In Re: Adoption of: X.P.D. Appeal of: K.K., mother

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: X.P.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA APPEAL OF: K.K., NATURAL MOTHER, : : No. 128 WDA 2015 Appellant :

Appeal from the Order Entered December 22, 2014, in the Court of Common Pleas of Butler County Orphans’ Court Division at No. OA No. 2011-00035a

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 26, 2015

K.K. (“Mother”) appeals from the order granting the petition filed by J.R.D. (“Father”), involuntarily terminating Mother’s parental rights to her son, X.P.D. (“Child”), born in 2007, pursuant to Section 2511(a)(2) and (b) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(2) and (b). We affirm.

We adopt the factual history of this matter as recounted by the trial court.

Mother and Father never married. At the time of Child’s birth, they resided together. Both consumed illegal drugs. Child was born addicted to methadone. During this time, both parents provided care for Child. When Child was three or four months old, Father left Mother who then provided all parental care for Child until her arrest on or about July 16, 2008 when Child was approximately 18 months old.

Mother was purchasing stamp bags of heroin. Child was present. Mother was charged with endangering the welfare of a child, possession of a controlled substance, and distribution of a small

• • Retired Senior Judge assigned to the Superior Court.

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amount of marijuana. Mother ultimately pled guilty to all three charges.

After breaking up with Mother, Father began a process to stop his drug use. In July of 2007, Father enrolled in rehabilitation at Turning Point. He continued his plan for sobriety by attending Gateway, participating in Narcotics Anonymous for one year and participating in counseling through his church. Father has a clean date of August 9, 2007.

Following Mother’s arrest, Child was temporarily placed with Maternal Grandfather. Mother remained incarcerated for approximately three weeks. Father learned of Mother’s incarceration and placement of Child with Maternal Grandfather at a previously scheduled Custody Conciliation conference. Thirteen days after Mother’s arrest, physical custody was then granted to Father. Father has remained the primary physical custodian of Child since.

From the date of her arrest on July 16, 2008 until the start of therapeutic visits sometime in the summer of 2011, Mother had little contact with Child, provided no parental care, and provided no financial support for Child. Father provided all parental care and emotional support for Child. Prior to 2011, Mother had a long history of drug abuse and criminal convictions for drug related matters. Mother testified she has a diagnosis of borderline personality disorder. Mother has been prescribed medication such as Klonopin and Adderall for anxiety and ADHD. It is not clear from the evidence whether Mother has officially had a mental health evaluation, nor is it clear what prescriptions, if any, Mother is currently prescribed. Mother testified that she addresses her mental health by taking medication, attending weekly therapy and attending church.

Mother spent some time in 2010 in a state correctional facility followed by a day reporting program and a half-way house. It was during this time, with Father’s consent and support by Maternal

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Grandfather, that Mother had limited contact with Child.

Sometime after her release from the half-way house, Mother filed for a modification of custody. Following a custody conciliation, Mother received therapeutic visits with Mr. Ken Evanoski at Family Pathways through a Court Order dated June 2, 2011. Goals were set for Mother through Family Pathways which included being consistent with visitations, being prepared with snack, games and activities for Child during visits, and being able to show she was interested in Child. From the start, Mother did very well in that she would always come to visits “prepared and provided plenty of stuff and food” for Child. She would bring train sets and a little chair every week for Child. Mother signed releases to allow Family Pathways to communicate with her probation officer and other therapists. Due to the weekly drug screens Mother was submitting through her probation officer, she did not submit to drug screens at Family Pathways. She did, however, submit weekly reports with regards to her drug screens through her probation officer. Mother was passing her weekly tests.

Mother and Child continued to visit at Family Pathways until sometime in December of 2011. Father unilaterally stopped the therapeutic visits. Father’s explanation for ending the visits even though Court ordered varied from complaining that the location was inconvenient to disagreeing with the view of the therapeutic supervisor. Ken Evanoski testified that he has not been involved for more than two years with the parties, and has no knowledge of the current situation that exists.

Due to Father’s refusal to take Child to Family Pathways, Mother missed some parenting time. However, Father “permitted” Mother to have parenting time at Maternal Grandfather’s home instead.

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Therefore, Mother and Child had regular consistent parenting time together from approximately May, 2011 until December, 2012 (18 months). Mother has not, however, had any significant parenting time with Child that was not at least monitored since prior to July 16, 2008. Mother’s presence in Child’s life has been sporadic as a result of her continued struggle with addiction and incarceration. In fact, Mother has not seen Child since December 18, 2012 other than for a bonding assessment session on February 17, 2014.

In December of 2012, Mother proceeded to an appointment at a Suboxone clinic in Squirrel Hill during her scheduled four-hour visit with Child. She then kept Child for an additional four days, and she knowingly and intentionally failed to advise Father of Child’s whereabouts during that period of time. This incident resulted in the suspension of Mother’s visiting time with Child, which is still in effect. Mother testified that she believed Child to be too ill to return to Father’s care and, therefore, sought medical treatment for Child and claimed Child exhibited symptoms of a fever, a runny nose, vomiting and sore throat. The Court did not find Mother credible as to the reason she failed to timely return Child to Father’s custody. Mother testified that upon being discharged from the health care provider, Mother received instructions to give Child Tylenol or ibuprofen as needed, to drink fluids, and rest. Nothing was placed on the record to confirm such medical treatment was sought. Since that incident in December of 2012, the only contact Mother has had with Child has been via telephone, the two letters Mother sent Child, and the one Mother’s Day card Child sent Mother.

When the Court ordered, on or about December 17, 2012, that Mother’s visitations be suspended, her contact with Child was limited to telephone contact. That Order of Court continues to be in effect due to the consented to continuation of the custody litigation under the family docket. Mother has called Child at Father’s residence on a

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regular basis since the filing of the Petition despite the fact that Father listens to every conversation on speaker phone. The comfort level of the telephone communications may have been strained due to the monitoring of the communications by Father. During the telephone conversations, Mother did not engage in meaningful conversation with Child and indicated the calls were “purposeless” because Father listened to them. Even though Father and Stepmother have not promoted or fostered a relationship between Mother and Child, the telephone conversations between Mother and Child consisted mainly of Mother talking about herself and not asking questions about Child and Child’s well-being, therefore Mother did not foster a relationship with Child either.

Maternal Grandparents have custodial rights with regards to Child pursuant to the September 14, 2011 Court Order under the family docket number F.C. 07-90783-C. Mother never communicated with Child via telephone while Child was in the care of Maternal Grandmother. Maternal Grandparents have maintained a relationship with Child as a result of their own custody action.

On January 11, 2013, Mother was arrested for driving with a suspended license. She was incarcerated and released on June 24, 2013 from the Butler County Prison, but was immediately transported to the State Parole Center until July 2, 2013. During that period of incarceration, Mother attempted to keep in contact with Child via letters, although they were sporadic and minimal. The first letter was written on April 15, 2013 and addressed to Child, but mailed to Maternal Grandmother’s address. The second letter was written on May 22, 2013 and addressed to Child’s maternal grandmother. Mother indicated that she did not send letters to Child at Father’s residence out of fear that Father and Stepmother would not let Child see the letters even though there was no prohibition to do so. Both letters clearly indicate that Mother expresses love and advice to Child. On May 7, 2013,

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Mother received a Mother’s Day card signed by Child, which Maternal Grandmother assisted Child in preparing. Mother also sent gifts and toys to Maternal Grandmother’s residence for Child. Mother has not provided Child with any emotional support other than the two letters she sent to Child at Maternal Grandmother’s home.

In September of 2013, approximately two months after her release from the State Parole Center, Mother relapsed and overdosed on heroin. Mother appears to have stabilized since her September 2013 relapse in that she has suffered no further incarceration and has not reported further relapse in her recovery. Mother has maintained recovery, in part, by treating with Suboxone, as per Mother’s own testimony. She tests monthly with her parole officer and has not recently had a positive drug test. It does not appear that Mother has taken any additional steps to treat her drug addiction. Mother provided no evidence that she participated in any rehabilitation service or therapy following her relapse. Other than testifying to taking some medications, Mother offered little testimony regarding the treatment/maintenance of her mental health.

....

Mother testified that she has attempted to provide what limited support she can offer since she is unemployed, and offered to pay for Child’s participation in Martial Arts; however, Father refused any financial assistance from Mother. Mother has not provided financial support in any substantive manner. Mother is unable to provide for Child’s needs and welfare without assistance from a third party. Mother’s life lacks stability.

Currently, Mother is residing with her friend. She takes medications for her borderline personality disorder and attention deficit hyperactivity disorder. She also attends weekly therapy in Sewickley as well as church. It is not clear to the Court whether

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Mother is working or what her source of income may be.

Trial court opinion, 3/5/15 at 8-15 (footnotes omitted).

We have condensed the procedural history as follows. Initially, Father filed a petition for involuntary termination of Mother’s parental rights on May 29, 2011. However, Mother and Father reached an agreement pursuant to a concurrent custody action in family court whereby Mother enjoyed therapeutic visits with Child. Pursuant to the agreement, Father withdrew the petition. During the next two years, multiple petitions seeking custody modification and special relief were filed by both parties. Father filed another petition for involuntary termination of Mother’s parental rights on June 20, 2013. On July 1, 2013, counsel was appointed for Child. Following several continuances, hearings on Father’s petition were held on July 7-8, and August 4-5, 2014. Prior to the start of the hearings, a petition for adoption of Child was filed on July 3, 2014, by A.M.D., wife of Father. (Docket #124.) On December 22, 2014, the trial court entered an opinion and order terminating Mother’s parental rights. On January 16, 2015, Mother filed her notice of appeal along with a concise statement of errors complained of, pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On March 5, 2015, the trial court issued its Rule 1925(a) opinion.

Mother now presents the following claims for our review:

I. Whether the evidence in the record is inadequate for the trial court to have concluded, by clear and convincing evidence,

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that grounds for involuntary termination of parental rights existed pursuant to 23 Pa.C.S.A. § 2511(a)(2)[?]

II. Whether the evidence in the record is inadequate for the trial court to have concluded that termination of parental rights was in the best interests of the child, as required by 23 Pa.C.S.A. § 2511(b)[?]

III. Whether the trial court’s failure to admit and consider competent evidence constituted an abuse of discretion[?]

Mother’s brief at 2.

We review an appeal from the termination of parental rights in accordance with the following standard.

[A]ppellate courts must apply an abuse of discretion standard when considering a trial court’s determination of a petition for termination of parental rights. As in dependency cases, our standard of review requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record. In re: R.J.T., 608 Pa. 9, 9 A.3d 1179, 1190 (Pa. 2010). If the factual findings are supported, appellate courts review to determine if the trial court made an error of law or abused its discretion. Id.; [In re] R.I.S., 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[, 455], 34 A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630, 634 (Pa. 2003). Instead, a decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. Id.

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As we discussed in R.J.T., there are clear reasons for applying an abuse of discretion standard of review in these cases. We observed that, unlike trial courts, appellate courts are not equipped to make the fact-specific determinations on a cold record, where the trial judges are observing the parties during the relevant hearing and often presiding over numerous other hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. Therefore, even where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court’s legal conclusions are not the result of an error of law or an abuse of discretion. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).

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

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).

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., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003).

Here, the trial court terminated Mother’s parental rights based on Section 2511(a)(2) and (b), which provide as follows:

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§ 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:

....

(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.A. § 2511(a)(2), (b).

In order to terminate parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2), three elements must be met:

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(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) (citations omitted).

Our supreme court addressed incapacity sufficient for termination under Section 2511(a)(2).

A decision to terminate parental rights, never to be made lightly or without a sense of compassion for the parent, can seldom be more difficult than when termination is based on incapacity. The legislature, however, in enacting the 1970 Adoption Act, concluded that a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.

In re Adoption of S.P., 47 A.3d at 827 (citations omitted).

After a careful review of the record, we cannot grant Mother relief on her claim that the evidence was insufficient to terminate her parental rights under Section 2511(a)(2). We adopt the trial court’s discussion of Section 2511(a)(2) as this court’s own. (See trial court opinions, 12/22/14 at 15-17 and 3/5/15 at 17.) The clear and convincing evidence of record confirms the trial court’s determination that Mother has been unable to remedy her drug addiction and mental health issues that create her repeated and continuing incapacity to parent, and that Mother has been, and

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continues to be, unable to provide proper care for Child, warranting the termination of her parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2).

After we determine that the requirements of Section 2511(a) are satisfied, we proceed to review whether the requirements of Section 2511(b) are satisfied. 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 is on the parent under Section 2511(a), whereas the focus in Section 2511(b) is on the child. Id. at 1008.

In reviewing the evidence in support of termination under Section 2511(b), we consider whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. See In re C.M.S., 884 A.2d 1284, 1286-1287 (Pa.Super. 2005), appeal denied sub nom. C.M.S. v. D.E.H., Jr., 897 A.2d 1183 (Pa. 2006). “Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child. The 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. at 1287 (citation omitted).

The extent of the bond-effect analysis necessarily depends upon the unique facts and circumstances of the particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa.Super. 2008). Moreover, the mere existence of an

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emotional bond does not preclude the termination of parental rights. Id. at 764.

In In re Z.P., 994 A.2d 1108 (Pa.Super. 2010), we stated:

“Above all else . . . adequate consideration must be given to the needs and welfare of the child.” A parent’s own feelings of love and affection for a child, alone, do not prevent termination of parental rights.

Before granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child -- the love, comfort, security, and closeness -- entailed in a parent-child relationship, as well as the tangible dimension. Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful. The trial court, in considering what situation would best serve the child[ren]’s needs and welfare, must examine the status of the natural parental bond to consider whether terminating the natural parents’ rights would destroy something in existence that is necessary and beneficial.

Id. at 1121 (citations omitted) (emphasis in original).

Mother argues the trial court ignored the evidence provided by the court-appointed expert, Dr. Bernstein, that she had a strong bond with Child. Additionally, Mother contends the trial court erroneously relied on Father’s expert, Dr. Chambers, who reviewed Dr. Bernstein’s report and criticized the methodology used. (Mother’s brief at 18.) Mother points out Father placed no evidence on the record to argue that a bond did not exist. (Id.)

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Regarding Dr. Bernstein’s and Dr. Chambers’ conclusions, the trial court found the following:

Bonding assessments were conducted by Dr. Bernstein. He found that Child was resilient enough to handle the periods of time when Mother was removed from Child’s life due to her substance abuse problems, but he was unable to conclude if Child would be equally resilient whether the Court chooses to terminate or not terminate the rights of Mother. He was also unable to conclude whether one of the results would more negatively affect Child than the other. Dr. Bernstein opined that a bond still existed between Mother and Child, that there was a shared connection between Mother and Child, and it was more than an acquaintance. However, Dr. Bernstein opined that to determine the depth of the bond, it would require speculation of facts that do not exist. Dr. Bernstein was unable to determine what, if any, long-term effects terminating Mother’s parental rights would have on Child. Dr. Bernstein opined that the Court not move forward with the termination of Mother’s parental rights and that Mother and Child, as soon as possible, participate in a therapeutic-like opportunity to help them rebuild the bond, and to help Mother gain the trust that is necessary for Child to develop [in] knowing that she is committed to being a part of his life.

Dr. Chambers reviewed Dr. Bernstein’s report and any other collateral information that Dr. Bernstein used in reaching his opinions. It was Dr. Chamber’s position that the methods employed by Dr. Bernstein during the bonding assessments were “flawed” and “disconnected.”

Trial court opinion, 3/5/15 at 13-14 (footnote omitted).

Instantly, Child is eight years old. As an eight-year-old child, he undoubtedly knows Mother and has developed some type of emotional bond with her. However, the mere existence of an emotional bond does not

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preclude the termination of parental rights. See In re T.D., 949 A.2d 910 (Pa.Super. 2008) (trial court’s decision to terminate parental rights was affirmed where court balanced strong emotional bond against parents’ inability to serve needs of child).

As we explained in In re A.S., 11 A.3d 473, 483 (Pa.Super. 2010)

[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 the 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 whether any existing parent-child bond can be severed without detrimental effects on the child.

While In re A.S. discusses a foster parent, the court’s analysis applies to the matter before us. Additionally, a significant aspect in this case is that Child enjoys the intangibles of love, comfort, security, and stability while in the custody of Father and step-mother. Based upon Mother’s difficulties with drug addiction, mental health issues and the law, her relationship with Child lacks security, stability, and safety. Moreover, as discussed below, the trial court found that the severance of Mother’s bond with Child would not have a harmful effect on Child. According to the trial court,

In considering the totality of the evidence, months have passed with mother having minimal contact with Child. There is no credible evidence that Child has suffered or exhibited any loss or trauma as a result of not spending time with Mother. . . . The clear and convincing facts support that Mother and Child’s bond is not “necessary and beneficial” and that Child’s resiliency would have a

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positive impact on how he is affected by the termination of Mother’s parental rights.

So, while Child may have fun with Mother during their visits and enjoy the time spent, even looking forward to another time together in the future, there was no evidence that Child turns to Mother for comfort or direction. Therefore, the Court concludes that terminating Mother’s rights would be, for Child, a minimal loss primarily because Mother’s involvement with Child has been sporadic throughout his life. Mother was not parenting in any way from December of 2012 to the hearing. The instability of Mother’s life, which causes her relationship with Child to be unstable, poses significant risk factors for Child. Considering Child’s developmental, physical and emotional needs, the evidence supports that terminating Mother’s parental rights meets the needs and welfare of Child.

Trial court opinion, 12/22/14 at 22.

Although Mother’s love for Child is not in question, along with her desire for an opportunity to serve as Child’s mother, a parent’s own feelings of love and affection for a child, alone, will not preclude termination of parental rights. See In re Z.P., 994 A.2d at 1121. 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.” In re Z.S.W., 946 A.2d 726, 732 (Pa. 2008) (citations 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

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environment.” In re B., N.M., 856 A.2d 847, 856 (Pa.Super. 2004) (citation omitted).

Instantly, the trial court found that Mother has not provided for Child’s developmental, physical, and emotional needs and welfare, and will not be able to provide for Child’s needs, particularly because of the instability in Mother’s life. As there is competent evidence in the record that supports the trial court’s credibility and weight assessments regarding Child’s needs and welfare, we conclude the trial court did not abuse its discretion as to Section 2511(b).

Last, Mother argues the trial court abused its discretion in failing to admit the reports of two witnesses. This issue is waived as Mother failed to include it in her Rule 1925(b) statement. See In re G.D., 61 A.3d 1031, 1036 n.3 (Pa.Super. 2013) (any issues not raised in the Rule 1925(b) statement are waived on appeal).

Accordingly, we affirm the order of the trial court terminating Mother’s parental rights to Child.

Order affirmed.

Strassburger, J. joins the Memorandum.

Donohue, J. files a Concurring Memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/26/2015

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