J-S42030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: L.C., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
APPEAL OF: K.C., BIRTH MOTHER
No. 63 WDA 2016
Appeal from the Order Entered December 16, 2015 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000153-2015
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED JUNE 07, 2016
K.C. (“Mother”) appeals from the order entered December 16, 2015, in
the Court of Common Pleas of Allegheny County, which involuntarily
terminated her parental rights to her minor daughter, L.C. (“Child”), born in
April of 2012.1 After a careful review of the record, the parties’ briefs, and
the applicable law, we affirm on the basis of the orphans’ court’s opinion.
The orphans’ court has aptly summarized the factual and procedural
history of this case, and we adopt its recitation. See Orphans’ Court
____________________________________________
* Former Justice specially assigned to the Superior Court. 1 The order also terminated the parental rights of Child’s putative father, T.W., and the parental rights of any unknown father that Child may have. Neither T.W., nor any other alleged father, has filed an appeal from the order terminating his parental rights. J-S42030-16
Opinion, 2/11/2016, at 1-3. Importantly, the Allegheny County Office of
Children, Youth and Families (“CYF”) filed a petition to terminate Mother’s
parental rights involuntarily on September 23, 2015. A termination hearing
was held on December 14, 2015, during which the orphans’ court heard the
testimony of CYF family services caseworker, Stacey Policicchio. In addition,
the parties stipulated to the admission of a psychological evaluation
prepared by Terry O’Hara, Ph.D.2 See N.T., 12/14/2015, at 3; Exhibit 4
(Psychological Evaluation Report). Following the hearing, on December 16,
2015, the orphans’ court entered its order terminating Mother’s parental
rights to Child. Mother timely filed a notice of appeal on January 12, 2016,
along with a concise statement of errors complained of on appeal.
Mother now raises the following issue for our review. “Did the
[orphans’] court abuse its discretion and/or err as a matter of law in
concluding that [CYF] met its burden of proving that termination of []
Mother’s parental rights would best serve the needs and welfare of the child
pursuant to 23 Pa. C.S. § 2511(b)[?]” Mother’s brief at 5.
When considering an appeal from an order terminating parental rights,
we are guided by the following standard.
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and ____________________________________________
2 Mother did not appear at the termination hearing. Mother’s counsel did appear at the hearing, and conducted cross-examination of Ms. Policicchio.
-2- J-S42030-16
credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
The orphans’ court terminated Mother’s parental rights pursuant to
Sections 2511(a)(2), (5), and (b), which provide as follows.
-3- J-S42030-16
(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
***
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(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.A. § 2511(a)(2), (5), and (b).
-4- J-S42030-16
In the instant matter, the Honorable Kathleen R. Mulligan has
authored a thorough and well-reasoned opinion in support of her decision to
terminate Mother’s parental rights. See Orphans’ Court Opinion, 2/11/2016,
at 5 (unnumbered pages) (finding that Mother is incapable of providing for
Child’s needs and welfare, as evidenced by her past behavior and her failure
to appear at the termination hearing). Critically, Judge Mulligan accepted
the expert opinion of Dr. O’Hara that the benefits of adoption would
outweigh any detriment that Child would suffer as a result of the
termination. Id. at 5; Exhibit 4 (Psychological Evaluation Report), at 6. Dr.
O’Hara was unable to analyze the bond between Child and Mother, because
Mother failed to participate in his psychological evaluation. Exhibit 4
(Psychological Evaluation Report), at 5.
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J-S42030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: L.C., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
APPEAL OF: K.C., BIRTH MOTHER
No. 63 WDA 2016
Appeal from the Order Entered December 16, 2015 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000153-2015
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED JUNE 07, 2016
K.C. (“Mother”) appeals from the order entered December 16, 2015, in
the Court of Common Pleas of Allegheny County, which involuntarily
terminated her parental rights to her minor daughter, L.C. (“Child”), born in
April of 2012.1 After a careful review of the record, the parties’ briefs, and
the applicable law, we affirm on the basis of the orphans’ court’s opinion.
The orphans’ court has aptly summarized the factual and procedural
history of this case, and we adopt its recitation. See Orphans’ Court
____________________________________________
* Former Justice specially assigned to the Superior Court. 1 The order also terminated the parental rights of Child’s putative father, T.W., and the parental rights of any unknown father that Child may have. Neither T.W., nor any other alleged father, has filed an appeal from the order terminating his parental rights. J-S42030-16
Opinion, 2/11/2016, at 1-3. Importantly, the Allegheny County Office of
Children, Youth and Families (“CYF”) filed a petition to terminate Mother’s
parental rights involuntarily on September 23, 2015. A termination hearing
was held on December 14, 2015, during which the orphans’ court heard the
testimony of CYF family services caseworker, Stacey Policicchio. In addition,
the parties stipulated to the admission of a psychological evaluation
prepared by Terry O’Hara, Ph.D.2 See N.T., 12/14/2015, at 3; Exhibit 4
(Psychological Evaluation Report). Following the hearing, on December 16,
2015, the orphans’ court entered its order terminating Mother’s parental
rights to Child. Mother timely filed a notice of appeal on January 12, 2016,
along with a concise statement of errors complained of on appeal.
Mother now raises the following issue for our review. “Did the
[orphans’] court abuse its discretion and/or err as a matter of law in
concluding that [CYF] met its burden of proving that termination of []
Mother’s parental rights would best serve the needs and welfare of the child
pursuant to 23 Pa. C.S. § 2511(b)[?]” Mother’s brief at 5.
When considering an appeal from an order terminating parental rights,
we are guided by the following standard.
The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and ____________________________________________
2 Mother did not appear at the termination hearing. Mother’s counsel did appear at the hearing, and conducted cross-examination of Ms. Policicchio.
-2- J-S42030-16
credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S.A. §§ 2101-2938, which requires a bifurcated
analysis.
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted).
The orphans’ court terminated Mother’s parental rights pursuant to
Sections 2511(a)(2), (5), and (b), which provide as follows.
-3- J-S42030-16
(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
***
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(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.A. § 2511(a)(2), (5), and (b).
-4- J-S42030-16
In the instant matter, the Honorable Kathleen R. Mulligan has
authored a thorough and well-reasoned opinion in support of her decision to
terminate Mother’s parental rights. See Orphans’ Court Opinion, 2/11/2016,
at 5 (unnumbered pages) (finding that Mother is incapable of providing for
Child’s needs and welfare, as evidenced by her past behavior and her failure
to appear at the termination hearing). Critically, Judge Mulligan accepted
the expert opinion of Dr. O’Hara that the benefits of adoption would
outweigh any detriment that Child would suffer as a result of the
termination. Id. at 5; Exhibit 4 (Psychological Evaluation Report), at 6. Dr.
O’Hara was unable to analyze the bond between Child and Mother, because
Mother failed to participate in his psychological evaluation. Exhibit 4
(Psychological Evaluation Report), at 5. However, Dr. O’Hara explained that
there is no indication that Mother is capable of providing for Child’s needs
and welfare, given the information provided to him by CYF. Id. Dr. O’Hara
also observed that Child appears to have a secure attachment with her
foster parents. Id. at 5-6. Child’s foster parents display strong parental
skills, and are able to provide Child with a safe, secure, and stable
environment. Id.
As we agree with the sound reasoning of the orphans’ court, we adopt
the orphans’ court’s opinion as dispositive of the issue presented in this
appeal, and we affirm the order terminating Mother’s parental rights. In the
event of future proceedings, the parties are directed to attach a copy of the
-5- J-S42030-16
orphans’ court’s February 11, 2016 opinion to this decision. The opinion
should be redacted to exclude the birthdays of Child and his sibling, L.G. 3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/7/2016
3 We note that Child’s guardian ad litem has filed a brief in support of the order terminating of Mother’s parental rights.
-6- Circulated 05/25/2016 04:36 PM
TN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
IN RE: ADOPTION OF: ORPHAN'S COURT DIVISION
L.C. CP-02-AP-0000153-2015
a minor. Superior Court No. 63 WDA 2016
Opinion K.R. Mulligan, J.
K.C. (Mother), appeals my December 14, 2015, Order of Court terminating her
parental rights to her minor child L.C. (Child).
At the December 14, 2015 hearing, caseworker Stacey Policicchio testified to the
history of the case. The Child was born on April. 2012, to Mother. The alleged father
of the child is T. W. (Father) and the petition included an Unknown Father1• The Mother
has a son L.O. born on Septembe. 20052• Children Youth & Families, (CYF) first had
contact with the Mother in October of 2005, and then again on December of 2006, and
June of 2007.
Stacey Policicchio testified that on October 6, 2012, CYF opened a case because
of concerns with the mother's drug and alcohol use as well as the state of her mental
health. Stacey Policicchio testified that the Mother had taken the children to Children's
Hospital because she said they were coughing and having nosebleeds. Both L.C. and
I Neither Father has appealed the decision terminating parental rights. 2 L.G. has been placed with his biological father.
--- -----·----·-
-~-------· - ... ,.. ~·---- L.O. were admitted to Children's Hospital. During the interview with CYF, Mother was
described as very suspicious and she was afraid that people were after her. Stacey
Policicchio testified that the children were removed on October 7, 2012, when Mother
went to Western Psych. The Child was adjudicated dependent on November 9, 2012, and
the child was placed in foster care with supervised overnights and permission to return to
Mother's care provided Mother remained in Sojourner House, a residential drug and
alcohol treatment facility. Mother was unsuccessfully discharged from Sojourner House
and Family Links (another residential drug and alcohol facility). Nonetheless, it did not
appear that Mother had relapsed. Subsequently, the child was returned to Mother's care
and the dependency case was closed an April 16, 2014.
Stacey Policicchio testified that on September 19, 2014, CYF received a report
regarding mother possibly being under the influence. The home was in deplorable
condition and the U.S. Marshall had gone to the house to serve a warrant. Mother was
evicted from her housing and went into treatment at Family Links in September 2014.
On January 26, 2015, Mother was unsuccessfully discharged from Family Links. On
March 13, 2015, the Child was removed from Mother because the Child was left by
Mother with family friend. On March 27, 2015, the Child was again determined to be
dependent and it was ordered that she remain in placement with the family friend. The
Child has remained in placement with this family friend since that date and this
placement is the proposed adoptive home. The last visit that Mother had with the Child
was on May 10, 2015.
CYF developed a service plan for Mother to address her drug and alcohol issues
which was never successfully completed. Stacey Policicchio testified that Mother was
··--·---·····-------··---·---··· ···---···----- ordered to have a drug and alcohol evaluation with POWER, an agency providing drug
and alcohol services, and to follow recommendations. On June 8, 2015, Mother came to
the CYF office after being released from jail and completed the POWER evaluation and
was recommended for partial hospitalization. On July of 2015, Mother reported not
wanting to complete the recommendations. On August I 0, 2015, while incarcerated
again, Mother reported not wanting to complete the recommendations.
Terry O'Hara Ph.D., a licensed Psychologist, conducted interactional evaluations
between the Child and family. While Dr. O'Hara was prepared to testify at the December
14, 2015 hearing, all parties stipulated to Dr. O'Hara's report and therefore, Dr. O'Hara
did not testify, but his reports were admitted into evidence.
Dr. O'Hara's reports concluded that the Father and Mother are in no position to
reasonably care for the Child's needs and welfare at this time. If the Child were placed
with Mother at this time, she would be at risk for homelessness, exposure to significant
instability, and exposure to substance dependence by the Mother
Mother, Father, and Unknown Father failed to appear at the December 14, 2015,
termination hearing although Mother was represented. Father and Unknown Father's
whereabouts are unknown.
Following the hearing, I granted CYF's TPR petition and found that CYF met its
burden of proof by clear and convincing evidence that grounds for termination against the
Mother existed under 23 Pa. C.S.A §2511 (a) subsections (2), (5). I also found that CYF
met its burden of proof by clear and convincing evidence that grounds for termination
against both Father and Unknown Father existed under 23 Pa. C.S.A §2511 (a)
--------·----------·----·-----------·-·----·--------------------------------- subsections (1 ), (2), (5), and' that terminations met the needs and welfare of the child
pursuant to 23 Pa. C.S.A §251 l(b)
In the Mother's Concise Statement of Matters Complained of on Appeal, Mother
claims that the trial court abused its discretion and/or erred as a matter of law in
concluding that Allegheny County Children, Youth and Families met its burden of
proving that termination of Birth Mother's Parental Rights would meet the needs and
welfare of the child pursuant to 23 Pa. C.S.A §2511 (b ), by clear and convincing
evidence.
Mother does not appeal my findings that grounds exist for termination of her
parental rights under Pa. C.S.A §2511 (a). However, Mother argues in her Concise
Statement of Errors Complained of on Appeal that despite not appealing the grounds for
termination, that the termination was inappropriate due to a needs and welfare analysis
pursuant to Pa. C.S.A §2511 (b ). The Pennsylvania Superior Court has repeatedly found
"that parent rights are not preserved ... by waiting for a more suitable or convenient time
to perform one's parental responsibilities while others provide the child with his or her
immediate physical and emotional needs." In Re Adoption of Godzak, 719 A.2d 365, 368
(Pa. Super. 1998).
The Supreme Court has instructed us that [I]f the grounds for termination under
subsection (a) are met, a court "shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child." Pa. C.S.A §251 l(b). The
emotional needs and welfare of the child have been properly interpreted to include
"[ijntangibles such as love, comfort, security, and stability." In re K.M, 53 A3d 781, 791
(Pa.Super.2012). In In re E.M, [620 A.2d 481, 485 (Pa.1993)], this Court held that the
·------------·~-- ...
-------· ..... ·---- ···~----~----- determination of the child's "needs and welfare» requires consideration of the emotional
bonds between the parent and child. The "utmost attention), should be paid to discerning
the effect on the child of permanently serving the parental bond. In re K.M, 53 A3d at
791. In re: T.S.M, 620 Pa. 602, 71 A.3d 251, 267 (2013).
It is clear that the Mother, Father, and Unknown Father are in no position to meet
the needs and welfare of the child as evidenced by their past behavior as well as their
failure to appear at the December 14, 2015, termination hearing.
Stacey Policicchio testified that she had the opportunity to observe the Child in
the pre-adoptive foster home and she is doing "really well". Stacey Policicchio further
testified that the Child's is very well adjusted and she has no developmental problems.
In Dr. O'Hara's opinion, the pre-adoptive foster parents exhibit stability and
strong parenting skills warranting the adoption of the Child. Finally, it is Dr. O'Hara's
opinion that the benefits of adoption for the child such as safety, security and stability
outweigh any potential deficits in the termination of parental rights for the Child's
parents.
For the above reasons, the order of December I 4, 20 l 5, should be affirmed.
Date: February 11, 2016
...... ·--· ···--------~---