In Re: K.B.B., a minor, Appeal of M.C.

• Court: Superior Court of Pennsylvania
• Decided: April 19, 2016
• Docket: 1414 WDA 2015
• Status: Unpublished

Opinion

J-S13030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: K.B.B., A MINOR IN THE SUPERIOR COURT OF IN RE: T.M.B., A MINOR PENNSYLVANIA IN RE: D.Z.C., A MINOR

APPEAL OF M.C., NATURAL MOTHER

Nos. 1414 WDA 2015, 1415 WDA 2015, 1416 WDA 2015, 1417 WDA 2015, 1418 WDA 2015, 1419 WDA 2015, 1460 WDA 2015, 1461 WDA 2015, 1462 WDA 2015

Appeal from the Orders Entered August 12, 2015 and the Decrees Entered August 24, 2015 In the Court of Common Pleas of Blair County Orphans' Court and Civil Division at Nos: 2014 AD 39, 2014 AD 39A, 2014 AD 39B, CP-07-DP-00048-2013/FID: 07-FN-00027-2013, CP-07-DP-00047- 2013/FID: 07-FN-00027-2013, CP-07-DP-0000046-2013

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2016

Appellant, M.C. (“Mother”), appeals from the August 12, 2015 goal

change orders and the August 24, 2015 decrees terminating her parental

rights to D.Z.C. (born 2007), T.M.B. (born 2011), and K.B.B. (born 2013)

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* Former Justice specially assigned to the Superior Court. J-S13030-16

(collectively, “Children”) and changing their permanency goals to adoption.1

We affirm.

Police removed the Children from Mother’s care on May 5, 2013, when

police discovered Mother unconscious in her home, leaving the Children

unattended.2 The family’s home was in poor condition. Mother testified that

she became unconscious because she was ill after the recent birth of K.B.B.

Investigation revealed that Mother was hemorrhaging from birth

complications. After a June 24, 2013 hearing the trial court adjudicated the

Children dependent and placed them in foster care. The office of Blair

County Children and Families (“CYF”) developed a service plan to help

Mother work toward reunification with the Children. Among Mother’s goals

was cooperation with CYF’s service providers, including attendance of

scheduled visits with the Children; obtaining mental health services;

maintaining suitable housing; and resolving an allegation of abuse based on

one child’s diaper rash. Mother was compliant and made progress in several

1 The trial court also terminated the parental rights of T.E.P, father of D.Z.C., and M.W.B, father of T.M.B. and K.B.B.. The fathers have not appealed. 2 The Commonwealth charged Mother with endangering the welfare of children, and Mother was accepted for alternative rehabilitative disposition (“ARD”) on May 17, 2014. The Commonwealth filed a petition to revoke ARD in April of 2015. The status of that petition is not of record. The record also reflects that Mother’s first child died as an infant when she left the child in the care of an abusive boyfriend. N.T. Hearing, 6/16/15, at 97-101. The record indicates a criminal investigation of the child’s death is pending. Id.

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areas, though her housing situation remained unstable. The allegation of

abuse was deemed unfounded.

In February of 2014, Mother decided to end her cohabitation with

M.W.B, father of T.M.B. and K.B.B. Mother testified that M.W.B. was

abusive. N.T. Hearing, 6/16/15, at 99-100. Mother stayed with a friend

while searching for housing. Mother’s housing search was difficult because

two prior evictions and the pending charge for endangering the welfare of

children rendered her ineligible for subsidized housing. Mother hoped to

have the Children move in with Mother, but at a safety inspection, the friend

informed investigators she intended to move within a week and that Mother

would not accompany her. Informed of this, the trial court convened a

hearing on June 19, 2014 at which it changed the placement goal to

adoption, directed CYF to proceed with a termination of parental rights

(“TPR”) petitions, and directed Mother 30 days to procure suitable housing.

Mother leased an apartment at 1009 16th Avenue, Altoona, in August of

2014. The trial court conducted further hearings on September 24, 2014

and October 7, 2014. On December 8, 2014, the trial court denied the TPR

petitions and changed the placement goal from adoption to reunification.

In denying the first TPR petition, the trial court counted Mother’s

decision to move away from M.W.B. as a sign of growing strength, especially

since she also had suffered abuse at the hands of T.E.P. Trial Court Opinion,

12/9/14, at 5. The trial court also noted Mother’s steadfastness in her

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housing search, despite the complications brought on by her prior

convictions and criminal record. Id. at 6. Also, Mother regularly attended

scheduled visits with the Children, maintained phone contact, and attended

church and doctor appointments with the Children. Id. at 8. Mother was

attending counseling and appeared to have obtained permanent and suitable

housing. Id. at 11.

Subsequently, Mother’s attendance at counseling became sporadic

despite the agency offering transportation to the sessions. N.T., 3/31/15, at

61. Mother’s mental health was in worse condition as of March of 2015 than

it had been when services first commenced. Id. at 74. Likewise, Mother

failed to attend various appointments for various physical ailments, including

a serious dental condition. Id. at 74-76; N.T. Hearing, 4/9/15, at 94-95;

N.T. Hearing, 6/16/15, at 44-45, 102-03. Mother also failed to follow

through on services to teach her to support D.Z.C., her autistic son. Id. at

79-80. Also, Mother resumed contact with M.W.B. even after he had a

criminal assault charge filed against him and a PFA issued against him based

on his abuse of his new girlfriend. N.T Hearing, 6/11/15, at 18; N.T.

Hearing, 6/16/15, at 81-82. Mother permitted M.W.B. to visit her and to

bring her supplies such as diapers for the Children. Id.

Mother remained at 1009 16th Avenue until the completion of the

instant TPR proceedings, but that residence never was safe enough for the

Children to move in. Investigations revealed several safety issues, including

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loose floorboards in the Children’s bedroom. N.T. Hearing, 6/11/15, at 9-10,

29-30. Mother never resolved that issue. Id. Investigations also revealed

that Mother failed to keep the residence clean. Clothes and garbage piled up

and investigators reported foul odors. Id. at 11; N.T. Hearing, 3/31/15, at

68-70. Mother’s delinquency on her electric bills resulted in her losing power

from May 12 to May 27, 2015, during which time the food in her refrigerator

spoiled. N.T. Hearing, 6/11/15, at 6-7. After power was restored,

investigators reported that the refrigerator needed a thorough cleaning and

a broken window needed repaired. Id. Mother’s residence also had an

infestation of fruit flies. N.T. Hearing, 3/31/15, at 69. At least one

scheduled visit with the Children had to be moved to another location

because of the infestation. N.T. Hearing, 4/19/15, at 119.

Mother’s financial situation also is insecure. She has no job and no

income other than social security that she receives due to a learning

disability. Mother has difficulty with numbers and corresponding difficulty

with managing her finances. Attempts to help mother sort out her finances

were unsuccessful. N.T. Hearing, 3/31/15, at 81-82. Mother tested positive

for marijuana on March 27, 2015, despite her repeated denials of marijuana

use. N.T. Hearing, 3/31/15, at 67. Mother also tested positive for

marijuana use in April and May of 2015. N.T. Hearing, 6/11/15, at 22.

At the trial court’s direction, the agency scheduled increased visits—

normally twice per week—between Mother and the Children in 2015. The

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visits were partially supervised, and the supervisors expressed concerns

about Mother’s ability to interact with the Children alone. N.T. Hearing,

3/31/15, at 33-34. In particular, Mother did not consistently recognize

safety risks—on one occasion, for example, she attempted to blow dry the

Children’s hair while they were in a bath tub full of water—to the satisfaction

of the visitation supervisors. Id. at 72-73. The increased visits also seemed

to be a strain for the Children. During the increased visitation schedule,

D.Z.C. exhibited an increase in stuttering, humming, rocking back and forth,

and biting himself. Id. at 54-56. Mother did not use suggested methods to

limit such behavior. Id. T.M.B. became increasingly negative during the

visits. Id. at 56. The supervisor believed T.M.B. succeeded in getting more

of Mother’s attention when he misbehaved. Id. Mother never progressed to

unsupervised visits or overnight visits. Id. at 34-36.

CYF filed its second TPR petition on March 11, 2015. The trial court

conducted hearings on April 9, 2015, June 11, 2015, and June 16, 2015. In

orders and decrees dated August 12, 2015 and August 24, 2015, the trial

court terminated Mother’s parental rights and changed the Children’s

permanency goal to adoption. This timely appeal followed.

Mother raises three issues for our review:

A. Whether or not the trial court erred in terminating Mother’s parental rights to [Children] under 23 Pa.C.S.A. § 2511(a)(2) and (8)?

B. Whether or not the trial court erred in terminating Mother’s parental rights under [23 Pa.C.S.A. § 2511(b)]?

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C. Whether or not the trial court erred in changing the goal to adoption?

Mother’s Brief at 17.

Our standard of review is as follows:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and 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. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.

In re S.P., 47 A.3d 817, 826 (Pa. 2012).

The trial court terminated Mother’s parental rights under § 2511(a)(2)

and (8). We need only affirm under one subsection of § 2511(a). In re

Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2012). In this case we will rely on

§ 2511(a)(8), which provides 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:

[. . .]

(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.

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23 Pa.C.S.A. § 2511(a)(8).

The party seeking termination under § 2511(a)(8) must prove the

following by clear and convincing evidence: “(1) the child has been removed

from parental care for 12 months or more from the date of removal; (2) the

conditions which led to the removal or placement of the child continue to

exist; and (3) termination of parental rights would best serve the needs and

welfare of the child.” Z.P. 994 A.2d at 1118 (quoting In re M.E.P., 825 A.2d

1266, 1275–76 (Pa. Super. 2003)) Further, “[t]ermination under Section

2511(a)(8) does not require the court to evaluate a parent’s current

willingness or ability to remedy the conditions that initially caused placement

or the availability or efficacy of Agency services.” Id. “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.”

In re A.L.D., 797 A.2d 326, 336 (Pa. Super. 2002).

In support of its decision to terminate Mother’s parental rights, the

trial court offered the following observations:

1. [Mother] lost consistency in her meetings with [Family Intervention Crisis Services], began avoiding FICS workers and had ‘no shows’ as well as losing all contact with FICS and the foster family during the period of time that she actually had increased time with the boys.

2. [Mother] struggled with stress and feeling overwhelmed when the visits increased to the extent she found it necessary to use marijuana to assist her ability to cope.

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3. [Mother] found it difficult to have consistency with individual counseling which she and all others agreed is critical to any safe and healthier emotional functioning due to her past traumatic childhood and adult years. ]

4. [Mother could not complete the FICS nurturing/parenting group despite the fact she had transportation offered and available.

5. [Mother] could not keep her utilities current nor did she reach out to others to alert them or ask for assistance when the termination occurred.

6. [Mother] struggled to manage her ARD program which resulted in a bench warrant and [Mother’s] efforts to go ‘underground’ that created concern for [CYF], FICS and the foster parents when her complete silence occurred for days.

7. [Mother] failed to attend her psychiatric assessment without any reasonable explanation and also failed to build support for herself outside the [CYF] system by applying for peer support services.

8. [Mother] failed to complete or follow through with medical transportation services (MTAP) over several months despite her understanding that if or when the boys would return she would need help with transportation beyond the FICS or Blair Foundation workers.

9. [Mother] missed medical appointments and failed to follow through with her needed serious dental work which would have removed the difficult and logistical coordination of those matters upon any return of the boys.

Trial Court Opinion, 8/12/15, at 6-7. The trial court went on to summarize

these nine observations:

Even without all the other facts relating to [Mother’s] ability or inability to retain parenting prompts, prevent fruit flies infestations, negotiate effectively with the landlord for housing safety, bathe, cook or discipline the boys, these above-

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enumerated factors alone create the clear and convincing evidence that the conditions leading to placement have not changed and cannot be remedied by [Mother].

Id. at 7.

We have conducted our own review of the record, summarized above,

and we conclude the record supports the trial court’s findings. The Children

have not been in Mother’s care since May 5, 2013. Thus, the first of the

three prongs of § 2511(a)(8) analysis is not in dispute. Mother has never

found suitable housing for herself and the Children. The record indicates her

current home frequently is dirty, fruit fly infested, and unsafe. After the trial

court denied CYF’s first TPR petition and increased Mother’s visits with the

Children, Mother failed to make progress toward addressing the conditions

that led to placement. In addition to the housing issues, Mother has been

inconsistent in her cooperation with various service providers and has

resorted to marijuana use to cope with stress. Also, she has failed to

comply with the terms of her ARD imposed on for her endangering the

welfare of children offense. In addition, Mother has exhibited a lack of

awareness of potential safety hazards during her interaction with the

Children. Thus, the record supports the trial court’s findings that the

conditions that led to the Children’s placement continue to exist, and that

termination of Mother’s rights would best serve their needs and welfare.

Mother argues the trial court erred because the record contains no

evidence that she is a threat to the Children’s safety based on Mother’s

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analysis of a child safety guide published by the American Bar Association

and Action for Child Protection, Inc. Mother’s Brief at 28. Mother asserts

she is able to perform basic parental duties, that her apartment has not

been cited for a code violation, despite FICS’ concern with the structural

integrity of the floor in the Children’s room. Mother also notes that she has

never been violent towards the Children and that none of them has

sustained a serious injury while in her care. Mother claims she has not

rejected services, but rather is frustrated by what Mother believes are

unrealistic expectations.

Mother’s arguments about the sufficiency of her apartment are

contrary to the evidence of record and to the trial court’s findings. We are

glad Mother has not subjected the Children to any violence, but that fact is

not sufficient to defeat a TPR petition. Similarly, the absence of any serious

injury to the Children while under Mother’s supervision does not preclude a

finding that termination of her parental rights will best serve the Children’s

needs and welfare. In summary, the facts of record support the trial court’s

findings, and we discern no error in the trial court’s conclusion that

termination of Mother’s parental rights is appropriate under § 2511(a)(8).

We now consider whether termination is appropriate under § 2511(b):

(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

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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(b). “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 C.D.R., 111 A.3d 1212, 1215

(Pa. Super. 2015) (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super.

2007). Further,

[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles, such as the love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and whether any existing parent-child bond can be severed without detrimental effects on the child.

Id. at 1219.

The trial court found the Children are thriving in their foster home,

where they have been living for two years. As noted above, the Children’s

behavior declined in response to increased visits with Mother. During

meetings, the Children would say hurtful things to Mother and complain

about the condition of her apartment. N.T. Hearing, 6/11/15, at 20, 50-52.

The caseworker acknowledged that Mother showed exemplary patience in

response to the Children’s behavior. Id. at 19-20. Nonetheless, as of May

1, 2015, the visits occurred either in the foster home or at an FICS office,

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because the condition of Mother’s apartment continued to decline and he

electricity was turned off. Id. at 6-7. When the frequency of visits

lessened, the Children’s behavior improved. Id. at 20-21, 26. The Children

seemed “happier” and “more relaxed” after the visits decreased. Id. at 53.

D.Z.C., the oldest child, was five years old when he was removed from

Mother’s home. Prior to placement, he was not toilet trained or able to eat

with utensils. Also, he was afraid to take baths. The foster family was able

to resolve those issues. N.T. Hearing, 10/7/14, at 19-20. The foster family

has been consistent in providing a stable physical and emotional

environment, and the Children’s growth and development in placement has

been significant. N.T. Hearing, 9/24/14, at 26.

The trial court acknowledged that the Children love Mother and Mother

loves them, but Mother, after more than two years of services, has been

unable to provide for the Children’s developmental, physical and emotional

needs on any consistent basis. Increased interaction between Mother and

Children after denial of the first TPR petition proved to be emotionally

difficult for the Children. We discern no error in the trial court’s finding that

termination of Mother’s parental rights was appropriate under § 2511(b).3

3 The trial court noted that the foster family was open to continued visits between Mother and the Children, such that termination of Mother’s parental rights will not entirely sever the bond between Mother and Children. Trial Court Opinion, 8/12/15, at 10. Recently, in In re G.L.L., 124 A.3d 344, 348 (Pa. Super. 2015), this Court noted that the potential for open adoption is (Footnote Continued Next Page)

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For her third argument, Mother asserts the trial court erred in

changing the Children’s goal to adoption. Mother argues the Children’s

permanency goal should be permanent legal guardianship without

termination of Mother’s parental rights. Given our decision to affirm the

decree terminating Mother’s parental rights, this issue is moot.4

In any event, we discern no error in the trial court’s goal change order.

“In a change of goal proceeding, the best interests of the child, and not the

interests of the parent, must guide the trial court, and the parent's rights are

secondary.” M.T., 101 A.3d at 1173. CYF bears the burden of proving a

goal change is in the Children’s best interests. All of our analysis of Mother’s

first two arguments demonstrates why a goal change is in the Children’s

best interests. Further, Mother’s legal support for her argument rests solely

on a footnote in In re I.G., 939 A.2d 950 (Pa. Super. 2007). There this

Court suggested

consideration of permanent legal custody in paternal aunt, which would not lead to termination of Father’s parental rights, in particular since the record indicates that paternal aunt would _______________________ (Footnote Continued)

not an appropriate or relevant consideration under § 2511(b). We do not believe a possible open adoption was a deciding factor in the trial court’s analysis. As explained in the main text, a substantial body of evidence supports the trial court’s decision to terminated Mother’s parental rights under § 2511(b). 4 We note that a change of permanency goal from unification to adoption was not a prerequisite for terminating Mother’s rights. In re M.T., 101 A.3d 1163, 1166 (Pa. Super. 2014) (en banc).

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be willing for the children to have a relationship with Father and that Father and paternal aunt have a good relationship.

Id. at 957 n.9. Mother believes permanent legal guardianship is a better

option here because the foster family would not guarantee that D.Z.C. would

remain in public school rather than private school. Mother believes D.Z.C.,

given his autism, would fare better in a public school equipped to handle

D.Z.C.’s condition. Mother cites no law or evidence to support this

proposition, and the only supporting law she cites comes from a suggestion

of this Court in a case with its own distinct facts. Mother is not entitled to

relief on her third argument.

In summary, we have concluded that the trial court did not err in

terminating Mother’s parental rights and changing the Children’s goal to

adoption. We therefore affirm the orders and decrees on appeal.

Orders and decrees affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/19/2016

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