Adoption of: M.G.B., Appeal of: J.N.L. ( 2020 )


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  • J-S04002-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ADOPTION OF: M.G.B., A            :    IN THE SUPERIOR COURT OF
    MINOR                                    :         PENNSYLVANIA
    :
    :
    APPEAL OF: J.N.L., MOTHER                :
    :
    :
    :
    :    No. 2687 EDA 2019
    Appeal from the Order Entered August 15, 2019
    In the Court of Common Pleas of Montgomery County Orphans' Court at
    No(s): No. 2018-A0023
    BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
    MEMORANDUM BY BENDER, P.J.E.:                      Filed: April 15, 2020
    J.N.L. (Mother) appeals from the decree entered on August 15, 2019,
    that granted the petition filed by the Montgomery County Office of Children
    and Youth (OCY or Agency) seeking the involuntary termination of Mother’s
    parental rights to M.G.B. (Child), born in June of 2016. We affirm.
    Child was born prematurely at 23 weeks and suffered from neonatal
    complications. She spent the first six months of her life hospitalized in Kansas,
    where she was born, and remains medically fragile. In May of 2017, when
    the Child was ten months old, Mother took Child to Pennsylvania to visit family.
    OCY first became involved with the family on May 21, 2017, when Child was
    hospitalized for acute alcohol poisoning after Mother mixed vodka instead of
    water with formula and fed it to Child through her G-tube.        OCY obtained
    custody of Child on June 13, 2017, when she was released from the hospital,
    and placed her in the care of her pre-adoptive foster mother at that time.
    J-S04002-20
    Mother was incarcerated from June 2017 through December 2017 on charges
    related to the vodka incident.
    On May 3, 2019, the Agency filed its petition for termination of Mother’s
    parental rights and alleged grounds under 23 Pa.C.S. § 2511(a)(2), (8), (9)
    and (b). The trial court provided a further review of the factual and procedural
    history of this case and its reasoning for terminating Mother’s parental rights
    by attaching the notes of testimony from the August 14, 2019 hearing to its
    Pa.R.A.P. 1925(a) opinion.1 Specifically, the court determined that the Agency
    had proven that Mother’s parental rights should be terminated pursuant to
    sections (a)(2), (8), (9) and (b). With regard to subsection (a)(2), the court
    explained:
    [T]here have been … three periods of time with respect to …
    [M]other. Initially, after … [C]hild was in placement, …[M]other
    was incarcerated on the charges related to providing vodka to …
    [C]hild and injuring … [C]hild. … [M]other was incarcerated until
    December of 2017.
    Thereafter, between December [2017] and approximately
    April of 201[8], the [A]gency was concerned about the existing
    court orders that ordered no contact with … [C]hild and was
    constrained from providing visits and actively working towards
    reunification with … [C]hild and was in a bit of a quandary, as the
    statute both encouraged them to provide reunification efforts, but
    the court orders restricted them from providing visits.
    But beginning after April of 2018, the [A]gency did work
    actively with … [M]other toward reunification, and Ms. Spano[, an
    OCY caseworker,] testified candidly that … [M]other made
    ____________________________________________
    1 At the same hearing, J.B.’s (Father) parental rights to Child were also
    terminated. Father filed a separate appeal with this Court, which is addressed
    in a separate memorandum at No. 2688 EDA 2019.
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    progress and that the quality of the visits with … [C]hild were
    good, that … [M]other loves … [C]hild and had more than
    satisfactory visits with … [C]hild when she had visits….
    [B]efore January of [20]19, the visits became unsupervised
    with [M]other, and she had a period of time where she had
    unsupervised visits….       [V]isits prior to March had been
    unsupervised. But … in February of 2019, ... [M]other became
    the subject of a protection from abuse order brought by [Mother’s
    paramour,] Mr. [J.] … [Mother] acknowledged in her testimony
    [that] there were several interactions with the police related to
    domestic altercations between herself and Mr. [J.] prior to the
    protection from abuse order being obtained, and in the context of
    the protection from abuse order, she was evicted from the
    residence she shared with Mr. [J.]. That event caused her [to] no
    longer … have a place where she could have visits at her home,
    the home she shared with a friend for a while. The friend did not
    wish to have background checks conducted by the [OCY]. So that
    home could not be qualified as a place for unsupervised visits.
    Consequently, in February of 2019, only one visit occurred
    of four offered, it appears. The first visit, in March of 2019, was
    also canceled as there was no place to have the visit. And in early
    March of 2019, a plan was made to resume visits at the [foster
    agency,] The Village.
    Thereafter, from March 26th of 2019 through July 30th of
    2019, weekly visits were offered. Nineteen weekly visits were
    offered, of which [M]other attended seven. Four visits were
    canceled or not confirmed by … [M]other. Five visits were
    confirmed but [M]other failed to show. And three additional visits
    that [M]other attended, she was significantly late, as much as
    forty-five minutes or one and a half hours late. So her attendance
    between March of 2019 and July of 2019 is of great concern to the
    [c]ourt[.] … [A]lthough she testified that she had trouble with
    transportation and issues with jobs[,] and on some occasions she
    told [her] caseworker of issues like that and on one occasion she
    wasn’t feeling well, nevertheless, the failure to attend so many
    offered visits in that period gives [this court] great concern as to
    whether [M]other has a capacity to meet …[C]hild’s needs on a
    regular ongoing basis, on a 24/7 basis.
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    Unfortunately, [M]other never progressed to the
    unsupervised overnight visits that were contemplated by [OCY],
    and [OCY] cannot establish that she has that capacity.
    Furthermore, it was established in the testimony … that …
    [M]other was not candid with her evaluators about her history of
    drug use, which she acknowledged she was not candid [about],
    and while she was having in-home services for the period between
    December of 2017 and February of 2019 that helped her both with
    her drug and alcohol issues and stability, after February of 2019[,]
    she has not continued to have mental health support or drug and
    alcohol support.     This raises additional concerns that are
    consistent with the concerns raised by her failure to be able to
    continue to make visits on a regular basis, on a weekly basis with
    … [C]hild.
    [Mother is] optimistic that she has a job beginning in
    September, but her testimony was a bit evasive and less than
    candid about her employment and her ability to continue to afford
    the apartment where she’s living. And her testimony – some of
    her testimony was contradicted by Mr. [J.]. And [this court]
    find[s] Mr. [J.], who is an unbiased witness and who was called
    here under subpoena and has no interest in the outcome of this
    case, was more credible than [Mother’s] testimony on the issues
    where they differed, including on her mental health status in
    February of 2019 and thereafter.
    Given that she was not candid with her mental health and
    drug and alcohol evaluators and is no longer in treatment, … and
    has failed to make visits repeatedly and [has] been late for visits
    repeatedly, and given her lack of candor to the [c]ourt on many
    issues, [this court] conclude[s] that [OCY] has established by
    clear and convincing evidence an incapacity to meet … [C]hild’s
    needs that has caused … [C]hild to be without essential parental
    care, control, or some assistance necessary for her physical and
    mental well-being.
    [This court] also conclude[s] that the conditions that led to
    the incapacity of … [M]other will not be remedied in a reasonable
    time frame.
    N.T., 8/14/19, at 258-63.
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    The trial court also explained its reasoning relating to its conclusion that
    the Agency had proven that subsections (a)(8) and (a)(9) applied.
    Additionally, the court discussed the facts and reasoning pursuant to section
    (b), stating:
    In this case, the testimony has established that with respect
    to … [M]other, there is clearly affection and a bond between
    [Mother] and … [C]hild. However, [Mother] has not lived with …
    [C]hild for more than a period of approximately four months of …
    [C]hild’s three years – more than three years now. The first six
    months she was a parent present at the hospital while … [C]hild
    was being cared for 24/7 in the hospital, but … [C]hild was only in
    her full-time care for a period of four months, ending with the
    tragic events that severely injured … [C]hild and resulted in her
    hospitalization and [M]other’s incarceration on very serious
    charges.
    Thereafter, [M]other simply has not made progress sufficient
    to permit the [A]gency to have confidence in her stability, her
    employment, her housing stability, … her mental health stability,
    and her stability regarding drug and alcohol use. All the issues
    that were from the beginning of the case which [were] the
    [A]gency’s concerns, some of which may have led to the tragic
    mistake or incident that caused … [C]hild to ingest vodka,
    continue to be concerns today and have not been adequately
    resolved.
    … [M]other has not provided a home for … [C]hild or provided
    that stability, love and affection that can give a secure
    attachment. While there’s an attachment and affection, the
    [c]ourt finds that it has not been established sufficient with the
    secure attachment.
    In the meantime, … [C]hild has been raised in a home that is
    described as loving and secure where she is bonded and attached.
    Under the circumstances of this case, while it’s always difficult
    to terminate the rights of a birth parent who has been involved
    with … [C]hild and who loves … [C]hild and whom … [C]hild loves,
    the [c]ourt concludes that under all of the circumstances,
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    termination of parental rights so … [C]hild may remain secure,
    safe, and loved in a loving home and achieve permanence will not
    be detrimental to … [C]hild.
    Therefore, from all of the evidence and testimony, [this court]
    conclude[s] that termination of … [M]other’s parental rights best
    serves the needs and welfare of [Child] and will not irreparably
    harm her.
    Id. at 265-67.
    On appeal, Mother raises the following issues for our review:
    A. Did the trial court commit an error of law and/or abuse its
    discretion when it held that [the Agency] had proven by “clear
    and convincing evidence” that [Mother’s] parental rights should
    be terminated pursuant to 23 Pa.C.S. [§] 2511(a)(2) and 23
    Pa.C.S. [§] 2511(a)(8) where … [M]other had made, and was
    making, substantial progress on her Family Services Plan(s)
    goals as proven by the testimony and evidence produced at the
    hearing[?]
    B. Did the trial court commit an[] error of law and/or abuse its
    discretion when it terminated [Mother’s] parental rights
    pursuant to 23 Pa.C.S [§] 2511(b) on the basis that the
    developmental, physical, emotional needs and welfare of …
    [C]hild [were] best served by termination of … [M]other’s rights
    where she had made, and was making[] substantial progress
    on the Family Services Plan(s)[?]
    Mother’s brief at 6.
    We review an order terminating parental rights in accordance with the
    following standard:
    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
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    record in order to determine whether the trial court’s decision is
    supported by competent evidence.
    In re R.N.J., 
    985 A.2d 273
    , 276 (Pa. Super. 2009) (quoting In re S.H., 
    879 A.2d 802
    , 805 (Pa. Super. 2005)). Moreover, we have explained that:
    The standard of clear and convincing evidence is defined as
    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.
     (quoting In re J.L.C. & J.R.C., 
    837 A.2d 1247
    , 1251 (Pa. Super. 2003)).
    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.   In re M.G., 
    855 A.2d 68
    , 73-74 (Pa. Super. 2004).           If
    competent evidence supports the trial court’s findings, we will affirm even if
    the record could also support the opposite result. In re Adoption of T.B.B.,
    
    835 A.2d 387
    , 394 (Pa. Super. 2003).
    We are guided further by the following: Termination of parental rights
    is governed by section 2511 of the Adoption Act, which requires a bifurcated
    analysis.
    Our case law has made clear that under Section 2511, the 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
    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
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    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) (citing 23 Pa.C.S. § 2511,
    other citations omitted). 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. R.N.J., 
    985 A.2d at 276
    .
    With regard to section 2511(b), we direct our analysis to the facts
    relating to that section. This Court has explained that:
    Subsection 2511(b) focuses on whether termination of parental
    rights would best serve the developmental, physical, and
    emotional needs and welfare of the child. In In re C.M.S., 
    884 A.2d 1284
    , 1287 (Pa. Super. 2005), this Court stated, “Intangibles
    such as love, comfort, security, and stability are involved in the
    inquiry into the needs and welfare of the child.” In addition, we
    instructed that the trial court must also discern the nature and
    status of the parent-child bond, with utmost attention to the effect
    on the child of permanently severing that bond. 
    Id.
     However, in
    cases where there is no evidence of a bond between a parent and
    child, it is reasonable to infer that no bond exists. In re K.Z.S.,
    
    946 A.2d 753
    , 762-63 (Pa. Super. 2008). Accordingly, the extent
    of the bond-effect analysis necessarily depends on the
    circumstances of the particular case. Id. at 763.
    In re Adoption of J.M., 
    991 A.2d 321
    , 324 (Pa. Super. 2010).
    In this case, the trial court terminated Mother’s parental rights pursuant
    to sections 2511(a)(2), (8), (9) and (b). We need only agree with the trial
    court as to any one subsection of section 2511(a), as well as section 2511(b),
    in order 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 under section
    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).
    We first address whether the trial court abused its discretion by
    terminating Mother’s parental rights pursuant to section 2511(a)(2).
    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.
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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).
    Here, in regards to section 2511(a)(2), Mother argues that the trial court
    abused its discretion in failing to accept her testimony pertaining to the steps
    she has taken to substantially comply with her Family Service Plan (FSP) goals
    and regarding her ability to care for the Child moving forward. Mother’s brief
    at 17. Mother claims that she “has taken all steps necessary to be reunited
    with her child and [to] make herself the best person she can be to care for
    her child.” Id. at 18. She avers that she “took parenting classes while in
    prison, obtained evaluations, counseling and treatment[,] and attended a
    feeding clinic for the [C]hild….”   Id. (citations to record omitted).   Mother
    insists that “she can currently care for the [C]hild and has housing, clothes
    and toys.” Id. (citations to record omitted). These assertions are insufficient
    to convince this Court that the trial court erred in ordering the termination of
    Mother’s parental rights.
    According to OCY, “Mother has exhibited a repeated and continued
    incapacity to parent … Child for a period of two years, due to ongoing
    instability, failure to maintain recommended mental health and substance
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    abuse treatment, failure to maintain consistent visitation with … Child[,] and
    failure to demonstrate an ability to meet … Child’s needs.” OCY’s brief at 11.
    OCY recognizes that Mother made progress from April 2018 through February
    2019, but then reports that Mother “completely destabilized” at that time. Id.
    She lost her housing and stopped visiting with … Child on a
    consistent basis from March 2019 through July 2019. Mother’s
    inability to attend visits with … Child consistently demonstrates
    her inability to be the stable, available caregiver that … Child
    needs. Mother obtained new housing and changed employment
    several times, but was just in the beginning stages of potentially
    regaining stability at the time of the hearing.
    Id.   Mother also stopped attending mental health and drug and alcohol
    treatment in February of 2019. Additionally, OCY states:
    Mother has not been able to meet … Child’s needs for stability,
    security, and permanency. Mother’s incapacity to care for … Child
    will not be remedied within a reasonable amount of time. Mother
    has already had two years while … Child has been living in foster
    care to demonstrate her ability to resolve her incapacities. Mother
    has either been unable or unwilling to maintain consistent contact
    with … Child, consistently attend mental health and drug and
    alcohol treatment or achieve the stability needed to meet all of
    the needs of … Child. Any additional length of time that … Child
    would be forced to remain in foster care and wait still longer for
    Mother to remedy her incapacities is not a reasonable amount of
    time. … Child’s need for permanency is urgent….
    Id. at 12-13. Finally, OCY notes that although it has attempted during the
    two years of Child’s placement “to assist Mother in resuming parental
    responsibility, those efforts failed and … Child cannot be made to wait still
    longer while Mother continues to work on her goals.” Id. at 13.
    Mother attempts to deflect the blame from herself for her failure to
    comply with her FSP goals. She points out that there was a no contact order
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    in place at the time she was released from prison and claims that no
    reunification efforts were put in place by the court until June of 2018, so she
    could not “even attempt to be in compliance” until then. Mother’s brief at 16.
    This does not excuse her failure, however, to maintain regular visits with Child
    and to meet her FSP goals going forward. As counsel for Child stated:
    After a slow start[] due to her incarceration, Mother began to
    progress with her goals. However, Mother then sabotaged herself
    by having several domestic incidents with her paramour, one of
    which resulted in a PFA being filed against her. From that time
    on, Mother became inconsistent with visits, lost her stable
    housing, and stopped attending mental health and drug and
    alcohol treatment. Mother even failed to attend court hearings,
    including the protection from abuse hearing.
    Child’s brief at 16-17 (unnecessary capitalization omitted). We deem the trial
    court’s determination under section 2511(a)(2) to be well-supported by the
    record, and we discern no abuse of discretion.
    As for the trial court’s analysis under section 2511(b), Mother argues
    that the court erred in failing to consider the strong bond between her and
    Child. In support of her claim, Mother avers that she and Child bonded at
    birth and while at the hospital, “as evidenced by the fact that [M]other was
    the only person [C]hild would take the bottle from as an infant.” Mother’s
    brief at 22. She states that “the bond grew stronger and stronger” the more
    Child saw her and that Child trusts her for her care. Id. While we recognize
    that a bond does appear to exist between Mother and Child, see N.T.,
    8/14/19, at 265 (trial court’s stating “the testimony has established that with
    respect to the birth [M]other, there is clearly affection and a bond between
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    [Mother] and the [C]hild”), Mother’s assertions do not outweigh the trial
    court’s well thought-out determination that termination of her parental rights
    best serves the needs and welfare of Child and will not irreparably harm her.
    We deem the trial court’s reasoning for its decision to terminate Mother’s
    parental rights pursuant to section 2511(b) to be fully supported by the
    record. Moreover, we note the following testimony of Ms. Hofer, Child’s court-
    appointed attorney, when asked about her observation of Child in her foster
    home:
    MS. HOFER:        She is very happy. She appears very happy in
    her home. She gets along very well with her
    foster mother and her foster brother. She
    seems very happy there.
    The children are bonded well together.      They
    play well together.
    The foster mom seems very attentive to her
    needs. She just seems—you can tell it’s a
    loving, stable home. I was glad to see her
    there.
    N.T., 8/14/19, at 270.      Ms. Hofer added that, given Child’s age, “the
    presumption would be she would want to stay with a loving and stable
    environment where her needs are met, and I believe that’s where she is.” Id.
    at 271.   The foster mother “attends to … [C]hild’s physical needs as she
    receives intensive medical care, treatment, and evaluation.” Child’s brief at
    26-27. Child has bonded with the foster mother and “is thriving with her[,] …
    [and] she looks to her for support and security.” Id. at 27. The foster mother
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    “is ready, willing, and able to parent [C]hild, and she wants to have … Child
    be a permanent part of the family.” Id.
    OCY also concurs in the trial court’s determination:
    Mother has missed numerous visits since February 2019 and has
    not been a stable, consistent caregiver for … Child. … Child has
    been placed in a loving foster home and has developed a secure,
    loving bond with her foster mother over the last two years. …
    Child has made substantial progress in her development since
    being placed in the foster home. Consequently, the trial court
    properly concluded Child’s needs would best be met by
    termination of Mother’s parental rights.
    OCY’s brief at 19. We ascertain no abuse of discretion or error of law by the
    trial court.
    Accordingly, we affirm the decree terminating Mother’s parental rights
    pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).
    Decree affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/15/20
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Document Info

Docket Number: 2687 EDA 2019

Filed Date: 4/15/2020

Precedential Status: Precedential

Modified Date: 4/17/2021