J-S39004-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.B., MOTHER : : : : : No. 623 WDA 2024
Appeal from the Order Entered May 13, 2024 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000079-2023
IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.B., MOTHER : : : : : No. 624 WDA 2024
Appeal from the Order Entered May 13, 2024 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000078-2023
IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.B., MOTHER : : : : : No. 625 WDA 2024
Appeal from the Order Entered May 13, 2024 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000077-2023
IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA J-S39004-24
: : APPEAL OF: K.B., MOTHER : : : : : No. 626 WDA 2024
Appeal from the Order Entered May 13, 2024 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): CP-02-AP-0000076-2023
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED: January 8, 2025
Appellant, K.B. (“Mother”), appeals from the May 13, 2024 order
entered in the Allegheny Court of Common Pleas that terminated her parental
rights to ten-year-old K.X.B, seven-year-old K.T.B., and three-year-old twins
K.M.B. and K.J.B (collectively, “Children”).1 Upon review, we affirm.
The Allegheny County of Children, Youth and Families (the “Agency”)
has been involved with this family since May of 2017 due to Mother’s ongoing
issues with drug and alcohol abuse. K.X.B. has been removed from Mother’s
care twice; most recently K.X.B. and K.T.B. (collectively, “Older Children”)
were adjudicated dependent in December of 2019. Older Children are
currently placed in a pre-adoptive foster home, where they have been since
February of 2022. K.M.B. and K.J.B. (collectively, “Twins”) were adjudicated
dependent in April of 2021, but remained in Mother’s care. On November 25,
2021, the Agency removed Twins from Mother’s care after she overdosed on ____________________________________________
1 The trial court also terminated the parental rights of Children’s respective
fathers. None of the fathers are a party to this appeal.
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narcotics. The Agency placed Twins in pre-adoptive kinship care with their
maternal aunt (“Maternal Aunt”).
The court ordered Mother to maintain sobriety, obtain and maintain
stable housing, participate in intimate partner violence (“IPV”) counseling,
participate in recommended mental health treatment, and visit with Children.
Mother has failed to maintain sobriety. The Agency made several
referrals for Mother to receive drug and alcohol treatment. In the summer of
2020, Mother completed inpatient drug and alcohol treatment at POWER and
moved to transitional housing where she attended outpatient treatment. In
August of 2022, Mother completed a thirty-day drug and alcohol program
through White Deer Run. In May of 2023, a month after the Agency filed
petitions to terminate her parental rights, Mother entered inpatient drug and
alcohol treatment at POWER and subsequently transitioned to a halfway
house. Mother left treatment in September 2023. In December of 2023,
Mother completed an assessment with POWER on December 21, 2023, and
was referred to POWER New Day for drug and alcohol treatment. Mother
accepted the referral but did not complete the program. Throughout the life
of the case, the court required Mother to complete random urine screens;
Mother participated in only 37 of 102 scheduled drug screens.
Mother declined to complete IPV counseling. The Agency made a
referral to the Women’s Center and Shelter for treatment on April 21, 2020,
but Mother informed the Agency that she did not need IPV counseling, despite
previously filing a protection from abuse petition against Twins’ father.
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Mother also failed to complete mental health treatment. However,
Mother did participate in parenting capacity and bonding evaluations with
Patricia Pepe, Ph.D.
In addition, Mother lacks appropriate housing. Mother became
homeless in June of 2022 and the Agency referred her to Aria, a program that
provides services to clients on the condition that they participate in drug and
alcohol treatment. Mother entered a drug and alcohol treatment program in
May of 2023, but left the program four months later prior to completion. The
Agency had contact with Mother in December of 2023, and she reported that
she was still homeless. The Agency made an additional referral to Aria at that
time.
Finally, Mother inconsistently visits with Children. Mother is offered
weekly supervised visitation with Children. A Second Chance supervises the
visits with Older Children and has offered Mother a total of 96 visits throughout
the life of the case, but Mother has only attended 22 visits with Older Children.
The Agency supervises visitation between Mother and Twins and agreed to
transport Twins to wherever Mother was located. The Agency scheduled 55
visits and Mother only attended 20 visits with Twins. Mother has not attended
visits with Children since December 31, 2023.
On April 3, 2023, the Agency filed petitions to terminate Mother’s
parental rights to Children. The trial court appointed Leah Cox, Esq., to serve
as legal counsel for Children. On April 26, 2024, the court held a hearing on
the petitions. The Agency presented testimony from Grant Walker, an Agency
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caseworker, as well as Dr. Pepe, who testified as an expert in forensic
psychology. Mother failed to appear at the hearing.
The Agency’s witnesses testified in accordance with the above-stated
facts. In addition, Mr. Walker testified that the Agency provided
transportation assistance to Mother throughout the life of the case, including
giving her a public transportation pass, access to ride share services, and gas
gift cards. Mr. Walker further testified that Mother only attended a couple of
Children’s medical appointments.
Mr. Walker testified that Older Children have been placed in a pre-
adoptive foster home since February of 2022 and are both “happy, healthy,
pretty bonded with their foster parents.” N.T. Hearing, 4/26/24, at 20. He
explained that Older Children participate in Cub Scouts, soccer, and trips with
their foster parents. Mr. Walker informed the court that Older Children receive
school-based counseling through their school and that the foster parents meet
all of Older Children’s needs. Mr. Walker testified that Older Children have
been placed since July of 2019, or almost five years at the time of the hearing.
Mr. Walker informed the court that Twins are still placed in a pre-
adoptive kinship care home with Maternal Aunt. Mr. Walker testified that
Twins are happy and healthy, and that they are both involved in gymnastics
and swimming. He explained that they receive early intervention services,
including speech and developmental services. Mr. Walker testified that
adoption is the appropriate permanency goal for Twins. He further testified
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that Twins have been placed since November of 2021, or almost two-and-a-
half years at the time of the hearing.
Finally, Mr. Walker testified that the Agency is recommending a
termination of mother’s parental rights to Children.
Dr. Pepe testified that she completed multiple evaluations of the family
and issued four separate reports throughout the life of the case. Dr. Pepe
testified that the first evaluation was conducted from March to October of
2021. At the time, Older Children were placed with their maternal
grandmother, but Twins were still living with Mother. Dr. Pepe testified that,
at the time, Mother was making an attempt to change her lifestyle and
recommended that Mother maintain sobriety and that Twins remain in her
care.
Dr. Pepe’s second report is dated April 14, 2023. Dr. Pepe testified that,
at that time, Mother was inconsistent with visits, had recently relapsed, was
unemployed, was homeless, and had pending criminal charges. Dr. Pepe
recommended that Mother participate in an intensive dual diagnosis treatment
program. Dr. Pepe testified that Mother “did not present an ability to parent
[C]hildren at that time.” Id. at 42. Dr. Pepe further testified that Older
Children did not view Mother as a “psychological parent” due to inconsistent
contact. Id. Dr. Pepe explained that a “psychological parent” is “an individual
that a child perceives as being able to meet their daily needs, somebody that’s
dependable, somebody that’s available, somebody that would be readily
caring towards the child, and someone that the child feels safe with. . . . So
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it’s basically who the child appears to view as their primary parent, the primary
individual who is caring for them.” Id. at 42-43. Dr. Pepe explained that
Mother continued to struggle with housing, drug treatment, legal issues, and
“all of those issues interferes with her ability to parent.” Id. at 44. Dr. Pepe
informed the court that Children were making “primary attachments to their
respective caregivers[.]” Id.
Dr. Pepe testified regarding her August 15, 2023 report. She stated
that, at that time, Twins “continued to exhibit multiple bonding behaviors
suggestive of a primary attachment” to Maternal Aunt and “I would be
concerned if [T]wins were removed from her care, that they could experience
developmental and psychological and behavioral regression.” Id. at 45. Dr.
Pepe further testified that Older Children likewise “exhibited a primary
attachment towards their foster parents.” Id. at 46. Dr. Pepe explained that
a “primary attachment” is “who the child perceives, for example, as a
psychological parent, and who they feel a strong connection with, to the point
that their sense of identity is very much involved with their bonding towards
a primary parent figure.” Id. at 47.
Finally, Dr. Pepe testified regarding her most recent April 25, 2024
report. Dr. Pepe testified that Twins refer to Maternal Aunt as “mommy” and
“exhibited a primary attachment towards her.” Id. at 47. Dr. Pepe testified
that Older Children “are really exceptional little boys” who “are so pleasant
and friendly and polite and are so very engaging.” Id. at 48. Dr. Pepe further
testified that Older Children “said they were very happy in their home and that
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the foster parents take better care of them, including feeding them
vegetables, and so the [Older C]hildren were very happy.” Id.
With regards to Mother’s ability to parent, Dr. Pepe testified:
I have always felt that [Mother] has had the ability to succeed. She certainly is knowledgeable, but she continues to sabotage herself over and over again. She’s not able to maintain housing, she’s not able to maintain sobriety for a significant period of time, and she often has criminal issues that she’s dealing with, and I unfortunately believe because of her own personal instability, I don’t see her as being able to viably be able to provide a home for [C]hildren, and at this point [C]hildren’s primary attachment has changed to their current caregivers.
Id. at 49-50.
Dr. Pepe opined that there would not be a negative impact on Children
if Mother’s parental rights were terminated. Dr. Pepe explained that Older
Children “have learned – they don’t rely on [Mother] anymore” and Twins have
been living with Maternal Aunt for most of their lives. Id. at 50. Finally, Dr.
Pepe testified that it would be “to the Children’s benefit for them to remain
permanently in their respective homes through adoption.” Id. at 51.
On May 13, 2024, the trial court terminated Mother’s parental rights to
Children pursuant to 23 Pa.C.S. §§ 2511(a)(1), (2), (5), (8), and (b). Mother
timely appealed. Mother and the trial court complied with Pa.R.A.P. 1925.
Mother raises the following issues for our review:
1. Did the trial court abuse its discretion an/or err as a matter of law in granting the petition to involuntarily terminate Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8)?
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2. Did the trial court abuse its discretion and/or err as a matter of law in concluding that [the Agency] 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 [Children] pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Br. at 12.
In cases involving the involuntary termination of parental rights, this
Court’s review is limited to determining whether the trial court’s conclusion is
supported by competent evidence. In re Adoption of L.A.K., 265 A.3d 580,
591 (Pa. 2021). When we review a trial court’s decision to grant or deny a
petition to involuntarily terminate parental rights, we 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. (citation omitted). “Absent an abuse
of discretion, an error of law, or insufficient evidentiary support for the trial
court’s decision, the decree must stand.” In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009) (citation omitted). We may not reverse merely because
the record could support a different result. T.S.M., 71 A.3d at 267. We give
great deference to the trial courts “that often have first-hand observations of
the parties spanning multiple hearings.” Id. Moreover, “[t]he 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
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evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation
omitted).
It is axiomatic that “[p]arents enjoy a fundamental right to make
decisions regarding the care, custody and control of their children. It cannot
be denied that significant and permanent consequences for both the parent
and child can follow the termination of parental rights, as there is an
undeniable importance in a child’s relationship with a biological parent.”
L.A.K., 265 A.3d at 591 (internal citations omitted). Accordingly, “[i]n
recognition of the gravity attendant to the termination of parental rights, the
moving party must establish the statutory grounds by clear and convincing
evidence; that is, evidence that is so clear, direct, weighty and convincing as
to enable a trier of fact to come to a clear conviction, without hesitance, of
the truth of the precise facts in issue.” Id. at 592 (citations and quotation
marks omitted).
Section 2511 of the Adoption Act, 23 Pa.C.S. § 2511, governs
termination of parental rights, and requires a bifurcated analysis. In re
Adoption of A.C., 162 A.3d 1123, 1128 (Pa. Super. 2017). “Initially, the
focus is on the conduct of the parent.” Id. (citation omitted). As discussed
above, “[t]he 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).” Id. (citation omitted). If the
court determines that the parent’s conduct warrants termination of his or her
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parental rights, the court then engages 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.” Id. (citation omitted).
Notably, we need only agree with the court’s decision as to any one subsection
of Section 2511(a), as well as Section 2511(b), to affirm the termination of
parental rights. In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008). With
regards to Mother, we concentrate our analysis on Section 2511(a)(2).
Section 2511(a)(2) provides for termination of parental rights where the
petitioner demonstrates by clear and convincing evidence that “[t]he 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 his physical 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. § 2511(a)(2); In re Adoption of S.P., 47 A.3d 817,
827 (Pa. 2012). The grounds for termination of parental rights under Section
2511(a)(2) due to parental incapacity are not limited to affirmative
misconduct; those grounds may also include “acts of refusal as well as
incapacity to perform parental duties.” In re N.A.M., 33 A.3d 95, 100 (Pa.
Super. 2011). “Parents are required to make diligent efforts toward the
reasonably prompt assumption of full parental duties.” In re C.M.K., 203
A.3d 258, 262 (Pa. Super. 2019). Notably, a “parent’s vow to cooperate, after
a long period of uncooperativeness regarding the necessity or availability of
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services, may properly be rejected as untimely or disingenuous.” In re Z.P.,
994 A.2d 1108, 1118 (Pa. Super. 2010) (citation omitted).
Finally, sincere efforts to perform parental duties may still be insufficient
to remedy an incapacity. Id. at 1117. This is because subsection (a)(2)
“emphasizes the child’s present and future need for essential parental care,
control or subsistence necessary for his physical or mental well-being[,]”
especially “where disruption of the family has already occurred and there is
no reasonable prospect for reuniting it.” Id. (citation omitted).
In her first issue, Mother avers that the Agency failed to present clear
and convincing evidence to terminate her parental rights pursuant to Section
2511(a)(2). Mother argues that she “successfully complet[ed]” various drug
and alcohol programs with POWER and White Deer Run, received mental
health treatment at POWER, maintained her sobriety, and demonstrated her
ability to provide essential parental care to Children through positive
interactions with them during visitation. Mother’s Br. at 25-26. Mother’s
arguments merit no relief.
Mother mischaracterizes her accomplishments. While Mother may have
completed inpatient drug and alcohol programs at POWER and White Deer
Run, she failed to maintain her sobriety upon discharge as evidenced by her
minimal compliance with random drug and alcohol screens throughout the life
of the case, as well as multiple relapses precipitating the need for the Agency
to continue to make numerous referrals for Mother to receive drug and alcohol
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treatment. The record reveals that the most recent referral occurred in
December of 2023, and Mother failed to re-enter treatment.
Moreover, the Agency presented evidence that Mother failed to complete
mental health treatment, obtain appropriate housing, or attend court-ordered
IPV counseling. Most concerning is Mother’s inconsistent visitation with
Children. The undisputed evidence demonstrated that Mother attended less
than half of the visits with Children that were offered to her and has failed to
visit with Children entirely since December of 2023. Finally, the Agency
presented expert testimony from Dr. Pepe that Mother did not have the ability
to parent Children. N.T. Hearing at 42.
Considering all of the evidence, and applying the legal principles
discussed above, the trial court found that Mother was incapable of completing
her court-ordered goals rendering her unable to parent, and that her
continued incapacity has caused Children to be without essential parental
care, control or subsistence necessary for their physical or mental well-being.
The court opined:
In the case before us, the issue is less that Mother refused to meet her goals, and more that she struggled to complete them over the life of this case. Her incapacity to complete her court-ordered goals did not support the goal of reunification nor did it show that she had a commitment to her children. She expressed to both the psychologist and the caseworker that she had a willingness to improve. However, no amount of improvement matters if a parent cannot achieve the capacity to adequately parent their children. This insufficiency is viewed in the same light as a refusal or, in this case, failure to provide essential parental care because a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.
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Trial Ct. Op., dated 6/27/24, at 17 (unpaginated).
Our review of the record supports the trial court’s findings. We decline
to reweigh the evidence or usurp the trial court’s credibility determinations.
Accordingly, we discern no abuse of discretion in the trial court’s decision to
terminate Mother’s parental rights pursuant to Section 2511(a)(2).
With respect to Section 2511(b), our analysis focuses on the effect that
terminating the parental bond will have on the child. This Court reviews
“whether termination of parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child.” In re Adoption of
J.M., 991 A.2d 321, 324 (Pa. Super. 2010). It is well settled that
“[i]ntangibles such as love, comfort, security, and stability are involved in the
inquiry into needs and welfare of the child.” In re C.M.S., 884 A.2d 1284,
1287 (Pa. Super. 2005).
“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 Adoption of N.N.H., 197 A.3d 777, 783 (Pa Super. 2018)
(citation omitted). The fact that a child has a bond with a parent does not
preclude the termination of parental rights. In re A.D., 93 A.3d 888, 897
(Pa. Super. 2014). Rather, the trial court must examine the depth of the bond
to determine whether the bond is so meaningful to the child that its
termination would destroy an existing, necessary, and beneficial relationship.
Id. at 898. Moreover, the trial court may consider intangibles, such as the
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love, comfort, security, and stability the child might have with the adoptive
resource. In re N.A.M., 33 A.3d at 103. Ultimately, the concern is the needs
and welfare of the child. Z.P., 994 A.2d at 1121.
Mother avers that the trial court abused its discretion when it terminated
her parental rights pursuant to Section 2511(b). Mother’s Br. at 27. Mother
argues that Dr. Pepe testified that she observed positive interactions between
Mother and Children and that Older Children had a positive attachment to
Mother. Id. at 28. Mother further argues that she loves Children and that a
termination of her parental rights is not in Children’s best interest. Id. at 29.
Upon review, the trial court did not abuse its discretion when it found
that the Agency presented clear and convincing evidence to terminate
Mother’s parental rights pursuant to Section 2511(b). Mr. Walker testified
that Children are doing very well in their respective pre-adoptive foster and
kinship homes and that adoption was the appropriate permanency goal for
Children. Moreover, Dr. Pepe provided undisputed expert testimony that
Children exhibited a “primary attachment” to their current caretakers, that
Children would not suffer irreparable emotional harm if Mother’s parental
rights were terminated, and that Children would “benefit” from adoption. N.T.
Hearing at 50-51. As the record supports the trial court’s findings that a
termination of parental rights is in Children’s best interest, we discern no
abuse of discretion.
Orders affirmed.
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DATE: 1/8/2025
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