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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.M.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.A.M.S., MOTHER : No. 428 EDA 2018
Appeal from the Decree January 10, 2018
In the Court of Common Pleas of Lehigh County Orphans’ Court at No(s):
A2017-0029
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 08, 2018
J.A.M.S. (“Mother”) appeals from the decree entered January 10, 2018,
in the Court of Common Pleas of Lehigh County, which involuntarily
terminated her parental rights to her minor daughter, Z.M.S. (“Child”), born
in September 2011.1 Because our review of the record supports the findings
and conclusions of the orphans’ court, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
Child first came to the attention of the Lehigh County Office of Children
and Youth Services (“CYS”) when she was three years old after it received a
referral indicating that police officers discovered Child wandering the streets
without adult supervision. N.T., 9/25/17, at 14. Later, CYS discovered that
Mother’s boyfriend was a Tier III Megan’s Law offender. Id. CYS put a safety
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1 In its decree, the orphans’ court indicated that it entered a separate decree
that same day confirming the consent of Child’s father, D.H, to relinquish his
parental rights. See Decree, 1/10/18, at 2 n. (citing Adjudication, 1/10/18).
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plan in place, which prohibited Mother’s boyfriend from having unsupervised
contact with Child. Id. This included a provision prohibiting Mother’s
boyfriend from spending the night at her home. Id. at 15. Mother violated
the safety plan almost immediately, by allowing her boyfriend to spend the
night that very evening. Id. at 14-15. The juvenile court entered an order
for emergency protective custody on July 15, 2015, and adjudicated Child
dependent on September 29, 2015.
On June 19, 2017, CYS filed a petition to terminate Mother’s parental
rights to Child involuntarily. The orphans’ court conducted a hearing
September 25, 2017.2 Following the hearing, on January 10, 2018, the court
entered a decree terminating Mother’s parental rights. Mother timely filed a
notice of appeal on January 29, 2018, along with a concise statement of errors
complained of on appeal.
ISSUES ON APPEAL
Mother now raises the following claims for our review:
I. Did the [orphans’] court commit an error of law or abuse of
discretion in its determination that [CYS] sustained its burden of
proof by clear and convincing evidence that the statutory
standards set forth in 23 Pa. C.S.A. §2511(a)(1), (2), (5) and (8)
had been met?
II. Did the [orphans’] court commit an error of law or abuse of
discretion in its determination that [CYS] sustained its burden of
proof by clear and convincing evidence that the termination of
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2 During the hearing, Michael E. Moyer, Esquire, served as Child’s legal counsel
and guardian ad litem. In an order entered June 29, 2017, the orphans’ court
found that there did not appear to be any conflict between Child’s legal
interests and best interests.
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parental rights best meets the developmental, physical and
emotional needs and welfare of the child as required by 23 Pa.
C.S.A. §2511(b)?
Mother’ Brief at 4 (suggested answers omitted).
LEGAL ANALYSIS
We review a decree terminating parental rights involuntarily in
accordance with 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).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
involuntary termination of parental rights. It 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
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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 orphans’ court terminated Mother’s parental rights
pursuant to Section 2511(a)(1), (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
provides 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:
***
(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
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which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
Termination Pursuant to Section 2511(a)(2)
We first address whether the orphans’ 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.[] §
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).
On October 10, 2018, the Orphans’ Court granted the Petition to
terminate mother’s parental rights. The court based its Decree on Mother’s
failure to comply with nearly all of her court-ordered reunification goals by
failing to complete required services. The court expressed concern that
Mother focused her energy on maintaining a relationship with an untreated
sex offender rather than participating in services. The court particularly
emphasized Mother’s failure to complete non-offending parenting treatment,
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which would have aided her in recognizing and avoiding the threat that this
relationship poses to Child. See Decree, 1/10/17 (relying on Adjudication,
1/10/17); see Adjudication at 15-16.
Mother responds by touting her parenting abilities. Mother’s Brief at 13-
15. She argues that she was appropriate and caring toward Child during their
weekly, one-hour visits together, and that her abilities improved as time went
on. Id. Mother blames her failure to complete non-offending parenting
treatment on the treatment providers and CYS. Id. She suggests that she
may have been more likely to succeed in non-offending parenting treatment
if it emphasized individual rather than group therapy, and included referrals
for treatment of her depression and suspected post-traumatic stress disorder.
Id. at 14-15. Mother maintains that the CYS caseworker spent her time “lying
in wait,” trying to catch Mother with her boyfriend, rather than addressing
Mother’s needs and trying to help her. Id. at 14.
After a thorough review of the record in this matter, we conclude that
the Orphans’ court did not abuse its discretion. During the termination
hearing, CYS presented the testimony of caseworker, Laura Craig. Ms. Craig
testified that the trial court ordered Mother to complete a series of
reunification goals. N.T., 9/25/17, at 16. These goals included complying
with CYS; cooperating with visitation; participating in Child’s medical
appointments; working with in-home services; obtaining and maintaining a
safe and stable residence and a legal source of income; cooperating with non-
offending parenting treatment; and not allowing any contact between her
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boyfriend and Child until he successfully completes a sex offender treatment
program as confirmed by CYS. Id. at 16, 26.
Ms. Craig testified that Mother complied with at least some of these
goals. Mother attended all of her weekly, one-hour supervised visits with Child
and all of Child’s medical appointments. Id. at 26. CYS also referred Mother
for in-home services though JusticeWorks. Id. at 27. JusticeWorks
discharged Mother successfully, during a time when she was living with her
parents, working at a fast-food restaurant, and attending visits consistently.3
Id. at 27, 40.
However, Mother failed to comply with the remainder of her goals.
Concerning the goal that Mother obtain and maintain a safe and stable
residence, Ms. Craig testified that Mother moved repeatedly. Id. at 20-21.
She explained,
[Mother] was with her mom and dad at their house. She has said
that she was living in a tent. She said she was living with a friend
that she couldn’t get the address to. Back to her parents. And
then she recently said that she was living in Palmerton, but all of
her mail was being returned from Palmerton. And when I asked
her about that, she said that she then did move back with her
parents. So right now, she is staying with her parents.
Id.
Mother also failed to complete non-offending parenting treatment. Ms.
Craig testified that Mother began treatment at Confront. Id. at 18. Confront
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3 Ms. Craig testified that Mother obtained “a couple” jobs, including working
at the fast-food restaurant, but failed to keep them. N.T., 9/25/17, at 27, 45-
46.
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discharged Mother unsuccessfully in January 2016, due to her failure to attend
and participate consistently. Id. CYS then referred Mother to another
program at Forensic Treatment Services (“FTS”). Id. FTS discharged Mother
unsuccessfully in August 2016, due again to her failure to attend and
participate. Id. In addition, FTS discharged Mother due to her refusal to
acknowledge that she was still in a relationship with her boyfriend. Id. at 18,
44. Ms. Craig explained that CYS personnel continued to observe Mother and
her boyfriend together, even after Mother claimed that she had ended their
relationship. Id. at 18-20. Most recently, CYS sent certified mail containing
notice of the termination hearing to the boyfriend’s home, and Mother signed
for the mail.4 Id. at 20.
Ms. Craig further testified that the trial court ordered Mother to complete
a psychological evaluation before attempting another round of non-offending
parenting treatment. Id. at 55. The court ordered Mother to obtain the
evaluation in August 2016, but she failed to comply until March 2017. Id. at
55-56. Ms. Craig reported that FTS is now willing to accept Mother back for
further treatment, but not until she writes the program a letter “saying why
her treatment would be different this time.” Id. Mother claimed to Ms. Craig
that she sent FTS a letter “over the summer,” but FTS indicates that it has not
received it. Id. at 56-57.
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4 Ms. Craig noted that CYS never received any indication that Mother’s
boyfriend attended sex offender treatment. N.T., 9/25/17, at 16.
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Accordingly, the record confirms that Mother is incapable of parenting
Child and she cannot or will not remedy her parental incapacity. Mother failed
to maintain safe and stable housing for Child. More critically, Mother remained
in a relationship with an untreated sex offender and failed to complete two
separate non-offending parenting treatment programs. Mother’s suggestion
that she may have been more likely to complete treatment if it focused on
individual rather than group therapy and included certain referrals is pure
speculation and does not warrant reversal of the termination decree. By the
time of the hearing in this matter, Child had been in foster care for well over
two years, and was in need of permanence and stability. Because it is clear
that Mother will not be able to provide that permanence and stability at any
point in the foreseeable future, the record supports the findings and
conclusions of the orphans’ court with respect to Section 2511(a)(2).
Termination Pursuant to Section 2511(b)
We next consider whether the orphans’ court abused its discretion by
terminating Mother’s parental rights pursuant to Section 2511(b). We have
set forth the requisite analysis as follows:
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,
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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).
Our Supreme Court has noted that “[a]s with dependency
determinations, we emphasize that the law regarding termination of parental
rights should not be applied mechanically but instead always with an eye to
the best interests and the needs and welfare of the particular child[ ]
involved.” In re T.S.M., 71 A.3d 251, 268-69 (Pa. 2013).
This Court recognized in In re A.D., 93 A.3d 888, 897-98 (Pa. Super.
2014), that the “mere existence of an emotional bond does not preclude the
termination of parental rights,” and that “[t]he court may equally emphasize
the safety needs of the child under subsection (b).” Id. (citations omitted).
“Obviously, attention must be paid to the pain that inevitably results from
breaking a child’s bond to a biological parent, even if that bond is unhealthy,
and we must weigh that injury against the damage that bond may cause if left
intact.” In re. T.S.M, supra at 69.
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In the instant case, Mother contends that severing Child’s bond with her
would cause Child to suffer irreparable harm. Mother’s Brief at 18. She
maintains that CYS presented only minimal testimony as to the nature and
depth of this bond, which was inconclusive at best and irrelevant at worst. Id.
at 18-19. Mother insists that Child’s bond with her is more significant than
Child’s bond with her foster parents, as evidenced by Child’s practice of
referring to her as her “real Mommy,” and referring to her foster parents as
her “pretend Mommies.” Id. at 19.
The evidence considered by the court pertaining to the Child’s bond with
Mother included the following. Mother’s visitation coach, Shereeann Lewis-
McBean, testified that she began supervising Mother’s weekly, one-hour visits
in April 2016. N.T., 9/25/17, at 94. During the early visits, Mother and Child
would spend most of their time eating a snack, and “[t]here wasn’t much
engaging or anything productive.” Id. at 96-97. Mother would try to get
Child to hug her but Child would resist. Id. at 96. Ms. Lewis-McBean reported
that Mother is now better at engaging Child during visits and that Mother and
Child exhibit signs of bonding. Id. at 98. Child will sometimes be reluctant
to leave Mother when visits are over and will try to extend visits by beginning
new activities. Id. at 98-99. Child is also more willing to hug Mother and say,
“I love you,” at the end of visits, “without [Mother] having to pry it out of her.”
Id. at 99. Ms. Lewis-McBean added that Child seems confused by her
circumstances, and questions Mother frequently about “having multiple
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Mommies.” Id. at 99-100, 109. Child refers to Mother as her “real Mommy,”
and to her foster parents as her “pretend Mommies.” Id. at 100.
Child’s counsel presented the testimony of court-appointed special
advocate, Lisa Tejada. Ms. Tejada testified that she observed sixty-five of
Mother’s visits with Child. Id. at 112. Based on her observations, Ms. Tejada
did not believe that Mother and Child share a meaningful bond. Id. at 113.
She explained, “[Child] is reluctant to hug her mom at times. Very reluctant
to say I love you. Many times [Mother] will tell [Child] I love you, I love you,
quite a few times, and sometimes [Child] would respond and other times she
would just leave and not say anything.” Id. at 113-14. Ms. Tejada recalled
that one of Mother’s recent visits had to be cancelled, and that Child did not
appear to be disappointed or upset. Id. at 116.
Ms. Tejada further testified that Child is aware that her foster parents
may adopt her, and appears to be looking forward to the adoption. Id. at
116. She recalled that she and Ms. Craig (the CYS caseworker) visited Child
at her foster home recently, and during the visit, Child asked Ms. Craig
whether “she would be able to come back and be at her adoption.” Id. at
115-16
The Orphans’ court resolved the conflicting testimony regarding the
Child’s bond with Mother by concluding that the Child has “a fairly strong
emotional bond” with Mother. Adjudication, 1/10/18, at 19-21. As required
by Section 2511(b), the court weighed that conclusion against the Child’s need
for safety, stability, and security, and determined that termination would best
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serve Child’s needs and welfare. In reaching its determination, the court
weighed the Child’s bond with Mother against the damage that the bond may
cause to Child if left intact. Specifically, the court emphasized that Mother’s
failure to comply with reunification services, which included her failure to
complete non-offender’s parenting treatment, and her maintaining a romantic
relationship with a lifetime-registrant child sex offender—a relationship that
was the reason for the removal of the Child over two years prior to the
hearing—would not serve the safety needs of the Child. The court also
considered the positive and beneficial relationship Child has with her foster
parents, a pre-adoptive resource, as a factor weighing in favor of termination
for the sake of the Child’s needs and welfare.
Based on the foregoing, we conclude that the Orphans’ court did not
abuse its discretion by terminating Mother’s parental rights to Child
involuntarily. Therefore, we affirm the court’s January 10, 2018 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2018
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In the Interest of: Z.M.S., A Minor
Combined Opinion