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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.E.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.M.H., NATURAL MOTHER No. 355 MDA 2014
Appeal from the Order dated January 22, 2014,
in the Court of Common Pleas of Centre County,
IN RE: C.L.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: L.M.H., NATURAL MOTHER No. 356 MDA 2014
Appeal from the Order dated January 22, 2014,
in the Court of Common Pleas of Centre County,
BEFORE: BOWES, OTT, and MUSMANNO, JJ.
MEMORANDUM BY OTT, J.: FILED OCTOBER 07, 2014
Pleas of Centre County involuntarily terminating her parental rights to her
sons, K.E.H., born in September of 2008, and C.L.H., born in October of
1
We affirm.
The record reveals the relevant factual and procedural history, as
follows. On April 30, 2012, the Children were placed in the custody of the
1
the biological father of K.E.H., and R.E.K., the biological father of C.L.H., by
orders dated October 28, 2013. Neither of the biological fathers filed a
notice of appeal.
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abuse involving C.L.H. The report alleged that Mother slapped C.L.H. in the
uth and nose
closed, resulting in him being unable to breathe. N.T., 10/28/13, at 84, 86.
The Children were adjudicated dependent on May 8, 2012. As a result of the
allegations involving C.L.H., Mother was charged with the crime of simple
assault. Following a trial, she was convicted of the charge and sentenced to
a term of incarceration for ninety days, i.e., from January 17, 2013, to April
19, 2013, after which she was placed on parole. Id. at 84, 141; N.T.,
1/22/14, at 84.
Since 2004, CYS had re
health. N.T., 10/28/13, at 50- er son and the
-brother, was placed in the custody of CYS on two occasions,
the second time being in March of 2011, due to allegations that Mother had
him temporarily in the care of R.H., her oldest son. Id. at 55-56. At the
for Mother,
in part: acknowledge and cease use of inappropriate physical discipline;
maintain regular contacts and visits with the Children; cooperate with
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reunification services; attend counseling regularly to work on emotional and
parenting issues; and
presence proper ways to provide nurturance and discipline. See id. at
Exhibit 6, ¶¶ 8-
permanency goal was changed to planned permanent living
arrangement/long-term foster care with a concurrent goal of adoption. See
id. at Exhibit 24.
On April 26, 2013, CYS filed petitions for the involuntary termination of
the parental rights of Mother and the respective biological fathers of the
Children pursuant to 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b). In
parental rights to her older son, A.J.H., who is not a subject of this appeal. 2
An evidentiary hearing was held on October 28, 2013, with respect to A.J.H.
and the Children, and on January 22, 2014, with respect to the Children
only. CYS presented testimony from the following witnesses, in relevant
part: Joshua Martin, a detective at the Ferguson Township Police
Department; Christie Plazio, a family reunification counselor with the Centre
County Youth Service Bureau, which was a service provider for CYS; and
Casie Lea Rockey, a CYS casework supervisor. The Guardian Ad Litem
bation and
2
On December 18, 2013, CYS withdrew the petition for the involuntary
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parole officer. Mother testified on her own behalf, and she presented the
o K.E.H. and C.L.H. Mother timely filed
notices of appeal and concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), which this Court consolidated
sua sponte.
On appeal, Mother raises one issue for our review:
I. Did the Court of Common Pleas err by forever terminating the
parental rights and duties of [Mother] with regard to K.E.H. and
C.L.H.?
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
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
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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).
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
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parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super.
2009).
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.
...
(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); see also In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc) (stating that this Court need only agree with
any one subsection of 23 Pa.C.S.A. § 2511(a), in addition to Section
2511(b), in order to affirm the termination of parental rights).
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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
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
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).
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her parental rights because the issues involving her harsh discipline of the
Children have been resolved. In addition, Mother argues that, shortly after
the worst possibl
a different conclusion had they known that K.E.H. and C.L.H. would not be
Id. at 8.
In its opi
as follows:
Despite being offered a plethora of services to guide her away
from harsh discipline and the use of drugs and alcohol, [Mother]
rejected services and continued to discount as being untrue any
of the instances where she tested positive for drugs and alcohol.
[Mother] was generally uncooperative and denied access to her
health care and the names of relatives for the Family
Connections process. [Mother] denied any responsibility for the
incident involving striking [C.L.H.] on the face and pushed the
blame onto the authorities for not allowing the child to tell his
full story. . . . She consistently discounted positive drug tests
and denied using alcohol or drugs. . . . The Court found no
desire to change in [Mother]; rather, she demonstrated an
ongoing refusal to comply with simple rules.
This Court also took into consideration the opinion of the [GAL]
. . . who had opportunities to spend time getting to know the
boys and to evaluate their adjustment in the foster home. [The
GAL] indicated that both boys wish to stay in the [foster] home
parental rights. This Court found that [Mother] could not offer
the [C]hildren stability and concluded that termination of her
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rights would best serve the needs and welfare of [C.L.H.] and
[K.E.H.].
Trial Court Opinion, 3/24/14, at 7-8. The testimonial evidence supports the
s findings, as follows.
Christie Plazio, a reunification counselor with the Centre County Youth
Service Bureau, was involved with this family beginning in December of
2011, when only A.J.S., the older child, was in the custody of CYS, and
continuing thereafter, when the Children were also in the custody of CYS.
Her involvement lasted until November 27, 2012, at which time reunification
services were ended. Ms. Plazio testified on direct examination as follows:
ification services
being offered to her? Was she cooperative? . . . .
A. Overall she was not. [Mother] through the duration of
services refused to participate in the Family Connections
process, which is a state mandate.[3] She also refused up until I
believe October of 2012 to participate in random drug testing.
N.T., 1/22/14, at 12.
4
Id. at 13. For instance, Ms. Plazio
3
Ms. Plazio testified that the Family Connections process involves
identifying 40 people and then that list gets cut down to 20 that the family
4
Ms. Plazio testified that her agency held a status review conference with
[Mother] needed to comply with all of [the] expectations in order for
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explained that her agency conducted unannounced home visits to Mother,
and a procedure was established that, if Mother was not home, the
counselor would leave a business card, and Mother was to place a telephone
call to the counselor whose name was on the business card. Id. The Youth
Service Bureau conducted twenty-nine unannounced visits, and Mother was
home for five them. Id. at 14. Mother placed a telephone call to the
visiting counselor only one time out of all the missed visits. Id. at 15. In
addition, Ms. Plazio testified that Mother was to participate in weekly
sessions with the reunification counselors. Id.
times [Mother] either canceled them or [Mother] would ask us to leave
within about approximately a half hour of being there and sessions typically
Id. at 9-10; see also id. at 13.
Ms. Plazio testified regarding an incident that occurred between Mother
and the Youth Service Bur
aptly summarized as follows:
erratic. She was observed to be agitated and her eyes rolled
back and her eye[]lids fluttered quickly. On one occasion during
a visit with [C.L.H.] and [K.E.H.] at the CYS office, [Mother] left
the room to use the restroom and upon returning, she appeared
very agitated and could not be calmed down. [When] [s]he was
told to pull herself together or the visit would be cancelled, she
swore and screamed at [the] caseworker[s]. . . . She pushed
her way past a guard through the secured area. She then
services to continue. She chose not to. So when we had the [permanency
review] hearing in November [27, 2012], we had requested to end services
because it was apparent that [Mother] was not going to comply with the
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the [C]hildren witnessed the incident.
Trial Court Opinion, 3/24/14, at 3 (citations to record omitted); see also
N.T., 1/22/14, at 22-25, 47-48.
With respect to random drug testing, Ms. Plazio testified that Mother
participated in three tests while she was the fa
Id. at 18. Mother participated in the first random drug test on October 5,
2012, and it was positive for THC (marijuana), alcohol, opiates, and cocaine.
Id. at 20. The second test was on October 27, 2012, but Ms. Plazio
apparently leaked on the way to the lab, and the label was difficult to read,
Id. Mother participated in the third test on
November 7, 2012, and it was positive for THC and alcohol. Id. Ms. Plazio
testified on direct examination:
Q. Did [Mother] refuse to be tested on occasion?
A. There were occasions where she did refuse.
Q. For any particular reason offered?
A. For many of the occasions it was simply that she stated . . .
services I believe our last session she told us that she refused to
not give a damn.
Id. at 17-18.
Finally, Ms. Plazio testified:
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Q. Do you believe that [Mother] has remedied the situations
that caused the removal of these children to the point where she
can take care of [C.L.H.] and K.E.H.]? At least up to the point
that your agency
A. I was going to say up to the point where reunification
services were involved, no.
Id. at 51-52.
Casey Rockey, a CYS casework supervisor, testified on direct
5
is THC, on January 17, [20 N.T., 1/22/14, at 59. Ms. Rockey testified
as follows on direct examination:
and [K.E.H.] at this point?
A. Our position remains that [C.L.H.] and [K.E.H.] should be
rights. . . .
Our position is that throughout our involvement with [Mother]
that conditions that warranted the removal of the children
continue to exist as evidenced by the most recent drug and
alcohol test. In addition to her drug and alcohol test, she had
has really not been cooperative with our agency, refused access
to the home, and even was not able to refrain from using
physical discipline on her children, which resulted in [C.L.H.] and
[K.E.H.] coming into the care and custody of the agency.
Id. at 62-63. In addition, Ms. Rockey testified as follows:
Q. Do you believe that [Mother] can remedy [the conditions
A. No, we do not.
5
arole officer, testified that his office
conducted the drug test on January 17, 2014. N.T., 1/22/14, at 84.
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Q. Are there any services or assistance that [CYS], the Youth
Service Bureau, or any other agency available in Centre County
or elsewhere could offer or make available to [Mother] that
would remedy the conditions which cause[d] both [C.L.H.] and
[K.E.H.] to be in placement. . . ?
to reunification, we attempted to provide in-home Family
Intervention Crisis Services, they have a family preservation
component, which [Mother] ultimately was uncooperative with,
not only on a voluntary level but after the Court ordered her
participation in that program.
...
Q. So, no services for them that could remedy those conditions
assured by the [CYS] office and [Mother] has continued to deny
us access to her home.
N.T., 10/28/13, at 125-126.
Mother was paroled on her sentence for simple assault in April of 2013, and
that her parole term expires in December of 2017. N.T., 1/22/14, at 84, 86.
Mr. Jordan testified that Mother had two parole violations recently, one was
the positive drug test on January 17, 2014, and the other was she traveled
out of state without permission. Id. at 87. Mr. Jordan testified that, as a
result of these parole violations, M
Id.
Mother acknowledged on direct examination that her relationship with
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have since learned that in order for my children to be better represented I
have to take a look at the way h
Id.
have started to understand, you know, how my reaction toward certain
things how it will be viewed to others, so meaning, you know, we have
worked on my tone, the way that I answer things, and overall just my
Id.
at 104.
Nevertheless, even though convicted by a jury of simple assault
against C.L.H., Mother continues to dispute that she committed the crime
during her cross-examination by counsel for CYS. Id. at 127-128. Indeed,
Mother disputed that she used inappropriate physical discipline with any of
her children. She testified on direct examination that,
Not
strict background that means you do what you say and you say
children in the way that I want them to conduct themselves, not
by physical, but by setting boundaries and moving forward with
those boundaries.
Id. at 93; see also id. at 120-121. In addition, Mother denied that she has
a history of illegal drug use or that she currently has a drug problem. Id. at
127-128. In fact, Mother
Id. at 128.
Mother testified on cross-examination by the GAL:
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Q. So is it your expectation that this judge would say today that
the [C]hildren are back with you or restart reunification? What
is it that you want today?
A. Well, what I would love for my children to be to return to
heart. But I do understand that my previous behavior before
perhaps has put a little damper on that being just clear set. So I
am prepared and willing to receive any kind of reunification that
I am able to participate in to obtain my children. I am willing to
work towards that, as I have been doing since they have been in
care.
Id.
Id. at
170.
rt
continued incapacity, abuse, neglect or refusal to acknowledge her use of
inappropriate physical discipline and her illegal drug abuse, in addition to her
lack of cooperation with CYS and reunification services, has caused the
Children to be without essential parental care, control or subsistence
necessary for their physical or mental well-being. Further, the causes of the
incapacity, abuse, neglect or refusal cannot or will not be remedied within
reunification is disingenuous when she has already had the opportunity to
demonstrate that she can provide proper parental care. See In re
Adoption of M.E.P., supra
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be put on hold in the hope that the parent will summon the ability to handle
)).
We next review the termination orders pursuant to Section 2511(b),
serve the developmental, physical, and emotional needs and welfare of the
Children.
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
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
positive emotion t 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
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). Further, the T.S.M. Court
have an obligation to see to their healthy development quickly. When courts
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fail . . . the result, all t
Id. at 269.
In this case, the record demonstrates that the Children may harbor
some positive emotion toward Mother. See N.T., 1/22/14, at 81; N.T.,
10/28/13, at 146-147, 158-159. However, by the last day of the
termination hearing, the Children were in a pre-adoptive foster home, where
they had resided for a short time, since December 3, 2013, and Ms. Rockey,
N.T., 1/22/14, at 60. Ms. Rockey testified, in part,
I last visited the home on January 16th, was able to speak with
in this home. I talked with them about our recommendation and
used the term forever home and they were comfortable and
excited.
Id.
Id.
children are absolutely adoptable whether or not they are adopted by this
Id. at 66. The GAL also expressed support for the
ren had indicated a
desire to remain with their foster family. Id. at 205-206, 208-209.
In this appeal, Mother asserts that, after the termination orders were
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Id. To the extent Mother
argues that this Court reverse the termination orders because the Children
allegedly are no longer in a pre-adoptive home, we reject her claim.
This Court cannot consider that which is not part of the record in this
matter, nor allegations of events that occurred after the record was closed
before the orph See generally, Jahanshahi v. Centura
Development Co., Inc., 816 A.2d 1179, 1183 (Pa. Super. 2003);
Hrinkevich v. Hrinkevich, 676 A.2d 237, 240 (Pa. Super. 1996). See
also Larson v. Diveglia
consistently maintained that the practice of alleging facts in a brief upon
termination of parental rights is not a proper consideration of this Court in
reviewing the termination orders.
Moreover, the T.S.M.
provides that a pending adoption is not a prerequisite to termination of
parental rights involving agencies In re T.S.M., 71 A.3d at 268; see
also 23 Pa.C.S. § 2512(b)
shall not be required to aver that an adoption is presently contemplated nor
herefore, even if
the Children were not in a pre-adoptive placement at the time of the
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Upon careful review, we disce
best serve the developmental, physical, and emotional needs and welfare of
the Children pursuant to Section 2511(b). See In re B.,N.M., 856 A.2d
right to the custody and rearing of . . . her child is converted, upon the
parenting and fulf
and (b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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