In the Int. of: K.D., a Minor Appeal of: J.M.G. ( 2015 )

J-A26025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.M.G., MOTHER
No. 848 MDA 2015
Appeal from the Order Entered April 20, 2015
in the Court of Common Pleas of Franklin County
Juvenile Division at No.: 33 Adopt 2013
IN THE INTEREST OF: A.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.M.G., MOTHER
No. 849 MDA 2015
Appeal from the Order Entered April 20, 2015
in the Court of Common Pleas of Franklin County
Orphans' Court at No.: 31 Adopt 2013
IN THE INTEREST OF: C.D., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.M.G., MOTHER
No. 850 MDA 2015
Appeal from the Order Entered April 20, 2015
J-A26025-15
in the Court of Common Pleas of Franklin County
Orphans' Court at No.: 32 Adopt 2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 17, 2015
In these consolidated appeals1, J.M.G. (Mother) appeals from the
orders of the Court of Common Pleas of Franklin County, entered April 20,
2015, that terminated her parental rights to her children A.D., C.D., and
K.D. (Children), and changed their permanency goals to adoption. We
affirm.2
We consider these appeals on remand from our memorandum entered
May 21, 2014, in which this Court reversed the trial court’s order that
dismissed the petition to terminate Mother’s parental rights filed by Franklin
County Children and Youth Service (CYS), and in which this Court reversed
the trial court’s order denying CYS’ petition to change the Children’s
permanency goals to adoption. We remanded with instructions to determine
the best interests of the Children pursuant to 23 Pa.C.S.A. § 2511(b), which
the trial court had not yet considered when it dismissed CYS’ petition.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
This Court consolidated these appeals, sua sponte, on May 21, 2015.
2
The trial court also terminated the parental rights of Child’s father, D.R.D.,
II, on September 19, 2013; he did not appeal that termination.
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This Court set forth the facts of this case, as related in our
memorandum entered May 21, 2014, as follows:
We consolidated these nine appeals sua sponte and listed
them before the same panel for disposition.1 In the appeals
assigned docket Nos. 1602, 1603, and 1604 MDA 2013, the
guardian ad litem appointed to represent [K.D.], A.D., and C.D.
appeals from the orphans’ court order entered on August 2,
2013. In that order, the orphans’ court dismissed the petition
filed by [CYS] to involuntarily terminate [Mother’s] parental
rights to the three [C]hildren. At Nos. 1878, 1879 and 1880
MDA 2013, the guardian ad litem appeals the September 19,
2013 juvenile court order denying CYS’s petition to change the
[C]hildren’s permanency goal in the dependency proceedings
from reunification to adoption.2 For its part, CYS challenges the
juvenile court’s September 19, 2013 order in the appeals
assigned docket Nos. 1874, 1875, and 1876 MDA 2013. As the
nine appeals arise from identical facts and the trial court
addressed the overlapping claims of error in concurrent opinions
relating to the termination of parental rights and the goal change
respectively, we consolidate the appeals for disposition, and
after careful review, we reverse both orders and remand for
further proceedings.3
CYS became involved with this family on December 12,
2011, when it received a referral from a child service agency in
Texas alerting it that Mother and D.R.D., II (“Father”) had
relocated with [the Children] from Texas to Franklin County,
Pennsylvania, in violation of an active child safety plan. The
following day, CYS placed the [C]hildren in its legal and physical
custody. Among other things, the Texas child safety plan
prohibited Father from being in contact with the [C]hildren due
to allegations that he sexually abused A.D. during August 2011
and due to a finding by the Texas agency of “reasons to believe,”
the evidentiary equivalent of the preponderance of the evidence,
that the abuse occurred.
A brief history of Mother’s and Father’s extensive
interactions with the Texas agency is warranted. During 1999,
the Texas agency found “reasons to believe” Father physically
abused his twin infant children from a prior relationship. Father
was involved with the Texas agency again during 2001 based
upon a “reason to believe” that he committed neglectful
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supervision of two other children, the two-month-old daughter
he had with his second wife and his second wife’s four-year-old
son. No criminal convictions flowed from any of the previous
incidents. Mother was aware of Father’s interactions with the
Texas agency for those prior incidents. Additionally, while
Mother and Father were dating during 2003, the Texas agency
found “reasons to believe” that Father sexually abused Mother’s
daughter from her former marriage. Rather than terminate her
relationship with Father after that revelation, Mother
relinquished custody of her eldest daughter to her ex-husband,
the child’s birth father. All of the events occurred several years
before Mother discovered Father was sexually abusing A.D.
during August of 2011.
On January 19, 2012, the juvenile court adjudicated
[K.D.], A.D., and C.D. dependent as the term is defined in 42
Pa.C.S. § 6302(1). The initial permanency goal was
reunification. Both parents were determined to be perpetrators
of abuse. Mother was designated perpetrator by omission, and
the trial court found aggravated circumstances that would have
otherwise relieved the agency from providing reunification
services. Nevertheless, the juvenile court directed the agency to
establish reunification services for Mother. The court relieved
CYS from an obligation to provide Father reunification services.
The three [Children] currently reside together in a pre-
adoptive foster home. At the time of the termination
proceedings, the respective ages of [K.D.], A.D., and C.D. were
eight, seven, and two years old.
Pursuant to the juvenile court’s directive, CYS ordered
services for Mother to participate in a parental fitness
assessment, submit to psychiatric and psychological evaluations,
attend parenting classes, maintain financial stability, appropriate
housing, and consistent visitation with the [C]hildren. Mother
never submitted to a psychiatric evaluation, but she participated
in two parental fitness assessments that included several
psychological components. Following those assessments, Mother
was directed to participate in extensive counseling and CYS
presented to her a list of acceptable providers. Mother complied
with the counseling requirement for seven months between June
of 2012 and January of 2013. However, Mother did not utilize
any of the counselors whom CYS identified, and the counselors
whom she selected independently proved to be ineffective at
identifying and addressing her psychological needs. Mother
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stopped attending counseling between January and June 2013.
Despite working at a telephone call center in Maryland, Mother
has not obtained independent housing. Instead, she continues
to reside rent-free with her parents in Pennsylvania.
In relation to visitation with the [C]hildren, Mother has
consistently attended her weekly supervised visitation. She was
initially granted one hour of visitation per week, but the duration
of the visits increased to three hours over the course of CYS’s
involvement. Visitation is still supervised, however, because of
CYS’s concerns that Mother is whispering inappropriate things to
the [C]hildren during the visitations.
On June 18, 2013, CYS filed a petition to terminate
Mother’s and Father’s parental rights and to change the
permanency goal for [the Children] from reunification to
adoption. As it relates to Mother, CYS’s petition for termination
of parental rights averred that the [C]hildren were removed from
Mother’s care on December 13, 2011, due to her failure to
protect them from abuse following her knowing and voluntary
violation of the Texas safety plan. Specifically, CYS alleged that
while Mother acknowledged that she violated the safety plan by
moving with Father and the [C]hildren to Pennsylvania, she did
not understand how her decision placed the [C]hildren at risk.
During the ensuing hearings, CYS presented testimony
from the CYS caseworker assigned to the family, two
psychologists: Amy Taylor, Ph.D., who conducted an assessment
of Mother’s parental fitness, and Kasey Shienvold, Ph.D., who
performed a bonding assessment among Mother, [the Children],
the children’s therapist, and the foster parents. The guardian ad
litem presented Mother’s testimony relative to the goal change
proceedings. As we discuss below, neither Mother nor Father
presented any evidence during the hearings.
With regard to the first issue we address in this appeal, the
foster parents testified during the hearings that while [K.D.] and
A.D. have been in their home, they have both disclosed
additional incidents of sexual abuse perpetrated against them by
Father while the family lived in Texas. The foster parents also
testified that the two children indicated that they informed
Mother about the additional incidents, but she failed to stop the
abuse. [K.D.] and A.D. testified in camera.4 Both children
indicated that additional abuse occurred in Texas and confirmed
that they informed Mother of those episodes.
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At the close of CYS’s case-in-chief on July 29, 2013, the
trial court convened a hearing in chambers to (1) determine the
propriety of terminating only one parent’s parental rights and (2)
discuss the sua sponte dismissal, in the nature of a compulsory
nonsuit,5 of CYS’s petition against Mother. During the
conference, the trial court concluded that the evidence CYS
adduced during its case-in-chief to support terminating Mother’s
parental rights was insufficient to proceed. Therefore, the court
announced its intention to dismiss that petition, and accordingly,
it immediately entered an order that formally dismissed CYS’
petition to terminate Mother’s parental rights. In reference to
Mother’s putative testimony concerning the yet unresolved
permanency and goal change issues, the trial court advised
Mother’s counsel, “the worst thing [he] could do is put [Mother]
on the stand and say that this [additional abuse] did not
happen.”6
Thereafter, the court adjourned until August 2, 2013, when
it reconvened the hearing regarding the termination of Father’s
parental rights and the goal change proceedings as to both
parents. In the interim, Father, CYS, and the guardian ad litem
filed petitions requesting that the trial court recuse from the
ensuing termination and permanency proceedings. The trial
court denied Father’s and CYS’s motions by orders entered on
August 1, 2013, and it denied the guardian ad litem’s motion in
open court on the following day.
During the ensuing hearing on August 2, 2013, the
guardian ad litem called Mother as a witness. After receiving
additional evidence regarding the [C]hildren’s permanency goals,
the trial court entered an order on September 19, 2013, that
denied CYS’s petition to change the [C]hildren’s permanency
goal from reunification to adoption. Instead, the court directed
CYS to provide Mother additional services to prepare her for
reunification with the [C]hildren. These timely filed appeals
followed.7
__________________________
1
There were initially twelve related appeals. In a separate
opinion, we affirmed the orphans’ court order terminating the
parental rights of the [C]hildren’s father, D.R.D., II. Those
appeals were assigned Nos. 1842-1844 MDA 2013.
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2
Pursuant to the Adoption Act, 23 Pa.C.S. § 2101, et seq.
involuntary termination of parental rights is conducted under the
jurisdiction of the orphans’ court. Conversely, permanency
planning for dependent children is conducted in the juvenile or
family division under the aegis of the Juvenile Act, 42 Pa.C.S. §
6301, et seq. In these cases, the same trial judge presided over
both matters.
3
Where appropriate, we refer to CYS and the guardian ad litem
collectively as Appellants.
4
When the [C]hildren testified in the courtroom, Mother was
excluded.
5
Although the trial court styled its decision akin to a directed
verdict, since these proceedings were not before a jury, we find
that the court’s decision is more aligned with a compulsory
nonsuit. See Pa.R.C.P. 230.1.
6
The in-chambers conference was not recorded. However, the
trial court took judicial notice of its statement during a
subsequent record proceeding.
7
The guardian ad litem filed its notice of appeal from the
orphans’ court order on September 3, 2013, the first business
day following the expiration of the thirty-day appeal period on
Sunday, September 1, 2013, and the observance of Labor Day
on September 2, 2013. The guardian ad litem appealed the
September 19, 2013 juvenile court order within the thirty-day
appeal period. As noted, CYS did not appeal the orphans’ court
order. It filed a notice of appeal from the juvenile court order on
October 21, 2013, the first business day following the expiration
of the thirty-day appeal period on Saturday, October 19, 2013.
Hence, these appeals are timely.
(In the Interest of K.D., A.D., and C.D., 1602 MDA 2013, 5/21/14,
unpublished memorandum at *4-11 (footnotes in original; record citations
omitted)).
In reversing the trial court’s decision to dismiss CYS’ petition to
terminate Mother’s parental rights this Court concluded, after a review of the
record, that “CYS established its burden of proving by clear and convincing
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evidence the statutory grounds to terminate Mother’s parental rights
pursuant to § 2511(a)(8).” (Id. at *32-33). Left open, however, was the
question of the bond between Mother and the Children because the trial
court never reached the issue. In addressing this question, this Court
observed:
The extent of the orphans’ court’s bond-effect analysis
depends upon the circumstances of a particular case. In re
K.Z.S., supra at 763. Instantly, the orphans’ court did not
engage in the § 2511(b) analysis because it had concluded that
CYS failed to establish the statutory grounds for terminating
Mother’s parental rights pursuant to § 2511(a). While we are
tempted, at least initially, to perform the required analysis in this
children’s fast track case based upon the ample evidence in the
certified record, we are constrained to remand the matter to the
orphans’ court to perform the need-and-welfare analysis in the
first instance.
We observe that since the record contains abundant
evidence regarding the existence and nature of the parent-child
bonds and the developmental, physical, and emotional needs
and welfare of the [C]hildren, additional hearings will not be
required unless the orphans’ court desires to update the
[C]hildren’s status on this record. Specifically, in its current
form, the certified record includes Dr. Shienvold’s testimony
regarding his bonding assessment and his conclusion with a
reasonable degree of psychological certainty that, while the
[C]hildren maintain an attachment with Mother, in light of the
strong bond that they have with the foster parents, the parent-
child relationships can be severed in these cases without
significant risk of long-term consequences. Essentially, Dr.
Shienvold concluded that the [C]hildren’s strong healthy bonds
with the foster family would mitigate the risks associated with
terminating their attachment to Mother.
The certified record also includes testimony from the
[C]hildren’s therapist and foster parents that establishes that the
[C]hildren are currently thriving in their pre-adoptive home. On
remand, the trial court is directed to perform its needs and
welfare analysis in light of the forgoing evidence and mindful of
the [C]hildren’s safety needs. Likewise, it must consider the
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evidence establishing the love, comfort, security, and stability
the [C]hildren enjoy with their foster family, the importance to
the [C]hildren of continuing those beneficial relationships, and
the fact that those relationships will mitigate the risks
concomitant with severing their attachment to Mother.
(Id. at *35-36) (record citations omitted).
The trial court did take additional testimony in this matter in hearings
held on January 28 and 30, February 19, and March 12 of 2015. Testifying
at those hearings were CYS caseworker, Keri Coccagna; program director of
Alternative Behavioral Consultants, Emily Bakner; psychologist, David
Leaman, Ph.D.; licensed counselor, Kevin Haney; the Children’s therapist,
Donna Roland; the Children’s grandfather, J.B.; Cumberland County CYS
caseworker, Donna Kissinger; licensed professional counselor, Deann
Blankenship-Sanders; Mother’s husband, D.G., Jr.; psychologist, Timothy
Gibian; Foster mother, D.R.; and program coordinator for Children’s Aid
Society, Stacy Gutshall. Mother testified on her own behalf. We note that it
appears that all of these individuals, except the Children’s foster mother,
D.R., and Stacy Gutshall, were called to testify in Mother’s case in chief.
The trial court entered its orders terminating Mother’s parental rights
pursuant to sections 2511(a)(8) and (b) of the Adoption Act, 23 Pa.C.S.A. §
2511(a)(8) and (b), and changing the Children’s permanency goal to
adoption, pursuant to section 6351 of the Juvenile Act, 42 Pa.C.S.A. § 6351,
on April 20, 2015. Mother filed her timely notice of appeal and concise
statement of errors complained of on appeal on May 14, 2015. See
Pa.R.A.P. 1925(a)(2)(i).
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Mother raises the following questions on appeal:
1. Whether [Mother] was denied substantive and procedural due
process rights when the case was remanded by the Superior
Court after the trial court sua sponte dismissed [CYS’] petition
for termination of parental rights (TPR) and Mother was not
afforded the opportunity to provide evidence in support of her
position against termination of parental rights?
2. Whether the orphans’ court committed an abuse of discretion
and error of law when it constrained its review of the evidence
for termination of [Mother’s] parental rights under 23 Pa.C.S.[A.]
§2511(a)(8) and §2511(b) to only the evidence that existed
prior to the filing of the petition for termination of parental rights
on June 18, 2013, despite the existence of compelling evidence
that Mother had made extraordinary and measurable progress
after the filing of the petition through court-ordered reunification
counselors and her therapist?
3. Whether the orphans’ court committed an abuse of discretion
and error of law when it failed to properly give weight to the
bonding efforts through a court-ordered reunification counselor
and Mother’s therapist that determined a strong bond existed
and Mother’s ability to parent her children was present?
(Mother’s Brief, at 5) (quotation marks, emphases, and unnecessary
capitalization omitted).
Our standard of review is as follows:
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) (citation omitted).
Further, we have stated:
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Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court
even though the record could support an opposite result.
We are bound by the findings of the trial court
which have adequate support in the record so long
as the findings do not evidence capricious disregard
for competent and credible evidence. 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.
Though we are not bound by the trial court’s
inferences and deductions, we may reject its
conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s
sustainable findings.
In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citations omitted).
We note our standard of review of a change of goal:
When we review a trial court’s order to change the
placement goal for a dependent child to adoption, our standard
is abuse of discretion. In order to conclude that the trial court
abused its discretion, we must determine that the court’s
judgment was manifestly unreasonable, that the court did not
apply the law, or that the court’s action was a result of partiality,
prejudice, bias or ill will, as shown by the record. . . .
In re S.G., 922 A.2d 943, 946 (Pa. Super. 2007).
Here, the trial court terminated Mother’s parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(8), and (b). (See Trial Court Opinion, 4/20/15, at 41).
Requests to have a natural parent’s parental rights terminated are governed
by 23 Pa.C.S.A. § 2511, which provides, in pertinent part:
§ 2511. Grounds for involuntary termination
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(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 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)(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)(8) and (b).
Instantly, as noted above, the trial court concluded that termination
was appropriate under § 2511(a)(8).
With regard to Section 2511(a)(8), in order to terminate
parental rights, an agency must prove by clear and convincing
evidence that (1) that the child has been removed from the care
of the parent for at least twelve (12) months; (2) that the
conditions which had led to the removal or placement of the
child still exist; and (3) that termination of parental rights would
best serve the needs and welfare of the child. . . .
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In re Adoption of C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc)
(citations and quotation marks omitted).
It is well settled that a party seeking termination of a parent’s rights
bears the burden of proving the grounds to so do by “clear and convincing
evidence,” a standard which requires evidence 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.” In
re T.F., 847 A.2d 738, 742 (Pa. Super. 2004) (citations omitted). Further,
A parent must utilize all available resources to preserve
the parental relationship, and must exercise reasonable firmness
in resisting obstacles placed in the path of maintaining the
parent-child relationship. Parental rights are not preserved by
waiting for a more suitable or convenient time to perform one’s
parental responsibilities while others provide the child with his or
her physical and emotional needs.
In the Interest of K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008) (citation
omitted).
Additionally,
the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his or her parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.
In re N.M.B., 856 A.2d 847, 855 (Pa. Super. 2004), appeal denied, 872
A.2d 1200 (Pa. 2005) (citations omitted).
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The Adoption Act provides that a trial 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 Act does not make
specific reference to an evaluation of the bond between parent and child but
our case law requires the evaluation of any such bond. See In re E.M., 620
A.2d 481, 485 (Pa. 1993). However, this Court has held that the trial court
is not required by statute or precedent to order a formal bonding evaluation
performed by an expert. See In re K.K.R.-S., 958 A.2d 529, 533 (Pa.
Super. 2008).
In support of her first claim, that her due process rights were violated,
Mother states:
Mother’s procedural due process rights were violated
because the [o]rphans’ [c]ourt failed to consider those post-
petition efforts that occurred from August 2013 through May 21,
2014. For the reasons that are developed herein below, [t]his
Honorable Court should not construe Sections 2511(a)(8) and
2511(b) conjunctively to allow termination of Mother’s parental
rights when post-petition efforts were court ordered and fulfilled.
Rather, the compelling testimony of the witnesses, Dr. Timothy
Gibian and Ms. Deann Blankenship Sanders, presented by
[Mother] should have been considered by the [o]rphans’ [c]ourt.
(Mother’s Brief, at 30).
The trial court addressed this issue in its Pa.R.A.P. 1925(a) opinion,
filed May 26, 2015, in which it stated correctly:
Mother argues that she was denied her right to substantive
and procedural due process on remand as she was not afforded
the opportunity to provide evidence in support of her position
against termination of parental rights. This claim lacks merit.
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Mother was permitted to and in fact did offer evidence in
defense of her parental rights, perhaps contrary to the directive
of the Superior Court, on remand. In addition to her own
testimony, Mother, over the course of several days, some of
which scheduled to accommodate Mother’s witnesses, produced
the testimony of case worker, Kari Coccagna; parental fitness
evaluator, Dr. David Leaman; counselor, Kevin Harney; ABC
House program director, Emily Bakner; family therapist, Deann
Blankenship-Sanders; Foster Mother, [D.R.]; Maternal
Grandfather; and Mother’s therapist, Dr. Timothy Gibian. A
complete discussion of Mother’s evidence appears in this
[c]ourt’s April 20, 2015 [o]pinion at pages 14-30. Given the
opportunity to present evidence on her own behalf after remand,
it is difficult to see how Mother’s substantive or procedural due
process rights were implicated.
(Trial Court Opinion, 5/26/15, at 4-5).
We fail to understand how Mother’s due process rights were violated in
this case. “Formal notice and an opportunity to be heard are fundamental
components of due process when a person may be deprived in a legal
proceeding of a liberty interest, such as physical freedom, or a parent’s
custody of her child.” Everett v. Parker, 889 A.2d 578, 580 (Pa. Super.
2005) (citations omitted). There is no question that Mother had notice of
the proceeding and, as we explain, the trial court gave her an opportunity to
be heard. In addition, this Court has concluded that subsection (b)’s
restriction of a trial court’s consideration of evidence only to that relevant to
the time prior to the filing of a termination petition does not violate due
process. See Adoption of C.J.P., 114 A.3d 1046, 1056-57 (Pa. Super.
2015).
This Court, in the memorandum entered on May 21, 2014, found that
there was sufficient evidence in the record to terminate Mother’s parental
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rights pursuant to subsection (a)(8). This Court also observed “since the
record contains abundant evidence regarding the existence and nature of the
parent-child bonds and the developmental, physical, and emotional needs
and welfare of the [C]hildren, additional hearings will not be required unless
the orphans’ court desires to update the [C]hildren’s status on this record.”
(In the Int. of K.D., supra at *35).
The record reveals that, on remand, the trial court conducted four
days of additional hearings in which it heard testimony from twelve
witnesses, most of them called by Mother. Those witnesses gave testimony
regarding the elements of subsection (a)(8) as well as subsection (b). Thus,
the trial court gave Mother ample opportunity to be heard. There is no
question that Mother was afforded due process in this proceeding.
Mother’s claim that the trial court, “failed to consider those post-
petition efforts that occurred from August 2013 through May 21, 2014[,]”
(Mother’s Brief, at 30), does not implicate due process. Subsection (b)
provides, in pertinent part:
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(b). The trial court gave Mother a full opportunity to be
heard and then properly disregarded that part of the testimony she
presented that was statutorily irrelevant to its deliberations. Mother’s first
claim is without merit.
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In her second issue, Mother argues that the trial court erred when it
refused to consider any evidence that related to the time after the filing of
CYS’ petition to terminate. (See Mother’s Brief, at 30).
Here, the clear and unambiguous language of the statute
affords the only interpretation that would not otherwise lead to
an absurd result. That is, the “efforts by the parent” cannot be
considered and not the efforts that are ordered to be
undertaken by a court or the efforts of an agency. (See
Orphans’ Court Order dated September 13, 2013; attached
hereto as Appendix at “A57 “). Certainly had Mother engaged an
individual therapist and a reunification counselor on her own to
supply her and her family with services, it would fit squarely
within the language of §2511(b). However, that is not the case.
After determining that [CYS] had failed to provide reasonable
efforts to reunify Mother and her children, the [o]rphans’ [c]ourt
specifically ordered [CYS] to engage an individual therapist, a
reunification therapist, and coordinate those reunification efforts
with the children’s current therapist. (See September 13, 2013
Order).
(Id. at 33) (emphasis in original; footnote omitted).
Mother tortures the statute to make an absurd distinction between
things she did, and things that the trial court ordered done for her by
asserting that any post-petition court-ordered services in which she engaged
were not “efforts by [Mother] to remedy the conditions” which led to the
Children’s placement. (Id. at 32). We note that subsection (8) does not
require consideration of a parent’s efforts to remedy the conditions that led
to placement, but only whether “the conditions which led to the removal or
placement of the child continue to exist” at the time the petition is filed. 23
Pa.C.S.A. § 2511(a)(8). Our examination of the record clearly indicates that
the trial court did not err when it found that the conditions that led to the
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placement of the Children still existed when CYS filed its petition to
terminate Mother’s parental rights. Any services the trial court might have
ordered after CYS filed its petition could have no effect on conditions that
existed pre-petition.
We quote the trial court’s analysis of this issue, with approval:
This [c]ourt can find no support for Mother’s assertion that
it could have or should have ignored the clear language of
§2511(b) and considered evidence of her efforts and/or progress
toward remedying the conditions which led to the [C]hildren’s
removal from her case after the date the TPR Petition was filed.
The law is well-settled that efforts by a parent to remedy the
conditions that led to the [C]hildren’s placement that are
initiated after the petition has been filed may not be
considered by the court. See 23 Pa.C.S.A. §2511(b); In re
T.A.C., 110 A.3d 1028 (Pa. Super. 2015). Further, “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 or the availability or efficacy of
DHS services.” In re T.M.T., 64 A.3d 1119, 1125 (Pa. Super.
2013), quoting In re K.Z.S., 946 A.2d 753, 759 (Pa. Super.
2008). While the statute makes no exception for the scenario
presented by this case, the purpose of the statute, to ensure
timely permanency, would be frustrated by such a result.
(Trial Ct. Op., 5/26/15, at 6-7) (emphasis in original; footnote omitted).
Our review of the record reveals that the conditions that led to the
placement of the Children, namely Mother’s inability to see that her actions
or failures to act place the welfare of the Children in jeopardy, existed at the
time the petition was filed. Mother’s second issue is without merit.
In her final issue, Mother complains that the trial court failed to give
proper weight to evidence that indicated that a strong bond existed between
herself and the Children. (See Mother’s Brief, at 40). In support of her
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claim, Mother revisits the evidence and asks us to reach a conclusion
different from that reached by the trial court. (See id. at 41). This we may
not do. As this Court has said:
. . . The trial court, not the appellate court, is charged with the
responsibilities of evaluating credibility of the witnesses and
resolving any conflicts in the testimony. In carrying out these
responsibilities, the trial court is free to believe all, part, or none
of the evidence. When the trial court’s findings are supported by
competent evidence of record, we will affirm even if the record
could also support an opposite result.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citation omitted). In
other words, the trial court, not this Court, is responsible for weighing the
evidence. Absent an abuse of discretion, we will not disturb the trial court’s
findings. “Appellate interference is unwarranted if the trial court’s
consideration of the best interest of the child was careful and thorough, and
we are unable to find any abuse of discretion.” S.M. v. J.M., 811 A.2d 621,
623 (Pa. Super. 2002) (citation omitted). We have examined the record and
we are satisfied that the trial court did not abuse its discretion when it found
that the termination of Mother’s parental rights would serve the best
interests of the Children. We quote the trial court’s analysis of the Children’s
best interest pursuant to subsection (b), with approval:
[CYS] called Dr. Kasey Shienvold (“Dr. Shienvold”) in its
case-in-chief on July 2, 2013 regarding the bonding assessment
he performed on Mother and the [C]hildren in July, 2012.
Specifically, Dr. Shienvold understood that his role was to assess
‘the relationship and the bond that exist [sic] between the child
[sic] and the parents to determine whether there is an increased
risk for long term harm if that bond is severed. . .’ Dr.
Shienvold’s report was made part of the record. He concluded,
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At the time it was fairly clear that the
attachment—while there was an attachment between
[Mother] and the [C]hildren, it did not appear that
the loss of that attachment would create significant
risk of long term consequences given that they had
available attachment figures who they had developed
also strong relationships with in the foster parents.
Dr. Shienvold acknowledged on cross-examination that he
had not performed any reevaluation of Mother and the [C]hildren
since his assessment in July, 2012.
[Blankenship-]Sanders testified that the [C]hildren were
bonded with Mother before the family therapy began (in October,
2013). She observed a strong bond between Mother and the
[C]hildren. [Blankenship-]Sanders was of the opinion that
reunification was appropriate and worked with Dr. Gibian and
Roland to coordinate the effort to reunify the [C]hildren with
Mother. However, [Blankenship-]Sanders’ work with Mother and
the [C]hildren ended in August, 2014, after this [c]ourt changed
the permanency goal to adoption as directed by the Superior
Court.
As to the parent/child bond, Roland acknowledged that the
[C]hildren do love [Mother]. Roland explained that while the
loss of [Mother] will cause the [C]hildren grief, leaving the foster
family would also result in intense grief.
At this time, the [c]ourt has the very real benefit of
hindsight. The [C]hildren have not visited with Mother since
August, 2014. The have had only minimal contact through gifts
and cards. They have chosen not to read the cards Mother sent,
but rather to place them in a special keepsake box to read when
they are ready. The evidence supports a finding that the
[C]hildren’s lack of contact with Mother has not proven to be
detrimental over the intervening months. Instead, the
[C]hildren seem to have recovered rather easily. They are more
open about their feelings in their individual therapy with Roland.
Their negative behaviors have decreased to the point of nearly
disappearing. There are doing well both academically and
behaviorally in school. Their behaviors in the foster home are
appropriate.
[K.D.] is very open about his desire to be adopted. [A.D.]
has more mixed feelings, but ‘can find more reasons that it
would be better for her to remain where she is,’ according to
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Roland. Roland has not observed anything in the [C]hildren’s
behaviors that would suggest that termination of Mother’s
parental rights would be detrimental to them beyond the typical
grief and loss one would expect.
The [C]hildren have formed a parent-child bond with the
foster parents. The [C]hildren look to the foster parents for
love, guidance, support, comfort and security. They are
certainly a part of the foster family and have bonded with the
other children in the foster family. Importantly, the foster
parents are an adoptive resource and desire to make all three
children a permanent part of their family.
After careful consideration of the evidence, this [c]ourt
must find that it is in the [C]hildren’s best interests that Mother’s
parental rights be terminated, thereby freeing them for adoption
and creating permanency in their lives. Further delay in
establishing permanency would be harmful to the [C]hildren and
is therefore not in the [C]hildren’s best interests.
(Trial Ct. Op., 4/20/15, at 39-40) (record citations omitted). Mother’s third
issue is without merit.
Accordingly, for the reasons stated, we affirm the orders of the Court
of Common Pleas of Franklin County that terminated Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b), and changed the Children’s
permanency goals to adoption under section 6351 of the Juvenile Act.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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