In the Interest of: Z.D.K., Appeal of: J.M. ( 2021 )

J-S49001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.D.K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.M. :
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: No. 765 WDA 2020
Appeal from the Order Entered June 30, 2020
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000142-2019
IN THE INTEREST OF: M.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.M. :
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: No. 766 WDA 2020
Appeal from the Order Entered June 30, 2020
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000141-2019
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2021
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* Former Justice specially assigned to the Superior Court.
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In this consolidated appeal,1 Appellant, J.M., (“Mother”) appeals from
the June 30, 2020 orders2 terminating her parental rights to her dependent
children, M.M., a female child born September 2013, and Z.D.K., a male child
born January 2015, (collectively, “the children”), pursuant to Section 2511 of
the Adoption Act, 23 Pa.C.S.A. §§ 2101-2938.3 We affirm.
The trial court set forth the following:
Mother [] is the parent of M.M. [] and [Z.D.K.], who have different
fathers. [The Allegheny County Office of Children, Youth and
Families (“CYF”)] had been involved with Mother for six years at
the time of the termination proceedings. The initial referral to CYF
in April 2014[,] involved concerns that Mother lacked the ability
to provide physical care of [M.M.], drug and alcohol [abuse]
concerns, questionable parenting skills, and housing instability.
Through its investigation, CYF determined that Mother lacked
housing stability, M.M. required treatment for thrush and a yeast
infection, and the family needed food assistance. CYF opened []
Mother's case for services on May 30, 2014[,] and [the case]
remained open with Mother consecutively for the next six-plus
years.
Prior to filing a dependency petition, CYF provided a multitude of
services, including conferencing and teaming, a Pennsylvania
Organization for Women in Early Recovery ("POWER") evaluation,
crisis services through North Shore Community Alliance, in-home
services through Life's Work of Western Pennsylvania,
transportation assistance, in-home services through Three Rivers
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1 In an August 17, 2020 per curiam order, this Court consolidated the two
appeals sua sponte.
2The record demonstrates that the orders terminating Mother’s parental rights
were entered on June 30, 2020. The caption has been corrected accordingly.
3 The June 30, 2020 orders also terminated the parental rights of M.F.S.-M.,
the biological father of M.M., and the parental rights of J.E.K., the biological
father of Z.D.K. Neither of the biological fathers is involved in this appeal.
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Youth, and in-home services through Homewood East Liberty
area. [In January 2015,] Mother gave birth to [Z.D.K.] and
continued to work with CYF [while] both children [remained] in
her care[. H]owever, CYF found Mother's mental health, [the]
domestic violence in her relationships, and her parenting skills of
both young children to be troublesome. Due to Mother's lack of
progress and CYF's increasing concerns, [CYF] filed petitions for
dependency[,] and both children were adjudicated [dependent]
on December 16, 2015. At the time of the adjudication hearing,
Mother offered stipulations to mental health, parenting[,] and
domestic violence concerns[,] and both children were permitted
to remain in the care of Mother.
Mother's goals were to obtain and maintain housing, ensure the
medical needs of the children, [obtain] parenting [skills], domestic
violence treatment, [a] drug and alcohol evaluation and
treatment, [and a] mental health evaluation and treatment,
[submit to] random urine screens, and [] maintain her
employment. CYF provided [M]other with a litany of services to
assist Mother in meeting these goals[. S]pecifically, [the services
included] ongoing conferencing and teaming, in-home services
through Homewood East Liberty, services through the Women's
Center, a POWER evaluation, family focus solution based therapy
through Holy Family Institute, [a] referral to Urban League, an
additional POWER referral, in-home services through Greater
Valley, in-home services through Wesley Spectrum, [a] Section 8
referral and voucher, [aid through] the Project Rental Assistance
program, and mental health services through Western Psychiatric
Institute and Clinic. Notwithstanding the plethora of services
provided over the next two years, CYF removed both children in
November 2017, due to ongoing issues surrounding domestic
violence, housing instability, mental health and a recent
psychiatric hospitalization, and drug and alcohol concerns,
including a positive screen [on] the day of the removal. CYF
placed both children into the care of M.M.'s paternal grandmother.
With the children in foster care, CYF continued to make referrals
and provide services so that Mother could address her family
service plan goals. From the time the children were removed in
November 2017[,] until [] CYF filed [petitions for] involuntary
termination of parental rights [as to] both children in July 2019,
CYF provided Mother with another Urban League referral, in-home
services through Three Rivers Youth, [a] referral to Wesley Family
for mental health, yet another Urban League referral, [a] referral
to Shores, the Homebuilders intensive in-home services program,
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mental health treatment through Turtle Creek Valley, another
POWER evaluation, mental health services through Mon Yough
Community Services, random urine screens, yet another Section 8
referral, and [a] referral for evaluations through the [trial court’s]
appointed evaluator. CYF also provided Mother with concrete
goods in the form of food, hotel stays, financial assistance to get
her [a Pennsylvania identification card] and [a copy of her] birth
certificate, money for furniture, [financial assistance for] the
security deposit for her electric [services], money for a stove, and
financial assistance twice for a U-Haul, including one allocation for
gas for the U-Haul. Mother's reunification goals remained
substantially the same throughout this case, with the only addition
being visitation once the children were removed in November
2017. CYF provided scheduled visitation to Mother[. H]owever,
by the time of the termination proceedings Mother had not even
achieved unsupervised visitation.
Trial Court Opinion, 8/24/20, at 4-8 (record citations omitted).
On July 29, 2019, CYF filed petitions for involuntary termination of
Mother’s parental rights to M.M. and Z.D.K. pursuant to 23 Pa.C.S.A.
§§ 2511(a)(2), (a)(5), (a)(8), and (b). Raymond N. Sanchas, Esq., from the
Allegheny County Office of Conflict Counsel, represented the legal and best
interests of M.M. Frank B. McWilson, Esq., also from the Allegheny County
Office of Conflict Counsel, represented the legal and best interests of Z.D.K.
CYF was represented by Diann R. McKay, Esq. Jeffrey Eisenberg, Esq.,
represented Mother, and Rebecca Fenoglietto, Esq., represented the biological
fathers of M.M. and Z.D.K. A termination hearing was held on March 2, 2020,
and on June 25, 2020, at which the aforementioned counsel, as well as
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Mother, M.F.S.-M., and J.E.K. participated.4 On June 30, 2020, the trial court
found that, with regard to Mother, CYF met its burden of proof under Sections
2511(a)(2), (a)(5), and (b) of the Adoption Act, and subsequently terminated
Mother’s parental rights to the children.5 This consolidated appeal followed.6
Mother presents the following issues for our review:
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.[A.] § 2511(a)(2),
[(a)](5), and [(a)](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 child
pursuant to 23 Pa.C.S.[A.] § 2511(b)?
Mother’s Brief at 12.
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4The record demonstrates that the March 2, 2020 hearing was held in person.
The June 25, 2020 hearing, however, was held virtually via Microsoft Teams
due to the COVID-19 pandemic and the closure of the Court of Common Pleas
of Allegheny County.
5 The trial court found that CYS met its burden of proof under Sections
2511(a)(1), (a)(2), (a)(5), (a)(8), and (b) with regard to M.F.S.-M., as the
biological father of M.M., and under Sections 2511(a)(2), (a)(5), and (b) with
regard to J.E.K., as the biological father of Z.D.K., and terminated their
parental rights accordingly. Neither biological father filed an appeal.
6On July 24, 2020, Mother filed concise statements of errors complained of
on appeal along with separate notices of appeal for each child pursuant to
Pa.R.A.P. 1925(a)(2)(i). The trial court subsequently filed its Rule 1925(a)
opinion on August 24, 2020.
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In matters involving involuntary termination of parental rights, our
standard of review is well-settled.
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.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa.
2012). “If the factual findings are supported, appellate courts
review to determine if the trial court made an error of law or
abused its discretion.” Id. “A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill will.” Id. The
trial court’s decision, however, should not be reversed merely
because the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial courts that
often have first-hand observations of the parties spanning
multiple hearings. See In re R.J.T., 9 A.3d [1179, 1190 (Pa.
2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (original brackets omitted). “[T]he
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.” In re Q.R.D., 214 A.3d 233, 239 (Pa. Super. 2019) (citation
omitted). “If competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re B.J.Z.,
207 A.3d 914, 921 (Pa. Super. 2019) (citation omitted).
The termination of parental rights is guided by Section 2511 of the
Adoption Act, which requires a bifurcated analysis of the grounds for
termination followed by an assessment of the needs and welfare of the child.
Our case law has made clear that under Section 2511, the [trial]
court must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the parent.
The party seeking termination must prove by clear and convincing
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evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the [trial]
court determines that the parent’s conduct warrants termination
of his or her parental rights does the [trial] 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.
B.J.Z., 207 A.3d at 921 (citation omitted). We have defined clear and
convincing evidence as that which 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 Z.P., 994 A.2d
1108, 1116 (Pa. Super. 2010) (citation omitted). A child has a right to a
stable, safe, and healthy environment in which to grow, and the “child's life
simply cannot be put on hold in the hope that the parent will summon the
ability to handle the responsibilities of parenting.” In re I.J., 972 A.2d 5, 9
(Pa. Super. 2009).
Here, Mother appeals the trial court’s determination under
Sections 2511(a)(2), (a)(5), and (a)(8).7 See Mother’s Rule 1925(b)
Statement (M.M.), 7/24/20, at ¶ 1; see also Mother’s Rule 1925(b)
Statement (Z.D.K.), 7/24/20, at ¶ 1.
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7 A review of the orders involuntarily terminating Mother’s parental rights
demonstrates that the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(2) and (a)(5) and did not terminate Mother’s parental
rights pursuant to Section 2511(a)(8). Therefore, we will consider Mother’s
first issue only as it relates to Sections 2511(a)(2) and (a)(5).
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Sections 2511(a)(2) and (a)(5) provide as follows:
§ 2511. Grounds for involuntary termination
(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.
...
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to
the parent are not likely to remedy the conditions which
led to the removal or placement of the child within a
reasonable period of time and termination of the parental
rights would best serve the needs and welfare of the
child.
23 Pa.C.S.A. §§ 2511(a)(2) and (a)(5).
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 [,or her,]
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).
In re Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015).
Unlike subsection (a)(1), subsection (a)(2) does not emphasize a
parent's refusal or failure to perform parental duties, but instead
emphasizes the child's present and future need for essential
parental care, control[,] or subsistence necessary for his physical
or mental well-being. Therefore, the language in subsection
(a)(2) should not be read to compel courts to ignore a child's need
for a stable home and strong, continuous parental ties, which the
policy of restraint in state intervention is intended to protect. This
is particularly so where disruption of the family has already
occurred and there is no reasonable prospect for reuniting it.
Z.P., 994 A.2d at 1117 (citation omitted). “[W]hen a parent has
demonstrated a continued inability to conduct his[, or her] life in a fashion
that would provide a safe environment for a child, whether that child is living
with the parent or not, and the behavior of the parent is irremediable as
supported by clear and competent evidence, the termination of parental rights
is justified.” Id. at 1118 (citation omitted). “A parent's vow to cooperate,
after a long period of uncooperativeness regarding the necessity or availability
of services, may properly be rejected as untimely or disingenuous.” Id.(citation and original quotation marks omitted).
“Termination of parental rights under Section 2511(a)(5) requires that:
(1) the child has been removed from parental care for at least six months; (2)
the conditions which led to removal and placement of the child continue to
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exist; and (3) termination of parental rights would best serve the needs and
welfare of the child.” Id.Section 2511, in “permitting the termination of parental rights[,]
outlines certain irreducible minimum requirements of care that parents must
provide for their children, and a parent who cannot or will not meet the
requirements within a reasonable time following intervention by the state may
properly be considered unfit and have his parental rights terminated.” Id.(citation and original quotation marks omitted).
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his[, or
her,] ability, even in difficult circumstances. 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 the child's physical and emotional
needs.
Id. at 1119. (citation and original brackets omitted).
Mother’s argument, in sum, is that
[i]nsufficient evidence was presented to support a determination
that there was a continued incapacity of Mother to provide
essential parental care for [M.M.] and [Z.D.K.]; that the conditions
that led to the removal of [M.M.] and [Z.D.K.] from the care of
Mother have not or cannot be remedied by Mother; that the
conditions that led to the removal of [M.M.] and [Z.D.K.] still exist
and cannot be remedied by Mother within a reasonable period of
time; or, that termination would best serve the needs and welfare
of [M.M.] and [Z.D.K.]
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Mother’s Brief at 30. Mother contends that the trial court abused its discretion
when it found that Mother’s ability to fully comply with or complete her goals
was clear and convincing proof that Mother had not remedied the conditions
that led to the removal of M.M. and Z.D.K. Id. Mother asserts that although
she did not submit to the drug and alcohol screenings as directed, due, inter
alia, to her job and lack of transportation, she satisfied the drug and alcohol
treatment goal by achieving sobriety. Id. at 31. Mother further asserts that
although she did not attend mental health counseling as frequently or as
consistently as directed, she achieved her mental health goal by no longer
“self-medicating her panic by smoking marijuana.” Id. Mother contends that
there was no evidence that Mother’s mental health or prior instances of
domestic violence posed risks to M.M. or Z.D.K. Id. at 32. Mother also
maintains that she has obtained appropriate housing. Mother admits, that
“[t]he evidence proved that Mother had not fully completed or complied with
her court-ordered goals.” Id. at 33. Mother argues, however, that “[t]he
evidence clearly shows that Mother had made sufficient progress to remedy
the conditions that caused [M.M.] and [Z.D.K.] to be removed from her care
and that Mother was able to provide essential parental care.” Id.
CYF argues, that the “evidence demonstrate[d] that Mother received
an abundance of services since 2014[,] to help her address goals and remedy
the conditions related to mental health, drug and alcohol
[dependence/misuse], domestic violence, parenting[,] and establishing a
stable, safe and secure environment for her children.” CYF’s Brief at 27. CYF
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asserts that it provided Mother with “caseworkers, in–home service workers,
[POWER] representatives, domestic violence, [substance abuse] and mental
health counselors, [] transportation assistance, and housing services[,]” to
assist Mother in achieving her goals. Id. at 33. CYF contends, however, that
“Mother failed to cooperate fully with services, resisted or refused services[,]
or just decided she did not have to do certain things, even if court-ordered.”
Id. at 31. As an example of Mother’s continued inability to complete a goal,
CYF explains,
Despite housing assistance, Mother has not demonstrated that she
can or will remain in appropriate housing or that she is able to
provide a safe and stable home [] environment for her children.
She spent at least a year, from Fall 2016[,] until November 2017,
moving her children, on a weekly, if not a daily basis, from house
to house. After the children's removal, it took her another
[fifteen] months to obtain housing that she held for only six to
seven months before returning to her transient pattern of living.
Only on the eve of [the termination hearing], did Mother obtain
housing, again. She has no track record to permit any assurance
that she can[,] or will[,] maintain her housing.
Id. at 28-29.
The trial court found that the record unequivocally established Mother’s
unwillingness and inability to acknowledge and make the necessary progress
in addressing her parental deficiencies that led to the children's dependency
adjudication and ultimate removal. Trial Court Opinion, 8/24/20, at 8. In so
finding, the trial court explained,
Mother had a goal to obtain a mental health evaluation and
treatment. Mother self-reported issues with anxiety and
depression, which was supported in documentation received by
CYF. CYF testified that Mother was asked to complete a mental
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health evaluation and follow the recommendations for treatment.
However, CYF testified that Mother's involvement in mental health
treatment with the various providers she was referred to was
inconsistent. Mother attended one appointment at Mercy
Behavioral Health's dual diagnosis program; she attended two
months of family focus solution based therapy through Holy
Family [Institute] in June and July 2016; she participated in some
services at Wesley Spectrum [] starting in September 2017[,] but
documentation showed she was not in that program by January
2018; she had a voluntary admission to Western [Psychiatric]
Institute and Clinic on October 23, 2017[,] for an attempted
overdose; she reengaged with Wesley Spectrum for one
appointment in August 2018; she had three scheduled
appointments on May 10, 2019, July 5, 2019, and August 16,
2019[,] with Turtle Creek mental health that were not attended;
[and] she attended an intake appointment at Mon Yough
[Community Services] for mental health on September 13, 2019.
At one point, Mother reported to CYF [that] she was taking
psychiatric medication prescribed by her [primary care physician].
At the time of the termination proceedings, Mother did not
document [a] completion of this [mental health] goal.
Mother had a parenting goal. CYF testified that they observed
Mother to have poor planning skills [and] made [] choices that
impacted her long-term ability to parent. CYF provided a number
of in-home services through different providers to assist her in
achieving this goal so that her children could return home. The
Project Star supervisor of the intensive family services program,
a program that provided direct services to Mother and her children
from May 30, 2017[,] through May 31, 201[8,] provided testimony
about their year-long involvement [with] Mother and the repeated
concerns and deficiencies that were observed. [The] Project Star
[supervisor] testified that [M]other was very disorganized,
struggling to manage her paperwork and any required follow up.
[The supervisor] reported that [Project Star] found Mother to have
difficult[y] with problem-solving skills and she would refuse
services or visits if "she wasn't in the mood and didn't want to be
bothered or that she was sleeping and she'll text us when she felt
like getting up." [The] Project Star [supervisor] testified that
Mother did not make progress on the goals throughout the case
despite a year of making countless efforts to try and engage
[M]other and refer her to programs to address her goals. CYF
continued to have concerns about Mother's abilities to provide for
her children's basic needs, clothing, food, shelter[,] and medical
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care[,] and [as a result of these concerns,] CYF provided concrete
goods and referrals to help her become more effective as a parent
in meeting her children's needs. Attendance at her children's
medical appointments continued to be an issue after the children's
[dependency] adjudication even though she was informed of these
appointments by the CYF caseworker.
Mother had a goal to obtain a drug and alcohol evaluation,
treatment, and submit to random urine screens. CYF testified that
Mother's marijuana use predated [CYF’s] involvement. CYF made
four referrals for Mother to have a drug and alcohol evaluation
through POWER, which recommended dual diagnosis treatment[.
M]other attended two dual diagnosis sessions but did not complete
either program. CYF also referred Mother for a drug and alcohol
evaluation through the Shores program. Mother completed two
intake appointments at Shores in May [2018,] and December
2018[,] with the expectation of continued treatment. However,
Mother did not engage in any treatment after the May 2018
assessment and she attended one session but missed multiple
other appointments after the December 2018 assessment. CYF
testified that at the time the termination petitions were filed[,]
there was no documentation that Mother had successfully
completed her drug and alcohol goal, with her last known
treatment in December 2018. The supervisor of the drug and
alcohol screening program that CYF utilized to call Mother in for
random urine screens also provided testimony. The drug
screening supervisor reported that Mother's screens began on
October 21, 2015[,] and that the last screen she was called in for
was March 6, 2020. She testified that Mother was called in for
forty-three total screens during that time period, completed
twenty-three screens, and refused two screens. The drug
screening supervisor testified that all of the twenty-three [urine
samples] were positive for [tetrahydrocannabinol] and Mother's
last positive urine screen was on May 22, 2019. CYF testified that
they did not think Mother had fully addressed this goal based on
her random urine screens and failure to complete recommended
treatment from past evaluations. Mother testified that her last
marijuana usage was in July 2019[,] and she was not presently
engaged in any drug and alcohol treatment.
Mother had a goal to address domestic violence in her
relationships. CYF testified that M.M. was present for at least one
incident of intimate partner violence in May 2016. CYF stated that
Mother [] obtained a temporary protection from abuse order
against [Z.D.K.'s] father but did not follow through on obtaining a
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final order. CYF testified that they referred Mother to the Women's
Center and Shelter for programming in June 2016. At the time of
the termination proceedings, CYF had not received any
documentation from Mother that demonstrated that she []
successfully completed a domestic violence or intimate partner
violence program.
Mother had a goal to obtain and maintain housing and
employment. At different times during [CYF’s] multi-year
involvement, Mother [] reported being employed at various jobs.
Mother's housing instability continued to be problematic. CYF
referred Mother to the Urban League more than once and provided
in-home services with a specific goal of locating and securing
housing. CYF testified that [Mother was] provided with a number
of concrete goods, such [as payment of] the security deposit for
[] electric [services], money for a stove, two allocations for U-Haul
rentals[,] and one allocation for gas for the U-Haul. Mother only
obtained her most recent stable housing in February 2020.
When the children were placed into foster care in November 2017,
[the trial c]ourt established a goal of visitation for Mother. CYF
testified that it was very challenging to set up a visitation schedule
because of Mother's ongoing housing instability [and] because she
had been moving from home to home with five different family
members or friends. Immediately after removal, Mother was to
have unsupervised weekend overnight visits in her home once CYF
had the ability to conduct a home assessment and background
check. CYF testified that there were concerns that Mother was
continuing to struggle financially and provide for her children's
basic needs during these visits. CYF testified that from the time
of removal in November 2017[,] until [CYF] filed the involuntary
termination of parental rights petition[s] in July 2019, Mother
attended thirty-two out of a possible seventy-one scheduled visits.
Additionally, CYF testified that Mother would get upset during
visitation "when she didn't get her way."
The foster care caseworker from A Second Chance, Inc. ("ASCI")
also provided some insight on Mother's visitation. The ASCI
caseworker testified that she supervised a four[-]hour visit
between Mother and the children in early July 2019. [The
caseworker] reported that Mother did not have any activities or
meals organized for the children during this visit. [The
caseworker] stated that Mother did not really engage with
[Z.D.K.] and when M.M. tried to get Mother to play with her that
"the best mom kind of did was stay on the couch watching
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[television] and help put clothes on the [Barbie dolls]." [The] CYF
[caseworker] testified that Mother's last visit [with the children]
was December 21, 2019, saying she [was] "taking care of her
housing situation."
Mother's own testimony highlighted why continued progress was
necessary to address the conditions that led to removal. Mother
testified that [] she had difficulty attending urine screens because
she was pregnant, several centimeters dilated, and due in
approximately two weeks. Mother was still seeking reunification
with M.M. and [Z.D.K.] when she testified at the termination
proceeding. Mother stated that she did not think it would be
difficult ("No, it's not, and I'm pretty confident on that") for her to
take care of the older children, who had not been in her care for
two and a half years, while also parenting a child under one year
[of age] and a newborn.[FN4] When pressed about how much
longer she needed to complete her goals, nearing five years of
involvement with CYF and two and a half years of her children in
foster care, Mother testified, "It's not going to be much longer"
but earlier in her testimony stated, "I literally just started
everything again."
[FN4] Referenced in Mother's testimony on June 25, 2020,
Mother's third child was ten months old. This child does not
share a father with either M.M. or [Z.D.K.,] and this child is
not the subject of any proceedings or supervision by [the
trial c]ourt.
Here, despite the ample time [the trial c]ourt allowed in an effort
to afford this young Mother an opportunity to remedy the
conditions that led to the removal. Mother regrettably was unable
to make the progress necessary to achieve reunification. [The
trial c]ourt notes that there were periods of time over the five plus
years where Mother was able to demonstrate some small spells of
cooperation and nominal growth on her part. However, Mother's
own testimony demonstrated her inability to truly comprehend the
posture of this case. Simply put, there was no competent
evidence or testimony presented that Mother could or would be
able to soon demonstrate, with any degree of confidence, the
ability to provide proper parental care and control of these two
children.
Id. at 10-15 (record citations omitted).
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“This Court need only agree with the trial court’s decision as to any one
subsection [of Section 2511(a)] in order to affirm the termination of parental
rights.” In re A.S., 11 A.3d 473, 478 (Pa. Super. 2010) (citation, original
brackets, and original quotation marks omitted). Accordingly, we focus our
review in the case sub judice on Section 2511(a)(2).
Here, the record demonstrates that CYF became involved with Mother
in May 2014, over concerns for inadequate physical care, lack of parenting
skills, inability to provide basic care, Mother’s drug and alcohol misuse, and
Mother’s lack of stable housing with regard to M.M. N.T., 3/2/20, at 9-10.
After Z.D.K.’s birth in January 2015, CYF’s aforementioned concerns continued
as to both children and further included concerns for Mother’s mental health,
domestic violence issues, and leaving the children alone or with inappropriate
caregivers for extended periods. Id. at 13-14. Both children were adjudicated
dependent in December 2015, but remained in Mother’s custody, provided
that Mother achieved the goals set by CYF, which included, inter alia, to obtain
a drug and alcohol assessment and treatment, attend domestic violence
treatment, including obtaining a protection from abuse order against Z.D.K.’s
biological father, attend mental health treatment, complete parenting classes,
and ensure that the children attended their medical appointments. Id. at
15-16. Mother was provided with several services to help her achieve her
goals, including, inter alia, in-home services, mental health services, and
women’s crisis services. Id. at 17. In November 2017, the children were
removed from Mother’s custody due to Mother’s housing instability, as well as
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continued concerns for Mother’s mental health, domestic violence, and drug
and alcohol issues. Id. at 18-19. After the children’s removal from Mother’s
custody, Mother was provided with numerous services to assist Mother in
achieving her reunification goals, including, inter alia, mental health services,
parenting skills services, treatment for drug and alcohol abuse and for
domestic violence issues, as well as financial assistance for food and housing
needs. Id. at 19-20.
At the time the petitions for termination of Mother’s parental rights
(“termination petitions”) were filed in July 2019, Mother failed to complete a
drug and alcohol treatment program or to document that she was engaged in
active services for drug and alcohol treatment. Id. at 27. As part of her drug
and alcohol treatment goal, Mother was asked to participate in 43 urine
screenings, of which Mother attended 23 procedures. Id. at 29; see also
N.T., 6/25/20 (Vol. 2), at 16. Mother tested positive 16 times for drug and
alcohol use. N.T., 3/2/20, at 30; see also N.T., 6/25/20 (Vol. 2), at 16.
Mother reported that her last drug use was July 2019 and that she was not
currently engaged in a drug and alcohol treatment program. N.T., 6/25/20
(Vol. 2), at 28, 118. At the time the termination petitions were filed, CYS
concluded Mother had not met her drug and alcohol goal. N.T., 3/2/20, at 30.
Mother’s mental health goals included participation in family focus
solution based therapy, obtaining an updated mental health evaluation, and
attending mental health treatment programs. Id. at 34. While the children
were still in Mother’s custody, Mother attended one behavioral health
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appointment, participated in family focus solution based therapy in June 2016,
and July 2016, and participated in mental health treatment services at Wesley
Spectrum Services starting in September 2017, but was no longer
participating in those services as of January 2018. Id. 35-37. Mother
attended one additional service appointment with Wesley Spectrum Services
in August 2018. Id. at 38. Mother had similar services provided by Turtle
Creek Valley, but she failed to attend any of her three scheduled
appointments. Id. After the termination petitions were filed, Mother had an
intake appointment with Mon Yough Community Services in September 2019.
Id. at 39. Mother also had a mental health assessment done during her
voluntary admission into a psychiatric clinic after she attempted to overdose.
Id. at 39, 159. Since the filing of the termination petitions, Mother has been
unable to document consistent participation in a mental health treatment
program and has not met her mental health goal. Id. at 41, 159.
Mother had a domestic violence treatment goal stemming from her
reported instances of domestic violence involving, separately, both biological
fathers and two other paramours.8 Id. at 43. As part of her treatment, Mother
was referred to a women’s crisis center but she attended only two of the eight
sessions. Id. at 45. Since the children were removed from Mother’s custody,
____________________________________________
8 Since its involvement, CYF noted that Mother reported three instances of
domestic violence and one instance of a verbal argument that did not escalate
to the point of violence. N.T., 3/2/20, at 44. M.M. was present for one
instance of domestic violence in May 2016. Id.
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however, CYF is unaware of any further instances of domestic violence and
this goal is no longer a concern for CYF. Id. at 53. Mother reported that her
last episode of domestic violence occurred in 2018, and involved an
ex-boyfriend, who was unrelated to the children. N.T., 6/25/20 (Vol. 2), at
27.
Mother’s goal of demonstrating improved parenting skills stems from
CYF’s concern over Mother’s “[g]eneral lack of organization and planning,
[her] leaving [of the] children alone or with inappropriate caregivers, [her]
leaving [the] children with other caregivers for extended periods of time, [and
Mother’s] inability to handle doctor appointments for the children.” N.T.,
3/2/20, at 58. Despite Mother’s receiving in-home services provided by
several agencies, CYF has not observed significant or sufficient change in
Mother’s lifestyle to support a recommendation that the children be returned
to Mother. Id. at 64-65. Mother is not currently working with an in-home
service provider. N.T., 6/25/20 (Vol. 2), at 95. Mother failed to attend most
of the children’s scheduled medical and school appointments, despite
receiving notification of the appointments from CYF. N.T., 3/2/20, at 65-67,
85. Mother’s housing situation has been unstable, with a brief period where
Mother has been able to achieve her own housing. Id. at 67-69, 85. Mother
received assistance to aid her in achieving her goal of obtaining housing,
including, inter alia, housing vouchers, payment for hotel stays, and payment
of utility security deposits, and moving expenses. Id. at 68-69. Mother
stayed with friends or family and moved around frequently, which made it
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difficult for CYF to contact Mother to arrange visitation. Id. at 70-73,
149-157; see also N.T., 6/25/20 (Vol. 2), at 123-125. From June 2018, until
the filing of the termination petitions in July 2019, CYF scheduled 71 visits
between Mother and the children, of which Mother attended 32. N.T., 3/2/20,
at 76. Mother admitted that, in September 2016, she asked M.M.’s paternal
grandmother to care for the children “because [Mother was not] in a position
to take care of [her] children.” N.T., 6/25/20 (Vol. 2), at 24.
Dr. Terry O’Hara, PhD., a licensed psychologist, stated that he had
“concerns with regard to [Mother] at the time of [his] evaluation in November
2019.” Id. at 39. Specifically, he stated he was concerned that Mother lacked
housing, acknowledged a history of homelessness and a history of what was
referred to as affective instability, and reported depression, including an
attempted suicide two years prior, anxiety, and panic attacks. Id. at 39-40.
Dr. O’Hara opined, that “it would be difficult to provide safety, stability[,] and
security to children without adequate housing.” Id. at 44. In discussing the
effects that housing instability has on children, Dr. O’Hara proffered, that
“[w]hen there[ is] significant disruption to one’s educational routine and
situation, that can have a negative effect on kids developmentally.” Id. at
45.
Based upon our review of the record, we concur with the trial court that
“there was no competent evidence or testimony presented that Mother could
or would be able to soon demonstrate, with any degree of confidence, the
ability to provide proper parental care and control” for the children. See Trial
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Court Opinion, 8/24/20, at 15. Mother admits that “[t]he evidence proved
that Mother had not fully completed or complied with her court-ordered goals.”
See Mother’s Brief at 33. Mother testified that she is not currently working
with in-home services on parenting skills and is not currently engaged in
mental health treatment. N.T., 6/25/20 (Vol. 2), at 95, 97. When asked how
much longer she needed to achieve her goals, Mother responded, “It’s not
going to be much longer.” N.T., 6/25/20 (Vol. 2), at 118. Mother explained
that her objective was not to have M.M. placed with her, but to retain her
parental rights in order to visit and maintain contact with M.M. Id. at 120.
The record further demonstrates Mother’s history of transient living, her
failure to accept or follow-through with service programs designed to aid her
in obtaining stabile housing, and that she only recently obtained her current
housing in February 2020. Id. at 122-128; see also N.T., 3/25/20, at 164.
The record demonstrates clear and convincing evidence of Mother’s
repeated and continuing incapacity to meet her goals that lead to the removal
of the children from her care, including, inter alia, unstable housing and
mental health treatment, that Mother’s incapacity to meet her goals led to the
children being without parental care and subsistence, including a safe, secure,
and permanent environment in which to grow, and that it is unlikely Mother
will remedy the situation given CYF’s extensive history of providing services
and aid to Mother with only inconsistent and sporadic progress in achieving
her goals. We discern no abuse of discretion or error of law in the trial court’s
determination to terminate Mother’s parental rights to M.M. and Z.D.K.
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pursuant to Section 2511(a)(2). Mother’s first issue, therefore, is without
merit.
Mother’s second issue challenges the trial court’s determination that
there was clear and convincing evidence that involuntary termination of
Mother’s parental rights would best serve the developmental, physical, and
emotional needs of the children. Mother’s Brief at 34-37.
Once the trial court determines that involuntary termination of parental
rights is warranted under Section 2511(a), the trial court is required to engage
in an analysis pursuant to Section 2511(b) to determine whether termination
is in the best interests of the child. Section 2511(b) states,
§ 2511. Grounds for involuntary termination
...
(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(b). The analysis under Section 2511(b)
focuses on whether termination of parental rights would best
serve the developmental, physical, and emotional needs and
welfare of the child. As this Court has explained, [Section]
2511(b) does not explicitly require a bonding analysis and the
term “bond” is not defined in the Adoption Act. Case law,
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however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent's emotional bond with his or her child
is a major aspect of the [Section] 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 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.
Additionally, this Court stated that the trial court should
consider the importance of continuity of relationships and
whether any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of J.N.M., 177 A.3d 937, 943-944 (Pa. Super. 2018) (citation
and original brackets omitted), appeal denied, 183 A.3d 979 (Pa. 2018). A
trial court may rely on a caseworker or social worker to determine the status
of and nature of a parent-child bond. J.N.M., 177 A.3d at 944 (holding, a trial
court “is not required by statute or precedent to order a formal bonding
evaluation be performed by an expert” (citation omitted)); see also In re
C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005) (holding, a trial court must
“discern the nature and status of the parent-child bond, with utmost attention
to the effect on the child of permanently severing that bond” (citation
omitted)).
Here, Mother argues that an interactional evaluation between Mother
and the children was “needed for Dr. O’Hara to provide an expert assessment
of the impact that termination of Mother’s parental rights would have on” the
children. Mother’s Brief at 35. Mother believes that termination of her
parental rights is not in the best interests of the children because termination
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would “unnecessarily and permanently deprive [M.M.] and [Z.D.K.] of the
relation[ship] not only between [M.M.] and [Z.D.K.] and Mother, but also
between [M.M.] and [Z.D.K.] and their siblings[9] and maternal relatives.” Id.
at 36. Mother also contends that the trial court erred in determining that
termination of Mother’s parental rights to Z.D.K. would provide permanence
for Z.D.K. because Z.D.K. has only been in his current placement for four
months and an interactional evaluation between Z.D.K. and his new
caretakers was not performed. Id.
In determining that the “evidence firmly establishe[d] that termination
[of Mother’s parental rights would] provide both children with much needed
stability and permanence” and would best serve the “developmental,
physical[, and] emotional needs and welfare of these children[,]” the trial
court explained,
severing the bond between these children and their Mother would
not cause extreme emotional consequences for either child, and
any negative consequences would be mitigated by the established
bond M.M. had with her paternal grandmother and the increasing
attachment and overall strides [Z.D.K.] was making in his foster
home. Mother had not visited these children for months leading
up to the involuntary termination of parental rights proceedings.
While the [trial court does not] doubt that Mother still loves these
children, it is [the trial court’s] opinion that any attachment these
children had with their Mother was adversely impacted due to
Mother's lack of consistent and meaningful contact over the last
two and a half years.
____________________________________________
9Mother currently has two other children who are the half-siblings of M.M.
and Z.D.K.
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Trial Court Opinion, 8/24/20, at 21. The trial court found that Dr. O’Hara was
unable to assess Mother’s bond with the children because, of the three
interactional evaluations scheduled, an evaluation was unable to be
performed.10 Id. at 20.
The record reflects that when asked about her relationship with Mother
by Dr. O’Hara, M.M. responded, “Bad. Just bad” but M.M. was unable to
provide Dr. O’Hara with any examples as to her basis for this statement. N.T.,
6/25/20 (Vol. 2), at 55-56, 78. Dr. O’Hara reported that M.M. “characterized
herself as happy” and that she was positive about her living environment with
her paternal grandmother. Id. at 54-55, 88. Dr. O’Hara opined, that “due to
both children’s ages, permanency was urgently important to them to develop
mentally” because developmental needs of a child are dependent upon the
child being in a secure, safe, and stable environment in order to have a sense
of trust upon which to build positive relationships. Id. at 53-54. When asked
about the parent-child bond between Mother and each of the children, Dr.
O’Hara remarked that he was unable to provide an assessment without
conducting an “interactional evaluation, as well as observing parenting skills
____________________________________________
10The trial court found, “Mother came late to the November 2019 interactional
[evaluation] and the children had already been transported back to their foster
homes, at the rescheduled interactional [evaluation] in December 2019[,] the
children were not transported [to the evaluation site], and Mother failed to
show for the third [interactional] evaluation scheduled in February 2020.”
Trial Court Opinion, 8/24/20, at 20; see also N.T., 6/25/20 (Vol. 2), at 36-37.
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[and] observing the children’s comportment toward [Mother,]” which he was
unable to conduct. Id. at 49-50, 73.
Kim Lincoln, the children’s caseworker from September 2019, until early
June 2020, observed that M.M. was very comfortable being with her paternal
grandmother and that she considered her grandmother’s house her home.
N.T., 6/25/20 (Vol. 1), at 11. M.M. shared the interest of dance with her
grandmother and both engaged in at-home activities, such as baking, cooking,
and gardening. Id. at 11. Lincoln reported that M.M. did not want to visit
with Mother, and M.M.’s feelings towards not visiting with Mother “just grew
stronger” during Lincoln’s bi-monthly visits with M.M. Id. at 12. Lincoln
stated that M.M. expressed that she wished to be adopted by her paternal
grandmother. Id. at 40.
With regard to Z.D.K., Lincoln described Z.D.K. as “[v]ery, very happy”
in his current placement home.11 Id. at 14-16. Lincoln stated that Z.D.K. did
not talk much about Mother, other than about the idea of a visit with Mother
so he could play video games at her house. Id. at 17-19. When asked, Z.D.K.
indicated that he wanted to continue living in his current placement home
even if his friend no longer lived there. Id. at 32, 50. Lincoln described Z.D.K.
as “well-bonded” with his current caregiver. Id. at 38. Lincoln’s assessment
____________________________________________
11 The record reflects that Z.D.K. was originally placed in the care of M.M.’s
paternal grandmother, but was removed in February 2020, and placed in the
foster home where one of Z.D.K.’s friends resides. N.T., 6/25/20 (Vol. 1), at
12-13.
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was further confirmed by Maurisa Vorbach, a CYF caseworker, who observed
positive interaction between Z.D.K. and his current caregiver. Id. at 45-47.
Lincoln reported that Mother’s last visit with the children was in
December 2019, and that until the restrictions limiting in-person visits due to
the COVID-19 pandemic were implemented, Mother had only confirmed one
visitation in January 2020, which was cancelled by Mother while the children
were en route to the visitation site. Id. at 18, 23. Mother only participated
in one virtual visit with the children after the COVID-19 restrictions were
implemented. Id. When asked to describe her general observations of
Mother’s parenting skills and her interaction with the children during a June
2019 visitation, Lincoln stated,
[Mother] really [did not] have anything [] organized for the
[children] in terms of activities or meals. [Z.D.K.] was excited by
a few of the boy toys that were there and he kept bringing them
over to [Mother]. [Mother] did have a baby she was taking care
of at the time, but she really [did not] engage with [Z.D.K. There]
was someone staying at [Mother’s] house who she got to bring
down the Barbie Dreamhouse for the [children] to play with.
[M.M.] got excited about that and tried to get [Mother] to play
with her[. T]he best [Mother] kind of did was stay on the couch
watching [television] and help put clothes on the [Barbie dolls].
Id. at 21 (paragraphing omitted).
Based upon a review of the record, we find clear and convincing
evidence to support the trial court’s conclusion that termination of Mother’s
parental rights to M.M. and Z.D.K. serves the best interests of the children.
See In re G.M.S., 193 A.3d 395, 402-403 (Pa. Super. 2018) (stating, “a
child's life cannot be held in abeyance while a parent attempts to attain the
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maturity necessary to assume parenting responsibilities. The court cannot
and will not subordinate indefinitely a child's need for permanence and
stability to a parent's claims of progress and hope for the future.” (citation
and original quotation marks omitted)). The evidence supports that any
limited parent-child bond that may have existed between Mother and each of
the children was adversely affected due to Mother’s “lack of consistent and
meaningful contact[,]” Mother’s inability to provide a safe, secure, and stable
environment in which the children could grow, and Mother’s lack of
parenting-skills. Moreover, the record supports that the current caregivers of
M.M. and Z.D.K. are in the best positions to satisfy the safety, security, and
stability needs of the children. Therefore, we discern no abuse of discretion
or error of law on the part of the trial court in concluding that termination of
Mother’s parental rights to M.M. and Z.D.K. is in the best interest of each of
the children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2021
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