In the Interest of: J.M.H., Appeal of: K.L.R.

• Court: Superior Court of Pennsylvania
• Decided: May 15, 2019
• Docket: 256 MDA 2018
• Status: Unpublished

Opinion

J-S12020-19 & J-S12021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.M.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.L.R., NATURAL : MOTHER : : : : No. 256 MDA 2018

Appeal from the Decree January 8, 2018 In the Court of Common Pleas of Luzerne County Orphans’ Court at No(s): A-8472

IN THE INTEREST OF: J.J.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.L.R., NATURAL : MOTHER : : : : No. 257 MDA 2018

Appeal from the Decree January 8, 2018 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8473

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 15, 2019

K.L.R. (“Mother”) appeals the Decrees entered January 8, 2018,

involuntarily terminating her parental rights to her minor son, J.J.H. (born

January 2010), and minor daughter, J.M.H. (born February 2014) J-S12020-19 & J-S12021-19

(“Children”).1 Because the record supports the decision of the trial court, we

affirm the involuntary termination of Mother’s parental rights.2

FACTS AND PROCEDURAL HISTORY

We glean the following relevant facts and procedural history from the

certified record. In February of 2015, Luzerne County Children and Youth

Services (“CYS”) obtained emergency shelter care orders for Children placing

Children in CYS’s care due to mental health issues, substance abuse, and

domestic violence.3

Mother initially participated in services offered by CYS to promote

reunification, including parenting services; toxicology screens; mental health

services;4 and drug and alcohol evaluation and treatment. Between February

2015 and August 2016, Mother sporadically attended her mental health

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1 The court also involuntarily terminated the parental rights of Children’s father, M.H. (“Father”). Father appealed the termination decrees at Docket Nos. 308 MDA 2018 and 1723 MDA 2018, which we address in a separate memorandum.

2The Decrees themselves misstate the year as 2017, which we conclude was a ministerial error. As noted infra, we affirm the involuntary termination of Mother’s parental rights, but remand for the court to correct the year on the Decrees.

3 Father was convicted and incarcerated in connection with his repeated physical abuse of J.J.H., which included breaking J.J.H.’s femur.

4 Mother had a psychiatric evaluation done on March 30, 2015, and started therapy and medication soon thereafter. See N.T., 3/30/17, at 27.

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appointments, and “missed more appointments than she attended”. See N.T.,

3/30/17, at 30.

Although Mother lived in a couple different shelters, she was able to

move into an apartment and in October 2015, Children were returned to her

care. However, after only 11 days Children were again removed from her

care. During this short time, J.J.H. reported that Mother left the Children in

the care of her paramour, who was involved in selling illicit drugs. See id. at

63. Additionally, during an altercation between Mother and J.J.H., Mother

threw a toothbrush at J.J.H., hitting him in the head and leaving a small lump.

Id.

Mother’s participation in services then declined markedly. She admitted

to her caseworker and parenting educator in November 2015 that she was

using drugs and alcohol. In late 2015, Mother stopped attending her parenting

program so that she could “get her life put back together.” N.T., 3/30/17, at

52. Eighteen months after Children’s initial placement, CYS filed petitions to

involuntarily terminate Mother’s and Father’s parental rights to Children,

alleging that Mother failed to remedy her addiction, mental health, and

parenting issues. The court conducted six hearings on the termination

petitions over the course of seven months, beginning on March 30, 2017.5

5 Two of the hearings also included proceedings in the related dependency cases. Mother did not appeal the dependency dispositions.

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Throughout the hearings, Mother was represented by counsel.6 CYS focused

only on the grounds provided in 23 Pa.C.S. § 2511(a)(8) against Mother.

Sherri Hartman, the CYS caseworker, testified regarding, inter alia, her

contacts with Mother, Father, and Children, the services offered to Mother,

and Mother’s failure to complete or participate fully in those services. She also

testified regarding the bond Children had with Mother and with Foster Parents.

Lisa Ross, a parent educator with Concern Incorporated, testified about

her work with Mother between April 2015 and November 2015, stating that

Mother initially was very cooperative and “did really well” which allowed

Children to be returned to Mother for 11 days in October 2015. N.T., 3/30/17,

at 51. Ms. Ross also testified that she began to see Mother fall into a

“downward spiral” in November 2015, and noted that although Mother had

initially participated in drug and alcohol rehabilitation, in early November

2015, Mother acknowledged to her that that she had been drinking and using

6 The court appointed both a Guardian Ad Litem and a Child Advocate to represent Children at the termination proceedings. Although the trial court appointed a Child Advocate, this was unnecessary because there was not a conflict between the children’s best and legal interests: J.M.H., who was three years old at the time of the hearings, was too young to express a preference; J.H.H. was seven years old and expressed his preference to numerous individuals, including his therapist, his caseworker, and his guardian ad litem, to remain in his pre-adoptive home and not to see Mother anymore. Accordingly, the failure of the Child Advocate to appear at the termination hearings is immaterial because there was no conflict between Children’s legal and best interests.

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marijuana again. Ms. Ross also testified that after October 2015, Mother was

“totally withdrawn from any form of communication” with Ms. Ross, and

Mother asked to put her parenting services on hold. Id. at 62. Mother did

not begin parenting classes again until after August 2016.

Alicia Singer, a senior clinician at Community Counseling Services that

provided mental health counseling services for Mother, testified that Mother

attended scheduled counseling and psychiatric appointments sporadically.

Most importantly, Ms. Singer testified that Mother did not complete her mental

health services.

Mother testified on her own behalf regarding her participation in the

services provided by CYS, her employment during the twelve months prior to

the filing of the petition, and her living arrangements. See generally N.T.,

10/16/17, at 16-20; 10/19/17, at 12-25; and 7/10/17, at 9-53.

After the hearing on October 19, 2017, the court took the matter under

advisement. On January 8, 2018, the court issued Decrees involuntarily

terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(8) and

(b). Mother timely appealed, and simultaneously filed Concise Statements of

Errors Complained of on Appeal in accordance to Pa.R.A.P. 1925(a)(2).

Mother raises the following issues on appeal:

1. Did the trial court abuse its discretion, commit an error of law, and/or there was insufficient evidentiary support in terminating the parental rights of the natural mother of [Children], as the grounds pursuant to 23 Pa.C.S.A. § 2511(a)(8) were not established by clear and convincing evidence, and such

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granting of a petition to terminate parental rights was against the weight of the evidence presented by the parties[?]

2. Did the trial court abuse its discretion, commit an error of law, and/or there was insufficient evidentiary support for the court’s decision that the best needs and welfare of [Children] would be served by terminating natural mother’s parental rights as required by 23 Pa.C.S.A. § 2511(b)[?]

Mother’s Brief at 3 (unnecessary capitalization and suggested answers

omitted).

In reviewing cases involuntarily terminating parental rights, appellate

courts must accept the findings of fact and credibility determinations of the

trial court if the record supports them. In re T.S.M., 71 A.3d 251, 267 (Pa.

2013). “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.

(citations omitted). Where the hearing court's findings are supported by

competent evidence of record, we must affirm the hearing court even though

the record could support an opposite result. In re Adoption of Atencio, 650

A.2d 1064, 1066 (Pa. 1994).

We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. 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. Though we are not bound by the trial court's inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court's sustainable findings.

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In re M.G., 855 A.2d 68, 73–74 (Pa. Super. 2004) (citations omitted). We

defer to the trial court that often has “first-hand observations of the parties

spanning multiple hearings.” In re T.S.M., supra at 267 (citations and

quotation marks omitted). Importantly, “[t]he court cannot and will not

subordinate indefinitely a child's need for permanence and stability to a

parent's claims of progress and hope for the future. Indeed, we work under

statutory and case law that contemplates only a short period of time . . . in

which to complete the process of either reunification or adoption for a child

who has been placed in foster care.” In re Adoption of R.J.S., 901 A.2d

502, 513 (Pa. Super. 2006) (emphasis in original; citations omitted).

In addressing Petitions to Involuntarily Terminate Parental Rights, the

Adoption Act7 requires courts to conduct a bifurcated analysis. Pursuant to

Section 2511, the court first focuses on the conduct of the parent. If the party

seeking termination presents clear and convincing evidence that the parent’s

conduct meets one of the grounds for termination set forth in Section 2511(a),

then the court will analyze whether termination of parental rights will meet

the needs and welfare of the child, i.e., the best interests of the child, as

provided in Section 2511(b). 23 Pa.C.S. § 2511(a) and (b); In re L.M., 923

A.2d 505, 511 (Pa. Super. 2007). “One major aspect of the needs and welfare

analysis concerns the nature and status of the emotional bond between parent

7 23 Pa.C.S. §§ 2101-2938.

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and child, with close attention paid to the effect on the child of permanently

severing any such bond.” Id. at 511 (citations omitted).

Termination Pursuant to Section 2511(a)(8)

The trial court in the instant case concluded that CYS met the grounds

for termination set forth in 23 Pa.C.S. § 2511(a)(8). This provision provides

that a court may terminate parental rights if the agency proves with clear and

convincing evidence that “[t]he child has been removed from the care of the

parent by the court or by voluntary agreement . . . , 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. § 2511(a)(8). “Termination 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.” In re Z.P., 994 A.2d 1108, 1118 (Pa. Super. 2010)

(citations omitted). “[W]here a parent has addressed some of the conditions

that led to a child’s removal, but other conditions still exist, this element may

be deemed to be satisfied.” In re D.A.T., 91 A.3d 197, 205–06 (Pa. Super.

2014). See also In re Adoption of R.J.S., 901 A.2d at 513 (recognizing

“that the application of Section (a)(8) may seem harsh when the parent has

begun to make progress toward resolving the problems that had led to

removal of her children,” but noting “the statute implicitly recognizes that a

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child’s life cannot be held in abeyance while a parent attempts to attain the

maturity necessary to assume parenting responsibilities.”).

“A parent is required to exert a sincere and genuine effort to maintain a

parent-child relationship; the parent must use all available resources to

preserve the parental relationship and must exercise reasonable firmness in

resisting obstacles placed in the path of maintaining the parent-child

relationship.” In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citation

and internal quotation omitted). The court “may not consider any effort by

the parent to remedy the conditions described in subsection[ ](a)(8) if that

remedy was initiated after the parent was given notice that the termination

petition had been filed.” In re Z.P., 994 A.2d at 1121 (citation omitted). The

court, however, may consider post-petition efforts if the efforts were initiated

before the filing of the termination petition and continued after the petition

date. Id.

In addition, Section 2511(a)(8) explicitly requires an evaluation of the

“needs and welfare of the child,” in addition to the behavior of the parent,

prior to moving onto the Section 2511(b) analysis. In re Adoption of C.L.G.,

956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (citations omitted).

Here, Mother contends that the evidence was insufficient to terminate

her parental rights under Section 2511(a)(8) because the Agency did not

present evidence “of what the mental health concerns were nor why these

concerns prevented her from parenting her children.” Mother’s Brief at 19.

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She also avers that CYS did not establish that Mother could not properly parent

Children, and did not establish the specific parenting concerns that caused the

initial referral. Id. at 18-19.8 Mother concludes that the “trial court’s

determination . . . was against the weight of the evidence and an abuse of

discretion.” Mother’s Brief at 19.

The trial court in this case explained its determination that CYS met its

burden of proof with respect to Section 2511(a)(8), in part, as follows:

The [c]ourt . . . concludes that Mother failed to derive any benefit from services offered to her for her mental health issues and parenting issues. The [c]ourt finds Mother’s mental health issues and parenting issues were not remedied by Mother since the initial date of placement. Although Mother attempted to seek treatment to address her mental health issues and parenting issues, Mother failed to complete the services. Furthermore, the court finds that Mother’s relationship with J.J.H. did not serve his best interest. J.J.H. was undergoing trauma therapy and Mother exacerbated the situation by advising J.J.H. to do “bad things” so that he could return home faster. This certainly makes the court question Mother’s stability, parenting ability, and mental state in light of Mother failing to appreciate J.J.H.’s undergoing trauma therapy and not recognizing that her advice to do “bad things” only made the child regress in his behavior. Therefore, the court finds that the conditions of 1) Mother’s mental health issues and

8 Mother also contends that the trial court should have permitted testimony regarding the post-petition efforts Mother made at parent training because she had started the program prior to the filing of the termination petition. Mother’s Brief at 19. Although the court noted that it would not allow testimony from Ms. Ross on the efforts Mother made after the Petition was filed, Mother herself testified about her post-petition actions. She testified that, although she stopped attending parenting classes December 2015, she tried to restart her classes but was unable to do so until August 2016. She also testified that she finished the parent training services in June 2017. N.T., 7/10/17, at 50.

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2) Mother’s parenting ability (including those which gave rise to placement) continue to exist.

Trial Court Opinion, 3/8/18, at 14-15 (emphasis added).

Contrary to Mother’s arguments, the record supports the trial court’s

conclusion that CYS met its burden of proof with respect to Section

2511(a)(8). Mother concedes that Children had been removed from her care

for at least twelve months. See Mother’s Brief at 13. In addition, the trial

court found credible the evidence showing that conditions that led to the

removal or placement of Children still existed when CYS filed the petition, and

weighed the testimony and analyzed Children’s needs to reach its conclusion

that termination of Mother’s parental rights would best serve the needs and

welfare of Children.

Mother’s argument that CYS did not establish what her mental health

diagnosis was or how it related to the removal of Children does not change

the fact that she did not finish the services she acknowledged were necessary

in order to regain custody of her children. The trial court adjudicated Children

dependent as a result of, inter alia, Mother’s mental health and parenting

issues. The record supports the trial court’s finding that Mother did not attend

mental health treatment as often as the mental health specialists

recommended and that Mother stopped attending parenting classes. It was,

thus, reasonable for the trial court to conclude that Mother did not significantly

address her mental health and parenting issues and, thus, the conditions that

led to Children’s removal still existed. See Section 2511(a)(8).

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Additionally, as discussed in more detail below, the record supports the

trial court’s determination that terminating Mother’s parental rights would best

serve the needs and welfare of Children.9 Accordingly, the court did not err

or abuse its discretion in concluding that CYS had established grounds for

termination under Section 2511(a)(8).

Termination pursuant to Section 2511(b)

With respect to Section 2511(b), we consider whether termination of

parental rights will best serve Children’s developmental, physical, and

emotional needs and welfare. See In re Z.P., 994 A.2d at 1121. “In this

context, the court must take into account whether a bond exists between child

and parent, and whether termination would destroy an existing, necessary

and beneficial relationship.” Id. “[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 847, 856 (Pa. Super. 2004) (internal

citations omitted).

It is sufficient for the trial court to rely on the opinions of social workers

and caseworkers when evaluating the impact that termination of parental

9 We discuss the trial court’s needs and welfare analysis conducted pursuant to Section 2511(a)(8) in conjunction with our review of Section 2511(b).

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rights will have on a child. In re Z.P., supra at 1121. The trial court may

consider intangibles, such as the love, comfort, security, and stability the child

might have with the foster parent. See In re N.A.M., 33 A.3d 95, 103 (Pa.

Super. 2011). Ultimately, the concern is the needs and welfare of a child. In

re Z.P., supra at 1121.

In this case, Mother argues that the evidence presented by CYS

consisted “merely of statements of the caseworker,” and faults the trial court

for focusing on the failure of Mother to remedy the conditions that led to

placement, as well as on the fact that Foster Parents and Children have a

strong bond and the Foster Parents meet the daily physical, emotional, and

medical needs of Children. Mother’s Brief at 21.10 Mother does not cite to

the Notes of Testimony, and completely ignores evidence presented by the

witnesses other than Ms. Hartman.

10 Mother also contends that the trial court failed to consider “how the best needs and welfare of the child could be met if the child were permitted to relocate with the [n]atural [m]other and how this could positively affect minor child J.J.H.’s mental health treatment.” Mother’s Brief at 21, 23. Mother’s Brief does not provide any citation to the record for her contention that she anticipated moving, let alone how it would impact J.J.H.’s therapy, and our review of the record failed to disclose any such testimony. Due to Mother’s failure to provide a citation for the factual basis of this assertion, she has waived this argument. See Pa.R.A.P. 2119(c); see also J.J. Deluca Co. v. Toll Naval Assocs., 56 A.3d 402, 413 (Pa. Super. 2012) (reiterating that a failure to present any record citation to support a claim results in waiver). Additionally, this contention is purely speculative. Since Mother failed to address her mental health issues while Children were in care, she was unable to care for them and the trial court would not permit Children to “relocate” with Mother.

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As the trial court observed, “[CYS] presented credible testimony

regarding the needs, welfare and best interest of [Children] in relation to their

Mother[.]” Trial Ct. Op., 3/8/18, at 16-18 (detailing the relevant testimony

presented at the hearings). The court emphasized Ms. Hartman’s testimony,

noting that she identified a bond between Mother and J.M.H., but it was more

in the nature of a “play date” bond. Id. at 17. The court also placed great

weight on Ms. Hartman’s testimony that although there is a bond between

J.J.H. and Mother, J.J.H. has a lot of anger towards Mother for not completing

her services and requested that his visits with Mother be terminated. Id. at

17-18.

The court also noted that CYS presented evidence that Children are

thriving in their pre-adoptive foster home, where they have a very strong bond

akin to a parent/child bond with the Foster Parents, and both children go to

the Foster Parents for their needs, affection, comfort and love. Id., citing

Notes of Testimony. The court observed that Children have been in placement

since February 9, 2015, “a reasonable time of 18 months has long expired to

remedy parental incapacity, and there is little rational prospect of the timely

reunification of J.J.H. and J.M.H. and their mother.” Id. at 20. Finally, the

court agreed with Ms. Hartman’s assessment that Children would “positively

benefit” from the termination of Mother’s parental rights. Id., at 17-18.

Our review of the record supports the trial court’s determination and we

discern no abuse of discretion or error of law. We, thus, affirm the court’s

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determination that involuntarily termination of Mother’s parental rights is in

the best interests of Children.

Decrees affirmed. Cases remanded for the ministerial correction of the

year of the Decrees from 2017 to 2018. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/15/2019

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