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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF L.P.J. IN RE: : IN THE SUPERIOR COURT OF
ADOPTION OF B.G.J. : PENNSYLVANIA
:
:
APPEAL OF: C.J., FATHER :
:
:
:
: No. 1053 WDA 2018
Appeal from the Order Entered June 13, 2018
In the Court of Common Pleas of Westmoreland County Orphans’ Court
at No(s): 132 of 2017,
133 of 2017
IN RE: ADOPTION OF L.P.J. IN RE: : IN THE SUPERIOR COURT OF
ADOPTION OF B.G.J. : PENNSYLVANIA
:
:
APPEAL OF: M.P.K., MOTHER :
:
:
:
: No. 1054 WDA 2018
Appeal from the Order Entered June 13, 2018
In the Court of Common Pleas of Westmoreland County Orphans'
Court at No(s): 132 of 2017,
133 of 2017
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2019
C.J. (“Father”) and M.P.K. (“Mother”) appeal from the orders dated and
entered June 13, 2018, granting the petitions filed by the Westmoreland
County Children’s Bureau (“WCCB” or the “Agency”) seeking to involuntarily
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terminate their parental rights to their minor children, L.P.J. (a daughter born
in July of 2011), and B.G.J. (a son born in December of 2013) (collectively,
the “Children”), pursuant to the Adoption Act, 23 Pa.C.S. § 2511. Pursuant
to Pa.R.A.P. 513, we have consolidated these appeals sua sponte. After
careful review, we affirm.
The Children were adjudicated dependent on July 29, 2014, and have
remained in Agency custody since that time. N.T., 6/13/18, at 6, 60-61. The
Agency had been working with both Father and Mother before assuming
custody of the Children. Id. When the Children came into custody, B.G.J.
was six months old, and L.P.J. was three years old. Id. The Children were
taken into Agency custody based on a history of domestic violence between
Father and Mother. Id. At the time of the adjudication hearing, Father was
incarcerated. Id. at 6, 61. Mother allowed herself to be involved in other
violent relationships, even at the time of the hearing. Id. at 62. Mother also
had a history of mental health and substance abuse concerns. Id. at 62-66.
While paternity formerly had been an issue, it was established through DNA
testing following the adjudication hearing. Id. at 80.
The Children initially were placed with S.D. and J.D. as foster parents,
but were subsequently removed from their care. N.T., 6/13/18, at 52.
Children were placed with T.D. (“Foster Mother”) on April 7, 2015. Id. At the
time of the termination petition hearing, the Children resided with Foster
Mother. Id.
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From the time of the adjudication hearing, Father and Mother were
minimally compliant and made minimal progress on their goals. N.T.,
6/13/18, at 6-11. On December 1, 2017, the Agency filed petitions to
involuntarily terminate Father’s and Mother’s parental rights to the Children.
On January 17, 2018, the trial court held a scheduling hearing regarding the
petitions. N.T., 1/17/18, at 1-8. Both Father and Mother appeared at the
scheduling hearing and stated that they were contesting termination. Id. at
2-3.
On June 13, 2018, the trial court convened the evidentiary hearing on
the petitions.1 Attorney Mary Ann Grec represented the Agency. Father was
present with his counsel, Attorney Emily Smarto. Mother was present with
her counsel, Attorney Ashley M. Lovelace. Attorney Diane Murphy was present
as the Children’s guardian ad litem (“GAL”). Attorney Kelly Eshelman was
present as the Children’s legal counsel.
At the hearing, the Agency presented the testimony of Lisa Zamborsky,
the in-home family specialist from Wesley Family Services, formerly Wesley
Spectrum Services. N.T., 6/13/18, at 11-12. The Agency then presented the
testimony of Rachael Graham, a licensed social worker with King and
____________________________________________
1 At the time of filing, the Agency’s Petition for Involuntary Termination of
parental rights for each parent alleged that grounds for termination existed
under 23 Pa.C.S. § 2511(a)(8) and (b). At the commencement of the
termination hearing, the Agency motioned the court to amend the petition
against only Father to also include grounds under Section 2511(a)(1). N.T.,
6/13/18, at 5-6. The trial court granted that motion. Id. at 6.
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Associates. Id. at 16. She formerly worked for the Agency as a parenting
and visitation specialist, and then as a therapist. Id. Next, the Agency
presented the testimony of Alexis Jacomen, a therapist with King and
Associates. Id. at 51. Finally, the Agency presented the testimony of Tara
Lorenzo, a caseworker with the Agency. Id. at 58-59. Mother presented the
testimony of Amanda Davis, a targeted case manager for behavioral health at
Westmoreland Casemanagement and Supports, Inc. (“WCSI”). Id. at 119-
120. Lastly, Father testified on his own behalf.
On June 13, 2018, the trial court entered orders involuntarily
terminating the parental rights of Father and Mother to L.P.J. and B.G.J.
pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (8), and (b).2 On
July 10, 2018, and July 12, 2018, Father and Mother, respectively, timely filed
notices of appeal from the termination orders as to the Children along with
concise statements of errors complained of on appeal. The trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).
In his brief on appeal, Father raises the following issues:
I. Whether the Honorable Trial Court erred in finding by clear and
convincing evidence that the moving party met it[s] burden under
23 Pa.C.S.A § 2511(b) that the best interests of the children are
met by terminating the Father’s parental rights?
____________________________________________
2 Despite the termination petition against Mother asserting grounds for
termination under Section 2511(a)(8), and the amended petition against
Father asserting grounds under Section 2511(a)(1) and (8), the trial court’s
order terminating the parental rights of Father and Mother indicated that it
was doing so under Section 2511(a)(1), (2), (8), and (b).
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II. Whether the Honorable Trial Court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating parental rights of Father under 23
Pa.C.S.A.§ 2511(a)(8)?
III. Whether the Honorable Court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating parental rights of Father under 23 Pa.C.S.A.
§ 2511(a)(2)?
IV. Whether the Honorable Trial Court erred in finding by clear and
convincing evidence that the moving party met its burden as to
terminating parental rights of Father under 23 Pa.C.S.A.
§ 2511(a)(1)?
Father’s Brief at 4.
In her brief on appeal, Mother raises the following issues:
1. Was clear and convincing evidence presented to show that
termination was warranted pursuant to 23 Pa.C.S.A. Sections
2511(a)(1), 2511(a)(2), 2511(a)(8) and 2511(b)?
2. Did the trial court err in terminating Mother’s parental rights
despite evidence that Mother had participated and made
significant progress in services provided?
3. Did the trial court err in terminating Mother’s parental rights by
relying upon unsubstantiated reports involving Mother and her
paramour?
4. Did the trial court err in terminating Mother’s parental rights by
failing to give primary consideration to the developmental,
physical and emotional needs and welfare of the children?
5. Did the trial court err in terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. §2511(a)(1) and 23 Pa.C.S.A.
§2511(a)(2) when the Petition for Involuntary Termination failed
to request termination pursuant to said sections?
Mother’s Brief at 4.
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In reviewing an appeal from an order terminating parental rights, we
adhere to the following standard:
[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to accept
the findings of fact and credibility determinations of the trial court
if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9
A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported,
appellate courts review to determine if the trial court made an
error of law or abused its discretion. Id.; R.I.S., [614 Pa. 275,
284,] 36 A.3d 567, 572 (Pa. 2011) (plurality opinion)]. As has
been often stated, an abuse of discretion does not result merely
because the reviewing court might have reached a different
conclusion. Id.; see also Samuel Bassett v. Kia Motors
America, Inc., 613 Pa. 371[, 455], 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a
decision may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., [608 Pa. at 28-
30], 9 A.3d at 1190. Therefore, even where the facts could
support an opposite result, as is often the case in dependency and
termination cases, an appellate court must resist the urge to
second guess the trial court and impose its own credibility
determinations and judgment; instead we must defer to the trial
judges so long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an error of
law or an abuse of discretion. In re Adoption of Atencio, [539
Pa. 161, 165,] 650 A.2d 1064, 1066 (Pa. 1994).
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012). The burden is upon
the petitioner to prove by clear and convincing evidence that the asserted
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grounds for seeking the termination of parental rights are valid. In re R.N.J.,
985 A.2d 273, 276 (Pa. Super. 2009). Moreover, we have explained:
[t]he standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).
This Court may affirm the trial court’s decision regarding the termination
of parental rights with regard to any one subsection of Section 2511(a). In
re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). “[W]e may affirm
the orphans’ court on any basis supported by the certified record.” In re
Adoption of Z.S.H.G., 34 A.3d 1283, 1288 (Pa. Super. 2011).
Here, we will focus on Sections 2511(a)(8),3 and (b), which provide, in
relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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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3 We note Mother’s argument on appeal regarding the absence of Sections
2511(a)(1) and (2) as grounds for termination in the petition filed against her.
Review of the record reflects that the termination petition filed against Mother
sought termination on the basis of Section 2511(a)(8) only. N.T., 6/13/18, at
4-5. The Agency has conceded this point. Agency’s Brief re: Mother at 22-
23. However, as will be discussed below, because the requirements of Section
2511(a)(8) have been met, we need not further discuss the omission of
Sections 2511(a)(1) and (a)(2) from the termination petition filed against
Mother. As noted, we may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of Section
2511(a). In re B.L.W., 843 A.2d at 384.
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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.
With regard to Section 2511(a)(8), in order to terminate parental rights,
an agency must prove by clear and convincing evidence:
(1) that the child has been removed from the care of the parent for
at least twelve (12) months; (2) that the conditions which had led to
the removal or placement of the child still exist; and (3) that
termination of parental rights would best serve the needs and welfare
of the child.
In re C.L.G., 956 A.2d 999, 1005 (Pa. Super. 2008) (en banc). Notably,
termination under Section 2511(a)(8) does not require an evaluation of a
parent’s willingness or ability to remedy the conditions that led to placement
of his or her children. In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa.
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Super. 2006). Instead, subsection 8, the subsection relevant to our
discussion, merely requires that the conditions “continue to exist.” In re S.H.,
879 A.2d 802, 807 (Pa. Super. 2005).
This Court has stated that the focus in terminating parental rights under
Section 2511(a) is on the parent, but under Section 2511(b), the focus is on
the child. In re Adoption of C.L.G., 956 A.2d at 1008. In reviewing the
evidence in support of termination under Section 2511(b), our Supreme Court
has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., 620 A.2d [481,] 485 [(Pa.
1993)], this Court held that the determination of the child’s “needs
and welfare” requires consideration of the emotional bonds
between the parent and child. The “utmost attention” should be
paid to discerning the effect on the child of permanently severing
the parental bond. In re K.M., 53 A.3d at 791.
In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
When evaluating a parental bond, “the court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, [S]ection 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). Although it is often wise to have a bonding evaluation and
make it part of the certified record, “[t]here are some instances . . . where
direct observation of the interaction between the parent and the child is not
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necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d
753, 762 (Pa. Super. 2008).
A parent’s abuse and neglect are likewise a relevant part of this analysis:
[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 [his or her] 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). Thus, the court may emphasize the safety needs
of the child. See In re K.Z.S., 946 A.2d 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). “[A]
parent’s basic constitutional right to the custody and rearing of . . . her child
is converted, upon the failure to fulfill his or her parental duties, to the child’s
right to have proper parenting and fulfillment of [the child’s] potential in a
permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d 847, 856
(Pa. Super. 2004).
Here, the trial court made the following findings:
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On findings that [Father] was violent and destructive, and
[Mother] in need of mental health services, services were ordered,
and the [C]hildren adjudicated dependent on July 29, 2014.
The [C]hildren were placed in foster care with [T.D., Foster
Mother,] on April 7, 2015. At that time[,] they were found to have
been exposed to verbal and physical domestic violence between
the parents which necessitated multiple police calls, and
[Mother’s] hospitalization. (Their other children, twin infants,
were removed in 2012 due to [Mother] feeling “overwhelmed.”)
Over the past three years[,] the parents have made no
perceivable progress toward alleviating the conditions under
which custody was lost. The [C]hildren have demonstrated almost
all of their development only when out of the parents’ custody.
THE CHILDREN
1. [L.P.J.] was not talking when removed from the parents,
even though she was almost four years of age. She was
diagnosed with development and post-traumatic stress
disorders. She became aggressive with her peers.
Only through services obtained while in foster care has
she made progress. She is now in the 1st grade with an
IEP.
[B.G.J.], now almost age five, attends Head Start and,
while in pre-adoptive status, is meeting developmental
norms. [B.G.J.] has come through severe infectious
diseases and lymph node surgery, although [Mother] did
not visit the hospital or attend surgery.
THE PARENTS
3. [Mother] was successfully discharged from drug
treatment in September of 2017, but thereafter did little to
re-establish herself as a caregiver. The permanency
review hearing of April 9, 2018, provided a clear
perspective, and the minimal compliance and failure to
demonstrate any progress provides the basis of this
termination order. All conditions outlined repeatedly in
permanency reviews were unabated by the time of [the]
termination hearing. These, in summary[,] are: [Mother]
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(a) failed to continue with drug screens
(b) quit her job
(c) failed to participate in mental health treatment
or domestic violence counselling
(d) continues to have multiple police incidents
(domestic violence, etc.)
(e) exhibited impulse behaviors at the most
important times – in an in-court interview hearing
[Mother] excused herself to go to the bathroom and
never returned.
4. [Father] has nine children in various places and
situations, but[,] in regard to the children herein, he has
had virtually no contact. He has adamantly refused
services, while compiling an extensive criminal history.
[Father] maintains he has done nothing wrong but he
admitted that “the system aggravates me”, and, in
substance, has not made any progress toward realistic
parenting goals – such as having a stable residence,
employment, remaining out of jail, etc., and maintaining
contact with the [C]hildren.
CONCLUSION
Since the dependency adjudication in July 2014, over
four years ago[,] each parent has demonstrated a
continuing incapacity (in [Mother’s] case) or refusal (in
[Father’s] case) to provide essential parental care, control
or subsistence needed by the [C]hildren for their physical
and mental wellbeing. All essential care has been provided
by others. Their failure and refusal to provide basic
parenting has been demonstrated clearly and convincingly
by an abundant flow of testimony that details the
opportunities afforded and rejected over nearly four years.
Lisa Zamborsky, of Wesley Family Services[,] was
contacted in February 2018 to supervise two hour visits
twice monthly. [Father] told her he was unable to attend
because he was “on bond, and needed to straighten out
some legal issues.” The contact remained open, but visits
never occurred.
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Rachel Graham, LSW, of King and Associates, is a
specialist in assessing parenting styles, etc., things such
as appropriateness, interactions, boundaries,
developmental levels and activities, etc.; she found that
the [C]hildren do not mention or react to [Father] with any
degree of emotion.
Ms. Graham also assessed [Mother]. She noted that the
[C]hildren would say no to hugs and kisses, and separated
without hesitation, even when [Mother] had “excessively
pushed for affection.” In contrast, their reaction to [Foster
Mother] was effusive and warm. She opined that the
[C]hildren would not be harmed developmentally by a
termination. Moreover, she recommended an ending of
supervised visits, believing that [Mother] lacked stability,
and was impervious to the safety risk of continually
exposing the [C]hildren to chaos and domestic violence.
(During this time[,] [Mother] secretly continued her
relationship with [Q.M., her paramour], even though he
was violent and abusive. Moreover, she was untruthful and
manipulative in her reporting, once taking [a] child into the
bathroom during a supervised visit to have them speak
with [Father] [on her phone], in violation of the rules of
parent-child supervised visits).
Alexis Jacomen, a therapist of longstanding with King
and Associates, was involved with the parents and both
children from September of 2014 until June 2018. The
[C]hildren, in her observation, have progressed
significantly, but in the near total absence of the birth
parents.
Tara Lorenzo, caseworker for the Westmoreland County
Children’s Bureau, was assigned to this case two years
ago. She related [Mother’s] history of domestic violence
victimization, mental health issues and treatment, and lack
of participation in treatment and services. Currently,
[Mother] does not have her own housing because she has
refused to separate herself from [Q.M.], who is abusive.
Amanda Davis of Westmoreland Case Management [sic]
has been the mother’s case manager since October 2017.
She testifies as to a great improvement by [Mother], and
progress in dealing with her personal issues – a bipolar
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personality disorder, depression, and alcohol abuse.
However, [Mother’s] belated progress is not a basis to
dismiss the petition. Further, efforts to reunify her would
be harmful to the wellbeing of the [C]hildren.
[Ms. Lorenzo] notes, as to [Father], his failure to
complete mental health services while on parole, his
arguing with providers, his failure to obtain employment
and housing, and his refusal to seek visits or have any
participation in the lives of the [C]hildren outside of a few
visits. (He has clearly “offloaded” the care of his children
to others; fortunately for these children, the foster parents
have tended to every issue of each child.) After about four
years, neither parent has demonstrated any basis on which
the [C]hildren should be returned; to the contrary, it is
clear that the parents’ rights should be terminated.
The grounds set forth in 23 Pa.C.S.A. § 2511 are clearly
established by clear and convincing evidence, and adoption
is clearly in the best interests of these children.
This memorandum is just an amplification of findings
and conclusions announced in court at the conclusion of
the Termination of Parental Rights hearing.
Trial Court Opinion, 9/28/18, at 1-5.
After careful review, we find that competent, clear and convincing
evidence in the record supports the trial court’s conclusion that the Children
have been removed from Father and Mother’s care for at least twelve months
and that the conditions which led to the removal of the Children still exist. In
re C.L.G., 956 A.2d at 1005. Furthermore, the evidence of record supports
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the trial court’s determination that termination of the parental rights would
best serve the needs and welfare of the Children.4 Id.
Moreover, when the trial court considered Section 2511(b), it
determined that termination of Father’s and Mother’s parental rights would
serve the Children’s best interests and that there is no bond between the
Children and Father and Mother, which if broken, would cause detriment to
the Children. Its conclusion is supported by clear, convincing, and competent
evidence in the record. In re: T.S.M., 71 A.3d at 267. Thus, we find no
abuse of discretion in the trial court’s termination of Father’s and Mother’s
parental rights to the Children pursuant to Sections 2511(a)(8), and (b). Id.
We, therefore, affirm the termination orders.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2019
____________________________________________
4Attorney Eshelman, counsel for the Children, stated on the record at the end
of the termination hearing that she interviewed the Children and that both
children indicated they wanted to be adopted by Foster Mother. N.T., 6/13/18,
at 192-193. Further, Attorney Murphy, GAL for both children, stated that it
was her opinion that it was in the best interest of the Children to terminate
Father’s and Mother’s parental rights. Id. at 193-194.
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