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In re M.M.

Superior Court of Pennsylvania

June 14, 2013

IN THE INTEREST OF: M.M., A MINOR APPEAL OF: J.J., MOTHER IN THE INTEREST OF: R.E., A MINOR APPEAL OF: J.J., MOTHER

Appeal from the Order entered September 13, 2012, in the Court of Common Pleas of Lackawanna County, Orphans Court at No. (s): A26-2012 Dependency 155-2010, 205-2011

BEFORE: PANELLA, ALLEN, and COLVILLE, [*] JJ.

MEMORANDUM

ALLEN, J.

J.J. ("Mother") appeals from the orders dated September 11, 2012 and entered September 13, 2012, terminating her parental rights to her daughter, M.M., born in October of 2008, and her son, R.E. IV., born in August of 2010, ("Children"), pursuant to 23 Pa.C.S.A. § 2511(a)(1), (8), and (b).[1] We affirm.

Lackawanna County Children and Youth Services ("CYS") first became involved with Mother at the time of M.M.'s birth. CYS was notified that Mother intended to bring M.M. home to a house with no working utilities and in imminent foreclosure. Upon inspection, CYS found the home unsuitable. Mother took M.M. to the home of her parents, M.M.'s maternal grandparents. CYS then closed M.M.'s case.

In April of 2009, CYS received anonymous reports that Mother was abusing prescription medications. Additionally, the reports detailed that M.M. was not up to date on immunizations and doctors' appointments, and that the family resided in deplorable conditions. CYS inspected the home, and found it unacceptable. Days later, Mother was arrested for attacking M.M.'s father, B.M., with a knife. Mother was incarcerated as a result of the incident, and M.M. was left in the custody of B.M., who was able to rectify the shortcomings regarding M.M.'s healthcare and the condition of the home. CYS closed M.M.'s case again. During her incarceration, Mother had no contact with M.M. N.T., 8/21/12, at 10.

In August of 2010, R.E. IV. was born to Mother and R.E. III. At this time, CYS was contacted by hospital personnel, who observed that Mother appeared drugged, and were concerned about Mother's ability to care for R.E. IV. CYS inspected the home where Mother intended to bring R.E. IV. and found it unacceptable. R.E. IV. was placed with his paternal grandparents. In September of 2010, R.E. IV. was adjudicated dependent, and CYS gained custody. Mother attended supervised visits with him at this time. In October 2010, he was removed from the home of his paternal grandparents, due to fears about the grandfather's criminal history, and placed with his current foster parents.

In November 2010, Luzerne County Children and Youth Services received information that M.M., who remained in B.M.'s care at this time, was not being properly cared for. CYS substantiated that report, and M.M. was removed from B.M.'s care and placed in foster care. Between

November of 2010 and July of 2011, the period of time that Luzerne County had an open case with M.M., Mother had "only a handful of supervised visits with M.M." Trial Court Opinion, 12/3/12, at 3 (citing N.T., 8/22/12, at 113-14). In July of 2011, M.M.'s case was transferred to Lackawanna County CYS, in part to place her in the same foster home as R.E. IV. Today, the Children reside with the same foster parents.

In May of 2011, R.E. IV. began trial visitation with Mother, and in July of 2011, he was returned to Mother's custody. In August 2011, however, Mother was again incarcerated, due to relapses in her abuse of prescription medication. R.E. IV. was returned to the home of his foster parents. On approximately April 20, 2012, Mother was released from prison, N.T., 8/30/12, at 125, and resumed supervised visitation with M.M.

On April 17, 2012, CYS filed petitions for the involuntary termination of Mother's parental rights to the Children, and for the involuntary termination of the parental rights of their respective fathers. On August 21, 29 and 30, 2011 and September 6 and 7, 2011, the trial court held hearings on the petitions.

On September 13, 2012, the trial court entered its order terminating Mother's parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (8), and (b).[2] On October 11, 2012, Mother simultaneously filed her notices of appeal and concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

On appeal, Mother raises three issues for our review:

1. Whether the [t]rial [c]ourt erred as a matter of law and/or manifestly abused its discretion in determining that the Agency presented sufficient evidence to satisfy the grounds for termination of Mother's parental rights under 23 Pa. C. S. A. Section 2511(a)(1)?
2. Whether the [t]rial [c]ourt erred as a matter of law and/or manifestly abused its discretion in determining that the Agency presented sufficient evidence to satisfy the grounds for termination of Mother's parental rights under 23 Pa. C. S. A. Section 2511(a)(8)?
3. Whether the [t]rial [c]ourt erred as a matter of law and/or manifestly abused its discretion in terminating the Mother's parental rights in that clear and convincing evidence did not exist that said termination is in the best interest of the minor child(ren) under 23 Pa. C. S. A. Section 2511(b)?

Mother's Brief at 4.

We review appeals from the involuntary termination of parental rights according to the following standard:

[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. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). 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.; [In re] R.I.S., [__ Pa. __, __, 36 A.3d 567, 572 (2011) (plurality opinion)]. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Id.; see also Samuel Bassett v. Kia Motors America, Inc., [__Pa.__], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, [575 Pa. 647, 654-655], 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.
As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike 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. R.J.T., 608 Pa. 9, 9 A.3d at 1190. 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

Atencio, 539 Pa. 161, 650 A.2d 1064, 1066 (Pa. 1994). In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

Section 2511 of the Adoption Act provides in pertinent part:

(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:
(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.

23 Pa.C.S.A. § 2511(a)(8), (b).

[U]nder Section 2511, the court must engage in a bifurcated process prior to 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 after determining that the parent's conduct warrants termination of his or her parental rights must the court engage in the second part of the analysis: determination of the needs and welfare of the child under the standard of best interests of the child. Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent's conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child.

In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006).

"[W]e need only agree with [a trial court's] decision as to any one subsection [of 2511(a), along with 2511(b), ] in order to affirm the termination of parental rights." In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

To terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8), the following factors must be demonstrated: (1) the child has been removed from parental care for 12 months or more from the date of removal; (2) the conditions which led to the removal or placement of the child continue to exist; and (3) termination of parental rights would best serve the needs and welfare of the child. Section [2511] (a)(8) sets a 12-month time frame for a parent to remedy the conditions that led to the children's removal by the court. Once the 12-month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of [the child welfare agency] supplied over a realistic time period. Termination under Section 2511(a)(8) does not require the court to evaluate a parent's current willingness or ability to remedy the conditions that initially caused placement or the availability or efficacy of [the child welfare agency] services.

In re K.Z.S., 946 A.2d 753, 758-759 (Pa. Super. 2008) (internal citations omitted).

We have observed as follows regarding the "needs and welfare" analysis pertinent to Sections 2511(a)(8) and (b):

[I]nitially, the focus in terminating parental rights is on the parent, under Section 2511(a), whereas the focus in Section 2511(b) is on the child. However, Section 2511(a)(8) explicitly requires an evaluation of the "needs and welfare of the child" prior to proceeding to Section 2511(b), which focuses on the "developmental, physical and emotional needs and welfare of the child." Thus, the analysis under Section 2511(a)(8) accounts for the needs of the child in addition to the behavior of the parent. Moreover, only if a court determines that the parent's conduct warrants termination of his or her parental rights, pursuant to Section 2511(a), does a 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." Accordingly, while both Section 2511(a)(8) and Section 2511(b) direct us to evaluate the "needs and welfare of the child, " we are required to resolve the analysis relative to Section 2511(a)(8), prior to addressing the "needs and welfare" of [the child], as prescribed by Section 2511(b); as such, they are distinct in that we must address Section 2511(a) before reaching Section 2511(b).

In Re Adoption of C.L.G., 956 A.2d 999, 1008-09 (Pa. Super. 2008) (en banc) (citations omitted).

We proceed to analyze Mother's issue with respect to the termination of her parental rights under Section 2511(a)(8). Accordingly, we need not address her first issue. See In re B.L.W., 843 A.2d at 384.

In her second issue, Mother argues that the record contains insufficient evidence for the termination of her parental rights pursuant to Section 2511(a)(8). She argues that she has made efforts to address her addiction to prescription medication and her mental health issues, that she earned certificates while in Lackawanna County Prison, that she made these efforts before the petitions for termination of parental rights were filed, and that she continued rehabilitative treatment after her release from prison. Mother's Brief at 16-17.

Additionally, Mother highlights the testimony of Liza Murray, a coordinator at the Drug and Alcohol Treatment Services ("DATS") Program, who testified as follows:

Q. And Liza, could you tell me if [Mother] is making progress in her treatment?
A. She has, yes.
Q. And could you tell me if based on her participation, you believe she's committed to sobriety?
A. Based on her efforts of anything I've asked of her, yes.
Q. And have you observed any relapses? A. In this episode, no, no relapses that were reported to me. N.T., 9/6/12, at 12.

Mother also highlights the testimony of Kenneth Keib, who testified that Mother is progressing in her drug court program. N.T., 8/30/12, at 109. Maternal grandmother, with whom Mother now resides, testified as follows:

Q. Now, does [Mother] live with you?
A. Yes, she does.
Q. And when did she move into your home?
A. April 18th.
Q. And do you know -- do you observe any difference in [Mother] since she moved in with you recently?
A. Oh, god, yeah -- I mean, she's so much better now than --you know, back then. Like back then, she didn't have any help, like, from the people down in Scranton -- you know, her PO, her caseworker, all these other places and -- like, with her goal now, since April, I mean, she's really -- she really came around, you know, like, very responsible, and she's, you know, very considerate, which I didn't see in a long time, you know.

N.T., 8/30/12, at 86-87.

Nonetheless, the trial court found:

Here, both M.M. and R.E. [IV] have been removed from their parents' care, either by a [c]ourt or voluntarily, for twelve months or more, with M.M. being in foster care for almost two years and R.E. [IV] being in foster care for just over two years. (N.T. 08/30/12 at pg. 14-15, 27); (N.T. 08/21/12 at pg. 113-114).
Also, the conditions that led to M.M. and R.E. [IV] both being removed from their parents' care continue to exist. 23 Pa.C.S. § 2511(a)(8). In regard to Mother, both children were removed from her care at one point or another for fear that her abuse of prescription medication and failure to treat her mental health issues endangered their safety. (N.T. 08/30/12 at pg. 12, 27), N.T. 08/29/12 at pg. 52-53). Although Mother presented evidence during the hearing that she is now treating both her addiction and mental health issues, has stable housing, employment, and the support of her family, and could theoretically be immediately reunified with her children, all of these efforts that Mother has made occurred after the petition for termination of parental rights was filed, and are insufficient to show that the circumstances that led to the removal of R.E. [IV] and M.M. from her care no longer exist. See In Re I.J., 972 A.2d 5, 11 (Pa. Super 2009) (holding that the [c]ourt may consider parent's efforts made after petition has been filed under 23 Pa.C.S. § 2511(a)(8) only for purposes of determining whether or not reunification is imminent and, if it is not, then termination of the parent's rights is proper). In addition, Mother presented no evidence to show how she will be able to function when she no longer has the structure and consistency provided by DATS, Scranton Counseling, and Co-Occurring Court.

Trial Court Opinion, 12/3/12, at 15-16.

We discern no error of law or abuse of discretion in the trial court's conclusions. Mother does not contest that the Children have been removed for more than twelve months. Our review of the record finds support for the conclusion that the conditions that gave rise to the removal of the Children, namely Mother's prescription drug abuse, continued to exist at the time of the filing of the termination petitions. Mother was incarcerated in August of 2011 due to her ongoing issues with drugs. She continues to require treatment for those issues.

While Mother references testimony that suggests that she has finally begun a path to recovery, the trial court emphasizes that "all of these efforts that Mother has made occurred after the petition for termination of parental rights was filed . . ." Trial Court Opinion, 12/3/12, at 16; see In re K.Z.S., 946 A.2d at 758-759. The testimony that Mother highlighted, from Ms.

Murray and from her own mother, concerned events that arose after Mother's release from prison. See N.T., 9/6/12, at 7-8; N.T., 8/30/12, at 86-87. While Mother made some efforts during her most recent incarceration, which took place just prior to the filing of the petition for termination of parental rights, a holistic view of the lengthy history of the case, and the fact that Mother continues to require treatment for the issues that gave rise to the removal of the Children, supports the trial court's conclusion that the conditions that led to the removal of the Children were not remedied at the time of the filing of the termination petitions.

As to the third prong of Section 2511(a)(8), whether the termination of parental rights would best serve the needs and welfare of the child, we find that clear and convincing evidence supports the conclusion that termination of parental rights best serves the needs and welfare of the Children. Our review of the record reveals that a family stands ready to adopt both of the Children. N.T., 8/21/12, at 198. The trial court heard lay testimony that no bond exists between Mother and M.M. Id. It heard that, during visits, the Children do not identify who Mother is, and that they do not reciprocate her efforts to forge a relationship. Id. at 198-99. Mother was significantly absent in the lives of both Children. Her criminal history and recurrent drug abuse, well-established in the record, convinced the trial court that termination of her rights was in the Children's best interests. In light of these facts, we find that clear and convincing evidence exists to support the trial court's conclusion. We can find no error of law or abuse of discretion in the trial court's application of Section 2511(a)(8). As noted above:

[E]ven 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 at 826-27.

In her third issue, Mother argues that the record contains insufficient evidence that termination of her parental rights was in the best interest of the Children pursuant to Section 2511(b). Mother's Brief at 18. Mother asserts that there is no credible data or expert opinion suggesting that termination of Mother's parental rights serves the needs and welfare of the Children. Id. at 19. Mother argues that, instead, the record demonstrates that Mother is concerned and interested in the Children's lives, and that she "just want[s] to be a good Mom." Id. (citing N.T., 9/6/12, at 32). Mother argues that her efforts demonstrate the same, and that she completed every request asked of her following her release from prison. Accordingly, Mother seeks reinstatement of her parental rights. Id.

Relevant to this issue, we have held:

Although a needs and welfare analysis is mandated by the statute, it is distinct from and not relevant to a determination of whether the parent's conduct justifies termination of parental rights under the statute. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child.

In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006). In addition:

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 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.
When conducting a bonding analysis, the court is not required to use expert testimony. Social workers and caseworkers can offer evaluations as well. See In re A.R.M.F., 837 A.2d 1231 (Pa. Super. 2003) (holding court properly terminated parental rights where decision was based in part on social worker's and caseworker's testimony that children did not share significant bond with biological parents and were well bonded with their foster parents). Additionally, Section 2511(b) does not require a formal bonding evaluation.
Above all else[, ] adequate consideration must be given to the needs and welfare of the child. A parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights.

In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010) (citations omitted).

As we have already discussed the more general reasons that the trial court concluded that termination of parental rights served the Children's needs and welfare, we address only the specific arguments that Mother raises in her argument of this issue.

Mother's first argument, that the trial court erred because it did not rely on expert opinion or "credible data, " lacks support in the law. The trial court was not required to rely on expert opinion or scientific study in assessing a bond. See In re Z.P., 994 A.2d at 1121.

Mother's second argument, that she maintains feelings of love and affection towards the Children, is legally insufficient to prevent the termination of parental rights. See id.

Mother's third argument, that clear and convincing evidence does not exist to support a finding that termination would serve the Children's needs and welfare, is addressed in our application of Section 2511(a)(8), above. As we discussed, the evidence of record supports the trial court's conclusion that no bond exists between the Children and Mother; the evidence of record supports the conclusion that a beneficial bond exists between Children and their pre-adoptive foster parents; and the evidence of record demonstrated a significant history of Mother's relapses into drug abuse, which weighed against perpetuating Mother's relationship with the Children until she is finally, hopefully, able to resolve her issues.

Finally, Mother argues that she "has done everything she has been asked to do following her release from prison." Mother's Brief at 19. As discussed previously, the trial court need not consider efforts made subsequent to the filing of the termination petition. See In re K.Z.S., 946 A.2d at 758-759; Trial Court Opinion, 12/3/12, at 16. Here, the petition for termination was filed prior to Mother's release from prison. As a result, Mother's efforts after that time do not contradict the trial court's findings or conclusions.

Accordingly, for the reasons stated above, we discern no error of law or abuse of discretion in the trial courts orders, and affirm the orders terminating Mother's parental rights, pursuant to 23 Pa.C.S.A. § 2511(a)(8) and (b).

Orders affirmed.

Judgment Entered.


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