Opinion
J-S42031-15 No. 523 EDA 2015
08-05-2015
IN RE: TERMINATION OF PARENTAL RIGHTS TO C.E.H. AND A.A.H., MINORS APPEAL OF: V.H., MOTHER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decrees entered January 22, 2015, in the Court of Common Pleas of Lehigh County, Orphans' Court, at No(s): A2014-0019, A2014-0020 BEFORE: SHOGAN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
V.H. ("Mother") appeals from the decrees of the Lehigh County Court of Common Pleas, which involuntarily terminated her parental rights to her daughters, C.E.H., born in November of 2007, and A.-L.A.H., born in November of 2006, ("Children"). We affirm.
We note Mother purported to appeal from the orders entered in the orphans' court. The appeals lie from the decrees entered by the orphans' court. We have amended the caption accordingly. Furthermore, Mother filed one notice of appeal from two decrees. The Pennsylvania Rules of Appellate Procedure address the requisites for an appealable order and provide: "Every order shall be set forth on a separate document." Pa.R.A.P. 301(b). This court in Dong Yuan Chen v. Saidi , 100 A.3d 587 (Pa. Super. 2014), stated that "[t]aking one appeal from separate judgments is not acceptable practice and is discouraged." Id. at 589 n.1 (citation omitted). The Saidi Court declined to find the procedural error fatal to the appeal because the trial court addressed the issues. Id. Similarly, we find the procedural error is not fatal in the case sub judice.
Mother also has a third child, J.W., a male, who was included in the termination proceedings, was eleven years old at that time, and was living with Children's maternal grandmother. N.T., 7/28/14, at 21-22. J.W. has a different father from Children, L.W. Id. at 21. The trial court noted that LCOCYS withdrew its petition to terminate Mother's parental rights as of December 15, 2014. Orphans' Ct. Op., 1/22/15, at 2 n.1. Thus, J.W. is not a subject child in these appeals. The trial court noted that the father of Children, B.L.H., ("Father") was incarcerated on March 18, 2013, in relation to an armed robbery conviction. Id. at 2. He remained incarcerated throughout the pendency of Children's placement. Id. Father signed voluntary consents to the termination of his parental rights to the Children on February 11, 2014. In separate decrees, the orphans' court terminated Father's parental rights to Children. Id. at 2 n.1. Father has not challenged the termination of his parental rights, and he is not a party to the instant appeal.
We adopt the facts and procedural history set forth in the orphans' court adjudication. See Orphans' Ct. Adjudication, 1/22/15, at 1-15. Importantly, the orphans' court stated as follows:
LCOCYS became involved with this matter in late March 2013 after Mother left [C]hildren with family members in the Lehigh Valley. She indicated she was dropping [C]hildren off for the weekend and would pick them up. Mother did not return, however, and her whereabouts were unknown. The family placed [C]hildren with their paternal grand aunt, [J.H., ("Grand Aunt")]. Unable to get a custody order due to the inability to serve notice on Mother, [Grand Aunt] contacted LCOCYS.
LCOCYS had multiple previous involvements with the family. The most recent previous involvement was a referral from New York Children and Youth to check on the welfare of a child. The family was living in a shelter at that time, and there was a concern that Mother was not following through with [C]hildren's medical care.
On March 26, 2013, LCOCYS obtained an emergency protective custody order for both minors and placed them in foster care in the kinship home of [Grand Aunt], who was already providing care for [C]hildren.
On April 4, 2013, [Children] were adjudicated dependent.
Mother was not present at the adjudication hearing. She had not received notice of the hearing, and her whereabouts were unknown. As a result of the adjudication, Mother was ordered to comply with the following services in order to reunify with the minors:
1) Obtain and maintain appropriate legal income and stable housing.
2) Visit with the minors as scheduled by LCOCYS.
3) Comply with the minors' counseling services and follow all recommendations made.
4) Work with reunification services upon Mother's return to Lehigh County in order to regain custody of the minors.
5) Comply with Children and Youth and all recommendations made.
The first permanency review hearing took place on June 20, 2013. Mother was not present, her whereabouts were still unknown, and she had not been in contact with LCOCYS. . . . The [c]ourt found Mother had no compliance with the service plan and that she made no progress with alleviating the necessity for [C]hildren's placement. . . .
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The second permanency review hearing took place on December 5, 2013. Mother was not present despite receiving verbal notice of the hearing from the caseworker . . . . Mother still had no compliance with the service plan and no progress with alleviating the necessity for [C]hildren's placement.
Pursuant to the December 5, 2013, permanency review hearing, Mother was ordered to comply with the following services:
1) Complete a drug and alcohol evaluation and follow through with the recommendations.
2) Complete a mental health evaluation and follow through with the recommendations.
3) Comply with the minors' mental health services and follow all recommendations made.
4) Submit to random urinalyses as directed by LCOCYS.
5) Cooperate with appropriate in-home service providers, such as parenting education, intended to assist reunification.
6) Obtain and maintain appropriate legal income and stable housing.
7) Attend visitation with the minors as scheduled by LCOCYS.
8) Continue to contact and cooperate with LCOCYS.
Id. at 3-4, 5-6 (paragraph numbers, footnote and citations to the record omitted).
On December 5, 2013, following the permanency hearing, Mother had her first visit with [C]hildren. She was 30 minutes late for the hour-long visit.
Mother's second visit with [C]hildren occurred on March 18, 2014. Mother was again 30 minutes late for the hour-long visit.
On April 24, 2014, LCOCYS filed the petitions for the involuntary termination of Mother's parental rights. The third permanency review hearing was held on June 19, 2014. "The [orphans' c]ourt found Mother had made minimal compliance with the permanency plan but had made no progress toward alleviating the circumstances that necessitated the original placement." Id. at 6. Mother visited Children on June 19, 2014, and July 8th and 22nd. Id. at 8, 9. The termination of parental rights hearing was held on July 28, 2014. Id. at 9. "At the time of the termination hearing, [C]hildren had been in LCOCYS custody in Grand Aunt's kinship home for 16 consecutive months." Id.
On January 22, 2015, the orphans' court entered the decrees involuntarily terminating Mother's parental rights to the Children pursuant to section 2511(a)(1), (2), (5), (8), and (b). This timely appeal followed. Mother failed to accompany her notice of appeal with a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Although Mother initially failed to file a concise statement, we decline to dismiss or quash her appeal. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009) (holding that failure to file concise statement of errors complained of on appeal with the notice of appeal pursuant to Pa.R.A.P. 1925(a)(2)(ii), will result in a defective notice of appeal, to be disposed of on a case by case basis). This misstep was not prejudicial to any of the parties and did not impede the orphans' court's ability to issue an opinion.
Mother raises the following issues for our review:
I. Whether the Lower Court committed an error of law or abuse of discretion in terminating the parental rights of Mother pursuant to 23 Pa.C.S.[ ] § 2511(a)(1) where the evidence demonstrated Mother's consistent efforts to present herself as a parent resource despite financial hardships and mental health challenges?Mother's Brief at 6.
II. Whether the Lower Court committed an error of law or abuse of discretion in terminating the parental rights of Mother pursuant to 23 Pa.C.S.[ ] § 2511(a)(2) where the evidence demonstrated Mother's efforts and commitment to remedy the circumstances[?]
III. Whether the Lower Court committed an error of law or abuse of discretion in terminating the parental rights of Mother pursuant to 23 Pa.C.S.[ ] § 2511(a)(5) where Mother contended the services were not addressing her specific needs[?]
IV. Whether the Lower Court committed an error of law or abuse of discretion in terminating the parental rights of Mother pursuant to 23 Pa.C.S.[ ] § 2511(a)(8) where the evidence demonstrated there was insufficient evidence about [C]hildren's emotional needs and no analysis of the extermination of the family unit[?]
V. Whether the Lower Court committed an error of law or abuse of discretion in determining that the requirements of 23 Pa.C.S.[ ] § 2511(b) were satisfied by clear and convincing evidence[?]
We note that Mother framed the issues slightly differently in her concise statement of errors complained of on appeal. We, nevertheless, find the issues adequately preserved for our review.
Mother claims that she placed Children in the care of relatives to protect and help them by removing them from a dangerous situation in New York. Mother asserts that, in March of 2013, she was in an abusive relationship with Father, and placed Children with Grand Aunt to protect them from Father. Mother states that she placed her other child, J.W., with Maternal Grandmother. Mother claims that she returned to New York to work and pursue adequate housing. She alleges that she was a victim of child abuse and domestic violence, and suffers from depression. Mother asserts that she has no criminal record or significant drug and alcohol issues. Mother alleges that her financial constraints, inability to find decent employment, and inability to secure affordable housing caused her recent inability to provide for Children. Mother asserts that the termination of her parental rights will eliminate or negatively impact Children's connection to J.W., to whom her parental rights were not terminated.
Mother also argues that the testimony regarding the bond between her and Children was inconclusive. She asserts that her visits with Children were positive and affectionate. Mother claims that Children's mild behavioral issues that followed the visits likely resulted from Children's sadness caused by their separation from her.
Our review is governed by the following principles:
[A]ppellate courts must apply an abuse of discretion standard when considering a trial court's determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. As has been often stated, an abuse of discretion does not result merely because the reviewing court might have reached a different conclusion. Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will.In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (citations omitted).
[T]here 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. 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.
The burden is upon the petitioner to prove by clear and convincing evidence that the asserted grounds for seeking the termination of parental rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). Moreover, we have explained:
The standard of clear and convincing evidence is defined as testimony that is so "clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue."Id. (citation omitted).
Termination of parental rights is governed by Section 2511 of the Adoption Act, which requires a bifurcated analysis:
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 theIn re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.
In the case at bar, the orphans' court terminated Mother's parental rights pursuant to Sections 2511(a)(1), (2), (5), (8), and (b). "[W]e need only agree with [the orphans' court's] decision as to any one subsection [of 2511(a)] in order to affirm the termination of parental rights." In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Here, we consider whether the court properly terminated Mother's parental rights pursuant to Section 2511(a)(2) and (b).
Section 2511 provides, in pertinent part:
(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:23 Pa.C.S. § 2511(a)(2), (b).
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(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.
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(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.
This Court has stated:
In order to terminate parental rights pursuant to 23 Pa.C.S.[ ] § 2511(a)(2), the following three elements must be met: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) such incapacity, abuse, neglect or refusal has 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.In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003).
"The grounds for termination 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). A parent is required to make diligent efforts towards the reasonably prompt assumption of full parental responsibilities. Id. A parent's vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous. Id. at 340.
We adopt the orphans' court's reasoning in terminating Mother's parental rights under section 2511(a)(2). See Orphans' Ct. Adjudication at 21-25. The court concluded its analysis of section 2511(a)(2) as follows.
We note that on page 24 of its Adjudication, the orphans' court stated that Mother did not actually visit Children until December 5, 2014, whereas the court indicated in several places in the Adjudication that the first visit occurred on December 5, 2013. See Orphans' Ct. Adjudication at 6, 21. This appears to be a clerical error.
Since their adjudication of dependency on April 4, 2013, Mother's lack of involvement and her inability to follow through has caused [C]hildren to be without essential parental care, control or subsistence necessary for their physical and mental wellbeing; unfortunately, Mother has not demonstrated that she is capable of remedying her incapacity and failure to parent in the near future. Instead, Mother has demonstrated that she has tremendous difficulty with following through with the requirements placed on her, all of which were designed to reunite her with her children. Accordingly, we find [LCOCYS] has established by clear and convincing evidence that the grounds for termination set forth in 23 Pa.C.S.[ ] § 2511(a)(2) have been met as to Mother.Id. at 25-26, 27 (citation omitted).
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Simply put, Mother has been unable to exert herself to take and maintain a place of importance in the lives of [Children]. She has not made an appreciable, genuine effort to maintain communication [in] her relationship with [C]hildren. Based on Mother's demonstrated inability to follow through, this [c]ourt is convinced that termination will best serve the needs and welfare of [C]hildren to provide them with stability and permanence in [Grand A]unt's home, where all their tangible and intangible needs are being met.
There is ample, competent, clear and convincing evidence in the record to support the orphans' court's determination that Mother has not demonstrated any ability to remedy the circumstances which led to Children's placement, nor is there any indication that she could remedy such circumstances in the foreseeable future, even with continued services in place. After a careful review of the record, we find that the orphans' court aptly discussed the evidence against the requirements of Section 2511(a)(2). We will not impose our own credibility determinations and re-weigh the evidence. We must defer to the trial judge's determination, 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. See In re S.P., 47 A.3d at 826-27. It was reasonable for the orphans' court to conclude Mother was incapable of parenting Children, that Children had been left without proper parental care and control, and that Mother cannot, or will not, remedy her parental incapacity. See 23 Pa.C.S. § 2511(a)(2); In re Adoption of M.E.P., 825 A.2d at 1272. We discern no abuse of discretion. In re Adoption of S.P., 47 A.3d at 826-27.
Next, we consider whether the orphans' court abused its discretion by terminating Mother's parental rights pursuant to Section 2511(b). See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc). This Court has stated that the focus in terminating parental rights under section 2511(a) is on the parent, but it is on the child pursuant to Section 2511(b). Id. at 1008.
In reviewing the evidence in support of termination under Section 2511(b), our Supreme Court recently stated as follows.
[I]f the grounds for termination under subsection (a) are met, a court "shall give primary consideration to the developmental, physical and emotional needs and welfare of the child." 23 Pa.C.S. § 2511(b). The emotional needs and welfare of the child have been properly interpreted to include "[i]ntangibles such as love, comfort, security, and stability." In re K.M., 53 A.3d 781, 791 (Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)], this Court held that the determination of the child's "needs and welfare" requires consideration of the emotional bonds between the parent and child. The "utmost attention" should be paid to discerning the effect on the child of permanently severing the parental bond. In re K.M., 53 A.3d at 791.In re: T.S.M., 71 A.3d 251, 267 (Pa. 2013).
Our Supreme Court has explained, "the mere existence of a bond or attachment of a child to a parent will not necessarily result in the denial of a termination petition." Id. at 267. "Common sense dictates that courts considering termination must also consider whether the children are in a pre-adoptive home and whether they have a bond with their foster parents." Id. at 268. Moreover, in weighing the bond considerations pursuant to Section 2511(b), "courts must keep the ticking clock of childhood ever in mind. Children are young for a scant number of years, and we have an obligation to see to their healthy development quickly. When courts fail . . . the result, all too often, is catastrophically maladjusted children." Id. at 269.
We have stated that, in conducting a bonding analysis, the court is not required to use expert testimony, but may rely on the testimony of social workers and caseworkers. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010). It is appropriate to consider a child's bond with her foster parent. See In re: T.S.M., 71 A.3d at 268.
"A parent's own feelings of love and affection for a child, alone, do not prevent termination of parental rights." In re Z.P., 994 A.2d at 1121. We stated in In re Z.P., a child's life "simply cannot be put on hold in the hope that [a parent] will summon the ability to handle the responsibilities of parenting." Id. at 1125 (citation omitted). Rather, "a parent's basic constitutional right to the custody and rearing of his child is converted, upon the failure to fulfill his or her parental duties, to the child's right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment." In re B., N.M., 856 A.2d 847, 856 (Pa. Super. 2004).
The orphans' court explained its decision to terminate Mother's parental rights under Section 2511(b) as follows.
In analyzing the bond between [C]hildren and Mother, we note that [LCOCYS] had some difficulty presenting evidence of the bond between the two children and their [M]other because Mother attended so few visits with [C]hildren. In the single visit observed by the caseworker, [C]hildren seemed to have a good relationship with MotherOrphans' Ct. Adjudication at 28-30 (citations to record omitted). We agree.
and interacted well with her. The reunification worker bolstered this testimony: Her observation of interactions at the beginning of visits were appropriate; she saw Mother express physical affection toward [C]hildren.
Four of Mother's five visits Mother [sic] have gone well. Negative outcomes followed the visit in which Mother inappropriately told [C]hildren they would be coming home soon. Following that visit, the girls became aggressive in the kinship home, and the bedwetting behavior of A.-L.A.H. increased noticeably.
Not surprisingly, Mother testified that she and the [C]hildren have a strong bond and believed severing the bond would affect her children negatively. [LCOCYS] offered no testimony regarding the effect on [C]hildren of permanently severing that bond, focusing instead on the benefit and necessity of permanency in a pre-adoptive home and on Mother's lack of progress with meeting court-ordered goals for reunification.
[Children] are receiving love, comfort, security and stability from their kinship resource. All of their physical, emotional, medical, and academic needs are being met by their [G]rand [A]unt. They have lived continuously with [her] since March of 2013. They are assimilated to that home environment and are well-bonded to their [G]rand [A]unt. She currently cooperates with sibling visits so [C]hildren can spend time with their half-brother, [J.W.] She ensures [C]hildren have continued contact with their father. [C]hildren's placement is stable and safe, and [C]hildren would like to remain there.
Except for the visit in which Mother told [C]hildren they were coming to live with her soon, [C]hildren have done remarkably well regardless of whether Mother was visiting or not, regardless of whether she was nearby or whether her whereabouts were unknown. Stability is a very important factor for the proper growth and development of every child. When it appeared to [C]hildren that their stability would be uprooted, negative behaviors resulted. The [c]ourt finds that[,] although Mother and [C]hildren have an emotional bond, severing that bond permanently would not destroy a necessary and beneficial relationship.
We believe that permanence will best serve the developmental, physical and emotional needs and welfare of [C]hildren. Under the circumstances presented here, we find it is in [C]hildren's best interest to terminate Mother's parental rights pursuant to 23 Pa.C.S.[ ] § 2511(b).
Sarah Merkel, LCOCYS caseworker, testified that Children are in an adoptive home. N.T., 7/28/14, at 43. Grand Aunt filed her intention to adopt on July 25, 2014. Id. Children have resided with her since March 26, 2013. Id. at 44. She testified that termination of parental rights would best serve the needs and welfare of Children. Id. at 45. "At this point the issues that led to [Children] being placed have not been resolved. [Children] need permanency." Id. Children "report that they do want to be adopted by" Grand Aunt. Id. She reiterated her opinion that it would be in Children's best interest to be adopted. Id. at 48-49. Children need stability. Id. at 82.
Ms. Merkel was assigned to the case in June of 2014, and had been involved for approximately two months at the time of her testimony. N.T., 7/28/14, at 65. She had the case notes prior to her involvement in the instant case. Id. at 66.
The orphans' court conducted a thorough analysis of the needs and welfare of Children. The competent evidence in the record supports the orphans' court's determination that the termination of Mother's parental rights to Children is in their best interests, and that Children would not suffer any harm from the termination of Mother's parental rights. See In re: T.S.M., 71 A.3d at 267. Thus, we will not disturb the orphans' court's decision. See In re Adoption of S.P., 47 A.3d at 826-27.
Accordingly, we affirm the orphans' court's decrees terminating Mother's parental rights to Children pursuant to Sections 2511(a)(2) and (b) of the Adoption Act.
Decrees affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015 IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION In re: Involuntary Termination of Parental Rights to A-L.A.H. and C.E.H., Minors No.: A2014-0019 No.: A2014-0020 APPEARANCES: GLENN R. SMITH, ESQUIRE
On behalf of Lehigh County Office of Children & Youth Services
JANE DAVENPORT, ESQUIRE
On behalf of the Minor Children
KATHERYN WILLIAMS, ESQUIRE
On behalf of Virgen Harris a/k/a Virgen Soto, Mother of the Minors
MICHAEL E. MOYER, ESQUIRE
On behalf of Bryson Harris, Father of the Minors
ADJUDICATION
CAROL K. McGINLEY, P.J.
Presently before the Court for adjudication are the petitions for involuntary termination of Mother's parental rights to A-L.A.H. and C.E.H. filed by the Lehigh County Office of Children & Youth Services ("LCOCYS"). FINDINGS OF FACT
LCOCYS initially filed a petition to terminate Mother's rights to her son, J.J.W., in A2014-0018, but as of December 15, 2014, has withdrawn said petition. The petitions of LCOCYS to confirm the consent of the biological father of A-L.A.H. and C.E.H., minors, to the termination of his parental rights to these two minors pursuant to 23 Pa. C.S.A. §2504 have been addressed by separate Decree.
1. A-L.A.H. [hereafter "Ala-Liana"] is a female child born on November 1, 2006; she is 8 years old.
2. C.E.H. [hereafter "Camila"] is a female child bom on November 11, 2007; she is 7 years old.
3. The biological mother of both minor children is Virgen Harris, also known as Virgen Soto (hereafter "Mother").
4. The biological father of both minor children is Bryson Lyron Harris. He was incarcerated on March 18, 2013, and remained incarcerated throughout the pendency of the children's placement due to armed robbery charges. N.T. 26, 29, 55. He signed voluntary consents to the termination of his parental rights to Ala-Liana and Camila on February 11, 2014,
the originals having been filed with the Court on April 24, 2014, as exhibits to each Petition to Confirm Consent to Adoption.
5. LCOCYS became involved in this matter in late March 2013 after Mother left the children with family members in the Lehigh Valley. She indicated she was dropping the children off for the weekend and would pick them up. Mother did not return, however, and her whereabouts were unknown. The family placed the children with their paternal grand aunt, Juanita Harris. Unable to get a custody order due to the inability to serve notice on Mother, Juanita Harris contacted LCOCYS. N.T. 24-25, 54-55.
6. LCOCYS had multiple previous involvements with the family. The most recent previous involvement was a referral from New York Children and Youth to check on the welfare of a child. The family was living hi a shelter at that time, and there was a concern that Mother was not following through with the children's medical care. N.T. 22-25, 54.
7. On March 26, 2013, LCOCYS obtained an emergency protective custody order for both minors and placed them in foster care in the kinship home of Juanita Harris, paternal grand aunt, who was already providing care for the children. N.T. 26 (see also P-2 Order for Emergency Protective Custody filed March 26, 2013).
8. On April 4, 2013, Ala-Liana and Camila were adjudicated dependent. N.T. 25.
9. Mother was not present at the adjudication hearing. She had not received notice of the hearing, and her whereabouts were unknown. As a result of the adjudication, Mother was ordered to comply with the following services in order to reunify with the minors:
1) Obtain and maintain appropriate legal income and stable housing.
2) Visit with the minors as scheduled by LCOCYS.
3) Comply with the minors' counseling services and follow all recommendations made.
4) Work with reunification services upon Mother's return to Lehigh County in order to regain custody of the minors.
5) Comply with Children and Youth and all recommendations made.
N.T. 26-27 (see also P-2 Order of Adjudication dated April 9, 2013, and filed April 10, 2013).
10. The first permanency review hearing took place on June 20, 2013. Mother was not present, her whereabouts were still unknown, and she had not been in contact with LCOCYS, but family members reported that Mother was in the area. The Court found Mother had no compliance with the service plan and that she made no progress with alleviating the necessity for the children's placement. The children remained in their kinship placement with paternal grand aunt and were doing well. Ala-Liana exhibited some acting out behavior at day care but did not exhibit those behaviors in the kinship home. Both children were attending weekly therapy at Pinebrook. N.T. 28-29.
11. Mother had no contact with LCOCYS until September of 2013, when she indicated she was living in New York but wanted to comply with LCOCYS services. She requested visits at that time. N.T. 30, 69.
12. The agency began scheduling visits for Mother and the children starting September 26, 2013. Mother did not attend. N.T. 69.
13. On December 2, 2013, Mother again contacted the caseworker. She indicated she had relocated in the Lehigh Valley and wanted to work with her court-ordered services. N.T. 30.
14. At some point, Mother advised LCOCYS that she had mental health issues. N.T. 89.
15. On December 2, 2013, LCOCYS referred Mother to Substance Abuse Screening Services, Inc., ("SASSI") and required her to submit to random urinalysis to demonstrate her sobriety; LCOCYS also referred Mother to reunification services with Pinebrook Family Services, which were put in place to help Mother reach the goals set by the Dependency Court so her children could be reunited with her. N.T. 15, 91.
16. The second permanency review hearing took place on December 5, 2013. Mother was not present despite receiving verbal notice of the hearing from the caseworker during the December 2, 2013, phone call. Mother still had no compliance with the service plan and no progress with alleviating the necessity for the children's placement. N.T. 29-30 (see also P-2 Order of Permanency Review signed January 2, 2014, and filed January 7, 2014).
17. Pursuant to the December 5, 2013, permanency review hearing, Mother was ordered to comply with the following services:
1) Complete a drug and alcohol evaluation and follow through with the recommendations.
2) Complete a mental health evaluation and follow through with the recommendations.
3) Comply with the minors' mental health services and follow all recommendations made.
4) Submit to random urinalyses as directed by LCOCYS.
5) Cooperate with appropriate in-home service providers, such as parenting education, intended to assist reunification.
6) Obtain and maintain appropriate legal income and stable housing.
7) Attend visitation with the minors as scheduled by LCOCYS.
8) Continue to contact and cooperate with LCOCYS.
N.T. 30-31, 35 (see also P-2 Order of Permanency Review signed January 2, 2014, and filed January 7, 2014).
18. On December 5, 2013, following the permanency review hearing, Mother had her first visit with the children. She was 30 minutes late for the hour-long visit. N.T. 69.
19. Mother's second visit with the children occurred on March 18, 2104. Mother was again 30 minutes late for the hour-long visit. N.T. 71.
20. On May 29, 2014, Mother was served with notice of the petitions to terminate her parental rights to Ala-Liana and Camila. N.T. 38.
21. The third permanency review hearing took place on June 19, 2014. Mother was present for the hearing. The Court found Mother had made minimal compliance with the permanency plan but had made no progress toward alleviating the circumstances that necessitated the original placement. Specifically, in the prior six months:
a. Mother completed a drug and alcohol intake on December 23, 2014, at Lehigh Valley Drug and Alcohol. She reported a history of cocaine and crack use and past alcohol use. The evaluator recommended that Mother attend Step by Step as an outpatient for dual treatment to address her mental health and drug and alcohol issues.
b. Mother completed a mental health intake at Step by Step on January 13, 2014. However, Mother did not follow through with recommendations to attend Step by Step for dual treatment. Mother was discharged from the program in March 2014 due to lack of compliance.
c. Mother did not participate in the children's mental health treatment as had been court-ordered.
d. Mother did not submit to random urinalysis as required. Between December 2, 2013, and June 2, 2014, of the approximately 60 times that Mother was called in to submit a urine specimen, she appeared only 18 times, successfully submitted a urine specimen 17 times, and seven of those 17 urine specimen submissions were positive for THC or marijuana.
e. Mother met with the reunification worker from Pinebrook only six times of the approximately 24-25 possible appointments she should have attended.
f. Mother did not maintain stable income.
g. Mother had not obtained housing appropriate for the children. She had been living in a boarding house; was evicted in January of 2014; and was currently renting a room with her boyfriend, Michael.
h. Mother attended only one visit with the children, on December 5, 2013, and she was one-half hour late for the visit. A total of seven hour-long supervised visits with the children were scheduled during this review period.
CONCLUSIONS OF LAW
N.T. 15-16, 30-31, 35-38, 69, 92 (see also P-2 Order of Permanency Review signed and filed July 11, 2014 and attached Findings of Fact dated June 30, 2014).
22. On June 19, 2014, following the permanency review hearing, Mother attended her third visit with the children. N.T. 71.
23. On July 2, 2014, Mother completed a second drug and alcohol evaluation, this time at White Deer Run in Fogelsville. White Deer Run recommended she participate in intensive outpatient individual and group therapy. N.T. 42.
24. Mother indicated that she would pursue treatment at the Hispanic American Organization ("HAO"), but she did not follow through with treatment at HAO. She sought other mental health treatment instead. One week prior to the termination hearing, Mother secured an intake appointment at Pyramid for July 31, 2014, and planned to get treatment for drug and alcohol issues and mental health issues through that organization. N.T. 42.
25. On July 8 and July 22, 2014, Mother attended two more visits with the children. These were her fourth and fifth visits, respectively, since she dropped the children off with relatives in March 2013. N.T. 71.
26. The termination hearing took place before this Court on July 28, 2014. Mother was present and represented at the hearing by counsel, Brian Eves, Esquire. N.T. 5.
27. At the time of the termination hearing, the children had been in LCOCYS custody in the paternal grand aunt's kinship home for 16 consecutive months. N.T. 38, 44.
28. As of the date of the termination hearing, Mother had never participated in her daughters' mental health treatment N.T. 39.
29. Mother testified that she left the children in the care of family members in the Lehigh Valley because she wanted the children to have stability that she was not personally able to provide at that time. She was initially unaware the children had been placed into foster care. N.T. 124.
30. Throughout the pendency of this matter, Mother has never obtained suitable housing appropriate for the children to be reunited with her. N.T. 38, 84.
31. Mother explained she was living in New York with her father, working a lot, and trying to save money so she could get housing to get the children back. Mother did not offer an
explanation as to why she did not communicate her whereabouts to the children or the caregiver in whose care she placed her children. N.T. 129-130.
32. Initially, Mother was traveling from New York to the Lehigh Valley trying to comply with ordered services. Because traveling back and forth by bus from New York was too difficult, Mother relocated to Allentown. N.T. 107-108.
33. Mother testified that she asked everyone to help her with housing; she wants to have her kids with her. However, Mother agreed that the room she currently shares with her boyfriend at 143 South 8th Street is not appropriate housing for her children. She had lived there for the past five months. N.T. 106, 117, 121.
34. Mother's boyfriend, Michael, pays the weekly rent for the room they share in a house in which everyone living in the house shares the kitchen, the refrigerator, and the bathroom. N.T. 37.
35. Mother knew that Michael had criminal conviction(s) related to drugs. Mother was not curious about why Michael had spent time in state prison. N.T. 125.
36. Throughout the pendency of this matter, Mother has not maintained a stable job and income. Mother was supposed to be starting a new job just a few days prior to the termination hearing. The reunification worker was unable to verify whether Mother had started working at that job. The only employment that the reunification worker was able to verify was for three weeks of employment at a cleaning business. N.T. 38, 97.
37. At the time of the termination hearing, Mother had never been fully compliant with drug and alcohol treatment and had not re-entered mental health treatment. N.T. 38-39, 84.
38. Mother admitted she did not comply with the recommendation of attending Step by Step to address drug and alcohol treatment and mental health treatment. Mother testified that her noncompliance was due to the counselor's repeated cancellation of appointments and Mother's feeling that involvement with Step by Step was wasting time. Mother expected the program to help her with her homelessness, which she viewed as her primary barrier to reunification with the children. Mother asked Step by Step to refer her to a shelter or a job program; she also needed a physician to complete a form in order to comply with welfare requirements. When Step by Step did not assist her with these issues, Mother decided to use her own resources to find a program she felt was more suitable to help her meet both LCOCYS requirements and welfare requirements. N.T. 108-109, 119-120, 132-133.
39. Mother explained that during her second drug and alcohol assessment, White Deer Run asked where Mother would prefer to go for treatment. Mother wanted to go to HAO. Later, she found out that she needed to apply for medical assistance in order to get into HAO. She did apply for medical assistance, but it was taking too long, so she kept looking for alternative treatment facilities. At some point, Mother's application for medical assistance was denied because she was working. Eventually Mother decided to attend treatment at Pyramid because the organization answered all her questions. She was
scheduled to go for intake on July 31, 2014, three days after the termination hearing. N.T. 109-111, 119-120.
40. Testimony at the termination hearing established that Mother was a victim of sexual abuse as a child and was diagnosed with anxiety and depression. Mother had not received psychological treatment for some time. N.T. 111-112.
41. In the past, Mother took Zoloft, a psychiatric medication, for her conditions but has not taken psychiatric medications for several years. Mother discontinued the Zoloft because she thought she did not need it any longer. Several years ago, Mother overdosed on prescribed medications. Mother acknowledges that she might need mental health medications now but realizes she needs an assessment by a physician first. N.T. 22, 119, 126-128, 133.
42. Mother admits to marijuana use during the pendency of these matters but testified she had not used marijuana for three months prior to the termination hearing. N.T. 127.
43. Mother has never been fully compliant with court-ordered drug testing. N.T. 38-39, 84.
44. Mother admits she missed many urine screenings. She explained the gaps in her compliance by indicating that the former caseworker led Mother to believe that her parental rights would not be terminated, so she focused on working toward housing stability, employment, locating appropriate mental health treatment, and getting organized. N.T. 121-122.
45. Mother has not been in full compliance with court-ordered reunification services. Mother was expected to meet with the reunification worker weekly to get help in achieving her court-ordered goals. Mother was inconsistent with following through and inconsistent with staying in touch with the service providers and returning their phone calls. The reunification worker explained to Mother repeatedly what was required of her in order for her children to be reunited with her. At the tune of the termination hearing, Mother was currently in good communication with LCOCYS and the service providers, but during a significant period of time, LCOCYS' ability to communicate with Mother was hampered by Mother's homelessness or simply not knowing her whereabouts for lengthy periods of time. N.T. 38-40, 84, 86, 95.
46. Mother has never been fully compliant with visitation. She began visiting the children more consistently only after she was served with notice of the termination hearing. Prior to her being served with the petitions to terminate her parental rights, Mother visited the children only three times out of 12 scheduled visits. Mother was late by one-half hour for two of the three visits. After Mother was served with the petitions to terminate her parental rights, Mother attended all three of the scheduled 1-hour visits on June 19, July 8, and July 22, 2014. N.T. 39, 41, 71, 84, 103.
47. Mother explained that she missed some visits because of work or transportation issues. At times she missed visits due to working overtime. On one occasion, Mother was still living
in New York, and she failed to confirm the visit the day before. She found out en route that the visit would not be permitted pursuant to LCOCYS policy. N.T. 107-108.
48. Mother's reunification worker testified that Mother was late to one of the visits because she was picking up a work schedule. N.T. 98.
49. Mother also testified that she tried unsuccessfully to see the children outside the confines of LCOCYS supervision, "behind Children and Youth's back." N.T. 122.
50. The children have spent approximately four hours with their Mother since she dropped them off with family in March of 2013. They have never returned to the care of their Mother but have remained in then original kinship placement with their paternal grand aunt, Juanita Harris. N.T. 43, 63.
51. Mother admits she did not send financial support, cards, letters, or gifts to the children; she explains she was focused on trying to make money so she could try to get a house so the children could live with her. N.T. 129-130.
52. The caseworker who testified at the termination hearing had been on the case since June of 2014. She observed only one visit between Mother and the children. That visit went reasonably well. The children interacted well with Mother. The reunification worker observed the children interact with Mother at the beginning of visits and found the interactions to be appropriate. She observed Mother kiss and hug Ala-Liana and Camila. N.T. 51, 62-63, 72, 100.
53. The caseworker testified that the four of the five visits Mother has attended have gone well. However, within the month prior to the termination hearing, Mother told the children during a visit that they would be coming home to live with her soon. Thereafter, the girls began to act out in the kinship home with increased aggression, and Ala-Liana had some increased trouble with bedwetting issues. N.T. 41, 75.
54. Mother testified that she and the children have a strong bond. N.T. 113.
55. The caseworker understandably had difficulty forming an opinion on the extent of the bond the children have with Mother due to the limited number of visits that Mother attended. N.T. 63, 72.
56. The caseworker opined that termination of Mother's parental rights is appropriate in this matter because the children need permanency, and Mother had not made sufficient progress and to return the children to her. N.T. 45, 81-82.
57. The paternal grand aunt cooperates with the children's visits with their half-brother, Joshua, which are facilitated by LCOCYS. She also ensures that the children continue to have full contact with their biological father even though he was relocated to Stroudsburg. She takes the children to their bi-weekly therapy at Pinebrook. N.T. 32, 42, 70.
58. Both children are doing well at home and in school and have made up for previous deficits. Their paternal grand aunt takes the children to all their appointments, meets all
their needs, and provides them with a loving and nurturing home that is stable and safe. N.T. 29, 42, 49, 83.
59. The children have a strong relationship with their paternal grand aunt, are very affectionate toward her, and want to remain in her care. N.T. 49.
60. The paternal grand aunt indicated to LCOCYS that she has a strong family support network to help with the children if she needs help. She filed a Report of Intention to Adopt on July 25, 2014, three days prior to the termination hearing. N.T. 43, 77.
1. Petitioner established by clear and convincing evidence that Mother by her conduct for a period of at least six months preceding the filing of the Petition to terminate her rights failed to perform parental duties for Ala-Liana and Camila.
2. Petitioner established by clear and convincing evidence that the repeated and continued incapacity of Mother has caused Ala-Liana and Camila to be without essential parental care, control or subsistence necessary for their physical and mental well-being, and the conditions and causes of the incapacity cannot or will not be remedied by Mother in a reasonable period of time.
3. Petitioner established by clear and convincing evidence that Ala-Liana and Camila have been removed from the care of Mother by the Court for a period in excess of six months, the conditions which led to the removal of the children continue to exist, Mother cannot or will not remedy those conditions within a reasonable period of time, the services or
assistance reasonably available to Mother are not likely to remedy the conditions which led to the removal of the children within a reasonable period of time, and termination of Mother's parental rights would best serve the needs and welfare of the children.
4. Petitioner established by clear and convincing evidence that Ala-Liana and Camila have been removed from the physical and legal custody of Mother by the Court, more than twelve months have elapsed from the date of removal, the conditions winch led to the placement of the children continue to exist, and termination of Mother's parental rights would best serve the needs and welfare of the children.
5. Petitioner established by clear and convincing evidence that the termination of parental rights of Mother to Ala-Liana and Camila will best serve the needs and welfare of the children or will best provide for their developmental, physical and emotional needs.
6. Petitioner established by clear and convincing evidence that the termination of parental rights of Mother to Ala-Liana and Camila is appropriate in this case.
Mother acknowledged that New York Children and Youth made a past referral to LCOCYS regarding a concern that the children were not receiving proper medical care. Mother explained that one of the children had severe asthma problems. During the day, Mother was working on trying to resolving issues to enable her to get medical assistance to have adequate coverage for the child's medical needs. Every night during this period of time, she would take her daughter to the emergency room to get the medications she needed for her chronic asthma. Mother would sometimes go to her daughter's school to give her asthma treatments because her daughter's condition was so severe during that time. N.T. 133-135.
Kathryn A. Williams, Esquire, was the contract attorney of record representing Mother in these Orphans' Court proceedings. Attorney Williams had a schedule conflict, which she resolved by arranging for private counsel, Attorney Eves, to represent Mother at the termination hearing.
DISCUSSION
On April 24, 2014, LCOCYS filed petitions to involuntarily terminate the parental rights of Mother Ala-Liana and Camila. The grounds for involuntary termination are set forth in 23 Pa. C.S.A. §2511. Petitioner must establish at least one ground for termination. LCOCYS petitioned to termination each parent's parental rights on the grounds of 23 Pa. C.S.A. § 2511(a)(1), (2), (5), and (8) and §2511(b).
The statute provides, in pertinent part, as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds;
23 Pa. C.S.A. § 2511.(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
. . . .
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions winch 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 winch 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 parents. 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.
The issue before us is whether LCOCYS satisfied its burden of showing that termination of parental rights is appropriate in this case based on Pennsylvania law. The Court's inquiry in a termination of parental rights case is two-fold. In re Adoption of R.J.S., 901 A.2d 502, 508 (Pa. Super. 2006). First, the Court looks at the parent's conduct. Id. The petitioner has the burden of showing by clear and convincing evidence that a statutory reason for termination exists. Santosky v. Kramer, 455 U.S. 756 (1982). Second, once the Court has determined a statutory ground for termination has been established, the Court focuses on the child's needs and welfare. In re Adoption of R.J.S., supra.
All children are entitled to certain irreducible minimum requirements from their parents, including adequate housing, clothing, food, love and supervision. In re J.W., 578 A.2d 952 (Pa. Super. 1990). "Parental duty requires that a parent exert himself to take and maintain a place of importance in the child's life. . . . This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child." In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003), aff'd, 859 A.2d 767 (Pa. 2004) (citations and internal quotations omitted).
A parent must utilize all available resources to preserve the parental relationship, and must exercise reasonable firmness in resisting obstacles placed in the path of maintaining the parent-child relationship. Parental rights are not preserved by waiting for a more convenient time to perform one's parental responsibilities while others provide the child with his or her physical and emotional needs.In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted).
The Court must examine the circumstances of the case and also consider all explanations offered by the parent to determine if the evidence, in light of the totality of the circumstances, clearly warrants involuntary termination. Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 91 (Pa. 1998). The petitioner has the burden of producing evidence that is so clear, direct, weighty and convincing as to enable the Court to come to a clear conviction, without hesitation of the truth, of the precise facts at issue. In re Child M., 681 A.2d 793 (Pa. Super. 1996).
The Court must also examine the parent's post-abandonment contact with the child, which, to be legally significant,
must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish his [or her] parental responsibilities bears the burden of proof on this question.In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citation omitted).
For the reasons discussed below, and giving primary consideration to the developmental, physical and emotional needs and welfare of the minors, we find that Petitioner established statutory grounds for the termination of Mother's parental rights to Ala-Liana and Camila, and Petitioner clearly and convincingly established that the involuntary termination of Mother's parental rights would best serve the needs and welfare of the minors.
Mother voluntarily placed the children with family in March of 2013, stating she would come back for them. N.T. 24-25, 54-55. She recognized her inability at that point to provide stability for the children. Mother failed to return for the children, effectively abandoning them, and her whereabouts were unknown until September of 2013 when Mother first asked LCOCYS to schedule visits for her and the children. N.T. 30, 69. During that time, Mother had no contact with her children. Although visits began being scheduled as of the end of September, Mother did not see the children at all until December 5, 2013; then, Mother only saw the children three times, for a total of two hours, between March 2013 (when she voluntarily placed the children) and May 29, 2014, when Mother was served with copies of the termination petitions. N.T. 38, 69-71.
During this 13-month period that immediately preceded the filing of the petitions to terminate her parental rights, Mother failed to perform any parental duties. The two hours of contact Mother did have with her children fall far short of demonstrating legally significant post-abandonment contact. See In re Z.P., 994 A.2d at 1119, supra. The Court cannot consider Mother's improved consistency with visits that only began after she received notice of the filing of the petitions. See 23 Pa. C.S.A. § 2511(b). Accordingly, we find that Petitioner established by clear and convincing evidence that statutory grounds for termination exist pursuant to 23 Pa. C.S.A. §2511(a)(1) due to Mother's failure to perform parental duties for a period of at least six months immediately preceding the filing of the petition.
It seems clear that Mother has demonstrated repeated and continued incapacity that has caused the children to be without essential parental care, control, or subsistence necessary for their physical or mental well-being. Because Mother has not followed through with drug and alcohol treatment and mental health treatment, the precise nature of Mother's incapacity is unclear. Mother's history of mental health issues, drug and alcohol abuse, housing instability, and inability to maintain stable income, coupled with her pronounced inability to follow through with services, have caused the children to be without essential parental care and control since at least March of 2013 when Mother brought the children to the Lehigh Valley and left them with family members.
Initially, Mother was unaware that her children were in foster care. N.T. 124. It is not clear when that fact was conveyed to her. N.T. 124. However, by September of 2013, Mother knew that she must comply with court-ordered services in order to reunite with the children. N.T. 30, 60. By early December of 2013, reunification services were in place to attempt to help Mother comply with her court-ordered services so the children could be reunified with their Mother. N.T. 91. Although she verbally indicated she wanted to comply with the services, Mother did not begin to seriously follow through until after she was served with notice of the petitions to involuntarily terminate her parental rights at the end of May, 2014, more than a year after her voluntary placement of the children in March, 2013.
The court-ordered services in place in September of 2013 were clearly delineated and were explained to Mother repeatedly by the reunification worker. N.T. 95. Mother was to complete a drug and alcohol evaluation and follow through with the recommendations. Mother completed the evaluation on December 23, 2013, but then did not follow through with recommendations. N.T. 35-36. Mother was to complete a mental health evaluation and follow through with the recommendations. Mother completed the evaluation on January 13, 2014, but did not follow through with recommendations. N.T. 36-37. Mother was to comply with the children's mental health services and follow all recommendations made; Mother has never been in compliance with this requirement. N.T. 39.
Mother was to submit to random urinalyses as directed by LCOCYS to demonstrate her sobriety. Out of 60 times that she was called on to submit for urinalysis between December 2, 2013, and June 2, 2014, Mother appeared only 18 times and submitted a specimen only 17 times. N.T. 15. Seven of those submissions were positive for marijuana. N.T. 15. Mother was ordered to cooperate with reunification service providers. Although she was cooperative when she did have contact with reunification service providers, Mother had inconsistent contact and very limited follow-through. Although she was scheduled to meet with the reunification worker weekly, prior to the involuntary termination petitions being filed, Mother actually met with her only six times out of approximately 25 possible visits. N.T. 92.
Mother was also ordered to obtain and maintain appropriate legal income and stable housing. Mother never demonstrated that she maintained stable, appropriate housing: she lives in a single room without private kitchen or bath facilities with a boyfriend who was convicted of drug offenses and spent time in state prison. N.T. 37, 125. Even Mother recognizes that the single room is not appropriate for the children to be returned to her care. N.T. 117, 121. The Court is very concerned by Mother's lack of concern regarding her boyfriend's criminal past as shown by her lack of curiosity regarding his time spent in state prison. N.T. 125. Moreover, it is telling that the boyfriend pays the rent for the room, as Mother has been unable to maintain stable income throughout the pendency of these Orphans' Court and Dependency proceedings. N.T. 37, 97, 106.
The new, full-time job which Mother may or may not have started a few days prior to the termination hearing does little to assure the Court that Mother will maintain appropriate employment. N.T. 97. Mother's job history since her involvement with LCOCYS demonstrates her inability heretofore to hold the same job for more than three weeks; thus, her ability to maintain stable income as court-ordered remains to be seen. N.T. 97.
Mother was court-ordered to attend visitation with the minors as scheduled by LCOCYS. Mother spent only 4 hours total visiting with her children over 5 visits in the 16 months that elapsed since she voluntarily placed them into care. N.T. 63. We note that visits were scheduled beginning September 26, 2013, yet Mother did not follow through with actually visiting the children until December 5, 2014; then she waited nearly three months until she visited with them again, and three more months passed until Mother finally attended three consecutive visits with her children without skipping any. N.T. 69-71. Notably, these more consistent visits only occurred after Mother was served with the petition to terminate her parental rights.
Finally, Mother was ordered to continue to contact and cooperate with LCOCYS. As with the other requirements placed on Mother, her follow-through with this requirement was inconsistent - no doubt in part due to her struggles with housing and financial instability. N.T. 38-40, 84, 86, 95. After Mother was served with the petition to terminate her parental rights, her communication and cooperation with LCOCYS improved.
During the 16 months that the children were in care prior to the termination hearing, Mother did not provide for their everyday needs such as housing, clothing, food, or supervision. She only visited the children a few times and sent no letters or cards to express her love or concern; she sent no financial support or gifts. N.T. 129-130. Instead, the paternal grand aunt provided for all of the children's needs. N.T. 29, 42, 49, 83.
Since their adjudication of dependency on April 4, 2013, Mother's lack of involvement and her inability to follow through has caused the children to be without essential parental care, control or subsistence necessary for their physical and mental wellbeing; unfortunately, Mother has not demonstrated that she is capable of remedying her incapacity and failure to parent in the near future. Instead, Mother has demonstrated that she has tremendous difficulty with following through with the requirements placed on her, all of which were designed to reunite her with her children. Accordingly, we find Petitioner has established by clear and convincing evidence that the grounds for involuntary termination set forth in 23 Pa. C.S.A. § 25111(a)(2) have been met as to Mother.
Petitioner has clearly and convincingly demonstrated that the grounds for termination as set forth in 23 Pa. C.S.A. § 2511(a)(5) and (8) have been satisfied. These children were placed into foster care more than 12 months ago, and most of the conditions which led to their placement continue to exist. The one notable condition that has improved is that Mother's whereabouts are now known. However, as was true in the beginning, Mother still does not have suitable housing, has not demonstrated the ability to maintain stable income, has not followed through with the children's mental health treatment, and has not followed through with visiting them consistently or frequently enough. N.T. 38-41.
As discussed above, Mother has been unable or unwilling resolve any of these issues within a reasonable period of time. The services provided by LCOCYS were designed to effect reunification, but Mother simply did not consistently avail herself of the offered services until after she learned the termination petitions had been filed. The many services LCOCYS has offered Mother are not likely to remedy the conditions which led to the children's removal within a reasonable period of time due to Mother's failure to avail herself of the services and follow through consistently.
Mother's failure to come to the December 5, 2013, permanency review hearing despite being in the area and having received verbal notice is troubling to the Court. So, too, are Mother's lack of consistent compliance with drug and alcohol requirements and mental health treatment, and her general lack of follow through. Most troubling is her failure to stay in contact with the children and her lack of consistent visits, despite her testimony, which clearly showed that she loves the children.
Simply put, Mother has been unable to exert herself to take and maintain a place of importance in the lives of Ala-Liana and Camila. She has not made an appreciable, genuine effort to maintain communication her relationship with the children. See In re C.M.S., 832 A.2d at 462. Based on Mother's demonstrated inability to follow through, this Court is convinced that termination will best serve the needs and welfare of the children to provide them with stability and permanence in their paternal grand aunt's home, where all their tangible and intangible needs are being met.
Finding that LCOCYS has established statutory grounds for termination Mother's parental rights under 23 Pa. C.S.A. § 2511(a)(1) and (2), we turn now to our primary consideration: the consideration of the needs and welfare of the children. 23 Pa. C.S.A. §2511(b). In addressing the needs and welfare of the children, it is necessary to consider the emotional bond between the parent and each child. In re E.M., 620 A.2d 481 (Pa. 1993). In conducting a 23 Pa. C.S.A. § 2511(b) analysis, the Pennsylvania Superior Court guides us as follows:
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. However, 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).
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 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). As we explained in In re A.S., 11 A.3d 473, 483 (Pa. Super. 2010),
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).[I]n addition to a bond examination, the trial court can equally emphasize the safety needs of the child, and should also consider the intangibles such as love, comfort, security, and stability the child might have with the foster parent. Additionally, this Court stated that the trial court should consider the importance of continuity of relationships and where any existing parent-child bond can be severed without detrimental effects on the child.
In analyzing the bond between the children and Mother, we note that Petitioner had some difficulty presenting evidence of the bond between the two children and their Mother because Mother attended so few visits with the children. In the single visit observed by the caseworker, the children seemed to have a good relationship with Mother and interacted well with her. N.T. 62-63, 72. The reunification worker bolstered this testimony: Her observation of interactions at the beginning of visits were appropriate; she saw Mother express physical affection toward the children. N.T. 100.
Four of Mother's five visits Mother have gone well. Id. Negative outcomes followed the visit in which Mother inappropriately told the children they would be coming home soon. N.T. 41. Following that visit, the girls became aggressive in the kinship home, and the bedwetting behavior of Ala-Liana increased noticeably. N.T. 41, 75.
Not surprisingly, Mother testified that she and the children have a strong bond and believed severing the bond would affect her children negatively. N.T. 113. Petitioner offered no testimony regarding the effect on the children of permanently severing that bond, focusing instead on the benefit and necessity of permanency in a pre-adoptive home and on Mother's lack of progress with meeting court-ordered goals for reunification. N.T. 45, 81-82.
Ala-Liana and Camila are receiving love, comfort, security and stability from their kinship resource. All of their physical, emotional, medical, and academic needs are being met by their paternal grand aunt. 29, 42, 49, 83. They have lived continuously with Juanita Harris since March of 2013. They are assimilated to that home environment and are well-bonded to their paternal grand aunt. N.T. 49. She currently cooperates with sibling visits so the children can spend time with their half-brother, Joshua. N.T. 70. She ensures the children have continued contact with their father. N.T. 32. The children's placement is stable and safe, and the children would like to remain there. N.T. 49.
Except for the visit in which Mother told the children they were coming to live with her soon, the children have done remarkably well regardless of whether Mother was visiting or not, regardless of whether she was nearby or whether her whereabouts were unknown. Stability is a very important factor for the proper growth and development of every child. When it appeared to these children that their stability would be uprooted, negative behaviors resulted. The Court finds that although Mother and the children have an emotional bond, severing that bond permanently would not destroy a necessary and beneficial relationship.
We believe that permanence will best serve the developmental, physical and emotional needs and welfare of these children. Under the circumstances presented here, we find it is in the children's best interest to terminate Mother's parental rights pursuant to 23 Pa. C.S.A. § 2511(b).
For all of the foregoing reasons, the petitions of LCOCYS to involuntarily terminate the parental rights of Mother to Ala-Liana and Camila are granted. DATE: January 22, 2015
BY THE COURT:
/s/_________
Carol K. McGinley, P.J.