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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: K.B.T. : PENNSYLVANIA
:
APPEAL OF: E.T., NATURAL MOTHER :
:
:
:
:
: No. 1149 WDA 2018
Appeal from the Decree Entered July 17, 2018
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
No. 42 of 2018
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF
OF: B.K.T., JR. : PENNSYLVANIA
:
:
APPEAL OF: E.T., NATURAL MOTHER :
:
:
:
: No. 1667 WDA 2018
Appeal from the Decree Entered October 19, 2018
In the Court of Common Pleas of Erie County Orphans' Court at No(s):
84 In Adoption 2018
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 27, 2019
Appellant, E.T. (“Mother”), files these consolidated appeals from the
decree dated July 16, 2018, and entered July 17, 2018, and the decree dated
October 18, 2018, and entered October 19, 2018,1 in the Erie County Court of
____________________________________________
1The subject decrees were dated July 16, 2018 and October 18, 2018.
However, notice pursuant to Pa.R.C.P. 236(b) was not provided until July 17,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Common Pleas, granting the petitions of the Erie County Office of Children and
Youth (“OCY” or “the Agency”) and involuntarily terminating her parental
rights to her minor, dependent sons, K.B.T., born in March 2017, and B.K.T.,
Jr., born in January 2018 (collectively, the “Children”). As to K.B.T., Mother’s
parental rights were terminated pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5),
(8), and (b). As to B.K.T., Jr., Mother’s parental rights were terminated
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b).2 In addition, on March
22, 2019, counsel for Mother (“Counsel”) filed petitions to withdraw and an
Anders3 brief, averring that the within appeal is frivolous. After review, we
grant Counsel’s motions to withdraw, and affirm the trial court’s decrees.
Mother filed separate appeals as to each child and the trial court filed
separate opinions. This Court consolidated Mother’s appeals sua sponte and
we, therefore, address Mother’s appeals together. First, we address K.B.T.
____________________________________________
2018 and October 19, 2018. Our appellate rules designate the date of entry
of an order as “the day on which the clerk makes the notation in the docket
that notice of entry of the order has been given as required by Pa.R.C.P.
236(b).” Pa.R.A.P. 108(b). Further, our Supreme Court has held that “an
order is not appealable until it is entered on the docket with the required
notation that appropriate notice has been given.” Frazier v. City of
Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999).
2 By separate decree dated July 16, 2018, and entered July 17, 2018, the trial
court involuntarily terminated the parental rights of the unknown biological
father of K.B.T. Further, by separate decree dated October 10, 2018, and
entered October 19, 2018, the parental rights of K.C. (“Father”), the biological
father of B.K.T., Jr., were voluntarily relinquished. Neither K.C. nor any known
biological father has filed an appeal or is a party to the instant appeals.
3 Anders v. California, 386 U.S. 738 (1967).
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The trial court summarized the procedural and factual history relevant
to K.B.T., in part, as follows:
PROCEDURAL HISTORY AND FACTS
K.B.T. was born [in March 2017], son of [Mother] and an unknown
biological father. K.B.T. was the subject of an [e]mergency
[p]rotective [o]rder dated March 24, 2017. At a Shelter Care
Hearing on March 27, 2017, sufficient evidence was presented
that return of the child to the home of [Mother] was not in the
best interest of the child. At the time of the hearing, an individual
named K.C. was added as the putative father.
K.B.T. was adjudicated a dependent child on April 10, 2017,
following a hearing on April 6, 2017. The mother stipulated to the
adjudication and continued placement of her son. The grounds
for the adjudication were:
a) [Mother] had significant cognitive limitation which
affected her ability to safely parent the child. Further, the
mother reported she was unable to remember her daily
activities.
b) [Mother] reportedly suffered from several mental health
diagnoses including schizophrenia, bipolar disorder, anxiety
and depression. The mother was not actively seeking
mental health treatment, but has since engaged in mental
health treatment and medication management.
c) [Mother] has a history of unstable housing and
homelessness.
d) [Mother] was residing with multiple individuals who had
lengthy histories with OCY, including one who was an
indicated perpetrator of abuse.
The [j]uvenile [c]ourt [h]earing [o]fficer proceeded to a
[d]ispositional [h]earing following the April 6, 2017 [a]djudication
[h]earing. The following treatment plan was ordered by the
[c]ourt:
1. Complete the Erie Homes for Children and Adults parent
skills education program and demonstrate the ability to
provide for the health, safety and welfare of the child;
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2. Obtain safe and stable housing;
3. Obtain employment or provide verification of alternative
income;
4. Participate in a mental health assessment and follow all
recommendations to include counselling, [and] medication
management, and demonstrate mental health stability and
the ability to maintain the child’s safety through exercise of
good judgement;
5. Participate in an agency approved anger management
program; and,
6. Inform the [A]gency of the identity of all household
members.
The [c]ourt ordered the child’s permanent placement goal to be
return to parent or guardian. The [c]ourt also ordered that K.C.
submit to paternity testing to determine if he was the biological
father of the minor child. A three (3)[-]month [p]ermanency
[r]eview hearing was to be scheduled.
On July 24, 2017, the initial [p]ermanency [r]eview [h]earing took
place. At the time of the hearing, [M]other was not present, but
was represented by counsel. The [c]ourt found that there had
been moderate compliance by [M]other with the permanency
plan.
The [c]ourt [o]rdered the following permanency plan for [M]other:
1. Complete the Erie Homes for Children and Adults parent
skills education program and demonstrate the ability to
provide for the health, safety, and welfare of the child;
2. Secure and/or maintain safe and stable housing;
3. Follow all psychological/psychiatric recommendations to
include the counselling, medication management, and
demonstrate mental health stability and the ability to
maintain the child’s safety through exercise of sound
[judgment];
4. Inform the [A]gency of the identity of all household
members, and;
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5. Obtain a drug and alcohol assessment and follow through
with all recommendations to include participation in the
Esper Treatment Center’s Random Urinalysis Program.
The [c]ourt ordered that the child’s permanent placement goal
was to return to parent or guardian. The [c]ourt also ordered that
T.Y. be added as a party to the action and was ordered to submit
to paternity testing to determine if he was the biological father of
the minor child. K.C. was again also ordered to submit to
paternity testing. A three[-]month [p]ermanency [r]eview
hearing was to be scheduled.
On August 25, 2017[,] K.C. was excluded as biological father to
the minor child through genetic testing.
On August 28, 2017, pursuant to a [m]otion to [c]hange
[t]reatment [p]lan, the [c]ourt ordered that [M]other undergo a
[p]sychological [e]valuation with Dr. Peter von Korff and follow all
recommendations. All remaining provisions of the July 28, 2017
[p]ermanency [r]eview [o]rder remained effective.
On September 28, 2017[,] T.Y. was excluded as biological father
to the minor child through genetic testing.
On October 25, 2017[,] the second [p]ermanency [r]eview
[h]earing took place. At the time of the hearing, [M]other was
present and represented by counsel. The [c]ourt found that there
had been minimal compliance by [M]other with the permanency
plan and minimal progress towards alleviating the circumstances
which brought the child into placement.
The [c]ourt ordered the following permanency plan for [M]other:
1. Complete the Erie Homes for Children and Adults parent
skills education program and demonstrate the ability to
provide for the health, safety, and welfare of the child;
2. Secure and/or maintain safe and stable housing;
3. Follow all psychological/psychiatric recommendations to
include counselling, medication management, and
demonstrate mental health stability and the ability to
maintain the child’s safety through exercise of sound
[judgment];
4. Inform the Agency of the identity of all household
members;
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5. Refrain from the use of drugs and/or alcohol [and] submit
to random urinalysis testing through the color code program
at the Esper Treatment Center;
6. Assist the Agency in obtaining her psychiatric evaluation
from Safe Harbor Behavioral Health; and,
7. Participate in a cognitive assessment with an
Agency[-]recommended provider.
The [c]ourt ordered the child’s permanent placement goal was to
return to parent or guardian. The [c]ourt also ordered that T.Y.
and K.C. be removed as parties to the action as it had been
determined that neither was the biological father of the minor
child. It was ordered that W.K. be added as a party to the action,
and he was directed to submit to paternity testing to determine if
he was the biological father of K.B.T. A five (5)[-]month review
hearing was to be scheduled.
The third [p]ermanency [h]earing took place on March 28, 2018.
[Mother] was present and represented by counsel. Following
testimony, the [c]ourt determined that there had been no
compliance by [M]other with the permanency plan. Due to the
lack of proper compliance by [M]other with the permanency plan,
and the length of the child’s placement, the [c]ourt changed the
permanent placement plan to [a]doption. OCY was no longer to
offer services, including visitation, to [M]other.
The Agency filed a [p]etition to [i]nvoluntarily [t]erminate the
[p]arental [r]ights of [Mother] on April 12, 2018.[4] At that point,
K.B.T. had been in placement for over 12 months, and [M]other
had made minimal, at best, compliance with the treatment plan.
[M]other had demonstrated an inability to remedy the conditions
which brought the child into the care of the Agency. The grounds
alleged by the Agency in its [p]etition were pursuant to 23
Pa.C.S.[] § 2511 (a)[(1)], (2), (5), (8), and 2511 (b).
...
Trial Court Opinion (K.B.T.), 9/26/18, at 1-5 (emphasis added).
____________________________________________
4 The Agency additionally sought to terminate the parental rights of the
unknown biological father, which, as indicated, were terminated by separate
decree dated July 16, 2018, and entered July 17, 2018.
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On July 12, 2018, the trial court conducted a hearing on the termination
petition. Mother was present and represented by counsel, Bryan L. Spry,
Esquire.5 In support thereof, the Agency presented the testimony of: Peter
von Korff, Ph.D., a clinical psychologist who conducted a psychological
evaluation of Mother at the request of the Agency;6 Tina Ferraro, the director
____________________________________________
5 K.B.T. was represented by legal counsel as well as a guardian ad litem during
this proceeding. There is no evidence of an attempt to discern K.B.T.’s
preference, as K.B.T. was under a year and a half old at the time of the hearing
and too young to express a preference. As such, we find the requirements of
23 Pa.C.S. § 2313(a) satisfied. See In re Adoption of L.B.M., 639 Pa. 428,
432, 441-42, 161 A.3d 172, 174-75, 180 (2017) (plurality) (stating that,
pursuant to 23 Pa.C.S. § 2313(a), a child who is the subject of a contested
involuntary termination proceeding has a statutory right to counsel who
discerns and advocates for the child’s legal interests, defined as a child’s
preferred outcome); see also In re T.S., ___ Pa. ___, 192 A.3d 1080, 1089-
90, 1092-93 (2018) (finding the preferred outcome of a child who is too young
or non-communicative unascertainable in holding a child’s statutory right to
counsel not waivable and reaffirming the ability of an attorney-guardian ad
litem to serve a dual role and represent a child’s non-conflicting best interests
and legal interests); cf. In re Adoption of T.M.L.M., 184 A.3d 585, 587-91
(Pa. Super. 2018) (vacating and remanding for further proceedings where the
attorney admitted she did not interview the six-year-old child to ascertain the
child’s preferences); In re Adoption of M.D.Q., 192 A.3d 1201 (Pa. Super.
2018) (vacating and remanding where the record does not indicate that
counsel attempted to ascertain the children’s preferences and the record does
not reflect the children’s legal interests); In re Adoption of D.M.C., 192 A.3d
1207 (Pa. Super. 2018) (vacating and remanding where the record was
unclear in what capacity the attorney had been appointed to represent the
children and whether the attorney had ascertained the children’s legal
interests prior to the hearing).
6Counsel stipulated to Dr. Korff’s expertise in the area of adult psychology.
N.T., 7/12/18, at 4. Dr. Korff’s report, dated November 6, 2017, was admitted
without objection as Exhibit 9. Id. at 3, 5.
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of Project First Step through Erie Homes for Children and Adults;7 and
Shannon Spiegel, an Agency caseworker. Mother testified on her own behalf.
By decree entered July 16, 2018, the trial court involuntarily terminated
the parental rights of Mother to K.B.T. pursuant to 23 Pa.C.S. Section
2511(a)(1), (2), (5), (8), and (b). On August 13, 2018, Mother, through
Attorney Spry, filed a notice of appeal. Attorney Spry filed a Statement of
Intent to File Anders Brief in Lieu of Statement of Errors Complained of on
Appeal pursuant to Pa.R.A.P. 1925(c)(4) and In re J.T., 983 A.2d 771 (Pa.
Super. 2009).8
The trial court summarized the procedural and factual history relevant
to B.K.T., Jr., in part, as follows:
PROCEDURAL HISTORY AND FACTS
____________________________________________
7 Ms. Ferraro, along with Lisa Kobusinski, a family specialist, issued reports
dated October 5, 2017, and March 6, 2018. We observe that, while there is
an indication on the record that these reports were made part of the record,
id. at 20, and they are included as Exhibit 10 with the certified record,
nowhere is this exhibit officially marked and admitted.
8 We observe that Attorney Spry filed a motion to withdraw as counsel with
this Court on September 19, 2018. The motion to withdraw was granted on
September 26, 2018. Notably, current counsel on appeal, Wayne G. Johnson,
Esquire (“Counsel”), filed an entry of appearance on September 19, 2018.
Subsequently, on December 3, 2018, this Court remanded this matter to
determine if counsel had abandoned Mother and to protect Mother’s appeal
rights, as counsel failed to file a brief. By correspondence dated December
10, 2018, the trial court advised that it determined that Attorney Johnson did
not abandon Mother.
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B.K.T., Jr. was born [in January 2018], son of [Mother] and the
father, K.C. The child was placed in protective custody on January
22, 2018. The placement was necessitated by [M]other’s unstable
mental health; unstable housing and homelessness; her inability
to appropriately parent; [M]other’s limitations that affected her
ability to care for herself and a child. B.K.T., Jr., was subsequently
adjudicated dependent for the same reasons that justified the
protective placement in OCY custody.[9]
...
After B.K.T.’s adjudication as dependent, the treatment plan
ordered for [M]other involved[] drug screens; mental health
services; parenting skills training through Project First Step;
following through with Dr. Peter von Korff’s recommendations, as
well as those made by mental health providers.
...
Trial Court Opinion (B.K.T., Jr.), 1/31/19, at 1-2 (citations to record omitted).
On July 30, 2018, the trial court held a permanency review hearing.
Mother’s compliance with the permanency plan was found to be minimal and
her progress toward alleviating the circumstances that led to placement was
found to be minimal. B.K.T.’s custody and placement were maintained. See
Exhibit 4, 10/11/18, Order of Adjudication and Disposition, 3/1/18.
____________________________________________
9B.K.T., Jr., was adjudicated dependent pursuant to order dated February 26,
2018, and entered March 1, 2018. See Exhibit 3, 10/11/18, certified
dependency docket; see also Exhibit 4, 10/11/18, Order of Adjudication and
Disposition, 3/1/18. B.K.T.’s placement was thereafter maintained. His
permanent placement goal was to return to parent or guardian with a
concurrent goal of adoption. See Exhibit 4, 10/11/18, Order of Adjudication
and Disposition, 3/1/18.
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On August 7, 2018, the Agency filed a petition to terminate Mother’s
parental rights.10 On October 11, 2018, the trial court conducted a hearing on
the termination petition. Mother was present and represented by counsel,
Attorney Johnson.11 In support thereof, the Agency again presented the
testimony of: Peter von Korff, Ph.D., a clinical psychologist who conducted an
psychological evaluation of Mother at the request of the Agency; 12 Tina
Ferraro, the director of Project First Step through Erie Homes for Children and
Adults;13 Shannon Spiegel, an Agency caseworker; Michelle Dushole, an
Agency caseworker and co-coordinator for the family dependency treatment
court; and Michael Vicander, a permanency caseworker for the Agency.
Mother, again, testified on her own behalf.
____________________________________________
10 The Agency additionally sought to terminate Father’s parental rights, which
were terminated voluntarily by decree dated October 10, 2018, and entered
October 19, 2018. Father was present and questioned regarding his voluntary
relinquishment on October 11, 2018. N.T., 10/11/18, at 4-7.
11B.K.T., Jr., was represented by legal counsel as well as a guardian ad litem
during this proceeding. Similar to K.B.T., there is no evidence of an attempt
to discern B.K.T., Jr.’s preference, as B.K.T., Jr., was approximately eight
months old at the time of the hearing and too young to express a preference.
As such, we, likewise, find the requirements of 23 Pa.C.S. § 2313(a) satisfied.
See footnote 5, supra.
12 Dr. von Korff’s report, dated November 6, 2017, was admitted without
objection as Exhibit 6. Id. at 21.
13 Ms. Ferraro, along with Lisa Kobusinski, family specialist, issued reports
dated October 5, 2017, and July 6, 2018. These reports were admitted
without objection. Id. at 38. While specific reference to an exhibit number is
not indicated on the record, the certified record reflects that these reports are
Exhibit 7.
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By decree dated October 18, 2018, and entered October 19, 2018, the
trial court involuntarily terminated the parental rights of Mother to B.K.T., Jr.,
pursuant to 23 Pa.C.S. Section 2511(a)(1), (2), (5), and (b). On November
20, 2018, Mother, through Attorney Johnson, filed a notice of appeal. Counsel
filed a Statement of Intent to File Anders Brief in Lieu of Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(c)(4) and In re J.T.,
983 A.2d 771 (Pa. Super. 2009). This Court consolidated Mother’s appeals
sua sponte on December 12, 2018.
When counsel files an Anders brief, this Court may not review the
merits of the appeal without first addressing counsel’s request to withdraw.
Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013); see
also Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(stating, “When faced with a purported Anders brief, this Court may not
review the merits of the underlying issues without first passing on the request
to withdraw[]”) (citation omitted). In In re V.E. & J.E., 611 A.2d 1267 (Pa.
Super. 1992), this Court extended the Anders principles to appeals involving
the termination of parental rights. Id. at 1275. Counsel appointed to
represent an indigent parent on appeal from a decree involuntarily terminating
parental rights may therefore petition this Court for leave to withdraw
representation and submit an Anders brief. In re S.M.B., A.M.B., & G.G.B.,
856 A.2d 1235, 1237 (Pa. Super. 2004). In Commonwealth v. Santiago,
602 Pa. 159, 978 A.2d 349 (2009), our Supreme Court explained, “the major
thrust of Anders . . . is to assure that counsel undertakes a careful
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assessment of any available claim that an indigent appellant might have.” Id.
at 174, 358. It stated that this “is achieved by requiring counsel to conduct
an exhaustive examination of the record and by also placing the responsibility
on the reviewing court to make an independent determination of the merits of
the appeal.” Id.
First, to withdraw, counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super. 2009);
see also Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014);
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). Counsel
must “attach to their petition to withdraw a copy of the letter sent to their
client advising him or her of their rights.” Millisock, 873 A.2d at 752.
Next, we review Counsel’s Anders brief for compliance with the
requirements set forth in Santiago, supra:
counsel must: (1) provide a summary of the procedural history
and facts, with citations to the record; (2) refer to anything in the
record that counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and (4)
state counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
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602 Pa. at 178-79, 978 A.2d at 361. “Once counsel has satisfied the above
requirements, it is then this Court’s duty to conduct its own review of the trial
court’s proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d
287, 291 (Pa. Super. 2007) (en banc) quoting Commonwealth v. Wright,
846 A.2d 730, 736 (Pa. Super. 2004).
Counsel satisfied the first requirement of Anders by filing a petition to
withdraw, wherein he asserts that he made a conscientious review of the
record and determined the appeal would be frivolous. Likewise, Counsel
satisfied the second requirement by filing an Anders brief that complies with
the requirements set forth in Santiago, supra. With respect to the third
requirement, Counsel attached to the petition to withdraw a copy of the letter
sent to Mother advising her of her rights, and enclosing a copy of the Anders
brief. Hence, we conclude that Counsel complied with the procedural Anders
requirements and we proceed to a review of the merits.
Counsel’s Anders brief raises the following issues for our review:
1. Did the [trial court] commit an abuse of discretion or error of
law when it concluded that the Agency established sufficient
grounds for termination under 23 Pa.C.S.[] § 2511(a)(1)?
2. Did the [trial court] commit an abuse of discretion or error of
law when it concluded that the Agency established sufficient
grounds for termination under 23 Pa.C.S.[] § 2511(a)(2)?
3. Did the [trial court] commit an abuse of discretion or error of
law when it concluded that the Agency established sufficient
grounds for termination under 23 Pa.C.S.[] § 2511(a)(5)?
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4. Did the [trial court] commit an abuse of discretion or error of
law when it concluded that the Agency established sufficient
grounds for termination under 23 Pa.C.S.[] § 2511(a)(8)?
5. Did the [trial court] commit an abuse of discretion or error of
law when it concluded that termination of [Mother’s] parental
rights was in the [Children’s] best interest under 23 Pa.C.S.[] §
2511(b)?
Anders Brief at 7 (answers and suggested answers omitted) (unnecessary
capitalization omitted).
In matters involving involuntary termination of parental rights, our
standard of review is as follows:
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.” In re Adoption of S.P., [616 Pa. 309, 325, 47
A.3d 817, 826 (2012)]. “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. “[A] decision may be
reversed for an abuse of discretion only upon demonstration of
manifest unreasonableness, partiality, prejudice, bias, or ill-will.”
Id. The trial court’s decision, however, should not be reversed
merely because the record would support a different result. Id.
at [325-26, 47 A.3d at] 827. We have previously emphasized our
deference to trial courts that often have first-hand observations of
the parties spanning multiple hearings. See In re R.J.T., [608
Pa. 9, 26-27, 9 A.3d 1179, 1190 (2010)].
In re T.S.M., 620 Pa. 602, 628, 71 A.3d 251, 267 (2013). “The trial court is
free to believe all, part, or none of the evidence presented and is likewise free
to make all credibility determinations and resolve conflicts in the evidence.”
In re M.G. & J.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation omitted).
“[I]f competent evidence supports the trial court’s findings, we will affirm even
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if the record could also support the opposite result.” In re Adoption of
T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, and requires a bifurcated analysis of
the grounds for termination followed by the needs and welfare of the child.
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. 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). We
have defined clear and convincing evidence as that which 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.” In re
C.S., 761 A.2d 1197, 1201 (Pa. Super. 2000) (en banc) quoting Matter of
Adoption of Charles E.D.M., II, 550 Pa. 595, 601, 708 A.2d 88, 91 (1998).
In the case sub judice, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) with respect to
K.B.T., and 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b) with respect to B.K.T.,
Jr. We have long held that, in order to affirm a termination of parental rights,
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we need only agree with the trial court as to any one subsection of Section
2511(a), as well as Section 2511(b). See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). Here, we analyze the court’s termination
decrees pursuant to subsections 2511(a)(2) and (b), which provide 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 which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(2), and (b).
We first address 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)
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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 Adoption of C.D.R., 111 A.3d 1212, 1216 (Pa. Super. 2015)
quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002). “Parents are
required to make diligent efforts towards the reasonably prompt assumption
of full parental responsibilities. . . . [A] parent’s vow to cooperate, after a
long period of uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous.” In re
A.L.D., 797 A.2d at 340 (internal quotation marks and citations omitted).
In the case at bar, in finding grounds for termination pursuant to Section
2511(a)(2), as well as subsections (a)(1), (a)(5), and (a)(8), as to K.B.T., the
trial court reasoned,
A review of the evidence details a mother either incapable [of] or
refusing [to], or both, take an active role in seeking the return of
her son. All the programs designed specifically to address
[Mother]’s personal and parenting deficiencies were rejected by
her. Tina Ferraro from Project First Step noted all the efforts made
to work individually with [Mother]. From personalizing the
parenting programs, to encouraging [Mother] to engage in mental
health treatment, all of Project First Step’s efforts were met with
indifference by [Mother]. Failing to consistently visit; expressing
a cavalier attitude towards parenting education; becoming
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agitated and resentful at suggestions designed to improve
parenting skills; refusing to even acknowledge the need for mental
health therapy, were all factors in determining [Mother’s] refusal
to remedy the conditions which led to the placement of K.B.T.
Dr. von Korff’s opinion that only intensive work on a multi-faceted
level could address [Mother]’s mental health issues necessitated
a committed effort by [Mother] to get herself into a position to
parent her son. The evidence reveals that that effort and
commitment was not attempted by [Mother]. Without such
mental health involvement, K.B.T. could not be in a stable and
safe environment with [Mother]. [Mother] refused to avail herself
[of] the services necessary to remove the reasons for the
placement of K.B.T. The child has been in placement since March,
2017. [Mother] has had more than a reasonable period of time
to exhibit an effort to attempt, through all the services provided
to her, to remedy the conditions which led to the child’s removal.
[Mother] gave her reasons for refusing the services offered to her.
Her testimony is replete with references that she quit or refused
services because she wasn’t getting anything out of them. The
list of services included parenting, mental health therapy, and her
medications.
...
This [c]ourt heard the testimony, reviewed the evidence, and
observed the witnesses. The [c]ourt attaches no credibility to
[Mother’s] excuses for refusing to accept her role as a parent. She
rejected all services designed for her to get her son returned to
her care. This [c]ourt did not abuse its discretion in finding that
the Agency presented clear and convincing evidence that the
parental rights of [Mother] to her son K.B.T. should be terminated
pursuant to 23 Pa.C.S.[] §2511 (a)(2), (5), and (8). . . .14
Trial Court Opinion (K.B.T.), 9/26/18, at 10-11.
The trial court found similarly as to B.K.T., Jr., in finding grounds for
termination pursuant to subsection (a)(2), as well as subsections (a)(1) and
____________________________________________
14 As reflected by the decree, the court additionally terminated Mother’s
parental rights pursuant to Section 2511(a)(1). See Decree (K.B.T.),
7/17/18.
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(a)(5), noting Mother’s ongoing failure to comply with services related to
parenting and mental health. Trial Court Opinion (B.K.T., Jr.), 1/31/19, at 8-
10. The trial court further stated,
. . .The child has been in placement since January 22, 2018.
Mother’s history with OCY demonstrates that she cannot and will
not within a reasonable period of time, exhibit an effort to
attempt, through all the services provided to her, to remedy the
conditions which led to the child’s removal.
...
This [c]ourt heard the testimony, reviewed the evidence, and
observed the witnesses. The [c]ourt attaches no credibility to
[Mother’s] excuses for refusing to accept her role as a parent. She
rejected all services designed for her to get her son returned to
her care. This [c]ourt did not abuse its discretion in finding that
the Agency presented clear and convincing evidence that the
parental rights of [Mother] to her son B.K.T., Jr., should be
terminated pursuant to 23 [Pa.C.S.] §2511 (a)(1), (2), and (5). .
..
Id. at 9-10.
A review of the record supports the trial court’s finding of grounds for
termination under Section 2511(a)(2). The record reveals that Mother failed
to alleviate any concerns with regard to her ability and capacity to care for the
Children. As we discern no abuse of discretion or error of law, we do not
disturb the court’s findings.
At the hearing regarding K.B.T. on July 12, 2018, Agency caseworker,
Shannon Spiegel, reported that K.B.T. came into care “due to mental health
concerns, unstable housing, concerns about who [Mother] associates with and
allows into her home, [and] lack of parenting skills.” N.T., 7/12/18, at 41.
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Ms. Spiegel noted permanency review hearings in July 2017, October 2017,
and March 2018, and acknowledged that, throughout, Mother “never
demonstrated an ability wherein she alleviated the circumstances regarding
[K.B.T.]’s placement.” Id. at 44. She further stated that Mother never
substantially complied with the terms of the court-ordered treatment plan.
Id. Significantly, Ms. Spiegel testified that Mother never demonstrated stable
mental health, indicating, “. . . If anything, she’s exhibiting more unstable
behavior [] recent[ly].” Id. at 47. While acknowledging that Mother’s housing
circumstances improved,15 Ms. Spiegel confirmed that Mother continued to
demonstrate unstable mental health. She further expressed that Mother
never demonstrated an ability to safely parent the child and never alleviated
the circumstances that resulted in placement. Id. at 48. She observed that
Mother had “difficulty reading [K.B.T.]’s cues” and “wasn’t responsive to
redirection.” Id. at 45. Ms. Spiegel stated, “. . . If the child -- if [K.B.T.] was
in Mother’s care, I would have concerns for his well-being and for his life
ultimately. She has not alleviated the circumstances that led to removal. She
has not made any significant progress with [K.B.T.] in the course of a year.”
Id. at 49. Ms. Spiegel further indicated that K.B.T. is not safe in Mother’s care
and would be in physical danger. Id. at 58.
____________________________________________
15Ms. Spiegel noted that roommates are no longer in Mother’s home. Id. at
48.
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Likewise, Tina Ferraro, the director of Project First Step through Erie
Homes for Children and Adults, indicated that Project First Step worked with
Mother with regard to K.B.T. from March 2017 to March 2018.16 Id. at 18,
30-31. Ms. Ferraro noted that, during this time, Mother did not consistently
engage in services, and, in fact, “got worse as the year progressed.” Id. at
31. Ms. Ferraro testified that Mother did not exhibit the ability to safely parent
K.B.T. Id. Aside from housing concerns, all of the circumstances with which
Mother presented remained.17 Id. Hence, Ms. Farraro stated, Mother “has
yet to demonstrate the ability to independently care [for] her son K.B.T. or
provide a safe and stable environment for [him].” Id.
At the hearing on October 11, 2018 regarding B.K.T., Jr., Ms. Spiegel
similarly recounted that the reasons B.K.T., Jr., was placed were “because of
____________________________________________
16 Ms. Ferraro explained that Project First Step “is a multiservice program. We
work with families who have a variety of concerns, mental illness, drug and
alcohol concerns, intellectual disabilities, and physical disabilities. Those are
the most common referrals that we get for parents.” Id. at 19. She noted
that Mother self-referred late in her pregnancy with K.B.T. into the pre-natal
service. Id.
17 Specifically, Ms. Ferraro acknowledged encouraging Mother to follow
through with her mental health treatment. While unable to verify that Mother
was participating in medication management, Ms. Ferarro stated that
“[Mother’s] behavior is concerning if she is, in fact, taking medication or
actively involved in treatment. It hasn’t improved, and it actually has gotten
worse.” Id. at 41. Due to issues with her blended case manager, Ms. Ferraro
noted a lack of “confidence that [Mother] was really engaged in her mental
health treatment.” Id. Mother reported that she had been stabilized and
taking medication since K.B.T.’s birth. Id. at 61. She further reported to
participating in therapy. Id. at 61-62.
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concerns of unstable mental health, history of unstable housing and
homelessness, [M]other’s inability to demonstrate appropriate parenting
skills, as well as mom’s limitations and how they affect her ability to care for
the child and herself.” N.T., 10/11/18, at 49. Ms. Spiegel testified that the
following services were offered to Mother, “color code[18]…mental health
services, participation with parenting through Project First Step, follow
through with recommendations from Dr. von Korff’s report, meeting with Dr.
von Korff…and following through with recommendations made by mental
health providers.” Id. at 50.
Further, Ms. Spiegel testified that, subsequent to adjudication, at the
time of B.K.T., Jr.’s, dispositional hearing in February of 2018, the Agency
recommended adoption as a concurrent goal “because [of] that history of
noncompliance with court-ordered services, [and] the lack of follow-through
with the programs she’s already had in place.” Id. at 51. A permanency
review hearing was held thereafter in July 2018. Mother was “minimally
____________________________________________
18 Michelle Dushole, Agency caseworker and co-coordinator for the family
dependency treatment court, explained that “[w]hen a caseworker/supervisor
feels that one of their client has an issue with either/or drugs and/or alcohol,
they will send a referral to our unit. We’ll process it. We’ll send out a letter
to put them, the client, on random urinalyses where they will attend on specific
dates and specific times at the Esper Treatment Center.” Id. at 43-44. She
further indicated that clients are assigned a color with regard to when to
submit for testing. Id. at 45. From February 21, 2018 through July 30, 2018,
Mother submitted to fourteen negative urine screens, eight no-show screens,
and one could not produce. Id. at 45, 47; see also Exhibit 8, 10/11/18.
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compliant” with mental health services, “fired” her blended case manager,19
not compliant with Project First Step, and had “minimal” visitation. Id. at 51-
52. As to Project First Step, Ms. Spiegel explained that Mother had “[a] lot of
difficulties with accepting redirection during the sessions and attendance as
well.” Id. at 52. Critically, Tina Ferraro, director of Project First Step stated
that, as of July 6, 2018, Mother still had not made progress to where she could
safely parent either child. Id. at 37. Ms. Ferraro noted that many of the
concerns with regard to Mother, including mental health and lack of parenting,
remained, and, in fact, had worsened.” Id. at 35. She opined that Mother
“struggled to take care of herself, chose not to actively engage in parenting
instructions,” and had issues with visitation.20 Id. at 37-38.
Moreover, Dr. von Korff testified that Mother exhibited “a striking lack
coherence and insight and an ability to speak in an integrated way about her
circumstance.”21 Id. at 12. He opined that “Mother would need significant
mental health counseling, care treatment to care for herself, but also intensive
____________________________________________
19 Mother acknowledged terminating the services of the blended case
manager, Rebecca, stating that “she didn’t like [Rebecca’s] attitude toward
things. We would fight on basic, little things. . . . ” N.T., 7/12/18, at 63. She
testified to an intake appointment for a new blended case manager at the July
2018 hearing. N.T., 10/11/18, at 64.
20 Ms. Ferraro recounted Mother’s last visit with B.K.T., Jr., where Mother
threatened to leave with B.K.T., Jr., but relented after the police were called.
Id. at 36-37; see also N.T., 7/12/18, at 47-48.
21 While Dr. von Korff indicated that Mother reported diagnoses of bipolar
disorder and post-traumatic stress disorder, he offered that she may have
schizoaffective disorder. Id. at 20, 23-25.
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parenting skills to allow her to safely parent a minor child.” N.T., 7/12/18, at
10. He expressed that it remained his recommendation that “[a]ny thoughts
of placing [the Children] in [] [M]other’s care would require [Mother]’s mental
health issues [to] have been adequately addressed and [that] she has shown
the ability to benefit from and sustain her involvement with such services.”
Id. at 20-21.
As this Court has stated, “a child’s life cannot be held in abeyance while
a parent attempts to attain the maturity necessary to assume parenting
responsibilities. The court cannot and will not subordinate indefinitely a child’s
need for permanence and stability to a parent’s claims of progress and hope
for the future.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006). Hence, the record substantiates the conclusion that Mother’s repeated
and continued incapacity, abuse, neglect, or refusal has caused Children 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 at 1272.
Moreover, Mother cannot or will not remedy this situation. See id. As noted
above, in order to affirm a termination of parental rights, we need only agree
with the trial court as to any one subsection of Section 2511(a) before
assessing the determination under Section 2511(b), and we, therefore, need
not address any further subsections of Section 2511(a). In re B.L.W., 843
A.2d at 384.
We next determine whether termination was proper under Section
2511(b). Our Supreme Court has stated as follows:
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[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., [533 Pa. 115, 123, 620 A.2d
481, 485 (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.
However, as discussed below, evaluation of a child’s bonds is not
always an easy task.
In re T.S.M., 620 Pa. at 628-29, 71 A.3d at 267. “In cases where there is no
evidence of any bond between the parent and child, it is reasonable to infer
that no bond exists. The extent of any bond analysis, therefore, necessarily
depends on the circumstances of the particular case.” In re K.Z.S., 946 A.2d
753, 762-63 (Pa. Super. 2008) (citation omitted).
When evaluating a parental bond, “[T]he court is not required to use
expert testimony. Social workers and caseworkers can offer evaluations as
well. Additionally, Section 2511(b) does not require a formal bonding
evaluation.” In re Z.P., 994 A.2d at 1121 (internal citations omitted).
Moreover,
[w]hile 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
with the foster parent. . .
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In re Adoption of C.D.R., 111 A.3d at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa. Super. 2011)) (quotation marks and citations omitted).
In the case sub judice, in determining that the Children’s needs and
welfare favor the termination of Mother’s parental rights, the trial court stated,
. . . [T]he testimony provided by Shannon Speigel established that
there was no parental bond between [M]other and son. A review
of additional evidence has shown the child is in a good, stable
home and has bonded well with the potential adoptive parents.
The termination of [Mother’s] parental rights is in the best
interests of K.B.T. 23 Pa. C.S.[] §2511 (b).
Trial Court Opinion (K.B.T.), 9/26/18, at 11.22
Upon review, we discern no abuse of discretion. The record supports
the trial court’s finding that the Children’s developmental, physical and
emotional needs and welfare favor termination of Mother’s parental rights
pursuant to Section 2511(b). There was sufficient evidence to allow the trial
court to make a determination that, due to the lack of a bond between Mother
and the Children, termination would not have a detrimental impact on the
Children.
Both children were removed from Mother’s custody and placed in foster
care at birth. N.T., 10/11/18, at 49-50, 55-56; N.T., 7/12/18, at 46. Mother’s
visitation was noted as inconsistent and Agency caseworker, Shannon Spiegel,
observed that during visitation the Children were either “stressed” or
____________________________________________
22 The trial court reasoned similarly as to B.K.T., Jr. Trial Court Opinion
(B.K.T., Jr.), 1/31/19, at 10.
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“agitated.” N.T., 10/11/18, at 52, 53-54, 59; N.T., 7/12/18, at 45, 52. She
confirmed that there did not appear to be a “healthy bond” between Mother
and the Children. N.T., 10/11/18, at 53-54, 59; N.T., 7/12/18, at 45.
Specifically, as to K.B.T., Ms. Spiegel stated, “I would say that [Mother] loves
her child, of course she does. She exhibits -- she states that she does. She
talks to him lovingly. There’s just not a strong connection between the mother
and child.” N.T., 7/12/18, at 53. As to B.K.T., Jr., Ms. Spiegel stated, “Often
times there was such a period of time between visits that the next visit the
child would feel strange around [Mother] because he would see his mom
inconsistently. It was almost like the first visit every time she had one because
of the period of time between each visit.” N.T., 10/11/18, at 53-54. Further,
as indicated, Ms. Spiegel expressed concern that K.B.T. is not safe in Mother’s
care and would be in physical danger. N.T., 7/12/18, at 58.
Moreover, the Children are doing well and their needs being met in their
foster home where they are placed together. N.T., 10/11/18, at 55-56; N.T.,
7/12/18, at 49. Both are described as bonded with their foster family and
each other. Id. at 56, 58, 61; 49. Michael Vicander, an Agency permanency
caseworker, who had the opportunity to observe B.K.T., Jr., in the foster
home, testified, “[h]e has a very natural relationship with the [foster family].
If he did not know he was a foster child, that relationship would be
indistinguishable from a biological child.” N.T., 10/11/18, at 61. As a result,
Ms. Spiegel opined that there would not be a detrimental impact if Mother’s
parental rights were terminated. Id. Moreover, as to K.B.T., Ms. Spiegel
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explained, “I have significant concerns. If the child -- if [K.B.T.] was in
Mother’s care, I would have concerns for his well-being and for his life
ultimately. She has not alleviated the circumstances that led to removal. She
has not made any significant progress with [K.B.T.] in the course of a year.”
N.T., 7/12/18, at 49. When asked at the hearing why B.K.T., Jr., should be
permanently removed from Mother’s care Ms. Spiegel testified,
I feel that way because looking at [Mother’s] extensive history
with the Agency, the concerns with mental health and instability,
the housing instability, her inability to meet her own needs, let
alone a child’s, I’m not confident that she can care for the basic
needs of [B.K.T., Jr.].
He deserves permanency. He’s remained in the [] foster home
with his brother and developed a bond with the foster parents and
his needs are met fully.
N.T., 10/11/18, at 56. Likewise, both she and Agency permanency
caseworker, Michael Vicander, offered that it would be in the children’s best
interest to proceed with adoption. Id. at 50, 61.
Thus, as confirmed by the record, termination of Mother’s parental
rights serves the Children’s developmental, physical, and emotional needs and
welfare and was proper pursuant to Section 2511(b). While Mother may
profess to love the Children, a parent’s own feelings of love and affection for
a child, alone, will not preclude termination of parental rights. In re Z.P.,
994 A.2d at 1121. At the time of the hearing, the Children had already been
in care their entire young lives, approximately sixteen months and nine
months, respectively, and are entitled permanency and stability. As we
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stated, a child’s life “simply cannot be put on hold in the hope that [a parent]
will summon the ability to handle the responsibilities of parenting.” Id. at
1125. Rather, “a parent’s basic constitutional right to the custody and rearing
of his [or 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 his or
her potential in a permanent, healthy, safe environment.” In re B., N.M.,
856 A.2d 847, 856 (Pa. Super. 2004) (citation omitted).
Based on the foregoing independent analysis of the trial court’s
termination of Mother’s parental rights, we agree with counsel for Mother that
the within appeal is wholly frivolous.23 As such, we affirm the decrees of the
trial court, and grant Counsel’s petition to withdraw.
Decrees affirmed. Petitions to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2019
____________________________________________
23Further, we note that our independent review of the record did not reveal
any additional, non-frivolous issues overlooked by counsel. See
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.Super. 2015) (citing
Commonwealth v. Goodwin, 928 A.2d 287 (Pa.Super. 2007) (en banc)).
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Adoption of K.B.T., Appeal of E.T.
Combined Opinion