In Re: K.H.B., Appeal of: Office of C.Y.F.

J-A29030-14
2014 PA Super 284IN RE: K.H.B., A/K/A BABY GIRL J., IN THE SUPERIOR COURT OF
A/K/A K.J., A MINOR PENNSYLVANIA
APPEAL OF: ALLEGHENY COUNTY OFFICE
OF CHILDREN, YOUTH AND FAMILIES No. 731 WDA 2014
Appeal from the Order entered April 7, 2014,
in the Court of Common Pleas of Allegheny County, Civil
Division, at No(s): TPR 172 of 2013
IN RE: K.H.B., A/K/A BABY GIRL J., IN THE SUPERIOR COURT OF
A/K/A K.J., A MINOR PENNSYLVANIA
APPEAL OF: ALLEGHENY COUNTY OFFICE
OF CHILDREN, YOUTH AND FAMILIES No. 732 WDA 2014
Appeal from the Orders entered April 7, 2014,
in the Court of Common Pleas of Allegheny County,
Orphans’ Court, at No(s): TPR 172 of 2013
BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER*, JJ.
OPINION BY ALLEN, J.: FILED DECEMBER 23, 2014
Allegheny County Children, Youth and Families (“CYF”) appeals from
the orders entered on April 7, 2014, which denied CYF’s petitions to
involuntarily terminate the parental rights of K.B. (“Mother”) and J.J.
(“Father”) to their minor daughter, K.H.B, (“Child”), born in March of 2012,
pursuant to section 2511(a)(5), (8), and (b) of the Adoption Act, 23
Pa.C.S.A. § 2511(a)(5), (8), and (b). We reverse and remand for further
proceedings.
* Retired Senior Judge assigned to Superior Court.
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This family has been known to CYF since 2007 due to Mother’s and
Father’s drug, alcohol, mental health, and domestic violence issues. In
2008, four of Mother and Father’s children were adjudicated dependent.1 On
March 29, 2012, CYF obtained an Emergency Custody Authorization (“ECA”)
for Child after Child was born. On March 30, 2012, Child was placed with
Maternal Grandmother. On April 13, 2012, Child was adjudicated dependent
due to the aggravated circumstances found against Mother and Father.
Child remained with Maternal Grandmother until February 15, 2013. On
February 15, 2013, Child was placed in Paternal Aunt’s care.
Mother and Father’s Family Service Plan Goals (“FSP”) were: (1) to
sign necessary releases of information; (2) to maintain relationship with
Child through regular visits; (3) to contact and cooperate with CYF; (4) to
participate in domestic abuse counseling; (5) to stabilize their mental
health; and (6) to obtain appropriate housing. N.T., 2/10/13, at 8-9; 26-27.
Father’s additional FSP goals were: (1) to obtain drug and alcohol
treatment; (2) to obtain drug screens; and (3) to obtain employment. Id.
at 27.
On November 6, 2013, CYF petitioned for termination of Mother and
Father’s parental rights to Child. On February 10, 2014, March 26, 2014,
and April 7, 2014, hearings were held on that petition. At the termination
1
Mother and Father’s parental rights to their other children were terminated.
Paternal Aunt adopted four of Mother and Father’s six children. Mother and
Father’s oldest two children were placed in Paternal Aunt’s care, but aged
out of the dependency system.
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hearings, the following witnesses testified: Father; Paternal Aunt; Maryann
Gordon, a clinical supervisor of Renewal Treatment, Inc.; Mother; Bonnie
Antonucci, a CYF caseworker; and Dr. Neil Rosenblum, a licensed
psychologist.
On April 7, 2014, the trial court determined that Mother and Father’s
parental rights to Child should not be terminated. The trial court found that
CYF met its burden of proof by clear and convincing evidence that grounds
for termination existed against Mother and Father under 23 Pa.C.S.A
§ 2511(a)(5). However, the trial court further found that CYF did not meet
its burden of proof by clear and convincing evidence that termination met
the needs and welfare of Child pursuant to Section 2511(b). On May 7,
2014 CYF timely filed notices of appeal from the decrees, along with concise
statements of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). This Court consolidated the cases sua sponte on May
27, 2014.
On appeal, CYF raises the following issues:
1. Did the trial court err as a matter of law and/or abuse its
discretion when it denied CYF’s petition to involuntarily
terminate the parental rights of Mother and Father
pursuant to 23 Pa. C.S.A. § 2511(b) after CYF proved by
clear and convincing evidence that termination of Mother’s
and Father’s parental rights would best serve the
developmental, physical, and emotional needs and welfare
of [C]hild?
2. Did the trial court err as a matter of law and/or abuse its
discretion when it denied CYF’s petition to involuntarily
terminate the parental rights of Mother and Father because
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[Child]’s foster mother is not agreeable to entering into a
voluntary Act 101, Post-Adoption Contact Agreement with
Mother and Father?
CYF’s Brief at 2.
In reviewing an appeal from the denial of a petition for the termination
of parental rights, we are mindful that:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to
accept the findings of fact and credibility determinations of the
trial court if they are supported by the record. In re: R.J.T.,
608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings
are supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion. Id.; R.I.S.,
[613 Pa. 371, 455,] 36 A.3d 567, 572 (Pa. 2011) (plurality
opinion)]. As has been often stated, an abuse of discretion does
not result merely because the reviewing court might have
reached a different conclusion. Id.; see also Samuel Bassett
v. Kia Motors America, Inc., 613 Pa. 371[, 455], 34 A.3d 1,
51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655],
838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.
Id.As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at
28-30], 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
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error of law or an abuse of discretion. In re Adoption of
Atencio, [539 Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted grounds for seeking the termination of parental
rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[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. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a), as well as section 2511(b). See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). Here, we focus on section 2511(a)(5) and (b).
Sections 2511(a)(5) and (b) of the Adoption Act 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:
***
(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
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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.
***
(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)(5) and (b).
We review the evidence to support the involuntary termination of
parent’s rights pursuant to Section 2511(a)(5) as follows:
In order for termination pursuant to 23 Pa.C.S.A. § 2511(a)(5)
to be proper, the following factors must be demonstrated: (1)
the child has been removed from parental care for at least six
months; (2) the conditions which led to the child’s removal or
placement continue to exist; (3) the parents cannot or will not
remedy the conditions which led to removal or placement within
a reasonable period of time; (4) the services reasonably
available to the parents are unlikely to remedy the conditions
which led to removal or placement within a reasonable period of
time; and (5) termination of parental rights would best serve the
needs and welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003).
CYF does not challenge the trial court’s decision that CYF met its
burden of proof by clear and convincing evidence that grounds for
termination existed against Mother and Father under 23 Pa.C.S.A.
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§ 2511(a)(5). We thus address CYF’s argument that the trial court erred in
determining that CYF did not meet its burden of proof by clear and
convincing evidence that termination meets the needs and welfare of Child
pursuant to section 2511(b).
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
As to the bond analysis, we have stated that, 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 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).
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In re T.S.M., the Supreme Court observed:
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.
In weighing the difficult factors discussed above, courts must
keep the ticking clock of childhood ever in mind. Children are
young for a scant number of years, and we have an obligation to
see to their healthy development quickly. When courts fail, as
we have in this case, the result, all too often, is catastrophically
maladjusted children. In recognition of this reality, over the past
fifteen years, a substantial shift has occurred in our society’s
approach to dependent children, requiring vigilance to the need
to expedite children’s placement in permanent, safe, stable, and
loving homes. ASFA was enacted to combat the problem of
foster care drift, where children, like the children in this case,
are shuttled from one foster home to another, waiting for their
parents to demonstrate their ability to care for the children.
In re T.S.M., 71 A.3d at 269.
Here, the trial court heavily relied on Dr. Rosenblum’s testimony,
concluding that termination was not appropriate because “the permanency
which would be achieved by terminating Mother and Father’s parental rights
so that Child could be free for adoption by Paternal Aunt, does not outweigh
the potential for developmental and emotional harm should ‘[Child] lose
contact with her birth parents.’” Trial Court Opinion, 6/10/14, at 5. The
trial court further stated, “a post adoption contact agreement must be a part
of any potential adoption of [Child], and because Paternal Aunt would not
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sign an agreement, termination does not meet the needs and welfare of
Child.” Id. Dr. Rosenblum testified regarding his recommendations for
Child:
Well, what I can conclude is that [Child] has been in foster care
for her entire life, [twenty-two] months. I do believe she has a
strong primary attachment to her [Paternal] Aunt. . . . She is in
a stable secure environment with her aunt and six older siblings.
She is doing well even though developmental [issues were]
addressed. I do believe she has a stable relationship with
[M]other and [F]ather. I do believe that [M]other and [F]ather
are not able to provide her with a stable and secure home. I
don’t believe there is full confidence that [F]ather will remain
drug-free if, indeed, he is today. I don’t believe full confidence
of anger management and conflict with Mother are fully resolved
for [F]ather. Therefore, I don’t believe the parents are in a
position to provide [Child] with the type of home environment
[she needs]. I believe there are risk factors because even if
[F]ather were doing extremely well, I did question is [F]ather
doing this because the [trial] court is observing his behavior and
he knows that can lose custody of [Child] or is he doing it for
reasons because he knows that he has to finally address these
issues after so many years? I can’t make that determination but
I would still say there are these risk factors that move into the
future and create concerns.
So I believe that the most secure place for [Child] is with her
[Paternal] Aunt and her siblings. I believe that typically with a
case like this a goal change to adoption would be warranted but
in this case because of the two factors—one, the positive
relationship between [Child] and parents, and two, the history of
[Paternal] Aunt not allowing any of the other children that she
adopted contact with parents at all—I recommend the possibility
of adoption mediation in this case.
N.T., 2/10/14, at 58-59.
In regard to Child’s relationship with Mother and Father, Dr.
Rosenblum testified that, if Mother and Father’s rights to Child were
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terminated, termination would not be damaging to Child “short-term.” Id.
at 60. Dr. Rosenblum further testified:
I mean, if the visits stop, I don’t know that [Child] would be that
distressed. I’m not sure there would be any behavioral changes
in the way that she functions but I believe that the long-term,
the option of long-term consequences, I do have some concern
about this given this is a relative placement. I have concern that
the other children don’t have any contact with the parents. I
have concern that for the next [sixteen] years that [Child] would
not have contact and I do believe that represents a psychological
loss for this child. She is not going to be adopted by someone.
She knows from other children who her biological parents are.
She would come to know that I have concerns about the level of
estrangement that exists in the family at this time and long-term
impact not only for [Child] but the other children as well.
Id. at 60.
Concerning Paternal Aunt and Child’s bond, Dr. Rosenblum testified
that Paternal Aunt is a “very calm, very mature, and very nurturing parent.”
Id. at 40. Dr. Rosenblum testified that Paternal Aunt does an “excellent job
of exposing [Child] to age appropriate developmental activities.” Id. From
observing Child and Paternal Aunt’s relationship, Dr. Rosenblum testified
that “[Child] uses [Paternal Aunt] as her anchor. [Child] would venture out
into the play area and play with different toys but invariably return to
[Paternal Aunt] and that was clearly her primary attachment figure.” Id. at
41. Dr. Rosenblum testified that the most secure place for Child is with
Paternal Aunt and Child’s six siblings. Id. at 59. Moreover, Dr. Rosenblum
opined that it would be detrimental to Child’s psychological needs and
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welfare if is she were removed from Paternal Aunt’s care at this time. Id. at
84.
Paternal Aunt testified that she received threats from Father since
Child was placed in her care. N.T., 3/26/14, at 16. Paternal Aunt obtained a
Protection from Abuse Order against Father because of threats Father made
against Paternal Aunt. Id. Paternal Aunt received a voicemail in April of
2013 from Father that stated “that he was coming to see [Paternal Aunt],
bitch.” Id. Paternal Aunt testified that she did not want physical contact
with Father, but would allow him to send cards, gifts, and letters to Child.
Id. at 24. Paternal Aunt further testified:
We could talk about some things, but I want them – I don’t want
[Child] to be known with domestic violence or drugs or all bad
stuff. I mean, I want the, [sic] to have a stable home or a
stable telephone to be able to contact them, and I was even
saying phone calls up to a point, you know. The visits as of right
now, like they’re not off the table but as of right now, I don’t
wish to do visits for the best interest of [Child].
Id. at 30. Furthermore, Paternal Aunt testified it was in Child’s best interest
to stay with Paternal Aunt. Id. at 36-37.
In In re T.S.M., the Supreme Court commended the trial court’s use
of concurrent planning. In re T.S.M., 71 A.3d at 269. The Supreme Court
found that concurrent planning is a best practice, as it allows agencies to
provide families with services in hope of reunification, while also preparing
for the child’s potential adoption, and is useful early in proceedings when it
is unclear whether the parents will be able to parent their children. Id. at
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269-70. However, the Supreme Court cautioned that “concurrent planning
should not be used to prolong instability for children when it becomes clear
that parents will be unable to provide their children’s basic needs in the near
future.” Id. at 270. The Supreme Court recognized that a “[t]rial courts’
use of concurrent planning beyond its useful life can create confusion for the
children and potentially increase the difficulty for them to bond with pre-
adoptive parents, thus perpetuating the problem of foster care drift.” Id.
In this case, Dr. Rosenblum testified that terminating Mother and
Father’s parental rights would not be detrimental to Child “short-term.”
N.T., 2/10/14, at 59-60. However, Dr. Rosenblum based his
recommendation against termination of Mother and Father’s parental rights
on his opinion that “long-term” termination may be detrimental to Child. Id.
at 60. Dr. Rosenblum testified that Mother and Father do not have a healthy
bond, and that it interferes with Mother and Father’s ability to provide a
stable home environment for Child. Id. at 46-47. With respect to Mother
and Father’s unhealthy relationship, Dr. Rosenblum testified that Mother is
“not likely to take action to protect [Child] and to acknowledge and to be
alert to these types of problems and the potential impact that it would have
on [C]hild.” Id. at 47. Dr. Rosenblum testified that “these problems have
existed in the past which is why the parents lost their rights to several of
their older children.” Id. at 48. Furthermore, Dr. Rosenblum testified that
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“this relationship hasn’t changed therefore I don’t think there is a high
probability that it would change into the future.” Id. at 49.
Although we defer to a trial court’s determination regarding
termination when it is supported by the record, we must reverse the trial
court’s determination in this case because we find the court’s conclusion to
be manifestly unreasonable, and thus an abuse of discretion. In re
Adoption of S.P., 47 A.3d at 826. In relying upon the mere existence of
the bond between Mother and Father and Child, the trial court failed to
recognize the substantial, possibly permanent, damage to Child by the
prolonged, unhealthy, pathological bond with Mother and Father, especially
as Child has formed a primary attachment to Paternal Aunt, who has
provided the necessary love, care and stability to Child for most of Child’s
life. This Court will not prolong instability for Child when it is clear that
Mother and Father will be unable to provide for Child’s basic needs in the
near future. See In re T.S.M., 71 A.3d at 270. Additionally, there is no
requirement that an adoptive parent be in place in order for parental rights
to be terminated. See In re Adoption of B.J.R., 579 A.2d 906, 915 (Pa.
Super. 1990) (stating that the fact that the record offers no indication that
CYS has found a prospective adoptive family for minor does not serve to bar
the involuntary termination of parental rights where such termination is
otherwise warranted); 23 Pa.C.S.A. § 2512(b). We conclude that
termination of Mother and Father’s parental rights best serves Child’s needs
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and welfare, so that Child may be placed promptly into a healthy, permanent
home.
CYF also argues that the trial court erred as a matter of law and/or
abused its discretion when it denied CYF’s petition to involuntarily terminate
the parental rights of Mother and Father because Paternal Aunt is not
agreeable to entering into a Voluntary Act 101, Post-Adoption Contact
Agreement with Mother and Father. CYF’s Brief at 16-18. We agree.
“[T]he interpretation and application of a statute is a question of law
that compels plenary review to determine whether the court committed an
error of law. As with all questions of law, the appellate standard of review is
de novo and the appellate scope of review is plenary.” C.B. v. J.B., 65 A.3d
946, 951 (Pa. Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013) (quoting
In re Adoption of J.A.S., 939 A.2d 403, 405 (Pa. Super. 2007), appeal
denied, 954 A.2d 577 (Pa. 2008)).
[We] are constrained by the rules of statutory interpretation,
particularly as found in the Statutory Construction Act. 1
Pa.C.S.A. §§ 1501–1991. The goal in interpreting any statute is
to ascertain and effectuate the intention of the General
Assembly. Our Supreme Court has stated that the plain
language of a statute is in general the best indication of the
legislative intent that gave rise to the statute. When the
language is clear, explicit, and free from any ambiguity, we
discern intent from the language alone, and not from the
arguments based on legislative history or “spirit” of the statute.
We must construe words and phrases in the statute according to
their common and approved usage. We also must construe a
statute in such a way as to give effect to all its provisions, if
possible, thereby avoiding the need to label any provision as
mere surplusage.
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In re Adoption of J.A.S., 939 A.2d 403, 405-06 (Pa. Super. 2007).
Instantly, CYF’s argument on appeal involves Act 101, which states,
in relevant part:
§ 2731. Purpose of subchapter.
The purpose of this subchapter is to provide an option for
adoptive parents and birth relatives to enter into a voluntary
agreement for ongoing communication or contact that:
(1) is in the best interest of the child;
(2) recognizes the parties’ interests and desires for ongoing
communication or contact;
(3) is appropriate given the role of the parties in the child’s life;
and
(4) is subject to approval by the courts.
23 Pa.C.S.A. § 2731. An agreement under Act 101 “shall be filed with the
court that finalizes the adoption of the child.” 23 Pa.C.S.A. § 2735(a). The
agreement shall not be legally enforceable unless approved by the court,2
which the court shall approve when the statutory conditions are satisfied.3
Here, the trial court based its decision not to terminate Mother and
Father’s parental rights on Paternal Aunt not agreeing to a Voluntary
Agreement for Continuing Contact with Mother and Father. Trial Court
Opinion, 6/10/14, at 4-5. The statute by its plain language makes an
agreement optional, and such agreement is plainly not required by Section
2511. When amendments were made to the Adoption Act in 2010, effective
2
23 Pa.C.S.A. § 2735(c).
3
23 Pa.C.S.A. § 2735(b).
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in 2011, a voluntary agreement for continued contact was not added to
Chapter 25. Chapter 25 Proceedings Prior to Petition to Adopt remain
separate from Chapter 27 Petition for Adoption. See 23 Pa. C.S.A. §§ 2511-
2558; 23 Pa. C.S.A. §§ 2701-2742. We find that the trial court erred when
it placed the burden of termination of Mother and Father’s parental rights on
Paternal Aunt’s willingness to enter into a voluntary agreement for
continuing contact following adoption, and when it conflated the analysis of
termination of parental rights with adoption.
Accordingly, we reverse the trial court’s denial of termination of
Mother and Father’s parental rights, and remand the matter to the trial court
for further proceedings consistent with this Opinion. Upon remand, the trial
court shall promptly expedite resolution of CYF’s termination petitions. See
In re T.S.M., 71 A.3d at 269.
Orders reversed; case remanded to the trial court for further
proceedings. Jurisdiction relinquished.
President Judge Emeritus Ford Elliott joined the Opinion.
Judge Strassburger files a Concurring Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 12/23/2014
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