J-S44038-15

2015 PA Super 200

IN RE: ADOPTION OF G.L.L., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: ALLEGHENY COUNTY OFFICE OF CHILDREN, YOUTH AND FAMILIES No. 359 WDA 2015

Appeal from the Order February 9, 2015 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): TPR 077 of 2014

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J. OPINION BY LAZARUS, J.: FILED SEPTEMBER 21, 2015 Allegheny County Office of Children, Youth and Fam ilies (CYF) appeals from the trial court’s order denying CYF’s petition to involuntarily terminate the parental rights of S.L.L. (Mother) to her minor child, G.L.L. (Child) (born 6/2008). 1 The trial court concluded that termination would not serve the needs and welfare of G.L.L. pursuant to 23 Pa.C.S. § 2511(b). 2 After careful review, we affirm.

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1 G.L.L., through his Guardian ad litem (GAL), took the position at trial that Mother’s rights should be terminated and filed its own appeal. However, the GAL has since withdrawn that appeal, finding th at the trial court’s decision to deny CYF’s petition because termination would not serve the needs and welfare of G.L.L. is supported by the rec ord and was not an abuse of discretion. See GAL’s Brief, at 9.

2 The trial court’s order denies CYF’s petition sole ly on the grounds that “[t]he Court finds that terminating the rights of t he parent does not serve the needs and welfare of the child.[]” Trial Court Order, 2/9/2015, at 1. (Footnote Continued Next Page)J-S44038-15

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CYF first became involved with G.L.L. in June 2011 when Mother was in a psychiatric hospital and could not care for hi m. In August 2011, CYF opened a case as a result of deplorable conditions in Mother’s home, including animal feces and bugs throughout the home . CYF provided Mother with family group decision-making services, 3 which eventually transitioned to in-home services, from September 2011 through Decem ber 2011. Ultimately, G.L.L. was removed from his home on Feb ruary 15, 2012, but was returned to Mother’s care on February 28, 2102; Mother was provided crisis in-home services. G.L.L. was adjudicated de pendent one month later, on March 27, 2012. G.L.L. was removed from the fam ily home for a second time, on April 16, 2012, after CYF received a repor t of physical abuse perpetrated by Mother. He has not returned to Moth er’s care.

(Footnote Continued) _______________________ However, the court makes no determination with rega rd to findings on section 2511(a). We remind the trial court that in termination matters, it must engage in a bifurcated analysis, see In re D. W. , 856 A.2d 1231, 1234 (Pa. Super. 2004), that initially focuses on t he conduct of the parent and whether the party seeking termination has prove n by clear and convincing evidence that the parent's conduct satis fies the statutory grounds for termination under section 2511(a). Only after determining that the parent's conduct warrants termination of his or her parental rights under section 2511(a) must the court engage in the second part of the analysis, determination of the needs and welfare of the child , under section 2511(b). C.M.S. , 884 A.2d 1284, 1286-87 (Pa. Super. 2005).

3 Family Group Decision Making services describes a variety of practices aimed at working with and engaging children, youth, and families in safety and service planning and decisions. These services are often provided to families where safety concerns exist and prior to c hildren being removed from their homes.J-S44038-15

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CYF created a family service plan (FSP) for Mother with the following goals: stabilizing her mental health; getting G.L. L. needed preventative health and dental care; obtaining appropriate housi ng; and maintaining contact and cooperation with family, friends and re latives as support resources for G.L.L. To assist her in completing t hese goals, CYF provided Mother with parenting classes, referrals for drug a nd alcohol assessments and providers, and transportation assistance. On April 29, 2014, CYF filed the instant petition for involuntary termination of Mother’s parental rights to G.L.L., citing 23 Pa.C.S. §§ 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b) as the grounds for termination. The trial court held a termination hearing on Janua ry 23, 2015, and denied CYF’s petition, ultimately concluding that CYF did not prove by clear and convincing evidence that terminating Mother’s paren tal rights would serve the needs and welfare of G.L.L. under section 2511( b). CYF filed this appeal, raising the following issue for our conside ration: Did the Orphan’s Court err as a matter of law and/o r abuse its discretion in failing to conclude that CYF met its burden of proving that termination of Birth Mother’s parental rights would serve the needs and welfare of the Child pursuant t o 23 Pa.C.S. § 2511(b) by clear and convincing evidence? We note that: In a proceeding to terminate parental rights involu ntarily, the burden of proof is on the party seeking termination to establish by clear and convincing evidence the existence of g rounds for doing so. The standard of clear and convincing evid ence is defined as testimony that is so "clear, direct, wei ghty and convincing as to enable the trier of fact to come t o a clear conviction, without hesitance, of the truth of the precise facts inJ-S44038-15

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issue." It is well established that a court must ex amine 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 clear ly warrants termination. In re Adoption of S.M. , 816 A.2d 1117, 1122 (Pa. Super. 2003) (citation omitted). We review a trial court’s decision to inv oluntarily terminate parental 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 revi ew is limited to determining whether the trial court’s order is supp orted by competent evidence. Id. CYF asserts that it proved, by clear and convincin g evidence, that termination of Mother’s parental rights would serve the needs and welfare of G.L.L. under section 2511(b). To support its posit ion, CYF argues that: Mother has made minimal progress with regard to mai ntaining sobriety and obtaining stable housing since G.L.L. has been out of her care; termination of G.L.L.’s relationship with foster parents would be detrimental to G.L.L.; and that an open adoption would meet the needs and welfare of G.L.L. Section 2511(b) of the Adoption Act 4 states: (b) Other considerations. --The court in terminati ng the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welf are of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such a s inadequate

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4 See 23 Pa.C.S. §§ 2101-2938.J-S44038-15

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housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respec t to any petition filed pursuant to subsection (a)(1), (6) o r (8), the court shall not consider any efforts by the parent to rem edy the conditions described therein which are first initia ted subsequent to the giving of notice of the filing of the petiti on. 23 Pa.C.S. § 2511(b) (emphasis added). Moreover, i n In re K.J. , 936 A.2d 1128 (Pa. Super. 2007), our Court found that before granting a petition to terminate under section 2511(b), a court must: [C]arefully consider the intangible dimension of th e needs and welfare of a child--the love, comfort, security, an d closeness-- entailed in a parent-child relationship, as well as the tangible dimension. Continuity of relationships is also impo rtant to a child, for whom severance of close parental ties is usually extremely painful. 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' r ights would destroy something in existence that is necess ary and beneficial. Id. at 1134 (emphasis added). CYF’s claim that Mother’s minimal progress with re gard to maintaining sobriety and obtaining stable housing since G.L.L. has been out of her care justifies termination under section 2511(b) is misp laced. A determination of whether the parent's conduct justifies termination of parental rights under section 2511(a) is distinct from and not relevant t o a needs and welfare analysis under section 2511(b). In re Adoption of R.J.S. , 901 A.2d 502, 508 (Pa. Super. 2006). However, the record establi shes that Mother obtained her own housing prior to the termination p roceedings and, although Mother’s mental health and drug use has caused inst ability in her life, sheJ-S44038-15

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has managed to consistently visit with G.L.L. and h as not let these issues affect her interactions with him. N.T. Termination Hearing, 1/23/15, at 31- 32. Moreover, Dr. Neil Rosenblum concluded in his report “that Mother has made significant strides and improvement in her ove rall adjustment . . . [and] no longer presents as being severely depresse d[, . . .] has reinitiated mental health treatment . . . and has become much m ore functional and productive in her behavior and personal adjustment. ” Psychological Evaluation by Neil D. Rosenblum, Ph.D., 2/5/14, at 13. Next, CYF claims that termination of Mother’s pare ntal rights is supported by the fact that ending G.L.L.’s relation ship with foster parents would be detrimental to him. While the security th at G.L.L. may have with his foster parents is a factor to be considered under section 2511(b), see In
re N.A.M. , 33 A.3d 95, 103 (Pa. Super. 2011), one cannot dis count the fact that a major aspect of a section 2511(b) analysis i s the status of the parentchild bond and the effect that severance of that bo nd would have on the child. Here, all parties acknowledge that there is a demonstrated bond between Mother and G.L.L. See N.T. Termination Hearing, 1/23/15, at 86 (CYF attorney states “[c]learly there’s a bond betw een [Mother] and [G.L.L.]”); id. at 29 (expert psychologist testifies that Mother a nd G.L.L.’s relationship is “meaningful” and she has been a “co nstant” for him). Dr. Rosenblum, psychologist who conducted several evalu ations of G.L.L. and Mother, testified that not only is there a meaningf ul relationship between Mother and G.L.L., but that G.L.L. “certainly would be harmed” were thatJ-S44038-15

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relationship terminated. Id. at 29. Specifically, Dr. Rosenblum testified that G.L.L. would feel a loss if Mother’s rights were te rminated due to the number of years that he lived with her before he was remov ed from the home and the fact that Mother visits with him twice a week. Id. at 30. On February 5, 2014, Dr. Rosenblum conducted indiv idual evaluations of G.L.L. and Mother, as well as an interactional e valuation of G.L.L. with Mother. Dr. Rosenblum’s report indicates that G.L. L. stated Mother (as opposed to foster mother) is his favorite mom becau se he used to live with her, that he misses Mother, and that he likes seein g her. Psychological Evaluation by Neil D. Rosenblum, Ph.D., 2/5/14, at 4. With regard to his evaluation of Mother, Dr. Rosenblum found that Moth er clearly loves her son, visits him on a fairly regular and consistent basis, had made significant changes in her life over the past few months, which included moving into a new home and obtaining a job, and meets with a ther apist on a weekly basis to stay calm and positive and effectively deal with her depression. Id. at 5. Dr. Rosenblum made the following observations foll owing his interactional evaluation with G.L.L. and Mother: G .L.L. was pleased to see Mother; Mother was very appropriate in her interact ions with G.L.L.; Mother was patient and attentive to G.L.L.; Mother has a n ice rapport with G.L.L.; Mother was nurturing with G.L.L.; and G.L.L. wanted to stay longer with Mother at the end of the session. Id. at 7. Dr. Rosenblum opined that termination of Mother’s rights would have a negative impact on G.L.L. due to his close attachme nt to her. While he didJ-S44038-15

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not recommend reunification, he did recommend conti nuing G.L.L.’s relationship with Mother through open adoption unde r 23 Pa.C.S.A. § 2731. 5 However, before the parties could effectuate an ope n adoption, Mother’s parental rights would have to be terminated. Insta ntly, there is no guarantee that Mother and G.L.L. would continue to have contact posttermination. Open adoption is a purely voluntary a rrangement requiring the consent of the adoptive parents in order to enter i nto an agreement with birth relatives for ongoing communication or contac t that is in the best interest of the child. See In re K.H.B. , 107 A.3d 175, 184 (Pa. Super. 2014) (open adoption statute by its plain language makes agreement optional, and such agreement is plainly not require d by section 2511); see

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5 The purpose of section 2731 is: [T]o provide an option for adoptive parents and bir th relatives to enter into a voluntary agreement for ongoing commun ication or contact that: (1) is in the best interest of the child; (2) recognizes the parties' interests and desires f or ongoing communication or contact; (3) is appropriate given the role of the parties in the child's life; and (4) is subject to approval by the courts. 23 Pa.C.S.A. § 2731. An agreement under Act 101 "s hall be filed with the court that finalizes the adoption of the child[,]" 23 Pa.C.S.A. § 2735(a), [and] “[t]he agreement shall not be legally enforce able unless approved by the court, which the court shall approve when the s tatutory conditions are satisfied.” Id. at §§ 2735(b), (c).J-S44038-15

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also N.T. Termination Hearing, 1/23/15, at 93 (guardian ad litem admits that “you can’t hold it against the foster parents if they decide that they do not want to have contact . . . with [M]other” throu gh an open adoption). Therefore, we do not find that the uncertainty of a n open adoption is appropriate or relevant in a termination analysis u nder section 2511(b). We note that as an appellate court we cannot re-we igh the evidence or the credibility assessments made by the trial court . Rather, [e]ven where the facts could support an opposite re sult, as is often the case in . . . termination cases, an appe llate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instea d it must defer to the trial judges so long as the factual fi ndings are supported by the record and the trial court's legal conclusions are not the result of an error of law or an abuse o f discretion. In the Interest of S.P. , 47 A.3d 817, 826-27 (Pa. 2012). Here, the trial court appropriately gave primary c onsideration to the “developmental, physical and emotional needs and we lfare of [G.L.L.],” 23 Pa.C.S. § 2511(b), and concluded that “the testimon y was not so clear and convincing as to persuade the Court to come to a cl ear conviction in the matter.” Trial Court Opinion, 4/8/15, at 9. The c ourt found that the negative impact of keeping G.L.L. in foster care wa s outweighed by the permanent damage he would sustain were Mother’s par ental rights terminated. Compare In re K.Z.S. , 946 A.2d 753, 763 (Pa. Super. 2008) (termination under section 2511(b) upheld on appeal where parent-child bond could be severed without detrimental effects o n child). See In re C.S. , 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc) ( court mustJ-S44038-15

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consider whether natural parental bond exists betwe en child and parent, and whether termination would destroy existing, necessa ry and beneficial relationship). Accordingly, we find the trial court did not abuse its discretion in concluding that termination under section 2511(b) w as not in the best interests of G.L.L., In re A.R. , supra , where “the utmost attention should be paid to discerning the effect on the child of pe rmanently severing the parental bond.” In re K.M. , 53 A.3d 781, 791 (Pa. Super. 2012). We, therefore, affirm the trial court’s order denying C YF’s petition to terminate Mother’s parental rights. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/2015