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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NON-PRECEDENTIAL DECISION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. § 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 are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

Herein, both Mother and Father challenge the trial court's determination that the evidence supported termination of their parental rights. Mother's Brief at 10; Father's Brief at 9. Instantly, the trial court terminated Mother and Father's parental rights pursuant to section 2511(a), (5) and (8).

(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:

(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. Instantly, we review the trial court's analysis of section 2511(a)(5) and (8).

Under Section 2511(a)(5), we, thus, review the record to determine whether [a child has] been removed from Mother for six months and whether Mother can remedy the conditions leading to the removal of [the child]. See, In the Interest of Lilley, 719 A.2d 327, 334 (Pa. Super. 1998) (the child has been removed from the parents by the court and the conditions which led to placement of the child continue to exist and have not been remedied within a reasonable time and termination of parental rights would best serve the needs and welfare of the child). We also note that in considering the importance of stability to a child's welfare, the reasons why the child has been with the third party for so long must be taken into account. In Re: Adoption of Steven S., 417 Pa. Super. 247, 612 A.2d 465, 471 (1992), appeal denied, 533 Pa. 661, 625 A.2d 1194 (1993).

In re Adoption of T.B.B., 835 A.2d 387, 395 (Pa. Super. 2003).

Further, to terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(8), it must be demonstrated that: "(1) [t]he 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." In re Adoption of M.E.P., 825 A.2d 1266, 1275-1276 (Pa. Super. 2003); 23 Pa.C.S.A. § 2511(a)(8). "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." In re A.R., 837 A.2d 560, 564 (Pa. Super. 2003). Once the 12-month period has been established, the trial court must next determine whether the conditions necessitating placement persist, despite the reasonable good faith efforts Agency supplied over a realistic period of time. Id. Terminating parental rights under section 2511(a)(8) does not require the trial court to evaluate a parent's current "willingness or ability to remedy the conditions that initially caused placement." T.B.B., supra at 396 (citation omitted).

Instantly, "Mother concedes the fact that [B.M.] had been removed from her parental care for a period of 12 months." Mother's Brief at 18-19. Additionally, "Father concedes the fact that [B.M.] had been removed from [his] parental care for a period of 12 months." Father's Brief at 13. Mother however, asserts that "the conditions which led to the removal of [B.M.] do not continue to exist." Mother's Brief at 19. Likewise, Father contends, that "the conditions which led to the removal of [B.M.] do not remain in effect." Father's Brief at 13. Therefore, the crux of our analysis is whether the conditions that led to B.M.'s removal from Mother and Father's parental care still existed at the time when the involuntary termination petition was filed, warranting termination under both sections (5) and (8).

In its Rule 1925(a) opinion, the trial court set forth the following reasoning in support of its determination to terminate Mother and Father's parental rights.

Originally, B.M. was removed due to Mother's drug use during pregnancy. Soon after [B.M.] was returned to Mother, she was removed again because of the parents' ongoing drug issues, Mother and Father's mental health, and concerns about domestic violence within the home.
[The trial court] found that grounds existed to terminate Mother and Father's parental rights under 23 Pa.C.S.A. § 2511(a)(8). Section 8 of the Adoption Act states that grounds for involuntary termination exist when the child has been removed from the care of the parents for more than twelve months, the conditions which led to the removal continue to exist, and the termination of parental rights would best serve the needs and welfare of the child 23 Pa.C.S.A. § 2511(a)(8). The conditions which led to the removal of B.M. continued to exist on the date the TPR was filed. In June, the drug and alcohol issues had not yet been resolved, and therefore Mother was not in a position to care for B.M.6 Also, although the June domestic violence incident occurred several days after the filing on the TPR petition, it is evident that the domestic violence concerns between Mother and Father were not remedied prior to the filing of the petition. Father also still had not obtained mental health treatment, and he was recently arrested for transporting marijuana and entered into a plea bargain for drug activity. Clearly, the issues which led to removal of B.M. had not been fully resolved for either parent by June 13, 2012 when the TPR petition was filed.
Section 5 of the Adoption Act states that grounds for involuntary termination exist when the child has been removed from the parent for at least six months, the conditions which led to the removal continue to exist, and those conditions are not likely to be remedied, with the help of services or assistance, within a reasonable period of time. 23 Pa.C.S.A. § 2511(a)(5). Arguably, the conditions which led to the removal of B.M. from Mother, specifically her ongoing drug and mental health issues, could be remedied in the not too distant future. The question which presents itself is what period of time would be considered "reasonable" under the statute. Because of the bond that has developed between B.M. and her foster parents and the percentage of [] B.M.'s life she has spent with her foster parents (approximately eighty-five percent of her life), a reasonable period would have to be immediate, and neither Mother or Father was in a position to take care of B.M. when the TPR petition was filed, or even at the TPR hearing. [The trial court] applaud[s] the progress which Mother especially has made toward resolving the issues which caused B.M. to be removed, but neither Mother, nor Father, have resolved those issues. Both Mother and Father have not completed their treatment, and Father had taken minimal steps, most just prior to the TPR hearing, to resolve his drug and mental health issues.
6 It is also important to note that Mother gave birth to another child with Father on June 13, 2012, and, while that child has been adjudicated dependent, she has not been removed from the home. Nonetheless, the dependency adjudication of the second child demonstrates that there were continued concerns about the parents which have not yet been remedied.

Trial Court Opinion, 11/29/12, at 7-9 (one footnote omitted).

After careful we review, we disagree with the trial court's conclusions. As noted earlier, "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 Adoption of S.P., supra at 826. Instantly, the facts revealed at the termination hearing and contained in the certified record do not support the trial courts conclusions. The evidence presented reveals that at the time the June 13, 2012 petition to terminate Mother and Father's parental rights was filed, the conditions which had led to the petition had been substantially remedied. Specifically, the following evidence was presented.

At the hearing, Gina Dillon, Father's drug and alcohol outpatient therapist at Mercy Behavioral Health testified to the progress Father has been making. Ms. Dillon began working with Father on June 4, 2012, and sees Father once a week for one hour sessions. N.T., 9/13/12, at 7. Ms. Dillon stated that "[Father] is very compliant. He attends as scheduled, and notifies [Ms. Dillon] in advance if there's a conflict with his work schedule[.]" Id. at 8. Mercy does not drug test, but Father has self-reported he has been clean for more than seven months. Id. at 9. Regarding the incident that occurred on the date Mother and Father's younger child was born resulting in the PFA, Ms. Dillon testified that as far as stress tolerance "he is doing very well at working at the goals, learning how to think before he acts, how to use cognitive and behavioral methods to replace any kind of impulsive actions." Id. at 9. Ms. Dillon also testified that Father is meeting with a psychiatrist and is on the waiting list for their anger management class, which he voluntarily requested. Id. at 11, 18.

Additionally, Michelle Schultz, B.M.'s caseworker from CYF testified. Ms. Schultz has been assigned to B.M.'s case for approximately two years and noted that B.M. has been in foster care since October 1, 2010, with the exception of two months when she was in Mother's care. Id. at 36. However, Ms. Schultz noted the following regarding Mother's recent progress.

Q. Okay. Can you tell the Court what [M]other did in order to try and achieve and recover from substance abuse?
A. Mother was involved with the PAC Program previously.
Q. And the PAC Program is?
A. Perinatal Addiction Center. She was discharged from the program on 5/11/11. At that time they noted her diagnosis was guarded. On 7/15/11 mother was referred to Power. On 8/17/11 to 8/22/11 mother was in Pyramid Duncansville Detox. She completed the Pyramid Healthcare Transitions program in Wilkinsburg. She was involved with the PAC Program since 12/2/2011, and on 2/16/12 mother had entered the House of Hope and successfully completed that program.

Id. at 40. Mother had another child, T.M., on June 13, 2012, and Mother has been living independently with T.M. since his birth. Id. at 41. Mother attends the Kelly Street Methadone Clinic and Perinatal Addiction Center five days a week where she has group therapy which she has been consistent with since February 26, 2012. Id. at 42. Mother is currently unemployed but is receiving public assistance and meeting her financial demands, has proper housing, and has been overall consistent in maintaining her visits with B.M. Id. at 43, 76, 80. Additionally, since February 2012 Mother has been addressing her parenting skills following the birth of her second child. Further, the trial court confirmed with Ms. Schultz that Mother has completed domestic violence counseling. Id. at 47. Finally, when asked about her concerns about Mother parenting B.M., Ms. Schultz testified as follows.

Q. Miss Schultz, what are your concerns with mother's ability to parent [B.M.]?
A. I have concerns with mother having two children in her care, two very young children in her care. The other concerns I would have - - I think that would be the main concern that I have.
Q. From your testimony it appears that mother was inconsistent and unable to work on and progress with her Family Service Plan goals until February of this year; is that correct?
A. That's correct.
Q. And then she did maintain and sustain herself in some programs to address those issues; right?
A. Correct.

Id. at 48. Based on the foregoing testimony, it is inapposite to conclude that the conditions in place at the time the termination petition was filed were still present at the time of the termination hearing.

Ms. Schultz also gave testimony on Father's progress noting that Father did complete a domestic violence program through the Center For Family Excellence, and was currently receiving treatment for his mental health issues. Id. at 52. Ms. Schultz also testified that Father has been somewhat compliant with meeting his FSP goals but has still not completed all of them, specifically maintaining housing and employment. However, on cross-examination, Ms. Schultz admitted she never visited any of Father's residences, and particularly has not visited his current housing situation with paternal grandmother to evaluate whether it is appropriate housing or not. Id. at 74. Ms. Schultz testified Father has attended the majority of his meetings with CYFS and the majority of his court hearings, but not all. Id. at 61. While Ms. Schultz noted that Father missed 21 of 33 urine screens, the screens were scheduled over a three-month period in 2010, hardly evidence that Father's conditions still existed at the time the involuntary termination petition was filed. Ms. Schultz testified that her concerns regarding Father's parenting of B.M. were based on Father putting B.M. to sleep and then sleeping himself during some of his supervised visits. Id. at 75. However, on cross-examination, Ms. Schultz stated she believed Father fell asleep only twice and both were around the time period that B.M. was ten or eleven months old, by the time of the hearing she was two years old. Id.

The issue of B.M.'s special needs was also discussed at the termination hearing. B.M. has visual issues which are being addressed through vision therapy, and is scheduled for a surgery to correct some of her vision issues. Mother has spoken to the ophthalmologist and has consented to the surgery. Id. at 83. Additionally, she has issues with her motor skills, has special braces she wears in her shoes to assist her walking, and receives occupational therapy. However, the occupational therapy takes place in the foster parents' home, and Ms. Schultz stated that Mother and Father cannot attend these sessions because the therapy takes place in the foster parents' home. Id. at 88. Additionally, Father has never been informed of the dates or times of the occupational therapy or doctors' appointments. Id.

Meredith Roman from Auberle Foster Care who supervised the visits between B.M. and Mother and Father and the foster parents also testified at the termination hearing. Ms. Roman began supervising these visits in January or February 2011. According to Ms. Roman's records, Mother and Father's track records for attending scheduled visits was as follows.

. April, May, and June 2011: Mother attended 5 of 22 visits and Father attended 12 of 21 possible visits.
. September, October, and November 2011: Mother attended 18 of 24 visits and Father attended 15 of 24 visits.
. January, February, and March 2012: Mother attended 23 of 27 visits and Father attended 16 of 27 visits.
. April and May 2012: Mother attended all 16 of her scheduled visits and Father attended 11 of the 16.
. June through the date of the hearing: Mother attended 19 of her 21 visits and Father attended 10 of his 21 visits.

Id. at 93. Ms. Roman testified that Mother canceled some of her visits late in her pregnancy with T.M., and that around the time of the hearing Father would cancel his visits because of work or when he was sick and he did not want to get B.M. sick. Specifically, Ms. Roman noted that Father would be a no show in the beginning, but in the five or six months prior to the hearing Father had been calling and giving advance notice if he could not make the visit, primarily because of work. Id. at 96. Ms. Roman also testified that although B.M. is hesitant to go to Father at first on some visits she will go to him, and "he does well with engaging her in the playroom and getting her attention and getting her engaged with him." Id. at 97.

In further support that Mother has found suitable housing, Sara Orr, from the Neighborhood Living Project testified. Ms. Orr testified that she helped Mother to find suitable housing, and that Mother is currently living in a two-bedroom apartment. Id. at 167-168. Following Ms. Orr's testimony, Bridget Hester of Family Resources testified to her assistance in helping Mother with T.M., but stated that she is present often when B.M. is there as well. Id. at 170. Ms. Hester noted that, "[Mother] is very loving, very affectionate… I think she manages actually both of the children very well when [B.M.] comes to visit, which with a three-month-old can be difficult." Id. She also stated that B.M. is very interested in her little sister. Id. Further, Ms. Hester noted the following.

[Q.] Have you observed her assisting with any of her motor skills?
[A.] [B.M.] – I mean, when they're doing things … if she is struggling, [Mother] will help her. Her gross motor skills right now obviously with the walking are still a little - - but, yes, as much help as she needs.

Id. at 173.

Further, Emily Boris, from Western Psych, through the Perinatal Addiction Center, testified to her therapy with Mother. She noted Mother participates in individual counseling, group therapy, sees a psychiatrist and does monthly medication management. Id. at 177. She stated Mother has made a lot of progress and has been sober for the past six months. Id. Mother is participating in methadone treatment and her dosage has been cut back as of the date of the hearing. Id. Ms. Boris stated that Mother "should be off methadone within a year at the absolute maximum, but psychiatrically we can treat her indefinitely." Id. at 180. She also stated she works with Mother to assist with T.M. and that Mother is very attentive and quick to respond to the baby's needs.

We recognize that Mother and Father have very limited visitation with B.M. at this point in time. However, termination of parental rights is an irrevocable decision that will forever sever the bonds between B.M. and her Mother and Father. As previously stated, "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)." See In re L.M., supra at 511. "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 are valid. In re R.N.J., supra at 276. Thus, it is necessary to look to the statutory factors to determine if CYS has proven them by clear and convincing evidence.

Our review of the record demonstrates that CYS established B.M. had been removed from Mother and Father's care for a period exceeding 12 months, therefore satisfying the time period imposed by section 2511(a)(5) and (8). However, based on the aforementioned evidence, we conclude that CYS has failed to establish by clear and convincing evidence that "the conditions which led to the removal or placement of the child continue to exist." 23 Pa.C.S.A. § 2511(a)(5) and (8). Accordingly, we need not reach the final statutory element that "termination of parental rights would best serve the needs and welfare of the child." Id.

In sum, B.M. has been out of the care of Mother and Father for well over 12 months. CYF had the opportunity to file a petition to involuntarily terminate their rights for several months before it filed the petition that is the subject of this appeal. Instead, CYF waited until Mother and Father were making the progress on their FSP goals that CYF had designated for them in hopes of reunification, to then decide to petition for termination. As evidenced by the record, Father has been attending more of his visits with B.M. or canceling them with adequate notice because of work, he has been compliant with his behavior health sessions, meets with a psychiatrist, is on a waiting list for anger management classes, has completed domestic violence class, has made progress on his stress tolerance, and has been clean for seven months. Mother has made almost all of her visits with B.M., is independently, although under supervision, caring for T.M., has obtained suitable housing, has been sober for six months, attends group therapy five days a week at a methadone clinic, is addressing her parenting skills, and has shown interest in assisting B.M. with her special needs. Based on the overwhelming testimony as to the progress being made by both parents in this case at the time of the petition to involuntarily terminate their parental rights, coupled with the continuing evidence of progress noted at the termination hearing, we cannot agree that the circumstances surrounding the termination petition have been demonstrated to continue to exist by clear and convincing evidence.

Accordingly, we conclude that the trial court's findings are not supported by competent evidence, and therefore, the trial court erred in its decision to terminate Mother and Father's parental rights to B.M. pursuant to section 2511(a)(5) and (8). See In re Adoption of S.P., supra at 826-827. Because we conclude the requirements of section 2511(a) were not met, we need not analyze section 2511(b). Therefore, we reverse the September 14, 2012 orders terminating Mother and Father's parental rights to B.M.

Order s reversed.

Judge Bowes files a Dissenting Memorandum.

DISSENTING MEMORANDUM BY BOWES, J.:

As I believe that the certified record sustains the orphans' court's decision to grant Allegheny County Children Youth and Family's ("CYF") petition to terminate D.W.'s ("Mother") and J.M.'s ("Father") parental rights to their daughter, B.M., I respectfully dissent. In contrast to the learned majority, I can find no basis to disturb the orphans' court's conclusion that CYF presented clear and convincing evidence to establish the statutory grounds to terminate Mother's and Father's parental rights pursuant to 23 Pa.C.S. § 2511(a)(5) and (8). As it specifically relates to the majority's contrary rationale, I believe that CYF proved that the conditions that necessitated B.M.'s ultimate removal from Mother and Father's care during November 30, 2010 continued to exist when CYF filed the underlying petitions to terminate their parental rights on June 13, 2012.

The majority reiterated the orphan's court's summary of the relevant facts, and it capably outlined the pertinent scope and standard of review. In light of our highly deferential standard of review, however, I am compelled to reiterate that our Supreme Court has consistently reminded this Court in appeals from dependency proceedings and orders terminating parental rights that we must not reweigh the evidence and substitute our judgment for the trial court. In re Adoption of S.P., 47 A.3d 817, 823 n.2 (Pa. 2012); In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). Indeed, citing its discussion in In re Adoption of S.P., the High Court recently explained in In Re: T.S.M., 7 WAP 2013, slip. op. at 27-28, (Pa. filed July 22, 2013), "The trial court's decision, however, should not be reversed merely because the record would support a different result. We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings." See also In re R.I.S., 36 A.3d 567, 572 (Pa. 2011) (plurality) (citing In re: R.J.T., supra at 1190) ("[A]bsent an abuse of discretion or error of law, where the trial court's findings are supported by competent evidence, an appellate court must affirm the trial court even though the record could support the opposite result.") (emphasis added).

The conditions that led to CYF's involvement in this case were Mother's and Father's substance abuse and mental health issues, and the agency's distress about domestic violence permeating the family dynamic. As the majority accurately notes, the orphans' court found that neither Mother nor Father had remedied the underlying conditions before CYF filed its petition to terminate parental rights during June 2012. Specifically, the orphans' court found that despite Mother's moderate progress, she failed to alleviate her issues with drug and alcohol or rectify her mental health concerns. See Trial Court Opinion, 11/29/12, at 7-9. As it relates to Father, the orphans' court determined that he had not remedied either condition prior to June of 2012. Id. at 8-9.

Herein, in disregard for our standard of review and the evidence sustaining the orphans' court's findings of fact and credibility determinations, the majority considered the evidence anew and reached a contrary conclusion. The writing is replete with instances where the majority engaged in its own fact-finding and credibility determinations, such as crediting as true Father's self-reported sobriety despite evidence that Father was arrested with a large amount of marijuana as recently as March of 2012. Likewise, in contrast to the majority's finding that Mother addressed her substance abuse issues, the record reveals that on the same date that CYF filed the underlying petitions to terminate her and Father's parental rights, Mother delivered a newborn who experienced symptoms of withdrawal while in the hospital. Id. at 41, CYF Exhibit 4, at 4. However, the most egregious circumvention of our standard of review pertains to the majority's failure to acknowledge, much less address, expert testimony relied upon by the trial court regarding Mother's and Father's individual psychological evaluations and the expert conclusion that adoption was the preferred outcome in this case.

During the evidentiary hearing on September 13, 2012, Neil Rosenblum, Ph.D. testified that he completed individual evaluations on Mother and Father in addition to the several interactional evaluations he performed involving B.M., Mother, Father, and the pre-adoptive foster parents.[1] Dr. Rosenblum evaluated Father on February 22, 2012 and August 21, 2012. He evaluated Mother once during March of 2012.

As it relates to Father's evaluations, Dr. Rosenblum diagnosed Father with cocaine abuse and cannabis dependency, mood disorder, generalized anxiety disorder, and relational issues. CYF Exhibit 4, at 5-6. Dr. Rosenblum outlined Father's intermittent drug abuse over the past ten years, and he noted his struggle to maintain sobriety. N.T., 9/13/12, at 115. Father has severe psychological stressors, including continuing legal problems, housing difficulties and CYF's intervention with his family. CYF Exhibit 4, at 6. Dr. Rosenblum testified that Father has strong antisocial personality traits and that he repeatedly engages in reckless behavior and poor decision making. N.T., 9/13/12, at 118-119. He continued that Father has difficulty completing tasks, as evidenced by Father's inability to complete drug and alcohol treatment. He testified, "There is a pattern of [Father] really struggling to finish anything and that would include maintaining sobriety [or] drug and alcohol treatment. . . ." Id. at 116. Dr. Rosenblum also identified Father's strain to maintain his composure in stressful situations. Father presents with signs of hypomania, has racing thoughts, and struggles with mood swings, depression, and feelings of hopelessness. Id. at 119. Dr. Rosenblum observed that Father is unable to control his frustration, overreacts to certain issues, and is easily offended by others. Id. at 121. For example, Dr. Rosenblum described an incident where Father became incensed with foster parents upon learning that they taught B.M. some sign language in order to supplement her communication abilities and counteract her delayed speech and language development. Id. at 120. While a typical child B.M.'s age should be expected to know approximately twenty-five words, B.M. knew only ten. Id. at 121-122. Rather than commend foster parents for their attempts to enhance B.M.'s communication skills, Father became defensive, and viewing the sign language lessons as a personal affront against his daughter, he demanded, "What do they think; she is deaf?" Id. at 120. During cross-examination by Father's counsel, Dr. Rosenblum further elucidated that Father ignored his several attempts to explain that the lessons were not alarming and that therapists typically employ sign language to supplement communication skills. Id. at 132.

Dr. Rosenblum's February 2012 evaluation, which is included in the certified record, revealed that Father has struggled to maintain any degree of stability. Dr. Rosenblum subsequently confirmed this conclusion in the August 2012 evaluation report in light of Father's March 21, 2012 arrest and subsequent guilty plea to possession of marijuana with intent to deliver. Id. 119. That criminal ordeal, which Dr. Rosenblum cited as an example of Father's extremely poor decision making skills, caused Father to lose his employment and his apartment. Id. at 118, CYF Exhibit 4, at 7. The report also identified a continued pattern of self-defeating behavior in Father's personal relationships. CYF Exhibit 4, at 4. For example, Father became embroiled in a domestic dispute with Mother following the June 2012 birth of their youngest child. N.T., 9/13/12, at 119. Father was removed from the hospital, and a protection from abuse order was entered against him as a result of that episode. Id. at 161.

In sum, Dr. Rosenblum concluded that Father failed to make any progress since the prior evaluation. In opining about Father's lack of advancement, Dr. Rosenblum observed, "Again, I see in fact not only no improvement, but I would probably [note a] deterioration in his adjustment and [a] deterioration in his living situation." Id. at 119. As of the August 2012 evaluation, Father was only returning to his mental health treatment after a several-month hiatus following his drug-related arrest. Id. Indeed, Father conceded to Dr. Rosenblum during the August evaluation that he was not in a position to care for his daughter at that juncture even though he was hopeful to improve his situation over time. See CYF Exhibit 4, at 5.

In relation to Mother, Dr. Rosenblum diagnosed her with, inter alia, opioid dependence, polysubstance abuse, mood disorder, and generalized anxiety disorder. See CYF Exhibit 3, at 11. She also exhibited dependent personality traits, and identified several psychological stressors, including housing, financial, and interrelationship problems, as well as B.M.'s removal and the family's involvement with CYF. Id. at 11. Dr. Rosenblum testified that Mother struggles to address her substance abuse and her mental health impairments. N.T., 9/13/12, at 111. She failed several attempts to complete drug treatment, and as of the date of the March 2012 evaluation, Mother had revived a previously attempted substance abuse program. Id. at 109-110. However, she apparently still had not remedied her substance abuse as late as June 13, 2012, when she gave birth to a child who experienced withdrawal. CYF Exhibit 4, at 4. In response to Mother's counsel's statement that Mother had completed a twenty-eight-day program during 2011, Dr. Rosenblum stressed that he was not as concerned with determining which specific program that Mother actually completed, but rather, he emphasized, "She has been in a number of different programs and invariably relapsed every time except for now." N.T., 9/13/12, at 135.

In addition, Dr. Rosenblum posited that although Mother made an effort to address her substance abuse issues at this point in her rehabilitation, she will have to participate in a methadone maintenance program for the next twelve months and continue relapse prevention. Id. at 180. Moreover, her mental health issues remained prominent. Id. at 110.

Ultimately, Dr. Rosenblum proffered the following conclusion in his August 2012 report: "[T]his evaluator would strongly recommend to the court that a goal of adoption remains consistent with [B.M.'s] needs and welfare at this time. In my clinical opinion a goal of adoption is clearly the only way to provide stability, continuity of care and the probability of a secure, stable future for [B.M.] in the years to come." CYF Exhibit 4, at 8. Dr. Rosenblum surmised during the evidentiary hearing, "I felt given the problem that both mother and father have struggled with in terms of mental health difficulties, substance abuse problems, [and] domestic violence, that there was no clear way to look at reunification as a viable goal. . . ." N.T., 9/13/12, at 112. As it relates to Mother's progress, Dr. Rosenblum reiterated his concern about the possibility of relapse notwithstanding Mother's completion of a drug and alcohol program. "[T]he issue of mother still having a way to go in terms of documenting that she can continue to remain drug-free . . . makes me believe that the goal of adoption is still most consistent with [B.M.'s] need and welfare[.]" Id. at 123.

Notwithstanding the majority's decision to concentrate on the evidence that was favorable to Mother and Father, which I believe disregards our well-defined standard of review, it is apparent from my review of the certified record that clear and convincing evidence exists to sustain the orphans' court's determination.

While the majority focuses upon the progress Mother and Father made in addressing the goals of their Family Service Plan since February of 2012 as a basis to overturn the orphans' court's decision, I cannot equate their progress toward maintaining sobriety and mental health with actually resolving those underlying conditions. Mother and Father had approximately eighteen and one-half months since November 30, 2010 to remedy the conditions that led to their daughter's placement with CYF before the agency filed the underlying petitions to terminate their parental rights. I acknowledge that Mother and Father have made varying degrees of progress addressing some of the conditions that existed during that period. Yet the conditions remain at some level. Thus, in light of our standard of review and the competent evidence supporting the orphans' court's determination, I do not believe that the evidence regarding Mother's and Father's moderate progress at this late juncture can sustain the majority's decision to reverse the orphans' court's finding that the parents actually have failed to remedy those circumstances.

Hence, contrary to the majority's viewpoint, I believe sufficient evidence exists in the certified record to establish that at least two of the conditions that led to B.M.'s placement, i.e., Mother's and Father's respective substance abuse and mental health issues, continue to exist and are not likely to improve within a reasonable period.

Having found that the orphans' court did not abuse its discretion in concluding that CYF proved, by clear and convincing evidence, that termination of Mother's and Father's parental rights was warranted, I next address whether the involuntary termination of parental rights would best serve B.M.'s developmental, physical, and emotional needs and welfare pursuant to subsection 2511(b).[2] In In re C.M.S., 884 A.2d 1284, 1287 (Pa.Super. 2005), this Court stated, "Intangibles such as love, comfort, security, and stability are involved in the inquiry into needs and welfare of the child." In addition, we instructed that the orphans' court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond. Id. While the Adoption Act does not mandate a bond-effect analysis, our case law requires it where a bond exists to some extent. See In re E.M., 620 A.2d 481, 485 (Pa. 1993). Nevertheless, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008).

Moreover, we have emphasized that while a parent's emotional bond with his or her child is a major aspect of the subsection 2511(b) best-interest analysis, it is nonetheless only one of many factors to be considered by the orphans' court when determining what is in the best interest of the child. In re K.K.R.-S., 958 A.2d 529, 533-536 (Pa.Super. 2008). The mere existence of an emotional bond does not preclude the termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial court's decision to terminate parents' parental rights was affirmed where court balanced strong emotional bond against parents' inability to serve needs of child). Rather, the orphans' court must examine the status of the bond to determine whether its termination "would destroy an existing, necessary and beneficial relationship." In re Adoption of T.B.B., 835 A.2d 387, 397 (Pa.Super. 2003). Moreover, as we explained in In re K.Z.S., supra at 763 (emphasis omitted),

In addition to a bond examination, the court may equally emphasize the safety needs of the child under subsection (b), particularly in cases involving physical or sexual abuse, severe child neglect or abandonment, or children with special needs. The trial court should also examine the intangibles such as the love, comfort, security and stability the child might have with the foster parent. Another consideration is the importance of continuity of relationships to the child and whether the parent child bond, if it exists, can be severed without detrimental effects on the child. All of these factors can contribute to the inquiry about the needs and welfare of the child.

See also, In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010) (orphans' court can emphasize safety needs, consider intangibles, such as love, comfort, security, and stability child might have with the foster parent, and importance of continuity of existing relationships).

Herein, the orphans' court proffered the following needs-and-welfare analysis pursuant to subsection 2511(b).

I am convinced that the needs and welfare of B.M. are best served by terminating the biological parents' parental rights, thus freeing the child for adoption by the foster parents. In Dr. Rosenblum's testimony he stated that B.M.'s primary attachment is with her foster parents. Even though B.M. has some attachment with Mother and Father, Dr. Rosenblum testified that B.M. has a much stronger attachment with her foster family. Furthermore, the foster parents understand the activities B.M. must complete daily in order for her to improve with her developmental delays. These developmental concerns increase B.M.'s need for the permanency and stability that the foster parents provide. Furthermore, Dr. Rosenblum testified that B.M. was very happy, secure, and responsive to her foster parents.
B.M. has developed a strong and significant emotional attachment to her foster family, with whom she has lived since she was approximately two and [one-]half months old. In order for B.M. to fully realize the permanency and stability of her foster family, through adoption, termination of the biological parents' parental rights is necessary. Dr. Rosenblum testified that, while B.M. does have an attachment to her biological parents, particularly Mother, B.M. has spent no more time with them than a typical child spends at daycare. Therefore, he opined that termination would best serve the needs and welfare of B.M. due to the significant attachment she has developed with her foster family by living with them the vast majority of her young life.

Trial Court Opinion, 11/29/12, at 9-10.

I believe that the certified record sustains the orphans' court's determination. During the evidentiary hearing, Dr. Rosenblum discussed the interactional evaluation he performed with B.M. and Mother on March 19, 2012, and the two sets each of interactional evaluations that he conducted between B.M. and Father and between B.M. and her foster parents during February and August of 2012. As the orphans' court accurately observes, Dr. Rosenblum ultimately concluded that termination of Mother's and Father's parental rights would best satisfy B.M.'s developmental, physical and emotional needs and welfare. Specifically, Dr. Rosenblum testified that B.M.'s primary attachment was with her foster parents and that her relationship with Mother and Father was analogous to a child's relationship with a daycare provider. N.T., 9/12/12, at 111-112, 123-124. Indeed, as it relates to whether severing Mother's and Father's bonds with B.M. would be detrimental to her emotional and psychological well-being, Dr. Rosenblum further explained,

[B.M.] has no way to maintain a concept of [Mother and Father] as significant people in their lives, in her life. She visits them about twice a week, but that is, again, even less [time] than a child would spend . . . with a day-care provider. So she has no concept of ever living with them, and in my opinion terminating parental rights, just stopping visits in my opinion won't affect her at all.

Id. at 124.

Moreover, in considering B.M.'s special needs, Dr. Rosenblum opined,

Well, my conclusions were that [B.M.] has established a very secure, primary attachment to her foster parents. I found that in particular with her special developmental needs that she is a child who requires continuity of care [and] stability. She doesn't have the same margin of error, if you will, as other children. She doesn't have the same adaptability or flexibility.

Id. at 111. As I noted supra in outlining the portions of Dr. Rosenblum's evaluations relating to Mother's and Father's failure to remedy their substance abuse and mental health issues, Dr. Rosenblum did not envision reunification as a viable goal in light of B.M.'s special needs and Mother's and Father's inadequacies; therefore, he concluded that adoption was consistent with the child's needs and welfare. Id. at 112.

Thus, mindful that the needs and welfare analysis is reviewed on a case-by-case basis, and with consideration of both the nature and extent of B.M.'s relationships with Mother and Father, the intangible factors that we outlined in In re K.Z.S., supra and In re A.S., supra, such as the love, comfort, security, and stability B.M. enjoys with her pre-adoptive foster family, and the importance of continuing those beneficial relationships upon her emotional and developmental well-being, I believe sufficient evidence exists in the certified record to sustain the orphans' court's determination that terminating Mother's and Father's parental rights was in B.M.'s best interest.

For all of the forgoing reasons, I would affirm the orphans' court's order terminating Mother's and Father's parental rights to B.M. pursuant to 23 Pa.C.S. § 2511(a)(5)(8) and (b).


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