In Re: E.W.E., a minor, Appeal of B.S.

J-S66015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: E.W.E., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.S., BIRTH MOTHER
No. 784 WDA 2017
Appeal from the Order Entered May 2, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-11-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED December 1, 2017
B.S. (“Mother”) appeals from the order entered on May 2, 2017, in the
Court of Common Pleas of Allegheny County, Orphans’ Court Division, which
involuntarily terminated Mother’s parental rights to her minor son, E.W.E.
(“Child”) (born in August of 2015), pursuant to sections 2511(a)(2), (a)(5),
(a)(8), and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.1 After careful
review of the record and applicable law, we affirm.
The orphans’ court provided the following relevant factual history of
this case in its Pa.R.A.P. 1925(a) opinion:
Jessica Andrews (hereinafter, “Ms. Andrews”), a
caseworker for [Allegheny County Office of Children, Youth, and
Families (“OCYF”)], testified that Child came to the attention of
OCYF on the day he was born because Mother was active with
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
On February 17, 2017, E.W.E., Sr. (“Father”) voluntarily signed a consent
to the adoption of Child and termination of his parental rights to Child. The
orphans’ court confirmed Father’s consent by order of court dated May 1,
2017.
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OCYF “off and on” since about the year 2000[,] when her oldest
child was born…. On August 12, 2015, an Emergency Custody
Authorization was obtained because Mother had other children
who were dependent and in foster care. OCYF filed a Petition to
Terminate Mother’s Parental Rights and a hearing was
scheduled.3 Child has not returned to Mother’s care since his
birth.
3
Mother’s parental rights were also terminated to two of
her older children. One of Mother’s other children’s cases
closed via a Subsidized Permanent Legal Custodianship
(SPLC) Order.
On August 17, 2015, a Shelter Hearing was held and this
court determined that “[M]other has another child scheduled for
a [Termination of Parental Rights hearing]. [Mother] has not
addressed the issues in that case and they are the same issues
in the current case. While [Child] was still in the hospital, the
people at the hospital noticed parenting deficits with both
parents and contacted OCYF.”
On September 18, 2015, Child was adjudicated dependent
pursuant to the Pennsylvania Juvenile Act at 42 Pa.C.S. §
6302(1). Per the Adjudicatory Order, the court made the
following findings of fact: “Mother stipulates that based on her
other children’s cases, the [c]ourt can find [Child] to be
dependent. Mother also stipulates that she needs assistance
with anger issues….”
Child was placed in foster care with his maternal aunt
(hereinafter, “Foster Mother”), where he has remained
throughout the history of this case.
OCYF created a Family Plan which listed the following goals
for Mother: 1) to obtain mental health treatment; 2) to visit
regularly and consistently; 3) to work with In-Home Services;
and 5) [sic] to comply with the Protection from Abuse order
(hereinafter “PFA”) she obtained against Father.
Orphans’ Court Opinion (OCO), 7/11/17, at 3-4 (citations to record omitted).
On February 8, 2017, OCYF filed the underlying “Petition to Terminate
Mother’s Parental Rights to Child.” On May 1, 2017, the court terminated
Mother’s parental rights to Child, pursuant to 23 Pa.C.S. § 2511(a)(2),
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(a)(5), and (a)(8). The court also ruled that termination of Mother’s
parental rights was in the best interest of Child, pursuant to 23 Pa.C.S. §
2511(b).
Mother timely filed a notice of appeal on May 31, 2017, along with a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Mother now raises the following issues for our
review:
1. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily
terminate Mother’s parental rights pursuant to 23 Pa.C.S. §
2511(a)(2), (5), and (8)?
2. Did the [orphans’] court abuse its discretion and/or err as a
matter of law in concluding that [OCYF] met its burden of
proving by clear and convincing evidence that termination of
Mother’s parental rights would best serve the needs and
welfare of [Child] pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 5.
We review an appeal from the termination of parental rights under 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., …
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.; In re:
R.I.S., 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
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Motors America, Inc., … 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, … 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., 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
Atencio, … 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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. In re S.H., 879 A.2d 802, 806 (Pa.
Super. 2005). 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., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation
marks omitted).
Termination of parental rights is governed by section 2511 of the
Adoption Act, which requires a bifurcated analysis.
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Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. 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 interest 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) (citing 23 Pa.C.S. § 2511;
other citations omitted).
This Court must agree with only one subsection of 2511(a), in addition
to section 2511(b), in order to affirm the termination of parental rights. See
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we
review the decrees pursuant to sections 2511(a)(2) and (b), 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:
…
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
…
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
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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)(2) and (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to section 2511(a)(2).
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super.
2002) (citations omitted).
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A
child needs love, protection, guidance, and support. These
needs, physical and emotional, cannot be met by a merely
passive interest in the development of the child. Thus, this
[C]ourt has held that the parental obligation is a positive duty
which requires affirmative performance.
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In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
Moreover, this Court has previously stated:
A parent must utilize all available resources to preserve the
parental relationship, and must exercise reasonable firmness in
resisting obstacles placed in the path of maintaining the parent-
child relationship. Parental rights are not preserved by waiting
for a more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs.
Id. Where a parent does not “exercise reasonable firmness in declining to
yield to obstacles, his [parental] rights may be forfeited.” In re A.S., 11
A.3d 473, 481 (Pa. Super. 2010).
In the instant matter, Mother argues that she complied with the Family
Plan goals established for her by OCYF and asserts that she remedied any
parental incapacity related to her ability to care for Child. Mother’s Brief at
14-15. However, the record clearly belies Mother’s claims. The following is
the orphans’ court’s explanation of Mother’s Family Plan goals and its
analysis regarding Mother’s efforts, or lack thereof, to reach each of these
goals:
Mother had a goal of mental health because OCYF had
“records of Mother’s long, complicated mental health history.”
Ms. Andrews testified that “there were a number of things, as
well as reports from the evaluations … that all seem to indicate
that there was an ongoing need for some mental health
treatment.” In terms of meeting her mental health goal, Mother
started mental health treatment with Family Services of Western
Pennsylvania. Mother informed OCYF that she completed her
treatment there, however, Ms. Andrews was never provided with
documentation confirming Mother’s assertion. Mother also
attended mental health treatment at Mercy Behavioral Health.
Ms. Andrews explained that with regard to Mother’s therapy “the
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pattern has been that she would go for a couple of months and
then stop going and then go again for a couple months and then
stop going.”
Visitation was a goal for Mother because Child was
removed from her care. Mother’s goal to regularly visit with
Child inherently included a parenting component and to
specifically address this goal, Mother worked with Project STAR 5,
ACHIEVA6, and Highland Family Support Center.7 Project STAR
provided in-home services which addressed parenting. Colleen
Sokira (hereinafter, “Ms. Sokira”), the in-home manager for
ACHIEVA, oversees the parenting education program “which is a
program whose focus is to work with adults with intellectual
disabilities, who are parenting or learning to parent their child….”
Ms. Sokira’s services are “specifically geared towards
parenting the child [when] the parent is a person with an
intellectual disability.” As stated previously, Ms. Sokira was
familiar with Mother because she was working with
Mother and Child’s older sibling … for years prior to
Child’s birth.
5
Project STAR is licensed by the Pennsylvania Department
of Public Welfare as an adoption, foster care and private
children and youth social service agency. Project STAR is
an affiliate member of the Statewide Adoption and
Permanency Network (SWAN) and maintains contracts with
local, statewide and out-of-state counties in the areas of
placement services and family preservation/reunification
services.
6
ACHIEVA is a nonprofit parent organization that has
comprehensive services and supports and serves
thousands of individuals with disabilities and their families
each year.
7
Highland Family Support Center provides services to
assist individuals with life skills, parenting help, support
groups, counseling, parent-child groups, and in-home
services.
Mother’s visitation schedule consisted of supervised
visitation on Tuesdays for four hours and Fridays for two hours.
Mother was entitled to thirty minutes of unsupervised time with
Child. Ms. Andrews testified that Mother did not always respond
to Child’s needs and did not always do “those things that [sic]
would typically do with a one-and-a-half-year-old.”
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Mother also had a goal of working with in-home services
provided by Project STAR which also included a parenting
component.
Mother’s compliance with the PFA she obtained against
Father was a goal because there were allegations of a history of
domestic violence between them. Ms. Andrews testified that
Mother “reported that there were some arguments, and at one
point that he had like spit on her, and that he had made threats
that he was going to kill the kids….” Mother completed a
domestic violence program at the Hope Center.
While Mother was compliant in some regard to her goals,
she has failed to make adequate progress and cannot or will not
remedy the conditions that existed which led to the removal of
Child in a reasonable amount of time.
OCO at 5-7 (citations to record omitted) (emphasis added in original).
After an extensive review of the evidence presented at the May 1,
2017 termination hearing, the court went on to conclude that “Mother does
not have the capacity to parent Child[,] because she has not consistently
obtained mental health treatment or followed direction from the hours of
parenting support she has received.” Id. at 7. In reaching this conclusion,
the court explained that it,
relied on the expert testimony of Dr. Patricia Pepe, Ph.D.
(hereinafter, “Dr. Pepe”), a licensed psychologist and expert in
the area of child psychology, as well as the testimony of Ms.
Sikora[,] who provided years of support to Mother at ACHIEVA.
Dr. Pepe first evaluated Mother in 2014 and admitted that
Mother made some progress in 2015. However, Dr. Pepe opined
that Mother “has not maintained the level of consistency or
continuity that she would need to really gain a benefit from
therapy and from mental health treatment in general.”
She has exhibited consistent poor judgment and she
is a poor historian, often contradicting herself, and I
think that part of the problem is in terms of her
personality functioning, she tends to be narcissistic
in that she views the world through her eyes and
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cannot understand other people’s perceptions, which
really makes it difficult to understand what her
children need. So[,] that is often difficult and,
unfortunately, through time, she’s not been able to
prioritize her children.
Dr. Pepe believed that Mother’s failure to consistently follow
through with mental health treatment has affected her capacity
to parent Child:
I have, you know, time and time and time again
recommended psychotherapy each time I had seen her. I
recommended her involvement with a case manager to
ensure her participation.
I have recommended her participation in psychiatric
treatment, and based upon what … Mother has said,
she’s not been consistent with any of it.
…
I’ve seen the capacity for her to develop insight and
to develop some degree of control if she would be
consistent with therapy and consistent with mental
health services.
She just, unfortunately, has not been able to do so,
which has certainly impacted her capacity … to
develop and maintain stability and to exhibit
parental responsibility.
Ms. Andrews explained that Mother’s mental health also
affected her parenting[,] because there continued to be concerns
about Child’s safety while in Mother’s care. For example, Mother
lets Child “walk around and eat” instead of using a highchair
which is a choking hazard. Mother also did not remove toys
from Child’s Pack ‘N Play “so when she needs to make a phone
call or if she needed to take a shower or something, she
wouldn’t have a safe place for him to be….” Ms. Andrews
testified that Mother did not consistently respond to Child’s
needs and did not always do “those things that [sic] would
typically do with a one-and-a-half-year-old.” Mother attended a
few of Child’s doctor’s appointments; however, Ms. Andrews
testified that there have been problems obtaining medical care
for Child.
…
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Ms. Sokira was also concerned that Mother’s home was not
baby proofed. “It has been an issue in the home since we came
in, especially for a mobile toddler, that there are steps that don’t
have baby gates on them. There are choking hazards that a
toddler could easily swallow…. There are kitchen cupboards that
a toddler can easily access.” Ms. Sokira echoed Ms. Andrews’
concern that Mother did not use a highchair and addressed that
concern with Mother several times and “it took about a week …
to get the highchair returned for him to be able to eat safely.”
However, Mother still had not cleared the Pack ‘N Play even after
Ms. Sokira urged her to do so because there was not a safe place
for Child to be placed. Mother also removed safety latches that
were placed on her kitchen cabinets because she thought they
were too difficult to use.
Dr. Pepe also testified about considerable safety concerns:
[Mother] had difficulty with memory. She said she can’t
remember what she says and does and she couldn’t
remember yesterday. And she gave me an example that
she forgot she left the stove on and went shopping and
told me that she could have burnt her house down…. [S]he
said she has blackouts and was expressing that she can’t
remember what she says or what she does or whatever
people say or do.
OCO at 7-10 (internal citations to record omitted) (emphasis added in
original).
Additionally, the court relied on the following evidence provided by
OCYF, which further demonstrated Mother’s struggles to progress with
regard to her parenting skills:
Ms. Sokira testified that Mother refused to let Child self-
feed because she didn’t want Child to make a mess and Mother
still “needs lots of verbal prompting and counseling on nutrition
and appropriate food for [Child]….” Mother also still needed
“frequent prompting for providing appropriate toys and
appropriate verbal interaction.” Ms. Sokira agreed with Ms.
Andrews that Mother “does not respond to [Child’s] cues the way
that I would expect a parent to respond to the things that [Child]
does….”
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Ms. Sokira explained that Mother’s responsiveness to
direction was “dependent upon the day….” Mother was not
always cooperative with services:
Frequently, when verbal prompts are given, we get
responses like, “I know what I’m doing. Don’t tell me
what to do.”
When we attempt to do things like model, we get
responses like, “No one gets to play with my baby but
me….”
Ms. Sokira believed Mother needed to follow through with
the mental health recommendations made so that she would
understand how to parent Child safely[.]
OCO at 10-11 (citations to record omitted) (emphasis added in original).
Finally, the court opined that it:
Finds it unsettling that Mother’s visitation has not progressed
past thirty minutes of unsupervised time[,] which Ms. Sokira
attributes to Mother’s “resistance” against establishing a routine.
Ms. Sokira was not able to describe a typical visit because
Mother’s cooperation was not consistent and she “hasn’t
followed through for more than two-to-three weeks at
every given attempt.” Ms. Sokira explained that routine is
“important for the child’s development and for the child’s sense
of normalcy … [a]nd second, it’s important for us to have an
idea of what [Mother’s] going to do next.” Accordingly,
ACHIEVA has not recommended more than thirty minutes of
unsupervised time because “[i]t’s just simply not safe.”
Id. at 11 (emphasis added in original).
Based on the foregoing, the orphans’ court concluded that “Mother’s
lack of progress in terms of mental health treatment and ability to follow
direction exhibits a lack of capacity to parent Child and that she cannot or
will not remedy the conditions which led to removal in a reasonable amount
of time.” Id. Accordingly, the court held that that OCYF met its burden
under section 2511(a)(2) by clear and convincing evidence. After careful
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review, we conclude that the court’s determinations are well supported by
the record.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
are met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.
2008) (en banc). This Court has stated that the focus in terminating
parental rights under section 2511(a) is on the parent, but the focus is on
the child pursuant to section 2511(b). Id. at 1008.
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 “intangibles 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.
1992)], 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).
Here, the orphans’ court concluded that it would be in Child’s best
interest for Mother’s parental rights to be terminated. The court emphasized
Mother’s incapacity to parent Child and the lack of bond between Mother and
Child. To the contrary, Mother argues that the court erred in terminating
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her parental rights, as “[s]uch termination unnecessarily and permanently
terminates the loving relationship between Child and Mother.” Mother’s Brief
at 11. Mother further avers that Child has a bond with her and benefits from
contact with her. Id.
Again, we conclude that the record supports the orphans’ court’s
decision to terminate Mother’s parental rights. The court stated that, in
reaching its decision, it relied on the following testimony, which it found to
be credible:
On January 18, 2017, Dr. Pepe concluded an interactional
evaluation of Mother and Child. Dr. Pepe observed Child’s affect
to be “very flat. There was just lack of emotion…. [H]e seemed
to be familiar with her, but just unusually unemotional. He was
blunted. There was no discernable facial expression. He
certainly wasn’t smiling.” Dr. Pepe “did not see an
attachment…. [Mother] tried over and over to engage
with him, but he remained very flat and, you know, was
just trying to scoot away and did not exhibit primary
bonding toward her.”
Dr. Pepe conducted two interactional evaluations between
Child and Foster Mother and observed a “dramatic difference.”
With Foster Mother, Child “was significantly more animated. He
would approach her. He was smiling a big and bright smile….
He was happy…. She was positively responsive and he exhibited
multiple bonding behaviors suggestive of a primary attachment
toward her.”
Dr. Pepe explained that Foster Mother is Child’s
psychological parent “and if there’s a separation after a
significant process of bonding, then the child is at high risk for
childhood depression, for developmental regression, for a
multitude of problems, both currently and in the future.” Dr.
Pepe found “it to be in [Child’s] best psychological interests to
remain in his current home permanently through adoption.”
OCYF also was not of the belief that there is such a bond
between Mother and Child[,] such that termination would be
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detrimental to Child. Ms. Andrews testified that there is a
“marked difference” between how Child acts with his Foster
Mother versus his Mother. Ms. Andrews explained that if Child
falls he does not look to Mother to comfort him and sooth him[,]
but “when I’m at the home, if he trips and falls, if [Foster
Mother] isn’t right there to pick him up, he’s running to her to be
comforted.” Ms. Andrews believed that Child is bonded with
Foster Mother and will go to her “when he wants something or
needs something or wants to play … or wants to be held….”
Conversely, Mother “struggles with developmentally appropriate
play and the child-centered activity.”
TCO at 13-14 (citations to record omitted) (emphasis added in original).
As there is competent evidence in the record that supports the
orphans’ court’s credibility and weight assessments regarding Child’s needs
and welfare, and the absence of any bond with Mother, we conclude that the
court did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d
at 826-27. Accordingly, we affirm the order terminating Mother’s parental
rights to Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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