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[U] In re A.L.B.

Superior Court of Pennsylvania

February 28, 2014

IN RE: A.L.B., A MINOR CHILD, D.M.B., A MINOR CHILD, APPEAL OF: A.W., MOTHER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Dated July 11, 2013 In the Court of Common Pleas of Blair County Civil Division at No(s): 2013 AD 21 & 2013 AD 21A.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

BOWES, J.

A.W. ("Mother") appeals from the order dated July 11, 2013, in the Court of Common Pleas of Blair County, involuntarily terminating her parental rights to her female child, A.L.B., born in June of 2010, and her male child, D.M.B., born in January of 2012.[1] We affirm.

On May 7, 2013, Blair County Children, Youth & Families ("CYF") filed a petition for the involuntary termination of the parental rights of Mother and T.B. ("Father") to A.L.B. pursuant to 23 Pa.C.S. § 2511(a)(2), (8), and (b). On the same date, CYF filed a petition for the involuntary termination of the parental rights of Mother and Father to D.M.B. pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).

On July 9, 2013, the trial court held a combined permanency review and termination hearing.[2] At the hearing, counsel for CYF requested to amend the termination petition with respect to D.M.B. to include § 2511(a)(5), as well as § 2511(a)(2) and (b), and the court granted the request. In addition, counsel for CYF requested that the prior dependency proceedings be incorporated into the record for the termination proceeding, and the court granted the request. Further, CYF presented the testimony of Nikki Heidler, the current CYF caseworker, and C.C., the kinship foster mother of A.L.B. and D.M.B.[3] Mother testified on her own behalf, and she presented the testimony of L.L., her aunt, and Judy Brown, who had been the CYF caseworker involved with Mother at various times during her childhood. Father, although present and represented by counsel during the hearing, did not testify or present any witnesses.

The record reveals the pertinent facts and procedural history as follows.[4] CYF became involved with this family shortly after A.L.B.'s birth due to Mother's marijuana use and domestic violence between her and Father. At that time Mother was fifteen years old, and Father was eighteen years old. In February of 2011, CYF received a report that Mother was involved with Juvenile Probation due to her marijuana use. CYF filed a dependency petition with respect to Mother and placed her in foster care together with A.L.B., although CYF did not file a dependency petition concerning A.L.B. at that time. The court adjudicated Mother dependent on April 27, 2011. On April 28, 2011, Mother ran away from the foster home and took A.L.B. with her. Shortly after being located, Mother signed a voluntary placement agreement, and A.L.B. was placed in a foster home separate from Mother.

On May 4, 2011, CYF filed a dependency petition with respect to A.L.B. By order dated May 24, 2011, the court adjudicated A.L.B. dependent, and established a permanency goal of return home to Mother in foster care with a concurrent goal of adoption. Following a permanency review hearing on October 17, 2011, the trial court found, by order dated October 19, 2011, that Mother and A.L.B. had been placed together in a kinship foster care home in August of 2011, but that Mother ran away, leaving A.L.B. with the foster parents. Mother was located and placed in Pyramid Healthcare's Winterhaven Lodge, wherein she received services including independent living skills. The court found that Mother participated in supervised visitation with A.L.B. twice per week, and the visits went well. The court recommended that Mother participate in a mental health evaluation, continue with drug and alcohol services, and participate in services through Independent Living. Finally, the court found that Mother had pending criminal charges related to drug paraphernalia and shoplifting.

The next permanency review hearing was held on March 20, 2012. At this time, Mother's son, D.M.B., was nearly two months old. By order dated March 23, 2012, the trial court found that Mother was in substantial compliance with her permanency plan. Specifically, the court found that D.M.B. was in Mother's care in a foster home, and she was rendering appropriate care to him. Further, Mother was participating in the Independent Living Program, in drug and alcohol services, had appropriate visits with A.L.B., and the court found that CYF planned to expand the visits to include overnights. In addition, the court found that Mother was doing well in a cyber-school program and scheduled to graduate the following year. Likewise, by permanency review order dated July 2, 2012, the court found that Mother was in substantial compliance with her permanency plan.

By permanency review order dated September 21, 2012, the trial court found that Mother was in moderate compliance with the permanency plan. The court found that Mother was engaged in services including reunification, independent living, individual counseling, and that she was attending high school and on schedule to graduate in 2013.

However, on November 15, 2012, CYF filed a dependency petition with respect to D.M.B. CYF averred that, upon his birth in January of 2012, D.M.B. was discharged to Mother's care in a foster home. On September 20, 2012, A.L.B. was transferred to the same foster home as Mother and D.M.B. Approximately one month later, CYF learned that Mother was failing three high school classes, was found smoking on school property, and had threatened a student. In addition, Mother was equivocal on her decision regarding whether to stay in the care of CYF until graduation from high school.[5]

The trial court adjudicated D.M.B. dependent on January 10, 2013. By disposition order dated February 4, 2013, the trial court established D.M.B.'s permanency goal as adoption. The court found in its adjudication order that, on November 24, 2012, Mother ran away from the foster home where she resided with A.L.B. and D.M.B., and she was not located until December 28, 2012. The court found that Mother was taken to a Cambria County shelter home, where she consistently stated she did not want to remain in placement beyond her eighteenth birthday, i.e., February of 2013. In addition, while in the shelter home, Mother was found in possession of a small amount of marijuana.

By a separate permanency review order dated February 4, 2013, the court changed A.L.B.'s goal to adoption. The court found Mother in minimal compliance with her permanency plan in that she failed to fully invest herself in independent living services, and in individual counseling. Thereafter, effective February 15, 2013, A.L.B. and D.M.B. were transferred to kinship foster care.

Following a permanency review hearing on March 12, 2013, the trial court found that Mother minimally complied with the permanency plan. The court found as follows:

[M]other still has not established stable housing, employment or structure in her life. On the date of the hearing, she was picked up on a bench warrant issued by a local magisterial district judge due to her failure to appear for an underage drinking citation. She was charged with possession of marijuana in Cambria County and adjudicated guilty through the juvenile system. The case has been referred to Blair County for disposition. She also has a retail theft pending. [M]other was found to be in possession of marijuana in the . . . foster home but no charges were filed. She had absconded from the . . . foster home from 11/24 to 12/28/12. She is currently not enrolled in school but indicated that she would like to obtain her GED. She lacks transportation as well. She has had regular contact with the Agency regarding the children, and desires regular visits although the court has only directed that a closure visit be scheduled for her. She further testified that she is to obtain her own apartment at Evergreen Manor in the near future, although no lease agreement has yet been signed. She is looking for employment.

Order, 3/19/13, at 1-2.

Finally, the combined permanency and termination hearing, described above, was held on July 9, 2013. By order dated July 11, 2013, the trial court involuntarily terminated Mother's parental rights. Mother filed a timely notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

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

I. Whether [CYF] failed to meet its burden through clear and convincing evidence that the parental rights of [Mother] to her minor children, A.L.B. and D.M.B., should be terminated pursuant to 23 Pa.C.S. § 2511(a)(2), (5) and (8)[?]
II. Whether [CYF] failed to meet its burden through clear and convincing evidence that termination of parental rights of [Mother] to her minor children, A.L.B. and D.M.B., would best serve the minor children's needs and welfare pursuant to 23 Pa.C.S. § 2511(b)[?]
III. Whether the trial court erred in not giving [Mother] sufficient time to establish herself as a primary caregiver for the children following her departure from the dependency system as a dependent child herself[?]
IV. Whether the trial court erred in not giving sufficient weight to the relationship and the bond between [Mother] and her children[?]
V. Whether the best interest and welfare of said children [is] that they be returned to her care and custody, rather than be[] placed for adoption[?]

Mother's brief at 10.

We review this appeal 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.; R.I.S., 614 Pa. 275, 284, [ __ Pa. __, __, 36 A.3d 567, 572 (Pa. 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., 613 Pa. 371, 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. at 28-30], 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, 165, ] 650 A.2d 1064, 1066 (Pa. 1994).

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

Termination of parental rights is governed by § 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. § 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).

Instantly, we conclude the trial court properly terminated Mother's parental rights pursuant to § 2511(a)(2) and (b), which provide as follows:[6]

(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:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(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. § 2511(a)(2), (b).

To satisfy the requirements of § 2511(a)(2), the moving party must produce clear and convincing evidence regarding the following elements: (1) repeated and continued incapacity, abuse, neglect, or refusal; (2) such incapacity, abuse, neglect, or refusal caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being; and (3) the causes of the incapacity, abuse, neglect, or refusal cannot or will not be remedied. See In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003). The grounds for termination of parental rights under § 2511(a)(2), due to parental incapacity that cannot be remedied, are not limited to affirmative misconduct; to the contrary those grounds may include acts of refusal as well as incapacity to perform parental duties. In re A.L.D. 797 A.2d 326, 337 (Pa. Super. 2002).

With respect to § 2511(b), the requisite analysis is as follows:

Subsection 2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. 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 the needs and welfare of the child." In addition, we instructed that the trial 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. However, in cases where there is no evidence of a bond between a parent and child, it is reasonable to infer that no bond exists. In re K.Z.S., 946 A.2d 753, 762-63 (Pa.Super. 2008). Accordingly, the extent of the bond-effect analysis necessarily depends on the circumstances of the particular case. Id. at 63.

In re Adoption of J.M., 991 A.2d 321, 324 (Pa.Super. 2010).

Instantly, we review Mother's issues on appeal together. Mother argues the evidence of record is insufficient to support the termination order. Specifically, Mother argues that, "reasonable efforts by [CYF] should have continued with her in light of the circumstances." Mother's brief at 14. As such, she requests more time to work toward reunification with A.L.B. and D.M.B. Mother asserts that, "with continued support from family members such as [L.L.], she would be able to provide a safe, loving, and appropriate environment for her children." Id. at 16. Further, Mother argues the testimony of Judith Brown, a CYF caseworker, demonstrates that a bond exists between her and A.L.B. Upon thorough review, we discern no abuse of discretion by the court.

We observe that the trial court did not issue an opinion pursuant to Pa.R.A.P. 1925(a). However, following the combined permanency and termination hearing on July 9, 2013, the trial court set forth the following findings in its permanency review order:

[M]other has maintained contact with the Agency and inquires about the children. [M]other has not established any stability in her life, however. She moved out of Roaring Spring Commons, and then was living with . . . [the paternal grandfather of A.L.B. and D.M.B.] as of some time in June, 2013, and indicates that she will be moving into an apartment in Johnstown as of 7/17/13. This will be subsidized housing. She has made some effort to find employment, but has not secured any yet. It is her hope that she will be more successful in finding employment in the Johnstown area. She has not re-enrolled in any drug and alcohol counseling as of yet, although she acknowledges that she "needs the help." She has made some initial inquiry into a cyberspace educational program through the Altoona Area School District although she was unable to provide any details of what effect, if any, her relocation to Johnstown may have on this opportunity. [M]other did not avail herself of the numerous services that were provided to her. The original plan was to have the children remain with [M]other in placement until she was able to serve as the primary custodian at which time dependency could end. Unfortunately, [M]other exercised very poor judgment and absconded from placement, failed to take advantage of the services provided to her, and had criminal charges filed against her. The possession of a controlled substance charge filed in Cambria County resulted in a 6-month probationary sentence through a juvenile delinquency proceeding. [M]other had a bench warrant issued by a local magisterial judge due to her failure to stay current with her costs and fine payment as a result of an underage drinking conviction, but [M]other indicated she resolved that matter. [M]other has not seen the children since 11/26/12.

Order, 7/11/13, at 1-2. The testimonial evidence supports the court's findings.

Nikki Heidler, the CYF caseworker for this family since October of 2011, testified that, since the permanency hearing on March 12, 2013, Mother had moved out of her apartment at Roaring Spring Commons, where she was living with a cousin, and was residing with the paternal grandfather of A.L.B. and D.M.B. N.T., 7/9/13, at 4. Mother told Ms. Heidler she was going to relocate to Johnstown, but she did not provide any details to Ms. Heidler with respect to the housing in Johnstown. Id. at 5. Ms. Heidler testified that, Mother told her she has not secured employment, despite interviews, and decided to wait to continue a job search until she relocates to Johnstown. Id. at 6. With respect to her education, Ms. Heidler testified that Mother has provided no updates on the status of her schooling, and, to her knowledge, Mother has not returned to school since leaving the care of CYF. Id. Further, Ms. Heidler testified that Mother has not followed up with receiving additional services, including drug and alcohol treatment and independent living services, the latter of which is available to her until she turns twenty-one years old. Id. Moreover, Ms. Heidler testified that Mother was adjudicated delinquent on May 7, 2013, as a result of the drug possession charge arising from her time in the Cambria County shelter. Id. at 7-8.

Mother's testimony was consistent with that of Ms. Heidler. With respect to housing, Mother testified she will be moving to a three-bedroom apartment in Johnstown on July 17, 2013. Id. at 82-83, 88. However, on cross-examination by CYF's counsel, she acknowledged she has not advised her probation officer of her proposed move to Johnstown, and, therefore, she has not received permission from the probation office to move. Id. at 104. Mother testified that, once she relocates to Johnstown, she plans to enroll in cyber-school, to participate in mental health treatment, and to participate in drug and alcohol treatment. Id. at 85-87. Mother testified, in part, "I do want to get back into all of [these services] cause I know I do need the help right now." Id. at 87. With respect to criminal charges, Mother testified that none remained pending. Id. at 101. Finally, Mother testified on direct examination as follows, in part:

Your Honor I know I made a lot of mistakes. I learned from them[.] I regret all of them[, ] and I know everything I did was wrong. I know at this point and time it wouldn't be appropriate for my kids to be with me cause I need help. I want to get all the help that I've gotten before but it's kind of [a] day-by-day process. . . .

Id. at 98-99.

We conclude that the foregoing testimonial evidence supports the trial court's determination that Mother's conduct warrants termination pursuant to § 2511(a)(2). Despite CYF's involvement with the family since 2011, Mother's life remains unstable. She has continually rebuffed CYF's referrals for services and she lacks any legitimate prospect of employment. Moreover, Mother continues to exercise poor judgment. Indeed, notwithstanding her adjudication of delinquency for possession of a controlled substance and her recent acknowledgment of a substance abuse problem, Mother failed to commit to drug and alcohol treatment. Mother's repeated and continued incapacity, abuse, neglect or refusal has caused A.L.B. and D.M.B. to be without essential parental care, control or subsistence necessary for their physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.

We next review the order pursuant to § 2511(b). Mother relies on the testimony of Ms. Brown, the former CYF caseworker, in arguing that a bond exists between her and A.L.B. We discern no abuse of discretion by the court in concluding that terminating Mother's parental rights would best serve the developmental, physical, and emotional needs and welfare of A.L.B. and D.M.B.

Ms. Brown testified she was the CYF caseworker involved with this family when A.L.M. was a baby, prior to Ms. Heidler becoming the caseworker in October of 2011. Id. at 71. Ms. Brown testified she observed Mother's interaction with A.L.B. and found that "[b]oth of them were bonded mutually affectionate. I mean [Mother] was very attentive to [A.L.M.'s] needs." Id. at 72. Her testimony continued,

Q. And at that point and time how old was [Mother] and how old was [A.L.B.] . . . ?
A. I believe she was fifteen perhaps fourteen and [A.L.B.] was a toddler[.] [S]he wasn't one.
Q. So not[]withstanding the youth of [Mother] at that point and time there was a connection it sounds like between mom and child?
A. Yes.
Q. And how did [A.L.B.] react to [Mother] from your observations?
A. They were bonded.

Id. Ms. Brown did not observe interactions between Mother and D.M.B. Id.

Nevertheless, the record does not indicate that a bond continues to exist between Mother and A.L.B. Further, the record does not reveal a bond between Mother and D.M.B. Indeed, Mother's last contact with A.L.B. and D.M.B. was on November 26, 2012. Id. at 27. Ms. Heidler testified that a pre-adoptive home has been identified for A.L.B. and D.M.B. together.[7] She described A.L.B. and D.M.B.'s interaction with the pre-adoptive parents as follows:

They respond very well to them. I've witnessed visits in the [kinship care] home and the children seek out the adoptive parents over the [kinship foster mother]. They're very comfortable with them. They have been giving them hugs. They're referring to them as mom and dad especially [A.L.B.]. They just appear very comfortable with them very much on a path of healthy attachment to them.

Id. at 12.

In addition, C.C., the kinship foster mother, testified that A.L.B. and D.M.B. "instantly bonded" with the pre-adoptive parents. Id. at 37. Moreover, C.C. testified on direct examination as follows:

Q. Do you have any concerns at this point if the children were not moved to that home [of the pre-adoptive parents]?
A. I do.
Q. Can you express to the Court what your concerns would be?
A. I think because they've been moved so much and that they wanted this so badly. . . . [A.L.B.], I think she's highly intelligent[.] [S]he's a three year old little girl but she's more like a five year old. She knows . . . and she wants this so badly I think it would be --- if she was moved somewhere else it would be detrimental to these kids then they would have some problems. Right now I think that they're not having problems. . . .

Id. at 39.

As such, the testimony of C.C., the kinship care mother, demonstrates that A.L.B. and D.M.B. yearn for permanency, and that obtaining stability and permanency is in their best interest. We conclude that the totality of the record evidence supports the court's decision that terminating Mother's parental rights would serve the developmental, physical and emotional needs and welfare of A.L.B. and D.M.B. pursuant to § 2511(b). Accordingly, we affirm the order pursuant to 23 Pa.C.S. § 2511(a)(2) and (b).

Order affirmed.

Judgment Entered.


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