J-S34016-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF D.D.K., A MINOR : PENNSYLVANIA : : :: APPEAL OF: M.L., MOTHER : No. 479 WDA 2024
Appeal from the Order Entered March 27, 2024 In the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): CP-02-AP-0000082-2023
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED: December 3, 2024
M.L. (“Mother”) appeals from the order imposed terminating her
parental rights to her child, D.D.K. (“Child”). We affirm.
Child was born in December 2020 to Mother and R.K. (“Father”)
(collectively, “Parents”). Parents were not married but lived together. We
glean the following factual history from the petition for involuntary termination
of parental rights, filed by the Allegheny County Children, Youth, and Families
agency (“CYF”), as well as the notes of testimony of the termination hearing.
In December 2019 — one year before Child was born —CYF became
involved with this family after Child’s older brother, L.,1 presented at the
hospital “with head swelling,” later found to be “bilateral subdural hematomas
caused by ‘violent shaking.’” CYF’s Petition for Involuntary Termination of
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* Former Justice specially assigned to the Superior Court.
1 The record does not indicate L.’s last name. J-S34016-24
Parental Rights, 4/4/23 (“Termination Petition”), at unnumbered 3. Neither
Mother nor Father “were able to provide an explanation for [L.’s] injuries,”
and a subsequent “Childline investigation . . . report was indicated as to an
unknown perpetrator[, since both Parents] and various adult family members
were all present at the time of the . . . injuries.” Id. Mother was charged
with endangering the welfare of a child (“EWOC”), but subsequently pleaded
guilty to disorderly conduct.2 L. was removed from Parents’ care and
adjudicated dependent. A half-brother, M.B., “was interviewed” and was not
removed from Parents’ care at this time. N.T., 3/15/24, at 118; see also
Termination Petition at 3.
As stated above, Child was born in December 2020. Due to concerns
regarding L.’s injury, CYF obtained an order for emergency protective custody,
and Child was placed with his maternal aunt and uncle when he was two days
old. See N.T., 3/15/24, at 6, 11. At a shelter care hearing, “[M]other was
ordered to attend mental health treatment, medication management, sign
[releases of information], and participate in in-home services.” Id. at 11.
On February 2, 2021 — when Child was six weeks old — the trial court
adjudicated him dependent and ordered his return to Parents’ care, “with crisis
in-home services.” Trial Court Opinion, 4/5/24, at 3. However, two and one-
half months later, in April 2021, Mother brought Child to the emergency room
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2 The record does not indicate what sentence, if any, Mother received.
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with a broken arm; she “was not present when that injury occurred.” N.T.,
3/15/24, at 79. “Father reported that he was doing physical therapy with
[C]hild and felt his arm . . . pop [sic] a little bit.” Id. However, “[i]t was
determined at the hospital that [this explanation] was not consistent with the
nature of the injury.” Id. For this incident, Father pleaded guilty to EWOC
and received a sentence of two years’ probation. Trial Court Opinion, 4/5/24,
at 3.
CYF obtained a second emergency order for protective custody, and on
April 15, 2021, took legal custody of Child and his half-brother M.B. Child was
initially placed with his maternal aunt and uncle. One month later, Child was
placed with a foster parent, M.W. (“Foster Mother”), where he has remained.3
On April 4, 2023, CYF filed the underlying petition to terminate both
Parents’ parental rights. At this time, Child was two years and three months
old and had been removed from Parents’ care for two years. Subsequently,
Father consented to the termination of his rights. On March 15, 2024, the
trial court conducted a termination hearing as to Mother.
CYF Caseworker Sprague testified to the following. He has been
involved with this family since December 2019, when L. suffered his injury.
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3 CYF Caseworker David Sprague (“Caseworker Sprague”) testified that “there
was some conflict between the aunt and [Mother, Mother] made some allegations[,] and [the] aunt said she could[ not] keep [Child] anymore.” N.T., 3/15/24, at 91. Initially, M.B. also lived with Foster Mother, but he was subsequently placed elsewhere due to issues between him and Child and another child in the home. See id. at 42.
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When Child was removed from Parents’ care for the second time, in April 2021,
Mother’s family plan goals were to continue mental health treatment and
medication management, complete a parenting program, have supervised
visitation, and have “coached visitation.” N.T., 3/15/24, at 79-80. CYF
implemented the “Homebuilders” program — “a very intensive,” thirty-day,
in-home services program, aimed to “get the family . . . set up” for Child’s
return home. Id. at 80, 104. Mother successfully completed this program.
See id. at 80-81. There were fourteen “family plan” meetings with CYF, held
every three or six months, and Mother attended all of them.4 Id. at 80.
Subsequently, CYF added the goals of complying with alcohol and drug
treatment, and obtaining stable housing and employment. We review in detail
the evidence presented with respect to each goal.
First, with respect to mental health treatment, James Mercuri
(“Mercuri”), a clinical social worker with St. Margaret’s Family Health Center,
testified to the following. He began treating Mother’s mental health in 2016,
and currently met with her every other week. “There have been periods of
time where [Mother] kept those appointments and periods of time where she
. . . lapsed from treatment, but she has always . . . reached out to reengage.”
N.T., 3/15/24, at 174-75. Mother is “sometimes” on time for her
appointments, and they have had to reschedule “about half of the time.” Id.
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4 Caseworker Sprague noted that Mother missed the family plan meeting held
the day after Child was born. See N.T., 3/15/24, at 80.
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at 181. In “recent years, [Mother] has been facing the obstacles of parenting
and retaining the right to parent her child.” Id. at 175. Their current specific
goals were to work on “housing, employment, relationships[,] and treatment
for depression and mood stability.” Id. at 176. Mother’s primary care
physician prescribed her psychiatric medication for “depressive symptoms,”
which gave stability when she took them.5 Id. at 177. However, Mother told
Mercuri that she stopped taking the medication in July 2023 “because she did
not like the side effects.” Id. at 177, 186. Mercuri believed this has not
impacted Mother’s progress. Id. at 177. Nevertheless, Mercuri understood
that Mother was using marijuana in place of medication, but he could not
“recommend that . . . is an approved treatment,” as it is neither medical care
nor psychiatric treatment. Id. at 186.
With respect to alcohol and drug abuse, Caseworker Sprague testified
that initially, there were no concerns, but in July 2023, Mother reported “she
had been drinking continually while she was with [F]ather” but “had been
sober for [thirty] days.” N.T., 3/15/24, at 83. CYF thus referred Mother to
POWER New Day (“Power”), a treatment program, but Mother did not
complete the program.
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5 Mercuri and Mother’s primary care physician were partners in the same practice. See N.T., 3/15/24, at 173-74. The notes of testimony do not indicate what the prescribed medications were. See id. at 194 (Mother stating she did not remember the names of her medication).
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Rachel Wagner, who worked for Power, testified to the following. Power
first received a referral for Mother in August 2023. Mother: underwent a drug
screen, which “indicated no use;” completed a phone screening; was
diagnosed with “alcohol use order, moderate;”6 and was recommended for
outpatient care. N.T., 3/15/24, at 24. Mother “accepted” this assessment,
but “missed two appointments due to transportation, and then Power had to
close the referral due to staffing issues.” Id. at 24-26. Power then received
a second referral for Mother in December 2023.7 Mother again completed a
phone screen, but cancelled her subsequent appointment and did not respond
to attempts to reschedule. Power thus closed this referral in February 2024.
In March 2024 — nine days before the termination hearing — Mother
completed a third screen, which resulted in an updated alcohol use order
diagnoses of “moderate in early remission,” as well as a new diagnosis of
“cannabis use disorder, mild.” Id. at 29. Meanwhile, the trial court ordered
Mother to submit to drug screens beginning in 2024. See id. at 84. Out of
ten screens, Mother attended only one, which resulted in a positive test for
marijuana.
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6 The three levels of an alcohol or substance use disorder diagnosis are “mild,
moderate, and severe.” N.T., 3/15/24, at 27.
7 We note this referral, as well as Mother’s subsequent March 2024 referral,
arose after CYF filed the termination petition.
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With respect to housing, intimate partner violence (“IPV”), and
employment, Caseworker Sprague testified to the following. When Child was
born, Mother and Father were living in housing obtained with the assistance
of in-home services. See N.T., 3/15/24, at 92. At the time of Child’s injury
and removal from Parents’ care, Mother told a CYF caseworker that she did
not believe Father caused his broken arm. See id. at 121-22. Shortly
thereafter, Parents moved into the “the paternal grandfather’s home.”8 Id.
at 92. The trial court summarized:
In November of 2022, Mother reported to CYF that Father had hit her. Mother chose not to file a [Protection from Abuse petition.9] Mother was referred to the Women’s Center and Shelter for [intimate partner violence (“IPV”)] treatment. . . . Mother was forced to leave [the paternal grandfather’s home in April 2023 and] moved around quite a bit, living with different friends for short periods of time.
Trial Court Opinion, 4/5/24, at 5. Mother completed the program at the
Women’s Center and Shelter in September 2023. See N.T., 3/15/24, at 102.
Mother also worked with the “Non-Offenders program,” which Caseworker
Sprague believed was invovled “where there [is] concern about criminal
charges for a [romantic or intimate] partner.” Id. at 111.
In December 2023 or January 2024, Mother moved into a one-room
rental with her boyfriend, M.S. See N.T., 3/15/24, at 87-88. In February
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8 The record does not specify whether this relative was Child’s paternal grandfather.
9 See 23 Pa.C.S.A. § 6101-6122 (Protection from Abuse Act).
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22024, CYF assessed this room, which had a bathroom and sink but a
communal shower with others, and found it was not ideal for raising Child.
See id. at 88-89. Mother “had brief periods of employment at McDonald’s[
and] another restaurant at different times, but for most of [this] case, she has
not been employed.” Id. at 89.
Wayne Wilson (“Wilson”), an in-home specialist with Family
Reunification Services, testified to the following. With regard to housing and
employment, he began working with Mother in May 2023, visiting her at her
home “[a]t least one to two times a week.” N.T., 3/15/24, at 138-39. Mother
was not able to obtain stable housing, and she had “a couple of days[’]”
employment at McDonald’s in July 2023 before “she decided to leave.” Id. at
140, 143. In October 2023, Family Reunification Services closed Mother’s
case “[d]ue to inconsistent participation and [an inability to] connect with
her.” Id. at 140. Mother changed her telephone number “at least three, four
times,” and Wilson could not contact her. Id. at 142.
Caseworker Sprague similarly testified that for a one month period,
around October 2023, Mother changed her phone number due to issues with
Father. See N.T., 3/15/24, at 93. However, Mother generally maintained
contact with CYF. Caseworker Sprague acknowledged that Mother had been
engaged in long-term mental health treatment “throughout the history of
[this] case,” and “for the most part, . . . was complaint with in-home”
services.” Id. at 82, 98. However, Caseworker Sprague testified that “the
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underlying issues of the instability for herself continue to” exist. Id. at 98.
Mother has not had stable employment or housing and was not able to support
herself. See id.
With respect to parenting classes and visitation, Caseworker Sprague
testified to the following. “[P]arenting was first addressed through in-home
services.” N.T., 3/15/24, at 81. When Child was removed from Parents’ care
the second time and placed with his aunt and uncle, Mother was scheduled to
have twice weekly visits with Child, supervised by the aunt and uncle. See
N.T., 3/15/24, at 91. Although CYF provided Mother was “gas cards,” these
“visits did not occur on a consistent basis.” Id.
From January to March 2022, Mother attended “A Child’s Place healthy
parenting program,” and successfully completed it. N.T., 3/15/24, at 81.
Meanwhile, in the fall of 2021, CYF referred Mother to Holy Family
Institute for a “supervised coached visitation program[],” but she was
discharged in September 2022 for missing five visits within a thirty-day
period. N.T., 3/15/24, at 81. Fauna Allen (“Allen”), of Holy Family Institute,
testified that weekly “coached visitation” with Child, for both Parents, began
in October 2021. Id. at 128. For the remaining three months of that year,
Mother attended seven visits but missed six visits. See id. at 129. Allen
reported the following attendance for 2022: (1) in January, Mother missed
two out of four visits; (2) in February — she missed three out of four visits;
(3) in March — she missed four out of five visits; (4) in April — she missed
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two out of four visits; (5) in May — she missed three out of five visits; (6) in
June — she missed two out of four visits; (7) in July — she missed three out
of four visits; (8) in August — she missed two out of five visits; and (9) in
September — she missed all three visits. See id. At this point, Mother
reached “the maximum number of missed visits in a [thirty]-day period,” and
thus Holy Family Institute “unsuccessfully” discharged her. Id. at 129-30. In
sum, Holy Family Institute offered fifty-one coached visits with Child, and
Mother attended twenty-one. See id. at 134. Mother and Father “cancel[l]ed
for a variety of reasons,” including transportation and illness. Id.
Caseworker Sprague further testified that after Child was placed with
Foster Mother, Wesley Family Services (“Wesley”) began supervising visits.”
See N.T., 3/15/24, at 91. These visits were generally held at Wesley’s facility,
although in the fall of 2022, some visits were held at Parents’ home, and later
at the paternal grandfather’s home, when they moved there. See id. at 91-
92. CYF provided Mother with bus passes, gas cards, and once, an Uber gift
card for her to attend. See id. at 92-93.
Christie Ross (“Ross”), the foster care program supervisor at Wesley,
testified to the following. Beginning in October 2022, Wesley supervised two
hour-visits, twice a week. Parents did not attend all the visits together.
Generally, the visits went “pretty well,” there was affection, and Mother was
“engaging.” N.T., 3/15/24, at 151. However, Mother’s attendance was
inconsistent. See id. at 152. From October 2022 through May 2023, Mother
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cancelled twelve visits, citing illness and transportation; Wesley also cancelled
some visits. See id. at 153-54. Beginning around August 2023, Wesley did
not hear from Mother, and she missed more than a month of visits. See id.
at 154. From November 2023 through the termination hearing in March 2024,
Mother had seventeen scheduled visits, but cancelled nine. See id. at 157.
Caseworker Sprague testified that Mother was also referred to Arsenal
Family and Children’s Center (“Arsenal”) for a parenting program, but was
discharged for missing too many sessions. See N.T., 3/15/24, at 81. Tanya
Marshall (“Marshall”), who worked at Arsenal, testified to the following.
Arsenal supervised visits between Mother, Child, and his half-brother M.B.
over two time periods.10 First, between February and May 2023, Mother
attended five visits but cancelled seven visits. Arsenal ended these “visits due
to too many cancel[l]ations.” Id. at 17. Second, from the end of July through
October 2023, Mother attended three visits but cancelled six visits. Arsenal
thus “unsuccessfully discharged” Mother again due to too many cancellations.
Id. at 17-18.
At this juncture, we note that Mother had unsupervised visits with M.B.
See N.T., 3/15/24, at 118. Caseworker Sprague explained:
When [L.’s injury occurred, M.B.] was interviewed and expressed no fear[,] no concerns[,] and things like that. So [M.B.] was not removed at that point. He was only removed after the
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10 The notes of testimony did not indicate whether Mother or Child had visits
with the other sibling, L.
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incident happened with [Child] and [CYF] had to document an instance of children being hurt . . . .
So that has been different, and [M.B. has] also expressed not having any fear of [Father] throughout. His visits had gone well, and because of his age and his ability to kind of care for himself a little better, he’s been allowed to have unsupervised visits.
Id. In June 2023, CYF filed a motion, asking the trial court to grant
unsupervised visits for Mother and Child, as well. However, the trial court
denied that motion.
Caseworker Sprague reported that Child was diagnosed with autism in
December 2023. N.T., 3/15/24, at 100. With respect to a parental bond,
Caseworker Sprague testified to the following. Mother’s visits with Child have
gone well, and Child “appear[ed] to be somewhat . . . attached to” Mother.”
Id. at 95. Mother played with Child, changed his diapers, and attended to his
needs. However, CYF was concerned the visits were inconsistent, as Mother
frequently cancelled. Meanwhile, Child was bonded with and comforted by
Foster Mother, and saw her “as a mother figure.” Id. at 94.
CYF also presented Eric Bernstein, Psy.D. (“Dr. Bernstein”), a
psychologist, as an expert in forensic psychology. He testified to the following.
He conducted: (1) “an interactional and a bonding assessment” of Child and
both Parents, in February 2023; (2) an evaluation of Child and Foster Mother,
in September 2023, “when [Mother] was scheduled but did not show;” and
(3) “an interactional and individual” evaluation of Child and Mother in
November 2023. N.T., 3/15/24, at 33, 69. Dr. Bernstein also performed
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psychological testing on Mother, and found she “qualified for major depressive
disorder recurrent, moderate.” Id. at 34.
Dr. Bernstein had concerns about Mother’s relationship with her
boyfriend, M.S., specifically “her lack of diligence in investigating someone
[whom] she would like to put in a position of influence in [Child’s] life. She
did not know any information about his legal[,] psychiatric[,] or really overall
background that would be important to consider when introducing someone
as a potential caregiver.” N.T., 3/15/24, at 35. Mother did “mention[] that
he has [eleven] children.” Id. at 47. Dr. Bernstein noted that, relatedly,
Mother had “always denied” domestic violence with Father, as well as her
alcohol abuse. Id. at 35. The expert witness was thus also concerned about
Mother’s capacity to protect Child “from people she does[ not] really know,”
“especially when considering that she, for a considerable period, had
undergone investigation by [CYF and had] requirements to complete various
goals.” Id. at 36.
Dr. Bernstein opined that Mother and Child had a bond. He testified:
“[Mother] historically has shown familiarity with [Child’s] needs, and [has]
meaningfully connected with him and provided him with attention and
affection.” N.T., 3/15/24, at 41-42. However, Dr. Bernstein also believed
that Child did not rely on Mother for his everyday needs. See id. at 48. He
stated: “[G]iven that [M]other’s attendance in visits has been less than
predictable and that her time with [Child] has . . . been restricted and limited,
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. . . even though they may have a bond, I did not view that [C]hild is
dependent on [M]other in any meaningful way such that he would be
traumatized if that contact ceased in the immediate [sic].” Id. at 47. On the
other hand, Dr. Bernstein testified that Child “relied upon [Foster Mother] as
his psychological parent,” and “she was an invested, stable and loving
caregiver committed to [Child’s] well-being and needs.” Id. at 43.
We also review, in detail, Mother’s own testimony to the following. She
now believed Father caused Child’s broken arm through child abuse. See
N.T., 3/15/24, at 190. Mother wanted to comply with the Power program’s
recommendations to participate in outpatient treatment, to not use alcohol,
and to “manage the marijuana use.” Id. at 191-92. She did not previously
“follow[] through,” with both Power and with the court-ordered drug screens,
because of financial and “phone problems.” Id. at 192-93. Mother last
consumed alcohol in July 2023, and stopped taking her prescribed medication
about two months before the termination hearing — approximately in January
2024. See id. at 192, 194. Mother “recently started using marijuana,” as
she “found it helpful with [her] mental health,” and she talked to her primary
care physician about obtaining a medical marijuana card. See id. at 194.
Mother testified that she found the parenting courses helpful. N.T.,
3/15/24, at 198. Additionally, she completed the program at Women’s Center
and Shelter and had one more session with the Non-Offenders program. See
id. at 200-01. Previously, Mother changed her phone number due to concerns
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of domestic violence by Father, but she has notified CYF or the in-home
services worker. See id. at 207.
Mother stated that as of the day before the termination hearing, she
was no longer dating M.S., nor living in the one-room rental with him. See
N.T., 3/15/24, at 204-05. Mother was currently staying in “a temporary place”
and she would call “the HOPE [C]enter [sic] . . . so [she] can get in quicker.”
Id. at 204. Mother’s in-home services worker told her “there were a couple
[places] she had worked with before [sic],” and Mother would cooperate “with
everything . . . to get that done as quickly as possible.” Id. at 205-06. Mother
last worked “[l]ast year sometime.” Id. at 209. She was looking for a job,
and “was supposed to do an overnight job, but they could not find a job for
the bus line [sic].” Id. at 206. Mother agreed that her goals — of drug,
alcohol, and mental health treatment, domestic violence treatment, housing,
and parenting courses — were appropriate for her to care for Child. Mother
had friends for support. See id. at 208.
With respect to visits and her bond with Child, Mother testified to the
following. She has never cancelled “a visit just because [she did not] want to
go,” nor has she refused to sign a release of information. N.T., 3/15/24, at
210, 212. Mother did not have a driver’s license, and relied on buses and
Ubers for transportation. See id. at 210. CYF provided her with bus tickets
and Uber cards, but the bus “only [ran] at certain times,” there were
sometimes road closings, and she sometimes needed to transfer buses. Id.
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at 210-11. Mother could not attend Child’s medical appointments solely; the
CYF caseworker or Foster Mother must also be present; however, Mother could
view Child’s medical appointment schedule and appointment summary on an
app. See id. at 213-14.
Mother testified that she understood Child’s developmental needs. See
N.T., 3/15/24, at 214. For example, at a visit two weeks before the
termination hearing, Child “was not feeling well,” felt “a little crabby,” and
“started having a meltdown.” Id. at 217. Mother played country songs to
calm him down, held him, and gave him love and affection, and Child relaxed.
See id. at 216-17. When it was time to leave, Child again had a “meltdown,”
but Mother picked him up and soothed him. Id. at 218. Mother acknowledged
that due to her lack of housing and employment, she could not presently meet
Child’s needs, including clothing, feeding, and bathing him, and taking him to
medical appointments. See id. at 216. However, if Mother had housing and
employment, then she could meet Child’s needs. See id. Mother did not
believe that adoption by Foster Mother was in Child’s best interests. See id.
at 223.
Subsequently, the trial court entered an order terminating Mother’s
parental rights under subsections 2511(a)(1), (2), (5), and (8), and (b).11 We
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11Initially, the trial court issued an order, which was: (1) dated March 15, 2024, within its text; (2) entered on the trial docket as filed as of March 18th; but (3) stamped on its face as filed as of March 20th. This order included a (Footnote Continued Next Page)
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reiterate that at this time, Child was three years and three months old, and
had been in care all but two and one-half months of his life. Mother filed a
timely notice of appeal, along with a Pa.R.A.P. 1925(a)(2) concise statement
of errors complained of on appeal.
Mother raises the following issues for our review:
Did the trial court abuse its discretion and/or err as a matter of law by involuntarily terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2)?
Did the trial court abuse its discretion and/or err as a matter of law by involuntarily terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(5)?
Did the trial court abuse its discretion and/or err as a matter of law by involuntarily terminating Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(8)?
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 [Child] pursuant to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 5.
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typographical error — that termination was granted under subsections “(12),” (5) and (8). Subsequently, the trial court issued an amended order, which corrected the subsections to (1), (2), (5), and (8). This order: (1) was similarly dated March 15, 2024, within its text; (2) entered on the trial docket as filed as of March 27th; but (3) stamped on its face as filed as of March 28th. For ease of review, we identify the termination order by the date the amended, corrected order was entered on the trial docket as “filed” — March 27, 2024.
Additionally, we note the trial court also entered an order that confirmed Father’s consent to the termination of his rights.
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Preliminarily, we observe that Mother presents no argument concerning
the trial court’s termination under subsection 2511(a)(1). On this basis alone,
we could affirm the termination order. See In re B.L.W., 843 A.2d 380, 384
(Pa. Super. 2004) (en banc) (providing this Court needs only agree with
termination under any one subsection to affirm the termination of parental
rights); see also In re M.P., 204 A.3d 976, 981 n.2 (Pa. Super. 2019)
(stating the Superior Court is an error correcting court); In re Adoption of
Z.S.H.G., 34 A.3d 1283, 1288 (Pa. Super. 2011) (stating we may affirm a
trial court’s ruling on any basis supported by the certified record).
Nevertheless, as we may also affirm the termination under subsection
2511(a)(2), we set forth our analysis.
In her first issue, Mother argues the trial court erred in terminating her
parental rights under subsection 2511(a)(2). When reviewing an order
terminating parental rights, we:
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]n abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.
. . . [U]nlike trial courts, appellate courts are not equipped to make fact-specific determinations on a cold record, where trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. Therefore, even where the facts could support an opposite result, as is often the case in dependency and
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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.
Interest of K.T., 324 A.3d 49, 56 (Pa. Super. 2024) (citations omitted). This
Court has explained:
Termination of parental rights is governed by Section 2511 of the Adoption Act, 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 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.
“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.” Finally, this Court need only agree with the orphans’ court as to “any one subsection of [section] 2511(a), in addition to [section] 2511(b), in order to affirm the termination of parental rights.”
Id. at 56-57 (citations and unnecessary capitalization omitted).
Subsection 2511(a)(2) provides that a trial court may terminate
parental rights when:
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[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.A. § 2511(a)(2). Under this subsection, the petitioner must show:
(1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.
Grounds for termination “are not limited to affirmative misconduct, but concern parental incapacity that cannot be remedied.” Further, “[p]arents are required to make diligent efforts toward the reasonably prompt assumption of full parental duties.”
Interest of K.T., 324 A.3d at 57 (citations omitted and emphasis in original).
We emphasize: “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
B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004).
In challenging termination under subsection 2511(a)(2), Mother argues
CYF failed to prove she “has not remedied or cannot remedy the conditions
that caused [Child] to be without essential parental care.” Mother’s Brief at
17. Mother avers:
The conditions that led to [Child’s] removal and placement were [his injuries.] Those injuries were suffered while [Child] was not in the care of Mother. CYF failed to prove any repeated and continuous incapacity, abuse, neglect or refusal by Mother. There was no evidence of any mental health condition or disorder
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preventing Mother from providing essential parental care to [Child]. There was no evidence that Mother lacked the capacity to protect [Child] from risk of injury posed by others.
Mother is permitted to have unsupervised visits with an older sibling[,] and CYF filed a motion in June 2023 requesting Mother have unsupervised visits with [Child]. Despite the [trial] court not granting that motion, it clearly demonstrated that CYF had no concerns of Mother’s ability to care and protect [Child].
Id. at 17-18 (citing N.T., 3/15/24, at 118). Mother further contends that
“[t]he trial court did not identify facts relied upon to find CYF met its burden
of proof under 23 Pa.C.S. § 2511(a)(2).” Id. at 18.
In its opinion, the trial court summarized that when Child was removed
from Parents’ care the second time, in April 2021, CYF recommended that
Mother continue mental health treatment and medication management,
complete a parenting program, and have supervised visitation. Trial Court
Opinion, 4/5/24, at 4. Subsequently, CYF added goals of housing and alcohol
and drug abuse treatment. The trial court then cited the evidence that: (1)
Mother “was a no-show for” nine of ten drug screens, and on the tenth “screen
she was positive for THC [sic];” (2) although Mother was “consistent with her
mental health treatment, . . . she continue[d] to have issues,” and she
“stopped taking her medication and was substituting with her own
unprescribed marijuana use;” (3) after Mother was forced to leave the
paternal grandfather’s home, she “moved around quite a bit” and did not have
housing; (4) aside from “a very brief period,” Mother “has remained
unemployed for the duration of her involvement with CYF;” and (5) while
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Mother generally remained in contact with CYF, “there was a period from
October . . . through mid-November, 2023, where CYF did not have contact
with” her. Trial Court Opinion, 4/5/24, at 4-5.
The trial court also considered the following testimony by Caseworker
Sprague. Visits between Mother and Child “went well,” Child was attached to
Mother, but her visits were inconsistent. “Mother was not currently in a
position to economically support herself or meet her own needs, much less
the special needs of” Child. Id. at 6. “Mother would initially be very compliant
with court orders, [but] her par[t]icipation would eventually become sporadic
which would lead to her being discharged from the various programs due to
her lack of involvement.” Id. at 5. In support, the trial court also cited the
testimony of the several service providers, including Mercuri, Mother’s clinical
social worker. See id. at 6-7.
Furthermore, the trial court summarized Mother’s own testimony,
including her acknowledgement of: Father’s abuse of Child; her alcoholism;
her financial and phone problems, which prevented her from completing the
POWER alcohol treatment recommendations; her hope to “get[] into the HOPE
Center [housing] in approximately one month;” and her belief that if she had
employment and housing, she could meet Child’s needs. Trial Court Opinion,
4/5/24, at 7-8. Finally, the trial court considered the undisputed testimony
that Foster Mother, who has cared for Child “since he was only a few months
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old,” met all of Child’s “special needs and services,” and that Child had a bond
with her. Id. at 4.
After our review, we determine the trial court’s findings of fact are
supported by the record, and it did not commit any abuse of discretion. See
Interest of K.T., 324 A.3d at 56. Mother’s argument infers that Father’s
abuse of Child was the sole issue necessitating Child’s placement. Her
discussion ignores, however, that even before Child was removed from the
home the second time at two and one-half months old, the trial court had
adjudicated him dependent and directed that his return to Parents’ care be
accompanied by in-home services. Additionally, Mother does not address her
family plan goals of mental health and alcohol and drug treatment, medication
management, parenting courses, supervised visitation, housing, and
employment. Mother wholly ignores the trial court’s discussion that although
she completed services provided in-home, she failed to consistently follow
through with multiple other services, including visitation with Child, and as a
result she was unsuccessfully discharged from several programs. Mother does
not dispute that over three years, she has not obtained any permanent
housing or stable employment, nor complied with any drug or alcohol
treatment beyond initial phone screenings. Any discrepancy between the
testimony of Mother and CYF’s witnesses, including Mother’s reasons for
missing appointments, were for the trial court to resolve. Finally, contrary to
Mother’s claim that “[t]here was no evidence that [she] lacked the capacity to
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protect [Child] from risk of injury posed by others[,]” Mother’s Brief at 18, Dr.
Bernstein clearly testified as to his concern that Mother did not properly
investigate the background of M.S., who would presumably be in a caregiver
position if Child were returned to Mother’s care. See N.T., 3/15/24, at 35-36.
We reiterate that Child has been in placement for his entire life, aside
from two months when he was two and one-half months old. Mother does not
dispute that she failed to consistently comply with her parenting goals, and
indeed, at the hearing acknowledged that given her lack of housing and
employment, she could not currently meet Child’s needs. See id. at 57
(stating that “[g]rounds for termination ‘are not limited to affirmative
misconduct, but [also] parental incapacity that cannot be remedied,” and that
“[p]arents are required to make diligent efforts toward the reasonably
prompt assumption of full parental duties”); see also In re B., N.M., 856
A.2d at 855 (stating that “[p]arental rights are not preserved by waiting for a
more suitable or convenient time to perform . . . parental responsibilities while
others provide the child with his . . . physical and emotional needs”).
In light of all the foregoing, we determine the trial court did not abuse
its discretion in finding CYF presented clear and convincing evidence that
Mother’s conduct satisfied the grounds for termination under subsection
2511(a)(2). See Interest of K.T., 324 A.3d at 56. We thus conclude no
relief is due on Mother’s first issue.
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Because we agree with the trial court as to subsection 2511(a)(2), we
need not reach the merits of Mother’s second and third issues, which challenge
termination under subsections 2511(a)(5) and (8). See id.; see also In re
B.L.W., 843 A.2d at 384.
In her final issue, Mother asserts the trial court abused its discretion in
finding grounds for termination under subsection 2511(b). We reiterate that
we review a termination decree for an abuse of discretion. See Interest of
K.T., 324 A.3d at 56. As noted above:
Only if the court determines that the parent’s conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to [subsection] 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.
Subsection 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. . . .
23 Pa.C.S.A. § 2511(b).
[A] court conducting the [subs]ection 2511(b) needs and welfare analysis must consider more than proof of an adverse or detrimental impact from severance of the parental bond. We emphasize analysis of the parental bond is but one part of the overall subsection (b) analysis, which includes a determination of
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whether the bond is necessary and beneficial to the child, i.e., whether maintaining the bond serves the child’s developmental, physical, and emotional needs and welfare.
Interest of K.T., 324 A.3d at 55 (citation omitted). “‘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.’ The court is not required to use expert testimony, and social
workers and caseworkers may offer evaluations as well.” In re M.P., 204
A.3d 976, 983 (Pa. Super. 2019) (citations omitted).
Mother avers “the trial court did not identify [the] facts relied upon to
find CYF met its burden of proof under” subsection 2511(b), aside from stating
that Child “is bonded to Mother and to the caregivers and that severing the
bond with Mother ‘would have an adverse impact upon [C]hild.’” Mother’s
Brief at 25. Mother contends:
Termination of [her] parental rights would not only deprive [Child’s beneficial relationship with [her] but also would terminate the relationship [Child] has with a sibling and other members of the biological family. Even CYF expressed its hope that [Child] and a sibling could have stayed together in the same foster home.
The record shows [Child] is beneficially attached to Mother and derives invaluable and irreplaceable benefits from his relationship with Mother and biological family. [Child] deserves to have the benefits of those relationships preserved. The only way to ensure this benefit to [Child] is to restore Mother’s parental rights.
Id. at 26-27.
In its opinion, the trial court stated that it considered Child’s
developmental, physical, and emotional needs and welfare. It found:
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The decision to terminate the parental rights of Mother in this case are based upon [C]hild’s needs[,] projected development of his physical and emotional needs[, and] his welfare. [C]hild is in a pre-adoptive foster home and clearly has a strong bond with Foster [Mother.] Even though[ C]hild . . . has a bond with . . . Mother such that severing that bond would have an adverse impact upon [C]hild, nevertheless, severing that bond would be in the best interests of [C]hild, pursuant to [subsection] 2511(b).
Trial Court Opinion, 4/5/24, at 12.
After our review, we determine the trial court’s findings of fact are
supported by the record, and it did not commit any abuse of discretion. See
Interest of K.T., 324 A.3d at 56. Although the trial court did not cite detailed
facts in the above analysis, we do not ignore the discussions, elsewhere in its
opinion, that although Mother’s visits with Child generally went well, Mother
was inconsistent in her attendance. See Trial Court Opinion, 4/5/24, at 4, 5,
6. Relatedly, we emphasize that Mother does not address, let alone dispute,
the relevant evidence presented by CYF. Caseworker Sprague believed that
termination would best serve Child’s needs and welfare. See N.T., 3/15/24,
at 102-03. Additionally, CYF’s expert, Dr. Bernstein, conducted bonding
assessments and testified that he, too, observed a bond between Mother and
Child, and that Mother provided Child with attention and affection. See id. at
41-42. Importantly, however, Dr. Bernstein also stated that Child did not rely
on Mother “in terms of his everyday needs.” Id. at 48. As stated above, he
opined: “Given that [M]other’s attendance in visits has been less than
predictable and that her time with [Child] has . . . been restricted and limited,
[he] did not view that [C]hild is dependent on [M]other in any meaningful way
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such that he would be traumatized if that contact ceased.” Id. at 47. To the
extent the trial court credited this testimony, over Mother’s testimony that
termination was not in Child’s best interest, see id. at 223, we do not disturb
the court’s weighing of the eivdence. See Interest of K.T., 324 A.3d at 56.
In light of the foregoing, we determine the trial court’s findings of fact
are supported by the record evidence. See id. (stating that the presence of
a parental bond “is but one part of the overall subsection (b) analysis, which
includes a determination of whether the bond is necessary and beneficial to
the child, i.e., whether maintaining the bond serves the child’s developmental,
physical, and emotional needs and welfare”).
In sum, we do not disturb the order of the trial court terminating
Mother’s parental rights to Child.
Order affirmed.
12/3/2024
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