In the Interest of: N.G., Appeal of: A.L. ( 2020 )

J-S15028-20
2020 Pa. Super. 187
IN THE INTEREST OF: N.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.L., NATURAL MOTHER :
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:
:
: No. 1644 WDA 2019
Appeal from the Order Entered October 10, 2019
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000010-2019
IN THE INTEREST OF: J.G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.L., NATURAL MOTHER :
:
:
:
:
: No. 1645 WDA 2019
Appeal from the Order Entered October 10, 2019
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000011-2019
IN THE INTEREST OF: E.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.L., NATURAL MOTHER :
:
:
:
:
: No. 1646 WDA 2019
Appeal from the Order Entered October 10, 2019
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-012-2019
J-S15028-20
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED AUGUST 11, 2020
In this consolidated appeal,1 Appellant, A.L., (“Mother”) appeals from
the October 10, 2019 orders terminating her parental rights to her dependent
children, N.G., a male child born in November 2011, J.G., a male child born in
April 2015, and E.L., a female child born in September 2017, (collectively,
“the children”), pursuant to Section 2511 of the Adoption Act, 23 Pa.C.S.A.
§§ 2101-2938.2 We affirm.
The trial court set forth the following:
Mother has a long history of [Allegheny County Office of Children
Youth and Families’ (“OCYF”)] intervention necessitated by her
inability to provide a healthy and safe environment for her
children. The three [] children [] were born testing positive for
either opiates or cocaine. Upon notification to OCYF, services
were provided to Mother to aid her with her struggle against
substance abuse. Subsequent to each birth, the services provided
allowed Mother to remain in custodial care of her two [] oldest[]
children[,] N.G. and J.G. However, after the birth of E.L., upon
discharge from the hospital[, E.L.] was placed in foster care where
she remains until this day.
[The presumed b]iological father of N.G. and J.G. died in early
2016. Approximately two [] weeks later[,] OCYF received reports
that [N.G. and J.G.] were in danger due to Mother's ongoing drug
addiction problems. In March 2016, OCYF presented themselves
____________________________________________
* Former Justice specially assigned to the Superior Court.
1In a November 12, 2019 per curiam order, this Court consolidated the three
appeals sua sponte.
2 The October 10, 2019 orders also terminated the parental rights of the
unknown father of N.G. and J.G., and terminated the parental rights of “Mike
Unknown,” the unknown father of E.L.
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at Mother's home and confronted her with these concerns. Mother
refused to submit to drug testing thereby requiring OCYF to obtain
an [e]mergency [c]ourt [o]rder for [c]ustody. After
approximately three [] months[, N.G. and J.G.] were returned to
Mother under OCYF supervision. On June 10, 2016, after receiving
additional reports of Mother's continued substance abuse, OCYF
returned to the home to investigate these claims. Upon knocking
at the door for several minutes[,] five-year-old [N.G.] opened the
door, exited, followed thereafter by [J.G., who crawled] out the
door. It was several minutes before Mother finally presented
herself to the OCYF caseworker. Dependency petitions were filed
but disposition was deferred so that services could once again be
provided for Mother.
In April 2017, OCYF was contacted by the police[,] who reported
that Mother was driving a motor vehicle with multiple children in
the car, none of whom were properly secured. Once again, OCYF
provided services including in-home services for Mother.
However, these services were ultimately terminated due to
Mother's lack of cooperation. Finally, on September 5, 2017,
OCYF received a report from local police that they had been called
to [Mother’s residence] due to complaints of drug abuse.
Responding police [officers] reported that Mother admitted that
she relapsed into her drug use. Also, at this time, suspected
cocaine was found at the residence. Based on this report, OCYF
responded to the residence on September 6, 2017. The
caseworker found the home and [N.G. and J.G.] to be in a
deplorable state. Mother appeared to be suffering from symptoms
of withdrawal[,] as well as in the late terms of pregnancy. Due to
health concerns for Mother and the children, the caseworker took
them to the hospital for examination. The treating physician
noted that J.G. had a burn on his hand consistent with a cigarette
being extinguished on his skin. Additionally, the treating
physician diagnosed J.G. with [hand-foot-and-mouth disease].
When Mother was confronted with the cigarette burn to her son,
she stated that she had not noticed the injury but that sometimes
she leaves lit cigarette butts on the porch [that] may have caused
the burn without her knowing about it.
As a result of these latest events and concerns, OCYF removed
the two [] boys by way of [a s]helter [h]earing on September 14,
2017. []Mother [subsequently] gave birth to E.L., who was six []
weeks premature and tested positive for cocaine upon her birth.
Thereafter[,] on September 18, 2017[,] a second [s]helter
[h]earing was conducted as to E.L., [at] the conclusion of which it
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was ordered that upon her discharge from the hospital she would
be placed in shelter care. On September 22, 2017[,] the two []
boys were placed in their present foster home where they have
remained since that date. On October 11, 2017[,] a dependency
hearing was conducted at which time the boys were declared
dependent. Upon discharge from the hospital on September 26,
2017, E.L. was placed in a separate foster home from the boys
where she has remained to this date. On October 11, 2017[,] she
was also declared to be a dependent child. As a result of the
dependency adjudication[s], OCYF prepared a [f]amily [s]ervice
[p]lan to address the issues and concerns that necessitated the
removal of Mother's children. This plan included[] goals of drug
and alcohol treatment, contact with her children, cooperation with
OCYF, maintaining housing stability, and addressing mental health
concerns.
Addressing the drug and alcohol treatment goal, Mother was to
submit to drug screens through [Allegheny] County. From 2017[,]
forward, Mother was called for a total of 74 drug screens. Of those
74 requests for drug screens, Mother failed to show for 42. On
those times that Mother did appear for a drug screen, [] she tested
positive [7 times] for a substance other than methadone, for
which she had a prescription. Prior to the termination hearing[,]
Mother admitted that she[,] once again, relapsed and had been
using heroin.
Mother [] maintain[ed] contact with her children through
supervised visitation. However, during these visitations, Mother
showed a lack of ability to properly maintain control of her
children. During one of the supervised visits, J.G. [threw] a toy
at Mother. In response to his actions, Mother [slapped] him
across the face. As part of the ongoing assistance that OCYF was
providing to Mother, there were attempts to aid Mother [with] the
manner [in] which she would handle the behaviors of her children.
Specifically, Mother was advised of the necessity to redirect her
children when they were misbehaving. However, Mother appears
not to have adopted this approach in the manner in which she
disciplines her children for inappropriate behavior.
Mother was also given the goal of maintaining stable housing.
However, throughout the time frame of the removal of the children
to the time of the termination hearing, Mother [] failed to obtain
a stable residence. Efforts were made by OCYF to aid her in
finding housing, but to no avail. For each failed housing attempt,
Mother found a reason for her failure to comply. Finally, Mother
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admitted that at the time of the termination hearing she was[,]
once again[,] living with her paramour, who she acknowledged
was presently abusing heroin[.]
Trial Court Opinion, 1/2/20, at 2-5.
On January 15, 2019, OCYF filed petitions for involuntary termination of
Mother’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(2), (a)(5),
(a)(8), and (b). Attorney Frank B. Wilson, Esq., from the Office of Conflict
Counsel, was appointed to represent the legal and best interests of J.G. and
E.L. Attorney Kelly Goodrich, Esq., also from the Office of Conflict Counsel,
was appointed to represent the legal and best interests of N.G.3 A termination
hearing was held on October 4, 2019, at which counsel for OCYF, counsel for
the children, and Mother’s counsel, as well as Mother, participated.4 On
____________________________________________
3 We note that at the time of the involuntary termination hearing, N.G. was
almost eight years old, which is a sufficient age at which he could articulate a
legal interest that may conflict with his best interests. Mother, however, did
not raise an issue concerning Attorney Goodrich’s representation of both
N.G.’s legal interests, as well as his best interests. See Mother’s Brief at 10,
18-24. An en banc panel of this Court, in In re Adoption of K.M.G., 219
A.3d 662 (Pa. Super. 2019), held that we cannot raise sua sponte the issue
of whether a conflict of interest existed in counsel’s representation of both the
child’s legal interests, as well as the child’s best interests. K.M.G., 219 A.3d
at 669 (stating, “this Court only has the authority to raise sua sponte the trial
court’s failure to appoint any counsel for the [c]hild (emphasis in original)).
Our Supreme Court, however, granted a petition for allowance of appeal on
the issue of whether an appellate court has the authority “to review, sua
sponte, whether a child’s legal interest was represented by counsel during an
involuntary termination of parental rights hearing.” K.M.G., 221 A.3d 649
(Pa. 2019).
4 Because the identities of the children’s fathers were unknown, OCYF
published notice of the termination hearing several times in the Pittsburgh
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October 10, 2019, the trial court found that OCYF met its burden of proof
under the aforementioned sections of the Adoption Act, and subsequently
terminated Mother’s parental rights to the children. This consolidated appeal
followed.5
Mother presents the following issue for our review: “Did the trial court
abuse its discretion and/or err as a matter of law in concluding that
termination of []Mother's parental rights would serve the needs and welfare
of the [c]hildren pursuant to 23 Pa.C.S.[A.] § 2511(b)?” Mother’s Brief at 10.
____________________________________________
Legal Journal. The unknown fathers were not present or represented by
counsel at the termination hearing.
5On November 7, 2019, Mother filed concise statements of errors complained
of on appeal with her notices of appeal pursuant to Pa.R.A.P. 1925(a)(2)(i).
The trial court subsequently filed its Rule 1925(a) opinion on January 2, 2020.
A review of the notices of appeal demonstrates that each notice contained the
names of all three children and the corresponding docket numbers. Counsel
for Mother, in filing a separate notice of appeal at each docket number,
highlighted the child’s name and docket number that corresponded with that
filing. An en banc panel of this Court, in Commonwealth v. Johnson, J.,
___ A.3d ___, 2020 WL 3869723, at *4 (Pa. Super. Filed July 9, 2020) (slip
opinion), recently held that if an appellant files a separate notice of appeal at
each trial court docket, “[t]he fact that the notices [of appeal] contained [more
than one trial court docket number] is of no consequence.” Id. at *4
(overruling, explicitly, the majority decision of a three-judge-panel in
Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019) (Strassburger,
J. dissenting) that held a notice of appeal was permitted to contain only one
docket number). We, therefore, find that Mother complied with the mandates
of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), requiring a separate
notice of appeal to be filed at each trial court docket, and Pennsylvania Rule
of Appellate Procedure 341.
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In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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). “[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 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).
Here, Mother appeals the trial court’s determination under Section
2511(b).6 Mother’s Rule 1925(b) Statement, 11/7/19; see also Mother’s
Brief at 10. Therefore, Mother waives any challenges under Section 2511(a).
In re L.V., 209 A.3d 399, 413 (Pa. Super. 2019) (stating, the failure to
preserve an issue in a Rule 1925(b) statement and the statement of questions
presented in a brief constitutes waiver of the issue).
Section 2511(b) provides as follows:
§ 2511. Grounds for involuntary termination
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6 Mother concedes that OCYF satisfied its burden of proof under Section
2511(a)(2). Mother’s Brief at 18-19. See In re A.S., 11 A.3d 473, 483
(Pa. Super. 2010) (holding, the record need only support one ground relative
to Section 2511(a) in order to support termination of parental rights).
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...
(b.) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
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,
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
[trial] 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) (original
brackets omitted), quoting In re Adoption of C.D.R., 111 A.3d 1212, 1219
(Pa. Super. 2015), appeal denied, 183 A.3d 979 (Pa. 2018). A trial court may
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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)). “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 I.E.P., 87 A.3d 340, 346
(Pa. Super. 2014), quoting In re Adoption of J.M., 991 A.2d 321, 324
(Pa. Super. 2010).
Here, Mother argues that the trial court, in determining that termination
of Mother’s parental rights served the best interests of the children, erred by
applying a fault-based analysis that referenced Mother’s past behaviors and
failure to address her mental health issues. Mother’s Brief at 22-23. Mother
contends the trial court abused its discretion when it failed to consider the
emotional bonds Mother had with the children and the effect that terminating
those bonds would have on the children. Id. at 23.
In terminating Mother’s parental rights to the children, the trial court
relied on, inter alia, the testimony of Dr. Patricia Pepe, who conducted
evaluations of Mother, the children, and the children’s foster parents. Trial
Court Opinion, 1/2/20, at 7. The trial court stated,
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The most compelling evidence that Mother is incapable of meeting
the needs and welfare of her children begins with her mental
health disorders. Her failure to appreciate the nature of her
issues, and her refusal to seek help to address these issues,
begins the long road to her multiple inabilities to provide a safe,
stable, and loving environment that would allow her children to
flourish.
Dr. Patricia Pepe conducted evaluations of Mother, the [] children,
[and the] foster parents. Upon completion of the evaluation of
N.G., Dr. Pepe recommended a pediatric neurological evaluation
and a pediatric neuropsychological evaluation. After performing
an evaluation of Mother in 2018, Dr. Pepe diagnosed Mother with
[o]piate [u]se [d]isorder in early remission on maintenance
therapy, [a]nti-[s]ocial [p]ersonality [d]isorder, and [n]arcissistic
[p]ersonality [d]isorder. As part of Mother's evaluation, Dr. Pepe
conducted multiple psychological tests to aid in making her
diagnoses. In doing so, Mother was found to have distorted
thinking[,] which may manifest through frequent mood changes,
impulse control, or anger control. Mother was also found to
evidence persecutory thinking. These characteristics tend to
include [the] tendency to blame others, feelings of being
misunderstood, and projection of conflicts onto others. Also,
testing showed signs of rigidly virtuous characteristics. This is
displayed by an inflated sense of self[,] as well as belief in all
manners of their actions.
Dr. Pepe concluded that while Mother may initially participate in
plans to further her goals, she will have an inability to maintain
them. In her failure, she will have a tendency not to accept
responsibility but to project the reasoning as the fault of outside
forces. Dr. Pepe found this especially disturbing given Mother's
long history of substance abuse. People that [] exhibited this type
of psychological behavior without addressing those concerns show
higher rates of relapse and dependence on substance abuse. Dr.
Pepe attempted to explain her concerns to Mother in an effort to
help her understand the need to engage in long[-]term mental
health care. Mother's response was that she saw her own
therapist[,] who disagreed with Dr. Pepe's diagnosis. Further, the
statement[,] in and of itself[,] shows a lack of understanding of
her illness, denial, and projection, all of which Dr. Pepe set forth
as problems found with the type of psychological disorder
[Mother] displays.
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Dr. Pepe also had the opportunity to conduct interactional
evaluations between the children and their respective foster
parents. E.L. and her foster parents showed a strong bond and a
positive development of this child. Not surprisingly, E.L. shows a
parental bond with [her] foster parents as opposed to Mother, in
that E.L. [] remained with [the] foster parents from the time of
her birth. As to the boys[,] N.G. and J.G., Dr. Pepe found that
their early childhood with Mother was subject to great neglect and
instability due to her drug abuse. This neglect was more manifest
in [N.G.,] who referenced enjoying the foster home due to the
care, stability, and availability of food. Dr. Pepe found that even
though N.G. might miss [Mother] to some degree upon the
severance of the parental bond, [] given Mother's continued
instability[,] it would be in[] his best interest to be adopted by his
foster parents. Any bond that existed, if allowed to continue in
the fashion as evidenced by Mother's past behavior, would not be
a healthy bond, and in fact detrimental to his well-being.
Id. at 7-8.
A review of the record demonstrates that E.L., having been in the care
of her foster parents since the time of birth, “acts towards [the foster parents]
as one would expect any two-year[-]old [child] to act toward [his or her]
parent.” N.T., 10/4/19, at 26, 232. E.L. refers to her foster parents as “mom”
and “dad.” Id. at 27. In examining the effect that termination of Mother’s
parental rights would have on E.L., Dr. Pepe opined that E.L., due to her young
age, would not have a good cognitive understanding of what it would mean to
remove Mother from her life. Id. at 165. E.L.’s foster parents are the only
family E.L. has known, and E.L. exhibits a positive and primary attachment to
her foster parents. Id. at 157. Dr. Pepe explained that the impact of breaking
the primary bond E.L. has with her foster parents would have a significant
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psychological and neurological implication on E.L. both in the present and in
the future. Id. at 157-158.
N.G. exhibited some parental bonding with Mother, as demonstrated by
his acknowledgement that he would feel sad if he could not continue to see
Mother. Id. at 158. N.G., however, continued to maintain that he preferred
to remain with his foster parents due to the stability and security that they
provided him. Id. at 155-158. N.G. described his living conditions with
Mother as “very poor” and cited as an example that he was not potty trained
until he was six years old. Id. at 149-150. N.G. remarked, “I know my
mother didn’t take care of me” and he sometimes referred to Mother by her
first name rather than “mother.” Id. at 125, 145. N.G.’s foster parents meet
his educational, medical, developmental, and home-life needs, such as
providing food. Id. at 97-98.
J.G.’s primary attachment was with his foster parents, and he did not
have a traditional parental bond with Mother. Id. at 169, 172. J.G. had less
familiarity with Mother than his older brother, N.G., due to his age, and he
was less expressive of his feelings. Id. at 158, 165. J.G. had a greater sense
of safety and security with his foster parents that was absent from his
experience with Mother. Id. at 169. Dr. Pepe opined that the severance of
J.G.’s parental bond with Mother would not be “excruciating” for him because
he viewed Mother as someone that he visited rather than someone in the role
of parent. Id.
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Dr. Pepe expressed concern about Mother’s current living arrangements
with an individual that Mother admitted involved intimate partner violence.
Id. at 159. Dr. Pepe remarked that her concern stemmed from the fact that
“children who grow up in homes with domestic violence or intimate partner
violence . . . have almost a 100 percent chance of being a perpetrator or victim
in their future.” Id. In support of the termination of Mother’s parental rights,
Dr. Pepe stated,
If you look at what best interest standards are, [it is] who is
capable of providing stability and nurturance. [Who is] capable of
insuring that the children are being able to succeed. [Who is]
capable of providing them with consistency. Continuity is very
important for children.
I think the issues of the previous neglect and the history of drug
use [] had a toll on the children. The [Adoption Act] states that
there needs to be stability and continuity in the children’s
education, family life, [and] community life. [W]hat the children
have expressed [must also be considered]. Of course[,] [E.L. has
not] expressed anything [due to her age.]
It seems that the foster parents are[,] at this point[,] more likely
to maintain a loving, stable, consistent, [and] nurturing
relationship with the [children. The foster parents are] able to
adequately meet the [children’s] emotional needs. So I see them
as being at a better level to provide[.]
Id. at 161-162.
Based upon a review of the record, we find competent record evidence
to support the trial court’s conclusion that termination of Mother’s parental
rights to N.G., J.G., and E.L. serves the best interests of the children. The
evidence supports that a limited parent-child bond existed between Mother
and each of the children and that these bonds could be severed without
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causing a detrimental effect on the children. Moreover, the record supports
that the foster parents are in the best positions to satisfy the safety needs of
the children by providing, inter alia, stability and security. 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 each of the children
is in the best interest of the child.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
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