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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: F.E.V., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: K.V., MOTHER
No. 900 MDA 2017
Appeal from the Order Entered May 8, 2017
In the Court of Common Pleas of Snyder County
Civil Division at No(s): OC-81-2016
IN THE INTEREST OF: A.E.W.B., JR., A IN THE SUPERIOR COURT OF
MINOR PENNSYLVANIA
APPEAL OF: K.V., MOTHER
No. 901 MDA 2017
Appeal from the Order Entered May 8, 2017
In the Court of Common Pleas of Snyder County
Civil Division at No(s): OC-82-2016
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2017
In these consolidated appeals, K.V. (“Mother”) appeals from the trial
court’s orders entered on May 8, 2017, which granted the petitions filed by
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* Former Justice specially assigned to the Superior Court.
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the Snyder County Children and Youth Services (“CYS” or “Petitioner”) to
involuntarily terminate Mother’s parental rights to her sons, A.E.W.B., Jr.,
born in March of 2015, and F.E.V., born in February of 2016 (collectively,
“the Children”). The trial court terminated Mother’s parental rights to
A.E.W.B., Jr., pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b) of
the Adoption Act, 23 Pa.C.S. §§ 2101-2938, and it terminated Mother’s
parental rights to F.E.V. pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and
(b).1 After careful review, we affirm both orders.2
We summarize the relevant facts and procedural history of this case as
follows. CYS first became involved with this family in March of 2015 when
CYS received a report regarding Mother’s older children. N.T., 2/8/17, at
29; Petitioner’s Exhibit D. CYS received a second referral in June of 2015,
alleging that Mother failed to maintain A.E.W.B., Jr.’s, required medical
treatment. N.T., 2/8/17, at 45; Petitioner’s Exhibit D. In-home services
were implemented until July of 2015 when it was reported that Mother
attempted suicide and Father was incarcerated. Petitioner’s Exhibit D. CYS
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1Children’s father (“Father”) voluntarily consented to the termination of his
parental rights. Father is not a party to this appeal nor has he filed an
appeal from the termination of his parental rights.
2 Mother filed separate notices of appeal from the orders involuntarily
terminating her parental rights to A.E.W.B., Jr., and F.E.V. On June 15,
2017, this Court entered an order sua sponte consolidating Mother’s appeals
pursuant to Pa.R.A.P. 513.
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removed A.E.W.B., Jr. from Mother’s care and placed him with Mother’s aunt
(“Maternal Aunt”).
On November 19, 2015, the trial court adjudicated A.E.W.B., Jr.,
dependent. Trial Court Opinion, 5/8/17, at 1; Order, 11/19/15. Thereafter,
F.E.V. was born in February of 2016, and placed with Maternal Aunt when he
was two days old. Order, 2/22/16; Motion to Approve Child Permanency
Plan, 3/7/16. The trial court adjudicated F.E.V. dependent on February 22,
2016. Order, 2/22/16. Additionally, A.E.W.B., Jr. has special medical needs
stemming from a head injury he sustained following a dog-bite accident that
occurred when he was three months old. N.T., 2/8/17, at 40-41. As a
result, A.E.W.B., Jr. wears a protective helmet and has difficulty consuming
foods and beverages. Id. at 41.
CYS created permanency plans for Mother to enable her to work
toward reunification with the Children. N.T., 2/8/17, at 46-47. The
objectives included: (1) maintaining stable housing; (2) obtaining
appropriate employment; (3) improving family functioning and parenting
knowledge; (4) visiting with the Children; (5) becoming independent and
self-sufficient; (6) taking prescribed medication; and (7) attending
counseling for her mental health. Id. at 49-53.
In November of 2016, Mother was incarcerated for thirty days. N.T.,
2/8/17, at 57. On December 30, 2016, CYS filed petitions for the
involuntary termination of Mother’s parental rights to Children. CYS
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petitioned to terminate Mother’s parental rights to A.E.W.B., Jr. pursuant to
23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Likewise, CYS petitioned to
terminate Mother’s parental rights to F.E.V. pursuant to 23 Pa.C.S. §
2511(a)(1), (2), (5), and (b). A hearing was held on the petitions on
February 8, 2017, during which CYS presented the testimony of Dr. Kasey
Shienvold, a clinical psychologist and expert in bonding assessments, Arvel
Brown, the CYS placement worker, and Maternal Aunt. Mother, who was
represented by counsel, did not present any evidence.
On May 8, 2017, the trial court involuntarily terminated Mother’s
parental rights to the Children. Mother timely filed notices of appeal and
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
On appeal, Mother presents the following issues for our review:
1. Should the [t]rial [c]ourt have denied termination and ruled
that the Agency’s [p]etition under 23 Pa.C.S.[ ] § 2511(a)(1)
failed as Mother particularly notes that Mother had consistent,
appropriate visitation with the children during which she
displayed a good transfer of learning, and maintained
telephone contact with the resource parent concerning the
well-being of the children, all of which was within six months
prior to the filing of the Agency’s petition.
2. Should the [t]rial [c]ourt have denied termination and ruled
that the Agency’s [p]etition under 23 Pa.C.S.[ ] § 2511(a)(2)
failed as Mother particularly notes that Mother had consistent,
appropriate visitation with the children during which she
displayed a good transfer of learning, Mother maintained
telephone contact with the resource parent concerning the
well-being of the children, and as of January 2017, Mother
was consistently attending mental health treatment.
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3. Should the [t]rial [c]ourt have denied termination and ruled
that the Agency’s [p]etition under 23 Pa.C.S.[ ] § 2511(a)(5)
failed as Mother particularly notes that Mother was
consistently attending mental health treatment and taking her
prescription medications, Mother provided the Agency with a
lease to a residence, and there was no testimony from the
Agency’s expert to indicate that it would be in the best
interests of the children to sever the parental bond that
existed.
4. Should the [t]rial [c]ourt have denied termination and ruled
that the Agency’s [p]etition under 23 Pa.C.S.[ ] § 2511(a)(8)
failed as Mother particularly notes that Mother was
consistently attending mental health treatment and taking her
prescription medications, Mother provided the Agency with a
lease to a residence, and there was no testimony from the
Agency’s expert to indicate that it would be in the best
interests of the children to sever the parental bond that
existed.
Mother’s Brief at 5-6.
We consider Mother’s issues according to the following standard:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an
abuse of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely
because the record would support a different result. We have
previously emphasized our deference to trial courts that often
have first-hand observations of the parties spanning multiple
hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
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Termination of parental rights is governed by section 2511 of the
Adoption Act, and it requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory
grounds for termination delineated in Section 2511(a). Only if
the court determines that the parent’s conduct warrants
termination of his or her parental rights does the court engage in
the second part of the analysis pursuant to Section 2511(b):
determination of the needs and welfare of the child under the
standard of best interests of the child. One major aspect of the
needs and welfare analysis concerns the nature and status of the
emotional bond between parent and child, with close attention
paid to the effect on the child of permanently severing any such
bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Mother’s issues challenge the termination of her rights under Section
2511(a). We need agree with the trial court only as to any one subsection
of Section 2511(a) in order to affirm. See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc). Herein, we conclude that the certified record
supports the orders pursuant to Section 2511(a)(2), which provides as
follows:
(a) General Rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
***
(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
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incapacity, abuse, neglect or refusal cannot or will
not be remedied by the parent.
23 Pa.C.S. § 2511(a)(2).
Regarding section 2511(a)(2), this Court has stated as follows.
In order to terminate parental rights pursuant to 23 Pa.C.S.A. §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has 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.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation
omitted).
Further, we have opined that “[t]he grounds for termination 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) (citations omitted). Parents are required to make
diligent efforts toward the reasonably prompt assumption of full parental
responsibilities. Id. at 340. A parent’s vow to cooperate, after a long period
of uncooperativeness regarding the necessity or availability of services may
properly be rejected as untimely or disingenuous. Id.
On appeal, Mother argues that the trial court abused its discretion in
terminating her parental rights pursuant to Section 2511(a)(2) because she
“had consistent, appropriate visitation with the children during which she
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displayed a good transfer of learning ….” Mother’s Brief at 20-21. Further,
Mother asserts that she maintained telephone contact with Maternal Aunt
and successfully completed the Nurturing Parent Program in September of
2016. Id. at 21. Finally, Mother argues that she attempted to remedy
CYS’s concerns by reading the book, “What to Expect When You’re
Expecting,” which addressed the effects of using drugs while pregnant. Id.
The trial court found that Mother’s conduct warranted termination
under Section 2511(a)(2) and stated as follows:
[M]other has had 10 different residences during Agency
involvement. In addition, she has only been gainfully employed
for a brief period of time and she left that employment because
“she just had issues at that place and dealings with employees
and drama and some other things[.]” … [M]other had the
opportunity to attend 69 visits during the course of this case but
only attended 15. [M]other has had difficulty following
directions regarding the needs of the [C]hildren and during the
few visits she had, she inappropriately gave them cheese when
[the Children] were allergic to cheese, (she had been previously
informed of this fact) and also insisted on changing the
[C]hildren when advised they did not need their diapers
changed. [M]other has failed to comply with her mental health
treatment. She continues to refuse to take her medication as
prescribed. … [Mother] has had 2 involuntary psychiatric
commitments since [A.E.W.B., Jr.] was born. In addition to her
psychiatric commitments she has been incarcerated on at least 2
occasions, the most recent being November 19, 2016.
Trial Court Opinion, 5/8/17, at 7-8.
Our review of the record supports the trial court’s decision. CYS
removed the Children from Mother’s care based upon concerns regarding
Mother’s untreated mental health issues, drug use, and lack of stable
housing. N.T., 2/8/17, at 46, 55. We agree with the trial court that these
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deficiencies rendered Mother incapable of parenting the Children at the time
of their removal. Arvel Brown, the caseworker associated with Mother’s
case, testified that Mother has lived at ten residences since CYS became
involved, id. at 49, and that Mother has failed to provide Mr. Brown with a
valid lease. Id. at 51.
Further, Mr. Brown testified that Mother was not compliant with her
objective to visit the Children. Notably, Mother had the opportunity to
attend sixty-nine visits with the Children. N.T., 2/8/17, at 52. Mother,
however, attended only fifteen visits, the majority of those visits occurring
between May and September of 2016. Id. at 69. Although Mother
demonstrated an ability to perform basic parenting skills, Mr. Brown testified
that:
[Mother] struggle[d] as far as following all of the directives. She
ha[d] a habit of wanting to change the children as soon as they
come in despite the aunt saying they don’t need to be changed.
The children are both allergic to dairy and the last visit [Mother]
ended up giving the children cheese and they ended up having a
rash despite the aunt telling her prior to the visit not to give it to
them.
Id. at 53. Mother never progressed past supervised visitation, and in fact,
Mother’s inconsistency in attending visits with the Children resulted in CYS
reducing her visits from two to one each week. Id. at 52. Mother also failed
to attend any medical appointments for the Children. Id. at 42.
Furthermore, Mother was inconsistent in taking her medication and
reported discontinuing her medication in favor of ingesting marijuana. N.T.,
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2/8/17, at 54-55. Finally, Mother failed to comply with her objective to
obtain employment. During a permanency hearing on November 19, 2015,
Mother reported that she was on medical leave from work. Id. at 50. Later,
in June of 2016, Mother reported that she was unemployed. Id. Mother’s
unemployment and her refusal to comply with the Domestic Relations order
requiring her to search for a job resulted in her incarceration from November
to December of 2016. Id. at 57.
Based on the foregoing, we discern no abuse of discretion by the trial
court in terminating Mother’s parental rights pursuant to Section 2511(a)(2).
Mother’s repeated and continued incapacity, neglect, or refusal to perform
her parental duties has caused the Children to be without essential parental
care, control or subsistence necessary for their physical and mental well-
being. Mother’s failure to meet her objectives supports the trial court’s
conclusion that Mother refuses to remedy the conditions that led to the
Children’s placement.
Having determined that Mother’s parental rights were properly
terminated under Section 2511(a)(2), we engage in the second part of the
analysis pursuant to Section 2511(b) in which we determine if termination
serves the best interests of the Children. In re L.M., 923 A.2d at 511.
Instantly, Mother has not presented a specific challenge to the termination
of her parental rights under Section 2511(b); however, we decline to find
waiver and shall address the trial court’s findings. See In re C.L.G., 956
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A.2d 999, 1010 (Pa. Super. 2008) (en banc) (addressing Section 2511(b)
despite the mother’s failure to challenge the trial court’s determination under
that subsection).
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. In re Adoption of C.L.G., 956 A.2d at 1008. In reviewing the
evidence in support of termination under Section 2511(b), our Supreme
Court stated as follows:
[I]f the grounds for termination under subsection (a) are
met, a court “shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child.” 23 Pa.C.S. § 2511(b). The emotional needs and welfare of
the child have been properly interpreted to include “[i]ntangibles
such as love, comfort, security, and stability.” In 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 at 267.
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 Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (internal
citations omitted). While a bonding evaluation may be conducted and made
part of the certified record, “[t]here are some instances ... where direct
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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).
The trial court made the following determinations relative to the bond,
or lack thereof, between Mother and the Children, and the best needs of the
Children:
The Agency called Dr. Casey Shinevold, Ph.D., to testify.
Dr. Shinevold conducted a bonding assessment regarding the
children and [M]other. Dr. Shinevold opin[ed] that “there was
not a healthy attachment or strong attachment between
[M]other and [the C]hildren in this case and that the severance
of that attachment would not likely have a direct impact on the
long term health and development of the [C]hildren.” Transcript
February 8, 2017, Page 13. Dr. Shinevold indicated there were 2
reasons that he came to this conclusion. Initially the age at
which the [C]hildren were removed from the home and secondly
the mental health issues of [M]other.
[F.E.V.] was removed from [M]other when he was 2 days
old. [A.E.W.B., Jr.,] was removed first when he was 3 months
old and then again at 6 months old. Dr. Shinevold’s opinion was
that at that age and the length of time the [C]hildren have been
out of the home there was not a good opportunity for a bond to
be created and nurtured.
[M]other’s long history of mental health issues, suicide
attempts and lack of follow through on treatment and medication
“is one of the major red flags in terms of the ability to form and
maintain healthy attachments”, Transcript February 8, 2017,
Page 14-15. In addition, Dr. Shinevold indicated that [A.E.W.B.,
Jr.,] would require a really high level of care given his physical
condition. Dr. Shinevold’s conclusion was there was not a
significant or strong enough bond between the [C]hildren and
[M]other that there was a likelihood of any detrimental effects
should they be removed from [M]other.
Dr. Shinevold also addressed the fact that with children as
young as [A.E.W.B., Jr.,] and [F.E.V.], the fact that [M]other had
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weekly visitation for 3 or 4 hours was not really enough to create
a bond. Based on the testimony, [M]other only exercised 15 of
69 visits throughout the course of this case. Dr. Shinevold went
on to indicate that it is not merely time spent with the child but
there is a need to have “a parent who is willing, consistent and
able to then attune to the needs of a child and meet them such
that a bond is created.[”] Clearly, in this case, [M]other has
consistently demonstrated her inability or unwillingness to meet
her own needs let alone the needs of the [C]hildren.
Based on Dr. Shinevold’s testimony, the [C]hildren would
not be harmed by severing the parental bond with [M]other. The
inquiry, however, does not simply end with whether the
[C]hildren would be harmed by terminating the bond but
whether the best interests of the [C]hildren would be served by
terminating the bond.
The [C]hildren have been placed with the maternal aunt.
The maternal aunt has provided significant care for both
children. [A.E.W.B., Jr.,] had unique and significant medical
needs which the resource parents have been attentive to and
provided for to such a degree that [A.E.W.B., Jr.,] is improving
substantially. It is clear from the care that the [C]hildren have
received since their placement in their current home maintaining
that relationship serves their best needs and welfare.
In addition, the kinship placement parents have indicated a
willingness to adopt both children. Since the potential adoptive
parents are related to the [C]hildren by blood, the potential
traumatic effect on the [C]hildren of being severed from their
biological roots is minimized in this situation. Being adopted by
blood relatives will continue the [C]hildren’s connection with
their biological family for the rest of their lives.
Clearly, the termination of [M]other’s parental rights would
serve the needs and welfare of the [C]hildren. The [C]hildren will
be adopted by family members and the bond, and the severance
of the bond (if one exists) with [M]other will not have an adverse
effect on the [C]hildren.
Trial Court Opinion, 5/8/17, at 12-14.
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After a careful review of the record in this matter, it is our
determination that the record supports the trial court's factual findings, and
the trial court's conclusions are not the result of an error of law or an abuse
of discretion with regard to Section 2511(b). Accordingly, it was proper for
the trial court to conclude that there was no bond such that the Children
would suffer permanent emotional harm if Mother's parental rights are
terminated, and that termination served the best needs of the Children.
For the reasons set forth above, we conclude that Mother is entitled to
no relief. Therefore, we will not disturb the trial court’s determination, and
we affirm the orders involuntarily terminating Mother’s parental rights to the
Children.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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In the Interest of: F.E v. a Minor
Combined Opinion