster parents fill all of the physical needs
of Children by providing shelter, clothing, food, and taking them to medical
and counseling appointments; providing for their developmental needs with
extra-curricular activities; and addressing their emotional needs by providing
comfort to Children, loving them, praising them, and disciplining them when
necessary. See id. at 5-6.
Foster parents provide Children with structure, which is necessary, as
all three Children have been diagnosed with post-traumatic stress disorder
(PTSD), attention deficit hyperactive disorder (ADHD), and oppositional
defiant disorder (ODD). See id. at 6, 19. Previously, Mother would call Lesh
several times a week asking her to get Children to go to bed, because they
would not, and Mother was afraid they would be evicted from the shelter in
which they were residing. See id. at 21-22.
Paul Dorang, a case manager for Family Service Association testified as
to his efforts to help Mother resolve her issues and reunify her with her
children. See Mother’s Brief, at 6. He worked with Mother in 2017. See id.
Dorang observed Mother’s visits with Children and opined that they were
“chaotic.” Id. at 7.He believed that the difficulties in the visits arose from
Mother’s inability to set boundaries or control the Children’s behavior, but
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acknowledged that the Children’s traumatic experiences played a role in their
behavior. See id. at 7-8.
Dorang stated that Mother did not successfully complete the program
and her case was closed due to noncompliance, lack of progress, and failure
to maintain sobriety. See id. at 7.
Consistent with the foregoing, we discern no error in the trial court’s
finding that clear and convincing evidence supported the termination of
Mother’s parental rights pursuant to Section 2511(a)(2), based upon Mother’s
continued incapacity – namely, her inability to complete her goals for
reunification over the twenty-five months that Children were placed – that
resulted in Children being without essential parental care, the cause of which
“cannot or will not be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d
at 1117.
Next, we must consider whether Children’s needs and welfare will be
met by termination pursuant to Subsection (b). See Z.P., 994 A.2d at 1121.
“In this context, the court must take into account whether a bond exists
between child and parent, and whether termination would destroy an existing,
necessary and beneficial relationship.” Id. The court is not required to use
expert testimony, and social workers and caseworkers may offer evaluations
as well. Id. Ultimately, the concern is the needs and welfare of a child. Id.We have stated:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
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dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Additionally, the court may emphasize the safety
needs of a child. See In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008). “[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).
Mother argues that the Agency has not proven that it would not be
detrimental to sever the parent-child bond. See Mother’s Brief at 29. She
contends that she never had an issue parenting Children and that there were
no safety concerns regarding Children, and that Children wish to return home.
Id.Lesh testified that Mother and Children visit twice a week at the Agency.
See N.T., 1/18/19 at 6. Although they enjoy spending time with Mother, the
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bond is more of a “companionship bond” where Mother has no parental role.
Id. Children do not go to Mother for things they need, they go to their foster
mother. See id. In contrast, Children are bonded with their foster parents and
that bond is parental. See id. at 7.
Since being placed with Foster parents, Children’s grades are
phenomenal and they have a comfortable structure in their home. See id. at
8-9. They have made friends in school and attend birthday parties. See id.
Foster mother is attempting to teach Children responsibility to take their own
medication and dress appropriately. See id. at 12.
Lesh did not believe the termination of Mother’s parental rights would
have a detrimental effect on the minor Children, because termination would
continue to provide them with the structure, stability, and safety that they
have right now. See id. at 7-8. Children indicated to Lesh that their “biggest
fear” was that if they went back to Mother, they would again be removed and
have to start over in another placement as they had done many times before.
Id. at 8. Children would like to be adopted, but maintain contact with Mother,
and foster parents are willing to have open contact with Mother. See id. at
13-14, 19.
Mother testified that Children love her house, their rooms, and that they
constantly ask if they can come home. See id. at 23. Mother stated she has
re-done Children’s rooms for them. See id.
L.S. testified that she met Mother at a previous job in 2010, and has
known her nine years. See id. at 25. They became friends, and L.S. lived with
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Mother and Children for approximately six months in 2011. See id. L.S.
testified that Mother always had good interaction with Children and was very
patient with them when they “got hyper,” and was compassionate and caring.
Id. at 26. L.S. also accompanied Mother to several visits with Children after
they had been removed from Mother’s custody, and the visits went well. See
id. She believed it was in Children’s best interest to be with their mother, and
that there were no safety concerns in Mother’s home. See id. at 27-28.
L.S. stated that she knew Mother was previously addicted to drugs, but
has sought help for her addiction and was prescribed pain medication by
doctors. See id. at 28-29. L.S. was aware of Mother’s methamphetamine use
as recently as December 2018. See id. at 29. L.S. admitted it would be a
safety concern if Mother used drugs in front of Children, but insisted that
Mother was not currently using drugs. See id. at 30-31.
R.K. testified that he is Mother’s father and Children’s maternal
grandfather, and that he had a good relationship with Children when Mother
had custody. See id. at 35. He testified that, from what he observed, Mother
was a good mother. See id. Children were always clothed, fed, and in school,
and, during holidays, Mother went out of her way to make sure they were
taken care of. See id. at 36. R.K. testified he is the custodian of Mother’s older
child, A.K., who is eighteen years old. See id. at 39. A.K. came into R.K.’s
custody when he was five years old, because Mother was busy raising the
other three Children. See id. R.K. was aware that Mother was using illegal
drugs in the past, but that she was not using anymore. See id. at 41-43. The
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last time he saw Children was December 2018, and it had been a few years
before that since he had last seen them. See id.
Here, we can find no fault in the trial court’s assessment of the evidence
before it. The court credited Lesh’s testimony that showed that termination
best served Children’s needs and welfare. Further, the evidence was sufficient
to establish that Children’s emotional, physical, and developmental needs are
taken care of in their foster parents’ home. In that home, they have a loving,
stable family where they were doing well in school and are disciplined
appropriately.
Testimony established that the bond Children have with Mother is not
parental so much as it is that of companions or friends, and that the parental
bond Children currently have is with their foster parents. Foster parents are
additionally open to allowing continued contact between Mother and Children.
Under these circumstances, the trial court was justified in finding that Children
would not be harmed by termination of their bond with Mother. All of the
testimony established that, for Children to know any sort of permanency or
stability, Mother’s rights must be terminated.
Accordingly, clear and convincing evidence supports the trial court’s
termination of Mother’s parental rights under Section 2511(a)(2) as well as
the Section 2511(b) finding that any bond between Children and Mother is
outweighed by the fact that adoption would best serve Children’s needs and
welfare. See Z.P., 994 A.2d at 1126-27; K.Z.S., 946 A.2d at 763.
Decrees affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2019
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