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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.G.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.G.G., MOTHER :
:
:
:
: No. 689 MDA 2016
Appeal from the Order Entered March 30, 2016
In the Court of Common Pleas of York County
Juvenile Division at No(s): CP-67-DP-0000074-2014
IN RE: ADOPTION OF: Z.G.D., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.G., MOTHER :
:
:
:
: No. 692 MDA 2016
Appeal from the Decree March 30, 2016
In the Court of Common Pleas of York County
Orphans’ Court at No(s): 2015-0133
BEFORE: PANELLA, J., OLSON, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 28, 2016
N.G.G., (“Mother”) appeals from the decree and order entered on
March 30, 2016, granting the petition filed by the York County Children and
Youth Services (“CYS” or the “Agency”), seeking to involuntarily terminate
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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her parental rights to her dependent, minor child, Z.G.D., a female born in
June 2008 (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511(a)(5), (8), and (b), and to change Child’s permanency goal to
adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351.1 We affirm.2
Mother and Father have a criminal history of incarceration. Father is
presently incarcerated at the State Correctional Institution (“SCI”) at Camp
Hill. See N.T, 12/21/16, at 7. At the time of the hearings in this matter,
Mother was residing in a halfway house after release from her incarceration.
On January 23, 2014, CYS received a referral alleging drug abuse and
incarceration of both parents. See N.T., 1/21/16, at 8. Child was living with
B.G., (“Maternal Grandmother”), who stated that she would not be able to
keep Child in her home due to personal circumstances. See id. at 9. On
March 21, 2014, CYS filed a dependency petition. Thereafter, on April 16,
2014, the trial court adjudicated Child dependent pursuant to 42 Pa.C.S.A.
§ 6302(1), and ordered her removed from the home of maternal
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1
In a separate decree entered on March 30, 2016, the trial court confirmed
the consent of T.D. (“Father”), Child’s father, to the adoption of Child, and
the voluntary termination of his parental rights. Father has not filed an
appeal from the termination of his parental rights and the change of Child’s
permanency goal to adoption, nor is he a party to the present appeal.
2
We are addressing Mother’s appeals from the decree and order in the same
memorandum for ease of disposition, as the trial court addressed the
appeals together in its opinion, as did Mother in her briefs on appeal.
Accordingly, we have consolidated these appeals.
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grandmother, and placed Child in kinship foster care in the home of a
paternal friend, M.D. (“Foster Mother”). M.D. was Father’s former paramour,
and had cared for Child in the past. See N.T., 1/21/16, at 11. The trial court
directed that legal and physical custody remain with CYS. The trial court
established Child’s permanency goal as return to parent or guardian.
Subsequently, the trial court held a series of permanency review hearings.
In the dependency matter, on November 10, 2015, CYS filed a petition
for a change in the permanency goal to adoption. In the termination matter,
on November 12, 2015, CYS filed a petition for involuntary termination of
parental rights of Mother and Father. CYS also filed a petition to confirm
Father’s consent to adoption, reciting that Father executed his consent to
adoption on October 15, 2015. Father filed his consent to adoption on
November 10, 2015. The trial court held a permanency review hearing on
November 24, 2015, and maintained Child’s placement and permanency
goal.
On December 21, 2015, and January 21, 2016, the trial court held
hearings on the termination and goal change petitions. At the hearing on
December 21, 2015, Father testified, via telephone, regarding his consent.
The trial court then questioned Child, in camera, as did Mother’s counsel.
See N.T., 12/21/15, at 17-22. Child testified that she likes to visit Mother,
and that she would be sad if she did not get to see Mother again. See id. at
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22. Neither the guardian ad litem for Child nor CYS’s counsel had any
questions for Child. See id. at 22.
Next, CYS presented the testimony of Marguerite Barger, who is
employed doing drug and alcohol testing for Families United Network, and
has been involved with conducting drug and alcohol testing on Mother. See
id. at 25-26. CYS then presented the testimony of Melanie Ferree Wurster,
who is the program supervisor for Family Engagement Services at Pressley
Ridge. See id. at 30. Ms. Wurster worked with providing services to Mother
between March 17, 2015, and June 5, 2015, when Mother became
incarcerated and, consequently, the case was closed as unsuccessful. See
id. at 32.
On cross-examination by Mother’s counsel, Ms. Wurster testified that
she had seen a few minutes of a visit between Mother and Child where direct
services were provided by Jaqueline Hernandez. See id. Ms. Wurster stated
that the visit was very natural, and that Child enjoyed spending time with
Mother. See id. Child arrived, did some homework, Mother made dinner,
and then they played. See id. at 32-33. Ms. Wurster did not have any
concerns about the nature of the interaction while she was present. See id.
at 33. She explained that Pressley Ridge was supervising the weekly
visitation, which was approximately two hours, and was also providing
parenting coaching one time per week with Mother. See id. at 33.
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Next, CYS presented the testimony of Ellie Williams, the Executive
Director of, and mental health therapist, at Equiteam Support Services
(“ESS”). See id. at 41-42. ESS provides equine assistance psychotherapy
and mental health services to at-risk youth and families in need. See id.
Ms. Williams, who holds a master’s degree in mental health counseling, was
qualified as an expert in the area of child therapy and, in particular, Reactive
Attachment Disorder (“RAD”). See id. at 57-59. On April 25, 2014, ESS
received a referral of Child for Child’s diagnosis and issues that CYS wished
to have addressed. See id. at 42. ESS conducted an intake regarding Child
on May 8, 2014, and rendered its assessment on May 15, 2014. See id.
ESS assessed Child as having RAD, attachment issues, and placement
outside her family home. See id. at 42-43. Ms. Williams met with Child, and
with Child and Foster Mother, and Child and Mother (until Mother’s
incarceration), on a weekly basis. See id. at 43-44. Ms. Williams explained
that, because Child was moved from placement to placement in early
childhood years, she was unable to form a healthy attachment to a
caretaker. See id. Therefore, Ms. Williams is working with Child to learn to
form an attachment to Child’s caretaker. See id. Ms. Williams stated that
Child is incapable of forming a parent/child bond with another person. See
id. at 44.
Ms. Williams explained that RAD is a very rare and extremely difficult
mental health diagnosis to address, and requires a significant deployment of
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resources. See id. at 44-45. Ms. Williams stated that Child is very angry
with Mother, and has stated that Mother is a liar and breaks her promises.
See id. at 46. In December 2014, Ms. Williams began incorporating Mother
into the therapy sessions with Child, and she continued the therapy including
Mother for six months until Mother became incarcerated in June 2015. See
id. at 45-46. Child has trust issues with Mother, fears Mother, and does not
feel safe with her. See id. at 47. In order to establish a healthy bond with
Mother, Child would have to have safety, security, and to know that Mother
is not going to leave and be incarcerated again. See id. at 48-49. Mother
would have to engage in specialized parenting training, which Ms. Williams
did not observe in Mother during the six months that she interacted with
Mother. See id. at 49. Mother’s lack of specialized parenting skills would put
Child at risk for multiple placements. See id.
On questioning by the court, Ms. Williams stated that Child needs to
have contact with Mother throughout her life, because she knows Mother
and she is not an infant. See id. at 71. However, Ms. Davis responded that,
if an open adoption is not possible, if the choice were to maintain the status
quo or terminate Mother’s parental rights, Child will suffer less harm from
the termination of Mother’s parental rights than from maintaining the status
quo. See id. 72.
On January 21, 2016, CYS presented the testimony of Bethany Davis,
the CYS family support caseworker assigned to the family. See N.T.,
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1/21/16, at 6-8. At the time of the hearing, Mother was released from
prison, and was on probation and residing at a recovery house in York. See
id. at 8, 13. Father remained incarcerated at SCI-Camp Hill. See id. at 8.
Ms. Davis testified that, as of the hearing on January 21, 2016, Mother had
not completed the requirements through CYS in order for Child to be
returned to her. See id. at 12-13. Ms. Davis testified that, at the time when
Child was adjudicated dependent, Mother was incarcerated and that she was
released in August 2014. See id. at 13. Subsequently, Mother was in a few
recovery programs, and was released from recovery programs in January of
2015. See id. Mother was again incarcerated on June 1, 2015, based on
new charges of possession of a controlled substance and possession of drug
paraphernalia, and not reporting to probation. See id. On June 1, 2015, the
trial court sentenced Mother to serve six months’ incarceration. See id.
Mother was released from incarceration on December 17, 2015, and was on
parole for six months and residing in a halfway house at the time of the
January 21, 2016 hearing. See id. at 14. Ms. Davis testified that Child’s
therapy with ESS and Mother had been biweekly, and that Mother only
missed one session. See id. at 16.
Ms. Davis testified that, in the six-month period prior to the filing of
the termination petition in November of 2015, Mother had occasionally and
randomly brought new toys or gifts to the visits with Child. See id. at 51.
Mother had also brought Child Christmas, birthday, and other holiday gifts
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coordinated with those events. See id. While Mother was incarcerated, she
had written letters to Child. See id. Since Child was adjudicated dependent,
Mother attended a school meeting in December of 2014, and attended the
last few minutes of a school meeting held on March 16, 2015, due to her
confusion regarding the meeting time. See id. at 51-52. Mother also
attended a school conference in the spring of 2015. See id. at 52. Mother
attempted to attend one of Child’s appointments with a physician, but she
had been provided an incorrect address, and, accordingly, she went to the
wrong location. See id. at 52-53.
Mother presented the testimony of Jacqueline Hernandez, who is
employed by Pressley Ridge. See id. at 68-69. She worked with Mother and
Child beginning in March 2015. See id. She had weekly supervised meetings
with Mother and Child between March 19, 2015 and June 5, 2015, observing
the interaction between Mother and Child. See id. at 69-70. The visits lasted
between two hours, in the beginning, and three hours, later in her
involvement. See id. at 70. In response to questioning by the court, Ms.
Hernandez responded that there was a relationship between Child and
Mother. See id. at 71-72. In response to questioning by Mother’s counsel,
Ms. Hernandez testified that she observed Mother play age-appropriate
games with Child, and help Child with her homework. See id. at 72. Ms.
Hernandez responded that Mother acted as a parent during the visit. See id.
at 74.
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Ms. Hernandez observed a total of eleven visits, of which ten were with
Mother and Child. See id. at 76. The last visit between Mother and Child was
on May 29, 2015, and the final visit was between Child and Maternal
Grandmother. See id. Following the visit with Maternal Grandmother, Ms.
Hernandez closed the case and discontinued services, because Mother
became incarcerated. See id. Ms. Hernandez never noticed Mother raising
inappropriate adult issues with Child, and observed that the visits were age-
appropriate. See id. at 78. Ms. Hernadez had a parenting program for
Mother that concentrated on how Mother can play with Child in an age-
appropriate way. See id. at 78-79. Mother was receptive to Ms. Hernandez’s
parenting advice, and steadily improved. See id. at 79.
After the testimony of Ms. Hernandez, CYS presented the direct
examination of Ms. Davis as a rebuttal witness. See id. at 94. Ms. Davis
testified that, based on Mother’s lack of drug testing, lack of cooperation
with probation and parole, Mother’s housing situation, and Mother’s eventual
incarceration, visits between Child and Mother were never changed to
partially supervised or unsupervised. See id. at 95-96. Ms. Davis testified
that Child has a therapeutic support staff (“TSS”) worker assigned to her in
school to address and behavioral issues with Child. See id. at 100-101. On
cross-examination by Mother’s counsel, Ms. Davis testified that Child
previously had the TSS for twenty-one hours per week, and now has the TSS
for ten hours per week. See id. at 101. On cross-examination by Mother’s
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counsel, Ms. Davis responded that Mother and Child had been making
progress in the equine therapy, and that Mother was never unwilling to
participate in the therapy sessions. See id. at 102-103.
CYS then presented Ms. Davis as a witness with regard to the Agency’s
petition to change Child’s permanency goal to adoption. See id. at 109. At
that time, Mother had a part-time job and a full-time job, and tested
negative for all substances on January 15, 2016. See id. at 110. On January
8, 2016, CYS was contacted because Child was extremely defiant in her
foster care home, and was expressing fear of Mother returning to jail. See
id. Ms. Davis testified that Child is not ready to be discharged from therapy
with TSS, and that she continues to receive TSA services. See id. at 110-
111. CYS requested that Child continue in its legal and physical custody,
with placement with Foster Mother, pending the court’s decision on the
termination petition. See id. at 111.
Mother’s counsel indicated Mother’s agreement with Child’s
continuation in placement with Foster Mother, since Mother was in the
recovery house, and was not able to care for Child. See id. at 111-112.
In the decree and order entered on March 30, 2016, the trial court
granted the involuntary termination petition pursuant to the Adoption Act,
23 Pa.C.S.A. § 2511(a)(5), (8), and (b), and the petition to change Child’s
permanency goal to adoption under the Juvenile Act, 42 Pa.C.S.A. § 6351.
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On April 28, 2016, Mother timely filed notices of appeal and concise
statements of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b) with regard to the decree and order.3
On appeal, Mother raises three issues, as follows:
I. Whether the trial court erred in changing the goal from
reunification to adoption without clear and convincing evidence
that a change of goal would best serve the interests of the
child[?]
…
II. Whether the trial court erred in terminating Appellant’s
parental rights without clear and convincing evidence that
termination best served the emotional needs and welfare of the
child[?]
…
III. Whether York County Office of Children Youth and Families
failed to present clear and convincing evidence that termination
of Appellant’s parental rights best served the emotional needs
and welfare of the child[?]
…
Mother’s Brief4, at 45 (unnecessary capitalization omitted).
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3
The trial court’s failure to set forth the factual background and procedural
history of this appeal, and an analysis that related to our standards of review
in either its opinion filed on May 2, 2016 or its opinion filed on May 31,
2016, delayed our disposition of the appeal. Cf. In re T.S.M., 71 A.3d 251,
255 n.1 (Pa. 2013).
4
Mother filed identical briefs in both appeals.
5
We observe that Mother framed her issues somewhat differently in her
concise statement, but we, nevertheless, find them preserved for our
review.
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In her first issue, Mother argues that the trial court erred in changing
Child’s permanency goal from reunification with parent to adoption. See
Mother’s Brief, at 9. Mother asserts that, while incarcerated, she maintained
contact with Child, and availed herself of many of the resources available to
her both in and out of prison. Mother alleges that she was consistent in her
visits with Child under the direction of Child’s therapist. See id. Mother
claims that she was making progress toward alleviating the circumstances
that necessitated the original placement. See id.
In her second, related issue, Mother contends that the trial court erred
in terminating her parental rights, because the trial court failed to give
sufficient weight to Child’s best interest, the bond that existed between her
and Child, and the long-term negative impact of the termination of her
parental rights on Child. See id. Mother asserts that, both before and after
her release from prison, she maintained consistent visits with Child and
attended therapeutic sessions at the direction of Child’s therapist. See id.
Mother states that she was engaged in a parenting program, and was
receptive to taking parenting advice. See id.
Mother claims that, not only had she availed herself of many of the
resources offered to her while she was incarcerated, but also she had
worked diligently toward reunification with Child. See id. Mother asserts that
the trial court failed to consider the true extent of the bond between her and
Child, Child’s testimony that she would miss Mother if Child never saw
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Mother again, and the therapist’s testimony that Child would suffer a long-
term negative impact should she have no contact with Mother. See id. Thus,
Mother argues that the trial court did not have clear and convincing,
competent evidence in the record upon which to terminate her parental
rights. See id. Accordingly, Mother contends that the trial court erred
because termination of Mother’s parental rights was not in Child’s best
interests. See id.
Initially, we will address Mother’s second issue. 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
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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).
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. See In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).
Moreover, we have explained that
[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 §
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 §
2511(a)(5), (8), and (b). We will focus on subsections (a)(8) and (b), which
provide as follows:
§ 2511. Grounds for involuntary termination
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(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
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(a)(8) and (b).
In order to terminate parental rights pursuant to § 2511(a)(8), it must
be demonstrated that: “(1) [t]he child has been removed from parental care
for 12 months or more from the date of removal; (2) the conditions which
led to the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and welfare of the
child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa. Super.
2003); 23 Pa.C.S.A. § 2511(a)(8). “Section 2511(a)(8) sets a 12-month
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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 twelve-month period has been established, the trial court must
next determine whether the conditions necessitating placement persist,
despite the reasonable good faith efforts supplied over a realistic period of
time by the Agency. See id. Terminating parental rights under § 2511(a)(8)
does not require the trial court to evaluate a parent’s current “willingness or
ability to remedy the conditions that initially caused placement.” In re
Adoption of T.B.B., 835 A.2d 387, 396 (Pa. Super. 2003) (citation
omitted).
We have explained that the focus in terminating parental rights under
§ 2511(a) is on the parent, but it is on the child pursuant to section
2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super
2008) (en banc). In reviewing the evidence in support of termination under
§ 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. § 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.
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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond,
the court is not required to use expert testimony. Social workers
and caseworkers can offer evaluations as well. Additionally,
Section 2511(b) does not require a formal bonding evaluation.
In re Z.P., 994 A.2d at 1121 (internal citations omitted). Although it is often
wise to have a bonding evaluation and make it part of the certified record,
“[t]here are some instances . . . where direct observation of the interaction
between the parent and the child is not necessary and may even be
detrimental to the child.” In re K.Z.S., 946 A.2d 753, 762 (Pa. Super. 2008)
(citation omitted).
With regard to § 2511(a)(8), the trial court found that, on the second
day of the evidentiary hearing, Child had been removed from Mother’s home
for a period of twenty-one months between April 16, 2014, and January 21,
2016. See N.T., 3/30/16, at 9, 15.6 The trial court also found that Child was
adjudicated dependent, as lacking proper parental care and control, because
of Mother’s drug abuse and lack of employment, which left Child without
appropriate housing and parental care. See id. at 9, 15-16. The trial court
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6
In its analysis of § 2511(a)(8), the trial court incorporated its reasoning
with regard to § 2511(a)(5), in part. Moreover, the trial court found that, an
additional two months had elapsed since the January 21, 2016 evidentiary
hearing, so Child had been removed for a twenty-three-month period at the
time of its decision.
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found that the conditions that led to the removal of Child continued to exist.
See id. The trial court stated that, during the period of dependency, Mother
was incarcerated due to criminal convictions related to drug abuse. Mother
then successfully completed a drug rehabilitation program, and, apparently
was clean for a short period of time, then re-offended by committing crimes
related to drug abuse. See id. Mother was re-incarcerated, and, at the time
of the second day of the evidentiary hearing, was in a halfway house or six-
month recovery house to work on her abuse of illegal drugs. See id.
Finally, under § 2511(a)(8), the trial court found that clear and
convincing, competent evidence in the record that the termination of
Mother’s parental rights would best serve Child’s needs and welfare. See id.
at 11. The trial court stated:
Children need parents or at least one parent who is able
and willing to properly care for them. They need stability. As the
law says, they need permanency. Mother has not provided any
of those to this child.
We are not indicating or concluding that Mother does not
want those things for her child. What we are indicating and
concluding is that she has been incapable of providing those
things for the child; and as I said a moment ago, children don’t
wait to grow up. Seven-year-olds need their parents now, not at
some point in the future.
Furthermore, this child has been lucky in one sense, and
that is that she has been in the care of a foster parent who does
provide proper –
***
[The proceedings were interrupted by Mother’s crying.]
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Do [sic] termination of [M]other’s parental rights to [Child]
best serve the needs and welfare of [Child]? As I said a moment
ago, yes. I have already explained why I believe that is true, and
I was about to explain that the good news for [Child] is that she
has an adult who has been providing proper parental care and
control for her, her foster mother.
N.T., 3/30/16, at 11-13, 15. See also Trial Court Opinion, 5/2/16, at 9-10.7
With regard to its analysis under § 2511(a), the trial court found the
following:
[Child] has formed a close, positive bond with the foster
mother, is comfortable in the foster mother’s home, and is doing
well.
We do not conclude that Mother and [Child] don’t have a
bond. We think they do have a bond, and we think that [Child]
will be sad if she never gets to see her [m]other again. We think
that [Child] may, in a sense, mourn for some time the loss of
her [m]other, but the bond that Mother and daughter have is not
positive. In fact, it is detrimental to the welfare of [Child].
As the evidence presented at the hearing clearly indicates,
[Child] is having a very difficult time coming to terms with her
[m]other’s behavior towards her. She is receiving extensive
therapy to deal with that issue. She doesn’t trust her [m]other.
She believes her [m]other is a liar. She is very angry with her
[m]other, so not only does Mother’s termination of parental
rights to [Child] help [Child] to move beyond that problematic
relationship she has with her [m]other, it allows her to continue
the positive relationship she has with [F]oster [M]other. It will
give her the ability to have a stable home where her needs and
maybe even her wants will properly be taken care of.
____________________________________________
7
In its opinion entered on May 2, 2016, the trial court set forth the
reasoning for its conclusion that CYS had sustained its burden under §
2511(a)(8) and (b), adopting the analysis which it gave on the record at the
hearing held on March 30, 2016.
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Therefore, we conclude that all of the elements necessary
to terminate Mother’s parental rights under Section 2511(a)[(8)]
have been clearly and convincingly proven.
N.T., 3/30/16, at 13-15. See also Trial Court Opinion, 5/2/16, at 10-11.
Regarding § 2511(b), the trial court stated as follows:
Other considerations the law requires this [c]ourt to make
are whether or not in terminating Mother’s parental rights to
[Child] the developmental, physical, and emotional needs and
welfare of the child will be affected. We believe they will be.
As we have already explained, children need consistent,
stable, and, to the extent possible, permanent parenting.
Children need parents that are able and willing to provide proper
care and control for the child.
Mother remains incapable of providing that consistent,
stable, and proper parenting for [Child]. [Child’s] foster mother
has been and is able to continue to provide that consistent,
stable, proper parenting for [Child].
Furthermore, as we previously indicated, [Child] needs a
chance to move beyond the turmoil that her [m]other’s actions
have visited upon her. She needs to be able to move forward
and grow up and develop free of the kind of negatives that her
[m]other brought into her life. We hope that the therapy that
[Child] is currently undergoing will ultimately allow that to
happen. We think it is much less likely to happen if Mother’s
parental rights to [Child] are not terminated.
We also note that we are not terminating Mother’s rights
to [Child] merely because of environmental factors or concerns
that are beyond her control. As we stated earlier in this decision,
we think Mother, if she could permanently address her substance
abuse issue, would be capable of providing adequate housing,
clothing, medical care, and parenting to [Child]. Her inability to
provide those things to [Child] is not beyond her control. We
believe she could provide those things but for her ongoing battle
with drug abuse.
N.T., 3/30/16, at 16-17. See also Trial Court Opinion, 5/2/16, at 12-14.
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In her brief, Mother first challenges the trial court’s determination
regarding the best interests analysis under § 2511(a)(8). She argues that
Child’s therapist, Ms. Williams, testified that Mother had been committed to
the therapeutic process, and had attended sessions regularly beginning in
December 2014, and for a six-month period thereafter. See Mother’s Brief,
at 16. Mother also asserts that Ms. Williams testified that Child would suffer
a long-term negative impact should she have no contact with Mother. See
id. Mother cites Ms. Williams’ testimony that Child knows Mother and cares
about her, and, if Child did not have that connection it would have a
negative impact on Child. See id. Mother acknowledges that, upon further
questioning by the trial court, Ms. Williams testified that Child would
ultimately suffer less harm in terminating Mother’s parental rights than in
not terminating Mother’s parental rights. See id. Mother alleges, however,
that Ms. Williams’ concession does not negate her testimony that providing
no contact between Child and Mother may not best serve Child’s needs and
welfare. See id.
In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court found
that Ms. Williams testified as Mother asserts in her brief. See Trial Court
Opinion, 5/31/16, at 2. The trial court emphasized, however, that Ms.
Williams ultimately testified, upon questioning by the court, “Child will suffer
less harm if Mother’s parental rights were terminated than she would if they
were not terminated.” Trial Court Opinion, 5/31/16, at 2 (citing N.T.,
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12/21/15, at 72) (emphasis omitted). The trial court also incorporated its
discussion of Child’s needs and welfare under a best interest analysis with
regard to § 2511(a)(8), as set forth in its on-record decision. See Trial Court
Opinion, 5/31/16, at 2 (citing N.T., 3/30/16, at 9-13).
The instant case is factually similar to In re C.L.G, in which the
mother was incarcerated after she re-offended on drug charges relating to
her history of drug involvement. This Court, sitting en banc, affirmed the
termination of the mother’s parental rights to her two-year-old child under §
2511(a)(8). We reasoned that the trial court properly assessed the
credibility and weighed the evidence, including the mother’s promises to be
able to care for her child upon her release from a halfway house. See 956
A.2d at 1007-08. We concluded that, given the mother’s life-long history of
drug involvement, the re-introduction of the child to the mother could be
devastating to the child’s well-being. See id. at 1008-09. Likewise, we
determined that the trial court had properly found that there was no bond
between the child and the mother that, if severed, would be detrimental to
the child, as the mother had not given the child the stability and security
that the child required. See id. at 1010. In contrast, the child had a strong
bond with her foster mother, and the severance of that bond could have had
a devastating effect on the child. See id. We concluded that the termination
of mother’s parental rights best served the child’s needs and welfare under §
2511(b), as the foster mother had provided the child with the permanency
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necessary for the fulfillment of her potential in a permanent, healthy, and
safe environment. The trial court did not credit the mother’s testimony that
she could also provide such an environment for the child. See id. at 1010-
11.
After a careful review of the record in this matter, we conclude the
trial court’s factual findings are supported by the clear and convincing,
competent evidence in the record, and the court’s legal conclusions are not
the result of an error of law or an abuse of discretion. See In re Adoption
of S.P., 47 A.3d at 826-27; In re C.L.G., 956 A.2d at 1007-11. We,
therefore, affirm the termination of Mother’s parental rights with regard to §
2511(a)(8).
Mother next challenges the trial court’s best interest analysis under §
2511(b). Mother asserts that, during her incarceration, she wrote and sent
letters to Child, and occasionally brought Child new toys or gifts. See id. at
16. Appellant states that she attended a school meeting in December 2014,
a portion of a school meeting on March 16, 2015, and a school conference.
See id. at 16-17. Further, Mother asserts that attempted to attend a
physician’s appointment of Child, but was given an incorrect address and
went to the wrong location. See id. at 17. Moreover, Mother cites the
testimony of Ms. Wurster and Ms. Hernadez from Pressley Ridge to support
her contention that she was engaged in a parenting program and was
making progress, and that Child would be saddened if she never sees Mother
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again. See id. Mother also cites her counsel’s cross-examination of Ms.
Davis, during which Ms. Davis responded that Mother and Child had been
making progress in the equine therapy, and that Mother was never unwilling
to participate in the therapy sessions. See id.
Regarding § 2511(b), Mother states that, upon questioning by the
court, Ms. Williams testified that Child needs to have contact with Mother
throughout her life, because she knows Mother and she is not an infant.
See Mother’s Brief, at 18. Mother asserts that, given Child’s RAD, Ms.
Williams’ testimony raised more questions than it provided answers. She
complains that CYS failed to perform an independent assessment of the
long-term effect of termination of Mother’s parental rights on a child with
RAD. See id. at 18.
Again, as set forth above, the trial court stated:
Furthermore, as we previously indicated, [Child] needs a chance
to move beyond the turmoil that her [m]other’s actions have
visited upon her. She needs to be able to move forward and
grow up and develop free of the kind of negatives that her
[m]other brought into her life. We hope that the therapy that
[Child] is currently undergoing will ultimately allow that to
happen. We think it is much less likely to happen if Mother’s
parental rights to [Child] are not terminated.
We also note that we are not terminating Mother’s rights
to [Child] merely because of environmental factors or concerns
that are beyond her control. As we stated earlier in this decision,
we think Mother, if she could permanently address her substance
abuse issue, would be capable of providing adequate housing,
clothing, medical care, and parenting to [Child]. Her inability to
provide those things to [Child] is not beyond her control. We
believe she could provide those things but for her ongoing battle
with drug abuse.
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N.T., 3/30/16, at 16-17. See also Trial Court Opinion, 5/2/16, at 13-14.
Additionally, we find that the trial court’s conclusion that the bond
between Mother and Child is not a positive bond, but, rather is detrimental
to child’s welfare, is supported by clear and convincing, competent evidence
in the record. Mother has left Child neglected while in her care through her
drug abuse and through her repeated incarcerations, and Child has negative
feelings because of Mother’s neglect. At the same time, the trial court found
from the evidence at the evidentiary hearings that Child has positive feelings
for Foster Mother, which Mother does not challenge.
A parent’s abuse and neglect are likewise a relevant part of the
bond/effect analysis:
[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be
reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent . . .
Nor are we of the opinion that the biological connection between
[the parent] and the children is sufficient in of itself, or when
considered in connection with a child’s feeling toward a parent,
to establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.
In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations
and quotation marks omitted). Thus, the court may emphasize the safety
needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa. Super.
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2008) (affirming the involuntary termination of the mother’s parental rights,
despite the existence of some bond, where placement with the mother would
be contrary to the child’s best interests, and any bond with the mother
would be fairly attenuated when the child was separated from her, almost
constantly, for four years).
In fact, our Supreme Court has observed that the mere existence of a
bond or attachment of a child to a parent will not necessarily result in the
denial of a termination petition, and that “[e]ven the most abused of
children will often harbor some positive emotion towards the abusive
parent.” In re: T.S.M., 620 Pa. 602, 627, 71 A.3d 251, 267 (2013) (quoting
In re K.K.R.-S., 958 A.2d at 535). The Supreme Court instructed, “[t]he
continued attachment to the natural parents, despite serious parental
rejection through abuse and neglect, and failure to correct parenting and
behavior disorders which are harming the children cannot be misconstrued
as bonding.” In re: T.S.M., 620 Pa. at 629, 71 A.3d at 267 (quoting In re
Involuntary Termination of C.W.S.M., 839 A.2d 410, 418 (Pa. Super.
2003) (Tamilia, J. dissenting)).
This Court has stated: “[A] parent’s basic constitutional right to the
custody and rearing of . . . her child is converted, upon the failure to fulfill . .
. her parental duties, to the child’s right to have proper parenting and
fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004)
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(internal citations omitted). It is well-settled that “we will not toll the well-
being and permanency of [a child] indefinitely.” In re Adoption of C.L.G.,
956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)
(noting that 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”)).
Again, we find this case similar to In re C.L.G., in which the trial court
did not credit the mother’s testimony that she could also provide a stable,
secure, and drug-free environment for the child. See 956 A.2d at 1010-
1011. We conclude the trial court’s factual findings are supported by the
clear and convincing, competent evidence in the record, and the court’s legal
conclusions are not the result of an error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d at 826-27; In re C.L.G., 956 A.2d at
1007-1011. We, therefore, affirm the termination of Mother’s parental rights
with regard to § 2511(b).
Finally, Mother complains that there was a lack of clear and
convincing, competent evidence in the record to support the trial court’s
change of Child’s permanency goal to adoption.
This matter is controlled by the Juvenile Act, 42 Pa.C.S.A. § 6301 et
seq. The Pennsylvania Supreme Court recently set forth our standard of
review in a dependency case as follows:
“The standard of review in dependency cases requires an
appellate court to accept findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
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lower court’s inferences or conclusions of law.” In re R.J.T., 608
Pa. 9, [27], 9 A.3d 1179, 1190 (Pa. 2010). We review for abuse
of discretion[.]
In Interest of: L.Z., A Minor Child, 111 A.3d 1164, 1174 (Pa. 2015).
When considering a petition for goal change for a dependent child, the
trial court considers
the continuing necessity for and appropriateness of the
placement; the extent of compliance with the service plan
developed for the child; the extent of progress made towards
alleviating the circumstances which necessitated the original
placement; the appropriateness and feasibility of the current
placement goal for the child; and, a likely date by which the goal
for the child might be achieved.
In re A.K., 936 A.2d 528, 533 (Pa. Super. 2007) (citing 42 Pa.C.S.A.
§ 6351(f)).
Regarding the disposition of a dependent child, § 6351(e), (f), (f.1),
and (g) of the Juvenile Act provides the trial court with the criteria for its
permanency plan for the subject child. Pursuant to those subsections of the
Juvenile Act, the trial court is to determine the disposition that is best suited
to the safety, protection and physical, mental and moral welfare of the child.
Here, Mother cites the trial court’s opinion for the statement, “perhaps
[Mother] now is successfully battling her substance abuse problem.”
Mother’s Brief, at 12 (citing Trial Court Opinion, 5/2/16, at 15). Mother
asserts that the trial court failed to properly consider that she was making
progress toward alleviating the circumstances that necessitated the original
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placement of Child. Thus, she contends that the trial court erred in changing
Child’s permanency goal from reunification to adoption. See id. at 12.
Mother omits, however, the following statement:
Unfortunately, we note that she did that before but it didn’t
stick. We hope that Mother’s efforts currently will stick. Very
frankly, given the history of her involvement with drugs, we are
not optimistic.
We don’t say that lightly. We understand how difficult it is
for many people to fight addictions. We are not making light of
them. But again, [Child] can’t wait to grow up. She needs a
parent now, and she has needed one for quite some time.
Trial Court Opinion, 5/2/16, at 15-16.
In its Pa.R.A.P. 1925(a) opinion, the trial court states that it did take
the matters challenged by Mother into account. See Trial Court Pa.R.A.P.
Opinion, 5/31/16, at 4. Mother simply does not agree with the weight that
the trial court placed on them.
We conclude the trial court’s factual findings are supported by the
clear and convincing, competent evidence in the record, and the court’s legal
conclusions are not the result of an error of law or an abuse of discretion.
See In re Adoption of S.P., 47 A.3d at 826-27. We, therefore, affirm the
trial court’s change of Child’s permanency goal to adoption.
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Decree and order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2016
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