In Re: N.W., Appeal of: D.P.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN RE: N.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: D.P., NATURAL MOTHER : No. 1094 WDA 2014
Appeal from the Order April 25, 2014
in the Court of Common Pleas of Allegheny County,
Orphans’ Court, at No(s): TPR 205 of 2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 14, 2014
D.P. (Mother) appeals from the order of April 25, 2014, which
terminated her parental rights to her daughter, N.W. We affirm.
The trial court summarized the history of the case as follows.
N.W. (minor child) first came in to the care of Allegheny
County Children, Youth, and Families (CYF) on April 30, 2012.
N.W. was born [in December 2011]. At that time, Mother and
N.W. were living with Mother’s paternal grandmother. Mother, a
minor, was dependent and in the foster care of her paternal
grandmother, but N.W. was not dependent at this time.
Subsequently, Mother left the care of her paternal
grandmother and went with N.W. to live with other foster
parents. However, Mother later left the dwelling of the foster
parents, leaving N.W. behind in the foster home. After a shelter
hearing on May 2, 2012, N.W. was adjudicated dependent due to
Mother’s failure to care for the child, her runaway status, and
the fact the Mother, a dependent child herself, was not following
the recommendations of CYF. It was ordered that N.W. remain
in the foster home. It is these foster parents who are currently
seeking to adopt N.W.
On December 20, 2013, CYF filed a Petition for Involuntary
Termination of Parental Rights (TPR) against Mother, Father, and
*Retired Senior Judge assigned to the Superior Court.
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the Unknown Father of N.W. CYF filed the petition for
termination with respect to Mother under 23 Pa.C.S.
§ 2511(a)(2), (5), and (8).
Trial Court Opinion, 7/9/2014, at 1-2.
The trial court held a hearing on the petition on April 7, 2014, at which
the court heard the testimony of a CYF caseworker, a psychologist who had
evaluated Mother and Child, an in-home service provider, and Mother.
Following the hearing, the trial court entered orders terminating all putative
parents’ parental rights under subsections (a)(8) and (b). Mother timely
filed a notice of appeal and statement of errors complained of on appeal.
The trial court filed its opinion on July 9, 2014.
Mother presents the following questions on appeal.
1. Did the trial court abuse its discretion and/or err as a
matter of law in granting the petition to involuntarily
terminate Mother’s parental rights pursuant to 23 Pa.C.S.
§ 2511 (a)(8)?
2. Did the trial court abuse its discretion and/or err as a
matter of law in concluding that CYF met its burden of
proving by clear and convincing evidence that termination
of Mother’s parental rights would best serve the needs and
welfare of the child pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 5 (trial court answers omitted; citation format modified).
We consider Mother’s questions mindful of the following.
In cases involving the termination of a parent’s rights, our
standard of review is limited to determining whether the order of
the trial court is supported by competent evidence, and whether
the trial court gave adequate consideration to the effect of such
a decree on the welfare of the child.
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Absent an abuse of discretion, an error of law, or
insufficient evidentiary support for the trial court's decision, the
decree must stand…. We must employ a broad, comprehensive
review of the record in order to determine whether the trial
court's decision is supported by competent evidence.
In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (internal quotations and
citations omitted).
Our courts apply a two-part analysis in considering termination of
parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super.
2007),
[i]nitially, 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.
Id. at 511.
The governing statute provides as follows, in relevant part.
(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
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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) … (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. § 2511.
Section 2511(a)(8) represents the determination that “a parent’s basic
constitutional right to the custody and rearing of his … child is converted,
upon the failure to fulfill … parental duties, to the child’s right to have proper
parenting and fulfillment of his or her potential in a permanent, healthy, safe
environment.” In the Interest of K.Z.S., 946 A.2d 753, 759-60 (Pa.
Super. 2008) (quoting In re B.N.M., 856 A.2d 847, 856 (Pa. Super. 2004)).
There is no dispute that N.W. had been out of Mother’s care well over
12 months at the time CYF filed its petition. Mother argues, however, that
“the conditions which led to the removal of the child do not continue to
exist.” Mother’s Brief at 15. Further, Mother claims that CYF did not offer
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sufficient proof that termination of Mother’s parental rights would best serve
the needs and welfare of N.W. Id.
The trial court summarized the witnesses’ testimony as follows.
At the April 7, 2014 termination hearing, CYF Caseworker
Herb Bairhalter testified to the timeline of the case after N.W.’s
dependency adjudication. Mother remained a runaway, her
whereabouts unknown, until August 2012. Mother then was
placed in a group home, Keystone Adolescence Center, for a
month, and subsequently, from September 2012 until May 2013,
Mother was placed in another foster home. Mother then
returned to the foster home of the couple that currently wishes
to adopt N.W. in May 2013, where Mother had her second child.
In August of 2013, Mother again left this foster home, while
N.W. and Mother’s newborn son remained there. Meanwhile,
since April 2012, N.W. has remained with the foster parents who
are currently seeking to adopt her.
Mr. Bairhalter also testified to the history of the case in
terms of the goals of the Family Service Plan (FSP) that Mother
was required to fulfill in order to potentially be reunited with her
daughter. Besides abandonment, additional concerns that were
raised throughout the duration of the case which caused the
child to remain in care included drug and alcohol concerns,
parenting issues, general instability, and refusing to cooperate
with agency services. Mother’s initial FSP goals included the
following: to meet basic financial demands of daily living, to
achieve and maintain recovery from substance abuse, to attend
and perform well in school, to eliminate verbal and physical
family abuse, and to maintain contact and cooperation with the
Agency and service providers. There were also a number of
goals conditioned on Mother having custody, and thus did not
apply to Mother. Additional FSP goals included maintaining a
relationship with the children through regular visitation,
stabilizing mental health, and improving the relationship through
parenting classes.
In terms of the first goal of meeting and maintaining basic
financial demands, this goal was not completed as of the date of
the filing of the TPR on December 20, 2013. Mother only
recently obtained employment at a fast food restaurant,
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subsequent to the filing of the TPR petition. As to the second
goal, achieving and maintaining recovery from substance abuse,
even though Mother’s most recent drug screens were negative,
as of the December 20, 2013 date, the Agency did not consider
Mother to be in compliance with her drug screens. Out of the
fifteen scheduled drug screens as of the TPR filing date, Mother
only showed to five, and thus this goal was incomplete. As to
her schooling, Mother has completed this goal by achieving her
GED. Mother also completed the goal of eliminating verbal and
physical family abuse. However, Mother did not complete her
goal of maintaining contact and cooperation with the CYF, since
as of the time of filing, there were periods of no contact and
periods where it was difficult to reach her. Mother also did not
complete the goal of regular visitation, as there were periods of
missed visitation. As to stabilizing her mental health, Mother
completed this goal. With respect to the parenting goal,
although Mother did complete a parenting class, CYF continued
to have concerns about Mother’s ability to parent. These
concerns primarily relate to the fact that Mother left her second
child at the foster parents home in a similar manner to how she
left N.W. behind.
Caseworker Bairhalter also testified to the CYF’s overall
view of Mother’s progress throughout the history of the case.
Although Mother had improved recently, Mr. Bairhalter explained
how her behavior has been inconsistent, and that there have
been periods where she has been “out of control.” Mr. Bairhalter
also testified as to Mother's stability, noting that if N.W. returned
to Mother today, CYF did not believe she could provide adequate
care and a stable environment. Caseworker Bairhalter testified
that the conditions that led to N.W.’s removal continue to exist,
and that the child has been in care for twelve months. He also
noted that it has been almost two years since N.W. was cared for
by Mother. Mr. Bairhalter also testified that termination of
Mother’s parental rights at this time would serve the child’s
needs and welfare. The child had been in the pre-adoptive home
for almost two years at the time of the TPR hearing. Caseworker
Bairhalter noted that N.W. and her foster parents interact well
and that the child is with her brother in the foster home at this
point in time.
Dr. Eric Bernstein, a licensed psychologist, testified to
evaluations he conducted with Mother alone and with Mother,
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her son, and N.W. In Mother’s individual evaluation, dated
December 2012, Dr. Bernstein learned about her past difficulty
with drugs and alcohol. He ultimately encouraged her to attend
a psychiatric evaluation to help her psychiatric instability. In
Mother’s individual evaluation dated January 2014, Dr. Bernstein
diagnosed Mother with adjustment disorder with anxiety and
depressed mood. Dr. Bernstein at this time acknowledged some
improvements in her situation in terms of stability, but made
note that she must continue working on this objective. He also
noted some inconsistencies such as a report of her intoxication
and a CYF report of heroin possession, both of which she had not
acknowledged. In the interactional evaluation dated January
2014 between Mother and her children, Dr. Bernstein observed
that while Mother did elicit affection from her daughter, she
appeared to be focused upon challenging her daughter to show
her knowledge. However, Mother showed her daughter attention
and support and the child was obedient. Mother did have brief
periods of impatience. Ultimately, Dr. Bernstein acknowledged
that the bond between Mother and N.W. could not be classified
as “strong” at this moment in time, due to [M]other’s history of
inconsistent involvement as a parental figure.
Dr. Bernstein also testified as to the February 2014
interaction[] between N.W., her brother, and the foster parents.
He observed the foster parents working reasonably well together
in attending to N.W. He did note, however, foster Father initially
displaying some discomfort as to being forced to undergo such
an evaluation. Yet foster Father made sure to inquire about
N.W.’s activities, showed concern in terms of her needs, and
used humor to connect with her. Dr. Bernstein also observed
that N.W. responded to the foster parents well. He further noted
in this evaluation that foster Mother was even more comfortable
and assumed the primary role in attending to N.W. Dr.
Bernstein observed the stable caretaking role the foster parents
served, especially considering the fact that N.W. has been in
their care for almost two years and that N.W. is at the
developmental age where her level for attachment is dominant.
He further specified in terms of stability that N.W. seems to
depend upon the foster parents for all of her needs and the
foster parents work together to make sure these needs are met.
Thus, there is a strong bond between N.W. and the foster
parents.
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Dr. Bernstein then testified as to his recommendation in
terms of termination, namely, that termination would indeed
meet the needs and welfare of the child. He explained that if the
foster parents relationship with N.W. were severed, this could
potentially be very traumatic for N.W. due to their strong bond;
he noted that this might have implications to her future
relationships, self-esteem, behavior, or overall adjustment in the
short and long run. On the other hand, Dr. Bernstein explained
that termination of the bond between Mother and N.W. would
likely not have a detrimental effect on the child. He described
how children learn to experience a level of distrust or lack of
dependability upon certain individuals, and instead gravitate
towards individuals who are more consistent and can meet their
needs regularly, such as the foster parents who he believes
provide a structured, consistent schedule for N.W.
During Mother’s testimony, Mother attested that she did
not abandon her second child as she did N.W. According to
Mother, foster Mother told her to leave the house. Mother also
testified to the unsupervised visits and overnight visits she has
had rather frequently with the children, with the permission of
foster [mother] but against court orders. Mother also testified,
upon [the trial court’s] inquiry, that she was not currently
pregnant; however, Lavina Harris of Holy Family Services
confirmed that Mother was indeed pregnant.
Trial Court Opinion, 9/7/2014, at 2-6 (footnote omitted).
The trial court’s factual determinations are supported by the record,
and render meritless Mother’s argument regarding the resolution of the
conditions that led to placement. “Termination under Section 2511(a)(8)
does not require the court to evaluate a parent’s current willingness or
ability to remedy the conditions that initially caused placement….” K.Z.S.,
946 A.2d at 759 (quoting In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa.
Super. 2007)). Rather, the question is whether, after being given more than
a year of time and assistance to remedy the conditions that led to
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placement, Mother alleviated those conditions prior to the filing of the
petition to terminate her rights.
Mother’s success in achieving financial stability, in the form of one
month of employment, occurred after CYF filed the petition, and may not be
considered. See N.T., 4/7/2014, at 72; 23 Pa.C.S. § 2511(b). Further,
prior to the filing of the TPR petition, Mother had not been consistent with
her drug screens, N.T., 4/7/2014, at 72, and had not complied with her
goals of contact and cooperation with CYF. Id. at 82. Although Mother
testified that she can take full responsibility for N.W. immediately, the trial
court was free to disbelieve her, and to find credible the opposing testimony
that Mother is not ready to parent now, after not having done so in two
years, and having in the interim left a second child in the care of foster
parents. See, e.g., id. at 32 (Dr. Bernstein testifying “I still have concerns
about … her continued progress and to what extent she will ultimately be in
a position to meet [N.W.’s] needs on a full-time basis.”); id. at 93 (Mr.
Bairhalter testifying that Mother’s leaving her second child in the foster
parents’ home caused CYF to question Mother’s parenting ability despite her
completion of a parenting class).
While Mother may have made substantial improvement in her life, and
continued to progress after CYF filed its petition, she failed to improve
enough to earn a recommendation of unsupervised visitation, let alone full
custody of N.W. Contrary to her unsupported claim that subsection (a)(8)
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allows that “twelve months may not be sufficient for parents to remedy the
conditions which led to removal but eighteen months should be[,]” Mother’s
Brief at 17, the subsection is clear in setting a twelve-month deadline. As
we have observed,
application of Section (a)(8) may seem harsh when the parent
has begun to make progress toward resolving the problems that
had led to removal of her [child]. By allowing for termination
when the conditions that led to removal of the child continue to
exist after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This 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.
In re C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc).
Consequently, the trial court properly determined that CYF met its initial
burden under subsection (a)(8).
Looking to the second requirement of subsection 2511(a)(8), the
record supports the trial court’s finding that terminating Mother’s parental
rights best serves the needs and welfare of N.W. Specifically, Dr. Bernstein
testified that N.W. looks to her foster parents, rather than Mother, for all of
her needs; foster parents are meeting those needs in providing a consistent
and structured schedule for N.W.; and terminating N.W.’s relationship with
her foster parents would cause trauma. N.T., 4/7/2014, at 30-32, 45-46.
Accordingly, we conclude that the trial court did not err in finding that CYS
met its burden under section 2511(a)(8). See, e.g., In re C.L.G., 956 A.2d
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at 1008 (“[I]f we were to permit Mother further opportunity to cultivate an
environment where she can care for C.L.G., we would be subjecting a child,
who has been waiting for more than two years for permanency, to a state of
proverbial limbo in anticipation of a scenario that is speculative at best.”).
We next consider whether the trial court gave adequate consideration
to the welfare of N.W. under subsection 2511(b). “Intangibles such as love,
comfort, security, and stability are involved when inquiring about the needs
and welfare of the child.” K.Z.S., 946 A.2d at 760 (quoting In re C.P., 901
A.2d 516, 520 (Pa. Super. 2006)).
The court should also consider the importance of continuity of
relationships to the child…. The court must consider whether a
natural parental bond exists between child and parent, and
whether termination would destroy an existing, necessary and
beneficial relationship. Most importantly, adequate consideration
must be given to the needs and welfare of the child.
Id. (internal citations omitted).
Mother argues that the record shows that the trial court was not
convinced that severing her bond with Mother is in N.W.’s best interests. In
support, Mother points to the trial court’s comments that it has concerns
about foster mother and that it would not proceed with the adoption until
after an adoption mediation and agreement. Mother’s Brief at 20 (citing
N.T., 4/25/2014, at 25, 28).
The trial court’s comments are based upon its concerns about the
foster mother’s judgment, specifically the fact that she, contrary to court
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order, had allowed Mother to have unsupervised, overnight custody of N.W.
The issues with timing and propriety of foster mother’s adoption of N.W. are
separate and distinct from the question of the termination of Mother’s
parental rights under 23 Pa.C.S. § 2511(b).
The record supports the trial court’s finding that N.W.’s needs and
welfare would be served, and that no necessary or beneficial relationship
would be destroyed, by terminating Mother’s rights. See, e.g., N.T.,
4/7/2014, at 33 (Dr. Bernstein testifying that N.W. will not suffer any
detrimental effects from the severing of her bond with Mother). Thus, the
evidence was sufficient to show that terminating Mother’s parental rights,
freeing N.W. to be adopted, would best serve her needs and welfare. See,
e.g., L.M., 923 A.2d at 512 (“There was absolutely no evidence that
severing the ties between Mother and L.M. would have a negative effect on
the child. Rather, unrefuted testimony indicated that L.M. was strongly
bonded to her foster mother and was thriving in her foster home.”).
Therefore, because the record supports the trial court’s conclusions (1)
that the conditions that led to N.W.’s placement continue to exist, and (2)
that termination of Mother’s parental rights is in N.W.’s best interests, we
hold that the trial court committed no error or abuse of discretion in granting
CYF’s petition under subsections 2511(a)(8) and (b).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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