J-S42009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: C.K., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: E.G., MOTHER                    :
                                               :
                                               :
                                               :
                                               :   No. 208 MDA 2018

              Appeal from the Decree Entered December 29, 2017
    In the Court of Common Pleas of Northumberland County Orphans' Court
                        at No(s): Adoptee # 9 of 2015


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                             FILED FEBRUARY 21, 2019

       E.G. (“Mother”) appeals from the orphans’ court decree entered

December 29, 2017, that granted the petition filed by Northumberland County

Children and Youth Social Service (“CYS”) to involuntarily terminate her

parental rights to her minor son, C.K.1 We affirm.2




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1  In separate decrees, the orphans’ court terminated the parental rights of
J.K., the legal father, and M.C., the biological father. Neither man appealed
the respective decree or participated in this appeal.

2 This panel originally filed a memorandum on September 19, 2018, that
vacated the decree and remanded for further proceedings. On November 13,
2018, we granted panel reconsideration, withdrew that filing, and directed
C.K.’s counsel to file a brief that states C.K.’s legal interest and advocates in
a manner that serves that interest. Counsel complied, indicating that his client
desires the termination of Mother’s rights. We file this memorandum in light
of the argument presented in counsel’s brief.


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* Retired Senior Judge assigned to the Superior Court.
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         CYS became involved with C.K. shortly after his birth in October 2012,

after Mother reacted violently to the hospital staff’s recommendations

regarding her care for the newborn. N.T., 7/6/16, at 6. During the ensuing

tantrum, Mother tossed objects around her hospital room and threw items at

staff.    Id. at 6-7.   Following the discharge of Mother and C.K. from the

hospital, CYS offered Mother a parenting service, a referral for early head

start, and a recommendation for mental health and medication management

services. Id. at 7. Mother initially cooperated with CYS, but she subsequently

became      uncooperative,   going   so    far   as   to   move   temporarily   from

Northumberland County to avoid CYS’s involvement. Id. at 8-9.

         Thereafter, CYS received a referral alleging Mother was drinking, using

marijuana, and abusing prescription medication in her Northumberland

County home.        Id. at 10-11.     When Sarah Austin, a CYS caseworker,

attempted to investigate the accusations, Mother slammed the door in her

face. Id. at 11. While Ms. Austin waited outside the home, the police arrived

in response to a coinciding domestic dispute among Mother, Mother’s brother,

and her brother’s girlfriend. Id. After the police intervened, Ms. Austin went

into the home and attempted to administer a drug test on Mother, who

refused. However, Mother conceded that a drug test would show that she

ingested morphine. Id.

         In addition to Mother’s obstinacy regarding the drug screens, Ms. Austin

observed that Mother’s home was extremely cluttered and had safety hazards


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strewn across the floor. Id. As it was clear that agency-intervention was

necessary, Ms. Austin offered Mother a safety plan if she could identify

someone who would be appropriate to supervise Mother’s contact with C.K.

Id. at 12. However, Mother refused to identify anyone because she did not

want C.K. removed from her custody.              Id. at 12-13.   Accordingly, CYS

obtained an emergency order for temporary custody. Upon learning of that

development, Mother became violent, shattered the living room window, and

threatened to commit suicide. Id. at 13. Following the incident, Sunbury

Community Hospital admitted Mother for twenty days as a psychiatric patient.

Id. at 14.     On December 18, 2013, the juvenile court adjudicated C.K.

dependent. N.T., 11/12/15, Exhibit 1. Since October 2015, C.K. has been in

kinship foster care with his former daycare provider, and he visits his maternal

grandmother twice per month.

       On March 17, 2015, CYS filed a petition for the involuntary termination

of Mother’s parental rights to C.K. pursuant to 23 Pa.C.S. § 2511(a) and (b).

The orphans’ court conducted hearings on November 12, 2015, July 6, and

August 31, 2016, and July 19, 2017.3 Rachel Wiest-Benner, Esquire, served

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3   Plainly, the two–and-one-half-year timeline presented in this case is
unacceptable insofar as it flouts our Supreme Court’s mandate that courts
resolve children’s fast track cases expeditiously. See In re T.S.M., 71 A.3d
251, 256 n.12 (Pa. 2013) (“An eight month delay between the filing of a
termination petition and a hearing thereon, without some explanation is
inconsistent with the best practices for dependent children in need of
permanency.”). While the most recent delays were due to the necessity of a



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as C.K.’s guardian ad litem, and appeared at each hearing. In response to

our High Court’s then-new holding in In re Adoption of L.B.M., 161 A.3d

172, 183 (Pa. 2017), on April 10, 2017, the orphans’ court appointed Brian

Ulmer, Esquire, as legal counsel for C.K.

       During the evidentiary hearings, CYS presented the testimony of two

psychiatrists, Andrei Nemoianu, MD, and William Rakauskas, MD; a

psychologist, Kasey Shienvold, Psy.D.; and several agency case workers who

worked with the family. Mother testified on her own behalf. Collectively, the

mental health experts established that Mother was diagnosed with manic

depression and a psychotic disorder not otherwise specified, with a rule out of



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court-ordered competency evaluation and Mother’s decision to abscond from
the termination proceeding, those interruptions do not explain the remaining
delays that plagued this case throughout.

  Indeed, our review of the certified record reveals that the orphans’ court
granted the parties five separate requests for continuances that delayed the
proceedings by 306 days. The case was delayed an additional ninety days
when the trial court administrator reassigned it to a different orphans’ court
judge, who subsequently recused during January 2016. Approximately three
months later, the current orphans’ court judge continued the case until June
2016. Hence, whether through administrative inefficiencies or the orphans’
court’s liberal grant of continuances, resolution was postponed 396 days.

   Furthermore, in addition to the foregoing interruptions, the certified record
also discloses an unexplained gap of five and one-half months between the
penultimate hearing on August 31, 2016, and the ensuing order dated
February 14, 2017, that scheduled the final hearing for March 26, 2017. Thus,
even ignoring all of the delay attributable to the various continuances,
Mother’s disappearance, and the competency evaluation, the case was
needlessly delayed 168 days without explanation. This scenario is intolerable.


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bipolar one disorder and a rule out of schizoaffective disorder bipolar type.

They also confirmed that, although Mother’s mental illness will require

continuous mental health management, Mother failed to take her prescribed

medication and her mental health treatment was inconsistent. Significantly,

Dr. Shienvold testified about an incident during which Mother informed him

that she has had “conversations with the radio in which the radio would

respond to her.” N.T. 11/12/15, at 146. Upon further inquiry, Mother also

recalled occasional hallucinations where she has conversations with the Holy

Spirit, who talks to her through different inanimate objects. Id.

      As it relates to Mother’s arguments herein, Dr. Shienvold also discussed

the bonding assessment that he performed between C.K. and Mother, and

concluded within a reasonable degree of psychological certainty that C.K. did

not have a healthy attachment with Mother that would be detrimental to the

child to sever.   Id. at 151.    He explained that the hallmarks of a healthy

parent-child attachment are “excitement and affection upon first seeing

somebody . . .    and then a small level of distress upon . . . separation[,]

[including] actual tears depending on the age of the child.” Id. at 148. He

continued that “those relationships are formed early on.” Id. Dr. Shienvold

testified that C.K. did not display those characteristics in his interactions with

Mother. Id. Rather, “the child separated from [Mother] easily . . . without

getting upset and was not distressed at all when [Mother] left [him] with the

foster parents[.]” Id. at 147.


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       In sum, Dr. Shienvold opined that a secure, healthy attachment was

absent due to destabilizers created by Mother’s history of mental illness,

continued     substance      abuse,    flawed    interpersonal   relationships,   and

significantly, the prolonged duration of C.K.s’ placement in foster care at a

tender age. Id. at 150-151. Dr. Shienvold phrased it succinctly, “[C.K.] has

spent a greater level of time developing attachments with the foster family

than with the biological parents.” Id. at 151.

       On December 29, 2017, the orphans’ court entered a decree terminating

Mother’s parental rights to C.K. in accordance with § 2511(a)(2) and (b).4

Mother timely filed a notice of appeal, along with a concise statement of errors

complained of on appeal. She presents two issues for our review:

       I. Whether the trial court erred in determining that
       Northumberland County Children and Youth Services presented
       clear and convincing evidence that grounds for involuntary
       termination exist?

       II. Whether the trial court erred in determining that the best
       interests of the child would be served by terminating parental
       rights?

Mother’s brief at 6.

       First, we must ensure that C.K. was provided the legal representation

to which he was entitled, an issue that we address sua sponte. In re K.J.H.,

180 A.3d 411 (Pa.Super. 2018) (holding that this Court must determine sua


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4 The orphans’ court considered the dependency record in its determination.
However, only limited portions of the dependency record are contained in the
certified record.

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sponte whether 23 Pa.C.S. § 2313(a) was satisfied). Pursuant to 23 Pa.C.S.

§ 2313(a), a child who is the subject of a contested involuntary termination

proceeding has a statutory right to counsel who discerns and advocates for

the child’s legal interests, which our Supreme Court has defined as a child’s

preferred outcome.        In re T.S., 192 A.3d 1080 (Pa. 2018) (citing In re

Adoption of L.B.M., supra). However, an attorney who is acting as guardian

ad litem in the dependency proceedings may also serve as legal counsel where

there is no conflict between child’s best and legal interests. Id. at 1092-93.

       As the orphans’ court did not appoint Attorney Ulmer until April of 2017,

C.K. had the benefit of § 2313(a) counsel for only one of the four proceedings

in the contested termination case, the July 19, 2017 hearing.5         However,

Attorney Wiest-Benner served as the child’s guardian ad litem and

represented his best interest at all four termination hearings. Thus, to the

extent that C.K.’s legal interest coincided with his best interest, C.K. received

the legal representation to which he was entitled pursuant to § 2313(a). If

however, a conflict existed between his legal and best interests, then C.K. was




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5 At the conclusion of the July 19, 2017 hearing, the orphans’ court held the
record open to determine why Mother did not appear. By order dated
September 27, 2017, the orphans’ court closed the record, finding Mother’s
proffered excuse, that she was physically unable to travel to the courthouse
as a result of being “frozen” by a “severe anxiety attack,” was insufficient to
continue the hearing.


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entitled to separate counsel to advocate his legal interests during the three

hearings that preceded Attorney Ulmer’s appointment.

      Instantly, Attorney Ulmer advised this Court that C.K. preferred the

termination of his Mother’s parental rights, presumably after interviewing the

child, and he filed a brief advocating that position. See Appellant’s brief at 1.

Thus, C.K.’s legal interest not only coincides with what has been determined

to be his best interest, it is consistent with the result of the prior termination

of parental rights proceedings. Accordingly, Attorney Wiest-Benner’s conflict-

free representation of C.K. at the first three evidentiary hearings satisfied

§ 2313(a) as it relates to those proceedings. See In re T.S., supra at 1093

(“23 Pa.C.S. § 2313(a), is satisfied where the court has appointed an attorney-

guardian ad litem who represents the child’s best interests during such

proceedings.”). Furthermore, since Attorney Ulmer advocated during the July

2017 hearing in favor of what was subsequently confirmed to be C.K.’s

preferred outcome, we need not remand the matter for further proceedings.

See In re Adoption of T.M.L.M., 184 A.3d 585, 591 (Pa.Super. 2018)

(ordering that the trial court shall conduct a new hearing only if it serves the

“substantive purpose” of providing the child with the opportunity to advance

his legal interest through new counsel).      Thus, we address the merits of

Mother’s appeal.

      We review Mother’s claims mindful of our well-settled standard of

review:


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     The standard of review in termination of parental rights cases
     requires appellate courts 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. 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. We have previously
     emphasized our deference to trial courts that often have first-hand
     observations of the parties spanning multiple hearings.

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

omitted).

     Termination of parental rights is governed by § 2511 of the Adoption

Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis:

     Initially, the focus is on the conduct of the parent. The party
     seeking termination must prove by clear and convincing evidence
     that the parent’s conduct satisfies the statutory grounds for
     termination delineated in Section 2511(a). Only if the court
     determines that the parent’s conduct warrants termination of his
     or her parental rights does the court engage in the second part of
     the analysis pursuant to Section 2511(b): determination of the
     needs and welfare of the child under the standard of best interests
     of the child. One major aspect of the needs and welfare analysis
     concerns the nature and status of 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).

     As noted supra, the orphans’ court terminated Mother’s parental rights

pursuant to § 2511(a)(2) and (b). The relevant sections provide:

     § 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(a)(2) and (b).

     Our Supreme Court set forth our inquiry under § 2511(a)(2) as follows:

            As stated above, § 2511(a)(2) provides statutory grounds
     for termination of parental rights where it is demonstrated by clear
     and convincing evidence that “[t]he 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.” . . .

           This Court has addressed          incapacity   sufficient    for
     termination under § 2511(a)(2):




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

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

      This Court has long recognized that a parent is required to make diligent

efforts   towards   the   reasonably    prompt   assumption   of   full   parental

responsibilities. In re A.L.D. 797 A.2d 326, 337 (Pa.Super. 2002). A parent’s

vow to cooperate, after a long period of uncooperativeness regarding the

necessity or availability of services, may properly be rejected as untimely or

disingenuous. Id. at 340.

      Mother does not raise any specific allegations of orphans’ court error as

it relates the court’s review under § 2511(a)(2) and (b). Indeed, both of the

arguments that she asserts in the statement of questions presented assail the

weight that the orphans’ court attributed to CYS’s evidence generally.

Mother’s contentions are replete with generalized supposition. For example,

Mother opines that her references to her conversations with the Holy Spirit

through her radio may have been “a figure of speech” rather than evidence of

an hallucination.   See Mother’s brief at 10.     Similarly, she challenges Dr.

Nemoianu’s testimony regarding a comparable hallucination emanating from

a disconnected air-conditioner by suggesting “it is entirely plausible” that

Mother actually heard a noise emanate from the appliance and that “[t]here



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is no way for the court to be certain that in was [a hallucination, and] not an

actual event producing noise.” Id. at 11.

      Mother continues this line of reasoning against Dr. Shienvold’s

testimony, but only after she first attempted to impeach his opinions by

highlighting the fact that CYS paid him to conduct the bonding assessment

and that, due to the reality of foster placement at an early age, in the

preponderance of cases that he reviews, he does not discern a significant

healthy attachment between parent and child that would have a negative

impact on the child if severed. Id. at 16. In this vein, Mother supposes that

the psychologist’s conclusion is faulty because “it would appear that C.K. and

[Mother] may very well have a healthy attachment” because they played well

together and the child separated from Mother easily when he returned to his

foster family. Id. at 13-14 (emphases added). Ultimately, Mother opines that

Dr. Shienvold’s methodology was “problematical” because the child did not

demonstrate    fear   or   apprehension      from   Mother      during   the   bonding

assessment. Id. at 15. She revisits the identical argument in relation to the

trial court’s consideration of Dr. Shienvold’s conclusion in its needs and welfare

analysis. Id. at 21-22. For the following reasons, Mother’s suppositions are

unavailing.

      Notwithstanding      her   qualified   contentions   of    error   based   upon

explanations that are “entirely plausible,” “would appear to be the case,” or

“may very well” have happened, Mother is seeking to have this Court reweigh


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the evidence in a light more favorable to her and to substitute our judgment

for that of the orphans’ court. However, it is beyond our purview to disturb

the credibility determinations of the orphans’ court when the testimony relied

upon is supported in the record.    See In re T.S.M., supra at 267.       CYS

presented evidence of Mother’s repeated and continued incapacity due to her

mental health problems and substance abuse that caused C.K. to be without

essential parental care, control or subsistence since 2013.     While Mother

attempted to whitewash her auditory hallucinations and adduce countervailing

evidence that she addressed her mental health concerns, the orphans’ court

rejected those contentions in favor of the three expert opinions proffered by

the learned mental health professionals.     Significantly, the orphans’ court

noted,

      The Court also observed the Natural Mother testify on two
      occasions. Once at a permanency review hearing and once at a
      hearing on a Voluntary Relinquishment. On both occasions, the
      Court judged the Mother to exhibit significant mental health
      concerns and she seemed unable to demonstrate clarity or
      consistency of thought. This lends significant credibility to the
      testimony of the aforementioned experts.

Orphans’ Court Statement in Lieu of Opinion, 3/12/18, unnumbered at 2

(paragraph number omitted).

      Mother’s argument relative to § 2511(b) fares no better. Stated plainly,

the certified record belies Mother’s assertion that her interaction with C.K.

during the bonding assessment could possibly reveal a healthy attachment.

While Mother concentrates on evidence that the two played well together, she


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ignores the decisive fact that C.K. did not view her as a primary attachment,

as evidenced by his easy separation from her following the interactional

portion of the assessment.      N.T., 11/12/15, at 147.     Furthermore, Dr.

Shienvold proffered an explanation for the absence of an attachment, i.e.,

Mother’s behaviors throughout the dependency proceedings destabilized the

underpinnings that the attachment needed to form.             Id. at 150-51.

Ultimately, he indicated that children in C.K.’s position form bonds with their

primary caretakers. Id. at 151. Hence, C.K. formed a primary attachment

with his kinship foster parents with whom he has lived since October 2015.

      In sum, the orphans’ court could have viewed favorably Mother’s

attempts to undercut CYS’s evidence and/or adopt Mother’s position regarding

Dr. Shienvold’s interactional evaluation. However, it did neither. Instead, the

orphans’ court concluded that Mother failed to remedy the substance abuse

and mental health problems that caused the parental incapacity, and found

that terminating Mother’s parental rights served C.K.’s developmental,

physical, and emotional needs and welfare. As the certified record supports

the orphans’ court’s findings, we do not disturb them.

      Accordingly, we conclude that the trial court did not err in finding that

CYS established the statutory grounds to terminate parental rights pursuant

to 2511(a)(2) and (b). See In re T.S.M., supra; In re J.M., 89 A.3d 688,

692 (Pa.Super. 2014) (“Conflicts in the evidence and contradictions in the




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testimony of any witnesses are for the fact finder to resolve.”) (citation

omitted).

     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2019




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