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In Re: A.L.M.

IN THE SUPERIOR COURT OF PENNSYLVANIA


April 24, 2013

IN RE: A.L.M., MINOR
APPEAL OF: M.M., MOTHER IN RE: C.M.T.-M., MINOR
APPEAL OF: M.M., MOTHER

Appeal from the Decree entered September 14, 2012 in the Court of Common Pleas of Dauphin County Orphans' Court at Nos.: 70 Adopt-2010; CP-22-DP-69-2010 Appeal from the Decree entered September 14, 2012, in the Court of Common Pleas of Dauphin County, Orphans' Court at Nos.: 70 Adopt-2010; CP-22-DP-68-2010

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

J-S15016-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE SUPERIOR COURT OF PENNSYLVANIA

BEFORE: DONOHUE, ALLEN, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:

M.M. ("Mother") appeals from the decrees terminating her parental rights to her daughters, A.L.M. and C.M.T.-M., (collectively "the Children"), pursuant to § 2511(a)(1), (2), (5), (8), and (b), and changing the Children's permanency goal to adoption, pursuant to 42 Pa.C.S.A. § 6351.*fn1 We affirm.

The parties first became known to Dauphin County Children and Youth Services ("CYS") in February of 2010, following allegations that there was inappropriate discipline in the home, concerns regarding the condition of the home, and concerns regarding the Children's development. Id. at 168-69.*fn2 Mother also refused to enroll A.L.M. in school, even though CYS explained the importance relative to A.L.M.'s developmental delays. Id. The Children struggled with speech and were difficult to understand. Id. at 169-70.

A.L.M., when she was six years old, was not toilet trained. Id. at 169.

At a shelter care hearing on June 3, 2010, the trial court placed the Children with Mother under protective supervision. Id. at 171. On June 9, 2010, an adjudication and disposition hearing was held.*fn3 Id. at 172.

Mother was ordered to complete the following Family Service Plan objectives: (1) attend all court hearings, CYS meetings and treatment plan meetings; (2) sign all release of information forms requested; (3) notify

CYS within 24 hours of new residence/contact information; (4) reimburse Dauphin County for child support in an amount determined by the Domestic

Relations Office; (5) ensure that the Children continue to receive mental health care; (6) continue to work with family-based services for the Children; (7) continue to receive mental health care, such as therapy and medication management; (8) ensure that the Children remain current with medical and dental care, and immunizations; (9) ensure that the home is clean, appropriate, and sanitary; (10) continue working with the Children on toilet training; (8) register the Children for school; (11) ensure that the Children attend school daily; (13) ensure that the Children have current Individualized Educational Programs ("IEPs") in place; (14) attend all medical appointments and follow through with all recommendations; (15) take all medication as prescribed; (16) maintain contact with the ACA worker; (17) commit to clean the kitchen and bathrooms at least three times per week; (18) ensure that the Children bathe daily and are dressed in appropriate clean clothes while in the home. Id. at 172-82.

On September 23, 2010, another shelter care hearing was held, and the Children were placed in foster care. Id. at 184-85. On October 11, 2010, Mother moved to New York to live with her paramour. Id. at 186, 190. On May 9, 2011, a hearing was held, and it was determined that both Mother and W.M.F. would each be given five weeks with the Children to work on their goals, allow them to bond, and for support to be put in place. (N.T. 9/11/12, at 192).*fn4 The trial court detailed the ensuing factual history:

On August 18, 2011, a hearing was held and the [C]hildren were temporarily placed with W.M.F. (N.T. 9/11/12, p. 193).

The [C]hildren had to be removed from W.M.F.'s care due to safety concerns observed on September 14, 2011. (N.T. 9/11/12, p. 194). On September 28, 2011, a hearing was held. The [C]hildren were subsequently placed with Mother in New York under court ordered protective supervision. (N.T. 9/11/12, p. 195-196). Mother was monitored by an Onondaga County caseworker during this time. (N.T. 9/11/12, p. 92). A parent aide was engaged to assist Mother with household organization, cleanliness, safety concerns, and appointments, among other things. (N.T. 9/11/12, p. 97).

On or about October 23, 2011, Mother was required to leave her paramour's residence, and she and the [C]hildren went to a shelter. (N.T. 9/11/12, p. 94). New York's Department of Social Services was able to place Mother and the [C]hildren in a hotel on October 24, 2011, where they stayed for several days. (N.T. 9/11/12, p. 95). On November 2, 2011, Mother took the [C]hildren to live in Florida. (N.T. 9/11/12, p. 96).

With [CYS]'s assistance, the [C]hildren reportedly started school on November 16, 2011. (N.T. 9/11/12, p. 223). On November 21, 2011, Mother contacted the [CYS] caseworker and informed her that she had moved in with her grandmother and that the [C]hildren were no longer attending school. (N.T.

9/11/12, p. 223). On or about December 2, 2011, the [C]hildren were transferred to a different school. (N.T. 9/11/12, p. 224). On December 14, 2011, Mother reported to [CYS] that she had again removed the girls from school because she did not believe the school was dealing with A.L.M's behaviors appropriately. (N.T. 9/11/12, p. 224). Mother stated that she intended to homeschool the [C]hildren. (N.T. 9/11/12, p. 224).

On December 19, 2011, Leon County Children and Youth in Florida received a referral regarding Mother's mental health concerns regarding her ability to parent two special needs children, Mother's confrontations with school staff, and her withdrawal of the [C]hildren from school. (N.T. 9/11/12, p. 118- 119). Leon County made a referral for family preservation services and was attempting to set the [C]hildren up for services for medically needy children. (N.T. 9/11/12, p. 120-121). While Mother and the [C]hildren were in Florida, Mother stated that the [C]hildren were enrolled in play and family therapy, but did not provide a location or a phone number to the [CYS] caseworker for verification. (N.T. 9/11/12, p. 217). Mother also stated that the [C]hildren received physicals on January 4, 2012, and she provided a physician's name but no location. (N.T. 9/11/12, p. 219, 229). The caseworker was unable to verify the physicals as she was unable to find contact information for the physician online. (N.T. 9/11/12, p. 219).

According to Mother, the [C]hildren were going to return to school on January 5, 2012. (N.T. 9/11/12, P. 225). A supplemental referral was received by Leon County on January 10, 2012 regarding truancy. (N.T. 9/11/12, p. 117-118). On January 11, 2012, Mother reported that the [C]hildren were attending a private school. (N.T. 9/11/12, P. 228). When the caseworker contacted the school, she was informed that there were no students named A.L.M. or C.M.T.-M. there. (N.T. 9/11/12, p. 228).

On January 11, 2012, when the caseworker informed Mother that the school stated that the [C]hildren were not enrolled, Mother continued to insist that the [C]hildren were in school that day at that time. (N.T. 9/11/12, p. 232-233). The caseworker called the school a second time and received the same information. (N.T. 9/11/12, p. 232). Subsequent attempts to contact Mother by phone and in person were unsuccessful, and the [C]hildren's whereabouts could not be verified. (N.T. 9/11/12, p. 233). The Tallahassee Police Department was notified and was able to locate Mother, who refused to provide the [C]hildren's location. (N.T. 9/11/12, p. 235). The [C]hildren were eventually found with a relative at a bus stop. (N.T. 9/11/12, p. 235).

Trial Court Opinion, 11/30/12, at 4-6 (footnotes omitted).

A hearing was held on January 17, 2012, and the Children were placed back in CYS's custody. Id. at 239-240. On January 18, 2012, CYS retrieved the Children in Florida. Id. at 231. The Children were dirty and very thin, had multiple bruises, and their clothing was too small. Id. at 179, 182, 238. The Children had attended seven out of thirty-seven scheduled school days while in Florida. Id. at 227. On May 14, 2012, the Children were placed in foster care, and they continue to remain in that home. Id. at 150.

On June 29, 2012, CYS filed petitions to involuntarily terminate

Mother's parental rights, and to change the Children's goal to adoption.*fn5 On September 11, 2012, a termination hearing was held. On September 14, 2012, the trial court terminated Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). Mother timely filed notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). This Court consolidated the cases sua sponte on October 17, 2012.

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

1. Whether the [t]rial [c]court committed an error of law and/or abused its discretion by changing the goal to adoption and terminating the parental rights of [Mother], when the evidence clearly establishes that [Mother] substantially completed her service objectives prior to the filing of the Petition for Termination of Parental Rights and Goal Change to Adoption and CYS failed to meet its burden of establishing any grounds for termination of parent rights under the Adoption Act[?]

2. Whether the [t]rial [c]court committed an error of law and/or abused its discretion by terminating parental rights of [Mother] under Section 2511(b) of the Adoption Act, when there was no evidence presented with regard to the impact the goal change and termination of parental rights would have on the [C]hildren [?]

Mother's Brief at 4.

Our Supreme Court has emphasized that an appellate court's standard of review of a trial court's order terminating parental rights is limited to an abuse of discretion:

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. As has been often stated, an 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.

[T]here are clear reasons for applying an abuse of discretion standard of review in these cases. ...[U]nlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court's legal conclusions are not the result of an error of law or an abuse of discretion.

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

The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). The standard of clear and convincing evidence is testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue." Id. (quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

Here, the trial court found that CYS presented sufficient grounds to terminate Mother's parental rights under the following provisions of the Adoption Act:

§ 2511. Grounds for involuntary termination

(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

(2) The 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.

(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 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.

(b) Other considerations. -- The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

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

Section 2511 requires our courts to conduct a two-part test before terminating parental rights:

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.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citation omitted).

This Court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of section 2511(a). See In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Thus, we first address whether the trial court properly terminated Mother's parental rights pursuant to section 2511(a)(2).

"[A] parent's basic constitutional right to the custody and rearing of. . . her child is converted, upon the failure to fulfill. . . 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). The fundamental test under Section 2511(a)(2) was stated in In re Geiger, 331 A.2d 172 (Pa. 1975), where the Pennsylvania Supreme Court announced that under what is now Section 2511(a)(2), "the petitioner for involuntary termination must prove (1) repeated and continued incapacity, abuse, neglect or refusal; (2) .

. . such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) . . . the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied." In Interest of Lilley, 719 A.2d 327, 330 (Pa. Super. 1998).

Mother argues that CYS has not met its burden under Section 2511(a)(2). Mother specifically asserts that she failed to complete all of the services that the Children needed because of the time limitation placed upon her.

We note that "[a] parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous." See In re K.Z.S., 946

A.2d 753, 758 (Pa. Super. 2008). Here, the trial court found that Mother did not comply with her objectives of ensuring that the Children received mental health care, working with family based services, ensuring that the Children remained current with medical and dental care and immunizations, keeping the home clean and sanitary, toilet training the Children, registering the Children for school and ensuring that they attend school daily, and ensuring that the Children were bathed daily and dressed in appropriate, clean clothing. Trial Court Opinion, 11/30/12, at 10-14. Moreover, the trial court found that the Children's needs were not being met because they were "very dirty, thin, soiling themselves, and wearing clothes that were so small they were in physical pain." Id. at 17. The trial court concluded that Mother is "either incapable or refuses to provide essential parental care, control, and subsistence necessary for [the Children]'s physical and mental well-being," and that the "incapacity or refusal is repeated and continuing and either cannot or will not be remedied by Mother." Id. at 17.

We find that there is competent evidence in the record to support the trial court's credibility and weight determinations. Thus, we find no abuse of the trial court's discretion in concluding that CYS sustained its burden with regard to section 2511(a)(2) and we need not address Mother's issues concerning subsections (a)(1), (5), and (8). See In re B.L.W., 843 A.2d at 384.

Next, we proceed to the trial court's application of section 2511(b). This Court has held that, in reviewing the evidence in support of termination under section 2511(b), we consider whether the termination of parental rights would serve the developmental, physical, and emotional needs and welfare of the child. In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa. Super. 2005). "Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child." Id. at 1287. The court must also discern the nature and status of the parent-child bond, with utmost attention to the effect of permanently severing that bond on the child. Id.

With regard to section 2511(b), this Court has stated:

Once the statutory requirement for involuntary termination of parental rights has been established under subsection (a), the court must consider whether the child's needs and welfare will be met by termination pursuant to subsection (b). In re D.W., 856 A.2d 1231, 1234 (Pa. Super. 2004). 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. In re C.S., [761 A.2d 1197, 1202 (Pa. Super. 2000)].

In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). This Court has explained that the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to section 2511(b). In re Adoption of C.L.G., 956 A.2d at 1008.

Based on the testimony at the termination hearing, the trial court found that termination of Mother's parental rights would serve the developmental, physical, and emotional needs and welfare of the Children. Trial Court Opinion, 11/30/12, at 18, 19, 21. Ms. Elizabeth Gryzcko-

Drazien, a licensed clinical social worker and the Children's play therapist, testified that the Children exhibited symptoms of trauma, including hyperarousal and reenactment. N.T., 9/11/12, at 73. Based on her observations, Ms. Gryzcko-Drazien testified that the Children had experienced abuse and trauma in their relationship with Mother, and that the Children are afraid Mother will hurt them. Id. at 73-74.

The trial court concluded that "the record lacks sufficient evidence of healthy bond between Mother and the [C]hildren." Trial Court Opinion, 11/30/12, at 22. The trial court found that the Children "do not wish to speak with [M]other and that they are afraid of [her]." Id. at 22. Moreover, the trial court found that the Children have a close bond with their foster fathers. Id. at 22. Ms. Gordner, the CYS casework, stated that the Children "adore their foster fathers." N.T., 9/11/12, at 38. Ms. Gryzcko-Drazien testified that the Children are now in "a very loving, consistent, stable home where their feelings are respected as their own and the Children are doing well." Id. at 75.

Mother argues that she "loves the Children and would do whatever she could to provide for them." See Mother's Brief at 14. This Court has stated that a party's own feelings of love and affection for a child, alone, will not preclude termination of parental rights. In re L.M., 923 A.2d 505, 512 (Pa. Super. 2007). The trial court in this case did not abuse its discretion in finding the lack of a bond, and terminating the parental rights of Mother pursuant to section 2511(b).

After a careful review of the record, we find that there was competent evidence in the record to support the trial court's termination of Mother's parental rights under section 2511(a)(2) and (b). In re Adoption of S.P., 47 A.3d at 826-27. For the foregoing reasons, we affirm the trial court's decrees granting the petitions to terminate Mother's parental rights and change the goal to adoption.

Decrees affirmed.


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