In the Int. of: P.S.-Q.S.-L., Appeal of: D.L. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: P.S.-Q.S.-L., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
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APPEAL OF: D.L., MOTHER :
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: No. 940 WDA 2021
Appeal from the Decree Entered June 4, 2021
In the Court of Common Pleas of Beaver County Orphans' Court at
No(s): 3003-2021,
CP-04-DP-0000014-2020
IN THE INTEREST OF M.D.V.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.L., MOTHER :
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: No. 941 WDA 2021
Appeal from the Decree Entered June 4, 2021
In the Court of Common Pleas of Beaver County Orphans' Court at
No(s): 3004-2021,
CP-04-DP-0000013-2020
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: JANUARY 25, 2022
D.L. (“Mother”) appeals from the Decrees entered June 4, 2021, in the
Court of Common Pleas of Beaver County, which involuntarily terminated her
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* Retired Senior Judge assigned to the Superior Court.
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parental rights to her sons, M.D.V.M., born in June 2016, and P.S.-Q.S.-L.,
born in February 2020 (collectively, “Children”).1 Mother assails the evidence
underlying the Orphans’ Court’s decision, but we conclude the record supports
the court’s findings and affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
We take the following factual and procedural history from the Orphans’
Court’s opinion and our review of the record. Beaver County Children and
Youth Services (“CYS”) has a long history of involvement with Mother dating
back to 2011. Mother had eight children at the time of these proceedings and
was pregnant with her ninth. Significantly, the record indicates that at least
the last four of Mother’s children were born with drugs or alcohol in their
system, including M.D.V.M., his two younger siblings who are not involved in
this appeal, and P.S.-Q.S.-L. CYS began providing general protective services
for the family after M.D.V.M.’s birth in June 2016, but Mother continued to
abuse substances.
CYS obtained custody of Children after P.S.-Q.S.-L.’s birth in February
2020. P.S.-Q.S.-L. was born with cocaine and marijuana in his system, and
Mother refused to attend inpatient substance abuse treatment. Mother also
suffered from mental health concerns and lacked stable housing. The Juvenile
Court issued verbal emergency protective custody orders on March 16, 2020,
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1 The Orphans’ Court also entered a Decree terminating the parental rights of
M.D.V.M.’s father, J.B., involuntarily. J.B. did not appeal. P.S.-Q.S.-L.’s father
is deceased.
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which removed Children from Mother’s care, and written orders dated March
17, 2020, which confirmed the verbal orders. A shelter care hearing occurred
on March 17, 2020, and the court ordered that continued placement outside
of Mother’s care was necessary. The matter proceeded to an adjudication and
disposition hearing on April 13, 2020, and the court entered orders dated April
15, 2020, adjudicating Children dependent. The court directed once again
that Children would remain placed outside of Mother’s care and designated
their permanent placement goals as return to parent or guardian.2 At the time
of the hearing, M.D.V.M. was three-and-a-half years old, and P.S.-Q.S.-L. was
two months old. Although Children initially resided in separate foster homes,
M.D.V.M. went to live in the same kinship foster home as P.S.-Q.S.-L. in June
2020, and they have remained there together ever since.
After Children’s adjudications of dependency, Mother made little effort
to reunify with them. Her reunification goals included obtaining substance
abuse and mental health treatment and maintaining stable housing. Mother
attended inpatient substance abuse treatment beginning on March 20, 2020,
but she left against medical advice on April 4, 2020. Her only substance abuse
treatment after that was a twelve-hour relapse prevention program in June
2020. Mother repeatedly failed to comply with drug screens, failed to attend
mental health treatment consistently, and moved from place to place. She
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2Mother appealed the orders, and this Court affirmed on October 15, 2020.
See In the Interest of P.L., 241 A.3d 428 (Pa. Super. 2020) (unpublished
memorandum).
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was also incarcerated briefly in July 2020. Critically, Mother failed to attend
available supervised visitation and had minimal contact with Children. Mother
visited Children informally through their foster mother in June 2020, and then
visited them only once during the next seven months, which was another
informal visit in December 2020. Mother also had phone contact with Children
approximately once per month.
The Juvenile Court conducted a permanency review hearing on January
5, 2021. Because of Mother’s noncompliance, CYS requested that the court
change Children’s goals from return to parent or guardian to adoption. The
court entered orders changing Children’s goals dated January 6, 2020.3 Only
after the court entered its goal change orders did Mother’s compliance begin
to improve, in that she obtained substance abuse treatment and reached out
to Children’s foster mother for more consistent visits with Children.
On January 19, 2021, CYS filed Petitions to terminate Mother’s parental
rights to Children involuntarily. The Orphans’ Court4 conducted a hearing on
the Petitions on March 23, 2021, at which time M.D.V.M. was four-and-a-half
years old and P.S.-Q.S.-L. was one year old. At the hearing, CYS presented
testimony from Mother, as on cross-examination; Children’s foster mother,
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3 Mother appealed a second time, and this Court affirmed the goal change
orders on July 16, 2021. See In the Interest of P.S.-Q.S.-L., 260 A.3d 148(Pa. Super. 2021) (unpublished memorandum).
4The Honorable Mitchell Shahen served as the Juvenile Court and Orphans’
Court in this matter.
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Z.S.; and CYS caseworker, Susan Willy.5 On June 4, 2021, the court entered
Decrees terminating Mother’s parental rights to Children involuntarily, as well
as Findings of Fact, citing 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b).
Mother failed to appeal within the requisite thirty days. See Pa.R.A.P.
903(a). On July 7, 2021, Mother filed a Petition for permission to appeal nunc
pro tunc in this Court, averring she miscalculated the end of the appeal period
by one day. This Court entered an order on July 20, 2021, dismissing Mother’s
petition but explaining she could request permission to appeal in the Orphans’
Court. Mother complied, and the Orphans’ Court granted her permission to
appeal nunc pro tunc by Order entered August 4, 2021. Mother filed Notices
of Appeal, along with Concise Statements of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i), that same day. CYS filed an application
to consolidate Mother’s appeals in this Court on September 1, 2021, and we
entered an order granting consolidation on September 16, 2021.6
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5 Mother was represented by counsel during the termination proceedings. A
single guardian ad litem represented both Children during the proceedings,
while the Court appointed separate legal counsel for M.D.V.M.
6 Mother filed two Notices of Appeal nunc pro tunc, with each Notice of Appeal
corresponding to one of the two Children involved in this appeal and included
the docket numbers from both Children’s adoption and dependency matters.
This Court filed orders directing Mother to show cause as to why these appeals
should not be quashed for failing to comply with Pa.R.A.P. 341, as interpreted
in Commonwealth v. Walker, 185 A.3d 969, 976-77 (Pa. 2018). Mother
responded that she intended only to appeal from the termination decrees, as
evidenced by her annexation of those decrees to her notices of appeal.
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Mother raises a single issue for our review: “Whether the [Orphans’
C]ourt erred in finding a basis to terminate Mother’s parental rights under 23
Pa.C.S. [§] 2511(a)(1), 2511(a)(2), and 2511(a)(5) when [CYS] failed to
prove these grounds by clear and convincing evidence[?]” Mother’s Br. at 5.7
Standard and Scope of Review
When reviewing a Decree involuntarily terminating parental rights, this
Court must accept the findings of fact and credibility determinations of the
Orphans’ Court if the record supports them. In re T.S.M., 71 A.3d 251, 267
(Pa. 2013). If the record supports the court’s factual findings, we must then
consider whether the court committed an error of law or abused its discretion.
Id. Where the competent record evidence supports the court’s findings, we
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Our Supreme Court has recently held that an appellate court may take
appropriate action to allow for corrective action where a timely-filed notice of
appeal contains an error. See Commonwealth v. Young, ___ A.3d ___,
2021 WL 6062566 (Pa. filed Dec. 22, 2021) (applying Pa.R.A.P. 902 to allow
correction of error to notices of appeal). In light of Mother’s response to the
rules to show cause, and the fact that she has already appealed the
dependency determinations, we need not remand for the filing of amended
notices of appeal or other corrective action. We, thus, address the merits of
Mother’s appeals.
7 In the argument portion of her brief, Mother also asserts a challenge to the
termination of her parental rights pursuant to 23 Pa.C.S. § 2511(b). Mother’s
Br. at 22. However, Mother failed to include that challenge in her statement
of questions involved or her Concise Statement of Errors Complained of on
Appeal. Thus, Mother waived any claim regarding Section 2511(b). See In
re M.Z.T.M.W., 163 A.3d 462, 466 (Pa. Super. 2017) (explaining that this
Court will not review an appellant’s claim unless it is included in the statement
of questions involved and Concise Statement).
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must affirm the termination Decree even if the record could support a different
result. In re Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994).
Critically, the Orphans’ Court “is free to believe all, part, or none of the
evidence presented, and is likewise free to make all credibility determinations
and resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73–74 (Pa.
Super. 2004) (citations omitted). We defer to the Orphans’ Court because it
often has “first-hand observations of the parties spanning multiple hearings.”
In re T.S.M., supra at 267 (citations and quotation marks omitted). It is
important to remain mindful that courts “cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims of
progress and hope for the future. Indeed, we work under statutory and case
law that contemplates only a short period of time . . . in which to complete
the process of either reunification or adoption for a child who has been placed
in foster care.” In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super.
2006) (emphasis in original; citations omitted).
The Adoption Act requires that the Orphans’ Court conduct a bifurcated
analysis when considering a Petition to terminate parental rights involuntarily.
See 23 Pa.C.S. § 2511(a) and (b). The court first focuses on the conduct of
the parent, and if the party seeking termination presents clear and convincing
evidence that the parent’s conduct meets one of the grounds for termination
set forth in Section 2511(a), the court must then analyze whether termination
of parental rights will serve the needs and welfare of the child pursuant to
Section 2511(b). The court must examine the existence of the child’s bond
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with his or her parent, if any, and the potential effect on the child of severing
that bond. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007). As we have
explained, “a parent’s basic constitutional right to the custody and rearing of
his or her child is converted, upon the failure to fulfill his or her parental duties,
to the child’s right to have proper parenting and fulfillment of his or her
potential in a permanent, healthy, safe environment.” In re B.,N.M., 856
A.2d 847, 856 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005)
(citation omitted).
While the Orphans’ Court here found that CYS met its burden of proof
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (b), we need only agree
with the court’s decision as to any one subsection of Section 2511(a), as well
as Section 2511(b), to affirm the termination of parental rights. In re B.L.W.,
843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863 A.2d
1141 (Pa. 2004).
Termination Pursuant to Section 2511(a)(1)
We first conclude the Orphans’ Court properly exercised its discretion by
terminating Mother’s parental rights pursuant to Section 2511(a)(1). Section
2511(a)(1) provides for termination where the petitioner establishes by clear
and convincing evidence that “[t]he parent by conduct continuing for a period
of at least six months immediately preceding the filing of the petition either
has evidenced a settled purpose of relinquishing parental claim to a child or
has refused or failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1);
In re Adoption of C.M., 255 A.3d 343, 358 (Pa. 2021) (citations omitted).
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While the Adoption Act does not define the term “parental duties,” our
courts have explained that parents must exert themselves to maintain a place
of importance in their children’s lives. Id. at 364 (quoting In re Adoption of
R.W.G., 431 A.2d 274, 276 (Pa. 1981)). “[C]ommunication and association
are essential to the performance of parental duty[,]” and a parent may not
preserve his or her rights by waiting for a more convenient time to perform
parental responsibilities while others attend to a child’s physical and emotional
needs. Id. (citations and quotation marks omitted). Moreover, a parent must
“‘exercise reasonable firmness’” in resisting any obstacles that may prevent
him or her from maintaining the parent-child relationship. Id. (quoting In re
Adoption of S.P., 47 A.3d 817, 828 (Pa. 2012)). If the evidence establishes
that a parent has failed to perform parental duties in the six months preceding
the filing of the Petition, the Orphans’ Court “must examine the individual
circumstances and any explanation offered by the parent to determine if that
evidence, in light of the totality of circumstances, clearly warrants permitting
the involuntary termination [of parental rights].” Id. (quoting In re Orwick’s
Adoption, 347 A.2d 677, 680 (Pa. 1975)).
Here, Mother acknowledges she failed to maintain contact with Children.
Mother’s Brief at 15-16. She contends her lack of contact resulted from her
mental health issues and “fear of doing something stupid,” and she complains
that CYS failed to accommodate these circumstances. Id. at 15-17. Mother
asserts she had a “light bulb [sic] moment of fear” when the Juvenile Court
changed Children’s goals to adoption in January 2021 and thereafter increased
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her contact with Children and their foster mother. Id. Mother also attempts
to defend her lack of contact with Children by arguing she was performing her
parental duties by not having contact with them. Id. at 16-17. She proposes
that she “engaged in her parental duty” by relying on Children’s foster mother
to care for them and by doing so protected them “from her own shortcomings.”
Id.
The Orphans’ Court rejected Mother’s explanation, finding that she failed
to attend visits with Children and “completely put the [c]hildren out of her life”
from at least June 2020 to January 2021. Orphans’ Court Opinion, 9/1/21, at
25-26. Although the court recognized Mother later increased her contact with
Children, it dismissed these belated efforts as merely “an effort to change the
impact of the pending litigation.” Id. at 26. The court observed that Mother
showed no interest in addressing Children’s needs during the limited contact
she did have with them, as she did not even bother to feed them or change
P.S.-Q.S.-L.’s diaper. Id.
The Orphans’ Court further found Mother refused to accept responsibility
for Children’s placement in foster care and failed to cooperate with CYS. Id.
Specifically, the court observed that Mother had not completed recommended
substance abuse treatment or attended mental health treatment consistently.
Id. The court concluded Mother continued to place her needs above those of
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Children and had not made the strides necessary to reunify with them despite
significant time and available services. Id. at 26-27.8
Our review of the record supports the Orphans’ Court’s conclusion that
Mother refused or failed to perform parental duties in the six months preceding
the filing of the termination Petitions. Strikingly, the testimony reveals Mother
did not take advantage of supervised visitation. Mother visited with Children
informally through Children’s foster mother in June 2020 and then did not visit
them again until another informal visit in December 2020.9 N.T., 3/23/21, at
44-45, 48-49, 113. Mother did not visit Children after that until she arranged
additional informal visits in January 2021, near the time CYS filed its Petitions
to terminate her parental rights on January 19, 2021. Id. at 43, 48-49, 56,
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8 The Orphans’ court also concluded that severing Mother’s parental rights to
Children would not adversely affect the Children’s wellbeing. Orphans’ Court
Opinion, 9/1/21, at 33. The court observed that M.D.V.M. had only a “minimal
bond” with Mother; and P.S.-Q.S.-L has had almost no contact with Mother
throughout his life as he has lived in foster care since shortly after birth. Id.
at 3-4, 10-13, 25-29. The court found both Children thrived in their foster
home, despite Mother’s lengthy absence from their lives, and that they shared
a strong bond with their pre-adoptive foster mother, who provided them a
nurturing, safe, and supportive environment. Id. at 33-34. Children did not
look to Mother as a source of support and, as such, the court concluded
terminating Mother’s parental rights would have no adverse effect on them
and, in fact, will serve the Children’s best interests by providing them with a
nurturing, safe, and supportive home. Id. at 34.
9 CYS offered Mother video visits at the start of the dependency proceeding
due to the COVID-19 pandemic. N.T., 3/23/21, at 45, 59-61. It is not entirely
clear from the record whether Mother attended any of these video visits.
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122-23. Mother also had phone contact with Children, but this occurred only
once per month, approximately, until January 2021. Id. at 114; Exhibit D.
Further, it was within the Orphans’ Court’s discretion to reject Mother’s
explanation for her refusal or failure. Mother’s claim, that her mental health
issues excused her lack of contact with Children, and that she performed her
parental duties by leaving Children in the care of their foster mother, is plainly
contrary to our law, which requires that a parent take affirmative steps to
maintain a relationship with his or her child. See In re Adoption of C.M.,
supra at 364. Accordingly, Mother is not entitled to relief.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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