In Re: J.S., Appeal of: L.W., Mother

J-A28021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.S., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: L.W., MOTHER :
:
:
:
:
: No. 957 MDA 2021
Appeal from the Decree Entered July 7, 2021
In the Court of Common Pleas of Lycoming County Orphans’ Court at
No(s): 2020-6726
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 06, 2022
Appellant L.W. (Mother) appeals from the order granting the petition of
Lycoming County Children and Youth Services (the Agency) and involuntarily
terminating her parental rights to J.S. (the Child). We affirm.
The orphans’ court set forth the following findings of fact:
[The Child] was born [in] April [of] 2018. He is the child of [S.S.
(Father)] . . . and [Mother] . . . . Mother and Father were not
married at the time of the Child’s birth.
The Agency has extensive history with this family, with whom they
have been involved since 2015. The Agency’s prior involvement
resulted in the voluntary termination of Mother’s parental rights
to her two older children, one of whom was also Father’s child.
The Agency filed a dependency petition on July 22, 2019, alleging
that Mother was demonstrating the same pattern of neglectful
parenting of the Child as she did with her two older children. More
specifically, the petition alleged that the Child had been diagnosed
with failure to thrive, and Mother did not follow through with
doctors’ directions regarding the Child’s milk intolerance. The
____________________________________________
* Former Justice specially assigned to the Superior Court.
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petition also alleged that Mother failed to pick up prescribed
medications and formula for the Child in a timely manner and
missed several scheduled medical appointments for the Child.
The Child was placed in the emergency custody of the Agency on
July 31, 2019, due to Mother’s lack of follow-through with medical
treatment, housing, and parenting. A shelter care hearing was
held on August 2, 2020, at which time it was determined that
sufficient evidence was presented to prove that return of the Child
to the home of Mother and Father would not be in the Child’s best
interest.
A dependency hearing was held on August 12, 2019, after which
the [dependency] court adjudicated the Child dependent. The
[dependency] court noted significant concerns in regard to
Mother’s lack of insight with regard to the Child’s medical issues,
and determined that she had not placed his medical needs as a
priority. As the [dependency] court found that allowing the Child
to remain in the home of Mother and Father would be contrary to
the Child’s welfare, legal and physical custody of the Child was to
remain with the Agency and the Child was to remain the approved
kinship home.[1] Mother was directed to focus on feeding the Child
by providing foods at visits that the Child can eat, to maintain
suitable housing, continue to attend all medical appointments with
the Child, maintain regular contact with the Agency, maintain
contact with the Outreach worker, and continue to work with
Expectations for Women.
A permanency review hearing was held on December 6, 2019.
The [dependency] court noted that there had been moderate
compliance with the permanency plan, in that Mother maintained
suitable housing and had appropriate home conditions. Mother
cooperated with Outreach services and consistently attended
visits with the Child. Mother was found to have made some
progress towards alleviating the circumstances which necessitated
placement, but had made no efforts to secure employment.
During this review period, Mother requested visits in her home
and also requested overnight visits. Overnight visits were not
approved but the Agency was directed to transition Mother’s visits
from the visitation center to supervised visits at Mother’s home.
Following the hearing, the [dependency] court reaffirmed
____________________________________________
1 The Child was placed with the foster parents who had adopted his biological
siblings, T.B. and M.B. N.T. Hr’g, 6/7/21, at 78-79.
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dependency and the Child remained in the legal and physical
custody of the Agency with continued placement in his foster care
home.
A permanency review hearing was held on March 10, 2020. The
[dependency] court found that there had been moderate
compliance with the permanency plan by Mother and moderate
progress towards alleviating the circumstances which necessitated
the original placement. During the review period, Mother
maintained her housing and continued to have appropriate home
conditions, despite having sizeable outstanding utility bills.
Mother was cooperative with Outreach services and attended all
medical appointments for the Child. Mother enjoyed supervised
visits in her home, and her care of the Child improved under the
Agency’s guidance, but the guardian ad litem [(GAL)] voiced
concern about Mother’s capability to independently care for the
Child and requested that an evaluation be conducted by Dr. Denise
Feger at Crossroads Counseling. The [dependency] court ordered
Mother to undergo the evaluation for the purpose of determining
Mother’s ability to properly care for the Child. The [dependency]
court remained concerned about Mother’s lack of employment,
and her lack of knowledge of paying bills and budgeting. Following
the hearing, the [dependency] court reaffirmed dependency and
legal and physical custody of the Child remained with the Agency
for continued placement in his current foster home.
A permanency review hearing was held on June 29, 2020. The
[dependency] court found that Mother had minimal compliance
with the permanency plan and made minimal progress towards
alleviating the circumstances which necessitated the original
placement. During the review period, Mother maintained housing
and continued to have appropriate home conditions. However,
significant concerns were raised about Mother’s behaviors during
the [COVID-19] pandemic, which included allowing multiple
individuals to live in her house . . . . Mother failed to undergo the
[c]ourt-ordered evaluation with Dr. Denise Feger, despite multiple
attempts by Dr. Feger’s office to contact her to schedule a video
evaluation due to the pandemic. Additionally, although Mother
was generally cooperative with Outreach services, Mother refused
assistance to prepare for job searching and interviewing. The
[dependency] court remained concerned about Mother’s lack of
motivation to obtain employment, and the impact her limited
income has on her ability to meet her financial obligations.
Following the hearing, the [dependency] court reaffirmed
dependency and legal and physical custody of the Child remained
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with the Agency for continued placement in his current foster
home.
A permanency review hearing was held on September 15, 2020.
The [dependency] court found that Mother had minimal
compliance with the permanency plan and made minimal progress
towards alleviating the circumstances which necessitated the
original placement. During the review period, Mother maintained
housing and continued to have appropriate home conditions[,] but
Mother had no understanding of her living expenses and relied
completely on her father to handle the payment of her expenses.
Mother was cooperative with Outreach Services. However, Mother
was still not actively seeking employment and had limited income
through Social Security. Mother no-showed [for] six visits [with
the Child during] this review period and no-showed for two
appointments with Dr. Feger prior to finally undergoing her
evaluation. Following the hearing, the [dependency] court
reaffirmed dependency and legal and physical custody of the Child
remained with the Agency for continued placement in his current
foster home. With some hesitation, the [dependency] court
granted the Agency’s Motion for Compelling reasons not to
proceed with filing a petition to terminate parental rights. Mother
was strongly encouraged to take action to accomplish the
recommendations outlined in Dr. Feger’s evaluation, and
cautioned that if she did not become more proactive in addressing
the areas of concern the [dependency] court would not see a basis
to grant compelling reasons in the future.
A permanency review hearing was held on December 15, 2020.
The [dependency] court found that Mother had moderate
compliance with the permanency plan and made moderate
progress towards alleviating the circumstances which necessitated
the original placement. During the review period, Mother
maintained housing and continued to have appropriate home
conditions. Mother reported that she recently obtained
employment, but had not begun working. In the limited
opportunities that Mother had available due to COVID-19, Mother
demonstrated improvement in feeding the Child appropriate foods
with regard to his allergies. Following the hearing, the
[dependency] court reaffirmed dependency and legal and physical
custody of the Child remained with the Agency for continued
placement in his current foster home. Mother was directed that
prior to the next hearing she shall either obtain and start
employment sufficient to support herself and the Child or provide
documentation that her disability income is sufficient to do so.
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A permanency review hearing was held on March 12, 2021, and
March 18, 2021. The [dependency] court found that Mother had
moderate compliance with the permanency plan but made only
minimal progress towards alleviating the circumstances which
necessitated the original placement. During the review period,
Mother maintained housing and continued to have appropriate
home conditions. Mother consistently attended visits with the
Child. Mother had not completed the neuropsychological
evaluation or scheduled an appointment at CSG for a Peer
Specialist, as recommended by Dr. Feger. The [dependency]
court found that Mother was basically in the same position that
she was in at the time of the last review hearing and that she
continually failed to follow-through with items that the Agency has
recommended and the [dependency] court has directed.
Following the hearing, the [dependency] court reaffirmed
dependency and legal and physical custody of the Child remained
with the Agency for continued placement in his current foster
home. The [dependency] court further found that there were no
longer compelling reasons to not pursue termination of Mother’s
parental rights. The [dependency] court advised Mother that she
was reaching a point in the case where the Agency most likely
would be filing a petition to terminate her parental rights, and if
she wished to prevent that, she needed to take immediate action
and be 100 percent compliant with all of the directives that have
been outlined by the Agency.
A permanency review hearing was held on April 16, 2021. The
[dependency] court found that Mother had minimal compliance
with the permanency plan and had made no progress towards
alleviating the circumstances which necessitated the original
placement, in that she continued to be at the same level of
progress since the Child was placed. During the review period,
Mother did verify her employment. However, her employment
may have been a factor in Mother missing some visits with the
Child, which resulted in Mother being placed on call-in status with
regard to visits. At visits, Mother had not made any significant
improvements and continually needed prompting by the staff with
regard to the food that she brings for the Child in light of his milk
allergy. Mother had not obtained the neuropsychological
evaluation and could not be referred to one until she found a
primary physician. Mother had made no attempts to find a family
physician, nor had she attempted to make arrangements for care
for the Child if he was returned to her care. Following the hearing,
the [dependency] court reaffirmed dependency and legal and
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physical custody of the Child remained with the Agency for
continued placement in his current foster home.
The Agency filed a petition for involuntary termination of parental
rights on April 1, 2021. A petition for change of goal to adoption
was filed on May 12, 2021. The petition for involuntary
termination alleged termination was warranted under 23 Pa.C.S.
§ 2511(a)(1), (2), (5), and (8). The hearing on the petition was
held on June 7, 2021, and June 28, 2021.[2] [Angela Lovecchio,
Esq. served as the Child’s GAL and legal counsel.3]
* * *
There is no dispute that Mother has been very vocal about her
desire to maintain a place of importance in her [c]hild’s life and to
have the Child returned to her custody. Mother’s visits began as
“observed,” meaning that staff was always present/nearby to offer
support and assistance as needed, and remained at that status at
the time of the hearing. Mother visits with [the] Child 2 days per
week for 2 hours at a time. For a short time, the visits occurred
in Mother’s home under Agency supervision; however those visits
were changed to video visits following an issue with bed bugs in
Mother’s home and, later, due to COVID-19. In-person visits have
resumed at the Agency’s family support center.
William Pearson, visitation caseworker for the Agency, testified
that Mother’s strengths were her attendance rate, which was
approximately 91% and that Mother and the Child had a nice
relationship and enjoyed each other’s company. Due to several
no-shows at the scheduled visitation time, the Agency notified
____________________________________________
2 “Father signed a consent to adopt on April 16, 2021, and was not present at
the hearings.” Orphans’ Ct. Op. & Decree at 1 (formatting altered). Father
and his counsel were excused from the hearings. Id.
3 The orphans’ court found that because of the Child’s age, the Child could not
express a position regarding this termination matter and there was no conflict
for Attorney Lovecchio serving as both the GAL and legal counsel for the Child.
Order, 5/4/21. The appointment of the GAL as the Child’s legal counsel
complies with the mandate of 23 Pa.C.S. § 2313(a) and In re Adoption of
L.B.M., 161 A.3d 172, 183 (Pa. 2017), and this Court may not sua sponte
review whether there was a conflict in the Child’s best and legal interests.
See In re Adoption of K.M.G., 240 A.3d 1218, 1236 (Pa. 2020). In any
event, the record shows there was no conflict in the Child’s best and legal
interests.
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Mother by letter dated August 31, 2020, that she was required to
call the Agency prior to each visit to notify them of her intent to
attend the visit. Because her visit on Thursday mornings is
scheduled to begin at 8:00 a.m., Mother is required to notify the
agency by 4:30 p.m. on Wednesday if she plans to attend.
Recently, Mother has missed visits on Thursday morning because
she has failed to call in on Wednesday. Mother has attributed her
failure to make this call to having to work late at her job.
* * *
Although Mr. Pearson testified that Mother has supplied safe
supervision and appropriate redirection during the visits, he
acknowledged that it has been nearly 2 years since the visits
started and it took Mother nearly that long to grasp how serious
the Child’s milk allergy is, and how to read labels to ensure that
she is not providing him with foods that have milk or milk by-
products as an ingredient.
* * *
Bruce Anderson, licensed psychologist under contract with the
Agency, performed an evaluation of Mother on October 21, 2020.
Mr. Anderson indicated that Mother’s ability to abstract was rather
limited. He testified that this means when the Child presents with
difficult or different issues or behaviors, Mother may experience
difficulties figuring out what to do. He opined that Mother may
become overwhelmed when the needs of the Child go beyond the
normal routine, and that only if Mother has full-time support and
not just occasional service providers would she be capable of
handling these challenges. Mr. Anderson recommended that
Mother continue working with her Outreach worker to maintain
suitable and appropriate housing, continue having her father [i.e.,
the Child’s maternal grandfather,] be her payee and assist her
with payment of her expenses, and seek the assistance of the
Office of Vocational Rehabilitation (OVR) if she wished to obtain
employment. Additionally, an addendum to the report included
the recommendation that Mother obtain a neuropsychological
evaluation, which may have shed light on the root causes of
Mother’s inability to follow-through with things and learn from her
past mistakes when it comes to appropriately caring for her
children.
In March of 2020, Mother was ordered to undergo a behavioral
health assessment with Dr. Denise Feger of Crossroads
Counseling. At the time of the permanency review hearing in June
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2020, Mother still had not completed the evaluation. Dr. Feger
testified that her office remained open during the entire pandemic
for virtual services but that they had a difficult time getting ahold
of Mother. Mother no-showed 2 previously scheduled
appointments before finally attending the evaluation on
September 4, 2020. Dr. Feger testified that the purpose of the
evaluation was to determine whether Mother has the ability to
independently care for the Child. Among other things, Dr. Feger
recommended that Mother do the following:
1. Obtain a peer specialist
2. Engage in OVR services
3. Engage in out-patient counseling
4. Obtain a mental health intake
5. Create a partnership with the foster parents
6. Continue with Outreach services to address parenting and
protective capacity
7. Obtain a neuropsychological evaluation
* * *
Aimee Gatzke, Agency caseworker, testified regarding the goals
established for Mother in the service plan and Dr. Feger’s
recommendations and the level of progress Mother made towards
achieving those goals. Regarding the need for safe and stable
housing, Ms. Gatzke testified that Mother was able to maintain her
housing. However, there was an issue with bed bugs in Mother’s
home which Mother became aware of in November of 2020 but
did not address until February of 2021. Additionally, Mother’s
finances are managed by her father as her payee, and while her
rent is current, her limited Social Security income does not leave
Mother with sufficient income to pay all her expenses. Mother has
no understanding of her actual expenses beyond her rent, and for
much of the length of her involvement with the Agency lacked the
motivation to obtain employment to supplement her Social
Security income. Despite repeated recommendations by her
Outreach worker, ongoing caseworker, and Dr. Feger to engage
the services of OVR, Mother never followed through with making
an appointment, and testified that she obtained employment on
her own. Mother failed to understand that the recommendation
was made so Mother could receive assistance finding not just a
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job, but sustainable employment that will not interfere with her
government benefits and allow her to adequately provide for her
own needs and those of the Child.
Mother did not follow-through with the recommendation that she
form a partnership with the foster family. Although both Mother
and the foster mother testified that Mother’s communication has
increased to approximately one time per week, the conversations
were often superficial and repetitive, and not frequent enough for
Mother to gain an understanding of what the foster parents have
done to resolve/manage the Child’s medical and dietary needs.
Mother testified that she turned in the paperwork to obtain a peer
specialist but has “gotten nowhere” with it. Mother did not
attempt to schedule counseling until March of 2021 despite being
recommended to do so in September of 2020. Mother still has not
undergone the neuropsychological evaluation that was
recommended. When questioned about her lack of urgency to
accomplish these tasks and her lack of follow-through, Mother is
unable to provide an explanation.
* * *
[Dr. Feger performed a fitness/bonding assessment regarding
Mother and the Child on April 6, 2020.] Dr. Feger testified that
there is a bond between Mother and the Child, and that the Child
identifies Mother as his “mommy.” However, Dr. Feger’s
evaluation and subsequent testimony at the hearing explained
that the Child does not view [Mother] as [his] “mommy” in the
traditional sense because his relationship with Mother is not one
that relates to a primary caretaker. Child spends only a couple
hours per week with Mother, and their time together is always
supervised. Mother cares for the Child “moderately superficially”
in the visitation setting but there are a secondary set of caregivers
— the foster parents — who have served a far greater role for the
Child.
Orphans’ Ct. Op. & Decree, 7/7/21, at 1-9, 11-15, 18 (some formatting
altered).
On July 7, 2021 the orphans’ court issued an opinion and decree
involuntarily terminating Mother’s parental rights to the Child pursuant to
Section 2511(a)(1), (2), (5), (8), and (b). Id. at 20-23.
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On July 19, 2021, Mother timely filed a notice of appeal and a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P
1925(a)(2)(i) and (b). The orphans’ court filed a Rule 1925(a) opinion
adopting the reasoning of its July 7, 2021 opinion and decree. See Orphans’
Ct. Op., 7/29/21, at 1-2.
Mother raises the following issues for our review:
1. Whether the [orphans’] court erred in terminating the parental
rights of [Mother] pursuant to 23 Pa.C.S. § 2511(a)(1) when
[Mother] has not failed to perform parental duties of a period
of at least six months and made every effort to have a
relationship with her child.
2. Whether the [orphans’] court erred in terminating the parental
rights of [Mother] pursuant to 23 Pa.C.S. § 2511(a)(2) when
there was insufficient evidence that the Child was without
essential parental care, control or subsistence necessary and
causes of the incapacity cannot or will not be remedied as
[Mother] made substantial progress to remedy the incapacity
and provide the Child with essential parent care, control and
subsistence necessary.
3. Whether the [orphans’] court erred in terminating the parental
rights of [Mother] pursuant to 23 Pa.C.S. § 2511(a)(5) and 23
Pa.C.S. § 2511(a)(8) in finding that (1) the Child has been
removed from parental care for at least six months and twelve
months respectively; (2) the conditions which led to removal
or placement of the Child continues to exist; (3) and
termination would best serve the needs and welfare of the Child
when [Mother] has remedied the conditions and the needs and
welfare of the Child would not be best served by termination.
4. Whether the [orphans’] court erred in terminating the parental
rights of [Mother] pursuant to 23 Pa.C.S.[] § 2511(b), when
there is a bond between the Child and [Mother] and the best
interests of the Child would not be served by termination.
Mother’s Brief at 7-8 (formatting altered).
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Our Supreme Court has explained that
appellate 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. If the factual findings are
supported, appellate courts review to determine if the trial court
made an error of law or abused its discretion. As has been often
stated, an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
[T]here 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. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).
This Court has explained:
Termination of parental rights is governed by section 2511 of the
Adoption Act, [23 Pa.C.S. § 2511,] which requires a bifurcated
analysis:
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
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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. . . .
The burden is upon the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the
termination of parental rights are valid.
* * *
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).
In re M.T., 101 A.3d 1163, 1178-79 (Pa. Super. 2014) (en banc) (citations
omitted and formatting altered).
We have explained that “[t]he standard of clear and convincing evidence
is defined as testimony that is so clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.” In re C.L.G., 956 A.2d 999, 1004 (Pa.
Super. 2008) (en banc) (citations and quotation marks omitted).
Although Mother challenges the orphans’ court decision involuntarily
terminating her parental rights pursuant to Section 2511(a)(1), (2), (5), and
(8), because we may affirm with regard to only one subsection, we address
the orphans’ court’s decision under subsection (a)(8) because it is dispositive.
See M.T., 101 A.3d at 1179.
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Section 2511(a)(8)
Mother contends that the Agency failed to meet its evidentiary burden
with respect to Section 2511(a)(8), and the orphans’ court erred in
terminating her parental rights under that subsection. Mother’s Brief at 30-
32. Mother acknowledges that the Child had been in care for more than twelve
months, which satisfies the time requirement of Section 2511(a)(8). Id. at
31. However, Mother argues that the conditions which led to the placement
of the Child no longer exist. Id. at 30-31. Specifically, Mother claims that
she had a 91% attendance rate for visitation with the Child both in-person
and via video calls. Id. at 31. Mother also notes that prior to the COVID-19
pandemic, Mother had visitation with the Child at her home. Id. Mother
asserts that she made progress in providing appropriate foods for the Child
and there were no safety issues raised during her visitation sessions. Id. at
31-32. Further, Mother asserts that she has “maintained her housing,
cooperated with Outreach services, maintained her father as her payee,
obtained employment, underwent a Psychological Evaluation with Bruce
Anderson and a Behavioral Health Evaluation with Dr. Feger.” Id. at 32.
Mother concludes that she made significant progress in meeting her goals and
remedying the conditions that led to the Child’s removal from her care. Id.
The Agency and the GAL did not file appellee briefs, and instead
submitted letters indicating that they relied on the orphans’ court opinion.
Section 2511(a)(8) provides:
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(a) General rule.—The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
* * *
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency, 12
months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of the
child.
23 Pa.C.S. § 2511(a)(8).
There are three factors that must be established in order to terminate
parental rights under this subsection:
an agency must prove by clear and convincing evidence that (1)
that the child has been removed from the care of the parent for
at least twelve (12) months; (2) that the conditions which had led
to the removal or placement of the child still exist; and (3) that
termination of parental rights would best serve the needs and
welfare of the child.
C.L.G., 956 A.2d at 1005 (citations and quotation marks omitted).
The C.L.G. Court explained that with respect to the second factor under
Section 2511(a)(8), “a reasonable possibility that” the parent “could remedy
the condition” that led to the child’s removal is irrelevant to an analysis under
Section 2511(a)(8), “which requires only that the conditions continue to exist,
not an evaluation of parental willingness or ability to remedy them.” Id. at
1007. Further, this Court has explained that “a child’s life simply cannot be
put on hold in the hope that a parent will summon the ability to handle the
responsibilities of parenting” and the courts “will not toll the well-being and
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permanency of [a child] indefinitely.” Id. (citation omitted and formatting
altered).
As to the third factor under subsection (a)(8), this Court explained that
“the analysis under Section 2511(a)(8) accounts for the needs of the child in
addition to the behavior of the parent.” Id. at 1008-09. Further, “while both
Section 2511(a)(8) and Section 2511(b) direct us to evaluate the needs and
welfare of the child, [a court is] required to resolve the analysis relative to
Section 2511(a)(8)” before addressing Section 2511(b). Id. at 1009.
Here, the orphans’ court concluded:
The court finds that the Agency has proven by clear and
convincing evidence that grounds for termination of Mother’s
parental rights exist under [Section 2511(a)(8)]. The Child was
removed from the home and placed in the legal and physical
custody of the Agency on July 31, 2019, and has been in Agency’s
custody ever since. The Child had been removed from his
Mother’s care for approximately 20 months at the time of the filing
of the petition for involuntary termination of parental rights. At
each of the permanency review hearings for the Child, Mother was
found to have only minimal to moderate compliance with the
permanency plan and made no substantial progress towards
alleviating the conditions which necessitated the Child’s
placement. As described above, Mother continues to experience
the same difficulties meeting both her and the Child’s needs as
she did at the time of placement, despite numerous attempts by
the Agency to connect her with services designed to enable and
empower her to do so. Meanwhile, the Child has had his basic
needs met by his [foster] family, and has flourished with proper
medical care and nutrition, love, and support. It is clear to this
court that termination of Mother’s parental rights would best serve
the needs and welfare of the Child.
Orphans’ Ct. Op. & Decree at 17 (formatting altered).
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As stated above, Mother does not dispute the first requirement of
Section 2511(a)(8), i.e., the Child has been removed from her care for more
than twelve months. Briefly, the record establishes that the Child was placed
in the emergency custody of the Agency on July 31, 2019, and the Agency
filed the instant petition to involuntarily terminate Mother’s parental rights on
April 1, 2021, more than twelve months later. See N.T. Hr’g, 6/7/21, at 10,
112-21; see also Pet. for Involuntary Termination of Parental Rights, 4/1/21,
at ¶ I(12), (41). Accordingly, the record supports the orphans’ court’s
conclusion that the Agency established the first requirement of Section
2511(a)(8). See C.L.G., 956 A.2d at 1005.
As to the second factor, the orphans’ court found that “Mother continues
to experience the same difficulties meeting both her and the Child’s needs as
she did at the time of placement, despite numerous attempts by the Agency
to connect her with services designed to enable and empower her to do so.”
See Orphans’ Ct. Op. & Decree at 17. The orphans’ court credited the
testimony of Ms. Gatzke and Mr. Anderson that Mother continued to struggle
with managing her responsibilities to provide a stable and secure home for
the Child and to meet the Child’s daily needs. See id. at 12-14.
Our review of the records indicates that Ms. Gatzke testified that she is
an Agency caseworker and has been assigned to the Child and Mother since
September 2019. See N.T. Hr’g, 6/7/21, at 102-03. Ms. Gatzke described
the problems with the Child’s health and Mother’s non-compliance with
medical advice when the Child was in Mother’s care. See id. at 104-08. Ms.
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Gatzke testified Mother requires regular reminders to attend the Child’s
medical appointments (that the foster parents arrange), and Ms. Gatzke
expressed concern that Mother would not remember to attend to the Child’s
needs without reminders from Agency caseworkers. See id. at 149-50. Ms.
Gatzke believes that Mother could not establish a budget for herself. See id.
at 119-22, 127-28. Further, Mother had not followed Agency advice about
applying for public assistance and employment services. See id. at 133-34,
137.
Mr. Anderson, a licensed psychologist, evaluated Mother on October 21,
2020. See id. at 27. Mr. Anderson opined that Mother would be capable of
caring for a child in the sense of following a normal routine, but she would
have difficulty handling more difficult medical or behavioral problems involving
the Child. See id. at 35.
Additionally, Dr. Feger testified that she performed a comprehensive
behavioral health evaluation of Mother on September 4, 2020. See N.T. Hr’g,
6/28/21, at 6. Dr. Feger explained that she had “significant concerns
connected to protective capacity largely connected to [Mother’s] ability to
meet the expectations from the original behavioral health evaluation, as well
as her ability to advance her current visitation and maintain her home
environment.” See id. at 20. Dr. Feger observed that Mother appeared to
be overwhelmed by managing both her own needs and goals and those of the
Child at the same time. See id. at 27.
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Accordingly, the record supports the orphans’ court’s finding that the
conditions that led to the Child’s removal from Mother’s care continued to exist
more than twelve months after the Child’s removal. See C.L.G., 956 A.2d at
1007. We note Mother’s argument that she made significant progress in
remedying the conditions during the time Child was in placement, preceding
the filing of the instant petition. However, after considering Mother’s efforts,
the orphans’ court concluded that her actions were not enough to remedy the
conditions which led to placement. See id. (explaining that an analysis under
Section 2511(a)(8), requires only a determination that the conditions which
led to the removal or placement of the child continue to exist, and “not an
evaluation of parental willingness or ability to remedy them”).
As to the third element of subsection (a)(8), i.e., that termination would
best serve the needs and welfare of the Child, the orphans’ court concluded
that “the Child has had his basic needs met by his [foster] family, and has
flourished with proper medical care and nutrition, love, and support[]” and
that termination would best serve the Child’s needs and welfare. See
Orphans’ Ct. Op. & Decree at 17.
N.B., the foster mother, testified that she and her husband provide for
the Child’s daily needs and that the Child developed from an underweight
fifteen-month-old baby who did not yet walk or talk to a healthy three-year-
old who enjoys playing with his biological siblings in their care. See N.T. Hr’g,
6/7/21, at 77-86. Further, Dr. Feger testified that she had significant concerns
about Mother’s lack of progress in working towards reunification. See N.T.
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Hr’g, 6/28/21, at 25. As stated above, Dr. Feger observed that Mother
appeared to be overwhelmed by managing both her own needs and goals and
those of the Child at the same time. See id. at 27. However, Dr. Feger
testified that she does not make recommendations regarding termination.
See id. at 37.
Accordingly, the record supports the orphans’ court’s findings of fact and
conclusions of law that the Agency provided sufficient evidence that the
termination of Mother’s parental rights would best serve the needs and welfare
of the Child as required by the third requirement of subsection (a)(8). See
C.L.G., 956 A.2d at 1008-09.
In sum, having reviewed the record, the orphans’ court’s opinion, and
Mother’s arguments in this appeal, we conclude that the record supports the
orphans’ court’s factual findings that the Agency presented clear and
convincing evidence for terminating Mother’s parental rights under Section
2511(a)(8). See M.T., 101 A.3d at 1179.
Section 2511(b)
Mother contends that because the Agency failed to carry its burden to
prove grounds for termination existed under Section 2511(a), the orphans’
court should not have considered whether termination was appropriate under
Section 2511(b). Mother’s Brief at 34. Mother alternatively argues that the
orphans’ court erred by terminating Mother’s parental rights because
termination would sever a bond between Mother and the Child, causing injury
to the Child. Id. at 34-36. Mother refers to Dr. Feger’s testimony that Mother
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and the Child have an established bond, although Mother’s relationship to the
Child is more like that of a child-care provider or a babysitter than that of a
parent. Id. at 34-35. Mother also notes that Mr. Pearson testified that Mother
has a good relationship with the Child, she regularly attends visitation with
the Child, and those visits go well. Id. at 35-36.
On this record, we agree with the orphans’ court that it acted within its
discretion in concluding that the statutory grounds for termination have been
met under Section 2511(a)(8). Therefore, we next review the orphans’ court’s
conclusions as to whether the termination serves the needs and welfare of the
Child, pursuant to Section 2511(b). See M.T., 101 A.3d at 1178.
Section 2511(b) provides:
(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(b).
“[T]he focus in terminating parental rights is on the parent, under
Section 2511(a), whereas the focus in Section 2511(b) is on the child.”
C.L.G., 956 A.2d at 1008 (citation omitted).
The C.L.G. Court explained that regarding Section 2511(b):
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Intangibles such as love, comfort, security, and stability are
involved when inquiring about the needs and welfare of the child.
The court must also discern the nature and status of the parent-
child bond, paying close attention to the effect on the child of
permanently severing the bond.
Moreover, [t]he court should also consider the importance of
continuity of relationships to the child, because severing close
parental ties is usually extremely painful. The court must consider
whether a natural parental bond exists between child and parent,
and whether termination would destroy an existing, necessary and
beneficial relationship. Most importantly, adequate consideration
must be given to the needs and welfare of the child.
Id. at 1009-10 (citations omitted and formatting altered).
Further, this Court has explained that the existence of “some bond”
between a parent and a child “does not necessarily defeat termination of her
parental rights.” In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). Rather,
the question is whether the bond between the parent and the child “is the one
worth saving or whether it could be sacrificed without irreparable harm to” the
child. Id. The K.Z.S. Court affirmed the termination of the mother’s parental
rights where the child had a stronger bond with foster mother than child had
with mother, and child saw foster mother as his primary caregiver. Id. at
755, 764.
Instantly, the orphans’ court explained:
Dr. Feger testified that there is a bond between Mother and the
Child, and that the Child identifies Mother as his “mommy.”
However, Dr. Feger’s evaluation and subsequent testimony at the
hearing explained that the Child does not view her as “mommy”
in the traditional sense because his relationship with Mother is not
one that relates to a primary caretaker. [The] Child spends only
a couple hours per week with Mother, and their time together is
always supervised. Mother cares for the Child “moderately
superficially” in the visitation setting but there are a secondary set
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of caregivers — the foster parents — who have served a far
greater role for the Child. Essentially, the relationship between
Mother and [the] Child equates to that of an occasional child-care
provider or babysitter.
Additionally, the existence of some bond with Mother does not
necessarily defeat termination of her parental rights. . . . The Child
is currently in a loving and stable home, with two of his biological
siblings. When the Child was removed from Mother’s care at
approximately 15 months of age, he was behind on his gross
motor skills, had extremely high lead content in his blood, had
chronic ear infections, and was extremely underweight. Within
two months of being placed in this foster home, the Child began
walking and had gained sufficient weight that he no longer needed
to have weight checks. The Child’s foster mother testified that
they did nothing out of the ordinary — they simply made and
attended the Child’s medical appointments and monitored his diet
to avoid lactose. This type of consistency and follow-through that
has allowed the Child to thrive while in their care is exactly what
Mother lacks the ability to achieve.
Mother has been offered numerous services by the Agency since
her initial involvement in 2015. These services were designed to
assist Mother with obtaining stable housing and maintaining home
conditions, basic parenting, budgeting, connecting with
community resources, and follow-through. The Child has been in
this placement for approximately 23 months, and is in a loving
and stable home where all his needs are met. Dr. Feger testified
that from a clinical standpoint it would be at least 1-2 additional
years before Mother could achieve reunification, and the
environment in which he would be placed if reunification efforts
are successful does not parallel his current environment.
The foster parents have provided everything the Child needs and
this has naturally established a bond and attachment between the
Child and the individuals whom he identifies as his primary
caretakers. There are significant concerns about Mother’s ability
to address her own needs and simultaneously establish a
protective capacity to ensure a safe and secure environment for
the Child. Mother’s history may be the most accurate prediction
of her future and the Child’s permanency cannot and should not
be delayed until Mother gains the skills necessary to
independently and consistently provide appropriate care for the
Child. The Child is clearly bonded with the [foster] parents, who
have provided for his physical and emotional needs for
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approximately half of his life, and who are willing to offer him
permanency. Although there is a bond between Mother and [the]
Child that would require some explanation as to the absence of
his “mommy,” the Court is satisfied that termination of Mother’s
parental rights would not cause irreparable harm to the Child.
This Court further finds that permanency in the form of adoption
by those who have met his needs since July 31, 2019, is in the
best interest of the Child.
Orphans’ Ct. Op. & Decree at 18-20.
Our review of the record indicates that Dr. Feger acknowledged that
Mother loves and cares about the Child and she wants to be successful in
reunification with the Child. See N.T. 6/28/21, at 27. However, Dr. Feger
opined that while a bond existed between Mother and the Child, it is not as
strong as the Child’s bond with the foster parents, and that severing the bond
between Mother and the Child would be in the Child’s best interests. See id.
at 16-19.
Based on this record, we discern no abuse of discretion in the orphans’
court’s findings of fact or conclusions of law that the Agency established the
grounds for termination under Section 2511(b) by clear and convincing
evidence. See M.T., 101 A.3d at 1179; C.L.G., 956 A.2d at 1010. The record
evidence supports the orphans’ court’s finding that although there was a bond
between Mother and the Child, the Child does not identify Mother as his
primary caretaker, and the Child would suffer more from the severing of the
bond between him and foster parents than from severing the bond between
Mother and the Child. See K.Z.S., 946 A.2d at 755, 764. Further, we
conclude that the orphans’ court appropriately considered the developmental,
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physical, and emotional needs and the welfare of the Child and determined
that they were best served by the termination of Mother’s parental rights.
See C.L.G., 956 A.2d at 1010. Accordingly, we conclude that the orphans’
court did not abuse its discretion, and we affirm the decree involuntarily
terminating Mother’s parental rights. See S.P., 47 A.3d at 826.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2022
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