In Re: B.A.M., Appeal of: N.P.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.A.M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

APPEAL OF: N.P., MOTHER :

: : : : : No. 1298 MDA 2020

Appeal from the Decree Entered September 3, 2020 In the Court of Common Pleas of Tioga County Orphans’ Court at No(s):

No. 95 O.C. 2019

IN RE: A.J.B.M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

APPEAL OF: N.P., MOTHER :

: : : : : No. 1299 MDA 2020

Appeal from the Decree Entered September 3, 2020 In the Court of Common Pleas of Tioga County Orphans’ Court at No(s):

No. 96 O.C. 2019

IN RE: M.D.M., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

APPEAL OF: N.P., MOTHER :

: : : : : No. 1300 MDA 2020

Appeal from the Decree Entered September 3, 2020 In the Court of Common Pleas of Tioga County Orphans' Court at No(s):

No. 97 O.C. 2019

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED JUNE 15, 2021

N.P. (Mother) appeals from the trial court’s decrees involuntarily

terminating her parental rights to her three minor children, B.A.M. (born

6/15), A.J.B.M. (born 6/17), and M.D.M. (born 8/18) (collectively, Children).1

Because Mother has failed to make progress in her parenting skills, refused to

engage in drug treatment, and failed to address her significant mental health

concerns, all factors that led to Children’s removal, we affirm on the basis of

the trial court’s opinions.

The Tioga County Department of Human Services (DHS) filed a

dependency petition with regard to Children, alleging that Mother had

significant issues related to parenting, mental health, and substance abuse.

After a hearing, Children were adjudicated dependent and placed in foster

care. It was recommended that Mother participate in a dual-purpose in-

patient substance abuse and mental health treatment program,2 several

parenting programs, and complete a psychological examination. The goal

remained reunification. The court held permanency review hearings in June

2019, September 2019, December 2019, March 2020, and June 2020.

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* Former Justice specially assigned to the Superior Court.

1 Children’s father, J.M., consented to the termination of his parental rights,

which was confirmed by the trial court on June 23, 2020. He is not a party to this appeal.

2 At the final termination hearing, held in September of 2020, Mother testified

that she had been diagnosed with Bi-Polar Disorder, Bi-Polar 2, generalized anxiety disorder, depression, and PTSD. N.T Termination Hearing, 9/1/20, at 95-96.

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After almost one year of providing services to Mother in order to reunify

her with Children, DHS filed petitions to involuntarily terminate Mother’s

parental rights to Children on December 11, 2019; the petitions sought

termination pursuant to subsections 2511(a)(1), (2), and (8)3 of the Adoption

Act.4 At a permanency review hearing held on June 23, 2020, DHS sought to

change the goal from reunification to adoption. While the court found Mother

had made “minimal” progress on her court-ordered goals, the court deferred

its decision on goal change. Termination hearings were held on June 30,

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3 Notably, DHS’s petition does not mention that termination should be granted

with regard to subsection 2511(b)—a necessary component of the bifurcated legal analysis required to involuntarily terminate parental rights under the Adoption Act. See In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006) (party seeking termination of parental rights bears burden of proving by clear and convincing evidence that at least one of eight grounds for termination under 23 Pa.C.S. § 2511(a) exists and that termination promotes emotional needs and welfare of child set forth in 23 Pa.C.S. § 2511(b). 4 23 Pa.C.S. §§ 2101-2938.

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2020,5 July 23, 2020,6 and September 1, 2020.7 The delay between the final

two hearings was attributed to Mother voluntarily admitting herself to a Tioga

County hospital in July 2020 due to an outstanding warrant for emergency in-

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5 At the June 30, 2020 hearing, six witnesses testified, in-person and virtually,

including Mother’s parenting case manager, Mother’s Support, Teaching and Educating Parents (STEP) providers, Mother’s visitation supervisor, Mother’s DHS Service Access Management caseworker, and Children’s foster mother. See N.T. Termination Hearing, 6/30/20, at 9-132. At the proceeding, DHS also admitted, as exhibits, its records reflecting Mother’s poor visitation record, drug test results, lack of attendance for a parenting support program, and Mother’s signed “Refusal of Service” for the STEP program. Upon oral motion of Mother’s counsel, however, the court granted a continuance of the matter to July 23, 2020, due to the fact that Mother was not in attendance. Id. at 142.

6 At the July 23, 2020 hearing, Mother again failed to appear. Mother’s counsel indicated that he had last spoken with her on July 15th when she told him that she would be present for the hearing on the 23rd. N.T. Termination Hearing, 7/23/20, at 2. The court ultimately determined that it would not grant another continuance, permitted counsel and the guardian ad litem to give closing remarks, and entered findings of fact concluding that Mother had made little to no progress in addressing her mental health or parenting issues. Id. at 13- 14. Although the court stated that DHS established by clear and convincing evidence that termination was proper, it did not enter final termination decrees at that time. Id. at 20-21. At the final termination hearing on September 1, 2020, the court reopened the proceedings and permitted Mother to testify. Two days later, on September 3, 2020, the court entered its final decrees terminating Mother’s parental rights under sections 2511(a)(1), (2), (8), and (b). See infra at n.9. Mother now appeals from those decrees.

7 At the termination hearings, Children were represented by a guardian ad litem as well as legal counsel. See 23 Pa.C.S. § 2313(a) (children have statutory right to counsel in contested involuntary termination proceedings) and In re K.R., 200 A.3d 969 (Pa. Super. 2018) (en banc), but see In Re: T.S., E.S., 192 A.3d 1080, 1092 (Pa. 2018) (“[D]uring contested terminationof -parental-rights proceedings, where there is no conflict between a child’s legal and best interests, an attorney-guardian ad litem representing the child’s best interests can also represent the child’s legal interests.”).

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patient mental health treatment (302 Warrant).8 On September 3, 2020,9 the

trial court entered three separate decrees involuntarily terminating Mother’s

parental rights to Children pursuant to sections 2511(a)(1), (2), (8) & (b).

See Findings of Fact, Discussion and Opinion, 9/3/20, at 6-8. Mother filed a

timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Mother presents the following

issues for our consideration:

(1) Whether the [f]indings of the [t]rial [c]ourt support the conclusion that Mother had not made sufficient progress in addressing her mental health issues, parental abilities, and substance abuse issues.

(2) Whether the trial court abuse[d] its discretion in finding there was clear and convincing evidence to support termination under 23 Pa.C.S. [§§] 2511(a)(1), (2), [and] (8).

Appellant’s Brief, at 8.

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8 See 50 P.S. § 7302(a)(1) (under Mental Health Procedures Act (MPHA), upon

written application by physician or other responsible person, warrant may issue for emergency examination of individual where facts set forth “reasonable grounds to believe a person is severely mentally disabled and in need of immediate treatment”). At the time of her in-patient treatment, Mother admitted to having recently used methamphetamine and moderately using illegal drugs. Maternal grandmother filled out an application for involuntary emergency examination and treatment indicating that Mother was a clear and present danger to herself, having attempted suicide. See 302 Emergency Application, 7/19/20, at 2. Mother ultimately decided to voluntarily admit herself for treatment. See 50 P.S. §§ 7201-7202.

9 The court reopened the record and permitted Mother to testify and enter evidence on her own behalf at the September 1, 2020 termination hearing. See N.T. Termination Hearing, 9/1/20, at 58-59. Two days later it entered its final decrees terminating Mother’s parental rights.

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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). We review a trial court’s decision to involuntarily terminate parental

rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,

563 (Pa. Super. 2003). Our scope of review is limited to determining whether

the trial court’s order is supported by competent evidence. Id.

After a review of the certified record, the parties’ briefs, and relevant

case law, we affirm the trial court’s decrees involuntarily terminating Mother’s

parental rights to Children pursuant to section 2511(a)(8)10 (primary

conditions leading to removal and placement of Children continue to exist).

We affirm the decrees based upon the well-reasoned opinion and Rule 1925(a)

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10 Pursuant to section 2511(a)(8), a parent’s rights with regard to his or her

child may be terminated “after a petition has been filed on [] the following ground[]: “[t]he 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.” 23 Pa.C.S. § 2511(a)(8).

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statement authored by the Honorable George W. Wheeler.11 See Findings of

Fact, Discussion and Opinion, 9/3/20, at 5-6 (Children had been removed for

approximately 18 months at time of last termination hearing; Mother made

no progress addressing her significant serious mental health concerns where

she voluntarily discontinued all mental health care and ceased to engage and

participate in mental health counseling; Mother failed to implement any

recommended parenting skills; Mother recently tested positive for illicit use of

controlled substances; and Mother failed to engage in drug treatment); see

Pa.R.A.P. 1925(a) Statement, 11/13/20, at 1-2 (trial court reiterating that

Mother: made no progress toward parenting and substance treatment goals;

declined administration of most substance use tests; tested positive for drug

and alcohol use; attended only 9 out of 33 safe parenting classes;

inconsistently met with parenting instructor; was unable to provide safe

environment for Children, requiring two supervisors during visits; rejected

offer for STEP services;12 and failed to comply with counseling

recommendations and medication management to address mental health

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11 We need only agree with the trial court’s decision as to any one subsection

of section 2511(a) in order to affirm the termination of parental rights. See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

12 On the bottom of the signed refusal form, Mother handwrote that she “would

be willing to do STEP[] if [she] could see children. Otherwise, the state wouldn’t allow [her] to be a parent[,] so it’s pointless.” Refusal of Service, 3/26/20.

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concerns).13 See also N.T. Termination Hearing, 9/1/30, at 130 (trial judge

explaining three reasons termination proper after Children had been removed

from Mother for 18-20 months: (1) Mother’s mental health issues unresolved;

(2) Mother’s ongoing substance abuse disorder; and (3) Mother’s failure to

engage in recommended and court-ordered parenting programs); id.

7/23/20, at 13-19 (court finding that despite extensive services offered to

Mother, evidence “establishes that no progress has been made in addressing

the significant [and] serious mental health concerns relating to [Mother,] . . .

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13 Although not raised on appeal, we similarly find that DHS presented clear

and convincing evidence to support termination under section 2511(b) where it would serve Children’s needs and welfare. In re C.P., supra. Children had been in foster care with proposed adoptive parents, where they are thriving physically and emotionally, for more than 1½ years at the time of the September 2020 termination hearing. See Findings of Fact, Discussion and Opinion, 9/3/20, at 6 (Children have developed bonds with foster family, have developed socially and emotionally, and are having all their needs met; foster family, as prospective adoptive family, can provide Children with well-needed permanency); see also N.T. Termination Hearing, 6/30/20, at 125-33 (foster mother’s testimony indicating her willingness to adopt Children, ability to provide any and all necessary services for Children, financial ability to take care of Children, noting bond established between her, her husband, and Children, and recognizing she meets Children’s needs); id. 7/23/20, at 19-20 (court found Children are in “steady, stable, consistent[,] and loving environment with” foster parents, foster parents are ready, willing, and able to proceed with adoption and give Children needed permanency, and Children have developed socially and emotionally in foster parents’ care); see also In re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (“Common sense dictates that courts considering termination must also consider whether the children are in a preadoptive home and whether they have a bond with their foster parents.”) (citation omitted). Finally, Mother’s significant mental health issues and ongoing substance abuse would “negatively impact the health, safety, and welfare of [Children].” See Findings of Fact, Discussion and Opinion, 9/3/20, at 6.

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that Mother has discontinued all mental health care, . . . and [she] has made

no progress in [] developing and implementing parenting skills”).

Decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/15/2021