In the Interest of: J.D., Appeal of: J.C.

• Court: Superior Court of Pennsylvania
• Decided: November 16, 2021
• Docket: 297 WDA 2021
• Status: Unpublished

Opinion

J-A18041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.D., A MINOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.C., MOTHER : : : : : : No. 297 WDA 2021

Appeal from the Order Entered February 3, 2021 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000130-2020

IN THE INTEREST OF: M.D., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: J.C., MOTHER : : : : : No. 298 WDA 2021

Appeal from the Order Entered February 3, 2021 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000129-2020

BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 16, 2021

J.C. (“Mother”) appeals from the Orders entered on February 3, 2021,

granting the Petitions filed by the Allegheny County Office of Children, Youth,

and Families (“CYF”), seeking to terminate Mother’s parental rights to her

minor children, J.D. (a male born in March 2017) and M.D. (a female born in J-A18041-21

May 2018) (collectively “the Children”), pursuant to the Adoption Act, 23

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

The trial court aptly summarized the factual and procedural history of

this case, which we adopt for purposes of this appeal. See Trial Court Opinion,

4/5/21, at 4-6. We provide the following brief factual recitation. CYF became

involved with Mother after the birth of J.D., following a report that J.D. had

tested positive for methadone, and Mother had a history of heroin addiction.

CYF had several additional interactions with Mother and, eventually, J.D. was

removed from Mother’s care in June 2017. J.D. was adjudicated dependent

in July 2017. M.D. was born in May 2018. J.D. was returned to Mother’s care

in June 2018, and the dependency case was closed in October 2018.

CYF became involved again following a referral regarding Father’s

cocaine use in December 2018. CYF received another referral in March 2019,

following a medical appointment in which Mother requested pain medication

and was presenting as overly emotional, and M.D., who was present at the

appointment and ten-months old at the time, had a flat affect. CYF did not

open a case following those incidents.

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1 The trial court also terminated the parental rights of the Children’s father,

J.D., (“Father”) and the unknown father pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Although Father had signed an Acknowledgement of Paternity for the Children, CYF did not have a copy the Acknowledgement at the time CYF filed its Petitions, therefore, an unknown father was included. See Petition, 9/15/20, at 2, n. 1; Petition, 9/15/20, at 2, n. 1. During the termination hearing, Father withdrew from the proceedings, and agreed that the Children should remain in their current foster home. N.T., 2/1/21, at 8.

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CYF removed the Children in September 2019, after Mother had

overdosed in front of the Children and had to be revived with Narcan. At the

dependency hearing, Mother stipulated that she had overdosed on heroin and

had been charged with endangering the welfare of children. The Children were

adjudicated dependent in September 2019. Mother’s goals were to participate

in drug and alcohol treatment and urine screens, maintain stable housing,

address mental health concerns, visit with the Children, and cooperate with

CYF.

CYF filed Petitions to involuntarily terminate Mother’s parental rights to

the Children on September 15, 2020. Following a hearing on February 1,

2021, the trial court entered Orders terminating Mother’s parental rights to

the Children. Order, 2/3/21; Order, 2/3/21. Mother timely filed Notices of

Appeal, along with Pa.R.A.P. 1925(a)(2)(i) and (b) Concise Statements of

errors complained of on appeal.2

On appeal, Mother raises the following questions for our review:

I. Did the trial court abuse its discretion and/or err as a matter of law in granting the [P]etition to involuntarily terminate Mother’s parental rights pursuant to 23 Pa.C.S.[A.] § 2511(a)(1), (2), (5), and (8)?

II. Did the trial court abuse its discretion and/or err as a matter of law in concluding that CYF met its burden of proving by clear and convincing evidence that termination of Mother’s parental rights would best serve the needs and welfare of the [Children,] pursuant to 23 Pa.C.S.[A] § 2511(b)?

2 This Court, sua sponte, consolidated Mother’s appeals. Order, 3/23/21.

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Mother’s Brief at 8.

In reviewing a trial court order granting a petition to involuntarily

terminate parental rights, we adhere to the following standard:

[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. In re: R.J.T., [], 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; R.I.S., 36 A.3d 567, 572 (Pa. 2011) [(plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., … 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court’s legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

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The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Moreover, as we have explained, “[t]he 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.’” Id. (quoting In re J.L.C.,

837 A.2d 1247, 1251 (Pa. Super. 2003)).

This Court may affirm the trial court’s decision regarding the termination

of parental rights with regard to any one subsection of section 2511(a), along

with consideration of section 2511(b). See In re B.L.W., 843 A.2d 380, 384

(Pa. Super. 2004) (en banc). We will address sections 2511(a)(1) and (b),

which provide as follows:

§ 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.

***

(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

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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.A. § 2511(a)(1), (b).

In her first claim, Mother argues that the trial court abused its discretion

when it concluded that termination was proper under, inter alia, 23 Pa.C.S.A.

§ 2511(a)(1). Mother’s Brief at 21. Mother avers that the trial court erred

because she has continued to work on her goals to achieve reunification. Id.

at 23. Mother further asserts that the trial court improperly found that she

had not remedied the conditions which led to the removal of the Children. Id.

at 24. Mother contends that CYF has failed to prove that Mother was still using

drugs, and that the court-appointed psychologist did not assess Mother’s

capacity to parent the Children. Id. at 25.

With respect to subsection 2511(a)(1), our Supreme Court has held as

follows:

Once the evidence establishes a failure to perform parental duties or a settled purpose of relinquishing parental rights, 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).

In re Adoption of Charles E.D.M., 708 A.2d 88, 92 (Pa. 1988).

Further, this Court has stated,

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the trial court must consider the whole history of a given case and not mechanically apply the six-month statutory provision. The court must examine the individual circumstances of each case and consider all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination.

In re B.,N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).

In Adoption of S.P., our Supreme Court reiterated the standard with

which a parent must comply in order to avoid a finding that she has abandoned

her child.

[W]e noted that a parent “has an affirmative duty to love, protect and support h[er] child and to make an effort to maintain communication and association with that child.” [In re: Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975)].

* * *

Where the parent does not exercise reasonable firmness in declining to yield to obstacles, h[er] other rights may be forfeited.

Adoption of S.P., 47 A.3d at 828.

Here, the trial court thoroughly considered the facts and determined

that Mother failed to perform her parental duties for the requisite six-month

period. See Trial Court Opinion, 4/5/21, at 6-13. The trial court’s findings

are supported by competent, clear, and convincing evidence in the record, and

its legal conclusions are sound. We therefore affirm on the basis of the trial

court’s Opinion with regard to termination pursuant to 23 Pa.C.S.A.

§ 2511(a)(1). See Trial Court Opinion, 4/5/21, at 6-13.

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In her second issue, Mother argues that the trial court abused its

discretion when it concluded that termination of her parental rights was in the

best interest of the Children, pursuant to 23 Pa.C.S.A § 2511(b). Mother’s

Brief at 27. Mother argues the trial court erred because the court-appointed

psychologist could not state that termination of Mother’s parental rights was

in the Children’s best interest. Id. Mother further avers that an interactional

evaluation was necessary for the psychologist to provide an expert

assessment of the impact termination would have on the psychological welfare

of the Children. Id. Finally, Mother argues that the Children “need and

deserve” to have their relationship with Mother preserved, which can only

occur if Mother retains her parental rights. Id.

This Court has stated that the focus in terminating parental rights under

section 2511(a) is on the parent, but it is on the child pursuant to section

2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super.

2008) (en banc). In reviewing the evidence in support of termination under

section 2511(b), our Supreme Court has stated as follows:

[I]f the grounds for termination under subsection (a) are met, a court “shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.” 23 Pa.C.S.[A.] § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include “[i]ntangibles such as love, comfort, security, and stability.” In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child’s “needs and welfare” requires consideration 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 bond. In re K.M., 53 A.3d at 791.

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In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).

When evaluating a parental bond, “the court is not required to use

expert testimony.” In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010).

“Additionally, section 2511(b) does not require a formal bonding evaluation.”

Id. Although it is often wise to have a bonding evaluation and make it part

of the certified record, “[t]here are some instances … where direct observation

of the interaction between the parent and the child is not necessary and may

even be detrimental to the child.” In re K.Z.S., 946 A.2d 753, 762 (Pa. Super.

2008).

A parent’s abuse and neglect are likewise a relevant part of this analysis:

[C]oncluding a child has a beneficial bond with a parent simply because the child harbors affection for the parent is not only dangerous, it is logically unsound. If a child’s feelings were the dispositive factor in the bonding analysis, the analysis would be reduced to an exercise in semantics as it is the rare child who, after being subject to neglect and abuse, is able to sift through the emotional wreckage and completely disavow a parent.… Nor are we of the opinion that the biological connection between [the parent] and the children is sufficient in of itself, or when considered in connection with a child’s feeling toward a parent, to establish a de facto beneficial bond exists. The psychological aspect of parenthood is more important in terms of the development of the child and [his or her] mental and emotional health than the coincidence of biological or natural parenthood.

In re K.K.R.-S., 958 A.2d 529, 535 (Pa. Super. 2008) (internal citations and

quotation marks omitted). Thus, the court may emphasize the safety needs

of the child. See In re K.Z.S., 946 A.2d at 763 (affirming involuntary

termination of parental rights, despite existence of some bond, where

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placement with mother would be contrary to child’s best interests). “[A]

parent’s basic constitutional right to the custody and rearing of ... her child is

converted, upon the failure to fulfill ... her parental duties, to the child’s right

to have proper parenting and fulfillment of [the child’s] potential in a

permanent, healthy, safe environment.” In re B.,N.M., 856 A.2d at 856

(internal citations omitted).

This Court has explained that a parent’s own feelings of love and

affection for a child, alone, do not prevent termination of parental rights. In

re Z.P., 994 A.2d at 1121. It is well-settled that “we will not toll the well-

being and permanency of [a child] indefinitely.” In re Adoption of C.L.G.,

956 A.2d at 1007 (citing In re Z.S.W., 946 A.2d 726, 732 (Pa. Super. 2008)

(noting that a child’s life “simply cannot be put on hold in the hope that [a

parent] will summon the ability to handle the responsibilities of parenting.”)).

In the instant case, the trial court reviewed the evidence and found that

severing any bond that the Children have with Mother would not cause any

extreme emotional consequences. Trial Court Opinion, 4/5/21, at 16. The

court referred to the testimony and evidence about Mother’s “significant lack

of presence and the result of that absence did nothing to support or nurture

any attachment that might have once existed with the Children.” Id. The

trial court further noted that testimonial evidence established that terminating

Mother’s parental rights will provide the Children with stability and

permanence at this point in their young lives. Id. Moreover, to the extent

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Mother argues that an expert opinion or formal analysis is necessary, that

requirement is not borne out by our case law. See In re Z.P., 994 A.2d at

1121. We discern no error or abuse its discretion by the trial court in

terminating Mother’s parental rights pursuant to 23 Pa.C.S.A. § 2511(b). We

therefore affirm on the basis of the trial court’s Opinion with regard to

termination pursuant to subsection (b). See Trial Court Opinion, 4/5/21, at

13-17.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/16/2021

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