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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: S.O. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.C.B. No. 586 MDA 2015
Appeal from the Order entered March 6, 2015,
in the Court of Common Pleas of Cumberland County, Orphans’
Court, at No(s): 3 Adoptions 2015
IN RE: ADOPTION OF: T.A., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: E.C.B. No. 587 MDA 2015
Appeal from the Order entered March 6, 2015,
in the Court of Common Pleas of Cumberland County, Orphans’
Court, at No(s): 4 Adoptions 2015
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 28, 2015
E.C.B. (“Mother”) appeals from the decrees and orders dated March 3,
2015, and entered on March 6, 2015, in the Court of Common Pleas of
Cumberland County, which granted the petition filed by the Cumberland
County Children and Youth Services (“CYS” or “Agency”) seeking to
involuntarily terminate her parental rights to her minor children, S.O., a
female born in January of 2011, and T.A., a male born in April of 2013,
(collectively, the “Children”), pursuant to section 2511(a)(2), (5), (8), and
(b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2), (5), (8), and (b), and
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directed CYS not to provide Mother any further visitation with the Children.
We affirm.1
The trial court set forth the factual background and procedural history
of this appeal as follows.
On the evening of September 30, 2013, Mother and T.A’s
[f]ather were involved in a domestic dispute. As [M]other was
leaving in her S.U.V. [(sports utility vehicle),] she struck and
killed T.A.’s [f]ather. Rather than stay at the scene, Mother
drove to a bar about an hour away. The police located her at
the bar several hours later. She appeared to be intoxicated. A
subsequent blood test showed that she had consumed a
combination of drugs and alcohol. She was taken into custody
and has remained incarcerated ever since.
At the request of the Agency[,] the [C]hildren were placed
on an emergency basis with Mother’s sister[,] R.F.[,] and her
husband[,] S.F. S.O. had spent a significant amount of time
with the “F” family before the birth of her brother[,] T.A.,
including several months she had been removed from the home
by the Agency in 2012. The [C]hildren were found to be
dependent on October 3, 2013. They have been with the “F”
family throughout their entire time in placement.
On September 2, 2014, Mother pled guilty to involuntary
manslaughter in connection with the death of T.A.’s father. She
was sentenced to [two and a half] to [five] years in a state
correctional institution, with credit from October 1, 2013. She
1
S.O.’s father, J.W., voluntarily relinquished his parental rights. T.A.’s
father, J.A., is deceased. See Trial Court Opinion, 5/7/15, at 1 n.1. The
trial court also entered orders on March 10, 2015, that changed the
permanency goal for the Children to adoption pursuant to section 6351 of
the Juvenile Act, 42 Pa.C.S.A. § 6351, and on March 25, 2015, that denied
Mother’s request for continuation of visitation pending appeal. Mother
separately appealed those orders at docket number 601 MDA 2015. Judge
Edward E. Guido presided over the proceedings in both the
termination/visitation matters in the Orphans’ Court Division, and the goal
change/visitation orders in the Juvenile Division of the trial court. We will
address Mother’s appeals from the goal change/visitation orders in a
separate Memorandum.
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will not be eligible for parole until April 1, 2016. As part of her
sentence[,] Mother was ordered to obtain a drug and alcohol
evaluation and comply with the treatment recommendations[,]
as well as to complete an anger management program.
Trial Court Opinion, 5/7/15, at 1-3 (internal footnotes omitted).
On January 23, 2015, CYS filed petitions seeking to involuntarily
terminate Mother’s parental rights to the Children. On January 27, 2015,
the trial court appointed Attorney Cindy Villanella to serve as the Guardian
ad Litem (“GAL”) for the Children.
On February 4, 2015, the trial court held an evidentiary hearing on the
issues of termination and goal change.2 At the hearings, CYS presented the
testimony of S.O.’s counselor and “play therapist,” Glenford Kauffmann, via
telephone, as an expert in therapy for children. N.T., 2/4/15 and 5/3/15, at
9-10, 16. Mr. Kauffman works for Family Resource and Counseling Centers
in Gap and Lancaster, Pennsylvania. Id. at 10. Mr. Kauffman used sand in
a sandbox for the play therapy with S.O. Id. at 14. CYS then presented the
testimony of Amanda Sigrist, who previously was the CYS caseworker
assigned to the Children. Id. at 35-36. Next, CYS presented the testimony
of Virginia Koser, who became the CYS caseworker assigned to the Children
on October 29, 2014. Id. at 48. CYS then presented the testimony of
Kathleen Kelly, the Court-Appointed Special Advocate volunteer for the
Children (“CASA”). Id. at 62-64. Finally, CYS presented the testimony of
2
At that time, the permanency goal for the Children was return to parent
with a concurrent goal of adoption.
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Mother’s brother-in-law, S.F., who is the Children’s foster father, (“Foster
Father”).3 Id. at 53, 68, 97-98. S.F. testified that he and his wife are
willing to adopt the Children. Id. at 72.
Mother presented the testimony of her former husband, E.G.B. Id. at
73-74. Mother then presented the testimony of her former male roommate,
H.B. Id. at 82. Mother also testified on her own behalf. The GAL presented
the testimony of Foster Father. Id. at 137. The GAL then presented the
testimony of C.A., the stepmother of T.A.’s father, J.A. Id. at 137. Finally,
CYS presented, via telephone, the testimony of Officer Cory Keen, a police
officer for Silver Spring Township, who responded to the call regarding J.A.’s
death, and located Mother in the bar in Annville, Pennsylvania. Id. at 142.
In the Orphans’ Court Division, on March 6, 2015, the trial court
entered two separate decrees dated March 3, 2015, involuntarily terminating
the parental rights of Mother to the Children, without specifying the
subsections of section 2511 under which it was terminating Mother’s
parental rights.4 In another order dated March 3, 2015, and entered in each
child’s case on March 6, 2015, the trial court directed that CYS have no
further visitation between Mother and the Children.
3
S.F.’s wife, R.F., is Mother’s adoptive sister. Id. at 53, 70, 97-98.
4
In another order dated March 3, 2015, and entered on March 6, 2015, the
trial court provided that it was terminating Mother’s parental rights pursuant
to section 2511(a)(5), (8), and (b). In its opinion, the trial court stated that
it terminated Mother’s parental rights on the basis of section 2511(a)(2),
(5), (8), and (b). Trial Court Opinion, 5/7/15, at 7 and n.36.
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In the Juvenile Court Division, in orders dated March 3, 2015, and
entered on March 10, 2015, the trial court changed the permanency goal for
the Children to adoption pursuant to section 6351 of the Juvenile Act. In
orders dated March 3, 2015, and entered on March 5, 2015, the trial court
directed CYS not to have any further visitation between Mother and the
Children. On March 16, 2015, Mother filed a motion to direct CYS to
continue visits between her and the Children pending appeal. The trial court
denied the motion on March 25, 2015.
On April 2, 2015, Mother filed in the Orphans’ Court Division notices of
appeal from the termination decrees and orders, and the visitation orders
entered on March 6, 2015, along with concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
April 2, 2015, Mother filed in the Juvenile Court Division notices of appeal,
along with concise statements of errors complained of on appeal, from the
orders denying the goal change and visitation, including the March 10 and
March 25, 2015 orders. She requested the consolidation of her appeals from
the termination decrees and orders entered March 6, 2015, and stated that
the matters in the Juvenile Court Division were also directly related and
should be consolidated therewith. On April 16, 2015, this Court
consolidated the appeals from the Orphans’ Court Division’s decrees and
orders, which are assigned docket numbers 586 MDA 2015 and 587 MDA
2015. We listed an appeal from the Juvenile Court Division’s orders at
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docket number 601 MDA 2015, to be decided consecutively to the
termination appeals.
Herein, we focus on the appeals from the termination decrees and
orders, and the visitation orders. Mother raises the following issues.
1. Was the [t]rial [c]ourt’s decision to terminate the parental
rights of [] Mother to her one and four year old children
supported by competent evidence where [] Mother’s minimum
incarceration term is up on April 1, 2016[,] and where [] Mother
has cooperated in every way with [CYS], has forwarded
significant monthly child support payments to the foster parents
and has the financial means to continue doing so until her
release, has routinely mailed letters and pictures and gifts to the
[C]hildren, has shown a willingness to participate in every prison
program available to improve herself, has the ability to
communicate with the [C]hildren via virtual visitation and by
telephone while in prison, has continued to maintain an ideal
home for her children to move into immediately upon her release
from prison, and[,] where the foster parents who are her sister
and brother-in-law[,] are willing to care for the [C]hildren until
her release[,] whether or not her parental rights are terminated,
and where there was no clear and convincing evidence presented
that [] Mother cannot successfully resume parenting the
[C]hildren immediately upon her release[?]
2. Was the [t]rial [c]ourt’s decision that the termination of []
Mother’s parental rights best serves the needs of the [C]hildren
at issue supported by competent evidence based upon the above
facts among others established on the record?
3. Did the [t]rial [c]ourt abuse its discretion and err as a matter
of law in terminating the parental rights of [] Mother where
[CYS] failed to provide her with reasonable efforts to promote
reunification between her and her daughter[,] S.O.[,] prior to
filing its termination petition?
[4.] Did the [t]rial [c]ourt abuse its discretion and err as a
matter of law in admitting and considering as part of its decision
to terminate the parental rights of [] Mother, over objection set
forth in the record, Glenford Kaufman’s opinion testimony[?]
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[5]. Did the [t]rial [c]ourt abuse its discretion and err as a
matter of law in admitting and considering as part of its decision
to terminate the parental rights of [] Mother, over objection set
forth in the record, reports prepared by the Court Appointed
Special Advocate Kathleen Kelly[?]
[6.] Did the [t]rial [c]ourt abuse its discretion and err as a
matter of law in admitting and considering as part of its decision
to terminate the parental rights of [] Mother, over objection set
forth in the record, the opinion of Kathleen Kelly on the question
of whether or not [] Mother’s parental rights should have been
terminated in favor or adoption?
[7.] Did the [t]rial [c]ourt abuse its discretion and err as a
matter of law in denying further visits between [] Mother and her
children pending appellate review of the [t]rial [c]ourt’s orders
terminating [] Mother’s parental rights?
Mother’s Brief at 10-11.
First, we will address Mother’s issues 1 and 2, which Mother discusses
together in her brief. See Mother’s Brief at 31-36. Mother argues that there
was insufficient evidence to support the termination of her parental rights
because she was making efforts to utilize the resources available to her in
prison to maintain contact with the Children. Mother contends that the trial
court’s decision to terminate her parental rights was premature, and that the
trial court lacked relevant expert testimony regarding any ill effects that the
Children would suffer if reunified with her. Mother claims that she has been
demonstrating significant efforts to correct her parenting mistakes. Mother
suggests that, when she is eligible for release on parole in April of 2016,
S.O. will be five years old, and T.A. will be three years old. She states that
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the F.’s have agreed to support Mother if she maintains her parental rights.
See Mother’s Brief at 35-36.
In reviewing an appeal from an order terminating parental rights, we
adhere to 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. Id.; R.I.S., 36
A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has been often
stated, an abuse of discretion does not result merely because
the reviewing court might have reached a different conclusion.
Id.; see also Samuel Bassett v. Kia Motors America, Inc.,
34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
634 (Pa. 2003). Instead, a decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these
cases. We observed that, unlike trial courts, appellate courts are
not equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during
the relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at
1190. Therefore, even where the facts could support an
opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the
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
Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
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). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). The trial court terminated Mother’s parental rights under section
2511(a)(2), (5), (8), and (b). See Trial Court Opinion, at 5/7/15, at 7 and
n.36. Section 2511(a)(2), (5), (8), and (b) provide as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may be
terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
***
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
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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.
***
(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 date
of removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
***
(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.
This Court has explained that the focus in terminating parental rights
under section 2511(a) is on the parent, but, under section 2511(b), the
focus is on the child. In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa.
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Super. 2008) (en banc). While the trial court focused its discussion on
section 2511(a)(8) and (b), we will focus on subsection 2511(a)(2) and (b). 5
The Supreme Court set forth our inquiry under section 2511(a)(2) as
follows.
[Section] 2511(a)(2) provides [the] statutory ground[] 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.” . . .
[The Supreme 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.
In re Adoption of J.J., 515 A.2d 883, 891 (Pa. 1986),
quoting In re: William L., 383 A.2d 1228, 1239 (Pa.
1978).
5
We note that the trial court stated that it focused its inquiry upon the
needs and welfare of the Children under both section 2511(a) and (b). Trial
Court Opinion, 5/7/15, at 7 n.37. The trial court, however, did not engage
in a separate discussion of the needs and welfare of the Children under
subsections (a)(2), (5), and (8), and (b). Rather, the court, which discussed
only subsection (a)(8), intertwined its discussion of the considerations under
subsection (a)(8) and (b), while stating that it engaged in the two-tiered
analysis set forth in In re C.L.G., 956 A.2d at 1009. We will focus our
discussion on subsection (a)(2), which does not have a needs and welfare
element.
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In re Adoption of S.P., 47 A.3d at 827.
This Court has stated that a parent is required to make diligent efforts
towards the reasonably prompt assumption of full parental responsibilities.
In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002). A parent’s vow to
cooperate, after a long period of uncooperativeness regarding the necessity
or availability of services, may properly be rejected as untimely or
disingenuous. Id. at 340.
The trial court assessed the evidence regarding Mother’s repeated
incapacity to parent the Children, and her inability to remedy the conditions
and causes of her incapacity to parent the Children as follows.
Shortly after her sentencing[,] Mother was transferred
from the County Prison to the State Correctional Institution at
Muncy. She remained there for a short time until she was
transferred to the State Correctional facility at Cambridge
Spring[s,] where she will serve out the remainder of her
sentence.
Prior to her incarceration, Mother had several other run-ins
with law enforcement. At least twice in 2011[,] police were
called to her home as a result of drug overdoses by the men in
her life. She was also convicted of various charges arising out of
three separate criminal episodes in 2012. The convictions were
for retail theft, possession of drug paraphernalia, and disorderly
conduct.
Mother lived with various men after the birth of S.O. They
introduced her to drugs and subjected her to domestic violence.
Mother admitted to experimenting with all sorts of drugs,
including cocaine and heroin. However, she claimed that the
drugs never “had control over (her) . . . like they did some of the
people that (she) lived with.” We found that claim to have been
belied by the facts.
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Since her incarceration[,] Mother has been cooperative
with the Agency. She completed a drug and alcohol evaluation
in February of 2014 at the County Prison. She also attended
N.A. [Narcotics Anonymous] and A.A. [Alcoholics Anonymous]
meetings while at the County Prison. After she transferred to
Cambridge Springs in January 2015[,] she enrolled in both a
parenting program and a domestic violence program. However,
when she is released from prison, “there are many things that
she still needs to complete in order for the Agency to feel
comfortable recommending that the kids would return to her.”
Trial Court Opinion, 5/7/15, at 2-4 (internal footnotes omitted).
Mother relies on In re R.I.S., 36 A.3d 567, 574 (Pa. 2011) (plurality),
to support her argument that incarceration alone is not an explicit basis
upon which to base termination of parental rights. She quotes R.I.S. for the
proposition that this Court must inquire whether the parent utilized those
resources at his or her command while in prison to continue and pursue a
close relationship with her children. Mother’s Brief at 33, quoting In re
R.I.S., 36 A.3d at 572-573. Mother asserts that she has utilized the
resources available to her to continue and pursue a relationship with the
Children, and that she has exerted herself to maintain a place of importance
in their lives. Mother’s Brief at 33-34. Mother states that, while
incarcerated, she has routinely sent letters including pictures and gifts, she
has sent significant monetary child support, she regularly attempts phone
calls to the foster parents, she has continued efforts to arrange for virtual
visitation, and she has signed up for prison programs to address her
problems and become a better parent. Id.
Recently, our Supreme Court instructed:
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we now definitively hold that incarceration, while not a
litmus test for termination, can be determinative of the
question of whether a parent is incapable of providing
“essential parental care, control or subsistence” and the
length of the remaining confinement can be considered as
highly relevant to whether “the conditions and causes of the
incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent,” sufficient to provide grounds for
termination pursuant to 23 [Pa.C.S.A.] § 2511(a)(2). [See
In re: E.A.P., 944 A.2d 79, 85 (Pa. Super. 2008)] (holding
termination under § 2511(a)(2) supported by mother’s
repeated incarcerations and failure to be present for child,
which caused child to be without essential care and
subsistence for most of her life and which cannot be
remedied despite mother’s compliance with various prison
programs). If a court finds grounds for termination under
subsection (a)(2), a court must determine whether
termination is in the best interests of the child, considering
the developmental, physical, and emotional needs and
welfare of the child pursuant to § 2511(b). In this regard,
trial courts must carefully review the individual
circumstances for every child to determine, inter alia, how a
parent’s incarceration will factor into an assessment of the
child’s best interest.
In re Adoption of S.P., 47 A.3d at 830-831 (some internal citations
omitted).
Here, the trial court recognized that Mother had utilized all of the
resources available to her to maintain contact with the Children, but noted
that Mother’s contact with the Children had been limited because of her
incarceration. Trial Court Opinion, 5/7/15, at 8. In view of our Supreme
Court’s decision in In re S.P., the trial court was not bound by the Court’s
decision in In re R.I.S. to find insufficient evidence upon which to terminate
Mother’s parental rights simply because the trial court found that she had
utilized her limited resources in prison to attempt to maintain contact with
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the Children. The trial court considered that, even if Mother is released on
parole in April of 2016, “when she is released from prison, ‘there are many
things that she still needs to complete in order for the Agency to feel
comfortable recommending that the kids would return to her.’” Trial Court
Opinion, 5/7/15, at 2, 4.
After a careful review of the evidence presented, we conclude that the
trial court’s 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. Thus, we will not disturb the trial court’s factual findings or its
credibility determinations. In re Adoption of S.P., 47 A.3d at 826-827.
Next, we review the termination of Mother’s parental rights under
section 2511(b). Our Supreme Court recently 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.A. § 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
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).
The trial court considered the needs and welfare of the Children, and
set forth its bond-effect analysis, as follows:
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When the [C]hildren were placed with the “F” family, S.O.
was a little more than 33 months old[,] and T.A. was just over 5
months old. No services were necessary for T.A. However, that
was not the case with S.O. When she came to the “F” family[,]
she had been deeply affected by what she had endured in
Mother’s home. She was nervous and anxious, would bite her
nails and pick her fingers until they bled, threw temper
tantrums, and wet the bed.
S.O. began counselling with a play therapist in February of
2014. The therapist opined that her fear, anxiety and behaviors
were the result of trauma. After observing her play, he
concluded that her trauma was associated with a car as well as
with two men. While she made great progress during her year
in counselling, there were two periods of regression. Both
periods coincided with her contacts with Mother. She expressed
fear about living with Mother. She does not even want to talk
about her [m]other. On the other hand, she feels very safe with
and bonded to her foster family.
S.O. and T.A. are happy, healthy and very much a part of
the “F” family. They live with R.F., [sic] S.F. and their 5
children, ages 20, 18, 16, 13, and 10. The entire family loves
them.
Since T.A. was only 5 months old when he was placed, the
“F” family is the only family he has ever really known. S.O.
refers to R.F. and S.F. as mommy and daddy. She also says
that she does not have any other mommy.
Trial Court Opinion, 5/7/15, at 4-5 (internal footnotes omitted).
With regard to its bond analysis, the trial court stated as follows.
Both children were placed with the “F” family on an
emergency basis on October 3, 2013 because of Mother’s
incarceration. At the time we entered the order terminating her
parental rights[,] she had been incarcerated and the [C]hildren
had been in placement for more than 17 months. . . .
The [C]hildren will have been in placement for at least 30
months before Mother can hope to be released from prison.
They are part of a family that loves them and wants to adopt
them. Both [C]hildren have been with that family for a large
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portion of their young lives. There is a mutual and loving bond
between the [C]hildren and the family. T.A. has not known any
other family. S.O. feels safe with the “F” family and does not
wish to be with anyone else.
We commend Mother for having used all of the resources
available to her to maintain contact with the [C]hildren.
However, because of her incarceration[,] that contact has been
limited. Due to the young age at which [T.A.] was placed, and
the limited contact he has had with Mother during his placement,
we saw no evidence that T.A. has any type of meaningful
relationship with his [m]other. S.O., on the other hand, had
been so traumatized by her years of living with Mother, the mere
prospect of contact with Mother causes her fear and anxiety.
Based upon the totality of the circumstances, we were
convinced that the needs and welfare of the [C]hildren would
best be served by allowing them to be adopted by the “F” family.
The adoption will give them the permanency they need and are
entitled to have. They are in a safe, secure and loving
environment where all of their physical and emotional needs are
being met. T.A. is thriving and S.O. has made great progress in
overcoming the trauma to which she had been subjected. For
those reasons, we terminated Mother’s parental rights to both
[C]hildren.
Trial Court Opinion, 5/7/15, at 7-8 (internal footnote omitted).
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 1108, 1121 (Pa. Super.
2010). This Court has 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. In re K.Z.S., 946 A.2d 753, 764 (Pa. Super. 2008). It is
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appropriate to consider a child’s bond with her foster parent. See In re:
T.S.M., 71 A.3d at 268.
In addition, in In re: T.S.M., our Supreme Court set forth the process
for evaluation of the existing bonds between a parent and a child, and the
necessity for the court to focus on concerns of an unhealthy attachment and
the availability of an adoptive home. The Supreme Court stated the
following:
[C]ontradictory considerations exist as to whether termination
will benefit the needs and welfare of a child who has a strong but
unhealthy bond to his biological parent, especially considering
the existence or lack thereof of bonds to a pre-adoptive family.
As with dependency determinations, we emphasize that the law
regarding termination of parental rights should not be applied
mechanically but instead always with an eye to the best interests
and the needs and welfare of the particular children involved.
See, e.g., R.J.T., [9 A.3d 1179, 1190 (Pa. 2010)] (holding that
statutory criteria of whether child has been in care for fifteen of
the prior twenty-two months should not be viewed as a “litmus
test” but rather as merely one of many factors in considering
goal change). Obviously, attention must be paid to the pain that
inevitably results from breaking a child’s bond to a biological
parent, even if that bond is unhealthy, and we must weigh that
injury against the damage that bond may cause if left intact.
Similarly, while termination of parental rights generally should
not be granted unless adoptive parents are waiting to take a
child into a safe and loving home, termination may be necessary
for the child’s needs and welfare in cases where the child’s
parental bond is impeding the search and placement with a
permanent adoptive home.
[The Adoption and Safe Families Act of 1997, P.L. 105-89]
ASFA[,] was enacted to combat the problem of foster care drift,
where children . . . are shuttled from one foster home to
another, waiting for their parents to demonstrate their ability to
care for the children. See In re R.J.T., 9 A.3d at 1186; In re
Adoption of S.E.G., [901 A.2d 1017, 1019 (Pa. 2006)]. This
drift was the unfortunate byproduct of the system’s focus on
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reuniting children with their biological parents, even in situations
where it was clear that the parents would be unable to parent in
any reasonable period of time. Following ASFA, Pennsylvania
adopted a dual focus of reunification and adoption, with the goal
of finding permanency for children in less than two years, absent
compelling reasons. See, 42 Pa.C.S.A. § 6301(b)(1); 42
Pa.C.S.A. § 6351(f)(9) (requiring courts to determine whether
an agency has filed a termination of parental rights petition if the
child has been in placement for fifteen of the last twenty-two
months).
In re: T.S.M., 71 A.3d at 268-269.
Mother testified that she loves the Children. N.T., 2/4/15, and 3/3/15,
at 107. She contends that the trial court prematurely terminated her
parental rights without affording her a chance to demonstrate her parenting
skills upon her release from prison. A parent’s own feelings of love and
affection for a child, alone, will not preclude termination of parental rights.
In re Z.P., 994 A.2d at 1121. Further, we stated in In re Z.P., 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.” Id. at 1125. 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).
We find the trial court’s analysis under section 2511(b) is supported by
competent evidence in the record. The court’s legal conclusions are not the
result of an error of law or an abuse of discretion. Thus, we will not disturb
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the trial court’s factual findings or its credibility determinations. In re
Adoption of S.P., 47 A.3d at 826-827.
In her third issue, Mother relies on In the Interest of: D.C.D., 91
A.3d 173, 179 (Pa. Super. 2014), to support her contention that the trial
court abused its discretion and erred as a matter of law in terminating her
parental rights when CYS failed to provide her with reasonable efforts to
promote reunification between her and S.O. prior to filing the termination
petition. Mother’s Brief at 36. Our Supreme Court held, however, that the
trial court is not required to consider reasonable efforts in relation to a
decision to terminate parental rights under section 2511(a)(2). In the
Interest of: D.C.D., 105 A.3d 662, 675 (Pa. 2014). Thus, we find her
argument lacks merit.
The trial court, nevertheless, concluded that CYS had made reasonable
efforts to reunify the Children with Mother. The trial court stated:
The record is clear that the Agency developed an appropriate
plan[,] and did what it could to assist Mother in obtaining the
recommended services. However, because of her
incarceration[,] the available services were limited.
Furthermore, there was no service available to remove the
biggest impediment to reunification, i.e.[,] her incarceration.
Trial Court Opinion, 5/7/15, at 9.
Although a reasonable efforts inquiry is not an element to a
termination decision under section 2511(a)(2), our review of the record
shows that there is ample evidence to support the trial court’s determination
that CYS made reasonable efforts.
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In her fourth issue, Mother contends that the trial court abused its
discretion and erred as a matter of law in permitting Mr. Kauffman, who was
admitted as an expert in play therapy, to opine, over her counsel’s
objection, that returning S.O. to Mother’s home would be harmful to the
child. Mother alleges that Mr. Kauffman’s opinion was not supported by any
expert report, and was based only upon his observations of the three-year-
old child, S.O., during play therapy. Mother claims that, based on the lack
of any other testimony presented by CYS regarding Mother’s bond with S.O.,
it is clear that the trial court relied heavily on Mr. Kauffman’s testimony.
Mother cites Steele v. Shepperd, 192 A.2d 397 (Pa. 1963), for the
proposition that, where a witness possesses neither the experience nor
education in the subject matter under investigation, he is incompetent to
testify as an expert. Mother also cites Childers v. Power Line Equip.
Rentals, 681 A.2d 201 (Pa. Super. 1996), for the proposition that an expert
opinion based on mere possibilities is not competent evidence. Mother’s
Brief at 38.
In Rittenhouse v. Hanks, 777 A.2d 1113 (Pa. Super. 2001), a panel
of this Court stated as follows:
The standard for qualifying an expert witness is liberal; if
the witness has any reasonable pretension to specialized
knowledge on a subject, he may testify[,] and the weight to be
given to the testimony is for the trier of fact. Miller v. Brass
Rail Tavern, 664 A.2d 525 (Pa. 1995). Moreover, the
qualification of an expert witness rests within the sound
discretion of the trial judge, and, the decision of the trial judge
should be upheld.
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Rittenhouse, 777 A.2d at 1116, see also Pa.R.E. 702-705.
Mr. Kauffman testified that he had a master’s degree in counseling
psychology, and was employed by Family Resource and Counseling Centers,
where he had been counseling S.O. for almost one year. N.T., 2/4/15, at
10-11. We observe that Mother’s counsel challenged Mr. Kauffman's
qualifications at the hearing, and he was permitted to question Mr. Kauffman
about his background. Mr. Kauffman testified that he had been working with
children for 15 years, mainly in the area of trauma, and had testified in 11
hearings, nine of them as an expert. Id. at 16-18. On the basis of
Rittenhouse, we find no error or abuse of the trial court’s discretion in
permitting Mr. Kauffman to testify as an expert in child therapy at the
hearing.
Regarding the admission of evidence, our Court has instructed,
Evidentiary rulings are committed to the sound
discretion of the trial court, and will not be overruled
absent an abuse of discretion or error of law. In order to
find that the trial court’s evidentiary rulings constituted
reversible error, such rulings must not only have been
erroneous but must also have been harmful to the
complaining party. Appellant must therefore show error in
the evidentiary ruling and resulting prejudice, thus
constituting an abuse of discretion by the [trial] court.
Whitaker v. Frankford Hospital, 984 A.2d 512, 522 (Pa. Super. 2009)
(internal citations and quotation marks omitted).
Here, the trial court explained that it allowed Mr. Kauffman to testify
as to his opinion on whether S.O. “would suffer any negative emotional
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impact if [the] parental rights [of Mother] were terminated.” Trial Court
Opinion, 5/7/15, at 9. The court allowed the testimony over the objection of
Mother’s counsel, because it found the opinion helpful to its analysis of
S.O.’s needs and welfare. Id. On the basis of Whitaker, we find no error
or abuse of discretion in the trial court’s allowing Mr. Kauffman to offer his
expert opinion on whether S.O. would suffer any negative impact if Mother’s
parental rights were terminated. In fact, the trial court could consider Mr.
Kauffman’s testimony on the harm that S.O. would suffer from the
termination of Mother’s parental rights without his being an expert. See In
re Z.P., 994 A.2d at 1121; In re K.Z.S., 946 A.2d at 764.
In her related fifth and sixth issues, Mother contends that the trial
court abused its discretion and erred as a matter of law in admitting, and
considering as part of its termination decision, the reports prepared by the
CASA, and the CASA’s recommendation to terminate Mother’s parental
rights, over the objection of Mother’s counsel. Mother’s Brief at 40-42.
Mother relies on Commonwealth v. McLean, 564 A.2d 216 (Pa. Super.
1989), for the proposition that a lay witness may not testify with regard to a
legal conclusion. Mother’s Brief at 41.
The trial court allowed the CASA to testify, over the objection of
Mother’s counsel that she was not an expert. N.T., 2/4/15, and 3/3/15, at
65. The CASA testified that the Children were happy in the F.’s home. Id.
at 65. The CASA stated that, given the Children’s ages and the length of
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time they had been in the placement, she recommended termination of
Mother’s parental rights and a goal change to adoption, so that the F.’s could
adopt them, and provide them permanency. Id. at 66. The CASA
considered that Mother would not be able to parent the Children for at least
another year. Id. The CASA also recommended that with the goal change
to adoption, all visitation between Mother and the Children cease because of
further anxiety to S.O. from interaction with Mother, and the lack of any
bond between T.A. and Mother based on his young age. Id. at 66-67.
In its opinion, the trial court stated that, although the court admitted
the reports of the CASA into evidence, the court did not consider the reports
in rendering its decision. Further, the trial court stated that, “[a]s with [Mr.
Kaufmann,] the play therapist, [the court] allowed the CASA volunteer to
testify as to her recommendation to assist [the court] in assessing the needs
and welfare analysis for the [C]hildren.” Trial Court Opinion, 5/7/15, at 9.
We find that Mother failed to demonstrate how the trial court’s admission of
the CASA’s reports, which it did not consider, harmed her. See Whitaker,
19 A.3d at 1109. Moreover, we find that Mother failed to show how the trial
court’s admission of the CASA’s recommendation as to permanency for the
Children was an error of law or an abuse of discretion. Id. The CASA could
offer testimony on the bond between the Children and Mother, and the F.’s,
and whether the termination of Mother’s parental rights would negatively
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affect them without being qualified as an expert. In re Z.P., 994 A.2d at
1121.
In her final issue, Mother argues that the trial court abused its
discretion and erred as a matter of law in denying further visits between
Mother and the Children pending appellate review of the trial court’s orders
terminating Mother’s parental rights.
The trial court explained its decision as follows.
Mother’s final allegation of error involves our refusal to continue
visitation pending the appeal in this matter. As noted above[,]
Mother has had only two contacts with S.O. in 17 months since
she was incarcerated. Because of the effect those contacts had
on the child, we halted further contacts until the prospect of
seeing her [m]other no longer posed a grave risk of emotional
harm for the child. The testimony of the play therapist [Mr.
Kauffman] made it clear that such a grave risk still exists. In
order to visit with T.A. in person[,] the child would have to
endure a six[-]hour care ride to get to the prison at Cambridge
Spring[s], and another six[-]hour car ride to return home. In all
fairness, Mother has agreed to have any visitation by means of
[S]kype or other virtual media. However, because of her prison
transfers and the prison regulations, Mother has not had any
contact with T.A. since September of last year. In view of our
decision to terminate the parental rights, we did not feel that it
would benefit the child to reinstate visitation either in person or
through virtual means.
Trial Court Opinion, 5/7/15, at 10 (internal footnote omitted).
Mother complains that CYS has not offered or provided any
reunification therapy between her and S.O. to alleviate the alleged “grave
risk” to S.O. that Mr. Kauffman testified would exist from contact between
Mother and S.O. Mother asserts that Mr. Kauffman’s testimony regarding
potential harm to S.O. based on visitation with Mother was based on his
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unsubstantiated guess. Mother also asserts that the record does not support
a conclusion that any harm could come to T.A. from continued virtual
visitation and written correspondence with Mother during the pending
appeal.
Mother fails to provide any in support for her contention that the trial
court erred or abused its discretion in denying visitation. Mother is simply
rehashing her arguments concerning reasonable efforts and the propriety of
the testimony of Mr. Kauffman and the CASA. “[A]rguments which are not
appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glossner, 892 A.2d 21, 29-30 (Pa.
Super. 2006) (internal citations omitted). See also Chapman-Rolle v.
Rolle, 893 A.2d 770, 774 (Pa. Super. 2006) (“It is well settled that a failure
to argue and cite to any authority supporting an argument constitutes a
waiver of issues on appeal”). We, therefore, find that Mother has waived her
argument concerning the visitation order.
Accordingly, we affirm the decrees and orders of the trial court
involuntarily terminating Mother’s parental rights to S.O. and T.A., and
providing that CYS shall not provide visitation between Mother and the
Children.
Decrees and orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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In Re: Adopt of: S.O. Appeal of: E.C.B.
Combined Opinion