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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.M.P., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: R.A. No. 1805 WDA 2014
Appeal from the Order entered October 2, 2014,
in the Court of Common Pleas of Allegheny County, Orphans’
Court, at No(s): TPR 130 of 2013
IN RE: M.P., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.P. No. 1806 WDA 2014
Appeal from the Order entered October 2, 2014,
in the Court of Common Pleas of Allegheny County,
Family Court, at No(s): TPR-13-000130
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 14, 2015
R.A. (“Father”), and S.P. (“Mother”) appeal from the orders entered in
the Allegheny County Court of Common Pleas terminating their parental
rights to their child, M.M.P., a/k/a M.P., (“Child”)1 (born in December of
2008), pursuant to section 2511(a)(1), (2), (5), (8), and (b) of the Adoption
* Former Justice specially assigned to the Superior Court.
1
We note that in a separate order the trial court involuntarily terminated the
parental rights of the unknown father of Child. Order, 10/2/14. The
unknown father has not challenged the termination of his parental rights,
and is not a party to this appeal.
J-S17013-15 & S17014-15
Act.2 We affirm, and grant the petition to withdraw as counsel filed by
Mother’s counsel.
The trial court aptly set forth the factual background and procedural
history of these appeals in its opinion filed on December 3, 2014, which we
adopt herein. See Trial Ct. Op., 12/3/14, at 3-9. On July 31, 2013,
Allegheny County Children, Youth and Families (“CYF”) filed a petition for the
involuntary termination of the parental rights of Father, Mother, and the
unknown father of Child. On August 13, 2013, Amy L. Berecek, Esq. entered
her appearance as the guardian ad litem (“GAL”) for Child. Father’s trial and
appellate counsel, Raymond N. Sanchas, Esq. entered his appearance on
behalf of Father. On January 25, 2014, Mother’s trial and appellate counsel,
Marsha H. Grayson, Esq. entered her appearance on behalf of Mother. In
January of 2014, Eris Altar-Krupski, Esq. was appointed the GAL for Mother,
who has a history of mental health issues. N.T., 10/2/14, at 133.
On April 2, 2014, and October 2, 2014, the trial court held evidentiary
hearings on the termination petition. On April 2, 2014, CYF presented the
testimony of Neil Rosenbum, Ph.D., a licensed psychologist, who testified,
via telephone, as an expert witness through the stipulation of the parties.
N.T., 4/2/14, at 4-5. The hearing was continued to October 2, 2014.
Mother and Father were not present at the October 2, 2014 hearing, despite
2
23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).
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efforts to have them attend, but were represented by their counsel at the
hearing. N.T., 10/2/14, at 2-6.
In orders dated and entered on October 2, 2014, the trial court
terminated the parental rights of Father and Mother to Child pursuant to
section 2511(a)(1), (2), (5), (8), and (b) of the Adoption Act. On November
3, 2014, Mother filed a notice of appeal and statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On that same
date, Father filed a notice of appeal and statement of errors complained of
on appeal. On December 30, 2014, Mother’s counsel filed a petition to
withdraw as counsel and an Anders3 brief with this Court.
In the Anders brief, Mother’s counsel raises the following issues:
1. Whether the Trial Court erred or abused its discretion in
finding that the Office of Children, Youth and Families met
their burden of proof and proved by clear and convincing
evidence that the parental rights of S.P. should be
terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),
(5), [and] (8)[?]
2. Whether the Trial Court erred or abused its discretion in
finding that the Office of Children, Youth and Families met
their burden of proof and proved by clear and convincing
evidence that terminating the parental rights of S.P. best
meets the needs and welfare of the minor child M.P.
pursuant to 23 Pa.C.S.A. § 2511(b)[?]
Anders Brief, at 1-2.
On appeal, Father raises one issue:
Did the trial court abuse its discretion and/or err as a
matter of law in concluding that CYF met its burden of
3
See Anders v. California, 386 U.S. 738 (1967).
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proving by clear and convincing evidence that termination
of Father’s parental rights would best serve the needs and
welfare of his child pursuant to 23 Pa.C.S.A. § 2511(b)?
Father’s Brief, at 5.
We begin by addressing the motion to withdraw. See In re X.J. 105
A.3d 1, 3 (Pa. Super. 2014) (stating “[w]hen counsel files an Anders brief,
this Court may not review the merits without first addressing counsel's
request to withdraw.”).
In In re V.E., 611 A.2d 1267, 1275 (Pa. Super. 1992), this Court
extended the Anders principles to appeals involving the termination of
parental rights. We stated that counsel appointed to represent an indigent
parent on a first appeal from a decree involuntarily terminating parental
rights may, after a conscientious and thorough review of the record, petition
this Court for leave to withdraw representation and must submit an Anders
brief. In re V.E., 611 A.2d at 1275. To withdraw pursuant to Anders,
counsel must: 1) petition the Court for leave to withdraw, certifying that
after a thorough review of the record, counsel has concluded the issues to
be raised are wholly frivolous; 2) file a brief referring to anything in the
record that might arguably support the appeal; and 3) furnish a copy of the
brief to the appellant and advise him of his right to obtain new counsel or file
a pro se brief to raise any additional points that the appellant deems worthy
of review. In re V.E., 611 A.2d at 1273. Thereafter, this Court examines
the record and determines whether the appeal is wholly frivolous. Id.
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Our Supreme Court, in Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), stated that an Anders brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Mother’s counsel has complied with the first prong of the test in
Santiago by providing a summary of the procedural history and facts in her
Anders brief. Counsel has also complied with the second prong of the test
in Santiago by referring to any evidence in the record that counsel believes
arguably supports the appeal. Counsel has also set forth her conclusion that
the appeal is frivolous, and stated her reasons for that conclusion, with
appropriate support. Moreover, counsel filed a separate motion to withdraw
as counsel, wherein counsel states that she has made a conscientious
examination of the record, and she has concluded that the appeal is
frivolous. Further, counsel has attempted to identify and fully develop any
issues in support of Mother’s appeal. Additionally, counsel states that she
sent a letter to Mother in which she provided a copy of the Anders brief.
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Counsel states that she informed Mother that she has filed a motion to
withdraw and an Anders brief, and she informed Mother of her rights in
light of the motion to withdraw as counsel. Thus, Mother’s appellate counsel
has satisfied the requirements of Santiago.
Next, we address the first issue in the Anders brief, that is, whether
the trial court erred in granting the termination petition because the
evidence was insufficient to support the termination under section
2511(a)(1), (2), (5), (8). In reviewing an appeal from the termination of
parental rights, we review the appeal in accordance with the following
standard.
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of
a petition for 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., [ ] 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. As has been often stated,
an abuse of discretion does not result merely because the
reviewing court might have reached a different conclusion.
Instead, a decision may be reversed for an abuse of
discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will.
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,
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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 record
and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
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. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained:
[t]he 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.”
Id. (citation omitted).
The trial court terminated the parental rights of Mother and Father
under section 2511(a)(1), (2), (5), (8), and (b). 4 This Court may affirm the
trial court’s decision regarding the termination of parental rights with regard
to any one subsection of section 2511(a). In re B.L.W., 843 A.2d 380, 384
4
We note that Father has not challenged the termination of his parental
rights under section 2511(a), and has limited his challenge to the sufficiency
of the evidence under section 2511(b). He avers: “Father is not contesting
that there is a basis in the record to support the finding of the trial judge
that grounds for termination under 23 Pa.C.S. §2511(a) were proven by
sufficient evidence.” Father’s Brief at 12.
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(Pa. Super. 2004) (en banc). We will focus on section 2511(a)(2) and (b),
which 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. § 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
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mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. 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).
Our Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
As stated above, § 2511(a)(2) provides statutory grounds
for termination of parental rights where it is demonstrated
by clear and convincing evidence that “[t]he 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.” If and only if
grounds for termination are established under subsection
(a), does a court consider “the developmental, physical
and emotional needs and welfare of the child” under §
2511(b).
This Court has addressed incapacity sufficient for
termination under § 2511(a)(2):
A decision to terminate parental rights, never to be
made lightly or without a sense of compassion for
the parent, can seldom be more difficult than when
termination is based upon parental incapacity. The
legislature, however, in enacting the 1970 Adoption
Act, concluded that a parent who is incapable of
performing parental duties is just as parentally unfit
as one who refuses to perform the duties.
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In re Adoption of S.P., 47 A.3d at 827 (citation omitted).
This Court has stated:
an agency is not required to provide services indefinitely if
a parent is either unable or unwilling to apply the
instruction given. The goal of intervention is to rehabilitate
the family and reunite the child with his family, or to
terminate parental rights and free the child for adoption, if
reasonable efforts over an appropriate period of time have
failed. Therefore, [the agency’s] duties must have
reasonable limits. If a parent fails to cooperate or appears
incapable of benefiting from reasonable efforts supplied
over a realistic period of time, the agency has fulfilled its
mandate and upon proof of satisfaction of the reasonable
good faith effort, the termination petition may be granted.
In re A.L.D. 797 A.2d at 340 (quotation marks and citations omitted).
A child’s life “simply cannot be put on hold in the hope that [a parent]
will summon the ability to handle the responsibilities of parenting.” In re
Z.P., 994 A.2d 1108, 1125 (Pa. Super. 2010) (citation omitted). Rather, “a
parent’s basic constitutional right to the custody and rearing of his child is
converted, upon the failure to fulfill his or her parental duties, to the child’s
right to have proper parenting and fulfillment of his or her potential in a
permanent, healthy, safe environment.” In re B., N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
On April 2, 2014, Dr. Rosenblum testified. Maternal Grandmother has
been Child’ primary caregiver for approximately two years. N.T., 4/2/14, at
6. On October 16, 2012, he performed an interactional evaluation of Child
and Mother and Father. Id. at 8, 11. Mother tried to relate to Child and
there is no question that she loves him. Id. at 9. There is a bond between
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them. Id. Child enjoyed spending time with both Mother and Father. Id.
Mother’s parenting skills were inconsistent because of her mental health
problems. Id. at 10. “She’s not capable of consistently maintaining an
awareness of [Child] or making appropriate decisions about both short-term
things, such as keeping him safe at all times, and watching him carefully as
well as being able to make independent decisions about his well being.” Id.
Father’s parenting skills were fairly positive. Id. at 11. He related to
the types of things a young boy would enjoy doing. Id. Child enjoyed, “at
that time, a comfortable attachment and a good relationship with” Father.
Id.
When he observed Mother and Father together, Child preferred playing
with Father. Id. There was “a lot that [he] didn’t know about Mother and
Father” in terms of them parenting Child together on a long term basis. Id.
at 11-12. Father worked a lot of hours and “Mother reported being very
isolated.” Id. at 12. Mother and Father downplayed the issue of domestic
violence. Id. Mother would not be able to parent Child on her own. Id.
Father “did admit to one or two incidents where he claims Mother would
attack him or come after him.” Id. at 13. Father acknowledged Mother’s
mental health problems and the fact that they did not have money for her
medication. Id. Mother was inconsistent with medication and treatment.
Id.
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Father filled out a mental health questionnaire and “was highly
unrealistic in his responses.” Id. at 13-14. Father displays impulsive
behavior. Id. at 14. He diagnosed Father has having “adjustment disorder,
not otherwise specified, partner relational problem, parent/child relational
problem . . . .” Id.
Mother’s interview revealed that she had considerable mental health
problems. Id. at 15. She appeared to be delusional at times and confused
in her thought processes. Id. “Her judgment and insight [were] extremely
poor.” Id. Mother has “[s]chizoaffective disorder with a rule-out of
psychotic disorder NOS,[5] and apparent child relational problems and
schizoid personality traits.” Id. at 16. Her global assessment of functioning
score was forty-five which indicates very serious mental health concerns.
Id. He felt he needed more information about Father’s employment history
and possible alcohol abuse and the relationship between Mother and Father.
Id. at 17. They were living in Virginia and more information was needed
regarding their living situation. Id.
He concluded “Mother’s mental health problems as they presented
when [he] did [his] evaluation would interfere with her─grossly interfere
with her ability to take primary care of [Child].” Id. at 38. Father
understood the severity of Mother’s mental health problems but “overlooked
the significance and the impact and danger to [Child].” Id. at 39.
5
NOS stands for not otherwise specified.
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Following Dr. Rosenblum’s testimony, the court ordered CYF “to
schedule updated interactionals and individuals on all parties . . . .” Id. at
46. A hearing was held on October 2, 2014. Neither Mother nor Father
appeared at the hearing. N.T., 10/2/14, at 5. Dr. Rosenblum continued his
testimony at the hearing. He conducted evaluations on June 23, 2014 and
July 10, 2014 to assess Child’s needs, relationships with Mother, Father, his
grandmother and his uncle. Id. Father acknowledged Mother’s mental
health problems but was not proactive in seeing that she was in treatment
and took her medications. Id. at 11-12. He came to see Child two weeks
before the evaluation but had not seen him since Thanksgiving and
Christmas of 2013. Id. at 12. The previous visit was close to a year prior to
the visits in 2013. Id.
He conducted testing but the results were “lacking in validity.” Id. at
14. Father admits to no problems or concerns “for depression, anxiety,
domestic violence, alcohol use, not even any indications of sadness or regret
in regard from being away from [Child].” Id. His diagnosis for Father was
“adjustment disorder, with disturbance of conduct, rule out history of alcohol
abuse, history of partner relational problems, and parent/child relational
problems.” Id. at 15.
Mother “shows very clear clinical signs of psychotic disorder, most
likely schizo-affective disorder, which combines schizophrenic symptom
along with episodes of mania, and likely depression as well.” Id. at 16. She
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saw Child two to three times a year. Id. at 18. She denied having any
friends in Virginia where she lives. Id. She associates with her Mother-in-
law who lives in Virginia. Id. The testing results for her were “rather
invalid.” Id. at 19. Mother responded on some tests “no” to every question
or “true to every question . . . .” Id. He diagnosed her with “[s]chizo-
affective disorder, bipolar type, parent/child relational problem, history of
partner relational problem, and schizo and independent personality traits.”
Id. at 20. Her GAF score was fifty, indicating “severe difficulty in personal
functioning.” Id.
Two and one-half years have transpired since child came into care and
“it’s clear . . . that Mother is definitely not capable of caring for” Child “and
that her mental health problems remain very serious, and largely not
improved.” Id. at 30.
Christopher Michael Ciccarelli, family service caseworker for CYF
testified. Id. at 51-52. There were no services offered to Mother by CYF
because she was living in Virginia and CYF cannot provide services out of
state. Id. at 65, 102. CYF was ordered to do an Interstate Compact 6 with
Virginia and it was done November 5, 2012. Id. at 62. On January 16,
2013, it was closed due to lack of cooperation between the family. Id.
When Child was removed from Mother, Father was in Virginia. Id. at 117.
6
See Interstate Compact on the Placement of Children, 62 P.S. § 761.
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He was not providing care for Child. Id. at 118. Mother and Father were
both in Virginia Beach as of May 25, 2012. Id. at 119.
After our careful review of the record in this matter, we find that the
trial court’s determinations are supported by competent evidence in the
record. See In re Adoption of S.P., 47 A.3d at 826-827; In re Adoption
of M.E.P., 825 A.2d at 1272. Accordingly, we find that the trial court’s
determinations regarding section 2511(a)(2), with regard to Mother and
Father, are supported by sufficient evidence in the record. See In re
R.N.J., 985 A.2d at 276.
After we determine that the requirements of section 2511(a) are
satisfied, we proceed to review whether the requirements of subsection (b)
are satisfied. In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super.
2008) (en banc). This Court has stated that the focus in terminating
parental rights under section 2511(a) is on the parent, but it is on the child
pursuant to section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under section
2511(b), our Supreme Court stated as follows.
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M.,
[620 A.2d 481, 485 (Pa. 1993)], this Court held that the
determination of the child’s “needs and welfare” requires
consideration of the emotional bonds between the parent and
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child. The “utmost attention” should be paid to discerning the
effect on the child of permanently severing the parental bond.
In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
This Court has stated:
Being a parent means assuming responsibility so that a
real bond develops, not just having a casual relationship
with one’s children. Children often know, love, and
sometimes have an enjoyable time with parents who have
little to do with their upbringing, and even with parents
who physically and mentally abuse them. The key is
whether a bond has developed.
In re J.L.C., 837 A.2d 1247, 1249 (Pa. Super. 2003).
We have stated that, in conducting a bonding analysis, the court is not
required to use expert testimony, but may rely on the testimony of social
workers and caseworkers. In re Z.P., 994 A.2d at 1121. In In re K.Z.S.,
946 A.2d 753 (Pa. Super. 2008), this Court observed that no bond worth
preserving is formed between a child and a natural parent where the child
has been in foster care for most of the child’s life, and the resulting bond
with the natural parent is attenuated. Id. at 764.
Dr. Rosenblum testified that he did an interactional evaluation of Child
with Maternal Grandmother. N.T., 10/2/14, at 20. She had been the
primary caregiver for approximately two years since Child was removed from
Mother’s care in May of 2012. Id. at 21. Prior to the evaluation Child was
primarily residing with Uncle. Id. Grandmother takes care of Child while
Uncle is working. Id. Child and Uncle have “an exceptionally close
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relationship.” Id. at 25. Child views Maternal Grandmother and Uncle as
his primary caregivers. Id. at 37.
The trial court found “[t]o the extent that [Child] has a bond or
attachment to his parents, it is based only on memories and is in fact
residual, and apparently only evidenced by how well he gets along with them
at the interactionals. [Child] clearly recognizes his Uncle and Grandmother
to be his primary caregivers. The stronger bond and attachment is to
them.” Trial Ct. Op. at 8. Mother and Father did not put themselves in a
position to assume daily parenting responsibilities for Child so that they
could develop a real bond with Child. See In re K.Z.S., 946 A.2d at 764.
Father and Mother resided in Virginia, and allowed Child to remain in
Pennsylvania, first in the care of Maternal Grandmother for approximately a
year and a half, and, later, with Uncle, who wishes to adopt him. See In re
J.L.C., 837 A.2d at 1249.
This Court finds competent evidence in the record to support the trial
court’s determinations that Child’s needs and welfare are being provided by
Uncle. We conclude that both Mother’s and Father’s appeals lack merit as to
section 2511(b). See In re: T.S.M.; 71 A.3d at 267; In re Adoption of
S.P., 47 A.3d at 826-27. Accordingly, we affirm the orders terminating the
parental rights of Mother and Father pursuant to Section 2511(a)(2) and (b).
Further, we have reviewed the Anders brief. We have found the trial
court had sufficient evidence upon which to terminate Mother’s parental
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rights, and that her appeal is frivolous. Accordingly, we grant the motion to
withdraw filed by Mother’s counsel.
Orders affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2015
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Circulated 04/27/2015 02:46 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
RE: IN THE INTEREST OF: M.P. a.k.a. CHILDREN'S FAST TRACK APPEAL
M.M.P., minor child
OPINION
APPEALS OF: R.A., natural father;
S.P., natural mother Docket No.: JV-12-1114
TPR No.: 13-130
1805 WDA 2014 & 1806 WDA 2014
BY:
Honorable Kathryn Hens-Greco
440 Ross Street
Suite 5077
Pittsburgh, PA 15219
COPIES TO:
Counsel for Allegheny County
Children, Youth and Family Services:
Paula J. Benucci, Esq.
Fort Pitt Commons, Suite 101
445 Fort Pitt Blvd
Pittsburgh, Pa 15219
Counsel for M.P. as Guardian ad Litem:
Amy Lynn Berecek, Esq.
U') Kids Voice
("")
437 Grant Street, Suite 700
N Pittsburgh, Pa 15219
s:
~
<") Counsel for S.P.:
-u.. ~
'
...
Marsha Grayson, Esq.
Grayson Law Firm, LLC
401 Wood Street
~ Pittsburgh, PA 15222
Counsel For R.A ..
Raymond Sanchas, Esq.
Juvenile Court Project
436 Seventh A venue, Fl 11
Pittsburgh, Pa 15219
Circulated 04/27/2015 02:46 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
RE: IN THE INTEREST OF: M.P. a.k.a, CHILDREN'S FAST TRACK APPEAL
M.M.P., minor child
Docket No.: JV-12-1114
APPEALS OF: R.A., natural father; TPR No.: 13-130
S.P., natural mother 1805 WDA 2014 & 1806 WDA 2014
OPINION
HENS-GRECO, J. December 3, 2014
On October 2, following a one-day' hearing on the above captioned matter in which neither parent
appeared' but was represented by counsel, this Court issued an order granting the petition of the Allegheny
County Office of Children, Youth and Families ("CYF") for involuntary termination of the parental rights
of R.A. ("Father"), the natural father of M.P. (DOB 12/19/2008) and of S.P. ("Mother"), the natural mother
of M.P., pursuant to 23 Pa. C.S.A. §§ 2511(a)(l), (a)(2), (a)(5), (a)(8), and 2511(b). For the reasons set
forth below, the Order of this Court terminating parents' rights to the child M.P. should be affirmed.
I
The trial was initially scheduled for April 2, 2014. At said dale, testimony from psychologist Dr. Neil Roseblum
revealed that updated interactional evaluations would better assist the Court in making a determination. See
Testimony of Transcript, dated April 2, 2014, at 45. The case was continued until August 20, 2014, where it was
continued again to October 2, 2014. Both parties received notice of the October 2, 2014 hearing date as indicated
by their counsel. See Testimony of Transcript, October 2, 2014, at 5-6.
2
The CYF Caseworker and Mother's GAL indicated that Mother was aware of the TPR hearing, but that she had
apparently been recently released from the hospital and could not attend. See Transcript of Testimony, at 3-4.
She also indicated, however, that she did not want to testify by phone. The Caseworker testified that, according to
Mother, Father forgot about the hearing. Id., at 80. The Caseworker also testified that Mother was very amicable
to her brother adopting M.P., but that her only request was that she wants to see M.P.
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CYF based its petition to terminate Father's parental rights on 23 Pa.C.S.A. §§ 251 l(a)(l), (a)(2),
(a)(5), and (a)(8). These subsections provide for the involuntary termination of parental rights if the
petitioner can establish any of the following grounds:
(a)(l) The parent by conduct continuing for a period of at least six months immediately
preceding the filing of the petition either has evidenced a settled purpose of relinquishing
parental claim to a child or has refused or failed to perform parental duties. [ ... ]
(a)(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. [ ... ]
(a)(5) The child has been removed from the care of the parent by the court or under a voluntary
agreement with an agency for a period of at least six months, the conditions which led to the
removal or placement of the child continue to exist, the parent cannot or will not remedy those
conditions within a reasonable period of time, the services or assistance reasonably available to the
parent are not likely to remedy the conditions which led to the removal or placement of the child
within a reasonable period of time and termination of the parental rights would best serve the needs
and welfare of the child.[ ... ]
(a)(8) 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 elate of removal or placement,
the conditions which led to the removal or placement of the child continue to exist and the
termination of the parental rights would best serve the needs and welfare of the child.
23 Pa. C.S.A. §§ 2511 (a)(l), (a)(2), (a)(S), (a)(8). Once the statutory grounds for involuntary termination
of parental rights have been clearly shown, the Court must consider whether the termination would meet the
needs and welfare of the child under subsection §2511(b):
(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)(l), (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 petitions.
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23 Pa. C.S.A. § 2511 (b). A party seeking termination of parental rights must establish by clear and
convincing evidence that the parent's conduct satisfies at least one of the statutory grounds for termination;
if it is determined that this burden of proof has been met, then the trial court must next consider the second
step of the process, which entails a determination of whether termination best serves the needs and welfare
of the child. In re S.D. T., Jr., 934 A.2d 703 (Pa. Super. 2007). In reviewing an order terminating parental
rights, the appellate court "is 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." In re S.H., 879 A.2d 802, 809 (Pa. Super. 2005).
Furthermore, the trial court is "the sole determiner of the credibility of witnesses and resolves all conflicts
in testimony." Id.
With the above standards in mind, and based on the testimony of three witnesses at trial (CYF
Caseworker Christopher Ciccarelli, psychologist Dr. Neil D. Rosenblum, and Mother's guardian ad litem
Eris Atar-Krupski), the Court found the following facts, which persuaded the Court that grounds for
termination had been firmly established:
The family came to the attention of CYF on May 9, 2012 following allegations that the child's
welfare was in jeopardy after Mother had locked herself and M.P. in a closet in the home of Maternal
Grandmother. See Transcript of Testimony ("T.T."), dated October 2, 2014, at pages 58-59. It became
immediately apparent to CYF that Mother had mental health issues. During the initial incident, Mother
made allegations about the Secret Service, x-rays, and satellites for 20-30 minutes. ld., at 59. Mother
refused to let the authorities look at the child so that they could ensure his health and safety. The child was
also very tiny and unclean. Id. CYF was also concerned about his nutrition. Id. CYF obtained an
Emergency Custody Authorization to remove the child. Id. Mother was involuntarily committed lo the
psychiatric unit at McKeesport Hospital. Id.; Id., at 61. M.P.' s shelter hearing was held on May 11, 2012.
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The child was placed in the home of Maternal Grandmother; upon her release, Mother returned to Virginia
to be with Father. The child was never in either of the parents' custody again. Rather, M.P. lived with his
Maternal Grandmother for roughly a year and a half until it became apparent that Maternal Grandmother,
due to health concerns, could not be a full time pre-adoptive resource. At that point, Uncle, Mother's
bother, made himself available. He has been the primary caregiver since.
In her Statement of Errors, Mother quite broadly argues: "1. The Trial Court erred in finding that the
Office of Children, Youth and Families met their burden of proof and proved by clear and convincing
evidence that the parental rights of ["Mother"] should be terminated pursuant to 23 Pa.C.S.A. §§
251 l(a)(l ), (2), (5), (8) and (b ). See Mother's Notice of Appeal and Statement of Errors, at