NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.F., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
APPEAL OF: K.F., NATURAL MOTHER :
: : No. 304 WDA 2019
Appeal from the Order Dated December 21, 2018 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000193-2017
IN THE INTEREST OF: A.A.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : :
APPEAL OF: K.F., NATURAL MOTHER :
: : No. 305 WDA 2019
Appeal from the Order Dated December 21, 2018 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000194-2017
IN THE INTEREST OF: A.J.J., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : :
APPEAL OF: K.F., NATURAL MOTHER :
: : No. 306 WDA 2019
Appeal from the Order Entered December 21, 2018 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000195-2017
IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : :
APPEAL OF: K.F., NATURAL MOTHER :
: : No. 307 WDA 2019
Appeal from the Order Dated December 21, 2018 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000196-2017
BEFORE: OLSON, J., OTT, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED JUNE 26, 2019
In these consolidated appeals, Appellant, K.F. (“Mother”), appeals
from the orders entered December 21, 2018, that involuntarily terminated
her parental rights to her children, A.F. (born 2010), A.A.W. (born 2013),
A.J.J. (born 2014), and A.M. (born 2016) [hereinafter, collectively,
“Children”], pursuant to 23 Pa.C.S. § 2511(a)(5), (8), and (b). We affirm.
The orphans’ court and this Court in an earlier decision fully set forth
the relevant facts and procedural history of this case. See In re A.F., No.
589 WDA 2018, unpublished memorandum at 3-5 (Pa. Super. filed
September 17, 2018); Orphans’ Court Opinion (“OCO”), filed March 18,
2019, at 2-16. Therefore, we have no reason to restate them at length. For
the convenience of the reader, we briefly note that, in November 2017, the
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* Retired Senior Judge assigned to the Superior Court.
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Allegheny County Office of Children, Youth and Families (“OCYF”) filed
petitions to terminate Mother’s parental rights to Children pursuant to 23
Pa.C.S. § 2511(a)(2), (5), (8), and (b),1 which the orphans’ court initially
denied2 on March 16, 2018.3 OCYF timely appealed. In its appeal, “OCYF
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1 In January 2018, the orphans’ court appointed counsel for all Children but, at the request of the Office of Conflict Counsel, appointed separate legal interests counsel for then-seven-year-old A.F., who was deemed the only one of Children old enough to articulate her preferences to legal counsel and who could have had different interests from A.A.W., A.J.J., and A.M., as A.F. was living in a separate foster home from her siblings; the orphans’ court considered the other three children -- then ages one to four years old -- too young to direct legal interests counsel and hence appointed a joint guardian ad litem and legal advocate for A.A.W., A.J.J., and A.M. N.T., 12/21/2018, at 4-5. See In re L.B.M., 161 A.3d 172, 173-75, 180 (Pa. 2017) (plurality) (courts must appoint counsel to represent the legal interests of any child involved in a contested involuntary termination proceeding; a child’s legal interests are distinct from his or her best interest, in that a child’s legal interests are synonymous with the child’s preferred outcome, and a child’s best interest must be determined by the court); see also In re T.S., 192 A.3d 1080, 1089-93 (Pa. 2018) (a child’s statutory right to appointed counsel is not waivable, even where the child is too young or nonverbal to communicate his or her preference; reaffirming the ability of an attorneyguardian ad litem to serve a dual role and to represent a child’s nonconflicting best interests and legal interests); In re G.M.S., 193 A.3d 395, 399-400 (Pa. Super. 2018) (orphans’ court not required to appoint separate attorney to represent children’s legal interests, so long as children’s guardian ad litem was an attorney and children’s legal and best interests did not appear to be in conflict). 2 “Concomitantly, OCYF petitioned for the termination of the parental rights of the fathers to Children. The respective fathers did not contest the petitions; their rights were terminated; and they have not appealed.” A.F., No. 589 WDA 2018, unpublished memorandum at 5 n.4. 3 All four orders denying termination were dated March 16, 2018. However, the orders as to A.A.W., A.J.J., and A.A.M. were not entered on the docket (Footnote Continued Next Page)
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contend[ed] that the orphans’ court erred in concluding that OCYF had failed
to establish the statutory requirements of Section 2511(a)(8).” A.F., No.
589 WDA 2018, unpublished memorandum at 8.4 In particular, OCYF
argued that the orphans’ court “erred in declining to analyze the needs and
welfare” of Children. Id. This Court agreed with OCYF, explaining:
[I]n order to establish the third statutory requirement of Section 2511(a)(8), the evidence must demonstrate that termination of parental rights would best serve the needs and welfare of the child. [In re] C.L.G., 956 A.2d [999,] 1009 [(Pa. Super. 2008) (en banc)] (acknowledging this element of Section 2511(a)(8) coincides with Section 2511(b) but directing distinct analyses) . . . [T]estimony . . . suggests that the Children, particularly the older two, maintain a strong bond with Mother. . . . OCYF presented very limited testimony regarding the effects of severing this bond . . .
Mindful of our standard of review, we shall not usurp the role of the orphans’ court as factfinder. We shall not weigh this evidence nor pass judgment on its credibility. Thus, we decline to credit OCYF’s suggestion that it established the third statutory requirement of Section 2511(a)(8).
For these reasons, we vacate the orders denying OCYF’s petitions to terminate Mother’s parental rights to the Children and remand for further proceedings. On remand, the orphans’ court shall address its legal errors, consistent with the above analysis. In light of the limited testimony indicative of the effects termination would have on the bond between Mother and the Children, the parties must be given an opportunity to present further evidence in this regard.
Id. at 12-15 (some citations omitted).
(Footnote Continued) _______________________
until March 29, 2018, and the order for A.F. was not entered until April 11, 2018. 4 OCYF did not raise any claims related to 23 Pa.C.S. § 2511(a)(2) or (5).
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Pursuant to this Court’s remand, the orphans’ court held another
hearing on December 21, 2018, and OCYF recalled Dr. Beth Bliss, who had
conducted separate psychological evaluations of Mother and A.F. and an
interactional evaluation of Mother and Children in July and August 2017 and
who had testified at the March 2018 hearing. Id. at 4; OCO, filed March 18,
2019, at 10. Dr. Bliss acknowledged that she had not met with Mother
either individually or with Children since August 2017, N.T., 12/21/2018, at
28, but she testified about her earlier evaluations of Mother, Children, and
Children’s foster parents with greater specificity than during the prior
termination hearing.
While in the foster home, it was reported that A.F. had made allegations of sexual abuse by maternal grandfather and by one of Mother’s paramours. During the evaluation, Dr. Bliss attempted to ask A.F. about the allegations and she reported to being sexually abused by maternal grandfather who she referred to as “pappy”. . . .
During her testimony, Dr. Bliss opined that the older children, A.F. and [A.A.W.,] both had an insecure bond with Mother. She also opined that the bond was not a necessary or beneficial one. Dr. Bliss reported that any emotional consequences from severing the bond could be addressed through therapeutic services.
OCO, filed March 18, 2019, at 10, 15; see also N.T., 12/21/2018, at 35-42
(Dr. Bliss testified: A.F. and A.A.W. both had “insecure” bonds with Mother
but would experience some “emotional turmoil” following termination;
A.A.W.’s attachment to Mother presented itself through “negative attention
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seeking behaviors” and “clinginess”).5 Dr. Bliss further testified that “Mother
struggled to address [A.F.’s and A.A.W.’s] emotional needs.” OCO, filed
March 18, 2019, at 13.6
[Dr. Bliss] reported that [A.J.J.] has very little attachment to any adult . . . Dr. Bliss reported that while A.M. was comfortable around Mother, she did not believe that the child had a bond with Mother. She reported that neither [A.J.J. nor A.M.] sought Mother out for emotional validation as they did with their foster parents. Dr. Bliss opined that neither [A.J.J. nor A.M.] would be negatively impacted if their relationship with Mother was severed. Dr. Bliss reported that the current foster homes were appropriate adoptive resources and that all of [C]hildren exhibited some level of a close and positive bond with their foster parent.
Id. at 15-16; see also N.T., 12/21/2018, at 42-43.
On January 16, 2019, the orphans’ court granted the termination
petition pursuant to 23 Pa.C.S. § 2511(a)(5), (8), and (b). Mother filed this
timely direct appeal, along with a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(a)(2)(i).7
Mother presents the following issue for our review:
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5 Dr. Bliss had also “reported allegations of sexual abuse and inappropriate sexual behavior” by A.F. and A.A.W. during her initial testimony in March 2018. A.F., No. 589 WDA 2018, unpublished memorandum at 4. 6 A.F.’s legal interests counsel represented to the orphans’ court that A.F. wanted to remain permanently with her foster family but “was interested in visiting with [M]other.” N.T., 12/21/2018, at 67-68. 7The orphans’ court entered its opinion on March 18, 2019. See Pa.R.A.P. 1925(a)(2)(ii).
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Did the [orphans’] court abuse its discretion and/or err as a matter of law in concluding that termination of Natural Mother’s parental rights would serve the needs and welfare of the Children pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 8.
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. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s decision, the decree must stand. 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. We must employ a broad, comprehensive review of the record in order to determine whether the trial court’s decision is supported by competent evidence.
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.
The trial court is free to believe all, part, or none of the evidence presented and is likewise free to make all credibility determinations and resolve conflicts in the evidence. If competent evidence supports the trial court’s findings, we will affirm even if the record could also support the opposite result.
In re B.J.Z., 2019 PA Super 106, *9-*10 (filed April 4, 2019) (internal
quotation marks and some internal citations omitted) (some formatting).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 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
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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.
In re G.M.S., 193 A.3d 395, 401 (Pa. Super. 2018) (citation omitted). As
Mother does not raise an issue in her brief with respect to Section
2511(a)(5) or (8), Mother has waived any claims that the evidence was
insufficient to establish that her parental rights should be terminated under
those two subsections, and we review the subject orders pursuant to Section
2511(b) only. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”); Krebs v.
United Refining Co. of Pennsylvania, 893 A.2d 776, 797 (Pa. Super.
2006) (stating that any issue not set forth in or suggested by an appellate
brief’s Statement of Questions Involved is deemed waived under Pa.R.A.P.
2116(a)).
Section 2511(b) states:
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. § 2511(b). With respect to Section 2511(b), this Court has
explained that,
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Section 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. . . . Section 2511(b) does not explicitly require a bonding analysis and the term ‘bond’ is not defined in the Adoption Act. Case law, however, provides that analysis of the emotional bond, if any, between parent and child is a factor to be considered as part of our analysis. While a parent’s emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the court when determining what is in the best interest of the child.
In 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.
G.M.S., 193 A.3d at 401 (citations and internal brackets omitted) (some
formatting).
Mother contends that the orphans’ court “abused its discretion and/or
erred as a matter of law in concluding that termination of [her] parental
rights would serve the needs and welfare of the Children pursuant to 23
Pa.C.S. § 2511(b).” Mother’s Brief at 14. Specifically, Mother argues:
In order to make a determination that termination of parental rights meets the needs and welfare of child, the trial court must be presented with evidence of and analyze the emotional effect that termination could have on that child. . . .
In this case, the evidence presented by [OCYF] in December of 2018 was the exact same evidence it presented on March 16, 2018 after which the [orphans’] court denied its petitions. This evidence has already been rejected by this Court as clear and convincing evidence of the needs and welfare requirement or 23 Pa.C.S. §2511(a)(8).
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Id. at 17-18 (bold emphasis in original; italicized emphasis added) (citing
N.T., 3/16/2018, at 27-69; N.T., 12/21/2018, at 26-56; OCYF Exhibit 2;
A.F., No. 589 WDA 2018, unpublished memorandum at 12-15).8
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8 Mother makes no argument about Children’s need for safety, security, or stability. Mother’s Brief at 14-18; see G.M.S., 193 A.3d at 401 (“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”). Assuming Mother had made such an argument, we would concur with the findings and analysis of the orphans’ court:
[In 2013,] Mother . . . reported [to OCYF] to having unaddressed mental health concerns . . . OCYF implemented services to assist Mother with obtaining housing, addressing her mental health, and connecting her with community resources. . . . [By 2015, s]he completed mental health treatment . . .
[Nevertheless,] Dr. Bliss noted because of [Mother’s] past history of trauma, that she believed Mother to have adapted some maladaptive personality traits that could prevent her from engaging in healthy relationships with others as well as positive parenting behaviors. . . .
Dr. Bliss concluded that she was worried about the safety of [C]hildren due to the significant history of various allegations, including physical and sexual abuse and neglect. Dr. Bliss ultimately opined that Mother’s maladaptive personality traits and mental health problems inhibit her ability to provide a safe and nurturing environment for [C]hildren. . . .
Mother’s poor decision making and mental health concerns have ultimately affected her ability to provide a safe and stable home for her children. It is not in the best interest of these children to keep their lives on hold until Mother can develop the skills necessary to keep them safe. . . . All of the foster parents have been able to provide the safety, security and stability that [C]hildren desperately need.
(Footnote Continued Next Page)
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Mother misinterprets this Court’s instructions. This Court never stated
that OCYF presented insufficient evidence to establish the “needs and
welfare” analysis pursuant to 23 Pa.C.S. § 2511(a)(8). It concluded that the
orphans’ court improperly failed to reach that factor as part of its analysis.
A.F., No. 589 WDA 2018, unpublished memorandum at 14-15. This Court
thus remanded for the orphans’ court to address this statutory requirement
of § 2511(a)(8). This Court’s instructions stated that “the parties must be
given the opportunity to present further evidence” -- not that the parties
must present further evidence. Id. at 15. In other words, the decision
allowed the parties to present additional evidence but did not require them
to do so.
Assuming this Court had ordered OCYF to present additional evidence,
while, admittedly, Dr. Bliss did not meet with Mother, Children, or Children’s
foster parents subsequent to remand, N.T., 12/21/2018, at 28, her
testimony in December 2018 had much greater specificity about the effect
termination would have on Children than her testimony from March 2018.
She testified that, when she had seen Children with Mother in August 2017,
none of Children had such strong bonds with Mother that termination would
(Footnote Continued) _______________________
OCO, filed March 18, 2019, at 3, 6, 12, 14, 16. As this Court has observed: “Parental 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 physical and emotional needs.” In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008).
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be detrimental to them. OCO, filed March 18, 2019, at 15; N.T.,
12/21/2018, at 35-41. She explicitly testified that, while there would be a
period of adjustment, A.F. would not be traumatized by termination.
Additionally, she testified that, although A.A.W. showed some signs of
attachment to Mother, the attachment was “negative” and the bond was
“insecure” and presented itself in part through “negative attention seeking
behaviors[,]” “clinginess[,]” and increased emotions. OCO, filed March 18,
2019, at 15; N.T., 12/21/2018, at 38-41. She admitted that he would
experience some turmoil following termination of Mother’s rights but that the
benefits of permanency outweighed the cost of this emotional difficulty and
adjustment. OCO, filed March 18, 2019, at 15; N.T., 12/21/2018, at 41-42.
By way of contrast, Dr. Bliss testified that A.J.J. and A.M. are the least
attached to Mother and therefore would not be negatively affected by
termination of Mother’s rights. OCO, filed March 18, 2019, at 15-16; N.T.,
12/21/2018, at 42-43. As the orphans’ court summarized:
Based upon the testimony and evidence presented, the [orphans’ c]ourt found that the two oldest children, A.F. and [A.A.W.], had an insecure attachment to Mother. While there was evidence that [A.F. and A.A.W.] would suffer some emotional consequences from the severance of the bond, the effects will not be long term if they engage with the proper therapeutic services. Both children have a history of exhibiting sexualized behaviors and both have presented with significant mental health concerns. The two youngest children, [A.J.J.] and A.M., have little to no bond with their mother as such they would not suffer any negative emotional consequences if their relationship with their mother was severed.
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It is clear to the [orphans’ c]ourt that Mother loves her children. Throughout the history of the case, she has made progress in addressing some of her parenting deficits. While Mother has recently made progress in understanding and accepting that her children have been the victims of sexual abuse, she struggled to accept it for many years. Additionally, she has struggled to maintain healthy relationships with paramours. . . . [C]hildren have developed meaningful bonds with their foster parents. . . . As such, . . . OCYF has meet its burden of proving by clear and convincing evidence that grounds exist for termination under . . . 2[3] Pa.C.S.A. §2511(b).
OCO, filed March 18, 2019, at 16-17.
Thus, contrary to Mother’s claim, Dr. Bliss’s evidence at the December
2018 hearing was not identical to her testimony at the March 2018 hearing.
At the later hearing, Dr. Bliss presented her evaluations and opinions with
greater specificity than at the former hearing and testified thoroughly about
the emotional bond between Mother and Children, the impact on Children of
severing any such bond, and the “emotional needs and welfare” of Children
pursuant to 23 Pa.C.S. § 2511(b). See G.M.S., 193 A.3d 401 (section
2511(b) focuses on the “emotional needs and welfare of the child” and
provides for an “analysis of the emotional bond,” including “the importance
of continuity of relationships and whether any existing parent-child bond can
be severed without detrimental effects on the child”).
Based on the foregoing, we conclude the orphans’ court did not abuse
its discretion by terminating Mother’s parental rights to Children.
Accordingly, we affirm.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/26/2019