In Re: B.B., a minor, Appeal of: M.W.

J-S54044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.B., a Minor Child IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.W., Natural Mother No. 382 WDA 2016
Appeal from the Order entered February 19, 2016,
in the Court of Common Pleas of Fayette County,
Orphans’ Court, at No(s): 19 Adopt 2014
IN RE: ADOPTION OF: N.W., a Minor IN THE SUPERIOR COURT OF
Child PENNSYLVANIA
APPEAL OF: M.W., Natural Mother No. 383 WDA 2016
Appeal from the Order entered February 19, 2016,
in the Court of Common Pleas of Fayette County,
Orphans’ Court, at No(s): 20 Adopt 2014
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2016
M.W. (“Mother”) appeals from the Orders granting Petitions filed by
Fayette County Children and Youth Services (“CYS” or the “Agency”) to
involuntarily terminate her parental rights to her dependent, minor children,
B.B. (a male born in February 2012) and N.W. (a female born in July 2009)
(collectively, “the Children”), pursuant to the Adoption Act, 23 Pa.C.S.A.
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§ 2511(a)(2), (5), (8), and (b).1 We affirm.
The trial court set forth the relevant factual background and
procedural history of this case in two Opinions, which we adopt as though
fully set forth herein. See Trial Court Opinion (Adoption of B.B.), 2/10/16,
at 1-5; and Trial Court Opinion (Adoption of N.W.), 2/10/16, at 1-6.
On February 19, 2016, the trial court entered the Orders involuntarily
terminating Mother’s parental rights to the Children. On March 11, 2016,
Mother timely filed Notices of Appeal along with Concise Statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother presents the following issues for our review:
1. Whether the Trial Court erred in finding that … [CYS] met [its]
burden by clear and convincing evidence, with regard to 23
Pa.C.S.A. [§] 2511(a)(2), (5), and (8)[,] sufficient to support
termination of Mother’s parental rights[?]
2. Whether the Trial Court erred in failing to consider the
progress that Mother had made on her family service plan and
the recommendations of the services provider, Family
Solutions[,] to return the [C]hildren to Mother[?]
3. Whether the Trial Court erred in failing to consider [] Mother’s
ability to provide essential parental care for the [Children,] when
Mother has a third child that remains in her custody and care[?]
4. Whether the conditions that led to the original removal and
placement of the [] [C]hildren continue to exist[?]
1
Also in the Orders, the trial court terminated the parental rights of (1) J.B.,
the father of B.B.; and (2) R.H., the father of N.W. R.H. has not filed an
appeal from the termination of his parental rights, nor is he a party to the
present appeal. J.B. has filed a separate appeal from the termination of his
parental rights at Docket No. 391 WDA 2016, which is listed before this
panel.
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5. Whether [] Mother’s rights were terminated simply because of
the behaviors of the [f]ather, and not because of anything []
Mother had done or not done[?]
6. Whether [CYS] purposefully thwarted [] Mother’s ability to
make progress on her family service plan?
7. Whether [CYS] caused delay and failed to provide services
and assistance to Mother as required, which in turn prevented []
Mother from remedying the conditions that led to placement
within a reasonable period of time?
8. Whether [] Mother had remedied the conditions that led to
placement and removal within a reasonable period of time, but
[CYS], nonetheless[,] failed to work toward reunification of the
[Children] with Mother?
9. Whether the Trial Court erred in granting this termination
when the testimony from [CYS] is that the [C]hildren will be
separated from their siblings, after the adoption proceeding?
10. Whether the Trial Court erred in finding that [] termination
would be in the [] Children’s best interest, considering all of the
relevant factors?
Mother’s Brief at 4.2
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. As has been often
2
Mother stated her issues on appeal somewhat differently in her Concise
Statements, in that each concise statement pertained to a single child. We,
nevertheless, find her issues preserved for our review.
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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 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some internal
citations omitted).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. 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).
Moreover, we have explained that
[t]he standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (citation omitted).
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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), along with a consideration of section 2511(b). See In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc). In the instant case, the
trial court terminated Mother’s parental rights under section 2511(a)(2), (5),
(8), and (b). We will focus on subsection 2511(a)(8) and (b), which provide
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:
***
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the
date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist
and termination of parental rights would best serve the
needs and welfare of the child.
***
(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.
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23 Pa.C.S.A. § 2511(a)(8), (b).
We will first address Mother’s first nine, related issues together, insofar
as they concern the trial court’s determination that termination of her
parental rights was warranted under section 2511(a)(8).
[Subsection] (a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the [child’s] removal by the
court. Once the 12-month period has been established, the
court must next determine whether the conditions that led to the
[child’s] removal continue to exist, despite the reasonable good
faith efforts of [the Agency] supplied over a realistic time period.
Termination under Section 2511(a)(8) does not require the court
to evaluate a parent’s current willingness or ability to remedy
the conditions that initially caused placement or the availability
or efficacy of [Agency] services.
In re J.F.M., 71 A.3d 989, 993 (Pa. Super. 2013) (citation omitted).
In her first two issues, Mother argues that “[d]espite the fact that the
[C]hildren have been dependent for at least the past twelve months, [CYS]
has failed to establish that the conditions which led to placement have not
been eliminated, as [CYS] has admitted that Mother did complete her initial
[family] service plan [“FSP”], alleviating the issues which led to the initial
placement (alleged abuse by [Mother’s] paramour).” Mother’s Brief at 12.
Mother argues that the trial court failed to consider the evidence that she
had taken substantial steps toward satisfying her FSP objectives and the
recommendation of the services provider, Family Solutions, that the
placement goal for the Children should be reunification. Id. at 14. In her
third issue, Mother asserts that the trial court failed to consider her ability to
provide essential parental care for the Children, pointing out that she has a
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third child who remains in her custody and care. Id. at 15. In her fourth
issue, Mother alleges that the trial court erroneously failed to acknowledge
that the conditions that led to the original removal and placement of the
Children no longer exist. Id. at 15-16. In her fifth issue, Mother contends
that the trial court improperly terminated her rights simply because of the
behavior of the Children’s respective fathers, and not because of any action
or failure on her part. Id. at 16-17.
In her sixth issue, Mother asserts that CYS purposefully thwarted her
ability to make progress on her FSP objectives by failing to update the FSP
and to heed the recommendations of her service providers to pursue
reunification between Mother and the Children. Id. In her seventh issue,
Mother contends that CYS caused delay and failed to provide services and
assistance to her as required. Id. She further asserts that CYS’s failure
prevented her from completing her FSP requirements within a reasonable
time. Id. In her eighth issue, Mother alternatively argues that she had
remedied, within a reasonable time, the conditions that led to the placement
and removal of the Children, but CYS failed to work toward reunification of
the Children with her. Id. In her ninth issue, Mother contends the trial
court erred in terminating her parental rights where the testimony from CYS
established that the Children will be separated from their siblings after the
adoption proceeding. Id. at 18-19.
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In its Opinions, the trial court concisely addressed and rejected
Mother’s above-mentioned claims, determining that CYS presented clear and
convincing evidence that termination of Mother’s parental rights to the
Children under section 2511(a)(8) was warranted. See Trial Court Opinion
(B.B.), 2/10/16, at 7-9; Trial Court Opinion (N.W.), 2/10/16, at 9-11. The
court’s factual findings are supported by the record, and its legal conclusions
are not the result of an error of law or an abuse of discretion. In re
Adoption of S.P., supra. Accordingly, we rely on the trial court’s rationale
in rejecting Mother’s first nine issues, and in determining that the
requirements of subsection 2511(a)(8) have been met by clear and
convincing evidence. See Trial Court Opinion (B.B.), 2/10/16, at 7-9; Trial
Court Opinion (N.W.), 2/10/16, at 9-11.3
Next, we review the termination of Mother’s parental rights under
section 2511(b). In her tenth and final issue, Mother argues that the trial
court erred in finding that termination would be in the best interest of the
Children. Mother’s Brief at 19.
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).
3
With regard to Mother’s contention that CYS did not make reasonable
efforts to provide her with services to avoid the termination of her parental
rights, it is well established that a trial court is not required to consider
reasonable efforts in relation to a decision to terminate parental rights. In
the Interest of: D.C.D., 105 A.3d 662, 675 (Pa. 2014). Thus, Mother’s
argument does not entitle her to relief.
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[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).
In conducting a bonding analysis, the court is not required to use
expert testimony, but may rely on the testimony of social workers and
caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). This
Court has also has observed that no bond worth preserving is formed
between a child and a natural parent where the child has been in foster care
for most of the child’s life, and the resulting bond with the natural parent is
attenuated. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Moreover,
it is appropriate to consider a child’s bond with his or her foster parent. See
In re: T.S.M., 71 A.3d at 268.
In addition, in In re: T.S.M., our Supreme Court set forth the process
for evaluation of the existing bonds between a parent and a child, and the
necessity for the court to focus on concerns of an unhealthy attachment and
the availability of an adoptive home. The Supreme Court stated the
following:
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[C]ontradictory considerations exist as to whether termination
will benefit the needs and welfare of a child who has a strong but
unhealthy bond to his biological parent, especially considering
the existence or lack thereof of bonds to a pre-adoptive family.
As with dependency determinations, we emphasize that the law
regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests
and the needs and welfare of the particular children involved.
See, e.g., R.J.T., [9 A.3d at 1190] (holding that statutory
criteria of whether child has been in care for fifteen of the prior
twenty-two months should not be viewed as a “litmus test” but
rather as merely one of many factors in considering goal
change). Obviously, 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.
Similarly, while termination of parental rights generally should
not be granted unless adoptive parents are waiting to take a
child into a safe and loving home, termination may be necessary
for the child’s needs and welfare in cases where the child’s
parental bond is impeding the search and placement with a
permanent adoptive home.
[The Adoption and Safe Families Act of 1997, P.L. 105-89]
ASFA[,] was enacted to combat the problem of foster care drift,
where children … are shuttled from one foster home to another,
waiting for their parents to demonstrate their ability to care for
the children. See In re R.J.T., 9 A.3d at 1186; In re Adoption
of S.E.G., [901 A.2d 1017, 1019 (Pa. 2006)]. This drift was the
unfortunate byproduct of the system’s focus on reuniting
children with their biological parents, even in situations where it
was clear that the parents would be unable to parent in any
reasonable period of time. Following ASFA, Pennsylvania
adopted a dual focus of reunification and adoption, with the goal
of finding permanency for children in less than two years, absent
compelling reasons. See[] 42 Pa.C.S. § 6301(b)(1); 42 Pa.C.S.
§ 6351(f)(9) (requiring courts to determine whether an agency
has filed a termination of parental rights petition if the child has
been in placement for fifteen of the last twenty-two months).
In re: T.S.M., 71 A.3d at 268-69.
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In its Opinions, the trial court addressed Mother’s challenge concerning
section 2511(b) and determined that CYS presented clear and convincing
evidence that termination of Mother’s parental rights would best serve the
Children’s needs and welfare. See Trial Court Opinion (B.B.), 2/10/16, at 9-
12; Trial Court Opinion (N.W.), 2/10/16, at 11-15. Again, the trial court’s
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., supra. It is well-settled that “we will not toll the
well-being and permanency of [a child] indefinitely.” In re Adoption of
C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa.
Super. 2008) (noting 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.”)). We conclude that Mother’s argument regarding section
2511(b) lacks merit, and, therefore, affirm the trial court’s Order, with
regard to subsection (b), based on the trial court’s Opinions. See Trial Court
Opinion (B.B.), 2/10/16, at 9-13; Trial Court Opinion (N.W.), 2/10/16, at
11-15.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2016
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Circulated 08/16/2016 11:18 AM
IN THE COURT OF COMMON PLEAS OF FAYETIE COUNTY, PENNSYLVANIA
FILED
COURTDIVISl<:'i~t'~'~i~ 1:56:os _PM
ORPHANS'
IN RE:ADOPTION
OF N--W- ~:~Gl'.:, IE~: OF k!ILL.'.:,
FAYETTE COUNTY
.20£~ PENNSVL lJAN rn
No. 20 ADOPT .201'5 Inst Num: 20160173:
Anthony S. Dedo/a, Jr., Esq., for Fayette County Children and Youth Services
Wendy L. O'Brien, Esq., for M.-vi.,... Natural Mother of /\JillilaW..
R..,,.H .. pro se, Natural Father of N..,. ~ ,,
Sarah E. Connelly, Esq., for N.-w ..
c..,..) '1
LESKINEN, J.
I-" Cf)
w
Before this Court is the Petition for Involuntary Termination of Parental Rights,
hereinafter "Petition," filed by Petitioner, Fayette County Children and Youth Services,
,~·.
hereinafter "FCCYS," on May 14, 2015. Petition was filed on behalf of N-W· a
minor child, and it seeks to terminate, pursuant to 23 Pa.C.S.A. § 2511 (a)(2), (5), and
(8), the parental rights of N ... 's biological father, R-H•. hereinafter "Father," and
Nllll's biological mother, M-W- hereinafter "Mother." A number of hearings
,,...,
were held on the matter, including June 30, 2014; August 8, 2014; December 5, 2014;
December 15, 2014; and January 16, 2015. This Court heard testimony from FCCYS
and Mother; Father had notice of these proceedings, but was neither present nor
represented at the hearings.1 Additionally, FCCYS submitted a brief on August 25,
2015, in support of termination, and Mother submitted a brief dated October 27, 2015, in
opposition to the termination; Father did not submit a brief.
1
Father is currently serving a 15 to 40 year sentence at SCI Mahanoy in Frackville, PA. Anthony Dedola,
attorney for FCCYS, stated on the record that Father has been properly served at SCI Mahoney;
however, Father did not respond. See Trial Tr. 5, Aug. 8, 2014.
1
After consideration of the record and current case law, this Court hereby grants
the FCCYS Petition for Involuntary Termination of Parental Rights.
BACKGROUND
The subject child is N .. A••w•. born on June 10, 2009. As a result of
a dependency hearing, N ... was adjudicated dependent and removed from the
custody of Mother and her paramour, ~.I.•• B•••· hereinafter "Bo ," and
placed in foster care. She currently resides with her foster parents, J•and K•
8 sn , hereinafter "Foster Parents," with B •••. , her younger sibling.2 According
to FCCYS and witnesses presented at hearings, N-.has a bond with her foster
parents. Foster Parents have expressed their intention to adopt N .. if the FCCYS
Petition is granted. At the time she was removed from the home, N- lived with
Mother and Bo•••· Father is currently serving a 15 to 40 year sentence at SCI
Mahoney in Frackville, PA, for numerous sex offenses against K•• w•. another
minor child of Mother,3 which occurred _()n June 9, 2009. Father has not demonstrated
any attempt to maintain contact with N- up to the filing of the Petition, nor has he
shown any interest in these proceedings.
FCCYS became involved with N-on September 10, 2011, when they
received a Child Protective Services report indicating physical abuse and neglect.
Investigation revealed that N- had numerous bruises and fractures about her body,
2
BS: J I Bl iuai? is the child of Mother and Bo.... The proceedings referenced in this opinion
pertain to both children; however, the Petition for Involuntary Termination of Parental rights of B t j 8
B , In re Adoption of B · · Bal IP, 19 ADOPT 2015, are addressed in a separate opinion.
3
w•
Prior to the filing of this Petition, Klllilllli W• was adjudicated dependent, and placed with her natural
father; K.... is not an interested party in this case. See Trial Tr. 59, Dec. 5, 2014.
2
along with other various injuries.4 There was also an indication of previous abuse of
Nicole.5 Through their investigation, FCCYS determined that Mother and Bo•••
were the abusers. In addition to the abuse and neglect of N-. Bo was
indicated in a Child Protective Services referral for abuse of K•aw• Bois••
was accused of slamming that child's head on the kitchen counter for allegedly spilling
toothpaste. 80••1 was criminally convicted of the offense, which occurred on
January 26, 2012. There were also complaints about the condition of the home.
Shortly thereafter, the children were removed from Mother and Bo•••·s care as a
result of the aforementioned dependency hearing.
As part of their Family Service Plan, Mother and Bo••a were required to
attend counseling, maintain appropriate housing, and to cooperate with FCCYS.
Visitation began at FCCYS, and was gradually increased to include unsupervised home
visitations. Early in 2013, Barbara Wright, the family's caseworker, acknowledged that
Mother and Bo J I had made progres~ toward permanency, with the possibility of
returning N- to the home; however, N ... claimed that in June and August of 2013,
during two of the unsupervised home visits, Mother and Bo•••had inappropriately
touched her.6 While these claims were not founded, the unsupervised home visits were
discontinued. Since June 2013, only supervised visits have been conducted, either with
FCCYS or through Family Solutions, a private counseling firm.
4
Injuries to the child included small, circular bruises to the head, chest, legs and back; posterior right rib
fractures; poor weight gain; elevated liver enzymes; hair loss; and evidence of the drug Seroquel in her
system. See Petition for Involuntary Termination of Parental Rights, dated May 14, 2014.
5
According to FCCYS, medical records indicated that prior concerns of inappropriate bruising of the child
occurred in April 2011. See Petition for Involuntary Termination of Parental Rights, dated May 14, 2014.
6
N.-accused Mother of spanking her in her vaginal area during a home visit in June 2013. Trial Tr.
1D7, Aug. 8, 2014. A second allegation was levied against Mother and Bo I II a on August 1, 2013.
Trial Tr. 108, Aug. 8, 2014. Neither incident of suspected child abuse was founded by FCCYS; however,
concern remained as to why Nlllllllwould make such allegations in the first place. Id.
3
In addition to the issues identified at the beginning of the dependency, other
issues with Mother and Ba••• were subsequently identified. As a result of his
conviction for abusing K•• W •. the older child of Mother, Ba••t was placed on
probation; however, 80••1thas continually violated his probation as a result of
numerous failed drug tests. Mother has also been suspected by FCCYS of "self-
medicating" her mental and emotional issues with the use of marijuana, and had
numerous positive tests. As of the date of the last hearing, there were continuing
concerns regarding drug use and drug-seeking behaviors by Mother and Bo••t.7
additionally, Mother was suspected of seeking out prescription drugs for Bo••t8
and 8- has been suspected of actively avoiding drug testing by FCCYS,9
Furthermore, FCCYS continued to have concerns with certain conditions of the
Family Service Plan that were not being met by Mother and Bo••· There were
numerous complaints of missed mental health appointments, missed visitations, and the
family's housing situation remained a concern.'? When Mother and Bo-were
unsatisfied with this characterization by Ms. Wright, they were given the "rare"
opportunity by FCCYS to change Caseworkers. However, some of the problems
persisted after the change was made. Maria Radel, the family's new FCCYS
7
On November 21, 2014, six days after being released from a rehabilitation facility, Bo.-... received a
prescription for 84 tablets of hydrocodone; during his visit, he did not disclose that he had recently been
released from rehab, and gave false information (he stated that he worked as a Diesel Mechanic when
he, in fact, was employed at McDonald's). See Trial Tr. 23-25; Dec. 5, 2014.
8
On December 30, 2014, Mother obtained a prescription for Vicodin; she allegedly exhausted the supply
herself. However, on January 5, 2015, Mother did not test positive during a drug test administered by
FCCYS; Mother denies giving the medication to Bo.... but admitted to not being forthright with
FCCYS about the prescription. See Trial Tr. 106-109; Jan. 16, 2015 (afternoon).
9
This includes an incident where Bo I IC actively avoided drug testing at his home. It was alleged that
on December 2, 2014, two Caseworkers from FCCYS (including Ms. Radel) contacted Mother and
Bo at their home in order to administer a drug test. At one point, Bo I I 1 allegedly asked one of
the Caseworkers to step outside momentarily; however, Bo 11 I O got into a vehicle and left the area.
See Trial Tr. 157-158; Dec. 5, 2014.
10
According to Justin Varney of Family Solutions, Mother and Bo... had 4 different addresses
between October 2012 and the hearing on August 8, 2014.
4
Caseworker, continued to report issues regarding missed appointments by Mother and
Bo , which includes mental health counseling and drug and alcohol counseling.
Mother and Bo,••&'s missed appointments are concerning not only for their own
progress, but for the possibility of success of N .. 's therapy and counseling .•
As a result of her traumatic history, N .. suffers from various emotional,
behavioral, and psychological problems. N .. has been diagnosed with Post
Traumatic Stress Disorder, Reactive Attachment Disorder, and phonological disorders
(i.e., language issues). NIIIIexhibits a multitude of behavioral issues, which includes
sexualized behavior and "acting out" sexually. As a result of these disorders, N- has
trouble adjusting to normal behavior at home and in daycare, and requires a great deal
of therapy and counseling to try and alleviate these issues; Foster Parents have
attended counseling and training in order to do so. N ... is said to respond well to
Foster Parents, and benefits from their structured home and their patience with her
conditions. According to testimony of caseworkers from FCCYS and Family Solutions,
Mother has been unable to handle N .... s aggressive behaviors during visits. In fact,
N .. s behavior was said to have gotten worse in the year prior to the hearings, and
that these behaviors were exacerbated by home visits with Mother and Bod lt&.11
In addition to continuing concerns regarding missed appointments for treatment
and counseling, as well as drug-seeking behavior and drug abuse by Bo I I J, the
apparent lack of interaction between Mother and Child during visitation is concerning.12
According to her psychologist, Dr. John Carosso, N-requires a "stable, loving,
·--:--"'-·- .
11
See Trial Tr. 58-59; Aug. 8, 2014.
12
On January 9, 2015, Elizabeth Giacchetti, Social Worker for CPP Behavioral Health, observed a
supervised visitation of Nicole and Mother, and noted her concerns. According to Ms. Giacchetti, there
was very little interaction between Mother and Child, and poor eye contact. See Trial Tr. 31-35, Jan. i6,
2015 (morning); see also Ex. B. • ·
5
consistent environment where she can begin to heal." FCCYS believes that this
environment exists in the care of Foster Parents, and questions whether such an
environment will be achievable in Mother's care. As a result, FCCYS believes that in
the best interests of N-, she should.remain wit~ Foster Parents.
At the conclusion of the hearing, Attorney Sarah Connelly, whom the Court
appointed to represent the best interests of the child, recommended termination of
Mother and Father's parental rights.
DISCUSSION
Under Pennsylvania law, "In termination cases, the burden is upon [the party
seeking termination] to prove by clear and convincing evidence that [his or her] asserted
grounds for seeking the termination of parental rights are valid." In re T.D., 949 A.2d
- .
910, 914 (Pa. Super. 2008) (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super.
2003)).
The Superior Court has further stated:
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." 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.
Id.
Thus, Petitioner, FCCYS, has the burden to prove, by clear and convincing
evidence, that the Court should terminate the parental rights of Respondents. Under
the statute, grounds for termination, in relevant part, are as follows:
6
§ 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.
***
(5) 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 the child.
***
(8) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency, 12 months or more have •
elapsed from the date of removal or placement, the conditions which led to
the removal or placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of the child.
(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. Stat. and Cons. Stat. Ann. § 2511 (West).
7
The statute sets forth a two-part analysis for termination, which the Superior
Court has explained as such:
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 Adoption of C.J.P., 114 A.3d 1046, 1049-50 (Pa. Super. 2015).
PARENTAL RIGHTS OF FATHER
The PA Supreme Court has held that "incarceration, while not a litmus test for
termination, can be determinative of the question of whether a parent is incapable of
providing "essential parental care, control or subsistence" ... [and] highly relevant to
whether "the conditions and causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied by the parent," sufficient to provide grounds for termination
pursuant to 23 Pa.C.S.A. § 2511 (a)(2)." In re Adoption of S.P., 47 A.3d 817, 830 (Pa.
2012). Additionally, when deciding whether to terminate rights under§ 2511 (a)(2),
Courts can consider other factors relating to the incarceration; this includes uncertainty
of the parent's parole date, and the lack of a bond between parent and child as a result
of the period of imprisonment. Id. at 831.
Father is currently incarcerated at SCI Mahoney, and is serving a period of
incarceration of 15 to 40 years. In addition to the nature of the offenses that caused his
current incapacity, it is unlikely that Father will be released from prison in the near
8
future; therefore, he will be unavailable for most, if not all of the time in which Nicole
requires his "parental care, control or subsistence." According to FCCYS, there has
been no evidence of a bond between Father and N .. , no contact between Father and
N-, and Father has not demonstrated his intent to preserve his parental rights while
incarcerated. Furthermore, Father has not requested counsel, and has not responded
to repeated efforts by FCCYS to allow him to participate in termination proceedings.
Because this Court has determined FCCYS has met their burden under§
2511 (a)(2), we must consider whether termination is proper under§ 2511 (b); in the
present case, termination of Father's p~,``ntal rights is appropriate. Due to the nature of
Father's incarceration, the length of his current sentence and his lack of demonstrated
intent to remain a part of N~s life, it is apparent that "termination of parental rights
would best serve the developmental, physical, and emotional needs and welfare of the
child." In re Adoption of J.M., 991 A.2d 3?1, 324 (Pa. Super. 2010). Thus, this Court
concludes that no parent-child relationship exists between Father and N..a, and that
termination of Father's parental rights will have no detrimental effect on the child.
PARENTAL RIGHTS OF MOTHER
Mother contends that while N``as been in placement for over 12 months,
FCCYS has failed to establish that the conditions which led to placement have not been
eliminated;13 this Court disagrees. As part of N .. 's Family Service Plan, first
implemented when N-was adjudicated dependent, Mother was required to attend
mental health counseling, maintain appropriate housing, and to cooperate with FCCYS;
additionally, there were concerns with Mother's ability to be an appropriate parent, as
13
See Respondent's Brief in Opposition to Inv. Termination of Parental Rights, Oct. 27, 2015.
9
well as concerns with Mother and Bosl di e's abuse of N ..... It is admitted by FCCYS
that in early 2013, Mother had made progress toward getting N .. back into their
home, and unsupervised home visitation had begun. However, reunification w.as never
completed; furthermore, according to FCCYS, some of the conditions that led to the
initial placement still exist. This includes Mother's failure to regularly attend mental
health counseling; Mother and Baul II 's failure t? cooperate with FCCYS in
submitting to random drug testing and attending counseling; and concerns regarding
appropriate housing and deplorable conditions of the home. Additionally, there remain
concerns whether Bo J I R's drug use and Mother and Bo gl I r's drug-seeking
14
behavior make it impossible for them to provide a safe home for N ...
Even if Mother was able to prove that even most of the conditions that led to
placement were remedied, it would not bar involuntary termination under§ 25t1 (a)(8).
The Superior Court has held that "where a parent has addressed some of the conditions
that led to a child's removal, but other conditions st,jll exist, this element may be deemed
to be satisfied." In re D.A. T., 91 A.3d 197, 205-206 (Pa. Super. 2014); see also In re
C.L. G., 956 A.2d 999, 1005 (Pa. Super. 2008) ("[A]lthough Mother exhibited substantial
progress in meeting the Agency's objectives, she ultimately was unable to care for
C.L.G. because, twelve months later, she could notprovide the requisite parenting and
adequate housing."); see also In re S.H., 879 A.2d 802, 806 (Pa. Super. 2005) (holding
mother made significant progress as to certain conditions, but conditions that led to
removal continued to exist).
14
One of the reasons for placement, as stated in the Petition, was the presence of the drug Seroquel in
N ... 's system; FCCYS alleges that Mother and Bo J I a continue to be irresponsible with drugs and
prescribed medications.
10
Mother contends that FCCYS is not interested in reunification between Mother
. .
and N..- because Mother continues to live with Bo J I a. While Mother agreed at
the hearing dated January 16, 2015, that her chosen suitors have led to the placement
of her children, she nevertheless contends that nothing in her Family Service Plan
prevents her from living with Bo 11 lJ •· In support of Mother's position, FCCYS
acknowledged that they are unable to tell Mother "who she can or cannot live with." It is
clear, however, that FCCYS has a genuine concern for N .... if she were to be placed
into the care of Mother if Boll: I is present in the home. It is important to note that
the reasons for initial ,placement of N-.. included a founded case of child abuse
against Mother and Bo•••:; furthermore, Bo•-• has a criminal conviction for
subsequently abusing K--w•. another child of Mother. According to testimony,
Bo has not been cooperative with Fayette County Adult Probation, and has
tested positive for illegal drugs on numerous occasions; additionally, Bo•••has not
cooperated with FCCYS. Based on the testimony heard by this Court, it is apparent that
the continued presence of Bo•••confirms that one of the "conditions which led to
the removal or placement of the child" under§ 2511 (a)(8) still exists. Thus, FCCYS has
met their burden, by clear and convincing evidence, that 12 months or more have
elapsed from the date of N~s placement into foster care, the conditions which led to
her placement continue to exist and termination of parental rights would best serve
N...-'s needs and welfare.
Because this Court has determined that FCCYS has met their burden under
§ 2511 (a)(5) and § 2511 (a)(8), we must now consider whether termination is proper
under§ 2511(b). § 2511(b) "focuses on whether termination of parental rights would
11
best serve the developmental, physical, and emotional needs and welfare of the child."
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010). Furthermore, the Superior
Court has explained:
[l]n addition to a bond examination, the trialcourt 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 N.A.M., 33 A.3q 95, 103 (Ra. Super. 2911).
The Supreme Court of Pennsylvania makes it clear that "the law regarding
termination of parental rights should not be applied mechanically but instead always
with an eye to the best interests and the needs and welfare of the particular children
involved." In re T.S.M., 71 A.3d 251, 268-269 (Pa.,2013). In deciding whether it is
appropriate to terminate rights, "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
the damage this will cause "must be weighed against the damage that bond may cause
if left intact." Id. at 269.
In the present case, the testimony establishes that N...- has love, comfort,
security, and stability with Foster Parents, who have been N_...s primary guardians
for nearly four years. N..._ continues to receive services to help alleviate her severe
mental and emotional disabilities; based on the testimony of Nllllllll's numerous
providers, it will be necessary for N-to receive these services for the foreseeable
future. Throughout the period of placement, Foster Parents have ensured that Nillila
receives the care she needs, with the support of FCCYS and Family Solutions. It is
12
apparent that N.- is currently residing in a caring and stable home with Foster
Parents, and has a great opportunity to heal; this Court heard no testimony suggesting
otherwise. Furthermore, Foster Parents have made it clear to FCCYS that their
intention is to adopt N ...
There was conflicting testimony regarding the significance of the bond between
Mother and N-; however, it is clear that any adverse effects of breaking any bond
between Mother and N111119 are outweighed by the need for Nilllll9to have permanency
in a "stable, loving, consistent environment where she can begin to heal." According to
testimony, N-.. is prone to outbursts, which worsen when she is in the care of Mother;
Mother has not been successful at controlling Ntlla's behavior. Although parenting
issues were identified with Mother, these issues have continued to be identified by
FCCYS and Family Services, and Mother has been inconsistent with appointments for
counseling, which were necessary to effectuate reunification.
As further evidence of a bond, Mother states that N .. identifies her as
"mommy" during visits, Mother and N .. exchange hugs and kisses before and after
visits, and that Mother has regularly attended
~- visits since Nilllll was adjudicated
.
dependent. Although a bond may remain between Mother and NIIIII, and this bond is
an important consideration, the Superior Court is clear 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." In re T.S.M., 71 A.3d at 267. While an abused and neglected
child may be able to salvage a relationship between her and an abusive parent, it is
clear that "[e]ven the most abused of children will often harbor some positive emotion
towards the abusive parent." See In re K.K.R.-S, 958 A.2d 529, 535 (Pa. Super. 2008)
13
(quoting In re Involuntary Termination of C. WS.M., 839 A.2d 410, 418-419 (Pa. Super.
2003) (Tamilia, J., dissenting). The Superior Court has explained:
A child's feelings toward a parent are relevant to the section
2511 (b) analysis. Nonetheless, 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.
Id.
In the present case, N ... has undoubtedly been subjected to emotional and
physical abuse by Mother and Bo I 12 , as was indicated in the initial report on
September 10, 2011. As a result of this abuse, N-.. has suffered serious trauma and
developed numerous debilitating conditions. While Nillllia's continuing bond with
Mother may seem unlikely under these circumstances, it is not unfathomable. What
remains clear, however, is that N... 's developmental, physical, and emotional needs
will be best served under the care of Foster Parents. Therefore, this Court concludes
that terminating the current bond between mother and child can be accomplished
without detrimental effects on N ....
Mother contends that the FCCYS Petition should not be granted, because she
"has proven herself capable of parenting, by providing a stable home and maintaining
appropriate employment to support herself and her youngest child,~ Bo•••
who remains in her care and custody.';" Although A... is currently in the care of
A.m. has been closed, the
Mother, and even if the dependency action regarding
relevant questions surround Mother's fitness and ability to parent
15
N-. The Supreme
See Respondent's Brief in Opposition to Inv. Termination of Parental Rights, Oct. 27, 2015.
14
Court of Pennsylvania has long held that we must look at the unique circumstances
leading to the placement of the child in question, and not whether a parent is capable of
parenting any child in general. See generally Matter of Adoption of G. T. M., 483 A.2d
1355 n.4 (Pa. 1984) (holding that the issue in the case was not whether the appellee
was capable of caring for an infant, but rather whether she could properly care for a
child she failed to care for in the past, and that child had special problems and was well
beyond the "infant stage" at the time of termination proceedings). This Court has heard
no testimony relating to Mother's ability to parent A ... nor would such testimony be
relevant in the present case.
CONCLUSION
Accordingly, this Court finds by clear and convincing evidence that Father's
substantial period of incarceration has caused her to be without his "essential parental
care, control or subsistence," and that termination of his parental rights pursuant to 23
Pa.C.S.A. § 2511 (a)(2) is proper. Furthermore, there has been no evidence of a bond
between Father and Nlllllla, no contact between Father and N-.., and Father has not
demonstrated his intent to preserve his parental rights while incarcerated. Thus, this
Court concludes that no parent-child relationship exists between Father and N ... and
that termination of Father's parental rights will have no detrimental effect on the child.
Additionally, this Court finds by clear and convincing evidence that N ... was
adjudicated dependent nearly 4 years ago, and as part of a voluntary agreement with
FCCYS, she was placed in care of Foster Parents. It is clear that certain conditions that
led to N.-'s placement into foster care continue to exist. Furthermore, it is clear that
termination of Mother's parental rights, and her impending adoption by Foster Parents,
15
would best serve the needs and welfare of N ... Thus, termination of Mother's
parental rights pursuant to 23 Pa.C.S.A. § 2511 (a)(8) is proper.
This Court recognizes that "the complete and irrevocable termination of parental
rights is one of the most serious and severe steps a court can take, carrying with it great
emotional impact for the parent and children." In re Bowman, 666 A.2d 274, 280 (Pa.
1995) (citing In re Adoption of Michael J.C., 473 A2d 1021, 1026 (Pa. Super. 1984),
reversed on other grounds, 486 A.2d 371 (Pa. 1984)). However, it is clear that the
circumstances that led to N-'s placement continue to exist; after nearly 4 years in
placement, Nilli9requires permanency in the care of her Foster Parents, who have
played a pivotal role in addressing N .. 's developmental, physical, and emotional
needs. For all of the above reasons, the Court enters the following Order:
16