J-A22009-23 J-A22010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ADOPTION OF M.J., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.J., FATHER : : : : : : No. 556 WDA 2023
Appeal from the Order Entered April 10, 2023 In the Court of Common Pleas of Armstrong County Orphans' Court at No(s): 002-ADOPT-2023
IN RE: ADOPTION OF M.J., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: R.G., MOTHER : : : : : : No. 576 WDA 2023
Appeal from the Order Entered April 10, 2023 In the Court of Common Pleas of Armstrong County Orphans' Court at No(s): 002-ADOPT-2023
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: December 12, 2023
A.J. (“Father”) appeals from the April 10, 2023 order that involuntarily
terminated his parental rights to his biological son, M.J., born in January 2021. J-A22009-23 J-A22010-23
Separately, R.G. (“Mother”) has appealed the same order that simultaneously
terminated her parental rights to M.J.1 We affirm.
We gather the relevant factual and procedural history of this matter
from the certified record. Mother and Father (“Parents”) cohabitate and are
married. Armstrong County Children & Youth Services (“CYS”) first became
involved with this family immediately after M.J. was born addicted to
methamphetamines. See N.T., 3/28/23, at 9. Mother admitted to abusing
methamphetamines and overdosing on heroin during her pregnancy with M.J.
Id. at 11-12. On January 7, 2021, CYS was granted temporary protective
custody of M.J., until he was returned to the legal and physical custody of
Father on February 5, 2021. Thereafter, CYS provided in-home services until
court supervision was terminated in July 2021.
On July 1, 2022, officers of the Ford City Police Department and the
Armstrong County Sheriff’s Department attempted to execute a warrant for
Mother’s arrest at Parents’ home on unrelated criminal charges and discovered
Parents’ home to be in a “deplorable condition.” Order of Adjudication and
Disposition, 8/1/22, at ¶ 1(3)-(4). M.J. was removed to a temporary kinship
placement until July 7, 2022, when Parents’ home had been cleaned and he
was returned to Father’s custody. See N.T., 3/28/23, at 11. At this point in
time, Mother was alleged to be residing in Chicago, Illinois and Father began
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1 As both appeals stem from the same order, we consolidated these cases for disposition pursuant to Pa.R.A.P. 513.
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to demonstrate a “lack of cooperation” with CYS. Order of Adjudication and
Disposition, 8/1/22, at ¶ 1(9)-(10).
On August 1, 2022, M.J. was adjudicated dependent. See Order of
Disposition, 9/8/22, at ¶ 1(14). Two weeks later, CYS filed an application for
protective custody of M.J. after learning that he had been living apart from
Parents with another family member for several days due to the deplorable
conditions of the family residence. The agency could not locate Mother and
Father.
The court awarded CYS custody of M.J. that same day and confirmed its
holding at a shelter care hearing on August 19, 2022. Upon re-establishing
contact with CYS shortly thereafter, Mother tested positive for the opioid
suboxone, for which she did not have a prescription, and Father confessed to
using cocaine. See Order of Disposition, 9/8/22, at ¶ 1(15)-(16); see also
N.T., 3/28/23, at 17-18. Beginning in August 2022, M.J. was placed in a pre-
adoptive kinship foster home with B.G. and C.G. (“Foster Parents”), where he
has remained. See N.T., 3/28/23, at 7, 36-37.
In connection with these proceedings, Mother and Father were each
assigned several permanency goals, namely to: (1) undergo a drug and
alcohol assessment and follow-up on recommended treatment; (2) submit to
a mental health assessment and follow-through on recommended treatment;
(3) obtain and maintain suitable housing; (4) comply with random drug
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screens; and (5) cooperate with CYS and related services. See Permanency
Review Order, 12/6/22, at 1; see also N.T., 3/28/23, at 18-19, 22-23.
Between August 2022 and February 2023, Parents’ respective
compliance with these directives was minimal. Additionally, there is no
evidence that Parents addressed the underlying substance abuse and mental
health problems. See N.T., 3/28/23, at 18-28, 66, 71. Both repeatedly
refused to submit to random urine screens and, when they did acquiesce to
such tests, both tested positive on multiple occasions for various illicit
substances including, inter alia, methamphetamines. See N.T., 3/28/23, at
20-25. Parents also failed to provide access to their home for evaluations
performed by CYS and other providers. Id. at 25-28, 63-65.
Parents were granted supervised, one-hour visitations with M.J. twice
per month. Id. at 30. Out of thirteen total joint visits that were offered,
Father participated in five, while Mother attended six. Id. at 30-31.
Accordingly, Parents have enjoyed approximately five to six hours of total
contact with M.J. since his removal from their care in August 2022.
On February 23, 2023, CYS filed a consolidated petition seeking to
involuntarily terminate Parents’ respective parental rights to M.J. pursuant to
23 Pa.C.S. § 2511(a)(5) and (b), at which time M.J. was two years old.2 The
2 The record is silent concerning the appointment of legal interest counsel for M.J. as contemplated by 23 Pa.C.S. § 2313(a). Paula LaStrape, Esquire, was appointed to serve as M.J.’s guardian ad litem and advocate for his best (Footnote Continued Next Page)
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orphans’ court held a joint termination hearing on March 28, 2023, wherein
CYS adduced testimony from the CYS caseworker assigned to this matter,
Brenna Irvin, and family resource specialist Brittany Marshall from
JusticeWorks Youth Care of Armstrong County (“JusticeWorks”). Mother was
not present at the hearing, although she was represented by Lisa Peluso,
Esquire, who acted as stand-by counsel because Mother’s appointed counsel,
Kimberly N. Ferringer, Esquire, was unavailable. Father attended the hearing
and was also represented by separate counsel. Parents did not testify, nor
did they present any evidence on their own behalf. On April 10, 2023, the
orphans’ court filed a memorandum and order involuntarily terminating
Parents’ rights to M.J.3
interests during these proceedings. See Order of Court, 2/27/23. Insofar as M.J. was two years old at the time of the proceedings and incapable of articulating a preference with respect to the termination of parental rights, we observe no structural defect in this case. See In re T.S., 192 A.3d 1080, 1092-93 (Pa. 2018) (holding that “if the preferred outcome of a child is incapable of ascertainment because the child is very young and pre-verbal,” then § 2313(a) “is satisfied where the court has appointed an attorney- guardian ad litem who represents the child's best interests during such proceedings.”).
3 We note that the orphans’ court initially filed a decree terminating Parents’ rights to M.J. on March 28, 2023. See Decree, 3/28/23. However, there is no indication in the certified record that the court provided notice of this filing to the parties. Thereafter, on April 10, 2023, the orphans’ court filed the instant order and memorandum, which was served on the parties.
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Mother and Father both filed timely notices of appeal to this Court along
with concise statements of errors pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
We outline their respective issues thusly.
Mother presents the following issues for our consideration:
1. Whether Mother’s due process rights were violated when her attorney at the termination of parental rights hearing represented her even though there was a conflict of interest, namely the attorney represented the father of Mother’s other child in a different dependency proceeding, which was disclosed by Mother to the attorney?
2. Whether the court committed an error of law in finding clear and convincing evidence that Mother’s conduct met the statutory requirements for termination, despite the following:
a. Mother attended all of [M.J.’s] medical appointments, except one, during the pendency of the child’s placement;
b. Mother regularly and consistently attended all of her supervised visitation with [M.J.];
c. Mother admitted herself into a drug rehabilitation program in December 2022 and was sober for a period of time; and
d. Mother admitted herself into inpatient psychiatric facility;
all of which were a part of and in compliance with the permanency plan.
Mother’s brief at 5-6 (cleaned up).
Concomitantly, Father has framed his appellate issues, as follows:
1. Whether the court abused its discretion in finding clear and convincing evidence that Father would not or could not remedy his housing situation and therefore involuntarily terminated his parental rights under 23 Pa.C.S. § 2511(a)(5) despite
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Father showing in the past a willingness and ability to remedy said housing issues?
2. Whether the court abused its discretion in finding clear and convincing evidence that it would be in the best interest of [M.J.] to involuntarily terminate the rights of Father despite the testimonial evidence of a bond between Father and [M.J.]?
Father’s brief at 5-6 (cleaned up).
We begin our review by briefly addressing Mother’s first claim for relief,
which asserts that Attorney Peluso, who represented Mother as stand-by
counsel during the termination proceedings, had an alleged conflict of interest
that Mother submits should have disqualified Attorney Peluso from
participating in the matter. See Mother’s brief at 13-14 (“[Attorney] Peluso
previously represented the [f]ather of Mother’s other child in a CYS
proceeding. . . . Because of [Attorney] Peluso’s past prejudices against Mother
due to the prior representation, [Attorney] Peluso could not zealously
represent Mother in this case.”). Specifically, Mother asserts that she first
learned of this alleged conflict of interest prior to the termination hearing
during a permanency review proceeding wherein Attorney Peluso also filled in
for Mother’s appointed counsel. Id. at 14. Despite learning of this apparent
conflict, neither Mother nor her regular attorney raised any issue with the
orphans’ court.
Our standard of review concerning matters pertaining to disqualification
of counsel on ethical grounds is plenary. See Rudalavage v. PPL Electric
Utilities Corp., 268 A.3d 470, 478 (Pa.Super. 2022).
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In support of this contention, Mother has invoked Pennsylvania’s Rule
of Professional Conduct 1.7(a)(2). Id. at 13. This Rule provides, in pertinent
part, as follows:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
....
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent.
Rule of Prof. Conduct 1.7(a)-(b). As a general proposition, a court’s authority
to disqualify counsel based upon the Rules of Professional Conduct is “limited,”
and may be exercised only when it “is needed to ensure the parties receive
the fair trial which due process requires.” Vertical Resources, Inc. v.
Bramlett, 837 A.2d 1193, 1201 (Pa.Super. 2003) (cleaned up).
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Instantly, Mother did not file a motion seeking to disqualify Attorney
Peluso, nor did she otherwise bring this matter concerning her representation
to the orphans’ court’s attention prior to the taking of an appeal. Rather,
Mother raised this claim for the first time in her Rule 1925(a)(2)(i) and (b)
concise statement of errors. See Concise Statement, 5/5/23, at ¶ 1. It is
well-established that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Furthermore,
a party is not permitted to “rectify the failure to preserve an issue” by
proffering it in a Rule 1925(b) concise statement, which “is not a vehicle in
which issues not previously asserted may be raised for the first time.” Hinkal
v. Pardoe, 133 A.3d 738, 746 (Pa.Super. 2016). This claim is waived.
Moreover, even if we were to charitably overlook Mother’s waiver of this
issue, there is no documentation or testimony in the certified record speaking
to Attorney Peluso’s alleged conflict of interest. Rather, the only facts upon
which Mother has based this claim were asserted, for the first time, in her
brief to this Court. See Mother’s brief at 13-14.
We remind Mother that “[f]or the purposes of appellate review, what is
not of record does not exist.” Frank v. Frank, 587 A.2d 340, 342 n.5
(Pa.Super. 1991) (citing Pa.R.A.P. 1921). We are only entitled to rely upon
facts that appear in the certified record. See In re J.I.R., 808 A.2d 934, 935
(Pa.Super. 2002). We may not consider “unsubstantiated allegations” in
reviewing an appeal. K-B Bldg. Co. v. Sheesley Const., Inc., 833 A.2d
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1132, 1139 (Pa.Super. 2003). To the extent that Mother has attempted to
adduce new evidence and testimony in her brief concerning Attorney Peluso’s
representation of Mother, we are not permitted to consider such materials.
See Warfield v. Warfield, 815 A.2d 1073, 1076 n.4 (Pa.Super. 2003)
(“[T]he unsubstantiated assertions contained in the parties’ briefs do not
constitute record evidence.”). Lacking any arguable basis or support in the
certified record, this claim would also fail on the merits. Based upon the
foregoing, no relief is due on Mother’s first issue.
We now turn to the remainder of Parents’ claims for relief, which
challenge the merits of the orphans’ court’s termination findings. Our
standard of review in this context is well-established:
In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. When applying this standard, the appellate court must accept the orphans’ court’s findings of fact and credibility determinations if they are supported by the record. Where the orphans’ court’s factual findings are supported by the evidence, an appellate court may not disturb the orphans’ court’s ruling unless it has discerned an error of law or abuse of discretion.
An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion or the facts could support an opposite result. Instead, an appellate court may reverse for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill- will. This standard of review reflects the deference we pay to trial courts, who often observe the parties first-hand across multiple hearings.
In considering a petition to terminate parental rights, the orphans’ court must balance the parent’s fundamental right to make decisions concerning the care, custody, and control of his or her
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child with the child’s essential needs for a parent’s care, protection, and support. Termination of parental rights has significant and permanent consequences for both the parent and child. As such, the law of this Commonwealth requires the moving party to establish the statutory grounds by clear and convincing evidence, which is evidence that is so clear, direct, weighty, and convincing as to enable a trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.
Interest of M.E., 283 A.3d 820, 829-30 (Pa.Super. 2022) (cleaned up).
The involuntary termination of parental rights is governed by § 2511 of
the Adoption Act, which calls for a bifurcated analysis that first focuses upon
the “eleven enumerated grounds” of parental conduct that may warrant
termination. Id. at 830; see also 23 Pa.C.S. § 2511(a)(1)-(11). If the
orphans’ court determines the petitioner has established grounds for
termination under at least one of these subsections by “clear and convincing
evidence,” the court then assesses the petition pursuant to § 2511(b), which
focuses upon the child’s developmental, physical, and emotional needs and
welfare. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). This Court need only
agree with the orphans’ court’s determination as to “any one subsection of
§ 2511(a), in addition to § 2511(b), in order to affirm the termination of
parental rights.” T.S.M., supra at 267.
In the case sub judice, the orphans’ court terminated Mother’s parental
rights pursuant to § 2511(a)(5) and (b). These sections provide, as follows:
(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
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(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.
(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)(5), (b).
In order to satisfy the requirements of § 2511(a)(5), the petitioning
party must produce clear and convincing evidence to establish: (1) the child
has been removed from parental care for at least six months; (2) the
conditions that lead to the child’s removal or placement continue to exist; (3)
the parent(s) cannot or will not remedy the conditions which led to removal
or placement within a reasonable period of time; (4) the services reasonably
available to the parent(s) are unlikely to remedy the conditions which led to
removal or placement within a reasonable period of time; and (5) termination
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of parental rights would best serve the needs and welfare of the child. See
In re B.C., 36 A.3d 601, 607 (Pa.Super. 2012).
If a petitioner establishes adequate grounds for termination pursuant to
§ 2511(a), we then turn to § 2511(b), which requires that it “give primary
consideration to the developmental, physical and emotional needs and welfare
of the child.” 23 Pa.C.S. § 2511(b). Our Supreme Court has advised that
Pennsylvania courts “should consider the matter from the child’s perspective,
placing [their] developmental, physical, and emotional needs and welfare
above concerns for the parent.” In the Interest of K.T., 296 A.3d 1085,
1105 (Pa. 2023). Such a determination “should not be applied mechanically,”
but “must be made on a case-by-case basis,” wherein “the court must
determine each child’s specific needs.” Id. at 1106. There is no “exhaustive
list” of factors that must be considered. Id. at 1113 n.28.
Nonetheless, our Supreme Court has mandated that a court’s § 2511(b)
analysis must include “consideration of the emotional bonds between the
parent and child.” T.S.M., supra at 267. Specifically, the court must
determine whether the “trauma” caused by sundering the parent-child bond
is “outweighed by the benefit of moving the child toward a permanent home.”
Id. at 253 (cleaned up). The recognized threshold for this finding is that the
court must determine whether termination will sever a “necessary and
beneficial relationship,” such that the child “could suffer extreme emotional
consequences.” K.T., supra at 1110. Our Supreme Court has emphasized,
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however, that such consequences must constitute more than mere proof of
“an adverse or detrimental impact from severance of the parental bond” in
order to preclude termination. Id. at 1113.
The analysis mandated by § 2511(b) is not narrow but should include
consideration of “intangibles such as love, comfort, security, and stability.”
T.S.M., supra at 267. Indeed, our Supreme Court has affirmed that “the
parental bond is but one part of the overall subsection (b) analysis.” K.T.,
supra at 1113. Thus, “courts must not only consider the child’s bond with
the biological parent, but also examine the . . . love, comfort, security, and
stability the child might have with the foster parent.” K.T., supra at 1111
(emphasis in original; internal citations and quotation marks omitted).
Specifically, Pennsylvania courts should also consider factors that naturally
arise due to the particular facts of a case, such as: (1) the child’s need for
permanency and length of time in foster care; (2) whether the child is in a
pre-adoptive home and bonded with foster parents; and (3) whether the foster
home meets the child’s needs. Id. at 1113.
With these overarching legal principles in mind, we turn to Parents’
respective arguments concerning the orphans’ court’s § 2511(a)(5) findings.
Mother challenges the orphans’ court’s findings, arguing that she “was
complying with the permanency plan by attending supervised visits, admitting
herself to inpatient drug rehabilitation, and her past record of cleaning the
home.” Mother’s brief at 12. Concomitantly, Father argues that the orphans’
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court’s finding should be overturned since he allegedly addressed the concerns
regarding the unclean condition of Parents’ home. See Father’s brief at 10
(“The court abused its discretion in finding clear and convincing evidence that
the parental rights of Father should be involuntarily terminated despite
testimony before the factfinder of Father’s ability to meet the conditions
related to his housing[.]”). We find no merit in either line of argument.
Preliminarily, we note that there is no dispute that M.J. had been
removed from Parents’ care for at least six months when CYS filed the
termination petition. Thus, the first aspect of § 2511(a)(5) is established.
We now turn to the second statutory prong, which considers whether
the conditions that precipitated M.J.’s removal continue to persist. As noted
above, Parents have principally focused their respective arguments on their
attempts to maintain a clean and safe home, which they have framed as the
central issue in this case. See Father’s brief at 10; Mother’s brief at 12.
Parents are correct to the extent that they recognize that the filthiness
and degradation of their home was one of the underlying reasons for M.J.’s
removal. Critically, however, there is no evidence that Parents have advanced
any appreciable efforts to address the other, more-serious conditions that also
caused M.J. to be removed from their care, i.e., Parents’ ongoing substance
abuse and mental health issues. The evidence of record indicates those
conditions remain unresolved.
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Parents’ substance abuse issues have persisted throughout CYS’s
involvement with this family. M.J. was born addicted to methamphetamines
and Mother overdosed on heroin at some point during her pregnancy. See
N.T., 3/28/23, at 9-12. At the time of M.J.’s removal, Mother tested positive
for the pharmaceutical opioid suboxone, for which she did not have a
prescription, while Father admitted to recently using cocaine. See Order of
Disposition, 9/8/22, at ¶ 1(15)-(16); see also N.T., 3/28/23, at 17-18. At
the termination hearing, Ms. Irvin and Ms. Marshall each confirmed that
Parents continued to abuse narcotics with impunity following M.J.’s removal.
See N.T., 3/28/23, at 18-25, 70-77. Between August 2022 and February
2023, Parents’ respective urine screens each yielded multiple positive results
for methamphetamines and other illegal substances. Id. Parents also
conceded to additional illegal drug use beyond what was revealed by these
test results. Id.
At most, the record establishes that Mother “self-reported” attending an
unidentified “inpatient rehab facility.” Id. at 19, 65-66. Ultimately, she
“signed herself out after two days” of purported treatment. Id. There is no
documentation in the certified record corroborating Mother’s bald assertions
that she sought treatment. Similarly, Ms. Irvin averred that Father promised
on multiple occasions that he would undergo a drug and alcohol assessment
and enter treatment, but there is no indication that he ever followed through
on such pledges in a verifiable fashion. Id. at 23.
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In sum, there is no evidence in the certified record establishing that
either Mother or Father ever underwent their mandated drug and alcohol
assessments, or otherwise availed themselves of substance abuse treatment
services offered to them. Moreover, the testimonies of Ms. Irvin and Ms.
Marshall at the termination hearing similarly reflect that neither Mother nor
Father ever completed their mandated mental health assessments. Id. at 18-
28, 65-66, 70-77. Even assuming, arguendo, that Parents have succeeded in
maintaining a clean and safe home environment, the most troubling aspects
of the conditions that caused M.J.’s removal remain unabated.
Based upon the foregoing, we find that the second aspect of
§ 2511(a)(5) is also satisfied in this case. Furthermore, the evidence recited
above also readily establishes the third prong of § 2511(a)(5), namely, that
Parents’ well-documented inability to follow-through with assessments,
treatment, or sobriety evinces that these conditions will not be remedied
within a reasonable period. As detailed above, Parents’ serious mental health
and substance abuse issues have been an ongoing concern for several years,
i.e., the entirety of M.J.’s life. In the approximately seven months between
M.J.’s removal and the filing of a termination petition, Parents made no
appreciable progress in ameliorating these conditions.
The fourth requirement of § 2511(a)(5) mandates a finding that the
services “reasonably available” to Parents are “unlikely to remedy the
conditions which led to removal or placement within a reasonable period of
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time.” B.C., supra at 607. In undertaking this assessment, Ms. Irvin detailed
the types of support and treatment offered to Parents during the course of
CYS’s involvement with the family, which began with “in-home services”
provided by Holy Family Safecare from January 2021 through July 2021. See
N.T., 3/28/23, at 11-13. Although Ms. Irvin testified that these efforts
resulted in M.J. being temporarily restored to Father’s custody, any
improvement of circumstance was temporary and the underlying conditions in
this case again deteriorated to the point of M.J.’s second removal in August
2022. Id. at 13-17. At that time, Parents were unsuccessfully offered
visitation services, drug and alcohol management, and support services
through JusticeWorks. Id. at 20, 56, 61, 66-67. We gather from Ms. Irvin’s
testimony that Parents also had additional treatment options available through
at least one provider, Family ACTS, but never followed through on availing
themselves of such services. Id. at 18-20, 23-25, 44-45.
As the nearly two years’ worth of services made available to Parents
have had no ascertainable improvement in the serious conditions that caused
M.J.’s removal from Parents’ custody, the record supports the orphans’ court’s
finding that Parents are unlikely to remedy the conditions within a reasonable
period of time. Accordingly, the fourth aspect of § 2511(a)(5) is also satisfied
in these cases.
Finally, we must consider whether termination will best serve the needs
and welfare of M.J. pursuant to § 2511(a)(5). See B.C., supra at 607.
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Although this inquiry is similar to the analysis that takes place pursuant to
§ 2511(b), this Court has identified the fifth element of § 2511(a)(5) as a
“‘discrete consideration’” as opposed to a “‘mere formality.’” In re Adoption
of B.J.R., 579 A.2d 906, 908 (Pa.Super. 1990) (quoting In re P.A.B., 570
A.2d 522, 525 (Pa.Super. 1990)).
Instantly, we find that the record speaks definitively that termination of
Parents’ rights best serves the needs and welfare of M.J. When M.J. was
removed from Parents’ care in August 2022, the child was nineteen months
old and had significant developmental delays. He was unable to walk or talk.
See N.T., 3/28/23, at 8. Since his removal from Parent’s custody and
placement with Foster Parents, both Ms. Irvin and Ms. Marshall reported that
M.J. has successfully completed physical therapy and is “excelling” at
improving his “gross motor skills” and his communication abilities. Id. at 8,
71-72. Given M.J.’s dramatic improvement in a mere seven months out of
Parents’ custody and in Foster Parents’ care, we find that termination will best
serve his needs and welfare. Based upon the foregoing, we observe no abuse
of discretion or error of law in the orphans’ court’s findings pursuant to
§ 2511(a)(5). Accordingly, we agree that termination is warranted pursuant
to this subsection.
We now turn our review to § 2511(b), under which we will consider
whether termination will best serve the developmental, physical, and
emotional needs and welfare of M.J. See 23 Pa.C.S. § 2511(b). As noted
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above, we are mandated to conduct a “bond analysis” as part of this review,
to ascertain whether termination of Parent’s rights will cause “extreme
emotional consequences” for M.J. K.T., supra at 1110. Parents’ arguments
on this point essentially allege that the orphans’ court overlooked the
existence of a strong parental bond between Parents and M.J. See Mother’s
brief at 14-16; Father’s brief at 13-17. We must disagree.
Ms. Irvin reported that M.J.’s interactions with Parents reveal that he
has only a “slight” bond with them. Id. at 47. Assuming, arguendo, that
Parents possess some manner of bond with M.J., the testimony at the
termination hearing clearly evinces that it is not a “necessary and beneficial
relationship,” such that the child “could suffer extreme emotional
consequences.” K.T., supra at 1110. Rather, M.J.’s true parental bond is
with Foster Parents. As noted above, Ms. Irvin testified that M.J. has a “very
good relationship” with Foster Parents and has developmentally blossomed in
their care. See N.T., 3/28/23, at 36. Indeed, Ms. Marshall testified that M.J.
was “excited to leave” the visits with Parents and return to the care of Foster
Parents. Id. at 74 (“As soon as the foster mom walks in the door when time
is up, he is very excited. He runs to her. He would rather be with her[.]”).
This testimony indicates that the termination of Parents’ parental rights will
not cause undue trauma to M.J.
Furthermore, the lack of a parental bond with Parents, coupled with the
dramatic improvements to M.J.’s ambulatory and communication skills since
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his placement with Foster Parents, evince that termination of Parents’ rights
will best serve M.J.’s developmental, physical, and emotional needs and
welfare. Accordingly, we find no abuse of discretion or error law in the
orphans’ court’s findings pursuant to § 2511(b).
For the foregoing reasons, we affirm the order involuntarily terminating
the parental rights of Mother and Father pursuant to 23 Pa.C.S. §§ 2511(a)(5)
and 2511(b).
Order affirmed.
12/12/2023
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