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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE ADOPTION OF: P.H., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: P.H., MOTHER :
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:
: No. 59 MDA 2019
Appeal from the Decree Entered December 13, 2018
In the Court of Common Pleas of Cumberland County Orphans' Court at
No(s): 112 Adoptions 2018
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: MAY 21, 2019
P.H. (Mother) appeals from the decree involuntarily terminating her
parental rights to her minor child, P.H. (born October 2006) (Child), pursuant
to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b).1 After careful review, we
affirm.
We note that the trial court has accurately summarized the facts and
procedural history of this case. See Trial Court Opinion, 2/4/19, at 1-5.
Mother and Child first came to the attention of Cumberland County Children
and Youth Services (CYS or the Agency) on March 1, 2016, following Mother’s
arrest for allegedly threatening to shoot the employee of a local business. At
that time, Mother was uncooperative with responding officers, and there were
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1 By separate decree, the same day, the court voluntarily terminated the
parental rights of J.W. (Father). Father has not appealed the termination of
his parental rights and is not a party to this appeal.
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concerns regarding her mental health. Child, who was nine years old at the
time, was present during the incident. Mother was taken into custody and
directed Child not to answer any questions. Following Mother’s arrest, Child
was placed in a foster home, where she has resided since.
On March 14, 2016, Child was adjudicated dependent. Subsequently,
CYF caseworkers discovered that Mother and Child had been living “a nomadic
existence,” living “mainly in their car and from time to time in a motel.” Id.
at 1-2. Child was not enrolled in school, and Mother refused to provide any
information about Child’s medical history. As a result, CYS established family
service plan goals for Mother to cooperate with an assessment by Alternative
Behavior Consultants (ABC) and follow any recommendations, and obtain a
mental health evaluation and follow any recommendations. Mother’s visitation
with Child was to be supervised, with any phone calls between Mother and
Child to be monitored.
The court thereafter held periodic permanency review hearings and
found Mother’s compliance to be moderate, but her visits with Child to be
inconsistent because “initially, rather than have the visits supervised, Mother
chose not to visit with [C]hild at all.” Id. at 2. In December 2016, CYS filed
a petition seeking to change Child’s permanency goal to adoption. The trial
court denied the petition in order to give Mother more time to work toward
reunification. In October 2017, Mother gave birth to a second daughter, also
with the initials P.H. P.H. was adjudicated dependent, but remained in
Mother’s care with services provided by CYS. Additionally, Mother completed
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a comprehensive mental health evaluation, which indicated that Mother’s
“most likely clinical diagnosis . . . is a Paranoid Personality Disorder.” Id. at
4-5.
At the May 25, 2018 permanency review hearing, Child expressed a
desire to return to Mother, but also stated that reunification might not be “the
best idea” and that finality was more important to her. 2 See N.T., 5/25/18,
at 6. Child also indicated she would like to be adopted by her foster family.
Id. At the conclusion of the hearing, the trial court changed Child’s
permanency goal to adoption and suspended visitation between Mother and
Child. Mother appealed the permanency goal change, and ultimately this
Court affirmed. See Interest of P.H., No. 1009 MDA 2018 (unpublished
memorandum) (Pa. Super. Jan. 24, 2019).
On October 5, 2018, CYS filed petitions seeking to involuntarily
terminate the parental rights of both Mother and Father. On December 11,
2018, the petition was modified as to Father because Father was voluntarily
relinquishing his parental rights. On December 13, 2018, the court held a
hearing on the termination petitions. Child was represented by a guardian ad
litem and by legal counsel.3 Kristin Holdaway, Child’s counselor; Gan Fry, CYS
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2The notes of testimony from the permanency review hearing were admitted
as an exhibit during the termination hearing.
3This dual representation, as well as Child’s legal counsel ensuring that Child’s
preferences were placed on the record, satisfied the requirement that Child
have legal representation in contested termination proceedings. See In re
L.B.M., 161 A.3d 172 (Pa. 2017); see also In re T.S., 192 A.3d 1080, 1092
(Pa. Super. 2018).
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caseworker; and K.B., Child’s foster mother, testified for CYS. Mother,
represented by counsel, testified on her own behalf. Linda Wiser, court
appointed special advocate for Child, testified for the guardian ad litem.
At the conclusion of the hearing, the court entered a decree terminating
Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8),
and (b). Mother timely filed a notice of appeal and concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
On appeal, Mother presents the following issues for our review:
I. Whether the trial court abused its discretion and committed an
error of law when it found, despite a lack of clear and convincing
evidence, that sufficient grounds existed for a termination of
[Mother’s] parental rights under Section 2511(a) of the Adoption
Act, 23 Pa.C.S.A. § 2511(a)[?]
II. Whether the trial court abused its discretion and committed an
error of law in determining it would be in the child’s best interest
to have parental rights terminated, when it failed to primarily
consider [Child’s] developmental, physical and emotional needs
and welfare, thus contravening Section 2511(b) of the Adoption
Act, 23 Pa.C.S.A. § 2511(b)[?]
Mother’s Brief at 4 (unnecessary capitalization and answers omitted).
We review cases involving the termination of parental rights according
to the following:
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
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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 quotations omitted).
In addition, the review of the termination of a parent’s rights 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).
Here, the trial court terminated Mother’s parental rights under
subsections (a)(1), (2), (5), and (8), as well as subsection (b). It analyzed
its section (a) finding primarily under section (a)(8). Nevertheless, “w[e] . .
. may uphold a decision below if there exists any proper basis for the result
reached.” See Weber v. Lynch, 346 A.2d 363, 366 n.6 (Pa. Super. 1975),
affirmed, 375 A.2d 1278 (Pa. 1977), citing Hayes v. Wella Corp., 309 A.2d
817 (Pa. Super. 1973). Further, we have long held that to affirm the
termination of parental rights, we need only agree with the trial court as to
any one subsection of Section 2511(a), as well as Section 2511(b). In re
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B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Accordingly, we will
focus our analysis on subsection (a)(2).
The relevant subsections of 23 Pa.C.S.A. § 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
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S.A. § 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.”
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See 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.
In her first issue, Mother argues that the court erred in terminating her
parental rights pursuant to subsection (a)(2). See Mother’s Brief at 11-12.
Mother contends that despite mental health concerns and housing challenges,
she kept Child safe and educated her. Id. She also emphasizes that she
followed the recommendation to undergo cognitive behavioral therapy. Id.
Mother avers that it was error for the court to dismiss the progress she made,
including obtaining stable housing. Id. at 12.
The record belies Mother’s contentions. Although she is currently
attending therapy, Mother did not begin seriously pursuing mental health
treatment until after Child’s permanency goal was changed to adoption.
Additionally, the trial court stressed that despite the fact that Mother was
currently attending cognitive behavioral therapy, she still had “a long way to
go” before being able to appropriately parent Child. Trial Court Opinion,
2/4/19, at 7-9. The court stated that it was “never in a position to feel that it
would be safe to return [Child] to Mother,” who “remained guarded and
generally uncooperative with the Agency.” Id. at 7.
In addition to working toward mental health goals, Mother was required
to attend an educational parenting service; although she completed an
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evaluation, she did not participate further. See N.T., 12/7/18, at 16-17. The
objective was for Mother to meet Child’s daily basic needs, but she did not
progress beyond supervised visitation. Id. at 17.
Further, and as stated above, Dr. Kasey Shienvold, Psy.D., performed
the mental health evaluation of Mother and testified at the permanency review
hearing regarding Mother’s prognosis. Dr. Shienvold diagnosed Mother with
paranoid personality disorder, which is not curable, and cannot be improved
with medication. See N.T., 5/25/18, at 15-29. While Mother’s mental status
could improve, it would require motivation and commitment; Dr. Shienvold
was guarded in his belief that Mother could achieve long term success. Id. at
28-29. Dr. Shienvold also expressed concerns regarding the potential
emotional harm to Child if she were returned to Mother and had to be removed
again. Id. at 26.
The trial court detailed its findings and conclusions as follows:
[Child] had been in placement continuously for thirty-one (31)
months at the time the Agency filed its Petition for Involuntary
Termination in October of 2018. During those many months, we
were never in a position to feel that it would be safe to return her
to Mother. While Mother had obtained and maintained stable
housing throughout these proceedings, she remained guarded and
generally uncooperative with the Agency. [The court’s] consistent
concerns about her mental health also stood unresolved until we
received the testimony of Dr. Shienvold at the May 25, 2018
Permanency Review Hearing. [The court hoped that it] could send
[Child] home that day. But in light of Dr. Shienvold’s testimony,
we still could not reach that level of comfort . . .
[Child] had been homeless and out of school for most of the first
nine (9) years of her life. She has spent almost three (3) years
in a stable and safe environment since her placement. [The court
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was] not willing to remove her from that stable environment
without being able to ensure that Mother would maintain her
stability. As [the court] stated at the end of the May Permanency
Hearing:
[H]aving the report from Dr. Shienvold and his
testimony has made it clear what needs to be done by
Mother in order to assure that [Child is] emotionally,
as well as physically, safe. That is the
recommendation for Mother to participate in cognitive
behavioral therapy to address her paranoid
personality disorder. [The court is] satisfied that with
successful therapy Mother will be able to parent [the
baby] and provide her with a stable home.
Unfortunately, with regard to [Child], it has taken too
long to get to this point, and [C]hild, by her own
testimony, needs permanency . . .
Mother’s mental health issues inhibited her ability to provide
[Child] with an emotionally safe and stable environment. This was
the primary driver of [Child’s] dependency. Unfortunately, Mother
had not addressed her outstanding mental health needs. She
partially met that objective, at best, by obtaining a mental health
evaluation. However, until recently, she had not moved forward
with the recommended treatment. Instead, she bounced from
provider to provider in the hope of hearing exactly what she
wanted concerning her diagnoses and treatment
recommendations. 17 While she is now invested in the cognitive
behavioral therapy recommended by Dr. Shienvold, she has a long
way to go and remains unable to appropriately parent [Child]18 .
..
17Since March 19, 2018, Mother has been to no less
than 5 mental health providers.
18 [The court’s] major concern with returning [Child]
to Mother is Mother’s instability because of her mental
health issues and the resulting emotional damage that
would ensue to [Child] if she were to be placed again.
See Testimony of Dr. Shienvold, Permanency Review
Hearing, May 25, 2018, at 18:7-19:22.
Trial Court Opinion, 2/4/19, at 7-9 (footnotes in original).
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Upon review, we discern no error in the trial court’s finding that
competent, clear and convincing evidence supported the termination of
Mother’s parental rights pursuant to Section 2511(a)(2), based upon Mother’s
continued incapacity – namely, stability and mental health concerns that had
not been alleviated by the time of the termination hearing – that resulted in
Child being without essential parental care, the cause of which “cannot or will
not be remedied.” See Lilley, 719 A.2d at 330; Z.P., 994 A.2d at 1117.
Accordingly, we proceed to consider Child’s needs and welfare pursuant
to subsection (b). See Z.P., 994 A.2d 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.
We have stated:
[b]efore 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 the 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.
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Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011). Where there is no evidence of a bond between the
parent and child, it is reasonable to infer that no bond exists. Id. “[A] parent’s
basic constitutional right to the custody and rearing of . . . her child is
converted, upon the failure to fulfill . . . 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) (citations omitted).
Mother argues that it is not in Child’s best interests for Mother’s parental
rights to be terminated. See Mother’s Brief at 16. Mother contends that Child
has consistently expressed a desire to stay with Mother, and that there is a
bond between Mother and Child. Id. at 16-18. Mother claims that, given the
history of the case and the progress Mother has made with her mental health,
a bonding assessment should have been conducted, and the trial court erred
in failing to preserve the unity of the family. Id.
With regard to its subsection (b) analysis, the trial court stated:
[Child] is strongly bonded with Mother, [but it is] a somewhat
unhealthy bond. Mother instilled an “us versus the world”
mentality in [Child] until the time of Mother’s arrest and [Child’s]
placement. Her mental health issues created an environment in
which [Child] was programmed to be scared and untrusting of
others. At the time of the termination hearing, [Child] still
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continued to struggle with social cues and interactions due to her
upbringing under Mother. Interacting with other students at
school remained particularly hard for her. She even requested
help to learn how to appropriately interact with teachers and other
students.
Mother continued to be a toxic influence during [Child’s]
placement. In fact, she was found to be causing [Child’s]
behavioral outbursts, which would manifest only after contact
between the two.20 During the lulls in contact between [Child]
and Mother, [Child] behaved in her foster home. Since her contact
with Mother ceased, [Child] has done nothing less than thrive in
that home. She wants to be adopted by her foster parents. She
is loved by them and they stand ready to adopt her.
Sadly, even [Child], through her intelligence and maturity, came
to realize that she could not continue her life in limbo to wait for
Mother to address her mental health needs. She made it very
clear to [the court] in May that the uncertainty was no longer
bearable and that she needed to move on with her life with her
foster family . . . As her attorney represented, [Child] evidenced
that wish through her requests to not have any contact with
Mother . . . Moreover, she is strongly bonded with her foster
family. Based on [Child’s] own testimony and apparent strength,
[the court] found that severing the bond between her and Mother
was in [Child’s] best interest and that she would be able to
overcome the detrimental effects that the severance will have with
the love and support of her foster family.23
20 Mother encouraged [Child] to disrupt her placement
by making false accusations against the foster family.
This led to an investigation into the family, which was
closed as “unfounded[,”] and caused the foster family
to reconsider being an adoptive resource. However,
the foster family feels that [Child] is part of the family
and has chosen to remain as her adoptive resource.
She is thriving in their home.
23 [The court also believes] the expert’s testimony
that [Child’s] bond with her foster family is strong
enough to see [Child] through the emotional harm
that the severance will cause her . . .
Trial Court Opinion, 2/4/19, at 9-10 (italics and footnotes in original).
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The court’s assessment is supported by the record. Child testified at
the permanency review hearing that she wants “to make a decision. I don’t
really want to wait any longer. I want it to be adoption or with my mom. I’m
tired of waiting . . . I would always go back to my mom first. But if you think
that’s not the best idea, then I would go with – to adoption.” See N.T.,
5/25/18, at 6-7. Ms. Holdaway testified that although Child would suffer some
emotional harm or detriment if the bond were to be severed, Child’s bond with
her foster parents was strong enough to see her through that pain. See N.T.,
12/7/18, at 13. Conversely, Dr. Shienvold testified that he was concerned
about the emotional harm to Child that would result if she were returned to
Mother and then removed again. See N.T., 5/25/18, at 26.
The record further indicates that Child’s foster parents provide for her
emotional, physical, and mental well-bring. See N.T., 12/7/18, at 15-17.
Since being placed into care, Child’s understanding of social cues has
improved, she is doing well in school, has been working with a therapist, and
is involved in multiple after-school activities. Id. at 25-27. Child’s foster
family is a willing adoptive resource and loves her. Id. at 32.
Consistent with the foregoing, we discern no abuse of discretion in the
trial court’s conclusion that Child’s needs and welfare are best served by
termination. Accordingly, clear and convincing evidence supports the trial
court’s termination of Mother’s parental rights under Section 2511(a)(2) as
well as the Section 2511(b) finding that, although Mother and Child were
bonded, the bond was unhealthy, that termination would not cause permanent
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harm to the Child, and that adoption would best serve Child’s needs and
welfare. See Z.P., 994 A.2d at 1126-27.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2019
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