J-S34015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M., NATURAL MOTHER :
:
:
:
:
: No. 242 WDA 2019
Appeal from the Decree Dated January 14, 2019
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
CP-07-DP-0000014-2011,
No. 35 AD 2018
IN RE: D.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M., NATURAL MOTHER :
:
:
:
:
: No. 243 WDA 2019
Appeal from the Decree Entered January 14, 2019
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
CP-07-DP-0000012-2011
IN RE: B.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: N.M., NATURAL MOTHER :
:
:
:
:
: No. 244 WDA 2019
Appeal from the Decree Dated January 14, 2019
In the Court of Common Pleas of Blair County Orphans' Court at No(s):
CP-07-DP-0000013-2011
J-S34015-19
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 16, 2019
N.M. (“Mother”) appeals the January 14, 2019 Decrees involuntarily
terminating her parental rights to her minor sons, De.M. (born September
2007) and Da.M. (born October 2010), and her minor daughter, B.N.M. (born
January 2009) (“Children”).1 She challenges only the court’s determination
under 23 Pa.C.S. § 2511(b) that termination of her parental rights serves the
Children’s best interests. Because the record supports the decision of the trial
court, we affirm the Decrees.
FACTS AND PROCEDURAL HISTORY
The trial court summarized the procedural and factual history of this
matter as follows:
The procedural history of the underlying dependency actions
establishes that these subject children have been in and out of the
dependency system for over eight (8) years. The dependency
proceeding initially began in 2010 when the [m]other left the
children w[a]ndering in the street. The two (2) most recent
permanency review orders issued by the [c]ourt prior to the
termination of parental rights decree provide detailed reasoning
as to why the Petition for Termination of Parental Rights was
appropriate. The [c]ourt issued a Permanency Review Order on
July 31, 2018 after extensive testimony by the agency. In this
Permanency Review Order we changed the goal for the children
from return home to the parents to adoption.[2] We found the
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1
The court also involuntarily terminated the parental rights of Children’s Father,
D.L.H. (“Father”). Father did not appeal the Decrees terminating his parental rights,
nor has he participated in this appeal.
2
There is no indication in the certified record that Mother appealed the goal change
orders
* Retired Senior Judge assigned to the Superior Court.
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progress of the [m]other towards alleviating the circumstances
which necessitated the original placement to be minimal.
Trial Ct. Op., 3/8/19, at 5.
Specifically, Mother’s minimal progress included her inability to establish
independent and appropriate housing. Id. at 6. Additionally, Mother’s and
Father’s on-and-off-again relationship made it difficult to determine when they
were residing together. Id. The relationship between Mother and Father was
concerning, as domestic violence between Mother and Father created safety
risks for Children. Id. at 6-7.
Further, on September 5, 2017, Mother was found wandering in the
street under the influence of bath salts while the children were left at home
with known drug addicts. Id. at 7. As a result, Mother had pending criminal
charges for endangering the welfare of her children. Id. A psychological
evaluation performed by Terry O’Hara, Ph.D., determined that there was a
poor prognosis for Mother to be able to successfully care for Children if she
did not engage in intensive substance abuse treatment.3 Id. at 9. Despite a
history of addiction, Mother did not comply with her drug and alcohol
treatment, and often failed to produce samples for drug tests. Id. at 8.
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3 Asked whether Children’s need for safety, stability and permanence
outweighed any detriment that might be caused if Mother’s parental rights
were terminated, Dr. O’Hara opined, “I think it’s a difficult question to answer
at this point. I think there would be evidence I think in my opinion that those
factors of stability, safety and security and permanency would outweigh a
detriment due to the fact that these children are at very crucial developmental
stages.” N.T., Permanency Review Hearing, 1/22/18, at 9.
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Moreover, Mother failed to set up or cooperate with recommended
services for Da.M.’s autism or De.M.’s diabetes, and Mother struggled to
control Da.M.’s behaviors and to manage De.M.’s diabetes. Id. at 9. Mother
also had difficulty managing all three children at one time. Id. Mother’s
attendance at visitation was inconsistent.4 Id. at 7-8.
The court summarized Mother’s participation as follows:
[Mother’s] cooperation with services for over a year
has been sporadic. [Mother] has been unable to
address her own issues and the circumstances that led
to the children’s placement, to wit: ongoing [drug and
alcohol] issues, ongoing criminal charges relating to
child endangerment of her children, lack of housing,
lack of stable income, domestic violence, inability to
safely care for all three of her children and ongoing
mental health issues. These issues have been chronic
over time and based on the evidence to date, it is not
likely that [Mother] will change or resolve the issues
within a reasonable period of time.
Id. at 6.
On September 27, 2018, Blair County Children Youth and Families
(“BCCYF”) filed Petitions to involuntarily terminate Mother’s parental rights to
Children. The court held a hearing on the Petitions on January 9, 2019.5 At
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4 At a permanency review hearing on October 23, 2018, the court determined
Mother’s situation remained largely unchanged. Trial Ct. Op., 3/8/19, at 9.
Mother was suspected of using bath salts on September 12, 2018. Id. at 10.
A drug test was administered but the results revealed that the specimen was
diluted. Id.
5 The court appointed a Guardian Ad Litem, Attorney Maryann Probst, as well
as legal counsel, Attorney Gerald Nelson, to represent Children at the
termination proceedings.
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the hearing, the court, without objection, incorporated the extensive
dependency proceedings involving Children. BCCYF then presented testimony
from Ronna Holliday, the BCCYF caseworker. Mother, represented by counsel,
testified on her own behalf. Further, Children’s legal counsel and their
Guardian Ad Litem testified.
On January 14, 2019, the court entered Decrees terminating Mother’s
parental rights to Children pursuant to 23 Pa.C.S. § 2511(a)(2), (5), (8), and
(b). Thereafter, Mother filed timely Notices of Appeal and Concise Statements
of Errors Complained of on Appeal. This Court, acting sua sponte,
consolidated Mother’s appeals.
ISSUE ON APPEAL
Mother raises the following issue on appeal: “Whether the trial court
erred/abused its discretion by determining that termination of [Mother’s]
parental rights would best serve the developmental, physical, and emotional
needs and welfare of [Children] under 23 Pa.C.S. § 2511(b), as the sum of
the evidence showed [Children have] a strong, beneficial relationship with
[Mother]?” Mother’s Brief at 5.
LEGAL ANALYSIS
In reviewing cases involuntarily terminating parental rights, appellate
courts must accept the findings of fact and credibility determinations of the
trial court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa.
2013). “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.
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(citations omitted). Where the hearing court’s findings are supported by
competent evidence of record, we must affirm the hearing court even though
the record could support an opposite result. In re Adoption of Atencio, 650
A.2d 1064, 1066 (Pa. 1994).
We are bound by the findings of the trial court which have
adequate support in the record so long as the findings do not
evidence capricious disregard for competent and credible
evidence. 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. Though we
are not bound by the trial court's inferences and deductions, we
may reject its conclusions only if they involve errors of law or are
clearly unreasonable in light of the trial court’s sustainable
findings.
In re M.G., 855 A.2d 68, 73–74 (Pa. Super. 2004) (citations omitted).
We defer to the trial court that often has “first-hand observations of the
parties spanning multiple hearings.” In re T.S.M., supra at 267 (citations
and quotation marks omitted). Importantly, “[t]he 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. Indeed, we work under
statutory and case law that contemplates only a short period of time . . . in
which to complete the process of either reunification or adoption for a child
who has been placed in foster care.” In re Adoption of R.J.S., 901 A.2d
502, 513 (Pa. Super. 2006) (emphasis in original; citations omitted).
In addressing Petitions to Involuntarily Terminate Parental Rights, the
Adoption Act6 requires courts to conduct a bifurcated analysis. Pursuant to
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6 23 Pa.C.S. § 2101-2938.
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Section 2511, the court first focuses on the conduct of the parent. If the party
seeking termination presents clear and convincing evidence that the parent’s
conduct meets one of the grounds for termination set forth in Section 2511(a),
then the court will analyze whether termination of parental rights will meet
the needs and welfare of the child, i.e., the best interests of the child, as
provided in Section 2511(b). 23 Pa.C.S. § 2511(a) and (b); In re L.M., 923
A.2d 505, 511 (Pa. Super. 2007). “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.” Id. at 511 (citations omitted).
While the trial court here found that BCCYF met its burden of proof under
23 Pa.C.S. § 2511(a)(2), (5), and (8), as well as (b), Mother only challenges
the trial court’s conclusions with respect to Section 2511(b),7 which provides
as follows:
§ 2511. Grounds for involuntary termination
***
(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
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7 Mother waived any challenge to 23 Pa.C.S. § 2511(a) and the subsections
thereof by failing to challenge that section in her Concise Statements and
Brief. See Krebs v. United Refining Company of Pennsylvania, 893 A.2d
776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that are
not raised in both his or her concise statement of errors complained of on
appeal and the statement of questions involved in his or her brief on appeal).
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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(b).
Termination pursuant to Section 2511(b)
With respect to Section 2511(b), we consider whether termination of
parental rights will best serve Children’s developmental, physical, and
emotional needs and welfare. See In re Z.P., 994 A.2d 1108, 1121 (Pa.
Super. 2010). “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. “[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) (internal citations omitted).
It is sufficient for the trial court to rely on the opinions of social workers
and caseworkers when evaluating the impact that termination of parental
rights will have on a child. In re Z.P., supra at 1121. The trial court 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.
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Super. 2011); see also In re T.D., 949 A.2d 910, 920–23 (Pa. Super. 2008),
appeal denied, 601 Pa. 684, 970 A.2d 1148 (2009) (affirming the termination
of parental rights where “obvious emotional ties exist between T.D. and
Parents, but Parents are either unwilling or unable to satisfy the irreducible
minimum requirements of parenthood,” and where preserving the parents’
rights would prevent T.D. from being adopted and attaining permanency).
Ultimately, the concern is the needs and welfare of a child. In re Z.P., supra
at 1121.
Mother argues that the trial court erred in its consideration of Section
2511(b) because the record establishes a bond between Mother and Children,
and does not contain sufficient evidence as to the effect of severing the bond
between Mother and Children. Mother’s Brief at 10-11. Mother contends that
the record only supports a finding that severing the bond would have a
detrimental effect on Children because of the positive relationship Children
have with her. Id. at 11.
In rejecting Mother’s argument, the trial court wrote:
The [c]ourt believes that the record is sufficient to establish
that it is in the best interest of the children for the parental rights
of the Mother to be terminated. We acknowledge that the children
have a bond with the [m]other. However, the inability or
unwillingness of the [m]other to rectify several deficiencies causes
the [c]ourt to continue to believe that the needs and welfare of
the children support termination. Specifically, the [m]other has
not refrained from drug usage having recently used illegal
controlled substances in 2018. The [m]other has not maintained
stable housing and stable employment. Contrary to Dr. O’Hara’s
recommendations, the [m]other has also not completed services
recommended by him which included domestic violence
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counseling. She has also failed to follow through and
appropriately accept reunification services from [Family
Intervention Crisis Services]. Despite the fact that the children
have been in and out of the dependency system for a substantial
period of time, the [m]other has failed to rectify these problems
and the [c]ourt believes that if the Termination of the Parental
Rights Petition would not be granted, that this cyclical history
would continue. . . . In this case, we believe that it is in the best
interest of the children to have stability and we believe that the
termination of parental rights is necessary for this to occur.
Trial Ct. Op., 3/8/19, at 11-12.
Our review of the record supports the trial court’s findings. Contrary to
Mother’s argument, the trial court acknowledged the bond between Mother
and Children, and determined that providing Children safety and stability
through the termination of Mother’s parental rights was in Children’s best
interests. We do not discern an error of law or abuse of discretion with respect
to the trial court’s conclusion, and thus affirm the court’s determination that
involuntarily termination of Mother’s parental rights is in the best interests of
Children.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2019