J-S37017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: O.M.H. IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
APPEAL OF: C.M.G., MOTHER
No. 37 MDA 2014
Appeal from the Decree Entered November 27, 2013 In the Court of Common Pleas of Berks County Orphans' Court at No. 83290
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014
27, 2013 decree entered in the Court of Common Pleas of Berks County
affirm.
On August 19, 2013, Berks County Children and Youth Services
rights to Child alleging, inter alia, that:
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. 23 Pa.C.S.A. § 2511(a)(1).
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 [her] physical J-S37017-14
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. 23 Pa.C.S.A. § 2511(a)(2).
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. 23 Pa.C.S.A. § 2511(a)(5).
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. 23 Pa.C.S.A. 2511(a)(8).
BCCYS Petition for Involuntary Termination of Parental Rights, 8/19/13, at
¶¶ 7-10.1
Following a hearing conducted on October 30 and November 14, 2013
and submission of briefs by the parties, the trial court issued its decree on
November 27, 2013, finding that the facts alleged in the termination petition
____________________________________________
her from whom Mother was separated. Both men consented to the termination of their parental rights to Child. N.T., 10/30/13, at 7-8.
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rights to Child; and placing Child with BCCYS with authorization to give
consent to or proceed with adoption of Child. Trial Court Decree, 11/27/13.
Mother filed a timely notice of appeal on December 27, 2013 along
with her statement of matters complained of pursuant to Pa.R.A.P. 1925(a)
in which she raised the same six issues she asks this Court to consider on
appeal:
1. rights in that [BCCYS] failed to show any of the permissible grounds for termination of parental rights pursuant to 23 [Pa.C.S.A. § 2511] and [BCCYS] failed to prove their case by clear and convincing evidence as required by law.
2. rights where mother did not abuse or neglect this child, either
was ever abused or neglected and where mother never allowed a child to be abused or neglected and there is no legal precedent for termination of parental rights under these circumstances.
3. entered into evidence, where the records were unauthenticated, not relevant to mother (and so marked) and were not properly offered as business records.
4. Whether the Court failed to properly consider the bond between mother and child as required by statute and caselaw where mother testified that there was a good bond and the only evidence of bonding by [BCCYS] was the unqualified opinion of a [BCCYS] caseworker who had only seen mother and child together on two occasions.
qualifications were not established for the record.
5. faith and substantial compliance with all [BCCYS] requests and directives.
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6. Whether the Court failed to consider the fact [that] both Dr. counselor showed little insight into
with men, when there were no issues with the [f]athers of her two older children.
-5.
Our Supreme Court recently reiterated the applicable standard of
review as follows:
The standard of review in termination of parental rights cases requires appellate courts 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. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial
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) (internal quotations and citations
Id.
(citation omitted).
In its 1925(a) opinion, the trial court summarized the evidence
presented at the termination hearing as follows:
moved
older daughters. The Agency received a second report in January 2012 that Mother had allowed her paramour, who had a
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history of sexual offenses against children, to have unsupervised contact with her minor children. During the next five (5) months, Mother was involved with BCCYS and the Juvenile Division of this Court with regards to her older minor children. During this period, Mother reported that she would allow her unborn child, the subject minor child, to have contact with her paramour and that she wanted to be a family with him. Mother
inappropriate sexual contact with minors. Based on these concerns, BCCYS petitioned for and was granted emergency custody of the minor child upon her release from the hospital following her birth. The minor child was declared dependent on June 29, 2012, and Mother was ordered to cooperate with services.
The main condition which led to the min
biological father of the subject minor child, has a significant history of inappropriate sexual contact with children. Unaware of this history, Mother allowed her minor children to have unsupervised contact with her paramour, including allowing him to bathe her older daughters. However, what concerns the Court after she learned of her
Mother first became aware that BCCYS had serious concerns with her paramour and his contact with her children in January 2012, when she signed two (2) safety plans limiting and later
in March 2012, when she received the dependency petitions relating to her older daughters, that [Father] had been charged with rape and indecent assault of pre-school aged children. Instead of taking immediate steps to remove [Father] from her life and, thereby, eradicate any potential risk to her minor children, Mother remained in contact with [Father] until January 2013. Even more concerning to this Court, Mother did not end contact with [Father] because she realized the risk that he posed to her children; instead, Mother ended contact only after [Father] physically assaulted her. Mother also continued to ] history of inappropriate sexual contact with minors.
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The Court believes that the main condition which led to the
conclusion that Mother remains unable to protect the minor child from harm. Dr. Rotenberg, an expert in the field of psychiatry, evaluated Mother in June 2013. Based on that evaluation, Dr. Rotenberg concluded that Mother was unable to place the needs of her children above her own, that Mother rationalized the inequities of her paramour and that no therapy or medication would change these conditions. In addition, when Dr. Rotenberg discussed [Father] with Mother, Dr. Rotenberg concluded that Mother continued to vi
Furthermore, Dr. Rotenberg concluded that Mother remained attached to [Father]. Ms. Karaisz, an expert in the field of non- offending parent treatment, began treatment with Mother in -based non-offending parent treatment, Ms. Karaisz believed that Mother failed to internalize or benefit from any of the treatment. After treating Mother for over a year in which she saw Mother for forty-six (46) sessions, Ms. Karaisz continued to believe that Mother has minimal insight into the problems which initially brought her to treatment and would require close monitoring to protect herself and her children from harm. The testimony of
the Court to conclude that the condition which led to the minor
services which could reasonably help Mother remedy this condition.
-8 (footnotes and references to
notes of testimony and exhibits omitted; emphasis in original).2
2 We note Mother was born on April 21, 1987. On July 24, 2007, Mother gave birth to A.M., fathered by C.M. with whom Mother had a three-year -81. On February 8, 2010, Mother gave birth to H.S., fathered by J.S. whom Mother married in May 2010. Id. at 182. Their nearly three-year long relationship ended in approximately August of 2011. Id. Shortly thereafter, Mother (Footnote Continued Next Page)
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f
fact and determinations of credibility if they are supported by the record. In
re T.S.M., 71 A.3d at 267. We have reviewed the record and conclude the
factual findings and credibility determinations are supported by the record
and are accurately and aptly summarized in the excerpt of the trial court
opinion set forth above. Therefore, it becomes incumbent upon this Court to
determine if the trial court committed error of law or abused its discretion by
terminatin Id. With those standards in mind, we
consider the issues raised by Mother.
fifth issues together and we shall do likewise. In her first issue, Mother
contends the trial court erred in terminating her parental rights because
BCCYS failed to prove any grounds for termination under 23 Pa.C.S.A.
§ 2511.3 In her second issue, she alleges trial court error for terminating
_______________________ (Footnote Continued)
became involved with Father, id. at 186, who was born on February 22, 1986 and is the father of Child involved in these proceedings.
Neither A.M. nor H.S. is the subject of the instant proceedings. A.M. is presently in the custody of her paternal grandmother while H.S. is in her
Court Opinion, 1/24/14 at 5-6 n. 2, 3. Father consented to the adoption of Child on September 25, 2013. The trial court entered a decree confirming that consent on October 30, 2013. N.T., 10/30/13, at 7-8. 3 Mother notes that the trial court restricted its bases for termination to § 2511(a)(5) and (8), even though BCCYS also raised (a)(1) and (2) as
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her fifth issue, Mother argues that the trial court failed to consider her good
faith and substantial compliance with all BCCYS requests and directives.
In re
N.A.M., 33 A.2d 95, 99 (Pa. Super. 2011). This Court has explained the
bifurcated process as follows:
Initially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing
grounds for termination delineated in Section 2511(a). Only if
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.
Id. at 99-100 (quoting In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007)).
We fir
satisfies the statutory grounds for termination under either § 2511(a)(5) or
(8).4 Under § 2511(a)(5), parental rights may be terminated if the child has
Id. at 100, citing In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).
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or a period of at least six months, the
conditions leading to removal continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of time, the services
reasonably available to the parent are not likely to remedy the conditions
that led to the removal, and termination would best serve the needs and
welfare of the child. Under the provisions of (a)(8), parental rights may be
terminated if the child has been removed from the care of the parent, 12
months or more have elapsed from the date of removal, conditions that led
to the removal continue to exist, and termination of parental rights would
best serve the needs and welfare of the child.
Subsections (a)(5) and (8) each require that a period of time elapse
between rem
parental rights, i.e., six months under (a)(5) and twelve months under
directly from the hospital on June 29, 2012. N.T., 10/30/13, at 58-60.
2013. Petition for Involuntary Termination of Parental Rights, 8/19/13.
Nearly 14 months elapsed from the time of removal until the time BCCYS
filed its petition, satisfying the time requirements under both (a)(5) and (8).
Subsections (a)(5) and (8) each also require that the conditions
leading to the removal of a child continue to exist and subsection (5) also
considers whether the parent cannot or will not remedy the condition. The
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trial court determined the main condition leading to the removal of Child was
-7. Based on
the expert testimony of Dr. Larry Rotenberg and BCCYS counselor Julie
Kar
continues to exist and that there are no other services which could
reasonably help Mother remedy this cond Id. at 8 (citing In the
Interest of Lilley, 719 A.2d 327, 332 (Pa. Super. 1998) (termination
petition may be granted if parent appears incapable of benefitting from the
reasonable efforts supplied over a realistic period of time)).
Addressing
this assertion would
appears to relate to the speculative claim that Mother would allow Father to
his thorough research has failed to uncover
any case in which the Commonwealth has sought termination of a non-
its ruling.
The trial court did not find that Mother abused Child or her other children.
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Rather the trial court concluded that Mother failed to appreciate the risk of
harm and was unable to protect Child from future harm. T.C.O. at 6. As
this Court has
affirmative misconduct; those grounds may include acts of incapacity to
In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008),
(quoting In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002)).5
Mother was unable to place the needs of her children above her own, that
Mother rationalized the inequities of her paramour and that no therapy or
-8 (citing N.T.,
10/30/13, at 14). Further, Ms. Karaisz acknowledged that Mother completed
the non-offending parent treatment and pursued domestic violence and
concluded that Mother failed to internalize or benefit from the treatment.
Id. at 8 (citing N.T., 11/14/13, at 140-41). Based on her 46 sessions with
5 We recognize that the trial court based its termination on (a)(5) and (8) and did not specifically address (a)(2), which does consider whether a child eated and
absence of proof of abuse by Mother, we believe a reference to (a)(2) is warranted under the circumstances.
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Id. (citing N.T.,
11/14/13, at 144-45).
The record supports the
remedy that condition as required in (a)(5) and (8).6
both § 2511(a)(5) and (8), the trial court appropriately considered the best
interests of the child, giving primary consideration to the developmental,
physical and emotional needs and welfare of the child pursuant to
§ 2511(b). See In re N.A.M., 33 A.3d at 100. The trial court concluded:
will serve the best interests of [Child]. As discussed above, the Court does not think that Mother is able to safely provide for the e child is currently living in a foster home which meets those needs.
6 Subsections (a)(5) and (8) also require that termination of rights will serve the needs and welfare of a child. In its analysis of § 2511(a), the trial court did not specifically address the needs and welfare of Child in the context of § 2511(a). However, it did conduct an analysis of the best interests of Child in its discussion of § 2511(b) and considered the effect of severing the bond
onsideration of the emotional bonds between the parent and child. The utmost attention should be paid to discerning the effect on the child of permanently severing the parental In re T.S.M., 71 A.3d at 267 (internal quotation omitted). The trial
permanently severing the parental bond and supports a finding that
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T.C.O. at 10 (emphasis in original). The court also considered the testimony
Id. at 11 (quoting N.T.,
10/30/13, at 76-77). She also stated that the foster parents present as a
long-term resource for Child. Id. Ms. Kipp also described Chil
during the end of the visits when [Child] did go back to her foster mother,
The trial c
explained:
[T]he correct analysis under [§ 2511(b)] is what effect permanently severing this bond would have on the child. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). The minor child has been i to her foster family and the Court does not believe that
bond remains will have any permanent effect on the minor child.
The tria
supported by clear and convincing evidence found in the record and we find
no error of law or abuse of discretion in its ruling. There is no basis for
irst, second and fifth issues.
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trial court commented:
six (6) in which Mother contends that the Court failed to consider that Dr. Rotenberg and Ms. Karaisz showed little insight into her past and wrongfully attributed her as having trouble with men. The Court did, in fact, consider the entirety of Dr. Rotenberg and Ms. -examination of the extent of their expert opinions. As the Court understood and accepted their testimony as relevant to the issue of termination, iled relationships demonstrated her instability and dependence on the men in her life. The Court considered this information as relevant to its conclusion that Mother is unable to protect the minor child from harm. While the experts may not have been aware of the details
damaging to their overall expert conclusions. Therefore, the
T.C.O. at 8-9 n.4 (references to notes of testimony omitted).
court acknowledges, the expert witnesses did not know certain details of the
relationships between Mother and the fathers of her two older daughters.
However, Dr. Rotenberg not only examined Mother but also had background
with features of dependency and narcissism. N.T., 10/30/13, at 24-26 and
33-34. Ms. Karaisz had the benefit of 46 sessions with Mother and
appreciated that Mother completed non-offending parent treatment and
pursued domestic violence and mental health programs, yet failed to
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internalize or benefit from the treatment. N.T., 11/14/13, at 116-21. Our
sixth issue for lack of merit.
In her third issue, Mother alleges trial court error for admitting BCCYS
exhibits, contending the exhibits were not authenticated, not relevant, and
Commonwealth
v. Wantz, 84 A.3d 324, 336 (Pa. Super. 2014).
During the October 30, 2013 hearing, BCCYS offered a packet of
exhibits into evidence through the adoption caseworker. N.T., 10/30/13, at
marked as relevant to Father, rather than to Mother, and were therefore
irrelevant for the proceedings. Counsel also objected on the grounds the
records were hearsay. Id. at 48-54.
Commonwealth v. Wood, 637 A.2d 1335 (Pa. Super. 1994), stating:
The question of whether documents should be admitted under
either the person who made the entries or the custodian of the records at the time the entries were made. Moreover, the law does not require that a witness qualifying business records even have personal knowledge of the facts reported . . . [as] long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness[.]
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T.C.O. at 9, quoting Wood, 637 A.2d at 1350. The trial court determined
that the witness was able to identify
prepared simultaneously with the information being obtained and maintained
Id. at 10 (references to notes of testimony omitted).
inappropriate sexual contact with childr
allowing [Father] to have unsupervised contact with her minor children and
in failing to remove him from her life. These documents were only relevant
Id. We find no abuse of discretion in the trial c
In the final issue raised by Mother, listed in her brief as her fourth
issue, Mother asserts that the trial court failed to give proper consideration
to the bond between Mother and Child, noting that Mother testified there
was a good bond while the only evidence of bonding presented by BCCYS
noting
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second issue, we do so again in the context of the challenge to the
When considering the bond between a parent and child, this Court has
recognized:
precedent to order a formal bonding evaluation by an expert. In re [K.K.R.-S.], 958 A.2d 529, 533 (Pa. Super. 2008). Indeed,
to rely upon the observations and evaluations of social workers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). Moreover, the mere existence of an emotional bond does not preclude the termination of parental rights. As we explained in In re A.S., [11 A.3d 473, 483 (Pa. Super. 2010)]:
[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.
In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012).
imony concerning her bond
with Child but also properly considered the testimony of the caseworker and
concluded that severing the bond with Mother would not have any
permanent effect on Child. T.C.O. at 11. Our review of the record supports
that finding.
Id. The caseworker concluded that
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terminating parental rights would pose a significant risk because [Mother]
has not demonstrated that she is able to protect herself, let alone [C
Id. at 77-
issue lacks merit.
findings of fact and credibility determinations are supported by the record
and, therefore, we accept them. We find no error of law or abuse of
discretion in its determination that BCCYS proved grounds for termination of
(a)(5), (a)(8) and (b) and did so by
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/25/2014
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