In the Interest of: J.E.R., a/k/a J.E.T., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.E.R. A/K/A J.E.T, IN THE SUPERIOR COURT OF
A MINOR PENNSYLVANIA
APPEAL OF: A.M.R. N/B/M A.T.
No. 511 MDA 2016
Appeal from the Decree February 24, 2016
in the Court of Common Pleas of Lancaster County
Orphans’ Court at No(s): 36-2015-1410
BEFORE: GANTMAN, P.J.; DUBOW, J.; and JENKINS, J.
MEMORANDUM BY JENKINS, J. FILED SEPTEMBER 22, 2016
Appellant A.M.R. (“Mother”) appeals from the February 24, 2016
decree involuntarily terminating her parental rights to J.E.R. a/k/a J.E.T.
(born November of 2013) (“Child”).1 We affirm.2
Child lived with Mother for the first month of Child’s life. Lancaster
County Children and Youth Social Service Agency (“CYS”) became involved
with the family when it received reports that Child was not dressed properly
for the cold weather and Mother was unable to sufficiently bathe, feed, or
care for Child because of Mother’s cognitive deficits. On December 27,
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1
Mother has two other children who are not involved in this appeal.
2
The birth father of Child is unknown and several potential fathers have
been excluded by DNA testing.
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2013, Child was seen by a medical provider, who reported that Child had
dropped thirteen ounces since her birth. The medical provider voiced
concerns regarding Mother’s ability to care for Child’s basic daily needs.
Child was removed from Mother’s care on January 2, 2014. The trial
court held a Shelter Care hearing on March 11, 2014. On April 8, 2014, the
trial court adjudicated Child dependent and approved a Child Permanency
Plan (“CPP”) with the primary goal of reunification. Mother’s CPP objectives
included: (1) to improve mental health functioning; (2) to learn and use
good parenting skills; (3) to be financially stable in order to provide for
Child; (4) to maintain housing; and (5) to maintain an ongoing commitment
to Child.
CYS filed a petition for involuntary termination of parental rights on
June 22, 2015. The trial court held a hearing on December 15, 2015. 3 The
trial court heard testimony from Sherri Curtis, a social worker at Bethanna;
C.T., Mother’s husband;4 and Mother. The trial court also considered a
parenting capacity re-assessment, prepared by Dr. Jonathan M. Gransee, a
licensed psychologist (“Exhibit 2”), and a personalized parent trainer (“PPT”)
court report prepared by Nina Sypolt, a CYS caseworker (“Exhibit 3”). On
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3
The hearing on the petition to involuntarily terminate Mother’s parental
rights was originally scheduled for August 18, 2015, and was continued to
October 20, 2015, then to November 17, 2015, and then again continued to
December 15, 2015.
4
Mother and C.T. were not married at the time of Child’s birth.
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February 24, 2016, the trial court entered a decree granting the involuntary
termination of Mother’s parental rights.
On March 28, 2016, Mother timely filed a notice of appeal together
with a concise statement of errors complained of on appeal filed pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b).5
Mother raises three questions on appeal:
1. Whether the [trial] court erred by terminating Mother’s
parental rights where [CYS] had deemed Mother’s housing to be
acceptable, [C.T.] was an appropriate caretaker, and she had
child care in place for the periods of time [C.T.] worked?
2. Whether the [trial] court erred by failing to allow Mother
reasonable accommodations in completing her [CPP]?
3. Whether the [trial] court abused its discretion by terminating
Mother’s parental rights when Child had a bond with Mother and
there was insufficient evidence [presented] to determine if the
termination of the relationship with Mother would harm Child?
Mother’s Brief at 4.
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an
abuse of discretion, an error of law, or insufficient evidentiary
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5
The thirtieth day following the termination order was March 26, 2016,
which was Good Friday, a court holiday. Thus, the last day for filing a notice
of appeal was Monday, March 28, 2016. See 1 Pa.C.S. § 1908 (when filing
date falls on a Saturday, Sunday, or holiday, the final date extends to the
next business day).
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support for the trial court’s decision, the decree must stand.
Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a
jury verdict. We must employ a broad, comprehensive review
of the record in order to determine whether the trial court’s
decision is supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (quoting In re C.S., 761
A.2d 1197, 1199 (Pa. Super. 2000)). In termination cases, 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.
Id. at 806. We have previously 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.” In re J.L.C. &
J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004) (quoting In re Diaz, 669 A.2d 372, 375 (Pa. Super. 1995)).
“[I]f competent evidence supports the trial court’s findings, we will affirm
even if the record could also support the opposite result.” In re Adoption
of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003) (quoting In re: N.C.,
N.E.C., 763 A.2d 913, 917 (Pa. Super. 2000)).
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In terminating Mother’s parental rights, the trial court relied upon
Sections 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, which
provide 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:
(1) The parent by conduct continuing for a period
of at least six months immediately preceding the
filing of the petition either has evidenced a settled
purpose of relinquishing parental claim to a child or
has refused or failed to perform parental duties.
(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
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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.C.S. § 2511(a)(1), (2), (5), (8), and (b).
We need only agree with the trial court’s decision as to any one
subsection of 23 Pa.C.S. § 2511(a) in order to affirm the termination of
parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004), appeal
denied, 581 Pa. 668, 863 A.2d 1141 (2004).
Here, we focus on Section 2511(a)(8). With respect to Section
2511(a)(8), CYS must show that: (1) the child has been removed from
parental care for 12 months or more from the date of removal; (2) the
conditions which led to removal or placement of the child continue to exist;
and (3) termination of parental rights would best serve the needs and
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welfare of the child. In re Adoption of M.E.P., 825 A.2d 1266 (Pa. Super.
2003).
The first element of Section 2511(a)(8) has been met. Child has been
in the physical care of CYS since January 2, 2014, and legal custody of CYS
since April 8, 2014. By the conclusion of the termination proceedings, Child
had been in CYS custody for approximately 24 months.
We now examine the second element of Section 2511(a)(8), whether
the conditions that led to Child’s placement continue to exist. Child was
removed from Mother’s care by CYS due to concerns related to Mother’s
ability to care for Child. The trial court concluded that Mother has failed to
complete her CPP goals for reunification, despite Mother’s testimony that she
has tried her best to develop the skills necessary to parent Child.
Mother argues that, while she has some degree of mental limitations
which affect her parenting, she demonstrated that she meets the minimal
levels necessary to parent Child. Mother’s Brief at 9. The trial court opined
that:
[t]he issue has never been Mother’s desire to care for [Child] nor
has it been that Mother is not dedicating herself to getting
[Child] returned to her care. The problem is not one of
compliance but rather progress. [Child] suffers from a medical
condition that will necessitate occupational therapy services for
the foreseeable future and physical therapy services for the rest
of [Child’s] life. The [trial c]ourt does not doubt that Mother, at
least at times, has tried her best to be reunified with [Child].
However, [CYS] has proved by clear and convincing evidence
that Mother’s best efforts fail to meet [Child’s] ongoing medical
needs and care. Despite Mother’s earnest attempts at
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completing her plan for reunification, the successful completion
of her plan is not in the foreseeable future.
Trial Court Opinion, 2/24/16, at 8.
Bethanna social worker Sherri Curtis testified that, while Mother was
consistent about attending every visit and was interested in receiving
feedback from Child’s foster parents which she incorporated into her visits
with Child, Mother had trouble staying focused and was inattentive at times.
N.T., 12/15/15 at 8-9, 17-18. Ms. Curtis further testified that Mother was
easily distracted during her visits with Child. Id. at 18-19. Ms. Curtis
concluded that Mother would have difficulties caring for Child over a 24-hour
period. Id. at 23.
In the PPT Report, Ms. Sypolt notes that Mother must consistently be
prompted by the PPT or the social worker to meet the needs of Child.
Exhibit 3 at 2 (unpaginated). Ms. Sypolt further states in her report that
Mother has been unable to obtain appropriate housing, which has forced PPT
services to be put on hold. Id.
As to the third prong of Section 2511(a)(8), whether the termination
of parental rights would best serve the needs and welfare of the child, we
find that clear and convincing evidence supports the conclusion that
termination of parental rights best serves the needs and welfare of Child.
Our review of the record reveals that the trial court concluded that Mother is
unable to properly parent and care for Child, and that after carefully
considering the tangible dimensions as well as the intangible dimensions –
the love, comfort, security and stability entailed in a parent-child relationship
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– Child is receiving love, comfort, security, and safety from her foster
parents, and that staying with foster parents would best serve the Child’s
needs and welfare. Trial Court Opinion, 2/24/16, at 9-11.
After our careful review of the record in this matter, we find that the
trial court’s credibility and weight determinations are supported by
competent evidence in the record. In re M.G., 855 A.2d at 73-74.
Accordingly, we find that the trial court’s determinations regarding section
2511(a)(8) are supported by sufficient, competent evidence in the record.
The trial court must also consider how terminating Mother’s parental
rights would affect the needs and welfare of Child pursuant to 23 Pa.C.S. §
2511(b). Pursuant to section 2511(b), the trial court’s inquiry is specifically
directed to a consideration of whether termination of parental rights would
best serve the developmental, physical and emotional needs of the child.
See In re C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005), appeal
denied, 587 Pa. 705, 897 A.2d 1183 (2006). “Intangibles such as love,
comfort, security, and stability are involved in the inquiry into the needs and
welfare of the child.” Id. at 1287 (citation omitted). We have instructed
that the trial court must also discern the nature and status of the parent-
child bond, with utmost attention to the effect on the child of permanently
severing that bond. See id.Mother argues that the trial court ignored testimony of Mother’s
“nurturing nature and her attachment of [Child].” Mother’s Brief at 10. The
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trial court stated that it was “persuaded that the termination of Mother’s
parental rights was in the best interest of [Child] and that the effect of that
termination will not be harmful to [Child’s] well-being.” Trial Court Opinion,
2/24/16, at 10. In reaching this conclusion, the trial court relied on the
testimony of Ms. Curtis. At the hearing, Ms. Curtis testified that Child would
smile at Mother during visits, but did not exhibit a lot of emotion. N.T.,
12/15/15 at 12. Ms. Curtis further stated that Child was not affectionate to
Mother, and that Child never referred to Mother as “mom” during the visits.
Id. at 12-13. Additionally, Ms. Curtis testified that Child was not upset at
leaving Mother at the conclusion of any of the visits. Id. at 24.
In the instant case, on the issue of bonding, our review of the record
reveals no evidence of a bond between Mother and Child. The trial court
found Child’s bond with Mother is “minimal at best.” Trial Court Opinion,
2/24/16, at 10. Furthermore, the trial court states that terminating Mother’s
parental rights will not destroy an existing, necessary, or beneficial
relationship. Id. We have stated, “In cases where there is no evidence of
any bond between the parent and child, it is reasonable to infer that no bond
exists.” In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008).
After this Court’s careful review of the record, we find that the
competent evidence in the record supports the trial court’s determination
that there was no bond between Mother and Child which, if severed, would
be detrimental to Child, and that the termination of Mother’s parental rights
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would best serve the needs and welfare of Child. Thus, we will not disturb
the trial court’s determinations. See In re M.G., 855 A.2d at 73-74.
After a careful review, we affirm the decree terminating Mother’s
parental rights on the basis of Section 2511(a)(8) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2016
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