In Re: E.D. Appeal of: C.F.

Court: Superior Court of Pennsylvania
Date filed: 2022-11-29
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J-S38017-22


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: E.D.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: C.F., MOTHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1872 EDA 2022

                   Appeal from the Decree Entered June 16, 2022
                  In the Court of Common Pleas of Wayne County
                            Civil Division at 18-AD-2022


BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.:                            FILED NOVEMBER 29, 2022

        C.F. (Mother), appeals from the decree involuntarily terminating her

parental rights to E.D. (Child) and changing Child’s permanency goal to

adoption.1 After careful consideration, we affirm.

        Child was born in February 2019.           On December 18, 2020, Wayne

County Children & Youth Services (WCCYS or the agency) became involved

with the family at the request of the Pennsylvania State Police, who had

reported Mother and Father’s suspected drug abuse. N.T., 6/7/22, at 4; see

also Exhibit 1 (Permanency Plan, 1/4/21, at 1).          The WCCYS caseworker,

Sarah Mooney, testified that Mother “was not present at the residence.” N.T.,

6/7/22, at 4. Further:


____________________________________________


1The trial court also terminated the parental rights of L.D. (Father), who has
appealed at 1871 EDA 2022.
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         The agency did try to case plan with [Father] at the home and
         [Mother] over the phone to avoid protective custody[;] however,
         both parents were very combative and stated they did not want
         [Child] and to place [her], or to place [Child] in foster care.

Id.

         Child was adjudicated dependent on December 28, 2020.           WCCYS

established family service plan goals for Mother of cooperating and

communicating with WCCYS; obtaining a drug and alcohol evaluation and

following treatment recommendations; participating in random drug screens;

obtaining a mental health evaluation and complying with recommendations;

taking medications as prescribed; attending visitation with Child; maintaining

a safe and suitable home for Child; and meeting Child’s basic needs. See

Exhibit 1 (Permanency Plan, 1/4/21, at 13-19).

         Child’s placement had some “twists and turns.” Id. at 5. Ms. Mooney

testified that Mother’s compliance was mostly “minimal.” N.T., 6/7/22, at 25-

41. However, Mother was compliant at one point; as a result, CYS returned

Child to Mother. Id. at 25. Specifically, CYS returned Child to Mother on

October 15, 2021, but placed Child back with her foster parents two weeks

later,    on   November     1,   2021,    after   Mother   tested   positive   for

methamphetamines. Id. at 5-6. WCCYS also attempted kinship care. WCCYS

placed Child with her maternal grandparents, although maternal grandmother

was not permitted to be alone with Child. Id. at 6-7. The placement was

unsuccessful, and the agency removed Child from maternal grandparents’

care a few months after placement. Id.; see also Exhibit 1 (Permanency

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Plan, 1/4/21, at 1 (stating maternal grandparents “failed drug screens,

[maternal grandfather] had a criminal record and [maternal grandmother] has

a PFA against someone in NJ.”)). Child was placed with her foster parents

three times and has remained with them since November 2021. Id. at 8.

      The trial court conducted permanency review hearings on January 4,

2021, October 12, 2021, November 1, 2021, and February 8, 2022.             On

February 8, 2022, the trial court “found minimal compliance and no progress

with the permanency plan by Mother.” Opinion and Decree, 6/16/22, at 2.

On April 11, 2022, WCCYS petitioned for termination of Mother’s parental

rights. The trial court held a hearing on June 7, 2022. At that time, Child was

three years old and had been in placement for 16 months. N.T., 6/7/22, at

47, 122.

      In addition to Ms. Mooney, WCCYS presented testimony from a licensed

psychologist, Dr. Brittney Tunilo.   WCCYS sought to introduce Dr. Tunilo’s

testimony “specifically as it regards [Dr. Tunilo’s] bonding evaluation” of

Mother and Child. Id. at 78. The parties stipulated to Dr. Tunilo’s expertise

in forensic psychology. Id.

      Mother testified in opposition to termination. Mother admitted to her

drug addiction, but stated she was in recovery. Id. at 88. Mother testified

that she takes prescribed medication and THC; she stated she was “waiting

for the [medical marijuana] license.”      Id.   Mother also described having

successful part-time employment at Lowes and living temporarily with her


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mother and brother, although she was working with the “SHARE” program to

obtain housing.      Id. at 89.     Mother testified to having a bond with Child.

Mother stated the bond was “absolutely not” severed by Child’s placement in

foster care, and “each visit we have I feel as though it gets stronger.” Id. at

90.

       By decree entered June 16, 2022, the trial court terminated Mother’s

parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(2),(5),(8) and (b). Mother

timely appealed.      Mother and the trial court have complied with Pa.R.A.P.

1925.2

       Mother presents the following questions for review:

       I. Whether the trial court erred in concluding that the Appellant
       Mother demonstrated an unwillingness or inability to provide the
       minor child with the essential parental care necessary for her
       physical or mental well-being?

       II. Whether the trial court erred as a matter of law in determining
       that the parental rights of the Appellant mother, C.F., was
       warranted?

       III. Whether the trial court erred as a matter of law in determining
       that the termination of parental rights of the Appellant mother[,]
       C.F., would serve the developmental, physical and emotional
       needs and welfare of the minor child?

Mother’s Brief at 4.

       In reviewing Mother’s issues,


____________________________________________


2 After reviewing Mother’s Rule 1925 concise statement, the trial court
concluded “there are no issues which merit an appeal,” and “incorporate[d]
and adopt[ed] the entirety of the June 16, 2022 Opinion and Decree.”
Statement of Reasoning, 8/4/22.

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      our standard of review requires [us 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.

      As [the Supreme Court] discussed in In re: R.J.T., [9 A.3d 1179,
      1190 (Pa. 2010)], there are clear reasons for applying an abuse
      of discretion standard of review in these cases. [U]nlike 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 S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations

omitted).

      WCCYS has the burden to prove by clear and convincing evidence that

its asserted grounds for termination are valid. In re R.N.J., 985 A.2d 273,

276 (Pa. Super. 2009). “[T]he 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. Under 23 Pa.C.S.A. § 2511, “the court

must engage in a bifurcated process prior to terminating parental rights.” In

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re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). Initially, the focus is on the

conduct of the parent pursuant to § 2511(a). Id.

                               Section 2511(a)

      Mother first challenges the trial court’s finding as to grounds for

termination under Section 2511(a). This Court need only agree “as to any

one subsection in order to affirm the termination of parental rights.” In re

A.S., 11 A.3d 473, 478 (Pa. Super. 2010).        Thus, we address the second

subsection, which provides for termination when a parent’s

      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.

23 Pa.C.S.A. § 2511(a)(2).

      Section 2511(a)(2) “emphasizes the child’s present and future need for

‘essential parental care, control or subsistence necessary for his physical or

mental well-being.’” In re E.A.P., 944 A.2d 79, 82 (Pa. Super. 2008) (citation

omitted). Grounds for termination under subsection (a)(2) are not limited to

affirmative misconduct. Id. “Where the parent does not exercise reasonable

firmness in declining to yield to obstacles, her [parental] rights may be

forfeited.” Id. at 83. The grounds for termination under § 2511(a)(2) may

include acts of refusal as well as incapacity to perform parental duties. In re

S.C., 247 A.3d 1097, 1104 (Pa. Super. 2021). We have long recognized that

a parent is required to make diligent efforts toward the reasonably prompt


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assumption of full parental responsibilities. In re Adoption of M.A.B., 166

A.3d 434, 443 (Pa. Super. 2017).

        Instantly, Mother argues

        the trial court’s determination that WCCYS met their burden is
        reversible error. WCCYS failed to meet their burden in proving
        that termination of rights was warranted under 23 Pa.C.S. Section
        2511(a)(2), (5), (8) and WCCYS did not supply Mother ample time
        and opportunity in which to remedy the situation that necessitated
        the child’s second removal.       Absent evidence of [M]other’s
        inability to remedy that situation, the termination Decree cannot
        stand.

Mother’s Brief at 10.3

        Mother concedes that as a result of her drug addiction, “the first element

of § 2511(a)(2) has been met.” Id. at 14; see also 23 Pa.C.S.A. § 2511(a)(2)

(incapacity of parent has caused child to be without essential care). However,

Mother claims the evidence “suggested Mother’s willingness to remedy as she

was actively engaged in all of the recommended treatment at the time of the

hearing.” Mother’s Brief at 15. She states: “It appears that the agency solely

relied upon Mother’s drug use as the condition that was not remedied[.]” Id.

Mother asserts she “demonstrated a commitment to reunification and a desire

for the same in a timely manner.” Id. Mother emphasizes she “was honest

with the agency” and “was willing to immediately resume custody of her child.”

Id. at 17. We are not persuaded by Mother’s argument.




____________________________________________


3   WCCYS and Child’s counsel have not filed briefs.

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      As stated above, this Court applies a deferential standard of review. In

re Adoption of S.P., supra (appellate courts must defer to trial judges when

factual findings are supported by the record and the trial court’s legal

conclusions are not the result of error). Upon review, we are not persuaded

by Mother’s argument.

      The trial court made the following findings:

      1. Since November 1, 2021, Mother attended 43 of 66 visits
         offered with [Child].

      2. Mother tested positive for methamphetamine/amphetamine on
         November 10, 2021, November 25, 2021, December 7, 2021,
         December 8, 2021 and January 4, 2022. She tested positive
         for alcohol on February 24, 2022.

      3. During an unannounced home visit from WCCYS on March 1,
         2022, Mother’s field screen was positive for methamphetamine
         /amphetamine, and the WCCYS caseworker witnessed Mother
         consuming alcohol during this visit.

      4. Mother tested positive for alcohol on March 15, 2022 and March
         16, 2022.

      5. Mother tested positive for methamphetamine/amphetamine on
         March 31, 2022.

      6. Mother has refused to drug screen since March 31, 2022.

      7. Since the last review date of February 8, 2022, Mother has not
         kept in consistent contact with WCCYS.

Opinion and Decree, 6/16/22, at 2-3.

      The record supports these findings. For example, Ms. Mooney testified

that since November 1, 2021, Mother was “offered 66 visits and has missed

23 of them and 8 of those visits had been missed since the last review period.”


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N.T., 6/7/22, at 12. Ms. Mooney explained the missed visits were “due to

[Mother] not confirming with the agency, three of those were no show visits,

one was due to the fifteen-minute rule, in which [Mother] did not show up in

the time frame given. And one [Mother] had declined.” Id.

      Ms. Mooney further testified Mother “has not maintained her mental

health services.” Id. at 27. Ms. Mooney stated Mother “had not reported any

mental health services to myself until I recently heard that she was attending

the Wright Center for mental health services.” Id. at 27-28. Ms. Mooney

asked Mother to sign releases for information from the Wright Center, but

Mother reported “the Wright Center does not do releases,” although Ms.

Mooney had “never had an issue before with that.” Id. at 28. Mother refused

Ms. Mooney’s request to sign a general release. Id. at 28-29

      Regarding “the major issue” of Mother’s drug use, Ms. Mooney testified

that Mother “obtained drug and alcohol evaluations, but she has not been

consistent with following those recommendations.” Id. at 26, 36. In addition,

Mother was not compliant with drug testing. Ms. Mooney stated “the last time

she screened for the agency was March 31st of 2022 in which she was positive

for methamphetamines.” Id. at 32. During an unannounced visit to Mother’s

home around noon on March 1, 2022, Ms. Mooney rang the buzzer, knocked

on the door, and called Mother’s name without success. Id. at 33-34. Ms.

Mooney contacted Mother’s mother, who “reported [Mother] was home, but

she was sleeping.” Id. at 34. Mother then called Ms. Mooney and “let [Ms.


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Mooney] and the other caseworker into the home.” Id. Ms. Mooney described

Mother’s behavior as “very erratic.” Id. Mother was “pacing a lot … talking

very, very fast,” and drinking alcohol. Id. at 34-35. Mother admitted to using

methamphetamines two hours prior. Id. at 35.

      Ms. Mooney summarized that Mother would

      sporadically screen for the agency and she was frequently positive
      for methamphetamines and or alcohol. [Mother] was positive for
      methamphetamines [in 2021] on November 10th, November 25th,
      December 7th, December 8th and January 4th[, 2022].                On
      February 24 [, 2022,] she tested positive for alcohol and her
                    th

      levels were higher than the lab could register. And then on March
      1st[, 2022,] at the unannounced home visit she did screen and the
      field screen came back positive for methamphetamines and her
      prescribed Subutex, however, she could not produce enough for
      the lab to confirm that, but the field screen did in fact say positive
      for methamphetamines and [Mother] did admit … she had used
      two hours prior.

Id. at 38.

      According to Ms. Mooney, WCCYS recommended Mother for “detox

inpatient” in March 2022.     Id. at 39.   Ms. Mooney testified that although

Mother

      went to detox on March 4th of 2022, … it’s unclear how long [she]
      stayed there as she did text me on March 7th of 2022, and then
      [she ca]me to her morning visit on March 8th and due to no signed
      releases [for] a record of her staying we cannot confirm how long
      she remained in detox.

      ...

      [Mother] at this time had begun frequently refusing to do drug
      screens[,] she would state I’d rather not, it’s not in my best
      interest or stating to the visitation worker that she was not going
      to screen because it would be the same as the last screen. At this
      time [in March 2022,] the screens were also coming back diluted

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      … with state[ments] from the lab to use caution or caution should
      be used when [interpreting] those results. So it would either come
      back diluted or they were coming back positive for alcohol or
      methamphetamine.

Id. at 39-40.   Mother’s most recent drug screen on March 31, 2022, was

positive for methamphetamine; Mother has “not provided any drug screens”

since. Id. at 41.

      With respect to Mother’s communication with the agency, Ms. Mooney

testified:

      [Mother] has not kept in consistent contact with the agency … she
      has begun not responding to text messages or would go days
      without responding, not answering phone calls. Whenever I would
      attempt to talk to [Mother] or attempt to talk to her about the
      case and progress, [Mother] would get irate, end phone calls and
      leave meetings.

Id. at 27.

      The above evidence refutes Mother’s claim of her “compliance and

willingness to remedy the situation.” Mother’s Brief at 13.    The trial court

concluded:

            WCCYS presented credible evidence that Mother has refused
      to cooperate and communicate with WCCYS. Mother has a history
      of drug use throughout [Child’s] dependency, including the time
      [Child] was returned to her care in October 2021 as evidenced by
      the positive drug screen results.      Mother has not been in
      consistent contact with WCCYS and exhibited unwillingness to
      cooperate with WCCYS. Since March 31, 2022, Mother has
      refused to submit to drug screenings. During the last review
      period, Mother has exhibited minimal compliance and progress
      with [Child’s] permanency plan.

                                     ***




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              Mother testified that the reason for [her] refusing drug
        screens after March 31, 2022 is that she was using
        tetrahydrocannabinol (THC). Mother is not in possession of a
        medical marijuana card allowing for the legal use of THC. Mother’s
        use of other illegal substances, e.g., methamphetamine and
        amphetamine, throughout the dependency period demonstrates
        her inability to meet [Child’s] needs and provide for [Child’s]
        welfare. Both Mother and Father have demonstrated instability,
        lack of cohesion and inability to provide for a basic living
        environment [for Child].

Opinion and Decree, 6/16/22, at 6-7, 8.

        Our review indicates the trial court acted within its discretion in finding

that Mother’s repeated and continued incapacity cannot or will not be

remedied. We discern no error in the termination of Mother’s parental rights

under Section 2511(a)(2).

                                    Section 2511(b)

        Mother also argues the trial court erred in finding support for termination

under    Section    2511(b),     which    requires   the   court   to   “give   primary

consideration to the developmental, physical and emotional needs and welfare

of the child.” Mother’s Brief at 21 (quoting 23 Pa.C.S.A. § 2511(b)).4 Mother

asserts the “record is devoid of any evidence demonstrating how [C]hild’s

needs and welfare would be met by granting termination.” Mother’s Brief at

21. We disagree with Mother’s assessment of the record.


____________________________________________


4 Mother’s second issue regarding grounds for termination under 23 Pa.C.S.A.
§ 2511(a)(8) is rendered moot by our disposition affirming grounds for
termination under 23 Pa.C.S.A. § 2511(a)(2). See Mother’s Brief at 18-20;
In re A.S., 11 A.3d at 478 (this Court need only agree “as to any one
subsection in order to affirm the termination of parental rights.”).

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      “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.” In

re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). When the trial court considers

a child’s needs and welfare, the “extent of any [parental] bond analysis ...

necessarily depends on the circumstances of the particular case.”       In re

K.Z.S., 946 A.2d 753, 763 (Pa. 2008).

      [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.

In re A.S., 11 A.3d at 483 (citations omitted).

      The bond between Mother and Child is not disputed.           The expert

psychologist, Dr. Tunilo, testified that she prepared a written report in June

2022 (Exhibit 4), based on her observation of Mother and Child, interview with

Mother, phone interview with foster parents, and information provided by Ms.

Mooney. Id. at 79-80. Like Ms. Mooney, Dr. Tunilo concluded that Mother

and Child have a bond. Id. at 14; 80. However, Dr. Tunilo found that the

bond had been severed.     Id. at 82.   Reading from her report, Dr. Tunilo

testified:

      At this point in the relationship the bond between [Child] and
      [Mother] has already been challenged. [Child] going back with

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      [Mother] will create further distress due to adjustment and
      severed attachment of [Child] and her foster family. Returning to
      [Mother] would not reverse the experience for [Child], but rather
      create a second trauma.

Id. at 82 (reading from Exhibit 4, page 4).

      Ms. Mooney testified that Child has been in placement for 16 months

and has established a bond with her foster parents, who “have identified

themselves as an adoptive resource.” N.T., 6/7/22, at 47. Consistent with

Ms. Mooney’s testimony, the trial court stated:

      [Child] was placed in foster care with [foster parents] multiple
      times throughout her dependency. She returned to the care of
      [foster parents] for the third time on February 18, 2022. There is
      a bond between [Child and foster parents, who are an “adoptive
      resource”].

Id. at 3; see also N.T., 6/7/22, at 18, 47 (Ms. Mooney opining that foster

parents have an established bond with Child, who is doing well and “adjusted

quickly to her return” to foster parents).

      The trial court further opined:

      As to the best interests of [Child] under 23 Pa.C.S.A. § 2511(b),
      WCCYS presented credible evidence that termination of parental
      rights would best serve [Child’s] needs and welfare. Testimony
      indicated [Child] is bonded with Mother.          Testimony also
      confirmed [Child] is bonded with the family that has been
      identified to provide permanency for her. The parental obligation
      is a positive duty that requires affirmative performance. In re
      Z.P., 994 A2d 1108, 1119 (Pa. Super. 2010) (citing In re B.,N.M.,
      856 A.2d 847, 855 (Pa. Super. 2004)). Parental rights are not
      preserved by waiting for a more suitable or convenient
      time to perform one’s parental responsibilities while others
      provide [for the child’s] physical and emotional needs. Id.
      (emphasis in original).

                                        ***

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      [I]t is in the best interest of [Child] that the parental rights be
      terminated. This will allow [Child] the permanency she deserves.

Opinion and Decree, 6/16/22, at 7-8.

      As the record supports the trial court’s reasoning, we discern no error

by the trial court’s termination of Mother’s parental rights under 23 Pa.C.S.A.

§ 2511(b).

      Decree affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2022




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