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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: N.R.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.C., MOTHER :
:
:
:
:
: No. 404 WDA 2018
Appeal from the Order February 16, 2018
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000008-2016
IN RE: C.M.K., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.C., MOTHER :
:
:
:
:
: No. 405 WDA 2018
Appeal from the Order February 16, 2018
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): CP-02-AP-0000009-2016
BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2019
K.C. (“Mother”) appeals from the orphans’ court’s February 16, 2018
orders granting the petition of the Allegheny County Office of Children, Youth,
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and Families (“CYF” or “Agency”) to involuntarily terminate her parental rights
to her minor daughters, N.R.L.1 and C.M.K.2 After careful review, we affirm.
N.R.L. was born in January 2009, and C.M.K. was born in August 2011.
The family has been known to CYF since February 2010 due to issues with
substance abuse, domestic violence, and reports that Mother was not able to
properly and safely care for N.R.L. C.M.K. and N.R.L. were removed from
Mother’s care on June 28, 2014, after CYF received reports that Mother had
left C.M.K. with an inappropriate caregiver.
Following a shelter care hearing, C.M.K. was to be returned to Mother,
but remained in CYF’s custody after both parents tested positive for alcohol
after court. C.M.K. was returned to Mother during July 2014, but she was
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1 On the same date, the orphans’ court denied CYF’s petition seeking to
terminate the parental rights of J.K.-T., the biological father of C.M.K. We
address CYF’s appeal of the orphans’ court’s February 16, 2018 order relating
to J.K.-T. in a separate memorandum. The orphans’ court previously
involuntarily terminated the parental rights of J.M.L., the biological father of
N.R.L. J.M.L. did not appeal of that order, nor is he a party to the instant
appeal.
2 Mother filed a single notice of appeal from the separate orders entered at
different action numbers relating to N.R.L. and C.M.K. respectively. Our
Supreme Court recently held that separate notices of appeal must be filed
where appeals have been taken from more than one trial court docket. See
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (“Rule 341(a)
will, in accordance with its Official Note, require that when a single order
resolves issues arising on more than one lower court docket, separate notices
of appeal must be filed. The failure to do so will result in quashal of the
appeal.”) However, since that holding applies prospectively from the date of
the High Court’s decision, June 1, 2018, we do not quash the instant appeals.
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removed from Mother’s care approximately one month later. The court
adjudicated N.R.L. and C.M.K. dependent on September 29, 2014. The sisters
live together in a pre-adoptive foster home.
In October 2014, Mother was arrested on drug charges and incarcerated
in the Allegheny County jail. C.M.K. remained in placement through January
2016,3 when CYF filed its first petitions seeking to involuntarily terminate
Mother’s parental rights to both children. The court convened hearings on the
petitions on May 13, 2016, and August 5, 2016. At the hearing, Eric Bernstein,
Psy.D., a child psychologist who had performed evaluations of the family, and
Veronica Shannon, a CYF caseworker, testified for CYF. Mother testified on
her own behalf.
Additionally, Mother presented the testimony of Neil Rosenbloom, Ph.D.,
a psychologist who had evaluated the family; Julia Ofrichter, an outpatient
therapist at Mercy Behavioral Health; Angela Terenzio, a social worker at
Second Chance; and Karen Hadix, an outpatient therapist employed by Three
Rivers Adoption Center. C.M.K.’s counsel presented the testimony of Maggie
Swartzfager, a therapist employed at the Youth Advocate Program, and Dawn
R. Paul, an elementary school teacher. Following the hearing, the court denied
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3Permanency review hearings were held in February 2015, May 2015, June
2015, August 2015, November 2015, February 2016, and August 2016.
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both the petitions as to Mother and C.M.K.’s father, and granted the petition
as to N.R.L.s’ father.4
CYF re-filed its petitions seeking to involuntarily terminate the parental
rights of Mother. The court convened hearings on the petitions on October
27, 2017, October 31, 2017, and January 23, 2018.5 CYF presented the
testimony of Police Officers William J. Fuller and Brian Taslov; Police Detective
Joseph Brown; Michelle Dobias, CYF caseworker; Dr. Eric Bernstein; Danielle
Lefevre; Scott Cunningham; and Maggie Swartzfager. Additionally, the court
admitted into evidence transcripts of the prior termination hearings. On
February 16, 2018, the court granted CYF’s petition as to Mother.
Mother filed a notice of appeal along with her statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On
appeal, Mother raises the following issues for our review:
I. Whether the trial court erred and/or committed a fatal error
and/or abused its discretion by finding that [CYF] had met their
burden of proof by clear and convincing evidence that the parental
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4 CYF appealed the denial of its termination petition to this Court, but withdrew
its appeal on January 10, 2017. See 1489 WDA 2016. However, the
concomitant appeals docketed at 1486 WDA 2016 and 1487 WDA 2016 were
not withdrawn, and this Court affirmed the orphans’ court’s finding that CYF
did not make reasonable efforts to finalize the permanency plan for C.M.K.
See In re C.K., 165 A.3d 935 (Pa.Super. 2017).
5 At the hearings, the legal interests of N.R.L. and C.M.K. were represented
by Attorney Rebecca Heaton Hall. See In re T.S., 192 A.3d 1080, 1082 (Pa.
2018) (reiterating, in contested termination of parental rights proceedings, 23
Pa.C.S. § 2313(a) requires appointment of counsel to represent child’s legal
interests, i.e., child’s preferred outcome).
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rights of [Mother] should be terminated pursuant to [23 Pa.C.S. §
2511(a)(2)]?
II. Whether the trial court erred and/or committed a fatal error
and/or abused its discretion by finding that [CYF] had met their
burden of proof and proved by clear and convincing evidence that
terminating the parental rights of [Mother] would best meet the
needs and welfare of N.R.L. and C.M.K. both now and in the future
as prescribed by [23 Pa.C.S. § 2511(b)]?
Mother’s brief at 1 (unnecessary capitalization and suggested answers
omitted).
We review cases involving the termination of parental rights according
to the following standards.
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) (internal citations and quotations
omitted).
Termination 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). To
affirm, we need only agree with any one of the subsections of 2511(a), as well
as subsection (b). See In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc).
As the trial court terminated Mother’s rights under § 2511(a)(2), we
focus our analysis on subsection (a)(2) and (b). Those subsections of 23
Pa.C.S. § 2511 provide:
(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.
To satisfy the requirements of Section 2511(a)(2), the moving party
must prove “(1) repeated and continued incapacity, abuse, neglect or refusal;
(2) that such incapacity, abuse, neglect or refusal caused the child to be
without essential parental care, control or subsistence; and (3) that the causes
of the incapacity, abuse, neglect or refusal cannot or will not be remedied.”
In Interest of Lilley, 719 A.2d 327, 330 (Pa.Super. 1998). The grounds for
termination are not limited to affirmative misconduct, but concern parental
incapacity that cannot be remedied. In re Z.P., 994 A.2d 1108, 1117
(Pa.Super. 2010). Parents are required to make diligent efforts toward the
reasonably prompt assumption of full parental duties. Id.
Mother contends that clear and convincing evidence does not support
the termination of her rights under § 2511(a)(2). Specifically, she blames
CYF for her inability to remedy her parenting incapacity. The crux of this claim
is that the service agency which provided trauma-based family therapy bore
a high turnover rate. Mother’s brief at 8-9. Essentially, she argues that, had
CYF insured that the family received family therapy in a reasonable amount of
time, she would have been able to accomplish reunification with N.R.L. and
C.M.K. Id. at 11-12. Mother’s clam is unpersuasive.
With regard to the evidence introduced at the hearing, the trial court
observed:
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First, CYF established that Mother is again involved in a romantic
relationship that involves domestic violence. Mother has been in
a long term relationship with her boyfriend, S.M. At Mother’s
evaluation in August 2017, Mother did not disclose any domestic
violence in her relationship with S.M. However, earlier in 2017,
Mother called the police to report an incident of domestic violence
identifying S.M. as the perpetrator. Mother informed the
responding officer that she and S.M. had been out drinking and
got into an argument on the way home. Mother reported that
S.M. threatened to crash the car to kill them both and then
proceeded to crash his vehicle into a parked car.
Second, and even more importantly, CYF established that Mother
fails to understand how prior domestic violence and the potential
for future domestic violence affects [N.R.L. and C.M.K.]
emotionally. Mother minimized [N.R.L.]’s complaints about
observing arguments between Mother and S.M. Dr. Bernstein
testified that “on a basic level, [the minimization] calls into
question [Mother’s] appreciation for [N.R.L.]’s sensitivity.”
Mother began attending family therapy in May 2017. She
attended six of fifteen scheduled appointments. Mother brought
S.M. to a family therapy session with [N.R.L. and C.M.K.]. As a
result, [N.R.L.] refused to participate in sessions with Mother. The
service provider ultimately discharged Mother as a client because
of failure to attend.
Trial Court Opinion, 5/14/18, at 6.
Thus, the record substantiates the conclusion that Mother’s repeated
and continued incapacity – namely, her inability to address the domestic
violence concerns that had so affected the children – has caused N.R.L. and
C.M.K. to be without essential parental control or subsistence necessary for
their physical and mental well-being. See In re Adoption of M.E.P., 825
A.2d 1266, 1272 (Pa.Super. 2003). Notwithstanding Mother’s attempt to shift
responsibility for her failures, the record supports the conclusion that she is
unable to recognize the dangers that domestic violence possess to her and
her daughters on the most basic level. See id. As Mother will not remedy
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this situation, the certified record supports the trial court’s finding that CYF
established the statutory grounds to terminate Mother’s parental rights
pursuant to § 2511(a)(2).
Next, we consider whether the needs and welfare of N.R.L. and C.M.K.
will be met by the termination of Mother’s parental rights. See Z.P., supra
at 1121. “In this context, the court must take into account whether a bond
exists between child and parent, and whether termination would destroy an
existing, necessary and beneficial relationship.” Id. The court is not required
to use expert testimony, and social workers and caseworkers may offer
evaluations as well. Id. Ultimately, the concern is the needs and welfare of
a child. Id. Where there is no evidence of a bond between the parent and
child, it is reasonable to infer that no bond exists. In re: K.Z.S., 946 A.2d
753, 763 (Pa.Super. 2008).
We have noted:
Before granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of relationships is also
important to a child, for whom severance of close parental ties is
usually extremely painful. The trial court, in considering what
situation would best serve the child[ren]’s needs and welfare,
must examine the status of the natural parental bond to consider
whether terminating the natural parents’ rights would destroy
something in existence that is necessary and beneficial.
Z.P., supra at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa.Super.
2000)). Love between a parent and child is not the sole determining factor,
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and love alone is not enough. In re J.L.C., 837 A.2d 1247, 1249 (Pa.Super.
2003). The court may also emphasize the safety needs of the child. K.Z.S.,
supra at 763 (affirming involuntary termination of parental rights, despite
existence of some bond, where placement with mother would be contrary to
child’s best interests).
As it relates to the trial court’s needs and welfare analysis, the court
observed:
In this matter, the evidence amply supported the [c]ourt’s
conclusion that termination of Mother’s parental rights served the
Children’s needs and welfare. At the conclusion of the hearing,
[N.R.L.] was 8 years old and had been in placement since age 5,
and [C.M.K.] was 6 years old and had been in placement since age
3. The Children have been thriving in a safe and stable
environment for the past three years. They have developed
strong bonds with their foster parents and foster sister.
Dr. Bernstein testified that both of the Children appear to have a
bond with Mother. However, he expressed concerns with the
health of each child’s bond with Mother. Dr. Bernstein ultimately
concluded that it was in the Children’s best interests to move
forward with termination of parental rights. In making this
recommendation, Dr. Bernstein pointed to Mother’s “history of []
volatility and explosiveness” and “her accompanying
engagements in domestic violence and/or acting out behavior.”
Dr. Bernstein also expressed concern regarding how Mother would
support the Children’s feelings and safety if they were placed in
her care. He expressed particular concern about how Mother
would support the Children should there ultimately be any future
domestic violence.
Trial Court Opinion, 5/14/18, at 7-8.
Here, Mother claims that the court abused its discretion by determining
that the needs and welfare of the children would be met by the termination of
her parental rights. Mother’s brief at 13. Mother contends that she had a
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close relationship with the children which included unsupervised visitation, and
that if her rights were terminated, her daughters would lose an important
relationship. See id. at 13-14. Mother’s arguments warrant no relief.
As noted above, the evidenced adduced during the hearings established
that while Mother had a bond with her daughters, particularly with C.M.K., it
was not a healthy bond, especially where Mother continued to subject the
children to romantic relationships where domestic violence was a prevailing
concern. In comparison, foster parents, foster sibling, and the children had a
strong and healthy bond, and the family provided for the needs and welfare
of both N.R.L. and C.M.K. See N.T., 10/27/17 at 97; N.T., 10/31/17, at 84-
86, 91-92. As we observed in In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010),
“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.” In light of the risks that Mother’s
behavior presents to the children and the beneficial relationships that the
children share with their foster family, it is obvious that their need for stability
and permanency would be best served by adoption. Thus, on this record,
clear and convincing evidence supports the trial court’s termination of
Mother’s parental rights with respect to § 2511(b), where adoption would best
serve the developmental, physical and emotional needs and welfare of N.R.L.
and C.M.K.
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For all of foregoing reasons, we affirm the decree terminating Mother’s
parental rights to N.R.L. and C.M.K. on the basis of § 2511(a)(2), and (b) of
the Adoption Act.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2019
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