In Re Involuntary Termination of C.W.S.M.

839 A.2d 398, 2003 Pa. Super. 477, 2003 Pa. Super. LEXIS 4463

• Court: Superior Court of Pennsylvania
• Decided: December 9, 2003
• Status: Published

Opinions

TODD, J.

¶ 1 D.A.M. (“Mother”) appeals the July 25, 2002 Order of the Northampton County Court of Common Pleas which terminated her parental rights to her son, C.W.S.M., born October 23, 1994, and daughter, K.A.L.M.-S., born January 29, 1996.¹ Upon review, we are constrained to reverse and remand.

¶ 2 Northampton County Department of Human Services, Children, Youth and Families Division (“CYF”) first became involved with Mother, C.W.S.M., and C.W.S.M.’s father C.J.S. (“Father”) in December 1994, following allegations of chemical dependency of Father, inappropriate discipline with a leather strap of the children’s older sibling, B.M., who is not subject to the instant petition, and C.W.S.M.’s failure to thrive. (N.T. Termination Hearing, 3/12/02, at 25-26.) In January 1995, CYF engaged the services of the Visiting Nurse Association (,fVNA”) to educate Mother on parenting skills and monitor C.W.S.M.’s weight. (Id. at 27-28.) B.M. was referred to KidsPeace Afternoon Treatment Program. (Id. at 26-27.) However, in February 1995, C.W.S.M. was hospitalized due to his low weight. (Id. at 28.) While hospitalized, C.W.S.M. gained weight; however, after he was released from the hospital with a prescription for an intensive feeding program, C.W.S.M. began to lose weight and was removed from the family home on February 17, 1995. (Id.)

¶ 3 After C.W.S.M. was removed from the home, Mother was offered parenting classes through the Program for Women and Children. (Id. at 29.) Mother also underwent a psychological evaluation by Dr. Henry Gursky, who recommended continued parenting skills training, random urine screens, and individual counseling. (Id.) Mother also was referred to the Housing Authority since the family was at risk of being evicted. (Id. at 28.) Mother refused to attend the parenting classes through the Program for Women and Children, but she did attend 7 of 22 sessions of the KidsPeace parenting program. (Id. at 29.) Mother stopped attending the program, however, in May 1995. Mother also refused to submit to the random urine screens and she failed to complete the necessary Housing Authority forms to obtain housing for the family. (Id.) As a result, Mother subsequently was referred to the Valley Youth House housing program. (Id.)

¶ 4 Father was referred to an inpatient drug treatment program at Valley Forge Medical Center, which he completed at the end of March 1995. (Id. at 29-30.) Father was scheduled to attend the Lehigh Valley Addictions Treatment Service (“LVATS”) aftercare program as well as a parenting program, but failed to attend either program due to alleged conflicts with his employment. (Id. at 30.)

¶ 5 In May 1995, Mother and Father were granted visitation with C.W.S.M. in Mother’s home under the supervision of the VNA. (Id. at 30-31.) Mother was referred to Al-Anon or Nar-Anon, but did not attend because she was “too busy with her other requirements.” (Id. at 31.) She did attend a spousal support group at LVATS. (Id.) Father attended weekly outpatient counseling, but failed to attend his 12-step meetings. (Id.) In May 1995, Mother was advised by CYF that C.W.S.M. could return home if she complied with the service recommendations during the next two weeks and if Father was not living in the home. (Id. at 32.) Father moved to an upstairs apartment; however, Mother stopped attending the KidsPeace parenting program, told the CYF caseworker that the court could not keep Father from visiting with C.W.S.M., and missed several visits with C.W.S.M. as a result of her failure to allow the VNA nurse into her home. (Id. at 33-35.) As a result of Mother’s noncompliance, C.W.S.M. did not return home, and on May 12, 1995, was adjudicated dependent.

¶ 6 Following the birth of K.A.L.M.-S. on January 29, 1996, Mother and Father obtained new housing and complied with the court-ordered services, and C.W.S.M. was returned home on July 18, 1996. (Id. at 39.) The family continued to experience difficulties, however. Father was incarcerated in January 1997 due to failure to pay child support. (Id. at 40.) Mother experienced financial difficulties, and the utility companies threatened to shut off her service. (Id. at 40.) In June 1997, B.M. was removed from the home after Mother admitted to throwing a bottle at him, giving him a black eye. (Id. at 42-43.) Between June and October 1997, Mother was referred to Valley Youth House, a family protection program, for outpatient counseling and psychiatric care, but refused the initial intake appointment, and then missed her first appointment and refused to reschedule. (Id. at 45.)

¶ 7 During the summer of 1997, Father called CYF several times to express concern regarding the children’s safety since B.M., who had acted as a caretaker of the younger children, had been removed from the house. (Id. at 45-56.) In November 1997, the police were summoned to the family home on two separate occasions as a result of domestic disputes. (Id. at 50.) On December 18, 1997, both C.W.S.M. and KA.L.M.-S. were adjudicated dependent, but placement was suspended and the children were permitted to remain with Mother provided she cooperate with a program of protective services. (Id. at 51.) Mother was ordered to undergo outpatient counseling and psychiatric care, cooperate with casework services, cooperate in the provision of medical services for the children, undergo family budget counseling, and take the children to daycare, which was paid for by CYF, at least twice a week. (Id. at 51, 93.) Father was ordered to cooperate with the Innovations and/or Intensive Outpatient Treatment Alternatives drug treatment programs, and to undergo random urine testing. (Id. at 48, 93.)

¶ 8 Father failed to comply with the requirements, was terminated from the Innovations program due to poor attendance, and tested positive for amphetamines and cannabinoids in January 1998. (Id. at 53.) On several occasions, Father refused to submit to drug screens. Mother initially complied with the ordered services, but in January 1998 stopped taking the children to daycare, began screaming at the caseworker when the caseworker visited the home, and refused to provide an address when she moved to Allentown. (Id. at 94-95.) In addition, in January 1998, C.W.S.M. appeared at day care with a severe burn on his buttocks, which occurred while in Mother’s care, and an investigation by CYF resulted in a finding that there was a lack of proper parental supervision. (Id. at 18-19.) On January 13,1998, CYF filed a petition to revoke the suspended placement; however, the petition was withdrawn after Mother came into compliance. (Id. at 94-95.)

¶ 9 In March 1998, Mother again stopped taking the children to daycare and refused to work with her counselor. (Id. at 96-97.) Mother also permitted Father to see the children, despite a court order preventing Father from visiting with the children unless he complied with his court-ordered drug counseling and drug screening. (Id. at 98-99.) As a result of Mother’s and Father’s noncompliance, in December 1998, the children were ordered to be placed in foster care. (Id. at 100.) Mother and Father appealed, however, and the placement did not occur. (Id.)

¶ 10 In February 1999, Lehigh County Children and Youth conducted an abuse investigation with respect to K.A.C.M.-S. (Id. at 133-34.) The allegations of abuse ultimately were deemed unfounded; however, the children were deemed at risk and placed in the custody of CYF. (Id.) The children have been in foster care since that time.

¶ 11 Mother began counseling with Dr. Robert Lewis in January 1999 to address her anger management issues. (Id. at 135, 141.) Since that time, Father completed three of twelve random urine screens. (Id. at 135.) Father also began outpatient counseling at St. Luke’s Treatment Center on April 16, 1999, but attended only three sessions before he was discharged on May 28,1999. (Id. at 135.) Mother and Father each attended six of eight bi-weekly visits with the children during the first half of 1999. (Id. at 136.) Mother was ordered by the court to participate in parenting classes, address budgeting issues, and undergo a neurological and psychiatric evaluation. (N.T. Termination Hearing, 3/13/02, at 154.) The neurological assessment took place at the end of December 1999. (Id. at 156.)

¶ 12 Between November 1999 and March 2000, Father’s attendance at drug counseling was poor, and he missed numerous urine screens between March and June 2000. (Id. at 159-160.) On June 21, 2000, Father was charged with harassment as a result of an assault against Mother. (Id. at 162.) On July 5, 2000, Father tested positive for cocaine, and he was discharged from the SLATS program due to his unwillingness to follow therapeutic advice. (Id. at 160,164.)

¶ 13 On September 25, 2001, CYF filed a petition to terminate Mother’s and Father’s parental rights to the children pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8). Following a four-day non-jury trial, the trial court granted CYF’s petition and terminated Mother’s and Father’s parental rights to the children on the basis of subsections § 2511(a)(1), (2), (5) and (8). This timely appeal followed.

¶ 14 In this appeal, Mother presents the following questions for our consideration:

1. Did the Trial Court err in finding that termination of parental rights was in the children’s best interests?

2. Did the Trial Court err in finding that the Appellant failed to perform parental duties for a period of six (6) months prior to the filing of the Termination Petition?

3. Did the Trial Court err in finding that the Appellant has not taken the appropriate steps [in] order to remedy the circumstances that led to the removal of the children?

(Appellant’s Brief at 5.)

¶ 15 When reviewing an appeal from a decree terminating parental rights, we are limited to determining whether the decision of the trial court is supported by competent evidence. See In re K.C.W., 456 Pa.Super. 1, 9, 689 A.2d 294, 298 (1997). Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. Id. Where a trial court has granted a petition to involuntarily terminate parental rights, this Court must accord the hearing judge’s decision the same deference that we would give to a jury verdict. See In re Child M., 452 Pa.Super. 230, 245, 681 A.2d 793, 800 (1996).

¶ 16 In the present cáse, the trial court terminated Mother’s parental rights pursuant to subsections (a)(1), (2), (5) and (8) of 23 Pa.C.S.A. § 2511, which provide:

§ 2511. Grounds for involuntary termination

(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.

* # *

(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,

(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.

28 Pa.C.S.A. § 2511(a)(1), (2), (5), (8) and (b).

¶ 17 In support of her argument that the trial court erred in terminating her parental rights, Mother contends that CYF failed to meet its burden of proving by clear and convincing evidence that termination of her parental rights would best serve the interests of the children. Specifically, Mother argues that the record is devoid of evidence to support a conclusion that termination of her parental rights is in the children’s best interests, that the record is silent as to the effect termination would have on the children, and that “[t]he only inquiry regarding the children is about how they are doing in their current foster care placement.” (Appellant’s Brief at 20-21.) We are constrained to agree with Mother’s argument.

¶ 18 Section 2511(a)(1), for example, provides that parental rights may be terminated if the parent has demonstrated 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). However, once either of these factors has been established,

the court must engage in three lines of inquiry: (1) the parent’s explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) consideration of the effect of termination of parental rights on the child pursuant to Section 2511(b).

Matter of Adoption of Charles E.D.M., II, 550 Pa. 595, 602, 708 A.2d 88, 92 (1998) (citation omitted). Similarly, this Court recognized in In re Adoption of A.C.H., 803 A.2d 224 (Pa.Super.2002), that the question of whether termination would best serve the needs and welfare of the child is not a mere formality flowing from the existence of the other required elements under Section 2511(a)(5), but instead is a discrete consideration. Id. at 229 (citation omitted).

¶ 19 Furthermore, our Supreme Court has held that where there is a lack of evidence as to the effect termination of parental rights will have on the child, there is not competent evidence to allow the trial court to make a proper determination under Section 2511(b). Matter of Adoption of Charles E.D.M., II, 550 Pa. at 604, 708 A.2d at 92-93; see also In re E.M., 533 Pa. 115, 620 A.2d 481 (1993). In In re E.M., a case involving an action to terminate the parental rights of a mentally retarded- mother, the Court held that although there was evidence that the mother was unable to provide proper care for her children, her parental rights could not be terminated absent a consideration of the emotional bonds she had with her children:

It is clearly conceivable that a beneficial bonding could exist between a parent and child, such that, if the bond were broken, the child could suffer extreme emotional consequences. This is true regardless of whether adoption is imminent. To render a decision that termination serves the needs and welfare of the child without consideration of emotional bonds, in a case such as this where a bond, to some extent at least, obviously exists ... is not proper.

Id. at 123, 620 A.2d at 485.

¶ 20 Indeed, in In re Adoption of A.C.H., supra, this Court reversed the trial court’s order terminating a mother’s parental rights on the basis that the trial court, which referenced needs and welfare of the child in a conelusory fashion, failed to consider evidence of the emotional bonds between mother and child, or the effect termination would have on the child. In an opinion by our esteemed- colleague, the Honorable John G. Brosky, we stated:

As our distinguished Court has so aptly noted, “[w]e cannot underestimate the importance of a child’s relationship with his or her biological parents.” Adoption of Charles E.D.M., supra, at 93. Furthermore, we are mindful of the fact that the continuity of relationships is important to a child, and we agree that severance of close parental ties through termination of parental rights can be extremely painful. In re C.S., 761 A.2d 1197 (Pa.Super.2000). With these considerations in mind, we are constrained to reverse and remand this matter to give the parties an opportunity to present further testimony regarding the emotional bonds between mother and daughter, and the effect a termination of parental rights would have on A.G.H. Subject to such hearing, the trial court shall conduct an analysis regarding this issue as well as all other factors bearing upon the termination of S.H.’s parental rights. See E.M., supra.

803 A.2d at 229-30.

¶ 21 Despite the troubled history in this family, our review of the record indicates that there is at least some type of bond between Mother and the children. The evidence indicates that Mother and Father have been consistent in their visitation with the children, and that Mother and Father interact with the children and supervise them appropriately. (N.T. Termination Hearing, 3/14/02, at 228, 239.) One CYF caseworker testified that “[t]here was good interaction between [Mother and Father] and the children.” (Id. at 282.) Indeed, the children run to Father when they see him. (Id. at 225.) Furthermore, the children have expressed in the past their desire to return home. (Id. at 243.) Although a CYS caseworker testified that the children haven’t expressed such a desire in “quite a while”, the caseworker acknowledged that there was one recent occasion where C.W.S.M. told Mother that his foster mother said it was up to the judge whether he would return home. (Id. at 243.)

¶ 22 In its opinion written in support of its order terminating Mother’s rights to C.W.S.M. and K.A.L.M.-S., the trial court evaluated the. needs and welfare of the children as follows:

[C.W.S.M. and K.A.L.M.-S.] were developmentally delayed when first removed from the care of their parents. Since entering their foster home, they have made significant strides and are now receiving above average grades in school. They are content in their new home and have established a positive bond with their foster family. There have been no reports of overt physical abuse or malnourishment in their foster home.

We find that the needs and welfare of [the children] are best served by the termination of mother and father’s parental rights.

(Trial Court Opinion, 7/25/02, at 16-17.) Notably absent from the trial court’s analysis, however, is a consideration of the bonds that may or may not exist between Mother and the children, and the likely effect termination of Mother’s parental rights will have on the children: Moreover, our review of the record reveals a lack of evidence as to the likely effect termination of Mother’s parental rights will have on the children. Thus, in accordance with the cases discussed above, we are constrained to reverse the trial court’s order terminating Mother’s parental rights to C.W.S.M. and K.A.L.M.-S, and remand the matter to allow the parties to present testimony regarding the emotional bonds between Mother and the children, and the effect a termination of parental rights will have on the children, after which the trial court should conduct an analysis regarding this issue as well as all other factors bearing upon the termination of Mother’s parental rights.²

¶ 23 Order REVERSED and case REMANDED for proceedings consistent with this Opinion. Jurisdiction RELINQUISHED.

¶ 24 Judge TAMILIA files a Dissenting Opinion.

1 . The children’s father, C J.S., has filed a separate appeal to the trial court’s order, which is pending at docket number 3394 EDA 2002. The children are represented by counsel who has submitted a brief on their behalf arguing that the trial court's termination order was proper and should be affirmed.

2 . In view of our determination, we need not address Mother’s two remaining issues. We note, however, that a best interest of the child analysis is required under each subsection of 23 Pa.C.S.A. § 2511 upon which the trial court grounded its termination of Mother's parental rights. 23 Pa.C.S.A. § 2511(b).