J-S44038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF G.L.L., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: ALLEGHENY COUNTY
OFFICE OF CHILDREN, YOUTH AND
FAMILIES
No. 359 WDA 2015
Appeal from the Order February 9, 2015
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): TPR 077 of 2014
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 25, 2015
Allegheny County Office of Children, Youth and Families (CYF) appeals
from the trial court’s order denying CYF’s petition to involuntarily terminate
the parental rights of S.L.L. (Mother) to her minor child, G.L.L. (Child) (born
6/2008).1 The trial court concluded that termination would not serve the
needs and welfare of G.L.L. pursuant to 23 Pa.C.S. § 2511(b).2 After careful
review, we affirm.
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1
G.L.L., through his Guardian ad litem (GAL), took the position at trial that
Mother’s rights should be terminated and filed its own appeal. However,
the GAL has since withdrawn that appeal, finding that the trial court’s
decision to deny CYF’s petition because termination would not serve the
needs and welfare of G.L.L. is supported by the record and was not an abuse
of discretion. See GAL’s Brief, at 9.
2
The trial court’s order denies CYF’s petition solely on the grounds that
“[t]he Court finds that terminating the rights of the parent does not serve
the needs and welfare of the child.[]” Trial Court Order, 2/9/2015, at 1.
(Footnote Continued Next Page)
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CYF first became involved with G.L.L. in June 2011 when Mother was
in a psychiatric hospital and could not care for him. In August 2011, CYF
opened a case as a result of deplorable conditions in Mother’s home,
including animal feces and bugs throughout the home. CYF provided Mother
with family group decision-making services,3 which eventually transitioned to
in-home services, from September 2011 through December 2011.
Ultimately, G.L.L. was removed from his home on February 15, 2012, but
was returned to Mother’s care on February 28, 2102; Mother was provided
crisis in-home services. G.L.L. was adjudicated dependent one month later,
on March 27, 2012. G.L.L. was removed from the family home for a second
time, on April 16, 2012, after CYF received a report of physical abuse
perpetrated by Mother. He has not returned to Mother’s care.
_______________________
(Footnote Continued)
However, the court makes no determination with regard to findings on
section 2511(a). We remind the trial court that in termination matters, it
must engage in a bifurcated analysis, see In re D. W., 856 A.2d 1231,
1234 (Pa. Super. 2004), that initially focuses on the conduct of the parent
and whether the party seeking termination has proven by clear and
convincing evidence that the parent's conduct satisfies the statutory grounds
for termination under section 2511(a). Only after determining that the
parent's conduct warrants termination of his or her parental rights under
section 2511(a) must the court engage in the second part of the analysis,
determination of the needs and welfare of the child, under section 2511(b).
C.M.S., 884 A.2d 1284, 1286-87 (Pa. Super. 2005).
3
Family Group Decision Making services describes a variety of practices
aimed at working with and engaging children, youth, and families in safety
and service planning and decisions. These services are often provided to
families where safety concerns exist and prior to children being removed
from their homes.
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CYF created a family service plan (FSP) for Mother with the following
goals: stabilizing her mental health; getting G.L.L. needed preventative
health and dental care; obtaining appropriate housing; and maintaining
contact and cooperation with family, friends and relatives as support
resources for G.L.L. To assist her in completing these goals, CYF provided
Mother with parenting classes, referrals for drug and alcohol assessments
and providers, and transportation assistance.
On April 29, 2014, CYF filed the instant petition for involuntary
termination of Mother’s parental rights to G.L.L., citing 23 Pa.C.S. §§
2511(a)(1), (a)(2), (a)(5), (a)(8), and (b) as the grounds for termination.
The trial court held a termination hearing on January 23, 2015, and denied
CYF’s petition, ultimately concluding that CYF did not prove by clear and
convincing evidence that terminating Mother’s parental rights would serve
the needs and welfare of G.L.L. under section 2511(b). CYF filed this
appeal, raising the following issue for our consideration:
Did the Orphan’s Court err as a matter of law and/or abuse its
discretion in failing to conclude that CYF met its burden of
proving that termination of Birth Mother’s parental rights would
serve the needs and welfare of the Child pursuant to 23 Pa.C.S.
§ 2511(b) by clear and convincing evidence?
We note that:
In a proceeding to terminate parental rights involuntarily, the
burden of proof is on the party seeking termination to establish
by clear and convincing evidence the existence of grounds for
doing so. The standard of clear and convincing evidence is
defined as testimony that is so "clear, direct, weighty and
convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in
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issue." It is well established that a court must examine the
individual circumstances of each and every case and consider all
explanations offered by the parent to determine if the evidence
in light of the totality of the circumstances clearly warrants
termination.
In re Adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation
omitted). We review a trial court’s decision to involuntarily terminate
parental rights for an abuse of discretion or error of law. In re A.R., 837
A.2d 560, 563 (Pa. Super. 2003). Our scope of review is limited to
determining whether the trial court’s order is supported by competent
evidence. Id.
CYF asserts that it proved, by clear and convincing evidence, that
termination of Mother’s parental rights would serve the needs and welfare of
G.L.L. under section 2511(b). To support its position, CYF argues that:
Mother has made minimal progress with regard to maintaining sobriety and
obtaining stable housing since G.L.L. has been out of her care; termination
of G.L.L.’s relationship with foster parents would be detrimental to G.L.L.;
and that an open adoption would meet the needs and welfare of G.L.L.
Section 2511(b) of the Adoption Act4 states:
(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
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4
See 23 Pa.C.S. §§ 2101-2938.
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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(b) (emphasis added). Moreover, in In re K.J., 936 A.2d
1128 (Pa. Super. 2007), our Court found that before granting a petition to
terminate under section 2511(b), a court must:
[C]arefully consider the intangible dimension of the needs and
welfare of a child--the love, comfort, security, and closeness--
entailed in a parent-child relationship, as well as the tangible
dimension. Continuity of relationships is also important to a
child, for whom severance of close parental ties is usually
extremely painful. The trial court, in considering what situation
would best serve the children's needs and welfare, must
examine the status of the natural parental bond to
consider whether terminating the natural parents' rights
would destroy something in existence that is necessary
and beneficial.
Id. at 1134 (emphasis added).
CYF’s claim that Mother’s minimal progress with regard to maintaining
sobriety and obtaining stable housing since G.L.L. has been out of her care
justifies termination under section 2511(b) is misplaced. A determination of
whether the parent's conduct justifies termination of parental rights under
section 2511(a) is distinct from and not relevant to a needs and welfare
analysis under section 2511(b). In re Adoption of R.J.S., 901 A.2d 502,
508 (Pa. Super. 2006). However, the record establishes that Mother
obtained her own housing prior to the termination proceedings and, although
Mother’s mental health and drug use has caused instability in her life, she
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has managed to consistently visit with G.L.L. and has not let these issues
affect her interactions with him. N.T. Termination Hearing, 1/23/15, at 31-
32. Moreover, Dr. Neil Rosenblum concluded in his report “that Mother has
made significant strides and improvement in her overall adjustment . . .
[and] no longer presents as being severely depressed[, . . .] has reinitiated
mental health treatment . . . and has become much more functional and
productive in her behavior and personal adjustment.” Psychological
Evaluation by Neil D. Rosenblum, Ph.D., 2/5/14, at 13.
Next, CYF claims that termination of Mother’s parental rights is
supported by the fact that ending G.L.L.’s relationship with foster parents
would be detrimental to him. While the security that G.L.L. may have with
his foster parents is a factor to be considered under section 2511(b), see In
re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011), one cannot discount the fact
that a major aspect of a section 2511(b) analysis is the status of the parent-
child bond and the effect that severance of that bond would have on the
child. Here, all parties acknowledge that there is a demonstrated bond
between Mother and G.L.L. See N.T. Termination Hearing, 1/23/15, at 86
(CYF attorney states “[c]learly there’s a bond between [Mother] and
[G.L.L.]”); id. at 29 (expert psychologist testifies that Mother and G.L.L.’s
relationship is “meaningful” and she has been a “constant” for him). Dr.
Rosenblum, psychologist who conducted several evaluations of G.L.L. and
Mother, testified that not only is there a meaningful relationship between
Mother and G.L.L., but that G.L.L. “certainly would be harmed” were that
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relationship terminated. Id. at 29. Specifically, Dr. Rosenblum testified that
G.L.L. would feel a loss if Mother’s rights were terminated due to the number
of years that he lived with her before he was removed from the home and
the fact that Mother visits with him twice a week. Id. at 30.
On February 5, 2014, Dr. Rosenblum conducted individual evaluations
of G.L.L. and Mother, as well as an interactional evaluation of G.L.L. with
Mother. Dr. Rosenblum’s report indicates that G.L.L. stated Mother (as
opposed to foster mother) is his favorite mom because he used to live with
her, that he misses Mother, and that he likes seeing her. Psychological
Evaluation by Neil D. Rosenblum, Ph.D., 2/5/14, at 4. With regard to his
evaluation of Mother, Dr. Rosenblum found that Mother clearly loves her
son, visits him on a fairly regular and consistent basis, had made significant
changes in her life over the past few months, which included moving into a
new home and obtaining a job, and meets with a therapist on a weekly basis
to stay calm and positive and effectively deal with her depression. Id. at 5.
Dr. Rosenblum made the following observations following his
interactional evaluation with G.L.L. and Mother: G.L.L. was pleased to see
Mother; Mother was very appropriate in her interactions with G.L.L.; Mother
was patient and attentive to G.L.L.; Mother has a nice rapport with G.L.L.;
Mother was nurturing with G.L.L.; and G.L.L. wanted to stay longer with
Mother at the end of the session. Id. at 7.
Dr. Rosenblum opined that termination of Mother’s rights would have a
negative impact on G.L.L. due to his close attachment to her. While he did
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not recommend reunification, he did recommend continuing G.L.L.’s
relationship with Mother through open adoption under 23 Pa.C.S.A. § 2731.5
However, before the parties could effectuate an open adoption, Mother’s
parental rights would have to be terminated. Instantly, there is no
guarantee that Mother and G.L.L. would continue to have contact post-
termination. Open adoption is a purely voluntary arrangement requiring the
consent of the adoptive parents in order to enter into an agreement with
birth relatives for ongoing communication or contact that is in the best
interest of the child. See In re K.H.B., 107 A.3d 175, 184 (Pa. Super.
2014) (open adoption statute by its plain language makes agreement
optional, and such agreement is plainly not required by section 2511); see
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5
The purpose of section 2731 is:
[T]o provide an option for adoptive parents and birth relatives to
enter into a voluntary agreement for ongoing communication or
contact that:
(1) is in the best interest of the child;
(2) recognizes the parties' interests and desires for
ongoing communication or contact;
(3) is appropriate given the role of the parties in the child's
life; and
(4) is subject to approval by the courts.
23 Pa.C.S.A. § 2731. An agreement under Act 101 "shall be filed with the
court that finalizes the adoption of the child[,]" 23 Pa.C.S.A. § 2735(a),
[and] “[t]he agreement shall not be legally enforceable unless approved by
the court, which the court shall approve when the statutory conditions are
satisfied.” Id. at §§ 2735(b), (c).
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also N.T. Termination Hearing, 1/23/15, at 93 (guardian ad litem admits
that “you can’t hold it against the foster parents if they decide that they do
not want to have contact . . . with [M]other” through an open adoption).
Therefore, we do not find that the uncertainty of an open adoption is
appropriate or relevant in a termination analysis under section 2511(b).
We note that as an appellate court we cannot re-weigh the evidence or
the credibility assessments made by the trial court. Rather,
[e]ven where the facts could support an opposite result, as is
often the case in . . . termination cases, an appellate court must
resist the urge to second guess the trial court and impose its
own credibility determinations and judgment; instead it must
defer to the trial judges so long as the factual findings are
supported by the record and the trial court's legal conclusions
are not the result of an error of law or an abuse of discretion.
In the Interest of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
Here, the trial court appropriately gave primary consideration to the
“developmental, physical and emotional needs and welfare of [G.L.L.],” 23
Pa.C.S. § 2511(b), and concluded that “the testimony was not so clear and
convincing as to persuade the Court to come to a clear conviction in the
matter.” Trial Court Opinion, 4/8/15, at 9. The court found that the
negative impact of keeping G.L.L. in foster care was outweighed by the
permanent damage he would sustain were Mother’s parental rights
terminated. Compare In re K.Z.S., 946 A.2d 753, 763 (Pa. Super. 2008)
(termination under section 2511(b) upheld on appeal where parent-child
bond could be severed without detrimental effects on child). See In re
C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc) (court must
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consider whether natural parental bond exists between child and parent, and
whether termination would destroy existing, necessary and beneficial
relationship).
Accordingly, we find the trial court did not abuse its discretion in
concluding that termination under section 2511(b) was not in the best
interests of G.L.L., In re A.R., supra, where “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 781, 791 (Pa. Super. 2012). We,
therefore, affirm the trial court’s order denying CYF’s petition to terminate
Mother’s parental rights.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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In Re: Adoption of: G.L.L., a minor Appeal of CYF
Combined Opinion