In the Interest of: T.W., Appeal of: T.W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.W., MOTHER :
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: No. 386 MDA 2019
Appeal from the Decree Entered February 15, 2019
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2018-0164,
CP-67-DP-0000328-2017
IN THE INTEREST OF: T.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.W., MOTHER :
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: No. 390 MDA 2019
Appeal from the Order Entered February 19, 2019
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000328-2017
BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.
MEMORANDUM BY PANELLA, P.J.: FILED: AUGUST 23, 2019
T.W. (“Mother”) appeals from the decree entered February 15, 2019,
that granted the petition of York County Office of Children Youth and Families
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 Retired Senior Judge assigned to the Superior Court.
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(“CYF”), and involuntarily terminated her parental rights to her son, T.W.
(“Child”) (born September 2017).1 Mother also appeals the order entered
February 19, 2019 that denied Mother’s petition to change Child’s permanent
placement goal from adoption to return to parent. After careful review, we
affirm.
Shortly after Child’s birth, CYF obtained an order for emergency
protective custody due to concerns regarding Mother’s mental health and lack
of housing. See Order of Emergency Protective Custody, 9/27/17. On
November 21, 2017, Child was adjudicated dependent. See Order of
Adjudication and Disposition-Child Dependent, 11/21/17. The court ordered
Mother to obtain a psychological and psychiatric evaluation; sign releases
necessary for the release of the results of any evaluation; maintain safe,
stable and appropriate housing; attend counseling; cooperate with an in-home
services team; and attend parenting courses. See id. Further, CYF
implemented a family service plan (“FSP”) that contained similar goals. See
CYF Exhibit 1; N.T., 2/15/19, at 7. Thereafter, the court conducted periodic
review hearings.
On August 14, 2018, the court changed Child’s permanent placement
goal to adoption. See Permanency Review Order-Amended, 8/14/18, at 2.
Mother’s housing program had discharged her for not paying rent. See id. at
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1 The decree also involuntarily terminated the parental rights of Child’s father,
K.B. (“Father”). Father did not appeal the decree, and has not participated in
this appeal.
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1. Further, Mother was referred for an in-home services team on June 8,
2018, but the referral was closed on July 17, 2018 after Mother did not
schedule appointments. See id. Mother had undergone a psychological
evaluation and received a diagnosis of schizoaffective disorder. See id. The
evaluation noted that Mother experiences a disconnect from reality and
needed intensive mental health treatment. See id. The court found Mother
was minimally compliant with the FSP. See id. Mother did not appeal from
the goal change order.
On October 26, 2018, CYF filed a petition to involuntarily terminate
Mother’s parental rights to Child. On January 4, 2019, Mother filed a petition
to change Child’s permanent placement goal from adoption to reunification
with Mother. On February 15, 2019, the orphans’ court held an evidentiary
hearing on the petitions.2 At the hearing, CYF presented the testimony of
Christina Faye, a CYF caseworker. Mother testified on her own behalf.
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2 At the hearing, Child, who was not yet two years old, had the benefit of both
a guardian ad litem (“GAL”), as well as separate legal counsel. As such, we
find the requirements of 23 Pa.C.S.A. § 2313(a) were satisfied. See In re
Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 2017) (plurality)
(stating that, pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject
of a contested involuntary termination proceeding has a statutory right to
counsel who discerns and advocates for the child’s legal interests, defined as
a child’s preferred outcome); see also In re T.S., 192 A.3d 1080, 1089-1090,
1092-93 (Pa. 2018) (finding the preferred outcome of a child who is too young
or non-communicative unascertainable in holding a child’s statutory right to
counsel not waivable and reaffirming the ability of an attorney-GAL to serve a
dual role and represent a child’s non-conflicting best interests and legal
interests).
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On February 15, 2019, the orphans’ court entered a decree involuntarily
terminating Mother’s parental rights to Child, and an on February 19, 2019
the court entered an order maintaining Child’s permanent placement goal as
adoption. Mother timely filed notices of appeal and concise statements of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
This Court, acting sua sponte, consolidated Mother’s appeals.
On appeal, Mother raises the following issues for our review:
1. Did the [c]ourt commit an abuse of discretion in using
Mother’s mental health disability as main factors in finding that
her parental rights should be terminated?
2. Did the [c]ourt commit an abuse of discretion when it denied
[Mother’s] Petition to Change Court Ordered Goal from adoption
to reunification because Mother would have alleviated the
conditions that led to placement?
Mother’s brief at 6.
We review these claims mindful of our well-settled standard of review:
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
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) (citations and quotation marks
omitted).
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Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. § 2101-2938, which 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).
In this case, the orphans’ 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 orphans’ 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:
§ 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
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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(a)(2) and (b).
Our Supreme Court has described Section 2511(a)(2) as follows:
A decision to terminate parental rights, never to be made lightly
or without a sense of compassion for the parent, can seldom be
more difficult than when termination is based upon parental
incapacity. The legislature, however, in enacting the 1970
Adoption Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit as one who
refuses to perform the duties.
In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012) (citations omitted).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following elements:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) the
incapacity, abuse, neglect or refusal caused the child to be without essential
parental care, control or subsistence necessary for his physical or mental well-
being; and (3) the causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272
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(Pa. Super. 2003). Termination of parental rights under Section 2511(a)(2),
is not limited to affirmative misconduct; to the contrary, acts of refusal as well
as incapacity to perform parental duties can satisfy the requirements. In re
A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
This Court has long recognized that a parent is required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities. Id. at 340. A parent’s vow to cooperate, after a long period
of uncooperativeness regarding the necessity or availability of services, may
properly be rejected as untimely or disingenuous. Id.
In her first issue, Mother asserts the orphans’ court erred in considering
her mental health status, as “[i]ndividuals with mental health issues will not
[be] cured.” See Mother’s brief at 11-12. Mother contends that her mental
illness should not be used as a reason to terminate her parental rights, arguing
that her mental illness is manageable but not curable, and that she complied
with her treatment plan. See id. at 12-13.
The orphans’ court rejected Mother’s interpretation of its ruling.
Specifically, the court found that “Mother has established a long history of not
seeking treatment for her mental health disability and not cooperating with
any proposed treatment for her mental health disability.” Orphans’ Court
Opinion, 4/1/19, at 12.
The court observed that Mother was diagnosed with unspecified
schizoaffective disorder in late 2017. See id. Mother continued to deny any
mental health issues while self-reporting that she did not take her prescribed
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medications. See id. at 13. Further, three separate in-home services teams
were closed unsuccessfully due to Mother’s lack of cooperation. See id. The
court acknowledged Mother’s testimony that, since January of 2019, she was
under the care of a psychiatrist and was compliant with her medication, but
noted Mother’s compliance did not occur until after the petition for involuntary
termination was filed. See id. at 13-14. The court concluded that Mother
was unwilling to address her mental health issues. See id. at 22. Accordingly,
the court terminated Mother’s parental rights pursuant to Section 2511(a)(2).
See id. at 14.
Our review of the record supports the orphans’ court’s determination.
CYF caseworker Faye testified that Mother’s primary goals were to maintain
stable housing, address Mother’s mental health issues, and work with in-home
service providers. See N.T., 2/15/19, at 7.
Mother lost her housing in September of 2018, and Mother did not
provide CYF with a physical or mailing address. See id. at 11. Mother was
offered services through Pressley Ridge, Catholic Charities, and JusticeWorks.
See id. at 22. All closed unsuccessfully. See id. Moreover, Mother did not
complete any parenting classes. See id. at 57-58. During visits, Mother
engaged Child in conversations that were not age appropriate. See id. at 18.
At the time of the termination hearing, CYF continued to have concerns
regarding Mother’s mental health, and Mother had not provided
documentation showing her mental health issues were being addressed. See
id. at 24. Faye categorized Mother’s progress as minimal. See id. at 7.
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Mother testified that she completed a psychiatric evaluation January 9,
2019, and that she had attempted to obtain one earlier. See id. at 69. She
further testified that she was compliant with her current treatment program.
See id. at 70. Mother observed, “it’s a journey going through therapy because
you have to find a really good therapist, you know what I mean, that you are
comfortable with.” See id. at 71. Mother asserted that her mental health
was stable enough to take care of Child.3 See id. at 81.
Despite Mother’s testimony that her mental health was stable, the
psychiatric evaluation and treatment notes that Mother submitted as exhibits
largely confirmed CYF’s concerns. Mother acknowledged she became
homeless in December 2018 and was currently residing in a shelter. See
Mother’s Exhibit A, Psychiatric Evaluation, at 1. Mother confirmed she
continued to experience auditory and visual hallucinations. See id. Mother
identified her prescribed medication, but suggested she rarely took the
medication as prescribed. See id. at 2. Moreover, Mother acknowledged she
ran out of her medication over a month prior to the evaluation. See id.
The evaluation noted Mother had a long history of mental health services
and was very inconsistent with both medication dosing and attendance. See
id. at 3. A progress note authored by Lila Hughes, M.S.W., from January 15,
2019, observed that Mother was “not accepting of her past diagnosis of
Schizoaffective disorder.” See Mother’s Exhibit A, Progress Note, at 1.
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3 Mother has seven children, none of whom are in her care. See N.T.,
2/15/19, at 58.
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Further, Ms. Hughes questioned whether Mother continued to take her
medications as prescribed as Mother’s response was indecisive. See id. at 2.
Although Mother argues that her mental health is an improper factor for
the orphans’ court to consider, our Supreme Court has previously rejected a
similar argument, holding:
[the] statutory basis for terminating involuntarily the rights
of a parent with a mental or physical impairment is Section 311(2)
of the Adoption Act of 1970, 23 Pa.C.S. § 2511(a)(2). The statute
makes it clear that grounds for termination can consist of lack of
capacity and not just affirmative misconduct. Judicial inquiry is to
be centered on the best interest of the child, rather than the fault
of the parent. . . . [W]e are satisfied that the same legal standard
and burden of proof should be applied for the involuntary
termination of parental rights of a parent with a mental and/or
physical impairment as is applied to any other parent. We wish
to emphasize, however, that the focus in such cases is the effect
which an impairment has on the person’s ability to provide
parental care, not the mere fact of impairment or the fact that the
impairment may make the parent less desirable than another
parent. The purpose is to protect the welfare of the child. So long
as the parent makes a sincere effort and takes advantage of the
services offered to improve his condition and ability to fulfill
parental obligations, and the child’s essential physical and
emotional needs are met, there should not be a termination of
parental rights. The fact that a parent suffers from a physical or
mental disability is not, and never was, the only relevant factor in
determining whether his or her parental rights should be
terminated, or whether there should be a different legal standard
applied.
What is important is the demonstrated willingness and
ability of the parent to perform, at a minimal level, his or her
parental duties. A parent’s performance “must be measured in
light of what would be expected of an individual in circumstances
in which the parent under examination finds himself.”
In re Adoption of J.J., 515 A.2d 883, 893 (Pa. 1986) (footnote omitted).
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Accordingly, contrary to Mother’s argument, her mental health history
was an appropriate factor for the orphans’ court to consider. The orphans’
court considered Mother’s non-compliance with her mental health treatment,
as well as her overall failure to comply with her FSP, and determined Mother
is incapable of parenting Child and cannot or will not remedy her parental
incapacity. The orphans’ court did not abuse its discretion or commit an error
of law in reaching this conclusion, and, accordingly, Mother’s first issue does
not merit relief.
We next consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(b). The
requisite analysis is as follows.
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[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.
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In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quotation
marks and citations omitted).
In addressing Section 2511(b), the orphans’ court observed that Child
was doing well in the home of his foster mother, who is a permanent resource
for Child. Orphans’ Court Opinion, 4/1/19, at 18-19. The court concluded
there was a strong bond between Child and his foster mother, and little to no
bond between Child and Mother. See id. at 19. The court also concluded that
Mother was unable to provide a stable and safe environment for Child. See
id. Accordingly, the court determined that terminating Mother’s parental
rights best met Child’s needs and welfare. See id.
Mother argues the court erred in its consideration of Child’s needs and
welfare, contending that the court failed to conduct an independent
examination of whether or not termination best serves the needs and welfare
of Child. See Mother’s brief at 14. Mother faults the court for concluding that
she had little or no bond with Child and that Child’s parental bond is with his
foster mother. See id. Mother argues she did what was “within her power to
create a bond.” See id. at 15.
Our review of the record confirms that the orphans’ court did not err in
concluding that Child’s needs and welfare are best met by terminating
Mother’s parental rights. Faye opined that there was not a strong bond
between Mother and Child, noting that Child was removed from Mother’s care
shortly after his birth. See N.T., 2/15/19, at 18. Child is safe and happy in
his foster home. See id. at 20-21. Faye further testified that Child is strongly
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bonded to his foster mother, who is a pre-adoptive resource. See id. at 21,
26. Mother offered limited testimony regarding her relationship with Child,
focusing primarily on the clothes and supplies she purchased for him and
perceived deficiencies in the foster parents’ care for Child. See id. at 74-75,
79-81.
The record amply supports the court’s finding that it would best serve
the needs and welfare of Child to terminate Mother’s parental rights pursuant
to Section 2511(b). Child has been out of Mother’s care for nearly his entire
life. Child is thriving in his foster home, and is strongly bonded to his foster
mother, who is a pre-adoptive resource. Remaining in his foster home will
allow Child to achieve permanence and stability. See T.S.M., 71 A.3d at 269
(stressing the need to expedite the placement of dependent children “in
permanent, safe, stable, and loving homes.”). Accordingly, Mother’s second
issue fails.
In her final issue, Mother argues the orphans’ court erred in denying her
petition to change Child’s permanent placement goal from adoption. The
Juvenile Act governs proceedings to change a child’s permanent placement
goal. See 42 Pa.C.S.A. §§ 6301-6375. Orphans’ courts must apply the
following analysis:
Pursuant to [42 Pa.C.S.A.] § 6351(f) of the Juvenile Act, when
considering a petition for a goal change for a dependent child, the
juvenile court is to consider, inter alia: (1) the continuing
necessity for and appropriateness of the placement; (2) the extent
of compliance with the family service plan; (3) the extent of
progress made towards alleviating the circumstances which
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necessitated the original placement; (4) the appropriateness and
feasibility of the current placement goal for the children; (5) a
likely date by which the goal for the child might be achieved; (6)
the child’s safety; and (7) whether the child has been in placement
for at least fifteen of the last twenty-two months. The best
interests of the child, and not the interests of the parent, must
guide the trial court. As this Court has held, a child’s life simply
cannot be put on hold in the hope that the parent will summon
the ability to handle the responsibilities of parenting.
In re A.B., 19 A.3d 1084, 1088-89 (Pa. Super. 2011) (citations and quotation
marks omitted).
The court denied Mother’s petition to change Child’s permanency goal
from adoption to reunification with Mother because Mother failed to obtain
stable housing and Mother’s mental health issues were not stabilized. See
Orphans’ Court Opinion, 4/1/19, at 14. The court observed that Mother
located housing with her family the week prior to the hearing and began
attending therapy a “few short weeks before the date of the hearing.” See
id. at 15. The court concluded that Mother’s past failure to maintain her
mental health for any substantial length of time made the court unhopeful
that Mother’s progress would continue. See id. at 16.
Mother contends that her mental health issues should have afforded her
additional time to demonstrate progress. Mother’s brief at 15-17. She argues
that she was engaging in treatment and had located housing. See id. at 15-
16. Further, Mother contends that CYF mishandled her case by not assigning
people who could effectively communicate with her. See id. at 16.
Upon our careful and thorough review of the record in this matter, we
conclude that the orphans’ court applied the appropriate legal principles to the
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record, and that the record supports the court’s findings. Further, it is
apparent that, contrary to Mother’s arguments, CYF provided appropriate
efforts towards reunification, and Mother failed to take advantage of those
services. The orphans’ court did not commit an abuse of discretion in denying
Mother’s petition to change Child’s permanent placement goal from adoption
to reunification with Mother.
Accordingly, we affirm the decree involuntarily terminating Mother’s
parental rights, and the order denying Mother’s petition to change Child’s
permanent placement goal from adoption to reunification.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2019
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