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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.A.F., A MINOR IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: B.M.B., NATURAL MOTHER
No. 1421 WDA 2017
Appeal from the Decree entered September 1, 2017
In the Court of Common Pleas of Blair County
Orphans' Court at No: 2017 AD 5
BEFORE: BOWES, PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 5, 2018
B.M.B. (Mother) appeals from the amended decree entered September
1, 2017, which involuntarily terminated her parental rights to her minor son,
A.A.F. (Child), born in January 2016.1 After careful review, we affirm.
The trial court summarized the factual and procedural history of this
matter as follows.
. . . [Blair County Children, Youth and Families (BCCYF)] was
granted verbal emergency protective custody of the subject child
by the undersigned on May 4, 2016. [BCCYF] filed an Application
for Emergency Protective Custody and a Shelter Care Application.
In the Order for Emergency Protective Custody entered May 5,
2016, BCCYF was granted custody, including right of placement.
BCCYF filed both applications based upon reports that the Mother
had not been bonding with the child since birth; that the child had
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1 The decree also terminated the parental rights of Child’s father, P.A.F.
(Father). Father filed an appeal at Superior Court Docket No. 1482 WDA 2017,
which we address in a separate memorandum.
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developmental delays; that the Mother was not following through
with recommendations of in-home service providers regarding the
child not meeting developmental milestones; that the Mother had
intellectual limitations and mental health concerns but was not
taking her prescribed medication; and that the parents would not
allow the child to be assessed for Early Intervention despite a
referral by the service provider. On May 4, 2016, the date the
emergency verbal order was given, BCCYF caseworkers went to
the family residence and observed the Mother holding the young
child inappropriately; that the child’s head was significantly flat;
that the child was not responding when they tried to interact with
him; and the Mother was unable to identify the child’s primary
care physician. Furthermore, they observed that the downstairs
of the residence was cluttered with construction tools and that the
Mother’s bedroom was cluttered with pill bottles and an old bottle
of baby formula on the floor. There was also an individual residing
in the home with an active arrest warrant.
After the Shelter Care hearing held May 6, 2016 before
Hearing Officer James V. McGough, Esquire, a Shelter Care Order
was entered on May 10, 2016 returning legal and physical custody
of the child to the Father and directing BCCYF to provide general
protective services. [BCCYF] was to make an immediate referral
for family preservation services; and the parents were directed to
cooperate with services through Home Nursing Agency Nurse
Family Partnership, the WIC Program and any recommendations
made by the pediatrician. Further, both parents were directed to
cooperate with an Early Intervention Assessment for the child and
cooperate with any recommended services.
Upon request of [BCCYF], a Shelter Care Rehearing was held
on May 11, 2016 before the undersigned, at which time the record
from the original shelter care hearing held May 6, 2016 was
incorporated. Legal and physical custody was vested in both
parents with the child to remain under the protective supervision
of [BCCYF]. Both parents were again directed to cooperate with
all recommended services, and the Mother was specifically
directed to engage in mental health counseling and follow all
treatment recommendations, including taking her medication as
prescribed.
On May 6, 2016, BCCYF filed a Dependency Petition and a
Motion for Finding of Aggravated Circumstances alleged as to the
Father, based upon the fact that his parental rights had previously
been involuntarily terminated relative to another child. After
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hearings held May 11, July 26 and August 11, 2016, we entered
an Order of Adjudication and Disposition on August 18, 2016
finding the subject child to be dependent. The record from these
three proceedings was quite extensive. To summarize the several
bases for a finding of dependency, such would include the Mother’s
significant mental issues which affected her bonding and
attachment with the child; the developmental delays for the child
which were discussed with the parents; the parents consistently
placing a blanket or other items in the baby’s crib which created
safety concerns; the parents[’] refusal to follow through with
recommended services for Early Intervention and the Parents as
Teachers Program; unknown people coming in and out of the
home while service providers were present; inappropriate
behavior by D.F., the paternal grandfather, who has his own
mental health issues; the parents’ difficulty in establishing a daily
schedule and routine for their child; resistance; anger and hostility
by the Father toward service providers; the Father’s refusal to
undergo a mental health evaluation even though he had been
previously diagnosed with a bipolar condition; the conflict between
the parents, including yelling and screaming in the presence of
child; the parents’ inability to attend to the basic necessities for
the child; the lack of cooperation and progress with service
providers; and each service provider testifying that they could not
ensure the safety of the child within the parents’ home. Based
upon the evidence adduced during these hearings, we granted
BCCYF legal and physical custody of the child and placed the child
in a foster home. We also granted [BCCYF’s] Motion for
Aggravated Circumstances against the Father due to an
involuntary termination of his parental rights relative to another
child . . . .
Trial Court Opinion, 10/12/17, at 5-8 (emphasis omitted).
On January 18, 2017, the trial court entered a permanency review order
changing Child’s permanent placement goal from return to parent or guardian
to adoption, and relieving BCCYF of its obligation to provide reunification
efforts. Mother appealed, and a prior panel of this Court affirmed on July 19,
2017. In the Interest of A.F., 2017 Pa. Super. Unpub. LEXIS 2744, 2017
WL 3050322 (Pa. Super. filed July 19, 2017) (unpublished memorandum).
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On February 16, 2017, BCCYF filed a petition to involuntarily terminate
Mother’s parental rights to Child. The trial court conducted a termination
hearing on August 29, 2017. Following the hearing, on August 31, 2017, the
court entered a decree terminating Mother’s parental rights. The court
entered an amended decree on September 1, 2017.2 Mother timely filed a
notice of appeal on September 29, 2017, along with a concise statement of
errors complained of on appeal.
Mother now raises the following issue for our review: “Whether [BCCYF]
met its burden of terminating Mother’s parental rights by clear and convincing
evidence[?]” Mother’s Brief at 4.
We review Mother’s issue mindful of our well-settled standard of review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
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2 The original decree included two grounds for terminating Mother’s parental
rights, with the trial court adding a third ground in pen. The amended decree
included all three grounds.
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In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
In this case, the trial court terminated Mother’s parental rights pursuant
to Sections 2511(a)(2), (5), (8), and (b). We need only agree with the court
as to any one subsection of Section 2511(a), as well as Section 2511(b), in
order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc), appeal denied, 863 A.2d 1141 (Pa. 2004). Here, we analyze the court’s
decision to terminate under Section 2511(a)(2) and (b), which provide as
follows.
(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:
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(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.
***
(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)(2), (b).
We first address whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section
2511(a)(2). In order to terminate parental rights pursuant to 23
Pa.C.S.A. § 2511(a)(2), the following three elements must be
met: (1) repeated and continued incapacity, abuse, neglect or
refusal; (2) such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted). “The grounds for termination 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) (citations
omitted).
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Instantly, the trial court found that Mother is incapable of parenting
Child, and that she cannot, or will not, remedy her parental incapacity. Trial
Court Opinion, 10/12/17, at 19. The court reasoned that Mother failed to
engage consistently in mental health treatment, failed to take her medication
as prescribed, and refused to cooperate with an assessment by Early Invention
Services and the Parents as Teachers Program. Id. The court further
reasoned that Mother’s visits with Child remain supervised, due to persistent
safety concerns. Id. The court expressed concern that Mother continues to
reside with Child’s paternal grandfather, who suffers from his own mental
health issues. Id.
In her brief, Mother presents a single argument section in which she
appears to challenge both Section 2511(a) and (b). With respect to Section
2511(a), Mother argues that the trial court changed Child’s permanent
placement goal to adoption shortly after she began working with service
providers, such that the court “was not able to determine if the services
provided to Mother would have allowed her to gain the functioning necessary
to provide for the child.” Mother’s Brief at 10.
Our review of the record supports the trial court’s decision. During the
termination hearing, the court incorporated by reference Child’s prior
dependency proceedings, including a report prepared by psychologist, Terry
O’Hara, Ph.D., in October 2016. See Petitioner’s Exhibit 1 (Psychological
Evaluation Report). In his report, Dr. O’Hara explained that he conducted a
global assessment of Mother, which revealed a variety of significant parenting
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concerns. Id. at 21-25. Dr. O’Hara concluded that Child would be at risk for
“neglect, abuse, exposure to domestic violence and psychological instability,
depression, anxiety, truncation of appropriate development, and reactive
attachment disorder” if he were returned to Mother’s home. Id. at 24-25.
In reaching this conclusion, Dr. O’Hara placed particular emphasis on
Mother’s intellectual limitations. Dr. O’Hara explained that he subjected
Mother to a series of psychological tests, which revealed that she has a “2.6
word reading grade level” and a “2.8 grade level in sentence comprehension.”
Id. at 9. Because of Mother’s limited reading abilities, Dr. O’Hara was unable
to administer several other tests. Id. at 5. Dr. O’Hara assessed Mother as
having an IQ of sixty-seven, placing her in the first percentile for her age, and
indicating that she is intellectually disabled. Id. at 9.
Concerning the practical impact of Mother’s intellectual limitations, Dr.
O’Hara reviewed an evaluation from Mother’s former school, which indicated
that she “‘had difficulty following her class schedule and opening her locker
. . . when called to the principal’s office, [Mother] needed to be escorted so
she would not get lost.’” Id. at 2. During his own evaluation, Dr. O’Hara
observed that Mother “frequently paused before responding to questions from
this examiner and took several minutes to print and sign her name after this
examiner explained the consent form.” Id. at 5. Mother also “asked this
examiner the time and indicated that she is unable to tell time on a clock.”
Id. at 11.
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In addition, Dr. O’Hara emphasized that Mother suffers from significant
mental health issues. During the evaluation, Mother reported that she is sad
and depressed every day, and that she is irritable “every day . . . all day until
nighttime.” Id. at 6. Mother reported that she is prescribed an
antidepressant, and that when she does not take it she “snap[s] out.” Id. at
5-6. Mother also admitted to engaging in self-harm behavior. Mother stated
that she intentionally burned herself with a cigarette in September 2016, and
that she punched herself in the stomach while she was pregnant with Child,
although she “later indicated that she was not trying to harm the baby.” Id.
at 6-7.
Importantly, the testimony presented during the termination hearing
indicates that Mother has failed to address her mental health needs on a
consistent basis. Mother’s Home Nursing Agency case manager, Jessalynn
Garlena, testified that Mother receives medication management and
outpatient counseling. N.T., 8/29/17, at 26-28, 33. However, Mother has
canceled or rescheduled several medication management appointments, and
she has not attended outpatient counseling “in quite some time.” Id. at 26-
27. Ms. Garlena also referred Mother to North Star Services for assistance in
learning life skills in April 2017. Id. at 28-29. North Star Services was unable
to begin working with Mother until August 2017, because they “were
struggling to get a hold” of her. Id. at 29.
In addition to Mother’s intellectual limitations and mental health issues,
the record reveals that she continues to live with Father, with whom she has
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a tumultuous, and even violent, relationship. BCCYF caseworker, Ronna
Holliday, testified that Father contacted BCCYF prior to Child’s adjudication of
dependency, and informed them that he had broken up with Mother and that
she had moved out of the house. Id. at 64. Mother later alleged that Father
and his cousin had been physically and emotionally abusive to her.3 Id. More
recently, in July 2017, Father called BCCYF stating that he and Mother had
been in an argument and that he “had to go to the hospital” because Mother
“may have broken his toe.” Id. at 61.
Mother also continues to reside with Child’s paternal grandfather, D.F.
Id. at 39. The record reveals that D.F. suffers from his own significant mental
health issues. Id. at 40. Ms. Holliday explained, “I’ve tried to have
conversations with him. He talks about the war. He talks about the military
and we were informed by [Father] that he was never enrolled in the military.”
Id. Mother herself testified that she and Father “tried to like get a court order
for [D.F.] to get back on his medication,” but that D.F. is not dangerous and
“just has fantasy details in his mind and, you know, . . . everyone goes through
that.” Id. at 88, 100.
Thus, the record supports the trial court’s conclusion that Mother is
incapable of parenting Child, and that she cannot, or will not, remedy her
parental incapacity. Mother suffers from significant intellectual limitations,
and she has failed to address her mental health issues consistently. Moreover,
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3Mother recanted these allegations. Petitioner’s Exhibit 1, at 5; N.T., 8/29/17,
at 104.
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Mother continues to reside with Father and D.F., despite her tumultuous
relationship with Father and D.F.’s obvious mental instability. When
considered together, these issues confirm that Mother cannot provide the safe,
stable, and nurturing environment that Child needs. Moreover, contrary to
her argument on appeal, it is clear that additional services would not have
allowed Mother to remedy these issues within a reasonable period of time.
We next consider whether the trial court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(b).
Section 2511(b) focuses on whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. As this Court has explained,
Section 2511(b) does not explicitly require a bonding analysis and
the term ‘bond’ is not defined in the Adoption Act. Case law,
however, provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as part of
our analysis. While a parent’s emotional bond with his or her child
is a major aspect of the subsection 2511(b) best-interest analysis,
it is nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have
with the foster parent. Additionally, this Court stated
that the trial court should consider the importance of
continuity of relationships and whether any existing
parent-child bond can be severed without detrimental
effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (quoting
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (quotation marks and
citations omitted).
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In its opinion, the trial court summarized the testimony presented by
BCCYF, including testimony that Child “demonstrated an attachment” to
Mother during their visits together, but that Child also has a very strong bond
with his foster mother. Trial Court Opinion, 10/12/17, at 15-16. Ultimately,
the court concluded that terminating Mother’s parental rights would best serve
Child’s needs and welfare, “so as to allow this child to achieve safety and
permanency . . . .” Id. at 19.
In response, Mother argues that she attended the majority of her visits
with Child, that her interactions with Child were appropriate, and that she and
Child share a bond. Mother’s Brief at 10.
Our review of the record again supports the trial court’s decision. During
the termination hearing, Child’s visitation supervisor, Alexis Richards, testified
that Child and Mother have “a good bond,” and that Child becomes upset if
Mother leaves the room during visits. N.T., 8/29/17, at 20-21. At the
conclusion of his most recent visit with Mother, Child “cried a little when he
had to leave and wanted to hold onto [Mother].” Id. at 17. However, Ms.
Richards qualified her testimony by stating that Child behaves similarly toward
any “female figure” that he sees. Id. at 16. She explained, “we’ve had our
secretary walk in to give us a note or something and when she walks out,
even though she’s only been in there for like two minutes maybe, he’ll cry
then too.” Id. at 21.
In addition, Ms. Richards testified that Child has a “very good bond” with
his foster mother. Id. at 14. When Ms. Richards picks up Child for visits, he
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is often “very upset” to leave his foster mother. Id. at 14. When Ms. Richards
returns Child to his foster mother after visits, his arms “reach out to her
immediately.” Id. Ms. Richards described a recent visit during which Child
was in a room with Mother, Father, and his foster mother all at the same time.
Id. She recalled that Child “was more towards [his foster mother]. He wanted
to go towards [his foster mother] more than he wanted to be with bio mom
or dad.” Id.
Similarly, Ms. Holliday testified that Child appears bonded with his foster
parents and their biological children, and is comfortable in the foster home.
[Child] looks to the children, the biological children in this family
for his needs and wants. They enjoy -- he enjoys playing with
them. They enjoy playing with each other. They have a family
dog that is -- he is very close with. He really enjoys being with
the dog. Even with the adoptive resource father, he came in from
work one day and [Child] got very excited. He was dancing. When
he sat down [Child] sat with him and he stayed at his side for
several minutes and then played right in front of him for the rest
of the visit. The adoptive resource family has integrated him into
their daily life. He’s happy to see them. When I’m there he looks
to them for security. Eventually he has warmed up to me and
come to me but he knows that -- he seems to have -- there is a
safety protectiveness [sic] with the adoptive resource family I
should say. He is very comfortable in the home.
Id. at 50-51.
Thus, it is clear that terminating Mother’s parental rights would best
serve Child’s needs and welfare. Child’s behavior indicates that he shares a
bond with Mother. However, the strength of this bond is questionable, given
that Child behaves in a similar fashion toward complete strangers. Moreover,
Child displays a strong bond with his foster parents, and they have integrated
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him fully into their family. Mother remains unable to care for Child, and
preserving her parental rights would serve only to deny Child the benefits of
a permanent, safe, and stable home.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by involuntarily terminating Mother’s parental rights to Child.
Therefore, we affirm the court’s September 1, 2017 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2017
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