J-S64030-14
2014 PA Super 266
IN RE: M.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.H., BIRTH MOTHER
No. 1019 WDA 2014
Appeal from the Order May 28, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): TPR 191 OF 2003
IN RE: I.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.H., BIRTH MOTHER
No. 1020 WDA 2014
Appeal from the Order May 28, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): TPR 192 2013
IN RE: T.M., JR., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.H., BIRTH MOTHER
No. 1036 WDA 2014
Appeal from the Order May 28, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): TPR 1901 OF 2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
OPINION BY BENDER, P.J.E.: FILED DECEMBER 2, 2014
Appellant, R.H. (“Mother”), appeals from the orders involuntarily
terminating her parental rights to M.M. (born in November of 2003), I.M.
(born in December of 2005), and T.M. (born in November of 2002) (the
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“Children”) pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and (b).1 We
affirm.
In its opinion, the orphans’ court set forth the following extensive
history of this case:
CYF [the Allegheny County Office of Children, Youth and
Families] first became involved with the case in November 2003,
when it was reported that Mother was abusing the children's
elder sibling, who is not a party to this case. That case was
opened in January 2004, and the family received services. At
that point, the Court was not involved. A second case was
opened in June 2004, when Mother left children T.M. and M.M.
with [M]aternal [A]unt and grandmother, who contacted CYF and
asked for their removal.3 In August 2004, T.M. and M.M. were
adjudicated dependent. The adjudication was based on, among
other things[,] Mother's use of crack cocaine and marijuana and
the alleged maltreatment of the children. The home was also
unlivable, with garbage all over the floor and no utilities in the
home. CYF established Family Service Plan goals during the
June 2003 [through] June 2007 period. The goals included:
obtain safe and appropriate housing with utilities, eliminate
verbal and physical abuse and use alternative methods of
discipline, to stay in contact and cooperate with the agency.
Mother also had a goal to achieve sobriety and maintain
recovery from substance abuse. This goal was achieved in
December 2005. Although CYF provided significant services,
there was limited progress. In March and April of 2006, the
children were returned to their [M]other, but the case was kept
open so that CYF could monitor for physical maltreatment and
Mother's drug use. In November 2006, the Court closed its
case; CYF kept its case open until May 2007.
3
I.M. was not yet born.
____________________________________________
1
Although T.M. (“Father”) was named in the petition seeking the
involuntarily termination of his and Mother’s parental rights, during the
course of the hearings, Father withdrew his opposition to the termination of
his parental rights and is not a party to this appeal.
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The second time a case was opened was in January 2009.
The Court issued an Emergency Custody Authorization for I.M.,
who was discovered wandering outside, alone in a diaper. The
home was found to be in a deplorable condition with rotten food
in the kitchen, inadequate bedding, and clothing piled
everywhere. All three children were placed with maternal
grandmother, who was living in the home; Mother was forbidden
from residing there. The children also displayed injuries
consistent with those intentionally inflicted by a cord or a belt;
M.M. had a burn mark on her right forearm that appeared to be
from an iron. There were additional concerns about the
children's medical health. They were not up to date on their
immunizations. Mother was charged with two counts of simple
assault and two counts of endangering the welfare of children.
She was convicted in May 2010 and sentenced to two years[’]
probation. The children were adjudicated dependent on March 4,
2009. Again, goals were established and services implemented.
The agency and the Court closed the case on August 17, 2009.
The third time the case was opened was in Februaiy 2010,
when CYF received a referral that the children had missed a
week of school. There was also an allegation that I.M. was
outside again, in dirty pajamas, looking for food. CYF
investigated and found there to be lack of clothing, and
inadequate supervision and housing. Family Group Decision
Making was implemented to assist Mother. ChildLines were filed
in December 2010, and Mother was charged with endangering
the welfare of the [C]hildren. She pleaded guilty and [was]
placed on five years[’] probation. CYF reestablished the Family
Service Plan goals: supervision of the [C]hildren, not leaving the
[C]hildren with unsuitable caregivers, no pain medication without
appropriate supervision, contact and cooperation with CYF,
ensure school attendance, and prevent neglect. The case was
closed in May 2011.
In May 2012, there was another referral to the agency
regarding lack of supervision, and deplorable living conditions.
This time, there were utilities and food in the house. Despite
Mother reporting that T.M. nearly died when he took
acetaminophen and alcohol, CYF did not make the case court-
active. However, a month later, a probation officer reported that
mother tested positive for THC and was not compliant with her
mental health and drug program. When the police contacted the
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agency, the agency investigated the home and found, again,
deplorable housing conditions, no running water, feces in the
toilet, children in dirty clothes and no beds. These findings were
similar [to] those in 2004, 2009 and 2010, but CYF did not
immediately remove the [C]hildren. Instead, Family Group
Decision Making was put back in place. Two days later,
however, an ECA was sought and obtained. The [C]hildren have
been out of Mother's care since June 29, 2012. Mother was
charged and convicted for endangering the welfare of children.
On March 5, 2013, Mother was sentenced to two to five years in
prison. The latest dependency adjudication was [held] on July
31, 2012. CYF filed its TPR petition on November 2013. The
children have resided with maternal aunt since August 30, 2012.
Orphans’ Court Opinion (O.C.O.), 7/28/14, at 3-6 (citations to the record
omitted).
The hearings concerning this case were held in April and May of 2014.
In addition to Mother’s testimony, the court heard testimony from Michael
Komorowski, a CYF caseworker, and from psychologist, Dr. Eric Bernstein.
Based upon the evidence and testimony provided, the orphans’ court
entered its orders terminating Mother’s parental rights to the Children.
Mother filed timely notices of appeal and a concise statement of errors
complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i) and (b).
She raises a single issue: “Did the [orphans’] court abuse its discretion
and/or err as a matter of law in concluding that CYF met its burden of
proving by clear and convincing evidence that termination of Mother’s
parental rights would best serve the needs and welfare of the [C]hildren
pursuant to 23 Pa.C.S. § 2511(b)?” Mother’s brief at 9.
Our standard of review regarding orders terminating parental rights is
as follows:
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When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an
abuse of discretion, an error of law, or insufficient evidentiary
support for the trial court’s decision, the decree must stand.
Where a trial court has granted a petition to involuntarily
terminate parental rights, this Court must accord the hearing
judge’s decision the same deference that we would give to a
jury verdict. We must employ a broad, comprehensive review
of the record in order to determine whether the trial court’s
decision is supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
the asserted grounds for seeking the termination of parental rights are valid.
Id. at 806. We have previously stated:
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.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
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The termination of parental rights is controlled by 23 Pa.C.S. § 2511.
Under this statute, the trial court must engage in a bifurcated process in
which it initially focuses on the conduct of the parent under Section 2511(a).
See In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial
court determines that the parent’s conduct warrants termination under
Section 2511(a), it must then engage in an analysis of the best interests of
the child under Section 2511(b). See id.
In the instant case, Mother does not challenge the trial court’s analysis
as it relates to her conduct under Section 2511(a); rather, she limits her
argument to the trial court’s analysis of the best interests of the Children
under Section 2511(b).
Section 2511(b) provides, in pertinent part:
(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.
23 Pa.C.S. § 2511(b).
Pursuant to Section 2511(b), the trial court must take into account
whether a natural parental bond exists between child and parent, and
whether termination would destroy an existing, necessary and beneficial
relationship. In re C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc).
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In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005),
this Court stated, “Intangibles such as love, comfort, security,
and stability are involved in the inquiry into needs and welfare of
the child.” In addition, we instructed that the orphans’ 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, the extent of the bond-effect
analysis necessarily depends on the circumstances of the
particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.
2008).
While a parent’s emotional bond with his or her child is a
major aspect of the Subsection 2511(b) best-interest analysis, it
is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
The mere existence of an emotional bond does not preclude the
termination of parental rights. Rather, the orphans’ court must
examine the status of the bond to determine whether its
termination “would destroy an existing, necessary and beneficial
relationship.” As we explained in In re A.S., 11 A.3d 473, 483
(Pa. Super. 2010):
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citation omitted).
Mother argues that her involvement with CYF “prior to May 2012
should not be the focus of any review of this case.” Mother’s brief at 16.
She also contends that her imprisonment should not be the focus of our
review in that her term of incarceration was to end about one month after
the final termination hearing. Id. Mother also asserts that the Children
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“love their [M]other and want to maintain their relationship and bond with
[her].” Id. Additionally, Mother contends that Dr. Bernstein’s testimony in
which he discusses each child’s statements to him about their relationship
with Mother, supports a finding that the Children miss her and “want to
maintain a relationship with her.” Id. Mother also explains about the
visitations she had with the Children while she was housed in the Allegheny
County Jail and, despite the lack of visitation when she was transferred to a
state correctional institution in April of 2013, she describes her contact with
the Children by phone and by mail. Mother further discusses her belief that
the termination will be harmful to the Children and that the court did not
give “serious consideration” to the bond that exists between her and the
Children, as required by the law. Id. at 18.
In its opinion, the court referenced some of Dr. Bernstein’s testimony
concerning the Children individually, their bond with Mother, and discussed
Maternal Aunt’s care of and relationship with the Children. O.C.O. at 6-7.
Specifically, the court reasoned:
Ultimately, Dr. Bernstein testified that to the extent that
the [C]hildren would experience a detriment if this Court
terminated Mother's rights, such a detriment would be wholly
outweighed by the benefits of adoption. Although the [C]hildren
indicated that they miss Mother, Dr. Bernstein testified that this
might not necessarily mean that they have a meaningful bond
with their Mother. Given the facts and history of this case, Dr.
Bernstein testified that the bond would not be healthy nor
securely attached. Maternal Aunt provides much-needed
structure to the [C]hildren's lives. T.M. recognizes Maternal
Aunt as a full-time caregiver and appreciates her in that role.
[The Children’s] primary concern is losing complete contact from
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Mother. In this case, given that the foster parent is Mother's
sister, a complete[] loss of contact seems extremely unlikely.
Dr. Bernstein testified that Maternal Aunt could use a bit more
assistance in meeting the [C]hildren's elevated needs. For
example[,] Dr. Bernstein's report noted that she did not know
the name of M.M.'s teacher. Nevertheless, Dr. Bernstein still
feels that adopti[on] would be the most appropriate action. This
Court agrees.
Maternal Aunt demonstrated appropriate parenting skills.
For example, she disciplines the [C]hildren in non-physical
manners, such []as removing a privilege or sending a child to
the bedroom. In [a] case like this, where there is a history of
child abuse, it is important to note the importance of non-
physical discipline. Maternal Aunt has also implemented a
routine in her home. Upon returning home from school, the
[C]hildren complete chores, do their homework, and then have
dinner and playtime. In Maternal Aunt's care, the [C]hildren
have experienced, for the first time, real and consistent care
such that they are not in harm's way. This stability has allowed
the [C]hildren to grow and develop. Whether the pre-adoptive
foster parent is meeting [C]hildren's emotional needs is an
important question in any TPR case. Here, that answer is in the
affirmative. In this case, however, this Court also notes that
Maternal Aunt is meeting the [C]hildren's basic needs: shelter,
food, clothing and physical health. These needs were not always
met while the [C]hildren were under Mother's care and
supervision. To the extent that Mother was ever able to meet
these basic needs, it was only when prompted … by a multitude
of CYF services, including but not limited to: drug and alcohol
referrals, mental health referrals, Alliance for Infants, Three
Rivers Youth in-home services. Even then, Mother mostly failed
to participate in those programs. She was never able to meet
the [C]hildren's needs for any length of time that could be
considered consistent. And when Mother failed to provide for
her [C]hildren, she did so in such an absolute way that the
failure was determined to be criminal in nature.
O.C.O. at 7-8 (citations to the record omitted).
In response to Mother’s arguments, it is evident that the court
emphasized the Children’s safety and did not focus on Mother’s
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incarceration. Most notably, the court examined the status of the bond
between Mother and the Children, recognizing that any detriment to the
Children is outweighed by their safety and security needs. Moreover, the
court concluded that because Maternal Aunt is Mother’s sister, “a complete[]
loss of contact seems unlikely.” Id. at 8.
The court’s discussion, quoted above, reveals that the court concluded
that Mother failed to provide the Children with a safe environment, and that
the termination of Mother’s parental rights is in the Children’s best interests.
Id. at 6. The court found that although the Children have a bond with
Mother, the bond is not necessarily meaningful or healthy. Id. at 7. See In
re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (stating that the strong parent-child
bond was an unhealthy one that could not by itself serve as grounds to
prolong foster care drift); see also In re L.M., 923 A.2d 505, 512 (Pa.
Super. 2007) (holding that a parent’s love of her child, alone, does not
preclude a termination). The court also noted that the Children are no
longer in harm’s way, which is allowing them “to grow and develop.” O.C.O.
at 8. See In re N.A.M., 33 A.3d at 103 (stating that the court may
emphasize the child’s safety needs).
Our review of the record reveals that the court’s findings are
supported by evidence presented at the hearings. Furthermore, we defer to
the court’s credibility determinations, and discern no abuse of discretion in
its findings as to credibility. See In re Adoption of S.P., 47 A.3d 817,
826-27 (Pa. 2012). Accordingly, we conclude that the court did not abuse
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its discretion in terminating Mother’s parental rights to the Children pursuant
to Section 2511(b).
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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