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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.O., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
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APPEAL OF: J.R.O., Natural Mother : Nos. 424, 425 WDA 2016
Appeal from the Order February 19, 2016
in the Court of Common Pleas of Bedford County,
Orphans' Court Division, No(s): CP-05-DP-0000021-2014
5 for 2015
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2016
J.R.O. (“Mother”), the natural mother of A.O., a son born in March
2014, appeals from the Order granting the Petition filed by Bedford County
Children and Youth Services (“CYS”) to involuntarily terminate her parental
rights to A.O. pursuant to Sections 2511(a)(5), (8), and (b) of the Adoption
Act. See 23 Pa.C.S.A. § 2511(a)(5), (8), and (b). We affirm.
On March 9, 2014, CYS received a report that Mother did not possess
the knowledge or skills necessary to adequately care for A.O. On April 11,
2014, Children’s Hospital in Pittsburgh admitted A.O., after he was referred
by his primary care provider for being underweight. CYS received
Emergency Protective Custody on April 16, 2014. A.O. entered foster care
following his release from the hospital. On April 29, 2014, A.O. was
adjudicated a dependent child and placed in the legal and physical custody
of CYS.
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CYS established plans to begin the reunification process between
Mother and A.O., including services with the Alternative Community
Resource Program (“ACRP”), which assists in family preservation, mental
health services through Mental Health Mental Retardation Services
(“MHMR”), and alcohol and drug services. Mother was also afforded visiting
opportunities with A.O. Between April 2014 and June 2014, Mother visited
A.O. 22 times. However, Mother discontinued her visits until December
2014, during which she visited A.O. twice. Mother then visited A.O. twice in
January 2015, and once each month in March and April 2015.1 On April 17,
2015, CYS filed the Petition for Involuntary Termination of Parental Rights,
seeking termination of Mother’s rights and a change in the goal of
dependency proceedings to adoption.
During the two termination hearings, the trial court heard testimony
from a bonding expert, two agency workers, Mother’s current paramour, and
Mother. Dennis Kashurba (“Kashurba”), a psychologist and expert on
bonding, testified to the lack of a meaningful bond between Mother and A.O.
See N.T., 11/10/15, at 11-12, 20-23. Further, Kashurba testified that he
did see a meaningful bond between A.O. and foster mother. Id. at 12-13,
22-23.
Amanda Kendall (“Kendall”), an ACRP family preservation worker,
testified that Mother initially did not have any parental instinct, but that
1
After maternal grandmother passed away on April 13, 2015, Mother did not
visit A.O.
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Mother was responsive to the program. Id. at 31-32, 38-40. However,
Kendall also testified to Mother’s lack of contact with the agency at times,
and the gaps in visitation with A.O. Id. at 26-29. Kendall testified that
Mother did not appear to be interested in reunification, and that she seemed
more concerned with other things in life, despite the potential consequence
of losing her parental rights. Id. at 33-36. Moreover, Kendall testified to
Mother’s lack of progress toward her Permanency Plan goals, a regression in
skills, and that Mother could not gain those skills in a reasonable period of
time. Id. at 37-38. Additionally, Kendall testified about her concerns with
Mother’s living situation, such as an overwhelming smell of cigarettes in one
of her temporary residences. Id. at 41. Finally, Kendall stated that from
her observations, there was a lack of a meaningful bond between Mother
and A.O. See id. at 42-43 (noting that Mother would not initiate contact
with A.O., A.O. did not recognize Mother, and A.O. was not distressed when
separated from Mother).
Tessa Miller (“Miller”), a CYS worker, testified about Mother’s lack of
visitation with A.O. See N.T., 2/19/16, at 6-10, 12-13. Miller noted
Mother’s housing instability, citing eighteen different residences in the time
span of this case. Id. at 11, 19-20. Miller testified to the content of
Mother’s Permanency Plan goals, her initial cooperation, and to the overall
lack of progress toward meeting those goals. Id. at 15-17, 20-22.
Additionally, Miller stated that the elements of Section 2511(a)(5) and (8)
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had been met in this case. Id. at 17-18. Miller then testified that she was
aware Mother had a new baby during this process, but that the baby was not
living with her and had also been the subject of a different county’s child
services investigation. Id. at 23-24.
Jeremy Dodson (“Dodson”), Mother’s current paramour, testified that
Mother lived with him and his family for a period of time. See id. at 27-28,
30-31. Dodson also testified that Mother cares well for the new baby and
would be able to take care of A.O. Id. at 28-29. Dodson then testified that
the new baby has always lived in his parents’ home, and that they have tried
to take custody of the new baby. Id. at 31.
Finally, Mother testified about the stability level of her living situation.
See id. at 32-34, 36-40, 63-65. Mother acknowledged that while she is
formally unemployed, she makes money babysitting. Id. at 35, 65. Mother
noted the gaps in her visitation, but stated that one gap was the result of
her “trying to better [herself].” Id. at 41; see also id. at 52-53, 59, 61-63
(wherein Mother testified that some of the lack in visitation was attributable
to difficulties dealing with the agencies). However, Mother also testified that
at one time, she filed a Petition for Increased Visitation, but she failed to
appear in court, and has not refiled since that occasion. Id. at 60-61.
Mother testified that a major problem was her mother’s death in April 2015,
causing her to feel depressed and unable to handle working with the
agencies. Id. at 37-38.
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In regards to the visits that did take place, Mother testified that the
visits were normal, she gave A.O. attention, and that there was a connection
between her and A.O. Id. at 42-44. Thereafter, Mother testified that she
had been taking part in different services at various times that would help
her progress toward her Permanency Plan goals, such as parenting classes
during the new pregnancy, attending MHMR, attending psychological
rehabilitation, and participating in ACRP and Independent Living for portions
of the case. Id. at 44-51. Mother testified about her concerns with A.O.’s
foster care. Id. at 53. Subsequently, Mother testified that she and A.O. had
a bond at one time, and that she desires custody. Id. at 56.
Following the hearings, the trial court terminated Mother’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(5), (8), and (b), and granted
CYS’s request for goal change to adoption for A.O. Mother then filed the
instant timely appeal and a Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Mother raises three questions for our review:
A. Whether the trial court erred/abused its discretion in
determining [that CYS] had established a legal basis through
clear and convincing evidence for changing the goal to
adoption/terminating [Mother’s] parental rights pursuant to
23 Pa.C.S.A. § 2511(a)(5)(8), as such a finding is not
supported by the record?
B. Whether the trial court erred/abused its discretion by
determining that termination of [Mother’s] parental rights
would best serve the developmental, physical, and emotional
needs and welfare of [A.O.] under 23 Pa.C.S.A. § 2511(b), as
such a finding is not supported by the record?
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C. Whether the trial court erred/abused its discretion by failing
to consider the impact of the death of [maternal
grandmother] on [Mother’s] efforts to remedy the conditions
leading to the placement of [A.O.]?
Brief for Appellant at 3 (issues renumbered).
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (citations omitted).
Termination of parental rights is controlled by Section 2511 of the
Adoption Act. See 23 Pa.C.S.A. § 2511. In termination cases, the burden is
upon the petitioner to prove by clear and convincing evidence that its
asserted grounds for seeking the termination of parental rights are valid.
See In re R.N.J., 985 A.2d at 276. “[C]lear 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 and internal quotation
marks omitted). “The trial court is free to believe all, part, or none of the
evidence presented and is likewise free to make all credibility determinations
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and resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004) (citation omitted). If competent evidence supports the trial
court’s findings, “we will affirm even if the record could also support the
opposite result.” In re Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super.
2003) (citation omitted).
Satisfaction of any one subsection of Section 2511(a), along with
consideration of Section 2511(b), is sufficient for the involuntary termination
of parental rights. In re B.C.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). In this case, we will review the trial court’s decision to terminate
Mother’s parental rights based upon Section 2511(a)(8) and (b), which state
the following:
§ 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:
***
(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
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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)…(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.
“Section 2511(a)(8) sets a 12-month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In
re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the 12-month period
has been established, courts must determine whether the conditions that led
to the child’s removal continue to exist. Id. “[T]ermination under Section
2511(a)(8), does not require an evaluation of [a parent’s] willingness or
ability to remedy the conditions that led to placement of her [child].” In re
Adoption of C.J.P., 114 A.3d 1046, 1050 (Pa. Super. 2015) (citation
omitted); see also In re K.M., 53 A.3d 781, 789 (Pa. Super. 2012). The
“relevant inquiry in this regard is whether the conditions that led to removal
have been remedied and thus whether reunification of parent and child is
imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super.
2009). With respect to the “needs and welfare” analysis, this Court
observed the following:
[T]he focus in terminating parental rights is on the parent, under
Section 2511(a), whereas the focus in Section 2511(b) is on the
child. However, Section 2511(a)(8) explicitly requires an
evaluation of the “needs and welfare of the child” prior to
proceeding to Section 2511(b), which focuses on the
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developmental, physical and emotional needs and welfare of the
child. Thus, the analysis under Section 2511(a)(8) accounts for
the needs of the child in addition to the behavior of the parent.
Moreover, only if a court determines that the parent’s conduct
warrants termination of his or her parental rights, pursuant to
Section 2511(a), does a court engage in the second part of the
analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best
interests of the child. Accordingly, while both Section
2511(a)(8) and Section 2511(b) direct us to evaluate the “needs
and welfare of the child,” we are required to resolve the analysis
relative to Section 2511(a)(8), prior to addressing the “needs
and welfare” of [the child], as proscribed by Section 2511(b); as
such, they are distinct in that we must address Section 2511(a)
before reaching Section 2511(b).
In re Adoption of C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en
banc) (citations and some quotation marks omitted).
In her first issue, Mother asserts that CYS did not present clear and
convincing evidence supporting termination of her parental rights pursuant
to Section 2511(a)(8). See Brief for Appellant at 6, 9-10. Mother also
claims that the progress she made toward her Permanency Plan goals and
her improvements in parenting skills weighed against a change in goal from
reunification to termination of parental rights and adoption. Id. at 8-9.
Our review of the record discloses that CYS was granted Emergency
Protective Custody on April 16, 2014, and filed the Petition for Involuntary
Termination on April 17, 2015. See N.T., 2/19/16, at 17-18; In re A.R.,
837 A.2d at 564. Further, the conditions which led to A.O.’s removal
continue to exist. See N.T., 11/10/15, at 33-38, 41; N.T., 2/19/16, at 11,
16-17, 19-20, 65. Indeed, despite initial participation in reunification
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programs, there was no progress toward Mother’s Permanency Plan goals.
See In re D.A.T., 91 A.3d 197, 206 (Pa. Super. 2014) (finding termination
proper where not all goals were completed, despite the mother completing
some of the goals). Additionally, Mother’s parenting skills regressed, Mother
inconsistently participated in the treatment programs, and there was no
improvement in Mother’s residential or economic stability. See In re
Adoption of R.K.Y., 72 A.3d 669, 680 (Pa. Super. 2013) (using instability
of housing as support for termination).
Moreover, the trial court considered the needs and welfare of A.O.
See In re Adoption of C.L.G., 956 A.2d at 1008-09. The trial court found
no meaningful bond between Mother and A.O., evidenced by A.O.’s lack of
distress when separated from Mother. See N.T., 11/10/15, at 11-12, 20-23,
42-43. Alternatively, the evidence showed a strong, beneficial bond
between A.O. and his foster family. Id. at 12-13, 22-23.
Analyzing Section 2511(a)(8), we conclude that the trial court’s
determinations are supported by competent evidence. Thus, termination
under Section 2511(a)(8) is appropriate.
In her second issue, Mother avers that the trial court did not complete
a full examination regarding the best interests of A.O., as required by
Section 2511(b), and that it specifically omitted a discussion as to the
natural bond between a biological parent and child. See Brief for Appellant
at 11-14.
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Section 2511(b) “focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional needs and
welfare of the child.” In re Adoption of J.M., 991 A.2d 321, 324 (Pa.
Super. 2010). “While a parent’s emotional bond with his or her child is a
major aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the court when
determining what is in the best interest of the child.” In re Adoption of
C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citation omitted).
[I]n assessing the parental bond, the [trial] court is
permitted to rely upon the observations and evaluations of social
workers. Moreover, the mere existence of an emotional bond
does not preclude the termination of parental rights….
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, … the trial
court should consider the importance of continuity of
relationships and whether any existing parent-child
bond can be severed without detrimental effects on
the child.
In re K.M., 53 A.3d at 791 (citations omitted).
Here, A.O. has spent all but one month of his life in foster care. See
In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010) (considering placement with
a foster family for nearly the child’s whole life and concluding that there is
no meaningful bond between child and natural parent, but rather a bond
with the foster family that would be detrimental to sever). Kashurba, an
expert on bonding, determined there was not a meaningful bond between
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Mother and A.O. See N.T., 11/10/15, at 11-12, 20-23; see also In the
Interest of B.C., 36 A.3d 601, 611 (Pa. Super. 2012) (stating that “in cases
where there is no evidence of any bond between the parent and child, it is
reasonable to infer that no bond exists.”). Indeed, Kendall testified that
Mother would often times not acknowledge A.O. on her own during
visitation, A.O. did not react to Mother because he did not know her, and
A.O. showed no distress when being separated from Mother. See N.T.,
11/10/15, at 42-43. Kashurba also noted a bond between the foster family
and A.O. See id. at 13 (stating that “[a]ll in all, there’s little question in this
examiner’s mind that one would be quite hard pressed to find a better family
arrangement for [A.O. than] that which is provided by his current foster
parents.”); see also In re K.M., 53 A.3d at 791 (stating that “whether a
child’s primary emotional attachment is with a foster parent rather than a
birth parent is a significant factor in evaluating the child’s developmental and
emotional needs and welfare.”). The trial court was free to rely on the
observations of Kashurba and Kendall, see In re K.M., 53 A.3d at 791, and
we discern no abuse of discretion or error of law, as competent evidence
supports the conclusions of the trial court.
In her final issue, Mother alleges that the trial court did not give
enough weight to the effects of maternal grandmother’s death on Mother’s
efforts at reunification, stating that the emotional trauma rendered her
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incapable of fully participating in the reunification process. Brief for
Appellant at 10-11.
“Our law is well established that once a child is removed from the care
of the parent, the burden is on the parent to take action to regain parental
rights.” In the Interest of B.C., 36 A.3d at 609; see also In re Z.P., 994
A.2d 1108, 1118-19 (Pa. Super. 2010) (holding that parental obligation is a
positive duty which requires affirmative performance). Although Mother
went through a tragedy, “[a] child’s life simply cannot be put on hold in the
hope that the parent will summon the ability to handle the responsibilities of
parenting.” In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super.
2003).
Here, maternal grandmother passed away a couple of days prior to the
filing of the termination Petition. Miller testified that although Mother was
not cooperative with the bulk of services provided after maternal
grandmother passed away, “[i]t was before that[,] too[.]” N.T., 2/19/16, at
22. Thus, Mother’s final claim does not entitle her to relief.
Based upon the foregoing, the Order to involuntarily terminate
Mother’s parental rights to A.O. was proper under Section 2511(a)(8) and
(b).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
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In Re: A.O., a Minor, Appeal of: J.R.O.
Combined Opinion