In Re: Adoption of: L.B.M., A Minor ( 2016 )

J-S31001-16 & J-S31002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: L.B.M., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: J.P., MOTHER
No. 1834 MDA 2015
Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Orphans' Court at No(s): 42-Adopt-2014
IN RE: ADOPTION OF: A.D.M., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: J.P., MOTHER
No. 1835 MDA 2015
Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Orphans' Court at No(s): 41-Adopt-2014
IN THE INTEREST OF: L.B.M., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: J.P.
No. 1836 MDA 2015
Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Juvenile Division at No(s): CP-28-DP-0000050-2013
J-S31001-16 & J-S31002-16
IN THE INTEREST OF: A.D.M., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
APPEAL OF: J.P.
No. 1837 MDA 2015
Appeal from the Order Entered September 25, 2015
In the Court of Common Pleas of Franklin County
Juvenile Division at No(s): CP-28-DP-0000051-2013
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 31, 2016
J.P. (“Mother”) appeals from the orders involuntarily terminating her
parental rights to her sons, L.B.M. (born in May of 2011) and A.D.M. (born in
March of 2007) (collectively “the Boys”), changing their permanency goals to
adoption, and denying Mother’s motion to modify placement.1 We affirm.
Mother voluntarily referred the Boys to Franklin County Children and
Youth Service (“the Agency”) on or about July 3, 2013, because she was
without proper housing and resources to care for them.2 Following a shelter
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
This Court sua sponte consolidated the above-captioned appeals. Order,
11/20/15.
2
The Boys’ natural father, J.D.M. (“Father”), was incarcerated at the time of
their placement. Father’s rights were involuntarily terminated by order of
court on November 25, 2014. This Court affirmed that decision. In re
(Footnote Continued Next Page)
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care hearing on July 5, 2013, the Boys remained in the Agency’s care.
Following a hearing on July 11, 2013, the Boys were adjudicated dependent
pursuant to 42 Pa.C.S. § 6302(1) and placed in foster care. The trial court
appointed Attorney Kristen Hamilton as the Boys’ guardian ad litem (“the
GAL”). Order of Court, 7/8/13.
During the Boys’ placement, the trial court conducted six permanency
review hearings: October 8, 2013; January 2, 2014; April 14, 2014;
October 3, 2014; January 26, 2015; and May 19, 2015. At each hearing,
Mother was ordered to obtain suitable housing and financial stability, to
maintain consistent visitation with the Boys, to comply with the terms of her
criminal sentence and probation, and to participate in a psychological
evaluation and follow any recommendations. As of April of 2014, Mother
was not compliant with her permanency plan. Permanency Review Order,
4/21/14, at 1. Moreover, since the Boys’ placement, Mother had been
incarcerated four times: 7/5/13 to 10/2/13; 10/24/13 to 11/6/13; 12/12/13
to 4/24/14; and 5/5/14 to 6/20/14. Permanency Review Order, 11/25/14,
at 1; N.T., 10/3/14, at 12.
The Agency filed a petition for termination of Mother’s parental rights
on August 6, 2014. Following a hearing on October 3 and 24, 2014, the trial
court declined to terminate Mother’s parental rights due to the Agency’s
_______________________
(Footnote Continued)
L.B.M., 94 MDA 2015, 122 A.3d 1132 (filed June 15, 2015) (unpublished
memorandum).
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failure to establish by clear and convincing evidence grounds under section
2511(a)(2), (5), or (8), and due to Mother’s demonstrated progress, her
stable housing and employment, and the emotional bond between Mother
and the Boys, especially A.D.M. Decree, 11/25/14, at 13–21.
Mother filed a motion for modification of placement on July 2, 2015,
requesting that the Boys be placed with their maternal grandparents:
grandmother B.O. and step-grandfather R.O. Motion for Modification of
Placement, 7/2/15, at ¶¶ 4–10. The GAL and the Agency filed answers on
July 15, 2015, and July 20, 2015, respectively, opposing modification of the
Boys’ placement in foster care.
The GAL filed a petition for termination of mother’s parental rights on
August 4, 2015 (“the Petition”), and a motion to incorporate the previous
proceedings on August 28, 2015. Mother filed a motion to appoint counsel
for the Boys on August 8, 2015, to which the Agency and the GAL filed
separate answers on August 31, 2015. The trial court granted the GAL’s
motion to incorporate the prior proceedings and denied Mother’s request for
counsel. Orders of Court, 9/19/15.
The trial court held a hearing on the GAL’s petition for termination and
simultaneously received evidence on Mother’s motion for modification of
placement on September 15 and 18, 2015. In separate orders, the trial
court denied Mother’s motion for modification, terminated Mother’s parental
rights to the Boys pursuant to 23 Pa.C.S. § 2511(a)(2), (5), and (8), and
changed their permanency goals to adoption. Orders of Court, 9/22/15, and
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9/25/15. Mother filed a timely notice of appeal and a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on
October 20, 2015. Thereafter, the trial court filed its Pa.R.A.P. 1925(a)
opinion on December 7, 2015.
Mother presents the following statement of issues for our review:
1. The trial court erred in determining that the Guardian Ad
Litem established the statutory grounds by clear and
convincing evidence for terminating [Mother’s] parental rights
pursuant to 23 Pa.C.S. § 2511(a)(2), (a)(5) and (a)(8) when
Mother voluntarily sought the initial placement of the [Boys]
due to homelessness, remedied the conditions which led to
the voluntary placement of the [Boys] by having stable
housing for over a year, and exhibited a strong bond with the
[Boys].
2. The trial court erred in not appointing legal counsel for the
[Boys] in a contested involuntary termination of parental
rights hearing as required by a clear mandate of 23 Pa.C.S. §
2313(a) and particularly in light of the Guardian Ad Litem and
[A.D.M.’s] position on termination being oppositional; thus
making the Guardian Ad Litem unable to effectively and
adequately effectuate the duty of loyalty to [A.D.M.] required
as legal counsel.
3. The trial court erred in changing the goal from reunification to
adoption where a bond exists between Mother and the [Boys]
and where Mother made substantial progress toward the
circumstances which necessitated the original placement
when Mother had safe, stable housing and employment for
over a year, maintained consistent visitation with the [Boys],
and was compliant with her drug and alcohol treatment.
4. The trial court erred in denying Mother’s motion for the
[Boys] to be placed with their maternal grandparents when
the [Boys] had a relationship with their grandparents their
entire lives and the grandparents were approved as a kinship
placement by Family Care Services following a home study.
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Mother’s Brief at 4 (reformatted).
We review these appeals with the following standards in mind:
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. 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) (internal citations and quotation
marks omitted).
The termination of parental rights is governed by section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101–2938, which 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).
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In this case, the trial court terminated Mother’s parental rights
pursuant to section 2511(a)(2), (5), (8), and (b). We need only agree with
the trial court as to any one subsection of section 2511(a) in order to affirm.
In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Additionally,
pursuant to section 2511(b), the trial court must determine whether
termination of parental rights would best serve the developmental, physical
and emotional needs of the child. In re C.M.S., 884 A.2d 1284, 1286–1287
(Pa. Super. 2005). “Intangibles such as love, comfort, security, and stability
are involved in the inquiry into the needs and welfare of the child.” Id. at
1287 (citation omitted). We have 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.
We analyze the trial court’s decision to terminate under section
2511(a)(2) and (b), which provide as follows:
(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.
* * *
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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. § 2511(a)(2) and (b).
Disposition of a dependent child is governed by section 6351(e), (f),
(f.1), (f.2), and (g) of the Juvenile Act, 42 Pa.C.S. §§ 6301–6375, which
provides the trial court with the criteria for its permanency plan for the
subject child. “Pursuant to those subsections of the Juvenile Act, the trial
court is to determine the disposition that is best suited to the safety,
protection and physical, mental and moral welfare of the child.” M.T., 101
A.3d at 1173.
Section 6351(e) of the Juvenile Act provides in pertinent part:
(e) Permanency hearings.—
(1) [t]he court shall conduct a permanency hearing for the
purpose of determining or reviewing the permanency plan of the
child, the date by which the goal of permanency for the child
might be achieved and whether placement continues to be best
suited to the safety, protection and physical, mental and moral
welfare of the child....
42 Pa.C.S. § 6351(e). Subsections 6351(f), (f.1), (f.2), and (g) prescribe
the pertinent inquiry for the reviewing court:
(f) Matters to be determined at permanency hearing.—
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At each permanency hearing, a court shall determine all of the
following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of compliance
with the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current placement
goal for the child.
(5) The likely date by which the placement goal for the child
might be achieved.
(5.1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
(6) Whether the child is safe.
* * *
(9) If the child has been in placement for at least 15 of the last
22 months or the court has determined that aggravated
circumstances exist and that reasonable efforts to prevent or
eliminate the need to remove the child from the child's parent,
guardian or custodian or to preserve and reunify the family need
not be made or continue to be made, whether the county agency
has filed or sought to join an petition to terminate parental rights
and to identify, recruit, process and approve a qualified family to
adopt the child unless:
(i) the child is being cared for by a relative best
suited to the physical, mental and moral welfare of
the child;
(ii) the county agency has documented a compelling
reason for determining that filing a petition to
terminate parental rights would not serve the needs
and welfare of the child; or
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(iii) the child’s family has not been provided with
necessary services to achieve the safe return to the
child’s parent, guardian or custodian within the time
frames set forth in the permanency plan.
(f.1) Additional determination.—Based upon the
determinations made under subsection (f) and all relevant
evidence presented at the hearing, the court shall determine one
of the following:
(1) If and when the child will be returned to the child’s parent,
guardian or custodian in cases where the return of the child is
best suited to the safety, protection and physical, mental and
moral welfare of the child.
(2) If and when the child will be placed for adoption, and the
county agency will file for termination of parental rights in cases
where return to the child’s parent, guardian or custodian is not
best suited to the safety, protection and physical, mental and
moral welfare of the child.
(3) If and when the child will be placed with a legal custodian in
cases where return to the child’s parent, guardian or custodian
or being placed for adoption is not best suited to the safety,
protection and physical, mental and moral welfare of the child.
(4) If and when the child will be placed with a fit and willing
relative in cases where return to the child’s parent, guardian or
custodian, being placed for adoption or being placed with a legal
custodian is not best suited to the safety, protection and
physical, mental and moral welfare of the child.
(5) If and when the child will be placed in another living
arrangement intended to be permanent in nature which is
approved by the court in cases where the county agency has
documented a compelling reason that it would not be best suited
to the safety, protection and physical, mental and moral welfare
of the child to be returned to the child’s parent, guardian or
custodian, to be placed for adoption, to be placed with a legal
custodian or to be placed with a fit and willing relative.
(f.2) Evidence.—Evidence of conduct by the parent that places
the health, safety or welfare of the child at risk, including
evidence of the use of alcohol or a controlled substance that
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places the health, safety or welfare of the child at risk, shall be
presented to the court by the county agency or any other party
at any disposition or permanency hearing whether or not the
conduct was the basis for the determination of dependency.
(g) Court order.—On the basis of the determination made
under subsection (f.1), the court shall order the continuation,
modification or termination of placement or other disposition
which is best suited to the safety, protection and physical,
mental and moral welfare of the child.
42 Pa.C.S. § 6351(e), (f), (f.1), (f.2), and (g).
In a change of goal proceeding, the best interests of the
child, and not the interests of the parent, must guide the trial
court, and the parent’s rights are secondary. In re A.K., 936
A.2d 528, 532–533 (Pa.Super.2007). The burden is on the
[petitioner] to prove the change in goal would be in the child’s
best interests. In the Interest of M.B., 449 Pa.Super. 507,
674 A.2d 702, 704 (1996).
In re M.T., 101 A.3d 1163, 1173 (Pa. Super. 2014). Moreover, this Court
has stated:
The focus of all dependency proceedings, including change of
goal proceedings, must be on the safety, permanency, and well-
being of the child. The best interests of the child take
precedence over all other considerations, including the conduct
and the rights of the parent.... While parental progress toward
completion of a permanency plan is an important factor, it is not
to be elevated to determinative status, to the exclusion of all
other factors. In re A.K., 936 A.2d 528, 534 (Pa.Super.2007).
M.T., 101 A.3d at 1175; see also In re N.C., 909 A.2d 818, 823 (Pa.
Super. 2006) (granting goal change to adoption despite the fact that the
mother had made substantial progress toward completing her permanency
plan because mother’s parenting skills and judgment regarding her children’s
emotional well-being remained problematic).
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Regarding the placement of a child, a panel of this Court stated:
When a child is adjudicated dependent, the child’s proper
placement turns on what is in the child’s best interest, not on
what the parent wants or which goals the parent has achieved.
See In re Sweeney, 393 Pa.Super. 437, 574 A.2d 690, 691
(1990) (noting that “[o]nce a child is adjudicated dependent ...
the issues of custody and continuation of foster care are
determined by the child’s best interests”). Moreover, although
preserving the unity of the family is a purpose of the [Juvenile]
Act, another purpose is to ‘provide for the care, protection,
safety, and wholesome mental and physical development of
children coming within the provisions of this chapter.’ 42 Pa.C.S.
§ 6301(b)(1.1). Indeed, ‘[t]he relationship of parent and child is
a status and not a property right, and one in which the state has
an interest to protect the best interest of the child.’ In re
E.F.V., 315 Pa.Super. 246, 461 A.2d 1263, 1267 (1983).
In re K.C., 903 A.2d 12, 14–15 (Pa. Super. 2006). The primary purpose of
the disposition of a dependent child is to examine what is in the best interest
of the child. 42 Pa.C.S. § 6351(a); see In re Tameka M., 580 A.2d 750,
753 (Pa. 1990) (“In ordering a disposition under Section 6351 of the
Juvenile Act, the court acts not in the role of adjudicator reviewing the action
of an administrative agency, . . . rather the court acts pursuant to a
separate discretionary role with the purpose of meeting the child's best
interests.”) (quoting In re Lowry, 484 A.2d 383 (Pa. 1984)).
We have reviewed the briefs of the parties, the certified record, the
relevant law, and the opinion filed by the Honorable Carol L. Van Horn on
December 7, 2015. In doing so, we conclude that the trial court thoroughly
considered the facts as provided at the termination hearing. Additionally,
the trial court thoroughly analyzed the statutory factors for termination of
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parental rights pursuant to Pa.C.S. § 2511(a) and (b) and for a goal change
pursuant to 42 Pa.C.S. § 6351, as well as the procedures for modification of
placement pursuant to Pa.R.J.C.P. 1606 and the appointment of counsel
pursuant to 23 Pa.C.S. § 2313(a). Trial Court Opinion, 12/7/15, at 5–24,
29–44. Moreover, the trial court’s findings are supported by the record, and
we discern no abuse of its discretion in terminating Mother’s parental rights,
changing the Boys’ permanency goals to adoption, denying Mother’s motion
for modification of placement and her request for appointment of counsel.
Therefore, we affirm the trial court’s orders on the basis of its December 7,
2015 opinion.3
Orders affirmed.
Judge Ott joins the Memorandum.
Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2016
____________________________________________
3
The parties are directed to attach a redacted copy of that opinion in the
event of further proceedings in this matter.
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Circulated 04/29/2016 03:26 PM
IN THE COURT OF COMMON PLEAS OF THE 39TH .nJDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
IN RE: ADOPTION OF Orphans' Court Division
A.D.M.
41 - ADOPT - 2014
A Minor
IN RE: ADOPTION OF Honorable Carol L. Van Horn
L.B.M.
42 - ADOPT - 2014
A Minor
Honorable Carol L. Van Horn
IN INTEREST OF: Juvenile Court Division
A.D.M., CP-28-DP-0051-2013
A Minor Male Child
Born: March 12007
Honorable Carol L. Van Horn
IN INTERSEST OF:
L.B.M., CP-28-DP-0050-2013
A Minor Male Child
Born: Mayt 2011
Honorable Carol L. Van Hom
OPINION sur Pa.R.A.P. 1925(a) AND ORDER OF COURT
OEC 07 20t5
: I
Before Van Hom, P.J. II
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
IN RE: ADOPTION OF Orphans' Court Division
A.D.M.
41 - ADOPT - 2014
A Minor
IN RE: ADOPTION OF Honorable Carol L. Van Horn
L.B.M.
42 -ADOPT -2014
A Minor
Honorable Carol L. Van Horn
IN INTEREST OF: Juvenile Court Division
A.D.M., CP-28-DP-0051-2013
A Minor Male Child
Born: March' 2007
Honorable Carol L. Van Horn
IN INTERSEST OF:
L.B.M., CP-28-DP-0050-2013
A Minor Male Child
Born: May,2011
Honorable Carol L. Van Horn
STATEMENT OF CASE
A.D.M. was born on Marchi 2007, in Chambersburg, Pennsylvania. L.B.M. was born
on Mayl 2011, also in Chambersburg, Pennsylvania. J.L.P. ("Mother") is the natural mother of
A.D.M. and L.B.M. The boys' natural father is J.D.M. ("Father"). The boys came into the care of
Franklin County Children and Youth Service ("the Agency") pursuant to an Order of Court on
July 3, 2013. The placement was a result of a referral by Mother that she was without proper
housing and resources to continue to care for the boys. At the outset of the dependency
1
" \
II
!
\
proceedings Kristen Hamilton, Esquire, was appointed as the boys' Guardian Ad Litem.
("GAL"). As of the date of the current Petition was filed, the boys have been in placement for
l
I
over 24 months.
On August 6, 2014, the Agency filed a Petition for Termination of Parental Rights of I \
Mother and Father. On October 3, 2014, and October 24, 2014, hearing was held on the matter.
By a November 25, 2014, Opinion and Order of Court, this Court granted the termination of ·,
Father's parental rights but declined to terminate Mother's parental rights. In deciding not to \
terminate Mother's parental rights, the Court placed significant emphasis on the emotional bond
I
Mother shared with A.D.M. Father then filed a timely Notice of Appeal. The Superior Court
affirmed this Court's decision on June 15, 2015.
On August 4, 2015, the GAL filed a Petition for the Involuntary Termination of Parental
Rights of Mother. ("Petition"). On August 28, 2015, Mother filed Motions to Appoint Counsel
for both boys. The Agency and GAL both filed separate Answers on August 31, 2015. This
Court denied the Motion on September 9, 2015.1 On August 28, 2015, the GAL filed a Motion
for Incorporation of Record of Prior Proceedings which this Court granted on September 9, 2015.
On July 2, 2015, Mother filed a Motion for Modification of Placement seeking to have the boys
placed with their grandparents,2 B.ml&O p •••· (''the 07 1s"). On July
15, 2015, the GAL filed an Answer in response to the Motion. The Agency also filed an Answer
on July 20, 2015.
1
Specifically,this Court's Order stated "IT IS HEREBY ORDERED THAT the Motion is DENIED. 23 Pa. C.S. § 2313(a)
gives this Court the discretion to appoint counsel or a GAL to represent any child who has not reached 18 years
and is subject to any other proceeding under this part whenever it is in the best interests of the child. Given the
age of the child and the GAL's established relationship with him, the Court is satisfied that his best interests are
well represented." See Order 9/9/15.
2
B-OJZ is Mother's natural mother and ~Ot9llis Mother's stepfather.
2
,., '
Hearing was held on the Petition and Motion for Modification of Placement on September
15, 2015, and September 18, 2015. A Permanency Review Hearing was also held at this time. On
September 25, 2015, by Opinion and Order of Court, this Court terminated the parental rights of
Mother to both boys. The boys' goal as to Mother was also changed from reunification to
adoption and the Court denied Mother's Motion for Modification of Placement. On October 20,
2015, Mother filed a timely Notice of Appeal of a Children's Fast Track Appeal pursuant to I
Pa.R.A.P. 102 and her .Concise Statement of Matters Complained of on Appeal. The Court now
responds to Mother's claims of error in this Opinion and Orderof Court pursuant to Pa.R.A.P.
I I
!
1925(a). I
ISSUES
I. Termination of Parental Rights
InMother's Concise Statement regarding the termination of her parental rights she raises
the following issues:
1. This Court decision to terminate Mother's parental rights constitutes an abuse of
discretion because:
a. There is insufficient evidence to determine by clear and convincing evidence that
there is a repeated and continued incapacity, abuse, neglect or refusal of Mother that
has caused the children to be without essential parental care, control or subsistence
necessary for their physical or mental well-being and the conditions and causes
cannot or will not be remedied.
b. There is insufficient evidence to determine by clear and convincing evidence that the
conditions which led to the removal or placement of the children continues to exist,
Mother cannot or will not remedy those conditions within a reasonable period of time
and termination of parental rights would best serve the needs and welfare of the child.
c. There is insufficient evidence to determine by clear and convincing evidence that the
conditions which led to removal or placement of the children continues to exist and
termination of parental rights would best serve the needs and welfare of the child.
d. There was insufficient evidence to determine by clear and convincing evidence that
permanently severing the bond between Mother and the children will not have a
3
detrimental effect on the child and is in the best interest of the children despite
evidence to the contrary.
e. The trial court erred by not giving primary consideration to the developmental,
physical and emotional needs and welfare of the children in terminating Mother's
rights.
2. The trial court erred by not appointing counsel to represent the children's legal position
during the proceedings despite the clear mandate of23 Pa. C.S. § 2313(a) that "[t]he
court shall appoint counsel to represent the child in an involuntary termination
proceeding when the proceeding is being contested by one or both of the parents." The
discretion given to the court to appoint counsel or a guardian ad litem is specifically
limited to "other proceedings" under the Adoption Act, and by the clear language of the
statute is not applicable to involuntary termination proceedings. 23 Pa. C.S. § 2313(a).
3. The trial court erred in admitting hearsay evidence contained within Petitioner's Exhibits
1, 3, and 5. The caseworker's reports are not evidence, only matters within the report that
are established by properly accepted evidence at the hearing. Therefore, the report itself
is not admissible as evidence.
4. The trial court erred in admitting permanency review orders from the juvenile docket
where the orders were entered under a lower evidentiary standard than that applicable to a
termination of parental rights hearing.
II. Goal Change and Motion for Modification of Placement
In Mother's Concise Statement regarding the boys' goal change and denial of her Motion
to Modify Placement she raises the following issues:
1. The trial court's decision to change the placement goal from reunification to adoption
is not supported by clear and convincing evidence and constitutes an abuse of
discretion for the following reasons:
a. Mother has substantially complied with the permanency plan in that she has safe and
suitable housing for the children, is employed and financially capable of providing for
the children's basic necessities such as food, clothing and shelter, is enrolled in drug
and alcohol classes determined to be the appropriate level of treatment by her drug and
alcohol counselor, consistently participates in visitation with the children, and
participated in both a psychological and psychiatric evaluation and complies with the
recommendations of those evaluations.
b. Mother has made substantial progress in alleviating the circumstances which
necessitated the original placement in that Mother has safe and appropriate housing for
the children, is employed and financially capable of providing for the children's basic
4
"',
necessities such as food, clothing and shelter, and is safely able to parent and care for
the children.
c. No evidence was presented as to a current safety risk to the children; rather the
evidence present and the trial court's analysis was that of stability based on speculative
future circumstances and not the relevant current inquiry and analysis of safety.
"Judicial determination related to removal, reunification and· permanency should be
governed by safety." PennsylvaniaDependency Benchbook Second Edition Harrisburg,
PA: Office of Children and Families in the Courts, 2014, page 2-6.
2. The trial court erred in denying Mother's Motion to Modify Placement of the children
from foster care to approved kinship care whom has had a relationship with the
children since birth, consistently visited with the children while in placement, and has a
safe and stable home for the children to reside.
\
DISCUSSION !
I
A. Involuntary Termination
In termination cases, the burden rests on the petitioner to prove by clear and convincing
evidence the grounds asserted are valid. See In re A.S., 11 A.3d 4 73, 4 77 (Pa. Super. Ct. 2010).
Clear and convincing evidence is testimony "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 (citations and quotations omitted). The trier of fact is the sole judge of
credibility, free to resolve any conflicts in the evidence and to believe all, part, or none of the
evidence presented. See id In any context, the complete and irrevocable termination of parental
rights is one of the most serious and severe steps a court can take. In Re Adoption of Sarver, 281
A.2d 890, 891 (Pa. 1971). "[T)ermination of parental rights has often been called the "death
penalty" of dependency court, because of the seriousness and finality of a termination order
severing all ties between a child and their biological parents." Pennsylvania Children's
5
Roundtable Initiative. Pennsylvania Dependency Benchbook Second Edition Harrisburg, PA:
Office of Children and Families in the Courts, 2014.
The policy of this Commonwealth is aligned with that set forth in the Adoption and Safe
Families Act. To wit, when reasonable efforts to return a child to their biological parent have
failed and the parent has not benefitted from reunification efforts, the right of the child to
fulfillment of their potential in a "permanent, healthy, safe environment" must take precedence.
See In re B., NM, 856 A.2d 847, 856 (Pa. Super. Ct. 2004). Indeed:
[W]hen a child is placed in foster care, after reasonable efforts
have been made to reestablish the biological relationship, the needs
and welfare of the child require CYS and foster care institutions to
work toward termination of parental rights, placing the child with
adoptive parents. It is contemplated this process realistically
should be completed within 18 months.
In re G.P.-R., 851 A.2d 967, 975-76 (Pa. Super. Ct.2004). The policy was designed to "curb an
:inappropriate focus on protecting the rights of parents when there is a risk of subjecting children
to long term foster care," or forcing them to return to situations involving abuse or neglect. In re
C.B., 861 A.2d 287, 295 (Pa. Super. Ct. 2004).
This Court is aware of the significant pain a parent suffers when faced with the
termination of his parental rights. Yet, just as parents have parental rights over their children,
they also have duties to provide for and care for their children. Through the statute permitting
'
the termination of parental rights (23 Pa. C.S. § 2511 et seq.), our legislature has required
"certain irreducible minimum requirements of care that parents must provide for their children,
and a parent who cannot or will not meet the requirements within a reasonable time following
intervention by the state may properly be considered unfit and have his parental rights
terminated." In re Z.P., 994 A.2d at 1118 (quoting In re B.L.L., 787 A.2d 1007, 1013 (Pa. Super.
2001)).
6
.. '
The grounds for termination are controlled by statute. See 23 Pa C.S.A. § 251 l(a).
Under 251 l(aX8), the Agency must prove: "(l) the child has been removed from parental care
for 12 months or more from the date of removal; (2) the conditions which led to the removal or
placement of the child continue to exist; and (3) termination of parental rights would best serve
the needs and welfare of the child." In re Adoption of ME.P., 825 A.2d 1266, 1275-76 (Pa.
Super. Ct. 2003). Under this section, a twelve (12) month time frame exists for a parent to
remedy the conditions leading to the child's removal. See In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. Ct. 2010). Once the requisite time frame is established, the court must determine whether
conditions that led to the child's removal continue to exist, despite the Agency's reasonable,
good faith efforts. See id. This section does not require the court evaluate "a parent's current
willingness or ability to remedy the conditions that initially caused placement, or the availability
er efficacy of Agency services." Id.
Section 2511 (a)(5) requires that: (I) the child has been removed from parental care for at
least six months; (2) the conditions which led to the child's removal or placement continue to
exist; (3) the parents cannot or will not remedy the conditions which led to removal or placement
within a reasonable period of time; (4) the services reasonably available to the parents are
unlikely to remedy the conditions which led to removal or placement within a reasonable period
of time; and (5) termination of parental rights would best serve the needs and welfare of the
child." ME.P., 825 A.2d at 1273-74.
Under Section 2511 (a)(2), the petitioner must demonstrate the repeated and continued
incapacity and neglect of the parent, that such neglect has caused the child to be without essential
parental care, and that the causes of the incapacity will not be remedied. See In re A.S., 11 A.3d
473, 479 (Pa. Super. Ct. 2010) (citation omitted). Where "sincere efforts to perform parental
7
"' '
duties can preserve parental rights under (a)(l ), those same efforts may be insufficient to remedy
parental incapacity under (a)(2)." ZP., 994 A.2d at 1117.
If the Court finds one of the above grounds have been satisfied, it must proceed to an
evaluation of the Child's best interest under Section 251 l(b). In determining the needs and
welfare of the child, a primary concern is the "nature and status of the emotional bond between
parent and child." In re LG., 939 A.2d 950, 956 (Pa. Super. Ct. 2007). In this analysis, the
Court may consider "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." A.S., 11
A3d at 483. The court should also consider the continuity of relationships, and whether the
termination of parental rights will sever an existing parent-child bond. See id.
I. Termination of Mother's Parental Rights Under Subsection of 25ll(a).
In subsection a-c of Mother's Concise Statement, she challenges this Court's termination I
of her parental rights. Mother essentially argues that the Petitioner failed to establish termination .I
was proper under Section 2511 (a). Specifically, Mother argues that there was not clear and
convincing evidence presented at the hearing that Mother's repeated incapacity has caused the
children to be without essential care or subsistence necessary for their physical or mental well-
being and the conditions and causes cannot or will not be remedied. AdditionaUy, Mother avers
that there was not clear and convincing evidence that the conditions which led to the placement
of the children continue to exist, that Mother cannot or will not remedy the conditions within a
reasonable time and that termination best serves the needs and welfare of the children. Although
Mother does not specify in her Concise Statement, these arguments are challenges to the
termination of Mother's parental rights under 251 l(a)(2), (a)(5) and (a)(8). As noted, on
September 25, 2015, by Opinion and Order of Court, this Court terminated the parental rights of
Mother to both boys finding that the Petitioner had established that termination was proper under
8
.. ,
251 l(a)(2), (a)(S) and (a)(8). For the reasons that follow, this Court finds Mother's arguments to
be without merit.
It is undisputed that the Agency previously filed a Petition for Termination of Parental
Rights of Father and Mother on August 6, 2014. Despite terminating Father's parental rights, this
Court declined to terminate Mother's parental rights and the boys' permanency goal remained
reunification with Mother as of November 25, 2014. In reaching this decision, the Court noted i
that the Agency had failed to fully satisfy that termination was appropriate under Section I
251 l(a)(2),(a)(5), or (a)(8). Specifically, this Court found that the causes of the boys' placement
no longer existed and had been remedied by Mother. Furthermore, this Court noted the
significant emotional bond that existed between Mother and the boys, particularly with A.D.M.
At the prior TPR hearing, testimony unequivocally established that A.D.M. loves his mother
deeply and wishes to reside with her. It was equally clear that Mother loves both of her boys a
great deal. This bond in the Court's view was one that, especially with A.D.M., was still a
necessary and beneficial relationship despite numerous shortsighted mistakes by Mother. Such
mistakes included numerous criminal-convictions resulting in jail time and relapses in Mother's
battle with drug and alcohol addiction.
Evidence presented at the hearing on the current Petition illustrate that the previously
analysis employed by this Court under 23 Pa.C.S. 251 l(a) .regarding Mother's parental rights is
no longer appropriate. To date, nearly ten (10) months have passed since this Court's initial
decision not to terminate Mother's parental rights and to continue reunification efforts with the
boys. In fact, at the time of the hearing, the boys had been in placement for over two years, easily
satisfying the time requirements in sections (a)(8) and (a)(S). Despite this, Mother currently finds
herself in a more grave and precarious situation than she was in nearly a year ago. The incapacity
9
which necessitated the boys' placement was Mother's imminent homelessness and lack of
resources to care for the boys. Reunification efforts with the boys have been delayed by Mother's
repeated incarcerations. It is now clear that Mother's incapacity continues and will not be
remedied by Mother which satisfies many of the requirements in sections (a)(2), (a)(5), and
(a)(8).
Although Mother is no longer homeless, she is essentially no closer today than she was
26 months ago to being reunified with the boys. If anything, Mother's continued shortsighted
behavior during the last two years reveals that the incapacity which led to the boys' placement
continues and will not be remedied. Simply put, Mother has time and again put her own selfish
desires ahead of reunification with the boys despite this Court willingness to look past prior
misconduct for the first sixteen (I 6) months of the boys' placement last November.
On May 14, 2015, Mother attended the boys' most recent permanency review hearing.
The same court-ordered services to achieve reunification that Mother has been instructed to
complete throughout the boys' placement were again reiterated to her. N.T. 9/15/15 at 32.
Specifically, Mother was to maintain financial stability, stable housing, consistent visitation with
the boys, comply with the terms of her criminal sentence and/or probation, and refrain from
further criminal activity and successfully complete drug and alcohol treatment as well as
participate in family therapy with the boys. Id.
Although Mother was making significant strides up until April of 2015 and was just days
away from being reunified with the boys, testimony at the hearing established that she was doing
so while knowingly violating her probation. N.T. 9/18/15 at 7-8. Specifically, she was not
residing at her home plan approved by Franklin County Probation and compliance with her r
i
probation was a specific requirement of her compliance with Children and Youth provisions. Id.
10
Mother's step-father, Mr. op". f, testified at the hearing that Mother was basically using his
home (her approved home plan) as a "storage unit" and residing at another residence for roughly
two months before her violation was discovered. N.T. 9/15/15 at 218-219, 227. To make matters
worse, the man Mother was residing with at this unapproved residence was out on parole for a
felony robbery conviction and this contact was also a violation of Mother's probation. N.T.
9/18/15 at 7. Finally, Mother admitted at the hearing to using alcohol, another violation of her
probation, multiple times during April of 2015. Id. at 8, 12, 33-34.
Despite a plethora of evidence presented at the hearing that Mother was violating her
probation throughout March and April of 2015, none of these violations had yet been discovered.
However, from December of 2014 until April of 2015, Mother was making significant progress
in complying with other of her court-ordered services. Mother was maintaining consistent
visitation with the boys, including obtaining unsupervised visits with them. N.T. 9/15/15 at 29.
She had obtained stable housing at the ~' residence. Id. Mother had also made strides in
achieving financial stability as she had been employed at Beck Manufacturing starting in
September of 2014. N.T. 9/18/15 at 26-27. In December of 2014, Mother attended a family
group decision-making conferenceand family therapy. N.T. 9/15/15 at 80. She was also
discharged from drug and alcohol treatment. N.T. 9/18/15 at 28. At this point, Mother felt she
was ready for the boys to return home and the Agency agreed that it was time for reunification.
N. T. 9/ 15/15 at 41. Prior to the first weekend in April, the Agency decided it would file a Motion
and Order on Monday April 6, 2015, for the boys to be returned to Mother by the end of the
week. Id.
Over Easter weekend' and just days before April 6, 2015, the boys had an unsupervised
visit with Mother. Id. at 42. When the boys returned to their foster home, L.B.M. had marks on
3
Easter Weekend of 2015 was April 3 through S.
11
•
;
his face and chest. Id. He also had a bruise on his collarbone. See Pet. 's Exhibit 16. As a result of
the incident, the Agency received a child protective services referral. At this point, the Agency
carne to the conclusion that returning the boys to Mother may not be best at that time. It was then
decided that reunification should be postponed until after A.D .M.' s school year was complete.
N.T. 9/15/15 at 41-42.
Ultimately an investigation into the incident by Pennsylvania State Police and the Agency
was unfounded because a mechanism for the injury and the person responsible could not be
identified. N.T. 9/15/15 at 49. The only explanation that Mother was able to provide for how
L.B.M. obtained the marks and bruise was that it could have occurred while she was tickling him
or while L.B.M. was playing outside with other children. N.T. 9/18/15 at 6. Medical
documentation received by the Agency indicated that the injuries sustained by L.B.M. were not
consistent with normal childhood activity and more consistent with non-accidental trauma. N.T.
9/15/15 at 89-90. Although the Agency received this information, the incident was still
determined to be unfounded.
However, Mother's failure to comply with the terms of her criminal sentence and
probation was eventually discovered and proved to negate so much of the progress towards
reunification she had been making. On April 21, 2015, Mother was re-incarcerated for violating
her probation for failing to comply with the terms of her home plan. Id. at 31. Despite her
incarceration, Mother participated in contact visits with the boy while in jail on May 18, 2015,
and August 8, 2015. Id. at 88-89. On June 8, 2015, Mother tested positive for suboxone which
she testified at the hearing she took in the jail after she received it from another inmate. N.T.
9/18/15 at 4. As a result, Mother was placed on disciplinary status and her visitation privileges
with the boys at the jail were revoked. 9/15/15 at 36. By her own admission Mother knew before
12
..
taking the suboxone that she would likely get caught. N.T. 9/18/15 at 24. Despite being
cognizant of this, Mother again made a choice that she knew would negatively impact her ability
to see the boys and would further delay reunification.
As a result of Mother again be incarcerated and her violation while in jail, the GAL made
the difficult and uncommon decision to file the instant Petition. The Agency supported the
decision. At the hearing, Ms. Weller explained the Agency's reasoning:
Q: ... But is the agency objecting to the goal being changed to
adoption at this point?
A No.
Q Why is that?
A The children have been in care for 26 months. And [Mother] has
been incarcerated for over half of that time period. And where we
are today, the agency feels we're worse off today than what we
were in October and November of last year.
N.T. 9/15/15 at 57. On the day the GAL filed the Petition, August 6, 2014, Mother remained
incarcerated. As such, the reasons the boys originally came into placement, that Mother could
not provide stable housing and resources for them, was no different than it had been over two
years ago. Turning to the second element of251 l(a)(2), it was equally clear that Mother's
continued incapacity, specifically her repeated incarcerations and inability to complete her court-
ordered services, had caused the boys to be without essential parental care, control and
subsistence.
I
Having established that the conditions which led to the boys' placement continued to , II
'
exist at the time the Petition was filed, the Court must determine if these conditions and Mother's
incapacity will not be remedied. Clearly, Mother's repeated periods of incarceration have
stripped her of the ability to consistently maintain financial stability and suitable housing. At the
13
• •• . ·.~ .·:~-:-:. . \· . f. .• .. • • .;, ~" •. . .. • ,.,: ... .. : '• . • z. '• . . ' . . -· . . ~ - .. . -. ··----·--····· ""-:.',:~:
. - - ·-- ..... _,, ·--------··--···~-
._.,
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~¢,ethe "}$'.if9~f~~~P. ~t~~,tc:~~~~Afl°,\f~t'.l!~Iff 'ed~I~~ oh disc\flinary . -;
status. M9thet!~;p~Gip!wary stafusp~v.inttqh'er.:fr~fu·worisi~lt~:;ardsone of the few court- . ~=
,- ;.•-: : :,· ·. .. . : ..
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ordered services'.~he could continue whµe ~car~~at~~,.C?.ri~i~ffnt visitation with the children. i
,-.,·: .
. l . .'
. 1. . ·. . ; ,: : . '· ~. /, .. · . ."' . .~ \.-i::t!' ':. -. _:' .. . .. _ .. ....,
However, even.atthe timeof the heanng,after she was rel~ase.µfromjail, Mother hadonly
recently obtain~~ employment through her natural father's business and had been living at his
father's r~;ideµ~~ for lessthan a m6.nth. NJ. 911'5/~5 at 91, 93'. .N.T. 9/18/1$ at 22. In fa.ch
. . . .. .
. · · ..., ·: ·. . .. · ._, - »: ··· ,. · · ·.·
. .. ,,_:\·rl::\;-_- . _: · . ; .
-~ · .: . .-.·(. . ..
Mothe~ te~fi~fj,~~ehas noj lived inde?,~~1,1:~i:-S,~~ibeforet~-~~i~:~~~c~e:.in,~opl~~ment. ~- --x1
.· . . . '(j:·:1·.-::~ . _1_., . ; . ;.··;:~~ ..,·: ·~:t~;·. ·. -~~:·:··:,i. ·.· .. ·?> . : . -~·:> . J>-' -, :·. .. . ;:· ~ .. _ -·~·?.fr
. .' . .,;.
N.T. 9n8/l~,.at2~-23. Motherhas beep~~cera~~ on five s_epan1t~ occasionsin the last two
' :,~,. • . .: ••• • ..;. . -. '':I. •.
years and h~·Sp,ent"56% of'the b~ysrpiac~mentb~hl.nd bars. Jd,~t-43. All of these facts led to
the logical .coriclusien that the conditions that led to-·the placement ofthe boys continue and
. .
.. .
Mother has notand will not remedy them.
Section 2511 (a)(5) also requires that "services reasonably available to the parents are
unlikely to remedy the conditions whichled to removal.or placement within a reasonable period
of time." Evidence at the hearing clearly illustrated that the Agency has offered.and provided an
array of services to Mother over the last two years. N.T. 9/15/15 at 29, 69, 74, 79, 86. Despite
these exhaustive attempts by the Agency; Mother has failed to remedy the conditions of
placement for over 26 months at the time of the hearing. There .appear to be no other services
that the Agency could offer at this point that would result in remedying Mother's issues and
reunifying her with the boys. N.T. 9/18/15 at 52.
The final requirement under both (_a)(5) and (a)(8) is that the termination of parental
rights best serves the needs and welfare of the child. Our High Court has made it clear that a trial
court must consider the effect of severing a parental bond if one actually does exist See In re
EM, 620 A.2d 481, 485 (Pa. 1993). This Court recognizes that there is absolutely no question
14
. ,
that there is an emotional bond between Mother and the boys, particularly Mother's bond with
A.D.M. N.T. 9/18/15 at 52. A.D.M.'s caseworker, Ryan Kane, testified that A.D.M. expresses
significant disappointment with his Mother's repeated incarcerations but that he still loves her.
N.T. 9/15/15 at 149, 160. This Court has no doubt that Mother loves both her boys. However,
while an emotional bond is a major component in the analysis of§ 251 l(b) best-interest analysis,
it is only one factor among many that a court should employ in making a determination under
251 l(a). The court should also consider other factors such as safety, love, security, comfort, the
stability and bond the child has with a foster parent, and whether the parental bond can be
severed without detrimental effects on the child.
A best-interest determination under 2511 (a) requires a separate analysis for each child in
this case. As noted, A.D.M. and Mother share a significant emotional bond. In contrast, L.B.M.'s
bond appears to be considerably less. Testimony at the hearing illustrated that L.B.M. does enjoy
seeing Mother and can be affectionate towards her during visits. N. T. 9/15/15 at 115· l l 6.
However, it is clear that L.B.M. recognizes his foster parents as his parents and not Mother. Id. at
55. This is undoubtedly due to L.B.M. 's age when the placement began. He refers to his foster
parents as "mommy" and "daddy."? Id. The emotional bond that Mother does share with L.B.M.
is easily distinguishable from that she shares with A.D.M. although some emotional bond does
exist.
Furthermore, all of the other factors strongly support a determination by this Court that
terminating Mother's parental rights is in the best interest of L.B.M. Mother's repeated
incarcerations and inability to maintain financial stability and suitable housing strongly indicate
that Mother has and will continue to struggle to consistently make L.B.M. feel safe, secure and
comfortable. On the other hand, neither the Agency nor Mother herself have any concerns about
4
Nicole Weller testified at the hearing that L.B.M. refers to Mother as "brother's mommy." N.T. 9/15/15 at 55-56.
15 ..
• ?
the care L.B.M. receives while in the care of the foster parents. N.T. 9/18/15 at 16, 41. As the
Superior Court highlighted when it affirmed termination of Father's parental rights, foster father
is a licensed social worker with a master's degree. L.B.M. looks to his foster parents for security,
support and comfort. Further, L.B.M. appears to be flourishing while in the care of his foster
parents. In addition to recognizing his foster parents as his natural parents, L.B.M. also shares a
significant bond with them. N.T. 9/15/15 at 157. L.B.M. has a loving and beneficial relationship
with his foster siblings. Id. at 54-56. L.B.M.'s foster parents provide him with nurturing, security
and love he needs on a daily basis. N.T. 9/18/15 at 49.
Finally, this Court finds that L.B.M.'s bond with Mother could be severed without it
having detrimental effect on him. At the time of L.B.M. 's placement he was just 26 months old.
Since the boys' placement on July 3, 2013, Mother has been incarcerated from July 5, 2013
through October 2, 2013; from October 24, 2013 through November 6, 2013; from December 12,
2013 through April 24, 2014; from May 5, 2014 through June 20, 2014 and from April 21, 2015
through August 20, 2015. These five separate incarcerations account for more than 50% of the
total time L.B.M. has been in placement. N.T. 9/18/15 at 43. Mother's repeated incarcerations
and unavailability has prevented L.B.M. the opportunity of developing a lasting bond with her.
This helps explain why L.B.M. recognizes his foster parents as mom and dad and why he refers
toMother as "brother's mommy." N.T. 9/15/15 at 55-56. Given L.B.M. 's young age, it was
essential Mother be available to him in order to form a beneficial and lasting bond. However,
Mother's inability to stay out of jail has thwarted her ability to create such a bond.
For all these reasons, the Court finds that severing the parental bond with Mother best serves the
needs and welfare of L.B.M.
16
Although A.D .M. has a much stronger and definable emotional bond with Mother, this
Court still believes severing his parental bond with Mother best serves his needs and welfare.
Analogous to the analysis used for L.B.M. on this issue, Mother's repeated incarcerations and
inability to maintain financial stability and suitable housing strongly indicate that Mother has and
will continue to struggle to consistently make A.D.M. feel safe, secure and comfortable.
Evidence at the hearing illustrated that it is now his foster parents that A.D.M. turns to for
security, support and comfort. N.T. 9/15/15 at 123, 152, 160-161.
A.D.M. also shares a significant emotional bond with his foster parents. Id. at 156.
Despite recognizing that Mother is his natural mother, A.D.M. has recently started calling his
foster parents mom and clad. Id. at 56. A.D.M. tells his foster parents he loves them and
expresses affection towards them which is reciprocated. Id. at 156, 160-161. Both A.D.M. and
L.B.M. have also bonded with their foster siblings. Id. at 51-52. Like his brother, A.D.M. is also
thriving in the foster home and performing better in school as a result of increased stability. Id. at
48, 51-52. Mr. Kane testified that if A.D.M. could choose his living arrangement he would like
to stay with his foster parents and have Mother move in with them. Id. at 154.
This Court recognizes that its decision to terminate Mother's parental rights will affect
A.D.M. far more than his brother. A.D.M. will undoubtedly grieve for the loss of the chance to
someday be reunified with Mother. However, severing Mother's parental bond, and allowing his
foster parents to move forward with adoption best serves his needs and welfare. Mr. Kane
testified at trial that the most important thing A.D.M. needs at this juncture is permanency. Id. at
158. A.D.M. needs to know where he is going to live and who is going to be a consistent and
supportive part of his life. Simply put, he needs to be able to be a child. Id. His placement lasting
over two years has robbed him of this in many ways. Although A.D.M. is doing well in his foster
17
0,.
home, the continued uncertainty regarding reunification with his Mother is taking its toll. Mr.
Kane testified that A.D.M. expresses extreme disappointment and sadness with Mother when he
learns she has again been incarcerated.5 N.T. 9/15/15 at 149-151. Because A.D.M.'s primary
need is permanency, this Court finds that although it will be painful for him, severing Mother
parental bond will best serve his needs and welfare. Accordingly, this Court finds that the
Petitioner has satisfied the requirement of251 l(a)(2), (5), and (8) and Mother's argument to the
contrary is unconvincing.
II. Termination of Mother's Parental Rights under Subsection of 251l(b).
In subsections d and e of Mother's first issue in her Concise Statement, she argues that
there was insufficient evidence to determine by clear and convincing evidence that Petitioner
satisfied the requirements for termination under 2511 (b). Mother asserts that the trial court did
not give primary consideration to the developmental, physical and emotional needs of the
children. Further, Mother asserts that permanently severing the bond will have a detrimental
5
Specifically, Mr. Kane testified:
Q The last time when [Mother] was incarcerated, can
you tell me how [A.D.M.] was told?
A I brought him to your office so we could tell him
together.
Q And how do you believe [A.D.M.J took the news?
A Tough to see a kid sink like that.
Q Had it been a reaJJy long time since you had seen that
type of reaction from [A.D.M.J?
A Yeah, because he was really hoping to go home. And
then it just kind of turned on a dime really quickly.
Q Did [A.D.M.] have any concerns about specifically why
she went back to jail?
A He did.
Q What was his primary concern?
A He asked whether or not it was drugs or alcohol.
Q When you told him it wasn't, did he have a visible
reaction?
A Maybe more questions. Visible reaction, Ithink he
expected it to be that. . .
(emphasis added). N.T. 9/15/15 at 150-151.
18
effect on the children and is not in their best interest. This Court cannot agree as the record is
replete with ~vidence to the contrary.
After a petitioner has satisfied a subsection under 2511 (a), the Court must find it is in the
child's best interest to terminate parental rights, both in terms of their needs and welfare under
2511 (b). In determining the needs and welfare of the child, a primary concern is the "nature and
status of the emotional bond between parent and child." In re LG., 939 A.2d at 956. Although
this inquiry shares certain similarities with the previous needs and welfare analysis employed in
251 l(a), it differs in that our "focus is not on the parent's conduct, but on the child and his or her
needs." Id. "A proper section 251 l(b) analysis focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional needs and welfare of the child." In
re TD., 949 A.2d 910, 920 (Pa. Super. 2008).
It is obvious to all involved in this case that an emotional bond exists between Mother
and the boys, particularly A.D.M. However, the mere existence of an emotional bond does not
prevent a court from terminating parental rights if it is necessary. Id. Termination is proper even
when an emotional bond exists if the parent is "either unwilling or unable to satisfy the
irreducible minimum requirements of parenthood." Id. In the instant matter, the Court finds that
Mother has been unable to satisfy these irreducible requirements of parenthood for the entirety of
the boys' placement as a result of her repeated incarcerations and inability to maintain proper
housing and financial stability. Mother clearly loves the boys; however, love does not extinguish
her responsibility to provide the boys with these irreducible requirements. Mother may have the
best of intentions and this Court in no way doubts the feelings she has for both of her boys.
However, adequate parenting requires "action as well as intent," guidance and discipline as well
as affection. In re A.L.D., 797 A.2d 326, 340 (Pa. Super. Ct. 2002). These boys deserve both.
19
Further, the emotional bond between the boys and Mother, particularly with A.D.M., is
no longer a nurturing, beneficial and healthy parent-child relationship. A.D.M.'s relationship
with Mother is one clouded with disappointment and uncertainty rather than comfort and
security. Although A.D.M. loves Mother, his debilitating relationship with her is impeding his
ability to continue to grow and thrive. On this point, this Court stated the following at the
conclusion of the hearing:
As to Subsection (b) of 2511, the bond, I recognize
that there is a bond particularly between [A.D.M.] and you,
[Mother]. But it is not a nurturing bond. It is not a bond
that provides safety and protection as a parent must provide
for a child.
And it is that bond that is causing [A.D.M.] so much
difficulty when he sees that you're not able to provide everything
else in the form of a consistent home, finances,
drug-free life, crime-free life, association with individuals
who are not involved in the system.
And frankly, there's a difficulty in [A.D.M.]
recognizing, [Mother], that you're not truthful. And not
telling the truth has gotten you into a situation involving
incarceration.
So [A.D.M]. and [L.B.M]. will have work to do. As the GAL
said, they'll go through the grieving process. It will be a
different grieving process. But I believe they've already been
through grieving processes several times. As they have
prepared to be reunited with you only to have their hopes
dashed because of your actions.
(emphasis added) N.T. 9/18/15 at 52·53.
A.D.M.'s permanency worker, Mr. Kane, emphasized in his testimony that A.D.M.'s
primary need at this point is permanency. N.T. 9/15/15 at 158. Like all children, both ofthese
boys deserve permanency, However, the length of the boys' placement has resulted in A.D.M.
now badly needing permanency. (emphasis added). Further, for reasons stated above, this Court
20
does not believe that terminating the bond between Mother and the boys will have a detrimental
effect on them. Consequently, this Court finds that in the best interest of the boys' needs and
welfare Mother's parental rights be terminated.
III. Failure to Appoint Children Separate Legal Counsel
Next, Mother avers that this Court erred when it did not appoint counsel to represent the
children's legal positions during the termination proceedings despite the language of 23 Pa. C.S.
§ 2313(a). Regarding representation of a child during a termination proceeding, 23 Pa. C.S.
23 l 3(a) states:
(a) Child.--The court shall appoint counsel to represent the child in an involuntary
termination proceeding when the proceeding is being contested by one or both of the
parents. The court may appoint counsel or a guardian ad litem to represent any child who
has not reached the age of 18 years and is subject to any other proceeding under this part
whenever it is in the best interests of the child. No attorney or law firm shall represent
both the child and the adopting parent or parents.
Based on this statutory authority, on August 28, 2015, Mother filed Motions to Appoint Counsel
for both boys. After Answers were filed by the Agency and the GAL, this Court denied the
Motions stating:
IT IS HEREBY ORDERED THAT the Motion is DENIED. 23 Pa.
C.S. § 2313(a) gives this Court the discretion to appoint counsel or
a GAL to represent any child who has not reached 18 years and is
subject to any other proceeding under this part whenever it is in the
best interests of the child. Given the age of the child and the
GAL's established relationship with him, the Court is satisfied that
his best interests are well represented.
See Order 9/9/15.
Mother contends that the language of§ 2313(a) represents a clear mandate that this Court
has discretion to decide between appointing the child legal counsel or a guardian ad litem only in
21
'.
"other proceedings." Mother concludes that such discretion is not applicable to involuntary
termination proceedings. This Court does not agree.
It is well established that "[t]he purpose of2313(a) is to ensure that the needs and welfare lI
of a child will be actively advanced by an advocate who owes loyalty only to the child." In re
I
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Adoption ofG.KT., 75 A.3d 521, 527 (Pa. Super. 2013) quoting In re Adoption of Hess, 562 I\
i
A.2d 1375, 1380 (Pa. Super. 989). At the core of Mother's argument is that this Court should I
have appointed legal counsel despite the fact that both children already had a GAL who was also
an attorney. Specifically, Kristen Hamilton, Esquire, had previously been appointed as GAL for
both children during their dependency proceedings, the prior termination proceeding in which
Father's parental rights were terminated and was continuing to serve in such capacity at the time
of hearing on the Petition was filed.
Reviewing the case law applicable to Section 2313(a), it is clear to this Court that
Mother's argument is without merit. Specifically, in In re KM, 53 A.3d 781, (Pa. Super. 2012),
the Superior Court dealt with the precise issue Mother nowasserts. In KM., the appellant
asserted that the orphans' court erred because "appointment of counsel is mandatory pursuant to
§ 2313(a) and that 'a Guardian ad Litem cannot play a dual role acting both as legal
representation for the child and as guardian ad litem.?' Id. at 786. Specifically, the K.M. Court
found that:
Although§ 2313(a) mandates that the orphans' court appoints
counsel in all cases where involuntary termination of parental
rights is contested, the plain language of§ 2313(a) is not clear and
free from ambiguity when applied to a scenario where, as here, the
orphans' court appointed an attorney to serve as the child's
guardian ad litem. The complexity is highlighted by the provision's
first two sentences. While the first sentence of§ 2313(a) directs
that counsel shall be appointed in all cases where involuntary
termination is contested, the second sentence addresses a situation
where a trial court has discretion to appoint counsel or a guardian
22 ....
'
ad litem. While the case at bar does not fall within the latter
scenario, the legislature's use of a disjunctive conjunction in the
provision illustrates its recognition that in most cases it would be
superfluous to appoint both counsel and an attorney serving as
guardian ad litem. The official comment explaining the prospective
application of§ 2313 further illuminates the legislature's
perspective.
This new provision requires the court to appoint
counsel for a child when parental rights are being
involuntarily terminated and, when necessary, to
appoint a guardian ad litem for a child who has not
reached the age of 18 years. The guardian ad litem
concept is broad enough to allow the appointment of a
person other than a lawyer. For example, a social
worker could be appointed guardian ad litem within
this provision; in an appropriate case a nonlawyer
guardian ad !item could request appointment of
counsel.
23 Pa.C.S. § 2313, Joint State Government Committee
Comment-1970 (emphases added). Thus, reading § 2313 in pari
materia with the official comment, it is not clear and free from all
ambiguity that the legislature intended to require the superfluous
appointment of counsel under the scenario where, as here, an
attorney is serving as guardian ad litem. Tellingly, while the
legislature's comment identified a situation where a non-lawyer
guardian ad litem could request that counsel be appointed to
represent a child's legal interest, there is no reciprocal requirement,
either expressed in § 2313 or suggested by the official comment,
that precludes an attorney serving as guardian ad litem from also
serving as legal counsel.
Id. at 787.
Thus, the KM. Court concluded that the orphans' court had not erred when it failed to
appoint legal counsel for a child who had already been provided a GAL who was an attorney.
The facts ofK.M. are analogous to the instant matter. Furthermore, from a practical view, if this
Court were to adopt Mother's position, both legal counsel and a GAL would be required for a
child in all involuntary termination proceedings. If the legislature had meant for that to be the
23
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case it would have so instructed. Additionally, as this Court emphasized in our September 9,
2015 Orderof Court given the age of the boys and the GAL's.established relationship with them,
the Court is satisfied that their best interests are well represented. Consequently, this Court finds
Mother's argument on this issue to be without merit.
III. Admissibility of Permanency Review Reports and Orders as Exhibits
As resolution of Mother's final two issues are intertwined, the Court will address them
simultaneously. Mother asserts that this Court erred when it admitted hearsay evidence contained
within Petitioner's Exhibit 1, 3, and 5. These exhibits, which were the same for both boys, were
permanency review reports done by their caseworker Nicole Weller.6 Additionally, Mother
argues that this Court erred when it admitted permanency review orders in Exhibits 2, 4, and 6
into evidence because these orders from the juvenile docket were entered under a lower
· .evidentiary standard than that applicable to a termination of parental rights hearing. During the
first day of hearing, Petitioner moved for admission of her Exhibits 1 through 16. The following
exchange occurred:
The Court: Any objection to Petitioner's Exhibits 1
through 16 being admitted in each case?
Attorney Nicklas: Your Honor, I have to go through those
number by number here. 1 through 6 I would object to on the
grounds that the orders were entered following permanency
review hearings which have a different evidentiary standard
than the termination hearing here today. So there's hearsay
all throughout those that was not testified to today.
N.T. 9/15/15 at 163. Petitioner and the Agency both properly responded to Mother's objection
and this Court overruled the objection stating:
The Court: Let's deal with that. Any response?
Attorney Hamilton: Yes, Your Honor. I do believe that as
6
The three reports were done on October 3, 2014, January 22, 2015, and May 14, 2015.
24
far as there is a hearsay objection, we're also here on a
permanency review matter in addition to the modification of
placement. I think that as far as things that should not be
included in those for consideration of the adoption matter can
be separated by the Court.
I'm not asking for them necessarily for the truth of
the matter asserted. But those are the reports that were
accepted and incorporated as well as the orders that are of
record. And Ido believe Nicole Weller offered testimony on
all of them.
Attorney Yaukey: Iwould agree with Attorney Hamilton's
response also state that it also goes to showing the services
provided by the agency and providing timely and regular
permanency review hearings for mother to continue advising her
of what needed to be done. So I think it also goes to services
and efforts provided by the agency for purposes of the
termination hearing.
The Court: Petitioner's Exhibits 1 through 16 will be
admitted as they are relevant to the determination to be made
by the Court today regardless of the burden that was required
at the time of their entry as orders and reports.
Id. at 163-164.
In support of her argument, Mother directs the Court to the Second Edition of the
Pennsylvania Dependency Benchbook. ("Benchboolr') Harrisburg, PA: Office of Children and
Families in the Courts, 2014, § 6-5. Specifically, regarding a caseworker's report, the Benchbook
instructs that "[b]ecause [a caseworker's report] contains background information, as well as the
agency's recommendations in the form of a proposed order, this report can be of great use in
preparing for the hearing. Of course, the report is not evidence, thus the Judge or Hearing Master
cannot base the ultimate decision on any matters in the report that are not established by properly
accepted evidence at the hearing itself." Id. Consequently, Mother concludes that such reports
are not admissible as evidence.
25
This Court finds no reason to depart from the analysis employed at the hearing overruling
Mother's objection on these issues. Despite Mother's contentions, the record is clear that the
exhibits containing the permanency review reports of the boys' caseworker, Nicole Weller, were
"established by properly accepted evidence at the hearing itself." As correctly highlighted by
Attorney Hamilton, Ms. Weller offered testimony at the hearing on all three of the permanency
review reports in dispute. As to her reports in Exhibits 3 and 5, Ms. Weller testified:
Q Exhibit No. 3, can you tell the Court what that is, please?
A The report to the Court for a permanency review hearing
scheduled for January 22nd, 2015.
Q Is that something that you authored?
A Yes, it is.
Q Can you just sununarize for the Court what the
recommendations were from the agency and what [Mother] needed
to do for reunification?
A: At that time, she needed to participate in a psychological
evaluation, follow the recommendations, obtain
and maintain financial stability, maintain safe stable housing,
consistent visitation with [A.D.M.] and [L.B.M.], comply with the
terms of criminal sentence and-
The Court: Terms of what?
The Witness: Her criminal sentence and/or probation, refrain from
further criminal activity, successfully complete drug and alcohol
treatment.
Q: Exhibit No. 5 in [A.D.M. 's] packet-that's the one I'm referring
to in both packets-Is another report to court. Did you author that?
A: Yes, I did.
Q: What is the date?
26
•
A: The report was initially written for a hearing on April 9th,
2015. However, it was continued several times until May 14th,
2015.
Q Did [Mother] attend the May 14th, 2015, permanency review?
A Yes, she did.
j
Q: And at that time, what were the things [Mother] had to do in
order to be able to, on page 10, in order to be reunified with her !
children? [
A: Toe same as before. Maintain financial stability, stable
housing, consistent visitation, comply with the terms of her
criminal sentence and/or probation, and refrain from criminal-
further criminal activity and successfully complete drug and
alcohol treatment as well as participate in family therapy with
[A.D.M.] and [L.B.M.].
N.T. 9/15/15 at 26-27, 30, 32.
Regarding Exhibit 1, Ms. Weller testified:
Q: I'm going to hand you the adoption petition exhibit. Could you
identify the report to court at No. 1? Is that something you wrote?
A: Yes, it is.
Q: And that was presented at the time of the permanency
review and first termination; is that correct? I
A: Correct.
I
1
The Court: Just wanted that clear for the record. We have a
I
separate set of exhibits for each child. But they are identified as the
same. Exhibit I in each case is your report to the Court?
The Witness: Correct.
I
27
(emphasis added). Id. at 25-26. Thus, Petitioner's exhibit one was a report by Ms. Weller that
had been completed on October 3, 2014, prior to the first termination proceeding and was
properly admitted in that matter. 7
Thus, Ms. Weller's own testimony regarding her reports was properly accepted evidence
that was established at the hearing. Additionally, the reports emphasize the ongoing services
provided to Mother by the Agency as well as that timely and regular permanency review
hearings were being held in an effort to reunite the boys with Mother. It is well established under
Section 2511 (a)(8) and (a)(5), the Court must next look to whether conditions that led to the
I
child's removal continue to exist, despite the Agency's reasonable, good faith efforts. Clearly the l
I
i
type and degree to which the Agency was providing services to Mother is relevant to determine
if termination is proper under these subsections.
Finally, this Court also finds Defendant's final issue to be without merit. The permanency
review orders and reports from the juvenile docket were relevant toihe determination to be made
by this Court regardless of the burden that was required at the time of their entry. This Court is
obviously cognizant of the evidentiary standard under which these orders and reports were
originally entered as evidence and was able to weigh that accordingly. Furthermore, in addition
to the TPR hearing, the Court was also being asked to rule on the permanency review matter and
a Motion for Modification of Placement filed by Mother. Thus, the permanency review orders
7
At the first termination proceeding, Ms. Weller testified regarding her October 3, 2014, permanency review report
stating:
Q: Directing your attention to Exhibit E through Jin the children's permanency
review hearing which was held October 3, 2014. G is the permanency review
hearing which was held January 2nd, 2014, although the report says 2013,
However, that was a typographical error.
Q: Okay. Now, at each of those permanency review hearings, were the same
services again recommended for [Mother]?
A: Yes.
N.T. 10/3/14 at 24-25.
28
and reports were clearly relevant to the decision before the Court and we find Mother's
contention on this issue to be without merit.
B. Goal Change and Motion to Modify Placement
In a goal change proceeding, the Court is required to focus on the child and determine the
goal that is in the child's best interest. See In re A.L.D., 797 A.2d 326, 339 (Pa. Super. 2002)
(citation omitted). The best interest of the child, and not the interests of the parent, must direct
the trial court. See In re R.LS., 36 A.3d 567, 573 (Pa. 2011). Our appellate courts have
explained:
[T]he decision to allow CYS to change the service plan goal from
reunification to adoption is not merely a minor decision permitting
a slight shift in the emphasis of CYS' social services. As a practical
and legal matter, an order by the juvenile court changing the child's
placement goal from reunification to adoption ends any dispute
that may exist between CYS and the parent as to the adequacy of
CYS' services aimed at reuniting the parent with his/her children
and, of course, as to whether CYS had selected the most
appropriate goal for this family. By allowing CYS to change its
goal to adoption, the trial court has decided that CYS has provided
adequate services to the parent but that he/she is nonetheless
incapable of caring for the child and that, therefore, adoption is
now the favored disposition. In other words, the trial court order is
the decision that allows CYS to give up on the parent.
In re A.L.D., 797 A.2d at 339 (citation omitted). Indeed, "(a]lthough the Commonwealth is
willing to take on the obligation to help parents assume their irreducible minimum parental
responsibilities," that obligation "is not indefinite nor has the Commonwealth made itself
guarantor of the success of the efforts to help parents assume their parental duties.'' Id·at 340.
Appellate review of a goal change determination is deferential. See R.LS., 36 A3d at
573. The reviewing court is required to accept the findings of fact and credibility determinations
of the trial court if they find support in the record, but is not required to accept any inferences or
conclusions of law. See In re R.JT., 9 A.3d 1179, 1190 (Pa. 2010). The standard of review is an
29
abuse of discretion. See id. A trial court abuses its discretion if its judgment is so ''manifestly
unreasonable, that the court disregarded the law, or that its action was a result of partiality,
prejudice, bias or ill will." In re R.P., 956 A.2d 449, 455 (Pa. Super. 2008) (internal quotations
omitted) (citation omitted). Our appellate courts have stated, "[ w]hen the trial court's findings
are supported by competent evidence of record, we will affirm 'even if the record could also
support an opposite result.?' In re N.C., 909 A.2d 818, 823 (Pa. Super. 2006) (quoting In re
Adoption of R.JS., 901 A.2d 502, 506 (Pa. Super. 2006)). Indeed, the trial court, having
"presided over several other hearings with the same parties" and possessing a "longitudinal
understanding of the case and the best interest of the individual child involved" is in the best
position to "gauge the likelihood of the success of the current permanency plan." See In re
R.JT, 9 A.3d at 1190.
The disposition of dependent children is controlled by the Juvenile Act. In re R.MG.,
997 A.2d 339, 345 (Pa. Super. 2010). At each permanency review hearing, including a goal
change proceeding, the trial court must make several determinations mandated by statute,
examining whether the current goal remains feasible and continues to be in the best interest of
the child. See 42 Pa. C.S. § 6351. Section 6351 provides in pertinent part:
(f) Matters to be determined at permanency hearing.-- At each
permanency hearing, a court shall determine all of the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The appropriateness, feasibility and extent of compliance with
the permanency plan developed for the child.
(3) The extent of progress made toward alleviating the
circumstances which necessitated the original placement.
(4) The appropriateness and feasibility of the current placement
goal for the child.
(5) The likely date by which the placement goal for the child might
be achieved.
(5 .1) Whether reasonable efforts were made to finalize the
permanency plan in effect.
30
(6) Whether the child is safe.
(9) If the child has been in placement for at least 15 of the last 22
months ....
(10) If a sibling of a child has been removed from his home and is
in a different placement setting than the child, whether reasonable
efforts have been made to place the child and the sibling of the
child together or whether such joint placement is contrary to the
safety or well-being of the child or sibling.
(11) If the child has a sibling, whether visitation of the child with
that sibling is occurring no less than twice a month, unless a
finding is made that visitation is contrary to the safety or well-
being of the child or sibling.
42 Pa. C.S § 6351 (f). Under§ 6351, "[s]afety, permanency, and well-being of the child must
take precedence over all other considerations," including the parent's rights and wishes. In re
R.MG., 997 A.2d at 347 (quoting In re D.P., 972 A.2d 1221, 1227 (Pa. Super. 2009)) (emphasis
in original). Even if a parent substantially complies with a reunification plan, a goal change to
adoption may still be appropriate. See In re R.MG., 997 A.2d at 347.
I. Mother's Compliance with Permanency Plan and Court-Ordered Services
In her first two arguments in the dependency action, Mother argues that this Court erred
and abused its discretion when it changed the placement goal of the boys from reunification to
adoption. First, Mother avers that she has substantially complied with the permanency plan as
she has safe and suitable housing for the children, is employed and financially capable of
providing for the children's basic needs, is enrolled in drug and alcohol classes, consistently
participates in visitation the boys and participated in a both a psychological and psychiatric
evaluation and complies with those recommendations.
Second Mother alleges that she has made substantial progress in alleviating the
circumstances which necessitated placement because she has obtained stable housing, financial
stability, and is safely able to parent and care for the children. Both arguments by Mother
31
essentially assert that she substantially complied with her court-ordered services necessary to
achieve reunification. For various reasons, this Court disagrees.
A majority of the analysis necessary to address Mother's argument on this issue has been
extensively discussed and outlined in the termination proceeding above. Consequently, the Court
will provide only a brief synopsis in dismissing Mother's issues on this matter. Mother claims
that she has "substantially complied with the permanency plan" in question. Such an assertion is
absolutely antithetic to the record in the instant matter. The reason the boys have remained in
placement for over two years is the direct result of Mother failing to substantially comply with
the permanency plan.
The Court is well aware of the strides Mother was making in attempting to be reunified
with the boys. However, Mother was unable to see compliance with the permanency plan to its
-conclusion despite how close she may have been. Furthermore, testimony at the hearing
established that despite Mother progress towards reunification up until April of 2015, she was
doing so while violating her probation. For the last two years it has been explained and stressed
to Mother that a component of her court-ordered services to achieve reunification is that she
must abide by provisions of her probation and refrain from further criminal activity. Despite this,
by Mother's own admission, she knew she was violating her probation while simply being
fortunate in avoiding detection. N.T. 9/18/15 at 7-8.
When the Petition was filed by the GAL, Mother was incarcerated and on disciplinary
status. N.T. 9/15/15 at 35-36. Thus, Mother was unable to provide stable housing, was not
employed, was unable to financially provide for the boys' needs and could not even have
visitation with them. Quite clearly Mother had not substantially complied with the permanency
plan. Moreover, even at the time of the hearing, it cannot be said that Mother had "substantially
32
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complied with her permanency p Ian." Although she was visiting with the boys again after her
I
release from jail, she had been living with her natural father for less than a month. N.T. 9/18/15
at 22. Her father had also agreed to hire her for his self-owned business roughly a week before
I
the hearing. N.T. 9/15/15 at 137-138. These facts would certainly not rise to the conclusion that
Mother has substantially complied with obtaining stable housing and financial stability
especially in light of the fact the boys' placement was over two years ago. Perhaps best
articulated by the GAL at the hearing, Mother's biggest problem is not housing or employment
but is her inability to maintain consistency with her court-ordered services. See 9/18/15 at 43.
For these reasons, this Court cannot conclude that Mother has substantially complied with her
permanency plan.
For very similar reasons, the Court must also conclude that Mother has not made
substantial progress in alleviating the circumstances which necessitated the boys' placement. As
mentioned, Mother had maintained stable housing and employment for less than a month at the
time of the hearing and was incarcerated when the Petition was filed. Such facts do not support
that Mother has made substantial progress in alleviating circumstances which necessitated the
boys' placement over two years ago.
II. Current Safety Risk
In her next issue, Mother contends that no evidence was presented at the hearing that
there was any current safety risk to the boys. Rather, Mother avers that this Court's decision to
change the boys' goal from reunification to adoption was based on stability for the boys derived
from speculative future circumstances. Mother argues that the relevant inquiry should have been
the current situation and analysis of the boys' safety. Mother again quotes the Benchbook which
states "[judicial determination related to removal, reunification and permanency should be
33
governed by safety." Benchbook at§ 2-6. This Court finds such an argument fails for multiple
reasons.
First, regardless of Mother's contentions otherwise, there was evidence presented at the
hearing that raised safety concerns regarding reunifying the boys with Mother. As correctly
highlighted by the Agency at the hearing, Mother appears to conclude that simply because she
how now obtained "stable" housing with her natural father that all safety issues involving the
boys have been remedied. The facts in the instant matter do not support such a conclusion.
Throughout the two years the boys have been in placement; Mother has been incarcerated five
separate times.8 N.T. 9/15/15 at 43. Mother's continued inability to stay out of jail raises safety
concerns about who would care and protect the boys in the event such behavior continued
especially in light of the fact that Father's parental rights have already been terminated.
Additionally, many of these incarcerations resulted from probation or parole violations for using
opiates or other drugs. N.T. 9/18/15 at 24, 42. Mother also admitted at the hearing that she was
struggling with drinking during April of 2015. Jd. at 33. Despite this, Mother failed to seek
alcohol or drug treatment until after she was incarcerated. Id. at 33-34. Clearly Mother's
continued struggles with addiction to drugs and alcohol are issues that raise safety concerns
about her ability to be reunified with and care for the boys.
Mother has also made other poor decisions just months before the Petition in this matter
was filed that present safety risks to the boys. Mother was to be reunified with the boys on April
10, 2015. However, testimony by her own stepfather indicates that in April of2015 Mother was
not staying at the Ojj . :t's home which was her agreed upon home plan. Instead, she was using
8
Since the boys' placement on July 3, 2013, Mother has been incarcerated from July 5, 2013 through Oct~ber 2,
2013; from October 24, 2013 through November 6, 2013; from December 12, 2013 through April 24, 2014; from
May 5, 2014 through June 20, 2014 and from April21, 2015 through August 20, 2015.
34
visit. N.T. 9/15/15 at 219. More troubling was that Mother was staying ata male friend's home
who was on parole for various charges including felony robbery. Id. at 214, 219, N.T. 9/18/15 at
7-8. These decisions not only ultimately led to Mother being incarcerated for violating her
probation but further delayed reunification with the boys and Mother's ability to care and keep
them safe. Additionally, such behavior also presented a risk of exposing the boys to a potentially
dangerous individual.
This Court would also note that the incident where L.B.M. returned to his foster home
with injuries after an unsupervised visit with Mother also presents safety concerns for the boys.
Although the incident was later determined to be unfounded, Mother was never able to provide
an explanation about how L.B.M. sustained his injuries that were consistent with the medical
documentation the Agency received. N.T. 9/15/15 at 89-90. This Court would note that
throughout both termination proceedings, there have never been any allegations that Mother
herself abused or neglected the children. Although Mother has at times struggled to control and
properly redirect the children, an issue any parent of two active young boys is likely to have, by
almost all accounts she was been properly able to discipline and show affection to the boys
during visits. Id. at 120. Thus, the reasons there was evidence at the hearing of current safety
risks to the boys was not Mother's inability to parent. Instead, it has been Mother's consistently
poor and shortsighted decision making. Simply put, who and what Mother has continued to
expose herself to over the last two years has impacted the safety of the boys.
Perhaps most telling regarding current safety risks the boys may face if reunification
efforts with Mother continue are best expressed from the GAL who had spoken with A.D .M. on
this issue. Specifically, the GAL stated the following at the hearing:
Also [A.D.M.J is very cognizant of [Mother) being
biological mother. He's aware that she loves him. And he
35
acknowledges that he loves her so much so that all
disappointment aside, if coming in here today, he'd probably
tell her he wants to be with her.
However, [A.D.M.] has also come to realize his mother
can't keep him safe, he cannot trust her, and he cannot believe
anything she says.
[A.D.M.] knows his mom continues to make decisions that
are contrary to his best interests and understands that it also
is contrary to [L.B.M.]. He knows that to be stable, safe, and
ultimately have what's left of his childhood, he needs to be
something more than what--he needs something more than what
she can provide right now.
(emphasis added) N.T. 9/18/15 at 46-47.9 In contrast, neither the GAL, the Agency, A.D.M. nor
Mother have any safety concerns for the boys in their current foster home. Id. at 16.
Assuming arguendo, that there was no evidence of a current safety risk to the·boys with
.reunification with Mother in the home she now shares with her natural father, this would still not
impact this Court's decision to change the goal of the boys to adoption. Mother appears to
misinterpret that "judicial determination related to removal, reunification and permanency should
be governed by safety." Benchbook, at§ 2-6. Mother asserts that simply because she has now
obtained stable housing, and thus the boys would be safe, that a goal change to adoption is
inappropriate. Mother is correct that safety of a child is an essential factor that must be
considered by a court at a permanency review hearing, including a goal change proceeding. See
42 Pa. C.S. § 6351. However, under Section 6351, the statutory authority for matters to be
determined at a permanency review hearing, "safety, permanency, and well-being of the child
must take precedence over all other considerations." In re D.P., 972 A.2d at 1227.
Therefore, simply because a child would be safe in reunifying with a parent is not
dispositive of the decision facing a court at a permanency review hearing. Instead, ensuring that
9
A.D.M.'sown words to the Court on this issue can be found at N.T. 9/15/15 at 10, 11.
36
the child will be safe wherever they will be placed at the current time, and in the future if
reunification occurs, acts as a floor of protection for the child and must guide the court's
decision. However, under Section 635 I(f) there are a copious number of factors a court must
consider. In addition to safety, the court must consider factors such as permanency, the well-
being of the child, progress made toward alieving circumstances which necessitated placement,
likely date by which the placement goal might be achieved and length of time in placement.
It is undisputed by the parties that there have been no safety concerns regarding the boys
care while in their foster home. Furthermore, all of the other factors weigh strongly against
Mother and in favor of a goal change to adoption. The boys have been in placement for over two
years, yet at the time the Petition was filed Mother was no closer to reunification than she had
been on July 3, 2013. For reasons that have been diligently detailed above, Mother has made
.minimal progress in alleviating the circumstances that necessitated placement. Notably, the two
other crucial considerations, permanency and the well-being of both boys, illustrate that a goal
change to adoption is necessary. Mother obtaining housing and employment through her natural
father less than a month prior to the hearing does not make a goal change from reunification to
adoption inappropriate in light of all the other factors necessary for this Court's consideration
under Section 635 I (f). Such minimal progress over a two year period will not toll the
requirements that the Agency has informed Mother she must complete in order to achieve
reunification. The boys' need for permanency and their well-being persuade this Court that a
change to adoption is absolutely necessary.
III. Motion to Modify Placement
· Finally, Mother contends that the Court erred when it denied her Motion to Modify
Placement of the boys from foster care to approved kinship care of the(£ 1s. Mother points
37
out that the Oil ••flss have had a relationship with the boys since birth, have consistently visited
with them while in placement and have a safe and stable home for the boys to reside. At the
hearing both Mrs. 0-and Mr. 0 I testified.
The O ? f s reside in Greencastle, Pennsylvania, which is located in Franklin County.
N.T. 9/15/15 at 168. The ~s are currently both employed at Beck Manufacturing. Id. at
170, 215. At the hearing, the Ot as: indicated they were willing to be a resource for the boys
at the present time. Id at 171. It is undisputed that prior to the boys coming into placement, the
OJ . As were contacted about becoming a possible resource. Id. at 217. In fact, Mother
actually came to the O I J 11 first and explainedto them that if they could not be a resource,
she would have to call the Agency. Id. Mr. ON 11 testified that because of their work
schedules and living arrangements they informed Mother they could not be a resource but did not
believe she would actually call the Agency. Id. As a result, the boys came into placement on July
I) did participate in short visits with the boys beginning in December of
2013. Id. at 174. However at no point did they offer themselves as a kinship resource or
complete a home study in the first year of the boys' placement. Id. 242.
Finally, at the first termination proceeding involving the boys, the O s offered
themselves as a kinship resource. N.T. 9/15/15 at 43. On October 13, 2014, the Agency made a
referral to Family Care Services for a kinship care family profile of the OE •s. Id. That
referral was subsequently denied in December of2014 because the O Es failed to complete
all of the paperwork and other requirements. Id. This denial occurred roughly a month after this
Court's November 25, 2014 Opinion and Order of Court that decided against terminating
Mother's parental rights. Interestingly, when asked to explain the couple's course of action
regarding becoming a resource for the boys since their placement, Mr. 0 B $ testified:
38
.
»
Q: You also testified that your primary concern is the
boys, the kids come first and they always have. If that's the
case, why did you and your wife not make efforts to be
considered as a kinship resource for the boys prior to, or
complete efforts rather, prior to or after the last termination
hearing?
A: Can you repeat that, please?
Q: Sure. You testified that the boys are your main
concern, they come first?
A:Yes.
Q: And yet you and your wife did not complete a home
study to be considered as a resource until after the last
termination hearing?
A: That's correct.
Q: So why did you not complete that if the boys were
always your main concern?
A: Because the Judge already ordered the kids could come
home at some point in time. Plus we were actually still doing
it. And [Mother] got a little mad at us that we did continue doing
it. So we stopped.
Q: If the boys were your main concerns, why didn't you
say, I get it, I understand but we need to put the boys first?
A: Because it was already determined that they were going
to be returned home at some point. So why continue doing it if
they were already going to be coming home.
Q: What about prior to October 2014? They were placed in
July of 2013. So over a year prior to that, why did you not
take any steps to have them possibly with you?
A: I don't have an answer for that.
(emphasis added) Id. at 241~242.
The Olt•lllss did not identify themselves a possible kinship resource again until April
23, 2015, two days after Mother was reincarcerated for violating her probation. Id. at 44. The
39
..
referral was actually approved by Family Care Services but denied by the Agency over issues
with the family profile. Id. Specifically, the Agency had concerns with Mr. O••f 's DUI
charges and sobriety. Id. Furthermore, the Agency believed the O I 3 s were not supportive of
Mother as illustrated by arguments between Mother and Mr. 0 il in front of A.D.M. during
unsupervised visits. Id.
Prior to Mother's April 2015 incarceration she was residing at the or Is' home as it
was her approved home plan after her most recent release from jail. At the hearing, the O s
both acknowledged that they were aware that Mother's home plan was their residence and that if
she stayed overnight elsewhere she would not be in compliance with her probation. N.T. 9/15/15
at 212, 240. Despite this, Mrs. Otd •II stated that she was aware Mother had been staying
overnight at another man's house roughly two to three nights a week. Id. at 205. Mr. 0-
further explained that Mother was not even living at their residence but instead using it as a
storage unit so she could sleep at her boyfriend's house for two months prior to her probation
violation. Id. at 219, 227. Additionally, he explained that he suspected her of drinking around
this time period. Id. However, the O•• t, each admitted that despite knowing these were
violations by Mother of her probation, neither contacted the Agency. Id. at 200-201, 227. Finally,
the 0£ ff : were fully aware that Mother had battled substance abuse issues in the past and
was a recovering drug addict. Id. 189-190, 231.
Although a change in placement of a child may at times be necessary, a court should
implement moving of a child "only when absolutely necessary." Benchbook; at § 10-1. Pa.
R.J.C.P. 1606(b) provides that a motion for modification must include:
1) the specific reasons for the necessity of change to the order;
(2) the proposed placement;
(3) the current location of the child;
40
(4) the manner in which any educational, health care, and disability
needs of the child will be addressed;
(5) an avennent as to whether each party concurs or objects to 'the 1'
proposal, including the child's wishes if ascertainable; and
(6) the signatures of all the parties. t '~"
~·- '
Unfortunately Rule 1606 provides little guidance on what factors a court should consider when
reaching a modification decision. However, the Benchbook is instructive on this issue and
recommends a trial court to consider:
1. The reasons for the move;
2. If the new placement is more restrictive;
3. The permanency goal and whether the move will enhance the
opportunity to realize that goal;
4. The educational and health needs of the child, with special
emphasis on if a move with result in a change of schools;
5. Trauma and sense of loss that the child may experience;
6. Continued opportunity for parents/guardians/siblings in the
child's life to visit;
7. Safety of the child;
8. Any other factors the court deems appropriate.
Benchbook, at§ 10-3.
As to the first factor, the reasons for the request appear to be having the boys reside with
relatives, their grandparents, as opposed to their current foster family. Second, it does not appear
that the proposed placement is more or less restrictive than the boys' current placement.
Regarding the third factor, the children's permanency goal and whether the move will enhance
the opportunity to realize that goal, this Court finds that a move in placement would have no
relevant impact on the boys' goal of adoption.
Turning to the fourth factor, this Court finds that the educational and health needs of the
boys require them to remain in their current placement with their foster family. Currently,
A.D.M. attends school at Mowrey Elementary in Waynesboro, Pennsylvania. N.T. 9/15/15 at 5,
41
178. The O lj fs reside in the Greencastle school district. Id. at 178. Ms. 0 ; 79 testified that
AD.M. likes his current school. Id. at 203. AD.M. did previously attend school in Greencastle
although that was prior to March of 2014. Id. L.B.M. currently attends a day care program and
will soon be starting preschool. Id. at 54. L.B.M. appears to be doing very in his day care
program and enjoys it. Id. at 55. When L.B.M. first came into placement he was struggling with
speech problems. However, while with his foster family L.B.M. has made "significant strides in
his speech" in large part to speech therapy he attends once a week. Id. at 53-54. All of these facts
persuade this Court that the educational and health needs of the boys are best served by not
instituting a change in placement. Both boys appear to be enjoying and starting to thrive at their
schools and this Court has concerns about again upsetting such stability. Furthermore, L.B.M. 's
speech has drastically improved while in his current home and routine.
Next, this Court must consider the trauma and sense of loss the boys might experience
from a change in placement. Without question, taking L.B.M. out of his foster home and placing
him with the 0- would cause him significant trauma and sense of loss. L.B.M. was
incredibly young when he came into placement. N.T. 9/15/15 at 56-57. His foster family is the
only family he has ever known. Not surprisingly L.B.M. has referred to his foster parents as
II?:Om and dad since he came into placement and continues to do so. Id. at 56. In contrast, L.B.M.
recognizes the 0-s as grandparents. In fact, both boys referto Mr. on A as Pappy. Id. at
216. According to Mr. Kane, A.D.M. also loves his foster family very much and his foster
parents treat him like their own son. Id. at 156-157. Three months prior to the hearing, A.D.M.
began referring to his foster parents as mom and dad. Id. at 56. Both boys have also formed
significant bonds with their foster siblings. id. at 52, 55. This Court has serious concerns about
the trauma and sense of loss both boys would feel if they were torn from their foster home. The
42
\)
boys love and have a significant bond with their foster family and moving them would only
continue the endless cycle of instability they have endured for so much of their young lives.
Although the sixth factor may allow Mother to visit the boys more often, moving the
children could also restrict their ability to visit with their foster parents and siblings. Therefore,
this Court finds this factor to be of little relevance in reaching a conclusion on this issue. Finally,
there are no safety concerns for the boys in their current foster home.
Additionally, this Court finds numerous other factors relevant in resolving Mother's
Motion. These include the testimony of the O 1 $ ., the length of time the boys were in
placement before the 04lllllt, made themselves a permanent resource and their clear role as
grandparents to the boys as opposed to parents. Specifically on these points this Court stated at
the hearing:
As to placement pending an adoption, I'm denying the request for a
modification of placement to the home of Mr. and Mrs. 0 d •
for several reasons. I am troubled by the testimony that was
provided by Mr. and Mrs. 0 3 5 recognizing to different
degrees the failures of [Mother] while in their home while they
also had an obligation to be ensuring safety of
their grandchildren and not providing truthful information about
[Mother's] living arrangements, about her use of alcohol, about her
associating with individuals with a criminal record in violation of
the terms of her parole.
And they are grandparents. It wasn't until this final time of your
incarceration that they have come forward saying they wanted to
be a permanent resource.
In the meantime, the boys have developed the relationship, the
family, the permanency they want with the foster parents who have
been there 24/7 as the boys have struggled with going in and out of
preparing to reunify and being rejected and being of an age to
understand why they're not seeing mom even in jail because she's
not following rules in jail.
43
So there will be no further changes for these boys. They will have
their answer as to what their life will be and that they will have the
support they need to deal with their new reality.
Id. at 53-54.
Taking into consideration all of the aforementioned factors, this Court must conclude that
changing the placement of the boys is not absolutely necessary and would actually be incredibly
detrimental to them. It would very likely cause significant trauma and sense of loss. Furthermore,
a move would be contrary to the boys' educational and health needs. For all these reasons, this
Court finds that a modification of placement is inappropriate.
CONCLUSION
There is no question that Mother deeply loves both of her sons. In many respects, it was
this love and bond that persuaded this Court not to terminate the parental rights of Mother a year
ago. However, sadly for all involved, the current situation has actually become worse. Despite
making strides at certain points during the boys' placement that has lasted well over two years,
Mother has failed to the maintain consistency, safety, and stability necessary for reunification.
Despite the grounds under Section 251 l(a) having been clearly and convincingly proven, the
Court takes no pleasure in carrying out its duty in ordering the termination of parental rights and
finding the goal of reunification no longer appropriate. Yet even with the support of the Agency,
the GAL and Mother's own attorney, Mother's actions convince this Court it has no other choice
but to terminate and make a goal change.
Turning to 251 l(b), the Court recognizes the bond that exists between Mother and the
boys, particularly with A.D.M. Although it may have once been, the bond between Mother and
A.D.M. is no longer a nurturing one. It is not a bond that provides the safety and protection a
44
parent must provide a child. Instead, it is a bond that has riddled much of A.D.M.' s young life
with disappointment and uncertainty. The record is replete with evidence from various sources
that the most important need in A.D.M.'s life at this point is permanency. Both boys are thriving
in their foster home and the time has come that each of them will know where they will be in the
future. Consequently, this Court finds that despite the emotional bond between Mother and the
boys, it is in their best interest that Mother's parental rights are terminated and their permanency
goal be changed from reunification to adoption. Furthermore, for similar reasons described in
detail above, this Court denies Mother's Modification of Placement. Accordingly, the grounds
for termination of parental rights under the statute having been proven and in the boys' best
interest, and the goal change being in the boys' best interest, the Court respectfully requests the
Superior Court dismiss the instant appeal and affirm the termination of parental rights, goal
change to adoption, and denial of Mother's Motion for Modification of Placement.
45
V.
KN 'fHE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
IN RE: ADOPTION OF Orphans' Court Division
A.D.M.
41 - ADOPT· 2014
A Minor
IN RE: ADOPTION OF Honorable Carol L. Van Horn
L.B.M.
42 - ADOPT - 2014
A Minor
Honorable Carol L. Van Horn
IN INTEREST OF: Juvenile Court Division
A.D.M., CP-28-DP-0051-2013
A Minor Male Child
Born: Marchi, 2007
Honorable Carol L. Van Hom
IN INTERSEST OF:
L.B.M., CP-28-DP-0050-2013
A Minor Male Child
Born: Mayf 2011
Honorable Carol L. Van Horn
ORDER OF COURT
AND NOW THIS --1!:__ day of December, 2015, pursuant to Pa. R.A.P. 1931(c),
IT IS HEREBY ORDERED that the Clerk of Courts of Franklin County shall promptly
transmit to the Superior Court of Pennsylvania the records in these matters along with the
attached Opinionsur Pa. R.A.P. 1925(a).
The Clerk shall immediately docket this Opinion and Order of Court and record in the
docket the date it was made. The Clerk shall forthwith furnish a copy of the Opinion and Order
46
of Court, by mail or personal delivery, to each party or attorney, and shall record in the docket
the time and manner thereof ·
By the Court,
Carol L. Van Hom, P .J.
copies:
Kristen Hamilton, Esq., GAL
Theresa M. Yankey, Esq., Counsel for Agency
Kristin Nicklas, Esq., Counsel for Natural Mother
l
I
. i
47