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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: TERMINATION OF PARENTAL : IN THE SUPERIOR COURT OF
RIGHTS TO: M.L.K., A MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.M.R., A/K/A, J.K., :
MOTHER :
:
:
: No. 3396 EDA 2016
Appeal from the Decree October 6, 2016
in the Court of Common Pleas of Lehigh County
Orphans’ Court at No(s): No. A2015-0050
BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED April 25, 2017
Appellant, J.M.R., a/k/a, J.K. (“Mother”) appeals from the decree
entered October 6, 2016, in the Court of Common Pleas of Lehigh County,
Orphans’ Court Division, involuntarily terminating the parental rights of
Mother to her daughter, M.L.K. (“Child”) (born in April 2013), pursuant to
the Adoption Act, 23 Pa.C.S.A. § 2511(a)(8) and (b).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Mother and Father are married, but living separate and apart. Mother
*
Former Justice specially assigned to the Superior Court.
1
By separate decree, the orphans’ court involuntarily terminated the
parental rights of biological father, C.K. (“Father”). Father is not a party to
this appeal nor did he file a separate appeal.
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currently resides with her new boyfriend.2 Prior to Child’s birth, Mother and
Father had three older children, two of whom have genetic abnormalities and
require special care and medical attention. In 2009, Lehigh County Office of
Children and Youth Social Services (“LCOCYS”) received allegations that
Mother and Father were homeless, lacked sufficient food, and had snakes in
the trunk of their car. After a lengthy period of noncompliance with court-
ordered services, Mother’s and Father’s parental rights to their three eldest
children were involuntarily terminated on March 19, 2013.
Based on the termination of her parental rights to her three older
children, LCOCYS had safety concerns for unborn Child, due in April 2013.
As such, LCOCYS devised a plan with Mother that would provide for the
safety of Child while allowing her to reside in Mother’s care. The safety plan
entailed: (1) Mother’s ongoing communication with LCOCYS; (2) Child’s
attendance in a therapeutic daycare called Safe Start; and (3) the parents’
allowing LCOCYS caseworker, Heather Reed (“Ms. Reed”) into the home to
check on Child. LCOCYS also provided Mother with Valley Youth House in-
home services, which was the same in-home services utilized to reunify
Mother with her three older children.
LCOCYS received notification that Child was born from a referral and
not from parents. When LCOCYS contacted Mother, she refused to cooperate
2
Mother has a fifth child by her live-in boyfriend. Mother’s fifth child is not in
foster care and resides with Mother and her boyfriend.
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with the agreed upon safety plan for Child. LCOCYS obtained an Emergency
Protective Custody Order for Child on April 12, 2013. The next day, Child
was discharged from the hospital directly into foster care, where she
currently remains and has lived for her entire life.
On April 23, 2013, Child was adjudicated dependent and placed into
the physical and legal custody of LCOCYS. At the adjudication hearing,
Mother was court-ordered to comply with a Family Service Plan (“FSP”),
which set the goal of reunification with Child. Mother’s FSP goals were: (1)
to maintain appropriate legal income and stable housing; (2) to cooperate
with LCOCYS and all other recommended services; (3) to cooperate with
Valley Youth House or other in-home services; (4) to complete a mental
health evaluation and comply with recommendations; and (5) to comply with
medical treatment and services for Child. Mother was familiar with these FSP
goals as they were previously court-ordered of her regarding her three
eldest children.
Several permanency review hearings were held between 2013 through
2016. On October 12, 2015, LCOCYS filed petitions to involuntarily terminate
Mother’s and Father’s parental rights to Child. On February 19, 2016 and
April 8, 2016, the orphans’ court held hearings on LCOCYS’ termination
petitions. At the hearing on February 19, 2016, LCOCYS presented the
testimony of Linda Coleman (“Ms. Coleman”), JusticeWorks YouthCare
visiting coach, and Ms. Reed, the former LCOCYS caseworker, now LCOCYS
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program specialist. Mother, represented by counsel, was present in the
courtroom and testified on her own behalf. Father failed to appear at the
hearing, but was represented by counsel.
Prior to witness testimony, LCOCYS sought to move into evidence an
exhibit packet, collectively identified as Petitioner’s Exhibit 1 (“Exhibit P-1”),
which contained court orders with attached findings of fact from prior
permanency review hearings. Mother made an oral motion in limine,
objecting only to the attached findings of fact from prior permanency review
hearings. The orphans’ court granted Mother’s oral motion, precluding
consideration of the attached findings of fact as part of Exhibit P-1.
By order dated March 2, 2016, the orphans’ court sua sponte
reconsidered its evidentiary ruling, and admitted the attached findings of
fact from prior dependency hearings as part of Exhibit P-1. On March 9,
2016, the orphans’ court conducted a pre-trial conference, informing counsel
that they were permitted additional testimony and/or witnesses at the
continued April 8, 2016 termination hearing.
At the April 8, 2016 hearing, Mother objected to the court’s sua sponte
admission and review of the findings of fact based on hearsay and the
different standards of review and burdens of proof in dependency and
termination hearings. The orphans’ court denied Mother’s request for
reconsideration of its March 2 order, and offered all parties the opportunity
to clarify or amplify the findings of fact, but the parties opted not to avail
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themselves of the court’s offer. At the conclusion of the hearing, the
orphans’ court directed all parties to file proposed findings of fact and legal
memoranda. On October 6, 2016, the orphans’ court entered a decree and
an adjudication opinion, involuntarily terminating Mother’s parental rights
pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b).
On October 20, 2016, Mother 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). On appeal, Mother raises the following issues:
1. Whether the trial court abused its discretion and committed
an error of law by admitting and relying upon the findings of fact
found in the dependency proceedings as competent evidence in
the termination proceedings?
2. Whether the trial court abused its discretion and committed
an error of law by terminating Mother’s parental rights when
such determination was not supported by clear and convincing
evidence under 23 Pa.C.S. § 2511(a)(8)?
3. Whether the trial court abused its discretion by terminating
Mother’s parental rights in violation of 23 Pa.C.S. § 2511(b) by
finding that such termination of parental rights will serve the
developmental, physical and emotional needs and welfare of
Child?
Mother’s Brief, at 4.
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
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parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005) (quoting In re C.S., 761
A.2d 1197, 1199 (Pa. Super. 2000)).
In termination cases, 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. See id., at 806. We have previously
stated 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.” In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The court is free to believe all, part, or none of the evidence presented
and is likewise free to make all credibility determinations and resolve
conflicts in the evidence. See In re M.G., 855 A.2d 68, 73-74 (Pa. Super.
2004). “[I]f competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003) (quoting In re:
N.C., 763 A.2d 913, 917 (Pa. Super. 2000)).
In her first issue for review, Mother contends that the orphans’ court
abused its discretion by admitting and relying upon findings of fact from
prior juvenile dependency hearings, where different issues are being
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reviewed and hearsay is routinely admitted. See Mother’s Brief, at 9.
Mother submits that the orphans’ court’s decision to terminate her parental
rights must be vacated and remanded for further proceedings. See id., at
16. Our review of the record indicates that Mother objected, raising this
issue before the orphans’ court. See N.T., 4/8/16, at 4-9, 22-23.
Accordingly, this issue framed as a challenge to the admissibility of the
evidence is preserved for our review. See Pa.R.A.P. 302(a).
The question of whether to admit evidence is within the sound
discretion of the trial court, and we review the decision under an abuse of
discretion standard. See A.J.B. v. M.P.B., 945 A.2d 744, 749 (Pa. Super.
2008). “An abuse of discretion is not merely an error of judgment; if, in
reaching a conclusion, the court overrides or misapplies the law, or the
judgment exercised is shown by the record to be either manifestly
unreasonable or the product of partiality, prejudice, bias or ill will, discretion
has been abused.” Bulgarelli v. Bulgarelli, 934 A.2d 107, 111 (Pa. Super.
2007) (citation omitted).
The basic requisite for the admission of any evidence is that it be both
competent and relevant. Evidence is competent if it is material to the issues
to be determined at trial and relevant if it tends to prove or disprove a
material fact in issue. See Turney Media Fuel, Inc. v. Toll Bros., 725
A.2d 836, 839 (Pa. Super. 1999).
Our Rules of Evidence define hearsay as a statement that
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(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
Pa.R.E. 801(c).
Further, we have explained, that
[a]s a general rule, hearsay is inadmissible, because such
evidence lacks guarantees of trustworthiness fundamental to our
system of jurisprudence. The rule against admitting hearsay
evidence stems from its presumed unreliability, because the
declarant cannot be challenged regarding the accuracy of the
statement. Notably, it is elemental that, [a]n out of court
statement which is not offered for its truth, but to explain the
witness’ course of conduct[,] is not hearsay.
In re K.A.T., 69 A.3d 691, 702 (Pa. Super. 2013) (citations and quotations
marks omitted).
Nevertheless, an error will be deemed harmless if:
(1) the error did not prejudice the defendant or the prejudice
was de minimus; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence . . . was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007) (citations and
quotation marks omitted).
Preliminarily, we note that the orphans’ court did not discuss the
admissibility of the factual findings from prior dependency matters in its
adjudication opinion and did not file a subsequent opinion pursuant to
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Pa.R.A.P. 1925(a). With regard to Mother’s evidentiary challenge, the record
evidences that, at the hearing on February 19, 2016, LCOCYS sought to
admit court orders with attached findings of fact from prior permanency
review hearings as part of Exhibit P-1. See N.T., 2/19/16, at 4. Because
Mother only objected to the attached findings of fact, the court orders from
prior permanency review hearings were admitted. By order dated March 2,
2016, the orphans’ court sua sponte reversed its evidentiary ruling and
admitted the attached findings of fact from prior dependency hearings. See
Orphans’ Court Order, 3/2/16, unnumbered page 1. The orphans’ court
conducted a pre-trial conference on March 9, 2016, informing counsel that
they were permitted to litigate any prior issues or call additional witnesses to
clarify the admitted findings of fact at the subsequent hearing on April 8,
2016.
At the April 8 hearing, Mother objected to the court’s sua sponte
admission and review of the findings of fact based on hearsay and the
different standards of review and burdens of proof in dependency and
termination hearings. See N.T., 4/8/16, at 20, 25-26. The orphans’ court
overruled Mother’s objections to preclude it from reviewing the findings of
fact, opining that the prior court orders contained legal conclusions
regarding the parents’ compliance with their FSP objectives, and referred to
the attached factual findings as a way of explaining the conclusions. See id.,
at 24-25. The orphans’ court found the attached findings of fact, explaining
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the court orders concerning the parents’ compliance with their FSP goals,
relevant to its determination whether to terminate their parental rights to
Child. See id., at 18. Because of its evidentiary ruling, the orphans’ court
offered all parties, including Mother, the opportunity to litigate any issues,
and call or cross-examine witnesses regarding the admitted findings of fact.
See id., at 25-26. While LCOCYS declined to call witnesses for additional
questioning, LCOCYS made their witnesses available for Mother and Father
to question them. See id., at 28. Mother, however, stated she did not wish
to call or cross-examine any witnesses. See id., at 29.
Mother claims that the admitted findings of fact from prior dependency
proceedings should not be used as competent evidence in a termination
hearing because permanency review hearings pursuant to 42 Pa.C.S.A. §
6351 and termination hearings pursuant to 23 Pa.C.S.A. § 2511 are wholly
distinct and separate, and issues decided at each hearing are uniquely
different. See Mother’s Brief, at 9. Although Mother cites to § 6351 and §
2511, she fails to explain how the language of either statute supports her
assertion that the admitted findings of fact from prior permanency review
hearings have no relevance and are precluded in a termination hearing.
Additionally, we note that Mother only objected to the findings of fact
attached to court orders, and not to the actual court orders from prior
dependency hearings. Mother offers no pertinent statutory explanation or
case citation that discusses the effect of admitting the findings of fact from
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prior dependency proceedings in a termination hearing. Likewise, Mother’s
brief also does not contain meaningful discussion of or citation to relevant
legal authority that distinguishes between the admissibility of findings of fact
from prior dependency proceedings and court orders containing legal
conclusions from prior dependency proceedings.
Mother also challenges the admission of findings of fact based on
hearsay. Mother argues that the orphans’ court admitted and cited to the
factual findings, which may be based on hearsay, thereby violating her right
to confront witnesses and litigate any issues from prior dependency
proceedings. See id., at 15-16. Mother does not indicate conclusively which
of the factual findings from prior dependency hearings are actually derived
from hearsay statements, nor does she refer us to any relevant authority,
which would preclude the admission of these factual findings into evidence.
As such, we will not reverse the evidentiary ruling order based on Mother’s
unsupported allegations and speculation. Furthermore, the record clearly
reflects that the orphans’ court offered all parties, including Mother, the
opportunity to call or cross-examine witnesses and litigate prior issues
regarding its sua sponte ruling to admit the attached findings of fact, and
Mother declined the court’s offer. Accordingly, the orphans court did not
violate her right to confront and cross examine witnesses and litigate prior
issues when it sua sponte admitted the factual findings from prior
dependency hearings.
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Upon review of the record and Mother’s arguments, we reject Mother’s
claim that the orphans’ court relied upon inadmissible evidence to terminate
her parental rights. Assuming arguendo, that the orphans’ court did admit
inadmissible evidence, any error in admitting and relying upon this evidence
must be deemed harmless when viewed in the context of the entire record,
as the factual findings were merely cumulative of the prior court orders
admitted without objection and the uncontroverted testimonial evidence
presented by LCOCYS.
We next address whether the orphans’ court abused its discretion by
terminating Mother’s parental rights. In terminating Mother’s parental rights,
the orphans’ court relied upon § 2511(a)(8) and (b) of the Adoption Act,
which provide as follows:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(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 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,
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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)(8) and (b).
This Court has stated that
[i]n order to terminate parental rights pursuant to 23 Pa.C.S. §
2511(a)(8), the following factors must be demonstrated: (1) the
child has been removed from parental care for 12 months or
more from the date of removal; (2) the conditions which led to
the removal or placement of the child continue to exist; and (3)
termination of parental rights would best serve the needs and
welfare of the child.
In re I.E.P., 87 A.3d at 356 (quoting In re Adoption of M.E.P., 825 A.2d
1266, 1275–1276 (Pa. Super. 2003); 23 Pa.C.S. § 2511(a)(8)).
“Section 2511(a)(8) sets a 12–month time frame for a parent to
remedy the conditions that led to the children’s removal by the court.” In re
A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the twelve-month period
has been established, the court must next determine whether the conditions
that led to the child’s removal continue to exist, despite the reasonable good
faith efforts of DHS supplied over a realistic period. See id. Termination
under § 2511(a)(8) does not require the court to evaluate a parent’s current
willingness or ability to remedy the conditions that initially caused placement
or the availability or efficacy of CYS services. See In re Adoption of
T.B.B., 835 A.2d 387, 396 (Pa. Super. 2003); In re Adoption of M.E.P.,
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825 A.2d at 1275-1276. 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) (citations omitted). Furthermore,
we have acknowledged that
the application of Section (a)(8) may seem harsh when the
parent has begun to make progress toward resolving the
problems that had led to removal of her children. By allowing for
termination when the conditions that led to removal continue to
exist after a year, the statute implicitly recognizes that a child’s
life cannot be held in abeyance while the parent is unable to
perform the actions necessary to assume parenting
responsibilities. This Court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a
parent’s claims of progress and hope for the future.
In re I.E.P., 87 A.3d at 345–346 (quoting In re J.F.M., 71 A.3d 989, 997
(Pa. Super. 2013)).
With respect to the “needs and welfare” analysis pertinent to §
2511(a)(8) and (b), we have observed that
initially, the focus in terminating parental rights is on the parent,
under Section 2511(a), whereas the focus in Section 2511(b) is
on the child. However, Section 2511(a)(8) explicitly requires an
evaluation of the “needs and welfare of the child” prior to
proceeding to Section 2511(b), which focuses on the
“developmental, physical and emotional needs and welfare of the
child.” Thus, the analysis under Section 2511(a)(8) accounts for
the needs of the child in addition to the behavior of the parent.
Moreover, only if a court determines that the parent’s conduct
warrants termination of his or her parental rights, pursuant to
Section 2511(a), does a 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.” Accordingly, while both Section
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2511(a)(8) and Section 2511(b) direct us to evaluate the “needs
and welfare of the child,” we are required to resolve the analysis
relative to Section 2511(a)(8), prior to addressing the “needs
and welfare” of the child, as proscribed by Section 2511(b); as
such, they are distinct in that we must address Section 2511(a)
before reaching Section 2511(b).
In re I.E.P., 87 A.3d at 346 (quoting In re Adoption of C.L.G., 956 A.2d
999, 1008–1009 (Pa. Super. 2008) (en banc) (citations omitted)).
Mother argues that the orphans’ court abused its discretion and
committed an error of law by terminating her parental rights when such
determinations are not supported by clear and convincing evidence under §
2511(a)(8). See Mother’s Brief, at 16. Mother specifically challenges the
second and third elements of § 2511(a)(8), claiming the evidence presented
does not support a finding that Mother is unable or unwilling to remedy the
conditions which led to Child’s placement or that termination meets the
needs and welfare of Child. See id., at 17. We disagree.
It is undisputed that the first element of § 2511(a)(8) has been met.
On April 12, 2013, LCOCYS obtained an Emergency Protective Order and
placed Child into foster care on April 13, 2013, where she has resided for
approximately her entire life. See N.T., 2/19/16, at 90. Accordingly, Child
had been out of Mother’s care for a period in excess of 12 months at the
time of the termination hearing on February 19, 2016.
We now examine the second factor of § 2511(a)(8), i.e., whether the
conditions that led to Child’s placement continue to exist, whereby Mother
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claims the record is devoid of any evidence she has not remedied the
conditions that led to Child’s placement. The record discloses that Child was
removed from Mother’s care by LCOCYS due to her refusal to cooperate with
the safety plan devised for Child and her history of noncompliance regarding
her three older children. See id., at 89.
Contrary to Mother’s assertion, the orphans’ court opined that
[t]he issues that led to [C]hild’s removal were well-founded
concerns that Mother would not cooperate with [LCOCYS], would
not maintain open communication, and would not provide for
[Child’s] needs, including medical care. Specific court [o]rders
designed to lead to reunification required Mother to maintain
legal income and stable housing, cooperate with LCOCYS and all
other recommended services, cooperate with in-home services,
complete a mental health evaluation and comply with
recommendations, and comply with medical treatment and
services for [Child]. Mother did not make substantial progress
with any of these goals.
Of all the court-ordered services, the only one with which
Mother has arguably complied [with] is the requirement to
maintain legal income in that she has had long-standing part-
time employment at a Giant food store. In the three years
[C]hild has been in care, [LCOCYS] and in-home service
providers saw little to no progress in Mother’s parenting, her
attachment to [Child], her ability to meet [C]hild’s needs for love
and affection, her understanding of [C]hild’s medical needs, or
her participation in [C]hild’s medical care. She has attended only
four of [C]hild’s numerous medical appointments over the course
of nearly three years and still has a very limited understanding
of [Child’s] medical issues. Mother has never had stable,
independent housing or completed the court-ordered mental
health evaluation. For three years, [LCOCYS] has been trying to
work with Mother on the same goals regarding [C]hild [which
have] been in place prior to [Child’s] birth for the other three
children. Mother has made virtually no progress.
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With respect to [C]hild’s need for love and affection,
Mother’s own account of the most recent few visits is that she
started and ended the visit by hugging [Child]. She testified that
she would ask her [about] her week and tell [Child] that she
misses and loves her. Even if Mother’s rendition is accurate, we
note that during much of the pendency of the matter, Mother
had to be encouraged to greet her daughter. To this day, Mother
spends much of the visit preoccupied with texting, and there are
times she detaches and shuts down during visits. Just a few
months before the February 2016 termination hearing, concerns
were raised that Mother had shown notable regression in her
parenting, becoming verbally aggressive with her daughter and
threatening not to give her any Christmas presents.
The same concerns that led to [C]hild’s adjudication still
exist today; namely, Mother’s capacity to parent [C]hild safely
and appropriately, to provide for her need for love and affection,
and to address her medical needs. Unfortunately, Mother’s
progress was so poor that in the three years [LOCCYS] has
provided services to try to help Mother reunify with [Child],
Mother has never even progressed to an unsupervised visit. The
progress she made in the area of meeting [C]hild’s most basic
needs is diminished by her lack of flexibility and spontaneity in
parenting. She brings the same meal to every visit, reads the
same book, and gets frustrated with [Child’s] normal toddler
behavior. Nothing in the record indicates that more time or more
services will help Mother reunify with [C]hild.
Orphans’ Court Adjudication Opinion, 10/6/16, at 8 (citations omitted).
Our review of the record finds that there is ample testimony in the
record from which the orphans’ court appropriately concluded that the
conditions that led to Child’s placement continue to exist. Ms. Reed, a former
LCOCYS caseworker, testified that she worked with family from June 2011
until October 2015. See N.T., 2/19/16, at 83. Ms. Reed provided the
orphans’ court with the history concerning the termination of Mother’s
parental rights with respect to her three oldest children, and the safety
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concerns leading to Child’s placement into foster care, where she currently
resides. See id., at 84-90; 138. Ms. Reed testified to Mother’s court-ordered
FSP goals for reunification with Child. See id., at 91.
She stated that Mother has always maintained employment by working
as a cashier at Giant. See id., at 131. Ms. Reed testified that Mother failed
to obtain independent housing even though LCOCYS provided her with
services to assist her in meeting this goal. See id., at 98. Throughout the
case, Mother has relied on others, such as Father, Maternal Grandmother
and her current boyfriend, to provide housing. See id., at 131-132, 148-
149. Ms. Reed also stated that Mother adamantly refused to complete a
mental health evaluation, which would have been helpful to LCOCYS in
offering Mother appropriate services to try to reunify her with Child. See id.,
at 114-115.
Ms. Reed informed the court that Child was diagnosed with
microcephaly, where the circumference of Child’s head wasn’t growing at a
normal rate. See id., at 105-106. Ms. Reed opined that Mother has very
limited understanding of Child’s medical issues and did not make the effort
to participate in the medical and developmental interventions. See id., at
119-120. Ms. Reed testified that Mother was given the opportunity to attend
Child’s medical appointments with transportation provided, but only
attended three out of the eighteen pediatric appointments and one
neurologist appointment. See id., at 120.
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Ms. Reed further testified that Mother struggled with any in-home
services that LCOCYS provided for her due to her inability to be receptive to
their parenting suggestions. See id., at 118. Based on Ms. Reed’s
observations of Mother’s supervised visits, she opined that Mother also
struggled with connecting and engaging with Child. She noted that when
Child was an infant, Mother appeared detached, avoiding eye contact and
not interacting verbally or physically with Child unless directed to do
otherwise. See id.,at 112-114. As Child grew older, Mother’s ability to
parent, connect and care for Child did not improve. See id., at 119. Ms.
Reed described Mother as hot and cold, stating there would be times when
she barely acknowledged that Child was there. See id., at 123-124.
Ms. Reed opined that from June 2011 until October 2015, Mother has
continuously worked on the same goals that were previously court-ordered
of her pertaining to her three older children without making any significant
progress. See id., at 119. Ms. Reed further testified that Mother has been
given excessive resources to try to rectify the circumstances that led Child
into placement, but there has not been any progress where she would
suggest Mother have unsupervised visits, and does not think circumstances
leading Child into placement would improve if given more time. See id., at
147.
Likewise, Ms. Coleman, a visiting coach from Justice Works YouthCare,
testified that she started working with Mother and Child in May 2014, and
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continued to work with Mother and Child for two and a half years. See id.,
at 22, 44, 81. Ms. Coleman stated that during the visits, Mother was to work
on: (1) assisting Child with meeting her developmental milestones; (2)
providing for Child’s basic needs such as food, beverages and diapers; and
(3) satisfying Child’s need for love and affection. See id., at 23. Ms.
Coleman’s duty as the visiting coach was to help Mother meet these goals
during her visits with Child. See id., at 21-22.
Ms. Coleman testified that she and Mother were to meet for weekly
pre-visit sessions and post-visit sessions to discuss expectations for the
upcoming visit and evaluate the last visit. See id., at 25-29. Mother
sporadically attended both sessions until November 2015, when she
completely stopped going to either session. See id., at 24-25. For two and a
half years, Ms. Coleman offered Mother suggestions on how she could
improve her bond with Child, but Mother would almost never demonstrate or
implement any of these suggestion except for a brief period of a month and
a half when she showed improvement. See id., at 31. Ms. Coleman stated
that for two and a half years, Mother spent a significant portion of the visit
texting on her cellphone rather than interacting with Child. See id., at 37.
Ms. Coleman stated that when Child started walking, she was
concerned for her safety because Mother would not assist her unless
otherwise directed to do so. See id., at 40. Ms. Coleman noted that Mother
did consistently provide for Child’s necessities by bringing food, beverages,
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diapers, and wipes. See id., at 32-33. Despite her suggestions for different
activities and food choices, Mother usually brought the same meal,
microwaved Gerber’s macaroni and cheese, and read the same book to
Child. See id., at 33. She noted that Mother would get easily frustrated
when Child would not respond in a manner she hoped for, such as crying
when she would attempt to feed her. See id., at 76. Ms. Coleman testified
that, while Mother and Child had positive interactions, Mother’s relationship
with Child remained the same and there was no significant progress since
she started as the visiting coach in May of 2014. See id., at 49.
Thus, the testimonial evidence of record compels the conclusion that
the conditions that had led to the removal of Child continued to exist at the
time of the termination hearing, satisfying the second element of §
2511(a)(8).
Finally, with regard to the third prong of § 2511(a)(8), Mother
contends that there is no evidence that termination would best serve the
needs and welfare of Child. See Mother’s Brief, at 17. Mother argues that
she can and has demonstrated her ability to meet Child’s needs and provide
essential care for Child. See id., at 18.
The orphans’ court, however, concluded that Mother did not seem to
grasp the importance of meeting Child’s developmental milestones and was
dismissive about her medical needs. See Orphans’ Court Adjudication
Opinion, 10/6/16, at 14. The orphans’ court opined that Mother has made
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little progress in bonding with Child and showing her love and affection. See
id., at 16. The orphans’ court found Mother’s relationship with Child has not
changed or improved during the course of the proceedings. See id., at 23.
After carefully considering the tangible dimensions as well as the intangible
dimensions – the love, comfort, security and permanency – entailed in a
parent-child relationship, the orphans’ court concluded Child is receiving
love, comfort, security, and safety from her foster parents, and that staying
with foster parents would best serve Child’s needs and welfare. See id., 23-
24.
The record reveals that Mother has not made progress with all of her
FSP objectives. She has not obtained independent housing, completed a
mental health evaluation or cooperated with in-home services and LCOCYS
since Child’s removal. Most importantly, her failure to appreciate Child’s
medical, emotional, safety and developmental needs impairs her ability to
parent Child. As such, the conditions that led to removal continue to exist,
and Mother has done nothing to meet the needs and welfare of Child.
We find the orphans’ court appropriately concluded that terminating
Mother’s parental rights would best serve Child’s needs and wellbeing
because it would permit her to enjoy a childhood with her foster parents that
have cared for her since birth. We also find that the credibility and weight
determinations by the orphans’ court are supported by competent evidence
in the record. The record supports the orphans’ court’s determination that
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the statutory elements for termination under § 2511(a)(8) were proven by
clear and convincing evidence to involuntarily terminate Mother’s parental
rights.
We next consider whether the orphans’ court erred by terminating
Mother’s parental rights under § 2511(b). With respect to that subsection,
this Court has explained the requisite analysis as follows:
Section 2511(b) focuses on whether termination of parental
rights would best serve the developmental, physical, and
emotional needs and welfare of the child. In In re C.M.S., 884
A.2d 1284, 1287 (Pa. Super. 2005), this Court stated,
“Intangibles such as love, comfort, security, and stability are
involved in the inquiry into the needs and welfare of the child.”
In addition, we instructed that the trial court must also discern
the nature and status of the parent-child bond, with utmost
attention to the effect on the child of permanently severing that
bond. Id. However, in cases where there is no evidence of a
bond between a parent and child, it is reasonable to infer that
no bond exists. In re K.Z.S., 946 A.2d 753, 762–[7]63 (Pa.
Super. 2008). Accordingly, the extent of the bond-effect
analysis necessarily depends on the circumstances of the
particular case. Id. at [7]63.
In re I.E.P., 87 A.3d at 346 (quoting In re Adoption of J.M., 991 A.2d
321, 324 (Pa. Super. 2010)). Moreover, when evaluating a parental bond,
“the 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 I.E.P., 87 A.3d at 347–348
(quoting In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010)) (internal
citations omitted).
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Herein, Mother contends that the orphans’ court abused its discretion
and committed an error of law in holding that termination would serve the
best interest of Child pursuant to § 2511(b). See Mother’s Brief, at 19.
Mother claims that she has developed a bond with Child worth saving, and is
able to care for Child by meeting her developmental, physical and emotional
needs. See id., at 20-21.
With regard to § 2511(b), Ms. Coleman testified that Mother’s
relationship with Child appears to be more of an aunt and niece bond. See
N.T. 2/19/16 at 70. Ms. Coleman stated that Child enjoys seeing Mother, but
her attachment to Mother is similar to the attachment Child has with her. §
See id., at 70-71. Ms. Coleman stated that when Mother ignores Child
during their visits, it has no effect on Child and Child happily plays by
herself. See id., at 71.
Additionally, Ms. Reed testified that Child’s foster home is the only
home Child has known since she was discharged from the hospital. See id.,
at 147. Ms. Reed stated that Child looks to foster mother with care and turns
to foster mother for comfort. See id., at 146. Ms. Reed testified that foster
mother has met all of Child’s daily needs for the past three years as foster
mother takes her to the doctor, cares for Child when she is sick, and
provides Child with a loving family home. See id., at 146-147. Ms. Reed
opined that she does not think Mother would be able to care for Child safely.
See id., at 147. Ms. Reed stated that Child’s attachment to Mother is similar
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to the attachment of a well-liked teacher. See id., at 148. Ms. Reed opined
that Child will not be harmed if Mother’s parental rights were terminated due
to her need for permanency and stability. See id.
The orphans’ court found that foster parents have been caring for Child
since birth, and are the only real parents Child has ever known. See
Orphans’ Court Adjudication Opinion, 10/6/16, at 24. The orphans’ court
opined that Child has a strong, secure attachment to her foster parents, and
Child turns to them for affection and comfort. See id. The orphans’ court
further found that foster parents care for all her needs, including providing
day-to-day care and appropriately managing her medical conditions. See id.
As such, the orphans’ court determined that terminating Mother’s parental
rights would have no significant effect on Child. See id. The orphans’ court
concluded that it is in the best interest of Child to terminate Mother’s
parental rights so that Child may attain permanency in a loving and stable
home. See id., at 24-25.
We have explained that a parent’s own feelings of love and affection
for a child, alone, do not prevent termination of parental rights. See In re
Z.P., 994 A.2d at 1121. “[A] parent’s basic constitutional right to the
custody and rearing of . . . her child is converted, upon the failure to fulfill
. . . her parental duties, to the child’s right to have proper parenting and
fulfillment of [the child’s] potential in a permanent, healthy, safe
environment.” In re B.,N.M., 856 A.2d 847, 856 (Pa. Super. 2004) (internal
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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.”)).
After a careful review of the record in this matter, we find the record
supports the orphans’ court’s factual findings, and the orphans’ court’s
conclusions are not the result of an error of law or an abuse of discretion.
Accordingly, it was proper for the orphans’ court to find no bond exists such
that Child would suffer permanent emotional harm if Mother’s parental rights
were terminated. We, therefore, affirm the decree, terminating Mother’s
parental rights with regard to Child under § 2511(a)(8) and (b).
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
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