In Re: J.L.R., Appeal of: B.B. ( 2023 )

J-S19019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: J.L.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.B., MOTHER :
:
:
:
:
: No. 159 MDA 2023
Appeal from the Decree Entered December 30, 2022
In the Court of Common Pleas of Huntingdon County Orphans' Court at
No(s): 2022-00012
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 25, 2023
B.B. (“Mother”) appeals from the decree terminating her parental rights
as to her minor child, J.L.R. (“Child”). We affirm.
Huntington County Children’s Services (the “Agency”) became involved
with the family in March 2021. Child, who was five years old at the time, had
been living with his maternal grandmother (“Maternal Grandmother”) since
infancy. N.T., 12/30/22, at 13. Maternal Grandmother was Child’s legal
guardian and primary caretaker. Id. at 3, 6. She was arrested for causing a
house fire in which Child was present and she pled no contest to arson. Id. at
3, 24. There were also reports of ongoing sexual abuse of Child by Child’s
cousin in Maternal Grandmother’s home. Id. at 3. Child was adjudicated
dependent on April 5, 2021. Child was removed from Maternal Grandmother
and was placed in a kinship foster home. Id. at 24.
J-S19019-23
On September 30, 2022, the Agency filed a petition for involuntary
termination of Mother’s parental rights. The court held a hearing on the
petition on December 30, 2022.
At the hearing, the Agency presented the testimony of case worker
Christi Shawley. Shawley testified that Mother’s goals were to address her
drug use, maintain stable housing, complete a parenting program, avail
herself to services, and attend visitation. Id. at 26-27. Shawley stated that
out of all her goals, Mother only completed the parenting program, albeit after
the filing of the termination petition. Id. at 34-35. With respect to visitation,
Shawley said that Mother had nine scheduled visits with Child during the life
of the case, but she only attended one in-person visit and three virtual visits
via Zoom. Id. at 29. Shawley testified that Mother’s last in-person visit was
in December 2021, over one year before the termination hearing. Id. Mother’s
visits were suspended by the court in March 2022 because Child did not want
to see Mother and would become extremely upset after visits with her. Id.
Shawley testified that after the Zoom visits, she had to call the foster mother
to help her deescalate Child who was “overturning chairs, throwing things,
screaming and yelling and kept saying that he doesn’t want to see” Mother.
Id.
Shawley further testified that Mother did not have stable housing. Id.
at 32. She also stated that Mother had only sporadic contact with the Agency,
and that there were periods of time where the Agency was unable to reach
her or where she did not avail herself of the Agency’s services. Id. at 32-33.
-2-
J-S19019-23
Shawley also testified that Mother tested positive for methamphetamines on
March 23, 2022. Id. at 36. Lastly, Shawley testified that Child’s foster parents
are ready and willing to adopt him. Id. at 33.
The Agency also presented the testimony of Dr. Kristen Hennessey. Dr.
Hennessey testified that she is a licensed psychologist specializing in the
treatment of children with complex trauma and that Child had been under her
care since April 2021. Id. at 2-3. Dr. Hennessey testified that Child was
referred to her due to his exposure to the house fire and sexual abuse by his
cousin. Id. at 3. Child also had a lot of trauma connected to Maternal
Grandmother. Id. Dr. Hennessy stated that Mother has never been Child’s
primary caretaker and Child had lived with Maternal Grandmother since
infancy. Id. at 13. Dr. Hennessey testified that Mother was not consistent with
visits with Child. Id. She previously recommended suspending visits because
when Child was on the way to his visits with Mother, he would be in “a state
of crisis” and would become dangerous in the car en route to the visits. Id. at
6, 14. Dr. Hennessey testified that “the idea of having visits [with Mother] was
horrible for him and would lead to symptoms.” Id. at 14. She stated Child
would feel unsafe if he lived with Mother because Child believed that Mother
would take him to Maternal Grandmother’s house, which “means being hurt.”
Id. 6-7, 13. Dr. Hennessey also testified that Child does not see Mother as his
protector. Id. at 12-13. Dr. Hennessy said that Child told her that Mother
witnessed episodes of his abuse and he also told Mother about the abuse. Id.
at 13. Dr. Hennessey stated that Mother told her that she “was aware of the
-3-
J-S19019-23
things that were going on but that she didn’t know what to do because she
did not have custody.” Id.
Dr. Hennessey further testified that Child does not have a bond with
Mother, and they do not have a mother/child relationship. Id. at 7, 11. She
said he barely speaks about Mother, and Mother is “not on his radar.” Id. at
7. On the other hand, Dr. Hennessey stated that Child has a good bond with
his foster parents, and he wants to continue to live with them. Id. at 8-9. Dr.
Hennessey opined that Child would experience trauma if his bond with his
foster parents was severed. Id. at 9. She stated that Child’s mental health
would be in a better position if Mother’s parental rights were terminated. Id.
at 10.
The Agency also presented the testimony of Maddie Sell. Sell testified
that she is a therapist employed by Sara Jefferson, LCSW, and assists in
completing parenting attachment assessments. Id. at 15. She stated that
Mother completed approximately half of the testing required for her
attachment assessment. Id. at 17. Sell testified that Mother did not complete
the testing because Mother said she was going to test positive for Percocet
and morphine. Id. Mother was not able to produce a prescription for those
drugs. Id. at 21. Mother was a no-show at the rescheduled testing date and
did not respond to Sell’s attempts to reschedule the testing. Id. at 18, 20. Sell
stated that Mother was not able to care for Child. Id. at 20. Sell testified that
there is a “disengagement” by both Mother and Child in their relationship and
Child does not refer to Mother as “mom” but rather refers to her by her first
-4-
J-S19019-23
name. Id. at 18, 19-20. Conversely, she stated that Child has a “great bond”
with his foster mother and they have “a very natural sort of interaction.” Id.
at 19.
Mother did not appear at the termination hearing or produce any
evidence.
After the hearing, the trial court found that the Agency proved by clear
and convincing evidence that Mother’s parental rights should be terminated
under sections 2511(a)(5) and (8) and section 2511(b) of the Adoption Act.
Mother filed a notice of appeal and raises the following issue:
Whether the evidence was insufficient to support the termination
of the parental rights of [Mother] as related to [Child] if the
termination was premised, either in whole or in part, on, inter alia,
purely hearsay evidence of continued drug abuse, and an
incomplete attachment assessment?
Mother’s Br. at 5.
We review an order involuntarily terminating parental rights for an
abuse of discretion. In re G.M.S., 193 A.3d 395, 399 (Pa.Super. 2018). In
termination cases, we “accept the findings of fact and credibility
determinations of the trial court if they are supported by the record.” In re
T.S.M., 71 A.3d 251, 267 (Pa. 2013) (quoting In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012)). “If the factual findings have support in the record,
we then determine if the trial court committed an error of law or abuse of
discretion.” In re Adoption of K.C., 199 A.3d 470, 473 (Pa.Super. 2018).
We will reverse a termination order “only upon demonstration of manifest
-5-
J-S19019-23
unreasonableness, partiality, prejudice, bias, or ill-will.” In re Adoption of
S.P., 47 A.3d at 826.
A party seeking to terminate parental rights has the burden of
establishing grounds for termination by clear and convincing evidence. In re
Adoption of K.C., 199 A.3d at 473. Clear and convincing evidence means
evidence “that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. (citation omitted).
Termination of parental rights is controlled by section 2511 of the
Adoption Act. In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007). Under this
provision, the trial court must engage in a bifurcated analysis prior to
terminating parental rights:
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in [s]ection 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 [s]ection 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.
Id. (citations omitted). To affirm the termination of parental rights, this Court
need only affirm the trial court’s decision as to any one subsection of section
2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004) (en banc).
-6-
J-S19019-23
Here, the court found termination proper under sections 2511(a)(5) and
(8), as well as under section 2511(b). As only one basis for termination under
2511(a) is necessary, we will focus on the court’s termination of Mother’s
parental rights under section 2511(a)(8). That section provides that a parent’s
rights to a child may be terminated if:
The child has been removed from the care of the parent by the
court or under a voluntary agreement with an agency, 12 months
or more have elapsed from the date of removal or placement, the
conditions which led to the removal or placement of the child
continue to exist and termination of parental rights would best
serve the needs and welfare of the child.
23 Pa.C.S.A. § 2511(a)(8).
Section 2511(a)(8) “sets a 12-month time frame for a parent to remedy
the conditions that led to the children’s removal by the court.” In re A.R.,
837 A.2d 560, 564 (Pa.Super. 2003). Once the 12-month period has been
proven, the court “must next determine whether the conditions that led to the
children’s removal continue to exist.” Id. “As a result, the relevant inquiry in
this regard is whether the conditions that led to removal have been remedied
and thus whether reunification of parent and child is imminent at the time of
the hearing.” In re I.J., 972 A.2d 5, 11 (Pa.Super. 2009). “Termination under
[s]ection 2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of Agency services.” In re Z.P., 994 A.2d 1108,
1118 (Pa.Super. 2010).
-7-
J-S19019-23
Here, Child has been in placement since March 2021. Therefore, Child
has been in care in excess of 12 months. We next focus our inquiry on whether
the conditions that led to Child’s removal continued to exist at the time the
court terminated Mother’s parental rights.
The court found that the conditions that existed at the time of Child’s
placement continued to exist at the time of the termination hearing. See Trial
Court Decree, dated 12/30/22, at Conclusions of Law ¶ 4. The court found
that Mother did not maintain sobriety or complete court-ordered drug and
alcohol counseling, failed to complete a parenting program prior to the filing
of the termination petition, failed to maintain stable housing, had not been
cooperative with the Agency, and was inconsistent with visits with Child prior
to visits being suspended. Id. at Findings of Fact ¶ 2. As a result, the court
concluded that Mother failed to remedy the issues that necessitated Child’s
placement. Id. at Conclusions of Law ¶ 3.
We discern no abuse of discretion. The record supports the court’s
finding that the conditions that led to Child’s removal continue to exist. Mother
was never Child’s primary caretaker nor ever parented Child in any significant
way. Mother was sporadic with visits with Child and the visits caused Child so
much distress that the court ordered that the visits be suspended. Although
Mother eventually completed the parenting program,1 she wholly failed to
____________________________________________
1 Mother argues that the court erred by not considering the fact that she
eventually completed the parenting program in November 2022,
(Footnote Continued Next Page)
-8-
J-S19019-23
complete any of her other goals. The court’s findings are supported by the
record and it did not abuse its discretion in determining that the requirements
of section 2511(a)(8) were satisfied.
In addition to generally arguing that the evidence was insufficient to
support termination of her parental rights, Mother also argues that the court
impermissibly relied on hearsay evidence of Mother’s continued drug use and
an incomplete attachment assessment. However, Mother concedes that these
issues are waived since they were not raised in the trial court. See Mother’s
Br. at 21. We agree that the issues are waived. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
on appeal”). We also note these specific issues were not included in Mother’s
Rule 1925(b) statement and we therefore find waiver on this additional basis.
See Pa.R.A.P. 1925(b)(4)(vii).
We next determine whether termination was proper under section
2511(b). However, since Mother failed to present any argument concerning
section 2511(b) in her brief, she waived any challenge related to that section.
See In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017).
____________________________________________
approximately two months after the filing of the termination petition. Mother’s
Br. at 20, 25. Citing In re Z.P., 994 A.2d at1121, she contends that a court
“may consider post-petition efforts if the efforts were initiated before the filing
of the termination petition and continued after the petition date.” Id. at 25.
However, the court cited many other factors in support of its decision to
terminate Mother’s parental rights. Moreover, the court did, in fact, hear
testimony that Mother completed the program. N.T. at 34-35.
-9-
J-S19019-23
Even if Mother had preserved her challenge to section 2511(b), we
would conclude that it lacked merit. Under section 2511(b), the trial court
must consider “the developmental, physical and emotional needs and welfare
of the child” to determine if termination of parental rights is in the best interest
of the child. See 23 Pa.C.S.A. § 2511(b). This inquiry involves assessment of
“[i]ntangibles such as love, comfort, security, and stability[.]” In re C.M.S.,
884 A.2d 1284, 1287 (Pa.Super. 2005). The court must also examine the
parent-child bond, “with utmost attention to the effect on the child of
permanently severing that bond.” Id. The trial court must consider whether
severing the bond “would destroy an existing, necessary and beneficial
relationship.” In re N.A.M., 33 A.3d 95, 103 (Pa.Super. 2011) (citation
omitted).2 The court must also examine any pre-adoptive home and any bond
between the child and the foster parents. In re T.S.M., 71 A.3d at 268.
Here, there was ample evidence that Child has no bond with Mother and
they do not have a parent-child relationship. Child calls Mother by her first
name and Mother has never been a caregiver to Child. Child stated that he
____________________________________________
2 See also In the Interest of K.T., --- A.3d ----, Nos. 37 & 38 WAP 2022,
2023 WL 4092986, at *18 (Pa. filed June 21, 2023) (stating that in addition
to determining whether the parental bond is necessary and beneficial to the
child, “[t]he [s]ection 2511(b) inquiry must also include consideration of other
important factors such as: the child’s need for permanency and length of time
in foster care consistent with 42 Pa.C.S. § 6351(f)(9) and federal law [the
Adoption and Safe Families Act of 1997], 42 U.S.C. §§ 675(5)(C), (E); whether
the child is in a preadoptive home and bonded with foster parents; and
whether the foster home meets the child’s developmental, physical, and
emotional needs, including intangible needs of love, comfort, security, safety,
and stability”).
- 10 -
J-S19019-23
would feel unsafe if he went to live with Mother and he does not see Mother
as a protector. Indeed, Mother was aware that Child was being abused at
Maternal Grandmother’s home and failed to do anything to protect him.
Conversely, the evidence demonstrated that Child is strongly bonded to his
foster parents who are eager to adopt him and provide him with permanency.
We perceive no reasonable basis on which to challenge the conclusion that
termination of Mother’s parental rights would be in Child’s best interests.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/25/2023
- 11 -