J-S47028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: Z.D.N., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.A.P., MOTHER :
:
:
:
:
: No. 650 MDA 2019
Appeal from the Order Entered April 10, 2019
In the Court of Common Pleas of Lackawanna County Orphans’ Court at
No(s): A-12-2018
IN RE: C.J.N., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.A.P., MOTHER :
:
:
:
:
: No. 651 MDA 2019
Appeal from the Order Entered April 10, 2019
In the Court of Common Pleas of Lackawanna County Orphans’ Court at
No(s): A-13-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 18, 2020
R.A.P. (Mother)1 appeals from the orders granting the petitions of the
Lackawanna County Office of Youth and Family Services (OYFS) and
involuntarily terminating her parental rights to her sons, Z.D.N., born in
____________________________________________
1The court voluntarily terminated the parental rights of Children’s father, G.N.
(Father). Father did not appeal from the termination of his parental rights,
nor has he participated in this appeal.
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February 2015, and C.J.N., born in July 2016 (collectively, Children). We
affirm.
The trial court set forth the factual and procedural history of this matter
as follows:
This case concerns the termination of parental rights due to the
parental medical neglect and mental incapacity of [Mother],
concerning [Children]. [OYFS obtained emergency protective
custody of Children] on February 27, 2017 due to a referral
regarding seven (7) month[-]old infant, C.J.N., who presented to
the Moses Taylor Emergency Room unresponsive, malnourished,
. . . and near fatality. Specifically, “severe malnutrition and
metabolic derangements including hyponatremia, chloremia, AKI,
and metabolic acidosis complicated by seizure-like activity with no
EEG correlate and an abnormal MRI . . . continuing to suggest
some sort of hypoxic event.” C.J.N. received medical treatment
for approximately three (3) months at Geisinger Medical Center in
Danville, Pennsylvania. [On April 17, 2017, all parties stipulated
to the entry of orders finding Children dependent.] C.J.N. treated
with Pediatric Good Shepherd Rehabilitation Center until release
to kinship foster placement in May 2017 with paternal grandfather
[(Foster Parent) with whom Z.D.N. was also placed]. During
C.J.N.’s hospitalization period, Z.D.N. presented with low
developmental stages, missed medical visits, and overdue
immunizations. Z.D.N.’s scoring necessitated early intervention
services.
Mother disagreed with the occurrence of neglect or malnutrition,
and denied any need for medical attention, citing that C.J.N. “just
had a cold” or “was sick with the flu,” and “he was dehydrated.”
Mother unwaveringly maintained this position throughout OYFS
intervention and involvement. As a result, Mother incurred the
following criminal charges: Endangering the Welfare of a Child, 18
Pa.C.S. § 4304(a)(1), and Recklessly Endangering Another
Person, 18 Pa.C.S. § 2705. On January 14, 2019, Mother pled
nolo contendere to Recklessly Endangering Another Person, 18
Pa.C.S. § 2705, and received a twenty-four (24) month
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probationary period.[2] OYFS did not participate in any plea
negotiations, recommendations, or conditions.
OYFS engaged Mother in a family service plan targeted at
providing an appropriate support system for [Children] with
appropriate supervision at all times. Upon release from
incarceration [in June of 2017], Mother obtained a drug and
alcohol assessment. The assessment advised detox from
Subutex [3] combined with inpatient rehabilitation, and a
completely sober lifestyle. In response, Mother utilized no drug
and alcohol support. Mother did not attend either inpatient or
outpatient rehabilitation, did not detox from Subutex, did not
attend AA or NA programs, and did not obtain a sponsor earning
“moderate compliance,” and “minimum progress,” with the drug
and alcohol aspect of the family service plan. Mother cited that
she chose a Sub[utex] program instead of the recommended
inpatient, outpatient or partial rehabilitation. OYFS presented
Mother with several options and opportunities, yet Mother refused
all services.
Mother received therapy through Dr. [John] Kuna, but failed to
obtain a psychiatric evaluation rendering [a] diagnosis. Mother’s
failure to obtain a psychiatric evaluation earned “minimum
compliance,” and “no progress,” with the mental health aspect of
the family service plan. Mother testified that Dr. Kuna provided
the following non-medical therapy: “calming techniques, coping
techniques, drug and alcohol. Just different things to help you
cope with addictions.”
Mother maintained sporadic employment, offset by Mother’s
ability to obtain and maintain appropriate housing earning
“moderate compliance,” with the employment aspect of the family
service plan.
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2 Mother entered into a conditional plea agreement whereby she initially
entered a plea of nolo contendere to endangering the welfare of children, but
could enter a nolo contendere plea to the lesser charge of recklessly
endangering another person if she cooperated with OYFS. Mother’s Ex. 5,
Lackawanna County Court of Common Pleas Nolo Contendere Plea Colloquy,
12/13/17.
3 Subutex is used to treat opioid addiction.
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Mother failed to complete the “Safe-Care Program,” which
encompasses safety, medical, and parent-child interactions.
[Mother, who was nine-months pregnant in August of 2017,
missed two appointments for C-sections, and ultimately had a
stillbirth.] Since August of 2017, Mother did not reengage with
the “Safe-Care Program.” In fact, by February-March 2018
Mother became difficult to contact and deemed a no-show at
appointments. Importantly, Mother never advanced to the
“medical” module of the “Safe-Care Program,” which educates
medical safety. She stated: “I did not complete Safe[-]Care.”
Similarly, Mother maintained sporadic participation in the OYFS
“Mother’s Group,” designed to connect and relate parents involved
with OYFS. Mother only attended eleven (11) of the twenty-nine
(29) group sessions. Mother did not successfully complete the
program. Her sporadic attendance rendered any educational
response or progress futile. Id. In fact[,] Mother’s non-
attendance for three (3) consecutive months triggered her
unsuccessful discharge. Mother admitted: “I didn’t keep up with
moms’ groups and stuff.”
Mother attended line-of-sight visitation with [Children], admitting
that she carelessly arrived fifteen (15)-twenty (20) minutes late
for approximately seventy-five (75) percent of her visits.
Described as “generally late,” Mother lacked any apparent bond
with C.J.N. Of note, Mother required “redirection,” when observed
intentionally commenting on C.J.N.’s weight several times. For
example, “she would make comments about him being fat . . .
that he was very chunky, he was overweight. And she had to be
redirected several times not to say that due to the reason . . . of
him almost starving to death . . . . He was eating too much. That
he looked like the grandfather.” Mother admitted to making such
commentary, but minimized the frequency of the comments and
minimized her intent. In that same line, Mother described C.J.N.
as a “big boy.” Later on[, during] cross-examination, Mother
shifted blame to [Father] and recanted commenting about C.J.N.’s
weight. Her commentary indicated the presence and risk of future
neglect to [Children], especially an inability to comprehend or
reconcile why [Children] were in OYFS care. Also, Mother grossly
discerned the appropriate portions of food or beverage for
approximately fifty (50) percent or half of the visits. Mother
incorrectly commented that C.J.N. “drank too much,” or “ate too
much.” In regard to Z.D.N., Mother lacked a consistent bond,
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both waning and strengthening at times. For these reasons,
Mother failed to progress upward with visitation alternatives.
Overall, Mother merely demonstrated “minimum compliance,”
with the family service plan. Mother failed to achieve progress in
a protective capacity towards [Children]. Mother failed to
demonstrate any changed behavior or new efforts to avert future
medical neglect and near fatality of [Children]. Despite OYFS
involvement, Mother’s behavior remained unchanged.
Trial Ct. Op., 1/2/20, at 1-5 (record citations and some formatting altered).
On March 28, 2018, OYFS filed petitions to terminate Mother’s parental
rights to Children. On March 21, 2019, the trial court conducted a hearing on
the petitions. OYFS presented the testimony of four OYFS employees, Kristin
Wight, Theresa Chmelik, Carey Mazur, and Lisa Kanavy. Mother testified on
her own behalf.4 We summarize the relevant aspects of the testimony as
follows.
As to OYFS’s concerns regarding Mother’s ability to care for Children
safely, Ms. Wight, the OYFS caseworker, testified that Children came into
____________________________________________
4 The case was initially heard before Judge Michael J. Barrasse on July 16,
2018. However, by order dated January 11, 2019, Judge Barrasse recused
himself. A different jurist presided over the hearing on March 21, 2019. At
the hearing on March 21, 2019, Mother was represented by counsel, and
Attorney Kevin O’Hara represented Children as guardian ad litem and legal
counsel. See In re T.S., 192 A.3d 1080, 1089-90, 1092-93 (Pa. 2018)
(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); In
re Adoption of L.B.M., 161 A.3d 172, 174-75, 180 (Pa. 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).
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OYFS care shortly after Mother transported C.J.N. to the hospital unresponsive
and malnourished on February 27, 2017. N.T., 3/21/19, at 22, 25, 32. At
that time, C.J.N. had seizure-like activity due to malnutrition, as well as severe
diaper rash. Id. at 94. C.J.N. was diagnosed with failure to thrive. Id. Ms.
Wight described C.J.N.’s condition as a “near fatality.” Id. at 32.
Ms. Wight noted that, in August of 2017, during OYFS intervention with
Children, Mother was expecting another child and missed two scheduled C-
sections. Id. at 47-48. At a meeting with OYFS on August 23, 2017,
caseworkers encouraged Mother to call the hospital to schedule a C-section.
Id. Mother eventually went to the hospital several days later, but suffered a
stillbirth. Id. at 52. Ms. Wight testified that the stillbirth raised further
concerns because Mother did not respond the OYFS’s urging to receive medical
care and “[w]hen she did then receive the medical care, there was a death
that occurred with her unborn child.” Id. at 51. Ms. Wight had further
concerns about Mother’s “ability to listen to feedback and be in a realistic
mindset about what was happening and to continue with reality.” Id. at 52.
Ms. Wight indicated that throughout Children’s time in care, Mother
denied that anything occurred that could have led to C.J.N.’s condition in
February of 2017. Id. at 32, 37. Mother suggested that OYFS was “out to
get her.” Id. at 104-05. Ms. Wight explained that it was an ongoing concern
that “[a]fter the case with [OYFS] was indicated and it was deemed a near
fatality, [and] after seeing medical records and speaking with us about what
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the doctors had said about that, [Mother] did not feel that occurred.” Id. at
37. Ms. Wight noted that “if [Mother] didn’t recognize what happened, she
can’t adequately protect [Children] from that occurring again and cannot take
the protect[ive] measures to trust doctors, to take [Children] to doctors, and
to follow-up on medical needs that were extremely life-threatening in this
case.” Id. at 38.
Additionally, as part of the family service plan, Mother was asked to
participate in a Safe-Care program to learn about safety, health, and bonding
and parent-child interaction. Id. at 44. Theresa Chmelik, who ran the
program, testified that Mother completed the safety aspect of the program,
but did not complete the health or parent-child module. Id. at 118-19, 121.
Further, Mother failed to complete the parent-child interaction portion. Id. at
120-21.
Ms. Chmelik noted that she temporarily suspended Safe-Care
programming after the stillbirth in August of 2017, because Mother was too
upset and emotional during sessions. Id. at 119. Ms. Chmelik attempted to
meet with Mother in February and March of 2018. Id. at 120-21. Mother
failed to show for a meeting on March 19, 2018, nine days before OYFS filed
the petition to terminate Mother’s parental rights. See id. at 121. Ms.
Chmelik contacted Mother, and Mother stated she forgot about the meeting.
Id. at 121. Ms. Chmelik thereafter closed out her involvement in the case.
Id.
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Lisa Kanavy, a visitation supervisor, expressed concerns that Mother
referred to C.J.N. as “very chunky,” “chubby,” and overweight at visits,
although Ms. Kanavy did not think C.J.N. appeared overfed. Id. at 133, 147.
Ms. Kanavy redirected Mother because C.J.N. was brought into care because
he “nearly starved to death.” Id. at 133. Additionally, Ms. Kanavy testified
that, at approximately one-half of Mother’s thirty visits, Mother failed to
recognize the appropriate amount of food or water to give C.J.N. Id. at 153.
Ms. Kanavy testified that OYFS could not ensure that Mother could safely
care for either of the children because Mother never acknowledged her part in
what occurred with C.J.N. Id. at 156. Indeed, Ms. Kanavy noted that,
throughout her involvement, Mother asserted that C.J.N.’s initial
hospitalization was the result of a cold. Id. at 151. The visits remained line-
of-sight, due to Mother’s criminal charges and lack of progress and compliance
with the family service plan. Id. at 137-38.
Ms. Wight noted that OYFS did not consider Mother’s failure to attend
Children’s follow up medical appointments in its decision to seek termination
of Mother’s parental rights. Ms. Wight explained that Foster Parent harbored
resentment towards Mother and did not inform Mother or OYFS of the dates
and times of the appointments, making it impossible for Mother to attend.
N.T., 3/21/19, at 66-70. Ms. Wight acknowledged that, given C.J.N.’s
diagnosis, it would have been important for Mother to attend Children’s
medical appointments. Id.
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As to Mother’s nolo contendere plea, Ms. Kanavy testified that she spoke
with Mother’s counsel in the criminal matter and reported that Mother’s visits
with Children went well. Id. at 145. However, Ms. Wight stated that she did
not know how Mother met the conditions of the plea agreement and noted
that she had difficulty contacting the District Attorney’s office. Id. at 111-12.
As to other portions of the family service plan, Ms. Wight testified that,
although Mother received mental health treatment throughout the case, she
failed to obtain a psychiatric evaluation as required. N.T., 3/21/19, at 32-33.
Further, Mother failed to attend a drug and alcohol treatment program to wean
herself from Subutex, although Ms. Wight acknowledged that Mother’s drug
screens were consistently negative for non-prescribed drugs. Id. at 26-29,
71-73, 90-91. Moreover, Mother failed to participate consistently in a
mother’s group run by OYFS. Id. at 163.
As to Children’s best interest, Ms. Wight testified that, when Z.D.N. was
initially removed from Mother’s care, he was behind developmentally. Id. at
39. After a month or two with his Foster Parent, Z.D.N. no longer needed
early intervention. Id. Further, she noted that C.J.N. was generally healthy
following his release from rehabilitation to his paternal grandfather’s home in
May 2017. Id. at 39-40.
Ms. Wight further testified that Children are doing well together in the
foster home as they have stability, support, and extended family. Id. at 40.
Ms. Wight observed numerous interactions in the foster home, and Children
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appeared very comfortable and loving. Id. at 42. Ms. Wight believed that
Children are bonded to their foster family, noting they run up to Foster Parent
and his wife. Id. Ms. Wight testified it would be in Children’s best interests
to terminate Mother’s parental rights. Id. at 54-55.
Ms. Kanavy testified that Mother is very engaging with both Children.5
Id. at 133. Ms. Kanavy asserted that visits went well and Mother was very
nurturing, brought toys and gifts, and would engage with Children throughout.
Id. at 145.
Nevertheless, Ms. Kanavy testified that C.J.N. is not bonded to Mother.
Id. at 134-35. Ms. Kanavy acknowledged that there is a bond between Mother
and Z.D.N., and that the bond increased, decreased, and then increased over
the course of Mother’s supervised visitations. Id. at 150. Despite the bond
between Z.D.N. and Mother, Ms. Kanavy testified that the bond should be
severed because of the safety risk Mother poses to Z.D.N. Id. at 155-56.
Further, Ms. Kanavy testified that it was important to maintain the bond
between Children. Id. at 156.
Mother testified on her own behalf. Mother stated that she took C.J.N.
to a pediatrician on January 27, 2017, and was told that because he had a
fever, diarrhea, and was vomiting, he had an ear infection. Id. at 182. The
pediatrician prescribed an antibiotic. Id. According to Mother, C.J.N. began
____________________________________________
5 Ms. Kanavy noted that, although Mother visited consistently, Mother was late
for 75% of her visits. N.T., 3/21/19, at 136-37.
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recovering, but “just over three weeks later[, C.J.N] started with his fever and
vomiting and diarrhea.” Id. By February 26, 2017, C.J.N. looked “horrible,”
and she took him to the emergency room. Id.
Mother acknowledged that in January of 2017, the pediatrician told her
to take C.J.N. to a primary care physician as soon as possible. However,
Mother believed that the pediatrician meant to bring C.J.N. for immunizations
as soon as possible. Id. at 243. Mother testified that she “went to registration
to make the appointment,” but was told she already had a preexisting
appointment for immunizations on March 16, 2017. Id. at 238.
When asked whether she agreed with C.J.N.’s diagnosis of failure to
thrive, Mother responded she was “having a tough time with this,” and
explained that C.J.N. appeared well-nourished and well-developed in January
of 2017, but “then all of a sudden” she was accused of “neglecting [C.J.N] his
entire life.”6 Id. at 184. Mother noted that C.J.N. had a lactose sensitivity
and issues with his formula, which caused some weight issues. Id. at 231-
32. However, Mother conceded that while C.J.N. was in her care, his weight
for his age decreased from around the 40th percentile at the time of his birth
to under the 1st percentile at seven months old. Id. at 232.
____________________________________________
6 On cross-examination, counsel for OYFS confronted Mother with a report
from C.J.N.’s February 26, 2017 hospitalization which indicated that C.J.N.’s
weight was low at the January 27, 2017 appointment. See id. at 237.
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With respect to the missed C-section appointments and the stillbirth in
August of 2017, Mother claimed that she was unaware of her first appointment
until OYFS told her about it. Mother then had to reschedule the second
appointment “because [Father] was laying on the floor tripping on cough pills.”
Id. at 208. Mother then attended a visit with Children and then went to the
hospital.
With respect to Safe-Care, Mother admitted that she did not complete
the programming. Id. at 209. Mother noted that Ms. Chmelik suspended the
programming because Mother “treated it like a counselling session” and “got
too emotional.” Id. When Ms. Chmelik attempted to restart the programming
in February of 2017, there was an initial misunderstanding where the
appointment would take place. Id. at 211. Mother stated she was not aware
of the March of 2017 appointments explaining that her phone might have run
out of minutes and she did not see a text message. Id. Mother testified that
she later asked Ms. Chmelik about restarting, but Ms. Chmelik told her “it was
a waste of everybody’s time and that they were going to file for termination
of [her] rights.” Id. at 230.
Mother acknowledged calling C.J.N. “chunky” at one visit because his
diaper was too small. Id. at 204-06. Mother asserted that OYFS was
attributing Father’s statements to her. Id. at 242. Mother stated that C.J.N.
is a “big boy,” but insisted she “never made fun of him . . . or called him fat .
. . .” Id. at 205. Mother asserted that she asked to have increased levels of
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visitations with Child, but was told that her pending criminal charges required
line-of-sight visits. Id. at 206.
Mother insisted that she was in substantial compliance with the family
service plan. Mother noted that she was permitted to plead guilty to a lesser
charge based on her compliance with the conditional guilty plea agreement.
Id. at 222-23. Mother emphasized that she was regularly visiting Children,
but acknowledged she was usually late for visits. Mother said she has been
addressing her addiction and mental health issues. Id. at 187. Mother
testified that she underwent a mental health evaluation in February of 2018.
Id. at 213. Mother has been seeing Dr. Kuna for mental health therapy. Id.
at 187. Mother and has been using Subutex since August 2014 and has not
had a relapse. Id. Although the most recent family service plan called for
Mother to wean off of Subutex, Mother stated her physicians did not want her
to go off the medication while she was pregnant. Id. at 190. Mother testified
she explored inpatient rehabilitation programs, but was told no one would take
her when she was pregnant. Id. at 191. Mother further noted that she
obtained independent housing and was employed. Id. at 195-96.
Referring to missed doctor’s appointments and OYFS’s refusal to provide
increased visitation, Mother asserted that OYFS did not allow her to progress
toward reunification with Children. Id. at 226. She summarized her position
as follows:
I just want [Children]. I want to progress. I want to be reunified
with [Children].
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I’m not asking to have them back today. Give me a chance to
actually prove to you that they’re safe at home and that I can take
care of them. Let me actually follow my family plan like I was
supposed to from the beginning. I have nothing holding me back
now. I can be unsupervised with them if [OYFS] would allow it.
Id. at 227.
At the conclusion of the hearing, the trial court noted Mother’s apparent
apathy at prior hearings, her failure to comply with the parenting plan, and its
belief that reunification with Mother would be detrimental to Children. See
id. at 253-54. On April 10, 2019, the trial court entered the orders
involuntarily terminating Mother’s parental rights to Children.
Mother timely filed notices of appeal and concise statements of errors
complained of on appeal on April 22, 2019. Following a remand from this
Court, the trial court authored an opinion pursuant to Pa.R.A.P. 1925(a).7
On appeal, Mother raises the following issues:
1. Whether the [trial court] erred as a matter of law and/or
manifestly abused its discretion in determining [OYFS]
sustained its burden of proving the termination of [Mother’s]
parental rights is warranted under Sections 2511(a)(2),
2511(a)(5) and/or 2511(a)(8) of the Adoption Act?
2. Even if this Court concludes [OYFS] established statutory
grounds for the termination of [Mother’s] parental rights,
whether the [trial court] nevertheless erred as a matter of law
and/or manifestly abused its discretion in determining [OYFS]
sustained its additional burden of proving the termination of
[Mother’s] parental rights is in the best interests of [Children]?
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7 Although none of the parties had the benefit of the trial court’s Rule 1925(a)
opinion when they prepared their briefs, no party has asked to supplement
their initial briefs after the trial court filed its opinion.
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Mother’s Brief at 5.
Mother first argues that OYFS did not meet its burden of proof with
respect to Section 2511(a)(2), (5), and (8). Mother asserts:
As argued before the trial court, at least one (1) [j]udge disagreed
with [OYFS’s] characterization of Mother’s compliance and
progress with the [family service plan]. If that were not the case,
Mother would not have been permitted to withdraw her conditional
nolo contendere plea to Endangering the Welfare of a Child in
exchange for her nolo contendere plea to Recklessly Endangering
Another Person which was specifically premised on her compliance
with [OYFS].
Id. at 19 (record citations and some capitalization omitted).
Mother further argues that OYFS mischaracterized her compliance with
the requirements of her family service plan. Id. at 16. She notes that
although OYFS characterized Mother’s compliance with the drug and alcohol
objective of her family service plan as moderate, OYFS did not previously
object to her participation in a Subutex program and could not offer evidence
of a single occasion when Mother relapsed. Id. at 20. Mother contends that
she submitted negative drug screens and was not referred to a court
treatment program. Id.
Further, Mother argues that the failure of Foster Parent and OYFS to
inform Mother of Children’s medical appointments amounted to “lost
opportunities for education of Mother” and prevented Mother from bonding
with Children. Id. Mother similarly contends that she was not given the
opportunity for visitation beyond line-of-site visits, and that OYFS was not
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justified in maintaining line-of-site visits based on Mother’s pending criminal
charges. Id. at 21. Mother asserts that the failure to offer unsupervised
visitation prevented her from bonding with Children. Id. at 20. Essentially,
Mother claims that she would have been able to overcome these deficiencies
if she had been afforded the opportunity to attend Children’s medical
appointments or had unsupervised visits. Id. at 21-22.
We apply the following standard of review when considering an appeal
from an order involuntarily terminating parental rights:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
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
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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, 708 A.2d 88, 91 (Pa. 1998)).
Here, the trial court terminated Mother’s parental rights pursuant to
Section 2511(a)(2), (5), (8), and (b). We need only agree with the court’s
determinations as to any one subsection of Section 2511(a), as well as Section
2511(b), to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en
banc). Therefore, we initially analyze the trial court’s decision under Section
2511(a)(8) which provides 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:
* * *
(8) The child has been removed from the care of the parent by
the court or under a voluntary agreement with an agency, 12
months or more have elapsed from the date of removal or
placement, the conditions which led to the removal or
placement of the child continue to exist and termination of
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parental rights would best serve the needs and welfare of the
child.
23 Pa.C.S. § 2511(a)(8).
Once the trial court determines that the twelve-month period exists, it
must next consider whether the conditions that led to the child’s removal
continue to exist. In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). The
“relevant inquiry in this regard is whether the conditions that led to removal
have been remedied and thus whether reunification of parent and child is
imminent at the time of the hearing.” In re I.J., 972 A.2d 5, 11 (Pa. Super.
2009). Section 2511(a)(8) also requires a court to assess the needs and
welfare of the relevant child or children. The needs and welfare analysis
“under Section 2511(a)(8) accounts for the needs of the child in addition to
the behavior of the parent” and must be addressed separately before
considering the best interests of a child. See In re C.L.G., 956 A.2d 999,
1008-09 (Pa. Super. 2008) (en banc).
Section 2511(a)(8), however, does not require consideration of a
parent’s willingness or ability to remedy the conditions that led to the removal
of his or her child. In re Adoption of R.J.S., 901 A.2d 502, 511 (Pa. Super.
2006). Further, a trial court is not required to consider whether the agency
supplied reasonable reunification services. See In re Adoption of C.J.P.,
114 A.3d 1046, 1055 (Pa. Super. 2015) (noting that “nothing in the language
of Section 2511(a)(8) suggests that reasonable reunification services are
necessary to support the termination of parental rights”).
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In its opinion, the trial court concluded that the most concerning aspect
of the case was “Mother’s repeated denial of responsibility, failure to
acknowledge C.J.N.’s near fatality, and minimization of his medical condition.”
Trial Ct. Op., 1/2/20, at 7. The trial court noted, “Mother demonstrated an
inability to conceptualize reality and comprehend her own behavior and the
ensuing consequences.” Id. The trial court credited OYFS evidence that
Mother continued the same behavior, failed to utilize the services provided,
and placed Children at risk for future neglect. Id. Furthermore, the trial court
noted that shortly after OYFS took Children into custody, Mother neglected
prenatal care, missed scheduled C-sections, and suffered a stillbirth. Id.
The trial court explained:
[Children] were removed from Mother’s care on February 27,
2017, approximately two (2) years prior to [OYFS’s] termination
petition. As previously discussed, Mother’s apathetic behavior
persists, she has been inconsistent in her participation with
services provided, and she has demonstrated an inability to apply
any skills imparted through those services in parenting the minor
children after more than two years. Mother failed to demonstrate
any changed behavior. Mother has no drug and alcohol support,
and[,] despite Mother’s visits with Dr. Kuna, the mental health
and behavioral concerns that led to the filing of this dependency
action continue to exist and show the risk of future neglect.
* * *
[T]he bond between Mother and C.J.N. is utterly lacking, while the
bond between Mother and Z.D.N. is inconsistent. This [c]ourt
noted that C.J.N. showed apprehension during visitation, bouts of
crying, and excitement when reunited with his paternal
grandfather. C.J.N. has been in kinship foster care longer than he
has been in the custody of his Mother. Z.D.N. required early
intervention support, and has since significantly improved
developmentally. Both [Children] attended all medical
appointments and present with appropriate immunizations. As
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such, this [c]ourt finds termination of Mother’s rights to be in
[Children’s] best interests.
Trial Ct. Op., 1/2/20, at 8-10.
Following our review, we find competent evidence supports the trial
court’s conclusions that the termination of Mother’s parental rights was
appropriate under Section 2511(a)(8). Children were removed from Mother’s
care in February 2017, more than one year prior to the filing of the termination
petitions in March 2018, and the hearing in March 2019. Mother did not
remedy the primary issue that led to Children’s removal, her ability to safely
care for their health. Mother failed to complete the Safe-Care module
addressing children’s health, made inappropriate comments about C.J.N.’s
weight, and improperly measured food or water. Moreover, Mother did not
acknowledge C.J.N.’s medical diagnosis and continued to believe that his
condition, which was classified as a “near fatality,” was the result of a cold or
the flu. Mother has no bond with C.J.N. While Mother maintains a bond with
Z.D.N., the record supports the trial court’s finding that Mother continues to
“show the risk of future neglect.” Id. at 9.
While Mother’s argues that her plea of nolo contendere to a lesser
criminal charge demonstrates her compliance with OYFS, the testimony
regarding OYFS’s involvement consisted of Ms. Kanavy recalling that she
informed Mother’s criminal counsel that visits went well. Regardless of
whether Mother interacted well with Children at the visits, the safety concerns
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that led to Children’s removal continued to exist. See I.J., 972 A.2d at 11-
12.
Moreover, we acknowledge that Mother complied with portions of the
family service plan. However, Mother’s argument that she would be able to
parent Children safely if OYFS afforded her greater opportunities to attend
Children’s medical appointments or have unsupervised visits is entirely
speculative. Moreover, it appears that Mother asserts that OYFS should have
offered more or different services to her. However, the trial court can reject
such arguments. See C.J.P., 114 A.3d at 1055 (“nothing in the language of
Section 2511(a)(8) suggests that reasonable reunification services are
necessary to support the termination of parental rights.”).
Therefore, having reviewed the record, the trial court’s opinion, and
Mother’s arguments on appeal, we affirm the trial court analysis with respect
to Section 2511(a)(8) was appropriate. See T.S.M., 71 A.3d at 267.
Mother next argues that OYFS failed to establish “the best interests of
[Children] would be served by terminating [Mother’s] parental rights at this
time.” Mother’s Brief at 23 (emphasis in the original). Mother contends that
her inability to participate in meaningful visitation programs prevented her
from maintaining a bond with Z.D.N. or developing a bond with C.J.N. Id.
Mother asserts that she was prevented from progressing past supervised
visits, and that OYFS had no reason for not permitting her to do so. Id.
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Mother further argues that her efforts were thwarted because she was not
notified of Children’s medical appointments. Id. at 24.
Section 2511(b) states:
(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(b).
Our Supreme Court has stated as follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In In re E.M., [620 A.2d 481,
485 (Pa. 1993)], this Court held that the determination of the
child’s “needs and welfare” requires consideration of the emotional
bonds between the parent and child. The “utmost attention”
should be paid to discerning the effect on the child of permanently
severing the parental bond. However, as discussed below,
evaluation of a child’s bonds is not always an easy task.
T.S.M., 71 A.3d at 267 (some citations omitted).
With respect to Section 2511(b), the trial court concluded that
termination of Mother’s parental rights best met Children’s needs and welfare,
reasoning:
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This [c]ourt finds that [Children, who were] placed in kinship
foster care for approximately two years[,] deserve the
permanency and stability that they are currently enjoying
together. [Children’s] placement in kinship foster care is
appropriate, stable, involved, and supported. Importantly,
[Children] have a recognizable bond with each other. [Foster
Parent’s] bond with [Children] is “positive.” For example,
“[Children] are very comfortable, very loving, . . . they run up to
[him], they run up to [his wife,] . . . they’re very comfortable in
the home . . . [, Foster Parent] began providing care and
nourishment . . . and that’s who [C.J.N.] looks to for support and
safety. . . . [C.J.N.] calls [Foster Parent] “Bear,” so he definitely
looks to them as a positive support and his family, that’s his
family.” Moreover, [Foster Parent] has provided increased family
interaction and communication with several aunts and uncles.
Contrastingly, the bond between Mother and C.J.N. is utterly
lacking, while the bond between Mother and Z.D.N. is
inconsistent. This [c]ourt noted that C.J.N. showed apprehension
during visitation, bouts of crying, and excitement when reunited
with [Foster Parent]. C.J.N. has been in kinship foster care longer
than he has been in the custody of his Mother. Z.D.N. required
early intervention support, and has since significantly improved
developmentally. Both minor children attended all medical
appointments and present with appropriate immunizations. As
such, this [c]ourt finds termination of Mother’s rights to be in the
minor children’s best interests.
Trial Ct. Op., 1/2/20, at 9-10 (record citations and some formatting altered).
The credited testimony supports the trial court’s determination that it
would best serve the needs and welfare of Children to involuntarily terminate
Mother’s parental rights pursuant to Section 2511(b). Although Mother argues
that Foster Parent and OYFS placed barriers to her forming a bond with
Children by limiting her ability to attend medical appointments and limiting
visits with Children to line-of-sight, Mother’s argument is too speculative.
Although Mother asserts that she should be given more time to develop or
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strengthen a bond with Children, preserving Mother’s parental rights would
serve only to deny Children the permanence and stability to which they are
entitled. See In re Adoption of C.D.R., 111 A.3d 1212, 1220 (Pa. Super.
2015) (reiterating that “it would not be in [the child’s] best interest for his life
to remain on hold indefinitely in hopes that Mother will one day be able to act
as his parent.”). Accordingly, the trial court did not err in terminating Mother’s
parental rights to Children pursuant to Section 2511(b). See T.S.M., 71 A.3d
at 267.
For the foregoing reasons, we affirm the orders involuntarily terminating
Mother’s parental rights to Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2020
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