In Int. of: K.M., a Minor Appeal of: S.M. & S.M. (memorandum)
Annotate this Case
Download PDF
J-S35033-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 In the Interest of: K.M., A Minor IN THE SUPERIOR COURT OF PENNSYLVANIA Appeal of: SE.M. and SH.M. PARENTS No. 211 MDA 2014 Appeal from the Order Entered December 19, 2013 in the Court of Common Pleas of Mifflin County BEFORE: DONOHUE, WECHT, and STRASSBURGER*, JJ. MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2014 Se.M the order entered December 19, 2013, which terminated involuntarily their parental rights to K.M. (Child). We affirm. Child was born in February 2012, and is the natural son of Mother and Father. Children and Youth Social Services Agency (CYS) became involved with Child and Parents because Child was born prematurely and safety concerns were raised by those caring for Child at the hospital. Parents voluntarily placed Child with CYS on February 27, 2012. Child was placed with a pre- same family. Caseworker Larry Druckenmiller (Druckenmiller) was assigned to the family and has been their caseworker since March 2012. Between March 2012 and July 2013, there were four Child Permanency Plans developed. * Retired Senior Judge assigned to the Superior Court. J-S35033-14 Objectives included utilizing the services of the Mifflin County Family Intervention Crisis Center (FICS), participating in an assessment for mental health services, managing mental health issues by attending counseling and taking medication, obtaining and maintaining suitable housing, obtaining and maintaining suitable income, and cooperating with CYS and other providers. At all four permanency review hearings, Parents achieved minimal progress in alleviating the circumstances that led to placement and had made moderate progress in completing permanency goals. FICS assigned Parents to reunification family counselor Ashley Etters (Etters). Etters testified that upon investigating the issues with Parents, she determined that there were concerns regarding housing conditions, animals in the home, cleanliness of the home, financial management, and income to meet the medical diagnoses. Parents were offered weekly sessions that included parenting education, visitation, and lifestyle checks. Of the 49 education sessions that were offered to Parents, Parents attended 32 of them. Of the 59 lifestyle s only able to be in the home 29 times. N.T., 12/16/2013, at 75. Of specific concern in Id. They -2- J-S35033-14 relied upon their aunt to help them financially and make decisions. Additionally, Parents were often sleeping when Etters arrived. Parents were offered 202 hours of supervised visitation, and participated in 196 of them. visits, intervene during bathtime, and to meet C Parents never progressed beyond the stage where an agency worker had to care for the Child during the visits. FICS recommended that reunification services be closed in May 2013. Parents had not made any real progress in the year of receiving services. On August 26, 2013, CYS filed a petition to terminate involuntarily 2511(a)(2), (5), (8), and (b). A hearing was held before the Honorable Timothy S. Searer on December 16, 2013. At the close of that hearing, and due to the fact that Judge Searer was leaving the bench at the end of the year, he ruled from filed a notice of appeal.1 1 The certified record does not contain a copy of the notice of appeal or a concise statement of errors complained of on appeal. However, there is a statement in lieu of opinion filed on January 22, 2014, authored by Judge David Barron, which reads: [H]aving reviewed the docket entri Statement of Matters Complained of On Appeal Pursuant to Pa.R.A.P., 1925, and believing such issue now appealed to be fully supported in the 18 page Transcript of Proceedings of: Termination of Parents Rights *Partial Transcription filed December 19, 2013, this Court respectfully requests the -3- J-S35033-14 On appeal, Parents set forth three issues for our review. [1.] Did the trial court err in failing to apply the correct determination that the evidence was sufficient to support involuntary termination of parental rights? [2.] Did the trial court err in ordering involuntary termination of parental rights in that there was not clear, convincing and sufficient evidence of incapacity to parent or of an inability to remedy the conditions that led to placement within a reasonable time? [3.] Did the trial court err in finding that the severing of the parent/child bond would best serve the needs and welfare of the child, when the parents were never given the opportunity to develop a full, healthy parent/child bond? at 3 (suggested answers omitted). We consider these issues mindful of the following. In cases involving the termination of a parent's rights, our standard of review is limited to determining whether the order of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court's decision, the decree mus review of the record in order to determine whether the trial court's decision is supported by competent evidence. In re C.W.U., Jr., 33 A.3d 1, 4 (Pa. Super. 2011) (quotation marks and citations omitted). Superior Court of Pennsylvania refer to said Transcript for all issues claimed by Appellant. Statement in Compliance with Pa.R.A.P. 1925, 1/22/2014. -4- J-S35033-14 Our courts apply a two-part analysis in reviewing an order terminating parental rights. As we explained in In re L.M., 923 A.2d 505 (Pa. Super. 2007), [i]nitially, the focus is on the conduct of the parent. The party seeking termination must prove by clear and convincing evidence that the parent's conduct satisfies the statutory grounds for termination delineated in Section 2511(a). Only if the court determines that the parent's conduct warrants termination of his or her parental rights does the court engage in the second part of the analysis pursuant to Section 2511(b): determination of the needs and welfare of the child under the standard of best interests of the child. One major aspect of the needs and welfare analysis concerns the nature and status of the emotional bond between parent and child, with close attention paid to the effect on the child of permanently severing any such bond. Id. at 511 (emphasis added). Parents first contend that the termination of their parental rights should be -8. Parents direct us to the on-the- satisfied that the facts in this case by a preponderance of the evidence meet Parents argue that the proper standard for which to review the evidence was court was required to find clear and convincing evidence to support its -5- J-S35033-14 decision. However, upon review of the entire opinion, it is clear that the thoroughly summarizing the factual circumstances and testimony in this matter (see - court then stated the applicable law. process. Initially, we focus on the conduct of the parent, the -the Agency must prove and their standard is by clear and grounds. *** As we mentioned, the burden is on the Agency by clear and convincing evidence, clear and convincing testimo clear, direct, weighty, and so convincing to enable this court to come to a clear conviction without hesitation as to the truth of the facts at issue. -11. Thus, even though the paragraphs later, it is clear, from a reading of the entire opinion, that the correct standard to apply and utilized it in reaching its conclusion. -15. -6- J-S35033-14 2511(a)(2), (5), (8), and (b). court may affirm the trial court's decision regarding the termination of parental rights with regard to any one subsection of Section 2511(a) J.F.M., 71 A.3d 989, 992 (Pa. Super. 2013). analysis, we focus on subsection (a)(8). For the purposes of our The statute provides, in relevant part, as follows. (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: *** (8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child. *** (b) Other considerations.--The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition 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. -7- In re J-S35033-14 proper parenting and fulfillment of his or her potential in a permanent, healthy, safe In the Interst of K.Z.S., 946 A.2d 753, 759-760 (Pa. Super. 2008) (quoting In re B.N.M., 856 A.2d 847, 856 (Pa. Super. 2004)). Instantly, there is no dis for over 12 months at the time of the hearing. Once the 12 month period has been established, the court must next determine whether the conditions that led to the child's removal continue to exist, despite the reasonable good faith efforts of [CYS] supplied over a realistic time period. Termination under Section 2511(a)(8) does not require the court the conditions that initially caused placement or the availability or efficacy of [CYS] services. K.Z.S., supra at 759 (quoting In re Adoption of K.J., 936 A.2d 1128, 1133 (Pa. Super. 2007)). Parents argue that the record contradicts the testimony of Licensed Psychologist David Ray, M.Ed. (Ray), upon -12. Specifically, Parents contend that Ray did not take and do the best he could under the circumstances of working a night shift and then having daytime visits with Child. We disagree. When the trial court sits as fact finder, the weight to be assigned the testimony of the witnesses is within its exclusive province, as are credibility -8- J-S35033-14 determinations, [and] the court is free to choose to believe all, part, or none Mackay v. Mackay, 984 A.2d 529, 533 (Pa. conclude that this determination is supported by the record. The orph ability of [Parents] to parent. Their parenting deficits are detrimental to the court shares] the Mother admitted to Ray that she had a tumultuous childhood. In fact, we are serio Id. at narcissistic traits, impulse control issues, and instability in relationships. Id. Id overall functioning, her both her intellectual functioning, her psychiatric difficulties, her personality disorders that she basically lacks the ability to his needs for health an Id. at 19-20. -9- J-S35033-14 Syrup Urine Disease. The disease requires that Father adhere to a very specific diet to control the symptoms. According to Ray, Father is very angry with his parents, CYS, and FICS. Father has a history of major recurrent depression, and Ray diagnosed him with Personality Disorder NOS with a Mixed Personality Disorder. personality disorders, including He has characteristics of many Dependent, Borderline, Narcissistic, Historonic, and Passive Aggressive. Id. at 32. Etters testified about specific safety concerns. She testified that there was an incident where Father placed his knee on Child during a diaper change. Id. at 71. She further testified tha Id. at 78. Etters also observed that Father was having difficulty caring for his medical condition. Id. at 80. Specifically, he was removed from the waiting list for a liver transplant for failing to meet the criteria to stay on the list. Ray observed that although Father is able to maintain employment, because of his personality disorders and cognitive functioning, he would be unable to care adequa Id for his physical needs, his emotional needs, as well as an appropriate environment for his health, welfare, and safety where [Child] could grow and Id. As the record supports the - 10 - J-S35033-14 which l Pa.C.S. § 2511(a)(8). We now turn to the other requirement under section 2511(a)(8), regarding the best interests of Child. Here, Ray testified that Child is doing well in his foster home and engages with his foster parents in a loving and age appropriate way. N.T., 12/16/2013, at 38. Thus, the record supports interests of Child. Accordingly, we conclude that the trial court did not err in finding that CYS met its burden under section 2511(a)(8). See, e.g., In re C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc further opportunity to cultivate an environment where she can care for C.L.G., we would be subjecting a child, who has been waiting for more than two years for permanency, to a state of proverbial limbo in anticipation of a We next consider whether the trial court gave adequate consideration comfort, security, and stability are involved when inquiring about the needs K.Z.S., supra at 760 (quoting In re C.P., 901 A.2d 516, 520 (Pa. Super. 2006)). - 11 - J-S35033-14 The court should also consider the importance of continuity of natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. Most importantly, adequate consideration must be given to the needs and welfare of the child. Id. (internal citations omitted). ere never given the opportunity (time) to develop a full and healthy parent/child bond with [Child] the court should look at the realistic potential for the development of a healthy parent/child bond, before making the decision to sever all parent/child bonds -14. Child worth preserving, but they would like more time to develop one. However, based on the aforementioned principles of law, time has run out. Th whether there was currently a bond worth preserving. With respect to Mother, Ray testified Ray concluded that Father Id. attachment to the foster parents. Very affectionate with them. Very close - 12 - J-S35033-14 both Id. Thus, there was ample evidence that Child had no bond with Parents worth preserving and did have a strong bond with his foster family, who were willing to adopt him. See, e.g., L.M., supra vidence that severing the ties between Mother and L.M. would have a negative effect on the child. Rather, unrefuted testimony indicated that L.M. was strongly bonded to her foster Therefore, b r or abuse of discretion in Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/30/2014 - 13 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
