In the Interest of: M.E.M., Appeal of: M.E.M

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.E.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
APPEAL OF: M.E.M., BIOLOGICAL :
FATHER : No. 1615 WDA 2019

Appeal from the Order Entered October 10, 2019
in the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02-AP-0000023-2019

IN THE INTEREST OF: M.E.M, A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
:
:
:
APPEAL OF: M.P., NATURAL MOTHER : No. 1624 WDA 2019

Appeal from the Order Entered October 10, 2019
in the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CP-02AP-023-2019

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 30, 2020

M.E.M. (“Father”) and M.P. (“Mother”) (collectively, the “Parents”)

appeal from the Orders granting the Petitions filed by the Allegheny County

Office of Children Youth and Families (“OCYF”), which sought to involuntarily

terminate their parental rights to their biological child, M.E.M. (“Child”) (a

male born in January 2018), pursuant to the Adoption Act, 23 Pa.C.S.A.

§ 2511(a)(2), (5), (8), and (b). Father challenges the termination of his
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parental rights under each of these sections. Mother challenges only whether

the trial court properly terminated her parental rights under section 2511(b).

We affirm both Orders.

In its Opinion, the trial court set forth the factual background and

procedural history of this appeal, which we adopt for the purpose of this

appeal. See Trial Court Opinion, 12/10/19, at 1-9.

At the hearing, Tara Yontz, Esquire (“Attorney Yontz”), from KidsVoice,

was present as the guardian ad litem (“GAL”) for Child, since she already

served as GAL in the dependency matters for Child and his siblings, who were

not present. N.T., 2/19/19, at 3. Attorney Yontz requested the appointment

of conflict counsel for Child in the termination proceedings. See In re

Adoption of L.B.M., 161 A.3d 172, 174-75 (Pa. 2017) (plurality) (wherein

our Supreme Court held that 23 Pa.C.S.A. § 2313(a) requires that counsel be

appointed to represent the legal interests of any child involved in a contested

involuntary termination proceeding. The Supreme Court further defined a

child’s legal interest as synonymous with his or her preferred outcome); see

also In re T.S., 192 A.3d 1080, 1089-90, 1092-93 (Pa. 2018) (wherein the

Supreme Court held that the trial court did not err in allowing the childrens’

GAL to act as their sole representative during the termination proceeding

because, at two and three years old, they were incapable of expressing their

preferred outcome). John Cavicchio, Esquire (“Attorney Cavicchio”), was

appointed as conflict counsel.

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The trial court held evidentiary hearings on OCYF’s Petition on February

19, 2019, and September 27, 2019. At the February 19, 2019, hearing, OCYF

presented the testimony of Jennifer Watson (“Watson”), the OCYF caseworker

assigned to the family, see N.T., 2/19/19, at 3; Linda Patterson-Bell, a visit

coach from Holy Family Institute (“HFI”), see id. at 28; Emily Mackowiak

(“Mackowiak”), a visit coach from HFI, see id. at 52; and Laura Burbaugh

(“Burbaugh”), the treatment coordinator from Pressley Ridge, see id. at 74.

Attorney Yontz presented the testimony of T.K., Child’s foster mother (“Foster

Mother”), who is also the foster mother for Child’s older brother, Ai., see id.

at 78; and H.E.-M., the foster mother for Child’s older brother, Ad., see id. at

83. Mother testified on her own behalf. See id. at 61.

At the hearing on September 27, 2019, OCYF presented the testimony

of Watson, see N.T., 9/27/19, at 5; Heather Anderson, who is an in-home

services worker with HFI, see id. at 87; Mackowiak, see id. at 94; Burbaugh;

and Megan Brooks, who is the foster care planner at Pressley Ridge assigned

to Child (id. at 158). Attorney Cavicchio gave a statement

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regarding Child’s legal interests.1

In the Orders entered on October 10, 2019, the trial court terminated

Father’s and Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2),

(5), (8), and (b). Father and Mother, respectively, each timely filed a Notice

of Appeal along with a Concise Statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).2

On appeal, Father raises the following issues:

I. Whether the [t]rial [c]ourt committed fatal error and/or abused
its discretion in finding [that OCYF] met [its] burden of proof and
____________________________________________

1 The record reflects that, at the close of the evidence, Attorney Cavicchio
stated the position of Child, who was twenty months old, on the record. N.T.,
9/27/19, at 170-71. Attorney Cavicchio stated that, when he had broached
the topic of Child’s preference as to the termination of his Parents’ parental
rights, Child was not able to answer in any substantive way, and could not
express any preference. Id. Citing In re: T.S., 192 A.3d at 1082, Attorney
Cavicchio stated that, where a child cannot express his preference, the role of
legal counsel is effectively synonymous with that of a GAL, such that Attorney
Cavicchio was to offer what he believed was in Child’s best interests. N.T.,
9/27/19, at 170-71. Attorney Cavicchio testified that it would be in Child’s
best interests for the trial court to terminate Parents’ parental rights. Id. at
171. We do not comment on the quality of Attorney Cavicchio’s representation
of Child. See In re: Adoption of K.M.G., 219 A.3d 662, 669 (Pa. Super.
2019) (en banc), (holding that this Court has authority only to raise, sua
sponte, the issue of whether the trial court appointed any counsel for the child,
and not the authority to delve into the quality of the representation), appeal
granted in part and denied in part, 221 A.3d 649 (Pa. 2019).

2 On November 12, this Court, acting sua sponte, listed the appeals
consecutively. We are addressing both appeals in the same Memorandum, as
the trial court addressed both Father’s and Mother’s matters in the same
Opinion. On December 11, 2019, this Court granted the Motion to substitute
counsel, substituting Lynne Sherry, Esquire (“Attorney Sherry”), as legal
counsel for Child, replacing Attorney Cavicchio. Attorney Sherry filed a brief
on behalf of Child in this matter.

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proved[,] by clear and convincing evidence[,] that the parental
rights of [Father] should be terminated pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), (a)(5), and (a)(8)?

II. Whether the [t]rial [c]ourt erred and/or abused its discretion
by finding that the [OCYF] met [its] burden of proof and proved[,]
by clear and convincing evidence[,] that terminating the parental
rights of [Father] best meets the needs and welfare of [Child]
pursuant to 23 Pa.C.S.A. § 2511(b)?

Father’s Brief at 5.

On appeal, Mother raises one issue:

1. Did the trial court abuse its discretion and/or err[,] as a matter
of law[,] in concluding that termination of [] Mother’s parental
rights would serve the needs and welfare of [] Child pursuant to
23 Pa.C.S.A. § 2511(b)?

Mother’s Brief at 6.3

In reviewing an appeal from the termination of parental rights, we

adhere to the following standard:

[A]ppellate courts must apply an abuse of discretion
standard when considering a trial court’s determination of a
petition for termination of parental rights. As in dependency
cases, our standard of review requires an appellate court to accept
the findings of fact and credibility determinations of the trial court
if they are supported by the record. In re: R.J.T., … 9 A.3d 1179,
1190 (Pa. 2010). If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law

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3 Mother does not raise section 2511(a) in the Statement of Questions
Involved in her brief. See Krebs v. United Refining Co. of Pa., 893 A.2d
776, 797 (Pa. Super. 2006) (stating that any issue not set forth in or
suggested by an appellate brief’s statement of questions involved is deemed
waived). In fact, Mother concedes that OCYF established, by clear and
convincing evidence, that the grounds for termination pursuant to 23
Pa.C.S.A. § 2511(a)(2) were satisfied. We, nevertheless, would find such a
challenge lacks merit for the reasons set forth infra, and provided in the trial
court’s Rule 1925(a) Opinion.

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or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa. 2011)
[(plurality)]. As has been often stated, an abuse of discretion
does not result merely because the reviewing court might have
reached a different conclusion. Id.; see also Samuel Bassett
v. Kia Motors America, Inc., … 34 A.3d 1, 51 (Pa. 2011);
Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a
decision may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for
applying an abuse of discretion standard of review in these cases.
We observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. R.J.T., 9 A.3d at 1190.
Therefore, even where the facts could support an opposite result,
as is often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the trial court
and impose its own credibility determinations and judgment;
instead we must defer to the trial judges so long as the factual
findings are supported by the record and the court’s legal
conclusions are not the result of an error of law or an abuse of
discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066
(Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

The burden is upon the petitioner to prove, by clear and convincing

evidence, that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The

standard of clear and convincing evidence is defined as testimony that is so

“clear, direct, weighty and convincing as to enable the trier of fact to come to

a clear conviction, without hesitance, of the truth of the precise facts in issue.”

Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

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This Court may affirm the trial court’s decision regarding the termination

of parental rights with regard to any one subsection of section 2511(a), along

with consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). We will address section 2511(a)(2) and

subsection (b), which provide as follows:

§ 2511. Grounds for involuntary termination

(a) General rule.--The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:

***

(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions and
causes of the incapacity, abuse, neglect or refusal cannot
or will not be remedied by the parent.

***

(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.

23 Pa.C.S.A. § 2511(a)(2), (b).

To satisfy the requirements of subsection (a)(2), the moving party must

produce clear and convincing evidence regarding the following elements: (1)

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repeated and continued incapacity, abuse, neglect or refusal; (2) such

incapacity, abuse, neglect or refusal 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. See In re Adoption of M.E.P., 825 A.2d 1266, 1272

(Pa. Super. 2003). The grounds for termination of parental rights under

subsection (a)(2), 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 A.L.D.

797 A.2d 326, 337 (Pa. Super. 2002).

Father argues that the trial court erred and/or abused its discretion in

terminating his parental rights under subsection(a)(2). Father’s Brief at 10.

Father asserts that he did make progress in achieving his plan goals, and

remedying the conditions that led to the dependency adjudication. Id. at 11.

Father states that he completed a domestic violence program through Renewal

Center and a Batterer’s Intervention Program through Woman’s Center and

Shelter. Id. (citing N.T., 9/27/19, at 26). Father alleges that no domestic

violence incidents occurred since 2014, or during the life of Child. Id. Father

states that he attended mental health therapy from October 2, 2018, through

July 31, 2019. Id. Father asserts that he also visited Child to strengthen his

bond with Child. Id.

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In its Opinion, the trial court addressed the termination of Father’s 4

parental rights under 23 Pa.C.S.A. § 2511(a)(2). See Trial Court Opinion,

12/10/19, at 11-12. We agree with and adopt the trial court’s Opinion with

regard to the termination of Father’s parental rights under 23 Pa.C.S.A.

§ 2511(a)(2). See id.

There is competent evidence in the record that supports the trial court’s

findings and credibility determinations. The termination of Father’s parental

rights to Child is warranted pursuant to section 2511(a)(2), as Father clearly

lacks parental capacity, and the evidence showed that he will be unable to

remedy that situation within a reasonable period of time, if ever. There was

sufficient, competent evidence in the record for the trial court to find the

grounds for termination of parental rights under section 2511(a)(2), due to

parental incapacity that cannot be remedied. We thus find no abuse of the

trial court’s discretion in finding that Father’s parental rights should be

terminated under section 2511(a)(2). See In re Adoption of S.P., 47 A.3d

at 826-27.

Next, we address the Parents’ challenge to termination pursuant to

section 2511(b). We have explained that the focus in terminating parental

rights under section 2511(a) is on the parent, but, under section 2511(b), the

focus is on the child. See In re Adoption of C.L.G., 956 A.2d 999, 1008

____________________________________________

4The trial court also addressed the termination of Mother’s parental rights
under subsection (a)(2).

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(Pa. Super. 2008) (en banc). In reviewing the evidence in support of

termination under section 2511(b), our Supreme Court has stated as follows:

[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S.A. § 2511(b). The emotional needs and welfare
of the child have been properly interpreted to include
“[i]ntangibles such as love, comfort, security, and stability.” In
re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620
A.2d 481, 485 (Pa. 1993)], this Court held that the determination
of the child’s “needs and welfare” requires consideration of the
emotional bonds between the parent and child. The “utmost
attention” should be paid to discerning the effect on the child of
permanently severing the parental bond. In re K.M., 53 A.3d at
791.

In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

When evaluating a parental bond, the trial 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 1108, 1121 (Pa. Super. 2010) (internal

citations omitted). Although it is often wise to have a bonding evaluation and

make it part of the certified record, “[t]here are some instances … where direct

observation of the interaction between the parent and the child is not

necessary and may even be detrimental to the child.” In re K.Z.S., 946 A.2d

753, 762 (Pa. Super. 2008).

A parent’s neglect is likewise a relevant part of this analysis:

[C]oncluding a child has a beneficial bond with a parent simply
because the child harbors affection for the parent is not only
dangerous, it is logically unsound. If a child’s feelings were the
dispositive factor in the bonding analysis, the analysis would be

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reduced to an exercise in semantics as it is the rare child who,
after being subject to neglect and abuse, is able to sift through
the emotional wreckage and completely disavow a parent …. Nor
are we of the opinion that the biological connection between [the
parent] and the children is sufficient in [and] of itself, or when
considered in connection with a child’s feeling toward a parent, to
establish a de facto beneficial bond exists. The psychological
aspect of parenthood is more important in terms of the
development of the child and [his or her] mental and emotional
health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child. See In re K.Z.S., 946 A.2d at 763-64 (affirming the involuntary

termination of the mother’s parental rights, despite the existence of some

bond, where placement with the mother would be contrary to the child’s best

interests, and any bond with the mother would be fairly attenuated when the

child was separated from her, almost constantly, for four years).

Father argues that the trial court erred in finding that the termination of

his parental rights serves Child’s best interests. Father’s Brief at 14. Father

asserts that his failures are not significant for purposes of assessing Child’s

bond with him. Id. at 16. Father contends that the trial court erred and/or

abused its discretion in ruling that the severance of the bonded relationship

between Father and Child best meets the needs and welfare of Child. Id.

Likewise, Mother argues that the trial court abused its discretion and

erred as a matter of law by concluding that the termination of her parental

rights would best serve the needs and welfare of Child pursuant to section

2511(b). Mother’s Brief at 11. Mother asserts that the issue of what serves

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the needs and welfare of Child is not the same as what is in his best interest,

and the issue is to be analyzed to a much higher standard. Id. Mother

contends that the trial court failed to consider the nature of the bond between

Mother and Child, as well as what effect the termination of her parental rights

would have on Child. Id.

In its Opinion, the trial court addressed the termination of Father and

Mother’s parental rights, under 23 Pa.C.S.A. § 2511(b), and determined that

termination would serve Child’s best interests. See Trial Court Opinion,

12/10/19, at 12-13. The record supports the trial court’s findings, and its

conclusion is sound. See id. We reject the Parents’ arguments and agree

with the trial court’s determination that there is no parent-child bond that, if

severed, would permanently affect Child. There was competent evidence in

the record from which the trial court could conclude that the termination of

the Parents’ parental rights to Child serves Child’s needs and welfare and is in

his best interests. The record supports the trial court’s factual findings, and

the court’s conclusions are not the result of an error of law or an abuse of

discretion with regard to section 2511(b). In re Adoption of S.P., 47 A.3d

at 826-27. We therefore affirm on the basis of the trial court’s Opinion with

regard to termination of the parental rights of Father and Mother pursuant to

section 2511(b).

This Court has explained that a parent’s own feelings of love and

affection for a child, alone, do not prevent termination of parental rights. In

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re Z.P., 994 A.2d at 1121. Further, this Court has stated: “[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 [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). “[W]e will not toll the well-

being and permanency of [a child] indefinitely.” In re Adoption of C.L.G.,

956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)

(noting that 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.”)).

We, therefore, affirm the Orders terminating Father’s and Mother’s

parental rights with regard to Child under section 2511(a)(2) and (b).

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2020

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 Circulated 03/19/2020 12:04 PM

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION

IN THE INTEREST OF: CHILDREN'S FAST TRACK APPEAL
M.W.E-M. minor child
Docket No.: AP-23-2019
APPEAL OF: M.E-M. natural father 1615 WDA 2019 & 1624 WDA 2019
M.P. natural mother

OPINION

PROCEDURAL HISTORY:
On September 27th, 2019 this Court granted the Office of Children Youth and Families'

(hereinafter OCYF) Petition to Terminate the Parental Rights of M.P. (hereinafter Mother} and

M.E-M. (hereinafter Father) pursuant to 23 Pa.C.S.A. §251 I (a)(2). (5), (8) and (bJ. Father filed
I
a timely appeal as to the Court's finding that his parental rights be terminated pursuant to 23

Pa.C.S.A. §2511 (a)(2), (5), (8) and (b). Mother filed a timely appeal as to the Court's finding

that termination would best serve the needs and welfare of the child pursuant to 23

Pa.C.S.A. §2511 (b) only. For the reasons set forth below, the order of this Court should be

affirmed.

HISTORY:

M.W.E-M. (hereinafter "the child") was born on January •. 2018. The family had three

open dependency cases before the Court for the child's three older siblings. All three of

those children were in foster care at the time of the child's birth and the parents had

supervised vlsitatlon wlth those chlldren. The family first came to the attention of OCYF in

2014 after OCYF received reports that the parents were not meeting the nutritional and

1
medical needs of one of their children. As OCYF became more involved with the family,

they developed additional concerns about substance abuse and domestic violence. When

the family became court active in 2014, the parents were court ordered to engage in drug

and alcohol treatment, attend random screens, engage in mental health treatment, attend

parenting classes, and both were to participate in domestic violence theropv'. The parents'

court ordered goals have remained the same throughout the history of the case.

After the child's birth on January 7th, 2018, he was required to remain at the hospital for

two weeks to wean off Subutex, which was prescribed to Mother during her pregnancy. Prior

to his birth and immediately after, OCYF continued to have concerns that the parents had

not remedied the concerns which led to the removal of their older children. Additionally, the

parents had failed to make enough progress to obtain unsupervised visitation with the older

siblings. As a result, OCYF obtained an Emergency Custody Authorization for the child upon

his discharge from the hospital. He was placed in the foster home of T.K. and J.G. on

January 201h, 2018 as his older brother was also placed in this home.

The parties appeared for a Shelter Hearing on January 22nd, 2018. The Court ordered

the child remain in foster care and allowed parents supervised visitation three times a week.

OCYF filed a Dependency Petition and the Adjudicatory Hearing was held on February 7th,

2018. The Court found the child to be dependent pursuant to 42 Pa.C.S.A. §6302 and (10)2.

The Court ordered the child to remain in foster care. Parents had not been consistently

I Father had been identified as a perpetrator of domestic violence against Mother. He was convicted of Simple Assault in regard to
incidents in 2012, 2013 and 2014 in which she was the victim.
2 Mother's and Father's Parental rights were terminated with respect to one of the older siblings, N.E.-M., on January lO'h, 2018.

2
visiting the child as such, the Court ordered the parents to confirm visits 24 hours in advance.

Visitation was also changed to allow for the Coached Visitation Program to work with the

family. The parents were ordered to undergo forensic psychological evaluations at

Allegheny Forensic Associates, to comply with dual diagnosis treatment, attend random

drug screens, to sign releases for any treatment they were receiving, and Mother was

ordered to comply with domestic violence counseling. The Court also found that

aggravated circumstances existed as to both Mother and Father based on the prior

termination of their parental rights as it related to another child, N.E.-M .. The Court did not

relieve OCYF from making reasonable efforts to reunify the child with Mother and Father.

OCYF was ordered to continue providing services to the family. Foster parents were given

secondary educational and medical decision-making rights on-this date as well.

Dr. Patricia Pepe was the court-appointed licensed psychologist assigned to work with

the family in 2014. In February of 2018, Dr. Pepe conducted individual forensic evaluations of

both Mother and Father. During Mother's evaluation, Dr. Pepe noted that the issues had

remained the same throughout the history of the case. Specifically, that Mother had

continued to prioritize her relationship with Father over that of her children and had failed to

follow through with recommendations and goals set for her over the last four years. During

Father's evaluation. Dr. Pepe noted that Father's traumatic childhood continued to affect

his behavioral and psychological functioning. In her Discussion and Recommendations, Dr.

Pepe opined that the parents "each may at times give halfhearted attempts to appear as if

each is compliant, but any individual could in fact be fully compliant with all services yet not

internalize, process or make necessary and fundamental changes". She noted that the
3
parents have been compliant at various periods throughout her tenure with the family. She

noted that Father has made progress as to the domestic violence concerns that came to

the attention of OCYF in 2014. However, she opined that he continues to "be angry,

continues to project a great deal of responsibility and minimized his own role with not

actualizing himself into a fully functional parent". Specifically, she opined that as his anger

issues have lessened to some degree, character or personality issues have become more

evident. Dr. Pepe also reported that Mother has made some progress but that "she too can

easily externalize blame, projecting responsibility onto the system, and that she, not her

children, have been wronged in some way". Dr. Pepe recommended that the parents

comply with their court-ordered goals, specifically mental health treatment, drug and

alcohol treatment, and domestic violence therapy.

Heather Anderson, a visit coach from Holy Family Institute, provided the parents with

parenting instruction up until March l Sth, 2018. However, she only participated in visits with

M.W.E-M.'s older siblings. A new visit coach, Emily Mackowiak, was assigned to the family

after Ms. Anderson's departure. Ms. Mackowiak provided services specially tailored to the

family to assist them in setting and accomplishing goals with their children. Specifically, she

worked with the parents on maintaining safety during visits and ensuring that they can meet

the basic needs of the children. The additional goals developed for the family were for the

parents to provide educational activities for the child, engage in age-appropriate

interactions with him, provide healthy nutrition for him, and to focus their attention solely on

him and his needs during visits.

4
 The porties appeared on May 3Qth, 2018 for a Permanency Hearing. Mother and

Father were both found to be in moderate compliance with the permanency plan. The

parents were found to have made moderate progress toward alleviating the circumstances

which necessitated the placement of the child. The Court found that the parents had

increased their compliance during this reporting period but still needed to participate in the

child's medical appointments. Visits remained status quo, but the Court allowed for one of

the weekly visits to occur in the parents' home with the Coached Visitation Program. The

parents were ordered to continue dual diagnosis treatment, attend random screens, attend

forensic evaluations and follow any recommendations, and to attend the child's medical

appointments. Mother was ordered to continue domestic violence treatment.

Dr. Pepe conducted individual psychological evaluations of both parents in August of

2018. Dr. Pepe noted that Mother was able to recognize that she chose to remain with

Father as opposed to "steodtostly working on reunification with her children". While Dr. Pepe

opined that Mother was able to take some responsibility, she also noted that Mother

continues to blame "the system" for her failure to reunify with her children. Dr. Pepe also

made similar observations regarding Father. She opined that he had made progress over

the past four years but still struggled to accept his responsibility in the removal of his children.

Ultimately, Dr. Pepe opined that if the parents had been consistently engaged with

"recommended treatment modalities from the beginning, they would have a greater

capacity to understand how their individual issues have impacted their capacity to parent."

Additionally, she noted that any progress that they have made has not allowed them to

provide consistent and positive parenting. She also noted that "finally being compliant with
5
multiple goals at the eleventh hour simply does not provide either with the level of change

necessary to provide independent parenting''.

The parties appeared for a Permanency Hearing on October l 71h, 2018. The Court

ordered the child to remain in foster care. The parents were found to be in moderate

compliance with the permanency plan and to have made moderate progress. The Court

found that the parents had been more compliant with their attendance at urine screens as

well as dual diagnosis treatment. Based upon an improvement in visitation attendance, the

Court permitted the visits to move into the family home with a proper parenting program or

Visit Coaching Program to supervise3. The parents were ordered to continue drug and

alcohol treatment, mental health treatment, domestic violence therapy,

and random screens. The parents were also ordered to participate in the child's medical

appointments as they had not attended any medical appointment during that reporting

period.

The parents had been compliant with some of the court ordered goals during the

remainder of 2018 and the beginning of 2019. However, they continued to exhibit parenting

deficits despite working with numerous programs. Holy Family continued to work with the

family during this period and continued to have concerns. The visit coach, Emily Mackowiak,

had continued concerns about the parent's ability to safely and effectively parent the child.

While the parents attended a fair amount of the vlslts-, they struggled to accomplish goals

originally set for them in March of 2018. Throughout the eleven months that the program

3 Parents expressed a desire to work with a different parenting program or a different Visit Coaching Program.
4 Mother attended 80 out of 111 visits and Father attended 68 out of 111 visits.
6
worked with the family. the parents made little progress. Neither parent provided

educational activities for the child other than reading him a book on occasion. Ms.

Mackowiak prompted the parents to provide books or puzzles at visits. but neither was able

to consistently provide the child with activities to encourage development or education.

The parents typically put on cell phone videos for the child that they deemed to be

educational in nature. Ms. Mackowiak also reported that the parents struggled to

understand the child's developmental skills and ability. More specifically, the parents often

held child on their laps during feeding and play times although he was mobile and

expressed a desire to feed himself. While this did not happen all of the time. it happened

enough that Ms. Mackowiak had to intervene during the visits and re-direct the parents. Ms.

Mackowiak also reported that the parents displayed inappropriate behavior at the visits.

Specifically, the parents struggled to mask their emotions in front of child, often making

inappropriate remarks or displaying visible frustration. Both parents were consistently late to

visitation at the OCYF office which often caused the child to spend a portion of the visit

interacting with the visit coach only. Father took frequent trips outside of his home and the

office to talk on the phone and smoke cigarettes. Additionally, the parents often

encouraged the child to nap during the visits, even if the child resisted. The parents were

also instructed to provide the child with nutritious snacks at the visits. When visitation was in

the family home. the parents were able to prepare some healthy meal options. However.

when the visits were moved to the OCYF Office, the parents rarely brought healthy snack

choices. There were also some safety concerns at both the visits in the home and at the

OCYF office. Ultimately, it was Ms. Mackowiak's testimony that the parents needed regular
7
prompts and were unable to make the necessary changes to their parenting styles. She

reported that the child appeared happy interacting with any adult at the visits and wasn't

particularly drawn to Mother or Father. Ms. Mackowiak reported that the child often sought

her attention and engaged her in play while the parents were present. Staff from Pressley

Ridge was also responsible for supervising visits and the Treatment Coordinator, Laura

Burbaugh, reported that Mother attend 73 out of 102 and was late 35 times. She further

reported that Father attended 46 out of 102 visits and he was late 29 tlmes.

Based upon the parent's overall lack of progress, OCYF filed the Petition to

Involuntarily Terminate Mother's and Father's Parental Rights on February 4th. 2019. The

parties oppeored for a Permanency Hearing on February 19th, 2019, and the Court ordered

the child to remain in foster care. The parents were found to be in minimal compliance with

the permanency plan and to have made minimal progress in alleviating the circumstances

which necessitated the original placement. The Court reduced visitation to once a week.

Parents were ordered to continue mental health and drug and alcohol treatment, to attend

random screens, and Mother was ordered to continue domestic violence therapy. In March

of 2019, coached visitation was moved out of the family home. Both Mother and Father's

parental rights were terminated with respect to their other two children on March 22, 2019.

The family's final forensic evaluations with Dr. Pepe were scheduled in April and August

of 2019. The birth parents failed to attend their individual evaluations and an interactional

evaluation with the child on April 4th, 2019, and they rescheduled evaluations on August 22nd,

2019. The child and his foster parents did attend an interactional evaluation on April 4th,

2019. Dr. Pepe noted that the foster parents exhibited excellent parenting skills and that the
8
child displayed multiple bonding behaviors suggestive of a positive and primary attachment

with them.

ANALYSIS:

Father alleges that this Court abused its discretion and/or erred as matter of law in

concluding that grounds for termination existed pursuant to 23 Pa.C.S.A. §25 l l (a) (2) (5) (8)

and (b). Mother alleges that this Court abused its discretion and/or erred as matter of law in

concluding that termination of her parental rights best suited the needs and welfare of the

child pursuant to 23 Pa.C.S.A. §2511 (b). 23 Pa.C.S.A. §25\ l provides that:

§ 2511. Grounds for involuntary termination
(a) General Rule.-The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following grounds:
(1} The parent bv conduct continuing for a period of at least six
months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.
(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.
(5) The child has been removed from the care of the parent by the
court or under a voluntary agreement with an agency for a period
of at least six months, the conditions which led to the removal or
placement of the child continue to exist, the parent cannot or will
not remedy those conditions within a reasonable period of time, the
services or assistance reasonably available to the parent are not
likely to remedy the conditions which led to the removal or
placement of the child within a reasonable period of time and
termination of the parental rights would best serve the needs and
welfare of the child.
(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
9.
 or more have elapsed from the date of removal or placement. the
conditions which led to the removal or placement of the child
continue to exist and termination of parental rights would best serve
the needs and welfare of the child.
(b) Other considerations.-The court in terminating the rights of a
parent shall give primary consideration to the developmental.
physical and emotional needs and welfare of the child. The rights of
a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing. furnishings,
income, clothing and medical care if found to be beyond the
control of the parent.
23 Po.C.S.A. §2511

"Parental rights may be involuntarily terminated where any one subsection of Section

2511 (al is satisfied, along with consideration of the subsection 2511 (b} provisions." In re Z.P.,

994 A.2d 1108, 1117 (Pa.Super.2010}. "Under Section 2511 (b}, the court must consider

whether termination will best serve the child's needs and welfare". In re C.P., 901 A.2d 516

(Pa.Super.2006}. "Intangibles such as love, comfort, security, and stability are involved when

inquiring about the needs and welfare of the child." Id. At 520. "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." In re Z.P.,

supra at 1121 . With respect to the needs and welfare analysis, "The court must discern the

nature and status of the parent-child bond, paying close attention to the effect on the child

of permanently severing the bond." In re C.P., 901 A.2d 516 (Pa.Super.2006}.

The statute permitting the termination of parental rights outlines certain irreducible
11

minimum requirements of care thct parents must provide for their children, and a parent

who cannot or will not meet the requirements within a reasonable time following intervention

by the state, may properly be considered unfit and may properly have ... her rights

terminated." In re B.L.L., 787 A.2d 1007. 1013 {Pa.Super.2011 ). There is no simple or easy

definition of parental duties. "Parental duty is best understood in relation to the needs of a
10
child. A child needs love, protection, guidance, and support. These needs, physical and

emotional, cannot be met by a merely passive interest in the development of the child. Thus,

this court has held that the parental obligation is a positive duty which requires affirmative

performance". Jn re B., N.M., 856 A.2d 847, 855 (Pa.Super.2004).

Father argues that OCYF has not met its burden with respect to 23 Pa.C.S.A. §251 l

(a)(2)(5) and (8). Father's lack of progress with his court ordered goals, namely coached

visitation, has caused his child to be without essential parental care, control or subsistence

necessary for his physical or mental well-being. Father was court ordered to attend both

mental health and drug and alcohol counseling throughout the history of the case. Father

had been connected to Turtle Creek Valley for these services for several years. His

attendance and compliance with the program have been inconsistent. He has not

consistently
, attended mental health treatment or random drug screens. Father reported

that he attended Suboxone Treatment on a regular basis but did not provide proof of

attendance or copies of his suboxone prescription to the OCYF caseworker. Father did not

sign a release of information for his dual diagnosis treatment at Turtle Creek Valley. He has

not attended his child's medical appointments. Father has had ample time to remedy the

conditions which led to the removal of his child and those conditions continue to exist.

The primary concern in this case is parenting. Mother has been slightly more

compliant with this goal but has not made any meaningful progress. The family has worked

with several different parenting programs since the case opened and parenting continues to

be an issue. Most recently, the family worked with Holy Family lnstitute's Coached Visitation

Program in 2018 and 2019. Holy Family reported little to no progress. The Holy Family re port
11
noted that the parents were late to almost every visit at the OCYF office and were seldom

prepared. This was alarming to the Court as the visits were only two hours in length and

occurred on the same days each week. The parent's lack of progress and inability to

recognize their parenting deficits are concerning. The Parents have not been able to follow

basic instructions regarding food choices and activities during relatively short periods of

visitation. Safety has been a concern during the visits in the family home as well as at the

OCYF Office. Based on this lack of progress, the Court found that neither parent possessed

the ability to safely and effectively parent their child. The parents have not attended any of

the child1s medical appointments and have not reported to the caseworker that they have

contacted any of the child's medical providers for updates. Parents did participate in early

intervention services but only because they occurred in the family home during visitation.

While there hove been periods of moderate compliance, the parents have failed to make

progress with respect to their parenting deficits.

With respect to 23 Pa.C.S.A. §2511 (b), the Court finds that the child does not have a

necessary or beneficial bond with his parents and that termination of their parental rights

best suits his needs and welfare. Dr. Pepe was tasked with evaluating whether the child had

a necessary or beneficial bond with his birth parents. However, the parents failed to appear

for multiple appointments, so she was unable to address the issue in her final report. She was

able to opine that given the fact the child "has been in the same home for nineteen months,

since his birth, and given the fact that he obviously is attached to and very happy with his

current caregivers, when considering best interest as being separate from those of his

biological parents, his current placement presents as a very positive, permanent placement
12
 • It •

resource for the child". The OCYF caseworker along with the Treatment Coordinator from

Pressley Ridge have reported that all the child's needs are being met in the foster home and

that he is very bonded with his foster parents. The Court relied on Dr. Pepe's reports and the

testimony of the OCYF caseworker, the Pressley Ridge Staff and the visit coach, Emily

Mackowiak, in determining that the child's primary bond was with his foster parents. Each

witness reported that the child looks to the foster parents for comfort and security. For these

reasons and the reasons stated above, the order of this Court should be affirmed.

BY THE COURT:

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