In Re: C.D., a minor, Appeal of: B.D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: C.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.D., NATURAL MOTHER No. 2074 WDA 2014
Appeal from the Decree entered December 2, 2014,
in the Court of Common Pleas of Allegheny County, Orphans’
Court, at No: TPR 024-14
BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 15, 2015
B.D. (Mother) appeals from the decree entered December 2, 2014, in
the Court of Common Pleas of Allegheny County, which involuntarily
terminated her parental rights to her minor son, C.D. (Child), born in April of
2006.1 We affirm.
Child first entered the care of the Allegheny County Office of Children,
Youth and Families (CYF) on April 24, 2012. Child was placed in care as a
result of an incident during which Mother called the police and reported that
Child was missing, when in fact Mother had simply failed to pick up Child
after school. Mother was under the influence at the time of this incident.
Child was adjudicated dependent on May 15, 2012. On December 24, 2012,
Child was returned to Mother’s care, after Mother successfully produced
* Retired Senior Judge assigned to the Superior Court.
1
The parental rights of Child’s putative father, R.R., as well as the parental
rights of any unknown father that Child may have, were terminated by
separate decrees entered that same day. Neither R.R., nor any other
alleged father, is a party to the instant appeal.
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three clean urine screens. However, Child was again removed from Mother
on April 26, 2013, after Mother was arrested and incarcerated.
On February 10, 2014, CYF filed a petition to involuntarily terminate
Mother’s parental rights to Child. A termination hearing was held on August
8, 2014, and October 31, 2014. During the hearing, the orphans’ court
heard the testimony of CYF caseworker, Rhianna Diana; psychologist, Terry
O’Hara; Ms. Regina Harris, who transported Child to his visits with Father
and supervised the visits; Father; Child’s paternal grandmother, C.S.; and
Mother. On December 2, 2014, the court entered its decree terminating
Mother’s rights. Mother timely filed a notice of appeal on December 23,
2014, along with a concise statement of errors complained of on appeal.
Mother now raises the following issue for our review. “Did the
[orphans’] court abuse its discretion and/or err as a matter of law in
concluding that termination of [Mother’s] parental rights would serve the
needs and welfare of the child pursuant to 23 Pa.C.S.[A.] §[]2511(b)?”
Mother’s brief at 5.
We consider Mother’s claim mindful of our well-settled standard of
review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
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court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Mother’s parental rights
pursuant to Sections 2511(a)(2), (5), and (b), which provide as follows.
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
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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.
***
(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)(2), (5), and (b).
Instantly, Mother concedes that CYF presented clear and convincing
evidence that her parental rights may be terminated pursuant to Section
2511(a). Mother’s brief at 10 (“CYF, the petitioner, did clearly and
convincingly establish threshold grounds for termination pursuant to 23
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Pa.C.S.[A.] §[]2511(a)(2).”). Thus, we need only consider whether the
court abused its discretion by terminating Mother’s parental rights pursuant
to Section 2511(b).2 We have discussed our analysis under Section 2511(b)
as follows.
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. As this Court has
explained, Section 2511(b) does not explicitly require a bonding
analysis and the term ‘bond’ is not defined in the Adoption Act.
Case law, however, provides that analysis of the emotional bond,
if any, between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with his or
her child is a major aspect of the subsection 2511(b) best-
interest analysis, it is nonetheless only one of many factors to be
considered by the court when determining what is in the best
interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
2
Child’s guardian ad litem (GAL) suggests in her brief that we need not
consider Mother’s challenge to Section 2511(b) because Mother failed to
challenge the orphans’ court’s conclusion that her parental rights should be
terminated under Section 2511(a)(5). GAL’s brief at 10, 14 (citing In re
Matsock, 611 A.2d 737, 741 (Pa. Super. 1992)). GAL notes that Section
2511(a)(5) also requires an analysis of the subject child’s needs and welfare,
and contends that, “[b]ecause CYF proved that termination met [Child’s]
needs and welfare under Section 2511(a)(5), Mother’s argument that there
is insufficient evidence to support the [orphans’ c]ourt’s findings under
Section 2511(b) is moot.” Id. at 14. We disagree. The needs and welfare
analysis required by Section 2511(a)(5) is distinct and considered separately
from the analysis required by Section 2511(b), and we see no basis on
which to conclude that failing to challenge one of these sections on appeal
would prevent an appellant parent from challenging the other section. See
Matsock, 611 A.2d at 748 (“Thus, in termination proceedings based on
paragraph (a)(5), such as the one here, the needs and welfare of the child
must be considered twice; once under subsection (a), and if all five
requirements of subsection (a) are met, then again under subsection (b).”).
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love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011)) (quotation marks and
citations omitted).
In this case, the orphans’ court concluded that termination of Mother’s
parental rights would best serve Child’s needs and welfare. The court stated
that it considered the nature and the status of the bond between Mother and
Child, and the effects of severing that bond. Orphans’ Court Opinion,
1/30/15, at 15. The court noted testimony that Child suffers from anxiety
and symptoms of depression, and that these issues are directly influenced
by Child’s experiences with Mother. Id. In contrast, the court observed that
Child is doing well in foster care. Id. at 16. The court also emphasized that
Mother has failed to remedy her substance abuse issues. Id. at 15.
Mother argues that the court failed to address the impact that
terminating her parental rights would have on Child, and instead focused
improperly on her failings as a parent. Mother’s brief at 9, 13-14. Mother
also contends that the court was not permitted to consider Child’s preference
for residing with his foster mother when rendering its decision. Id. at 9, 13.
After a thorough review of the record in this matter, we conclude that
the orphans’ court did not abuse its discretion by involuntarily terminating
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Mother’s parental rights to Child. During the termination hearing,
caseworker Rhianna Diana testified concerning Mother’s lengthy involvement
with CYF. Ms. Diana explained that, at the time Child first was placed in
care, Mother reported attending Narcotics Anonymous and Alcoholics
Anonymous meetings, as well as seeing a therapist for mental health
treatment and drug and alcohol treatment. N.T., 8/8/14, at 44. Mother also
was in a Suboxone maintenance program “for a period of time.” Id. at 43.
After Child was returned to Mother’s care in December of 2012, Mother
reported that she was continuing to receive this treatment. Id. at 46, 49.
However, Ms. Diana further testified that Mother was detained by
police for retail theft on April 19, 2013. Id. at 50-51. Ms. Diana spoke to
Mother about this incident, and Mother admitted to continued drug use. Id.
at 51. As noted supra, Child was removed from Mother’s care a second time
on April 26, 2013, after Mother again was arrested. Id. at 7, 50. Mother
was incarcerated from April 28, 2013, until May 7, 2013. Id. at 53. Mother
was arrested once again on July 13, 2013, and remained incarcerated until
July 26, 2013. Id. at 54. Mother’s next arrest took place on August 3,
2013. Id. In October of 2013, Mother was released to “the Renewal
program.” Id. However, Mother violated her parole and was incarcerated
until July 28, 2014. Id. at 7, 55. While incarcerated, Mother did not report
receiving treatment. Id. at 55, 80, 90. Mother did complete a 45-day
inpatient program while at Renewal. Id. at 56.
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Ms. Diana concluded that Mother had not been able to remedy her
mental health or drug and alcohol issues by the time the petition to
terminate her parental rights was filed. Id. at 58. Further, Ms. Diana
opined that it would not be possible for Mother to remedy these issues within
a reasonable period of time, based on Mother’s repeated failures to do so in
the past. Id. at 61-62. Ms. Diana explained that Child appears to be happy
and well-adjusted in his current foster placement. Id. at 59. She noted that
Child’s interactions with his foster family are always positive, and that Child
gravitates to his foster mother and looks to her for security. Id. at 62-63.
Psychologist, Terry O’Hara, testified that he performed a series of
individual and interactional evaluations with Child, Mother, and Child’s foster
parents, in 2012 and 2014. N.T., 10/31/14, at 6-7. Child indicated during
these evaluations that, “for the most part,” he was best cared for by his
foster mother, and he wanted to continue living with his foster parents. Id.
at 15, 23, 42. Child further expressed a desire that he have less frequent
visits with Mother. Id. at 23. Dr. O’Hara agreed that Child suffers from
anxiety and symptoms of depression, and that these issues are “directly
influenced” by Child’s experiences with Mother. Id. at 46.
Ultimately, Dr. O’Hara recommended that Child should be adopted.
Id. at 23. Dr. O’Hara emphasized, inter alia, Mother’s failure to remedy her
mental health and substance abuse issues, as well as her frequent
incarcerations. Id. at 19-21. Dr. O’Hara stated that there is “some level of
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attachment” between Mother and Child. Id. at 41. However, he agreed that
Child’s relationship with Mother is not so significant that termination of
Mother’s parental rights would be harmful to Child, and opined that the
benefits of adoption would outweigh any detriment that Child might suffer.3
Id. at 23-24, 43-44.
Mother testified concerning her efforts at obtaining mental health and
substance abuse treatment. Specifically, Mother stated that she attended
Narcotics Anonymous (NA) meetings and received dual diagnosis treatment
with a therapist for a year prior to her incarceration in April of 2013. Id. at
130-31, 137, 146. Mother indicated that, while incarcerated, she
participated in the “Thinking for a Change” program, attended NA meetings,
received cognitive behavioral therapy and saw a drug and alcohol counselor.
Id. at 132, 137-38. Mother also attended NA meetings and therapy during
her time at Renewal. Id. at 134, 138. According to Mother, she continues
to attend “Thinking for a Change” once per week, and she also continues to
attend NA meetings, goes to therapy, and sees a psychiatrist. Id. at 133,
138. Mother testified that she began receiving treatment at Mercy Behavior
Health in August of 2014, and that she currently is attending an intensive
outpatient program three days a week, after having “stepped down” from
partial hospitalization. Id. at 135. Mother noted that she is prescribed
3
In a 2014 evaluation, which was entered into evidence at the termination
hearing as part of CYF Exhibit 5, Dr. O’Hara reported that Child’s foster
parents “expressed a desire to adopt [Child].” CYF Exhibit 5, Psychological
Evaluation Report (January 2014), at 2.
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Suboxone as well. Id. at 139. Despite this treatment, Mother admitted that
she last used illegal substances in September of 2014, about a month prior
to the termination hearing. Id. at 149. Mother also conceded that she was
arrested for retail theft that same month. Id. at 152.
Thus, the testimony presented during Mother’s termination hearing
supports the trial court’s conclusion that it would best serve Child’s needs
and welfare to terminate Mother’s parental rights. Since Child first was
placed in care in 2012, Mother has repeatedly been arrested, and has been
unable to remedy her drug abuse issues. Moreover, during his evaluations
with Dr. O’Hara, Child reported that he is best cared for by his foster
mother, and that he wants to continue living with his foster parents.
Conversely, Child did not want to see Mother as often. Child’s statements
support Dr. O’Hara’s conclusion that, while Child may have some attachment
to Mother, the permanence and stability provided by adoption would
outweigh any detriment that Child might suffer by terminating Mother’s
parental rights. See C.D.R., 111 A.3d at 1220 (concluding that the
appellant mother’s bond with C.D.R was outweighed by the mother’s
“repeated failure to remedy her parental incapacity,” and by C.D.R.’s need
for permanence and stability).
Further, we reject Mother’s claim that the orphans’ court failed to
consider the impact that the termination of her parental rights would have
on Child, and instead focused improperly on her failings as a parent. The
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court indicated that it considered the nature and the status of the bond
between Mother and Child, and the effects of severing that bond, and
thoroughly summarized evidence relevant to this issue in the “History”
portion of its opinion. Orphans’ Court Opinion, 1/30/15, at 6-7, 9, 15.
Admittedly, Mother is correct that “[t]he focus in terminating parental rights
under [S]ection 2511(a) is on the parent, but the focus turns to the children
under [S]ection 2511(b).” In re M.T., 101 A.3d 1163, 1181 (Pa. Super.
2014) (en banc) (citing In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008) (en banc)). However, it is clear that Mother’s frequent
incarcerations and inability to remedy her drug abuse are relevant
considerations in determining whether termination will serve Child’s needs
and welfare. See, e.g., M.T., 101 A.3d at 1182 (quoting favorably from a
trial court opinion addressing the parents’ “inability to consistently provide a
safe and secure environment for their children” as part of its Section
2511(b) analysis). No relief is due.
Finally, we note that Mother’s argument that the orphans’ court was
not permitted to consider Child’s preference for living with his foster parents
also does not entitle her to relief. In support of this position, Mother cites to
In re B.L.L., 787 A.2d 1007 (Pa. Super. 2001). In B.L.L., a panel of this
Court rejected an appellant parent’s argument in an involuntary termination
case that the trial court erred by refusing to schedule an additional hearing
in order to allow B.L.L. to testify. Id. at 1011. The Court then went on to
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discuss this issue further by summarizing some of the differences between
custody, involuntary termination, and adoption proceedings. Id. at 1012-
16. The Court observed that, while a child’s preference as to where he or
she wants to live is a relevant consideration in custody and adoption
proceedings, “the preference of a child . . . and his rights to be heard on the
record, is not relevant to termination proceedings, as the child is not electing
a choice between two otherwise fit parents with whom he will be able to be
placed.” Id.; see also id. at 1014 (“The testimony or preferences of the
child(ren) is not required or permitted in an involuntary proceeding as the
child cannot cede his right to minimal proper nurturing.”).
While it is true that a child’s preference is not an independently
relevant or permissible factor in termination proceedings, we disagree with
Mother’s contention that the preference of a child can never be considered
by a trial court, as a child’s preference can provide valuable insight into
other important aspects of a case. Here, Child’s preference for living with
his foster mother is evidence of (1) Child’s bond with his foster mother, (2)
Child’s lack of a crucial bond with Mother, and (3) the fact that Child will not
suffer a serious detriment if Mother’s parental rights are terminated. All of
these are relevant, and necessary, considerations in the instant matter.
Accordingly, because we conclude that the orphans’ court did not
abuse its discretion by terminating involuntarily Mother’s parental rights to
Child, we affirm the decree of the orphans’ court.
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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