In Re: Adoption of: K.K., a minor, Appeal of: K.K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: K.K., A : IN THE SUPERIOR COURT OF
MINOR CHILD : PENNSYLVANIA
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APPEAL OF: K.K., MOTHER :
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: No. 850 WDA 2016
Appeal from the Decree Entered May 17, 2016
In the Court of Common Pleas of Washington County
Orphans’ Court at No(s): CP-63-DP-0000174-2015
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, and JENKINS, JJ.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 15, 2016
K.K. (“Mother”) appeals the decree of the Court of Common Pleas of
Washington County, Orphans’ Court, entered May 17, 2016, that granted the
petition filed by Washington County Children and Youth Social Services
Agency (“CYS”) to terminate her parental rights to her child, K.K. (“Child”)
(born in September of 2015), and to change Child’s permanency goal to
adoption.1 We affirm.
The trial court related the factual and procedural history as follows:
[Child] was born opiate dependent [in September of
2015]. [M]other received no prenatal care. [Child] at birth
experienced severe withdrawal symptoms and remained in the
hospital until October 8, 2015 and she was then transferred to
another facility until November 24, 2015, when she was
1
The trial court also terminated the parental rights of Child’s father, A.H
(“Father”). Father did not appeal that termination.
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discharged and placed in a pre-adoptive foster home, where she
has remained.
Shortly after [Child]’s birth, CYS filed a dependency
petition. On October 6, 2015, the [j]uvenile [c]ourt found that
[Child] was dependent; the dependency [c]ourt also found that
an aggravated circumstance was present and relieved CYS of
any efforts to reunify [C]hild and her parents. At the
dependency hearing, because no reunification efforts or services
were required, no visitation between the parents and [C]hild was
ordered. The dependency order and findings were not appealed.
The aggravated circumstance found by the dependency [c]ourt
was based on the fact that both Mother and Father had their
parental rights involuntarily terminated as to other children on
June 24, 2015 by [the trial court]. [M]other and Father
appealed that termination order and the Superior Court affirmed
the termination in a non-precedential decision dated February
12, 2016.
At the termination hearing on March 29, 2016,[2] [M]other
testified that she was in a methadone treatment program and
compliant, worked full-time and recently moved in with her
parents. The [trial court] found that [M]other’s testimony that
she was living with her parents was not credible; Mother had
testified at a previous hearing regarding her older children
before [the trial court] in May 2015 that she had moved to her
parents’ home, but at [Child]’s birth, a few months later, in
September of 2015, she was residing with Father and not with
her parents. [M]other was drug tested regularly since [Child]’s
birth; the last positive drug test was in December 2015.
The CYS caseworker, Andrew Albright, testified that the
home the parents occupied and where [M]other was present in
October 2015 had broken windows, garbage strewn throughout
and was not appropriate. After [C]hild’s birth, [M]other was
released from the hospital on September 21, 2015 and did not
contact [C]hild or [the] hospital for several days. She came for
a visit with [C]hild a few days later and visited thereafter every
few days. After the dependency hearing on October 6, 2015,
[M]other’s visitation was required to be supervised by an
approved family member. Initially, paternal grandfather and his
2
On January 8, 2016, CYS filed a petition to involuntarily terminate Mother’s
parental rights to Child.
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wife accompanied Mother to the visits, but they then moved to
Florida and were unavailable. Visitation with Mother then ceased
in November 2015.
Trial Court Opinion, 7/8/16, at 1-3.
On May 17, 2016, the trial court terminated Mother’s parental rights to
Child pursuant to sections 2511(a)(2) and (b) of the Adoption Act. Mother
filed a notice of appeal on June 13, 2016, along with a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother raises three issues on appeal:
1. Whether the [trial c]ourt erred in analyzing and applying
aggravated circumstances in considering the request to
terminate [Mother]’s parental rights?
2. Whether the evidence supported a finding that [Mother]
could not and would not remedy the causes for placement
of [C]hild?
3. Whether the evidence supported a termination of
[Mother]’s parental rights pursuant to 2511(b)?
Mother’s Brief at 4.
We review an appeal from the termination of parental rights in
accordance with the following standard:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., [] 9 A.3d 1179,
1190 ([Pa.]2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
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Instead, a decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion. In re Adoption of
Atencio, [] 650 A.2d 1064, 1066 ([Pa.]1994).
In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa.2012) (some internal
citations omitted).
As the petitioner, DHS carries the burden to prove by clear and
convincing evidence that the asserted grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273 (Pa.Super.2009).
Moreover:
[t]he standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. at 276 (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super.2003)).
This Court may affirm a trial court’s decision regarding the termination of
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parental rights with regard to any one subsection of section 2511(a). In re
B.L.W., 843 A.2d 380, 384 (Pa.Super.2004) (en banc).
Here, the trial court terminated Mother’s parental rights under
Subsection (a)(2), which provides as follows:
§ 2511. Grounds for involuntary termination
(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.
23 Pa.C.S. § 2511(a)(2).
We have stated:
In order to terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super.2003) (citations
omitted).
Mother’s first and second arguments challenge the trial court’s
determination that CYS sustained its burden of proving that her parental
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rights to Child should be terminated pursuant to Section 2511(a)(2). In her
brief, Mother argues that the trial court erred in applying aggravated
circumstances in considering the request to terminate Mother’s parental
rights. Mother’s Brief at 9. Mother also contends that the trial court erred in
finding by clear and convincing evidence that the causes of the incapacity,
abuse, neglect, refusal cannot or will not be remedied by Mother. 3 Id. at
16. Mother additionally claims that termination requires “a significant time
period to be considered.” Id. at 14.
This Court has determined that, “unlike Sections (a)(1), (5), and (8),
Section 2511(a)(2) does not provide a statutory time constraint on
termination. Rather, Section 2511(a)(2) addresses situations where
remedial aid by an agency is not required, i.e. when there is a finding of
aggravated circumstances[.]” In re A.S., 11 A.3d 473, 481–82
(Pa.Super.2010).
Here, Mother’s inability to parent Child predates Child’s birth. Courts
have previously terminated Mother’s parental rights to her other three
children. Further, the scope of CYS’s involvement with the family indicates
that Mother has been and remains unable or unwilling to remedy the
conditions that led to Child’s placement. Moreover, the trial court found that
the circumstances have not changed significantly:
3
Mother does not contest the first and second prong of the test set forth in
In re Adoption of M.E.P., 825 A.2d at 1272.
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[M]other’s last positive drug test was in December of 2015 and
both parents are only in the beginnings of long-term drug
treatment. Simply, with the involuntary termination of parental
rights, the parents have already been declared as unfit and they
are not afforded another opportunity with a new baby absent
extraordinary circumstances.
Trial Court Opinion, 5/17/16, at 3. In light of the aggravating circumstances
of the case – the prior termination of Mother’s rights to her three other
children, coupled with Mother’s long history of drug use and lack of
consistency in drug treatment – we find the trial court properly terminated
Mother’s parental rights pursuant to Section 2511(a)(2).
Finally, we address Mother’s last issue. Therein, Mother argues that
the trial court erred in finding that Mother’s parental rights should be
terminated under Section 2511(b). Mother’s Brief at 10.
Following a determination that the requirements of Section 2511(a)
have been satisfied, we proceed to review whether the requirements of
Section 2511(b) have been satisfied. In re Adoption of C.L.G., 956 A.2d
999, 1009 (Pa.Super.2008) (en banc). The focus in terminating parental
rights under Section 2511(a) is on the parent, but under Section 2511(b),
the focus is on the child. Id. at 1008.
Section (b) provides as follows:
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
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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(b). In reviewing evidence offered in support of
termination under section 2511(b), our Supreme Court recently stated:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23
Pa.C.S. § 2511(b). The emotional needs and welfare of the child
have been properly interpreted to include “[i]ntangibles such as
love, comfort, security, and stability.” In re K.M., 53 A.3d 781,
791 (Pa.Super.2012). In In re E.M., 620 A.2d at 485, this
Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.
In re T.S.M., 71 A.3d 251, 267 (Pa.2013). Moreover, we have observed
that no bond worth preserving is formed between a child and a natural
parent where the child has been in foster care for most of the child’s life,
and the resulting bond with the natural parent is attenuated. In re K.Z.S.,
946 A.2d 753, 764 (Pa.Super.2008).
When conducting a bonding analysis, the court is not required to use
expert testimony. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super.2010).
Further, while Mother may love Child, a parent’s own feelings of love and
affection for a child, alone, will not preclude termination of parental rights.
Id. at 1121. As we stated in In re Z.P., a child’s life “simply cannot be put
on hold in the hope that [a parent] will summon the ability to handle the
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responsibilities of parenting.” Id. at 1125. Rather, “a parent’s basic
constitutional right to the custody and rearing of his child is converted, upon
the failure to fulfill his or her parental duties, to the child’s right to have
proper parenting and fulfillment of his or her potential in a permanent,
healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856
(Pa.Super.2004).
The trial court found that CYS proved, by clear and convincing
evidence, that termination best served the needs and welfare of [C]hild.
Trial Court Opinion, 7/8/16, at 7. Specifically, the trial court found “no bond
existed between [C]hild and [M]other as she has never lived with her Mother
and has only been in physical contact with her Mother a handful of times.”
Id. Moreover, the trial court found “no detrimental effects would occur as to
[C]hild if the parental rights were terminated.” Id. The guardian ad litem
strongly supported termination of Mother’s parental rights. N.T., 3/29/16,
143-44. Furthermore, the guardian ad litem found that there was no bond
between Mother and Child, and that termination of Mother’s parental rights
would not have any negative effect on Child. N.T., 3/29/16, at 20.
As part of its bonding analysis, the trial court appropriately examined
Child’s relationship with Mother and her caregivers. See In re T.S.M., 71
A.3d at 267–268 (stating that existence of a bond attachment of a child to a
parent will not necessarily result in the denial of a termination petition, and
the court must consider whether the child has a bond with the foster
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parents). Specifically, the trial court found “[C]hild is in a pre-adoptive
home where she has been since being released from the hospital and is
bonded and thriving with them.” Trial Court Opinion, 7/8/16, at 7.
The record reveals that Mother’s inability to care for Child was due to
her inability and unwillingness to manage her own drug addiction. Mother
failed to “exhibit [the] bilateral relationship which emanates from the
parent[’s] willingness to learn appropriate parenting . . . .” In re K.K.R.S.,
958 A.2d 529, 534 (Pa.Super.2008). Because competent evidence exists in
the record to support the trial court’s credibility and weight assessments
regarding Child’s needs and welfare and the absence of any bond with
Mother, we conclude that the trial court did not abuse its discretion in finding
that Mother’s appeal as to Section 2511(b) lacks merit. See In re
Adoption of S.P., 47 A.3d at 826–827. Accordingly, we affirm the decree
terminating Mother’s parental rights.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
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