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In the Interest of: K.M.

August 6, 2012


Appeal from the Order Entered of December 21, 2011 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-7752

The opinion of the court was delivered by: Bowes, J.:




Y.S. ("Mother") appeals from the December 21, 2011 order wherein the orphans' court terminated her parental rights to her minor son K.M. pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(8) and (b).*fn1 We affirm.

The orphans' court summarized the pertinent facts as follows:

K.M., the minor child, was born [during] June . . . 2009.

K.M. is currently three years old. This appeal involves the proposed termination of Mother's parental rights. [A] hearing was first held on May 12, 2011, specifically with respect to Father's termination of parental rights. Also, at the hearing, Mother was appointed counsel by the Court. The Guardian Ad Litem, for the child, John Bellino, was also present for said hearing. Additional hearings were held and testimony and other evidence [was] presented and received by the Court concerning Mother's termination of parental rights on August 2, 2011[,] . . . reconvened on November 2, 2011, and concluded on December 15, 2011. At the conclusion of the December 15th proceeding, this Court issued decrees terminating the parental rights of both natural Father and natural Mother.

It is unrebutted that the minor child has been in placement and therefore removed from the care of Father and Mother, since the child's birth. The minor child was born with drugs in his system. The natural mother tested positive for marijuana at the time of the child's birth. The minor child was placed in the Intensive Care Unit (ICU) at Communtiy [sic] Medical Center in Scranton, PA, and remained at the hospital for one and one half months. On August 6, 2009, the minor child was placed with the foster parents upon being discharged from the hospital. Once the minor child was placed with the foster parents, the minor child was required to stay indoors at their home until October 20[1]0 due to the fact that the minor child was born with tiny and underdeveloped lungs with severe breathing issues. The minor child was required to be on a nebulizer several times per day to assist him with his breathing problems. N.T. at 30-32, 08/02/11.

Since August 6, 2009 until the present, K.M. was in continuous placement with [L.K. and K.K. ("Foster Parents")]. Reasons for placement was [sic] that the natural mother tested positive for cannabinoids at the time of the child's birth. The natural mother also had parenting deficits, unstable housing, and mental health issues. N.T. at 14, 8/2/2011. The natural father did not have any contact with the minor child since the child's placement.

Trial Court Opinion, 2/13/12, at 2-3.

Following K.M.'s placement in the care of Luzerne County Children and Youth Services ("CYS"), the juvenile court ordered the then-seventeen-year- old Mother to complete parenting classes, drug and alcohol treatment, mental health services, and maintain safe and stable housing. N.T., 8/2/11, at 33. The court also ordered urine screens to ensure Mother's compliance. Id. Mother initially complied with the court-ordered directives; however, when CYS attempted to extend Mother's visitations with K.M. during summer 2010 from supervised visitation to weekend visitation, Mother failed to abide by the rules CYS established to ensure K.M.'s safety. Id. at 34-50, 79. Specifically, following the first and only weekend visitation, Mother flouted CYS's rules regarding K.M.'s return to the agency following the visitation-- she hurriedly returned the child with a soiled diaper and without ensuring that K.M. had his medical supplies. Id. at 42-43.

In addition, Mother neglected her son's medical conditions during the weekend visitation, lied to CYS about her availability to discuss the visitation, and concealed two troubling episodes that occurred while K.M. was in her care during July 9-12, 2010. Id. at 43-47. For example, Mother attempted to hide from CYS that an assailant shot at her male companion, whom she refused to identify, shortly after she and K.M. had left his company. Id. at 50-51. Mother also attempted to obscure a related incident wherein an assailant broke the window of her CYS-approved residence during the weekend visitation. Id. Rather than advising CYS immediately of either incident, Mother went to her mother's home, which was not approved by the agency, for the remainder of the weekend visitation and hurriedly returned K.M. to CYS under the pretense of having to rush off for a job interview, so that she could avoid discussing the situation with CYS. Id. at 51.

During the subsequent investigation into the shooting, the police discovered multiple bundles of heroin inside a bedroom drawer in Mother's residence and charged Mother with possession of a controlled substance. Id. at 54, 190. The police also discovered Father's photo identification, men's clothing, and bullets matching the caliber of a shell casing recovered from the shooting. Id. at 190-191. Father's identification was discovered in Mother's home along with men's clothing, although Mother had previously advised CYS that she ceased contact with Father and did not know his whereabouts. Id. at 52, 81-82. While the police identified Father as the assailant who shot at Mother's companion, and the would-be victim gave police a description of the gunman that matched Father's physical characteristics, Mother refused to cooperate with the police investigation. Id. at 190-192. Based on the July 2010 episodes, Mother's continued attempts to deceive the agency, and her utter disregard for K.M.'s safety, CYS obtained an August 2010 court order that permitted it to suspend all visitations with Mother for safety reasons. Id. at 81-82, 122. Although Mother could have petitioned the juvenile court for a hearing to reinstitute visitation, Mother has not had any contact with her son since July 2010. Id. at 55-56.

On March 25, 2011, CYS filed a petition to involuntarily terminate Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a) (2), (5), (8) and (b). Counsel was appointed and, following three non-consecutive days of testimony, the orphans' court entered the above-referenced order terminating Mother's parental rights to K.M. pursuant to § 2511(a)(8) and (b). This timely appeal followed. Mother complied with Pa.R.A.P. 1925(a)(2)(i) by filing a statement of errors complained of on appeal concurrent with her notice of appeal.

Mother raises the following issues on appeal:

I. Whether the trial court erred in denying [Mother's motion] for appointment of legal counsel for the minor child in the contested termination proceeding thereby denying counsel for the child. Further whether the trial court erred in the manner in which a guardian ad litem was appointed for the minor child.

II. Whether the trial court erred in finding that [CYS] proved the elements of termination with respect to 23 Pa.C.S.A. [§] 2511(a)(8) and 2511(b), through clear and convincing evidence.

III. Whether the trial court erred in finding there was sufficient evidence presented at trial to establish that the conditions which led to the removal or placement of the child continue to exist and that termination of parental ...

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