In Re: Adoption of: D.P.M., Minor Child

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: D.P.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.K.T., MOTHER
No. 2205 MDA 2015
Appeal from the Decree November 18, 2015
In the Court of Common Pleas of York County
Orphans’ Court at No(s): 2015-0093
IN THE INTEREST OF: D.P.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.K.T., MOTHER
No. 2215 MDA 2015
Appeal from the Order Entered November 18, 2015
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000143-2014
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 15, 2016
Appellant, E.K.T. (Mother), appeals from the November 18, 2015
decree involuntarily terminating her parental rights, and the order entered
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*
Former Justice specially assigned to the Superior Court.
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the same day, changing the permanency goal to adoption with respect to her
son, D.P.M., born in March 2014.1 After careful review, we affirm.2
D.P.M. was removed from the home of Mother and Father on July 17,
2014, when he was four months old, due to domestic violence between his
parents, as well as Mother’s drug and alcohol abuse, and her mental health
issues. Trial Court Opinion, 11/18/15, at Finding of Fact ¶ 10; N.T.,
10/1/15, at 54-55. The trial court adjudicated him dependent on September
11, 2014.
The permanency goal for D.P.M. was reunification. CYF established
the following Family Service Plan (FSP) goals for Mother: to obtain stable
housing and employment, to obtain drug and alcohol evaluations and to
follow any recommendations, to provide negative drug screens, and to
address mental health concerns. N.T., 10/1/15, at 56-57.
Permanency review hearings occurred on December 18, 2014, May 28,
2015, and November 2, 2015, which resulted in orders finding that “Mother
had made minimal progress towards alleviating the circumstances which
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1
J.M. (Father) executed a consent for the adoption of D.P.M. on May 28,
2015, which was confirmed by decree of the trial court dated October 1,
2015. In addition, C.R. (Putative Father) executed a consent subsequent to
the subject proceedings, which was confirmed by decree dated December
10, 2015. Neither Father nor Putative Father filed notices of appeal.
2
We observe that the York County Offices of Children, Youth and Families
(CYF) and the guardian ad litem (GAL) filed a joint brief in support of the
involuntary termination decree and the goal change order.
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necessitated the original placement.” Trial Court Order, 12/18/14, at 1;
Trial Court Order, 5/28/15, at 1; Trial Court Order, 11/2/15, at 1. In the
final two permanency review orders, the trial court found that Mother was in
minimal compliance with her FSP goals. Trial Court Order, 5/28/15, at 1;
Trial Court Order, 11/2/15, at 1.
On July 30, 2015, CYF filed a petition for the involuntary termination of
Mother’s parental rights and a petition for a goal change to adoption. A
hearing on the petitions was held on October 1, 2015, during which CYF
presented the testimony of Kimberly Myers, a drug and alcohol monitor at
Families United Network (FUN); Katrina Weeden and Laura Bosley, in-home
family therapists at Pressley Ridge; and Mitra Honardoost, a CYF
caseworker. Mother testified on her own behalf.
On November 18, 2015, the trial court involuntarily terminated
Mother’s parental rights. That same day, the trial court changed the
permanency goal to adoption. Mother timely filed separate notices of appeal
and concise statements of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a)(2)(i). The trial court filed
its Rule 1925(a) opinion on January 6, 2016.3
On appeal, Mother presents three questions for our review.
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3
On January 7, 2016, this Court consolidated these appeals sua sponte.
See generally Pa.R.A.P. 513.
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I. Whether the trial court erred in changing the goal
from reunification to adoption and termination of
parental rights without clear and convincing evidence
that a change of goal would best serve the interests
of the child[?]
II. Whether the trial court erred in terminating
[Mother’s] parental rights without clear and
convincing evidence that termination best served the
emotional needs and welfare of the child[?]
III. Whether [CYF] failed to present clear and
convincing evidence that termination of [Mother’s]
parental rights best served the emotional needs and
welfare of the child[?]
Mother’s Brief at 4.
We begin our review with the goal change order, which we consider
according to the following standard.
In cases involving a court’s order changing the
placement goal… to adoption, our standard of review
is abuse of discretion. To hold that the trial court
abused its discretion, we must determine its
judgment was manifestly unreasonable, that the
court disregarded the law, or that its action was a
result of partiality, prejudice, bias or ill will. While
this Court is bound by the facts determined in the
trial court, we are not tied to the court’s inferences,
deductions and conclusions; we have a responsibility
to ensure that the record represents a
comprehensive inquiry and that the hearing judge
has applied the appropriate legal principles to that
record. Therefore, our scope of review is broad.
In re S.B., 943 A.2d 973, 977 (Pa. Super. 2008) (citations omitted), appeal
denied, 959 A.2d 320 (Pa. 2008); see also In re R.J.T., 9 A.3d 1179, 1190
(Pa. 2010).
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This matter is controlled by the Juvenile Act, 42 Pa.C.S. §§ 6301-
6375, which was amended in 1998 to conform to the federal Adoption and
Safe Families Act (“ASFA”), 42 U.S.C. §§ 620-679. In re M.S., 980 A.2d
612, 615 (Pa. Super. 2009), appeal denied, 985 A.2d 220 (Pa. 2009). We
have recognized that “[b]oth statutes are compatible pieces of legislation
seeking to benefit the best interest of the child, not the parent. … ASFA
promotes the reunification of foster care children with their natural parents
when feasible …. Pennsylvania’s Juvenile Act focuses upon reunification of
the family, which means that the unity of the family shall be preserved
‘whenever possible.’” Id., citing 42 Pa.C.S.A. § 6301(b)(1). As such, child
welfare agencies are required to make reasonable efforts to return a foster
child to his or her biological parent. In re N.C., 909 A.2d 818, 823 (Pa.
Super. 2006). When those efforts fail, the agency “must redirect its efforts
toward placing the child in an adoptive home.” Id.
At permanency review hearings for dependent children removed from
the parental home, a trial court must consider the following factors.
§ 6351. Disposition of dependent child
…
(f) Matters to be determined at permanency
hearing.—
At each permanency hearing, a court shall determine
all of the following:
(1) The continuing necessity for and
appropriateness of the placement.
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(2) The appropriateness, feasibility and extent
of compliance with the permanency plan
developed for the child.
(3) The extent of progress made toward
alleviating the circumstances which
necessitated the original placement.
(4) The appropriateness and feasibility of the
current placement goal for the child.
(5) The likely date by which the placement
goal for the child might be achieved.
(5.1) Whether reasonable efforts were made to
finalize the permanency plan in effect.
(6) Whether the child is safe.
…
(9) If the child has been in placement for at
least 15 of the last 22 months or the court has
determined that aggravated circumstances
exist and that reasonable efforts to prevent or
eliminate the need to remove the child from
the child’s parent, guardian or custodian or to
preserve and reunify the family need not be
made or continue to be made, whether the
county agency has filed or sought to join a
petition to terminate parental rights and to
identify, recruit, process and approve a
qualified family to adopt the child….
42 Pa.C.S.A. § 6351(f)(1)-(6), (9). “These statutory mandates clearly place
the trial court’s focus on the best interests of the child.” In re S.B., supra
at 978 (citation omitted). We have stated, “[s]afety, permanency, and well-
being of the child must take precedence over all other considerations.” Id.
(citation omitted) (emphasis in original). Moreover, the burden is on the
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child welfare agency “to prove the change in goal would be in the child’s best
interest.” In re D.P., 972 A.2d 1221, 1227 (Pa. Super. 2009), appeal
denied, 973 A.2d 1007 (Pa. 2009).
Instantly, Mother argues the trial court erred “[b]y not considering the
extent of progress [she] was to make [sic] towards alleviating the
circumstances which necessitated the original placement of [D.P.M.]”
Mother’s Brief at 9. We conclude that Mother’s argument is without merit.
Indeed, in its opinion that accompanied the goal change order, the trial court
found that Mother made minimal progress towards alleviating the
circumstances necessitating the child’s placement. Trial Court Opinion,
11/18/15, at 9.
Mother is currently residing with [her] grandmother
but it is uncertain whether this living arrangement is
long-term. Since the adjudication of dependency
Mother has had sporadic employment. Mother has
made no progress in addressing her mental health
issues. The Discharge Summary from Holy Spirit
Hospital in February 2013 indicates that Mother was
diagnosed with psychotic disorder and substance
abuse. Mother obtained a drug and alcohol
evaluation from Guadenzia Westshore Outpatient
Program on March 24, 2015. Said evaluation
recommended intensive outpatient counseling.
Mother was diagnosed with Posttraumatic Stress
Disorder on October 31, 2014 and it was
recommended that Mother participate in individual
therapy. Mother failed to follow through with the
recommendations for individual counseling and
testified that she does not believe she has any
mental health or substance abuse issues.
Mother was drug tested by [FUN] from July 19,
2014 through the present. Since July 19, 2014, FUN
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attempted to test Mother 63 times and was able to
successfully test Mother 37 times. Of the successful
tests, Mother tested positive on 25 occasions.
Mother’s last negative drug test was April 16, 2015.
Mother tested positive on October 1, 2015, the date
of the [t]ermination of [p]arental [r]ights [h]earing.
Additionally, Mother did not work with her assigned
in-home teams. Testimony established that Mother
was uncooperative and repeatedly refused their
services.
Id. The testimonial evidence of all of the witnesses overwhelmingly
supports the trial court’s findings.
Specifically, Ms. Honardoost testified that Mother has not made any
progress in addressing the issues that initially caused D.P.M.’s placement.
N.T., 10/1/15, at 72. She testified on direct examination as follows.
Q. Is [M]other in a position today to obtain physical
custody of the minor child?
A. No.
Q. Why is that?
A. Due to ongoing drug use and mental health
concerns that have not been fully addressed….
Q. Why would termination of [M]other’s parental
rights be in the best interest of the minor child?
A. The minor child needs permanency. He has been
in care for over a year now….
Id.
Moreover, on inquiry by the trial court, Mother testified to the
following.
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Q. If [D.P.M.] was in your care today, do you believe
he would be safe in your care today?
A. It would take a lot of help, but yes. I can’t do it
on my own.
Q. So you’re currently not able to provide care for
him on your own?
A. Not by myself without some help, no.
Q. Approximately how long do you think it would
take for you to be able to care for [D.P.M.] on your
own?
A. I wish I could tell you.
Id. at 123. Further, Mother testified as follows on cross-examination by the
GAL.
Q. You said that you don’t think you have a drug
problem, correct?
A. I think my problem is a lot bigger than that, sir.
Q. I’m sorry.
A. I think my problem is a lot bigger than a drug
problem.
Id. at 120.
The record demonstrates that D.P.M. was 19 months old by the time of
the subject proceedings. He had been in placement since he was 4 months
old, for a total of 15 months. During those months, Mother failed to comply
with her FSP goals. Her illegal drug use continued, and her mental health
remained problematic. As such, we discern no abuse of discretion by the
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court in concluding that D.P.M.’s best interests demanded that the goal be
changed from reunification to adoption. See S.P., supra.
We next address the decree of involuntary termination, which we also
consider according to an abuse of discretion standard. 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 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 Section 2511(a)(1), (2), (5), (8), and (b), which provide as
follows.
§ 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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(1) The parent by conduct continuing for a
period of at least six months immediately
preceding the filing of the petition either has
evidenced a settled purpose of relinquishing
parental claim to a child or has refused or
failed to perform parental duties.
(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.
…
(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.
…
(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.
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…
(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)(1), (2), (5), (8), (b).
Mother argues that “[e]ven if the Agency did meet its burden under
Section 2511(a), the trial court did not adequately consider the second
prong of the bifurcated process which was to determine the needs and
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welfare of [D.P.M.] under the standard of best interests of [D.P.M.]”
Mothers’ Brief at 12. Mother relies on the testimony of the CYF caseworker,
Mitra Honardoost, who testified, “the visits [between Mother and D.P.M.] --
go fairly well. Mother and [D.P.M.] appear to have a bond. And the
affection is appropriate. Everything is appropriate.” Id. at 12, citing N.T.,
10/1/15, at 63. Mother acknowledges that Ms. Honardoost testified that
D.P.M.’s bond is stronger with his foster family than with Mother. However,
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Because Mother does not argue on appeal that the trial court abused its
discretion with respect to Section 2511(a), we do not address it.
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Mother argues, “there was no evidence presented that such a young child
(approximately a year and a half) would not transfer that bond back to his
mother should he be reunified. Given the child’s age, there is no evidence
that the child would suffer any specific emotional[] setbacks should he be
removed from the foster mother’s care.” Id. at 12-13.
With respect to Section 2511(b), this Court has explained the requisite
analysis as follows.
Subsection 2511(b) focuses on whether termination
of parental rights would best serve the
developmental, physical, and emotional needs and
welfare of the child. In In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and
stability are involved in the inquiry into the needs
and welfare of the child.” In addition, we instructed
that the trial court must also discern the nature and
status of the parent-child bond, with utmost
attention to the effect on the child of permanently
severing that bond. Id. However, in cases where
there is no evidence of a bond between a parent and
child, it is reasonable to infer that no bond exists.
In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super.
2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of
the particular case. Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
Significantly, we have held the following.
[C]oncluding a child has a beneficial bond with a
parent simply because the child harbors affection for
the parent is not only dangerous, it is logically
unsound. If a child’s feelings were the dispositive
factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare
child who, after being subject to neglect and abuse,
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is able to sift through the emotional wreckage and
completely disavow a parent…. Nor are we of the
opinion that the biological connection between [the
parent] and the children is sufficient in of itself, or
when considered in connection with a child’s feeling
toward a parent, to establish a de facto beneficial
bond exists. The psychological aspect of parenthood
is more important in terms of the development of the
child and its mental and emotional health than the
coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations
and quotation marks omitted).
Further, our Supreme Court explained that, “[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., supra at 268. Moreover, the Court directed that, in
weighing the bond considerations pursuant to Section 2511(b), “courts must
keep the ticking clock of childhood ever in mind.” Id. at 269. The T.S.M.
Court observed that, “[c]hildren are young for a scant number of years, and
we have an obligation to see to their healthy development quickly. When
courts fail … the result, all too often, is catastrophically maladjusted
children.” Id.
In its opinion that accompanied the decree, the trial court stated as
follows, which the testimonial evidence supports.
The [trial c]ourt has thoroughly evaluated [D.P.M.]’s
relationships in this matter. The [trial c]ourt finds
that Mother has a bond with [D.P.M.] but that the
bond has weakened since [D.P.M.]’s placement. At
this point, the [trial c]ourt believes that some level
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of bond remains between Mother and [D.P.M.] but
that [D.P.M.] will not be negatively impacted by the
termination of Mother’s parental rights. The [trial
c]ourt also finds that the bond between [D.P.M.] and
foster parent is strong and healthy. Testimony
established that [D.P.M.] is happy and feels
comfortable in their care. [D.P.M.] knows who his
Mother is but it is the foster parents who take care of
his daily needs and act as [D.P.M.]’s parental
figures. The bond that [D.P.M.] has with the foster
parent can provide safety, security and permanency
for the child. Termination of parental rights will best
meet the needs of the child and permit the child to
achieve the stability that he deserves.
Trial Court Opinion, 11/18/15, at 14.
Ms. Honardoost testified that Mother has been “fairly consistent” in her
weekly three-hour supervised visits with D.P.M. N.T., 10/1/15, at 62.
Although she testified Mother is appropriate during the visits, and that
Mother and D.P.M. “appear to have a bond,” Ms. Honardoost agreed “the
stronger bond lies” between D.P.M. and the foster family. Id. at 67. She
testified that she has “heard [D.P.M.] call the foster mother mom,” who is
also a pre-adoptive resource. Id. at 65, 73.
We conclude that the totality of the record evidence supports the
court’s decision that, based on “Mother’s unaddressed mental health and
substance abuse issues,” terminating her parental rights will serve the needs
and welfare of D.P.M. pursuant to Section 2511(b), in that it “will allow
[him] to achieve the safety, security, and permanency he deserves.” Trial
Court Opinion, 1/6/16, at 2; see In re M.T., 101 A.3d 1163, 1182 (Pa.
Super. 2014) (en banc) (addressing the parents’ “inability to consistently
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provide a safe and secure environment for their children” as part of its
Section 2511(b) analysis); see also In re Adoption of C.D.R., 111 A.3d
1212, 1220 (Pa. Super. 2015) (concluding the mother’s bond with the child
was outweighed by the mother’s “repeated failure to remedy her parental
incapacity,” and by the child’s need for permanence and stability).
Based on the foregoing, we conclude the trial court did not legally err
or abuse its discretion in terminating Mother’s parental rights to D.P.M., and
changing the permanency goal to adoption. See T.S.M., supra; S.B.,
supra. Accordingly, we affirm the trial court’s November 18, 2015 decree
and order.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2016
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