Adoption of: K.M.L., Appeal of: E.S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: THE ADOPTION : IN THE SUPERIOR COURT OF
OF: K.M.L : PENNSYLVANIA
:
:
APPEAL OF: E.S., NATURAL MOTHER :
:
:
:
: No. 164 WDA 2020
Appeal from the Decree Entered December 30, 2019
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
108 In Adoption 2019
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2020
E.S. (“Mother”) appeals from the December 30, 2019 decree
terminating her parental rights to her daughter, K.M.L.1 We affirm.
K.M.L. was born in July 2010. The Erie County Office of Children and
Youth (“OCY”) has been involved with the family since 2015, based upon
concerns that Mother and her paramour abused and neglected K.M.L. and her
younger half-brother, C.B.2 In 2016, K.M.L. was diagnosed with attention
deficit hyperactivity disorder and anxiety disorder. Similarly, she presents
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1 As the child’s father, S.H., is deceased, he was not a party to the involuntary
termination proceedings or this appeal.
2 The agency did not petition to terminate Mother’s rights to C.B., who was
returned to the care and custody of his biological father during May or June of
2019.
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with trauma and significant bonding and attachment problems. She also
exhibits substantial behavioral issues, including acting out sexually. OCY
provided the family in-home services for approximately two years, and on May
23, 2017, the juvenile court adjudicated K.M.L. dependent due to Mother’s
failure to follow through with services, and ongoing concerns over domestic
violence.
K.M.L. remained in the home until October 1, 2018, when OCY obtained
an emergency protective order placing the child in the agency’s physical
custody. In addition to Mother’s continued neglect of the children, their
removal stemmed from suspicious3 bruising around K.M.L.’s eye and
unexplained second-degree burns on the palm of K.M.L.’s hand.
The orphans’ court succinctly summarized Mother’s engagement with
the agency over the ensuing year as follows:
At the time of the [February 4, 2019 permanency review] hearing,
[Mother] appeared with counsel. During this review period, the
Court found [Mother] had been minimally compliant with the
permanency plan, and there was minimal progress toward
alleviating the circumstances which necessitated the original
placement of the minor child. [Mother] participated in supervised
visits with the child, but continued to be inconsistent and had a
difficult time engaging with the minor child, requiring redirection
from inappropriate discussions with the child. [She] presented at
one supervised visit with a swollen and bruised nose, and a report
was received on November 8, 2018, regarding ongoing domestic
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3 Although Mother claimed that the black eye was the result of K.M.L. wrestling
with C.B., the agency was concerned because K.M.L. had a history of similar
injuries under suspicious circumstances. Indeed, Mother previously claimed
that three separate black eyes were the result of KML running into doorknobs.
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violence in the home of Appellant and her paramour, K.B. The
[c]ourt ordered that the minor child was to remain in temporary
foster care. . . .
[Having moved from Erie County to Union County4 the previous
month, Mother] failed to appear for the scheduled hearing [on
August 5, 2019,] but her interests were represented by counsel.
During this review period, [Mother] continued to be minimally
compliant with [c]ourt ordered services. [She] continued to
display a negative attitude towards the minor child[, and] . . .
failed to actively participate in any of the services offered to her.
Of great concern, [Mother] continued to reside with her paramour,
K.B., who was an indicated perpetrator of sexual abuse[against
K.M.L.5] and who had been alleged to have hit the minor child in
the face on three occasions, resulting in black eyes. The [c]ourt
ordered that the minor child was to remain in foster care. Further,
the [c]ourt ordered the permanent placement goal for the minor
child to be changed to [a]doption. It was ordered that OCY was
to no longer offer any services to the mother, including visitation.
...
On October 4, 2019, OCY filed a Petition for Involuntary
Termination of Parental Rights (hereinafter "IVT Petition"),
seeking to terminate the parental rights of Appellant pursuant to
23 Pa.C.S.A. §§ 2511(a)(1), (a)(2), (a)(5), (a)(8), and §2511(b).
Trial Court Opinion, 2/28/20, at 4-5.
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4 Mother neglected to request that the juvenile court transfer services to Union
County. N.T., 12/16/19, at 14. She has not contacted the child or the agency
since relocating, although she reportedly vowed to “fight to get her daughter
back.” Id. at 15.
5 Highlighting that the authorities did not charge K.B. for sexual assault,
Mother committedly defended her paramour, even referring to K.M.L. as “a
little liar.” N.T., 12/16/19, at 12, 45-46.
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During the ensuing evidentiary hearing, Alison Scarpitti, Esquire
represented K.M.L.’s legal interest pursuant to 23 Pa.C.S. § 2313(a).6 Mother,
who was represented by counsel, participated by telephone and stipulated to
the admission of the July 2019 bonding assessment performed by Peter von
Korff, Ph.D. and a July 17, 2019 report from Erie Homes for Children and
Adults/Project First Step. OCY presented the testimony of Mary Bliley, the
family’s caseworker, and Nicole Seelbach, the child’s permanency caseworker.
In sum, Ms. Bliley testified: 1) Mother failed to address the concerns that
necessitated the child’s placement; 2) termination of Mother’s parental rights
would serve K.M.L.’s best interest; and 3) severing the parent/child bond
would not affect the child negatively. Similarly, Ms. Seelbach testified that
the termination of Mother’s parental rights would serve the child’s best
interest, again without negative effect, even though an adoptive resource has
not been identified. She observed that then-ten-year-old K.M.L. has a
committed desire to be adopted by “a forever home . . . that will love her.”
N.T. 12/16/19, at 33.
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6 Attorney Scarpitti informed the court that she discussed the case with K.M.L.,
who desires to be adopted, and advised the court that she was able to
represent the child’s legal interests and best interest without conflict. N.T.,
12/16/19, at 58-59. See In re Adoption of L.B.M., 161 A.3d 172, 175, 180
(Pa. 2017) (plurality) (pursuant to 23 Pa.C.S. § 2313(a), child subject of
contested involuntary termination proceeding has statutory right to counsel
who discerns and advocates for the child’s legal interests). Attorney Scarpitti
filed a brief in this Court in support of the orphans’ court decree terminating
Mother’s parental rights.
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On December 16, 2019, the orphans’ court granted OCY’s petition to
terminate Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1),
(a)(2), (a)(5), (a)(8), and § 2511(b). Mother filed a timely notice of appeal
and a concise statement of errors complained of on appeal challenging the
trial court’s determinations under subsections (a)(2), (a)(5), (a)(8), and
§2511(b). She reiterates those issues on appeal as follows:
A. Whether the orphans' court committed an error of law
and/or abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing evidence
pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5) and (8)?
B. Whether the orphans' court committed an error of law
and/or abused its discretion when it concluded that termination of
parental rights was supported by clear and convincing evidence
pursuant to 23 Pa.C.S.A. § 2511(b)?
Mother’s brief at 3.7
In matters involving the 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
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7 Mother’s challenge as to subsection (a)(1) is waived because she failed to
preserve this claim in her Rule 1925(b) statement and the orphans’ court did
not address it. See Krebs v. United Refining Co., 893 A.2d 776, 797
(Pa.Super. 2006) (stating that a failure to preserve issues by raising them
both in the concise statement of errors complained of on appeal and statement
of questions involved portion of the brief on appeal results in a waiver of those
issues).
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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). “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.
& J.G., 855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted). “[I]f
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) (citation omitted).
Significantly, since this Court may affirm the orphans’ court’s decision
regarding the termination of parental rights with regard to any one subsection
of § 2511(a) as well as (b), see In re B.L.W., 843 A.2d 380, 384 (Pa.Super.
2004) (en banc), and because Mother waived her challenge to the orphans’
court’s conclusion that OCY proved the statutory grounds outlined in
§ 2511(a)(1), we need only address the court’s 2511(b) analysis.
The pertinent subsection of the Adoption Act provides as follows:
(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
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to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(b).
In relation to the needs and welfare analysis, this Court observed,
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 subsection 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.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. 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 C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (cleaned up).
After a thorough review of the certified record, the pertinent briefs, and
the pertinent law, we affirm the involuntary termination decree on the basis
of the cogent and well-reasoned opinion entered on February 28, 2020, by the
Honorable John J. Trucilla. Specifically, President Judge Trucilla concluded
that OCY presented clear and convincing evidence that terminating Mother’s
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parental rights would best serve K.M.L.’s developmental, physical, and
emotional needs and welfare pursuant to § 2511(b). Orphans’ Court Opinion,
2/28/20, at 13-15. We adopt President Judge Trucilla’s reasoning as our own.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2020
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Circulated 10/27/2020 11:37 AM