In the Int. of: I.M.W. & C.F.W. Appeal of: J.W.

J-S66032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: I.M.W. AND IN THE SUPERIOR COURT OF
C.F.W., Minors PENNSYLVANIA
APPEAL OF: J.W., Mother No. 1079 MDA 2014
Appeal from the Decrees and Orders entered June 5, 2014,
in the Court of Common Pleas of Dauphin County,
Orphans’ Court, at No(s): 17 AD 2012, 9 AD 2014,
CP-22-DP-0000097-2011, CP-22-DP-0000115-2012
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 09, 2014
J.W. (“Mother”) appeals from the Decrees and Orders granting the
Petitions filed by the Dauphin County Social Services for Children and Youth
(“the Agency”) to involuntarily terminate her parental rights to her son,
I.M.W., and daughter, C.F.W. (collectively “Children”), pursuant to section
2511(a)(1), (2), (5), (8), and (b) of the Adoption Act, see 23 Pa.C.S.A.
§ 2511(a)(1), (2), (5), (8), and (b), and to change their permanency goal to
adoption pursuant to section 6351 of the Juvenile Act, see 42 Pa.C.S.A.
§ 6351.1 We affirm.
I.M.W. was born in August 2011, during the marriage of Father and
Mother. Three days after his birth, I.M.W. was placed in the custody of the
1
The trial court terminated the parental rights of the Children’s father, C.W.
(“Father”), and confirmed his consent to their adoption on March 6, 2014.
Father has not filed an appeal, nor is he a party to this appeal.
J-S66032-14
Agency based upon Father’s and Mother’s lack of progress in meeting their
service objectives with respect to the dependencies of I.M.W.’s older
siblings. The Agency placed I.M.W. in a foster home, a pre-adoptive
resource for I.M.W., with his older half-sister and two female cousins.
I.M.W. has special needs, including delayed vision, a slightly underdeveloped
brain, and a wandering eye. The trial court adjudicated I.M.W. dependent
on August 24, 2011, and a placement goal of reunification was established.
The Agency established Family Service Plan (“FSP”) goals for Mother.
On March 2, 2012, the Agency filed a Petition against Mother for a goal
change to adoption and the involuntary termination of parental rights. On
September 10, 2012, the trial court entered a Decree, changing the
placement goal to adoption and involuntarily terminating Mother’s parental
rights pursuant to subsections (a)(1), (2), (5), and (b). Mother appealed
and this Court reversed the Decree and remanded the matter to the trial
court, based on the absence of sufficient evidence to support the termination
under subsections (a)(1), (2), (5), and (b). See In the Interest of
I.M.W., 75 A.3d 553 (Pa. Super. 2013) (unpublished memorandum).
Specifically, this Court concluded that there was insufficient evidence to
show that Mother had failed to comply with her FSP objectives, and that it
appeared that Mother was making progress on these objectives. See id.
While the appeal regarding I.M.W. was pending, in late December
2012, Mother gave birth to C.F.W. In the days following C.F.W.’s birth, the
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Agency filed a dependency Petition with respect to C.F.W. Following
hearings, the trial court entered an Order, finding that aggravated
circumstances existed under 42 Pa.C.S.A. § 6302, based on the recent
termination of Mother’s parental rights to I.M.W. The trial court entered a
separate Order, adjudicating C.F.W. dependent and changing the
permanency goal to adoption. On September 9, 2013, this Court affirmed
the adjudication of C.F.W. as dependent, but vacated and remanded the goal
change and aggravated circumstances orders, as those Orders had been
premised on the Decrees relating to I.M.W., which this Court had previously
reversed. See In the Interest of C.W., 87 A.3d 376 (Pa. Super. 2013)
(unpublished memorandum).
On June 18, 2013, October 17, 2013, and November 14, 2013, the
trial court held additional permanency review hearings with regard to I.M.W.
On April 9, 2013, July 16, 2013, October 17, 2013, November 14, 2013, and
March 6, 2014, the trial court held additional permanency review hearings
with regard to C.F.W.
On February 18, 2014, the Agency filed the Petitions seeking to
terminate Mother’s parental rights, and to change the permanency goal for
the Children to adoption. On that same date, the Agency filed a Petition to
confirm Father’s consent to adoption as to the Children. On March 6 and 10,
2014, the trial court held hearings on the Petitions. The trial court set forth
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a thorough review of the testimony presented at the hearings, which we
adopt herein. See Trial Court Opinion, 7/23/14, at 2-8.2
On June 4, 2014, in a transcribed proceeding in court, the trial court
granted the Petitions to terminate Mother’s parental rights to the Children,
and to change the permanency goal to adoption.3 The trial court entered
the Decrees and Orders on the following day. On June 26, 2014, Mother
filed a Notice of Appeal,4 along with a Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
2
At the permanency review hearing, Mother’s counsel stipulated to the
admission into the record of the testimony of Candra Chang, the Children’s
family therapist at Pressley Ridge. See N.T., 3/6/14, at 73-74. Further,
Mother did not present any witnesses, and neither the Agency nor Mother
offered any exhibits for admission into evidence.
3
Mother’s counsel was present in the courtroom, but Mother failed to
appear, despite attempts to provide notice to her.
4
Despite the fact that the trial court entered separate Decrees and Orders
for each child, Mother only filed one Notice of Appeal. In her Notice of
Appeal, Mother lists both children in the caption and the respective docket
numbers of the Children’s cases. We recognize that generally “taking one
appeal from separate judgments is not acceptable practice and is
discouraged.” Gen. Elec. Credit Corp. v. Aetna Cas. & Sur. Co., 263
A.2d 448, 452 (Pa. 1970); see also Pa.R.A.P. 341, Note (stating that where
“one or more orders resolves issues arising on more than one docket or
relating to more than one judgment, separate notices of appeal must be
filed.”). While Mother improperly filed a single Notice of Appeal, we will not
quash the appeal, as Mother plainly intended to appeal the Decrees and
Orders of the Children and this case involves the termination of parental
rights. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (stating
that “[t]he extreme action of dismissal should be imposed by an appellate
court sparingly, and clearly would be inappropriate when there has been
substantial compliance with the rules”) (citation omitted); see also id. at
748 (declining to quash or dismiss the appeal based upon this Court’s
objective to expedite the disposition of children’s fast track cases).
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In her brief on appeal, Mother raises the following issues:
1. Whether the trial court abused its discretion in changing the
goal to adoption?
2. Whether the trial court committed reversible error by
terminating [Mother’s] parental rights?
Mother’s Brief at 10.5
Mother argues that the Agency has failed to prove by clear and
convincing evidence that her parental rights to Children should have been
terminated. Id. at 33. Mother argues that, since this Court’s reversal of the
Decrees with regard to I.M.W. in April 2013, she has made significant
progress on her FSP objectives, including completing reunification services,
completing a parenting class, taking domestic violence counseling, and
addressing her mental health issues. Id. at 27-30. Mother asserts that the
Agency failed in its responsibility to reunify her with Children and improperly
placed the burden of reunification on her. Id. at 30-31, 32. Mother
contends that the Agency purposely created confusion with regard to her
visitation rights, and then blamed her for failing to visit the Children. Id. at
31-32. Mother claims that the FSP’s only remaining objective is her housing,
5
Mother waived her first issue regarding the goal change by her failure to
support this issue with any argument or citation to case law. See In re
W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating that “[w]here an
appellate brief fails to provide any discussion of 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.”); see also Lackner v.
Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (stating that arguments that
are not properly developed are waived). Thus, we will only address Mother’s
claims regarding the termination of her parental rights.
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which she asserts is problematic only because of her lack of financial
resources. Id. at 33. She urges that the lack of financial resources and
affordable housing is an insufficient basis upon which to terminate her
parental rights. Id.
Further, Mother alleges that under section 2511(b), she has been
financially dependent on Father’s Social Security benefits, which were the
source of income to pay for housing, and, since she is no longer in a
relationship with Father, and has no employment, she has limited financial
resources. Id. She also complains that there was no bonding assessment
conducted in this matter. Id. at 28.6
We review an appeal from the termination of parental rights in
accordance with the following standard:
In an appeal from an order terminating parental rights, our
scope of review is comprehensive: we consider all the evidence
presented as well as the trial court’s factual findings and legal
conclusions. However, our standard of review is narrow: we will
reverse the trial court’s order only if we conclude that the trial
court abused its discretion, made an error of law, or lacked
competent evidence to support its findings. The trial judge’s
decision is entitled to the same deference as a jury verdict.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. The burden is upon the petitioner
6
In her Summary of the Argument, Mother asserts that the trial court never
ruled on a joint motion for supersedeas filed on February 22, 2013.
Mother’s Brief at 21. However, there is no entry for a joint motion for
supersedeas on the trial court’s docket. Thus, we cannot grant relief on this
assertion.
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“to prove by clear and convincing evidence that its asserted grounds for
seeking the termination of parental rights are valid.” In re R.N.J., 985 A.2d
273, 276 (Pa. Super. 2009). “[C]lear 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.” Id. (citation and quotation marks omitted).
Further, the “trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, “we
will affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).
Satisfaction of any one subsection of section 2511(a), along with
consideration of section 2511(b), is sufficient for the involuntary termination
of parental rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). In this case, we will review the trial court’s decision to terminate
Mother’s parental rights based upon section 2511(a)(2) and (b), which state
the following:
§ 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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(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
***
(b) Other considerations.─The court in terminating the rights
of a parent shall give primary consideration to the
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.
In order to terminate parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2), the following three elements must be
met: (1) repeated and continued incapacity, abuse, neglect or
refusal; (2) such incapacity, abuse, neglect or refusal has caused
the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being; and
(3) the causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003); see
also In re Adoption of S.P., 47 A.3d 817, 827 (Pa. 2012).
Regarding section 2511(b), the court inquires whether the termination
of Mother’s parental rights would best serve the developmental, physical and
emotional needs and welfare of the child. See In re T.S.M., 71 A.3d 251,
267 (Pa. 2013). “Intangibles such as love, comfort, security, and stability
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are involved in the inquiry into the needs and welfare of the child.” In re
C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (citation omitted). The
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.; see also In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008)
(stating that where there is no evidence of any bond between the parent and
child, it is reasonable to infer that no bond exists). Courts are not required
to order a formal bonding evaluation by an expert and may assess the
parental bond upon the observations and evaluations of social workers and
case workers. In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
Additionally, trial courts “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 N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011) (citation omitted). Finally, the focus in terminating
parental rights under section 2511(a) is on the parent, but it is on the child
under section 2511(b). In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008).
Here, the trial court addressed Mother’s claims and determined that
the Petitions to involuntarily terminate her parental rights to Children, and to
change their permanency goal to adoption, were properly granted. See Trial
Court Opinion, 7/23/14, at 10-12; see also id. at 2-8 (wherein the trial
court sets forth a review of the relevant testimony presented at the
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hearing). After a careful review of the record in this matter, we conclude
that there is competent evidence in the record that supports the trial court’s
credibility and weight assessments regarding section 2511(a)(2); that
Mother is incapable of parenting the Children, who have Fragile X syndrome;
and that, even after a team worked with Mother to understand their needs,
the conditions that led to their removal still exist, and will not be remedied
by Mother in the future.
Under section 2511(b), the competent evidence of record supports the
trial court’s determinations that the termination of Mother’s parental rights
best serves the Children’s needs and welfare. Indeed, competent evidence
supports the trial court’s finding that there is an absence of any bond with
Mother, as both Children were placed in foster care essentially at birth. See
In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008) (stating that no bond
worth preserving is formed between a child and a natural parent where the
child has been in foster care for most of the child’s life, and the resulting
bond with the natural parent is attenuated). Thus, the trial court did not
abuse its discretion in finding competent evidence to support the termination
of Mother’s parental rights under section 2511(a)(2) and (b). See In re
Adoption of S.P., 47 A.3d at 826-27.
Decrees and Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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IN THE INTEREST OF : IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
_ _1.
__ \AJ,_ _ _ and
/1,\._
17-AD-2012; CP-22-DP-97-2011
• • • • • • • • • •"mmors 9-AD-20 14; CP-22-DP-l1S-20 12
C, F. \iV,
IN DEPENDENCY
TRIAL COURT MEMORANDUM OPINION PURSUANT TO
PENNSYL VANIA RULE OF APPELLATE PROCEDURE 1925(a)
:T. W.
Presently before the Superior Court of Pennsylvania is the appeal of • •
(Mother), mother of the above named minor children, from this Court's Order of June 4, 2014
wherein we granted a termination of parental rights and goal change to adoption.
Procedural History
On February 14,2014, Dauphin County Children and Youth Services (CYS) filed
""]:..,.. M, "J
Petitions for Involuntary Termination of Parental Rights for both • • • • • • • (LM. W.)
C,F,\'\},
(DOB 8/8/2011) and _ _ _ _ _ _ (C.F.W.) (DOB 12/24/2012). This Petition was filed
in conjunction with (Father) Consent to Adoption which was filed on
November 14,2013 with regard to both children.
I.M. W. was placed in a foster home on August 11, 2011 following the filing of a
Dependency Petition by CYS. Thereafter, on August 24,2011, I.M.W. was found dependent
after an Adjudicatory and Dispositional hearing held on that date and was placed into the legal
custody of CYS where he has remained continuously. Permanency Review hearings were held
on January 4,2012; November 13,2012; February 19,2013; June 18,2013; October 17,2013;
and November 14,2013.
FILED
JUL 2 3 2014,
,JEAN MARFIZO KING
PFGIST!:R OF WILLS AND
CLERK OF THE ORPHANS' COURT
C.F.W. was placed in a foster home on December 27, 2012 and has remained there since
that date. Following a combined Shelter Care hearing, Adjudication and Disposition hearing and
Goal Change hearing, this Court found C.F.W. dependent and legal custody was awarded to
CYS. I Permanency Review hearings were held on April 9, 2013; July 16,2013; October 17,
2013; November 14,2013; and March 6, 2014.
A hearing was held on March 6, 2014 regarding the Petition for Involuntary Termination
of Parental Rights filed by CYS. On June 4, 2014 this Court entered an Order granting a goal
change to adoption and terminating the parental rights of Mother in the children. Thereafter, on
June 26, 2014, Mother filed Notice of Appeal along with a Statement of Matters Complained of
on Appeal from this Court's June 4, 2014 Order.
Factual Background
Candra Chang is a family therapist at Pressley Ridge. (Notes of Testimony, March 6,
2014, 75). Ms. Chang testified that she began working with Mother on June 18,2013. (N.T.,
76). She added that Pressley Ridge had been involved in reunification services with Mother on
three (3) different occasions. (N.T., 88). Although Mother testified that she successfully
completed reunification services in September of2013, Ms. Chang testifiedthat services were
closed on November 18,2013 because Mother said she did not want to follow through with
reunification. (N.T., 76). At that point, Ms. Chang explained to Mother that services would no
longer be provided. (N.T.,76-77). Ms. Chang made an appointment to meet with Mother on
November 19, 2013 to discuss reunification, but Mother was not home and failed to call or
cancel the appointment. (N.T., 77). Mother never attempted to contact Ms. Chang after that time
and into 2014. (N.T., 77).
IOn January 22, 2013, this Court ordered a goal change to adoption following a finding of Aggravating
Circumstances against . However, this Order was overturned by the Superior Court on September
9,2013. lII\otW...r v-foJ F,,-fu.r
2
Ms. Chang discussed Mother's reunification goals; one of those goals was to maintain
stable housing for six (6) months. (N.T.,78). Mother has moved a total of eighteen (18) times
since 2009. (N.T., 138). Ms. Chang recounted that when Mother was living in a boarding house
with numerous people, Mother asked Pressley Ridge to meet with her out on the sidewalk and
Pressley Ridge was never invited into the home. (N.T., 84-85). Ms. Chang added that Pressley
Ridge did attempt to help Mother find a shelter. (N.T., 86). On November 6, 2013, when Ms.
Chang told Mother that Mother could get help with housing by going to the help office by 6 a.m.,
Mother replied that she did not want to walk that early. (N.T., 87).
Another of Mother's goals was to engage in healthy relationships with peers and family
members. (N.T.,84). This required that any adults in Mother's home were to be approved by
CYS. (N.T.,84). However, Ms. Chang noted that at one point, Mother had a male family
member in the home who Mother said punched her in the face; CYS did not feel that he was an
appropriate person to have in the home. (N.T.,84). Ms. Chang testified that Mother constantly
had to be reminded to focus on her kids as opposed to focusing on other individuals. (N.T., 84).
Mother testified that she had regularly been attending individual counseling since 2012 with a
brief hiatus between January of 20 14 and March of 20 14. However, Ms. Chang testified that
Mother did not attend individual counseling while working with Pressley Ridge. (N.T., 88).
Ms. Chang testified that Pressley Ridge worked with Mother on understanding the needs
of a child with Fragile X and though Mother did improve, the improvement did not rise to the
level that would allow Mother to have LM.W. in her home. (N. T., 82-83). Ms. Chang added
that Mother was never told that she was not allowed to have visits with I.M.W. in the
community. (N.T., 83).
3
Mother was also unsuccessful with the goal requiring her to attend domestic violence
counseling. (N.T., 78). This was because throughout services, Mother denied any domestic
violence issues even though the team observed bruises on her body on more than one occasion.
(N.T.,78). According to Ms. Chang, Mother's denial kept Pressley Ridge from being able to
move forward with that goal. (N.T.,78-79). Father.testified in November of2013 that he
wanted to voluntarily terminate his parental rights in the children and Mother threatened to call
probation. (NT.,80-81). Although Mother testified that Pressley Ridge held it against her when
Father would miss visitations, Ms. Chang confirmed that this was not true. (N.T., 81, 85-86).
Ms. Chang explained that Mother was not asked to sign an attendance contract until both parents
missed appointments and that Pressley Ridge still met with Mother even when Father was not in
attendance. (N.T., 81). She added that services ended because Mother told Ms. Chang on two
separate occasions that she no longer wished to continue services and did not want to work
toward reunification. (N.T., 86).
Rowena Rivera is a pediatric neurology physician employed by Hershey Children's
Hospital. (N.T.,94). Dr. Rivera began working with I.M.W. on September 14,2012. (N.T.,
95). Dr. Rivera diagnosed I.M.W. with Fragile X syndrome, autism, attention hyperactivity
disorder (ADHD) and moderate mental retardation. (N.T.,97). Dr. Rivera explained that
I.M. W. is at an increased risk of seizures, behavioral problems like hyperactivity and aggression,
hitting, eye problems, abnormalities of the spine and foot as well as cognitive delays. (N.T., 99).
Dr. Rivera added that I.M.W. will need regular visits with Dr. Rivera every six (6) months to one
(I) year or acutely when I.M.W. develops any of the above-mentioned issues. (N.T., 99). Dr.
Rivera added further that I.M. W. will need regular medical visits throughout his development
with eye doctors, orthopedic doctors, developmental pediatricians and psychiatrists or
4
psychologists ifhe develops any of the above-mentioned issues. (N.T., 100-101). According to
Dr. Rivera, this will require a high amount of care from I.M.W.'S caregiver. (N.T., 101).
Kelly Colbey is a caseworker with Dauphin County Children and Youth and has worked
Cv.
with the family since November of2009. (N.T., 107). Ms. Colbey testified that Mother's
averment that she attempted to reach Ms. Colbey in December and January is untrue. (N.T.,
117). Ms. Colbey added that she attempted to reach Mother after Mother failed to attend a
scheduled visit on December 2, 2013 and did not hear back from Mother until January 13, 2014
when Mother called and said that she had a miscarriage and now wanted to work toward
reunification with I.M.W and C.F.W. (N.T., 117).
Ms. Colbey discussed the grounds for termination of Mother's parental rights. Under
Pa.C.S. §2511(a)(1), Ms. Colbey noted that Mother made no progress in performing parental
duties in a span of six (6) months. (N.T., 13 0). She added that Mother fail ed to obtain stable
housing for three (3) to six (6) months because since 2009, Mother has moved a total of eighteen
(18) times. (N.T., 132). Even after being offered services with CYS in 2009 and with Pressley
Ridge on three (3) occasions, Mother was unsuccessfully discharged each time. (N.T., 134).
Under Pa.C.S. §2511 (a)(2), Ms. Colbey testified that Mother does not have the capacity
to parent the children. (N.T., 138). She added that Mother would not accept that the goals were
not being met. (N.T., 139). Mother tries to console the children, however the children cry
throughout all the visits with Mother and Mother cannot get the children past that. (N.T., 140).
Ms. Colbey said that Mother does not have the ability to soothe I.M.W. (N.T.,141). Ms. Colbey
noted that during one visit, Mother had to be prompted twice in one (1) hour to check I.M.W.'s
diaper even though she was told to check the diaper before the visit even started. (N.T., 143).
Additionally, there was a visit scheduled to take place immediately after the January 10,2013
5
hearing, but Mother left the building without indicating to the caseworker that she would not be
attending the visit. (N.T., 143). Mother did not contact CYS to schedule a visit again until
September 23, 2013. (N.T., 148).
Ms. Colbey noted that from December of2012 to September of2013, Mother had visits
with I.M.W., but during that time, Mother never asked to see C.F.W. (N.T., 148). Ms. Colbey
added that while walking into a hearing in April and again in July, Mother walked by C.F.W.
without acknowledging the child. (N.T., 144-145) (see also Notes of Testimony, March 10,
2014,34).
Ms. Colbey testified that based on Mother's actions, she cannot parent two (2) children
with mental health needs, especially since I.M.W. will require doctor's appointments at Hershey
Medical Center on a regular basis. (N.T.,152). LM.W.'s care will also require physical therapy
and occupational therapy. (N.T., 153). C.M.W. will require physical therapy, occupational
therapy and special instruction appointments. (N.T., 153). This will require a high amount of
care on the part of caregiver. (N.T., 153).
Under Pa.C.S. §2511(a)(5), Ms. Colbey testified that Mother continues to lack stable
housing and continues to live with individuals who are not approved by CYS. (N.T., 154).
Mother continues to deny the existence of domestic violence even though the Pressley Ridge
team members have observed bruising on Mother's body on several occasions. (N.T.,155).
Mother's lack of commitment to the children is evidenced in the way Mother constantly
vacillates between voluntarily relinquishing her rights to the children and then revoking that
consent. (N.T., 155). Ms. Colbey testified that this has been a constant pattern. (N.T., 156).
Regarding Pa.C.S. §2511(a)(8), I.M.W. has been removed from Mother's home for over
thirty (30) months and C.F.W. has been removed from Mother's home for over fifteen (15)
6
months. (Notes of Testimony, March 10,2014,6). According to Ms. Colby, the conditions for
the removal of both children still exist. (N.T.,6). CYS's concerns include Mother's failure to
continue mental health treatment, the instability of Mother's housing, Mother's refusal to stay
away from individuals deemed inappropriate by CYS and Mother's failure to meet the objective
regarding domestic violence counseling. (N.T., 7,12-13).
With regard to C.F.W., Mother failed to attend any ofC.F.W.'s regular "well baby"
appointments. (N. T., 27-28). Additionally, Mother only visited C.F.W. a total of five (5) times
in fifteen (15) months. (N.T.,29). Ms. Colbey noted that once the goal was changed back to
reunification, there was nothing that prevented Mother from requesting visits with C.F.W.;
however, Mother did not request visits. (N.T.,3.o-31). Mother performed very few parental
duties since the children came into care. (N.T., 29). According to Ms. Colbey, there is no bond
between Mother and C.F.W. (N.T.,29).
Ms. Col bey testified that it is in the best interests of C.F. W. and I.M. W. to terminate
Mother's parental rights. (N.T.,7). Ms. Colbey added that with both children being diagnosed
with Fragile X, they require a consistent surrounding environment. (N.T., 7). Ms. Colby also
testified that the needs of the children are being met in their foster homes; this includes extensive
visits to Hershey Medical Center with ophthalmology, neurology, audiology and geneticists.
Y::Cs\-e.<- R'-f'eA+s
(N.T.,8). LM.W. looks to (foster parents) as if they are his parents. (N.T.,
9). IfLM.W. is hurt or crying, he looks to his foster parents and they are able to soothe him.
(N.T.,9). Also, because ofLM.W's speech and communication delays, the foster parents ani
able to pick up on I.M.W.'s non-verbal cues when he is frustrated. (N.T.,9).
I.M.W. has lived in his pre-adoptive foster home since August of2011. (N.T., 114). Ms.
Colby testified that I.M. W. lives in his foster home with his half sibling and biological cousins.
7
(Notes of Testimony, March 6, 2014, 113). LM.W. bonds with them and plays with them in the
foster home, which is not typical of children with Fragile X. (N.T., 113). Ms. Colby noted that
after Mother stopped attending I.M. W.' s physical therapy appointments, his progress got better.
(N.T., 125).
Ms. Colbey reported that C.F.W. is also doing very well in her pre-adoptive home with
M. G.
(foster parent). (N.T., 107). C.F.W. has been in this foster home since
December 27, 2012. (N.T., 108). In the foster home, C.F.W. is making positive strides with
walking and continues to grow and make progress. (N.T., 109). Additionally, C.F.W. and
I.M.W.'s foster families do get together so C.F.W. and I.M.W. can visit together on a monthly
basis. (N.T., 110).
Statement of Errors Complained of on Appeal
Mother raises the following alleged errors on appeal:
a. Whether the trial court committed reversible error in adjudicating
dependent, 42 Pa.C.S. §6302, In re R.W.J., 826 A.2d 10 (Pa. Super. 2003),
the minors, I.M.W. and C.F.W., under the Juvenile Act, 42 Pa.C.S. §630I
et seq., upon evidence sufficient to meet a clear and convincing standard,
42 Pa.C.S. §6341(c).
b. Whether the trial court committed reversible error by granting a goal
change to adoption under the Juvenile Act, 42 Pa.C.S. §630I et seq., and
thereby denying any good faith effort by the Agency in providing
reasonable efforts to prevent the minors' removal and retain Mother's
family unity.
c. Whether the trial court committed reversible error by involuntarily
terminating Mother's parental rights a goal change [sic] to adoption under
the Juvenile Act, 42 Pa.C.S. §6301 et seq., and thereby denying any good
faith effort by the Agency in providing reasonable efforts to prevent the
minor's removal and retain Mother's family unity.
(Statement of Errors, (I)(a-c)).
Discussion
8
When reviewing the trial court's decision to modify permanency goals, an appellate court
may only modify the trial court's decision where there has been an abuse of discretion. An abuse
of discretion occurs "'when the course pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where the law is not applied or where the
record shows that the action is a result of partiality, prejudice, bias or ill will.'" In the Interest of
AL.D., 797 A2d 326, 336 (Pa. Super. 2002) (quoting In re Adoption of Atencio, 650 A2d
1064, 1066 (Pa. 1994)). When a trial court reviews a motion for a goal change the court must
look to .the best interests of the child, including the safety, protection, moral and mental welfare
of the child. 42 Pa.C.S. § 6351(g). In its review of the testimony presented at a permanency
hearing, the trial court "is free to believe all, part, or none of the evidence presented, and is
likewise free to make all credibility determinations and resolve conflicts in the evidence." In re
M.G., 855 A2d 68, 73-74 (Pa. Super. 2004). Additionally, this Court notes that our Superior
Court has held that parents are required to make diligent efforts in assuming full parental
responsibilities. In re AL.D., 797 A2d 326, 340.
On appeal, Mother asserts that that this Court committed a reversible error in adjudicating
the children dependent, terminating Mother's parental rights and granting a goal change to
adoption. The Juvenile Act provides in relevant part:
(f) Matters to be determined at permanency hearing. -- At each
permanency hearing, a court shall determine all of the following:
***
(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
9
We note that even though Mother testified that she was not given a service plan, this
Court finds that Mother was provided with the service plan on two occasions and·refused to sign
it. Mother was not successful in maintaining stable housing or domestic violence counseling and
failed to attend individual counseling as required. We further note that Mother has made no
substantial progress in the last six (6) months toward accomplishing goals and has made little
progress in parenting. We also found that Mother had missed numerous appointments with CYS
and has failed to communicate for periods oftime with CYS. Mother failed to request visitation
with C.F. W. and on more than one occasion, walked past her children without even
acknowledging them. Mother's failure to accomplish goals and her conduct throughout the case
evidence a lack of interest in reuniting with the children.
In terms of services provided, Mother has been involved with Pressley Ridge on three (3)
different occasions and all of Mother's attempts at reunification have failed each time. Mother
even stated to Pressley Ridge that she did not want to pursue reunification with the children. In
the past, Mother has had her parental rights terminated for four (4) children. CYS referred
Mother to lusticeWorks and STOPP, but those services were closed because the provider felt
that Mother could not be helped.
This Court considered the testimony that C.F.W. and I.M.W. are Fragile X children who
have needs which Mother is incapable of meeting. These children require a caregiver who can
provide constant attention and the ability to transport the children to a significant number of
medical appointments. In the past, Mother's attendance at medical appointments was sporadic
and Mother has failed to attend "well-baby" appointments. Mother clearly does not have the
capacity to provide the care these children require even after the team worked with Mother to
understand the needs of children with Fragile X.
II
This Court found that there was no bond between Mother and the children. C.F. W. has
been in care for over fifteen (15) months and LM.W. has been in care for over thirty (30) months.
This Court also noted that the conditions leading to removal of the children still exist.
Furthermore, this Court is confident that the significant needs of the children are being met in
their respective foster homes. In fact, both children are happy and thriving in their foster homes.
Based on the above, we held that terminating Mother's parental rights in C.F.W. and I.M.W. was
paramount to the safety, protection and physical, mental and moral welfare of the children.
Accordingly, we respectfully request the Superior Court to affirm our Order of June 4,
2014 and dismiss the appeal in this matter.
Respectfully submitted,
Distribution:
The Superior Court of Pennsylvania
Damian J. DeStefano, Esquire, 2331 Market Street, Camp Hill, P A 17011
Marisa K. McClellan, Dauphin County Social Services for Children and Youth, 1001 N. 6th
Street, Harrisburg, PA 171 02
Mindy Goodman, Esquire, Guardian Ad Litem, 2215 Forest Hills Drive, Suite 35, Harrisburg,
PAI7112
Sarah E. Hoffman, Esquire, Guardian Ad Litem, P.O. Box 4468, Harrisburg, PA 17111
Robert Sisock, Deputy Court Administrator
Judge Cherry
12