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In re B.M.

Superior Court of Pennsylvania

August 2, 2013

IN RE: B.M., A MINOR APPEAL OF: D.W. IN RE: ADOPTION OF B.M., A MINOR APPEAL OF: J.M., NATURAL FATHER

NON-PRECEDENTIAL DECISION

Appeal from the Order September 14, 2012 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): 75 OF 2012, CYF 075 of 2012

BEFORE BOWES, J., DONOHUE, J., and MUNDY, J.

MEMORANDUM

MUNDY, J.

Appellants, D.W. (Mother) and J.M. (Father), appeal from the September 14, 2012 orders[1] terminating their parental rights to their child B.M.[2] After careful review, we reverse both orders.

The trial court has summarized the relevant facts and procedural history of this case as follows.

B.M. [] tested positive for cocaine, marijuana, and methadone shortly after birth on August 24, 2010. She remained in the hospital immediately after birth due to withdrawal symptoms. On September 3, 2010, after a shelter hearing, [the trial court] entered an order granting CYF permission to place B.M. in foster care upon her release from the hospital. A dependency petition was filed and, at a pre-hearing conference on September 17, 2010, [B.M.] was returned to Mother, contingent on her remaining at the House of Hope rehabilitation clinic. Father was granted twice weekly supervised visits. [B.M.] was adjudicated dependent on October 1, 2010 and [B.M.] was permitted to remain with Mother with the requirement that she continue to reside at the House of Hope. Father's visits were to remain supervised. After being unsuccessfully discharged from the House of Hope, Mother subsequently failed to attend required meetings with the House of Hope arranged by CYF. Mother also allowed Father unsupervised contact with B.M. As a result, B.M. was removed again from Mother's care and placed in foster care on November 30, 2010.
On June 13, 2012, CYF filed a petition for Involuntary Termination of Parental Rights (TPR) against Mother, Father, and the Unknown Father of B.M. CYF filed these petitions for termination for Mother under 23 Pa.C.S.A. § 2511(a)(2), (5), (8) and Sections (1), (2), (5) and (8) with regard to Father and the Unknown Father.
At the September 13, 2012 termination hearing, CYF Caseworker, Michelle Schultz, testified to the timeline of the case and the continued placement of [B.M.] in the current foster home. Ms. Schultz indicated that the primary concerns, which resulted in the removal of [B.M.] on November 30, 2010, were the parents' ongoing drug issues, Mother's and Father's mental health, and concerns about domestic violence within the home. Mother's Family Service Plan (FSP) goals, [] initially established on October 13, 2010, included the following items: (1) to obtain medical treatment for [B.M.], (2) to ensure supervision of [B.M.] at all times, (3) to refrain from illegal activity, (4) to attend mental health treatment, (5) to attend drug and alcohol treatment, and (6) to refrain from domestic violence in the home. Also, Mother was ordered to attend domestic violence counseling through the Woman's Center and Shelter.
Caseworker Shultz testified that Mother was inconsistent with her FSP goals until February 2012. Mother attended numerous drug and alcohol treatment programs, but she did not successfully complete any of these programs until her re-involvement in the Perinatal Addiction Center (PAC) in December 201[1]. At the date of the TPR hearing, Mother had been clean since February 17, 2012. Similarly, Mother was noncompliant with her mental health treatment until February 26, 2012, when she began consistent treatment – five days a week – at Kelly Street Methadone Clinic and the PAC. Also, Mother did not begin attending domestic violence classes at the Women's Center until March 2012.
Furthermore, Mother did not obtain successful housing, through the House of Hope, until February 2012.2 Mother, who was unemployed, also did not obtain rental and public assistance to meet the basic financial demands of daily living until February 2012. In contrast, Mother's visitations with B.M. were fairly consistent. According to the case specialist from Auberle, Ms. Roman, Mother attended approximately seventy-five percent of her scheduled supervised visits (scheduled twice a week for two hours), and she regularly attended the visits from late 2011 until the date of the TPR hearing. Mother missed several of these visits during her pregnancy with another child, because she was tired, ill, or had another appointment. Last, Mother did not consistently work on parenting issues until June 26, 2012, when she began working with Family Resources.
Father's FSP included the following goals: (1) maintaining housing, (2) attending parenting programs, (3) refraining from illegal activity, (4) maintaining mental health, (5) attending drug and alcohol treatment, and (6) refraining from domestic violence in the home. Father was also required to attend domestic violence counseling through the Women's Center and Shelter. CYF testified that Father was noncompliant with these goals.
From September through November 2011, Father did not attend 21 out of 33 required drug screens. He admitted that he declined to attend several of these screens because he knew he would test positive. Father also participated in the Pyramid Detox program, after a drug and alcohol evaluation with IMPACT (a court affiliated drug assessment and referral program), sometime after August 2011, but he never completed the program. However, at the date of the TPR hearing, Father claims to have been clean since March 21, 2012. Furthermore, with regard to mental health, Father did not consistently attend therapy until May 2012, and although he did complete anger management counseling through the Center for Family Excellence in 2011, Father did not complete any other programs with regard to domestic violence. Further, there were still ongoing issues with respect to domestic violence, including an incident with Mother in June 2012 which resulted in the entry of a Protection from Abuse Order.
With regard to parenting and employment, Ms. Schultz stated that Father participated with crisis in-home services from November 2010 until January 2011. Father's housing arrangement, however, has been unstable, and he has maintained minimal contact with CYF, other than this attendance at FSP meetings and the court hearings. He also only attended approximately sixty-five percent of his scheduled visits with B.M. (scheduled twice a week for two hours).4 Father missed several visits due to his incarceration after arrest in Illinois for possession with intent to deliver marijuana in March 2012. Father lost his job as a result of this arrest.
[At the termination hearing, ] Dr. Rosenblum, a licensed psychologist, testified to a series of evaluations with B.M., her foster parents, Mother, and Father.
1 On September 14, 2012, the parental rights of Unknown Father were terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), (5), and (8).
2 Mother unsuccessfully attended the House of Hope program on two prior occasions, so she did not have stable housing until February 2012.
4 Father missed several of his visitations because he failed to confirm the meeting twenty-four hours in advance as required by CYF. Therefore, to accommodate Father's work schedule, CYF later allowed Father to confirm by 4:30p.m. the day prior to the visit.

Trial Court Opinion, 11/29/12, at 1-4 (one footnote omitted). At the conclusion of said hearing, the trial court entered two separate orders on September 14, 2012, terminating Mother and Father's parental rights, respectively, to B.M. On September 17, 2012, Mother filed a timely notice of appeal along with a concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(a)(2)(i). On October 15, 2012, Father also filed a timely notice of appeal along with his Rule 1925(a)(2)(i) statement.[3] Thereafter, on November 29, 2012, the trial court filed its Rule 1925(a) opinion.

On appeal, Mother raises the following issues for our review.

1. Did the trial court abuse its discretion and/or err as a matter of law in granting the petition to involuntarily terminate Mother's parental rights pursuant to 23 Pa.C.S. § 2511(a)?
2. 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 the child pursuant to 23 Pa.C.S. § 2511(b)?

Mother's Brief at 5.

On appeal, Father raises the following issues for our review.
1. Did the trial court abuse its discretion and/or err as a matter of law in granting the petition to involuntarily terminate Father'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 in concluding that CYF met its burden of proving by clear and convincing evidence that termination of Father's parental rights would best serve the needs and welfare of the child pursuant to 23 Pa.C.S. §2511(b)?

Father's Brief at 5.

As both parents raise the same issues, we will address Mother and Father's issues together. When reviewing an order terminating parental rights, our standard of review is well settled.

[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., [], 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., [36 A.3d 567, 572 (Pa. 2011) (plurality)]. 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., 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 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., 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, 650 A.2d 1064, 1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-827 (Pa. 2012).

Termination of parental rights is controlled by section 2511 of the Adoption Act, which requires a bifurcated analysis.

Our case law has made clear that under 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 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), citing 23 Pa.C.S.A. ยง 2511. The burden is upon the petitioner to prove by clear and convincing evidence that the asserted statutory grounds for seeking the termination of parental rights ...


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