J-A23030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M. AND T.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.M. No. 1994 WDA 2013
Appeal from the Order entered November 15, 2013,
in the Court of Common Pleas of Washington County,
-13-0934, 63-13-0935
BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 26, 2014
L.M
parental rights to his daughters, A.M., born in June of 2005, and T.M., born
in February of 2002.1 Upon careful review, we affirm.
The record reveals that Father and the children relocated to
Washington County, Pennsylvania, from Brooke County, West Virginia, at an
unspecified time following the April 2009 involuntary termination of the
Brooke County.2 Trial Court Order, 11/15/13, at ¶¶ 3-4. The Washington
ourt found
1
We note that the briefing schedule for this case was delayed due to the
common pleas court sending the complete certified record to this Court
nearly three months after the record was due.
2
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that an issue remained as to whether the children could be returned to
Father at that time and continued supervised visits with Father and the
3
Id. at 3 (footnote omitted). The Circuit Court eventually
subsequently relocated to Washington County.
On April 11, 2011, the Washington County Children & Youth Social
became involved with the family when T.M., then
age nine, reported to her school teacher that Father had beaten her with a
board. Trial Court Order, 11/15/13, at ¶¶ 2, 5. As a result, Father was
charged with the crime of recklessly endangering another person, to which
he pleaded guilty. Id. at ¶ 7. Father was sentenced to a term of probation
for twelve months. Id. As a condition of his sentence, Father participated in
parenting counseling and anger management. Id. CYS initially removed the
children from the home, but did not file a dependency petition. CYS
returned the children to Father and provided in-home services. N.T.,
11/15/13, at 47. CYS closed its case in December of 2011. Id.
On September 19, 2012, T.M. reported to her school teacher that
11/15/13, at ¶ 9. By order dated September 20, 2012, the children were
3
The order of the Circuit Court of Brooke County involuntarily terminating
during the subject proceedings. See N.T., 11/15/13, at 46. However, the
exhibit is not included in the certified record before this Court.
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placed in the custody of CYS. Id. at ¶ 10. The children were adjudicated
dependent on November 20, 2012. N.T., 11/15/13, at 22.
In addition, on September 20, 2012, the Washington County Adult
Probation Office detained and incarcerated Father for violating his probation
Id. at ¶ 11. On November 7, 2012, Father
was found to be in violation of his probation, and was re-sentenced to an
intermediate punishment program for a term of 23 months, the first two
months of which he was incarcerated, followed by six months of intensive
supervision. Id. As a condition of his sentence, Father again participated in
parenting counseling and anger management. Id.
On July 29, 2013, CYS filed petitions for the involuntary termination of
A termination hearing was held on November 15, 2013, during which CYS
presented testimony from the following witnesses: Azure Hixenbaugh, CYS
Ad Litem
the dependency proceedings; and Megan Van Fossan, the supervisor of
special services in the McGuffey School District. Father was present for the
hearing, but he did not testify. Father presented the testimony of Elana
Carroll, a caseworker for Try Again Home Visitation, and David Cincinnati, a
CYS adoption caseworker.
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23 Pa.C.S.A. § 2511(a)(2), (5), and (b). Father timely filed a notice of
appeal and a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(a)(2)(i) and (b).4
On appeal, Father presents three issues for our review:
I. Did the Court err as a matter of law and/or abuse its discretion
in finding that clear and convincing evidence was provided to
Pa.C.S.A. § 2511(a)(2), when a significant amount of evidence
was provided that [Father] had successfully completed all
serv[ice]s ordered of him and has been able to implement skills
learned?
II. Did the Court err as a matter of law and/or abuse its
discretion in finding that clear and convincing evidence was
23 Pa.C.S.A. § 2511(a)(5), when a significant amount of
evidence was provided that [Father] had successfully completed
all serv[ice]s ordered of him and has been able to implement
skills learned?
III. Did the Court err as a matter of law and/or abuse its
discretion in determining the termination of Fat
rights would serve the needs/welfare of the children and not be
harmful to the children as required under 23 Pa.C.S.A. §
2511(b), when the evidence clearly showed a strong and
beneficial parent-child bond that would [ ] be detrimental to the
children if broken?
We review this appeal according to the following standard:
[A]ppellate courts must apply an abuse of discretion standard
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
4
Father subsequently filed an amended notice of appeal and a concise
court docket number.
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findings of fact and credibility determinations of the trial court if
they are supported by the record. In re: R.J.T., 608 Pa. 9, 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.; R.I.S., 36
A.3d [567,] 572 [(Pa. 2011) (plurality)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
34 A.3d 1, 51 ([Pa.] 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
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
error of law or an abuse of discretion. In re Adoption of
Atencio, 539 Pa. 161, 165, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826 827 (Pa. 2012).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, which requires a bifurcated analysis:
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating
parental rights. Initially, the focus is on the conduct of the
parent. The party seeking termination must prove by clear and
statutory grounds for termination delineated in Section 2511(a).
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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) (citing 23 Pa.C.S.A.
§ 2511). The burden is on the petitioner to prove by clear and convincing
evidence that the asserted statutory grounds for seeking the termination of
parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
provide as follows:5
(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.
5
It is well-settled that this Court need only agree with any one subsection of
Section 2511(a), in addition to Section 2511(b), in order to affirm the
termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). A
related to Section 2511(a)(5).
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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.A. §§ 2511(a)(2), (b).
To satisfy the requirements of section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
rights under Section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
With respect to section 2511(b), the requisite analysis is as follows:
Subsection 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
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emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
angibles such as love, comfort, security, and stability are
In addition, we 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. However, in cases 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). Accordingly, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case.
Id. at 63.
In re Adoption of J.M., 991 A.2d 321, 324 (Pa. Super. 2010).
On appeal, Father argues the evidence was insufficient to support
the parenting and anger management courses were displayed during the two
Id.
nurturing parenting skills, Father was unable to implement such skills.
Father has demonst
Trial Court Opinion, 2/24/14, at 5. Upon careful review, we discern no
rights.
The evidence reveals that Father was court-ordered to participate in
parenting and anger management classes, as well as a mental health
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assessment. N.T., 11/15/13, at 22. Ms. Hixenbaugh, the CYS caseworker
for this family until May of 2013, testified on cross-
counsel t
Id. at 30-31; see also id. at 32. She testified that
Father was successfully discharged from parenting classes. Id. at 33.
rent CYS adoption caseworker,
Id. at 118. With respect to whether Father successfully completed
parenting classes through the Justice Works program, Mr. Cincinnati testified
completed their program. They do not put a successful or not successful so
Id. In sum, Mr.
Cincinnati testified that Father had completed the program through Justice
Works. Id.
With respect to supervised visits, Father was permitted one visit per
week for two hours. Id. at 23. In addition, he was permitted one ten
minute telephone call per week with each child. Id. Ms. Hixenbaugh
testified that Father attended all visits with the children, and that he has
behaved appropriately during the visits. Id. at 31. Likewise, Ms. Carroll,
with the children
Id. at 103. Further, Mr. Kocevar,
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the GAL in the dependency proceedings, testified that Father was consistent
with his telephone calls to the children. Id. at 56.
Nevertheless, Ms. Hixenbaugh, Mr. Cincinnati, and Mr. Kocevar
Id.
at 24-26, 58-59, 124-125, 127. Despite Father pleading guilty to the charge
n that he beat her with a board, Ms. Hixenbaugh
testified as follows on direct examination:
Q. Did you ever have any direct discussions with [Father]
concerning this case in terms of what actions he took against
either or both children?
A. [Father] has denied both times that he has ever touched
[T.M.].
Id. at 24. Further, Ms. Hixenbaugh testified:
Q. Why do you believe that [Father is] unable to effectively
parent these children?
had several parenting classes. His ability to retain and
had anger management classes. What he has learned, he is just
not able to implement and at one point we gave [Father] the
benefit of the doubt because he was participating in services and
we returned the children to his care. . . . The children were
the coal mining belt occurred and again, [T.M.] has unexplained
injuries and no one can explain how she got them and [Father
is] the primary caregiver.
Id. at 25. Ms. Hixenbaugh subsequently testified on cross-examination by
Q. [ ] Why exactly was [Father] targeted for [involuntary
termination of his parental rights]?
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case was identified as going toward termination due to the
history of his case, [T.M.] having two different incidents of
having severe bruising and him throwing his hands in the air
there is no reasonable explanation. . . .
Id.
-ordered services, he has refused to
acknowledge and take responsibility for his inappropriate actions toward
T.M.6
ial Court Opinion, 2/24/14, at 5. Ms.
Van Fossan, the supervisor of special services in the McGuffey School
District, which the children attended, testified that T.M. has an I.Q. of 81.7
N.T., 11/15/13, at 73. Ms. Van Fossan also testified that T.M. has significant
behavioral issues. Id. at 69. Ms. Van Fossan testified on direct
prior to the incident involving Father hitting T.M. with a board, as follows:
Q. Were any of these behavioral issues addressed by you or
other members of [the school district] with her father?
6
N.T., 11/15/14, at 92. She testified that incidents occurred involving Father
behavioral issues. Id. at 90-91.
7
evidence that she has special needs. N.T., 11/15/14, at 84.
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A. Numerous times.
Q. Were any solutions ever reached with regard to dad and her
actions?
A. We finally came to a crisis point. . . . Dad never got her
Medicaid card so she ran out of medication so she was
unmedicated for a very extended period of time because to
switch from West Virginia Medicaid to Pennsylvania Medicaid
takes some time. . . .[8] The psychiatrist had given her [ ]
three different medications to help her control the impulsive
behaviors. [T.M.] was referred to East App which is the
elementary student assistance program because of the increased
defiance and behaviors. Met with dad on three different
occasions and dad refused to sign the permission to evaluate.
. . . Dad finally did sign the permission to evaluate for Special
Ed services. . . .
Id. at 69-70.
strategies in terms of holding [T.M.] accountable for her behaviors and
appropriate consequences for a child that age[.] [W]e met with him actually
numerous times even after that to talk about what he could do in the home.
Id. at 71. Ms. Van Fossan expressed concern that Father did not
understand the issues
Q. [Y]ou . . . made the comment . . . that you questioned
whether dad was understanding?
A. Yes.
Q. Can you elaborate on that? Understanding what you were
telling him?
8
Ms. Van Fossan explained
Id. at 80.
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A. What I told him, what the school psychologist told him, what
the school social worker told him, what the classroom teacher
had a conversation back and forth like this is
going on there. Our school psychologist really was concerned.
Id. at 94.
Based on the foregoing, we discern no abuse of discretion by the
2511(a)(2). Indeed, the testimony of Ms. Hixenbaugh and Ms. Van Fossan
neglect or refusal has caused the children to be without essential parental
care, control or subsistence necessary for their physical or mental well-
Father additionally asserts the evidence was insufficient to support
termination of his parental rights pursuant to Section 2511(b). Father relies
on the testimony of Ms. Carroll, who supervised his visits with the children,
in arguing that the children have a bond with him that would be detrimental
to them if severed.
With respect to the bond analysis pursuant to section 2511(b), our
of a child to a parent will not necessarily result in the denial of a termination
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). The T.S.M. Court
quoted with approval, as follows:
[A]s Judge Tamilia eloquently observed while speaking for the
st abused of children will often harbor some
In re K.K.R.-S.,
958 A.2d 529, 535 (Pa. Super. 2008). Thus, Judge Tamilia
cautioned against denying termination of parental rights based
solely on the fact that a child has an attachment to the parent:
serious parental rejection through abuse and neglect, and failure
to correct parenting and behavior disorders which are harming
the children cannot be misconst Id. at 535
(quoting In re Involuntary Termination of C.W.S.M., 839
A.2d 410, 418 (Pa. Super. 2003) (Tamilia, J., dissenting).
In re T.S.M., 71 A.3d at 267 (footnote omitted). In addition, the T.S.M.
sense dictates that courts considering termination
must also consider whether the children are in a pre-adoptive home and
Id. at 268 (citation
omitted).
In this case, Ms. Carroll testified that the
usually bring them to their visits with Father. N.T., 11/151/4, at 105. Ms.
follows:
[the children] get out of that car and they see [Father]?
A. I see [Father] walking down the steps usually and the girls
come running to him and throw their arms around him and hug
him.
Q. So they understand who he is?
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A. Yes.
Q. They appear to enjoy being around him?
A. Yes.
Q. Do they appear afraid of him?
Q. As a matter of fact, you said they come running up to him?
A. Yes, they do come running up to him all the time and they
instantly start talking about their day to him.
Id. at 105. Upon inquiry with respect to whether the children seem sad to
Id. at 106-107. She did not
testify with respect to T.M. ever indicating the same at the conclusion of
visits.
Ms. Hixenbaugh testified that the children are in pre-adoptive and
separate foster homes. N.T., 11/15/13, at 14. She testified that the
children see each other daily.9 Id. at 48. Ms. Hixenbaugh testified that they
Cincinnati, the CYS adoption caseworker, testified that the children are doing
well in their foster homes. Id. at 126.
9
-in-
11/15/14, at 48. Ms. Hixenbaugh testified that the children ride to and from
school together on the same school bus, and they participate in family
functions together with their foster families. Id. at 50.
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Upon careful review, we discern no abuse of
serve the developmental, physical, and emotional needs and welfare of the
children where Father refuses to acknowledge his inappropriate physical acts
toward T.M., and the children are doing well with their foster families.
rights. Accordingly, we affirm the order t
pursuant to 23 Pa.C.S.A. § 2511(a)(2) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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