In the Interest of M.C.S., Appeal of: V.H. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF M.C.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: V.H., MOTHER :
:
:
:
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: No. 371 WDA 2020
Appeal from the Order Entered February 5, 2020
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): 42-18-0254
IN THE INTEREST OF: S.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: V.H., MOTHER :
:
:
:
:
: No. 372 WDA 2020
Appeal from the Order Dated February 5, 2020
In the Court of Common Pleas of McKean County Orphans' Court at
No(s): No. 42-18-0255
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 03, 2020
V.H. (“Mother”) appeals the order terminating her parental rights to
M.S. and S.S. (collectively, “Children”). Mother argues the trial court erred in
finding the evidence supported the involuntary termination of her rights. We
affirm.
In December 2016, the trial court granted McKean County Children and
Youth Services (“CYS”) emergency custody of M.S., born December 2014. S.S.
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was born in February 2018, and the court granted CYS’s request for
emergency custody the following month, in March 2018. In October 2018, CYS
filed a petition for involuntary termination of Mother’s parental rights as to
both Children.
Mother and S.S. (“Father”)1 were in a volatile and abusive relationship.
Police responded to the home of Mother and Father on numerous occasions
for domestic disputes. N.T., 10/25/19, at 43. One such incident occurred in
February 2017, when Mother went to the emergency room for a head injury,
and informed the emergency room nurse that Father had hit her with a closed
fist. Mother continued to be in a relationship with Father until at least May
2018, and there continued to be episodes of physical violence, including an
incident in March 2018 that resulted in criminal charges being filed against
both Mother and Father. Id. at 36-43; N.T., 7/26/19, at155.
Sometime after May 2018, Mother began a relationship with another
individual. N.T., 1/17/20, at 21. At the time of the hearing on the petition to
terminate, Mother resided with this individual and was expecting a child with
him. Id. at 26-27. Neither Mother nor her boyfriend testified at the hearing,
and the record contains little evidence regarding the boyfriend or the
relationship.
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1 CYS filed a petition to terminate Father’s parental rights, which the court
granted. Father appealed, and we address his appeals at dockets 365 WDA
2020 and 366 WDA 2020.
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Mother has not been consistent with visits with Children. She has at
times regularly visited them, but, during other periods, her attendance at
visits has been sporadic. See, e.g. N.T., 7/26/19, at 157-58; N.T., 10/25/19,
at 69-70. Further, Mother has difficulty interacting with Children during visits.
N.T., 10/25/19, at 78. When service providers are in the home, Mother follows
their directives. Id. However, Mother has difficulty following through and
implementing the skills taught by the providers when the providers are not
there. A CYS case worker, Shaina Burgett, testified that she supervised 25
visits with Mother, and Mother canceled 14 other visits. N.T., 11/8/19, at 9.
She testified that Mother was occupied on her phone during much of the visits.
Id. at 10. She was “more hands on . . . when . . . the Nurse Educator . . . or
Parents as Teachers were there and . . . once visits were moved to the office.”
Id.
Testimony from numerous case workers established that Mother had
difficulty with Children, and that Children were upset prior to the visits, and
did not want to attend. See id. at 15 (M.S. would yell and cry when the case
worker arrived to take him to visits); id. at 56 (Children would cry and not
want to get into the car to go to visits); N.T., 1/17/20, at 40 (M.S. would hide
and say he did not want to go to visits).
M.H. (“Foster Mother”) testified regarding S.S.’s health issues. S.S. has
had pneumonia five times, and was twice life-flighted to the Children’s Hospital
of Pittsburgh, in December 2018 and June 2019. N.T., 1/17/20, at 193. In
December 2018, Foster Mother texted Mother about S.S.’s condition. Id.
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Mother did not arrive at the hospital until the following afternoon. Id. at 196.
Although Mother remained at the hospital for the weekend, she spent most of
her time on her cell phone. Id. at 197. Foster Mother also notified Mother of
the June 2019 hospital stay, but Mother did not visit. Id. at 201. Foster Mother
further testified that she, not Mother, rode the helicopter with S.S., and that
she stepped in when medical providers were unable to place an I.V. in S.S.’s
arm, insisting they wait for the helicopter, when more experienced
professionals could assist. Id. at 249.
Mother’s goals included obtaining mental health treatment. A therapist
at The Guidance Center, Lennis Watkins, provided Mother with outpatient
therapy, starting in January 2018. N.T., 7/26/19, at 9. He recommended
Mother attend twice per week, but, over a 14-month period, she attended only
12 appointments. Id. at 9-10. Mother was discharged June 2019 due to non-
attendance. Id. at 12.
An expert in clinical psychology and in bonding assessments, Dr. Peter
von Korff, testified that M.S. does not accept Mother as a parental figure, and
that his relationship with Mother is “insecure.” Id. at 52. He testified that
Mother expresses an interest in having a relationship with Children and
providing care, but “is ineffective in following through.” Id. at 50. M.S.
struggles with visits with Mother, and M.S. was “very reluctant” and “slow and
hesitant” to approach Mother. Id. at 48. Dr. von Korff testified that S.S. was
not comfortable with Mother, and was eager to return to Foster Mother and
D.H. (“Foster Father”) (collectively “Foster Parents”). Id. at 56.
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Dr. von Korff testified that, although it may be possible for Mother to
form a “primary bond” with Children, he questioned whether that bond would
be secure. Id. at 77. Dr. von Korff testified that it would be to Children’s
advantage to remain with Foster Parents, and Children would not suffer
significant emotional harm if the court terminated Mother’s rights. Id. at 71.
He testified that although M.S. has a “tentative relationship with both
[Parents], that his secure functioning is with the [Foster Parents], and that if
severance takes place, that he will be able to rely on that secure functioning.”
Id. at 79.
The trial court terminated Mother’s rights to Children, finding
termination proper under Subsections 2511(a)(1), (2), (5), and (8), and
Section 2511(b) of the Adoption Act. Mother filed a timely notice of appeal.
Mother raises the following issue: “Whether the trial court erred in
finding that the evidence admitted at trial was sufficient to support an
involuntary termination of parental rights?” Mother’s Br. at 4.
When we review termination of parental rights cases, we “accept the
findings of fact and credibility determinations of the trial court if they are
supported by the record.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citation
omitted). “If the factual findings have support in the record, we then
determine if the trial court committed an error of law or abuse of discretion.”
In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018). We may
reverse a trial court decision “for an abuse of discretion only upon
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demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-
will.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. See
In re Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence
means evidence “that is so clear, direct, weighty, and convincing as to enable
the trier of fact to come to a clear conviction, without hesitation, of the truth
of the precise facts in issue.” Id. (citation omitted).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under
Section 2511, the trial court must engage in a bifurcated analysis 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.
Id. (citations omitted). To affirm, “we need only agree with [the trial court’s]
decision as to any one subsection” of 2511(a), as well as its decision as to
Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en
banc).
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Here, the trial court terminated Mother’s parental rights pursuant to
multiple subsections of Section 2511(a), including subsection (a)(1). That
subsection provides:
(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:
(1) The parent by conduct continuing for a period of at least
six months immediately preceding the filing of the petition
either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform
parental duties.
23 Pa.C.S.A. § 2511(a)(1). “With respect to any petition filed pursuant to
subsection (a)(1) . . . , 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).
Subsection 2511(a)(1) requires the moving party to prove by clear and
convincing evidence that the subject parent engaged in “conduct, sustained
for at least the six months prior to the filing of the termination petition, which
reveals a settled intent to relinquish parental claim to a child or a refusal or
failure to perform parental duties.” In re Z.S.W., 946 A.2d 726, 730
(Pa.Super. 2008). The parental obligation is a “positive duty which requires
affirmative performance” and “cannot be met by a merely passive interest in
the development of the child.” In re C.M.S., 832 A.2d 457, 462 (Pa.Super.
2003) (quoting In re Burns, 379 A.2d 535, 540 (Pa. 1977)). Indeed,
[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every
problem, in order to maintain the parent-child relationship
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to the best of his or her ability, even in difficult
circumstances. A parent must utilize all available resources
to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path
of maintaining the parent-child relationship. Parental rights
are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities
while others provide the child with his or her physical and
emotional needs.
In re B., N.M., 856 A.2d 847, 855 (Pa.Super. 2004) (citations omitted).
The trial court concluded CYS presented clear and convincing evidence
of grounds for termination of parental rights under Section 2511(a)(1):
Parents are required to act affirmatively with good faith
interest and effort to perform parental duties. Mother [has]
not done that. . . .
Services have been provided for Mother and she has
cooperated with providers. However, she has failed to retain
and utilize proper parenting skills once the service providers
are gone. Mother is easily distracted from parenting by her
own life concerns and interests. She has missed many visits
and had a problem focusing on her phone and not the
children during visits. After she was ordered by the court to
not use her cellphone during visits, Mother has had more
interaction with the children during the visits. However,
Mother still struggles with ascertaining the children’s needs
and interacting with them. She has great difficulty
controlling behavior. After years of services and visits
Mother still is not in a position to provide appropriate care
for the children.
After the termination petition was filed Mother’s life became
more stable. She is residing with her current paramour at
his residence. His home appears appropriate and he appears
to motivate Mother to have visits and contact with the
children. However, these recent developments occurred
after the termination petition was filled. Therefore, their
legal significance is limited. In addition, Mother and her
paramour did not testify at the termination hearings.
Therefore, there is limited evidence in the record to support
the assertion that Mother’s current relationship with her
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paramour is stable; and, that it would be beneficial for the
children to have extended contact with Mother’s paramour.
Very little is known about Mother’s paramour.
What is known is that Mother has a very strained
relationship with the children. M.S. does not benefit from
visits with his Mother. He is greatly emotionally troubled by
them. He agonizes and dreads the visits. He has gone so far
as to insist that [Foster Parents] are his birth parents,
insisting that they brought him home from the hospital. He
recognizes the stability that he has with [Foster Parents]
and the instability he has had regarding Parents. He
desperately does not want to lose that stability.
S.S. has no connection to Parents as she has had limited
contact with them; and, [Foster Parents] have provided care
and support for her since she was born. There are numerous
examples of the care and support [Foster Parents] have
provided for both children in this record (and Parents’
unavailability). One in particular demonstrates both the
commitment [Foster Parents] have to the children and the
children’s recognition of [Foster Parents] as their parental
figures. [Foster Mother] described S.S’s first life flight[] to
Pittsburgh. S.S. was in desperate need of an IV. It was
required before she take the flight and needed as she was
dehydrated. Parents were not at the hospital and S.S. was
in [Foster Mother’s] arms. The medical staff attempted,
again and again, to stick a needle in her and find one of her
tiny veins. S.S. would scream and squirm each time an
attempt was made. [Foster Mother], looking out for S.S.,
said: “enough,” telling the medical staff that the team on
the helicopter had more experience inserting an IV in a
young child and they needed to wait until they arrived.
[Foster Mother] was the one there when the flight team
arrived, when they grabbed S.S. and held her down while
they inserted a needle in her to give her the IV. [Foster
Mother] was the one that heard the bab[y]’s terrified
screams and she was the one that comforted S.S.
afterwards.
Regarding the statutory grounds for termination the court
finds that CYS has established, by clear and convincing
evidence, the following: For over twelve months . . . Mother
. . . ha[s] been unable to provide safe and appropriate care
for S.S. and ha[s] failed to make reasonable efforts towards
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reunification. By [her] actions and [her] inaction [she has]
demonstrated a settled purpose to relinquish and/or refuse
to perform their parental duties. In addition, the cause of
the Parents’ inability to take any meaningful action is
unlikely, even with the assistance of reasonable services or
assistance, to be remedied in the future.
Trial Court Opinion (“1925(a) Op.”), filed Feb. 5, 2020, at 12-14.
The court did not err as a matter of law or abuse its discretion. Mother’s
conduct prior to the filing of the termination petition, and sustained for at least
six months before the filing, revealed a settled intent to relinquish parental
claim to a child or a refusal or failure to perform parental duties. Mother did
not consistently visit with Children, continued to have a relationship with
Father, and did not follow through with her mental health treatment or other
permanency goals.
We next must determine whether termination was proper under Section
2511(b). Under Section 2511(b), the court must consider “the developmental,
physical and emotional needs and welfare of the child” to determine if
termination of parental rights is in the child’s best interest. See 23 Pa.C.S.A.
§ 2511(b). The focus under Section 2511(b) is not on the parent, but on the
child. In re Adoption of R.J.S., 901 A.2d 502, 514 (Pa.Super. 2006). This
analysis involves “[i]ntangibles such as love, comfort, security, and stability.
. . .” In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005). 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.Importantly, “[t]he mere existence of an emotional bond does not preclude
the termination of parental rights.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super.
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2011). Rather, the trial court “must examine the status of the bond to
determine whether its termination would destroy an existing, necessary and
beneficial relationship.” Id. (internal quotation marks and citation omitted).
Further, “[c]ommon sense dictates that courts considering termination must
also consider whether the children are in a pre-adoptive home and whether
they have a bond with their foster parents.” In re T.S.M., 71 A.3d at 268.
The trial court concluded termination would best meet S.S. and M.S.’s
developmental, physical, and emotional needs and welfare. The court found
that both S.S. and M.S. know Foster Parents are there for them, good or bad,
and M.S. had a negative bond with Mother, while S.S. had no bond with her:
M.S. has a negative bond with Parents. He has already,
despite what the court or others may say, concluded that
[Foster Parents] are his parental figures and providers. It
would be beneficial to M.S. to sever the negative bond he
has with Parents and provide him with assurance that the
stability he has experienced with [Foster Parents] will be
permanent. It would be extremely traumatic to M.S. and
S.S. to expand visits with Parents or place them in their
care. S.S. has a strong bond with [Foster Parents] and no
bond with Parents. Therefore, it best fulfills her needs and
welfare to terminate parental rights and allow [Foster
Parents] to adopt [S.S.] and M.S.
1925(a) Op. at 14.
The trial court did not err or abuse its discretion in finding termination
would best meet Children’s physical, social, and emotionally needs and
welfare. The testimony at the hearing, including from Dr. von Korff, was that
S.S. did not have a bond with Mother and M.S. had a negative bond. However,
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Children had a positive bond with Foster Parents, to whom they look for love
and support.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2020
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