In the Interest of: J.M.K., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W., MOTHER : No. 649 MDA 2016
Appeal from the Decree March 23, 2016
In the Court of Common Pleas of York County
Orphans’ Court at No: 2015-0096
IN THE INTEREST OF: S.E.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W., MOTHER : No. 650 MDA 2016
Appeal from the Decree March 23, 2016
In the Court of Common Pleas of York County
Orphans’ Court at No: 2015-0097
IN THE INTEREST OF: S.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W., MOTHER : No. 652 MDA 2016
Appeal from the Order Entered March 24, 2016
In the Court of Common Pleas of York County
Juvenile Division at No: CP-67-DP-0000150-2014
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IN THE INTEREST OF: J.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.W., MOTHER : No. 653 MDA 2016
Appeal from the Order Entered March 24, 2016
In the Court of Common Pleas of York County
Juvenile Division at No: CP-67-DP-0000151-2014
BEFORE: STABILE, DUBOW, and PLATT*, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 17, 2016
A.W. (“Mother”) appeals from the decrees entered March 23, 2016, in
the Court of Common Pleas of York County, which involuntarily terminated
her parental rights to her minor daughter, S.E.K., born in November of
2009, and to her minor son, J.M.K., born in February of 2011 (collectively,
“the Children”).1 In addition, Mother appeals from the orders entered March
24, 2016, which changed the Children’s permanency goals to adoption.
After careful review, we affirm.
We summarize the relevant factual and procedural history of this
matter as follows. On July 22, 2014, the York County Office of Children,
Youth and Families (“CYF”) filed applications for emergency protective
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* Retired Senior Judge assigned to the Superior Court.
1
The decrees also terminated the parental rights of R.K., the Children’s
father. R.K. has not filed a brief in connection with this appeal, nor has he
filed his own separate appeal.
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custody of the Children. In its applications, CYF averred that Mother was
homeless, and that she and the Children had been living in a car.
Application for Emergency Protective Custody (S.E.K.), 7/22/14, at 3. CYF
further averred that Mother dropped the Children off at the home of their
paternal grandparents on July 16, 2014, and that Mother’s whereabouts
were unknown. Id. at 4. The Children appeared to be suffering from
several infected bug bites. Application for Emergency Protective Custody
(S.E.K.), 7/22/14, at 3; Application for Emergency Protective Custody
(J.M.K.), 7/22/14, at 3. In addition, S.E.K. appeared to be suffering from
severe eczema that had not been treated. Application for Emergency
Protective Custody (S.E.K.), 7/22/14, at 3.
CYF obtained orders for emergency protective custody of the Children
on July 23, 2014. The orders awarded legal and physical custody of the
Children to CYF, and placed the Children in the home of their paternal
grandparents. CYF retained legal and physical custody of the Children
pursuant to shelter care orders entered July 29, 2014. CYF filed dependency
petitions on July 28, 2014, and the Children were adjudicated dependent by
orders entered August 26, 2014.
On August 11, 2015, CYF filed petitions to involuntarily terminate
Mother’s parental rights to the Children, as well as petitions to change the
Children’s permanency goals to adoption. The trial court held a termination
and goal change hearing on December 1, 2015, December 17, 2015, and
December 29, 2015. The court convened an additional hearing on March 22,
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2016, during which it announced its decision to terminate Mother’s parental
rights and to change the Children’s permanency goals to adoption. The
court entered its termination decrees on March 23, 2016, and entered its
goal change orders on March 24, 2016. Mother timely filed notices of appeal
from the goal change orders on April 20, 2016, along with concise
statements of errors complained of on appeal. Mother timely filed notices of
appeal from the termination decrees on April 21, 2016, along with additional
concise statements of errors complained of on appeal.
Mother now raises the following issues for our review.
[1.] Did [CYF] fail to establish grounds for termination of
Mother’s parental rights under 23 Pa. C.S[.A.] [§] 2511(a)(8) in
that the conditions which led to removal of the [C]hildren do not
continue to exists? [sic]
[2.] Does termination of Mother’s parental rights best serve the
needs and welfare of the [C]hildren?
Mother’s brief at 6 (suggested answers omitted).2
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2
While Mother purports to appeal from the trial court’s goal change orders,
she does not raise any claim regarding these orders in her statement of
questions involved. The argument section of her brief includes no
substantive discussion of the goal change orders, nor does it contain any
citation to relevant authority. Accordingly, Mother has failed to preserve any
challenge to the goal change orders for our review. See Krebs v. United
Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (“We will not
ordinarily consider any issue if it has not been set forth in or suggested by
an appellate brief’s statement of questions involved, . . . .”) (citations
omitted); In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011), appeal
denied, 24 A.3d 364 (Pa. 2011) (quoting In re A.C., 991 A.2d 884, 897 (Pa.
Super. 2010)) (“‘[W]here an appellate brief fails to provide any discussion of
(Footnote Continued Next Page)
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We consider Mother’s claims mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts 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. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
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 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. One major aspect of the
needs and welfare analysis concerns the nature and status of the
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(Footnote Continued)
a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”’).
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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) (citations omitted).
In this case, the trial court terminated Mother’s parental rights
pursuant to Sections 2511(a)(8) 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:
***
(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.
***
(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)(8) and (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(8).
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In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(8), the following factors must be demonstrated: (1) The
child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa. Super. 2003).
“Notably, termination under Section 2511(a)(8)[] does not require an
evaluation of [a parent’s] willingness or ability to remedy the conditions that
led to placement of her children.” In re Adoption of R.J.S., 901 A.2d 502,
511 (Pa. Super. 2006) (citations omitted) (emphasis in original).
Instantly, the trial court found that the Children were removed from
Mother’s care more than twelve months prior to the filing of the termination
petitions on August 11, 2015. N.T., 3/22/16, at 21. The court further found
that that the conditions resulting in the Children’s removal continue to exist.
Id. at 25. The court reasoned that the Children were adjudicated dependent
as a result of Mother’s “pattern of poor judgment and bad decision making,”
and that Mother has failed to correct this pattern. Id. at 24. The court
emphasized that Mother lacked stable housing at the time of the
adjudication of dependency, and that Mother continues to lack stable
housing. Id. at 22-24. The court found that Mother is unemployed, that
she has failed to obtain a psychological evaluation, and that she does not
appreciate the importance of providing the Children with appropriate medical
care. Id. at 22, 25, 28. In addition, the court concluded that terminating
Mother’s parental rights would best serve the needs and welfare of the
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Children. The court acknowledged that Mother has a bond with the Children.
Id. at 27. However, the court found that Mother’s bond with the Children “is
not a positive one.” Id. The court concluded that the Children will not
suffer any long-term harm if Mother’s parental rights are terminated. Id. at
28.
Mother argues that CYF failed to establish that her parental rights
should be terminated, because she has remedied the conditions that led to
the removal of the Children. Mother’s brief at 13-16. Mother contends that
she has acquired stable housing, attends the Children’s medical
appointments, no longer uses drugs, and performs well during her visits with
the Children. Id. at 13-15. With respect to the needs and welfare of the
Children, Mother contends that the Children are strongly bonded to her, and
that terminating her parental rights will be detrimental to the Children. Id.
at 18. Mother also asserts that the trial court committed an error of law by
preventing her from introducing evidence concerning the Children’s kinship
foster parents. Id. at 16-17. According to Mother, the kinship foster
parents were separated and divorcing at the time of the termination and
goal change hearing, and the Children are now living solely with their kinship
foster father, who is their paternal grandfather. Id. at 16. Mother alleges
that the paternal grandfather suffers from “a severe case of agoraphobia,”
and is unable to drive more than five miles away from his home. Id. at 16-
17.
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After carefully examining the record in this matter, we conclude that
the trial court did not abuse its discretion by terminating Mother’s parental
rights to the Children. During the termination and goal change hearing, CYF
presented the testimony of the Children’s caseworker, Ms. Kelly Wood. Ms.
Wood testified that Mother was struggling with a host of issues at the time
the Children were removed from her care. Ms. Wood explained that Mother
had been residing with her grandmother, but that the grandmother kicked
Mother out because “things were stolen” from the grandmother’s home.
N.T., 12/17/15, at 49. As a result, Mother and the Children were forced to
live in Mother’s car. Id. In addition, Mother had been a drug user “since a
very early age” and was smoking “spice” and engaging in sexual encounters
in front of the Children. Id. at 36, 74-75, 81. Mother was on probation at
the time the Children were removed from her care, and was facing
outstanding charges of driving under the influence and assaulting a
corrections officer. Id. at 38. Mother was arrested on September 21, 2014,
shortly after the Children were adjudicated dependent, and was incarcerated
for three days on charges of public drunkenness, harassment, and disorderly
conduct. Id. at 50.
Despite these issues, Ms. Wood testified that Mother initially made
progress toward reunification with the Children. Id. at 43. By March of
2015, Mother was again residing with her grandmother, and had obtained
employment at a gas station. N.T., 12/29/15, at 7. Mother completed a
drug and alcohol evaluation and was testing negative for illegal substances.
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N.T., 12/17/15, at 71; N.T., 12/29/15, at 7. Mother was participating in
outpatient therapy as well as services from JusticeWorks. N.T., 12/17/15, at
71; N.T., 12/29/15, at 7. Mother even was being offered overnight visits
with the Children. N.T., 12/17/15, at 64. Unfortunately, Mother’s progress
ground to a halt when she was arrested for stealing lottery tickets from the
gas station where she was employed. Id. at 49-50 59-60. Mother was
incarcerated from March 23, 2015, until August 23, 2015. Id. at 57.
Concerning the needs and welfare of the Children, Ms. Wood testified
that the Children appear to share a parent/child bond with Mother “at
times.” Id. at 51. Mother and the Children are affectionate during visits,
and the Children get upset when visits are over. Id. at 51, 85. Prior to
Mother’s incarceration, the Children also would become upset when Mother
missed visits. Id. at 53. Ms. Wood initially testified that the bond between
Mother and the Children is strong and positive. Id. at 52-53. However, Ms.
Wood later testified that the Children’s bond with Mother is “neutral.” N.T.,
12/29/15, at 20-21. Ms. Wood explained that the Children have not spent
enough time with Mother to have “a good strong healthy bond,” and that the
Children’s bond with Mother is comparable to “an aunt/uncle, niece/nephew
bond.” Id. at 29. Further, Ms. Wood stated that S.E.K.’s therapist has
expressed concern regarding a possible return of S.E.K. to Mother’s care.
Id. at 40-41. Reportedly, S.E.K. was afraid “that there was not going to be
electricity or heat or food, that they would be living out of the car. She was
also very fearful of mom’s paramour at that time when they were placed.”
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Id. at 41. Ms. Wood opined that terminating Mother’s parental rights would
likely cause the Children short-term harm, but that there would not be any
long-term harm. Id. at 21. Ms. Wood noted that the Children had no
contact with Mother for several months due to her recent incarceration, but
that they did not “display any negative effects” as a result of that lack of
contact. N.T., 12/17/15, at 95. To the contrary, Ms. Wood stated that the
Children were “doing very, very well” during Mother’s incarceration. Id. at
77. Ms. Wood later acknowledged that the Children did cry and ask for
Mother on an unknown number of occasions while she was incarcerated.
N.T., 12/29/15, at 22.
Accordingly, the record supports the finding of the trial court that the
Children have been removed from Mother’s care for more than twelve
months, and that the conditions that led to the removal of the Children
continue to exist. When the Children were first placed in CYF custody on
July 23, 2014, Mother lacked housing because she stole from her
grandmother. By the time CYF filed its termination petitions on August 11,
2015, Mother again lacked housing, this time because she stole from her
employer and was incarcerated. While Mother initially made progress
toward being reunified with the Children, Mother squandered that progress
by continuing to engage in criminal activity. It was proper for the trial court
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to conclude that Mother has exhibited a pattern of poor judgment and bad
decision making, and that she has failed to correct that pattern.3
In addition, the record supports the trial court’s finding that
terminating Mother’s parental rights would best serve the needs and welfare
of the Children. The record reveals that Mother and the Children share a
significant bond. Mother and the Children get along well during visits and
the Children are resistant to leaving Mother when visits are over. However,
it was within the court’s discretion to accept the testimony of Ms. Wood that
the Children’s bond with Mother is more akin to “an aunt/uncle,
niece/nephew bond” than to a parent/child bond, and that the Children will
not suffer long-term harm if Mother’s parental rights are terminated.
Finally, with respect to Mother’s contention that the trial court abused
its discretion by declining to hear evidence concerning the Children’s kinship
foster parents, we conclude that this claim merits no relief. During the
termination and goal change hearing, Ms. Wood testified that the Children’s
kinship foster parents recently separated, and that the Children are now
living solely with their paternal grandfather. N.T., 12/17/15, at 96-97.
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3
We acknowledge that Section 2511(b) prohibits courts from terminating
parental rights “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.” 23 Pa.C.S.A. § 2511 (b). Here, the
relevant provision of Section 2511(b) does not apply, as the trial court did
not terminate Mother’s parental rights solely on the basis of environmental
factors, and because Mother’s incarceration for stealing lottery tickets clearly
was not beyond her control.
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Later during the hearing, Mother’s counsel attempted to ask Ms. Wood
whether the paternal grandfather has a disability. N.T., 12/29/15, at 23.
Counsel for CYF objected to this question on the basis of relevance. Id. at
23-24. Counsel for Mother stated that the paternal grandfather suffers from
agoraphobia, and that it would not be in the Children’s best interest to be
adopted by the paternal grandfather. Id. at 24. However, the trial court
sustained the objection, noting that termination proceedings are often
conducted in the absence of an adoptive resource. Id. at 24-25.
In its opinion pursuant to Pa.R.A.P. 1925(a)(2)(ii), the trial court
explained that it prevented Mother’s counsel from presenting additional
evidence concerning the Children’s paternal grandfather because “the law
does not require the Trial Court to consider the nature or availability of
adoptive parents in termination proceedings where the termination petition
is filed by the Agency.” Trial Court Opinion, 5/25/16, at 2 (citing N.T.,
12/29/15, at 23-25; In re Burns, 379 A.2d 535 (Pa. 1977)). The court
further explained that additional evidence concerning the paternal
grandfather’s agoraphobia would not have prevented the termination of
Mother’s parental rights, and that the court would have terminated Mother’s
rights “even if the [C]hildren had no connections with Paternal Grandparents
or other caregivers.” Id. at 2-3.
While it is true that the existence of a pre-adoptive resource is not
required in order to terminate parental rights in cases where the termination
petition has been filed by a child protective services agency, the trial court is
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mistaken in its belief that it was not obligated to consider the nature or
availability of a pre-adoptive resource for the Children. Our Supreme Court
has explained that, even in cases where termination is being sought by an
agency, “[c]ommon sense dictates that courts considering termination must
also consider whether the children are in a pre-adoptive home and whether
they have a bond with their foster parents.” T.S.M., 71 A.3d at 268.
Nonetheless, given the trial court’s conclusion that it would terminate
Mother’s parental rights even in the absence of a pre-adoptive resource, it is
not necessary to remand this matter for further fact-finding concerning the
paternal grandfather. For the reasons already discussed, the record would
support the court’s decision to terminate Mother’s parental rights, even if the
paternal grandfather were not available to care for the Children. Had the
court declined to terminate Mother’s parental rights, the Children would be
left to languish in foster care while Mother again attempts to achieve
reunification. As this Court has stated, “a child’s life cannot be held in
abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities. The court cannot and will not subordinate
indefinitely a child's need for permanence and stability to a parent’s claims
of progress and hope for the future.” R.J.S., 901 A.2d at 513.
We next consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(b). We have
discussed our analysis under Section 2511(b) as follows.
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Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).4
As explained above, our review of record confirms that terminating
Mother’s parental rights will best serve the needs and welfare of the
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4
We observe that Sections 2511(a)(8) and (b) both require a court
considering a termination petition to assess the needs and welfare of the
relevant child or children. However, the needs and welfare analysis required
by Section 2511(a)(8) is distinct from the needs and welfare analysis
required by Section 2511(b), and must be addressed separately. See In re
C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (“[W]hile both
Section 2511(a)(8) and Section 2511(b) direct us to evaluate the ‘needs and
welfare of the child,’ . . . they are distinct in that we must address Section
2511(a) before reaching Section 2511(b).”).
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Children. While the Children share a bond with Mother, it was within the
trial court’s discretion to conclude that this bond is not a positive one, and
that the Children will not suffer long-term harm if Mother’s parental rights
are terminated. Terminating Mother’s parental rights will prevent the
Children from languishing in foster care while Mother again attempts to
achieve reunification, and, hopefully, will allow the Children to obtain
permanence and stability.
Accordingly, because we conclude that the trial court did not abuse its
discretion by involuntarily terminating Mother’s parental rights to the
Children, we affirm the decrees of the trial court. In addition, we conclude
that Mother has waived any challenge to the orders changing the Children’s
permanency goals to adoption.
Decrees affirmed. Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2016
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