In the Interest of: L.W., Appeal of: W.H. ( 2021 )

J-A29038-21
2021 PA Super 247IN THE INTEREST OF: L.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.H., MOTHER :
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: No. 770 WDA 2021
Appeal from the Order Entered June 4, 2021
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): CP-02-AP-0000099-2019
IN THE INTEREST OF: L.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.H., MOTHER :
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: No. 772 WDA 2021
Appeal from the Order Entered June 4, 2021
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): CP-02-AP-0000100-2019
IN THE INTEREST OF: S.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: W.H., MOTHER :
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: No. 774 WDA 2021
Appeal from the Order Entered June 4, 2021
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): CP-02-AP-0000095-2020
J-A29038-21
BEFORE: BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: DECEMBER 15, 2021
W.H. (Mother) appeals from the orders1 issued in the Court of Common
Pleas of Allegheny County (orphans’ court) involuntarily terminating her
parental rights to Lry.W. (d.o.b. September 2011) (Child 1), Lar.W. (d.o.b.
August 2013) (Child 2) and S.H.(d.o.b. May 2019) (Child 3) (collectively, the
Children) and changing their permanency goal to adoption. She challenges
the court’s finding that termination would best serve the needs and welfare of
the Children pursuant to 23 Pa.C.S. § 2511(b).2 After our careful review, we
affirm.
We take the following factual background and procedural history from
our independent review of the certified record and the trial court’s August 11,
2021 opinion.
I.
Allegheny County Office of Children, Youth & Families (CYF) became
involved with the family in 2012 and continued to receive General Protective
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* Retired Senior Judge assigned to the Superior Court.
1 The orphans’ court entered three separate orders from which Mother
appealed. This Court consolidated the appeals sua sponte on July 27, 2021.
2 Father has appealed the June 4, 2021 termination of his parental rights to
Lry.W. (d.o.b. 9/11) at docket number 771 WDA 2021. He is not the subject
of this appeal. The orphans’ court June 4, 2021 order also terminated the
parental rights of S.H.’s father. He has not appealed.
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Services (GPS) referrals raising multiple child welfare issues. On March 5,
2018, CYS received a referral that Mother injured Child One when she
physically disciplined her. On March 14, 2018, maternal grandmother filed a
private dependency petition for Child 1 and Child 2 (collectively, the Girls).
On April 19, 2018, Mother was incarcerated for violating her probation.
CYF filed a dependency petition regarding the Girls on April 23, 2018. On April
25, 2018, the court placed the Girls in kinship care with maternal
grandmother. On May 23, 2018, the Girls were adjudicated dependent.
Mother stipulated to the facts supporting the adjudication and placement with
maternal grandmother, where they continue to remain. The court ordered
supervised visitation and ordered Mother to engage in an appropriate level of
drug and alcohol treatment; to establish and maintain sobriety; to develop
and use alternatives to physical discipline; to address all criminal matters; to
participate in coached visitation; and comply with random drug screens.
Mother gave birth to Child 3 in May 2019. At his birth, both Mother and
Child 3 tested positive for THC. CYF took custody of Child 3 on May 30, 2019,
because of ongoing concerns about Mother’s dual diagnosis issues, the fact
that she tested positive for marijuana throughout the pregnancy, both she
and Child 3 tested positive for THC at his birth, and concerns that Mother had
not remedied the conditions that required the Girls to remain in placement.
Child 3 was initially placed with a maternal cousin and soon thereafter was
placed with maternal grandmother, where he has remained since June 2019.
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The orphans’ court adjudicated Child 3 dependent on July 3, 2019. Mother
was ordered to attend random drug screens; supervised visits with Children
and forensic psychological evaluations; verify treatment; participate in
coached parenting; obtain stable housing; maintain contact with CYF; and
resolve criminal court issues.
On July 2, 2020, CYF filed a termination petition regarding all three
Children. The orphans’ court held a termination hearing on April 8, 2021, and
May 21, 2021. In pertinent part, CYF presented the testimony of CYF
Caseworker Lisa Ketter, court appointed expert evaluator Dr. Patricia Pepe,
Holy Family in-home service provider Eric Yowonske, coached visitation
specialist Doug Conroy, Allegheny County lab technician Daniel Zoldos,
transportation coordinator William Pipkins and maternal grandmother. Mother
testified on her own behalf.
Testimony established that Mother failed to meet her court-ordered
goals. At the time of the hearing, Mother was involved with a drug and alcohol
program, but was not attending regularly. She attended only 7 out of 66 drug
screens and tested positive each time. Mother reported involvement with dual
diagnosis programs but failed to provide CYS with any documentation to
confirm her consistent attendance, progress or completion of either drug and
alcohol or mental health treatment. CYF referred Mother to both Holy Family
and Justice Works for coached visitation, a service provided to work on her
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parenting skills, but she was discharged from both services for non-
compliance.
Originally, Mother was having supervised visits at maternal
grandmother’s home. However, on July 11, 2018, they moved to CYF.
Maternal grandmother testified about a history of frequent incidents of conflict
with Mother in front of the Children that included name calling and Mother
“[being] highed up, very disrespectful” and irrational. She described Mother
as argumentative and dysfunctional. For example, the Children witnessed
Mother passed out in the home requiring paramedic intervention because she
was non-responsive. She had also taken the Children from the home without
authorization, had come to family events intoxicated and disruptive and, in
May 2021, had threatened to kill maternal grandmother. These incidents
scared and upset the Children.
Mother attended no visits between July 2018 and January 11, 2019. Mr.
Pipkins, the transportation supervisor with A Second Chance, Inc. (ASCI)
stated that between January 2019 and June 2019, ASCI scheduled 29 visits
and Mother attended 7 of them. On July 3, 2019, Mother was permitted two
supervised visits per week with the Girls and three with Child 3 at maternal
grandmother’s home. However, on August 15, 2019, the court again ordered
that biological parents were no longer permitted to be on the premises at
maternal grandmother’s residence. Between June 2019 and April 10, 2020,
Mother attended only 4 of the 22 scheduled visits.
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As of the date of the hearing, there was no longer a set visitation
schedule. Maternal grandmother testified that Mother has phone or video calls
with the Children approximately two times per week and only sees them on
holidays or special occasions. The orphans’ court found this testimony credible
and found Mother’s claim that she speaks with the Children daily incredible.
Ms. Ketter observed positive bonded interactions between maternal
grandmother and the Children and testified that they are loving and
affectionate with each other. The Children are doing very well in maternal
grandmother’s care and seek her out for comfort. Ms. Ketter testified that
maternal grandmother is very supportive and attentive to the Children,
ensuring that their educational, developmental and therapeutic needs are
met.
Dr. Pepe’s observations and testimony were consistent with Ms.
Ketter’s. She did not reach conclusions regarding Children’s relationship with
Mother because she was unable to evaluate her due to Mother’s failure to
attend any scheduled evaluations, in violation of the court’s orders that she
do so.3 However, Dr. Pepe conducted two interactional evaluations with the
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3 We note that Mother comments that while Dr. Pepe recommended adoption
for all three of the Children, “she was unable to reach conclusions or make
recommendations regarding the Children’s relationship with [Mother], as she
was unable to evaluate [her].” (Mother’s Brief, at 12) (citing N.T. Hearing,
4/08/21, at 56, 64). However, as stated above, Dr. Pepe did not evaluate
Mother because Mother failed to attend her scheduled interactional evaluation
in violation of the court’s order. She cannot now use her own intentional
(Footnote Continued Next Page)
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Girls and maternal grandmother and observed that the Girls had made
significant progress since their placement with her and exhibited positive
functioning. All three Children exhibited multiple bonding behaviors toward
maternal grandmother and were relaxed and comfortable with her. The Girls
reported that living with maternal grandmother was good and that she had
taken the best care of them, including ensuring that they were always safe
and fed. Child 1 asked maternal grandmother if she would adopt them. Child
3 was developmentally on target and exhibited positive behavioral functioning.
He also was very connected to maternal grandmother and exhibited primary
attachment to her, as he had ever only known maternal grandmother as his
caregiver and her home as his. Maternal grandmother was very
knowledgeable and informed about the Children. She was comforting and
empathetic toward them. She was concerned about their best interests and
consistently expressed her desire to care for them permanently.
The Girls reported to Dr. Pepe that living with Mother had been hard.
They did not have enough food; Mother had a lot of people in the home and
they did not feel safe with her. The Girls remembered being beaten by Mother.
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misconduct to justify a claim that the court erred in involuntary terminating
her parental rights. We agree with the court’s observation that “[g]iven the
facts of this matter, [it] was justified in reaching its conclusion without such
an evaluation.” (Orphans’ Ct. Op., at 11 n.35) (citing In re K.K.R.-S., 958
A.2d 529, 533 (Pa. Super. 2008) (“In analyzing the parent-child bond, the
orphans’ court is not required by statute or precedent to order a formal
bonding evaluation be performed by an expert.”)).
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Child 2 had some continuing attachment to Mother but stated that she also
knew that she would be safer with maternal grandmother. Dr. Pepe testified
that the Girls had expressed care and concern for Mother and “hoped that she
would, quote, get herself together. But [they] stated that they wanted to
remain with their grandmother permanently” and knew she would always keep
them safe. Dr. Pepe opined that if the Girls continue to feel they are
responsible for ensuring Mother’s safety, as might be deduced from their daily
attempt to call Mother to ensure she is safe, this could have a long-term
negative effect on their mental health.
Dr. Pepe explained that for Child 3, who has been in maternal
grandmother’s care since birth, consistent visitation by Mother was essential
to the development of a meaningful parent-child relationship. She also noted
that a primary attachment is very important in helping children develop a
sense of who they are and their sense of environment. If a child does not
have that sense of connection with someone important, they are at risk of
extensive behavioral and psychological problems. She opined that removing
the Children from maternal grandmother with whom they were happy and safe
and with whom they had a primary attachment would be very difficult for
them.
On June 4, 2021, the orphans’ court issued an order terminating
Mother’s parental rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(2),
(8). It concluded that terminating Mother’s parental rights best served the
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Children’s needs and welfare pursuant to 23 Pa.C.S. § 2511(b). Mother timely
appealed and filed a contemporaneous statement of errors complained of on
appeal. See Pa.R.A.P 1925(a)(2)(i), (b).
Mother raises one issue for our review: “Did the trial court abuse its
discretion and/or err as a matter of law in concluding that termination of
Natural Mother’s parental rights would serve the needs and welfare of the
Children pursuant to 23 Pa.C.S. § 2511(b)?”4 (Mother’s Brief, at 9). She
maintains that there was not clear and convincing evidence that termination
of parental rights would best serve the needs and welfare of the Children. She
argues that the court improperly utilized a “fault based analysis” and her
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4 Our standard of review of this matter is well-settled:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a trial
court has granted a petition to involuntarily terminate parental
rights, this Court must accord the hearing judge’s decision the
same deference that we would give to a jury verdict. We must
employ a broad, comprehensive review of the record in order to
determine whether the trial court’s decision is supported by
competent evidence.
In re M.M., 106 A.3d 114, 117 (Pa. Super. 2014) (citation omitted). “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. If competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” Id. (citations
omitted).
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conclusion that severing the bond between Mother and the Children would not
be detrimental to them is different from finding that termination would best
serve their needs and welfare. (See id. at 19-20).
II.
A.
“In termination cases, the burden is upon the petitioner to prove by
clear and convincing evidence that the asserted grounds for seeking the
termination of parental rights are valid.” In re M.M., supra at 117 (citation
omitted). Clear and convincing evidence is “testimony 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.” Id.
(citation and internal quotation marks omitted).
Section 2511 of the Adoption Act governs the involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It requires a bifurcated analysis “in
which [the court] initially focuses on the conduct of the parent under Section
2511(a). “If the trial court determines that the parent’s conduct warrants
termination under Section 2511(a), it must then engage in an analysis of the
best interests of the child under Section 2511(b).” In re M.M., supra at 117
(citations omitted).
Instantly, Mother concedes that CYF met its burden of proof under 23
Pa.C.S. § 2511(a)(2), (see Mother’s Brief, at 16-17), and only challenges the
orphans’ court’s conclusions with respect to Section 2511(b), which provides:
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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. § 2511(b).
When considering Section 2511(b), “the court must take into account
whether a bond exists between child and parent, and whether termination
would destroy an existing, necessary and beneficial relationship.” In re Z.P.,
994 A.2d 1108, 1121 (Pa. Super. 2010) (citation omitted). “[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 love, comfort,
security, and stability the child might have with the foster parent.” In re
M.M., supra at 118 (citation omitted); see also In re T.D., 949 A.2d 910,
920–23 (Pa. Super. 2008), appeal denied, 970 A.2d 1148 (Pa. 2009)
(affirming the termination of parental rights where “obvious emotional ties
exist between T.D. and Parents, but Parents are either unwilling or unable to
satisfy the irreducible minimum requirements of parenthood,” and where
preserving the parents’ rights would prevent T.D. from being adopted and
attaining permanency.). “[A] parent’s basic constitutional right to the custody
and rearing of ... her child is converted, upon the failure to fulfill ... her
parental duties, to the child’s right to have proper parenting and fulfillment of
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[the child’s] potential in a permanent, healthy, safe environment.” In re B.,
N.M., 856 A.2d 847, 856 (Pa. Super. 2004), appeal denied, 872 A.2d 1200(Pa. 2005) (internal citations omitted). It is sufficient for the orphans’ court
to rely on the opinions of social workers and caseworkers when evaluating the
impact that termination of parental rights will have on a child. See In re
Z.P., supra at 1121.
B.
The orphans’ court explains:
Given the evidence, the court … inferred that the Girls’ bond
with Mother is neither necessary nor beneficial. The court further
… inferred that [Child 3] is not likely to have any bond with Mother
at all. The court … concluded that severing whatever bond the
Children have with Mother will not be detrimental to them.
Mother’s involvement in the Children’s lives has been
inconsistent and unreliable. Mother did not attend coached visits
or visits scheduled by CYF and does not have a set visitation
schedule with the Children. Mother continues to be in need of
mental health treatment and drug and alcohol treatment, per her
court-ordered goals. Given Mother’s failure to maintain frequent
and reliable contact with the Children and her lack of progress
toward her goals, the court … concluded that the Children’s need
for safety, permanency, and stability outweighs the possible
benefit of maintaining their relationship with Mother.
(Orphans’ Ct. Op., at 10-11) (footnote and unnecessary capitalization
omitted). We discern no abuse of discretion.
We note first that while we agree with Mother that determining whether
a parent’s conduct justifies termination under Section 2511(a) is distinct from
the needs and welfare analysis of Section 2511(b), we disagree that evidence
of a parent’s conduct is always inapplicable to the needs and welfare analysis
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and that, therefore, the orphans’ court erroneously applied a fault-based and
best-interest analysis. (See Mother’s Brief, at 18-20). It is well-settled that
in determining needs and welfare, a court properly considers whether a parent
is capable of providing for a child’s safety and security or whether such needs
can be better met by terminating a parent’s parental rights. See In re
Adoption of J.N.M., 177 A.3d 937, 946 (Pa. Super. 2018), appeal denied,
183 A.3d 979 (Pa. 2018) (orphans’ court did not err by prioritizing children’s
safety and security needs over their relationship with mother where bond was
unhealthy and record did not indicate they would suffer extreme emotional
consequences); In re A.C.S., 2019 WL 3458771, unpublished memorandum,
at *5 (Pa. Super. filed July 31, 2019) (finding needs and welfare of children
best served by severing bond where mother failed to resolve parenting
deficiencies and adoption would offer children permanency);5 In re M.M.,
supra at 120 (Pa. Super. 2014) (concluding the detriment to children in
severing bond with mother was outweighed by safety and security needs).
Therefore, Mother’s argument that the court applied the wrong analysis lacks
merit.6
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5 Unpublished memoranda filed after May 1, 2019, may be cited for their
persuasive value. See Super. Ct. IOP § .37(B).
6Nor are we persuaded by Mother’s reliance on In re Adoption of R.J.S.,
901 A.2d 502 (Pa. Super. 2006), and In re Coast, 561 A.2d 762 (Pa. Super.
1989) (en banc), appeal denied, 575 A.2d 560 (Pa. 1990). (See Mother’s
Brief, at 18-19). As noted by CYF, neither case stands for the proposition that
(Footnote Continued Next Page)
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Further, the court’s decision is supported by the record. The Girls have
lived with maternal grandmother for over three years and Child 3 has lived
with her for two, nearly his whole life. (See N.T. Hearing, 4/08/21, at 172,
176, 181). Child 3 knew only maternal grandmother as his caregiver. Dr.
Pepe opined that frequent and consistent contact with Mother was essential
for Child 3 to build a bond with her, but Mother has failed to frequently or
consistently visit him, despite opportunities to do so. (See id. at 69-70).
Although the Girls do still have some connection with Mother, the
evidence suggests that it negatively affects them. (See id. at 62-63). The
Girls described significant bad experiences with Mother, such as not having
enough food, being beaten, being frightened and feeling unsafe. (See id. at
54-56, 60). Maternal grandmother described a history of conflict with Mother
in front of the Children, including arguing, fighting, intoxication and, in May
2021, threats she would kill maternal grandmother. The Girls reported to Dr.
Pepe that they understood Mother did not have herself together and that she
would not be able to keep them safe. (See id. at 60-62). They told Dr. Pepe
that maternal grandmother takes the best care of them and they feel safe with
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a parent’s conduct that justified termination was irrelevant to the needs and
welfare analysis as Mother argues. (See CYF’s Brief, at 21). We agree that
the cases “merely confirm the long-held rule that explicitly rejects a balancing
or best interest approach to determining whether the statutory prerequisites
of termination of parental rights have been met pursuant to [Section]
2511(a).” (Id.); see also In re R.J.S., supra at 508 (observing needs and
welfare analysis of Section 2511(b) is irrelevant to initial Rule 2511(a) analysis
of parent’s conduct); In re Coast, supra at 766 (same).
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her, unlike with Mother. (See id. at 54-56, 60-61). Dr. Pepe noted that the
Girls feel responsible for Mother’s safety, which could have long-term negative
effects on their mental health and could be debilitating if they were in her
home. (See id. at 62). Although the Girls were concerned about Mother’s
well-being, both told Dr. Pepe that they wanted to be adopted by maternal
grandmother, with Child One asking her to adopt them during one of the
evaluations. (See id. at 59, 62).
While living with their maternal grandmother, all three Children have
made progress and done well in her care. The Children have a primary bond
with her and look to her to meet all their needs, which she does. (See id. at
54-55, 61, 69). Dr. Pepe testified that maternal grandmother was comforting
to the Children, concerned for them, and consistently stated that she wanted
to care for them permanently. (See id. at 61). She is an adoptive resource
that would provide stability and is an “appropriate permanent placement for
the Children.” (Id. at 54; see id. at 61, 176, 181).
Based on the foregoing, the court’s findings are supported by evidence
presented at the hearings. Furthermore, we defer to the court’s credibility
determinations and discern no abuse of discretion in its findings. Accordingly,
we conclude that the court did not abuse its discretion in terminating Mother’s
parental rights to the Children pursuant to Section 2511(b).
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2021
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