In Re: B.K.C., Appeal of: K.D., birth mother

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.K.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: K.D., BIRTH MOTHER
No. 412 WDA 2016

Appeal from the Order February 19, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): Cp-02-AP-0000140-2015

BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 02, 2016

K.D. (Mother) appeals from the order entered in the Court of Common

Pleas of Allegheny County, which involuntarily terminated her parental rights

to her minor son, B.K.C. (born November 2011).1 After careful review, we

affirm.

B.K.C. has resided with S.C. (Paternal Grandmother) since his birth.

Initially, Father and Mother also resided in the home with B.K.C. Allegheny

County Children, Youth and Families (CYF) became involved with B.K.C. in

December 2013 when B.K.C.’s sibling was born, and both Mother and

newborn tested positive for illegal substances. Paternal Grandmother was

awarded custody of B.K.C. in February 2014. Mother and Father both have

a history of drug addiction. Father regained custody of B.K.C. in September
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1
Father’s parental rights to B.K.C. were involuntarily terminated at the same
proceeding. Father, however, is not a party to this appeal.
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2014, after he had become sober for a period of time and was living with

Paternal Grandmother. Father relapsed, and custody of B.K.C. was returned

to Paternal Grandmother. B.K.C. has remained in Paternal Grandmother’s

custody since January 2015.

CYF developed a family service plan (FSP) for Mother, which involved,

among other things, cooperating with CYF, recovering from substance

abuse, stabilizing her mental health, and maintaining her relationship with

B.K.C.

To address her addiction to heroin, Mother became involved with a

methadone maintenance program in August 2013. She attended an

outpatient program before being incarcerated briefly. She completed an

inpatient treatment program in 2014, after which she relapsed. Mother

entered a second inpatient program at Family Links, where she was

successful enough to transition to the related outpatient program in

September 2015. However, Mother was discharged from the program about

two months later because she was unable to attend her group sessions three

times per week as required. Mother was also required to appear for urine

screens as part of the FSP goal to address her drug addiction. Mother

consistently had negative screens from September 2015 to December 2015.

Then she had three no-shows, which the agency counted as positive tests.

While Mother was completing the inpatient program at Family Links,

her visitation with B.K.C. was fairly consistent. However, following her

discharge from the program, Mother has attended scheduled visits

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approximately half the time. Mother’s visits were reduced to once per week.

Mother has occasionally visited B.K.C. at other times that Paternal

Grandmother arranged. However, Mother has not progressed beyond

supervised visits with B.K.C. Mother’s mental health treatment has

consisted of one hourly session per month at the methadone clinic since her

discharge from Family Links. Mother has also been evaluated on separate

occasions by two licensed psychologists, Dr. Lawson Bernstein and Dr. Neil

Rosenblum.

CYF filed a petition seeking to involuntarily terminate Mother’s parental

rights under 23 Pa.C.S. §§ 2511(a)(2), (a)(5) and (b)2 of the Adoption Act3
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2
23 Pa.C.S. § 2511 provides the following:

(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
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
(Footnote Continued Next Page)

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on September 1, 2015. Following a hearing on February 19, 2016, the court

terminated Mother’s parental rights to B.K.C., finding grounds for

termination existed under both subsections 2511(a)(2) and 2511(a)(5) and

that termination was in the best interests of the child under subsection (b).

Mother filed a timely appeal, in which she raises the following issue for

our review:

Did the trial court abuse its discretion and/or err as a matter of
law in concluding that Allegheny County Children, Youth and
Families met its burden of proving that termination of [b]irth

_______________________
(Footnote Continued)

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.

...

(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), (a)(5), and (b).
3
23 Pa.C.S. §§ 2101-2910.

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Mother’s parental rights best serve[s] the needs and welfare of
the child pursuant to 23 Pa.C.S. § 2511(b)[?]

Brief of Appellant, at 5.

In a proceeding involving the involuntary termination of parental

rights,

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
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). As to our standard of review, “[w]e review a trial court’s decision

to involuntarily terminate parental rights for an abuse of discretion or error

of law. Our scope of review is limited to determining whether the trial

court’s order is supported by competent evidence. In re Adoption of

G.L.L., 124 A.3d 344, 346 (Pa. Super. 2015) (citations omitted).

Here, it is not contested that CYF presented sufficient evidence of

grounds for termination of Mother’s parental rights to B.K.C under section

2511(a). However, as we noted in In re K.J., 936 A.2d 1129 (Pa. Super.

2007), before granting a petition to terminate parental rights under section

2511(b), a court must:

carefully consider the intangible dimension of the needs and
welfare of a child—the love, comfort, security, and closeness—

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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 child[]’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. The court must consider “whatever bonds may exist between

the children and [parent], as well as the emotional effect that termination

will have upon the child[.]” In re Adoption of A.C.H., 803 A.2d 224, 229

(Pa. Super. 2002).

Instantly, the record reveals that B.K.C.’s strongest relationship is with

Paternal Grandmother. B.K.C. has lived in Paternal Grandmother’s home

since he was born. She provides for his needs, including caring for him

physically and emotionally and maintaining stable living accommodations.

However, both Dr. Bernstein and Dr. Rosenblum were of the opinion that

Mother had a bond with B.K.C. despite missing visits and not being in a

position to care for B.K.C.

While both psychologists agreed that a bond existed between Mother

and B.K.C based on their observations and evaluations of her, they differed

over how strong the bond appeared to be and whether termination of her

parental rights would be in B.K.C.’s best interest. Dr. Rosenblum testified

that although B.K.C. does not rely on Mother to meet his day-to-day needs,

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a subsidized permanent legal custodianship (SPLC)4 would be optimal, since

it could preserve the bond between Mother and B.K.C.5 See N.T.

Termination Hearing, 2/19/16, at 107, 120.

Dr. Bernstein indicated that “the relationship between grandmother

and child was stable and secure and most significant for [B.K.C] at this time

in his young age in life. And to compromise that by separating the child

from his grandmother could be potentially traumatic.” Id. at 91. Dr.

Bernstein also found Mother to be less engaged with B.K.C. than Dr.

Rosenblum had observed. Ultimately, Dr. Bernstein stated that “[he]

support[ed] the Court moving forward with the termination of [Mother’s]

parental rights.” Id. at 75.

In determining that termination of Mother’s parental rights was in

B.K.C.’s best interest, the trial court noted that it “judiciously evaluated the

bond between Mother and Child and determined that there was no indication

that an emotional bond exists to the extent that the termination of parental

rights of Mother would cause Child to suffer extreme emotional

consequences.” Trial Court Opinion, 5/12/16, at 6. A.C.H., supra;

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4
SPLC arrangements involve custody of a dependent child being awarded to
a custodian who is provided a financial subsidy to care for the child.
Parental rights are not terminated.
5
Mother has four children with four different fathers. Mother’s oldest child
was adopted by her parents. A maternal uncle and his wife were awarded
permanent legal custody of her two other children.

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compare G.L.L., supra at 349 (“[T]he 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.”).

In G.L.L., we upheld the ruling of the lower court that had denied

involuntary termination of parental rights based upon its best-interest

analysis. There, as here, “we cannot re-weigh the evidence or the credibility

assessments made by the trial court.” Id. at 348. Instantly, the trial court’s

decision to terminate Mother’s parental rights is supported by the record,

including the opinion testimony provided by Dr. Bernstein. Accordingly, we

discern no error or abuse of discretion on the part of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/2/2016

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