In the Int. of: W.E.B., a Minor Appeal of: R.E.B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: W.E.B., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: R.E.B., MOTHER : No. 35 MDA 2022
Appeal from the Decree Entered December 9, 2021
In the Court of Common Pleas of York County
Orphans' Court at No(s): 2021-0205a
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED JULY 28, 2022
Appellant, R.E.B. (“Mother”), appeals from the decree entered in the
York County Court of Common Pleas, which granted the petition of York
County Office of Children and Youth and Families (“CYF”) for the involuntary
termination of Mother’s parental rights to her minor child, W.E.B. (“Child”).
We affirm.
The relevant facts and procedural history of this case are as follows.
Child was born in December 2019. CYF initially became involved with Child
on December 20, 2019, upon receiving a general protective services (“GPS”)
referral alleging substance abuse by Mother and domestic violence between
Mother and Father. CYF provided services for four months and the case was
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* Former Justice specially assigned to the Superior Court.
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closed on April 16, 2020. CYF received another GPS referral on April 20, 2020,
when the West Manchester Police Department responded to the home due to
allegations that Mother was caring for Child while impaired. Upon entering
the home, the police officers observed that Mother was unsteady on her feet
as she held Child. Police administered a blood alcohol test which showed that
Mother’s blood alcohol content was 0.13. Mother was ultimately convicted of
endangering the welfare of a child regarding this incident and is currently
serving probation for this conviction. Child’s father indicated that he is
unwilling to be a resource for Child and does not wish to pursue reunification.
Child was adjudicated dependent on July 6, 2020 and placed in kinship
care with Barbara Wolf (“Maternal Grandmother”) and her paramour, Frank
DeSalvo. After Child’s adjudication, Mother was permitted supervised
visitation with Child and provided with drug, alcohol, mental health and
parenting education services. Following periodic permanency review
hearings, the court noted that Mother was moderately complying with the
permanency plan but there was a continued need for placement of Child
outside of Mother’s care due to insufficient progress toward alleviating the
circumstances which necessitated the original placement. On February 25,
2021, Mother underwent a parenting capacity evaluation which concluded that
Mother’s ability to effectively parent Child is hampered by her use of pain
medication, mental health struggles, and lack of adaptive coping strategies,
which often leads to unhealthy personal decisions. On August 20, 2021,
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Mother attempted to commit suicide by overdosing on her pain medication
and was admitted to WellSpan Crisis Intervention under a 72-hour hold.
On September 24, 2021, CYF filed a petition for involuntary termination
of Mother’s parental rights to Child. The court conducted a termination
hearing on December 9, 2021. Kelly Stormes-Smith, a York County probation
and parole officer, testified that Mother is currently on probation for the above-
mentioned conviction. Officer Stormes-Smith reported that Mother is largely
compliant with the terms of her supervision other than failing to mail in
reporting forms. Mother is required to complete a drug and alcohol evaluation
by February 7, 2023.
Daniel Haverstock, an outpatient therapist at Pennsylvania Counseling
Services, testified that Mother was recommended for treatment after she
completed a drug and alcohol evaluation on June 22, 2020. Mother completed
drug and alcohol treatment on July 19, 2021. Mother was also provided with
mental health services. On October 6, 2021, Mother was discharged because
Mother needed a higher level of mental health care. Mr. Haverstock reported
that while Mother was provided services, she was regularly present and
engaged in treatment.
Ashlynn McConnell, a case manager at Pennsylvania Counseling
Services, testified that she has been meeting with Mother on a weekly basis
since August of 2020 to assist Mother with non-treatment goals. Specifically,
she works with Mother to meet goals in engaging with physical and mental
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health providers and financial planning, and Mother has been cooperative in
this process.
Jessica Weymer, who works at Pressley Ridge, testified that she has
been supervising Mother’s visitation with Child since April 2021. Mother’s
visitation occurs two times per week and Mother is consistent and prepared in
attending her visits. Mother comes to visits with toys and snacks, and actively
engages with Child. However, Ms. Weymer noted one instance where Mother
appeared lethargic and put her head down.
Brandon Ambrose, a caseworker with CYF, testified that the top issues
identified for Mother to address were mental health stability, drug and alcohol
treatment, and housing. Mr. Ambrose indicated that these issues have
remained consistent since Child was adjudicated dependent. Specifically,
Mother was hospitalized in August 2021 for mental health treatment. Mr.
Ambrose last examined Mother’s residence in February 2021, and he observed
safety issues. He has not since returned to assess whether Mother has
remedied these issues. Mr. Ambrose reported that although Mother has been
consistent in her visits, she has not progressed to unsupervised or partially
supervised visits. Mother takes numerous prescription medications for pain
management and there were concerns at the start of the case that Mother
was supplementing her medication with alcohol. Since then, Mother has
submitted to drug and alcohol testing, and she has not tested positive for any
substances other than her prescribed medication. However, Mr. Ambrose
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expressed continued concern over Mother’s lethargy and tendency to sleep
through the day. As a result, Mr. Ambrose does not believe Mother is in a
position to provide for the care and safety of Child.
Mr. Ambrose regularly visits with Child at his kinship placement and
confirmed that Child is in a safe, loving home where all his needs are met.
Additionally, Child is happy, content and particularly bonded with Mr. Desalvo.
Mr. Ambrose opined that there would be no long-term negative impacts on
Child if Mother’s parental rights were terminated. Child seems to have a
stronger parental bond with Maternal Grandmother and Mr. DeSalvo than he
does to Mother. Additionally, Maternal Grandmother and Mr. DeSalvo have
indicated that if Mother’s parental rights were terminated, they would continue
to allow Mother contact with Child, so long as she is emotionally and mentally
stable.
After considering all the evidence presented, the court entered a decree
terminating Mother’s parental rights on December 9, 2021. Mother timely
filed a notice of appeal and contemporaneous Pa.R.A.P. 1925(a)(2)(i) concise
statement on December 29, 2021.
Mother raises the following issues for our review:
Whether the [Orphans’ Court] abused its discretion in finding
that [CYF] had proved by clear and convincing evidence that
the parental rights of [Mother] should be terminated
pursuant to 23 Pa.C.S.A. § 2511(a)(5).
Whether the [Orphans’ Court] abused its discretion in finding
that [CYF] had proved by clear and convincing evidence that
the parental rights of [Mother] should be terminated
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pursuant to 23 Pa.C.S.A. § 2511(b).
(Mother’s Brief at 4).
In her issues combined, Mother argues the record does not show that
she was unwilling or incapable of remedying the conditions that led to Child’s
removal. Mother asserts that since Child was adjudicated dependent, she has
successfully completed drug and alcohol treatment and has not tested positive
for a non-prescribed substance. Mother contends she has been compliant with
CYF plans, prepared and present during her visits with Child, and is actively
treating her mental health issues. Additionally, Mother submits that Child’s
stronger bond with Maternal Grandmother and Mr. DeSalvo is merely a result
of Child spending more time with them. Mother concludes that CYF failed to
present clear and convincing evidence that Mother is incapable of caring for
Child and that termination is in Child’s best interests, and this Court should
reverse the decree involuntarily terminating Mother’s parental rights. We
disagree.
Appellate review in termination of parental rights cases implicates the
following principles:
In cases involving termination of parental rights: “our
standard of review is limited to determining whether the
order of the trial court is supported by competent evidence,
and whether the trial court gave adequate consideration to
the effect of such a decree on the welfare of the child.”
In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972
A.2d 5, 8 (Pa.Super. 2009)).
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Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court’s
decision, the decree must stand. … We must employ
a broad, comprehensive review of the record in order
to determine whether the trial court’s decision is
supported by competent evidence.
In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en
banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004)
(internal citations omitted).
Furthermore, we note that the trial court, as the finder
of fact, is the sole determiner of the credibility of
witnesses and all conflicts in testimony are to be
resolved by [the] finder of fact. The burden of proof
is on the party seeking termination to establish by
clear and convincing evidence the existence of
grounds for doing so.
In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super.
2002) (internal citations and quotation marks omitted). The
standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without
hesitation, of the truth of the precise facts in issue. In re
J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We may
uphold a termination decision if any proper basis exists for
the result reached. In re C.S., 761 A.2d 1197, 1201
(Pa.Super. 2000) (en banc). If the court’s findings are
supported by competent evidence, we must affirm the
court’s decision, even if the record could support an opposite
result. In re R.L.T.M., 860 A.2d 190, 191[-92] (Pa.Super.
2004).
In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d
1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 1165(2008)).
CYF filed a petition for the involuntary termination of Mother’s parental
rights to Child on the following grounds:
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§ 2511. Grounds for involuntary termination
(a) General Rule.―The rights of a parent in regard to
a child may be terminated after a petition filed on any of the
following grounds:
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(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement
with an agency for a period of at least six months, the
conditions which led to the removal or placement of
the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable
period of time, the services or assistance reasonably
available to the parent are not likely to remedy the
conditions which led to the removal or placement of
the child within a reasonable period of time and
termination of the parental rights would best serve the
needs and welfare of the child.
* * *
(b) Other considerations.―The court in terminating
the rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
* * *
23 Pa.C.S.A. § 2511(a)(5) and (b). “Parental rights may be involuntarily
terminated where any one subsection of Section 2511(a) is satisfied, along
with consideration of the subsection 2511(b) provisions.” In re Z.P., supra
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at 1117. When conducting a termination analysis:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only
if the court determines that the parent’s conduct warrants
termination of…[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.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted).
Instantly, Child has been removed from Mother’s care since July 6, 2020
due to Mother’s inability to provide proper care for Child. Notably, since Child
has been adjudicated dependent, Mother has not progressed to unsupervised
visitation with Child. Although Mother has been cooperative with CYF and
engaged in drug and alcohol and mental health treatment, Mother has not
demonstrated sufficient progress such that she is presently capable of caring
for Child. Specifically, the court expressed concern that Mother is lethargic
and sleeping through the day due to her pain medication. Additionally, at the
time of the termination hearing, Mother’s mental health issues were still of
concern as Mother attempted to commit suicide in August of 2021. On this
record, the court concluded that notwithstanding Mother’s efforts, the
conditions which led to Child’s removal still existed and Mother was unable to
remedy those issues. See 23 Pa.C.S.A. § 2511(a)(5). See also In re
Adoption of R.J.S., 901 A.2d 502 (Pa.Super. 2006) (holding that court
should not subordinate child’s need for permanence and stability to parent’s
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claim of progress and hope for future). Thus, the record supports the court’s
decision to terminate Mother’s parental rights to Child under Section
2511(a)(5). See In re Z.P., supra.
Additionally, the record supports the court’s decision to terminate
Mother’s parental rights under Section 2511(b). Child is bonded with Maternal
Grandmother and Mr. DeSalvo and relies on them to fulfill his physical,
developmental, and emotional needs. Child has a particularly close
relationship with Mr. DeSalvo. Maternal Grandmother and Mr. DeSalvo have
provided a loving, stable home for Child. Mr. Ambrose testified that although
Child also has a bond with Mother, Mother is presently unable to provide stable
care for Child. See In re Adoption of C.D.R., 111 A.3d 1212 (Pa.Super.
2015) (affirming termination decision where court acknowledged that Mother
and Child were bonded, but reasoned that termination would not be
detrimental to Child and would serve Child’s best interest and allow Child to
find permanency with another family); In re N.A.M., 33 A.3d 95 (Pa.Super.
2011) (explaining mere existence of emotional bond does not preclude
termination of parental rights). As the record supports the court’s conclusions
under Section 2511(a)(5) and (b), we see no reason to disturb its decision to
terminate Mother’s parental rights. See In re Z.P., supra. Accordingly, we
affirm.
Decree affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:07/28/2022
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