In the Interest of: I.J.W., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: I.J.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.M., MOTHER
No. 3769 EDA 2015
Appeal from the Order Entered November 10, 2015
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): CP-51-AP-0000365-2014
CP-51-DP-0000694-2012
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 22, 2016
Appellant, N.M. (“Mother”), appeals from the order involuntarily
terminating her parental rights to I.J.W., born December 2011 (“the Child”).
Upon careful review, we affirm.
On April 18, 2012, the Department of Human Services (“DHS”)
received a Child Protective Services report with allegations that a four-
month-old was brought by both parents, J.W. (“Father”) and Mother, to the
emergency room of the Albert Einstein Medical Center in Philadelphia; the
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*
Former Justice specially assigned to the Superior Court.
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baby was suffering from shaken baby syndrome and a brain bleed.1 Trial
Court Opinion, 6/9/16, at 1. The Child was then transferred to St.
Christopher’s Hospital for Children (“St. Christopher’s”), where “the report of
child abuse was substantiated.” Id.
On December 12, 2012, the Child was placed in his current foster
home. N.T., 6/1/15, at 19-20; N.T., 9/1/15, at 76; Trial Court Opinion,
6/9/16, at 3 n.8, 9. An aggravated circumstances hearing was held before
the trial court on October 21, 2013, during which —
Dr. [Maria] McColgan testified as an expert[] in pediatric child
abuse . . . N.T. 10/21/1[3] at 54. Dr. McColgan testified that to
a degree of medical certainty, the Child's case was one of child
abuse. Id. at 74. Dr. McColgan, [St. Christopher’s] Medical
Director of the Child Protection Program, indicated that the
injuries to the Child were caused by non-accidental trauma and
the Child was admitted to [St. Christopher’s]; the injuries were
certified as a near fatality. Id. at 53, 68.
Trial Court Opinion, 6/9/16, at 2. Dr. McColgan also testified that the Child
had old rib fractures and showed signs of long-term deficits. N.T.,
10/21/13, at 55, 69. Based on Dr. McColgan’s unrefuted expert testimony
that the Child suffered a nearly fatal event, the trial court adjudicated the
Child dependent and found aggravated circumstances existed as to both
Father and Mother.
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1
Dr. Maria McColgan, an expert in pediatric child abuse, testified that
“shaken baby syndrome” is a colloquium used to describe the possible
“mechanism” or movement that caused the injury. Trial Court Opinion,
6/9/16, at 1 n.2 (citing N.T., 10/21/13, at 54, 109).
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On August 4, 2014, the Child Advocate filed a petition for involuntary
termination of Mother’s rights pursuant to 23 Pa.C.S. § 2511(a)(1)-(2), (5),
(8). Termination hearings were held on June 1, 2015, September 1, 2015,
and November 10, 2015.
During the first hearing, the trial court heard testimony from Dende
Korpoi and Courtney McDonald,2 two DHS social workers assigned to the
Child and Mother’s case. Ms. Korpoi, who handled the case from June 2012
until late 2014, gave testimony that Mother had a Family Service Plan
(“FSP”), with parenting and psychological/psychiatric goals, but Mother had
not completed the requisite parenting classes. N.T., 6/1/15, at 9, 20, 23.
Mr. McDonald, who was managing the case at the time of the hearing, stated
that Mother was minimally compliant with the objective of creating a plan to
prevent future harm to the Child if reunited. Id. at 86, 89-90, 93.
Mr. McDonald testified again during the second hearing; he stated that
the Child’s foster parents were interested in adoption. N.T., 9/1/15, at 20.
At the same hearing, a foster care case worker from Bethany Christian
Services, Anne Schlonoeker, testified that Mother’s Individual Service Plan
objectives “were to maintain visitation with [the Child], to maintain
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2
In the notes of testimony for June 1, 2015, the last name of this DHS
social worker is spelled “MacDonald.” In the notes of testimony for
September 1, 2015 and the Trial Court Opinion, 6/9/16, at 3, his surname is
spelled “McDonald.” Since “McDonald” appears in two court documents and
“MacDonald” appears in only one, we use “McDonald” throughout this
memorandum opinion.
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appropriate housing [and a] stable employment, to address any concerns
that she had regarding [the Child,] and also to follow the recommendations
of the FSP explained by DHS.” N.T., 9/1/15, at 82. During this hearing,
Mother also testified, explaining that she had a good relationship with the
Child’s foster parents. However, Mother did not accept responsibility for the
Child’s injuries, argued that there was a medical reason for the injuries, and
did not believe that anyone inflicted injuries on the Child; Mother presented
no expert testimony in support of her claim. Id. at 125-126, 136-137. In
addition, on that same day, Father briefly testified that he was involved in
therapy with a private therapist in 2014. Id. at 138.
At the third and final hearing, a forensic psychologist, Dr. Erica
Williams, testified regarding Mother’s parenting capacity evaluation in 2011.
N.T., 11/10/15, at 12. Dr. Williams attested that, although Mother had a lot
of strengths, they were insufficient to compensate for the one point of
concern — that Mother will not explain how the Child’s injuries occurred and
will not create a plan to make sure that the Child does not experience such
harm again. Id. at 18-20, 27.
After closing arguments, the trial court found that all of the witnesses,
with the exception of Mother, were credible and accepted their testimony in
full, while repudiating the testimony of Mother. N.T., 11/10/15, at 95-98.
The trial court accounted for this finding as follows:
[T]he [C]hild was brought into the ER screaming in pain, limp,
had not been eating. . . . [S]haken baby syndrome was thought
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to be one of the reasons. The [C]hild had old and new fractures,
retinal hemorrhaging, and a subdural hematoma. Mo[ther]
could not provide an explanation for the injuries. . . . [T]he
[C]hild was fine when she left for work at 7:30 a.m. [T]he
[C]hild was in the care of [Father] on 4/17/12. . . . [The
parents] can provide permanency, but for the issue of their
ability to show capacity for safety, but in general nice people.
Id. at 97-99. The trial court also found no parent-child bond. Trial Court
Opinion, 6/9/16, at 5 (citing N.T., 11/10/15, at 103). The trial court “found
that based on the evidence, it was in the best interests of the Child to be
adopted and granted the termination of Mother's parental rights on
November 10, 2015 based on 2511(a)(1), (2), (5), (8) and 2511(b).” Trial
Court Opinion, 6/9/16, at 6 (citing N.T., 11/10/15, at 103-104). In support
of its decision, the trial court explained:
After the findings of aggravated circumstances, the parents did
nothing to regain custody of their child. Furthermore, after three
years in DHS care, the parents have not given a plausible cause
for the Child's substantial injuries, and . . . Father . . . invoked
his Fifth Amendment protection from self-incrimination. The
Child was four months old when he was removed from the
parents' care and has never been returned.
Trial Court Opinion, 6/9/16, at 1.
Mother timely filed a notice of appeal and a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a)(2)(i) and (b). On appeal, Mother presents two issues for
our review:
A. Whether the trial court committed reversible error when it
involuntarily terminated [M]other's parental rights where such
determination was not supported by clear and convincing
evidence under the Adoption Act 23 Pa. C.S.A. §2511 (a)(1),
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(a)(2), (a)(5), and (a)(8) as [M]other made progress towards
working and meeting her FSP goals, namely staying drug free,
working towards obtaining housing, working on parenting skills,
and other goals, during the [C]hild's placement? . . .
B. Whether the trial court committed reversible error when it
involuntarily terminated [M]other's parental rights without giving
primary consideration to the effect that the termination would
have on the developmental physical and emotional needs of the
[C]hild as required by the Adoption Act 23 Pa. C.S.A. §2511(b)?
Mother’s Brief at 4.
We consider Mother’s issues 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
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. §§ 2511, 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
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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). The
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted statutory grounds for seeking the termination of parental rights
are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
The trial court found that there was sufficient evidence to terminate
Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1)-(2), (5), (8),
(b). We will affirm if we agree with the trial court's decision as to any one
subsection of Section 2511(a) and as to Section 2511(b). In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we affirm the trial
court's decision to terminate Mother's parental rights under subsections
2511(a)(2) and (b):
(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. . . .
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(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.
Because we affirm on these grounds, we will not address the remaining
subsections of the statute at length. See In re N.A.M., 33 A.3d 95, 100
(Pa. Super. 2011).
Mother argues that the evidence does not support termination under
Section 2511(a)(2), because —
[T]he trial Court erred when it ruled that conditions which led to
mother's incapacity cannot be remedied in a reasonable period
of time. Mother acknowledged her shortcomings as a parent,
which is the first step to remedying the situation, and mother
completed certain FSP objectives, which demonstrated that
those conditions could be remedied. Furthermore, DHS did not
prove with clear and convincing evidence otherwise.
Mother’s Brief at 6.
Section 2511(a)(2) concerns the “physical or mental well-being” of the
Child. In the current appeal, the Child suffered a near fatality, and there
was a finding of aggravated circumstances and child abuse. Additionally,
despite being only four months old, the Child already showed signs of
“repeated and continued . . . abuse,” 23 Pa.C.S. § 2511(a)(2), in the form of
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an old rib fracture and injuries to his brain that were a likely result of long-
term deficits. N.T., 10/21/13, 55, 69.
Also, the trial court concluded that “the conditions and causes of the
. . . abuse . . . cannot or will not be remedied by [Mother],” 23 Pa.C.S. §
2511(a)(2), based on her conduct over a protracted period. After three
years, both parents were still suspected of causing Child’s nearly fatal
injuries, and neither of them has given a plausible explanation or identified
the cause. Trial Court Opinion, 6/9/16, at 9 (citing N.T., 9/1/15, at 76; N.T.,
11/10/15, at 18-20). Even as of the second day of the termination hearings,
Mother continued to posit unsupported medical theories for the Child’s
injuries, and refused to believe that anyone had inflicted injuries on the
Child. N.T., 9/1/15, at 125-126, 136-137. If Mother is unwilling to
recognize that there was abuse, she is unlikely to be able to remedy or to
protect against it. In addition, Mother has not complied with all
requirements of her FSP, including completion of her parenting classes and
demonstration of her willingness to complete a plan to prevent future harm
to the Child if reunited. N.T., 6/1/15, at 9, 20, 23, 86, 89-90, 93. Thus, the
trial court appropriately found clear and convincing evidence that Mother’s
conduct satisfies the statutory grounds for termination. See 23 Pa.C.S. §
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2511(a)(2); L.M., 923 A.2d at 511.3 Accordingly, the first issue raised by
Mother on appeal is without merit.
With respect to 23 Pa.C.S. § 2511(b), this Court has explained that,
“[i]ntangibles such as love, comfort, security, and stability are involved in
the inquiry into the needs and welfare of the child.” In re C.M.S., 884 A.2d
1284, 1287 (Pa. Super. 2005) (citation omitted). Further, the trial court
“must also discern the nature and status of the parent-child bond, with
utmost attention to the effect on the child of permanently severing that
bond.” Id. (citation omitted). However, “[i]n cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946
A.2d 753, 762-763 (Pa. Super. 2008) (citation omitted).
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3
We also accept the trial court’s findings under 23 Pa.C.S. § 2511(a)(1),
(5), (8). See Trial Court Opinion, 6/9/16, at 8-10. Clear and convincing
evidence demonstrates that the Child was four months old when he was
removed from his biological parents’ care and he has never been returned;
the Child was placed with his foster parents in December 2012. Trial Court
Opinion, 6/9/16, at 1, 9; N.T., 9/1/15, at 76. The petition for involuntary
termination was filed on August 4, 2014. Thus, for “at least six months
immediately preceding the filing” of the termination petition, Mother failed to
perform her parental duties, a ground for termination under Section
2511(a)(1). The Child has also been “removed from the care of [Mother] by
the court or under a voluntary agreement with an agency for a period of at
least six months.” 23 Pa.C.S. § 2511(a)(5). Additionally, “12 months or
more have elapsed from the date of removal or placement.” Id. §
2511(a)(8).
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On appeal, Mother argues that the evidence does not support
termination under Section 2511(b). She states:
The trial Court erred in granting the DHS petition to involuntarily
terminate the parental rights of mother because DHS failed to
provide the Court with clear, competent, and convincing
evidence that termination was in the best interest of the child,
pursuant to 23 Pa.C.S.A. §2511(b). This means that the trial
court must look at the parent-child relationship and examine
how the effect of terminating that relationship will impact the
child.
Mother’s Brief at 6-7. We are unpersuaded by Mother’s argument.
First, we note that Section 2511(b) does not require a bonding
analysis at all. The term “bond” is not defined in the Adoption Act. The
need for any bonding analysis depends on the unique facts and
circumstances of each particular case. See In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012).
In this case, there is some evidence of an emotional bond between
Mother and the Child. According to Ms. Schlonoeker, who the trial court
found to be credible, N.T., 11/10/15, at 95-98, the Child was always excited
and “happy” to see Mother during their four hours of weekly supervised
visits. N.T., 9/1/15, at 109, 119. Mother has punctually attended all 72 of
these scheduled visits, and she would bring snacks and have “playtime” with
the Child. Id. at 91-92, 119. During these visits, Mother and the Child
would “cuddle,” and he would sit on her lap and give her hugs and kisses.
Id. at 119. Mother’s behavior during these visits was described as
“appropriate,” and Mother and the Child would respond well to each other.
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Id. at 119-120. The Child recognized Mother and would call her “Mom.” Id.
at 120.
Nevertheless, the existence of some bond between a child and a
biological parent does not necessarily preclude termination of parental
rights. K.Z.S., 946 A.2d at 764. The question is whether an existing bond
between the Child and Mother is “worth saving or whether it could be
sacrificed without irreparable harm to the Child.” Id.
Contrary to Mother’s argument, the trial court could reasonably find by
clear and convincing evidence that the bond is not so strong that it should
not be terminated. See generally K.Z.S., 946 A.2d at 762-763. According
to Ms. Schlonoeker, the Child had no issues separating from Mother after
each visit. N.T., 9/1/15, at 97, 110. Mother was described as nothing more
than a “four-hour playmate” for the Child. Id. at 110. Most significantly,
Ms. Schlonoeker testified that the Child would not suffer irreparable harm if
Mother’s parental rights were terminated. Id. at 109-110. Ms. Schlonoeker
added that the termination of Mother’s parental rights would not be a
significant change for the Child, because he had lived with his foster parents
for three years, as of the date of the second termination hearing. Id. at
110-111. The Child does not look to Mother to care for his quotidian needs;
he considers his foster parents’ residence to be his home. Id. at 110-111.
Ms. Schlonoeker also expressed her concern that Mother does not take
responsibility for her role to keep the Child safe. Id. at 120.
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It is important that the Child’s relationships with his foster mother are
irrefutably strong.
[C]ourts considering termination must also consider whether the
children are in a pre-adoptive home and whether they have a
bond with their foster parents. . . . [T]ermination may be
necessary for the child's needs and welfare in cases where the
child's parental bond is impeding the search and placement with
a permanent adoptive home.
T.S.M., 71 A.3d at 268-269.4 In the current case, the Child has a robust
relationship with his foster family, is comfortable with his foster mother and
foster siblings, and is safe in his foster home. N.T., 6/1/15, at 38, 41-42.
His foster mother ensures that all of his needs are met on a daily basis, and
the Child understands the rules and expectations of his foster parents. Id.
at 39; N.T., 9/1/15, at 19. The Child calls his foster mother, “Mommy.” Id.
The Child’s circumstances are analogous to the facts of K.Z.S., 946
A.2d at 764, in which no evidence suggested that K.Z.S.’s mother had a
bond with him equal to his bond with his foster mother. This Court wrote:
No evidence suggests . . . that terminating Mother's parental
rights will sever an existing beneficial relationship, or that it will
result in irreparable harm to K.Z.S. Therefore, we agree with
the court that the bond between K.Z.S. and [his foster mother]
is the primary bond to protect, given K.Z.S.' young age and his
very limited contact with Mother. Because competent evidence
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4
In T.S.M., we explained that “termination of parental rights generally
should not be granted unless adoptive parents are waiting to take a child
into a safe and loving home,” but that “the Adoption Act specifically provides
that a pending adoption is not a prerequisite to termination of parental
rights involving agencies,” as is the case here. 71 A.3d at 268 (quoting 23
Pa.C.S. § 2512(b)).
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of record supports the court's decision to terminate Mother's
parental rights, we have no reason to disturb it.
Id. Similarly, in the present appeal, nothing in the record suggests that
terminating Mother’s parental rights will result in irreparable harm to the
Child. The record supports the trial court’s view that the bond between the
Child and his foster mother is the primary bond to protect, given the Child’s
young age and his very limited contact with Mother. See Trial Court Opinion,
6/9/16, at 5. Since competent evidence of record supports the trial court’s
decision to terminate Mother’s parental rights due, in part, to the lack of a
strong emotional bond between parent and child, we have no reason to
disturb it. See L.M., 923 A.2d at 511.
Furthermore, the parent-child bond is not the only factor that a court
can consider under 23 Pa.C.S. § 2511(b). “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.” In
re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citation
and internal quotation marks omitted). “[T]he trial court can equally
emphasize the safety needs of the child, and should also consider the
intangibles, such as the love, comfort, security, and stability the child might
have with the foster parent.” Id. (citation and internal quotation marks
omitted). In its analysis of 23 Pa.C.S. § 2511(b), the trial court emphasized
that the foster family “provides safety,” whereas “there is no way to ensure
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the safety of the Child [with Mother] because there was never an
explanation for the Child’s near fatality and no way to make sure that the
Child was not endangered again.” Trial Court Opinion, 6/9/16, at 11 (citing
N.T., 9/1/15, at 103-104; N.T., 11/10/15, at 18-20, 27).
Based on the foregoing, we discern no abuse of discretion by the trial
court in concluding that the involuntary termination of Mother’s parental
rights serves the developmental, physical, and emotional needs and welfare
of the Child pursuant to Section 2511(a) and (b). Accordingly, we affirm the
trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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