J-S05019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF: A.J.R., A MINOR : PENNSYLVANIA :
:
APPEAL OF: A.A.C., MOTHER :
:
:
:
: No. 1038 WDA 2022
Appeal from the Decree Entered August 12, 2022 In the Court of Common Pleas of Erie County Orphans' Court at No(s):
28A in Adoption 2022
IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF: A.L.V., A MINOR : PENNSYLVANIA :
:
APPEAL OF: A.A.C., MOTHER :
:
:
:
: No. 1039 WDA 2022
Appeal from the Decree Entered August 12, 2022 In the Court of Common Pleas of Erie County Orphans' Court at No(s):
28 in Adoption 2022
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J. MEMORANDUM BY LAZARUS, J.: FILED: March 22, 2023 A.A.C. (“Mother”) appeals from the decrees,1 entered in the Court of Common Pleas of Erie County, involuntarily terminating her parental rights to her two children, A.L.V. (born August 2017), and A.J.R. (born March 2021)
____________________________________________
1 We have, sua sponte, consolidated these appeals. See Pa.R.A.P. 513; Pa.R.A.P. 2138. The parental rights of Children’s biological fathers were also terminated. They are not involved in this appeal.
J-S05019-23
(collectively, “Children”). After our review, we affirm on the basis of the opinion authored by the Honorable Shad Connelly.
The trial court opinion sets forth a comprehensive review of the factual and procedural history of this matter, as well as a detailed summary of the termination hearing testimony. In brief, Mother and Children became involved with the Erie County Office of Children and Youth (“OCY”) after New Jersey Children’s Services alerted OCY to the fact that the family was traveling back and forth between New Jersey and Erie. The New Jersey agency had become involved with the family as a result of concerns about Mother’s untreated mental health issues, drug and alcohol use, domestic violence, and failure to meet Children’s needs. After multiple attempts, OCY was able to locate the family at a motel where Mother had left A.J.R., then only six months old, by herself. Children were detained and a shelter care hearing was held on October 14, 2021. Upon being taken into custody, the Children were found to have scabies, strep throat, and severe diaper rash. On October 15, 2021, OCY filed dependency petitions. A combined adjudicatory/dispositional hearing was held on October 26, 2021, after which the court found Children to be without proper care or control, subsistence, education, or other care necessary for their physical, mental, or emotional health and adjudicated them to be dependent. The court instituted a permanency plan and Children were placed in the legal and physical custody of OCY.
A permanency review hearing was held on January 26, 2022, after which the court found that Mother had been minimally compliant with her
3
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permanency plan and in alleviating the circumstances that led to Children’s placement. On February 25, 2022, the court issued an order conditioning Mother’s visitation on her being alcohol- and drug-free after Mother repeatedly tested positive for fentanyl. A second permanency review hearing was held on May 2, 2022, after which the court found Mother to be non-compliant with her permanency plan. The court further found that Mother had made no progress toward alleviating the circumstances that led to Children’s placement. Finally, the court ordered that the permanency goal be changed to adoption.
On May 10, 2022, OCY filed petitions to involuntarily terminate Mother’s parental rights to Children. Following a full evidentiary hearing,2 on August 11, 2022, the court issued decrees terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2), (5), and (b). Mother filed timely notices of appeal and Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal. She raises the following issues for our review:
[1.] Whether the Orphans’ Court committed an error of law and/or abused its discretion when it concluded that termination of parental rights was supported by clear and convincing evidence pursuant to 23 Pa.C.S.A. §§ 2511(a)(1), (2) and (5)?
[2.] Whether the Orphans’ Court committed an error of law and/or abused its discretion when it concluded that termination of parental rights was supported by clear and convincing evidence pursuant to 23 Pa.C.S.A. §§ 2511(b)?
____________________________________________
2 Children were represented at the hearing by Steven E. George, Esquire, who also served as guardian ad litem. Attorney George has not filed an appellate brief.
4
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Brief of Appellant, at 3.
In cases involving the termination of parental rights, “our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child.” In re Z.P., 994 A.2d 1108, 1115 (Pa. Super. 2010). “Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand.” In re B.L.W., 843 A.2d 380, 383 (Pa. Super. 2004) (en banc) (internal citations omitted). “[W]e employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence.” Id.
In a proceeding to terminate parental rights involuntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. 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.” It is well established that a court must examine the individual circumstances of each and every case and consider all explanations offered by the parent to determine if the evidence in light of the totality of the circumstances clearly warrants termination.
In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted).
Parental rights may be involuntarily terminated where any one subsection of [s]ection 2511(a) is satisfied, along with consideration of the subsection 2511(b) provisions. Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the
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parent’s conduct satisfies the statutory grounds for termination delineated in [s]ection 2511(a). Only if the court determines that the parent’s conduct warrants termination of his . . . parental rights does the court engage in the second part of the analysis pursuant to [s]ection 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (internal citations omitted).
Here, the trial court terminated Mother’s parental rights under section 2511(a)(1),3 which provides that the parental rights of a parent may be terminated where:
(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.
23 Pa.C.S.A. §§ 2511(a)(1).
In terminating under subsection (a)(1), the court noted Mother’s failure to address “any of the issues” that led to Children’s removal, despite the best efforts of OCY. Trial Court Opinion, 10/27/22, at 14. Mother failed to attend parenting classes, domestic violence treatment, or mental health therapy or, if she did attend, claimed to have no problems. See id. When OCY made referrals for safe housing, Mother either lied about utilizing those services or left because she would not follow the rules. See id. Mother failed to participate in drug treatment programs and continually denied drug
____________________________________________
3 We may affirm the trial court’s decision regarding the termination of parental rights with regard to any single subsection of section 2511(a). In re L.M., supra.
6
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involvement. On the “infrequent occasions” Mother appeared for court- ordered urinalysis, she tested positive for fentanyl, while continuing to maintain that she did not use drugs. Id. at 15. The court concluded:
A.A.C. has no credibility when she claims she is now attempting to straighten out her life. Her actions throughout [the involvement of OCY and New Jersey Children’s Services] evidence a woman who has no desire to act as a parent. As A.A.C. testified [at the termination hearing], she placed others before her children. Her actions corroborate that she has and will continue to subvert her children’s well-being for her own desires.
...
[M]other has clearly shown that she has no desire to change her attitude or actions toward parenting, no matter how much at risk it places her children. A.A.C. rejected all services and efforts during the course of [OCY’s] involvement, and termination of her parental rights under subsection (a)(1) is appropriate.
Id. at 16-17.
The trial court’s findings are fully supported in the record, and we can discern no abuse of discretion or error of law in the court’s conclusion that termination is appropriate under subsection (a)(1).
Under section 2511(b),4 the court must consider whether termination
will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520 (Pa.
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4 Subsection 2511(b) provides:
(a) 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
7
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Super. 2006). “Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child. The court must also discern the nature and status of the parent-child bond, paying close attention to the effect on the child of permanently severing the bond.” Id.
Here, the trial court found that the “evidence demonstrated that severing contact with [] Mother has not had any detrimental effect on [ C]hildren.” Trial Court Opinion, 10/27/22, at 18. In fact, certain “destructive behaviors” previously engaged in by A.L.V., the older child, abated once contact with Mother ceased.5 The court noted:
[A.L.V.] no longer had night terrors or was fearful someone would come to the foster home and steal her. Therapy to work through the traumatic events of A.L.V.’s life are ongoing and have shown promise. Subjecting a child to drugs, guns, violence, fear for safety, and being left alone are not factors which would lead a child to have a strong[,] positive relationship with a parent.
Id.
Children are currently in a loving foster home. While this family is not an adoptive resource, they are “committed to treatment for A.L.V.” and to
____________________________________________
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(b).
5 Because she was only six months old when she was removed from Mother’s care, we can only surmise that A.J.R. did not suffer the same psychological trauma from her exposure to Mother’s activities as A.L.V.
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facilitating a transition to a “forever home.” Id. at 9, 10. OCY is actively seeking an adoptive home for Children, who will be adopted together, as they are “very attached to each other.” Id. at 10. The court concluded that the interests of Children are best served by terminating Mother’s parental rights, and we can discern no abuse of discretion or error of law.
We have reviewed the parties’ briefs, the certified record, and the applicable law and conclude that Judge Connelly’s opinion thoroughly and correctly disposes of the issues Mother raises on appeal. Accordingly, we affirm on the basis of that opinion and instruct the parties to attach a copy of that document in the event of further proceedings in this matter.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/22/2023
Circulated 03/14/2023 12:00 RM
,r 56 -
IN THl_. MATTER OF THE ADOPTION : IN THE COURT OF COMMON PLEAS OF: : OF ERIE COUNTY, PENNSYLVANIA A.L.V. ind A.J.R., HANS' COURT DIVISION Minors APPEA OF A.A.C., IL E
Mother 2$ & 28A IN ADOPTION 2022 OCT2-72022
ACT 2-7 •0•• =
REGISTER OF WILLS
1925(x) OPIMOX
On August 11, 2022, an. order was entered terminating the parental rights of the natural
mother, 1k.A.C. to her children A.L.V. and A.I.R.'The mother now challenges that order. Atimely Notice otAppeal, and A Statement Pursuant to Pa. R.A.P. 1925 were filed by the A.A.C.'s counsel
Emily I. M cIski, Esquire. A review of the record supports Pl? the Court's determination that OCY
presentee lsufficient clear and convincing evidence to terminate the mother's parental rights pursuant to23 Pa. C.S.A. §§ 2511. (a)(1),(2) & (5), and is in the best interests of the children under 23 Pa. C •S,A.§ 2511(b). It is therefore requested the Superior Court affirm the order.
PROCEDURAL HISTORY AND FACTS
AL.V., born August , r 2017 and A.J.R., bo m March' ,2021 1 are the children of A.A.C.,
natural Iother. The family had been living in New Jersey at adomestic violence shelter but were termingI3 and the smother with the children fled to Pcnnsylvania. On September 27, 2021 New
Jersey dildren's Services notified Erie County Office of Children and Youth "OCY" about the
mother trIiveling back and forth betwcen New Jersey and Erie. New Jersey's involvement with the family in!,luded concerns about the mother's untreated mental health, drug and alcohol use,
domestic (violence and failure to meet the children's needs. ( 711412022 .N.7:PP
. 70-71'
• OCY
tol
checked amote where the family was residing. The mother and children were not there, but the
'The parenta1 rights of the fathers of both children were terminated on August "11, 2022. Neither fffed an appeal of that decision.
Page Iof 19
manage: expressed concerns about the children being left alone. The family was tracked to ahouse on Ash Street in Erie, but once again were not there when OCY arrived. Finally, the mother, A.L.V., land amale were seen walking to ahotel room w hen theywere confrontedby OCY .A.J.R., 6months old, was alone in the room. The mother claimed the male was her cousin from Ohio who
was ling hellI her. This turned out to be alie as the mal e was id entifi edas Luis Lopez p ,, the
emother's
other s
I male co' apanion. Id., pp. 71-72. The children were detained, and aShelter Care Hearing was held
on October 14, 2021. Upon being taken into custody, A.L.V. had scabies and was suffering from strep thr`>at. A.J.R. also had scabies and asevere diaper rash. Id., p. 75. The children were ordered
to remain in the custody of OCY, which filed a Dep endency Petition the f oll owi
ng day. An
AdjudicItion Hearing was held on October 26, 2021, The mother did not attend,but was represen}Ied by counsel. The Juvenile Hearing Master recommended that the children be
adjudica,ed dependent based upon the following allegations in the Dependenc yPetition, which was acre pted by the Court, the Honorable Erin Connelly Marucci, on November 1, 2021:
11 (A.A.C.) had unstable housing. The Agency received areferral on September 27, 2021 tl tat A.A.C. had been terminated from adomestic violence shelter in New Jersey and had fled to Pennsylvania. The Agency had been unable to make contact with A.A.C. until October 12, 2021, due to her transient nature. She had been staying in multiple motels and a, ldresses since she arrived in Erie;
21 (A.A.C.) had not ensured the safety ofthe children. The staff at one of the motels voiced c,) ncerns about (the mother) leaving the children unattended and outside playing uisupervised. On October 12, 2021 when the Agency was able to locate (the mother), she was observed walling to ahotel room with an adult male and only one of the minor cl uldren. It was later learned that (the mother) left the other minor child in the room uiiattended while she was gone. There were no safe sleeping arrangements for the children aiid (A.A.C.) admitted to co-sleepingwith the baby. Further, she was feeding the six-month old child inappropriate food. During this time (the mother) reported she had recently returned to New Jersey .for ashort time and was raped while in acaregiving role for the cl d1dren;
3I (A.A.C.) had ahistory with New Jersey Children's Services. It was reported they had b(•.en attempting to work. with (the mother) since March of 2021 for concerns regarding di )mestic violence, parental substance abuse, untreated mental health, ability to meet the cl :ildren's needs and concerns regarding (A.A.C.) decision making skills. They report that hix engagement had not been consistent;
Page 2of 19
1. The Agency had concerns regarding (the mo ther '
s)abuse ofillici
tdrugs. Duri
ng the
r
emoval, (A.A.C,) stated that she had recently smoked marijuana and had used "ice"
ecently. Further, (the mother) reported that she was diagnosed with ADHD and alearning disability and it was unknown if she was treated;
(A.A.C.) had not ensured the medical needs of the children had been met. The children's c loctors in New Jersey reported that one ofthe minor children was behind on immunizations tend had only been seen twice since birth;
E►. It was unknown if (the father of A T.R„ and the father of A.L.V, were the biological fathers of their respective children). The Agency requested genetic testing to establish paternity; and
I.. (The alleged fathers of both children) reside in New Jersey and New Jersey Children's ,lervices reported that (both alleged fathers) had a history of domestic violence with (k.A.C.), substance abuse and mental health concerns.
See Exh ibit 8pp. 11412; Ex. .9pp 11-,1.2.
A DispcI►sitional Hearing immediately followed the Adjudication Hearing. The following
permanency plan was recommended for the mother and was also accepted by the Court on Novembl;r 1, 2021;
1. Submit to genetic testing to establish paternity;
2. Participate in an Agency approved, hands on parenting program and follow all recommendations;
3. Participate in mental, health evaluation and follow all recommendations to include therapy and medication management if deemed therapeutically appropriate.
(A.A. C.) will sign all necessary releases from the provider and this Agency in order for the Agency to obtain the evaluation and to verify services;
4. Participate in adrug and alcohol assessmont through the Erie County Office of Drug and Alcohol and ;follow all recommendations. (A.A.C.) will sign arelease of information with this provider in order for the Agency to obtain assessment;
S. Participate in domestic violence counseling and follow all recommendations.
(A.A.C.) will sign all necessary releases from the provider and this Agency in ordcr for the Agency to verify services and participation,• 6. Refrain from the use of drugs and alcohol and participate in random urinalysis through the color code program atthe Esper Treatment Center, 7. Obtain and/or maintain safe and secure housing to include residing with appropriate individuals, and provide the Agency with asigned .lease; and 8. Obtain and/or maintain employment or another form of legal income in order to meet the needs of the children. (A.A.C.) will provide the Agency with verifiable proof of income.
Ex. 8pp.:18-19; ex. 9pp. 18-19.
TI 'eCourt ordered that the children's permanent placementgoalwas re t urn t
o th e parent
or guardi In. A three (3) month review hearing was to be scheduled..
Page 3of 19
he initial Permanency Review Hea ring was held on January 26, 2022. The mother was
.
presentIrepresented by counsel. The Court found that therer had been minimal compliance with the
treatment plan, and minimal compliance in alleviating the circumstances which led to placement of the Ildren. The Court ordered the following treatment plan:
I . Participate in an Agency approved, hands on parenting program and follow all recommendations until successfully completed;
2. Participate in amental .health evaluation and follow all recommendations to include I therapy and medication management if deemed therapeutically appropriate;
J Participate in adrug and alcohol assessment through the Erie County Office of Drug and Alcohol and follow all recommendations;
Participate in domestic violence counseling and:follow all recommendations;
Refrain from the use of drugs and/or alcohol and submit to random urinalysis testing through the color code program at the Esper Treatment Center;
Secure and/or maintain safe and stabile housing, to include residing with appropriate individuals, and provide the Agency with asigned Lease Agreement;
7. Obtain an/or maintain gainful employment or another form of legal income and provide I Proof to the Agency;
t. Maintain weekly contact with the caseworker and attend any and all scheduled I meetings in order to provide and receive updates; and Sign all releases of information requested by the Agency.
Ex. 8p. -24; Ex. 9p. 24.
The chil iren's permanency goal remained return to parent or guardian. A four (4) month review hearing Ivas to be scheduled.
Can February 25, 2022, the Honorable Erin Connelly Marucci issued an Order directing that the moir's visitation with the children would be contingent upon her being alcohol and drug free.
If there was apositive urine test received, there was to be no visit until the next clean urine. Judge
g
Connelly Marucci specifically noted that "the Court is not limiting the mother's visitation, just i conditioriing the visits on mother's sobriety. It is not in the children's best interest to have visits
with mother while she repeatedly tests positive for Fentanyl" Ex. 8p. 26; Ex 9 .26.
I p Tile second Permanency Hearing was held on May 2, 2022. The mother was present
represented by counsel. Judge Connelly Marucci found there had been no compliance by the
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mother with the permanency plan. Further, the Court found there had been no progress by the mother (toward alleviating the circumstances which necessitated the original placement of the
children. The Court ordered the children's permanencypl acement goalbe changedto Adopti on.
Ex. 8pl•r. 27-29; Ea 9pp. 27-29.
I' achel Lynch was the ongoing caseworker for the family and described the factors which led to the removal of the children. and adjudication of dependency. 7114/22 N. T. pp, 68- 75 . Ms Lynch t•-stified as to the mother's cooperation with the initial permanency plan ordered by the
Court .;nor to the first Review Hearing ng on January 26, 2022 and described it as irurumal
progress". (7/(4/22 N.T. p. 79). Between October 2021 and January 2022, the Agency was unaware)of the whereabouts of A.A,C., what she was doing, or with whom she was living.The
mother was I supposed to have Tuesday visits at the Agency Y :be
beginning
innin December 12 2021 to find
out what)mother was doing to implement the treatment plan and what OCY could do to help her.
I A.A.C. nissed the visits on December 12, 2021, December 28, 2021 and Janua ry 4 2022.
(7%14/20.32 N.T. pp. 80-82). Mother made two visits before the review hearing and claimed
something • happened on January 4, 2022 p prevented her from attending gthat visit. Going
ginto the
January 6, 2022 Review Hearing, the goal was still reunification of the children with the mother,
Nr.T. p. 93). Judge Connelly Marucci repeated the el ement
s ofthe i
niti
alTreatment Pl an.
(7/X4/22Jas
A.A.C. to participate in aparenting program; mental health eva c uati on; undergo a drug and
alcohol a >sessment; participate in domestic violence counseling; refrain from the use of drugs and
alcohol aad submit to random urinalysis; secure safe and stabile housing gincludinggresiding
Swith
approprid to individuals obtain gainful employment; maintain weekly contact with the caseworker; and sign !01 releases requested by the Agency.
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.X.A.C. unfortunately did not demonstrate any progress with her maim issue drug involveiIrient — prior to the January 26, 2022 hearing. A.A.C. was given aurine test before the
hearing and tested positive for Fent anyl. Thu mo ther insisted she did not use drugs. Mother's
constant mantra to Ms. Lynch was "I'm not using drugs". (7/14/22 N.T. p.79) .A.A.C.i ns i
ste d
she tested positive for Fentanyl due t o havi ng sex w ith Lui
sLopez andwou ld get thed hrough rug t
his sm-11, Id., p. 94, A.A.C. was supposed to be doing random urine tests. The mother was ano show on
Deceml 9, 2021 and December 30,202 land then had the positive test on January 26, 2022. On
Februj 3, 2022 and February 7, 2022 mother tested positive for Fentanyl Y and was P
positive again
g
on two cl-ccasions in April, Judge Connelly Marucci conditioned visits on mother having clean urines. Alsnoted earlier, the Judge was concerned with the effect on the children of their mother being uni ter the influence of Fentanyl at visits. Caseworker Lynch rioted that the mother's last visit
with the i N.
Uldren was February 2, 2022 and no visits since that date. Id., pp. 83-84, 94..
I
Sabile housing and residing with appropriate people p was 1'art of the treatment plan. A.A.C.
n
reported IJanuary that she was living at 4210Melrose Avenue in Erie. Exhibit 14 was copies of
Incident Iteports.from the Erie Police Department regarding 4210 Melrose Avenue. From February
8, 2022 t hrough March 21, 2022, the police were call edt en tim es t
o thataddress .Among the
descripti ins of the incidents were knives and stabbings; baseball bat assaults; domestic violence and theftt involving money and acell phone. Ex. 14. A.A.C. went to the Erie Police on March 16, 2022 stat ing that someone was putting drugs in her air filter. This led to one of the police raids at
42.10 Melrose Avenue, .and drugs, money and weapons were seized as aresult ( 7/14122 N.T. pp.
88--89). Itlwas determined that Luis Lopez was living at that address with. A.A.C. Mr. Lopez was
the male ` -
nth mother when the children were removed in October,, 2q21and had claimed to be the
Page 6of19
mother':; cousin Marceleno C, ( 7174122 N. T. pp. 72-73). Also living at the Mel rose Avenue address
was Josh Anibal Martinez a/kla "Jersey" who was later indicted by the federal authorities on extensi. drug charges. Id., pp. 87, The mother admitted to the caseworker on February 2, 2022 that she,was running drugs back and forth between New Jersey and Erie for Martinez with the assistanc sof Luis Lopez, and said she was afraid. As part of that admission, mother stated the children 1,vere with her during these drug trips. Id., pp. 8'7-89.
1 1additional requirement of the treatment Pdrug kaluation. plan was for A.A.C. to complete a and
alcohol The mother completed that on March 25, 2022 but reported she did not use
I
drugs at 1 he assessment so no recommendations for treatment were made, Id., p. 89,
iV ental health treatment was another part of the treatment plan, but the mother never followed t̀hrough with that evaluation, Id.
The Court ordered A.A.C. to get involved with domestic violence treatment. This was never acchmplished, The mother had ascheduled evaluation for February 22, 2022 for which she did not Jend. That session was rescheduled but once again mother did not attend. As of April 29
2022 the Iother had done nothing regarding dealing with here xposure to domestic violence. Id, I !
pp. 89-90,
A (Family reunification program was obviously key to areturn of the children to the mother.
I
Efforts wl:re made to contact A.A.C, When an appointment was finally scheduled for April 26 p ,
2022, the "nother did not appear. She called and said she had adoctor's appointment that morning
g
when her `Family reunification program was supp ose dt otake pl ace .She askedto reschedu l e the
appointmc nt for the afternoon. The appointment was rescheduled but A.A,C, failed to show. Id.
Orrapotentially positive result was that the mother did go to asafe shelter on April P 62022
>
but left on'April 21, 2022, because she did not follow the shelter's rules. On April 26 2022 mother
Page 7of 19
called aJ id asked to come back, but then did not return phone calls to set up asafe shelter again. Id. gp. it0-91, Previously, Rachel Lynch tried to get A.A.C. into asafe shelter in. February 2022 and mot] ier called her to say she was at the shelter, but that turned out to be alie. Id., p. 92.
D1s. Lynch stated that A.A.C., the mo th er,did notcompl y wi
thany part ofthe treatment
plan froth the initial Dispositional Order on November 12021 through the second Permanency anency
Review 1 7- ng thi s enti yearing on May 2, 2022. Id., p. 90. Duri re per i od, A.
A.C.never adm i tted to
drug usel rhaving adrug problem. Id., pp. 103, 126.
Patricia Potter is Executive Director and Outpatient Therapist at Affinity Family Support
Services That Agency g yprovides
p there for those
therapy o with mental health disorders and specializes in
treating traumatized children who live in kinship homes, foster homes pre-adoptive Pr P and adoptive
P
homes. As. Potter has over 25 years' experience in this field, 10-12 years with AfTmitY . Id.
, pp.
13-14. JL.V., four years old, was referred to Affinity by Erie County Care Management, and an assessmI was performed in November 2021. A.L.V. was having difficulties in foster homes and was in h(r fourth placement. when Ms. Potter saw her. Ms. Potter had worked with children as young as Iwo and ahalf years old and found that the earlier treatment began the better the outcome. Id., PP.1 t45.
TI!e behaviors the child exhibited included aggression, pinching, hitting, tantrums,
destructioI nof other children's property, stealing and night terrors. The therapist P was seem gA.L.V.
on aweek ly basis and worked with both the child and foster mother on self-regulating techniques used for traumatized children, Those techniques have the purpose of calming achild down. Ms.
I
Potter,aat he time of the Jul y1 4 , 2022 Termination proceeding, was continuing to work with the
child and _oster mother on aweekly basis. Id. pp. 15-17. Potter prepared areport dated April 10,
Page 8of 19
2022 fog,- the Juvenile Court that was admitted as Exhibit 17 in the Termination Hearing. Id., pp. 18-1.9.
.L.V, described numerous episodes in her life. M s.Potter no t ed th atw hatA.L.V .
recounteldwas not necessarily totally accurate, but indicated the child experienced something in life that manifests itself as trauma. The trauma memories expressed were from the child's time
living w;th the mother. The child had: consistent memories of being in acar with. mother with drugs
g
and agua. Other memories involved domestic violence and being fearful for the safety of mother and chil(1l. A,LV. would express these memories freely. The free expression of these memories
would.of en up more memories. A.L.V. revealed exposure t o guns and arobbery. The child recalled
being in ihotel room where there were drugs and thopolice came. A.L.V. stated she did not have ashirt or, and the police found her a "Paw-Patrol" shirt and put it on her, Another recalled memory was of trle mother being: duct-taped and put in the trunk of acar. A.L.V. said she was afraid her
mother mI as going to be killed along with her and her baby I Ysibling. Recently Ythe child demonstrated
sexualize dbehaviors in the foster home.. Id., pp. 20-25.
Visitation with the mother stopped in February 2022. Ms. Potter testified that without that
•r►h
visitation)the child became more regulated in the foster home, and the nig ppp tterrors stop ed after a
a
few weeks. A.L.V. was no longer fearful som eone would come andkill her .Id., p. 26.
Allthough the foster home was not an adoptive home, the foster mother was committed to treatment for A.L,V. Potter stated that once achild feels safe and secure, the child can go to other
loving ad .alts. Potter described treatment as not acute, but acontinuous p process to develop
phealthy
relationshlips continuing over time as developmental levels of the child changed. A child needs permanenlcy and enjoying afamily is in A.L.V.'s best interest. Id., pp. 27-29, 60.
Page 9of 19
I:achel Lynch provided additional testimony concerning A.L.V, and A.J.R. The two
children are very attached to each other. A.J.R, was 6months old when the children were removed
I
from the, mother's care and turned one;. on March 25, 2022. Id., pp. 93-94. Lynch related that A.L.V.'•• trauma resulted in the child being diagnosed with. PTSD and RAD-Reactive Attachment
Disordei. Mental health treatment began with A.L.V..as quickly as possible after placement as that .
was seerll as an urgent need for A.L.V. Lynch noted that the child continues in therapyand has
improve I Ito such an extent as to become "acompl et ely differentkid" .Id., pp.95-97.
I
CICY is actively seeking a "forever home" for the two child re n who are vi
ewe das a un i
t
for that placement. The current foster parents, although not an adoptive resource, are committed
l
I
to atrans idon to aforever home, That family would need t ob elov i ng yet firm, andbe fully aware
of A.L.VI's diagnoses of PTSD and RAD, as the child will test limits. Id., pp. 97-99. The Agency
I
is purscul ig achild specific recruitment process for A.L.V, and A,J.R. as was described by Ms.
Lynch. I( I., p. 122.
Pkhel. Lynch opined that there would be no detriment to either child were the Court to sever the Imother's parental rights. Lynch saw no benefit but rather harm A.L.V. in continuinga relationship with mother, A.A.C.'s admitted involvement in the drug trade and her fears in that
regard co. isumed her life which created abarrier to the i m pl ement
ati on ofthe treatment pl an w i
th
the mothIr. Ms. Lynch exhausted all. reasonable efforts with the mother .in attemptingto alleviate the circumstances which led to the children's placement. 7d., pp: 101-102.
J k.C. was called as awitness as on cross by the Agency. She revealed that as of about July 7, 20 22 she was residing at Bergen New Midge Medical Centex Treatment Facility in New
Jersey, Thl amother stated she was now living l gin New Jersey.
y On. June 26 2022 she and Luis Lpz Lope
z
were arre: ted on shoplifting charges in Kearny, New Jersey. Id., pp. 5-7, See Ex. 15, 16. Lopez
Page: 10 of 19
had craIk pipes and syringes on him when he was arrested,and A,A.C. admitted to using drugs on
Juste 26 4 Id., pp. 9-11. The mother. testified that the last day she used drugs was "
last Thursday'";
the day;>he entered the treatment facility.
J(t the Review Hearing Hearin before Jude
g ConnellyMarucci
A.A.C.
on May
M 2 2022
, dented,
under o4 ith, that she had adrug problem. At the Termination Hearing, she stated she went into
treatmerlt because she was an addict Id., p. S. A.A.C. a•`eed that she did nothing bshe told Judge
g
Connelly Marucci she would do at May 2nd Hearing. Id., p. 11.
I .A.C. later testified that she is an addict, wanted help and was willing to change. The
mother s I put herself in difficult situations and picked P Luis Lopez
p over her children. Id. f
pp. 128-`133.
A `Hearing were held on the Agency's Petitions to Terminate the Parental Rights ofA.A.C.
to A.IN and A.J.R, on July 14, 2022. This Court reviewed the testimony and evidence presented at the (voluntary Termination. Hearing and issued Orders on August 11, 2022. The Agency
presentee l sufficient clear and convincing evidence justifying the termination of the parental rights
of AA . to A.L.V. and A.JFR, pursuant to 23 Pa. C.S. §§ 2511 (a)(l),(2),(5) and (8), and that terminati :)nis in the best interest of those children under 23 Pa. C.S. § 2511 (b).
ISSUES PRESENTED
1. The Orphan's Court committed an abuse of discretion and/or error of law when it concluded that the Agency had established, by clear and convincing evidence, the grounds for termination pursuant to 23 Pa.C.S.A. § 2511(a)(1) that the natural mother has evidenced asettled purpose of relinquishing aparental claim to the minor child or has refused or failed to perform parental duties.
Page 11 of 19
:'.. The Orphans' Court committed an abuse of discretion and/or error of law when it concluded that the Agency had established, by clear and convincing evidence, the grounds for termination pursuant to 23 Pa. C.S.A, § 2511 (a)(2): Specifically, the Orphan's Court did not give due consideration to the fact that the natural mother has not displayed arepeated incapacity, abuse, neglect, or refusal to remedy the conditions that necessitated placement.
2. The Orphan's Court committed an abuse of discretion and/or error of law when it concluded that the Agency has established, by clear and convincing evidence, the grounds for termination pursuant to 23 Pa. C,S.A, § 2511 (a)(5). Specifically, the Orphan's Court did not give due consideration tar the significant progress on the part of the natural mother in remedying the conditions which led to the removal or placement of the child and make adetermination as to whether those concerns continued to exist and whether termination of parental rights would best serve the needs and welfare of the child., 4: The Orphan's Court committed an abuse of discretion and/or error of law when it concluded that the Agency had established, by clear and convincing evidence, the grounds.for termination pursuant to 23 Pa. C.S.A. § 2511(b). Specifically, the Orphan's Court did not consider the trauma and impact that befalls achild upon severing the clearly established bond between natural mother and the minor child and how permanently severing that bond: was in the best interest of the minor child.
STANDARD OF REVIEW
In reviewing an appeal from an order terminating parental rights,
Page 12 of 19
Appellate courts must apply an abuse of discretion standard when considering a trial courts determination of apetition for parental rights, (The] standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9A.3d 117991190 (2010),
Ifthe factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id. An abuse of discretion does not result merely because the reviewing court might have reached aconclusion. Id.
Instead, a decision may be reversed for an abuse of discretion only upon determination of manifest unreasonableness,, partiality, prejudice, bias, or ill-will.
DISCUSSION
Liatermination. of parental rights hearing, the initial focus is on the conduct of the parent.
The part•• moving for termination must "prove by b clear and convincing evidence that the parent's are s
conduct I'i-atisfies the statutory grounds for termination delineated in Section 2511(a)." In re L.M.,
923 A.2t,,505, 511 (Pa. Super. 2007). Once these statutory grounds •' exist the court may analyze
Y
whether itis in the best interests of the child for parental rights to be terminated. Id.
The Agency proceeded to seek termination under the following grounds of Section 2511:
(a)(1) the parent by conduct which has continued for aperiod of at least six (6)
months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to the child, or has refused or failed to perform parental duties,'
(a)(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 the physical or mental well-being of said child and the conditions and, causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent;
(a)(5) the child has been removed from the care of the parent by the Court or under avoluntary agreement with an agency for aperiod of at least six (6) 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 areasonable 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 parental rights would best serve the needs and welfare of the child;
Page 13 of 19
(b) The termination of parental rights ofA.A.C. to AIN. and A.J.R. is in the best interest of the children.
One major aspect of this analysis includes 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" Id. The Superior Court may affirm the trial court's decision regarding
the termIination of parental rights with regard to any one subsection of 23 Pa. C.S.A.. §2511 ( a).
In
re .
B.L.
IV., 843 A:.2d 380, 384 (Pa. Super. 2004) (en hanc), app. den. 863A.2d 1141(2004).
I
I'reserving Appellant'
sparental rights is not an acceptable option in this case. "Parental
duty requires that the parent act affirmatively with good faith interest and effort, and not yield to N $ every pr blem, in order to maintain the parent-child relationship to the best of his or her ability,
even in 4 lifficult circumstances." in re B,N.M., 856A.2d, B47,855 (Pa. Super. 2004). "
A parent
must uti lize all available resources to preserve the parental relationship,and must exercise
reasonat le firmness in resisting obstacles placed i n the path of maintaining the parent-child
relationship." Id.
A.A.C. refused to address any ofthe issues that led to her children's removal. OCY put toget her acomprehensive plan to put A.A.C. in.a position to have the children returned to her and be Mused in asafe environment. Parenting, domestic violence treatment and mental health
therapy i vere all components to help A.A.C. put her life in order. She did not attendanyofthese I
through out her involvement with the Agency, or if she did attend an evaluation, claimed to have no pmbl !ms. Referrals to safe housing were made to protect her from the drug trafficking life in which Je was immersed, yet these efforts went for naught. A.A.C, lied about entering safe housing. •Cven when she appeared to accept that protectionsthe mother left because she could not or would not follow the rules.
Page 14 of 19
The main culprit in A.A. C '
sparenting failure was her drug use.. Programs offered to wean
her off twat lifestyle were ignored by the mother. A.A.C. continually denied drug involvement. On the ird(Kl:quent occasions when she subjected herself to the court-ordered urinalysis, she tested positiveIfor Fentanyl. Her excuse was always the same— "Idon't do drugs". The mother expected the auArities to believe her positive tests for Fentanyl were because of having sex with Luis Lopez vlith the drug being passed through his semen. A.A.C. tested positive for Fentanyl the day of the At Review Hearing on January 2f, 2022. Same excuse. Even when the Court conditioned the mother's visits with her children on drug free urine test to prevent their exposure to amother on Fenvinyl, A.A.C. continued to fail. This continuing failure on the mother's part led to the canceling of visitation from February 2, 2022 onward. Even this drastic step by the Court could not shake A.A.C.'s refusal to cooperate with the programs designed to reunite her with her
children.I
I
A.L.V. was particularly traumatized by the mother's failure to provide the most essential
element If parenting — protection of children. A.A.C. admitted to having both A.L.V. and A.J.R. with her during drug runs between New Jersey and Erie.. A.L.V. recounted drugs, guns, violence I against 0Le mother and police intervention. The child feared for her safety as well as her mother's.
I
A.L.V. r( counted police coming to their hotel room and she had no shirt on. The child remembered
of the shirt the police put on her— Paw Patrol, Devastating specific memories of a4yearthe nameI
old. Theie traumas have led to problematic behaviors by A.L.V. Which are being addressed through Iherapy. Patricia Potter, the child's therapist, noted that dealing with the trauma in A.L.V.'s life will be an ongoing concern throughoutAIN.'s life. A.L,V. and A.J.R. have astrong attachment and will be adopted as aunit. The foster mother has been actively involved in A.L.V's
Page 15 of 19
therapy and will maintain that level of commitment through working with an adoptive family to successi ally transition the children.
I A- C. was served verbal notice of the scheduling gof the Termination Hearingon May Y1
2022.S( aEsc. 1. Prior to the hearing, A.A.C. moved to New Jersey with Luis Lopez; was arrested
with hi Ifor shoplifting while• yaround Julx, admittedly do drugs; and .entered atreatment facility 7
2022 .A. A,C, now declares she is adrug addict and wants asecond chance to be amother. The
adage, "fictions speak louder than words", obviouslya pplies here. It is difficult to fathom how
A.A,C, v Irants to be as mother to her children when she moved to New Jersey. The recent admission
of being !idrug addict supports the conclusion that A.A.C. was lying to the Agency, drug treatment
centers, ,Ind thee Court,m claiming she did not do drugs. The level to which the mother w as w illing
sink to t•y to dupe authorities is borne out by the fact she expected professionals to believe she was testi-L positive for Pentanyl because of sex with her boyfriend.
AIspreviously noted, the standard of review of atrial court's determination to grant an involuntary termination of parental rights is abuse of discretion,
The Supreme Court has stated:
N
"/ Wfe must defer to the trial judges who see and hear the parties andcan det erm i
ne the
ctedibility to be placed on each witness and, premised thereon,gauge the likelihood of
It, the success of the current permanency plan."
re R.J.T. 608 Pm at 27, 9A.M at.1,190.
AIA.C. has no credibility when she claims she is now attempting to straighten out her life.
Her actioilis throughout the Agency's involvement and New Jersey Children's Service involvement before thEItevidence awoman who has no desire to act as aparent. As A.A.C. testified on July 14, she placeli others before her children.Her actions corroborate that she has and will continue to subvert hcx children's well-being for her own desires,
Page 16 of 19
'Ns Court has noted the standard of review governing termination of parental rights' case.
Under 23Pa. C.S.A.. §2511(b), no efforts by the parent after the date of notice of the filing of the Terminaltion Petition will 'be considered purs•Tant to cases under subsection (a)(1). Subsection (a) (1) is on of the subsections being pursued by the Agency. Termination can be affirmed if one of
the subs , -"
-ctions is supported by clear and convincing evidence.I I p n re BLW, supra.
Ihe mother has clearly shown that she has no desire to change her attitude or actions toward
parents ;, no matter how much at risk it places her children.-A.A.C. rejected all services and efforts I during B ite course of the Agency's involvement, and termination of her parental rights under
subsecti< in (a)(1) is appropriate.
The Agency is also proceeding under subsections (a)(2) and (a)(5). Although this Court
believes sufficient evidence supports termination under subsection ( a)(1), there is clear and
convinci l f g evidence supporting termination under both those subsections as well. Counself or th e
mother alleges that the Court did not consider that the mother has not demonstrated the continued incapacily neglect or refusal to remedy the conditions which .led to the children's placement. Further, l:ounsel states the Court did not adequately consider the mother's efforts to remedy those conditions, the evidence prove otherwise. A.A.C. continued to use drugs until July 7, 2022. She
moved t INew Jersey with her boyfriend sometime in June 2022; was arrested with him while she
was undeIrthe influence of l:entanyl on June 25, 2022. Only July 14, 2022 she admitted she was an addictIto this Court and proclairned she had been clean for aweek. These facts utterly fail to demonstrate that A.A.C. has made any effort to remedy the conditions which led to her children's placement. The mother's claim that being cleats for aweek since being in treatment fails to provide convincing evidence of her efforts to remedy those conditions. A.A,C, lied about drug use and minimized issues in her life, She couldn't bring herselfto be off drugs in order to visit her children.
Page 17 of 19
One we -ksober and in treatment, with criminal charges pending, does not provide this Court with.
sufficielit credible evidence that A..A.C.'s efforts .are genuine, J?inally, Counsel for the mother states: that repercussions of severing the bond between
A.A.C. Mid r by l her children have not been sufficiently considered this Court. Again the evidence
derrtonsl rates otherwise. A.L.V.'s destructive behaviors minimized once visits with her mother
stopped! The: child no longer had ni • tterrors or was fearful someone would e come t
© the
home al steal her. Therapy to work through the traumatic events of A.L.V.'s life are ongoing and
have Shown promise. Subjecting achild: to drugs, $ guns, violence
,of fear for safety and being left
alone arc not factors which would lead a. child to have astrong positive relationship with aparent. A.I.R. Was too young to understand what the exposure to these events constituted. However, she
is attach)d to A.L.V, and will be adopted along with A.L.V. into the same lovingadop family.
ptive famil .
T a evidence demonstrated that seve ring cont ac tw ith thei
r mother has not had any
detrimell effect on the children. Not permitting these children to have to face the continued lifelong La and instability they have been through in their short lives is of paramount concern to this It
AI.A.
f C. has continuously
continuous) demonstrated she cannot rwill not place 1her children's
' needs
above hel l* own. She refuses to accept responsibility for her actions. The skills and judgment
necessaryl )to provide for the emotional well-beingofher children are nonex
i
stent. T he total
hi story
of this cave reveals that the mother is unable and unwilling t ochange or to give priority to the
needs for,. safety and adequate care for her children. She was given numerous opportunities to demonstr, le she would work to be able to provide the necessary basic needs for her children and consisten'ly failed to do so, The Agency has provided Clear and convincing evidence supporting the: Termn; cation ofA.A.C's parental rights to A.L.V. and A.J.R. pursuant to 23 Pa. C.S.A. §2511(a)
Page IS of 19
( 1), (2), and (5), and that termination is in the best interest of those children. 23 Pa. C.S,A.
§2511(b'►.
CONCLUSION
Iihe mother A.A.C. has absolutely refus edto accept anyservi ces andprograms offered to
her to re!nedy the conditions which led to the removal and placement of AI N, and A.J.R. The
mother 1 1as shown that she cannot or will not remedy the conditions which led to the removal of
her childrren. A.XC, did not evidence any desire or ability to place her children's safety and well- being above her dangerous lifestyle. There is no parental bond between mother and children. The best interests of A.L.V. and A.J.R. are best served by termination. It is requested that the Superior Court aft .inn this Court's Decree terminating the Appellant/mother's parental rights.
Dated thi s A ay of October, 2022. 11
CO
Shad Connelly, Senior Judge
cc: A, ny E. Jones, Solicitor, Office of Children and Youth, 154 West Ninth Street, Erie, PA 16501
Stl;ven E. George, Esquire, 300 State Street, Suite 300, Erie, PA 16507 Et zly M. Merski, Esquire, 3824 Liberty Street, Erie, P A 16509
page 19 of 19