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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.G., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Y.T.
No. 239 MDA 2014
Appeal from the Decree December 30, 2013
In the Court of Common Pleas of Berks County
Orphans' Court at No(s): 83150
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2014
Y.T. (Mother) appeals from the final decree involuntarily terminating
her parental rights to her daughter, A.M.G. (born 3/2006). Counsel has also
filed an application to withdraw from representing Mother and has filed an
l. After careful review, we deny
On May 17, 2012, Berks County Children and Youth Services (BCCYS)
mental health was significantly deteriorating and that A.M.G. had been
truant from school for one month. By agreement of all parties, A.M.G. was
placed in kinship care. On June 22, 2012, A.M.G. was adjudicated
dependent and legal custody was awarded to BCCYS. In order to have
A.M.G. returned to her care, Mother was ordered to undergo parenting
education, an alcohol and drug evaluation, random urinalysis, a mental
health evaluation, casework sessions, a domestic violence evaluation, an
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anger management evaluation, and establish and maintain stable and
appropriate housing and income.
A.M.G. were suspended via court order until she cooperated with
recommended mental health therapy and documented her medication.
Permanency review hearings in April and September of 2013 revealed that
the
1
rights based upon sections 2511(a)(1), (a)(2),2 (a)(5), (a)(8) of the
Adoption Act,3 listing the following reasons for seeking termination: Mother
1
Mother was incarcerated for six months from December 2012 to June
various homeless shelters from July 2013 to October 2013.
2
Pursuant to 23 Pa.C.S. § 2511(a)(2):
(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.
3
23 Pa.C.S. §§2101-2938.
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has failed to remediate her substance abuse; concerns remain regarding
violence; and Mother has a history of criminal activity4 and repeated
incarceration. BCCY
termination hearing; although Mother testified at the hearing, BCCYS relied
solely upon 62 exhibits to support its petition to terminate. See N.T.
Termination Hearing, 12/20/2013, at 4. At the time of the termination
hearing, Mother was homeless and living in a drop-in shelter; A.M.G. was
thriving in kinship care with paternal aunt and paternal grandmother. Id. at
8. Mother ack
to seek treatment for her mental health issues due to her inability to afford
health insurance. Id. at 6. On December 31, 2013, the court entered a
appeal followed.
On appeal, Mother raises the following issues:
(1)
rights because Petitioners/Appellees did not establish by
rights should be terminated?
4
Mother was sentenced to time-
two-year probationary tail after pleading guilty to two counts of terroristic
threats after threatening a neighbor with a kitchen knife and telling her she
Guilty Plea, 5/28/2013.
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(2)
rights because the evidence presented by the
Petitioners/Appellees was insufficient to support the lower
Counsel appointed to represent an indigent parent on a first appeal
from a decree involuntarily terminating his or her parental rights, may, after
a conscientious and thorough review of the record, petition the court for
leave to withdraw representation if he or she can find no issues of arguable
merit on which to base the appeal. In re: Adoption of V.G., 751 A.2d
1174, 1176 n.4 (Pa. Super. 2000), citing In Re: Adoption of V.E., 611
A.2d 1267 (Pa. Super. 1992). Given the less stringent standard of proof
required and the quasi-adversarial nature of a termination proceeding in
which a parent is not guaranteed the same procedural and evidentiary rights
as a criminal defendant, appointed counsel seeking to withdraw
representation must submit an advocate's brief. In Re: Adoption of V.E.,
611 A.2d at 1275.
Here, counsel has complied with the dictates of V.E. First, counsel has
Counsel has also submitted an application/petition alleging that she has
made a conscientious examination of the record, which included reviewing
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determined that an appeal would be frivolous.5 Counsel has advised Mother
of her appellate rights, her right to retain new counsel or proceed pro se,
arguments she believes could be made on her behalf to support an appeal.
See
Having determined that counsel has satisfied the above requirements,
we may now conduct our own review of the proceedings and render an
independent judgment as to whether the appeal is devoid of any issues of
arguable merit warranting her withdrawal.
Ter
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The 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." It is well established that a court must examine the
individual circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence
in light of the totality of the circumstances clearly warrants
termination.
In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted); see also In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa.
1994) (clear and convincing evidence is defined as "testimony that is so
5
standard, as annunciated in V.E.
V.E., 611 A.2d at 1275.
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'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.'").
rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,
563 (Pa. Super. 2003). Our scope of review is limited to determining
evidence. Id.
Termination under 23 Pa.C.S. § 2511(a)
Mother claims that BCCYS did not establish, by clear and convincing
evidence, that termination of her parental rights was proper under section
2511(a). We disagree.
A.M.G. has been in placement. Doctor Larry A. Rotenberg, a licensed
psychologist, submitted a psychiatric evaluation of Mother noting that she is
Rotenberg diagnosed Mother as having bipolar disorder, with psychotic
features, requiring psychiatric stabilization at a mental hospital. A BCCYS
caseworker testified that at her visit with A.M.G. on November 6, 2012,
Mother indicated she had dressed as the Biblical David for Halloween and
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her last one to date, was inappropriate, bizarre and made A.M.G. feel
uncomfortable. At her last visit with A.M.G., Mother ignored redirection from
the visitation supervisor, told A.M.G. that she missed bathing and sleeping
with her, and asked A.M.G. whether she still used a bottle and needed
diapers.
objectives, which included participation in, and completion of, mental health
treatment and taking her psychotropic medication. Mother is unable to
understand the importance of attending to her mental health needs and the
urgency of continuing to take her medications. Significantly, she does not
comprehend the negative effect that her present mental health state has
had on A.M.G. Mother is emotionally unstable, continues to fail to
health problems, A.M.G. is without essential parental care which is necessary
for her physical and mental well-being. Thus, termination was proper under
23 Pa.C.S. § 2511(a)(2).
Termination under 23 Pa.C.S. § 2511(b)
Instantly, the trial court makes no mention of whether a bond exits
between Mother and A.M.G. and what effect termination of any bond would
have on the developmental, emotional and physical needs and welfare of her
daughter. These are required elements of a section 2511(b) analysis. 6 As
6
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must engage in a bifurcated process prior to
In re L.M., 923 A.2d 505, 511 (Pa. Super.
2007) (emphasis added). One major aspect of the needs and welfare
analysis under section 2511(b) concerns the nature and status of the
emotional bond between parent and child, with close attention paid to the
best
care, A.M.G. had not been taken to her medical appointments
and was likely behind on her immunizations. At one point, the
child had a urinary tract infection and Mother did not fill the
prescription
hygiene was poor. Once in placement, A.M.G. had frequent
nightmares and tantrums. Her behavior was very difficult after
she returned from visits with Mother. Some of her behaviors
were inappropriate. A.M.G was given outpatient counseling and
transferred to Kidspeace Partial (School) Day Program to give
her more structure and support. She was diagnosed with, (inter
alia), Post Traumatic Stress Disorder.
A.M.G. has enjoyed a peaceful and calm environment in the
home of her paternal aunt and paternal grandmother. Since
making the move, she began sleeping through the night and her
nightmares ended. The child is doing very well in placement.
Her guardian testified that she has made a really good
adjustment living with her aunt. In fact, A.M.G. is thriving in her
child. She will have proper parenting and fulfillment of her
potential in a permanent, healthy, safe environment. All of her
needs are met by her resource mother.
Trial Court Opinion, 2/25/2014, at 9-10. See In re Adoption of A.C.H.,
803 A.2d 224, 229-230 (Pa. Super. 2002) (order terminating parental rights
reversed on appeal where even though trial court referenced needs and
welfare in arriving at decision to terminate parental rights, it did so in
conclusory fashion and without sufficient evidence in record to address
emotional bonds child and parent share under section 2511(b)).
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effect on the child of permanently severing any such bond. In the Interest
of I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014) (emphasis added).
In In re C.S., 761 A.2d 1197 (Pa. Super. 2000), our Court stressed
the importa -child bond under
section 2511(b):
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the
intangible dimension of the needs and welfare of a child--
the love, comfort, security, and closeness--entailed in a
parent-child relationship, as well as the tangible
dimension. In re Matsock, 611 A.2d 737, 747 (Pa.
Super. 1992). Continuity of relationships is also important
to a child, for whom severance of close parental ties is
usually extremely painful. In re William L., 383 A.2d
1228, 1241 (Pa. 1978). The trial court, in considering
what situation would best serve the children's needs and
welfare, must examine the status of the natural parental
bond to consider whether terminating the natural parents'
rights would destroy something in existence that is
necessary and beneficial. In re P.A.B., 570 A.2d 522,
525-26 (Pa. Super. 1990)[.]
Id. at 1202.
ecord
utter failure to discuss or analyze the existence of a parent-child bond under
section 2511(b), we have had to comb through 385 pages of exhibits to
discern whether a bond exists. The following portions in the record indicate
that a bond does exist between Mother and A.M.G.:
A July 6, 2012 supervised visit assessment indicates that A.M.G.
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and told her that s
the end of the session.
prepared by BCCYS supervisor, Marsha Ganter, lists as a family
Letter from Awilda Carrera at Alternative Consultant Enterprises, Inc.,
11/2/2012, at 1.
In its letter brief on a
s best
the needs and welfare of the Child under § 2511(b) by providing her with
the permanence necessary for the fulfillment of her potential in a loving,
healthy and safe environme Id.
In the Interest of I.E.P., supra. Merely alleging in its appellate letter
sufficient -- it must be borne out in the record and the trial court must
conclude that, based on the evidence, severing the bond between Mother
and A.G.M. would not be detrimental to Child.
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Although we are aware that a court is not required to order a formal
bonding evaluation and that social workers and caseworkers can provide
suitable evaluations regarding the parent-child bond just as well as experts
in the field, In the Interest of I.E.P., 87 A.2d 340 (Pa. Super. 2014),
rights will have on the child, there is not competent evidence to allow the
In re
Involuntary Termination of C.W.S.M., 839 A.2d 410, 415 (Pa. Super.
2003).7 See In re E. M., 620 A.2d 481, 485 (Pa. 1993) (stating that "[t]o
render a decision that termination serves the needs and welfare of the child
without consideration of emotional bonds . . . is not proper"); see also in re
T.F., 847 A.2d 738 (Pa. Super. 2004) (where trial court ordered involuntary
(5) and (8), and court lacked any analysis or discussion under section
2511(b) of developmental, physical, and emotional needs and welfare of
children and bonding between children and Mother, order granting
termination was reversed).
In In re T.S.M., 71 A.3d 251, 269 (Pa. 2013) our Supreme Court
recently acknow
7
Although in rare cases we have found that where there is no evidence of a
bond between a parent and child, it is reasonable to infer that no bond
exists, In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008), here even
BCCYS acknowledges in its letter brief on appeal that there is a bond
between Mother and A.M.G.
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inevitably results from breaking a child's bond to a biological parent, even if
that bond is unhealthy, and we must weigh that injury against the damage
Supreme Court in T.S.M.
between Mother and the children, the trial court failed to recognize the
substantial, possibly permanent, damage done to these children by the
id. at 270-71,
developmental, emotional and physical needs and welfare of A.M.G. is not
clear cut on this record. Without any trial court analysis regarding how
terminating any parent-child bond would affect the emotional, physical and
developmental needs and welfare of A.M.G., we are constrained to reverse
and remand. In re: C.W.S.M., supra (where consideration of bonds that
may exist between Father and children and effect termination will have on
lack of evidence in record regarding effect termination will have on children,
case).
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Motion to withdraw denied.8 Decree reversed; case remanded for
proceedings consistent with this decision. Jurisdiction relinquished. 9
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
8
9
his Rule 1925(a) termination opinions, an analysis of the existence of a bond
between a parent and child and any effect that breaking such bond would
have on the child. The failure to include such an analysis is surprising where
section 2511(b) has been in effect since 1981 and has not been amended
since 1995. See Act 1980-163 (H.B. 213), P.L. 934, § 1, approved Oct. 15,
1980, eff. Jan. 1, 1981; Act 1995-76 (H.B. 215), P.L. 685, § 3, approved
Dec. 20, 1995.
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