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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: H.E.M., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF: R.E.B., MOTHER : No. 282 WDA 2018
Appeal from the Decree January 24, 2018
In the Court of Common Pleas of Blair County
Civil Division at No: No. 2017 AD 52
BEFORE: BOWES, J., STABILE, J., and STRASSBURGER*, J.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2018
R.E.B. (“Mother”) appeals from the decree entered January 24, 2018, in
the Court of Common Pleas of Blair County, which terminated involuntarily her
parental rights to her daughter, H.E.M. (“Child”), born in November 2016.1
After careful review, we affirm.
Blair County Children, Youth and Families (“CYF”) became involved with
Child due to an incident of domestic violence that occurred less than a week
after her birth. Specifically, Mother alleged that Father struck her while she
was holding Child. Mother filed a Protection From Abuse (“PFA”) petition, but
later withdrew it, prompting CYF to seek emergency custody. The trial court
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* Retired Senior Judge assigned to the Superior Court.
1 The decree also terminated the parental rights of S.P.M. (“Father”). Father
filed his appeal at Superior Court docket number 241 WDA 2018. We address
his appeal in a separate memorandum.
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granted emergency custody on December 8, 2016. The court entered a
shelter care order on December 15, 2016, and adjudicated Child dependent
by order entered December 28, 2016.
On December 12, 2017, CYF filed a petition to terminate Mother’s
parental rights to Child involuntarily. The trial court conducted a termination
hearing on January 23, 2018.2 The following day, the court entered a decree
terminating Mother’s parental rights. Mother timely filed a notice of appeal
on February 21, 2018, along with a concise statement of errors complained of
on appeal.
Mother now raises the following claims for our review.
1. Whether the Trial Court properly found by clear and convincing
evidence that [CYF] presented sufficient evidence to support
termination of the parental rights of the Mother[?]
2. Whether the Trial Court properly considered the bond between
the Mother and the child in making the decision to terminate her
parental rights[?]
Mother’s Brief at 1-2 (trial court answers omitted).
We consider Mother’s claims mindful of the following standard of review.
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
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2 During the hearing, Child had the benefit of a guardian ad litem (“GAL”).
The trial court concluded that the GAL could represent both Child’s legal and
best interests, given that Child was just over a year old. N.T., 1/23/18, at
45; see In re T.S., ___ A.3d ___, 2018 Pa. LEXIS 4374 at *27-28 (Pa. 2018)
(holding that a very young and pre-verbal child’s right to counsel is satisfied
when the trial court appoints an attorney-GAL who represents the child’s best
interests). We note that Child’s GAL did not submit her own appellate brief
but did send this Court a letter joining the arguments contained in CYF’s brief.
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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 governs involuntary termination of
parental rights. See 23 Pa.C.S.A. § 2511. 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
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 the instant matter, the trial court terminated Mother’s parental rights
pursuant to Section 2511(a)(2), (5), (8), and (b). In order to affirm, we need
only agree with the court as to any one subsection of Section 2511(a) as well
as Section 2511(b). 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
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decision to terminate pursuant to 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:
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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 begin by considering 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
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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).
In its opinion, the trial court concluded that CYF presented clear and
convincing evidence to terminate Mother’s parental rights involuntarily. Trial
Court Opinion, 3/7/18, at 22. The court reviewed the history of this case and
the relevant evidence at length. Id. at 6-21. The court reasoned that Mother
failed to cooperate with services and did not demonstrate desire or consistent
effort to remedy the conditions resulting in Child’s placement in foster care.
Id. at 22.
Mother contends that she complied with services from December 2016
through at least June 2017. Mother’s Brief at 2-3, 6-7. Mother acknowledges
that she failed to comply with services after June 2017 but insists that she
was “attempting” to comply by attending an intensive outpatient treatment
program addressing her substance abuse and mental health issues. Id. at 2-
3, 7.
Our review of the record reveals the following. After Child’s placement
in foster care and adjudication of dependency in December 2016, the trial
court ordered Mother to comply with a series of reunification goals. These
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goals included 1) cooperating with Family Intervention Crisis Services
(“FICS”); 2) undergoing a psychological evaluation; 3) continuing to receive
mental health treatment; and 4) completing the Women Aware non-offender
domestic violence program. Order of Adjudication and Disposition, 12/28/16,
at 5.
Initially, Mother made substantial progress toward completing her goals.
Mother complied with FICS reunification services by attending all meetings
and visits with Child. Permanency Review Order, 5/4/17, at 8. She also
participated in an evaluation with psychologist, Terry O’Hara, Ph.D. Among
other things, Dr. O’Hara recommended that Mother provide drug screens and
complete a substance abuse evaluation. Psychological Evaluation Report,
4/27/17, at 29.
Mother’s progress began to deteriorate during the second half of 2017.
Mother entered an intensive outpatient treatment program, through which she
received substance abuse and mental health treatment. Permanency Review
Order, 6/21/17, at 8; Permanency Review Order, 11/8/17, at 9. However,
many of her drug screens were positive for marijuana and the program
discharged her unsuccessfully on two occasions due to her lack of attendance.
Permanency Review Order, 11/8/17, at 9-10; Permanency Review Order,
12/19/17, at 2-3. Mother ceased attending meetings with FICS reunification
services, which then also discharged her unsuccessfully. Permanency Review
Order, 11/8/17, at 9-10; Permanency Review Order, 12/19/17, at 2-3.
Mother filed PFA petitions against Father in June 2017 and August 2017.
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Permanency Review Order, 6/21/17, at 8; Permanency Review Order,
11/8/17, at 8-9.3 Mother later withdrew the June 2017 petition, but obtained
a final PFA order with respect to the August 2017 petition. Permanency
Review Order, 11/8/17, at 9. Despite this order, Mother resumed living with
Father, and another incident of domestic violence occurred in December 2017.
Permanency Review Order, 12/19/17, at 2.
Dr. O’Hara conducted a reevaluation of Mother in September 2017 and
found no evidence that she would be able to provide appropriate care for Child
within a reasonable time. Psychological Evaluation Report, 11/8/17, at 16.
Dr. O’Hara expressed concern regarding Mother’s positive drug screens and
her failure to comply with services. Id. at 14-16. He reported that Mother
was highly defensive and externalized responsibility for her circumstances.
Id. at 16. He also observed that Mother continued to experience domestic
violence issues despite completing the Women Aware program. Id.
Mother remained noncompliant at the time of the termination hearing.
For at least the third time, Mother’s intensive outpatient treatment program
discharged her unsuccessfully. N.T., 1/23/18, at 10. Mother’s relationship
with Father also continued to be a concern. Father filed a PFA petition against
Mother alleging that she threatened his life. Id. at 12, 25. Ominously, Mother
had moved into a new home that was approximately one block away from
Father’s home. Id. at 7.
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3 In its permanency review order entered November 8, 2017, the trial court
changed Child’s permanent placement goal to adoption.
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Thus, the record supports the trial court’s findings pursuant to Section
2511(a)(2). While Mother made initial progress toward completing services,
she failed to maintain that progress. Mother failed to cooperate with both
FICS reunification services and her intensive outpatient treatment program,
resulting in at least three unsuccessful discharges. Mother also continued to
pursue a relationship with Father as recently as December 2017, despite the
existence of a final PFA order against him. While Mother argues that she was
“attempting” to comply with services, the record disproves this claim. Child
entered foster care in December 2016, the month after she was born, and has
remained there ever since. Because it is clear that Mother will not remedy her
parental incapacity and resume caring for Child at any point in the foreseeable
future, we conclude that the court did not abuse its discretion.
We next consider whether the trial court abused its discretion pursuant
to Section 2511(b). The requisite analysis is 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,
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
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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).
The trial court found that Mother’s visits with Child go well but concluded
that Mother and Child do not share a bond. Trial Court Opinion, 3/7/18, at
22-23. To the extent Mother and Child do share a bond, the court found that
their bond is not strong, because Child lived with Mother for only the first few
weeks of her life, and spent only a limited amount of time with her during
supervised visits. Id. The court found that Child shares a bond with her pre-
adoptive foster parents, with whom she has lived since December 2016. Id.
at 23.
Mother contends that the trial court failed to consider evidence proving
that she and Child do share a bond. Mother’s Brief at 3, 8-9. Mother directs
our attention to testimony presented during the termination hearing and prior
dependency proceedings that her visitation with Child goes well and that she
behaves in a loving and nurturing manner. Id. at 9.
We again discern no abuse of discretion by the trial court. As Mother
argues, it was undisputed during the termination hearing that her visits with
Child go well. Mother presented unrebutted testimony describing her positive
interactions with Child and opined that they share a bond. N.T., 1/23/18, at
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32-33. CYF casework supervisor, Scott Brumbaugh, confirmed that Mother is
“very loving and nurturing” toward Child. Id. at 9.
However, as discussed above, Child was born in November 2016 and
entered foster care in December 2016. By the time of the hearing, Child was
just over a year old. Child had spent nearly her entire life in foster care, and
her only consistent experience of Mother had been supervised visits. Under
the circumstances, it was reasonable for the trial court to conclude that Mother
and Child do not share a necessary and beneficial bond. See In re K.Z.S.,
946 A.2d 753, 764 (Pa. Super. 2008) (observing that the relationship between
K.Z.S. and his mother “must be fairly attenuated,” given that K.Z.S. had been
in foster care most of his young life, and that he had only limited contact with
his mother during that time). As this Court has emphasized, “a child develops
a meaningful bond with a caretaker when the caretaker provides stability,
safety, and security regularly and consistently to the child over an extended
period of time.” Matter of Adoption of M.A.B., 166 A.3d 434, 449 (Pa.
Super. 2017). Child’s pre-adoptive foster parents have been her primary
source of stability, safety, and security throughout her life. Thus, the record
supports the court’s finding that Child shares a significant bond with her foster
parents and that terminating Mother’s parental rights will best serve Child’s
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needs and welfare by allowing her to achieve permanence through adoption
into their family.4
Based on the foregoing, we conclude that the trial court did not abuse
its discretion by terminating Mother’s parental rights involuntarily. Therefore,
we affirm the court’s January 24, 2018 decree.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2018
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4We note that Dr. O’Hara’s testimony during the permanency review hearing
on October 31, 2017, supports this conclusion.
Well I think there is some limitation of me responding to this as I
have no[t] been able to observe either party with [Child] since
March of 2017. There have been reports from FICS’ perspective
that overall both parties do well with [Child]. It would be my
opinion that yes there would be some detriment if termination
were ever to occur. I think based on the parents[’] interactions
with their daughter that there would be some potential detriment
for [Child] here. On the other hand, it is my opinion at this point
that there are so many ongoing pervasive significant concerns that
the concerns from my perspective and the risk factors for [Child]
if she were to be placed with her parents these concerns would
outweigh any potential detriment.
N.T., 10/31/17, at 13-14.
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