J-S07032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.C.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: A.B.S., MOTHER :
:
:
:
:
: No. 1301 WDA 2021
Appeal from the Order Entered October 7, 2021
In the Court of Common Pleas of Cambria County Orphans' Court at
No(s): No. 2021 -291VT
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 23, 2022
A.B.S. (Mother) appeals from the order entered in the Court of Common
Pleas of Cambria County (orphans’ court) granting the petition filed by
Cambria County Children and Youth Services (CYS) to involuntarily terminate
her parental rights to K.C.W. (Child) (d.o.b. February 2020) pursuant to the
Adoption Act, 23 Pa.C.S. § 2511 (a)(1), (2), (5), (8) and (b). 1 She asserts
that the evidence was insufficient to terminate her parental rights because she
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* Retired Senior Judge assigned to the Superior Court.
1 The October 7, 2021 order also involuntarily terminated the parental rights
of K.W. (Father) to Child. He has appealed the order at docket number 1285
WDA 2021 and is not the subject of this appeal. He will only be mentioned to
the extent necessary to provide a full picture of the pertinent events.
J-S07032-22
was not provided with sufficient assistance for reunification, particularly under
the unique circumstances provided by the Covid-19 pandemic. We affirm.
We take the following factual background and procedural history from
our independent review of the record and the trial court’s October 6, 2021
opinion.
I.
A.
CYS became involved in this case when Mother tested positive for
marijuana at the time of Child’s birth in February 2020. Upon being notified
of Mother’s positive drug test, CYS did an investigation that revealed severe
behavioral health, financial and domestic violence issues, as well as the fact
that the house where the parents resided was unsafe for Child. Both parents
had the aggravating circumstance that their parental rights to all their other
children had been involuntarily terminated. CYS took custody of Child in the
hospital two days after her birth and Child has not been returned to parents’
care. Despite the aggravating circumstances, which could have relieved CYS
of its obligations to provide Mother with the opportunity for reunification, the
agency elected to move ahead to assist her in this effort. (See N.T.
Termination of Parental Rights (TPR) Hearing, 6/28/21, at 37).
After the February 24, 2020 adjudicatory hearing, the orphans’ court
issued an order on March 2, 2020, in which it directed that Mother was to
abide by the Family Service/Permanency Plan in which she follow through with
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all recommendations from her psychological evaluations; successfully
complete parenting skills classes; undergo drug and alcohol assessments,
follow through with recommendations and submit random drug screenings;
not be aggressive or violent toward anyone; participate in anger management
and impulse control therapy/counseling; maintain a safe, clean, adequately
furnished home; and cooperate fully with all scheduled home or office visits
with CYS caseworkers and service providers, including Independent Family
Services, Inc. (IFS) and the Blair Foundation. The order also expressly
provided:
[Mother] and [Father] are not to threaten, harass, or use vulgarity
toward [CYS] caseworker[s] or any service providers. These
actions will result in the filing of a criminal complaint. [Mother]
and [Father] are not to take any actions to instigate others to
make threats toward [CYS] staff.
(Order, 3/02/20, at Finding of Fact 15); (Orphans’ Ct. Op., 10/06/21, at 5-6);
(N.T. TPR Hearing, 6/28/21, 17). The placement plan was reunification, with
a projected achievement date of six months, and the concurrent goal was to
place Child with a fit and willing relative, if identified.
Mother and Father were supplied with services by IFS. Staff had thirty-
minute phone rather than in-person visits with the parents due to the Covid-
19 pandemic. Mother was directed to conduct her session in private away
from Father. An April 10, 2020 report documented a phone conversation
between IFS and Mother after which IFS determined that it would not accept
Mother’s case due to her “hostility toward the process,” which she
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demonstrated by using “expletives and derogatory comments toward the IFS
supervisor.” (Orphans’ Ct. Op., 10/06/21, at 6-7) (citing Petitioner’s Exhibit
No. 14, IFS Report, 4/20/21). IFS staff indicated that “[Mother]’s anger
toward not being able to dictate treatment was concerning and it appeared
that [she] was more concerned with being “right” about how treatment should
be conducted than identifying if her choices would negatively impact her ability
to have her daughter returned to her care and custody.” (Id.).
On July 27, 2020, the court held a permanency review hearing. It found
both parents minimally compliant, with both struggling to cooperate with
recommended services. Each had made only minimal progress in alleviating
the circumstances that necessitated placement. The Permanency Plan
provided that the goal continued to be reunification, with a concurrent goal of
adoption even though aggravating circumstances existed. Mother and Father
were to continue with the steps outlined in the March 2, 2020 order,
supervised visits were established and both parents were to continue to refrain
from threatening conduct with caseworkers and service providers. (See
Orphans’ Ct. Op., at 7). On February 3, 2021, CYS filed a motion for contempt
against the parents for violating the March 2, 2020 order’s directive that they
not threaten, harass or use vulgarity toward CYS or service providers.
On February 9, 2021, after a January 27, 2021 permanency review
hearing, the court ordered the goal changed from reunification to adoption. It
again determined that Mother and Father were only minimally compliant with
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the Permanency Plan and were not cooperating with CYS or other providers.
Child had been in placement for eleven months at that time. In its February
9, 2021 order, the orphans’ court specifically found:
• [C]hild has been in placement since February of 2020.
• The parents had failed to comply with the requirements of
[C]hild’s Permanency Plan.
• Both parents had active criminal cases.
• Mother still used illegal, unprescribed marijuana.
• Each parent had produced positive drug screens.
• Father tested positive multiple times using different illegal
substances.
• The parties continued to engage in domestic violence.
• Father has a history of drug abuse.
• Father was not compliant with service providers.
• The parents had been verbally aggressive with the agency
caseworkers and service providers.
• The parents were discharged from anger management
classes at IFS due to noncompliance and being verbally
aggressive.
• The parents had not followed through with the
recommendations of their psychological evaluations.
• Mother continues to not address her mental health issues.
• Aggravating circumstances existed as to both parties as a
result of prior involuntary termination proceedings.
• [C]hild needs a permanent, consistent environment.
• CYS has exhausted all available resources.
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• [C]hild’s best interest requires a goal change to adoption,
and the agency has met its burden of proof by clear and
convincing evidence.
(Orphans’ Ct. Op., at 9-10); (see also N.T. TPR Hearing, 6/28/21, at 22-23).
On February 26, 2020, licensed psychologist Dennis M. Kashurba
evaluated Mother and Father to ascertain the appropriate services for them to
demonstrate parenting potential for Child.
B.
On March 4, 2021, CYS filed a petition to involuntarily terminate the
parental rights of Child’s parents pursuant to 23 Pa.C.S. § 2511(a)(1), (2),
(5) and (8) and (b) because of severe behavioral, mental health, financial,
substance abuse, shelter and domestic violence issues.2 (See N.T. TPR
Hearing, 6/28/21, at 12). At that time, Child had been out of parents’ care
for over twelve months. The court held hearings on June 28, 2021, September
13, 2021, and September 15, 2021. CYS produced the testimony of Barb
Lusczek, CYS caseworker; Dennis Kashurba, licensed psychologist; Jennifer
Drager, Executive Director for In-Home Family Services with IFS; Tami
Yeckley, CFS caseworker; May Popovich, CYS casework supervisor; Julia
____________________________________________
2The orphans’ court appointed counsel for each parent and Child. Because of
Child’s age, the court determined there was no conflict between Child’s legal
and best interests.
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Bloom, family advocate with the Blair Foundation Path House; and Kathy
Scaife of IFS. Mother testified on her own behalf.
1.
Ms. Lusczek was the CYS caseworker in this matter from mid-February
2021 forward.3 She testified that the juvenile court found aggravating
circumstances because both parents had their parental rights to a combined
total of seven other children terminated in Blair (Mother) and Dauphin (Father)
Counties. Mother had an active criminal case and used illegal, unprescribed
marijuana, producing one positive drug screen and refusing another during
the life of this case. Mother cooperated somewhat by completing the
psychological evaluation, attending parenting classes and establishing anger
management sessions with IFS. However, she was discharged from the anger
management program due to noncompliance and verbal aggression with
service providers and was not addressing her mental health issues. She was
more focused on blaming others for the removal of Child than on doing what
the court had required of her, and did not follow the recommendations from
the initial psychological evaluation, was not consistently cooperative with CYS
and “there has been no follow[-]through, no change in lifestyle, no application
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3Ms. Lusczek was the third CYS caseworker in this matter. Ms. Cathy Gorba
was the intake caseworker. Ms. Chloe Barrett was the caseworker when Child
came into placement until February 2021 when Father made threats against
her and her child that formed the basis for his guilty plea to terroristic threats.
(See N.T. TPR Hearing, 6/28/21, at 47).
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of what was learned through the visits.” CYS has exhausted all available
resources in an effort to assist Mother. Ms. Lusczek explained that Mother
was unable to appropriately parent Child, with her most significant barrier
being her mental health issues. (See N.T. Hearing, 6/28/21, at 16-20, 22-
23, 34-35, 43).
CYS initially scheduled weekly one-hour in-person visits with Child, but
from March 2020 until May 2020, the visits were changed to half hour virtual
visits twice a week due to Covid-19 . Thereafter, they returned to in-person
visits. At the visits, Mother was not attentive to Child’s needs and had not
performed any parental duties within the last year. She would watch or try to
talk to Child but would not interact with her. At the one visit Ms. Lusczek
observed, Mother was more focused on repeatedly calling Father on the phone
than engaging with Child. She did not believe that the parents would put
Child’s needs and welfare first. (See id. at 23-24, 25-26, 29-31).
Neither parent had done anything to demonstrate that they were able
to meet the emotional, physical, daily needs of Child or to take responsibility
for her initial removal. Instead, their focus remained on blaming CYS, their
caseworker, service providers and the foster family. Child had initially been
placed with a different foster family, but she was removed at the family’s
request due to Mother posting abuse allegations and negative comments
about them on social media. She was briefly placed with another family
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pending approval of the current foster home she lives in with her sibling. (See
id. at 25, 31).
Ms. Lusczek stated that Child was developmentally on target, bonded
with her current foster family4 and doing well with them. She was sixteen-
months-old at the time of the June 28, 2021 TPR hearing and had been with
the family for approximately one year at that time. The family ensured that
all of Child’s needs were met. (See id. at 24-25).
CYS believed that it would be in Child’s best interest to be adopted by
the foster parents due to Mother’s failure to do what she needed to do to make
life better for Child. Ms. Lusczek testified that there was no bond between
Child and Mother and severing her parental rights would not negatively impact
Child. It would promote her developmental, physical and emotional needs
because she was doing so well in her foster home and bonded with the foster
parents. She stated that a bond could have been developed with the infant
Child despite Covid-19 restrictions if Mother had put in the effort because she
has seen it happen in other families. (See id. at 34-36).
2.
Ms. Popovich worked with Mother in her supervisory role at CYS
beginning in early March 2020. CYS investigated Child’s home after receiving
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4The foster family is an adoptive resource. (See N.T. TPR Hearing, 9/13/21,
at 63).
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the referral upon her birth and discovered that there was no hot water or
refrigerator, there were bedbugs and the home was in deplorable condition.
There were extreme anger issues and both Mother and Father committed
domestic violence. She described Child’s parents as being extremely
argumentative and uncooperative, explaining that she had worked with many
families in her nearly ten-year career with CYS and had “never been called so
many F-words and swear words and stuff as [she] was with this family.” (N.T.
TPR Hearing, 9/13/21, at 43). “They continuously harassed the caseworker[,
her,] their attorneys and a judge on Facebook. They were very aggressive.”
(Id.). Although they initially signed releases for medical and therapeutic
records, they revoked them when the goal was changed to adoption. They
refused to meet with the CYS caseworker or to allow her to enter the home to
assess if they had made any recommended changes. (See at 42-44, 47-48).
To explain the argumentative, contentious and threatening situation
created by the parents, Ms. Popovich also testified about CYS filing the
contempt action against the parents for violating the Court’s March 2, 2020
order directing them to refrain from threatening, harassing or using vulgarity
toward CYS caseworkers or service providers. She explained that their
numerous social media posts demonstrated that they did not appear at all
concerned about Child, but instead claimed they were victims themselves,
calling CYS kidnappers and accusing them of sex trafficking and of allowing
children to be sexually abused by putting them into the Mennonite sect. They
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harassed CYS caseworkers on social media that were not even involved in this
case, posted photographs, phone numbers and court documents in an attempt
to gain sympathy for themselves and made accusations about anyone in the
court system involved in their case, including a judge and their own attorneys.
Both parents were held in contempt. (See id. at 48-53).
Mother and Father were very belligerent with the original foster parents
with whom Child was briefly placed, “accusing them of abuse and all kinds of
other things” on social media, which is where CYS found out about most of
Mother’s concerns since she did not report them to CYS and would not talk to
the caseworker. Ms. Popovich explained that approximately one day before
the July 27, 2020 permanency review hearing, she saw a posted picture of
Child on social media with what appeared to be a brush burn most likely
caused by the then-five-month-old Child being on her stomach for tummy
time. CYS took Child to the doctor and he advised that this was a brush burn
and not abuse. The orphans’ court also reviewed the photograph at the July
27, 2020 hearing and agreed with the doctor’s finding. (See id. at 53-55,
69).
Ms. Popovich also explained that, although Mother and Father were
referred to IFS for anger management, they were extremely uncooperative
and unsuccessfully discharged. They were also referred to IFS for drug and
alcohol counseling, which Mother quit on July 29, 2021, without finishing the
program. (See id. at 55).
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When asked if Mother and Father were receiving a lesser standard of
care in the reunification attempt due to their treatment of CYS, Ms. Popovich
responded that they actually got more than most cases did. For example,
most cases have one visit per week with the child, while they were given two.
They were provided with every service available to CYS and they chose not to
work with them. When they seemed unable to work with CYS service
providers, CYS suggested they find other providers to follow through on the
reunification requirements. Thus, CYS was providing them with everything
they needed to achieve reunification. (See id. at 65).
3.
Blair Foundation Path House family advocate Ms. Bloom testified that
her role was supervising the visits with Child and doing active parenting with
the family. Ms. Bloom estimated only approximately eighteen out of the fifty-
four visits at Blair Foundation were virtual. She had witnessed other infants
going through a similar visitation situation during the Covid-19 pandemic and
the parents in those situations had been able to follow the required steps for
reunification and created a bond with their infants. However, although Ms.
Bloom completed the active parenting book with Mother, a bond was not
established between Mother and Child because she did not take the advice
about how to establish one. Mother was unable to soothe her and lacked a
motherly instinct; she could not connect with Child. Child appeared
uncomfortable with her biological parents. Mother did not apply the active
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parenting curriculum to the visits at all and instead of maximizing the
visitation time to establish a bond, Mother chose not to interact with Child
because she was more concerned with contacting Father on her phone or
fighting with him if he was present. Although Child had started talking and
was very talkative at her foster home, she would not talk to her parents at
the visits. Ms. Bloom testified that Mother was unable to parent Child by
herself, but even if Father were present, she would not trust Child in their care
because of their consistent fighting. (See N.T. TPR Hearing, 9/13/21, at 12-
16, 19-20, 22-25, 28, 32, 35-36).
Ms. Bloom observed Child with the foster parents when they would drop
her off and pick her up from visits with her biological parents. She described
Child as “light[ing] up” when with them. Ms. Bloom observed a bond between
Child and her foster parents, was happy when with them and very upset when
taken from them for a visit. She agreed that changing Child’s goal to adoption
was in her best interest because her needs were met and she was in a safe
environment with the foster parents. (See id. at 24-25).
4.
Ms. Scaife of the IFS Home Management Program worked with Child’s
family on the living conditions at the home from February 2020 until January
2021. (See N.T. TPS Hearing, 9/13/21, at 74). On her first visit, she observed
that leaking pipes had soaked the kitchen floor, the refrigerator was not
working and there was no hot water tank. Father had a hot water tank
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installed and some leaks had been repaired. IFS was able to obtain a
refrigerator, some furniture and household items for them. Despite these
improvements, she recommended that Child not be returned to Mother and
Father’s custody because of their anger/relationship issues. Because of those
continued problems, she supported the goal change to adoption. (See id. at
74-78).
5.
Psychologist Dennis Kashurba authenticated the psychological
evaluations he authored for each parent before they both were admitted into
evidence. (See N.T. TPR Hearing, 6/28/21, at 81-83). He declined to discuss
the information in the reports so as not to be perceived as being retaliatory
since the evaluations were the subject of a state-level investigation due to
parents’ complaints. The investigation was closed without any prosecution.
(See id. at 82-83).
6.
Most of Mother’s testimony consisted of conflicting denials about the
testimony of Ms. Bloom, Ms. Popovich and Ms. Lusczek and excuses about her
history and attempts at reunification with Child. Mother denied CYS’s claim
that the utilities had been turned off at her premises and that IFS had paid for
home improvements, denied any anger issues and stated that Ms. Bloom lied
in her testimony. Despite a physician and the court finding that foster parents
had not abused Child, who only had a brush burn, Mother claimed that Child
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was struck by a firework. She offered confusing testimony about CYS not
scheduling appointments for Child around a bus schedule, but agreed that CYS
had the authority to make Child’s doctor’s appointments. Mother testified that
she does not like the Blair Foundation Path Program because she is an atheist
and it is a Christian-based program forcing religion down her throat, but then
admitted that the program did not force Christianity and that she wanted Child
placed with a Christian United Methodist family she knew. She blamed her
mother for the previous termination of her parental rights to her other child,
and stated that Cambria County CYS is targeting her now because it was
involved in that case, but she admitted it was her father that had moved for
that termination and that it was in Blair County, not Cambria County. (See
N.T. TPR Hearing, 9/15/21, at 8, 13-15, 17-18, 21-22, 24-26, 29-30, 33, 36,
39, 42-46).
Although Mother was diagnosed with Post-Traumatic Stress Disorder,
Generalized Anxiety Disorder and unspecified Bipolar Disorder, she denied
having Bipolar Disorder and stated she has her anxiety under control with the
use of marijuana. She denied smoking marijuana while pregnant, however,
and testified that the positive drug test at the time of Child’s birth was a false
positive. She later admitted she smoked marijuana immediately before Child’s
birth but blamed a treating physician for a kidney infection who did not give
her pain medication. (Id. at 12, 20, 34-35, 37, 41-42).
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On October 6, 2021, the orphans’ court entered an order finding clear
and convincing evidence to support involuntarily terminating the parental
rights of Mother pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5) and (8). The
fourteen-page order contained detailed findings of fact, which included two
quotations in psychologist Mr. Kashurba’s report. (See Order, 10/06/21, at
3-4, ¶ 7A, B). Mother timely appealed and filed a contemporaneous statement
of errors. See Pa.R.A.P. 1925(a)(2)(i). On November 10, 2021, the court
issued an order vacating its October 6, 2021 findings of fact as to Mr.
Kashurba’s report because, upon review, it found that it was not admitted into
evidence.5 The court relied on the remainder of the reasons stated in its
October 6, 2021 order to support its decision.6 (See Order, 11/10/21, at 1);
see Pa.R.A.P. 1925(a).
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5 This appears to be inaccurate since the record reflects both Mother’s and
Father’s reports were admitted into evidence without objection. (See N.T.
TPR Hearing, 6/28/21, at 82-83).
6 Mother complains that the orphans’ court erroneously relied on Mr.
Kashurba’s psychological evaluation report to reach its decision, despite the
report not being admitted into evidence and Mr. Kashurba not offering
substantive testimony about its details. (See Mother’s Brief, at 8-9). First,
as stated above, it appears Mother’s report was admitted into evidence.
Moreover, even if it had not been admitted, on November 10, 2021, the court
vacated its previous findings about the report and relied on its remaining
findings of fact. (See id.). As we detail more fully above, the evidence of
record supports the court’s decision without Mr. Kashurba’s evaluation.
Hence, even assuming the court had originally relied on the report in error, it
would have been harmless.
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II.
A.
Mother argues that the orphans’ court erred in finding that CYS produced
clear and convincing evidence to support the termination of her parental
rights.7 (See Mother’s Brief, at 12-14). The orphans’ court terminated
Mother’s parental rights pursuant to Section 2511(a)(1),(2), (5), (8) and (b)
of the Adoption Act, which provide:
(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 by 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
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7 We review the orphans’ court’s order for an abuse of discretion. See In re
G.M.S., 193 A.3d 395, 399 (Pa. Super. 2018) (citation omitted). Moreover,
“[w]e give great deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.” In re Interest of
D.F., 165 A.3d 960, 966 (Pa. Super. 2017). “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). “The trial 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.” In re A.S., 11 A.3d
473, 477 (Pa. Super. 2010). “If competent evidence supports the trial court’s
findings, we will affirm even if the record could also support the opposite
result.” Id.
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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 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. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any
efforts by the parent to remedy the conditions described therein
which are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(1), (2), (5), (8) and (b).
It is well-settled that “[w]e need only agree with [the trial court’s]
decision as to any one subsection of Section 2511(a) and subsection (b) in
order to affirm the termination of parental rights.” Int. of K.M.W., 238 A.3d
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465, 473 (Pa. Super. 2000) (citation omitted). For the following reasons, we
conclude that the orphans’ court correctly determined that CYS met its burden
of proof under subsections 2511(a)(2) and (b).
B.
We first address the court’s termination of Mother’s parental rights
pursuant to Section 2511(a)(2). See Int. of K.M.W., supra at 473.
In a termination proceeding, the moving party must produce clear and
convincing evidence with respect to the following elements to terminate
parental rights pursuant to Section 2511(a)(2): (1) 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).
Pursuant to Section 2511(a)(2), parents are “required to make diligent
efforts towards the reasonably prompt assumption of full parental
responsibilities.” In re J.R.E., 218 A.3d 920, 925 (Pa. Super. 2019) (citation
omitted). “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.” See id. (citation omitted).
“The grounds for termination of parental rights under Section 2511(a)(2) due
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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 S.C., 247 A.3d 1097, 1104
(Pa. Super. 2021) (citation omitted).
Instantly, the orphans’ court explains that:
The relationship between [Child’s parents ] and CYS can be
described in a few words as noncooperative and hostile. Each
parent talked a good game on direct and cross-examination. Each
parent asked for more time to improve, blaming everyone else for
their shortfalls. As stated by the Pennsylvania Superior Court in
In Re: Adoption of R.J.S., 901 A.2d 502[,] 513 (Pa. Super.
2006) …
The Court cannot and will not subordinate
indefinitely a child’s need for permanency and stability to
a parent’s claims of progress and hope for the future.
Indeed, we work under statutory and case law that
contemplates only a short period of time … in which to
complete the process of either reunification or adoption for
a child who has been placed in foster care.
… Petitioner, [CYS] has established a legal basis for
terminating the parental rights of [Mother.]
(Orphans’ Ct. Op., at 10).
It is undisputed that Child, approximately sixteen-months-old at the
time of the first TPR hearing, had been in foster placement since birth and
with her current foster family for one year. CYS presented clear and
convincing evidence that the conditions that led to Child’s placement
continued to exist.
Mother argues that although she initially complied, she became
increasingly frustrated with the system during the reunification process, which
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she admits resulted in some poor decisions. (See Mother’s Brief, at 12).
Although Mother attempts to frame her issue as being about Covid-19, in
substance, her claims are unrelated to the Covid-19 pandemic. She argues
that the efforts at reunification “fell short” where CYS consistently ignored her
wants and needs, “forcing religion down her throat” by using the Blair
Foundation Path Program even though she is an atheist, “inflated issues that
did not exist relative to ability” and failed to take her concerns about Child’s
safety seriously. (Id. at 13, 14) (citing N.T. TPR Hearing, 9/15/21, at 15, 24-
26, 29). The evidence of record belies Mother’s argument.
Ms. Lusczek testified that Mother’s goals, including attending anger
management classes and addressing mental health issues, remained the same
throughout the life of this case, but that she was more focused on posting
against the foster parents, CYS and caseworkers on social media and looking
for fault and blaming others than she was on making efforts to reunify with
Child. (See N.T. TPR Hearing, 6/28/21, at 19-20, 25, 29-30). Mother has
taken no responsibility for Child’s removal, instead blaming CYS, its
caseworkers (those both involved and not involved in the case), service
providers and the foster parents. (See id. at 31). Instead of addressing her
mental health issues through medication or therapy, she either self-medicated
or alleged she was misdiagnosed. (See id. at 20). She was discharged from
the anger management program at IFS due to her own volatile actions during
the attempted treatment and there were continued domestic violence reports
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between the parents. (See id. at 18, 22). After her initial positive drug screen
for marijuana, Mother refused the screen after that. (See id. at 18).
The biggest concerns for reunification were Mother’s inability to provide
appropriate parenting and nurturing for Child and her failure to get her mental
health under control, either through medication or counseling, which rendered
her incapable of managing other aspects in her life. (See id. at 20, 29).
Mother observed or spoke to Child but was unaware of how much babbling
and talking she did because Mother did not engage with her since she was
more focused on repeatedly calling Father on the phone than interacting with
Child. (See id. at 23-24). Mother was not attentive to Child’s needs at the
visits, instead putting herself first. (See id. at 25-26). Ms. Lusczek testified
that Mother has not done anything to indicate that she would remedy the
mental health, parenting or domestic violence issues in a reasonable amount
of time or demonstrated any ability to meet Child’s emotional, physical or daily
needs. (See id. at 30-31).
Ms. Popovich testified that Mother was given more reunification
attempts than most because she was allowed two visits per week instead of
one. She was provided with every service available to CYS, unsuccessfully
discharged from IFS anger management and elected not to avail herself of
other services. The agency recommended that she seek out other providers
so that she could comply with the requirements for reunification, but she failed
to provide proof that she had successfully done so. (See N.T. Hearing,
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9/13/21, at 65). In fact, although Mother signed releases at the time of
intake, she either revoked or refused to sign them or talk to her caseworker
thereafter, in violation of the Permanency Plan, denying CYS the opportunity
to confirm her progress, if any. (See id. at 47-48).
As to any alleged safety issues, the record reflects that Mother failed to
report anything of that nature to CYS since she would not speak to the
caseworker. Instead, Ms. Popovich saw a posted photograph of Child with an
alleged injury on social media. (See N.T. 9/13/21, at 54-55, 69). CYS
immediately took Child to a physician, who determined that the alleged
“injury” was a brush burn, a finding that the court concurred with at the July
27 2021 permanency review hearing, despite Mother’s claim that it was due
to being hit by a firecracker. (See id. at 54); (see N.T. TPR Hearing, 9/15/21,
at 24-25).
Based on the foregoing, despite any limitations imposed by Covid-19,
CYS provided clear and convincing evidence that Mother is unable to provide
Child with the essential care necessary for her physical and mental well-being
where Mother’s continued incapacity is caused by her failure to address her
mental health, parenting or domestic violence issues or follow through on the
necessary steps to achieve reunification. The orphans’ court did not abuse its
discretion in finding that CYS presented sufficiently clear and convincing
evidence to support termination based on Section 2511(a)(2).
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C.
Having determined that the court properly found that termination of
Mother’s parental rights was appropriate under subsection 2511(a)(2), we
now consider whether termination is in Child’s best interest pursuant to
subsection 2511(b).8
With respect to Section 2511(b), our analysis focuses on the
effect that terminating the parental bond will have on the child.
In particular, we review whether termination of parental rights
would best serve the developmental, physical, and emotional
needs and welfare of the child. It is well settled that intangibles
such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.
One major aspect of the “needs and welfare” analysis
concerns the nature and status of the emotional bond that the
child has with the parent, with close attention paid to the effect
on the child of permanently severing any such bond. The fact that
a child has a bond with a parent does not preclude the termination
of parental rights. Rather, the trial court must examine the depth
of the bond to determine whether the bond is so meaningful to
the child that its termination would destroy an existing, necessary,
and beneficial relationship. Notably, where there is no evidence
of a bond between the parent and child, it is reasonable to infer
that no bond exists.
It is sufficient for the trial court to rely on the opinions of
social workers and caseworkers when evaluating the impact that
termination of parental rights will have on a child. The trial court
may consider intangibles, such as the love, comfort, security, and
stability the child might have with the foster parent.
____________________________________________
8 Mother does not specifically address Section 2511(b). (See Mother’s Brief,
at 9-14). However, we include our analysis of this section to provide a full
review of the orphans’ court’s decision.
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Int. of K.M.W., supra at 475 (case citations and most quotation marks
omitted).
Ms. Bloom testified that Mother and Child did not have a bond. (See
N.T. TPR Hearing, 9/13/21, at 19-20, 35-36). She stated that both biological
parents failed to take her advice about what they could do to establish a bond
with Child. (See id. at 28). Mother was unable to soothe Child, did not
interact with her to form a bond, and Child appeared uncomfortable around
her. (See id. at 19-20, 35-36). Child was bonded with her foster family and
Ms. Bloom agreed that changing her goal to adoption was in her best interest.
(See id. at 25).
Ms. Lusczek also testified that Child was developmentally on target and
had a bond with her foster family, which provided her with love, comfort,
security and stability. (N.T. TPR Hearing, 6/28/21, at 24-25). She opined
that it would be in Child’s best interest to stay with the foster parents and that
severing any bond with her biological parents would not negatively impact her
in any way. (See id. at 33-36). Ms. Popovich stated that the foster family
was an adoptive resource and that Child’s sibling also lived there. (See N.T.
TPR Hearing, 9/13/21, at 63). Hence, the record supports the orphans’ court’s
finding that the credible CYS witnesses established that the termination of
Mother’s parental rights would best serve Child’s interests pursuant to Section
2511(b) and we find no abuse of discretion in its decision to terminate
Mother’s parental rights to Child and in changing its goal to adoption.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2022
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