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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: F.B.-G., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.R.G. :
:
:
:
:
: No. 1325 WDA 2016
Appeal from the Order Entered August 24, 2016
In the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No(s): CP-02-AP-000016-2016
BEFORE: OLSON, SOLANO, and STRASSBURGER*, JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 3, 2017
S.R.G. (“Mother”) appeals from the order entered on August 24, 2016,
terminating her parental rights to her female child, F.B.-.G., a/k/a F.M.G.,
a/k/a F.M.B.-G. (“Child”), pursuant to the Adoption Act, 23 Pa.C.S.A.
§ 2511.1 We affirm.
The trial court set forth the following factual background and
procedural history as follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In that same order, the trial court terminated the parental rights of Child’s
father, R.A.P. (“Father”), and any unknown father. Neither Father nor any
unknown father has filed an appeal from the termination of his parental
rights to Child, nor is any such individual a party to the instant appeal.
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[Child] was born [in January of 2014] to [Mother]. [… Children
Youth and Families (“CYF”) became involved] with Child’s family
[] in 2010 after CYF received reports that Mother suffered
mental health and substance abuse problems, was a victim of
domestic violence, and did not have stable housing, raising
concerns about the welfare of Child’s older siblings. CYF
remained involved with Child’s family, and when Child was
subsequently born in 2014, CYF applied for emergency
protective custody of child, four days after Child’s birth, out of
concern that Mother was not receiving mental health treatment,
and that Mother did not have stable housing. [The trial court]
granted CYF’s application on January 9, 2014, and conducted a
shelter care hearing on January 10, 2014, at which Mother
provided evidence that she had been receiving mental health
services and was no longer in need of treatment, and that she
had obtained suitable housing. Accordingly, Child was returned
to Mother’s care, with in-home services.
In April 2014, CYF lost contact with Mother, and efforts by CYF
to locate her were unsuccessful. N.T., 8/12/2016 at 23. On May
21, 2014, CYF filed an application for Emergency Protective
Custody after Women’s Space East reported to CYF that Mother
had entered their homeless shelter on May 11, 2014, and that
Mother had resisted efforts by the shelter to find housing for her.
Id. at 23. On May 21, 2014, [the trial court] entered an order
for Emergency Protective Custody, and Child was placed in foster
care. Id. at 24-25. Child has not returned to the care of a
parent since that date, and was adjudicated dependent on
August 6, 2014.
CYF filed a petition for involuntary termination of parental rights
[] on February 2, 2016, amended on July 27, 2016. [The trial
court] conducted a hearing on the [termination of parental
rights] petition on August 24, 2016, and that same day entered
an order terminating Mother’s parental rights, as well as the
parental rights of Father, R.A.P. This appeal followed.
Trial Court Opinion, 10/13/2016, at 2-3.
On September 7, 2016, Mother filed a notice of appeal, along with a
concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
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1925(b). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 13, 2016.
On appeal, Mother raises the following issues:
1. Is the [t]rial [c]ourt’s finding a grounds for [i]nvoluntary
[t]ermination of Appellant’s [p]arental [r]ights under 23
Pa.C.S.A. § 2511(a)(2), § 2511(a)(5), and § 2511(a)(8) proven
by a showing of clear and convincing evidence?
2. [Was] the [t]rial [c]ourt’s finding that [t]ermination of [p]arental
[r]ights serves the developmental, physical and emotional needs
and welfare of the Child [ ] proved by clear and convincing
evidence as required by 23 Pa.C.S.A.§ 2511(b)?
Mother’s Brief, at 5.2
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
____________________________________________
2
It appears that Mother initially raised an additional issue: whether the trial
court erred in finding that CYF had proved by clear and convincing evidence
that the conditions which led to the removal of Child had not or could not be
remedied within a reasonable period of time. As she does not raise that
issue in her statement of questions involved portion of her brief, we find that
she waived the issue. See Krebs v. United Refining Company of
Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
errors complained of on appeal and the statement of questions involved in
his brief on appeal). However, Mother has preserved the challenge to the
extent that the issue is part of the consideration of the Section 2511(a)
factors.
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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 [our Supreme Court] discussed in R.J.T., there are clear
reasons for applying an abuse of discretion standard of review in
these cases. [The Pennsylvania Supreme Court] 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, 826-827 (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. 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. (internal citation and quotation omitted).
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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). We will focus on Section 2511(a)(2), before examining Appellant’s
claim pertaining to Section 2511(b).
Section 2511(a)(2) provides 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.
23 Pa.C.S.A. § 2511(a)(2).
To satisfy the requirements of Section 2511(a)(2), the moving party
must produce clear and convincing evidence regarding the following
elements: (1) repeated and continued incapacity, abuse, neglect or refusal;
(2) such incapacity, abuse, neglect or refusal caused the child to be without
essential parental care, control or subsistence necessary for his physical or
mental well-being; and (3) the causes of the incapacity, abuse, neglect or
refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa. Super. 2003). The grounds for termination of parental
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rights under Section 2511(a)(2), due to parental incapacity that cannot be
remedied, are not limited to affirmative misconduct; to the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).
Mother argues that the trial court erred in terminating her parental
rights under Section 2511(a)(2) because CYF failed to prove, by clear and
convincing evidence, that grounds existed to support the termination.
Mother asserts that the primary reason that CYF removed Child from her
care was that Mother had mental health issues and lacked consistent
housing. Mother states that her Family Service Plan (“FSP”) goals were to
obtain mental health treatment and stable housing, and to maintain
visitation with Child. Mother admits she had not completed all of her FSP
goals at the time of the hearing, but she contends that she made progress
toward completion of all of those goals.
Mother asserts that she had several mental health evaluations, after
which there was no recommendation for treatment. Mother states that, in
her last evaluation, Dr. Patricia Pepe recommended that Mother have mental
health treatment because Mother disclosed abuse by her mother. Mother
testified that she was willing to follow through with Dr. Pepe’s
recommendation.
Mother further avers that, at the time of the hearing, she had stable
housing that would be appropriate for Child and that her utility payments
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were current. Mother states that CYF had recently inspected her housing
and found it to be appropriate for Mother’s visits with Child.
Mother also alleges that she consistently maintained visitation with
Child during certain times. Mother claims that, at times, transportation
issues made it difficult for her to maintain consistent visitation. Additionally,
Mother states that the caseworker and the in-home worker testified that
there were never any concerns of inappropriate interaction reported with
regard to her visits with Child. Moreover, Mother states that the caseworker
testified that Mother’s interactions with Child have always been positive, and
that she observed a bond between Mother and Child. Mother claims that Dr.
Pepe, in both her evaluation and testimony, indicated that Mother is very
appropriate in her interaction with Child; Child is very comfortable with
Mother; and Mother exhibited positive parenting skills and had a good
understanding of Child’s developmental needs. Mother acknowledges that
Dr. Pepe recommended the termination of Mother’s parental rights. Mother,
however, emphasizes that Dr. Pepe testified that it would be beneficial to
Child to have some contact with Mother. See Mother’s Brief, at 11-15.
The trial court found as follows with regard to Section 2511(a)(2):
A review of the record and testimony provides clear and
convincing evidence that termination was warranted under 23
Pa.C.S.A. []§ 2511(a)(2)] . . . as to Mother, and that termination
of Mother’s rights best served the needs and welfare of Child. In
making its determination, [the trial court] relied on the credible
testimony of David Sprague of CYF who testified that on June 20,
2014, CYF implemented a Family Service Plan which included
goals that Mother secure stable housing (given Mother’s history
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of difficulty maintaining a stable home), achieve financial
stability, and regularly visit with Child. N.T. 8/12/16, at 25, 32.
However, since Child was removed from Mother’s care, Mother
has lived in several locations, including women’s shelters, and
has experienced evictions and periods of homelessness, despite
the provision of services to assist her in securing stable housing.
Mother has additionally experienced ongoing difficulty paying
rent and utilities, despite receiving budget counseling services
provided by Holy Family Institute, and services to help her
obtain housing and pay her bills, including referrals to Urban
League and Greater Valley which provided Mother with rent
assistance. Id. at 25-30. Moreover, Mother has experienced
difficulty maintaining consistent visitation with Child. Although
Mother visited with Child consistently from April 2014 to
December 2014 when Child was brought to Mother’s house,
when Mother was required to travel away from her home in
order to visit with Child, Mother’s visits became sporadic. Id. at
32-34. Mother attributed her failure to attend all her visits with
to transportation difficulties. Id. at 91.
***
After careful review of the evidence and testimony of record,
[the trial court] concluded that Mother is unable to parent Child.
Mother has consistently failed to timely comply with the goals
established in the [FSPs]. [The trial court] recognizes that even
though a bond exists between Mother and Child, and Mother
exhibits some positive parenting skills, Mother has been unable
to secure stable housing, experienced repeated periods of
homelessness, and neglected to responsibly manage her
finances despite assistance, resulting in a failure to provide a
stable and secure environment for Child. In addition, Mother did
not maintain regular visitation with Child, particularly when
required to make the effort to travel on those occasions when
Child was not brought to her home. Because of Mother’s lack of
any consistent effort to give priority to her parenting, and her
lack of consistent progress in completing her goals, Child
continues to remain in care. Moreover, Mother’s history of
mental illness, including her allegations that she fabricated
symptoms of schizophrenia, have affected her ability to provide
Child with consistency, stability and a secure home environment,
and indicate a continuing failure to prioritize Child’s needs.
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Trial Court Opinion, 10/13/2016, at 6-9. As such, the trial court found clear
and convincing evidence that termination of Mother’s parental rights under
Section 2511(a)(2) was merited.
We agree that termination was warranted pursuant to Section
2511(a)(2), as Mother clearly lacks parental capacity, and the evidence
showed that she will be unable to remedy that situation within a reasonable
period of time, if ever. As there is competent evidence in the record that
supports the trial court’s findings and credibility determinations, we find no
abuse of the trial court’s discretion in finding that Mother’s parental rights be
terminated under Section 2511(a)(2). In re Adoption of S.P., 47 A.3d
817, 826-827 (Pa. 2012).
In her second issue presented, Mother asserts only that the trial court
erred in finding that CYF proved by clear and convincing evidence that the
termination of her parental rights best meets the needs and welfare of Child
as set forth in 23 Pa.C.S.A. §2511(b). See Mother’s Brief, at 16-17.
Section 2511(b) provides, as follows:
(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.
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23 Pa.C.S.A. § 2511(b).
We have explained that the focus in terminating parental rights under
Section 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
Section 2511(b), our Supreme Court has 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)], [our Supreme 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).
When evaluating a parental bond, no formal bonding evaluation or
expert testimony is required; social workers and caseworkers may offer their
evaluation and opinion. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010)
(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).
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A parent’s abuse and neglect are, likewise, a relevant part of this
analysis. We have stated that
concluding 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 trial court may emphasize the
safety needs of the child. See In re K.Z.S., 946 A.2d 753, 763-764 (Pa.
Super. 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).
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.” See In re:
T.S.M., 71 A.3d at 267 (citation omitted). Our Supreme Court has
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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.” Id. (citation omitted).
We have explained that a parent’s own feelings of love and affection
for a child, alone, do not prevent termination of parental rights. In re Z.P.,
994 A.2d at 1121. Further, 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) (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.”)).
Herein, regarding Section 2511(b), the trial court concluded:
[The trial court] additionally considered the credible testimony of
Dr. Patricia Pepe who conducted psychological evaluations of
Mother, and who indicated that Mother has a positive
relationship with Child. Dr. Pepe testified that she observed
Child interact with Mother, that Child was “spontaneously
affectionate” with Mother, and that Mother “consistently and
positively interacted” with Child, and exhibited positive and
appropriate parenting skills. [N.T. 8/12/16,] at 76. However,
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Dr. Pepe observed that Mother had a history of “chronic
instability,” in particular with regard to maintaining housing, and
that Mother consciously engaged in conduct that put her at risk
for homelessness, such as refusing to pay rent because she
believed that her apartment needed repairs, resulting in her
eviction. Id. at 77-78. Dr. Pepe further testified that Mother
often displayed poor judgment and a lack of rational thinking, in
particular with regard to her finances, the mishandling of which
contributed to her inability to maintain stable housing, and also
with regard to her failure to make it a priority to arrange
transportation to visit Child and maintain regular contact with
her. Id. at 80. Dr. Pepe’s psychological evaluations indicated
that Mother has a history of depression, and was diagnosed with
schizoaffective disorder in April, 2011 after reporting that she
suffered hallucinations.
However, in October, 2011, Mother reported that she had not
actually suffered hallucinations, but that she had fabricated her
account of experiencing hallucinations in order to receive social
services. Dr. Pepe did note, however, that Mother was
hospitalized at Western Psychiatric Institute and Clinic from June
to September, 2011. Id. at 62.
Dr. Pepe further testified that she observed Child interact with
her foster mother, and testified that foster mother was
“consistently responsive to the child” who referred to her as
“mommy,” and that Child exhibited a “positive and primary
attachment” to foster mother. N.T., 8/12/16, at 75. In addition,
Tanaeya Anderson of Auberle, which provides foster care
services, testified that Child has a “very tight bond” with her
foster mother, and that the relationship between Child and foster
mother is “very natural” “almost to the point where you can’t tell
[Child] that’s not mom and you can’t tell foster mom that’s not
her daughter.” N.T., 8/12/16, at 57. Ms. Anderson testified that
foster mother is able to meet Child’s developmental, physical,
and emotional needs. Id.
***
[] Child is currently in a foster home that is able to provide for
her needs. In light of the foregoing, [the trial court] conclude[d]
that CYF proved by clear and convincing evidence the grounds
for involuntary termination of Mother’s parental rights pursuant
to § 2511(b) and that terminating Mother's parent rights best
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serves the developmental, physical and emotional needs and
welfare of the child.
Trial Court Opinion, 10/13/2016, at 7-9.
We agree with the trial court’s assessment. There was sufficient,
competent evidence of record for the trial court to find that no bond exists
such that the Child would suffer permanent emotional harm from the
termination of Mother’s parental rights. Hence, we agree that termination of
Mother’s rights was proper under Section 2511(b).
After a careful review of the record in this matter, we find the record
supports the trial court’s factual findings, and the court’s conclusions are not
the result of an error of law or an abuse of discretion. In re Adoption of
S.P., 616 Pa. at 325-26, 47 A.3d at 826-27. We, therefore, affirm the order
terminating Mother’s parental rights with regard to Child under Section
2511(a)(2) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2017
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In Re: F.B.-G., a minor, Appeal of: S.R.G.
Combined Opinion