In the Interest of: T.M., Appeal of: J.C. ( 2022 )

J-A02027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.C., MOTHER :
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: No. 993 WDA 2021
Appeal from the Order Entered July 22, 2021
In the Court of Common Pleas of Allegheny County
Orphans’ Court at CP-02-AP-0000004-2021
IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.C., MOTHER :
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: No. 994 WDA 2021
Appeal from the Order Entered July 22, 2021
In the Court of Common Pleas of Allegheny County
Orphans’ Court at CP-02-AP-0000003-2021
BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: FEBRUARY 7, 2022
J.C. (Mother) appeals from the involuntary termination of her parental
rights to her daughter, A.M., born in July 2017, and her son, T.M., born in
August in 2018 (collectively, Children).1 After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1A.S. (Father) is Children’s biological father. Father consented to termination
of his parental rights and did not appeal.
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The Allegheny County Office of Children Youth and Families (CYF)
became involved with this family in March 2019, when Mother took Children
to the emergency room at Children’s Hospital of Pittsburgh due to the Children
having gastrointestinal issues. N.T., 7/16/21, at 110. T.M., who was seven-
months-old, was admitted for treatment because he was severely
malnourished. Id. at 110-11. The court explained:
Dr. Carmen Coombs [(Dr. Coombs)], an expert in pediatric
emergency medicine and child abuse, gave graphic testimony
about [T.M.’s] appearance upon admission to the hospital. She
testified that [T.M.] was very thin and exhibited “temporal
wasting”, which means that he had no fat on his face. [T.M.’s] rib
cage and bones were visible. He had loose skin on his body
because he had no body fat. He was severely malnourished. Dr.
Coombs testified that the low weight was so significant that an
ordinary person should have observed that the child was severely
malnourished.
...
Dr. Coombs testified that although there were no concerns of
physical abuse, this was a clear case of child neglect. There was
no underlying medical reason or issue, which would explain
[T.M.’s] low weight and physical condition, other than not
receiving enough food. As a result of the malnourishment, [T.M.]
had a vitamin D deficiency (rickets). Dr. Coombs also stated that
once a child is so malnourished, they may develop a “food
aversion” which can continue to place them at risk. Dr. Coombs
was concerned that Mother did not seem to appreciate the severity
of the problem. [Mother] expressed that she did not feel his low
weight was a problem because [T.M.] appeared to be a happy,
loving child.
In addition to [T.M.’s] obvious malnourishment and physical
condition, Dr. Coombs had other concerns for [T.M.’s] wellbeing.
She was concerned that [T.M.] had not had a pediatric
appointment since he was two and one-half months old and that
the family lacked stable housing. Dr. Coombs also testified that
she was concerned that [T.M.] did not have a safe sleeping
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environment. She described a safe sleeping environment as an
environment where the infant is placed on his back, alone on a
hard flat surface with no toys and blankets on which they could
choke or suffocate, and importantly—no co-sleeping. She added
that in Allegheny County there is approximately one infant death
per month due to unsafe sleeping conditions.
In contrast, [T.M.] slept on a pillow or with Mother, putting him at
risk for death. Mother did not think that this was a problem.
[T.M.] was born with one extra digit on each hand. According to
Dr. Coombs, extra digits are not uncommon, but parents are
usually advised to have the extra digits removed because they can
be painful and become infected. Mother was advised to have the
extra digits removed but declined because she believed that
removing the extra digits would upset his “spiritual gifts.”
Findings of Fact, 7/22/21, at 2-3 (bulleting omitted).
Based on the foregoing, CYF successfully filed for emergency protective
custody of T.M. on April 3, 2019, and of A.M. on April 10, 2019. CYF placed
Children in the care of Aa.S. (Paternal Aunt).
On May 7, 2019, the court adjudicated Children dependent. CYF created
a family service plan (FSP) for Mother. Mother’s objectives included:
cooperating and participating with the agency; resolving any outstanding
criminal matters; obtaining and maintaining sobriety; obtaining and
maintaining safe and appropriate housing; obtaining and maintaining mental
health stability; addressing domestic violence; and learning to meet the
developmental, medical, and other needs of Children. N.T., 7/16/21, at 155;
see also Order of Adjudication, 5/7/19.
Mother remained largely noncompliant with her FSP objectives, and on
January 8, 2021, CYF filed petitions to involuntarily terminate Mother’s
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parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), (8) and (b).
The juvenile court conducted a hearing on July 16, 2021. At the time of the
hearing, Children had been in Paternal Aunt’s care for 27 months. Mother was
present and testified on her own behalf.2 CYF presented testimony from Dr.
Eric Bernstein, Psy.D., a forensic psychologist; City of Pittsburgh Police
Sergeant Peter Bechtold and Officers Eric Chesney, Douglas Weaver and Jake
Flickinger; Tarraca Jackson, a supervisor with the Allegheny County Health
Department Drug and Alcohol Screening Laboratory; Officer Michael
Catanzaro with the borough of Wilkinsburg Police Department; William
Pipkins, a transportation supervisor at Second Chance; Dr. Coombs; and
Diane Riley, the CYF caseworker.
On July 22, 2021, the court terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (5), (8), and (b). On August 19,
2021, Mother timely filed notices of appeal and concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This
Court consolidated Mother’s appeals sua sponte. On September 23, 2021, the
court filed a Rule 1925(a) opinion.
Mother presents two questions for our review:
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2 Jeffrey Eisenberg, Esquire, initially represented Mother at the termination
hearing. During the proceedings, Mother presented a request to proceed pro
se, which the court granted. See N.T., 7/16/21, at 12-18. Attorney Eisenberg
continued to serve as stand-by counsel at the hearing, and represents Mother
on appeal.
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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)(2), (5), and (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 [C]hildren pursuant to 23 Pa.C.S.
§ 2511(b)?
Mother’s Brief at 8.
Mother first challenges termination of her parental rights under 23
Pa.C.S.A. § 2511(a). The Pennsylvania Supreme Court has explained:
[A]ppellate courts [must] 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
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 omitted).
We further recognize that termination involves 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
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It is well settled that we only need agree with the court as to one
subsection of Section 2511(a), as well as Section 2511(b), to affirm. In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Instantly, we review
termination under Section 2511(a)(2) and (b), which 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:
...
(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(a)(2), (b).
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.
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In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations
omitted).
Mother argues the court erred in terminating her parental rights under
subsection (a)(2) because CYF presented “insufficient evidence of continued
incapacity of Mother to provide essential parental care for the Children.”
Mother’s Brief at 21. Mother states that Children were removed “at different
times and under different conditions,” and CYF only removed A.M. from
Mother’s care after Mother lost housing. Id. Mother contends she has
remedied the housing condition that led to A.M.’s removal. Id. Further,
Mother suggests her “refusal to remove both [of T.M.’s] extra fingers, infected
or not, or Mother’s refusal to immunize, cannot be a basis to support a
determination that Mother had not remedied the conditions that led to the
removal of T.M. … .” Id. at 23. We disagree.
The court discussed at length the evidence which led to its conclusion
that termination was warranted under Section 2511(a)(2). See Orphans’
Court Opinion, 9/23/21, 1-5; id. at Ex. A. As noted, Children were in the care
of CYF for more than two years before CYF filed the termination petitions.
N.T., 7/16/21, at 177-78. At the termination hearing, the court accepted into
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evidence Children’s dependency docket, the report of Dr. Bernstein, Mother’s
drug screen results, a report authored by Second Chance, a temporary
Protection from Abuse (PFA) order between Mother and Father, and Children’s
hospital records. Id. at 60 Ex. 1, 76 Ex. 2, 98 Ex. 3, 136-37 Ex. 4, 192 Ex.
5, 192-93, Ex. 7. Regarding Mother’s outstanding criminal matters, the court
acknowledged Mother had not resolved her criminal charges, but “given the
fact many cases have been postponed or delayed due to the pandemic, this
should not be held against Mother.” Findings of Fact, 7/22/21, at 5.
Children’s case manager, Diane Riley, testified to being assigned to
Children’s case in December 2020. Id. at 138. Ms. Riley reported that CYF
continues to have concerns regarding Mother’s sobriety. N.T., 7/16/22, at
162. Mother missed drug and alcohol screens and failed to follow the
treatment recommended by the POWER assessment. Id. Ms. Riley expressed
concern that although Mother reported she had a medical marijuana card;
Mother has failed to produce the card; and CYF has been unable to verify her
medical marijuana patient status. Id. at 163.
Regarding Mother’s housing, Ms. Riley testified, “Mother has not had
stable housing for the life of the case.” N.T., 7/16/21, at 158. CYF referred
Mother to Allegheny Link and the Urban League and Nova housing programs,
but Mother never followed through with the referrals. Id. At the time of the
termination hearing, Mother was residing in a shelter, but indicated she had
secured stable housing. N.T., 7/16/21, at 197. However, in its findings, the
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court noted Mother’s “history of homelessness,” inability to maintain stable
housing “during the life” of the case, and the fact that Mother had not obtained
stable housing within six months of the filing of the termination petitions.
Findings of Fact, 7/22/21, at 5.
As to Mother’s goal of obtaining mental health treatment, Ms. Riley
testified that Mother’s compliance had become more consistent, but was
inconsistent from 2019 through the summer of 2020. N.T., 7/16/21, at 160-
61. Yet despite Mother’s improvement, CYF continued to have concerns about
Mother’s mental health because Mother had “not followed what the
recommended services were. … Although she has been engaged in mental
health treatment, it appeared it was not the correct … mental health treatment
that was needed to address the concerns.” Id. at 161.
With respect to Mother’s issues with domestic violence, Ms. Riley
testified that Mother’s compliance was inconsistent. Id. at 163. The agency
remained concerned about Mother’s relationship with Father, including
Mother’s “pattern of leaving [him] and then stating she does not want contact
with [him] and then would contact [him], and have not only phone but
physical contact with [F]ather.” Id. at 164.
Finally, as to meeting Children’s developmental, medical and other
needs, Ms. Riley explained that prior to Children’s dependency adjudication,
Mother failed to secure a primary care physician or immunizations for the
Children. N.T., 7/16/21, at 158. Ms. Riley stated, “Mother felt that it was not
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necessary for the [C]hildren to have immunizations in which it was her
personal choice based on her own research.” Id. at 159. Following Mother’s
refusal to consent to surgery to remove T.M.’s polydactyl digits after they
became infected, Children’s foster parents were given authority to make
medical decisions on Children’s behalf. Id. Dr. Bernstein testified:
[W]e have the matter of questionable medical neglect which
ultimately would lead to the involvement of the agency. And I
suppose you could even then relate those to some of your earlier
questions about matters of insight. And if [Mother] has the
understanding of responsibility as a parent to meet all of the
children’s needs, including of course their physical and medical.
Id. at 47-48.
In sum, the record supports the court’s determination that Mother’s
continued incapacity to parent caused Children to be without essential
parental care that will not be remedied. Accordingly, we discern no error or
abuse of discretion in the court’s finding grounds for termination under Section
2511(a)(2).
In her second issue, Mother argues the court improperly terminated her
parental rights pursuant to 23 Pa.C.S.A. § 2511(b). She contends “there is
no evidence that Mother cannot care” for Children, stating that, “A.M. and T.M.
have the right to as much love, comfort, and support in their lives as possible.”
Id. at 26-27.
While the focus of Section 2511(a) is on the parent, the focus of Section
2511(b) is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
Super. 2008) (en banc). The Pennsylvania Supreme Court explained:
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[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S.A. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa.
1993)], this Court held that the determination of the child’s “needs
and welfare” requires consideration of the emotional bonds
between the parent and child. The “utmost attention” should be
paid to discerning the effect on the child of permanently severing
the parental bond. In re K.M., 53 A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
A parent’s own feelings of love and affection for a child, alone, do not
prevent termination of parental rights. In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). Further, “a parent’s basic constitutional right to the custody
and rearing of his or her child is converted, upon the failure to fulfill his or her
parental duties, to the child’s right to have proper parenting and fulfillment of
[the child’s] potential in a permanent, healthy, safe environment.” In re
B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2003) (citations omitted). “[W]e will
not toll the well-being and permanency of [a child] indefinitely.” In re
Adoption of C.L.G., 956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d at 732
(child’s life “simply cannot be put on hold in the hope that [a parent] will
summon the ability to handle the responsibilities of parenting.”)).
Our review discloses that termination of Mother’s parental rights under
subsection (b) is supported by competent, clear and convincing evidence. The
court explained:
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The Children also have a positive and strong bond with [Paternal
Aunt]’s fiancé … [(Foster Father)]. [Foster Father] possesses
appropriate and positive parenting skills.
During the second interactional and bonding assessment
[performed by Dr. Bernstein] with Mother and the [C]hildren in
June of 2021, [T.M.] left the evaluation without a reason and later
indicated that he wanted to return to his foster father … . Mother
still has not accepted responsibility for the neglect of [T.M.,] which
is highly concerning.
[Paternal Aunt] and [Foster Father] consistently continue to
provide for and support the Children’s needs. They recognize the
importance of the Children’s relationship with their parents and
are committed to allowing ongoing contact should the Court
terminate parental rights. [Paternal Aunt] and [Foster Father] are
the psychological parents of [A.M.] and [T.M.].
Termination of parental rights would not have a deleterious impact
on these Children. Termination of parental rights and adoption by
the foster parents is in the best interest of [A.M.] and [T.M.].
...
… Both Children have been in care of their paternal aunt for most
of their lives. They are bonded to [her] and her fiancé, whom they
view as their psychological parents.
The Children are thriving in this home and deserve to remain in a
loving, nurturing and supportive environment in which their needs
are met on a permanent basis.
N.T., 7/22/21, at 19-20, 22.
At the termination hearing, Dr. Bernstein testified that Children’s needs
were being met in their foster home and Children had a strong bond with the
foster parents. N.T., 7/16/22, at 43. Dr. Bernstein stated that Children call
their foster parents “Tee Tee for the foster mother and Uncle Tony for the
foster father. Or alternatively, mom and dad.” Id. at 43-44. Dr. Bernstein
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advocated for termination and endorsed “foster parents as a permanency
resource for adoption.” Id. at 44.
Likewise, Ms. Riley stated she would be concerned if Children were
removed from foster parents’ home, “[d]ue to [Children’s] bond with their
foster parents. [Foster Parents] have been consistent with the children for
the past 27 months. They have been in their home every day, every night for
the past 27 months.” Id. at 181.
Upon review, the record supports the court’s conclusion that termination
served Children’s developmental, physical and emotional needs. We therefore
discern no error or abuse of discretion in the court’s determination that
termination was warranted under Section 2511(b).
Termination Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/20222
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