In the Int. of: A.M.G. Appeal of: Y.T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.M.G., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: Y.T.

No. 239 MDA 2014

Appeal from the Decree December 30, 2013

In the Court of Common Pleas of Berks County

Orphans' Court at No(s): 83150

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2014

Y.T. (Mother) appeals from the final decree involuntarily terminating

her parental rights to her daughter, A.M.G. (born 3/2006). Counsel has also

filed an application to withdraw from representing Mother and has filed an

l. After careful review, we deny

On May 17, 2012, Berks County Children and Youth Services (BCCYS)

mental health was significantly deteriorating and that A.M.G. had been

truant from school for one month. By agreement of all parties, A.M.G. was

placed in kinship care. On June 22, 2012, A.M.G. was adjudicated

dependent and legal custody was awarded to BCCYS. In order to have

A.M.G. returned to her care, Mother was ordered to undergo parenting

education, an alcohol and drug evaluation, random urinalysis, a mental

health evaluation, casework sessions, a domestic violence evaluation, an

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anger management evaluation, and establish and maintain stable and

appropriate housing and income.

A.M.G. were suspended via court order until she cooperated with

recommended mental health therapy and documented her medication.

Permanency review hearings in April and September of 2013 revealed that

the

1

rights based upon sections 2511(a)(1), (a)(2),2 (a)(5), (a)(8) of the

Adoption Act,3 listing the following reasons for seeking termination: Mother

1

Mother was incarcerated for six months from December 2012 to June

various homeless shelters from July 2013 to October 2013.

2

Pursuant to 23 Pa.C.S. § 2511(a)(2):

(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.

3

23 Pa.C.S. §§2101-2938.

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has failed to remediate her substance abuse; concerns remain regarding

violence; and Mother has a history of criminal activity4 and repeated

incarceration. BCCY

termination hearing; although Mother testified at the hearing, BCCYS relied

solely upon 62 exhibits to support its petition to terminate. See N.T.

Termination Hearing, 12/20/2013, at 4. At the time of the termination

hearing, Mother was homeless and living in a drop-in shelter; A.M.G. was

thriving in kinship care with paternal aunt and paternal grandmother. Id. at

8. Mother ack

to seek treatment for her mental health issues due to her inability to afford

health insurance. Id. at 6. On December 31, 2013, the court entered a

appeal followed.

On appeal, Mother raises the following issues:

(1)

rights because Petitioners/Appellees did not establish by

rights should be terminated?

4

Mother was sentenced to time-

two-year probationary tail after pleading guilty to two counts of terroristic

threats after threatening a neighbor with a kitchen knife and telling her she

Guilty Plea, 5/28/2013.

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(2)

rights because the evidence presented by the

Petitioners/Appellees was insufficient to support the lower

Counsel appointed to represent an indigent parent on a first appeal

from a decree involuntarily terminating his or her parental rights, may, after

a conscientious and thorough review of the record, petition the court for

leave to withdraw representation if he or she can find no issues of arguable

merit on which to base the appeal. In re: Adoption of V.G., 751 A.2d

1174, 1176 n.4 (Pa. Super. 2000), citing In Re: Adoption of V.E., 611

A.2d 1267 (Pa. Super. 1992). Given the less stringent standard of proof

required and the quasi-adversarial nature of a termination proceeding in

which a parent is not guaranteed the same procedural and evidentiary rights

as a criminal defendant, appointed counsel seeking to withdraw

representation must submit an advocate's brief. In Re: Adoption of V.E.,

611 A.2d at 1275.

Here, counsel has complied with the dictates of V.E. First, counsel has

Counsel has also submitted an application/petition alleging that she has

made a conscientious examination of the record, which included reviewing

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determined that an appeal would be frivolous.5 Counsel has advised Mother

of her appellate rights, her right to retain new counsel or proceed pro se,

arguments she believes could be made on her behalf to support an appeal.

See

Having determined that counsel has satisfied the above requirements,

we may now conduct our own review of the proceedings and render an

independent judgment as to whether the appeal is devoid of any issues of

arguable merit warranting her withdrawal.

Ter

In a proceeding to terminate parental rights involuntarily, the

burden of proof is on the party seeking termination to establish

by clear and convincing evidence the existence of grounds for

doing so. 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." It is well established that a court must examine the

individual circumstances of each and every case and consider all

explanations offered by the parent to determine if the evidence

in light of the totality of the circumstances clearly warrants

termination.

In re adoption of S.M., 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation

omitted); see also In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa.

1994) (clear and convincing evidence is defined as "testimony that is so

5

standard, as annunciated in V.E.

V.E., 611 A.2d at 1275.

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'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.'").

rights for an abuse of discretion or error of law. In re A.R., 837 A.2d 560,

563 (Pa. Super. 2003). Our scope of review is limited to determining

evidence. Id.

Termination under 23 Pa.C.S. § 2511(a)

Mother claims that BCCYS did not establish, by clear and convincing

evidence, that termination of her parental rights was proper under section

2511(a). We disagree.

A.M.G. has been in placement. Doctor Larry A. Rotenberg, a licensed

psychologist, submitted a psychiatric evaluation of Mother noting that she is

Rotenberg diagnosed Mother as having bipolar disorder, with psychotic

features, requiring psychiatric stabilization at a mental hospital. A BCCYS

caseworker testified that at her visit with A.M.G. on November 6, 2012,

Mother indicated she had dressed as the Biblical David for Halloween and

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her last one to date, was inappropriate, bizarre and made A.M.G. feel

uncomfortable. At her last visit with A.M.G., Mother ignored redirection from

the visitation supervisor, told A.M.G. that she missed bathing and sleeping

with her, and asked A.M.G. whether she still used a bottle and needed

diapers.

objectives, which included participation in, and completion of, mental health

treatment and taking her psychotropic medication. Mother is unable to

understand the importance of attending to her mental health needs and the

urgency of continuing to take her medications. Significantly, she does not

comprehend the negative effect that her present mental health state has

had on A.M.G. Mother is emotionally unstable, continues to fail to

health problems, A.M.G. is without essential parental care which is necessary

for her physical and mental well-being. Thus, termination was proper under

23 Pa.C.S. § 2511(a)(2).

Termination under 23 Pa.C.S. § 2511(b)

Instantly, the trial court makes no mention of whether a bond exits

between Mother and A.M.G. and what effect termination of any bond would

have on the developmental, emotional and physical needs and welfare of her

daughter. These are required elements of a section 2511(b) analysis. 6 As

6

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must engage in a bifurcated process prior to

In re L.M., 923 A.2d 505, 511 (Pa. Super.

2007) (emphasis added). One major aspect of the needs and welfare

analysis under section 2511(b) concerns the nature and status of the

emotional bond between parent and child, with close attention paid to the

best

care, A.M.G. had not been taken to her medical appointments

and was likely behind on her immunizations. At one point, the

child had a urinary tract infection and Mother did not fill the

prescription

hygiene was poor. Once in placement, A.M.G. had frequent

nightmares and tantrums. Her behavior was very difficult after

she returned from visits with Mother. Some of her behaviors

were inappropriate. A.M.G was given outpatient counseling and

transferred to Kidspeace Partial (School) Day Program to give

her more structure and support. She was diagnosed with, (inter

alia), Post Traumatic Stress Disorder.

A.M.G. has enjoyed a peaceful and calm environment in the

home of her paternal aunt and paternal grandmother. Since

making the move, she began sleeping through the night and her

nightmares ended. The child is doing very well in placement.

Her guardian testified that she has made a really good

adjustment living with her aunt. In fact, A.M.G. is thriving in her

child. She will have proper parenting and fulfillment of her

potential in a permanent, healthy, safe environment. All of her

needs are met by her resource mother.

Trial Court Opinion, 2/25/2014, at 9-10. See In re Adoption of A.C.H.,

803 A.2d 224, 229-230 (Pa. Super. 2002) (order terminating parental rights

reversed on appeal where even though trial court referenced needs and

welfare in arriving at decision to terminate parental rights, it did so in

conclusory fashion and without sufficient evidence in record to address

emotional bonds child and parent share under section 2511(b)).

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effect on the child of permanently severing any such bond. In the Interest

of I.E.P., 87 A.3d 340, 344 (Pa. Super. 2014) (emphasis added).

In In re C.S., 761 A.2d 1197 (Pa. Super. 2000), our Court stressed

the importa -child bond under

section 2511(b):

Before granting a petition to terminate parental rights, it is

imperative that a trial court carefully consider the

intangible dimension of the needs and welfare of a child--

the love, comfort, security, and closeness--entailed in a

parent-child relationship, as well as the tangible

dimension. In re Matsock, 611 A.2d 737, 747 (Pa.

Super. 1992). Continuity of relationships is also important

to a child, for whom severance of close parental ties is

usually extremely painful. In re William L., 383 A.2d

1228, 1241 (Pa. 1978). The trial court, in considering

what situation would best serve the children's needs and

welfare, must examine the status of the natural parental

bond to consider whether terminating the natural parents'

rights would destroy something in existence that is

necessary and beneficial. In re P.A.B., 570 A.2d 522,

525-26 (Pa. Super. 1990)[.]

Id. at 1202.

ecord

utter failure to discuss or analyze the existence of a parent-child bond under

section 2511(b), we have had to comb through 385 pages of exhibits to

discern whether a bond exists. The following portions in the record indicate

that a bond does exist between Mother and A.M.G.:

A July 6, 2012 supervised visit assessment indicates that A.M.G.

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and told her that s

the end of the session.

prepared by BCCYS supervisor, Marsha Ganter, lists as a family

Letter from Awilda Carrera at Alternative Consultant Enterprises, Inc.,

11/2/2012, at 1.

In its letter brief on a

s best

the needs and welfare of the Child under § 2511(b) by providing her with

the permanence necessary for the fulfillment of her potential in a loving,

healthy and safe environme Id.

In the Interest of I.E.P., supra. Merely alleging in its appellate letter

sufficient -- it must be borne out in the record and the trial court must

conclude that, based on the evidence, severing the bond between Mother

and A.G.M. would not be detrimental to Child.

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Although we are aware that a court is not required to order a formal

bonding evaluation and that social workers and caseworkers can provide

suitable evaluations regarding the parent-child bond just as well as experts

in the field, In the Interest of I.E.P., 87 A.2d 340 (Pa. Super. 2014),

rights will have on the child, there is not competent evidence to allow the

In re

Involuntary Termination of C.W.S.M., 839 A.2d 410, 415 (Pa. Super.

2003).7 See In re E. M., 620 A.2d 481, 485 (Pa. 1993) (stating that "[t]o

render a decision that termination serves the needs and welfare of the child

without consideration of emotional bonds . . . is not proper"); see also in re

T.F., 847 A.2d 738 (Pa. Super. 2004) (where trial court ordered involuntary

(5) and (8), and court lacked any analysis or discussion under section

2511(b) of developmental, physical, and emotional needs and welfare of

children and bonding between children and Mother, order granting

termination was reversed).

In In re T.S.M., 71 A.3d 251, 269 (Pa. 2013) our Supreme Court

recently acknow

7

Although in rare cases we have found that where there is no evidence of a

bond between a parent and child, it is reasonable to infer that no bond

exists, In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008), here even

BCCYS acknowledges in its letter brief on appeal that there is a bond

between Mother and A.M.G.

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inevitably results from breaking a child's bond to a biological parent, even if

that bond is unhealthy, and we must weigh that injury against the damage

Supreme Court in T.S.M.

between Mother and the children, the trial court failed to recognize the

substantial, possibly permanent, damage done to these children by the

id. at 270-71,

developmental, emotional and physical needs and welfare of A.M.G. is not

clear cut on this record. Without any trial court analysis regarding how

terminating any parent-child bond would affect the emotional, physical and

developmental needs and welfare of A.M.G., we are constrained to reverse

and remand. In re: C.W.S.M., supra (where consideration of bonds that

may exist between Father and children and effect termination will have on

lack of evidence in record regarding effect termination will have on children,

case).

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Motion to withdraw denied.8 Decree reversed; case remanded for

proceedings consistent with this decision. Jurisdiction relinquished. 9

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2014

8

9

his Rule 1925(a) termination opinions, an analysis of the existence of a bond

between a parent and child and any effect that breaking such bond would

have on the child. The failure to include such an analysis is surprising where

section 2511(b) has been in effect since 1981 and has not been amended

since 1995. See Act 1980-163 (H.B. 213), P.L. 934, § 1, approved Oct. 15,

1980, eff. Jan. 1, 1981; Act 1995-76 (H.B. 215), P.L. 685, § 3, approved

Dec. 20, 1995.

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