J-S25045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.S. :
:
:
:
:
: No. 140 WDA 2018
Appeal from the Order October 10, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000041-2017
IN THE INTEREST OF: B.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.S. :
:
:
:
:
: No. 141 WDA 2018
Appeal from the Order October 10, 2017
In the Court of Common Pleas of Allegheny County
Orphans’ Court at No(s): CP-02-AP-0000042-2017
IN THE INTEREST OF: S.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.S. :
:
:
:
:
: No. 142 WDA 2018
Appeal from the Order Entered October 10, 2017
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000043-2017
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
J-S25045-18
MEMORANDUM BY OTT, J.: FILED JULY 09, 2018
C.S. (“Mother”) appeals from the October 10, 2017 orders in the Court
of Common Pleas of Allegheny County involuntarily terminating her parental
rights to her three daughters, K.L., born in March of 2010; B.L., born in
February of 2012; and S.L., born in March of 2014 (collectively, “the
Children”).1 Upon careful review, we affirm.
The factual and procedural history relevant to this appeal are as follows.
On November 2, 2015, the Allegheny County Office of Children, Youth, and
Families (“CYF”) received a report that Mother had a drug problem and had
relocated with the Children from the State of Indiana to the home of her cousin
in Pennsylvania to escape domestic abuse she suffered from Father. N.T.,
10/10/17, at 9. In March of 2016, Mother became homeless, and she and the
Children went to a shelter in Allegheny County. Id. On March 17, 2016,
Mother had suicidal ideations, and she was placed in a mental health institute.
Id. CYF obtained protective custody of the Children on March 18, 2016, and
placed them with their current foster parents, a pre-adoptive resource. Id.
at 8, 22-23.
At the time of placement, K.L. was six years old, and she was not in
school. Id. at 52. She needed extensive dental work, and the dental needs
of B.L., four years old, and S.L., nearly two years old, had also been neglected.
____________________________________________
1 By the same orders, the orphans’ court involuntarily terminated the parental
rights of the Children’s father, C.L. (“Father”). Father filed notices of appeal
from the orders, which this Court affirmed. See In re S.L., B.L., K.L., ___
A.3d ___, 2018 Pa. Super. Unpub. LEXIS 1188 (filed April 16, 2018).
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Id. In addition, with respect to S.L., the CYF caseworker agreed there was
concern that she was failing to thrive at the time of placement. Id.
The court adjudicated the Children dependent on April 13, 2016. Id. In
furtherance of the Children’s permanency goal of reunification, the court
ordered family service plan (“FSP”) goals for Mother to address her history of
domestic violence, drug and alcohol abuse, mental health, and homelessness.
Id. at 10. In addition, the court ordered Mother to maintain contact with CYF
and to participate in supervised visits with the Children. Id. Mother did not
satisfy her FSP goals. Id. at 11-18.
On March 20, 2017, CYF filed a petition for the involuntary termination
of Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),
and (b). An evidentiary hearing occurred on October 10, 2017, when K.L. was
seven years old, B.L. was five years old, and S.L. was three years old. CYF
presented the testimony of its caseworker, Erin Frawley; Heather DiBenedtto,
the caseworker from Adoption Connection foster care agency; and Neil D.
Rosenblum, Ph.D., who performed an interactional evaluation of the Children,
their parents, and their foster parents, and he performed individual
evaluations of the Children and Mother. Mother did not attend the hearing;
however, she was represented by counsel.
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Andrea Spurr, Esquire, represented the Children’s legal interests during
the hearing.2 Attorney Spurr stated on the record in open court that no conflict
exists between the Children’s legal and best interests.3 Id. at 59-60. Attorney
Spurr cross-examined all of CYF’s witnesses, and she advocated on behalf of
the Children’s legal interests.4
On October 10, 2017, the orphans’ court granted CYF’s petitions for the
involuntary termination of Mother’s parental rights. On November 1, 2017,
____________________________________________
2 In In re Adoption of L.B.M., 161 A.3d 172 (Pa. 2017) (plurality) our
Supreme Court held that 23 Pa.C.S. § 2313(a) requires that counsel be
appointed to represent the legal interests of any child involved in a contested
involuntary termination proceeding. The Court defined a child’s legal interest
as synonymous with his or her preferred outcome. The L.B.M. Court did not
overrule this Court’s holding in In re K.M., 53 A.3d 781 (Pa. Super. 2012),
that a guardian ad litem who is an attorney may act as counsel pursuant to
Section 2313(a) as long as the dual roles do not create a conflict between the
child’s legal and best interests.
3 We must raise sua sponte whether the Children were denied legal counsel
during the involuntary termination proceeding pursuant to Section 2313(a) of
the Adoption Act. See In re Adoption of T.M.L.M., ___ A.3d ___, 2018 PA
Super 87, *4 (Pa. Super. April 13, 2018) (citing In re K.J.H., 180 A.3d 411,
414 (Pa. Super. 2017) (Judge Olson dissenting)).
In this case, the testimonial evidence, discussed infra, demonstrates that
K.L. and B.L. stated their preferences to be adopted by their pre-adoptive
foster parents. The youngest child, S.L., was three years old at the time of
the termination proceedings and, therefore, not capable of articulating her
preference in this regard. As such, no conflict exists between S.L.’s legal and
best interests. Accordingly, we conclude that the Children were not denied
legal counsel in this case.
4 Attorney Spurr filed an appellee brief, wherein she argued in support of the
involuntary termination orders.
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Mother filed notices of appeal and concise statements of errors complained of
on appeal, which this Court consolidated sua sponte.
On appeal, Mother questions whether the orphans’ court abused its
discretion and/or erred as a matter of law “in concluding that CYF met its
burden of proving by clear and convincing evidence that termination of
Mother’s parental rights would best serve the needs and welfare of the
[C]hildren pursuant to 23 Pa.C.S. § 2511(b)?” Mother’s brief at 10.
We review Mother’s issue according to the following standard.
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.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 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
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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).
Instantly, the orphans’ court involuntarily terminated Mother’s parental
rights pursuant to the following provisions of the Act:
(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:
(1) The parent by conduct continuing for a period of at
least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or
failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied by the parent.
...
(5) The child has been removed from the care of the parent
by the court or under a voluntary agreement with an
agency for a period of at least six months, the conditions
which led to the removal or placement of the child continue
to exist, the parent cannot or will not remedy those
conditions within a reasonable period of time, the services
or assistance reasonably available to the parent are not
likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time
and termination of the parental rights would best serve the
needs and welfare of the child.
...
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(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. § 2511(a)(1), (2), (5), (8), and (b).
Mother does not raise an issue with respect to Section 2511(a).
Therefore, we review the orders with respect to Section 2511(b) only. This
section requires that trial courts “discern the nature and status of the parent-
child bond, with utmost attention to the effect on the child of permanently
severing that bond.” In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005)
(citation omitted). Further, we have explained:
[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
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relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010). In considering the affection
that a child may have for his or her natural parents, this Court has stated:
[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 its 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).
In addition, we are mindful of our Supreme Court’s directive in In re
T.S.M., supra, that, “[c]ommon sense dictates that courts considering
termination must also consider whether the children are in a pre-adoptive
home and whether they have a bond with their foster parents.” Id. at 268.
The Court stated that, in weighing the bond considerations pursuant to Section
2511(b), “courts must keep the ticking clock of childhood ever in mind.” Id.
at 269. The T.S.M. Court observed that, “[c]hildren are young for a scant
number of years, and we have an obligation to see to their healthy
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development quickly. When courts fail . . . the result, all too often, is
catastrophically maladjusted children.” Id.
Mother argues on appeal that the evidence established that she has a
“loving and affectionate” relationship with the Children, and that it is “positive
and beneficial” for the Children. Mother’s brief at 15. Mother contends that
Dr. Rosenblum’s testimony does not support terminating her parental rights
to the older children, K.L. and B.L., pursuant to Section 2511(b). Finally,
Mother asserts that the court, in terminating her parental rights,
relies significantly upon the hope or expectation that the foster
parents will allow Mother to have ongoing contact with her
children. Such post-adoption contact however cannot be assured
if Mother’s parental rights are terminated. This inability to assure
[sic] contact between Mother and [the Children] prevents a finding
that the termination of Mother’s parental rights clearly and
convincingly serves the needs and welfare of [the Children].
Mother’s brief at 15-16. We disagree.
The record reveals that, throughout the history of this case, Mother has
inconsistently attended supervised visits with the Children. N.T., 10/10/17,
at 55. As best we can discern, Mother only attended two scheduled supervised
visits, both of which occurred in March of 2017. Id. at 16, 102. On a date
unspecified in the record, Mother returned to the State of Indiana and resided
with Father. Id. at 15. However, Mother communicates with the Children via
telephone and Skype at scheduled times approximately twice per week. Id.
at 69-70.
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Heather DiBenedtto, the foster care agency caseworker who visits the
Children in the foster home, testified that K.L. started receiving therapy in
January of 2017, when she was six years old, “because she was very
frustrated with mom moving to Indiana.” Id. at 69, 72. She testified that
K.L. “specifically told me in one of the home visits that she doesn’t understand
why mommy doesn’t want to visit them anymore and why she moved back to
Indiana.” Id. Ms. DiBenedetto testified that K.L. receives therapy once per
week, and she is making progress. Id. at 68-69.
Ms. DiBenedetto testified that the Children “had typical issues of
adjusting to foster care. At first they missed their mom especially. . . . [T]hey
talked about missing their birth mom and they were excited for visits with
her.” Id. at 66. However, she testified that the Children now “don’t talk about
their birth parents unless I ask them. [B.L.] has actually asked if she could
stay, has specifically requested to stay with the foster family, and [K.L.] will
say she wants to stay if she’s asked. She wouldn’t say that unless she’s asked
to.” Id.
Ms. DiBenedetto testified that the Children “are now calling [their foster
parents] mommy and daddy. It took a while to get to that point. [S.L.] called
them mommy and daddy for several months now. [B.L.] and [K.L.] started
consistently calling them mommy and daddy in June or July [of 2017]. Foster
mom said that they did that on their own.” Id. at 66-67.
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Ms. DiBenedetto testified that the older children, K.L. and B.L., then age
seven and five, have an appropriate understanding of adoption, and that they
wish to be adopted. Id. at 80. She stated that B.L. “has been saying that
way longer than K.L. has.” Id. In September of 2017, K.L. told her “she
would like to be adopted at this point.” Id.
Erin Frawley, the CYF caseworker who also visits the Children in their
foster home, testified that the Children “seem very comfortable” there. Id.
at 22. She continued:
I have seen the kids interact with the foster parents. They seem
very bonded to the foster parents. They refer to them as mom
and dad. They go to them for their needs. If they need help with
something, if they want something, they turn to the foster
parents. They are very comfortable doing so.
Foster father has a very playful attitude with the kids, and it is
very evident that they have a good bond with him and look
forward to him coming home from work so they can play.
Id. at 23. She further testified that, at her last visit with the Children on an
unspecified date, “[B.L.] and [K.L.] . . . informed me that though they care
deeply about their parents, the phone calls are becoming a burden to them.
They stated that they have to miss fun activities for phone calls that
sometimes don’t happen.” Id. at 25-26. Thus, the testimony of Ms.
DiBenedtto and Ms. Frawley demonstrates that, during eighteen months in
placement in their pre-adoptive home, K.L. and B.L. have adjusted to living in
the home and have developed a bond with their foster parents. Further, K.L.
and B.L. realize their need for adoption.
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In addition, Dr. Rosenblum’s interactional and individual evaluations of
the Children, their biological parents, and their foster parents in September of
2017, further demonstrates that the Children have a “secure attachment” to
their foster parents.5 He testified the Children have formed “a sense of
identity within [their foster] family.” Id. at 107. He opined that, after
eighteen months, the Children’s bond with their foster parents “is a stronger
bond than in many cases.” Id. at 126. He further testified that, “the older
two girls did comment that they don’t feel as connected to birth parents as
they do to foster parents.” Id. at 102. Dr. Rosenblum opined that K.L. and
B.L. have a “residual attachment” to their biological parents, and that K.L.’s
residual attachment is the stronger of the two. Id. at 103, 107. With respect
to S.L., the youngest child, Dr. Rosenblum testified that she “didn’t show much
of an attachment at all to birth parents.” Id. at 108.
Dr. Rosenblum performed an individual evaluation of K.L. on September
6, 2017. He testified as follows on direct examination.
Q. What did [K.L.] tell you about her home life when she was living
with her biological parents?
A. She spoke about being exposed to both substance abuse and
domestic violence in her family of origin. She specifically
mentioned how her father would have very severe outbursts of
aggressive behavior. He would start hitting her mom[.] [H]e
would start throwing things. She mentioned that she had gotten
[sic] hit by accident when her father threw things in the past.
____________________________________________
5 Dr. Rosenblum defined “secure attachment,” in part, as “a very active
exchange of affection.” N.T., 10/10/17, at 90.
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She also mentioned that he would smoke weed and regular
cigarettes. Her comment was [Father and Mother] would fight
and hurt us. In contrast, she spoke about feeling very safe and
secure in her foster home.
N.T., 10/10/17, at 90-91. Dr. Rosenblum testified that he diagnosed K.L. with
“unspecified trauma and stress[-]related disorder, and with an adjustment
disorder with anxiety.” Id. at 91. He explained, “there is no question in my
opinion that some of the trauma that she experienced while living with her
parents affected her self-esteem and her ability to feel good about herself.”
Id.
With respect to how she feels about Mother and Father, Dr. Rosenblum
testified that K.L. “has come to realize that . . . she cannot rely on her
biological parents because they don’t visit and they don’t keep their word.
And, in contrast, she has a very safe, secure, and predictable relationship with
her foster parents, and she knows that she can rely on them.” Id. at 93.
Importantly, he testified regarding K.L.’s preference regarding adoption, as
follows.
Q. Did you talk to K.L. about adoption?
A. I did.
Q. What did she tell you?
A. She said . . . that she would like to be adopted and live with
her current parents, her foster parents.
Id. at 93-94.
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Dr. Rosenblum likewise diagnosed B.L. with an unspecified trauma and
stress-related disorder, and an adjustment disorder with mixed disturbance of
emotions and conduct. Id. at 95. However, Dr. Rosenblum testified that she
is “not as anxious as her older sister, [K.L.], and she does tend to be
somewhat spunkier and more confident. . . .” Id. He testified that B.L. told
him as follows regarding her home life with her biological parents.
She repeated some of the same comments, that it was dangerous
there, that her dad kept throwing things at her. . . . She didn’t
feel that her parents could take care of her, her birth parents that
is, and she also commented that they just don’t visit her anymore.
She said her new parents don’t fight, but her old ones did, and
she was scared, and she has now moved to a different house
where it’s really nice. She also seemed to be aware that she may
get adopted and was viewing that in a positive manner.
Id. at 94-95.
While performing an interactional evaluation of the Children and their
foster parents, Dr. Rosenblum observed “a very strong, loving relationship
between them.” Id. at 89. He explained as follows.
There’s no question that [the Children] are very securely attached
to [the foster parents]. They refer to them as mommy and daddy.
There was evidence of a lot of affection.
...
I observed foster parents to be very effective in providing
nurturing, a lot of age-appropriate stimulation. As I said, there
was a lot of affection and a very close rapport and strong
connection, emotional connection between foster parents and the
children.
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Id. at 89-90. Dr. Rosenblum stated, “there are signs of healthy functioning
on the part of all three girls.” Id. at 112. He explained, “both of the girls that
I interviewed individually, [K.L.] and [B.L.], . . . they have trust and confidence
and want to remain in this home. This is again not to say that they don’t love
their birth parents, but the[ir] primary sense of trust and emotional
dependency has transferred clearly from birth parents to foster parents. . . .”
Id.
During his interactional evaluation of the Children with their biological
parents, Dr. Rosenblum observed that K.L. and B.L. “really enjoyed spending
time with birth parents.” Id. at 97. He stated that they “were very eager for
attention from [birth] parents.” Id. at 96. With respect to S.L., then age
three, he observed that she “seemed to be lost at times and did not receive
nearly the same degree of attention from birth parents as her older two sisters
did.” Id. at 96.
It is important to note that Dr. Rosenblum opined that, if Mother’s and
Father’s parental rights are terminated and K.L. and B.L. had no contact with
them at all, they would suffer “a further sense of loss and trauma. . . .” Id.
at 133. He still recommended terminating parental rights and freeing the
Children for adoption, but he recommended allowing the Children to have
continuing contact with Mother and Father. Id. at 113, 134, 141-144. He
testified as follows.
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Q. Do you believe the [C]hildren’s relationship with their parents
is so necessary and beneficial that this [c]ourt should not
terminate their rights?
A. No, I would not be able to say that it is so necessary and
sufficient. . . .
Id. at 136.
Finally, on cross-examination by Mother’s counsel, Ms. DiBenedetto
testified that the Children’s foster mother “said that they would be willing to
have post[-]adoption contact.” Id. at 76. However, contrary to Mother’s
contention, there is no evidence in the record that the orphans’ court
terminated her parental rights “upon the hope or expectation” of post-
adoption contact. Rather, the court found that “a significant bond and
relationship . . . exist[s] between the [C]hildren and the foster parents in so
much as [the Children] refer to them as mom and dad. Foster parents have
provided in the last 18 months a secure, safe environment that [the Children]
have longed for in terms of permanency. Trust and emotional dependency
has transferred to the foster parents, which I think is key in determining this
decision.” Id. at 167. The record and the relevant case law clearly support
these findings. Therefore, we conclude Mother’s argument on appeal is
without merit. Because we discern no abuse of discretion by the court, we
affirm the orders involuntarily terminating Mother’s parental rights.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2018
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