In the Interest of: D.N.W., Appeal of: S.O.

J-S65005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.N.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.O., NATURAL MOTHER : : : : : No. 298 MDA 2018

Appeal from the Decree January 11, 2018 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8511

IN THE INTEREST OF: N.M.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: S.O., NATURAL MOTHER : : : : : No. 299 MDA 2018

Appeal from the Decree January 11, 2018 In the Court of Common Pleas of Luzerne County Orphans' Court at No(s): A-8512

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 21, 2018

S.O. (“Mother”) appeals the decrees1 terminating her parental rights to her minor daughters, D.N.W. (born in August of 2013) and N.M.W. (born in ____________________________________________

1 By separate decrees, the trial court involuntarily terminated the parental rights of D.M.L.W. (“Father”) on January 11, 2018. Father filed separate appeals at 316 MDA 2018 and 317 MDA 2018.

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July of 2014) (collectively, “the Children”), pursuant to 23 Pa.C.S. § 2511(a)(2) and (b). We affirm.2

The orphans’ court fully set forth the facts of this case in its Pa.R.A.P. 1925(a) opinion, and we summarize the procedural background as follows: The record reveals that CYS assumed care of the Children on January 27, 2015, pursuant to a shelter care order. Reasons for the placement were the hospitalization of the natural parents, domestic violence, parental mental health and substance abuse issues, and unstable housing. Subsequently, the Children were placed in foster care on September 21, 2015. On November 28, 2016, Luzerne County Children and Youth Services (“CYS”) filed a petition for the involuntary termination of Mother’s parental rights to the Children. The orphans’ court conducted a termination hearing over several days, beginning on May 8, 2017, and ending on July 26, 2017.3

In support of its burden of proving by clear and convincing evidence that termination was warranted, CYS called the following witnesses: Alicia Singer, senior clinician at Community Counseling Services; Grace Tavaris, case manager in the Intensive Family Reunification parenting program of Family ____________________________________________

2 We note with displeasure that neither CYS nor the Children’s guardian ad litem has filed a responsive brief.

3 The Children were represented by legal counsel and an attorney-guardian ad litem (“GAL”). Legal counsel was permitted to withdraw after the GAL advised the orphans’ court that there was no conflict between the Children’s legal and best interests and that no party objected to counsel’s withdrawal. N.T., 5/8/17, at 3.

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Services Association; Marisue Sack, employed by Family Services Association in the Intensive Family Reunification parenting program; Deborah Ficco, representative payee of Fitzmaurice Community Services; and Sherri Hartman, caseworker for CYS. In response, Mother testified on her own behalf and called Donald Grahm, a therapist at Haven House and navigator of its wellness recovery team.

On January 11, 2018, the orphans’ court filed decrees terminating Mother’s parental rights to the Children. On February 9, 2018, Mother filed timely notices of appeal. Both Mother and the trial court complied with Pa.R.A.P. 1925.

Mother presents two questions for our consideration:

I. Did the trial court abuse its discretion, commit an error of law, and/or there was insufficient evidentiary support in terminating the parental rights of the natural mother of N.M.W. and D.N.W., as the grounds pursuant to 23 PA. C.S.A. § 2511(a)(2) were not established by clear and convincing evidence, and such granting of a petition to terminate parental rights was against the weight of the evidence presented by the parties.

II. Did the trial court abuse its discretion, commit an error of law, and/or there was insufficient evidentiary support for the court’s decision that the best needs and welfare of the minor child N.M.W. and D.N.W. would be served by terminating natural mother’s parental rights as required by 23 PA. C.S.A. § 2511(b).

Mother’s Brief at 3 (full capitalization omitted).

We consider Mother’s issues according to the following standards:

The standard of review in termination of parental rights cases requires appellate courts to accept the findings of fact and

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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. A decision may be reversed for an abuse of discretion only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill-will. The trial court’s decision, however, should not be reversed merely because the record would support a different result.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks omitted). Moreover:

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. 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 I.E.P., 87 A.3d 340, 343–344 (Pa. Super. 2014) (quoting In re Adoption of S.P., 47 A.3d 817, 826–827 (Pa. 2012)) (internal citations omitted).

Section 2511 of the Adoption Act, 23 Pa.C.S. §§ 25101–2938, governs termination of parental rights, and it 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

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the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond.

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). See also In re Adoption of C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc) (explaining that the focus in terminating parental rights under Section 2511(a) is on the parent, but under Section 2511(b), the focus is on the child).

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)). Moreover, this Court may affirm the trial court’s decision regarding the termination of parental rights with regard to any one subsection of Section 2511(a). In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc).

Here, the orphans’ court terminated Mother’s parental rights pursuant to 23 Pa.C.S. § 2511(a)(2) and (b). Orphans’ Court Opinion, 3/12/18, at 2. Those subsections provide as follows:

§ 2511. Grounds for involuntary termination

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(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

• • * *

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

• • * *

(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed pursuant to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.

23 Pa.C.S. § 2511.

Regarding Section 2511(a)(2), this Court has stated as follows:

In order to terminate parental rights pursuant to 23 Pa.C.S.A. § 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) (citation omitted). Further, we have opined that “[t]he grounds for termination due to

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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) (citations omitted). Parents are required to make diligent efforts toward the reasonably prompt assumption of full parental responsibilities. Id. at 340. 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.

Pursuant to Section 2511(b), this Court must analyze whether termination is in the best interests of the Children. In re L.M., 923 A.2d at 511. “Intangibles such as love, comfort, security, and stability are involved when inquiring about the needs and welfare of the child.” In re K.Z.S., 946 A.3d 753, 760 (Pa. Super. 2008). This Court will also look to the bond between the child and parent and determine the impact that termination of the parental relationship would have on the child. Id.

Additionally, “[t]he statute permitting the termination of parental rights outlines certain irreducible minimum requirements of care that parents must provide for their children, and a parent who cannot or will not meet the requirements within a reasonable time following intervention by the state may properly be considered unfit and have his parental rights terminated.” In re B.L.L., 787 A.2d 1007, 1013 (Pa.Super.2001). We have recognized a connection between Pennsylvania’s law on termination of parental rights and

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the federal Adoption and Safe Families Act (“ASFA”), 42 U.S.C. § 671 et seq. The stated policy of AFSA is:

to remove children from foster placement limbo where they know neither a committed parent nor can look toward some semblance of a normal family life that is legally and emotionally equivalent to a natural family.... States such as Pennsylvania, which participate in the program, are required to return the child to its home following foster placement, but failing to accomplish this due to the failure of the parent to benefit by such reasonable efforts, to move toward termination of parental rights and placement of the child through adoption. Foster home drift, one of the major failures of the child welfare system, was addressed by the federal government by a commitment to permanency planning, and mandated by the law of Pennsylvania in its participation in [AFSA]. Succinctly, this means that when a child is placed in foster care, after reasonable efforts have been made to reestablish the biological relationship, the needs and welfare of the child require CYS and foster care institutions to work toward termination of parental rights, placing the child with adoptive parents. It is contemplated this process realistically should be completed within 18 months.

In re B.L.L., 787 A.2d at 1016.

We have thoroughly reviewed the briefs of the parties, the relevant law, and the certified record before us, including the opinion of the orphans’ court dated March 12, 2018, which addresses the issues raised by Mother in her Pa.R.A.P. 1925(b) statement. Upon review, we determine that Mother has failed to establish that the orphans’ court abused its discretion when it involuntarily terminated Mother’s parental rights. The orphans’ court has provided a thorough evaluation supporting termination of Mother’s parental rights pursuant to Section 2511(a)(2) and (b). Thus, we conclude that Mother’s issues lack merit, and the orphans’ court’s opinion adequately

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addresses Mother’s claims. Accordingly, we affirm on the basis of the orphans’ court’s opinion and adopt its reasoning as our own.4

Decrees affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/21/2018 ____________________________________________

4 The parties are directed to attach a copy of the orphans’ court’s March 12, 2018 opinion to any future filings in this matter.

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Circulated 10/29/2018 12:07 PM

IN THE INTEREST OF IN THE COURT OF COMMON PLEAS D.W. OF LUZERNE COUNTY

RECORDED ORPHAN'S COURT DIVISION 03112/2018 2:41:03 P11 JUDICIAL SERVICES RECORDS LICZERNE COUNTY

NO. A-8511 PENNSYLVANIA Inst N 20181 059 298 MDA 2018

IN THE INTEREST OF IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY

RECORDED 1

ORPHAN'S COURT DIVISION 03/12,9018 2142:30 PN JUDICIAL SERVICES 1, RECORDS : - LU2ERNE COUNTY NO. A-8512 PENNSYLVANIA Inst Nue 20181300 299 MDA 2018

MEMORANDUM ISSUED PURSUANT TO PA.R.A.P. 10200 L PROCEDURAL HISTORY On November 28, 2016, Petitioners Luzerne toimty Children and Youth

Services (Children and Youth), fled a Petition for the Involuntary Termination of Parental Rights (Petition) of the natural parents for the minor children, D.W. and N.W., in addition to requesting a change of permanency goal to adoption. Several hearings were held commencing on May 8, 2017 and concluding on July 26, 2017. The court requested proposed findings of fact and conclusions of law from the parties, in addition to a recommendation from the guaraion ad litem. The court received proposed findings of fact and conclusions of law, but did not receive a written recommendation from the guardian ad litem. The emit took the matter under advisement and on January ao, 2018, issued decrees terminating the parental rights of both natural father and natural mother.

The natural parents' parental rights were terminated pursuant to 23 Pa.C.S.A. §2511 (a)(2). In entering these termination decrees, the Court gave primary consideration to the developmental, physicaLand emotional needs and welfare of the children pursuant to 23 Pa.C.S.A. § 2511(h).

On February 9, 2018, Mother, by and through her Court-Appointed Counsel, filed a Notice of Appeal to the Superior Court and. the requisite Statement of Matters Complained of on appeal. Father, by and through his Court-Appointed Counsel filed a Notice of Fast Track Appeal on February 12, 2018, three days beyond the February 9, 2018 deadline for the filing of an appeal. Father's counsel did not file a Request to Appeal time Pro Tunc. Mother's Statement of Matters Complained of on Appeal is as follows:

a. The Trial Court abused its discretion, committed an error of law,

and/or there was insufficient evidentiary support in terminating the

parental rights of the-Natural Mother of D.W. and N.W., as the grounds

pursuant to 23 Pa.C.S.A.§2513. (a)(2) were not established by clear and

convincing evidence, and such granting of a petition to terminate

parental rights was against the weight of the evidence presented by the

parties.

2. The Trial Court abused its discretion, committed an error of law,

and/or that there was insufficient evidentiary support for the Court's

decision that the best needs and welfare of the minor children, D.W.

1151.1.12a:n

and N.W. would be served by terminating Natural Mother's parental

rights as required by 23 Pa.C.S.A.§2511(b)

3. Counsel for Natural Mother reserves the right to amend this document

within a reasonable time after receipt of the final transcript and/or the

Trial Court's Opinion in Support of the January 11, 2018 Decree. (sic)

IL FINDINGS OF FAcr

There are two minor children in this case. D.W. was born on August 29,

2013 and she is currently four (4) years old. N.W. was born on July is, 2014 and

27, she is currently three (3) years old. The children were placed on November rights. 2015. This case involves the proposed termination of Mother's parental

It is unrebutted that the minor children have been in placement and 2015. therefore removed from the care of Father and Mother since November 27,

The reasons for placement were domestic violence, mental health and substance abuse issues.

In meeting its requisite burden of proof by clear and convincing evidence the regarding the termination of parental rights of Mother, Petitioner offered Services; testimony of Alicia Singer, senior clinician at Community Counseling

Grace Tavaris, case manager in the Intensive Family Reunificafion parenting

Family program of Family Services Association; Marisue Sack, employed by

Service Association in the Intensive Family Reunification parenting program; and

Services. Deborah Ficco, representative payee, at Fitzmaurice Community evidence the Additionally, Mother testified on her own behalf and offered into a navigator of the testimony of Donald Graham, a therapist at Haven House and

wellness recovery team. *4

HL CONCLUSIONS F LAW

After consideration of the credible evidence as summarized above and

more detailed below, the Court concludes:

(1) Children and Youth has shown by clear and convincing evidence

that Mother's parental rights to the minor children, D.W. and

N.W. should be terminated pursuant to 23 Pa. C.S.A. Section

2511(a)(2).

(2) Children and Youth has shown by clear and convincing evidence

that terminating Mother's parental rights to her minor children, D.W. and N.W. best serves the needs and welfare of the children

pursuant to 23 Pa. C.S.A. Section 2511(b).

W. DISCUSS' Ng G INDS FOR TERMINATI N <IiF M THE 'S PARENTAL I, GHTS

The statute permitting involuntary termination of parental rights in

Pennsylvania, 23 Pa. C.S.A. Section 2511, sets forth the certain irreducible A minimum requirements of care that parents must provide to their children. time parent who cannot or will not meet the requirements within a reasonable the intervention by the State may properly be considered unfit and may following

properly have his or her rights terminated. In is on J. T. wain R.T., 817 A.2d 505 (Pa. Super. 2002).

Termination of parental rights is an issue of constitutional dimensions her own child. because of the fundamental right of an individual to raise his or must prove Therefore, in proceedings terminating parental rights, the Petitioner been met. by clear and convincing evidence that the statutory criteria have

165, 465 A.2d Sonatoskg v. Kramer, 455 U.S. 745 (1982), In 1y ec T.R., 502 Pa.

642 (1983). However, as the Pennsylvania Supreme Court has stated "a parent's

child is converted basic constitutional right to custody and rearing of his or her right to have upon the failure to fulfill his or her parental duties to the child's healthy, proper parenting in fulfillment of his or her potential in a permanent,

safe environment." Ira Re: Jr., 2003 Pa. Super. 112, citing Ira the Interest ofWillie, 719 A.2d 327 (Pa. Super 8998). A. 23 Pa. C.S.A. Section 251111 (a)(2) 2511(a)(2) when: A Court may terminate parental rights under Section or refusal of the The repeated and continued incapacity, abuse, neglect, parental care, control parent has caused the child to be without essential being and the or subsistence necessary for his physical or mental well or will not be conditions of the incapacity, abuse, neglect or refusal cannot remedied by the parent.

Accordingly, Mother's parental rights to the children, DN. and N.W. can testimony at the be terminated under Section 2511(a)(2) of the statute. Credible clear and convincing termination hearing was presented and demonstrated by her mental health evidence that Mother is incapable of presently remedying is necessary for the issues and incapable of providing parental care which

physical and mental well being of the children. Although Mother completed a

outstanding concerns. parenting education program, it was completed with a supervised setting. Mother missed many visits and she was observed in observed with the children out Mother did not progress to a point where she was failure to visit on a in the public or at her home. Furthermore, Mother's her finances so as to afford consistent basis was caused by Mother not managing after placement. the cost of transportation, an issue which became a concern

impact upon her Mother chose to move to a location that would have a negative

ability to visit consistently with her visitation and treatment.

Ms. Deborah Ficco testified at she works for Fitzmaurice Community as a representative payee Services as a representative payee. She testified that in order to assist she receives social security benefits on behalf of individuals testified that she them in timely bill paying and money management. Ms. Ficco that when she began working with the parents in May of 2016. She testified testified began working with the parents, the parents were homeless. Ms. Ficco that the her agency helped the parents secure housing. Ms. Ficco testified Pennsylvania and that parents chose to reside in Catasauqua, Lehigh County, matter where they they would have received their social security benefits no

resided. N.T. 5/8/17 at 60-62.

Ms. Ficco testified that Mother receives $1,too per month and Father

Once her agency receives rec ives $777.10 per month in social security benefits. parents' monthly rent, the parents' social security benefits, the agency pays the After all expenses are paid, utilities, medical bills and representative payee's fee. Mother and Father each the parents receive their remaining "spending money".

receive approximately $400-$500.00 per month in "spending money."

that their "spending money" be Ms. Ficco testified that the parents requested basis. Ms. Ficco testified that the deposited into their bank accounts on a weekly basic necessities such as food, parents' "spending money" was to be spent on Id. at 64,67,75. toiletries and any other household necessities.

'UI

Ms. Ficco further testified that Father received settlement funds from the

Social Security Administration in the amount of $8,210.50 to be paid in three

for monthly installments. Ms. Flew testified that Father was paid $2,199.00 on May 2, each of the first two installments and received his last installment of the hearing on 2017, in the amount of $3,812.50. Id. at 82, 96. As of the date his account July13, 2017, Ms. Ficco testified that Father had a total of $3,700 in

and Mother had a total of $1,069.36 in her account. Id. at 96-97.

Ms. Piece testified that from the $400.00 to $5oo.00 that the parents month for were each receiving per month, she was paying them $200.00 per to visit with their transportation. The transportation money was given to them that the parents children. However, Ms. Ficco later learned from Ms. Hartman for missed many visits during the months that they were given money price of a round trip transportation. Moreover, Ms. Ficco later learned that the cost $65.50 for bus ticket per person was $32.75 per person. Therefore, it would 68,69, 82. Ms. both parents for a round trip ticket and not $200.00. Id. at 66, Ad Litem that the parents Ficco confirmed on cross examination by the Guardian to visit their children. were always provided money for transportation in order

Ms. Ficco confirmed that in September of 2016 and December of 2o16 when the

available funds to visit parents missed visits with their children, the parents had 2016, the parents with their children. Furthermore, in May of 2016 and August their children. Id. at would also have had sufficient funds to use for visits with that lack of funds could not have been the reason 94-95, 99-10o. The Court finds were that the parentswere not able to visit with their children since the funds

always available to the parents for visits.

Ms. Sherri Hartman testified that she is a caseworker for Children &

Youth. She stated D.W. was born on August 29, 2013 and N.W. was born on July

15, 2014. The children were placed in January of 2015. Ms. Hartman testified the reasons for placement were domestic violence, mental health, and drug and alcohol abuse in the residence where the parents were residing. Ms. Hartman testified that a family service plan was developed for the parents, including drug and alcohol rehabilitation services for the Father, mental health services for both Mother and Father and a requirement that the parents obtain and maintain safe and stable housing. Id. at 101-102.

Ms. Hartman testified that the children were initially removed from Plymouth, Luzerne County. Both parents were subsequently hospitalized to address mental health issues. Father was discharged and he moved out of Luzerne County to Tobyhanna, Monroe County, to reside with friends. When Mother was discharged, she refused a shelter placement in Wilkes-Barre, Pennsylvania and decided to move out of Luzerne County to reside with Father. Ms. Hartman testified that she later learned that the parents were evicted from the residence in Tobyhanna. In June of 2015, the parents reported that they were homeless. The parents were residing in a shelter in East Stroudsburg, Monroe County. On July 20, 2015, Ms. Hartman indicated that Mother had telephoned

her and related to her that she was in a shelter and Father was residing outdoors. to Mother related to Ms. Hartman that he was moving back to Luzerne County -Bane the Wilkes-Barre area, and that she was not going to move back to Wilkes York with due to dislike of Father's family. Mother had wanted to move to New were her Mother. Id. at 101-103. Ms. Hartman then indicated that the parents

homeless from August 25, 2015, until September 1, 2015 when they signed a lease in East Stroudsburg. However, in November of 2015, the parents again reported that they were homeless and resided in a shelter though March 8, 2016. By April of 2016, the parents were residing with Mother's aunt in Allentown. Ms. Hartman then learned that on July 1, 2016, the parents signed a lease in Whittier Place, Catasauqua, Lehigh County. Id. at 104.

Ms. Hartman testified that initially, the parenting education services were deferred due to the location of the parents' residence and the inconsistency of visitation with the children. Ms. Hartman testified that the parents engaged in mental health services initially in East Stroudsburg; however, they did not follow through with the services. The parents later engaged in mental health treatment at Community Counseling in Luzerne County. Id. at 104-106.

With respect to the parents' transportation for the visits with the children,

Ms. Hartman testified that a bus ticket cost $32.00 per person for a round trip

from East Stroudsburg to Wilkes-Barre. Ms. Hartman testified that after the parents purchased their tickets, they would submit the receipt to Children &

Youth and the parents would be reimbursed for the cost. Ms. Hartman stated that

once the parents moved to Catasauqua, a farther location than East Stroudsburg, then the price doubled for the bus pass which then would have been

approximately $64.00 per person. Ms. Hartman testified that she related to the

expense of parents that they could only be reimbursed for one bus pass due to the were the bus pass. Ms. Hartman testified that initially the visits with the children

weekly, but when the parents were not able to make the weekly visits, the visits

were then bi-weekly. Id. at 106-107.

Wk.

Ms. Hartman emphasized that she had recommended several times to the parents to move back to Luzerne County. She further explained to the parents that they did not need to return to Plymouth, where a relative with whom they had a disagreement was residing. The parents could move anywhere in Luzerne County. However, the parents refused. Id. at 107.

Ms. Hartman testified that from April 2015 through June of 2015, the parents' visits with the children were inconsistent. Ms. Hartman testified that during that time, Mother was hospitalized. Father was residing in Tobyhanna and did not have transportation for the visits. Ms. Hartman testified that in July 2015, the parents were provided assistance with transportation. However, the parents attended only one visit out of four visits in July. In August of 2015, they again attended one visit out of four visits. In September, they attended all scheduled visits. In October and November, they attended one visit in each month. In December of 2015, they attended four out of five visits.

Ms. Hartman stated that the parents moved to Lehigh County in April of

and a 2016. Ms. Hartman testified that initially the parents had family members

friend transport them prior to the use of bus transportation. Id. at 108-109. Ms.

Hartman testified that according to information she received, the parents only

had two problems with the bus transportation. The first issue was when Mother was took the wrong bus and ended up at a different location. The second issue that the when the bus experienced mechanical problems. Ms. Harman testified

parents moved to Lehigh County in April of 2016. She testifi that in May of

2016, the parents attended one visit and cancelled three visits. In June 2015, the

they parents attended two visits and cancelled two visits. In July of 2016,

attended one visit and cancelled three visits. Ms. Hartman testified that there were some months where they did not visit with the children at all. Id. at no-

m. Ms. Hartman further testified that Mother did not comply with her mental

health services. She was not consistent with attending her appointments. On November 17, 2015, Mother attended an appointment at Community Counseling Services in Luzerne County. She attended sessions, but then later Mother was discharged for noncompliance on September 14, 2o16. Mother did not successfully complete mental health services. Ms. Hartman testified that Mother reengaged in mental health services in Lehigh County; however, she did not successfully complete the services. Ms. Hartman testified that Mother did not like

the mental health services in Lehigh County. She, therefore, stopped engaging in services and she also stopped taking her medication. Ms. Hartman testified that

Mother advised her that her primary diagnosis was bipolar disorder. Id. at 111-113. On cross examination, Ms. Hartman testified that Mother was engaged in mental health treatment, but did not know if the treatment included a medical management portion. At the time of trial, Mother had not successfully or consistently addressed her mental health concerns. Id. at 122,125. Ms. Hartman also indicated that Mother's treatment includes Mother being

consistently engaged in medication management based treatment and that the Mother has consistently disengaged from medication management during

time the children have been in placement. Id. at 131-133.

Mother called Donald Grahm, a therapist at Haven House Treatment Mother in Center to testify on her behalf. Mr. Grahm commenced working with

yk,,, -CoactMuir i outpatient therapy on January 27, 2017. Mr. Grahm testified that Mother was diagnosed with bipolar disorder Type 1, intermittent explosive disorder. Mr. Grahm testified that he had 18 appointments with Mother; however, Mother had 11 missed appointments which were either cancelled or rescheduled by Mother. While the Court recognizes that mental health concerns often require lifelong treatment, at the time of the hearing addressing the instant petition to terminate parental rights, Mother had not remedied her mental health issues to a level in which she was stable and consistent. N.T. 7/13/17 at 149, 151, 156.

With respect to parenting education, Ms. Hartman testified that Mother completed the parenting education program with concerns. According to Ms. Hartman, the remaining concerns address protective capacities and the ability to prioritize needs. For instance, Ms. Hartman testified that when attempting to teach the parents about budgeting their finances, the Mother's focus was always on buying the children more "things". Ms. Hartman testified that Mother purchased approximately 56 hair bows for the children. N.T. 5/8/17 at 111, 114. Ms. Hartman ultimately stated that she does not believe that the Mother remedied the circumstances that led to the children's placement. Id. at 114.

Furthermore, Ms. Hartman testified that the children initially had a bond with the parents. However, due to the parents' lack of visitation, that bond has deteriorated. According to Ms. Hartman, it is difficult to maintain a bond when

the parents are visiting the children once per month. Ms. Hartman testified that

she observed the children with the natural parents and she also observed the

children with the foster parents. The children spontaneously began calling the

foster mother, "Mommy." Id. at 136-137.

a

Ms. Alicia Singer testified that she is a senior clinician employed at

Community Counseling Services. She testified that she is familiar with the ease

e record custodian. Ms. Singer indicated that Mother had her intake at only as

the agency on December 15, 2015. When questioned on the current status of Mother's treatment, Ms. Singer testified that Mother is terminated from therapeutic services and Mother will not be receiving medication until she sees a

physician. However, there was no further appointments made for Mother. Id. at

47.

Ms. Singer also testified to correspondence dated September 14, 2016,

which advised Mother that she was terminated from treatment at Community all of Counseling Services. Ms. Singer indicated that the correspondence outlined

the appointments missed by Mother. According to the correspondence, Mother had cancelled or failed to appear at scheduled appointments as follows: a. December 22, 2015; b. February 16, 2016; c. March 1, 2016; d. March 8, 2016; e. March 22, 2016; 1. April 5, 2016; g. April 9, 2016; h. April 25, 2016; i. May 3rd, 2016 j. May 17, 2016; k. May 24, 2016; 1. May 31, 2016; m. June 21, 2016; n. July 12, 2016; 0. August 2nd, 2016; p. August 16, 2016; August 23, 2016:and r. September 16, 2016.

NN . r

Based on Mother's attendance records, Ms. Singer testified that Mother was not consistent with her appointments. Ms. Singer further indicated that Mother did attempt to reengage in services on October 25, 2016; however, Mother cancelled the appointment and did not reschedule. Id. at 48-50. On cross examination, Ms. Singer testified as to a treatment letter dated January 19, 2016 which stated that Mother had reached her goals with respect to the treatment plan in January. Ms. Singer testified that from January 2016 to April 2016, the

agency provides updates for the patients to work on new goals. Therefore, was no although Mother reached her goals for the month of January 2016, there

testimony given as to mother reaching other goals for additional treatment pans. Id. at 58-61.

Ms. Grace Tavaris testified that she is employed at Family Services Association. She testified that she worked with Mother and Father as a case

manager and also in the Intensive Family Reunification Services parenting with the education program(IFRS). Ms. Tavaris testified that she began working program parents in June of 2015. Ms. Tavaris described the IFRS as a parenting

designed to work with the causes for placement so that the children can either that the return home to their parents or have permanency. Ms. Tavaris indicated issues for both concerns noted in the file by the case worker were mental health for Mother parents, drug and alcohol issues for Natural Father, domestic violence

and the need for safe and stable housing for both. N.T. 7/13/2017 at 7-9.

Ms. Tavaris testified that the parents were experiencing transportation

meeting. issues; therefore, they only met with the parents for the introductory

Ms. Tavaris testified that she attempted to meet with the parents on July 1, 2015,

-JVAMIMITOndlit

July 15, 2015, July 28, 2015, and August 4, 2015, but was unable to meet with Tavaris, the them. Since the parents were not able to consistently meet with Ms. The program is case was deferred until the parents were able to visit consistently. testified meant to include meetings with the parents twice per week. Ms. Tavaris

that without being able to meet on that basis, it is difficult to gauge the parents' was "on hold". progress. Id. at 9-10. Therefore, according to Ms. Tavaris, the case

Id. at 12.

Ms. Tavaris testified that the parents were referred to the same program

with the same concerns on February 25, 2016. Ms. Tavaris testified that the

testified that parents remained inconsistent with their attendance. Ms. Tavaris

she was supposed to meet with the parents twice per week, however, the parents

every two were only able to meet once per week and later where available once the IFRS weeks. Id. at 13. Ms. Tavaris testified that the parents did complete Id. at 26-27. program; however, they completed the program with "concerns".

Ms. Marisue Sack, also employed by Family Services Association in the

that the parents Intensive Family Reunification Program (IFRS) explained

completed the program with "concerns". Ms. Sack testified that she began

26 sessions offered to working with the family in March of 2016 and there were Sack indicated the family, however the parents only attended 10 sessions. Ms. 10 out of 26 that she was informed that the reason for the parents only attending from sessions was due to transportation issues and an inability to obtain money stated that the program the representative payee for transportation. Ms. Sack

was "completed with concerns" due to the following reasons:

sessions; a) The inconsistencies in the keeping the parenting

111111111111

b) The inconsistencies in visiting with children at the child welfare agency;

c) The visits were only observed at the child welfare agency. Ms. Sack was

not able to see the children with the parents in their own home or in a public Id. at 31-32. setting. She was observing the parents in a supervised setting.

Ms. Sack testified that it was important for the parents to attend all the

sessions on a consistent basis. The goal of the program is to work with parents

hindered and children toward reunification. The lack of consistency from parents meet the that reunification. Id. at 34. Ms. Sack testified that she was supposed to to meet parents and observe the visits two times per week. Ms. Sack was only able Ms. Sack with the parents ten times over a period of nine months. Id. at 34-35. that testified that she also attempted to work with the parents by recommending

they move back to Luzerne County so that they would be closer to the agency for

did not wish to visits. However, the parents, who were residing out of county,

move back to Luzerne County. Ms. Sack stated that the parents had an issue with

not want to one of the relatives, an aunt who lives in Luzern County, and did testified that they reside in the vicinity of the aunt. Id. at 35-36. Ms. Sack further They explained to worked with the parents regarding their financial budget. that they them that their spending should be used for necessities and insuring commented that have a sufficient amount of money for transportation. Ms. Sack headbands and a pair at one time, the mother, purchased clothes and accessories, Mother needed to of new boots for the girls. Ms. Sack was concerned that the seeing the children. appropriately maintain her budget so that she could continue were advised of their Id. at 36-37. Ms. Sack testified that although the parents

buying nice budgeting, the Mother stated that she "couldn't help it" and she liked

things for the girls Ms. Sack noted that Mother needed to realize that if she did

not budget her money well, then she would run out of money to use for

transportation in order to have visits with the children. Id. at 57. Father did Ms. Sack testified that during the program, Mother and testified that with maintain housing and were no longer homeless. Ms. Sack also and worked with respect to domestic violence, Mother and Father made progress and their communication skills, learning to walk away during an argument regarding working with stress. However, Ms. Sack remained concerned the parents were parenting abilities. Ms. Sack testified that her observations of the parents in an solely under a supervised setting. She was not able to observe

unsupervised setting. Ms. Sack became concerned regarding the parents'

for budgeting. Although budgeting may not have been an initial reason the parents' ability to placement, budgeting later became an issue which affected

visit with the children. scheduled for a visit Ms. Sack also testified that initially the parents were

once per week. Then it was once every two weeks at the parents' request.

However, should the parents cancel a visit, the next visit would not occur until

a scenario in which the two weeks later. Id. at 39.41. The inconsistency created Ms. Sack testified that parents saw the children only once per month. Therefore, was completed with although the parents completed the program, the program cross examination by the Guardian "concerns". Id. at 45. Ms. Sack confirmed, on sufficient times for her to Ad Litem that the parents did not see the children Id. at 51. Ms. Sack further assess the type of bond they have with the children.

they explained that although the parents were able to apply the information was not learned in to sessions over a nine (9) month period, that time frame as all the sufficient for Ms. Sack to recommend that the children return home

visits were in a controlled and supervised environment. Id. at 53.

Ms. Sack further testified that the parents had chosen to reside outside of

benefits Luzerne County. The parents receive their income from social security Luzerne County. and thus, would have received the money even if they resided in

Ms. Sack noted that had the parents chosen to reside in Luzerne County, they

would have been able to see their children more often. Id. at 55-56. Luzerne County The Court finds that Mother had opportunities to reside in

close to her children. However, she chose to follow Father to Tobyhanna, Monroe

to Luzerne County, County. When Father subsequently contemplated returning family. Mother Mother refused because she did not want to be near Father's town and away from could have certainly resided in Luzerne County in a different when given the aforementioned aunt, but Mother refused. The court finds that own interest above the choice to have visits with the children, Mother chose her mental health issue the children's interest. The court further finds that Mother's

contributed to her failure to appreciate the consequences of not visiting with her

in a different county and children on a consistent basis. Mother's choice to reside to Mother's choice to thus, create a more difficult situation for herself, in addition that she had purchase unnecessary items for her children versus insuring impaired judgment. sufficient funds to visit her children also reflects Mother's

Based on the Petitioner's evidence, the Court finds that Mother is incapable of

providing the children with essential parental care, control or subsistence

finds that necessary for the children's physical or mental well being and further choices have not Mother's mental health issues and thus her attendant parental witnesses, the Court been remedied. Therefore, based on the all testimony of the conditions that further finds that Mother has not been able to remedy all of the health concerns. gave rise to the placement of the children, namely her mental

Unlike 23 Pa.C.S.A. § 2511(a)(1), subsection (a)(2) does not emphasize a emphasizes the parent's refusal or failure to perform parental duties, but instead control or subsistence child's present and future need for essential parental care, the language in necessary for his physical or mental well-being. Therefore, ignore a child's need for subsection (a)(2) should not be read to compel courts to of the family has a stable home and . .. this is particularly so where disruption reuniting it." (our already occurred and there is no reasonable prospect for

emphasis added) In re FOAOPO, 944 A.2d 79 (Pa. Super 2008). in fulfillment At this juncture, the children's right to have proper parenting outweighs Father's of their potential in a permanent, healthy, safe environment

interest.. In It e: JAS., Jr., 2003 Pa. Super. 112, citing In the Interest of Mile, 719 A.2d. 327 (Pa. Super 1998). 23 P.A.C.S.A, V. AD'i ITI NAL CONSIDERATIONS UNDER SECTION 251301

FOR M TEE

A, ENVI MENTAL FACTORS

Title 23 Pa. C.S.A. Section 2511(b) specifies that a court may not terminate

factors such as the parental rights "solely on the basis of environmental

to inadequate housing, furnishings, income, clothing, and medical care if found

be beyond the control of the parent."

As "environmental factors beyond the control of Mother" was not the of linchpin in the placement of the minor children and because of the presence

other, independent factors utilized in the placement of D.W. and N.W., this consideration does not apply and will not be addressed. ft; NEE S AND WELFARE F THE CIULDR1EN

Once the Court has found that involuntary termination of parental rights is

to the warranted under the Act, the court must then "give primary consideration This is to developmental, physical and emotional needs and welfare of the child." needs be a separate inquiry and even where the court has already considered the

and the welfare of the child under one of the grounds of termination, the court must do so again. Ilya re Matseek, 611 A.2d 738 (1992). The term "needs and wefare" of a child refers to both tangible and intangible

needs. The intangible needs of a child include love, comfort, security and

closeness. In re Matzoth, 416 Pa. Super. 520, 611 A.2c1737, 747 (1992). There is nothing in the record that shows that the natural Mother is presently capable of

providing a safe, secure environment for the minor children. These Parental duty is best understood in relation to the needs of a child. interest in needs, both physical and emotional, cannot be met by a mere passive duty that the development of the child. Meeting a child's needs is a positive 225, 525 A.2d requires affirmative performance. ]M re Shives, 363 Pa. Super.

8oi, 8o2 (1987).

IraMak( .11

A parent is not relieved of his or her responsibility relating to the needs of

a child when a child has been placed in foster care. A non -custodial parent has a

duty to exert himself to take and maintain a place of importance in the child's life. In re Adoptiorni ofM.J.H., 348 Pa. Super. 65, 301 A.2d 648 (1985). A parent must demonstrate a continuing interest in the child and make a genuine effort to

maintain communication and association with the child. lit re Adoption of Meeray, 331 A.2d 652 (Pa. 1973). Moreover, a parent with a child in foster care has an affirmative duty to work toward the return of the child. /a Re: William L., 477 Pa. 322, 383 A.2d 1228 (1978).

When considering the needs and welfare of the child, it is also important for the court to consider the bond between the parent and the child because severance of a strong parental bond can have a detrimental impact on the child.

Matzoth, supra. Petitioner presented credible testimony regarding the needs, welfare and

best interest of minors D.W. and N.W. in relation to their Mother. Ms. Hartman, testified that the children have been with the foster parent, Sharon Anderson,

since September 21, 2015. N.T. at 7-8. Ms. Hartman testified that she observes

the children on a monthly basis. Ms. Hartman testified that the children have been assimilated into the

as uncles, family. They attend all family outings and refer to family members parent is an aunts and grandparents. Ms. Hartman also testified that the foster

adoptive resource for the children.

Ms. Hartman testified that the foster mother meets the children's physical needs. She provides the children with food, shelter, and clothing. The children's medical needs and immunizations are also up to date. Id. at 9.

Ms. Hartman further testified that the foster mother meets the children's activities. developmental needs. She works with the children on age -appropriate

She is teaching D.W. her numbers and alphabet. She engages the children in play

dates so they are interacting with other children. The foster mother also "potty -

trained" the children.

Ms. Hartman testified that the foster mother also meets the children's

emotion& needs. According to Ms. Hartman, the children seek the foster mother

children for comfort and affection. The foster mother is very nurturing with the

and very affectionate toward them. Ms. Hartman testified that the children have been with the foster parents since the date of placement. Id. at 8, 21.

Ms. Hartman also testified that there is a bond between the Mother and

the minor children. Ms. Hartman describes the children's bond with their that the Mother as a "play date bond." She testified that although D.W. identifies There is natural mother is her mother, there is not a lot off affection in the room. Ms. not much "kissing or hugging" between the Mother and the children.

Hartman testified that N.W. just follows her sister, D.W. N.W. does not identify

According to Mother as her mother and views the foster mother as her mother.

Ms. Hartman, D.W. exhibits some behavioral issues when she has to visit the

to return to the natural parents. After the visits, she easily separates from them was a period foster mother. Id. at 11-12. Ms. Hartman testified that when there and the of time when the visits did not take place between the natural parents

SL-VaPittaWffraSE?....a. Dlial tl - ..,11111,1

children, the children did not inquire about the visits. D.W. also was having less

behavioral issues.

Ms. Hartman described the bond between the foster mother and the

children as a parent/child bond. She also described the bond as a positive bond.

Both children call the foster mother "Mommy" and also follow the rules she puts

in place. Id. at 12-13.

Ms. Hartman testified that that the foster parent mother is willing to be aware legally and financially responsible for the children. The foster mother is

that the children can inherit from her as if she is their own natural mother. Id. at 32. Ms. Hartman also believes that if the natural parents' rights were terminated,

it would have a positive effect on the children. The children would have stability

and would be adopted into a loving and caring family. Ms. Hartman further

stated that the children would not be negatively affected should the contact with

the natural parents be terminated. She explained that there was a lack of Other consistency. At times, the parents only saw the children once per month. were times, the children did not see the parents at all in a given month. The visits

not consistent. Ms. Hartman believes that adoption of the children by the foster

mother serves the best interest of the children. Id. at 12-13. finds Accordingly, based on the testimony of Ms. Hartman, the court further and that the termination of Mother's parental rights would best serve the needs

welfare of the children.

of long expired to remedy parental incapacity and there is little rational prospect

the timely reunification of D.W. and N.W. to their Mother.

MIL CONCLUSION issues The Court finds that Mother had not addressed her mental health

and thus, her attendant parenting deficits so that she is capable of providing finds that she essential care and control of the minor children. The Court further mother for is not able to meet her children's needs. In stark contrast, the foster

each child has amply demonstrated she can and does meet the physical, have developmental and emotional needs of the minor children. N.W. and D.W. home with a thrived under her care. The children need and deserve a permanent the rights of loving capable parent. The only way to provide this is to terminate

the Mother. Clearly, it is in the children's best interest to do so. "Notice of In the event this Honorable Superior Court entertains Father's will file a Fast 'hack Appeal," then, upon being advised of same, this Court

supplemental opinion addressing same. Respectfully submitted,

BY E COURT,

JIENNI RS

DATE:

a Irn a

COPIES TO:

Jena Piazza Braunsberg, Esquire Children & Youth Services of Luzerne County in North Pennsylvania Boulevard Wilkes-Barre, PA187o1

Stephen Palubinski, Esquire Attorney for Mother P.O. Box 656 Nuremberg, PA 18241

Paul L. Delaney, Esquire Guardian Ad Litem 16 Institute Street Wyoming, PA 18644