Adoption of: T.N.C., Appeal of: L.M.M.

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2019
• Docket: 1142 WDA 2019
• Status: Unpublished

Opinion

J-S64040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF T.N.C. : PENNSYLVANIA : : APPEAL OF: L.M.M., NATURAL : MOTHER : : : : No. 1142 WDA 2019

Appeal from the Order Entered June 28, 2019 In the Court of Common Pleas of Erie County Orphans' Court at No(s): 9B In Adoption 2017

IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF T.A.M. : PENNSYLVANIA : : APPEAL OF: L.M.M., NATURAL : MOTHER : : : : No. 1143 WDA 2019

Appeal from the Order Entered June 28, 2019 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 9A, and In Adoption 2017

IN THE MATTER OF THE ADOPTION : IN THE SUPERIOR COURT OF OF: M.M.A.W. : PENNSYLVANIA : : APPEAL OF: L.M.M., NATURAL : MOTHER : : : : No. 1144 WDA 2019

Appeal from the Order Entered June 28, 2019 In the Court of Common Pleas of Erie County Orphans' Court at No(s): No. 9 In Adoption 2017 J-S64040-19

BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 13, 2019

L.M.M. (Mother) appeals from the May 23, 2019 decree entered in the

Court of Common Pleas of the Erie County—Orphans’ Court (trial court),

granting the petition of the Erie County Office of Children & Youth (OCY) to

terminate her parental rights to her minor children, T.N.C., T.A.M., and

M.M.A.W. (collectively, the Children). After careful review, we affirm.

I.

We glean the following facts from the certified record. T.N.C. (age 10)

and T.A.M. (age 5) were removed from Mother’s care and placed in protective

custody with OCY in July 2015 and adjudicated dependent shortly thereafter.

Following a review hearing, in November 2015, they were returned to Mother’s

custody, though dependency continued. However, M.M.A.W. (age 3) was born

in January 2016 and only days after her birth, all of the Children were again

removed from Mother’s custody. M.M.A.W. was also found to be dependent.

All of the Children then remained in placement in various foster homes

throughout the remaining history of the case.

In 2017, OCY petitioned to terminate Mother’s parental rights and the

parental rights of the Children’s fathers. In October 2017, the trial court

terminated the parental rights of the fathers but found that OCY had not met

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

-2- J-S64040-19

its burden of proof with regard to Mother. As a result, the trial court ordered

OCY to resume services with Mother to address her problems with drug and

alcohol use, mental health, grief and parenting.

Patty Bush, the OCY caseworker who took over Mother’s case when the

initial termination petition was denied in 2017, testified that the denied

petition was Mother’s “second chance” to develop a relationship with the

Children. (Notes of Testimony (“NT”), 6/24/19, at 5). However, Mother did

not recognize that she had problems with drug and alcohol use and mental

health. She made excuses when she repeatedly tested positive for marijuana

and she delayed for months in pursuing treatment for her mental health

problems. By June 2018, Mother had completed outpatient treatment for her

drug use and was able to consistently pass drug screens, but for several

months, Mother was unable to visit the Children and reform her bond with

them because she failed the drug tests. Mother also did not continue with any

treatment program or meetings after completing the outpatient therapy and

she was arrested for disorderly conduct while intoxicated in 2019.

Both of the OCY caseworkers who had interacted with Mother following

the denied termination petition opined that she had made no progress with

her parenting skills. Tina Ferraro, an employee at Project First Step, testified

that they had attempted to work with Mother to improve her parenting skills

in the past, but Mother was unable to successfully complete the program.

After the unsuccessful termination proceedings, Project First Step resumed

-3- J-S64040-19

services with Mother. However, Mother would refuse to answer the door for

appointments or would cancel or reschedule the appointments. She was

unable to answer questions about her relationship with the Children and she

would not interact with the Children during visits. Mother did not recognize

any deficiencies in her parenting skills or display any desire to improve her

parenting. Eventually, Project First Step discharged Mother a second time for

lack of progress.

Prior to the dependency proceedings, T.N.C. witnessed domestic

violence between Mother and M.M.A.W.’s father and he began trauma

counseling while he was in foster care. Mother would deny that the abuse

ever occurred, tell him not to talk about it as well as refuse to acknowledge

his feelings about what he had witnessed. After being in foster placement for

several years, T.N.C. seemed reluctant to talk about his life in front of Mother.

He has expressed concern that Mother would be unable to keep him safe in

her home.

Both OCY caseworkers and Ferraro opined that Mother had not made

progress on any of her goals since the first termination petition was denied in

2017. One caseworker confirmed that there were no other services that the

agency could offer Mother to address the issues that had led to dependency.

Because she did not make adequate progress in developing her parenting

skills, Mother was never permitted to have unsupervised visits with the

Children.

-4- J-S64040-19

As a result of Mother’s lack of progress with OCY in the year following

the denied petition for termination, the trial court changed the placement goal

to adoption in November 2018. Finding that the evidence had established

several statutory grounds for involuntary termination, the trial court entered

a decree of involuntary termination of parental rights on June 28, 2019.

Mother filed a timely notice of appeal, and both the trial court and Mother

have complied with Pa.R.A.P. 1925.

II.

On appeal, Mother argues that the termination decree should be

reversed because it was not supported by clear and convincing evidence and

that there was insufficient evidence that termination of her parental rights is

in the best interests of the Children. As further discussed below, we hold that

the trial court relied on statutory grounds for involuntary termination which

are supported by our independent review of the record.

A.

“The party seeking termination must prove by clear and convincing

evidence that the parent’s conduct satisfies the statutory grounds for

termination delineated in [the subsections of 23 Pa.C.S. § 2511(a)].” In re

Adoption of J.N.M., 177 A.3d 937, 942 (Pa. Super. 2018) (quoting In re

L.M., 923 A.2d 505, 511 (Pa. Super. 2007)). Clear and convincing evidence

is that which 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

-5- J-S64040-19

precise facts in issue.” In re D.L.B., 166 A.3d 322, 326 (Pa. Super. 2017)

(citation and quotation marks omitted). The orphans’ court may then enter a

final decree of involuntary termination if it is in the child’s best interests as

outlined in Section 2511(b). Id.1

The trial court found clear and convincing evidence to terminate

Mother’s parental rights pursuant to Sections 2511(a)(1), (2), (5), and (8):

(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 incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

***

1 We review such a decree for an abuse of discretion. 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.

-6- J-S64040-19

(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.

When reviewing a trial court’s order terminating parental rights, we need only

agree as to one subsection of Section 2511(a), as well as Section 2511(b), to

affirm the order. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en

banc). Accordingly, we proceed to our analysis of the trial court’s findings

under subsection 2511(a)(8).

It is undisputed that all of the Children have been in foster placement

since January 2016, over three years prior to OCY filing the termination

petitions at issue in this case. M.M.A.W. has been in placement for virtually

her entire life. It is clear that the Children have been removed from Mother’s

care much longer than the twelve months prescribed by the statute. 23

Pa.C.S. § 2511(a)(8).

-7- J-S64040-19

OCY also presented clear and convincing evidence that the conditions

that led to the Children’s placement continue to exist. Two OCY caseworkers

testified that since the first termination petition was denied in 2017, Mother

has made virtually no progress in addressing the issues that led to the

Children’s placement. The only area of progress that is apparent from the

record is that, after many months where Mother’s visitation with the Children

was limited due to positive drug tests, Mother was able to complete outpatient

treatment and stop using marijuana. However, she still uses alcohol and has

not sought continued treatment for drug and alcohol use. When ordered to

address both the drug use and mental health issues that had led to the

Children’s placement, Mother delayed for months and did not follow through

with appointments, counselling or treatment.

Further, Mother was largely uncooperative with Project First Step’s

attempts to address the deficiencies in her parenting. She refused to

acknowledge that she had any problems with parenting and would not take

responsibility for the Children’s placement. She did not interact well with the

Children during her limited visitation time or respond productively when given

instruction on her parenting. She does not recognize that T.N.C. witnessed

domestic violence as a young child or validate his fears when he attempted to

discuss the trauma in counselling. As a result, T.N.C. seems reluctant to talk

to Mother about his life. All of the Children are thriving in foster care and have

substantially bonded with their foster family. The trial court did not abuse its

-8- J-S64040-19

discretion in finding that OCY presented sufficiently clear and convincing

evidence to support termination based on Section 2511(a)(8).

B.

Having found that the termination of Mother’s parental rights was

justified under Section 2511(a)(8), the next step of our inquiry is whether the

termination is in the best interests of Children. There are a number of factors

to consider in this analysis:

Section 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. . . . While a parent’s emotional bond with his or her child is a major aspect of . . . section 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child.

In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015); In re

M.Z.T.M.W., 163 A.3d 462, 464 (Pa. Super. 2017). It is sufficient for the

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.

See In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). “In this context, the

court must take into account whether a bond exists between child and parent,

and whether termination would destroy an existing, necessary and beneficial

relationship.” Id.

Moreover, “[c]ommon sense dictates that courts considering

termination must also consider whether the children are in a pre-adoptive

home and whether they have a bond with their foster parents.” In re T.S.M.,

-9- J-S64040-19

71 A.3d 251, 267 (Pa. 2013) (citation omitted). The orphans’ court may

consider intangibles such as the love, comfort, security and stability the child

might have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 (Pa.

Super. 2011). Ultimately, the concern is the needs and welfare of the child.

In re Z.P., supra at 1121.

There was clear and convincing evidence produced at the hearing to find

that the Children are thriving in their current placement and that termination

of Mother’s parental rights is in their best interest. In his earlier placements,

T.N.C. exhibited some behavioral problems but those issues have abated in

his current placement. NT at 34. He has expressed that he wishes to stay

with his foster parents. Id. at 33, 84. All of the Children have bonded with

the foster parents. Id. at 33, 36, 41. They refer to the foster parents as

“mom and dad,” and they think of the other children in the home as their own

siblings. Id. at 83. They have not been able to develop the same bond with

Mother, and T.N.C. has expressed concern about whether Mother would be

able to keep him safe. Id. at 91. The Children’s current placement has

provided them with stability and security for two years, and the trial court did

not abuse its discretion in finding that it is in the Children’s best interest to

remain with their foster parents.

Order affirmed.

- 10 - J-S64040-19

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/2019

- 11 -