In Re Involuntary Termination of C.W.S.M.

TAMILIA, J.,

Dissenting.

¶ 1 Having carefully reviewed the majority memorandums in the matters of In Re: Involuntary Termination C.W.W.M. and K.A.L.M.-S., Appeal of D.A.M. (mother), 3393 EDA 2002 and In Re: Involuntary Termination C.W.W.M. and K.A.L.M.-S., Appeal of C.J.S. (father), 3394 EDA 2002, I respectfully dissent to the decision to reverse the Orders terminating appellants’ parental rights and remand to allow the parents to present testimony regarding the emotional bonds between each parent and their children and also, the effect the termination of parental rights will have on the children.

¶ 2 A review of the record indicates the evidence presented by CYS was clear and convincing so as to support the trial court’s conclusion that termination of parental rights is in the children’s best interests. The parents demonstrated a repeated failure to comply with the treatment and educational opportunities suggested and offered by CYS or ordered by the court, and their overt failure and/or refusal to cooperate with CYS in order to regain custody of their children supports the trial court’s finding that termination of parental rights is in the best interest of the children as they are thriving both mentally and physically in their foster environment.

¶3 The majority has reversed the Orders of the trial court and remands the matters for the court to make an analysis of the presence of bonding or lack of it between the father and the children, mother and the children and the likely effect termination of each parent’s parental rights will have on the children.

¶ 4 The factual summary of this case is as follows. C.J.S., father, and D.A.M., mother, appeal the July 25, 2002 respective Orders terminating each parents rights to the children, son, C.W.S.M., D.O.B. 10/23/94 and daughter, K.A.L.M.-S., D.O.B. 1/29/96.3 The children are represented by counsel who supports termination.

¶ 5 Northampton CYS became initially became involved with parents in December 1994 because of abusive strapping of B.M., an older son not involved here, and C.W.S.M.’s failure to thrive. Father’s chemical dependency was a precipitating factor as were multiple referrals for failure in parenting by both parents. In February 1995, C.W.S.M. was hospitalized for low weight. After gaining weight he was released subject to an intensive feeding *418program but weight loss again resulted. This necessitated removal from his parents on February 17, 1995. Parents were directed to be involved in parenting classes, and to seek more adequate housing. Mother failed to complete Housing Authority forms necessary to obtain housing; moreover she refused parenting classes offered to her through the Program for Women and Children, instead attending seven (7) of twenty-two (22) sessions of the KidsPeace parenting program. She also refused urine testing for drugs. Father completed an inpatient drug treatment program at the end of March 1995 but failed to attend the aftercare addiction treatment program and parenting classes. CYS involved parents in several other programs including supervised visitation with C.W.S.M. but lack of progress resulted in denial of the child’s return. Ultimately, on May 12, 1995, C.W.S.M. was adjudicated dependent.

¶ 6 Following the birth of K.A.L.M.-S., on January 29, 1996, parents obtained new housing; they complied with court-ordered service and C.W.S.M. was returned home on July 18, 1996. Thereafter, family problems continued which resulted in the removal of B.M. (the older child) in June 1997 due to mother’s abuse. Father had called CYF several times during the summer of 1997 regarding concern over mother’s neglect and in November 1997, police were summoned for two domestic disputes.

¶ 7 On December 18, 1997, both C.W.S.M. and K.A.L.M.-S. were adjudicated dependent with placement suspended and the children permitted to remain with mother provide she cooperate with services and referrals. Father was also required to participate. In January 1998, C.W.S.M. appeared at day care with severe burns on his buttocks which occurred while in mother’s care. CYF filed a petition to revoke the suspended placement which was withdrawn upon mother’s compliance with agency programs. In March 1998, there was further non-compliance and an Order was entered in December 1998 for placement of the children out of the home. Mother and. father appealed placement and placement did not occur.

¶ 8 In February 1999, an abuse report was filed and although unfounded, after investigation, the children were found to be at risk and placed in custody of CYF and have remained in foster care since that time. The parents were placed in multiple programs for parenting, anger management, drug rehabilitation, none of which were completed successfully. On September 25, 2001, CYF petitioned to terminate parental rights. Following a four-day hearing, termination was ordered on the basis of findings of violations of sections 23 Pa.C.S.A. §§ 2511, Grounds for involuntary termination, (a) General rule (1), (2), (5) and (8).

¶ 9 The majority would require the trial court to establish an additional element, the lack of an emotional relationship between the children and the parents, before termination would be justified. I believe this would not be possible in this case or the majority of cases where termination occurred as children continue to be attracted to their biological parents even in situations of neglect or abuse when their needs and welfare clearly mandate removal and placement for adoption. Only when the bond is unusually strong, and severance clearly would be detrimental to the children, would termination be contraindicated. I do not find that situation existing here.

¶ 10 The continued attachment to the natural parents, despite serious parental rejection through abuse and neglect, and failure to correct parenting and behavior disorders which are harming the children cannot be misconstrued as bonding. The *419bonding cannot be in one direction only— that of child to the parent — but must exhibit a bilateral relationship which emanates from the parents’ willingness to learn appropriate parenting, anger management, drug rehabilitation and marital stability. It is inconceivable that a child’s bonding to the parent, if it can be documented, will supervene failure to thrive, abuse reports, burned buttocks due to neglect, domestic violence reports and removal of the children into foster care due to adjudications of dependency and termination findings pursuant to four categories of the law permitting termination of parental rights (2511(a)(1), (2), (5) and (8)).

¶ 11 Although the trial court did not expressly categorize lack of bonding with the parents as a finding which addressed the needs and welfare of the children, the totality of the evidence demonstrates a lack of bonding and, in conjunction with the overwhelming evidence addressing the children’s’ needs and welfare which support termination, a further review of the presence or absence of bonding is unnecessary.

¶ 12 The following is an example which establishes that bonding is contraindicated and not present:

¶ 13 In January 1995, the agency became concerned with C.W.S.M.’s low weight and added services by the Visiting Nurse Association (VNA) to monitor his weight and to provide additional parenting skills education to the mother (N.T., 3/12/02). The child was hospitalized for low weight, gained weight in the hospital, and was then released on a very intensive, enriched feeding program. Notwithstanding, he again suffered significant weight loss and it was necessary for the agency to provide emergency placement for him. (N.T. at 28). This is the classic pattern of failure to thrive incident to maternal deprivation and is the major indicator of lack of bonding between parent and child. Thereafter, parents failed to achieve most of the goals of parenting training, drug rehabilitation and hving/housing improvements (N.T. at 29). Their behavior, life style and intractability indicates there will be no bonding as these are patterns of parenting inadequacy which make bonding to the child improbable or, if it takes place, pathological.

¶ 14 The trial court made 94 findings of fact and documented supporting conclusions of law through eleven pages of discussion. In particular, findings of fact by the trial court which contraindicate parental bonding or capacity to bond are as follows.

8. Chris was hospitalized for low weight. During this hospitalization, he gained weight and was released with a prescription for a very intensive, rich feeding program.
9. Chris began losing weight after leaving the hospital and he was removed from his home and provided an emergency placement on February 17, 1995.
19. The agency Informed mother that Chris could come home if she complied with services for the next two weeks and if father was not living in the home.
21. As a result of her noncompliance, Christopher was not returned home.
23. After obtaining new housing and complying with court ordered services, Chris was returned home on July 18, 1996.
34. The agency conducted an abuse investigation in January 1998 when mother was accused of physically abusing Chris. The abuse consisted of a *420severe burn on Chris’s buttocks received while under mother’s supervision. The abuse was found to be “indicated.”

(Trial Court Opinion, Freedberg, P.J., at 2-5.)

¶ 15 Between December 1997 and January 2002, there were 52 findings of fact indicating failure on the part of the parents to follow agency and court directions required to have the children reunited with them, including parent training, anger management, drug rehabilitation, visitation compliance, psychiatric treatment, drug testing and screening, daycare placement of the children, compliance with visitation restrictions — in addition there were police domestic calls, harassment and assault by husband against wife and difficulties with housing and budgeting requiring seeking help from the food bank. In general it has been established, by the findings of fact based on the testimony presented by several agency workers, psychologists, drug rehabilitation experts and family counselors, that this is a dysfunctional family with virtually no prospects of rehabilitation.

¶ 16 At finding of fact 80 of the trial court Opinion, the court states: “Father testified that he stopped attending urine screens because he was going to voluntarily relinquish his paternal rights. He stated that ‘it’s been going on for three years. I don’t want to do it anymore.’ ” (Trial Court Opinion at 10.) This is a clear admission he is bonded to his drug addiction and gives it priority over his children. There can be no bonding to the children under these circumstances.

¶ 17 At findings 83, 84 and 85, the court states:

83.Initially, both children had developmental delays when they were placed in foster care. In July 1999, it was determined that both children were developing normally.
84. The children are comfortable and happy in their foster home. The family relationships are positive. The children are bonding well with the foster parents.
85. The children leave the visitation periods [with parents] without incident. There is no crying and the children do not hesitate to leave.

(Trial Court Opinion at 10; emphasis added.)

¶ 18 To document the bonding which has occurred with the foster parents and the affirmative results of that relationship, which could only face reversal if the children were reunited with the parents, who have made no significant progress in over three years, the court made the following findings of fact.

86. The children’s needs are being met by the foster parents.
87. The children are content and happy in the foster parents’ care.
88. The children are involved in school related activities such as soccer.
89. The children are receiving regular medical and dental checkups at their foster home.
90. Martha Doerr testified as an expert in family and couples counseling.
91. Doerr stated that couples counseling was not going to help father and mother resolve their differences.
92. She testified that their relationship was not good for their children. The pattern of splitting up and reuniting raises children’s anxiety and shakes their sense of security and stability.
93. Chris is in first grade and Kira is in kindergarten.
94. Their grades are above average, they have adjusted very well, and they have made many friends.

(Trial Court Opinion at 11; emphasis added.)

*421¶ 19 Returning to the totality of the evidence and findings by the trial court noted above, it is beyond question the parents have not fulfilled any of the FSPs proposed in over 27 months and the children have remained in foster care during that period. There is no clear evidence that the children are bonded to the natural parents and substantial evidence of their bonding to the foster parents. Aside from one family counselor of the several involved over the years (Robert Lewis), whose credibility was discounted by the trial court, all the experts testified as to the inadequacy of the parents in their relationship with each other and their inability to resolve problems relating to drugs, parenting, finances and providing safe and healthy care for the children.

¶20 The progress of the children in emotional and physical development and adjustment to school and the community is primarily attributable to the stability and nurturing they have experienced in the foster home over a period of more than two years. Two major cases cited by appellants for the necessity of exploring of thé effect of the child parental bond on their health and welfare are Adoption of E.D.M., 550 Pa. 595, 708 A.2d 88 (1998), and Adoption of Atencio, 589 Pa. 161, 650 A.2d 1064 (1999). In both cases, the issues were much different than those in the present case. In those cases, termination was sought by one natural parent as to the other parent and involved extreme antagonism and denial of access to the child by one of the parents with no evidence produced to show the effect termination would have on the children. The issues in the present case are those addressed by the Adoption and Safe Families Acts4 when the virtual life time of the children may be spent in foster care and the courts and CYS have exhausted reasonable efforts to reunite the family beyond the minimal six months required by the Adoption Act. The facts in this case are better directed to the cases which hold that a child’s life, happiness and vitality simply cannot be put on hold until the parent finds it convenient to perform parental duties. In the Matter of the Adoption of A.M.B., 812 A.2d 659 (Pa.Super.2002). Appellee’s brief closes its argument as follows:

*422Christopher and Kira have been [in] a foster home for 27 months,5 the foster parents are stable influences on their lives, the children are doing very well there. It would not be in their best interest to consign them to more years of limbo as dependent children. Having met the requirements of termination of parental rights, the needs and welfare of the children required that those parental rights be terminated.

(Appellee’s brief at 26.)

¶ 21 I believe the remand directed by the majority for the trial court to explore the existence of bonding to the natural parent would be an exercise in futility and if, by chance, it was determined to be a viable possibility, would be detrimental to the needs and welfare of the children. I would affirm the Order of the trial court terminating parental rights of D.A.M. and C.J.S.

. While the majority has chosen to write separate opinions, I have chosen to sna sponte consolidate the appeals for writing purposes. The Dissenting Opinions filed in these matters are identical.

. The legislative history of the Adoption and Safe Families Act provides in pertinent part as follows:

There seems to be a growing belief that Federal statutes, the social work profession, and the courts sometimes err on the side of protecting the rights of parents. As a result too many children are subjected to long spells of foster care or are returned to families who reabuse them.
The bipartisan group that wrote this legislation recognized the importance and essential fairness of the reasonable efforts criterion. What is needed is not a wholesale reversal of reasonable efforts or of the view that government has a responsibility to help troubled families solve the problems that lead to child abuse or neglect. Rather than abandoning the Federal policy of helping troubled families, what is needed is a measured response to allow States to adjust their statutes and practices so that in some circumstances States will be able to move more efficiently toward terminating parental rights and placing children for adoption. Thus, the Committee bill would require States to define "aggravated circumstances,” such as chronic abuse, or sexual abuse, in which States are allowed to bypass the Federal reasonable efforts criteria and instead would be required to make efforts to place the child for adoption. In addition, States would be required to bypass reasonable efforts to provide services to families if the parent has another child for whom parental rights were involuntarily terminated.

Adopted by Pennsylvania Legislature, 42 Pa. § 6302, Definition, "Aggravated Circumstances”, § 6334, Petition, (b) Aggravated Circumstance, § 6351, Permanency hearing, (9). Also, 55 Pa.Code § 3130.67(b)(9)(iii), Placement planning.

. At the time of the Order terminating parental rights, the children had been in foster placement for at least 314 years.