In Re: J.W.D. Appeal of: C.L.D.

J-S14017-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE : IN THE SUPERIOR COURT OF
INVOLUNTARY TERMINATION OF : PENNSYLVANIA
PARENTAL RIGHTS TO J.W.D., A :
MINOR :
:
:
APPEAL OF: C.L.D., MOTHER :
:
: No. 108 WDA 2023
Appeal from the Decree Entered December 27, 2022
In the Court of Common Pleas of Venango County Orphans' Court at
No(s): O.C.D. No. 130-2020
IN THE MATTER OF THE : IN THE SUPERIOR COURT OF
INVOLUNTARY TERMINATION OF : PENNSYLVANIA
PARENTAL RIGHTS TO A.J.D., A :
MINOR :
:
:
APPEAL OF: C.L.D., MOTHER :
:
: No. 109 WDA 2023
Appeal from the Decree Entered December 27, 2022
In the Court of Common Pleas of Venango County Orphans' Court at
No(s): O.C.D. No. 129-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 30, 2023
C.L.D. (“Mother”) appeals from the decrees entered on December 27,
2022, that granted the petitions filed by Venango County Children and Youth
Services (“CYF” or “Agency”) to involuntarily terminate Mother’s parental
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14017-23
rights to J.W.D., born in September of 2018, and A.J.D., born in October of
2017, (collectively “Children”), pursuant to Sections 2511(a)(1), (2) and (b)
of the Adoption Act, 23 Pa.C.S. §§ 2101-2938.1 Following review, we affirm.2
In her brief, Mother lists the following two issues for our review:
1. Did the trial court err as a matter of law or abuse its
discretion when it granted CYF’s petition to involuntarily
terminate Mother’s parental rights absent clear and
convincing evidence that the Child[ren] [were] removed
from the care of the Mother by the court for at least six
months and the conditions which led to the Child[ren]’s
removal continue to exist and that the Mother cannot or will
not remedy those conditions within a reasonable period of
time and the services and assistance reasonably available
to Mother are not likely to remedy the conditions which led
to the removal of the Child[ren] within a reasonable period
of time?
2. Did the trial court err as a matter of law or abuse its
discretion in determining that terminating [Mother’s]
parental rights was in the best interest of the Child[ren]
despite being against the weight of the evidence presented?
Mother’s brief at 8.
We review a decree terminating parental rights in accordance with the
following standard:
When reviewing an appeal from a decree terminating
parental rights, we are limited to determining whether the
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1 K.E.D.’s (“Father”) parental rights to Children were voluntarily terminated
by decrees, dated November 12, 2021, and entered on November 15, 2021.
Father is not a party to the present appeals.
2 Because these matters involve related parties and issues, this Court
consolidated these two appeals by order entered on February 14, 2023. See
Pa.R.A.P. 513.
-2-
J-S14017-23
decision of the trial court is supported by competent evidence.
Absent an abuse of discretion, an error of law, or insufficient
evidentiary support for the trial court’s decision, the decree must
stand. Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a jury
verdict. 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 R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879
A.2d 802, 805 (Pa. Super. 2005)). The burden is upon the petitioner to prove
by clear and convincing evidence that its asserted grounds for seeking the
termination of parental rights are valid. Id. Moreover, we have explained
that:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the comprehensive opinion authored by the Honorable
Edward D. Reibman, Senior Judge of the Court of Common Pleas of Venango
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J-S14017-23
County, filed on December 27, 2022. We conclude that Judge Reibman’s well-
reasoned opinion properly disposes of the issues raised by Mother.
Specifically, the trial court’s opinion extensively discusses the facts provided
at the various hearings held in this matter. Essentially, Mother’s arguments
center on the credibility determinations made by the court, contending that
her testimony should have been believed rather than the testimony provided
by the Agency’s witnesses. In other words, she avers that if the court had
believed her testimony, it would have concluded that her substance abuse,
housing, and mental health issues, have not continued so that the Children
could have been returned to her care, which would have been in their best
interests. Our standard of review prohibits this Court from overturning the
trial court’s credibility determinations so long as its findings are supported by
the evidence of record. See In re M.G., 855 A.2d at 73-74 (stating that 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). Our review reveals that the court’s credibility determinations are
supported by the overwhelming majority of the evidence. Therefore, we adopt
Judge Reibman’s opinion as our own and affirm the decrees appealed from on
that basis.
Decrees affirmed.
-4-
J-S14017-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2023
-5-
Circulated 05/19/2023 12:31 PM
IN THE COURT OF COMMON PLEAS OF
ENANGO COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
,d .'
•
IN THE MATTER OF THE INVOLUNTARY --c
TERMINATION OF PARENTAL RIGHTS £"
TO me pt ,a
minor child n., D 0.C.D. No.: 129-2020
IN THE MATTER OF THE INVOLUNTARY
TERMINATION OF PARENTAL RIGHTS
TO
minor child T • D. O.C.D. No.: 130-2020
MEMORANDUM OPINION
Before the court are the Petitions for Involuntary Relinquishment of
Parental Rights, filed on November 25, 2020, by Venango County Children and
Youth Services ("Agency") seeking to terminate the parental rights of
cLD, n.:2
ta @ ("Mother") to two of her children,
"n.1.p'
('a ), born October 17, 2017, 5 years of age, and nm
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i (), born September 13, 2018, 4 years of age,
(together, "the children"). Trial thereon was held on November 18, 2022,
A.1.D.
attended by William J. Cisek, Esquire, on behalf of the Agency;aim, with
1
43
J..
her attorney, Virginia G. Sharp, Esquire, who also represented 4; and
Mother, with her attorney, Diane Hasek, Esquire.
Facts2
The children were removed from Mother's custody on November 9,
2018. However, the Agency had been involved with Mother since October 11,
2016, when it indicated she was involved with photographing, videotaping,
depicting on a computer or filming sexual acts of the children's eight-year-old
sister. In all, Mother has eleven children. She has custody of none of them.
Her history with the agency has included substance abuse, inadequate
housing, inadequate medical care and/or treatment regarding her children,
allegations of sexual abuse, allegations of physical abuse and mental health
concerns.
et
.).V.5
She tested positive at in birth on September 13, 2018, for Subutex.
She described her relationship with the children's father as volatile. The
Agency attempted to gain access to the home and see the children sixteen
times between September 24 and November 7, 2018, to ensure their safety.
1
Attorney Sharp had been the children's Guardian ad Litem in the dependency
proceedings. She did not believe it was a conflict to represent the children during the termination
hearing. All parties concurred with that assessment.
A. 5.02.
fW• 1> was interviewed in the presence of counsel; Mother waived her right to be present.
did not attend the hearing; he was home with a viral infection.
2 The Court takes judicial notice of the Orders of Court pertaining to the dependency
proceedings involving the children at docket number DP 65-2018 for it and 66-2018 for
cs. n.Jp
5.o.•
2
Each time the parents failed to be present or failed to allow the Agency access
to the home or to the children.
The Agency's caseworkers returned to the children's home on
November 9, 2018, upon being notified that the police were investigating the
existence of a possible methamphetamine lab at their home. The home
appeared to be a pole barn built on an unheated concrete slab that was serving
as a residence. It consisted of a kitchen, bathroom, living room and two
bedrooms. It was "an extreme mess." It had no running water. Trash and
rubbish, some piled up two to three feet high, and about 20 jugs of what
appeared to be and smelled like urine were inside and outside of the building.
It was heated by a series of electric space heaters. Paper and lighter fluid were
stored near them. Plastic sheets separated rooms. The parents had a bed in
one of the bedrooms; there was no bed, only storage, in the other bedroom.
The children were in a bassinette. Rodent feces was on the floor and beneath
a cabinet below the kitchen sink. Black mold was also under the sink. The
house had poor ventilation and smelled of dampness. A syringe was found
outside of the house. Poor drainage on the property caused water to puddle
at the door. The front door was covered with mud. Plywood leading to the
porch was unsafe. The conditions were deplorable. The house was not a safe
place for the children to live.
3
The Agency removed the children from their home on November 9,
n.5.1
2018. • · 1, who was one year old, had an untreated herniated umbilical
51.0..
and superficial scratches on her from her long nails. , who was 2 months
old, had pressure ulcers on both of his feet from not being moved around
enough and lying in one position. The children were filty from head to toe.
Dirt was embedded under their nails. Each of the children had significant
diaper rash on their private areas.
The Agency removed the children from their home and placed them in
the care of their maternal grandmother. It filed dependency petitions for the
children on November 13, 2018, alleging they were without proper care or
control. Mother was subsequently charged with two counts of a parent
endangering the welfare of the children. 18 RS.A. 5 4304(A)(1). She was
arrested and incarcerated in the Venango County Jail on December 8, 2018.
The children were removed from their maternal grandmother's care on
December 12, 2018, and placed in the kinship home of Mother's first cousin,
m.$. "m.6." nM.5.
e e ('iiir).
her partner of twenty years,
9-.N. " A.."
resides in Oil City, Venango County, with
tie (2ii). The children have
m.5. .N.
remained with and - since that time.
2.w.D.
was declared dependent on January 11,2019; he was three months
P.1.p
old. was declared dependent on January 18, 2019; she was fourteen
months old.
4
Mother was sentenced on May 19, 2019, to 18 to 48 months in prison.
She was incarcerated in the Venango County Jail from December 8, 2018,
until June 10, 2019, when she was transferred to SCI Muncy. Due to the
nature of the charges, she was not permitted to have visitation with the
children. The permanency plan goal for the children was changed on July 20,
2020, to "adoption" due to Mother's inability to meet the goals of her service
plan. She had not obtained stable housing and had done nothing regarding
her mental health.
She was transferred to SCI Cambridge Springs on July 28, 2020. The
Agency filed its petitions for involuntary termination of her parental rights on
November 25, 2020. Hearings were scheduled for April 8 and 9, 2021, but
were continued.
Mother was paroled on June 1, 2021. Her conditions of supervision
included that she have no visitation with the children.
The parental rights of the children's natural father,
, were terminated voluntarily by decree dated November 12, and
filed on November 15, 2021.
Mother enrolled in drug and alcohol counseling, but missed sessions on
December 1 and 8, 2021. She was unsuccessfully discharged from the
Effective Safe Parenting Program on December 17, 2021, because she did not
make progress while in the program and declined assistance with finding
5
stable housing, employment, transportation and addressing medical and
dental needs.
She moved to a one-bedroom camper on her father's property in Polk,
Venango County, on July 7, 2022. The camper has no water. Electricity is
provided through an extension cord from another source. She resides there
J.m.
with Sy g, her fianc~ since July 2021. She sleeps on a couch.
There is no room for the children, and she acknowledged it is not an
appropriate place for the children to live.
She tested positive for methamphetamine, amphetamine and THC on
July 8, 2022. She refused to take a drug test on August 11, 2022, but
admitted to recent methamphetamine use. She tested positive on September
7, 2022, and again admitted to methamphetamine use. She went to an in-
patient facility the next day and tested negative on October 26 and again on
November 17, 2022, the day before trial.
She said she completed two programs while at SCI Muncy, but did not
have the certificates to prove it. She completed programs on parenting,
alcohol and drugs, healthy living, positive relationships, staying on track and
re-entry, and participated in educational programs related to the building
trades and being a flagger while at SCI Cambridge Springs. Deft.'s Exs. D and
E, 11/18/22. She said she participated in those programs because she wanted
the children to be returned to her custody.
6
She claimed the Agency's caseworker would not tell her what she had
to do to get the children back. She provided proof that she mailed something
to the caseworker from SCI Cambridge Springs on October 5, 2020. Deft.'s
Ex. A, 11/18/22. She also provided proof that she mailed something to
from SCI Cambridge Springs on October 5 and November 20, 2020.
Id. Mother testified she sent paper to the children to color.
Mother is on probation; her supervision is scheduled to end in May 2024.
Her conditions of supervision include that she undergo a drug and alcohol
assessment and a mental health evaluation, and follow through with any
recommended treatment; comply with a curfew; and have no contact with any
minor children unless accompanied by another adult. She was ordered to
undergo mental health counseling in June 2021 and reminded to do so again
on July 8, 2022. She has failed to do so.
She has been unemployed since, at least, March 2022. She testified her
a.3.mN.
fianc~, , has a net income of $910.00 a week as a welder in
Youngstown, Ohio, but he was not present at the trial and Mother presented
no documents to substantiate her testimony. She also testified she has been
approved for a $200,000 loan to buy a house, but her car broke down and she
had to spend $37,000 for a used car. She provided no corroborating evidence
to support those claims.
Permanency Review Hearings were held on March 22 and September
13, 2019; February 24, July 20 and October 19, 2020; February 12 and
7
October 15, 2021; and March 28 and September 28, 2022, and the Agency
has continuously offered services to help Mother alleviate dependency. Mother
has not followed through with appointments with service providers and has
not alleviated all of the conditions that have led to the dependency.
Specifically, the Agency has instructed Mother to obtain a mental health
evaluation and follow through with any recommendations and has made
housing referrals and provided housing applications to Mother, but she has
failed to follow through with them. Although at trial she asked for "a few
months" to get her children back, there is no basis, given her history, upon
which to conclude she will meet those conditions.
Conclusions of Law
The grounds for involuntary termination are set forth at 23 Pa. C.S.A §
2511 (a) and (b), which, in pertinent part, provide:
(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:
(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.
8
k
* *
(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.
Application of§ 2511 requires a bifurcated analysis. Initially, the focus
is on 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 § 2511 (a). Only if the court determines the
parent's conduct warrants termination of his/her parental rights does the court
engage in determining the needs and welfare of the child under the standard
of the best interests of the child. § 2511 (b). See, In re S.C., 247 A.3d 1097,
1103 (Pa.Super. 2021). In applying the facts to the law, one must be mindful
that
.. [a] child has a right to a stable, safe, and healthy
environment in which to grow, and the child's life
simply cannot be put on hold in the hope that the
parent will summon the ability to handle the
responsibilities of parenting.
Id.9
The petition to terminate Mother's parental rights was filed on November
25, 2020. She had been incarcerated since December 8, 2018, nearly twenty-
two months immediately preceding the filing of the petition. She was
convicted of endangering the welfare of the children. Due to the nature of the
offense, she was not permitted to have visitation with them. She has failed
to perform parental duties during that time.
The court removed the children from Mother's care on November 9,
2018. Although Mother has taken advantage of various programs and courses
while in state prison and attended an in-patient substance abuse program,
she has remained drug-free only since August 11 2022. Moreover, she has
failed to follow through with a mental health evaluation required of her since
June 2021 and, most importantly, she has failed to alleviate the conditions
which led to the removal or placement of the children in the first place, i.e.
obtain appropriate housing for the children.
The Agency has established by clear and convincing evidence that the
A.J.D. g.4).
developmental, physical and emotional needs and welfare of sis ands
are best met by involuntarily terminating Mother's parental rights to them as
required by 23 Pa. C.S.A. § 2511(b).
m.5. .N'.
is employed by the Venango County Assessment Office. _,
is not employed; he is disabled due to seizure disorder and anxiety issues
which are controlled by medication. They provide a safe and clean home for
the children and meet their medical and educational needs. Specifically, the
10
A.1.0
children go to Headstart; ••• has some speech delay, anger issues and
pre-puberty concerns that are being tended to by health care professionals
.10..
and therapists; and, who was ten pounds underweight when he came to
m.6.
them, is now an appropriate 35 pounds. The children call "Mom" or
hN. n.5. 9.N.
"Mommy Mary" and ti "Dad" or "Daddy Art." and - love the
children, and the children are thriving in their care. They are an appropriate
adoptive resource for the children.
It is not a question of Mother's willingness or ability to remedy the
conditions that led to the child's placement if the conditions continue to exist.
S.C., supra, at 1105. Even if Mother made progress in remedying the
conditions that led to placement and could potentially parent the child
successfully in the future, termination is justified if the conditions continue to
exist after 12 months in placement and it would serve the needs and welfare
of the child. In re S.H., 879 A.2d 802, 806-07 (Pa.Super. 2005).
For a period of at least six (6) months immediately preceding the filing
of the Petition, Mother has either evidenced a settled purpose of relinquishing
her parental claim to the children or has refused or failed to perform parental
duties as required in 23 Pa. C.S.A. § 2511(a)(1) and has evidenced a repeated
and continued incapacity that has left the children without essential parental
care, control or subsistence necessary for their physical and mental well-being
as required by 23 Pa. C.S.A. § 2511 (a)(2). Finally, the developmental,
physical and emotional needs and welfare of the children are best met by
ll
involuntarily terminating Mother's parental rights to the children. Accordingly,
decrees were entered terminating the parental rights of
A.J.D.
•.D.
,
• 0.D.
to her children, i and a
BY THE COURT:
December 27, 2022
Edw�, Seo;:, lodge
CC: Virginia G. Sharp, Esquire
William J. Cisek, Esquire
Diane Hasek, Esquire
Venango County Children, Youth and Family Services
12