In the Int. of: J.T. ( 2021 )

J-S52024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.T., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: T.T., MOTHER : No. 1440 EDA 2020
Appeal from the Order Entered June 25, 2020
In the Court of Common Pleas of Monroe County Orphans’ Court at
No(s): No. 8 OCA 2020
IN THE INTEREST OF: T.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
APPEAL OF: T.T., MOTHER : No. 1441 EDA 2020
Appeal from the Order Entered June 25, 2020
In the Court of Common Pleas of Monroe County Orphans’ Court at
No(s): No. 9 OCA 2020
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 8, 2021
T.T. (Mother) appeals from the orders1 entered in the Monroe County
Court of Common Pleas, Orphans’ Court, granting the petitions of Monroe
County Children Youth Services (CYS) to involuntarily terminate her parental
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* Former Justice specially assigned to the Superior Court.
1 On September 1, 2020, this Court sua sponte consolidated the appeals from
the two orders.
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rights to her daughter, J.T., born in February of 2016, and son, T.M., born in
May of 2018, (collectively, the Children).2 After careful review, we affirm.
The orphans’ court set forth the relevant factual and procedural history
as follows:
This case has a long history. The family has had an open case
with [CYS] from September 29, 2017 through April 19, 2018, due
to [Mother’s] issues regarding mental health, lack of support
system, and occasional domestic violence between the parents.
On June 25, 2018, [Mother] attempted to surrender [T.M.] to the
medical staff at Lehigh Valley Health Network Pocono under the
Safe Haven Law, as she was feeling overwhelmed and unable to
take care of her son. Because [T.M.] was over [28] days old, the
hospital was not able to take [him], and Stroud Area Regional
Police and [CYS] were called per hospital protocol.
Mother has a history of mental health issues, including
Postpartum Depression and Bi-Polar Disorder. She stated to
[CYS] caseworker that she was able to care for daughter [J.T.],
but unable to care for [T.M.] She also stated that the [C]hildren’s
father . . . had left the residence and was no longer helping her.
[CYS] contacted [Father] and paternal family members. [Father]
refused to act as a resource, stating it was fine for [T.M.] to go
into foster [care] as he did not have the means to care for the
baby. In addition, he lived with his mother and grandmother and
they did not want children in their home.
A private arrangement was made with maternal
grandmother, ensuring that [Mother] had no unsupervised contact
with [T.M.] Shortly thereafter, the maternal grandparents
reported that they could no longer act as a long-term resource for
[T.M.], and Emergency Protective Custody was granted by the
Honorable David J. Williamson on July 3, 2018. Protective
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2 By separate orders entered the same day, the orphans’ court terminated the
parental rights of T.M. (Father), the natural father of the Children. Father
attended the evidentiary hearing and indicated he did not contest the
termination of his parental rights. N.T. 6/24/20 at 87-89. Father did not take
an appeal, nor did he participate in Mother’s appeal by filing a brief.
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Custody was continued at the Shelter Care hearing on July 6,
2018. [T.M.] was adjudicated a dependent child by the Honorable
Jonathan Mark by Order entered July 18, 2018. . . .
[Mother’s] mental health deteriorated and Emergency
Protective Custody of [J.T.] was granted on August 7, 2018 by the
Honorable David J. Williamson. Protective Custody was continued
at the Shelter Care hearing on August 10, 2018 and she was
adjudicated a dependent child by the Honorable Jonathan Mark on
August 22, 2018. The placement of [both children] was reviewed
and continued by further Orders of the Court on January 25[,] May
13[,] September 4[,] and December 20, 2019.
[Mother] was criminally charged for an incident on August 13,
2018, [of] using a hammer to dismantle the siding and phone
cables from a residence and striking a neighbor in the face with
the hammer. [Mother’s] behaviors continued to be of concern;
she was taken by the police to be involuntarily examined pursuant
to Section 302 of the Mental Health Procedures Act on September
11, 2018, and admitted to St. Luke’s Gnaden Huetten Hospital.
She made substantial progress and was discharged on November
1, 2018. [Mother] was assigned a caseworker through the
Transition Age Youth (“TAY”) program and the ReDCo Group
(“ReDCo”), a behavioral health group, and also received services
through the Street2Feet program. [Mother] attended her
scheduled visitation, but appeared anxious during the visits which
impacted her interaction with the [C]hildren. Visit Coach services
were approved for her through JusticeWorks on January 14, 2019.
[Mother] maintained communication with the caseworker during
this time and obtained housing through the TAY program,
although it was not suitable for children.
[Mother] continued to engage in mental health services
through ReDCo: however, her behaviors continued to be erratic
and unstable. She was then referred to the Assertive Community
Treatment program and subsequently a referral was made for her
to be housed and receive comprehensive mental health treatment
at a Community Rehabilitation Residence host home in Carbon
County. She was not taking her medication as directed and
continued to display [very] unstable behaviors. Eventually
[Mother] received services through New Perspectives, but became
aggressive with the staff. By the time of the Permanency Review
hearing on May 10, 2019, [Mother] had again been involuntarily
examined pursuant to Section 302 of the Mental Health
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Procedures Act and was at St. Luke’s Gnaden Huetten Hospital
since April 7, 2019. Visit Coach services were terminated upon
her admittance to the hospital. She was discharged to a group
home in early July [of] 2019, and started attending visitation with
her children later that month.
[Mother] entered a guilty plea to the previously cited charges
on August 22, 2019 to Possessing an Instrument of Crime and
Criminal Mischief. She [received] an aggregate sentence of [18]
months’ probation. She was to make monthly restitution
payments to the victims, continue with mental health treatment
and abide by any recommended course of treatment, including
taking her prescribed medications[.]
On September 4, 2019, a Goal Change Hearing was held.
Only minimal progress had been made by either parent towards
alleviating the circumstances which necessitated the original
placement, and the [C]hildren’s goal was changed to adoption. To
date, [Mother] continues to reside in a group home, with no
discharge date identified. [Father] has voluntarily relinquished his
rights to [the Children].
[The Children] have been residing in the same foster home
since Emergency Protective Custody was granted and the foster
family is able to provide permanency for both children.
Orphans’ Ct. Op., 8/24/20, at 1-5.
On February 27, 2020, CYS filed petitions to terminate Mother’s parental
rights to the Children pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and
(b). The orphans’ court appointed Hillary Madden, Esquire, to serve as
guardian ad litem and legal counsel (GAL/Counsel) for the Children.3 The
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3 See In re Adoption of L.B.M., 161 A.3d 172, 174 (Pa. 2017) (plurality)
(23 Pa.C.S. § 2313(a) mandates the appointment of counsel for children
involved in contested involuntary termination of parental rights proceedings).
See also In re T.S., 192 A.3d 1080, 1092 (Pa. 2018) (trial court did not err
in allowing the children’s guardian ad litem to act as their sole representative
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orphans’ court held a hearing on June 24, 2020; the Children were four and
two years old at this time. CYS presented the testimony of the child J.T. and
CYS caseworkers Diana Brown and Jennifer Payne. Mother presented the
testimony of her therapist, Jacqueline Coughlin. Mother and Father both
testified on their own behalf. The GAL/Counsel presented the testimony of
V.O., one of the foster fathers. He testified J.T. has been in his care since she
was three years old, and T.M. since he was “a little under two months old.”
N.T. at 93.
On the same day, the orphans’ court terminated Mother’s parental rights
to J.T. and T.M. On July 24, 2020, Mother timely filed separate notices of
appeal at each docket,4 along with Pa.R.A.P. 1925(a)(2) concise statements
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in termination proceeding because, at two and three years old, they were
incapable of expressing their preferred outcome). Here, the GAL/Counsel filed
a brief in support of terminating Mother’s parental rights. See In re:
Adoption of K.M.G., 219 A.3d 662, 670 (Pa. Super. 2019) (en banc) (while
this Court has authority to raise sua sponte issue of whether the trial court
appointed any counsel for the child, but not the authority to sua sponte review
“whether a conflict existed between counsel’s representation and the child’s
stated preference in an involuntary termination of parental rights
proceeding”), aff’d ___ A.3d___ (Pa. Nov. 10, 2020).
4 We note the electronic trial records transmitted on appeal would indicate
Mother’s notices of appeal were untimely filed. The records each include a
“certified docket sheet,” which indicates the order terminating Mother’s
parental rights was entered on the docket on June 25, 2019. The 30th day
thereafter was Saturday, July 25, 2020. See Pa.R.A.P. 903(a) (notice of
appeal shall be filed within 30 days after entry of the order from which appeal
is taken). Mother thus had until Monday, July 27th to file a notice of appeal.
See 1 Pa.C.S. § 1908. However, the “certified docket sheet” states Mother
filed an “Amended Notice of Appeal Nunc Pro Tunc” on July 29th. Despite the
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of errors complained of on appeal. On September 1, 2020, this Court sua
sponte consolidated her appeals.
Mother raises the following claims for our review:
Did [CYS] fail to present clear and convincing evidence that
termination of [M]other’s parental rights served the needs and
interests of [the Children] under [23 Pa.C.S.] § 2511(a)?
Did the [orphans’] court err in terminating [Mother’s] parental
rights without clear and convincing evidence that termination of
[M]other’s parental rights served the needs and interests of [the
Children] under [23 Pa.C.S.] § 2511(b)?
Did the [orphans’] court err in terminating [Mother’s] parental
rights based upon mental illness and collateral issues arising from
mental illness?
Mother’s Brief at 11.
Preliminarily, we note that while Mother has raised her mental health as
a separate issue, we consider her mental health arguments as part of the
inquiries into whether the orphans’ court properly terminated her parental
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title of this document, it is the only notice of appeal in the record, and there
is nothing indicating the orphans’ court granted leave for Mother to file a notice
of appeal nunc pro tunc.
Nevertheless, on appeal, Mother provided to this Court for filing on our
docket, a copy of a different notice of appeal (entitled “Notice of Appeal”),
which bears the notation “Monroe County Clerk of Courts Received 7/24/2020
11:05 AM.” Mother’s Notice of Appeal/IFP Docketed, 8/10/20. Attached to
the notice of appeal is a copy of the orphans’ court’s official docket, which
confirms this notice of appeal was filed with the ophans’ court on July 24,
2020. We note the orphans’ court, CYS, and GAL/Counsel have not disputed
the timeliness of Mother’s notice of appeal, and in light of all the foregoing,
we deem it was timely filed.
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rights under subsections 2511(a) and (b). To the extent that Mother attempts
to liken mental illness to incarceration and cites caselaw concerning the
termination of the parental rights of incarcerated parents, we find her
argument lacks merit. See Mother’s Brief at 30-31.
First, Mother asserts the orphans’ court erred in finding CYS
demonstrated by clear and convincing evidence that termination of her
parental rights served the Children’s “emotional needs and welfare” under
subsection 2511(a). Mother’s Brief at 19. Mother acknowledges she “has
been in and out of mental health providers and group homes in an effort . . .
to cope with her mental illness,” but she maintains that “[a]t no time did [she]
give up, refuse treatment, or not respond to [CYS] because of a deliberate
choice.” Id. at 22. Mother explains that “soon after[ ]” she attempted to give
up T.M., she “regretted and recanted” this decision.” Id. She also argues she
“did, and continues to, show her willingness to cooperate with [CYS] to obtain
the services necessary in order for her to perform her parental duties,” and
that since her discharge following her April 1, 2019, involuntary commitment,
“there has been over a year of compliance [with] mental health services.” Id.
at 22-23. Mother concedes she “did not have adequate housing or substantial
employment, but [contends that] these grounds alone are not drastic enough
to terminate her parental rights.” Id. at 24.
We note the relevant standard of review:
The standard of review in termination of parental rights cases
requires appellate courts “to accept the findings of fact and
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credibility determinations of the trial court if they are supported
by the record.” “If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion.” “[A] decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.” The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted).
Section 2511 of the Adoption Act governs involuntary termination of
parental rights. See 23 Pa.C.S. § 2511. It 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 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).
In the present case, the orphans’ court terminated Mother’s parental
rights pursuant to subsections 2511(a)(1), (2), (5), (8), and (b). We need
only agree with the court as to any one subsection of 2511(a), in addition to
subsection 2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc). Here, we analyze the court’s decision to terminate pursuant
to subsections 2511(a)(2) and (b), which provide as follows:
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(a) General rule.—The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
* * *
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child to be
without essential parental care, control or subsistence
necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied by the parent.
* * *
(b) Other considerations.—The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on the
basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the giving
of notice of the filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
In order to terminate parental rights pursuant to 23 Pa.C.S.[ ]
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
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
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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 its opinion, the orphans’ court discussed its decision to terminate
Mother’s parental rights pursuant to Section 2511(a)(2):
Here, the testimony showed [Mother] stated that she was unable
to take [care] of [T.M.] prior to his Emergency Custody [Order]
and she [wanted] to give him up by using the Safe Haven Act.
[N.T. at 17. Mother] has also suffered from mental health issues
such as attacking her neighbor with a hammer. [Id. at 23.] She
also had instances where she barked like a dog and looked into a
mirror and laughed and talked to herself. [Id. at 28.] The
testimony showed [that] when she had supervised visits with the
[C]hildren she appeared overwhelmed and not very engaged with
[them. Id. at 29.] Therefore[, Mother] has clearly shown an
inability to provide essential parental care, control or subsistence
necessary for the [C]hildren’s well being.
Orphans’ Ct. Op. at 7-8.
Our review of the record supports the orphans’ court’s conclusions. The
orphans’ court credited the testimony of CYS Caseworkers Brown and Payne
regarding Mother’s extensive history of mental health issues, which caused
her to become aggressive and require hospitalization multiple times. See N.T.
at 30. Ms. Brown indicated CYS had concerns about Mother’s “non-
interaction” with the Children during visits because Mother “would not engage
the [C]hildren. She would just stare in[to] space.” Id. at 38-39. Mother’s
visitation with the Children remained “supervised due to her behavior.” Id.
at 44. At the time of the termination hearing, Mother had only recently
obtained employment and had not obtained housing. Id. at 59.
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Thus, the record demonstrates that Mother is incapable of providing the
Children with proper parental care, and that she cannot or will not remedy her
parental incapacity. J.T. has been in foster care for 22 months and T.M. has
been in foster care for 23 months. N.T., 6/24/20, at 59. Despite almost two
years of opportunities, Mother made only minimal progress toward compliance
with her goals. The Children are in need of a permanent and stable home,
and their lives cannot remain on hold forever. See In re Adoption of R.J.S.,
901 A.2d 502, 513 (Pa. Super. 2006) (“[A] child’s life cannot be held in
abeyance while a parent attempts to attain the 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.”). Therefore, we discern no abuse of
discretion by the orphans’ court in terminating Mother’s parental rights
pursuant to Section 2511(a)(2).
Next, Mother contends CYS presented insufficient evidence regarding
her bond with the Children. Mother argues that if there is a lack of a bond
between her and the Children, it is due to her mental health and is beyond
her control. Mother’s Brief at 29.
With respect to subsection 2511(b), we consider whether termination of
parental rights will best serve the Children’s developmental, physical and
emotional needs and welfare. See In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). “In this context, the court must take into account whether a
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bond exists between child and parent, and whether termination would destroy
an existing, necessary and beneficial relationship.” Id. “[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 [the child’s] potential in a permanent,
healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856 (Pa. Super.
2004).
“When conducting a bonding analysis, the court is not required to use
expert testimony. [Instead, s]ocial workers and caseworkers can offer
evaluations as well.” In re Z.P., 994 A.2d at 1121. “Intangibles such as love,
comfort, security, and stability are involved in the inquiry into needs and
welfare of the child.” In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
“‘Above all else . . . adequate consideration must be given to the needs and
welfare of the child.’ A parent’s own feelings of love and affection for a child,
alone, do not prevent termination of parental rights.” In re Z.P., 994 A.2d at
1121.
Here, the orphans’ court reasoned:
[Mother] has a long history of mental health problems. [Her]
mental health is still a concern and it is not known if it could be
remedied in a reasonable period of time despite the services
provided to her since the dependency adjudication. The need for
stable family life would best serve the needs of the [Children].
. . . [Mother] has continued to show an incapacity to care for the
[C]hildren. As noted above, she continues to exhibit mental
health problems, she has no housing for the [C]hildren, and she
resides in a group home. [N.T. at 55.] The best interest[s] of the
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[C]hildren will be served by termination of parental rights of
[Mother]. In the foster home both [Children] are doing well. In
the foster home are two other children who are eight years old.
[Id. at 97.] The two [C]hildren refer to them as their brothers[.
Id. at 96.] The foster parents are willing and encouraging a
relationship with the biological parents. [Id. at 95.] Given that
the foster family is providing a stable, protective and loving
relationship to [the Children,] termination of parental rights is
warranted.
Orphans’ Ct. Op at 8-9.
The competent evidence in the record supports the orphans’ court’s
determination that termination of Mother’s parental rights would serve the
Children’s best interests. As of the date of the hearing, T.M. was in care for
23 months and J.T. was in care for 22 months. N.T. at 59. The Children are
in the same foster home. The orphans’ court credited the testimony of Ms.
Brown that in the foster home the Children “were very comfortable. The foster
parents were very attentive to them. They made sure that all their needs are
met.” Id. at 44. Ms. Brown noted that J.T. did not exhibit any concerns when
she was first separated from Mother. Id. The orphans’ court credited Ms.
Payne’s testimony describing the Children’s relationship with their foster
parents. Specifically, Ms. Payne explained: “[The Children are] very bonded
to both foster parents. There’s two other children in the home and they’re
very bonded, they act like siblings, all four of them together, but they do very
well in that home.” Id. at 58. The orphans’ court credited the testimony
provided by CYS that Mother has not put herself in a position to provide safety
and stability for the Children throughout this case. Contrary to Mother’s
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contentions, Ms. Brown and Ms. Payne provided ample testimony in support
of their opinions regarding the Children’s relationship with Mother. This is
especially true given the Children’s young ages and the fact that they have
spent most of their lives in foster care. See Matter of Adoption of M.A.B.,
166 A.3d 434, 449 (Pa. Super. 2017) (“[A] child develops a meaningful bond
with a caretaker when the caretaker provides stability, safety, and security
regularly and consistently to the child over an extended period of time.”).
The orphans’ court appropriately considered the Children’s need for
safety and stability and determined that termination of Mother’s parental
rights best met the Children’s needs and welfare. After careful review, we find
there is competent evidence of record that supports the orphans’ court’s
decision. We do not discern an error of law or abuse of discretion.
Accordingly, we affirm the orders involuntarily terminating Mother’s parental
rights to J.T. and T.M.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/21
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