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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.W., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: D.W., NATURAL MOTHER
No. 923 WDA 2017
Appeal from the Order entered May 26, 2017,
in the Court of Common Pleas of Allegheny County,
Orphans' Court, at No(s): CP-02-AP-164-2016.
BEFORE: BENDER, P.J.E., DUBOW and PLATT, JJ.
MEMORANDUM BY DUBOW, J., FILED NOVEMBER 16, 2017
D.W. (“Mother”) appeals from the order involuntarily terminating her
parental rights to N.W. (“Child”) pursuant to the Adoption Act, 23 Pa.C.S. §§
2511(a) and (b). We affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Mother and B.F. (“Father”) are the parents of Child, who was born in
December 2014. Shortly after his birth, Allegheny County Office of Children,
Youth, and Families (“Agency”) received a report that Mother had admitted
that she had smoked marijuana while pregnant.1 The Agency became
actively involved in February of 2015, after it was reported that the family
was homeless, and that there had been instances of domestic violence
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1
Mother was known to the Agency from prior referrals going back to 2009
involving her older children.
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between Mother and Father. The Agency was further aware that both
Mother and Father had unaddressed mental health, drug, and alcohol issues.
The Agency began Crisis in-home services, and both parents were
referred to a drug and alcohol program for evaluation and treatment. The
Agency established the following goals for Mother: 1) to participate in
domestic violence counseling; 2) to develop coping skills; and 3) to work on
household management.
In late March of 2015, the Agency received a report that one of Child’s
siblings had suffered an injury and that domestic violence continued to
persist in the family home. The court granted an emergency custody
authorization for Child to the Agency on March 26, 2015. Child was removed
from Mother’s care and placed initially with his paternal grandmother, and
then in the care of his paternal aunt (“Foster Mother”).
On June 3, 2015, after a hearing, the court adjudicated Child
dependent. Following this adjudication, the Agency established the following
goals for Mother: 1) to participate in psychological evaluations and follow
any recommendations; 2) to attend domestic counseling; 3) to obtain
appropriate housing; and 4) to visit the children. The court held four
permanency review hearings between September 2015 and June 2016, with
the court finding that Mother only minimally or moderately complied with
these goals.
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The Agency filed a Petition to Terminate Mother’s parental rights on
August 30, 2016.2 The trial court held an evidentiary hearing on May 26,
2017. The Agency presented testimony from the caseworker who worked
with Mother and her family. It also presented the testimony of Dr. Terry
O’Hara, a licensed psychologist who had evaluated and observed interactions
between Child and both Mother and Foster Mother. The trial court
summarized Dr. O’Hara testimony as follows:
Dr. O’Hara conducted an interactional evaluation of
Mother, [Child], and one of his siblings on October 3rd,
2016 [sic]. Mother exhibited several positive parenting
skills during this evaluation and played well with the
children. However, she was unable to recognize or
appreciate the extent of [Child’s] developmental delays.
Of particular concern was a comment made by Mother
about the [approximately two-year-old Child’s] inability to
walk. Mother stated that [Child] was not walking yet
because he was “just lazy.”
***
Dr. O’Hara had continued concerns about Mother’s stability
as she has been inconsistent with services and visitation.
Also of great concern was Mother’s longstanding and
ongoing pattern of criminal activity. Mother acknowledged
to Dr. O’Hara that she was not in a position to care for
[Child]. She reported that she could not care for her
child(ren) “right now . . . I’ll find me a job and get me a
house, and then maybe.”
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2
The Agency also filed a Petition to Terminate Father’s Parental Rights. He
has not filed an appeal from the trial court’s subsequent Order granting the
Petition.
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Dr. O’Hara conducted an interactional evaluation with
[Child] and his [Foster Mother] on May 1st, 2017 [sic].
[He] opined that the Foster Mother displayed excellent
parenting skills and was attuned to [Child’s] developmental
and medical needs. It was his opinion that [Child] had
developed a strong relationship with Foster Mother.
Trial Court Opinion, 7/26/17, at 5-6 (footnotes omitted).
Mother did not testify and presented no evidence. By order entered
May 26, 2017, the trial court found that the Agency had met its statutory
burden pursuant to 23 Pa.C.S. §§ 2511(a) (2), (5), (8) and (b).
Mother timely appealed. Both Mother and the trial court have
complied with Pa.R.A.P. 1925.
ISSUE ON APPEAL
Mother raises the following issue on appeal:
Did the trial court abuse its discretion and/or err as a
matter of law in concluding that termination of
[Mother’s] parental rights would serve the needs and
welfare of [Child] pursuant to 23 Pa.C.S. §2511(b)?
Mother’s Brief at 6.
LEGAL ANALYSIS
“[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.” In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012).
This standard of review requires appellate courts “to accept the findings of
fact and credibility determinations of the trial court if they are supported by
the record.” Id. “If the factual findings are supported, appellate courts
review to determine if the trial court made an error of law or abused its
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discretion.” Id. We may reverse a decision based on an abuse of discretion
“only upon demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.” Id. We may not reverse, however, “merely
because the record would support a different result.” In re T.S.M., 71 A.3d
251, 267 (Pa. 2013).
We give great deference to the trial courts “that often have first-hand
observations of the parties spanning multiple hearings.” Id. Moreover, the
trial court is free to believe all, part, or none of the evidence presented and
is likewise free to make all credibility determinations and resolve conflicts in
the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004).
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). 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. (citation omitted).
Termination Pursuant to Section 2511(a)
Mother concedes that the Agency presented sufficient evidence to
terminate her parental rights pursuant to Section 2511(a). See Mother’s
Brief at 13. Thus, we need not conduct an analysis of the court’s Section
2511(a) findings.
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Termination Pursuant to Section 2511(b)
We agree with the trial court’s determination that the Agency met its
burden under 23 Pa.C.S. § 2511(b), and that terminating Mother’s parental
rights is in the best interest of the Child.
With respect to Section 2511(b), our analysis shifts focus from
parental actions in fulfilling parental duties to the effect that terminating the
parental bond will have on the child. 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).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this Court
found that “intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.” In addition,
the trial court must also discern the nature and status of the parent-child
bond, with utmost attention to the effect on the child of permanently
severing that bond. Id.
In cases where there is no evidence of a bond between a parent and a
child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d
753, 762-63 (Pa. Super. 2008). Thus, the extent of the bond-effect analysis
necessarily depends on the circumstances of the particular case. Id. at 763.
Moreover:
We have emphasized that 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 trial court when
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determining what is in the best interest of the child. The
mere existence of an emotional bond does not preclude
the termination of parental rights. Rather, the trial court
must examine the status of the bond to determine whether
its termination would destroy an existing, necessary, and
beneficial relationship.
In re A.D., 93 A.3d 888, 897-98 (Pa. Super. 2014) (citations and quotation
marks omitted).
Finally, “[i]n addition to a bond examination, the court may equally
emphasize the safety needs of the child under subsection (b), particularly in
cases involving physical or sexual abuse, severe child neglect or
abandonment, or children with special needs.” Id. at 898 (quoting In re
A.S., 11 A.3d 473, 483 (Pa. Super. 2010)).
In the instant case, the trial court found, based primarily on the
testimony presented and a review of Dr. O’Hara’s evaluations, that although
Mother and Child share a bond, it is secondary to Child’s primary bond with
his Foster Mother. Given this evidence, the trial court concluded that
benefits of Child’s adoption by Foster Mother outweighed any detriment that
may be experienced by Child upon severing Mother’s parental rights. It
explained:
Mother has never availed herself of any service or program
that would have assisted her in being able to meet the
needs of [Child]. Throughout the case, Mother has never
been able to attain any level of stability. As a result, she
has been unable to remedy the conditions which brought
[Child] into care. At the core of this instability has been
Mother’s role as a victim and an aggressor in incidents of
domestic violence. Mother demonstrated a pattern of filing
Protection From Abuse Petitions and then not following
through nor appearing at final hearings. Mother did
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complete domestic violence treatment in August of 2015.
However, she continued to pursue a relationship with
Father despite numerous violent encounters between the
two.
The Court had grave concerns about the effects of
domestic violence on [Child]. Based upon Mother’s own
admissions, the children were subjected to domestic
violence daily. Based upon the number of police calls to
the home, it is apparent that the parents engaged in
violent incidents while Mother was pregnant with [Child].
This evidence was particularly concerning to the Court
based upon Dr. O’Hara’s testimony regarding the effects of
domestic violence on children. Most notably, he
referenced research which supported a conclusion that
children exposed to domestic violence were much more
likely to suffer long term physical, mental and emotional
effects. He reported that this case was one of the worst
cases of domestic violence that he has seen in the last 20
years. He did not believe that Mother would be able to
decrease her vulnerability to engaging in these type[s] of
relationships. The Court shares in this conclusion as
Mother has never separated from Father for more than a
few weeks. Mother could not even make it a week without
allowing Father to attend her unsupervised visits, despite
knowing the consequences of doing so.
When considering what best met the needs and welfare of
[Child], this Court also considered Mother’s lack of
cooperation with services. Mother has failed to attend
mental health treatment consistently. She has not
attended drug and alcohol treatment nor has she attended
random drug screens consistently. Mother has not
maintained stable housing throughout the case. She had
two brief periods in which she was consistent with
visitation. Mother has not made herself available to sign
paperwork for [Child’s] medical and educational services.
Mother’s lack of cooperation has caused [Child] to
experience delay in services. All of these factors have
contributed to Mother’s inability to meet [Child’s] needs.
With respect to the detriment that may be caused by
termination of Mother’s rights, Dr. O’Hara opined that he
did not have evidence that [Child] had a necessary and
beneficial relationship with [Mother]. Dr. O’Hara opined
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that if [Child] were placed with Mother, he would be at risk
for homelessness and exposure to domestic violence.
[Child] has been in care for a substantial amount of time.
[Child’s] current foster home offers him security, safety
and stability. He has a positive bond with [Foster Mother].
[Child] deserves permanency and to grow up in a home
where he is not exposed to domestic violence daily.
This Court finds that [the Agency] has presented clear and
convincing evidence to support the involuntary termination
of the parental rights of Mother as to 23 Pa.C.S.A. §
2511(b) and that termination best suits the needs and
welfare of [Child]. It is the ultimate opinion of this Court
that the benefits of adoption outweighed any potential
detriment to [Child].
Trial Court Opinion, 7/26/17, at 7-9. We agree. See T.S.M., 71 A.3d at
253 (explaining “courts must determine whether the trauma caused by
breaking the bond is outweighed by the benefit of moving the child toward a
permanent home”).
Mother argues that the trial court erred in concluding that the
testimony and exhibits presented by the Agency presented clear and
convincing evidence that the termination of her parental rights would best
serve the needs and welfare of Child. According to Mother, error occurred
because the court “applied a fault-based analysis in regard to [her] alleged
lack of progress and balanced that against the positives it found in regard to
[Child’s] foster parent.” Mother’s Brief at 10. Citing to the trial court’s
comments enumerated above, Mother asserts that the trial court improperly
focused on her faults rather than Child’s welfare, and “clearly balanced what
it considered to be the benefits of [Child] remaining with his foster parent
against its perceived fault on [her] part[.]” Id. at 16.
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When performing a needs and welfare analysis, trial courts are
permitted to consider the totality of the circumstances. In re Coast, 561
A.2d 762, 771 (Pa. Super. 1989) (en banc). Moreover, the bond between
parent and child must not be viewed solely from the child’s viewpoint;
rather, a bilateral relationship must exist which emanates from the parent’s
willingness to parent appropriately. In re K.K.R.-S., 958 A.2d 529, 534-35
(Pa. Super. 2008). In this manner, Mother’s inability to parent remains
relevant to consideration of Child’s needs under Section 2511(b). Indeed,
by not contesting the trial court’s findings regarding Section 2511(a), Mother
concedes her inability to parent, and thus her inability to provide Child with
permanency.
Our careful review of the record demonstrates that the trial court
properly considered the strength of the bond with Mother and the safety risk
should Child be returned to her care. As noted above, the uncontradicted
testimony established that Child did not have a necessary and beneficial
bond with Mother, Child was bonded with Foster Mother, and that his need
for permanence, security, and safety outweighed any detriment to severing
Child’s bond and/or attachment to Mother.
CONCLUSION
In sum, our review of the record supports the trial court’s
determination that that the Agency met its burden of proving by clear and
convincing evidence that Mother’s parental rights should be terminated
pursuant to 23 Pa.C.S. § 2511(b). Accordingly, we affirm.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
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